CLIFFORD, Justice.
John Michaud appeals from convictions and from the sentences for those convictions imposed by the Superior Court (Ken-nebec County,
Brody,
C.J.) on two counts of gross sexual misconduct, 17-A M.R.S.A. § 253(1)(B) (1983 & Supp.1990), and one count of terrorizing, 17-A M.R.S.A. § 210 (1983), following a jury-waived trial. We affirm the judgments of conviction. We conclude, however, that the court erred in imposing consecutive maximum sentences on the two counts of gross sexual misconduct, and we modify Michaud’s sentences for those offenses.
In the afternoon of May 12, 1987, Mi-chaud approached two ten-year-old girls who were picking flowers along a snowmobile trail in a rural area of Winslow. Threatening the girls that he would kill them if they did not keep quiet, Michaud took the girls into the woods, told them to remove all of their clothing, and engaged in sexual acts with each of them. After instructing the girls to kiss each other and kissing one of the girls himself, Michaud allowed the girls to get dressed and depart.
Following Michaud’s convictions on two counts of gross sexual misconduct and one count of terrorizing,
the Superior Court conducted a sentencing hearing and imposed the maximum sentence on each count of gross sexual misconduct, 20 years,
to be served consecutively, for a total of 40 years. The court also imposed 364 days on the single count of terrorizing, to be served concurrently with the sentence imposed on the first count of gross sexual misconduct.
I.
APPEAL FROM CONVICTIONS
Speedy Trial
Michaud contends that the thirty-two month delay between the date he was indicted and the date of the trial resulted in the denial of his right to a speedy trial.
See
U.S. Const, amend. VI; Me. Const, art. I, § 6. A lapse of thirty-two months between indictment and trial raises a presumption that such a delay is unnecessary and warrants the application of a four-factor balancing test to determine whether Michaud was denied his right to a speedy trial.
State v. Carisio, 552
A.2d 23, 26 (Me.1988);
see State v. McLaughlin,
567 A.2d 82, 83 (Me.1989) (seventeen and one-half month delay between indictment and trial sufficient to trigger plenary analysis to determine if defendant was denied right to a speedy trial). A per se violation of Michaud’s right to a speedy trial is not established, however, merely because a long period of time elapsed between indictment and trial.
See State v. Beauchene,
541 A.2d 914, 918-19 (Me.1988) (in context of other factors, eight and two-thirds year delay between indictment and trial did not constitute a denial of defendant’s right to a speedy trial).
Considering the length of the delay between indictment and trial, the reasons for the delay, Michaud’s efforts to assert his right to a speedy trial, and any prejudice caused to Michaud by the delay, there was no denial of Michaud’s constitutional right to a speedy trial.
See McLaughlin,
567 A.2d at 83. The only delay directly attributable to the State was a continuance of approximately one month requested by the State and not objected to by Michaud. The remainder of the delay was caused in large part by a two-step psychological examina
tion process
and four competency hearings conducted to determine whether Mi-chaud was competent to stand trial, and the withdrawal of several different court-appointed attorneys because of Michaud’s unwillingness to cooperate with them.
See id.
(court, in concluding no denial of defendant’s right to a speedy trial, found significant that delay in proceeding to trial was caused by withdrawal of two court-appointed attorneys because defendant refused to communicate with them). Michaud did not formally assert his right to a speedy trial until three months before he went to trial. Finally, Michaud has failed to demonstrate that his defense was impaired by the delay or that he was otherwise prejudiced.
See id.
Confession
Michaud asserts that the Superior Court erred in denying his motion to suppress statements that he made under interrogation following his arrest. The court found by a preponderance of the evidence that Michaud had waived his
Miranda
rights knowingly, understanding^ and voluntarily, and the court further found beyond a reasonable doubt that Michaud’s statements were voluntary.
See State v. Knights,
482 A.2d 436, 440 (Me.1984). Contrary to Michaud’s contentions, there was no clear error in the court’s factual findings.
See State v. Birmingham,
527 A.2d 759, 761 (Me.1987).
Michaud challenges the adequacy of his waiver of his
Miranda
rights on the ground that a Winslow detective read him those rights but the District Attorney conducted the bulk of the interrogation. It is undisputed, however, that the District Attorney was present at the time Michaud was informed of his
Miranda
rights, and that the District Attorney discussed those rights with him at the commencement of the questioning. Moreover, Michaud testified at the suppression hearing and gave no indication that he did not understand either that the District Attorney was a law enforcement officer or that his
Miranda
waiver applied to any statements he made in response to questions posed by the District Attorney.
