STATE of Maine v. Theodore S. STANISLAW
Docket No. SRP-11-378
Supreme Judicial Court of Maine
Decided: May 7, 2013
1242
[¶ 28] Third, Bellavance has not established that he suffered sufficient prejudice to show that the court abused its discretion by not permitting him additional time to prepare for Mulkern‘s testimony. Bellavance asserts that the court denied him adequate time to investigate the timing and geographical aspects of Mulkern‘s story and his history of drug use, whether he should call or recall witnesses in light of Mulkern‘s testimony, and whether to pursue a plea bargain. Yet Bellavance fails to identify specifically how the court‘s decision that Mulkern would testify on December 23 constitutes an abuse of discretion by depriving him of additional time to investigate information that would have significantly strengthened his case, despite having the opportunity to establish the specific grounds for prejudice through post-trial proceedings. In short, Bellavance fails to identify any actual prejudice caused by not having additional time to prepare for Mulkern‘s testimony.
[¶ 29] Under the circumstances, Bellavance‘s Sixth Amendment rights were not violated. The court did not act unreasonably or arbitrarily in overruling Bellavance‘s objection to Mulkern‘s testimony and not permitting Bellavance additional time to prepare for Mulkern‘s testimony. See Brown, 2000 ME 25, ¶ 19, 757 A.2d 768. Thus, the trial court did not abuse its discretion in permitting Mulkern to testify on December 23. See White, 460 A.2d at 1022. We have carefully considered Bellavance‘s remaining arguments and find them to be unpersuasive, and do not address them separately.8
The entry is:
Judgment affirmed.
Glen L. Porter, Esq., (orally), and Ryan P. Dumais, Esq., Eaton Peabody, Bangor, on the briefs, for appellant Theodore S. Stanislaw.
Carletta Bassano, District Attorney, and Mary N. Kellett, Asst. Dist. Atty., (orally), Prosecutorial District No. VII, Ellsworth, on the briefs, for appellee State of Maine.
Panel: SAUFLEY, C.J., and ALEXANDER, LEVY, SILVER, MEAD, GORMAN, and JABAR, JJ.
Majority: ALEXANDER, LEVY, SILVER, and JABAR, JJ.
Dissent: SAUFLEY, C.J., and MEAD and GORMAN, JJ.
[¶ 1] Theodore S. Stanislaw appeals for a second time challenging the sentence imposed by the trial court (Hancock County, Cuddy, J.) following his guilty plea to three counts of unlawful sexual contact (Class B),
[¶ 2] Stanislaw, now age 54, pleaded guilty in an open plea to sexual crimes involving five girls. The events took place between 2004 and 2008, and the victims were between ten and fourteen years old. His actions toward these girls involved a range of contact, but none of his actions constituted a “sexual act” as that term is defined in
[¶ 3] Based on his contact with the first victim, he pleaded guilty to three counts of unlawful sexual contact (Class B),
[¶ 4] For his actions with the second victim, Stanislaw pleaded guilty to one count of unlawful sexual contact (Class C),
[¶ 5] Stanislaw pleaded guilty to three counts of assault (Class D),
[¶ 6] Finally, Stanislaw pleaded guilty to one count of unlawful sexual touching (Class D),
[¶ 7] Stanislaw has one previous felony conviction. In 1982, when Stanislaw was twenty-four, he pleaded guilty in New York to Sexual Abuse 1st Degree for subjecting “a person less than eleven years old, to sexual contact, by fondling her vagina.” See
[¶ 8] For his offenses in Maine, Stanislaw was initially sentenced “to serve a total of twenty-eight years in prison, followed by four years of probation, during which he was at risk of serving an additional two years.” State v. Stanislaw, 2011 ME 67, ¶ 4, 21 A.3d 91 (Stanislaw I). This overall sentence included three consecutive sentences of nine years of imprisonment on each of the Class B offenses. Id. On the Class C offense, Stanislaw was sentenced to three years of imprisonment, with all but one year suspended, to be served consecutively to the terms on the Class B offenses, followed by four years of probation. Id. The sentences on the Class D offenses were not at issue in the prior appeal, see id. ¶ 5, and are not at issue here. The court arrived at the sentences on each of the Class B offenses by first setting a basic term of imprisonment, pursuant to
