State v. Stanislaw

• Decision Date: 07 June 2011
• Docket Number: Docket No. SRP–10–222.
• Citation: 2011 ME 67,21 A.3d 91
• Parties: STATE of Mainev.Theodore S. STANISLAW.
• Court: Maine Supreme Court

21 A.3d 91

2011 ME 67

STATE of Maine

v.Theodore S. STANISLAW.

Docket No. SRP–10–222.

Supreme Judicial Court of Maine.

Argued: Feb. 9, 2011.Decided: June 7, 2011.

Glen L. Porter, Esq. (orally), Ryan P. Dumais, Esq., Eaton Peabody, Bangor, ME, for Theodore S. Stanislaw.Michael E. Povich, District Attorney, Mary N. Kellett, Asst. Dist. Atty., William B. Entwisle, Asst. Dist. Atty. (orally), Ellsworth, ME, for the State of Maine.Panel: SAUFLEY, C.J., and ALEXANDER, LEVY, MEAD, GORMAN, and JABAR, JJ.GORMAN, J.

[¶ 1] Theodore S. Stanislaw appeals from the sentence imposed by the Superior Court (Hancock County, Cuddy, J.) following his guilty plea to three counts of unlawful sexual contact (Class B), 17–A M.R.S. § 255–A(1)(E–1) (2010); one count of unlawful sexual contact (Class C), 17–A M.R.S. § 255–A(1)(E) (2010); one count of unlawful sexual touching (Class D), 17–A M.R.S. § 260(1)(C) (2010); and four counts of assault (Class D), 17–A M.R.S. § 207(1)(A) (2010). Stanislaw contends that (1) the court erred in applying the three-step sentencing analysis mandated by State v. Hewey, 622 A.2d 1151 (Me.1993), and codified at 17–A M.R.S. § 1252–C (2010); (2) the court abused its discretion by imposing consecutive sentences for the Class B convictions pursuant to 17–A M.R.S. § 1256(2)(A), (D) (2010); and (3) his overall sentence is excessive. Because we agree with Stanislaw that the court failed to undertake the analysis required by the first step of the sentencing procedure, we vacate the sentences imposed for the felony convictions. We do not address his remaining contentions, except to note that the sentencing court must undertake the statutorily imposed sentencing analysis for any primary sentence to be imposed for a felony conviction that will be consecutive to another sentence. The statutory sentencing analysis need not be undertaken with respect to sentences for felony convictions that are imposed to run concurrently with the initial sentence or with a primary consecutive sentence.

I. BACKGROUND

[¶ 2] From 2002 to 2008, on multiple occasions, Stanislaw engaged in sexual touching and sexual contact with five girls who were between the ages of ten and fourteen years old. At the time, Stanislaw resided in Blue Hill and provided music lessons to the girls. After one of the girls disclosed Stanislaw's actions to a family member, the State began to investigate him.

[¶ 3] Stanislaw was eventually charged with three counts of unlawful sexual contact (Class A), 17–A M.R.S. § 255–A(1)(F–1) (2010); four counts of unlawful sexual contact (Class B), 17–A M.R.S. § 255–A(1)(E–1); four counts of unlawful sexual contact (Class C), 17–A M.R.S. § 255–A(1)(E); one count of unlawful sexual touching (Class D), 17–A M.R.S. § 260(1)(C); one count of sexual abuse of a minor (Class D), 17–A M.R.S. § 254(1)(F) (2010); and six counts of assault (Class D), 17–A M.R.S. § 207(1)(A). The State agreed to dismiss the Class A offenses, one Class B charge, three Class C charges, the sexual abuse of a minor offense, and two of the assault charges, in exchange for Stanislaw's plea of guilty to the remaining nine counts: three counts of Class B unlawful sexual contact; ¹ one count of Class C unlawful sexual contact; ² four counts of Class D assault; and one count of Class D unlawful sexual touching.³

[¶ 4] The court accepted Stanislaw's open guilty pleas to the charges, and conducted a sentencing hearing on January 27, 2010.⁴ The State submitted a sentencing memorandum that included four examples of what it argued were “[c]omparable sentences in Hancock County.” On each of the three Class B offenses for unlawful sexual contact, the court sentenced Stanislaw to nine years of imprisonment, to be served consecutively, and ordered that he comply with sex offender registration and notification requirements. For the Class C unlawful sexual contact conviction, the court imposed three years of imprisonment, with all but one year suspended, to be served consecutively to the Class B offenses, and four years of probation. The court also sentenced Stanislaw to thirty days in jail, to be served concurrently, and a $300 fine for each of the assault charges, and a thirty-day concurrent sentence for unlawful sexual touching. Thus, Stanislaw was ordered to serve a total of twenty-eight years in prison, followed by four years of probation, during which he was at risk for serving an additional two years. We granted Stanislaw leave to appeal his sentence pursuant to 15 M.R.S. § 2152 (2010) and M.R.App. P. 20.