Michaud also contends that his statements were not voluntary. “A confession is voluntary if it results from the free choice of a rational mind, if it is not a product of coercive police conduct, and if under all of the circumstances its admission would be fundamentally fair.”
State v. Mikulewicz,
462 A.2d 497, 501 (Me.1983). The District Attorney’s exhortation, “I have you cold turkey, why did you do it?” does not, by itself, render Michaud’s confession involuntary.
See State v. Theriault,
425 A.2d 986, 990 (Me.1981). The entire interrogation lasted about fifteen minutes. Both the District Attorney and the Winslow police officer present at the interrogation testified that upon waiving his
Miranda
rights, Michaud seemed relieved and willing to talk. Michaud’s claim of involuntariness is without merit.
II.
APPEAL OF SENTENCE
Michaud contends that his sentences are excessive,
see
15 M.R.S.A. § 2154(1), and that it was error for the trial court to impose consecutive maximum sentences for the two convictions of gross sexual misconduct. Pursuant to 15 M.R. S.A. §§ 2151 and 2152 (Supp.1990) and M.R.Crim.P. 40, we granted leave to him to appeal those sentences.
Free access — add to your briefcase to read the full text and ask questions with AI
CLIFFORD, Justice.
John Michaud appeals from convictions and from the sentences for those convictions imposed by the Superior Court (Ken-nebec County,
Brody,
C.J.) on two counts of gross sexual misconduct, 17-A M.R.S.A. § 253(1)(B) (1983 & Supp.1990), and one count of terrorizing, 17-A M.R.S.A. § 210 (1983), following a jury-waived trial. We affirm the judgments of conviction. We conclude, however, that the court erred in imposing consecutive maximum sentences on the two counts of gross sexual misconduct, and we modify Michaud’s sentences for those offenses.
In the afternoon of May 12, 1987, Mi-chaud approached two ten-year-old girls who were picking flowers along a snowmobile trail in a rural area of Winslow. Threatening the girls that he would kill them if they did not keep quiet, Michaud took the girls into the woods, told them to remove all of their clothing, and engaged in sexual acts with each of them. After instructing the girls to kiss each other and kissing one of the girls himself, Michaud allowed the girls to get dressed and depart.
Following Michaud’s convictions on two counts of gross sexual misconduct and one count of terrorizing,
the Superior Court conducted a sentencing hearing and imposed the maximum sentence on each count of gross sexual misconduct, 20 years,
to be served consecutively, for a total of 40 years. The court also imposed 364 days on the single count of terrorizing, to be served concurrently with the sentence imposed on the first count of gross sexual misconduct.
I.
APPEAL FROM CONVICTIONS
Speedy Trial
Michaud contends that the thirty-two month delay between the date he was indicted and the date of the trial resulted in the denial of his right to a speedy trial.
See
U.S. Const, amend. VI; Me. Const, art. I, § 6. A lapse of thirty-two months between indictment and trial raises a presumption that such a delay is unnecessary and warrants the application of a four-factor balancing test to determine whether Michaud was denied his right to a speedy trial.
State v. Carisio, 552
A.2d 23, 26 (Me.1988);
see State v. McLaughlin,
567 A.2d 82, 83 (Me.1989) (seventeen and one-half month delay between indictment and trial sufficient to trigger plenary analysis to determine if defendant was denied right to a speedy trial). A per se violation of Michaud’s right to a speedy trial is not established, however, merely because a long period of time elapsed between indictment and trial.
See State v. Beauchene,
541 A.2d 914, 918-19 (Me.1988) (in context of other factors, eight and two-thirds year delay between indictment and trial did not constitute a denial of defendant’s right to a speedy trial).
Considering the length of the delay between indictment and trial, the reasons for the delay, Michaud’s efforts to assert his right to a speedy trial, and any prejudice caused to Michaud by the delay, there was no denial of Michaud’s constitutional right to a speedy trial.
See McLaughlin,
567 A.2d at 83. The only delay directly attributable to the State was a continuance of approximately one month requested by the State and not objected to by Michaud. The remainder of the delay was caused in large part by a two-step psychological examina
tion process
and four competency hearings conducted to determine whether Mi-chaud was competent to stand trial, and the withdrawal of several different court-appointed attorneys because of Michaud’s unwillingness to cooperate with them.
See id.
(court, in concluding no denial of defendant’s right to a speedy trial, found significant that delay in proceeding to trial was caused by withdrawal of two court-appointed attorneys because defendant refused to communicate with them). Michaud did not formally assert his right to a speedy trial until three months before he went to trial. Finally, Michaud has failed to demonstrate that his defense was impaired by the delay or that he was otherwise prejudiced.