[¶ 9] On appeal, we concluded that we were unable to review how the court determined the basic sentence on the Class B offenses because the court appeared to have combined its analysis of the objective facts of the crime itself with its analysis of aggravating factors. Id. ¶¶ 10, 13. We did not consider whether the court abused its discretion as to the maximum sentence, pursuant to
[¶ 10] On remand, the court held a hearing to resentence Stanislaw. At step one of the sentencing analysis, the court set the basic sentence at six years on each of the three Class B convictions and two to three years on the Class C conviction, pursuant to
[¶ 11] At step two of the analysis, which involves setting the maximum period of imprisonment considering all relevant aggravating and mitigating factors pursuant to
[¶ 12] At step three of the sentencing analysis, which involves determining what portion of the sentence to suspend and the appropriate period of probation pursuant to
[¶ 13] The court then turned to consider whether to impose consecutive sentences pursuant to
[¶ 14] In all, the court sentenced Stanislaw to twenty-eight years in prison, with all but twenty-seven years suspended, followed by four years of probation. We once again granted leave to Stanislaw to appeal his sentence, pursuant to
II. DISCUSSION
[¶ 15] We review the propriety of a sentence pursuant to
[¶ 16] In cases involving multiple offenses, the sentencing court must determine whether to impose consecutive or concurrent sentences, pursuant to
[S]entences 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;
...
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.
If the court decides to impose consecutive sentences for various convictions, it must perform a separate Hewey analysis for each conviction. State v. Downs, 2009 ME 3, ¶ 14, 962 A.2d 950. In order to ensure that its final sentence accurately reflects the court‘s determination of an appropriate sentence for multiple offenses, a sentencing court should make its decision about concurrent or consecutive imposition before it undertakes the third step of the Hewey analysis.
[¶ 17] When reviewing the sentencing court‘s application of the Hewey analysis we review the basic sentence de novo for misapplication of principle and we review the maximum sentence and the final sentence for an abuse of discretion. Id. ¶¶ 22, 23. However, we review all three statutory steps for whether the sentencing court disregarded the relevant sentencing factors or abused its sentencing power. Id. Additionally, we review the imposition of consecutive sentences for an abuse of discretion. Downs, 2009 ME 3, ¶ 29, 962 A.2d 950.
A. Statutory Review of a Criminal Sentence
[¶ 18] Our review of sentences is guided by statutorily mandated objectives,
- Sentence correction. To provide for the correction of sentences imposed without due regard for the sentencing factors set forth in this chapter;
- Promote respect for law. To promote respect for law by correcting abuses of the sentencing power and by increasing the fairness of the sentencing process;
- Rehabilitation. To facilitate the possible rehabilitation of an offender by reducing manifest and unwarranted inequalities among the sentences of comparable offenders; and
- Sentencing criteria. To promote the development and application of criteria for sentencing which are both rational and just.
Section 2155 lists two factors that we must consider when reviewing a sentence:
- Propriety of sentence. The propriety of the sentence, having regard to the nature of the offense, the character of the offender, the protection of the public interest, the effect of the offense on the victim and any other relevant sentencing factors recognized under law.
- Manner in which sentence was imposed. The manner in which the sentence was imposed, including the sufficiency and accuracy of the information on which it was based.
B. Application of the Three-Step Analysis to Multiple Sentences
[¶ 20] Stanislaw argues that the sentencing court violated the propriety of his sentence by misapplying principle when it imposed a six-year basic term of imprisonment on each of the Class B offenses. Additionally, he argues that the court contravened our holding in Stanislaw I, 2011 ME 67, ¶ 8 n. 6, 21 A.3d 91, by failing to conduct a separate sentencing analysis for each conviction before imposing the consecutive sentences.
