STATE of Maine v. Sally A. SCHOFIELD.
2005 ME 82
Supreme Judicial Court of Maine.
Argued: March 11, 2003. Reargued: Sept. 23, 2004. Decided: June 29, 2005. Opinion on Rehearing Nov. 16, 2005.
895 A.2d 927
Jed Davis (orally), Aglaia Davis (orally), Jim Mitchell and Jed Davis, P.A., Augusta, for defendant.
Panel: SAUFLEY, C.J., and CLIFFORD, RUDMAN, DANA, ALEXANDER, CALKINS, and LEVY, JJ.
Majority: SAUFLEY, C.J., and DANA, CALKINS, and LEVY, JJ.
Dissent: CLIFFORD, RUDMAN, and ALEXANDER, JJ.
DANA, J.
[¶ 1] In this appeal we consider the United States Supreme Court‘s recent Sixth Amendment jurisprudence as applied to an upper tier sentence—one greater than twenty years of imprisonment—based on a defendant‘s conviction of a Class A crime imposed pursuant to
[¶ 2] Pursuant to
I. FACTUAL AND PROCEDURAL HISTORY
[¶ 3] Schofield worked as an adoption caseworker for the Department of Human Services2 from the early 1990s until November of 2000. In September of 2000, five-year-old Logan Marr and her two-year-old sister were removed from the custody of their mother and subsequently placed in Schofield‘s home in Chelsea. Logan had experienced substantial trauma in her short life and exhibited difficult behavior while in Schofield‘s custody. For example, she had “melt-downs,” went into rages, and screamed uncontrollably. To deal with this behavior, Schofield invoked progressively longer time-out periods, which often involved covering Logan with a blanket, or lying on top of her while bargaining with Logan for the release of one limb at a time. The court found that the relationship between Logan and Schofield became a test of wills.
[¶ 4] On the afternoon of January 31, 2001, Logan‘s behavior so infuriated Schofield that she took Logan to the cluttered basement storage room in her home and placed her in a high chair facing a blank concrete wall. As the court found:
[Schofield] secured Logan to the high chair by wrapping layers of duct tape around Logan‘s torso and behind the back of the chair to prevent her from getting out. To silence her screams she wrapped more duct tape under her chin, over her head and across her mouth. Having already violated the [Department] rules of discipline by physical confinement, Ms. Schofield then left Logan to struggle against her bonds in isolation.
Logan died in that chair of mechanical asphyxia.
[¶ 5] Schofield was indicted for depraved indifference murder,
[¶ 6] At the sentencing hearing, the State presented the testimony of a number
[¶ 7] In imposing its sentence, the court stated on the record its reasons for determining that the nature and seriousness of Schofield‘s crime was sufficient to justify a sentence in excess of twenty years, pursuant to
It became a test of wills between Logan and Sally, and Sally Schofield was determined to win out. She couldn‘t accept the fact that a five-year-old Logan might get the best of her. And yet despite all of her training and all of her experience and knowledge of children in foster care and her awareness of the rules and regulations, she acted recklessly when she restrained Logan in the basement to fight her bonds in solitude and silence.
The situation developed over time, and the conduct leading to the actual death, however, did not happen in a momentary lapse. The defendant‘s conduct in restraining Logan recklessly led to her death. At any time during the process of restraining her she could‘ve closed the door instead of putting the gag around her. She could‘ve turned up the radio if she wanted to drown out the sounds of Logan making noise and yelling. Putting her in restraints was against the rules and regulations of the placement. But even if she had done that, by placing the duct tape around the head and as was disclosed—described as clamping her mouth shut, Logan had no chance.
This case is most serious, and the Court believes that the base sentence in this case falls in the 20 to 25-year range. With the enhancement called for in the death of a child under the age of six, the Court fixes the base sentence at 28 years.
[¶ 8] The court determined that the circumstances of the case did not call for any adjustment from the base sentence. The court suspended eight years of the twenty-eight-year sentence, and ordered Schofield to serve six years of probation following her release from incarceration.
