State v. Farnham

• Decision Date: 17 July 1984
• Citation: 479 A.2d 887
• Parties: STATE of Maine v. Robert L. FARNHAM.
• Court: Maine Supreme Court

Page 887

479 A.2d 887

STATE of Maine v. Robert L. FARNHAM.

Supreme Judicial Court of Maine.

Argued May 8, 1984.

Decided July 17, 1984.

Margaret J. Kravchuk, Dist. Atty., Michael Roberts (orally), Gary F. Thorne, Asst. Dist. Attys., Bangor, for plaintiff.

Peter K. Baldacci (orally), Bangor, for defendant.

Before McKUSICK, C.J., and NICHOLS, WATHEN, GLASSMAN and SCOLNIK, JJ.

McKUSICK, Chief Justice.

In a jury trial in Superior Court (Penobscot County) defendant Robert Farnham was convicted of gross sexual misconduct, Class A, 17-A M.R.S.A. § 253 (1983 & Supp. 1983-1984) and sexual abuse of a minor, Class D, 17-A M.R.S.A. § 254 (1983), and sentenced to seven years in Maine State Prison. ¹ In his appeal he attacks only that seven-year prison sentence, arguing that the presiding justice took an improper factor into consideration in imposing sentence. Finding no error in the sentencing proceeding, we affirm.

I.

After being sentenced, defendant filed in Superior Court both a notice of appeal and also a motion for correction of sentence pursuant to M.R.Crim.P. 35. Although the Superior Court expressed doubt as to whether a motion for correction of sentence was a proper procedural vehicle for challenging the legality of its sentencing decision, it nevertheless heard and denied the motion. Defendant subsequently appealed the denial of that motion. That appeal as well as defendant's appeal of the judgments of conviction are now before this court.

II.

Before reaching the merits of defendant's claim of error, we must address two preliminary issues arising by the procedural context in which the appeal reaches this court: 1) whether defendant may raise on direct appeals from his conviction and the denial of his motion for correction of sentence the claim that the trial justice relied upon an improper consideration in imposing sentence; and 2) whether a motion for correction of sentence under M.R.Crim.P. 35 was a proper procedural vehicle for raising that claim of error in the Superior Court. It is well established that the Law Court's "appellate role is limited to review of the sentence's legality." State v. Allison, 427 A.2d 471, 475 (Me.1981); see State v. Palmer, 468 A.2d 985, 987 (Me.1983). Under 15 M.R.S.A. §§ 2141-2144 (1980), review of the "propriety" of a legally imposed sentence is committed to the Appellate Division of the Supreme Judicial Court. See State v. Allison, 427 A.2d at 475; State v. Carver, 330 A.2d 785, 786 (Me.1975); 3 Glassman, Maine Practice: Rules of Criminal Procedure Annotated § 40.1, at 347 (1967). Defendant attacks his sentence on the ground that the trial justice increased that sentence because he had exercised his constitutional right to stand trial. As such, his claim of error goes to the legality of the sentencing decision, not the propriety of the term of confinement actually imposed. See State v. Plante, 417 A.2d 991, 995 (Me.1980) (claim that sentencing justice took into account his finding that defendant had perjured himself at trial, in violation of defendant's constitutional right to due process, considered on direct appeal); see also State v. Palmer, 468 A.2d at 987 (challenge to sentence on constitutional grounds held cognizable on direct appeal). A second requirement for a challenge to a sentence to be cognizable on direct appeal is that the "alleged infirmity, even if one of law, must appear affirmatively from the record." State v. Palmer, 468 A.2d at 987 n. 6; see State v. Blanchard, 409 A.2d 229, 233 (Me.1979); State v. Parker, 372 A.2d 570, 572 (Me.1977). In the case at bar the sentencing justice explicitly explained how and why defendant's decision to stand trial was used in the sentencing decision. If the justice's consideration of that factor did constitute error, it is error that appears "on the face of the appeal record so plainly that its existence is shown as a matter of law." Id. (emphasis in original); see State v. Blanchard, 409 A.2d at 233.

The motion for correction of sentence under M.R.Crim.P. 35 ² was a proper procedural vehicle for raising defendant's claim of error in the Superior Court. As explicated above, defendant's claim of error addressed the legality of the sentence imposed. While M.R.Crim.P. 35 authorizes the sentencing justice to "revise a sentence prior to the commencement of execution thereof," it also authorizes the sentencing justice, within certain time limitations, to "correct an illegal sentence or a sentence imposed in an illegal manner." Defendant's motion properly fell within the scope of the latter language.

