State v. Cobb

• Decision Date: 28 April 2006
• Citation: 2006 ME 43,895 A.2d 972
• Parties: STATE of Maine v. Walter S. COBB II.
• Court: Maine Supreme Court

895 A.2d 972

2006 ME 43

STATE of Maine v. Walter S. COBB II.

Supreme Judicial Court of Maine.

Argued: November 14, 2005.

Decided: April 28, 2006.

R. Christopher Almy, District Attorney, C. Daniel Wood, Asst. Dist. Attorney, Bangor, for State.

Kirk D. Bloomer, Esq., Bloomer Law Office, P.A., Bangor, for defendant.

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

SAUFLEY, C.J.

[¶ 1] We are called upon here to answer this question: In applying 17-A M.R.S.A. § 1252(2)(A) (Supp.2003),¹ must a defendant be afforded the opportunity to have a jury determine whether the defendant's "serious criminal history" warrants a sentence in the upper tier if the nature and seriousness of the defendant's crime alone do not warrant a sentence in the upper tier? See U.S. CONST. amend. VI; United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005); Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004).

[¶ 2] Because we conclude that the court was not required to afford Walter S. Cobb II an opportunity to present his criminal record to a jury and because we find that any other error was harmless, we affirm his sentence. We also affirm Cobb's conviction without discussion because we discern no error related to the issues Cobb raises.

I. BACKGROUND

[¶ 3] Cobb appeals from the sentence imposed on him by the Superior Court (Penobscot County, Hjelm, J.), and also appeals from the court's judgment, entered after a jury trial, which reflected Cobb's conviction of robbery (Class A), 17-A M.R.S.A. § 651(1)(E) (Supp.2003); burglary (Class A), 17-A M.R.S. § 401(1)(B)(1) (2005); possession of a firearm by a prohibited person (Class C), 15 M.R.S.A. § 393(1)(A-1)(1), (8) (2003); reckless conduct with a dangerous weapon (Class C), 17-A M.R.S. §§ 211, 1252(4) (2005); criminal threatening (Class C),² 17-A M.R.S. § 209 (2005); theft by unauthorized taking or transfer (Class D), 17-A M.R.S.A. § 353(1)(B)(5) (Supp.2003); burglary of a motor vehicle (Class C), 17-A M.R.S.A. § 405 (Supp.2003); and theft by unauthorized use of property (Class D), 17-A M.R.S.A. § 360(1)(A), (4) (Supp.2003).³ Cobb raises discovery and evidentiary issues and argues that the court should have granted his motion for a mistrial.⁴

[¶ 4] The jury could reasonably have found that Cobb instigated and led two other men in planning and conducting an armed robbery. On the morning of March 9, 2003, the victim, the victim's wife, and their two daughters, ages one and four, were in their home asleep. At about 8:45, Cobb entered the home with two other men, stuck a gun in the victim's face, dragged him out of bed naked, asked for money and drugs, took the victim to another room, and sat him in a chair. Cobb twice cocked his gun and aimed at the victim then moved his gun and fired the weapon near the victim. Cobb demanded the keys to the family truck, took a gun and some drugs from the victim's home, and threatened that he would kill the victim and his family if they contacted the police.

[¶ 5] Cobb was indicted on eight counts, including one count for robbery and one for burglary on May 5, 2003. Cobb waived his right to a jury trial on the charge against him for possession of a firearm by a prohibited person, but all other counts were tried to the jury. After trial, the jury or the court found Cobb guilty on each count.

[¶ 6] The Department of Corrections filed a presentence investigation report that included a list of Cobb's prior convictions, a description of his personal history, the Maine State Police incident report for the crimes against the current victims, Cobb's criminal history SBI report, and a 1997 mental health summary and analysis from the Maine Correctional Center.

[¶ 7] The State filed its sentencing memorandum along with the presentence investigation report. The State argued for a basic sentence of twenty-five years based on the heinousness of the crimes. See State v. Lewis, 590 A.2d 149, 151 (Me.1991) (requiring a finding that a crime is among "the most heinous and violent crimes committed against a person" to impose a sentence above twenty years). Based on Cobb's prior convictions, a court-ordered psychiatric evaluation from January 2004, and the impact on the victims, the State argued for a maximum sentence of thirty years. The State argued, as well, that if the court set the basic sentence at twenty years or lower, the Court could still set the maximum at thirty years based on "the nature and seriousness of the crime coupled with the serious criminal history of the defendant." 17-A M.R.S.A. § 1252(2)(A).