[¶ 9] At the time of Schofield‘s sentencing,
[¶ 10] We granted Schofield leave to appeal her sentence. See
II. DISCUSSION
A. Whether Schofield Waived Her Sixth Amendment Rights
[¶ 11] As a preliminary matter, we are unpersuaded by the State‘s asser-
[¶ 12] Because Schofield, prior to Blakely, did not know that she had a right to have a jury determine, beyond a reasonable doubt, any facts necessary to increase her sentence beyond twenty years, see infra Part B, her waiver extends only to the findings necessary to determine her guilt or innocence to the charge of manslaughter. It does not extend to findings that would serve to double the maximum sentence she faced upon conviction. See State v. Williams, 197 Or.App. 21, 104 P.3d 1151, 1152-53 (2005) (holding that a pre-Blakely waiver of a right to a jury trial did not extend to a right to have a jury determine sentencing facts). A waiver of a right to a jury trial on the elements of a crime does not extend beyond those elements, just as Blakely‘s waiver of his trial rights in pleading guilty did not constitute a waiver of his right to have a jury determine aggravating factors. See Blakely, 542 U.S. at 299-304. Contrary to the State‘s assertion, if we conclude that Schofield has a Sixth Amendment right to a jury trial on the factual findings required to increase her sentence into the upper tier range, that right was not extinguished by her initial jury waiver.
B. Whether an Upper Tier Sentence Determination Must be Made by a Jury
[¶ 13] Schofield was sentenced pursuant to
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 or seriousness of the crime alone or the nature and seriousness of the crime coupled with the serious criminal history of the defendant.
[¶ 14] In Lewis, decided before the addition in 1995 of the second sentence to
[¶ 15] In the wake of Lewis, the Legislature amended the statute to add the second sentence.
[¶ 16] Schofield had no criminal history prior to the death of Logan Marr, and, therefore, the court‘s sentence of twenty-eight years was permissible pursuant to
[¶ 17] After Schofield was sentenced, and while her appeal to this Court was pending, the United States Supreme Court issued its decision in Blakely, at that time the latest in a series of Sixth Amendment decisions originating from the Supreme Court‘s ruling in Apprendi. In Apprendi, the Court vacated a twelve-year sentence imposed for a firearms violation. Id. at 471, 491-92. Although the crime normally was punishable by a maximum sentence of ten years, the New Jersey court enhanced the sentence pursuant to a statute that allowed for increased incarceration if 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] In Blakely, the United States Supreme Court invalidated a sentence imposed pursuant to Washington State‘s sentencing scheme. Blakely, 542 U.S. at 297-99. Blakely entered a plea of guilty to one charge of kidnapping involving domestic violence and use of a firearm. Id. at 297-99. Although Washington law authorized a maximum sentence of ten years for the offense, the state‘s sentencing scheme mandated a maximum sentence of no more than fifty-three months, unless the court determined that specified aggravating factors warranted a longer term. Id. at 299-300. In Blakely‘s case, the court convened a sentencing hearing and determined that Blakely had acted with “deliberate cruelty,” an aggravating factor that allowed an enhanced sentence. Id. at 299-302. The court sentenced Blakely to ninety months in prison. Id. at 299-300.
[¶ 19] The Supreme Court vacated the sentence, finding that Washington‘s sentencing scheme violated the defendant‘s Sixth Amendment right to a jury trial. Id. at 304-06. In doing so, the court made clear that the “statutory maximum” sentence for Apprendi purposes was the “maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.” Id. at 302-04 (emphasis in original). Because Washington‘s sentencing scheme mandated a sentence of not more than fifty-three months based on the facts Blakely admitted to, he had the right to require that any facts allowing an increase in that sentence
[¶ 20] The Supreme Court reaffirmed the basic principle of Blakely in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), its most recent Sixth Amendment decision. In Booker, the Supreme Court determined that the mandatory nature of the federal sentencing guidelines violated the Sixth Amendment because they required the use of different sentencing ranges for a particular crime based on the facts considered by the judge. Id. at 233-34. The Supreme Court reiterated the essential inquiry for Sixth Amendment purposes: whether the sentencing statute requires a factual finding before an enhanced sentence may be imposed. See id. at 231-33. In other words, may the court impose the sentence without first making a specified finding of fact? If the answer is yes, then the sentencing scheme is discretionary and does not violate the Sixth Amendment. If the answer is no, then the defendant‘s right to a jury determination is infringed.
