State v. Black
| Decision Date | 30 January 2007 |
| Citation | 2007 ME 19,914 A.2d 723 |
| Parties | STATE of Maine v. Penny A. BLACK. |
| Court | Maine Supreme Court |
G. Steven Rowe, Attorney General, Donald W. Macomber, Asst. Atty. Gen. (orally), Andrew Benson, Asst. Atty. Gen., Augusta, for State.
Sarah A. Churchill, Esq. (orally), Strike, Goodwin & O'Brien, Portland, for defendant.
Panel: SAUFLEY, C.J., and CLIFFORD, DANA, ALEXANDER, CALKINS, LEVY, and SILVER, JJ.
[¶ 1] Penny A. Black, who was convicted by a jury in the Superior Court (York County, Brennan, J.) for hindering the apprehension of the killers of Julius Petrovic, appeals from the judgment of conviction for hindering apprehension or prosecution (Class B), 17-A M.R.S. § 753(1-B)(A)(1) (2006). She also appeals from her sentence. Finding no error at trial, we affirm Black's conviction without discussion. We address herein the sentence imposed and affirm that sentence, except that we remand the probation portion of the sentence for findings by the court.
[¶ 2] Julius Petrovic was shot and killed at a rest area in Yarmouth on May 17, 2004. Investigations later that day led the police to Black's Nissan Maxima, parked outside of a motel in Old Orchard Beach, where Black lived. Early the next morning, two state police detectives went to Black's motel room to question her regarding the possible involvement of her car in the shooting of Petrovic. Black lied about the identity of the person who had borrowed her car the day before. She provided the name of an actual person, Lance Vachon, and corroborated her story by producing a traffic ticket issued to the man, purportedly Vachon, who had driven her car that day. In fact, Black had lent her car to Shawn Hopkins (the father of her child), who then used the car together with his brother Ryan.
[¶ 3] On the evening of May 18, another state police detective went to Black's residence and questioned her about the identity of the person to whom she had lent her vehicle the day before. Black provided the detective with yet another name, Sean Harris, and stated that it was Harris, rather than Vachon, who had borrowed her car along with a friend of his named Josh.
[¶ 4] The next morning, Black telephoned police and reported that she had found a gun under her couch. Upon questioning, she maintained that she had lent her car to Sean Harris, and this time added that he was her boyfriend and that he had actually borrowed the car with his brother, Ryan. Black was shown a photograph of Sean Harris, who is an actual person residing in Maine, and she said "it could be" her boyfriend.
[¶ 5] Later, after speaking with Black's mother, the police again questioned Black and told her that they knew she was lying. At this point, Black told them the truth— that she had lent her car to Shawn and Ryan Hopkins—and stated that Shawn had "programmed" her to lie to the police. Shawn and Ryan Hopkins were apprehended on May 22, 2004. Ryan Hopkins subsequently pleaded guilty to the robbery and murder of Petrovic, and Shawn Hopkins pleaded guilty to robbery and felony murder.1
[¶ 6] Black was indicted on a charge of hindering the apprehension or prosecution of Shawn and/or Ryan Hopkins. See 17-A M.R.S. § 753(1-B)(A)(1). The case was tried to a jury, which returned a verdict of guilty. After receiving sentencing memoranda from the State and Black, the court held a sentencing hearing.
[¶ 7] At the hearing, the court conducted the required three-step sentencing analysis pursuant to 17-A M.R.S. § 1252-C (2006) and State v. Hewey, 622 A.2d 1151, 1154-55 (Me.1993). In the first phase of its sentencing analysis, the court appropriately analyzed the nature and seriousness of the offense itself and determined that Black's basic sentence should be five to seven years. Proceeding to the second phase, the court considered the relevant aggravating and mitigating factors and, based on the mitigating factors of Black's youth and lack of criminal history, set a maximum sentence of five years. The court then turned to the third sentencing phase to determine how much of Black's sentence should be suspended. The court suspended all but eighteen months of the five-year maximum sentence and imposed four years of probation. The four-year term of probation was the maximum authorized for the conviction of a Class B crime at the time of Black's offense. See 17-A M.R.S.A. § 1202(1) (Supp.2003).2
[¶ 8] Black appealed from her conviction. She also filed an application to appeal from the sentence, which the Sentence Review Panel granted.