III.

We turn now to the merits of defendant's contention that his seven-year prison sentence represented, in part at least, punishment meted out by the presiding justice because he had exercised his constitutional right to a trial. He bases his claim solely upon a certain remark by the justice at sentencing. After a careful examination of the entire sentencing transcript and of the full factual context in which the trial and sentencing took place, we are not convinced that any reversible error was committed. On the contrary, the justice had well in mind the appropriate factors to be considered and took into account defendant's going to trial only for the purpose--legitimate in face of defendant's plea for leniency--of testing the genuineness of defendant's claim at sentencing of personal reform and contrition.

At the jury trial held on October 27, 1983, the only witness was the young prosecutrix, who testified under direct examination by the State and then was subjected to aggressive ³ cross-examination by defendant's attorney. At sentencing five weeks later, the sentencing court had before it information that defendant after trial admitted the sexual offenses and claimed to be repentant. The court also received statements from defendant and his counsel, as well as from his sponsor in Alcoholics Anonymous, asserting that in the 15 months between the second sexual offense and the trial he had taken steps to combat his drug and alcohol problems and had successfully established himself in the business of selling cars. Defendant himself closed his plea for leniency with the following:

I've worked hard this year to straighten my life out, put my business together, to be honest with people, be honest with myself. So far, it is working.

On the basis of defendant's claimed reform and repentance, the presiding justice was urged to show leniency in sentencing defendant for the Class A crime, which carries a term of imprisonment of up to 20 years. See 17-A M.R.S.A. §§ 253(4), 1252(2-A) (1983 & Supp. 1983-1984).

In announcing the seven-year sentence, the presiding justice addressed defendant as follows:

Mr. Farnham, I hope that what you say is true, that you have found a way to deal with your substance problems and to deal with your personality problems. There are ... a lot of reasons why we sentence. They are all set out for us to see.

One of them, and an important one, is rehabilitation; one of them is deterrence; one of them is pure and simple punishment; one of them is to give fair notice as to what crimes carry what results, and there are all kinds of factors that have to be taken into consideration. I would feel more confident in your expressions of change if you had admitted your guilt.

I have no quarrel with people and I do not punish people for having trials, but for you to stand there and say how remorseful you feel and how sorry you are that it happened, after having put that little girl through the agony of cross-examination with discussion of her mental health--"Aren't you crazy, [name]? Weren't you pregnant, [name]? Didn't you have an abortion, [name]?" I have got to say that I do not think the remorse and the willingness to be honest has overcome your desire to avoid punishment as yet .... [I]n evaluating your sincerity, I have to take into consideration what that little girl went through because of the trial, and I am taking that into consideration.

I am also taking into consideration your rather lengthy, eleven-year-span criminal record. The system has tried to help you. We have failed. To that extent, we share, I suppose, some responsibility for the fact that you have not been rehabilitated, but we do not share much. Opportunities have been given you for eleven years to do better, that kept going [sic ] jail, probation, jail, probation; and we finally reach the point where, in fairness to others who come in accused of crimes and in order to actually say--not to minimize the gravity of this offense and to fairly indicate to others who run through this string of behavior what can happen to them, there does need to be a lengthy prison sentence, and I am going to impose a sentence of seven years at the Maine State Prison.

(Emphasis added)

The sentencing justice is accorded wide discretion in the sources and types of information that may be relied upon in determining the kind and extent of punishment to be imposed within the limits fixed by law. See State v. Samson, 388 A.2d 60, 67 (Me.1978). We cannot read the Justice's remarks to mean that the sentencing decision was based solely on defendant's election to go to trial. See generally State v. Plante, 417 A.2d at 995. See also State v. Duncan, 476 A.2d 191 (Me.1984) (memorandum of decision). On the contrary, those remarks show clearly that the justice was very conscious of the purposes for which punishment is imposed, as outlined in 17-A M.R.S.A. § 1151 (1983 & Supp 1983-1984), ⁴ and also that the justice was applying to this defendant's circumstances many of the factors we suggested in State v. Samson, 388 A.2d at 67-68. ⁵ More specifically, the sentencing transcript demonstrates that the justice considered the gravity of the offense; its relation to the victim of the crime; defendant's background, including his drug and alcohol problems and his long record of criminal conduct; his remorse and repentance; his receptivity to rehabilitation; and the interest...