[¶ 21] For the first step of the Hewey analysis, the statute provides: “The court shall first determine a basic term of imprisonment by considering the particular nature and seriousness of the offense as committed by the offender.”
[¶ 22] Six years is significantly less than the ten-year maximum period available for Class B crimes, pursuant to
[¶ 23] After considering the first two steps4 of the Hewey analysis, the court considered the factors provided
C. Whether the Overall Sentence Is Excessive
[¶ 24] When consecutive sentences are imposed, the sentencing court must make a determination that the unsuspended portion of any consecutive sentence is not excessive and is proportionate to the offense. Me. Const. art. I, § 9.
[¶ 25] In accordance with the statutorily mandated purposes of our sentence review, we consider the length of a sentence to determine whether it is excessive. State v. Lilley, 624 A.2d 935, 937 (Me. 1993). One of the purposes of sentence review is “[t]o facilitate the possible rehabilitation of an offender by reducing manifest and unwarranted inequalities among the sentences of comparable offenders.”
[¶ 26] Courts rarely find sentences disproportionate pursuant to the Eighth Amendment of the United States Constitution, except in cases involving the death penalty or juvenile defendants. See Miller v. Alabama, — U.S. —, 132 S.Ct. 2455, 2463-64, 183 L.Ed.2d 407 (2012) (providing a history of Eighth Amendment cases regarding excessive sentences and concluding “that mandatory life-without-parole sentences for juveniles violate the Eighth Amendment“). However, the United States Supreme Court has recognized that the Maine Constitution anticipates a broader proportionality review than the Eighth Amendment. After stating that “the Eighth Amendment contains no proportionality guarantee” in Harmelin v. Michigan, 501 U.S. 957, 965, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991), the Court further noted that “[d]uring the 19th century several States ratified constitutions that prohibited ‘cruel and unusual,’ ‘cruel or unusual,’ or simply ‘cruel’ punishments and required all punishments to be proportioned to the offense,” and referenced six state constitutional provisions, including the proportionality clause in the Maine Constitution, id. at 982, 111 S.Ct. 2680 (referencing Me. Const., art. I. § 9 (1819)); see also Ward, 2011 ME 74, ¶ 17, 21 A.3d 1033 (noting the proportionality language in the Maine Constitution). Presently, eight states have proportionality requirements in their constitutions and another two have interpreted their constitutions to require proportionality in sentencing. See Gregory S. Schneider, Note, Sentencing Proportionality in the States, 54 Ariz. L.Rev. 241, 242 (2012).5
[¶ 27] The use of a proportionality analysis pursuant to a state constitution is
[¶ 28] The Maine Constitution requires that “all penalties and punishments shall be proportioned to the offense.” Me. Const. art. I, § 9. Like other states containing similar language in their state constitutions, we conduct a proportionality review that is broader than the proportionality review that derives from the Eighth Amendment‘s prohibition against cruel and unusual punishment. See Harmelin, 501 U.S. at 965, 111 S.Ct. 2680 (acknowledging that unlike the U.S. Constitution, some state constitutions, including Maine‘s, contain express prohibitions against disproportionate sentences); Ward, 2011 ME 74, ¶ 17, 21 A.3d 1033 (noting the express language in the Maine Constitution); People v. Sharpe, 216 Ill.2d 481, 298 Ill.Dec. 169, 839 N.E.2d 492, 521 (2005) (conducting proportionality review pursuant to the Illinois Constitution); State v. Rodriguez, 347 Or. 46, 217 P.3d 659, 671 (2009) (the Oregon Constitution); State v. Fain, 94 Wash.2d 387, 617 P.2d 720, 727-28 (1980) (the Washington Constitution); Wanstreet v. Bordenkircher, 166 W.Va. 523, 276 S.E.2d 205, 210 (1981) (the West Virginia Constitution).
