State v. Burdick

• Decision Date: 19 October 2001
• Citation: 2001 ME 143,782 A.2d 319
• Parties: STATE of Maine v. Richard R. BURDICK.
• Court: Maine Supreme Court

782 A.2d 319

2001 ME 143

STATE of Maine v. Richard R. BURDICK.

Supreme Judicial Court of Maine.

Argued: April 10, 2001.

Decided: October 19, 2001.

G. Steven Rowe, Attorney General, Charles K. Leadbetter, State Solicitor (orally), Nancy Torreson, Asst. Attorney General, Augusta, and Michael E. Povich, District Attorney, Ellsworth, for State.

Kevin L. Barron (orally), Ellsworth, for defendant.

Panel: WATHEN, C.J.,¹ and CLIFFORD, RUDMAN, DANA, SAUFLEY, ALEXANDER, and CALKINS, JJ.

SAUFLEY, J.

[¶ 1] Richard Burdick appeals from the judgment entered in the Superior Court (Hancock County, Hjelm, J.) following a jury verdict finding him guilty of, among other things, attempted murder, pursuant to 17-A M.R.S.A. § 152(4) (Supp.2000).² Burdick contends that the sentence imposed on the attempted murder charge was an illegal sentence because it deprived him of his constitutional rights to due process and trial by jury pursuant to the holding of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).³ We affirm the judgment.

I. BACKGROUND

[¶ 2] All of the charges against Burdick arose out of a single incident in which Burdick shot a law enforcement officer twice in the chest at a very close range.⁴ After the jury found Burdick guilty on all charges, the court sentenced him to forty years in the custody of the Department of Corrections on the attempted murder charge. The court also imposed shorter sentences on each of the other charges, to run concurrently with the forty-year sentence for attempted murder.⁵

[¶ 3] The evidence leading to Burdick's conviction can be summarized as follows. On the night of June 13, 1999, three Hancock County Sheriff's officers were directed to Richard Burdick's two-story residence in Orland to arrest him on an outstanding felony warrant from Massachusetts. Although Burdick initially came to the door, he retreated into the house and up to the second floor after seeing two of the officers in uniform. The officers did not follow Burdick into the house, and instead attempted to lure him outside.

[¶ 4] After a few minutes, Burdick began descending the stairs with his wife in front of him. Unknown to the officers at this time, Burdick had placed a .22 magnum handgun in his pants pocket. Two of the officers, with guns drawn, directed Burdick to exit the house. At that point, Burdick realized that the officers intended to arrest him and retreated back upstairs. This time, the officers pursued him into the house and up the stairs.

[¶ 5] When Burdick reached the second floor, he shut the door at the top of the landing. The first officer in pursuit, Jeffrey McFarland, forced the door open and rushed inside. Although no lights were on, McFarland could make out Burdick trying to hide behind a rack of clothes. Burdick's right side was obstructed from McFarland's view. McFarland stepped forward, grabbed Burdick's left arm with his right hand, and pulled Burdick toward him in preparation for securing him with handcuffs.

[¶ 6] Almost immediately, McFarland saw and heard Burdick discharge his .22 magnum handgun with his right hand, striking McFarland in the chest. Burdick then fired a second shot into McFarland's chest, and McFarland collapsed on the floor. The other two officers, James Willis and Kenneth Mitchell, were only steps behind McFarland. Willis discharged two gun shots, striking Burdick once in the right front pelvic area. Mitchell fired multiple shots, but none struck Burdick. The three officers then left the building. Because McFarland was wearing a bulletproof vest, the physical injuries to his chest were minor.⁶

[¶ 7] A stalemate between Burdick and the Maine State Police tactical team ensued when Burdick refused to come outside. Ultimately, the officers entered the second-floor room and found Burdick unconscious.⁷ Burdick was taken to a hospital for treatment and was subsequently charged with, inter alia, the attempted murder of Jeffrey McFarland.

[¶ 8] At trial, a number of witnesses testified on behalf of the State, including officers Mitchell, Willis, and McFarland. Burdick, as the sole witness for the defense, testified about his own version of the incident. Burdick did not dispute that he fired the shots, that McFarland was a uniformed law enforcement officer, or that he understood that the officers were there to arrest him. He testified, however, that when he descended the stairs the second time, he had placed his gun in his pocket in case he had to kill himself or "so I could cover myself." He explained to the jury that after McFarland chased him upstairs and forced his way into the room, he accidentally shot McFarland in the ensuing struggle. The jury returned a guilty verdict as to each of the five charges.