[¶ 21] With respect to Schofield‘s sentencing, the answer to this critical question is no. As we have already noted,
[¶ 22] Our dissenting colleagues suggest that the finding of heinousness required by
[¶ 23] There is an established body of law regarding jury sentencing in this country, much of it created in the wake of the Supreme Court‘s decision in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972). In Furman, a fractured Supreme Court ruled that the death penalty was unconstitutional, in part because it was applied arbitrarily. Id. at 313 (White, J., concurring). In response to this decision, twenty-nine states passed statutes requiring juries to determine whether “aggravating factors” warranting execution exist. See Ring v. Arizona, 536 U.S. 584, 608 n. 6, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002). A number of these states include, as an aggravating factor for the jury to determine, whether the defendant committed the offense in an “especially heinous,” cruel, atrocious, or depraved manner. See
[¶ 24] There is no analytical distinction between determining whether a crime is “especially” heinous and determining whether a crime is “among the most heinous.”6 Both require the decision-maker to compare the offender‘s crime on some kind of scale. The states listed above have entrusted this decision to juries, and their juries have proved capable of determining when an offense is appreciably more heinous than the typical crime.
[¶ 25] If the practice in a number of other jurisdictions does not sufficiently establish that the Legislature would have recognized that jurors are capable of evaluating the heinousness of a crime, it is worth noting that the Supreme Court required the practice in Ring. In Ring, the Supreme Court held that a jury must determine aggravating factors in capital cases. Id. at 609. The defendant in Ring was sentenced pursuant to
[¶ 26] Finally, in states where the determination of the heinousness of a non-capital crime was made by a judge prior to Blakely, courts have recognized that the Sixth Amendment allows defendants to require those findings be proved beyond a reasonable doubt to a jury. For example, Ohio‘s sentencing statute allows maximum sentences for “offenders who committed the worst forms of the offense.”
[¶ 27] The willingness of other jurisdictions to place evaluative determinations in the hands of jurors, and the Supreme Court‘s approval of this practice in Ring, indicates that a jury can be trusted to determine if a particular crime is among the most heinous offenses committed against a person. Although requiring a jury to determine that fact may be less efficient than the Legislature conceived, tradition and judicial efficiency do not trump the Sixth Amendment. “The founders of the American Republic were not prepared to leave [criminal justice] to the State, which is why the jury-trial guarantee was one of the least controversial provisions of the Bill of Rights. It has never been efficient; but it has always been free.” Apprendi, 530 U.S. at 498 (Scalia, J., concurring).
C. Obvious Error
[¶ 28] The State also argues that because Schofield failed to raise any Sixth Amendment objections at her sentencing, our review is limited to obvious error. Generally, if a party fails to raise an objection in the trial court, this Court will review the record only for “obvious errors.” State v. Burdick, 2001 ME 143, ¶ 13, 782 A.2d 319, 324. This Court will vacate a sentence based on obvious error “if the error affects “substantial rights” or results in a substantial injustice.” Id. ¶ 29, 782 A.2d at 328 (quoting In re Joshua B., 2001 ME 115, ¶ 10, 776 A.2d 1240, 1243). When the alleged violation is of a constitutional dimension, we will affirm only if we are convinced beyond a reasonable doubt that the error did not affect the defendant‘s substantive rights. Burdick, 2001 ME 143, ¶ 29, 782 A.2d at 328.
