State v. Pfeil
| Citation | 720 A.2d 573,1998 ME 245 |
| Parties | STATE of Maine v. Erich PFEIL. |
| Decision Date | 20 November 1998 |
| Court | Supreme Judicial Court of Maine (US) |
Geoffrey A. Rushlau, District Attorney, F. Todd Lowell, Asst. Dist. Atty. (orally), Bath, for the State.
Gail Peabody (orally), Orr's Island, for defendant.
Matthew Pollack, Pollack & Quirion, P.A., Topsham, Christopher L. Mann, Bath, for defendant at earlier stages of the proceedings.
Before WATHEN, C.J., and CLIFFORD, RUDMAN, DANA, SAUFLEY, ALEXANDER, and CALKINS, JJ.
[¶ 1] Erich Pfeil appeals from a judgment of conviction entered in the Superior Court (Sagadahoc County, Bradford, J.) on his guilty pleas to gross sexual assault, unlawful sexual contact, and assault. Pfeil contends that he should have been permitted to withdraw his guilty pleas. Because his motion to withdraw the guilty pleas was made after sentence was imposed, we dismiss the appeal. Pfeil was also granted leave to appeal his sentence which he argues is excessive. We affirm the sentence.
[¶ 2] Erich Pfeil, age 46, acknowledges that he is a pedophile. He was indicted on 25 counts of gross sexual assault, unlawful sexual contact, and assault. Pfeil reached a plea agreement with the State. In exchange for pleas of guilty to three counts of gross sexual assault, four counts of unlawful sexual contact, and two counts of assault, the State recommended a sentence of fifteen years imprisonment, all but ten years suspended, and six years of probation. Pursuant to the agreement the State would dismiss the remaining counts of the indictment and Pfeil was free to argue for a lesser sentence. Following the Rule 11 proceeding, a presentence report was ordered, and the sentencing was continued.
[¶ 3] A sentencing hearing was held on February 27, 1998. The court heard from the State and one of the victims, as well as Pfeil and Pfeil's attorney. Both the State and Pfeil's counsel noted that the presentence report recommended a sentence of four years, suspending all but 273 days, which was the number of days that Pfeil had been incarcerated pending his sentencing. The presentence report also recommended a sentencing scheme involving consecutive suspended sentences for some of the counts so that a probationary period of eighteen years could be imposed. Pfeil's counsel told the court that Pfeil would agree to a longer period of probation than the State had recommended in the plea agreement. The court imposed a sentence totalling thirty-six years imprisonment with all but seven years suspended, and eighteen years of probation. At a sidebar conference counsel and the judge discussed giving the defendant an opportunity to withdraw his plea because the sentence exceeded the agreement. Defense counsel offered to speak to Pfeil and thereafter told the court that the sentence was acceptable. The court then asked Pfeil directly if he agreed to the terms of the sentence even though it exceeded the agreement, and Pfeil answered, "Yes, I do, your honor."
[¶ 4] On its own motion pursuant to M.R.Crim. P. 35(a), the court held a resentencing hearing approximately two weeks later. The judge stated that because the sentences as imposed were contrary to the plea agreement he intended to restructure the sentences so that Pfeil would not face more than a total of fifteen years imprisonment. The State then recommended sentences that would total fifteen years, suspending all but seven years with fourteen years of probation. Defense counsel stated that any sentence greater than the original recommendation of the State would violate the plea agreement. The court imposed sentences on the nine counts which totalled fifteen years imprisonment, all but seven years suspended, and ten years probation.1 Pfeil then moved to withdraw his pleas on the ground that the sentences exceeded the plea agreement, and the court denied the motion.
[¶ 5] M.R.Crim. P. 32(d) provides that "A motion to withdraw a plea of guilty or of nolo contendere may be made only before sentence is imposed." We have held that under the plain language of the rule, a motion to withdraw made after sentencing should be dismissed by the trial court without reaching the merits.2 See State v. Cardosi, 498 A.2d 599, 600-01 (Me.1985)
. If the court had granted the untimely motion, its action would have been "ineffective," State v. Loftus, 631 A.2d 903, 904 (Me.1993), and "a nullity," Cardosi, 498 A.2d at 601. A defendant's "sole remedy" after sentencing is postconviction review. Id. at 600; see also Shorette v. State, 402 A.2d 450, 460 (Me.1979).
[¶ 6] Pfeil contends that his motion to withdraw his pleas was not pursuant to Rule 32 but rather to Rule 11A. Regardless of the grounds for the motion to withdraw a plea, however, Rule 32(d) governs the timing of the motion.
