STATE of Maine v. Roger G. KEENE
2007 ME 84
Supreme Judicial Court of Maine
July 10, 2007
Argued: Nov. 29, 2006.
c. Arrearages and economic misconduct.
[¶ 27] Rhonda‘s contentions as to arrearages she claims are owed to her by Alan, and that Alan has committed economic misconduct, are unpersuasive.
C. Equity of Division of Marital Property and Debt
[¶ 28] Finally, both parties contend that the District Court‘s division of property and allocation of debt create a substantial inequity. “We review the division of marital property and debt for an abuse of discretion.” Bonville, 2006 ME 3, ¶ 9, 890 A.2d at 266. When viewed in the aggregate, the divorce judgment has not resulted in a failure of equity.
The entry is:
Judgment affirmed.
George A. Hess, Esq. (orally), The Hess Law Firm, Auburn, for defendant.
Panel: SAUFLEY, C.J., and CLIFFORD, ALEXANDER, CALKINS, LEVY, and SILVER, JJ.*
Majority: SAUFLEY, C.J., and CLIFFORD, ALEXANDER, LEVY, and SILVER, JJ.
Dissent: CALKINS, J.
SAUFLEY, C.J.
[¶ 1] The question before us is this: Is a defendant‘s Sixth Amendment right to trial by jury, as articulated by the United States Supreme Court in Apprendi v. New Jersey, 530 U.S. 466 (2000), and its progeny, violated by the imposition of consecutive sentences for separate crimes, resulting from judicial rather than jury fact-finding? We conclude that no constitutional violation occurs as long as the sentence for each individual crime does not exceed the statutory maximum imposed by the Legislature for that crime, even when the aggregate sentence exceeds the maximum sentence for any single crime.
[¶ 2] Roger G. Keene raises this issue in his appeal from a judgment of conviction entered in the Superior Court (Androscoggin County, Warren, J.) for manslaughter (Class A),
I. BACKGROUND
[¶ 3] Viewing the evidence in the light most favorable to the State, see State v. Bouchard, 2005 ME 106, ¶ 10, 881 A.2d 1130, 1134, the following facts are sup-
[¶ 4] Later that night, Keene met the victim outside in the alley behind the bar, where Keene‘s pick-up truck was parked. Keene and the victim, who was significantly smaller than Keene, struggled in the alley, ending with Keene punching the victim in the face and shoving her into a brick wall, rendering her semi-conscious. Keene then placed the victim in the back of his truck, hidden by a tonneau cover, and he began driving his truck toward his home in Sabattus.3 As Keene was driving, the victim regained consciousness and banged on the truck‘s rear windshield. Keene slammed on the brakes, put the truck in reverse, and then reaccelerated forward, and the victim fell out of the truck and onto the road.4 Keene left her on the road, later returning as a bystander when an ambulance arrived.
[¶ 5] The victim was found unconscious, lying in the middle of the road on Route 126 between Lewiston and Sabattus. She was lying on her back with her arms at her sides, with her body perpendicular to the road and perfectly centered in the driving lane, and with her clothes neat and in good condition.5 When placed in an ambulance, the victim was able to state that she had been beaten and thrown from a vehicle. The victim was brought to Central Maine Medical Center and underwent surgery. She never regained consciousness and died nine days later. Her death was attributed to a rear-head injury acquired either from being slammed against the brick wall or from falling out of Keene‘s truck.
[¶ 6] Keene was indicted on December 2, 2003, for Class A manslaughter,
[¶ 7] At the time of Keene‘s crimes, the statutory maximum sentence for any of the three Class A crimes individually, established through our case law, was twenty years, absent a finding that the crime was among “the most heinous and violent crimes committed against a person,” in which case a sentence of up to forty years was justified. State v. Schofield, 2005 ME 82, ¶ 19, 895 A.2d 927, 930; State v. Lewis, 590 A.2d 149, 151 (Me. 1991); see
II. DISCUSSION
[¶ 8] Keene argues that because section 1256(2)(D) allowed the court to impose consecutive sentences based on the seriousness of his criminal conduct without a jury finding that the conduct warranted consecutive sentences, the statute is unconstitutional as applied under the Sixth Amendment, citing Blakely v. Washington, 542 U.S. 296 (2004), Apprendi, and Schofield.
