STATE of Maine v. Richard R. BURDICK.
2001 ME 143
Supreme Judicial Court of Maine.
Argued: April 10, 2001. Decided: Oct. 19, 2001.
782 A.2d 319
Kevin L. Barron (orally), Ellsworth, for defendant.
Panel: WATHEN, C.J.,* and CLIFFORD, RUDMAN, DANA, SAUFLEY, ALEXANDER, and CALKINS, JJ.
[¶ 1] Richard Burdick appeals from the judgment entered in the Superior Court (Hancock County, Hjelm, J.) following a jury verdict finding him guilty of, among other things, attempted murder, pursuant to
Burdick contends that the sentence imposed on the attempted murder charge was an illegal sentence because it deprived him of his constitutional rights to due process and trial by jury pursuant to the holding of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).2 We affirm the judgment.
I. BACKGROUND
[¶ 2] All of the charges against Burdick arose out of a single incident in which Burdick shot a law enforcement officer twice in the chest at a very close range.3 After the jury found Burdick guilty on all charges, the court sentenced him to forty years in the custody of the Department of Corrections on the attempted murder charge. The court also imposed shorter sentences on each of the other charges, to run concurrently with the forty-year sentence for attempted murder.4
[¶ 3] The evidence leading to Burdick‘s conviction can be summarized as follows. On the night of June 13, 1999, three Hancock County Sheriff‘s officers were directed to Richard Burdick‘s two-story residence in Orland to arrest him on an outstanding felony warrant from Massachusetts. Although Burdick initially came to the door, he retreated into the house and up to the second floor after seeing two of the officers in uniform. The officers did not follow Burdick into the house, and instead attempted to lure him outside.
[¶ 4] After a few minutes, Burdick began descending the stairs with his wife in front of him. Unknown to the officers at this time, Burdick had placed a .22 magnum handgun in his pants pocket. Two of the officers, with guns drawn, directed Burdick to exit the house. At that point, Burdick realized that the officers intended to arrest him and retreated back upstairs. This time, the officers pursued him into the house and up the stairs.
[¶ 5] When Burdick reached the second floor, he shut the door at the top of the landing. The first officer in pursuit, Jeffrey McFarland, forced the door open and rushed inside. Although no lights were on, McFarland could make out Burdick trying to hide behind a rack of clothes. Burdick‘s right side was obstructed from McFarland‘s view. McFarland stepped forward, grabbed Burdick‘s left arm with his right hand, and pulled Burdick toward
[¶ 6] Almost immediately, McFarland saw and heard Burdick discharge his .22 magnum handgun with his right hand, striking McFarland in the chest. Burdick then fired a second shot into McFarland‘s chest, and McFarland collapsed on the floor. The other two officers, James Willis and Kenneth Mitchell, were only steps behind McFarland. Willis discharged two gun shots, striking Burdick once in the right front pelvic area. Mitchell fired multiple shots, but none struck Burdick. The three officers then left the building. Because McFarland was wearing a bulletproof vest, the physical injuries to his chest were minor.5
[¶ 7] A stalemate between Burdick and the Maine State Police tactical team ensued when Burdick refused to come outside. Ultimately, the officers entered the second-floor room and found Burdick unconscious.6 Burdick was taken to a hospital for treatment and was subsequently charged with, inter alia, the attempted murder of Jeffrey McFarland.
[¶ 8] At trial, a number of witnesses testified on behalf of the State, including officers Mitchell, Willis, and McFarland. Burdick, as the sole witness for the defense, testified abоut his own version of the incident. Burdick did not dispute that he fired the shots, that McFarland was a uniformed law enforcement officer, or that he understood that the officers were there to arrest him. He testified, however, that when he descended the stairs the second time, he had placed his gun in his pocket in case he had to kill himself or “so I could cover myself.” He explained to the jury that after McFarland chased him upstairs and forced his way into the room, he accidentally shot McFarland in the ensuing struggle. The jury returned a guilty verdict as to each of the five charges.