[¶ 7] The reason that post-conviction review is appropriate and that an adequate review cannot be held on direct appeal is amply illustrated in this case. Pfeil's basis for his motion to withdraw his plea is that his rights under Rule 11A were violated. He argues that the judge did not comply with Rule 11A during the second sentencing hearing because the judge did not inform Pfeil that he intended to impose a less favorable sentence and did not give Pfeil an opportunity to withdraw his pleas before the resentence was imposed.3 See Shorette v. State, 402 A.2d at 460
. The significant issue, however, is not whether the court complied with the rule, but whether Pfeil's pleas were made knowingly and voluntarily.4 If Pfeil's claim is that his waiver of trial and his pleas were not made knowingly and voluntarily because the plea agreement led him to expect a lesser sentence than what was imposed, an evidentiary hearing is necessary to develop a record from which a court can determine whether the pleas were made knowingly and voluntarily.
[¶ 8] From the transcript of the first sentencing, it appears that Pfeil had an off-the-record discussion with his attorney before agreeing to accept the sentence. Whether such a discussion actually occurred, how long it lasted, and what was said cannot be ascertained from this record. Pfeil suggests that any waiver he made to the imposition of a harsher sentence was not knowing and voluntary because of his cognitive difficulties and the presence of television cameras at the first hearing. The present record does not permit a finding that Pfeil's waiver of his right to withdraw his plea was not voluntary. Postconviction review is the appropriate procedural vehicle to address the issue.
[¶ 9] Pfeil appeals his sentence pursuant to 15 M.R.S.A. § 2151 (Supp.1997). He challenges the suspended and unsuspended imprisonment portions of his sentences on the three counts of gross sexual assault and four counts of unlawful sexual contact. He does not challenge the assault sentences.
[¶ 10] The facts before the sentencing judge were that Pfeil undertook various activities that would bring him close to children. He befriended the three victims in this case, "recruiting" them and "grooming" them to be victimized, and exposed them to pornography and explicit sexual discussions. He promised to make "Indian suits" for two of the victims, inducing them to remove their clothes so he could measure them.
[¶ 11] Pfeil molested the victim of the three gross sexual assaults and one unlawful sexual contact by fondling the boy's anus and genitals and touching his penis with a piece of leather.5 The victim was twelve and thirteen years old at the time of the abuse, which took place on multiple occasions between February and May, 1997. A second boy, age ten, was the victim of two unlawful sexual contacts and one assault. Pfeil had him undress to be measured on multiple occasions between January and March 1997, and touched his penis with a measuring tape and a piece of felt. Pfeil committed assault against the third boy, an eleven-year-old, in April 1997, by tickling him after being told to stop and grabbing him near his genitals.
[¶ 12] Pfeil had no criminal record. The sentencing judge had two written evaluations, one from a psychologist and the other from a psychiatrist, who had examined Pfeil. The various diagnoses included pedophilia, obsessive-compulsive disorder, and Klinefelter's Syndrome. Both evaluations concluded that Pfeil was a good candidate for sex offender treatment.
[¶ 13] In imposing the sentence at the first sentencing hearing, the court utilized the three-step procedure established in State v. Hewey, 622 A.2d 1151, 1154-55 (Me.1993), and codified at 17-A M.R.S.A. § 1252-C (Supp.1997). The court did not change its Hewey analysis at the second sentencing hearing, but reduced the underlying sentence by making concurrent some of the sentences which it had originally made consecutive.
[¶ 14] In the first step of the Hewey analysis, the court determines the "basic term of imprisonment by considering the particular nature and seriousness of the offense as committed by the offender," id. § 1252-C(1), judging it on a scale of seriousness against all possible ways of committing the crime. See State v. Lilley, 624 A.2d 935, 936 (Me.1993). The Law Court reviews the determination of the basic period for misapplication of principle. Hewey, 622 A.2d at 1155.
[¶ 15] For the three gross sexual assaults, the court found the basic period to be within a range of ten to fifteen years. Pfeil argues that the court impermissibly considered the fact that there were multiple offenses. The multiplicity of the offenses is not an impermissible factor. That Pfeil carefully selected his child victim, "groomed" him to be abused, developed a friendship with him over a period of months, and then betrayed that friendship by a series of sexual assaults, is a consideration of the particular nature and seriousness of the offenses and not of Pfeil's criminal history.
[¶ 16] Pfeil also argues that the court should not have considered...
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