[¶ 9] The line of cases cited by Keene require that if the sentence for a single crime is elevated beyond its statutory maximum based on factual findings other than a prior conviction, then, in order for the sentence to be consistent with the Sixth Amendment, the defendant must have the right to have the facts justifying the elevated sentence found by the jury beyond a reasonable doubt. United States v. Booker, 543 U.S. 220, 244 (2005); Blakely, 542 U.S. at 303-05.
[¶ 10] Keene, in effect, argues that consecutive sentences raise the same Sixth Amendment concerns as does an individual sentence that has been elevated beyond its statutory maximum. We have not yet addressed whether the findings necessary to support the imposition of consecutive sentences must be made beyond a reasonable doubt by a jury, or judge if the jury is waived, before consecutive sentences may be imposed.
A. Standard of Review
[¶ 11] Keene failed to raise his constitutional argument before the sentencing court, and thus, our review of the consecutive sentences is limited to obvious error. See Schofield, 2005 ME 82, ¶ 28, 895 A.2d at 935. An obvious error is one that affects substantial rights or results in substantial injustice. Id. In cases where a criminal defendant has allegedly been deprived of the right to have a jury determine facts that could potentially elevate the sentencing range available to the court, and where the procedures clarifying that right are in question or have been recently clarified, we will address the alleged error, even when it was not raised before the sentencing court. See id. ¶ 32, 895 A.2d at 936.
B. The Sentencing Statutes
[¶ 12] At the time of Keene‘s crimes, both of which were Class A, the sentence for Class A crimes was as follows:
In the case of a Class A crime, the court shall set a definite period not to exceed 40 years. The court may consider a serious criminal history of the defendant and impose a maximum period of incarceration in excess of 20 years based on either the nature and seriousness of the crime alone or on the nature and seriousness of the crime coupled with the serious criminal history of the defendant.
[¶ 13] When determining how the two sentences would be served, the court was guided by
[T]he court shall state in the sentence of imprisonment whether a sentence shall be served concurrently with or consecutively to any other sentence previously imposed or to another sentence imposed on the same date. The sentences 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;
B. That the defendant was under a previously imposed suspended or unsuspended sentence and was on probation, under incarceration or on a
release program at the time the person committed a subsequent offense; C. That the defendant had been released on bail when that person committed a subsequent offense, either pending trial of a previously committed offense or pending the appeal of previous conviction; or
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.
[¶ 14] Applying these provisions, the court imposed consecutive sentences based on subsection (B) because Keene was on probation at the time of his criminal acts, and subsection (D) because the court determined that Keene‘s criminal conduct and criminal record were serious enough to consider a sentence in excess of the maximum twenty years available for either crime.
[¶ 15] Because the court made a factual determination in imposing consecutive sentences, we must address the question Keene has presented: whether the court‘s imposition of consecutive sentences of twenty and sixteen years, resulting in a total incarceration of thirty-six years,8 carries with it the constitutional infirmity identified in Apprendi and Blakely, which involved single sentences that had been elevated beyond their statutory maximums. We begin with a review of Supreme Court jurisprudence.
C. Prior United States Supreme Court Jurisprudence
[¶ 16] The Sixth Amendment to the United States Constitution guarantees a criminal defendant the right to a trial by jury.
[¶ 17] The Supreme Court‘s Sixth Amendment jurisprudence was significantly augmented in the wake of Apprendi, which extended a defendant‘s right to a trial by jury to the fact-finding used to make enhanced sentencing determinations. In Apprendi, the Supreme Court vacated a twelve-year sentence imposed for a firearms violation. 530 U.S. at 471, 491-92. The maximum sentence for the violation was ten years, but the sentencing court enhanced the sentence pursuant to a “hate crime” statute, which allowed for an increased sentence of up to twenty years if the court found by a preponderance of the evidence that the crime was committed “with a purpose to intimidate . . . because of race, color, gender, handicap, religion, sexual orientation or ethnicity.” Id. at 468-69 (quoting
[¶ 18] The Court refined the meaning of the term “statutory maximum” in Blakely, where it reviewed a sentence imposed pursuant to a sentencing scheme that authorized a maximum sentence of ten years, but
[¶ 19] The Supreme Court reaffirmed this basic principle in Booker, where the Court determined that the federal sentencing guidelines violated the Sixth Amendment because they imposed mandatory sentencing ranges based on factual findings made by the sentencing court. Booker, 543 U.S. at 233-35, 237-38. In Booker, the defendant was convicted of possession with intent to distribute more than fifty grams of crack cocaine, which carried a “base” sentence of between 210 and 262 months. Id. at 227. The court in a post-trial hearing, however, determined by a preponderance of the evidence that the defendant had been in possession of an additional 566 grams of crack and was guilty of obstruction of justice. Id. Consequently, the court elevated the sentence to thirty years. Id. The Supreme Court held that the sentencing guidelines were unconstitutional because they required the court to impose an enhanced sentence based on factual determinations not made by the jury beyond a reasonable doubt. Id. at 243-45. Noting that it had “never doubted the authority of a judge to exercise broad discretion in imposing a sentence within a statutory range,” in which case “the defendant has no right to a jury determination of the facts that the judge deems relevant,” id. at 233, the Supreme Court cured the defect in the sentencing guidelines by severing the provisions that made the guidelines mandatory. Id. at 245-46.