See id.
Confession
Michaud asserts that the Superior Court erred in denying his motion to suppress statements that he made under interrogation following his arrest. The court found by a preponderance of the evidence that Michaud had waived his
Miranda
rights knowingly, understanding^ and voluntarily, and the court further found beyond a reasonable doubt that Michaud’s statements were voluntary.
See State v. Knights,
482 A.2d 436, 440 (Me.1984). Contrary to Michaud’s contentions, there was no clear error in the court’s factual findings.
See State v. Birmingham,
527 A.2d 759, 761 (Me.1987).
Michaud challenges the adequacy of his waiver of his
Miranda
rights on the ground that a Winslow detective read him those rights but the District Attorney conducted the bulk of the interrogation. It is undisputed, however, that the District Attorney was present at the time Michaud was informed of his
Miranda
rights, and that the District Attorney discussed those rights with him at the commencement of the questioning. Moreover, Michaud testified at the suppression hearing and gave no indication that he did not understand either that the District Attorney was a law enforcement officer or that his
Miranda
waiver applied to any statements he made in response to questions posed by the District Attorney.
Michaud also contends that his statements were not voluntary. “A confession is voluntary if it results from the free choice of a rational mind, if it is not a product of coercive police conduct, and if under all of the circumstances its admission would be fundamentally fair.”
State v. Mikulewicz,
462 A.2d 497, 501 (Me.1983). The District Attorney’s exhortation, “I have you cold turkey, why did you do it?” does not, by itself, render Michaud’s confession involuntary.
See State v. Theriault,
425 A.2d 986, 990 (Me.1981). The entire interrogation lasted about fifteen minutes. Both the District Attorney and the Winslow police officer present at the interrogation testified that upon waiving his
Miranda
rights, Michaud seemed relieved and willing to talk. Michaud’s claim of involuntariness is without merit.
II.
APPEAL OF SENTENCE
Michaud contends that his sentences are excessive,
see
15 M.R.S.A. § 2154(1), and that it was error for the trial court to impose consecutive maximum sentences for the two convictions of gross sexual misconduct. Pursuant to 15 M.R. S.A. §§ 2151 and 2152 (Supp.1990) and M.R.Crim.P. 40, we granted leave to him to appeal those sentences.
In contesting the
length of the sentences, Michaud is challenging their propriety. 15 M.R.S.A. § 2155(1).
In considering the propriety of the sentences, we review both the term of years imposed on each sentence, and the appropriateness of making those sentences consecutive. The seriousness of the offenses is central to that review. The nature and seriousness of the defendant’s conduct is determinative of the maximum sentence that may be imposed.
State v. Hallowell,
577 A.2d 778, 781 (Me.1990) (maximum sentence that may be given measured by nature of offense rather than by circumstances of offender). In imposing consecutive sentences on Michaud, the trial court relied on what it considered to be the seriousness of Michaud’s criminal conduct. 17-A M.R.S.A. § 1256(2)(D) (1983).
Maximum Sentences
Conduct that falls within the same statutory definition of a crime may be committed in a number of different ways with varying degrees of seriousness.
Hallo-well,
577 A.2d at 781;
see State v. St. Pierre,
584 A.2d 618, 621-22 (Me.1990). The criminal offense in this case is gross sexual misconduct involving child victims. 17-A M.R.S.A. § 253(1)(B). Gross sexual misconduct, especially involving child victims, is a serious and repugnant crime. Before imposing a maximum sentence in a ease such as this, however, the trial court must compare the conduct of Michaud on a scale of seriousness against all the possible means of committing gross sexual misconduct, and conclude that it ranks at or near the top of that scale.
See Hallowell,
577 A.2d at 781. Michaud took two young girls
to an isolated setting, ordered them to remove their clothing, and subjected them to sexual acts.
Although there is no question that Michaud’s conduct was despicable,
gross sexual misconduct could be committed in much more aggravating and heinous ways. Michaud did not expose his genitals or make contact between his genitals and the mouth, anus or genitals of either victim.
See
17-A M.R.S.A. § 251(1)(C) (Supp.1990).
Nor did Michaud
exert violent physical force upon the victims. The entire incident, between the time Michaud abducted the victims and the time he allowed them to leave, lasted about twenty minutes. This gross sexual misconduct, abhorrent as it was, cannot be said to have been committed in the most heinous way that gross sexual misconduct may be committed.
Therefore, under the principles enunciated in
Hallowell,
the imposition of the maximum sentences was inappropriate.
