State v. Gordon
| Decision Date | 23 February 2021 |
| Docket Number | Docket: SRP-20-17 |
| Citation | 246 A.3d 170 |
| Parties | STATE of Maine v. Mario GORDON |
| Court | Maine Supreme Court |
Brad C. Grant, Esq. (orally), Ferris, Gurney, Grant & Crook PA, Waterville, for appellant Mario Gordon
Aaron M. Frey, Attorney General, and Katie Sibley, Asst. Atty. Gen. (orally), Office of the Attorney General, Augusta, for appellee State of Maine
Panel: MEAD, GORMAN, JABAR, HUMPHREY, HORTON, and CONNORS, JJ.
[¶1] In this appeal, Mario Gordon seeks our review of twelve-year concurrent sentences imposed on him for three counts of aggravated trafficking in scheduled drugs, 17-A M.R.S. § 1105-A(1)(B)(1), (D), (H) (2020), by the trial court (Kennebec County, Benson, J. ) several months after the court had facilitated a plea agreement involving the dismissal of other charges.1 Gordon does not appeal from the judgment of conviction and argues only that he should be resentenced because the court (A) violated his due process rights by imposing the maximum sentences allowed by the plea agreement and (B) disregarded sentencing factors in declining to suspend a portion of Gordon's sentences and order probation. Based on the record properly before us, we affirm the sentences.
[¶2] The facts we consider are drawn from the procedural record. In February 2017, Gordon was charged by indictment with three counts of aggravated trafficking in scheduled drugs (heroin, cocaine base, and oxycodone) (Class A), 17-A M.R.S. § 1105-A(1)(B)(1), based on conduct alleged to have taken place in December 2016. The indictment also alleged two counts of criminal forfeiture. 15 M.R.S. § 5826 (2017).2
[¶3] Gordon was released on bail but was arrested again in April 2018. In July 2018, he was charged by indictment with seven counts of aggravated trafficking in scheduled drugs (heroin, cocaine, and cocaine base) (Class A), 17-A M.R.S. § 1105-A(1)(B)(1), (D), (H) ; and four violations of conditions of release (Class E), 15 M.R.S. § 1092(1)(A) (2020). The indictment also included one count of criminal forfeiture, 15 M.R.S. § 5826. As Class A crimes, the aggravated trafficking charges were punishable by up to thirty years of incarceration. 17-A M.R.S. § 1252(2)(A) (2018).3
[¶4] After finding Gordon competent to stand trial, the court held a dispositional conference on August 20, 2019. The parties reached a plea agreement that left open to Gordon a choice between two proposals by the State: an eight-year straight sentence or a twelve-year cap plea.
[¶5] On that same day—August 20, 2019—the court held a hearing pursuant to M.R.U. Crim. P. 11 at which Gordon entered a guilty plea and the court ensured that Gordon understood his rights, that he made the guilty plea knowingly and voluntarily, and that there was a factual basis for the plea. See M.R.U. Crim. P. 11(b)(1)-(3), (c)-(e). In open court, the court confirmed Gordon's understanding "that up to 12 years could be imposed" if he agreed to the plea with a twelve-year cap. Gordon also confirmed that he had not been made any other promises or offered any other benefits in exchange for his guilty plea.
[¶6] With respect to the initial 2017 indictment, Gordon pleaded guilty to one count of aggravated trafficking in oxycodone and admitted to the two counts of criminal forfeiture. With respect to the 2018 indictment, he pleaded guilty to three counts of aggravated trafficking—one in heroin, one in cocaine base, and one in cocaine; and two counts of violating conditions of release. He also admitted to the count of criminal forfeiture.
[¶7] Gordon selected the twelve-year-cap option, and the court held a sentencing hearing on December 18, 2019. In its sentencing memorandum, the State argued for a straight twelve-year sentence on each of the 2018 aggravated trafficking charges with no period of probation and the imposition of mandatory fines. In Gordon's memorandum and at the hearing, he argued for a sentence of ten years with all but four years suspended and a four-year period of probation.
