State v. Parker
| Decision Date | 20 April 1977 |
| Citation | 372 A.2d 570 |
| Parties | STATE of Maine v. Michael PARKER. |
| Court | Maine Supreme Court |
Joseph M. Jabar, Dist. Atty., Augusta, for plaintiff.
John L. Hamilton, Lewiston, for defendant.
Before DUFRESNE, C. J., and POMEROY, WERNICK, ARCHIBALD, DELAHANTY and GODFREY, JJ.
Defendant Michael Parker has appealed from each of two Superior Court (Kennebec County) judgments adjudicating him convicted of having sold 'cannabis' in violation of 22 M.R.S.A. § 2384. 1
On June 3, 1975 two separate indictments were returned against defendant. In one indictment the sale alleged was charged to have occurred on December 13, 1974, in the other on December 16, 1974. Defendant waived trial by jury. After a hearing by the Court, on June 26, 1975 defendant was found guilty as charged by each indictment. Sentence was imposed on the same day. As to each conviction, defendant was sentenced to not less than two nor more than five years imprisonment-the terms to be served concurrently,-and also a fine of $250.00 (total of $500.00).
In this direct appeal defendant seeks an adjudication by this Court of illegality in at least one of the sentences imposed upon him. Defendant contends that the record reveals statements of the presiding Justice made during sentencing establishing that the presiding Justice imposed one sentence upon defendant as being for a '2nd . . . offense' under 22 M.R.S.A. § 2384. Defendant claims this illegal for two reasons.
Defendant asserts, first, that the '2nd . . . offense' punishment provision of Section 2384 is applicable only when defendant's commission of the Section 2384 violation deemed punishable as a '2nd . . . offense' follows defendant's conviction for a prior Section 2384 violation. Since such was not the fact, here, defendant says that it was beyond the power of the presiding Justice to punish him for a '2nd . . . offense' violation of Section 2384.
Second, defendant maintains that a '2nd . . . offense' punishment under Section 2384 may be lawfully imposed in any event only if the procedures of 15 M.R.S.A. § 757 2 are utilized. Here, it is beyond question that such procedures were not followed and, says defendant, the presiding Justice therefore acted beyond his powers in punishing him under the '2nd . . . offense' provision of Section 2384.
Without reaching the merits of either of these two claims of error by defendant, we deny defendant's appeals on the ground that the record fails to make the showing necessary to allow defendant's contentions of sentencing errors to be given cognizance in a direct appeal.
We agree with the defendant that a direct appeal can be the proper vehicle to attack a sentence adequately established on the face of the appeal record to be beyond the statutory powers of the sentencing Justice. Since such infirmity, when properly shown, would be 'jurisdictional' in nature, it would, as such, be cognizable on direct appeal even if asserted for the first time at the appellate level. See: Dow v. State, Me., 275 A.2d 815, 821 (1971); State v. Capitan, Me., 363 A.2d 221 (1976).
However, we cannot here take cognizance of the merits of defendant's contentions since we conclude that the appeal record fails to disclose the alleged jurisdictional sentencing infirmity in accordance with the standard of proof requisite to authorize cognizance of it in a direct appeal. To be cognizable in a direct appeal the 'jurisdictional' sentencing infirmity must appear on the face of the appeal record so plainly that its existence is shown as a matter of law. State v. Capitan, supra. This means in the instant context-in which the critical point is what the presiding Justice did in fact-that the fact that the presiding Justice imposed the Section 2384 '2nd . . . offense' punishment must appear on the record on appeal so plainly as to preclude rational disagreement as to its existence; only then would the fact be shown as a matter of law.
For this purpose, defendant relies on the following statement of the presiding Justice:
We reject defendant's contention that this statement by the presiding Justice, considered in its entirety, establishes so plainly as to foreclose rational disagreement that the presiding Justice in fact sentenced defendant as for a '2nd . . . offense' under Section 2384.
Although the presiding Justice did say that he was considering the December 16 offense as a 'second subsequent offense', in light of the entirety of the presiding Justice's statement this alone cannot be determinative as a matter of law. Two other portions of the Justice's statement create sufficient ambiguity to permit as rational a conclusion that the presiding Justice was considering each offense as a separate and distinct offense to be punished as if it were only a first offense under Section 2384.
First, the presiding Justice took pains at the outset to stress that he was considering the two offenses to be 'separate and distinct.' While this could mean that the presiding Justice was addressing whether the crimes should be deemed a single transaction (notwithstanding an interval of three days between the sales constituting the crimes), it is also a rational interpretation of the remark that the presiding Justice was indicating that there were two crimes 'separate and distinct' in the sense that he would not fit them into a numerical sequence as a 'first' and 'second' offense for purposes of punishment.
Second, neither sentence can fit the mould of being the punishment...
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