Alexandre v. State

• Decision Date: 09 August 2007
• Docket Number: Docket: Pen-06-675.
• Citation: 2007 ME 106,927 A.2d 1155
• Parties: Patrick ALEXANDRE v. STATE of Maine.
• Court: Maine Supreme Court

927 A.2d 1155

2007 ME 106

Patrick ALEXANDRE v. STATE of Maine.

Docket: Pen-06-675.

Supreme Judicial Court of Maine.

Argued: May 22, 2007.

Decided: August 9, 2007.

G. Steven Rowe, Attorney General, William R. Stokes, Deputy Atty. Gen. (orally), Fernand R. Larochelle, Assistant Atty. Gen., Augusta, for the State.

David J. Van Dyke, Esq. (orally), Hornblower, Lynch, Rabasco & Van Dyke, P.A., Lewiston, for the defendant.

Panel: SAUFLEY, C.J., and CLIFFORD, ALEXANDER, CALKINS, LEVY, and SILVER, JJ.

LEVY, J.

[¶ 1] Patrick Alexandre was convicted of manslaughter and kidnapping following a jury trial in 2003. The State appeals from a judgment of the Superior Court (Penobscot County, Jabar, J.) granting Alexandre post-conviction relief based on its finding that Alexandre's former lawyer was constitutionally ineffective by failing to seek a jury determination of sentencing facts in violation of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). Alexandre cross-appeals from the court's failure to find constitutional ineffectiveness based on his former lawyer's failure to seek the dismissal of the kidnapping count as being time-barred based on the applicable statute of limitations. We vacate the judgment as to both issues.

I. BACKGROUND

A. Trial, Sentencing, and Direct Appeal

[¶ 2] Alexandre was indicted in November 2001 for the crimes of intentional or knowing murder, 17-A M.R.S. § 201(1)(A) (2006), and kidnapping (Class A), 17-A M.R.S. § 301(1)(B)(1), (3) (2006), in connection with the restraint and death of Joseph Cloak. The indictment alleged that both crimes were committed "[o]n or about the fifteenth day of September, 1989." A jury trial was held in July 2003, in the Superior Court (Penobscot County, Jabar, J.). The jury found Alexandre not guilty of murder, but guilty of the lesser-included offense of manslaughter (Class A), 17-A M.R.S.A. § 203(3) (1983 & Supp. 1988), and guilty of kidnapping. The trial evidence established that Cloak died while either chained to a tree over a three-day period or soon thereafter after having been buried alive.

[¶ 3] A sentencing hearing was held in October 2003. Regarding the kidnapping conviction, the court found that it was "very difficult to consider other ways to commit that crime and have it more heinous than this particular one was," and set the basic period of incarceration at thirty years. The court found no mitigating circumstances and significant aggravating factors in victim impact and in Alexandre's extensive criminal history. The sentence was set at forty years, with no portion suspended.

[¶ 4] The court's analysis was the same with respect to the manslaughter conviction. The basic sentence was set at thirty years because the court could not think of "a much worse way of committing the crime of manslaughter." The court found no mitigating factors and significant aggravating factors in Alexandre's prior criminal record and the impact of the crime on the victim. The maximum sentence was set at forty years, with no period suspended. The court concluded that the two sentences should run concurrently because Alexandre's crimes of kidnapping and manslaughter "run together, they are intertwined," and the crimes were "one course of conduct."

[¶ 5] Alexandre filed an appeal and an application for leave to appeal his sentence. We affirmed Alexandre's convictions in a memorandum of decision, see State v. Alexandre, Mem-04-154 (Nov. 22, 2004), and the Sentence Review Panel denied his application for sentence review, State v. Alexandre, No. SRP-03-653 (Me. Sent. Rev. Panel Dec. 10, 2003). At no point during the trial, sentencing, or appeal did Alexandre's attorney raise or argue the applicability of Apprendi or Blakely.

B. Post-Conviction Proceeding

[¶ 6] Alexandre filed a petition for post-conviction review in February 2005,¹ alleging that his former attorney had provided him with constitutionally ineffective assistance at trial, at sentencing, and on appeal because of the failure to raise Apprendi and Blakely and other issues. The petition was subsequently amended to add the claim that the kidnapping count of the indictment was time-barred and should have been dismissed, and that his former attorney was ineffective in failing to seek the dismissal of the kidnapping count on this basis.

