State v. Keene

• Decision Date: 10 July 2007
• Docket Number: Docket: And-06-114.
• Citation: 2007 ME 84,927 A.2d 398
• Parties: STATE of Maine v. Roger G. KEENE.
• Court: Maine Supreme Court

927 A.2d 398

2007 ME 84

STATE of Maine v. Roger G. KEENE.

Docket: And-06-114.

Supreme Judicial Court of Maine.

Argued: November 29, 2006.

Decided: July 10, 2007.

G. Steven Rowe, Attorney General, Donald W. Macomber, Asst. Atty. Gen. (orally), Lisa Marchese, Asst. Atty. Gen., Augusta, for State.

George A. Hess, Esq. (orally), The Hess Law Firm, Auburn, for defendant.

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

Majority: SAUFLEY, C.J., and CLIFFORD, ALEXANDER, LEVY, and SILVER, JJ.

Dissent: CALKINS, J.

SAUFLEY, C.J.

[¶ 1] The question before us is this: Is a defendant's Sixth Amendment right to trial by jury, as articulated by the United States Supreme Court in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and its progeny, violated by the imposition of consecutive sentences for separate crimes, resulting from judicial rather than jury fact-finding? We conclude that no constitutional violation occurs as long as the sentence for each individual crime does not exceed the statutory maximum imposed by the Legislature for that crime, even when the aggregate sentence exceeds the maximum sentence for any single crime.

[¶ 2] Roger G. Keene raises this issue in his appeal from a judgment of conviction entered in the Superior Court (Androscoggin County, Warren, J.) for manslaughter (Class A), 17-A M.R.S. § 203(1)(A) (2006), and kidnapping (Class A), 17-A M.R.S. § 301(1)(B)(1) (2006). He argues that 17-A M.R.S.A. § 1256 (1983 & Supp.2003),¹ which authorized the court to impose consecutive sentences for his manslaughter and kidnapping convictions, is unconstitutional as applied to his case. Keene also makes several arguments regarding his conviction and sentence, which we do not find persuasive and do not discuss further.² Rather, we focus our attention on Keene's constitutional challenge, and we affirm his judgment and sentence.

I. BACKGROUND

[¶ 3] Viewing the evidence in the light most favorable to the State, see State v Bouchard, 2005 ME 106, ¶ 10, 881 A.2d 1130, 1134, the following facts are supported in the record. Roger Keene and the victim, a forty-two-year-old woman and the owner of a bar in Lewiston, had a relationship that lasted several months, but which ended in September of 2003. Keene did not want their relationship to end, although the victim had decided to end the relationship. On the night of September 11, 2003, in her bar, the victim broke up with Keene in a heated argument.

[¶ 4] Later that night, Keene met the victim outside in the alley behind the bar, where Keene's pick-up truck was parked. Keene and the victim, who was significantly smaller than Keene, struggled in the alley, ending with Keene punching the victim in the face and shoving her into a brick wall, rendering her semi-conscious. Keene then placed the victim in the back of his truck, hidden by a tonneau cover, and he began driving his truck toward his home in Sabattus.³ As Keene was driving, the victim regained consciousness and banged on the truck's rear windshield. Keene slammed on the brakes, put the truck in reverse, and then reaccelerated forward, and the victim fell out of the truck and onto the road.⁴ Keene left her on the road, later returning as a bystander when an ambulance arrived.

[¶ 5] The victim was found unconscious, lying in the middle of the road on Route 126 between Lewiston and Sabattus. She was lying on her back with her arms at her sides, with her body perpendicular to the road and perfectly centered in the driving lane, and with her clothes neat and in good condition.⁵ When placed in an ambulance, the victim was able to state that she had been beaten and thrown from a vehicle. The victim was brought to Central Maine Medical Center and underwent surgery. She never regained consciousness and died nine days later. Her death was attributed to a rear-head injury acquired either from being slammed against the brick wall or from falling out of Keene's truck.

[¶ 6] Keene was indicted on December 2, 2003, for Class A manslaughter, 17-A M.R.S. § 203(1)(A), Class A kidnapping, 17-A M.R.S. § 301(1)(B)(1), and Class A attempted murder, 17-A M.R.S. §§ 152(1)(A), 201(1)(A) (2006). After seven days of trial, the jury found Keene guilty of manslaughter and kidnapping. The jury deadlocked on the attempted murder charge and the court declared a mistrial on that count.

