State v. Ilsley

• Decision Date: 19 February 1992
• Citation: 604 A.2d 17
• Parties: STATE of Maine v. Scott ILSLEY.
• Court: Maine Supreme Court

Page 17

604 A.2d 17

STATE of Maine v. Scott ILSLEY.

Supreme Judicial Court of Maine.

Submitted on Briefs Jan. 22, 1992.

Decided Feb. 19, 1992.

Janet T. Mills, Dist. Atty., Joseph M. O'Connor, Asst. Dist. Atty., South Paris, for plaintiff.

William Maselli, Andover, for defendant.

Before McKUSICK, C.J., and ROBERTS, WATHEN, GLASSMAN, CLIFFORD and COLLINS, JJ.

GLASSMAN, Justice.

Scott Ilsley appeals the judgment of the Superior Court (Oxford County, Brodrick, J.) affirming the sentences imposed by the District Court (South Paris, Gorman, J.) pursuant to his convictions for violation of a protective order (Class D), 5 M.R.S.A. § 4659 (1989), and violation of condition of release (Class E), 15 M.R.S.A. § 1092 (Supp.1991). Ilsley contends that because the sentences were imposed by a judge other than the one who accepted his guilty pleas they are invalid. He further challenges the validity of the sentences on the ground that the District Court did not meet the requirements of 17-A M.R.S.A. § 1151 (1983 & Supp.1991) and of 17-A M.R.S.A. § 1256(2) (1983 & Supp.1991). Because the maximum sentence that can be imposed for conviction of a Class E offense is six months, we modify that sentence and, as modified, affirm the judgment of the Superior Court. ¹

Ilsley has been obsessed with Kimberly Poland since he saw a newspaper photograph of her taken at the time she won the Miss Oxford County Fair pageant in 1984. Except for brief periods of incarceration, he has persistently harassed Kimberly and members of her family with unsolicited and unwanted letters, phone calls, and gifts. At times his communications have contained threats against Kimberly and her father. Before the incident that led to this prosecution, Ilsley was convicted in the Superior Court on a similar charge of violating a protection order obtained by the Polands. While on release and awaiting sentencing in that case, Ilsley committed the violations at issue here.

On October 15, 1990, Ilsley entered an open plea ² of guilty to the instant charges in the District Court (Sheldon, J.) and at the request of Ilsley sentencing was continued to October 29, 1990. On October 29, 1990, Ilsley, without objection, appeared for sentencing before the District Court (Gorman, J.), who in the course of the sentencing procedure received extensive information concerning the circumstances of the charged offenses, the pleas, the effect of Ilsley's charged conduct on the victims, and the prospects of Ilsley's rehabilitation. The State recommended imposition of a maximum sentence consecutive to that previously imposed by the Superior Court. Concurrent sentences of 364 days in the county jail were imposed on each of the charges to be served consecutively to that sentence previously imposed on Ilsley in the Superior Court. On appeal, the Superior Court affirmed the sentences imposed by the District Court, and this appeal followed.

Ilsley first contends that because the sentences were imposed by a judge other than the one who accepted his pleas of guilty the sentences should be vacated. When the actions of a presiding judge are objected to for the first time on appeal, review is an exception to the general rule and is available only for obvious errors or defects affecting substantial rights. State v. Smith, 472 A.2d 948, 950 (Me.1984); M.R.Crim.P. 52(b); M.R.Evid. 103(d). Such review is to be exercised with caution. State v. Ronan, 551 A.2d 1362, 1364 (Me.1988). We will vacate a sentence only if the alleged impropriety is obvious and worked a manifest injustice on the defendant. See State v. Tomah, 586 A.2d 1267, 1269 (Me.1991); State v. True, 438 A.2d 460, 467 (Me.1981).

Absent one of the reasons enumerated in M.R.Crim.P. 25 ³ or the retendering and acceptance of a plea before the sentencing judge, the preferable practice is that the judge initially accepting a plea impose the sentence. See ABA Standards Relating to Sentencing Alternatives and Procedures (1979) ("If guilt was determined by plea, it is still desirable that the same judge who accepted the plea impose the sentence."). Here, Ilsley made no objection when the judge before whom he found himself for sentencing was not the judge who had accepted his pleas. The sentencing judge was fully informed of the facts concerning the pleas and the charged offenses before imposing the sentences. Accordingly, the sentencing proceeding did not rise to the level of working a manifest injustice on Ilsley. See State v. True, 438 A.2d at 467.

We find no merit in Ilsley's contention that the sentences were illegal because the District Court imposed the sentences without consideration of the enumerated principles set forth in 17-A M.R.S.A. § 1151 (1983 & Supp.1991). We have previously stated that "while the practice of articulating the purposes for imposing a particular sentence is to be encouraged, the failure of the trial court to observe the practice does not render the sentence imposed illegal." State v. Allison, 427 A.2d 471, 475 (Me.1981). Nor does M.R.Crim.P. 32 ⁴ require that the sentencing court reveal its reasons for imposition when, as here, the sentences imposed were less than one year.

Finally, we find no merit in Ilsley's contention that the District Court's stated reason does not satisfy the requirements for imposing consecutive sentences pursuant to 17-A M.R.S.A. § 1256(2). ⁵ We review a decision to impose consecutive sentences for an abuse of discretion; however, the discretion can be exercised only if one of the factors listed in section 1256(2) is present. State v. Michaud, 590 A.2d 538, 543 n. 12 (Me.1991). "The court's determination as to the presence of those factors is reviewed for clear error." Id. The sentencing court was advised that Ilsley committed the instant offenses arising from different criminal episodes while released and awaiting sentence on a charge in the Superior Court. See 17-A M.R.S.A. § 1256(2)(A) and (C). The District Court's stated reason for imposing...