[¶ 9] During the sentencing stage, the State sought imposition of a life imprisonment sentenсe pursuant to the enhanced sentencing provisions of the attempted murder statute,
II. DISCUSSION
[¶ 10] Pursuant to the U.S. Supreme Court‘s holding in Apprendi, “[o]ther than the fact of a prior conviction, any fact that incrеases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Apprendi, 530 U.S. at 490, 120 S.Ct. 2348 (emphasis added). The Court in Apprendi reasoned that the due process requirements of the Fourteenth Amendment and the right to trial by jury of the Sixth Amendment, taken together, “indisputably entitle a criminal defendant to ‘a jury determination that [he] is guilty of every element of the crime with which he is charged, beyond a reasonable doubt.‘” Id. at 476–77 (quoting United States v. Gaudin, 515 U.S. 506, 510, 115 S.Ct. 2310, 132 L.Ed.2d 444 (1995)); see also In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). Because “facts that expose a defendant to a punishment greater than that otherwise legally prescribed [are] by definition ‘elements’ of a separate legal offense,” such facts “must be submitted to a jury, and prоved beyond a reasonable doubt.” Apprendi, 530 U.S. at 483 n. 10, 490, 120 S.Ct. 2348; see also Jones v. United States, 526 U.S. 227, 251-52, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999) (holding that provisions of car-jacking statute that established higher penalties to be imposed when offense resulted in “serious bodily injury” or “death” set forth additional elements of offense, not mere sentencing factors).
[¶ 11] Burdick contends, pursuant to the holding in Apprendi, that his attempted murder sentence is illegal because he was unconstitutionally exposed to an increased statutory maximum sentence of life imprisonment, based on facts that were not “submitted to the jury, and proved beyond a reasonable doubt” as part of his attempted murder charge. See Apprendi, 530 U.S. at 490, 120 S.Ct. 2348. Burdick‘s argument requires us to determine whether the enhanced sentencing provision оf the attempted murder statute, as applied to Burdick, violated his constitutional right to trial by jury and due process, pursuant to the Sixth and Fourteenth Amendments of the federal constitution. See id. at 476-77, 120 S.Ct. 2348;
[¶ 12] Preliminarily, we note that Burdick has raised this challenge for the first time on appeal. See State v. Thornton, 485 A.2d 952, 952-53 (Me. 1984); see also Younie v. State, 281 A.2d 446, 448-49 (Me. 1971) (declining to review the petitioner‘s constitutional due process claim, “because it is raised for the first time in his brief to this Court upon appeal“). Burdick did not raise or present this issue to the Superior Court, nor did he raise the issue in his application for leave to appeal his sentence. See
[¶ 14] Wе must therefore determine first, whether the application of the Apprendi principles to the statute and sentence before us discloses error, and if so, second, whether the error worked a substantial injustice or affected Burdick‘s substantial rights.
A. Statutory and Constitutional Framework
1. Maine‘s Attempted Murder Sentencing Scheme
[¶ 15] Because Burdick challenges the propriety of his sentence on the attempted murder charge, we begin our analysis with a brief explanation of the sentencing scheme contained in the attempted murder statute,
[¶ 16] The maximum allowable sentence for attempted murder at the time of Burdick‘s sentencing, however, was not governed by section 1252 but by
[¶ 17] The 1995 amendments also added two provisions to thе attempted murder statute that may reduce or enhance that maximum term of imprisonment. L.D. 200 (117th Legis. 1995). If the sentencing court finds that the defendant acted “un-
[¶ 18] Thus, absent special findings by the sentencing court, the basic statutory maximum sentence for attempted murder is a “definite period of imprisonment of any term of years.”