[¶ 29] To determine whether a sentence is disproportionate we conduct a two-part test. First, we compare “the gravity of the offense [with] the severity of the sentence.” Ward, 2011 ME 74, ¶ 20 n. 5, 21 A.3d 1033 (quoting Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 2022, 176 L.Ed.2d 825 (2010)). Second, if this comparison results in “an inference of gross disproportionality [we] then compare the defendant‘s sentence with the sentences received by other offenders in the same jurisdiction.” Id. (quoting Graham, 130 S.Ct. at 2022).
1. Comparing the Offense and the Sentence
[¶ 30] Factors affecting the proportionality of a sentence to the offense are determined on a case-by-case basis because “no one factor will be dispositive in a given case,” Harmelin, 501 U.S. at 965, 111 S.Ct. 2680 (quoting, but criticizing on other grounds, Solem v. Helm, 463 U.S. 277, 291, n. 17, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983)). Regardless, when gauging proportionality, reviewing courts often consider the facts of the case in conjunc
- To prevent crime through the deterrent effect of sentences, the rehabilitation of convicted persons, and the restraint of convicted persons when required in the interest of public safety;
- To encourage restitution in all cases in which the victim can be compensated and other purposes of sentencing can be appropriately served;
- To minimize correctional experiences which serve to promote further criminality;
- To give fair warning of the nature of the sentences that may be imposed on the conviction of a crime;
- To eliminate inequalities in sentences that are unrelated to legitimate criminological goals;
- To encourage differentiation among offenders with a view to a just individualization of sentences;
- To promote the development of correctional programs which elicit the cooperation of convicted persons; and
- To permit sentences that do not diminish the gravity of offenses....
[¶ 31] In this case, Stanislaw had unlawful and inappropriate sexual contact with a young girl resulting in three convictions for Class B unlawful sexual contact. In committing those crimes, he caused significant emotional harm to the girl, to her family, and to members of the family‘s community, many of whom had had a long-term, trusting relationship with Stanislaw. The court reflected its recognition of the harm caused by Stanislaw by increasing the sentence for each offense from the basic sentence of six years to eight years. The court then concluded that even eight years of incarceration was insufficient, and imposed consecutive sentences for each of the three Class B crimes, although the crimes involved the same victim, and although they arguably constituted a single course of conduct.
[¶ 32] Stanislaw also touched and kissed another girl, when she was slightly older, and for that act was convicted of one count of Class C unlawful sexual contact. Stanislaw‘s crime caused significant emotional harm to the girl and to her family. The court reflected the extent of that harm by increasing the sentence for that offense from the basic sentence of three years to four years. Again, the court concluded that the sentence warranted by this separate crime should be imposed consecutively to the sentences imposed for the crimes against the first victim.
[¶ 33] As we noted earlier, we find no error in the court‘s determination concerning the maximum sentence for each crime, nor in its determination that the sentences for these four felonies should be imposed consecutively. However, by failing to suspend any portion of the three eight-year sentences imposed for the Class B convictions, and then suspending only one year of the four-year sentence imposed for the Class C felony, the court imposed a sentence that does not comport with
2. Comparable Sentences
[¶ 34] With this inference of gross disproportionality between the offenses and the sentence, we turn to compare Stanislaw‘s sentence to the sentences imposed for similar or more severe crimes within our jurisdiction. See Ward, 2011 ME 74, ¶ 20 n. 5, 21 A.3d 1033 (setting forth the two-part test for disproportionality analysis). In this analysis, we recognize that comparisons among cases are difficult due to the multitude of factors that are taken into account, including the crimes as committed, the defendant‘s prior record, whether the sentence was imposed after a trial or after a plea, and the age and other characteristics of the victims. Given the differences among cases, there will almost never be a precedent involving identical sentencing facts, and therefore exact comparisons are not possible. In order to create as precise a comparison as possible, however, we will review the sentence in light of the sentences imposed in four groups of cases: (a) the comparable sentences presented by the State to the sentencing court in this case, (b) cases involving comparable unsuspended prison terms, (c) cases of gross sexual assault, and (d) cases of unlawful sexual contact.