[¶ 20] We applied the holdings of Apprendi, Blakely, and Booker in Schofield. Schofield was sentenced to an elevated term of twenty-eight years pursuant to
[¶ 21] More recently, the United States Supreme Court examined the reach of the Apprendi line of cases in Cunningham v. California, 549 U.S. 270 (2007), where it held that California‘s determinate sentencing law violated the Sixth Amendment because it allowed the sentencing court to impose an elevated sentence based on aggravating facts that it found to exist by a preponderance of the evidence. Id. at 274, 288-89. The court was directed
D. Application of Apprendi to Consecutive Sentences
[¶ 22] The United States Supreme Court has yet to reach the question presented here: whether the rule of Apprendi applies to the imposition of consecutive sentences.9 We find it significant, however, that the Supreme Court explicitly narrowed the issue in Apprendi so as to render the issue of consecutive sentences irrelevant to its analysis:
It is appropriate to begin by explaining why certain aspects of the case are not relevant to the narrow issue that we must resolve. First, the State has argued that even without the trial judge‘s finding of racial bias, the judge could have imposed consecutive sentences on counts 3 and 18 that would have produced the 12-year term of imprisonment that Apprendi received; Apprendi‘s actual sentence was thus within the range authorized by statute for the three offenses to which he pleaded guilty. The
constitutional question, however, is whether the 12-year sentence imposed on count 18 was permissible, given that it was above the 10-year maximum for the offense charged in that count. The finding is legally significant because it increased—indeed, it doubled—the maximum range within which the judge could exercise his discretion, converting what otherwise was a maximum 10-year sentence on that count into a minimum sentence. The sentences on counts 3 and 22 have no more relevance to our disposition than the dismissal of the remaining 18 counts.
530 U.S. at 474 (citations omitted). Thus, it appears that the Supreme Court did not intend its holding in Apprendi to be extended outside the narrow issue before it: whether a court has impermissibly exceeded the statutory maximum sentence for a particular crime based on factual determinations not submitted to a jury and proved beyond a reasonable doubt. See United States v. Chorin, 322 F.3d 274, 279 (3d Cir. 2003); United States v. McWaine, 290 F.3d 269, 275-76 (5th Cir. 2002); United States v. White, 240 F.3d 127, 135 (2d Cir. 2001). Furthermore, because the Supreme Court did not address the issue of consecutive sentences in Blakely or Booker, these cases did nothing to expand the rule of Apprendi, which addressed only sentences for individual crimes.