[¶ 7] The post-conviction court held a hearing in August 2006. Regarding the sentencing issue, Alexandre introduced copies of two letters that he had sent to his former attorney while his appeal was pending in which he had urged his attorney to advocate that Apprendi and Blakely apply to his case. Alexandre's former attorney testified that he did not consider the statute of limitations as it applied to the kidnapping count when he prepared Alexandre's defense because he viewed the case principally as a murder case, and he believed that the jury would conclude that the kidnapping was committed by someone other than Alexandre.

[¶ 8] The court granted Alexandre's petition in part. Relevant to this appeal, the court concluded that Alexandre's sentences were illegal under the principles of Apprendi and Blakely, and that Alexandre's counsel was ineffective in failing to raise the issue at the time of sentencing and again on appeal. The court noted that Apprendi was the law of the land at the time of Alexandre's sentencing, and that Blakely had been decided ten months before we affirmed Alexandre's convictions. The court likened Alexandre's case to the sentence vacated in State v. Schofield, 2005 ME 82, 895 A.2d 927, concluding that "[h]ad Blakely and Apprendi been raised on appeal [to the Law Court], this case could very easily have established the precedent that Schofield stands for today."

[¶ 9] Regarding the kidnapping conviction, the court reasoned that had a motion to dismiss the kidnapping count been filed, the charge would have been dismissed as time-barred. Nevertheless, it concluded that the attorney's failure to pursue the issue was harmless because even if the kidnapping charge had been dismissed, the jury would still have found Alexandre guilty of manslaughter. Accordingly, the court concluded that Alexandre had failed to demonstrate that he was prejudiced by his former attorney's failure to seek the dismissal of the kidnapping count.²

[¶ 10] The court vacated Alexandre's sentences, and directed that the matter be set for resentencing and "[i]f the State recommends a sentence beyond the statutory maximum or the court wishes to impose a sentence beyond the statutory maximum, then [Alexandre] is entitled to a sentencing trial before a fact finder of his choice."

[¶ 11] The State appeals on the manslaughter sentencing issue, and Alexandre cross-appeals regarding the kidnapping conviction.

II. LEGAL ANALYSIS

A. Whether Alexandre's Sentences Violated His Sixth Amendment Rights

[¶ 12] The State contends that the court erred when it concluded that Schofield controls this case because Schofield interpreted a later version of 17-A M.R.S. § 1252(2)(A) that explicitly contained two discrete sentencing ranges for Class A crimes. The crux of the State's argument is that the version of section 1252(2)(A) in effect at the time Alexandre committed his crimes in 1989, 17-A M.R.S.A. § 1252(2)(A) (Supp.1988), sets a single statutory maximum sentence of forty years. The State argues that State v. Lewis, 590 A.2d 149 (Me.1991), the principal case interpreting the version of section 1252(2)(A) in effect at the time Alexandre's crimes were committed,³ stands for the proposition that there is only one statutory maximum sentence of forty years, subject to two ranges of judicial discretion within that maximum, depending on the court's discretionary finding of the heinousness of the offense.

[¶ 13] Alexandre contends that the State misreads Lewis and that the opinion means what it said when it identified within section 1252(2)(A) two discrete sentencing ranges for Class A crimes: a lower range of zero to twenty years, and an upper range of twenty to forty years. Alexandre asserts that the Superior Court properly concluded that his sentences are illegal and that he received ineffective assistance of counsel, because of the principle, stated in Schofield, that it is error to impose a sentence in excess of twenty years based solely on the court's finding of the heinousness of the crime if the defendant has not waived the right to have a jury determine the issue.

[¶ 14] We review questions of law de novo, State v. Thibodeau, 2000 ME 52, ¶ 5, 747 A.2d 596, 598, including the legality of a sentence, State v. Soucy, 2006 ME 8, ¶ 11, 890 A.2d 719, 723, and the interpretation of a statute, State v. Thongsavanh, 2007 ME 20, ¶ 27, 915 A.2d 421, 427. As the framework for our analysis, we address: (1) our decision in Schofield; (2) our decision in Lewis; and (3) our conclusion that Alexandre's Sixth Amendment right to trial by jury was not violated by the sentencing court's determination of the heinousness of his crimes.

1. State v. Schofield

[¶ 15] As a prelude to our consideration of the Schofield decision as it affects Alexandre's petition, we turn first to the United States Supreme Court's decisions in Apprendi and Blakely because they were the foundation for our Schofield decision. In Apprendi, the Court held that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." 530 U.S. at 490, 120 S.Ct. 2348. The Court distinguished facts that result in "sentence enhancement" by increasing the maximum authorized statutory sentence that is "the functional equivalent of an element of a greater offense than the one covered by the jury's guilty verdict," from "sentencing factor[s]," whether "aggravating or mitigating in character, that support[] a specific...