[¶ 29] The jurisdictions that have considered appeals of pre-Blakely sentencings are not in agreement on the proper standard of review to apply. Most courts faced with an unpreserved Blakely or Booker challenge to sentencing have applied obvious or plain error. See United States v. Hughes, 401 F.3d 540, 547 (4th Cir.2005), reh‘g denied, 2005 U.S.App. Lexis 5834 (4th Cir. April 8, 2005); United States v. Antonakopoulos, 399 F.3d 68, 75 (1st Cir.2005); United States v. Crosby, 397 F.3d 103, 119 (2d Cir.2005); State v. Gomez, No. M2002-01209-SC-R11-CD, 2005 WL 1616186, 2005 Tenn. Lexis 350, at *46 (Tenn. April 15, 2005), reh‘g denied, 2005 Tenn. Lexis 473 (Tenn. May 18, 2005).
[¶ 30] Several decades ago we faced an issue similar to the one at bar. In State v. Wheeler, 252 A.2d 455 (Me.1969), we had to determine whether the criminal defendant was entitled to raise the deprivation of his right to a jury trial on appeal when he had not raised it in the trial court. Id. at 458-59. After Wheeler‘s jury trial for assault, but while his appeal was pending, we decided State v. Ferris, 249 A.2d 523 (Me.1969), in which we struck down as unconstitutional the procedure that allowed a defendant who had been convicted of misdemeanor assault to be sentenced as a felon if the court made a finding that the assault was “of a high and aggravated nature.” Id. at 528. We vacated Wheeler‘s conviction because he had been de-
Wheeler‘s conviction was the product of a type of procedure foreign to due process and governmental fair play with probability of resulting injustice to be frowned upon by a good and just order of criminal jurisprudence, the ends of justice demand that we grant appellate relief and set aside the conviction below.
Id. at 459 (citation omitted).8
[¶ 31] We also vacated the conviction in Ferris, in which there is no discussion of preservation of error, apparently because Ferris was tried before the Duncan decision, whereas the court in Wheeler appears to have considered the preservation issue because Wheeler‘s trial was after Duncan. It does not appear that Ferris raised the jury issue in the trial court. Ferris had been charged with manslaughter, but the jury convicted him of assault. Ferris, 249 A.2d at 524. Based upon the evidence at trial, the presiding judge found that the assault was “of a high and aggravated nature” and sentenced Ferris accordingly. Id. The testimony at trial was that the defendant struck the victim in the face several times. Id. Several days later, the victim, who was bruised on his face, neck, and chest, was diagnosed with a blood clot in his head, and he died thereafter. Id. at 524-25.
[¶ 32] Ferris and Wheeler stand for the proposition that when a criminal defendant has been deprived of a right to have a jury determine facts that enhance or raise the sentencing range available to the court, and the procedure clarifying that right is recently announced or clarified, we will recognize the error even if not raised in the trial court.
[¶ 33] More recently, we held that a violation of the jury determination required by Apprendi, was not structural error requiring reversal. Burdick, 2001 ME 143, ¶ 28, 782 A.2d at 328. In Burdick, we considered the appeal of a defendant convicted of attempted murder after he fired two gunshots into the chest of a police officer. Id. ¶ 2, 782 A.2d at 321. At his sentencing, the trial judge imposed a lengthy sentence consistent with the provisions of
[¶ 34] In State v. Hodgkins, 2003 ME 57, 822 A.2d 1187, we found that an Apprendi violation was obvious error. In Hodgkins, 2003 ME 57, ¶ 11, 822 A.2d at 1192-93, we vacated a sentence imposing two years of probation because the defendant‘s conviction for assault related to domestic violence. Id. We noted that the altercation‘s domestic nature was not proved beyond a reasonable doubt. Id. In our unanimous opinion, the denial of the defendant‘s Sixth Amendment right to a determination beyond a reasonable doubt “represented an ‘obvious error’ affecting substantial rights.” Id.
[¶ 35] The impairment of Schofield‘s rights at her sentencing is no less substantial than that of the defendant in Hodgkins. Both defendants were denied the right to have a significant fact determined beyond a reasonable doubt. Unlike the situation in Burdick, we cannot determine from this record, beyond a reasonable doubt, whether a jury would have determined that Schofield‘s crime was among the most heinous crimes committed against a person. Therefore we must conclude that the sentencing process constituted obvious error affecting her substantial rights.