2. Apprendi Analysis
[¶ 19] There is no question that the holding in Apprendi places serious constitutional limitations on the “special [enhanced] penalty provision of life imprisonment.” See
[¶ 20] Accordingly, because the aggravating circumstance was not submitted to the jury as an element of the attempted murder charge, and the jury was not re-
[¶ 21] In the absence of a challenge by Burdick, however, the court understood the attempted murder statute as granting it the authority to impose the enhanced sentence of life imprisonment based on its own finding that Burdick‘s attempted murder was committed against a law enforcement officer:
[I]t seems to me that under the circumstances of the — of this case this is a particularly appropriate application of the extended range of sentences that are available here compared to other crimes of attempted murder when the victim is not a member of the law enforcement community acting in performance of — of his duties.
In so concluding, the court found the existence of an aggravated circumstance and sentenced Burdick to a definite term of forty years, a sentence that it characterized as “probably a de facto life sentence.”
[¶ 22] Burdick argues that the sentence in this case resulted in a deprivation of his constitutional rights pursuant to Apprendi because the court exposed him to an extended term of life imprisonment without submitting the “aggravating circumstance” to the jury as an element of his attempted murder charge.13 See Apprendi, 530 U.S. at 490, 494, 120 S.Ct. 2348. The State contends, in response, that there is no Apprendi violation given the court‘s rejection of the opportunity to sentence Burdiсk to an actual sentence of life imprisonment. Because the court sentenced Burdick to a definite term of forty years, and because the attempted murder statute authorizes the court to sentence a defendant to “any term of years” without a finding of aggravating circumstances, the State urges us to conclude that Burdick properly received a sentence that is in accordance with Apprendi.
[¶ 23] We recognize that there is some debate among the courts regarding the scope of Apprendi‘s holding. Because the petitioner in Apprendi did, in fact, receive an enhanced sentence beyond the basic statutory maximum, some courts have declined to expand Apprendi‘s holding to cases where the defendant is merely exposed to an enhanced sentence, without actually receiving such a sentence.14 See,
[¶ 24] We need not determine here whether mere exposure to the higher sentence would violate a defendant‘s rights, because we conclude that in this unique sentencing circumstance, the sentencing court may have, in fact, sentenced Burdick to an extended term of “life imprisonment.”
[¶ 25] Burdick was fifty years old at the time of the sentencing. Although the forty-year sentence was stated in terms of years, the court also explicitly characterized its sentence as “probably a de facto life sentence.” In other words, the sentencing court understood its sentence as incarcerating Burdick for a term of “life imprisonment,” while giving words to the sentence in terms of years. In this unique and unusual sentencing framework, we construe the results against the State.15 Thus, juxtaposing the court‘s term of years against its candid aсknowledgement that the sentence constituted a life sentence for Burdick, we assume for purposes of our analysis that the court sentenced Burdick to an increased sentence beyond the ordinary statutory maximum sentence for attempted murder, in violation of the principles of Apprendi.
B. Obvious Error
[¶ 26] Having concluded that an error occurred when the court did not instruct the jury to determine whether Burdick attempted to murder a law enforcement official, we must next determine whether that error violated Burdick‘s substantial rights. See State v. Child, 1999 ME 198, ¶ 7, 743 A.2d 230, 232; see also Johnson, 520 U.S. at 468, 117 S.Ct. 1544; State v. Pomerleau, 363 A.2d 692, 696-98 (Me. 1976); accord United States v. Duarte, 246 F.3d 56, 61-62 (1st Cir. 2001).
[¶ 27] We first reject Burdick‘s argument that the error at issue was a “structural error” requiring automatic reversal. Structural error is a “‘defеct affecting the framework within which the trial proceeds, rather than simply an error in the trial process itself.‘” Johnson, 520 U.S. at 468, 117 S.Ct. 1544 (quoting Arizona v. Fulminante, 499 U.S. 279, 310, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991)). The Supreme Court has found “structural errors only in a very limited class of
[¶ 28] No such error occurred here. Cf. State v. Warren, 1998 ME 136, ¶¶ 16-17, 711 A.2d 851, 857-58 (citing Fulminante, 499 U.S. at 308). The omission from jury instructions of a single, discreet factor did not hinder Burdick‘s right to a fair and speedy trial, impair his opportunity to defend himself, or impair any other protected right during the trial. In sum, the Apprendi error “did not recognize or create a structural error that would require per se reversal.” United States v. Nealy, 232 F.3d 825, 829 (11th Cir. 2000).