[¶ 8] Finally, the State argued that Cobb should not be allowed probation because he committed several felonies during his first probationary sentence, had his second probation revoked because of new criminal conduct, and had his most recent probation revoked and was required to serve a three-year sentence. The State argued that, because of Cobb's demonstrated inability to address his dangerous behavior through treatment or probation, the court should require him to serve a full thirty years in prison without probation. The State attached to its memorandum a set of sentencing statistics, a list of Cobb's convictions, and a collection of court documents and police reports from Cobb's prior criminal cases.

[¶ 9] Cobb's sentencing memorandum argued for a basic sentence of ten years, with a maximum of fifteen years. Cobb admitted that he had been convicted of six misdemeanor and six felony convictions in fourteen years, with his longest sentence being set at five years, all but two suspended, with four years of probation for a 1997 Class C assault. He also admitted he has a history of psychiatric hospitalizations and treatments, but argued that the psychiatric report filed with the court provided little insight because the report concluded "that [Cobb] may have [a] severe personality disorder together with some underlying disturbance." (Emphasis added.) Cobb argued that "the extent of [his] mental illness . . . [had] never been properly diagnosed and treated." Finally, Cobb argued that he should have "an extensive period of supervised community release" with a requirement of mental health treatment.

[¶ 10] At the sentencing hearing,⁵ the court noted that it had reviewed the sentencing memoranda and attachments, police reports, and the presentence investigation report, in addition to the trial evidence. The court regarded the burglary and robbery charges as driving the sentencing and treated the other six convictions as aggravating factors.

[¶ 11] In sentencing Cobb, the court conducted the three-part process described in State v. Hewey, 622 A.2d 1151, 1154-55 (Me.1993), and thereafter codified by the Legislature at 17-A M.R.S. § 1252-C (2005).⁶ Considering the circumstances of the crimes — specifically, that Cobb took the lead in planning and executing the burglary and robbery, that he wielded a gun and fired it near the victim's head, and that he planned the crimes when he knew the occupants of the house would be present — the court concluded that the basic sentence was twenty years. The court stated that, in considering the seriousness of the crimes as compared to other ways they might be committed, "taking into account the fact that nobody suffered or sustained personal injury, it's difficult to conceive of a way that these crimes could be committed more seriously." The court stated, however, that "[t]he fact that no one was physically injured is the only thing that persuades me that this is not a case, at least at the basic sentence, which is one that transcends . . . the 20-year line."⁷

[¶ 12] Finding no mitigating factors and a number of aggravating factors — specifically, Cobb's criminal history, his violent past, and the psychological impact on the victim and his family — the court concluded that an increase above the basic sentence was warranted. In making this determination, the court relied primarily on the trial evidence and Cobb's conviction history, including the SBI report, but also considered other violent behavior and the 2004 psychiatric evaluation. In taking the psychiatric report into account, however, the court stated that it was not relying heavily upon the report's conclusions because Cobb presented a completely different family history to the probation officer who conducted the presentence investigation and the court could not trust the psychiatrist's report as a result. The court relied in part on the report, however, to highlight "a pattern of conduct where [Cobb] regards the rights and interests of other people for his own purposes."

[¶ 13] The court described Cobb's history of convictions, but also stated that Cobb "has engaged in other acts of violence, which have not apparently resulted in criminal prosecution, as [the State] has indicated." In addition, the court relied on Cobb's admissions to the psychiatrist in 2004 that "he killed another inmate during a riot in prison because, in Mr. Cobb's view, he had to do that to protect himself. He said that during another incident in a prison riot, he stabbed five people." The Court also stated that Cobb "has inflicted violence on a guard in a correctional facility."

[¶ 14] The court then fixed a maximum period of incarceration of twenty-five years, determining that the manner in which Cobb committed the crimes would not alone "justify a sentence in excess of 20 years, but . . . this case is right on the threshold of that 20-year demarcation and. . . when Mr. Cobb's background, including his serious criminal history, is added as an ingredient to the recipe, then as a result we are in that upper tier." Finally, the court concluded that because of the aggravating factors and Cobb's poor prospects for rehabilitation, a twenty-five-year unsuspended sentence without probation was appropriate.

[¶ 15] The court imposed a five-year sentence for possession of a firearm by a prohibited person, a five-year...