[¶ 36] Because we find that the imposition of a sentence exceeding twenty years was based upon a judge‘s determination that the crime was heinous, and that this sentencing constitutes obvious error, we vacate Schofield‘s sentence. We next explore the procedures by which Schofield may be resentenced in the Superior Court.
III. REMEDY
[¶ 37] We have concluded that Schofield, when she waived her jury trial on the merits, did not waive her then unknown jury trial right with respect to sentencing facts. There is presently no procedure for empaneling a jury to decide sentencing facts.
[¶ 38] Although state law does not specifically provide for a jury trial on sentencing facts, our recognition of such a procedure is well within our inherent judicial power to “safeguard and protect within the borders of this State the fundamental principles of government vouchsafed to us by the State and Federal Constitutions.” Morris v. Goss, 147 Me. 89, 106, 83 A.2d 556, 565 (1951). When, in the past, we have concluded that a jury trial was required by the Maine Constitution and the Legislature had not provided for one, we adjusted the procedures to allow for a jury trial. See N. Sch. Congregate Hous. v. Merrithew, 558 A.2d 1189, 1196-97 (Me. 1989) (title dispute in a forcible entry and detainer action); Ela v. Pelletier, 495 A.2d 1225, 1228-29 (Me.1985) (small claims proceeding). Finally, in our capacity as the Supreme Judicial Court, the Legislature has required us to review criminal sentences including the “manner in which the sentence was imposed.”
[¶ 39] In the other states where courts that have struck down part of their sentencing schemes in light of Blakely, there is disagreement as to the proper remedy.
[¶ 40] On remand, Schofield may be sentenced constitutionally within the zero- to twenty-year range without the need for further fact-finding regarding heinousness. If the State recommends a sentence in the upper range, or if the court is inclined to impose such a sentence even in the absence of a recommendation, Schofield must be provided with the opportunity for a sentencing trial before the fact-finder of her choice (i.e., judge or jury). If she selects a jury, at the beginning of the proceeding, the trial judge should instruct the jury as follows:
You are being asked to make a decision today that will assist me in sentencing Ms. Schofield who has been convicted of the Class A offense of manslaughter.
Under certain circumstances a judge may sentence a person convicted of a Class A crime to a sentence in excess of twenty years. One of those circumstances is when the offense that was committed by the person is “among the most heinous crimes committed against a person.”
The parties will provide information and testimony from which you can evaluate the offense committed by Ms. Schofield and determine whether it is among the most heinous committed against a person.
[¶ 41] After informing the jury, as above, and after evidence, information and argument are presented to the jury, the jury should be instructed to answer the following question unanimously:
Do you find beyond a reasonable doubt that the offense committed by Ms. Schofield is among the most heinous offenses committed against a person?
The court will then use the jury‘s determination on that fact to inform the re-sentencing, but will not have the authority to impose a sentence beyond twenty years unless the jury answers yes.
The entry is:
Sentence vacated. Remanded to the Superior Court for proceedings consistent with this opinion.
CLIFFORD, J., with whom RUDMAN, and ALEXANDER, JJ., join, dissenting.
[¶ 42] I respectfully dissent. In my view the discretionary determinations made by our sentencing judges that can result in a sentence in excess of twenty years for a Class A offense do not implicate Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000); Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004); or United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). I would conclude that the sentence of Sally A. Schofield does not violate the Sixth Amendment to the United States Constitution.
