State v. Hunter

• Decision Date: 14 July 1982
• Court: Maine Supreme Court
• Parties: STATE of Maine v. Gary HUNTER 1 .

Page 797

447 A.2d 797

STATE of Maine v. Gary HUNTER ¹.

Supreme Judicial Court of Maine.

Argued May 6, 1982.

Decided July 14, 1982.

Gail Ogilvie, Asst. Atty. Gen., Augusta (orally), Janet T. Mills, Dist. Atty., Auburn (orally), James E. Tierney, Atty. Gen., Rufus E. Brown, Deputy Atty. Gen., Pasquale Perrino, Asst. Atty. Gen., Augusta, for Dept. of Corrections.

Vafiades, Brountas & Kominsky, Marvin H. Glazier (orally), Bangor, for defendant.

Before McKUSICK, C. J., and NICHOLS, ROBERTS, CARTER, VIOLETTE and WATHEN, JJ.

McKUSICK, Chief Justice.

In this case the Law Court addresses for the first time the question whether section 1255 of the Criminal Code, providing for judicial resentencing on the basis of a previously convicted person's "progress toward a noncriminal way of life," passes muster with the separation of powers clauses of the Maine Constitution. We hold that, as sought to be applied here for the resentencing of Gary Hunter, section 1255 is an unconstitutional attempt to invest the judiciary with a power expressly and exclusively granted by the Maine Constitution to the Governor. We accordingly affirm the Superior Court's dismissal of the Department of Corrections' petition for modification of Gary Hunter's sentence.

The resentencing statute, 17-A M.R.S.A. § 1255 (Supp.1981), ² reads in full as follows:

Sentences in excess of one year deemed tentative

1. When a person has been sentenced to imprisonment for a term in excess of one year and such imprisonment has not been suspended, the sentence is deemed tentative, to the extent provided in this section.

2. If, as a result of the department's evaluation of such person's progress toward a noncriminal way of life, the department is satisfied that the sentence of the court may have been based upon a misapprehension as to the history, character or physical or mental condition of the offender, or as to the amount of time that would be necessary to provide for protection of the public from such offender, the department may file in the sentencing court a petition to resentence the offender. The petition shall set forth the information as to the offender that is deemed to warrant his resentence and shall include a recommendation as to the sentence that should be imposed.

3. The court may, in its discretion, dismiss a petition filed under subsection 2 without a hearing if it deems the information set forth insufficient to warrant reconsideration of the sentence. If the court finds the petition warrants such reconsideration, it shall cause a copy of the petition to be served on the offender, the district attorney, the Attorney General and the victim of the crime or, in the case of a criminal homicide, on the victim's next of kin, all of whom shall have the right to be heard on the issue.

4. If the court grants a petition filed under subsection 2, it shall resentence the offender and may impose any sentence not exceeding the original sentence that was imposed. The period of his being in the custody of the department prior to resentence shall be applied in satisfaction of the revised sentence.

5. For all purposes other than this section, a sentence of imprisonment has the same finality when it is imposed that it would have if this section were not in force. Nothing in this section may alter the remedies provided by law for appealing a sentence, or for vacating or correcting an illegal sentence. As used in this section, "court" means the judge who imposed the original sentence, unless he is disabled or otherwise unavailable, in which case it means any judge exercising similar jurisdiction.

On March 14, 1978, in Superior Court (Aroostook County), Gary Hunter pleaded guilty to fourth degree homicide. The court sentenced him to imprisonment at the Maine State Prison for eight years.

Three years after Hunter began serving his term, the Department of Corrections filed a petition with the Superior Court, pursuant to section 1255, urging the court to reconsider Hunter's sentence for the following reasons:

Gary Hunter has made substantial progress towards a noncriminal way of life since his imprisonment in March, 1978. Mr. Hunter has an exemplary prison record. In addition, he has participated in alcohol counseling, the Alcoholics Anonymous program and the Yokefellow spiritual growth group. He shows considerable insight into his prior alcoholic dependency which was the major factor in his criminal conduct. Currently he resides at the Bangor Pre-Release Center, is a full-time student at the Bangor Theological Seminary and works on a part-time basis at the Seminary in the maintenance department. In light of Mr. Hunter's performance and progress, the sentencing judge may have misapprehended the amount of time necessary to protect the public from him.