II. DISCUSSION

[¶ 5] Stanislaw avers that, in imposing its sentence for the Class B offenses, the court misapplied the three-step sentencing analysis codified at 17–A M.R.S. § 1252–C. Specifically, Stanislaw contends that the court erred in setting the basic period of incarceration at nine years because the court did not consider other possible means of committing the same crimes. ⁵

[¶ 6] We review the sentencing court's determination of the basic period of incarceration for “misapplication of principle.” State v. Dwyer, 2009 ME 127, ¶ 35, 985 A.2d 469, 479; cf. State v. Lewis, 1998 ME 83, ¶ 9, 711 A.2d 119, 123 (“We review the basic period of imprisonment de novo ....”).

[¶ 7] We announced a three-part system of analysis nearly two decades ago in Hewey, 622 A.2d at 1154–55, and the Legislature adopted that framework in 1995 by codifying it at 17–A M.R.S.A. § 1252–C (Supp.1995). P.L.1995, ch. 69, § 1 (effective Sept. 29, 1995); see also State v. Prewara, 687 A.2d 951, 955 n. 8 (Me.1996). Section 1252–C establishes a system intended to allow trial courts to craft sentences that are based on a thorough consideration of all pertinent information. See State v. Sweet, 2000 ME 14, ¶¶ 10–11 & n. 2, 745 A.2d 368, 371–72; see also 17–A M.R.S. § 1151 (2010) (identifying the purposes of criminal sentencing in Maine). By following the framework found in section 1252–C, the sentencing court can focus its analysis in a way that permits use of its discretion to both “appropriately individualize each sentence” and “facilitate a greater degree of uniformity in the sentencing process.” Hewey, 622 A.2d at 1154–55 (quotation marks omitted). When sentencing courts follow this procedure, it also “make[s] review of sentences by this Court more meaningful and should result in sentences that are more uniform.” Prewara, 687 A.2d at 955.

[¶ 8] In order to comply with the statutory requirements of section 1252–C, each time a court imposes a felony sentence it “shall first determine a basic term of imprisonment by considering the particular nature and seriousness of the offense as committed by the offender.” ⁶ 17–A M.R.S. § 1252–C(1); see also Sweet, 2000 ME 14, ¶ 11, 745 A.2d at 372; Hewey, 622 A.2d at 1154. The sentencing court determines the basic period of incarceration “by examining the crime, the defendant's conduct in committing it, and by looking at other sentences for similar offenses.” State v. Dalli, 2010 ME 113, ¶ 6, 8 A.3d 632, 635 (quotation marks omitted); see also State v. Ardolino, 1997 ME 141, ¶ 24, 697 A.2d 73, 81 (stating that the sentencing court is to consider the defendant's conduct in light of “the basic period of incarceration imposed for similar conduct of other offenders convicted of offenses within the same classification”); ⁷ State v. Bolduc, 638 A.2d 725, 727 (Me.1994). This process requires the court “to measure the defendant's conduct on a scale of seriousness against all possible means of committing the crime in order to determine which acts deserve the most punishment.” State v. Berube, 1997 ME 165, ¶ 3, 698 A.2d 509, 511 (quotation marks omitted).

[¶ 9] In other words, the sentencing court must begin its analysis by considering the offense itself, in as objective a manner as possible. See State v. Shulikov, 1998 ME 111, ¶ 23, 712 A.2d 504, 511 (stating that the considerations in the first step “focus[ ] on the objective nature of the offender's conduct”); cf. 17–A M.R.S. § 1252(5–B) to (5–D) (2010); State v. Pfeil, 1998 ME 245, ¶ 16, 720 A.2d 573, 577–78 (reciting that, in the first step, a court may consider “objective facts regarding the victim,” but not the subjective effect of the crime on the victim (quotation marks omitted)). The court should also consider “the very highest sentence and the very lowest sentence available at law,” and should “be aware of factors that would change the class of the crime.” Sweet, 2000 ME 14, n. 3, 745 A.2d at 372. Aggravating and mitigating factors, external to the objective facts of the crime itself, are addressed at the second step of the sentencing analysis. 17–A M.R.S. § 1252–C(2); see also Hewey, 622 A.2d at 1154–55. Consideration of aggravating factors may significantly increase the basic term of imprisonment determined in the first step, and may result in a maximum sentence, set in the second step, that is well above the basic sentence but within the statutory limit for the offense at issue. See Hewey, 622 A.2d at 1154–55.

[¶ 10] In this case, the court set the basic term of imprisonment at nine years for each of the Class B unlawful sexual contact offenses. The court's explanation of its reasons for setting the nine-year sentence appears to combine issues relating to the objective facts of the crime, appropriate for consideration at the first step of the sentencing analysis, with aggravating factors, such as a prior conviction for a similar offense, the betrayal of trust held by the community, and the great number of criminal acts committed over a five- or six-year period, which are appropriate for consideration in the second step of the sentencing analysis. Before announcing that it would use nine years as the basic period of incarceration for each of the Class B offenses here, the court stated that it was “impressed simply by [Stanislaw's] conduct and the impact it has had on the victims here.” Thereafter, the court recited:

The Court views the facts here, as admitted by this defendant, to...