(a) Comparable Sentences Presented by the State to the Sentencing Court
[¶ 35] First, we consider the four “comparable” cases the State provided at the original sentencing. See Stanislaw I, 2011 ME 67, ¶ 11 n. 8, 21 A.3d 91. These cases all involved sex crimes with multiple consecutive sentences. In each case, a conviction was obtained after trial, while here, Stanislaw waived his jury trial right and pleaded guilty. The comparable cases also all involved defendants with no prior convictions for similar offenses, while here, Stanislaw had a 1982 conviction for a similar offense. Nonetheless, these are the cases the State believed would assist the sentencing court in reaching an appropriate sentence and the sentencing court is free to consider these differences when determining what weight to give the comparable sentences presented to it by the State and the defendant.
[¶ 36] The first case presented by the State involved four victims of unstated age and included crimes ranging from Class A to Class D. Id. For those acts, after trial, the defendant received three consecutive sentences. Id. The first sentence was fifteen years, with all but eight years suspended, and ten years’ probation. Id. The second sentence was eight years, all suspended, with six years’ probation, and the third sentence was fifteen years, all suspended, with ten years’ probation. Id. Overall, that defendant was sentenced to thirty-eight years, with all but eight years suspended, and twenty-six years’ probation. Id.
[¶ 37] The second case involved one victim who was age nine and included one Class B unlawful sexual contact conviction and seven Class C unlawful sexual contact convictions. Id. For those acts, after trial, the defendant received consecutive sentences on all counts. Id. The Class B conviction resulted in a sentence of eight years, with all but four years suspended, and four years’ probation. Id. The seven Class C convictions each resulted in sentences of two and a half years, all suspended, with one year probation. Id. Overall, the defendant was sentenced to twenty-five and a half years, with all but four
[¶ 38] The third case involved two victims of unstated age and included one Class B unlawful sexual contact conviction and two Class D assault convictions. Id. For those acts, after trial, the defendant received three consecutive sentences. Id. For the Class B conviction he received seven years, with all but three years suspended, and twelve years of probation. Id. For each of the two Class D convictions he received eleven months, all suspended, and one year of probation. Id. In total, the defendant was sentenced to eight years and ten months, with all but three years suspended, and fourteen years’ probation.
[¶ 39] The fourth case involved one victim who was age five and included one Class B conviction for unlawful sexual contact. Id. For that act, after trial, the defendant received a sentence of seven years, with all but three years suspended, and eight years’ probation. Id.
[¶ 40] The State argues to us that these four sentences are comparable to Stanislaw‘s sentence when the overall sentences, including the suspended portions of the sentences, are taken into account. That is not a reasonable comparison to make; a prison term is simply not the equivalent of a suspended prison term and probation. Logic recognizes this, and both the third step of the Hewey analysis and our jurisprudence reflect this.
(b) Cases Involving Comparable Unsuspended Prison Terms
[¶ 41] The second comparison focuses on cases involving prison terms comparable to Stanislaw‘s unsuspended term of twenty-seven years. In State v. Archer, 2011 ME 80, ¶¶ 1, 3, 4, 6, 25 A.3d 103, the defendant was convicted of attempted murder and elevated aggravated assault for stabbing his ex-girlfriend with the stated intent of killing her. He was sentenced to eighteen years of imprisonment, with all but thirteen years suspended, for the attempted murder conviction, and thirteen years of imprisonment for the elevated aggravated assault to be served concurrently, along with four years of probation. Id. ¶ 16.
[¶ 42] In Reese, 2010 ME 30, ¶¶ 1, 3, 25, 991 A.2d 806, the defendant was convicted of elevated aggravated assault for shooting toward the victim nine times, striking her with two bullets that inflicted life-threatening injuries, and abandoning her where she collapsed on the side of a road at night. We held that the sentence of a term of imprisonment of twenty-nine years, with no portion suspended, was not excessive. Id. ¶¶ 1, 35.