On the basis of those considerations, the department urged the court to resentence Hunter, placing him on probation for the remainder of his eight-year term on condition that he continue alcohol counseling.

The Superior Court dismissed the petition, holding that insofar as the statute attempted to give the court jurisdiction to "modify a sentence, after it had been imposed, on the ground of changes in the attitude or behavior of the offender," it usurped the executive power to grant pardons, reprieves, and commutations of sentences. The Department of Corrections has appealed. ³

The pertinent provisions of the Maine Constitution are explicit and restrictive. Article III, entitled "Distribution of Powers," commands separation of the powers of government among the three great branches with a double emphasis: section 1 declares that the governmental powers "shall be divided into three distinct departments, the legislative, executive and judicial"; and then section 2 expressly prohibits any person "belonging to one of these departments [from] exercis[ing] any of the powers properly belonging to either of the others, except in the cases herein expressly directed or permitted." (Emphasis added)

Articles IV, V, and VI of the Maine Constitution specify the powers of the three distinct departments, legislative, executive and judicial, respectively. Article VI merely speaks of the "judicial power of this State" being vested in the Supreme Judicial Court and such other courts as the legislature may establish. As here relevant, Article V, which spells out in detail the powers of the executive branch, is very specific in vesting the Governor with comprehensive power to modify sentences:

He [the Governor] shall have power to remit after conviction all forfeitures and penalties, and to grant reprieves, commutations and pardons, except in cases of impeachment, upon such conditions, and with such restrictions and limitations as may be deemed proper ....

(Emphasis added) Me.Const. art. V, pt. 1, § 11.

Because of article III, section 2, the separation of governmental powers mandated by the Maine Constitution is much more rigorous than the same principle as applied to the federal government. The United States Constitution has no provision corresponding to article III, section 2 of the Maine Constitution, explicitly requiring that no one person exercise the powers of more than one of the three branches of government. Rather, at the federal level the separation of powers principle is inferred from the overall constitutional structure. Because the federal principle is implicit only, rather than explicit, it may be appropriate in that governmental structure to take a functional rather than a formal approach to separation of powers questions: the inquiry is whether a given departure from strict separation has the effect of impairing the integrity or ability to function of the branch to which a power has been constitutionally granted, or the effect of vesting excessive or unchecked authority in the branch that has assumed the power. See L. Tribe, American Constitutional Law, § 2-2 at 15 (1978); 1 K. Davis, Administrative Law, § 2.6 at 81 (2d ed. 1978). Under the Maine Constitution, however, our inquiry is narrower: has the power in issue been explicitly granted to one branch of state government, and to no other branch? If so, article III, section 2 forbids another branch to exercise that power. ⁴ In People v. Herrera, 183 Colo. 155, 516 P.2d 626 (1973), the Colorado Supreme Court, interpreting constitutional language equivalent to the double emphasis of our own article III on separation of powers, held that a statute that attempted to give the courts power to reduce sentences after they had been imposed, was unconstitutional as an invasion of the executive power to grant commutations. In the case before us, our task is to determine whether the authority to revise sentences granted the courts by section 1255 falls within "the judicial power" envisioned by the Maine Constitution, article VI, section 1, or whether it falls within the commutation powers that the constitution has expressly granted only to the executive under article V, part 1, section 11.

In an analysis of section 1255, it is significant that subsection 2 on its face provides two different bases for judicial modification of a sentence previously imposed: it permits resentencing either (i) if the sentence was based on a "misapprehension as to the history, character or physical or mental condition of the offender"; or (ii) if the sentence was based on a misapprehension "as to the amount of time that would be necessary to provide for protection of the public from such offender." The first basis for resentencing appears to contemplate that it would be used only when the sentencing judge becomes aware that he was factually mistaken as to circumstances that existed at the time of the sentencing and were of some influence in his sentencing decision. On the other hand, the second basis for resentencing provided by section 1255(2) contemplates that the judge will change the sentence because he concludes, in view of the offender's good behavior while serving his sentence,...