Pursuant to Maine’s recently enacted procedure for appellate review of sentences (15 M.R.S.A. §§ 2151-2157 (Supp. 1989)), defendant Joseph Tellier appeals from sentences imposed by the Superior Court (York County,
Cole, J.)
on charges of kidnapping, unlawful sexual cоntact, and aggravated assault. Defendant contends on appeal that the sentences violate the constraints on consecutive sentencing set forth in 17-A M.R.S.A. § 1256(3)(B) (1983) and are excessive in length.
1
We conclude
The facts developed at the sentencing hearing are as follows: In the late afternoon, defendant forced his neighbor’s ten-year-old daughter into his car under the pretext of needing her help in selecting flowers for his wife’s birthday. He drove the child approximately twenty-one miles from Saco to Limerick. There he parked his car off a deserted dead-end road and threatened her with physical harm if she did not engage in certain sexual acts. He removed her clothes, had sexual contact with her, and forced her to have sexual contaсt with him. He then asked her not to tell anyone what had happened. When she refused, he beat and choked her until she became unconscious and then left at some point. She woke up in the middle of the night, cold and frightened, then fell back asleep. When she awоke again at dawn, she managed to find her way back to the main road and summon help. Photographs taken at the time show extensive bruises, lacerations, and apparent burns to her face, arms, and neck.
Defendant was originally indicted for kidnapping, assault, unlawful sexual contact, aggravated assault, and attempted murder. Following a change of appointed counsel on the eve of trial, defendant entered guilty pleas to kidnapping (17-A M.R. S.A. § 301 (1983)), unlawful sexual contact (17-A M.R.S.A. § 255 (1983 & Supp.1989)), and aggravated assault (17-A M.R.S.A. § 208 (1983)). Defendant also admitted that the commission of these offenses violated the conditions of his probation from an earlier theft conviction. The Superior Court conducted a combined Rule 11 and sentencing hearing and, as requested by the State, imposed the maximum sentenсe of twenty years for kidnapping, five years for unlawful sexual contact, and ten years, with all but four years suspended and six years of probation, for aggravated assault. The court ordered that the sentences be served consecutively and imposed a сoncurrent two-year sentence for defendant’s probation violation. After sentencing, the State dismissed the assault and attempted murder counts. Defendant now appeals.
I.
Although the imposition of consecutive sentences is within the discretion of the sentеncing judge,
State v. Bunker,
... 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 un-suspended sentence and was on probation, under incarceration or on a release program at the time he committed a subsequent offense; ... 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.
Id.
at § 1256(2)(A), (B) & (D). In the present case, the court appropriately determined that the foregoing criteria for consecutive sentencing wеre satisfied. The court failed to consider, however, the express prohibition against sentencing a defendant “to consecutive terms for crimes arising out of the same criminal episode when ... [o]ne crime consists only of a conspiracy, attempt, solicitation or other
Defendant now argues that he kidnapped the child merely to facilitate the commission of unlawful sexual contact and aggravated assault. In
State v. Bunker,
we vacated сonsecutive sentences for rape and kidnapping, concluding that the only purpose for the kidnapping “was to facilitate the commission of the sex offenses.”
State v. Bunker,
We applied the
“Bunker
purpose test” in
State v. Winchenbach,
Two recent opinions illustrate further the distinction that is critical in the present case. In
State v. Prentiss,
The kidnapping count of the indictment in the present case alleges that defendant restrained the child for the purpose of inflicting bodily injury or subjecting her to unlawful sexual contact. During his remarks at sentencing, the presiding justice stated: “One would have a hard time concluding that you had not formed an intent to seriously hurt or kill this child when you abducted her in Saco.” Based on the facts revealed at sentencing and the court’s remarks, defendant argues that the purpose of the kidnapping was to subject thе child to unlawful sexual contact and to knowingly expose her to serious bodily injury. 2 Accordingly, he argues that neither sentence can be consecutive to the kidnapping sentence. Defendant is correct in part, but only with regard to the sentence for unlawful sexual contact.
Based on the facts revealed at sentencing and defendant’s guilty plea to the kidnapping charge as it appears in the indictment, it is apparent that defendant re
II.
Defendant also argues that his sentenсes are “excessive given the totality of the circumstances.” Because of the manner in which the sentences were imposed, we are unable to review the propriety of the sentences. Although the record contains no express statement, it appears that the sentences were recommended by both parties in return for the dismissal of the remaining charges. The fact that such a procedure is authorized by M.R.Crim.P. 11(a) does not dispense with the necessity for insuring that the sentencing record reflects sufficient information to demonstrate the basis for the sentence and to permit appellate review. There are greater public interests at stake in sentencing than those of the prosecutor and the defendant. All sentences, even those agreed upon by the parties, are subject to appellate review and must be demonstrably appropriate to the circumstances of the case. Here, the sentencing justice listened to the prosecutor’s description of the offenses and requests for sеntences. After inquiring if defense counsel and defendant understood that the prosecutor was going to make such a recommendation and “anticipated this was going to be the sentence,” the court imposed the recommended sentences with no further inquiry. The sоle basis stated by the court for the sentences imposed was the serious nature of the offenses. There is no dispute concerning the serious nature of the subject offenses, but the sentencing judge is required to consider a complex of factors in determining a sеntence. 17-A M.R.S.A. § 1151 (1983 and Supp.1989).
We have previously emphasized the desirability of ordering a pre-sentence investigation in cases involving the possibility of significant incarceration. Although M.R. Crim.P. 32(c) grants the court discretion to order a pre-sentence investigation and report, a strong case is made for the necessity of that procedure when the essential information is not supplied by the parties or made known to the court by some other means, such as through a trial.
See State v. Dyer,
The entry is:
Sentences vacated. Remanded for resen-tencing consistent with the opinion herein.
All concurring.
Notes
. Defendant could have challenged the legality of his consecutive sentences by direct appeal from the convictions. Direct appeal is permitted when the sentencing illegality appears on the face of the record so plainly that its existence is shown as a matter of law.
State v. Parker,
. Aggravated assault involves the infliction of serious bodily injury as opposed to simple bodily injury as alleged in the kidnapping count of the indictment. 17-A M.R.S.A. § 208(1)(A). Serious bodily injury is defined as:
A bodily injury which creates a substantial risk of death or which causes serious, permanent disfigurement or loss or substantial impairment of the function of any bodily member or organ, or extended convalescence necessary for recovery of physical health.
17-A M.R.S.A. § 2(23) (1983).