[¶ 23] The federal circuit courts that have addressed the issue before us agree that the holdings in the Apprendi line of cases do not apply to consecutive sentences. See, e.g., United States v. Davis, 329 F.3d 1250, 1254 (11th Cir. 2003); Chorin, 322 F.3d at 279; United States v. Noble, 299 F.3d 907, 909-10 (7th Cir. 2002); Saccoccia v. United States, 42 Fed. Appx. 476, 482 (1st Cir. 2002); United States v. Diaz, 296 F.3d 680, 684-85 (8th Cir. 2002); McWaine, 290 F.3d at 275-76; United States v. Campbell, 279 F.3d 392, 401-02 (6th Cir. 2002); United States v. Buckland, 289 F.3d 558, 570-72 (9th Cir. 2002); White, 240 F.3d at 135; cf. United States v. Jackson, 60 Fed. Appx. 726, 728 (10th Cir. 2003); United States v. Angle, 254 F.3d 514, 518-19 (4th Cir. 2001). Nor does it appear that the federal circuit courts view Blakely or Booker as having changed the analysis of how consecutive sentences are ordinarily viewed under Apprendi, as evidenced by post-Booker decisions. See, e.g., United States v. Dees, 467 F.3d 847, 854 (3rd Cir. 2006); Abrams v. United States, 194 Fed. Appx. 718, 722 (11th Cir. 2006); United States v. Benson, 186 Fed. Appx. 648, 655 (6th Cir. 2006); United States v. Woods, 440 F.3d 255, 260-61 (5th Cir. 2006); see also United States v. Fifield, 432 F.3d 1056, 1066-67 (9th Cir. 2005); United States v. Carr, No. 02-0106, 2006 WL 401818, at *5 (D.D.C. Feb. 21, 2006).
[¶ 24] The majority of other state courts that have addressed this question are in agreement that Apprendi and its successors are limited to sentences for individual crimes, and Apprendi does not apply to judicial determinations regarding the sequence in which discreet sentences for multiple crimes are to be served. See, e.g., Vandergriff v. State, 125 P.3d 360, 363 (Alaska Ct. App. 2005); Hall v. State, 823 So. 2d 757, 764 (Fla. 2002); State v. Kahapea, 111 Hawaiʻi 267, 141 P.3d 440, 452-53 (2006); State v. Jacobs, 644 N.W.2d 695, 699 (Iowa 2001); State v. Bramlett, 273 Kan. 67, 41 P.3d 796, 797-98 (2002); Commonwealth v. Lepper, 60 Mass. App. Ct. 36, 798 N.E.2d 1030, 1040 (2003); State v. Higgins, 149 N.H. 290, 821 A.2d 964, 975-76 (2003); cf. People v. Murray, 5 Misc. 3d 636, 785 N.Y.S.2d 675, 677 (N.Y. Sup. Ct. 2004), aff‘d, 37 A.D.3d 247, 829 N.Y.S.2d 106 (N.Y. App. Div. 2007).
[¶ 25] One state in disagreement is Ohio, which distinguished its own consecutive sentencing law as unique because the law mandated that the court make certain findings of fact before it could depart from imposing concurrent sentences.10 State v. Foster, 109 Ohio St. 3d 1, 845 N.E.2d 470, 491 (2006). We are not persuaded by the Ohio court‘s analysis. See State v. Tanner, 210 Or. App. 70, 150 P.3d 31, 37 n. 6 (2006) (noting that several jurisdictions have held that Apprendi does not apply to sentencing statutes that require factual findings before a court may impose consecutive sentences). The threshold question is whether the court has impermissibly “increase[d] the penalty for a crime beyond the prescribed statutory maximum” by using factual determinations not found by the jury beyond a reasonable doubt, other than from a prior conviction, a guilty plea, jury verdict, or admission by the defendant. Apprendi, 530 U.S. at 490; see Booker, 543 U.S. at 244. The court‘s decision to require that separate sentences be served consecutively in no way increases the penalties for the individual crimes.
[¶ 26] Specifically addressing Maine law, we find no basis for applying Apprendi and its progeny to the manner in which consecutive sentences were imposed pursuant to
E. Review of the Sentence Imposed on Keene
[¶ 27] The statutory maximum for each of Keene‘s offenses, pursuant to Schofield, was twenty years. Keene was not sentenced to more than twenty years for either crime. He received a cumulative term of thirty-six years, less than the forty-year aggregate of the two maximum possible sentences. The court imposed the consecutive terms based both on Keene‘s probationary status, which Keene does not dispute, and the serious nature of his crime. Although the question of whether a crime was particularly serious is one of fact, Schofield, 2005 ME 82, ¶ 22, 895 A.2d at 933, Apprendi does not bar the court from making a factual finding to determine whether consecutive sentences should be imposed.
[¶ 28] In sum, we conclude that the Sixth Amendment right to have a jury determine whether the State has proved each element of a crime necessary to expose the defendant to the sentence imposed for that crime is not implicated by judicial determinations regarding the sequence by which multiple sentences are to be served, provided that each individual sentence falls within its statutory maximum. “Judicial factfinding does not, on its own, violate the Sixth Amendment, even when that factfinding is the basis for enhancing a defendant‘s sentence.” Fifield, 432 F.3d at 1066.