[¶ 29] Having rejected Burdick‘s claim of structural error, we must determine whether the unpreserved error is “obvious error” requiring that the sentence be set aside. See M.R. Crim. P. 52(b). An error is “obvious and reversible if the error affects ‘substantial rights’ or results in a substantial injustice.” In re Joshua B., 2001 ME 115, ¶ 10, 776 A.2d 1240, 1243. Because the claimed error here is of constitutional dimension, we must be convinced beyond a reasonable doubt that the error did not affect Burdick‘s substantial rights. See Warren, 1998 ME 136, ¶ 17, 711 A.2d at 857; see also Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).
[¶ 30] The question presented is whether the failure to submit the omitted fact to the jury for its consideration resulted in a deprivation of Burdick‘s substantial rights.17 Burdick must convince us that the omission of the instruction “‘when reviewed with the charge as a whole constituted highly prejudicial error tending to produce manifest injustice.‘” Child, 1999 ME 198, ¶ 7, 743 A.2d at 232 (quoting State v. Googins, 640 A.2d 1060, 1062 (Me. 1994)). When the claimed error is the omission of a particular instruction, we will vacate the judgment only if “the record contains evidence that could rationally lead to a contrary finding with respect to the omitted element.” Neder, 527 U.S. at 19, 119 S.Ct. 1827; cf. State v. McKeough, 300 A.2d 755, 761 (Me. 1973).
[¶ 31] There is no evidence in the record that “could rationally lead to a contrary finding with respect to the omitted element.” Neder, 527 U.S. at 19, 119 S.Ct. 1827. On the contrary, the record contains abundant undisputed evidence that Burdick‘s attempted murder was committed against “a law enforcement officer ... acting in the performance of that officer‘s duties.”
[¶ 32] Officer McFarland, the victim of the attemрted murder, testified that on the
[¶ 33] Our conclusion here is consistent with the jury‘s conviction of Burdick on the charge of “assault on an officer.” The indictment, in addition to charging him with attempted murder of Jeffrey McFarland (count I), charged Burdick with “assault on an officer” (count III), which required the jury to make a finding that “Jeffrey McFarland” was “a law еnforcement officer ... while the said Jeffrey McFarland was in the performance of his official duties,” in order to convict Burdick. The court instructed the jury on that element of the charge.18 Because counts I and III arose out of the same incident (i.e., Burdick‘s shooting of Officer McFarland), and because the jury convicted Burdick on count III, it is beyond peradventure that the jury would have concluded that the victim of the attempted murder was a law enforcement officer in the performance of his duties, had that fact been properly submitted to the jury as an element of the attempted murder charge.
[¶ 34] Because no rational jury wоuld have concluded otherwise on the element that was not submitted to the jury on the attempted murder charge, the absence of that element did not affect Burdick‘s substantial rights. Accordingly, we conclude that the error in this matter was harmless.
The entry is:
Judgment affirmed.
ALEXANDER, J., with whom CLIFFORD, J., joins concurs and files an opinion.
ALEXANDER, J., with whom, CLIFFORD, J., joins, concurring.
[¶ 35] I concur in the result affirming the sentence. I write separately because,
[¶ 36] Apprendi is not implicated in this sentence. As the Court‘s opinion recognizes, Burdick was sentenced to a term of years within the range appropriate tо the attempted murder charge submitted to and decided by the jury. Apprendi only requires that a jury decide sentencing factors when those factors serve to increase the maximum possible sentence that could be imposed or the category of the crime upon which sentencing will be imposed. Apprendi does not prevent the State from arguing or the court from considering uncharged sentencing enhancement factors as aggravating circumstances, as long as the sentence imposed is within the range appropriate to the crime as charged and convicted.