Consecutive Sentences
Because in imposing consecutive sentences the trial court relied upon the seriousness of Michaud’s conduct, 17-A M.R.S.A. § 1256(2)(D),
that is the focus of our review of the propriety of the consecutive sentences. When a defendant is subject to multiple sentences of imprisonment, there is a statutory presumption that a sentencing court shall impose the sentences concurrently. 17-A M.R.S.A. § 1256(2);
see State v. Walsh,
558 A.2d 1184, 1188 (Me.1989). Consecutive sentences may be imposed pursuant to section 1256(2)(D) only when the criminal offense is “unusually serious.”
Walsh,
558 A.2d at 1188. The crime of gross sexual misconduct is repugnant and constitutes a serious breach of the criminal law. It may be committed, however, with violent physical force and in many other more heinous ways than it was in this case.
See supra
discussion pp. 542-543;
Hallowell,
577 A.2d at 781. Because Michaud’s commission of these gross sexual misconduct offenses was not so “unusually serious”
for that crime
to justify consecutive sentences, they were improperly imposed.
Substitute Sentences
Having determined that the sentences in this case are excessive it is our responsibility to substitute an appropriate sentence pursuant to 15 M.R.S.A. § 2156(1)(A).
See St. Pierre,
584 A.2d at 622. In doing so we are guided by the purposes of sentencing set out in 17-A M.R.S.A. § 1151 (1983 & Supp.1990)
and
are aware of the limits on sentences in section 1252.
State v. Lewis,
590 A.2d 149, 150 (Me.1991). Although the gross sexual misconduct offenses committed here do not rank in the upper quadrant of seriousness as compared to other more heinous and violent ways that the crime may be committed, the gravity of the crimes nevertheless warrants imposition of a substantial sentence.
See
17-A M.R.S.A. § 1151(8). We conclude that sentences of fifteen years for each conviction to be served concurrently are appropriate.
After determining the sentences appropriate to the severity of the offense, we must consider the possible existence of mitigating factors that favor the suspension or partial suspension of the sentences, and the likelihood of successful rehabilitation.
State v. Constantine,
588 A.2d 294, 297 (Me.1991). The circumstances of the offender and the protection of the public must be weighed to determine whether and to what extent the sentences otherwise called for by virtue of the nature and seriousness of the crime should be reduced.
Hallowell,
577 A.2d at 781-82.
see
17-A M.R.S.A. § 1151.
There are aggravating circumstances present in this case. Michaud has expressed no remorse. He has two prior convictions for criminal assault and one for criminal threatening, all involving physical violence. Michaud has a mental illness that has been treated successfully while he is hospitalized, but Michaud has not submitted to follow-up treatment and has not taken his medication when released. A psychiatric evaluation performed in connection with the presentence report was inconclusive as to whether psychiatric treatment could serve an effective deterrent purpose. There are also, however, countervailing mitigating circumstances that we must consider in deciding whether to suspend a portion of the sentence and place Michaud on probation.
See
17-A M.R.S.A. § 1151(3), (5), (6) & (7). Michaud has no felony criminal record and no prior conviction for sex crimes. The prior offenses for which he was convicted arose out of a single incident in 1984. Michaud, who was raised in a dysfunctional family,
has a long history of mental illness and emotional problems. His mental illness is treatable and when he is hospitalized and treated with medication, he becomes compliant and responds well to external controls. Given Michaud’s psychological problems, it is in the interest of the public’s protection, and in his best interests, that Michaud be subjected to a lengthy probationary period upon his release from prison, during which he can receive treatment appropriate to his condition.
Therefore, it is appropriate that all but twelve years of each of Michaud’s concurrent fifteen-year sentences be suspended, and that, following his release from prison, he be placed on probation for a period of six years. In addition to the standard conditions of probation,
including the prohibi
tion on Michaud’s use of alcohol and drugs, Michaud shall be required to undergo psychiatric treatment and participate in psychiatric and sex offender programs as determined by and to the satisfaction of the Division of Probation and Parole. He must follow the regimen of therapy, including medication, prescribed as part of his treatment program. In addition, Michaud is to comply with and submit to any testing, including random drug testing, to insure that he is following said regimen and refraining from the use of unlawful drugs and alcohol. Finally, Michaud is to have no contact with the victims or their families.
The entry is:
Judgments of conviction affirmed. Sentences for gross sexual misconduct amended by substituting therefor sentences of fifteen years to be served concurrently in the custody of the Department of Corrections, with all but twelve years of those sentences to be suspended, and defendant to be committed to the custody and control of the Division of Probation and Parole for a term of six years upon conditions specified in the opinion herein. Said probation to commence upon release from incarceration.
All concurring.