[¶ 29] Because Apprendi does not render the imposition of Keene‘s consecutive sentences unconstitutional, we affirm the court‘s sentence pursuant to
The entry is:
Judgment and sentence affirmed.
CALKINS, J., dissenting.
[¶ 30] I respectfully dissent. In my view, the trial court was required to impose concurrent sentences on Keene unless a jury found, by proof beyond a reasonable doubt, one of the required elements set forth in
[¶ 31] Because this additional fact-finding is required under section 1256(2) before a defendant can be sentenced to a longer period of incarceration than would be permitted for concurrent sentences, the recent Sixth Amendment jurisprudence of the United States Supreme Court and this Court mandates that those additional facts be proved beyond a reasonable doubt and before a jury, unless waived by the defendant. See Blakely v. Washington, 542 U.S. 296, 303-04 (2004); Apprendi v. New Jersey, 530 U.S. 466, 490 (2000); State v. Schofield, 2005 ME 82, ¶ 20-21, 895 A.2d 927, 933.
[¶ 32] Section 1256(2) implicates Apprendi, Blakely, and Schofield because of its presumption that sentences are concurrent unless additional facts are found. Section 1256(2) means that the statutory maximum sentence, for Apprendi, Blakely, and Schofield purposes, is the maximum sentence that could be imposed on the individual convictions. Keene was convicted of two offenses that are classified as Class A offenses, and at the time the offenses carried maximum sentences of twenty years, unless a jury made the additional finding that those offenses were “most heinous and violent.” See Schofield, 2005 ME 82, ¶ 9, 895 A.2d at 930. As the Court notes, the State did not plead or prove “most heinous and violent,” and therefore, twenty years was the maximum sentence that could be imposed on each offense. The impact of section 1256(2) is that twenty years is the maximum total for the two offenses because the sentences must be imposed as concurrent sentences unless an additional element in section 1256(2) is proved. Keene was sentenced to a total of thirty-six years, and, therefore, his sentence exceeds by sixteen years the maximum sentence that section 1256(2) allows without additional fact-finding.
[¶ 33] Because it is the presumption of concurrent sentences in section 1256(2) that implicates the Apprendi line of cases, many of the cases cited by the Court are not on point. Most of the jurisdictions cited do not have a sentencing scheme providing that sentences are concurrent and allowing consecutive sentences only when certain additional facts are found. The federal Sentencing Guidelines do not create a presumption of concurrent sentences. See United States v. Chorin, 322 F.3d 274, 278 (3d Cir. 2003) (“[T]he Supreme Court has recognized that there is a presumption that, when Congress creates two distinct offenses, it intends to permit cumulative sentences.“);
[¶ 34] Similarly, many of the state cases upholding consecutive sentences that were challenged as violating Apprendi involve sentencing statutes that do not mandate that the sentences be concurrent unless certain facts are found. See, e.g., State v. Jacobs, 644 N.W.2d 695, 699 (Iowa 2001); State v. Bramlett, 273 Kan. 67, 41 P.3d 796, 797-98 (2002). Some courts, however, conclude that Apprendi is not violated
[¶ 35] At least two jurisdictions have held that consecutive sentences violate the Sixth Amendment because additional facts have to be found before the sentences can be imposed to run consecutively. The Ohio statute at issue in State v. Foster, 109 Ohio St. 3d 1, 845 N.E.2d 470, 490-91 (2006), is similar to our statute in that a court must make factual determinations before imposing consecutive sentences. Likewise, the Washington statute for nonserious violent felonies requires that the sentences be concurrent unless the court finds additional facts, and the Washington Supreme Court thus held that Blakely applies to consecutive sentences. In re VanDelft, 158 Wash. 2d 731, 147 P.3d 573, 578-79 (2006). In my view, the Ohio and Washington courts ruled correctly. I would join this minority view.
[¶ 36] When, as here, a court is considering the imposition of consecutive sentences based in whole or in part on the factor of section 1256(2)(D) regarding whether the seriousness of the offense or the criminal record warrants a sentence in excess of the maximum, the defendant must be given the opportunity to have that fact decided by a jury. Furthermore, the fact must be proved beyond a reasonable doubt. Therefore, I would vacate the sentences and remand for resentencing.