[¶ 43] In State v. Keene, 2007 ME 84, ¶¶ 2, 7, 927 A.2d 398, we upheld a sentence of thirty years’ imprisonment for a conviction of manslaughter and kidnapping. The defendant shoved the victim‘s head into a
[¶ 44] In State v. Dumas, 2010 ME 57, ¶ 11, 997 A.2d 760, the defendant was sentenced to a thirty-year period of imprisonment for a murder conviction following a jury trial. The defendant ingested an “8 ball” of cocaine and, while “out of [his] mind,” shot a friend five times, killing the friend. Id. ¶ 8.
[¶ 45] These cases involve crimes that are more violent than Stanislaw‘s actions; in all four cases the victim either lost or nearly lost his or her life. Despite this distinction, these defendants were sentenced at most to spend only three years in prison longer than was Stanislaw. This comparison also suggests the disproportionate nature of Stanislaw‘s sentence.
(c) Cases of Gross Sexual Assault
[¶ 46] The third comparison focuses on cases involving the more serious crime of gross sexual assault, pursuant to
(d) Cases Involving Unlawful Sexual Contact
[¶ 47] The fourth area of comparison consists of a review of cases involving un
(e) Conclusion Regarding Comparisons
[¶ 48] The disparity in sentences revealed by all four categories of comparison leads us to conclude that, although Stanislaw‘s total sentence is within the parameters of the sentencing statutes, the unsuspended portion of the period of imprisonment is grossly disproportionate to the crimes he committed when compared to the sentences imposed for the same or similar crimes, and some more serious crimes. As we noted in Stanislaw I, Stanislaw pleaded guilty to several serious crimes. 2011 ME 67, ¶ 12, 21 A.3d 91. His abuse of the trust placed in him was deplorable and may result in significant lasting emotional injury to the victims. Without minimizing the harm suffered by the victims due to Stanislaw‘s inexcusable and deviant acts, his offenses must also be assessed by what they did not involve. Stanislaw was convicted of crimes involving contact between hands and genitals, hugging while nude, and kissing. His crimes were appalling, but they did not involve the use of physical force or a weapon, threats of violence, or any other factors that warrant an ultimate sentence imposing an unsuspended twenty-seven-year term of imprisonment.
3. Conclusion Regarding Excessiveness of the Overall Sentence
[¶ 49] In sum, for the reasons articulated by the sentencing court, it is appropriate for a portion of Stanislaw‘s term to be served consecutively to another term. See Keene, 2007 ME 84, ¶ 26, 927 A.2d 398 (noting that “a defendant does not have a constitutional right to serve concurrent sentences for multiple violent offenses“). However, the court failed to consider whether the resulting overall unsuspended portion of Stanislaw‘s sentence should be subject to any additional suspension in order to ensure that the overall sentence was proportionate. As a result, and as shown by the comparative analysis we have undertaken, the unsuspended portion of Stanislaw‘s overall sentence is disproportionate and must be vacated. In short, to avoid an overall sentence in this case that will result in “manifest and unwarranted inequalities among the sentences of comparable offenders,”
[¶ 50] By imposing a sentence that included twenty-seven unsuspended years of incarceration, the court exceeded its discretion and therefore erred. The underlying consecutive sentences themselves do not create a proportionality problem. The proportionality problem exists with the unsuspended twenty-seven years of the overall sentence because it is far out of line with sentences of other defendants convicted of unlawful sexual contact. Because this is an unusual case in that we have now twice vacated the sentences imposed, and the need for finality is particularly acute because the case involves young victims, we provide additional guidance for the sentencing on remand, cautioning that it is based on the existing sentencing record and not on the record that may be developed following our remand. The data presently available to us suggests that an unsuspended sentence of one-third to one-half of the current unsuspended sentence would comply with our constitutional and statutory proportionality requirements. Such a sentence protects the public from Stanislaw, deters crime through the suspended sentence and accompanying probation, and yet does not diminish the gravity of Stanislaw‘s offenses. Accordingly, we vacate the sentence and remand for resentencing. See
D. Reassignment
[¶ 51] We deny Stanislaw‘s request that we include an order that on remand a different Justice be assigned to undertake resentencing. Although we have now vacated two sentencing decisions in this case, we discern no basis on which to order a reassignment to a different Justice.