[¶ 9] During the sentencing stage, the State sought imposition of a life imprisonment sentence pursuant to the enhanced sentencing provisions of the attempted murder statute, 17-A M.R.S.A. § 152(4)(F) (Supp. 2000), based on the allegation that "[t]he attempted murder was committed against a law enforcement officer while the officer was acting in the performance of that officer's duties."⁸Id. The court considered the fact that the crime of attempted murder was committed against a law enforcement officer and sentenced Burdick to forty years in prison, a sentence the court characterized as "probably a de facto life sentence." Burdick then filed this appeal.

II. DISCUSSION

[¶ 10] Pursuant to the U.S. Supreme Court's holding in Apprendi, "[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." Apprendi, 530 U.S. at 490, 120 S.Ct. 2348 (emphasis added). The Court in Apprendi reasoned that the due process requirements of the Fourteenth Amendment and the right to trial by jury of the Sixth Amendment, taken together, "indisputably entitle a criminal defendant to `a jury determination that [he] is guilty of every element of the crime with which he is charged, beyond a reasonable doubt.'" Id. at 476-77, 120 S.Ct. 2348 (quoting United States v. Gaudin, 515 U.S. 506, 510, 115 S.Ct. 2310, 132 L.Ed.2d 444 (1995)); see also In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970)

. Because "facts that expose a defendant to a punishment greater than that otherwise legally prescribed [are] by definition `elements' of a separate legal offense," such facts "must be submitted to a jury, and proved beyond a reasonable doubt." Apprendi, 530 U.S. at 483 n. 10, 490, 120 S.Ct. 2348; see also Jones v. United States, 526 U.S. 227, 251-52, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999) (holding that provisions of car-jacking statute that established higher penalties to be imposed when offense resulted in "serious bodily injury" or "death" set forth additional elements of offense, not mere sentencing factors).

[¶ 11] Burdick contends, pursuant to the holding in Apprendi, that his attempted murder sentence is illegal because he was unconstitutionally exposed to an increased statutory maximum sentence of life imprisonment, based on facts that were not "submitted to the jury, and proved beyond a reasonable doubt" as part of his attempted murder charge. See Apprendi, 530 U.S. at 490,

120 S.Ct. 2348. Burdick's argument requires us to determine whether the enhanced sentencing provision of the attempted murder statute, as applied to Burdick, violated his constitutional right to trial by jury and due process, pursuant to the Sixth and Fourteenth Amendments of the federal constitution. See id. at 476-77, 120 S.Ct. 2348; 17-A M.R.S.A. § 152(4). Specifically at issue here is the special penalty provision of the attempted murder statute that allowed the increase in the maximum period of imprisonment based upon the court's finding, at the sentencing stage, that the attempted murder was committed against a "law enforcement officer ... acting in the performance of that officer's duties." See 17-A M.R.S.A. § 152(4)(F).

[¶ 12] Preliminarily, we note that Burdick has raised this challenge for the first time on appeal. See State v. Thornton, 485 A.2d 952, 952-53 (Me.1984)

; see also Younie v. State, 281 A.2d 446, 448-49 (Me.1971) (declining to review the petitioner's constitutional due process claim, "because it is raised for the first time in his brief to this Court upon appeal"). Burdick did not raise or present this issue to the Superior Court, nor did he raise the issue in his application for leave to appeal his sentence. See 15 M.R.S.A. § 2151 (Supp.2000).⁹

[¶ 13] In the absence of a preserved challenge, we review Burdick's appeal for "obvious errors" affecting his substantial rights. See M.R.Crim. P. 52(b); State v. Dube, 522 A.2d 904, 907 (Me.1987). "Because [the defendant] did not raise this Apprendi claim at the time he was sentenced, our review is only for plain error." United States v. Gilliam, 255 F.3d 428, 434 (7th Cir.2001); accord United States v. Burgos, 254 F.3d 8, 11 (1st Cir.2001)

.¹⁰ We will vacate Burdick's sentence "only if the alleged impropriety is obvious and worked a manifest injustice on the defendant." State v. Ilsley, 604 A.2d 17, 18 (Me.1992).

[¶ 14] We must therefore determine first, whether the application of the Apprendi principles to the statute and sentence before us discloses error, and if so, second, whether the error worked a substantial injustice or affected Burdick's substantial rights.

A. Statutory and Constitutional Framework

1. Maine's Attempted Murder Sentencing Scheme

[¶ 15] Because Burdick challenges the propriety of his sentence on the attempted murder charge, we begin our analysis with a brief explanation of the sentencing scheme contained in the attempted murder statute, 17-A M.R.S.A. § 152(4). Ordinarily, the maximum allowable sentence for a crime pursuant to Maine's criminal code is governed by 17-A M.R.S.A. § 1252 (1983 & Supp. 2000). Pursuant to that statute, crimes are categorized...