[¶ 9] We first note that we are unpersuaded by, and do not address, Black's challenges to the court's jury instructions and the sufficiency of the evidence to sustain her conviction.
[¶ 10] Turning to Black's sentence appeal, we conclude that the court neither misapplied principle in setting Black's basic sentence at five to seven years, nor abused its discretion in setting her maximum sentence at five years. See State v. Soucy, 2006 ME 8, ¶ 11, 890 A.2d 719, 723. Accordingly, we address only Black's remaining contention that the court abused its discretion in the third phase of the Hewey sentencing analysis when it suspended all but eighteen of the sixty-month sentence and imposed a four-year probationary period. See 17-A M.R.S. § 1252-C(3); Hewey, 622 A.2d at 1155.
[¶ 11] We review for abuse of discretion a sentencing court's third-phase determination of "what portion, if any, of the maximum period of imprisonment should be suspended and, if a suspension order is to be entered, . . . the appropriate period of probation to accompany that suspension." 17-A M.R.S. § 1252-C(3); see State v. Ardolino, 1997 ME 141, ¶ 26, 697 A.2d 73, 81.
[¶ 12] In determining whether any part of the sixty months should be suspended, and, if so, how much, the court had to balance, among other interests, the need to acknowledge the seriousness of Black's criminal behavior against the goal of rehabilitating her so that she is able to return to a crime-free life. The court recognized this balance and made specific findings related to the difficulty of determining an appropriate final sentence:
This is a serious case, and I think people need to understand that when you're aware that there's serious criminality out there, a sense of loyalty, a sense of allegiance, even a sense of some apprehension on your part, they must give way to the obligation to be truthful or at least not to lead people down dead ends. It's a tough sentence, I think, in this case. . . . I'm . . . mindful of your child, and I should say the boy is a mitigating factor here, too. It can't be good for society as a whole to have another motherless child. But with that said, that in and of itself does not absolve this case of the need for punishment.
[¶ 13] Ultimately, the court's determination that Black should serve thirty percent of the underlying sentence is well supported both by the record in this case and the court's own findings in the sentencing proceeding. Moreover, the approximately three-to-one ratio of the underlying sentence to the time to be served is well within the range of reasonableness.
[¶ 14] We turn then to our review of the period of probation. An offender "may be sentenced to a sentencing alternative that includes a period of probation if the person is in need of the supervision, guidance, assistance or direction that probation can provide." 17-A M.R.S. § 1201(2) (2006). Probation helps serve the general purposes of sentencing, including the effort "[t]o prevent crime through . . . the rehabilitation of convicted persons" and "[t]o encourage differentiation among offenders with a view to a just individualization of sentences." 17-A M.R.S. § 1151(1), (6) (2006). "Probation is a device designed to assist individuals in reintegrating into society," State v. Nolan, 2000 ME 165, ¶ 9, 759 A.2d 721, 724, and it has aspects of both punishment3 and rehabilitation.
[¶ 15] If the sentencing court concludes that probation is an appropriate part of a sentence, it must determine the length of the probation and may impose any conditions "it deems to be reasonable and appropriate to assist the convicted person to lead a law-abiding life." 17-A M.R.S. § 1204(1) (2006).
[¶ 16] In this case, the sentencing court fully and effectively explained its reasons for imposing a five-year sentence and for balancing the manifold goals of sentencing to determine the unsuspended portion of the sentence, that is, the length of time Black would spend in prison. However, because the parties focused their attention on these components of the sentence, they did not specifically direct the court's attention to the length of time appropriate for Black's probation at the sentencing hearing.4
[¶ 17] Although the court did state the length of the probationary period, it did not otherwise address the reason for imposing four years of probation—the maximum allowed at the time:
I'm going to impose an underlying sentence of five years and I'm going to suspend all but 18 months of that sentence, 18-month prison sentence, and it will be followed by four years of probation. I don't see any need for any special conditions beyond the general conditions of probation.
Because probation is a limited resource that serves the function of providing "supervision, guidance, assistance or direction" to a convicted person reintegrating into society, 17-A M.R.S. § 1201(2), the rationale for imposing a specific period of probation may not be identical to the rationale for imposing the sentence of imprisonment. Accordingly, a sentencing court must separately, even if briefly, explain why the probationary period was selected in the particular case before it. See Hewey, 622 A.2d at 1155 (). Without this...
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