[¶ 7] At the time of Keene's crimes, the statutory maximum sentence for any of the three Class A crimes individually, established through our case law, was twenty years, absent a finding that the crime was among "the most heinous and violent crimes committed against a person," in which case a sentence of up to forty years was justified. State v. Schofield, 2005 ME 82, ¶ 9, 895 A.2d 927, 930;⁶ State v. Lewis, 590 A.2d 149, 151 (Me.1991); see 17-A M.R.S.A. § 1252(2)(A) (Supp.2003).⁷ At the sentencing hearing, the court sentenced Keene to twenty years for manslaughter and sixteen years for kidnapping, with six years suspended and six years of probation. The court ordered that the two sentences be served consecutively based on Keene's probationary status and because the seriousness of Keene's crimes warranted a sentence in excess of the twenty-year maximum sentence for manslaughter. See 17-A M.R.S.A. § 1256(2)(B), (D).

II. DISCUSSION

[¶ 8] Keene argues that because section 1256(2)(D) allowed the court to impose consecutive sentences based on the seriousness of his criminal conduct without a jury finding that the conduct warranted consecutive sentences, the statute is unconstitutional as applied under the Sixth Amendment, citing Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), Apprendi, and Schofield.

[¶ 9] The line of cases cited by Keene require that if the sentence for a single crime is elevated beyond its statutory maximum based on factual findings other than a prior conviction, then, in order for the sentence to be consistent with the Sixth Amendment, the defendant must have the right to have the facts justifying the elevated sentence found by the jury beyond a reasonable doubt. United States v. Booker, 543 U.S. 220, 244, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005); Blakely, 542 U.S. at 303-05, 124 S.Ct. 2531.

[¶ 10] Keene, in effect, argues that consecutive sentences raise the same Sixth Amendment concerns as does an individual sentence that has been elevated beyond its statutory maximum. We have not yet addressed whether the findings necessary to support the imposition of consecutive sentences must be made beyond a reasonable doubt by a jury, or judge if the jury is waived, before consecutive sentences may be imposed.

A. Standard of Review

[¶ 11] Keene failed to raise his constitutional argument before the sentencing court, and thus, our review of the consecutive sentences is limited to obvious error. See Schofield, 2005 ME 82, ¶ 28, 895 A.2d at 935. An obvious error is one that affects substantial rights or results in substantial injustice. Id. In cases where a criminal defendant has allegedly been deprived of the right to have a jury determine facts that could potentially elevate the sentencing range available to the court, and where the procedures clarifying that right are in question or have been recently clarified, we will address the alleged error, even when it was not raised before the sentencing court. See id. ¶ 32, 895 A.2d at 936.

B. The Sentencing Statutes

[¶ 12] At the time of Keene's crimes, both of which were Class A, the sentence for Class A crimes was as follows:

In the case of a Class A crime, the court shall set a definite period not to exceed 40 years. The court may consider a serious criminal history of the defendant and impose a maximum period of incarceration in excess of 20 years based on either the nature and seriousness of the crime alone or 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). Applying Schofield to this case, where the heinous nature of the offense was not tried to the jury, the maximum that the court could impose on either of the convictions was twenty years. Thus, the court acted within the available maximum for each crime when it sentenced Keene to twenty years for manslaughter and sixteen years for kidnapping. See Schofield, 2005 ME 82, ¶ 14, 895 A.2d at 931.

[¶ 13] When determining how the two sentences would be served, the court was guided by 17-A M.R.S.A. § 1256(2):

[T]he court shall state in the sentence of imprisonment whether a sentence shall be served concurrently with or consecutively to any other sentence previously imposed or to another sentence imposed on the same date. The sentences shall be concurrent unless, in considering the following factors, the court decides to impose sentences consecutively:

A. That the convictions are for offenses based on different conduct or arising from different criminal episodes;

B. That the defendant was under a previously imposed suspended or unsuspended sentence and was on probation, under incarceration or on a release program at the time the person committed a subsequent offense;

C. That the defendant had been released on bail when that person committed a subsequent offense, either pending trial of a previously committed offense or pending the appeal of previous conviction; or

D. That the seriousness of the criminal conduct involved in either a single criminal episode or in multiple criminal episodes or the seriousness of the criminal record of the convicted person, or both, require a sentence of imprisonment in excess of the maximum available for the most serious offense.

17-A M.R.S.A. § 1256(2).

[¶ 14] Applying these provisions, the court imposed consecutive sentences based on subsection (B) because Keene was on probation at the time of his criminal acts, and subsection (D) because the court determined that Keene's criminal conduct and criminal record were serious enough to...