[¶8] Based on the types and amounts of drugs involved, the court found that a basic sentence of twelve years was appropriate for each of the 2018 trafficking charges. See 17-A M.R.S. § 1252-C(1) (2018).4 The court then considered mitigating and aggravating factors to determine the maximum sentence. See 17-A M.R.S. § 1252-C(2) (2018). As mitigating factors, the court considered Gordon's acceptance of responsibility, his psychiatric condition, and his family's support of him. As aggravating factors, the court considered that Gordon had prior serious drug convictions and had trafficked in drugs to support himself. The court concluded that the aggravating and mitigating factors balanced each other out, and it set a maximum sentence of twelve years. Based on the need for deterrence and prevention of drug trafficking, the court determined that no portion of the period of incarceration would be suspended. See 17-A M.R.S. § 1252-C(3) (2018). Thus, the court imposed a sentence of twelve years, all unsuspended, for each of the three 2018 aggravated trafficking charges, with the sentences to run concurrently, with a $400 noncumulative fine.5
[¶9] Gordon filed a motion with the trial court seeking to correct or reduce his sentences on the ground that the court had overlooked its own statement, made at the dispositional conference, that more lenient, but unaccepted, sentencing proposals that each of the parties had offered were "within the realm of reasonableness." See M.R.U. Crim. P. 35. Gordon and his counsel submitted affidavits, as did the State, to summarize what had happened during the unrecorded conference held on August 20, 2019.
[¶10] The court denied Gordon's motion, ruling that there had not been any mistake of fact on the court's part regarding what had occurred at the dispositional conference and that the sentences ultimately imposed, which were consistent with the parties' plea agreement as presented to the court, were legal and appropriate. Gordon did not appeal from the judgment of conviction or from the ruling on the motion to correct or reduce the sentence.
[¶11] Upon Gordon's application, the Sentence Review Panel granted Gordon leave to appeal his sentences. See 15 M.R.S. § 2152 (2020) ; M.R. App. P. 20.
[¶12] Gordon argues that the court's statements made at the dispositional conference rendered the twelve-year sentences imposed on him unfair, in violation of his due process rights.6 The United States and Maine Constitutions prohibit Maine's government from depriving a person of life, liberty, or property without due process of law. U.S. Const. amend. XIV, § 1 ; Me. Const. art. I, § 6-A. We review issues of due process de novo. See State v. Williamson , 2017 ME 108, ¶ 21, 163 A.3d 127. We review the court's sentencing to determine whether the procedures employed "struck a balance between competing concerns that was fundamentally fair." State v. Mullen , 2020 ME 56, ¶ 21, 231 A.3d 429 (quotation marks omitted).
[¶13] In a sentence review, we are "limited to consideration of the propriety of the sentence and the sufficiency and accuracy of the information on which it was based."7 State v. Reese , 2010 ME 30, ¶ 21, 991 A.2d 806. In this analysis, "[w]e look to whether the sentencing court disregarded the statutory sentencing factors, abused its sentencing power, permitted a manifest and unwarranted inequality among sentences of comparable offenders, or acted irrationally or unjustly." Id. ; see 15 M.R.S. § 2154 (2020). Because Gordon did not bring a direct appeal from the judgment of conviction or from the court's ruling on his motion to correct or reduce his sentences, we review only his contention that the court abused its sentencing power or acted unjustly in the sentencing process, in violation of due process. Reese , 2010 ME 30, ¶ 21, 991 A.2d 806.
[¶14] To ensure that all terms of the plea agreement are understood by the parties and the court before a defendant enters his plea, Rule 11 requires that the court "inquire as to the existence and terms of a plea agreement," M.R.U. Crim. P. 11(d), and that the terms of a plea agreement be recited in open court on the record, see M.R.U. Crim. P. 11A(b). In reviewing the sentence imposed based on a plea agreement that has been reached and memorialized in compliance with Rules 11 and 11A, we consider both the Rule 11 hearing and the sentencing proceedings, including the hearing transcripts and the materials submitted to the court before sentencing. See, e.g. , State v. Lord , 2019 ME 82, ¶ 19, 208 A.3d 781.
[¶15] The record of the plea proceedings here reflects the plain terms of the plea agreement and the parties' unequivocal assent to those terms. The record of the sentencing reveals that the court sentenced Gordon within the range of the twelve-year-cap option that Gordon elected to accept. There is no basis for us to decide, based on off-the-record statements made during a dispositional conference,8 that the plea agreement in this case was anything other than what was placed on the record in open court at the time of Gordon's plea.9 Thus, we discern no injustice or violation of due process in the record properly before us. See Reese , 2010 ME 30, ¶ 21, 991 A.2d 806.
[¶16] We next consider whether the court misapplied the sentencing statute or abused its sentencing power in imposing the twelve-year sentences. Gordon also contends that the court misapplied the statute governing the determination of the final sentence by failing to consider all relevant factors, particularly his family's support of him and the ways in which probation would assist him with his mental health and substance use issues.
[¶17] In the final step of sentencing—the step at issue here—"[t]he court [must] finally determine what portion, if any, of the maximum term of imprisonment...
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