The entry is:
Sentence vacated and remanded to the Superior Court for resentencing consistent with the opinion herein.
SAUFLEY, C.J., with whom MEAD and GORMAN, JJ., join, concurring in part and dissenting in part.
SAUFLEY, C.J., Concurring in Part and Dissenting in Part.
[¶ 52] With the greatest respect for the difficulty facing appellate courts and trial courts in determining appropriate sentences in child sex offense cases, I cannot agree with the Court‘s conclusion that a proportionality analysis would result in a sentence that is reduced by one-half to two-thirds, because neither we nor the trial court have enough information to make such a determination.
[¶ 53] I concur in the Court‘s conclusion that the sentence must be vacated and the case remanded for further consideration, and I concur in the Court‘s analysis regarding the trial court‘s responsibility to assure that consecutive sentences are accompanied by a final review for proportionality. I also concur in the Court‘s analysis regarding the unusual structure of the sentence, which, I note, leaves Stanislaw with only four years of probation and only a single year of incarceration anchoring that probation period, despite the evident need for a longer period of close supervision to protect children.
[¶ 54] I must, however, respectfully dissent from the Court‘s opinion in two respects. First and foremost, no resentence of this admitted sex offender should occur without a thorough and searching review of his history. Nor should a contested sentence in the range of this sentence ever be undertaken in any case
[¶ 55] Moreover, the suggestion of an appropriate range, even in a precatory fashion in the context of a proportionality discussion, should not be made on the record before us because the record lacks necessary information regarding Stanislaw‘s background.
I. FACTUAL BACKGROUND AND SENTENCING PROCESS
[¶ 56] We cannot overlook the factual context in which this sentence was initially imposed, including Stanislaw‘s prior felony child sexual abuse conviction; his highly skillful cultivation of the parents’ trust; the number of victims; the number of days, weeks, months, and years in which he perpetrated his crimes and abused each victim; and the effect on the child victims and the community of a person who has the intellect, but not the moral fiber, to recognize that his behavior is abhorrent.
[¶ 57] Notwithstanding this background, the State, at the original sentencing, made no specific recommendation for a final period of incarceration and did not present a presentence investigation report. Most strikingly, the State offered no information whatsoever about Stanislaw‘s history between 1982, when he was convicted of his first crime of child sexual abuse, and 2004, more than twenty years later, when he first began to abuse children in Blue Hill. Stanislaw pleaded guilty to each of the charges in an “open plea” format. His attorney argued that Stanislaw should spend no time in jail but that a substantial period of probation should be imposed. For its part, the State did not present a presentence investigation, did not give the court information on Stanislaw‘s missing twenty-two years, and did not provide a recommended sentence. It did, however, provide sentences from four roughly comparable cases, the highest of which called for a final sentence of eight years in prison, with a lengthy underlying sentence and a long period of probation.8
[¶ 58] Thus, with Stanislaw arguing for no jail time, and the State suggesting that eight years was the highest appropriate final sentence, the trial court imposed a final sentence that was more than three times higher than the outer range presented by the State, and it did so without information regarding Stanislaw‘s history and without the specific findings required by statute. See State v. Stanislaw, 2011 ME 67, ¶¶ 14, 16, 21 A.3d 91; see
[¶ 59] On remand, the court did not request or receive a presentence investigation report or any other new information from the parties. Again, both parties failed to provide any information whatsoever regarding Stanislaw‘s whereabouts, his employment, his contact with children, his criminal records, or any other aspect of his life during the time between Stanislaw‘s felony conviction in 1982 and his activities in the Blue Hill community beginning in 2004. Notwithstanding the absence of this critical information about the defendant‘s history, a substantial focus of the sentencing court was the court‘s assessment that Stanislaw was not a good candidate for rehabilitation.