[¶ 43] We have long held that facts incident to a crime that may enhance a penal-
[¶ 44] The sentence enhancing factors found by the sentencing court in Apprendi, 530 U.S. at 468-69 (finding that the crime was a hate crime, meaning that it was committed “with a purpose to intimidate ... because of race, color, gender, handicap, religion, sexual orientation, or ethnicity“), and by the sentencing court in Blakely, 542 U.S. at 302-04 (finding that the act was committed with “‘deliberate cruelty’ “), are discrete objective factual findings. See State v. Lett, 2005 Ohio 2665, ¶ 21, 161 Ohio App.3d 274, 829 N.E.2d 1281 (2005) (observing that objective findings such as those found in Blakely and Booker could easily have been charged as elements of the offense and are readily amenable to disposition at trial). If such findings were the kind that our statute required to be made to justify a sentence for Schofield in excess of twenty years, I would agree with the Court that those findings would have to be made beyond a reasonable doubt. Indeed, in my view our existing jurisprudence would require that they be pleaded and proved beyond a reasonable doubt.
[¶ 45] The Supreme Court‘s most recent decision on this issue offers little clarity as to the issue raised by the sentence of Schofield. In Booker, the Court concluded that the federal sentencing guidelines violate the Sixth Amendment because those guidelines applicable to the federal indeterminate sentencing scheme are mandatory and require the sentencing court to impose higher sentences based on findings of fact made by a judge, and not a jury. 543 U.S. at 233-34. Maine has determinate sentencing and does not have such sentencing guidelines.
[¶ 46] At the time of Schofield‘s sentence, our law provided that the maximum penalty for conviction of a Class A crime was forty years.
[¶ 47] Although
[¶ 49] Although the Court correctly notes that death penalty sentencing criteria include heinousness as a factor that has been considered by juries, most of the determining factors that must be considered in such cases are more traditional discrete findings of fact appropriate for juries to make.10 This is not so under
[¶ 50] The rule enunciated in Blakely is not intended to infringe on judicial fact-finding traditionally employed in the exercise of judicial discretion in imposing a sentence. In Apprendi, for example, the sentence was enhanced because the court made a discrete factual finding that the crime was racially motivated, a finding incident to the crime. 530 U.S. at 471. Similarly, in Blakely, the court found that the defendant acted with ” ‘deliberate cruelty,’ ” Blakely, 542 U.S. at 302-04, a discrete factual determination that can be, and has been, traditionally considered by a jury. Thus, what is protected is the jury‘s function to find facts incident to the crime that may affect the penalty imposed. Id. at 325-27.
[¶ 51] As noted above, facts incident to a crime that may enhance a penalty for that
[¶ 52] Because the determination of the seriousness and the heinousness of the crime in comparison to all the ways that the crime can be committed have always been, and should continue to be, for a judge and not for a jury to assess, I would conclude that the provisions of
ORDER OF RECONSIDERATION
PER CURIAM.
The State‘s Motion for Reconsideration is granted insofar as it requests reconsideration of the language in State v. Schofield, 2005 ME 82, ¶ 40, 895 A.2d 927, 938, relied on in State v. Averill, 2005 ME 83, ¶ 10, 887 A.2d 519, 522. All other portions of the State‘s Motion for Reconsideration were previously denied by Order dated August 16, 2005.
Upon reconsideration, the Court amends paragraph 40 of Schofield opinion to reads as follows:
[¶ 40] On remand, Schofield may be sentenced constitutionally within the zero- to twenty-year range without the need for further fact-finding regarding heinousness. If the State recommends a sentence in the upper range, or if the court is inclined to impose such a sentence even in the absence of a recommendation, Schofield must be provided with the opportunity for a sentencing trial before the fact-finder of her choice (i.e., judge or jury). If she selects a jury, at the beginning of the proceeding, the trial judge should instruct the jury as follows:
You are being asked to make a decision today that will assist me in sentencing Ms. Schofield who has been convicted of the Class A offense of manslaughter.
In imposing sentences, judges are required to look at a number of circumstances concerning the defendant, the victim, and the commission of the crime. One of the circumstances that a jury is required to determine is whether the offense committed by the defendant is among the most heinous crimes committed against a person.
The parties will provide information and testimony from which you can evaluate the offense committed by Ms. Schofield and determine whether it is among the most heinous committed against a person.
ALEXANDER, J., statement of noncurrence.
Because I do not believe that the original sentencing was affected by any error of law or that any jury trial is required for sentencing, I do not join this amendment order.