[¶ 37] Thus, for example, after an aggravated assault conviction,
[¶ 38] In this case the triаl court conducted a proper sentencing hearing. It then stated on the record its reasoning for imposing the sentence, and the possible consequences of its sentence. This is not error. Discussion of the reasons for and consequences of sentences is necessary to properly impose a sentence of imprisonment with the many factors and consequences that must be addressed pursuant to
[¶ 39] The sentence the court imposed, forty years, was within the range allowed for an attempted murder conviction as it was plеd and as it was found by the jury. The law, articulated in Apprendi or otherwise, requires no more.
[¶ 40] The fact that a sentence may be a “de facto” life sentence does not change its legality.20 In that aspect, this case is on all fours with State v. Goodale, 571 A.2d 228 (Me. 1990). Goodale was convicted of murder. Id. at 228. At sentencing, the trial judge “did acknowledge that defendant‘s case lacked the aggravating circumstances that would justify a life sentence....” Id. at 229. The court then imposed a seventy-five-year sentence. Id. The defense asserted on appeal that the trial court had imposed an illegal “de facto” life sentence. Id. We rejected the assertion and stated that:
[a]n inappropriate sentence is not necessarily an illegal sentence. Although it is possible that a sentence for a term of years could be the functional equivalent of a life sentence, we are not faced with such a situation in this case. The sentence before us, when objectively reviewed, is not demonstrably the equivalent of a life sentence. The illegality of the sentence does not appear clearly on the face of the record.
Id. See also State v. Sweet, 2000 ME 14, ¶ 36 n. 8, 745 A.2d 368, 377 n. 8 (Calkins, J., dissenting) (characterizing the defendants’ sentences as “de facto life sentences“).
[¶ 41] For Apprendi issues to be generated, the sentence would have to be illegal. The sentence is not illegal but fully appropriate within the range of the trial court‘s discretion based on the charged and convicted offense. Thus, I would not hold that the sentence was error.
Notes
The special penalty provision of life imprisonment may be imposed only if the court finds one or more of the following aggravating circumstаnces is in fact present:
A. The person‘s intent to kill was accompanied by premeditation-in-fact;
B. The person, at the time of the crime, intended to cause multiple deaths;
C. The person was previously convicted of criminal homicide or any other crime involving the use of deadly force against a person;
D. The attempted murder was accompanied by torture, sexual assault or other extreme cruelty inflicted upon the victim;
E. The attempted murder was committed in a penal institution by an inmate of that institution against another inmate or against prison personnel;
F. The attempted murder was committed against a law enfоrcement officer while the officer was acting in the performance of that officer‘s duties; or
G. The attempted murder was committed against a hostage.
Under that test, before an appellate court can correct an error not raised at trial, there must be (1) “error,” (2) that is “plain,” and (3) that “affect[s] substantial rights.” If all three conditions are met, an appellate court may then exercise its discretion to notice a forfeited error, but only if (4) the error “‘seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings.‘”
Johnson v. United States, 520 U.S. 461, 466-67, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997) (citations omitted).Count III is the charge of assault on an officer with the use of a dangerous weapon, namely a firearm.
A person commits the crime of assault on an officer with the use of a dangerous weapon, namely, a firearm, if, with the use of a dangerous weapon, namely, a firearm, he intentionally, knowingly, or recklessly causes bodily injury to a law enforcement officer, alleged to be Jeffrey McFarland, while the officer is in the рerformance of his official duties.... The phrase law enforcement officer means any person who by virtue of public employment is vested by law with a duty to maintain public order, to prosecute offenders, to make arrests for crimes ... to perform probation functions or to perform intensive supervision functions.