[¶ 60] When a sentencing court is considering, in a contested sentencing, the imposition of a sentence that is likely to place the defendant in prison for twenty years or more, and is determining the need for and potential efficacy of probation, the best practice is for the court to have a presentence investigation report or other accurate and detailed information about the defendant and his background, including the level of danger to the public and the defendant‘s amenability to rehabilitation. Without that information, it is difficult, if not impossible, for the court to thoughtfully address the second and third steps of the required statutory sentencing analysis, and nearly impossible for an appellate court to meaningfully review that analysis. In this case, the gap in information is particularly evident in the trial court‘s decision to impose such a brief period of probation in circumstances where the court also determined that the defendant presents a grave danger to children in the community.
[¶ 61] Recognizing that we should have explicitly required a thorough background investigation upon our earlier remand, I would now explicitly mandate a presentence investigation report before Stanislaw is resentenced.
II. LAW COURT AUTHORITY IN THE SENTENCING PROCESS
[¶ 62] After carefully analyzing the legal requirements for proportionality, rather than simply remanding for the trial court to apply the law correctly, the Court today suggests that the sentence to be determined upon remand should not exceed thirteen and a half years.
[¶ 63] To the extent that the Court‘s suggestion is intended to provide assistance to the trial court in addressing the proportionality analysis that is required in this instance due to the imposition of multiple consecutive sentences, the Court acts within its authority to provide guidance regarding the application of the sentencing statutes.
[¶ 64] To be clear, however, it is not within the authority of the Law Court to sentence any individual who has been convicted of a crime. The Court‘s authority is limited to assuring that the law is followed, including by assuring accurate application of the sentencing factors, facilitating rehabilitation when that is possible, promoting respect for the law, and promoting the development of rational and just sentencing criteria. See
[¶ 65] Although I certainly understand the intent of the Court to provide guidance to the trial judge following remand, I remain concerned that the Court‘s suggestion in this context could be misunderstood as a mandate. Therefore, I write to stress that it would be inaccurate to read the Court‘s suggested range as setting a hard limit on the sentence that could be imposed on remand.
[¶ 66] Finally, I note that the Court‘s suggested sentencing range is presented in the absence of a complete background investigation of Theodore Stanislaw. I would not offer such a range, suggesting that the maximum sentence should not exceed thirteen and a half years, in the absence of that information.
III. CONCLUSION
[¶ 67] I concur in the Court‘s determinations that the sentence must be vacated, that a proportionality analysis should be undertaken before the final sentence is imposed, and that the structure of that final sentence must be carefully reviewed by the trial court. I would mandate a thorough and searching history of Stanislaw before any further consideration of an appropriate sentence. And I would reject any reading of the Court‘s opinion that limits the maximum unsuspended prison time to thirteen and a half years. We should not usurp the authority of the trial court to engage in one of its most important responsibilities, and we should not suggest a prospective sentence when all of the critical facts are not yet available. I would remand for the court to require the completion of a thorough presentence investigation of Stanislaw before any further sentencing is undertaken.
Notes
(1) Any act between 2 persons involving direct physical contact between the genitals of one and the mouth or anus of the other, or direct physical contact between the genitals of one and the genitals of the other;
(2) Any act between a person and an animal being used by another person which act involves direct physical contact between the genitals of one and the mouth or anus of the other, or direct physical contact between the genitals of one and the genitals of the other; or
(3) Any act involving direct physical contact between the genitals or anus of one and an instrument or device manipulated by another person when that act is done for the purpose of arousing or gratifying sexual desire or for the purpose of causing bodily injury or offensive physical contact.
A sexual act may be proved without allegation or proof of penetration.