State of Maine v. Gove

STATE OF MAINE SUPERIOR COURT Hie CRIMINAL ACTION KENNEBEC, ss. REC'D & FILED DOCKET NO. CR-02-380 Nancy A De 5 fo _ > o je 5 a7 o we STATE OF MAINE MAY 27 2003 ris v. Clerk of oo unty DECISION ON MOTION Kennebec (MLR. Crim. P. 35) LEROY GOVE, Defendant This matter came before the court AUG 7% 2003 for hearing on the defendant’s motion for reduction of sentence, as amended, pursuant to M.R. Crim. P. 35. On December 2, 2002, defendant Gove changed his plea to all four counts of the indictment after the court's inquiry pursuant to M.R. Crim. P. 11. The governing sentences were on count I (Operating a Motor Vehicle While Under the Influence — class C) and count II (Operating After Revocation - class C). As to count I, Gove was sentenced to 30 months to the Department of Corrections. As to count II, Gove was sentenced to a term of five years, consecutive to count I, all suspended and four years of probation. This was a fully negotiated disposition arrived at by the parties. Subsequent to the sentencing, Gove filed the present motion seeking to have a resentencing.’ The legal basis for this motion is found in 17-A M.RS.A. § 1256(2) and (4), which read, in part: (2) [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. 1 oe : : : Gove’s original motion was for a reduction of his sentence, but at the hearing on the amended motion, his attorney indicated that he was now seeking to be resentenced, with the original sentence to act as a cap on the new sentence. (4) If the court decides to impose consecutive sentences, it shall state its reasons for doing so on the record or in the sentence. The statute goes on to list four different factors which the court must consider. The court has reviewed the transcript of the Rule 11 sentencing proceeding of December 2, 2002, and must agree with Gove that there was no formal mention of the four factors. The absence of discussion does not mean that the court did not consider the statutory factors in deciding whether to accept the recommended sentence, but that consideration was unstated. Gove seeks an entire resentencing proceeding as the result of what he sees to be the court’s failure to meet the statutory requirement. However, the Law Court has indicated that this is not necessary. In State v. Powers, 489 A.2d 4 (Me. 1985), that court considered a very similar situation in which the court sentenced Powers to serve a consecutive sentence without stating his reasons therefor, as required by section 1256. The Court stated: The statute does not make explicit the consequences of a judge’s failure to meet the requirement of 17-A MLR.S.A. § 1256(4) by stating on the record his reasons for imposing a consecutive sentence. It is plain from the substance of that subsection (4), however, that its purpose is merely to assure convicted persons of a meaningful appeal by requiring that a proper record for appellate review be made by the sentencing court. If such a record is not initially made, the purpose of the statute is fully served by remanding to the Superior Court for a statement on the record of the sentencing judge’s reasons for making the sentence consecutive. Since the “statement of reasons” requirement of section 1256(4) is merely a matter of form in terms of its impact on the sentence itself, it may be met by the sentencing court without any need for a second full-blown sentencing proceeding if it was not originally complied with. Id. at 6. In reaching this decision, the Laws Court distinguished its earlier decision in Bennett v. State, 433 A.2d 431 (Me. 1981) for reasons which also distinguish it from the present case. Therefore, this court will answer Gove’s motion, and the court will set forth below its reasons for imposing a consecutive sentence. First, counts I and II of the indictment arise out of the same activity of operating a motor vehicle, but they are separate and distinct crimes. Count I makes Gove’s operation of the motor vehicle a crime because of his physical condition at the time of the operation, i.e., his impairment from the use of alcohol. Count II makes his operation a crime because of his legal status at that time, ie., his right to operate had been revoked as the result of an earlier conviction. ‘Second, Gove was on probation from a District Court conviction at the time of the incident leading to the present convictions. Third, Gove had a serious criminal history, specifically a history of operation motor vehicles while under the influence of intoxicants. This conviction was his seventh OUI conviction. Fourth, it was important to have an adequate period of probation to allow substance abuse treatment and supervision and to promote public safety. Last, but not least, Gove and his attorney had agreed with the attorney for the State that the sentences would be consecutive. Having now stated its reasons for accepting the recommendation of consecutive sentences, as required by section 1256(4), the entry will be: Motion DENIED. Dated: May_2/ 2003 | ‘ up S. Kirk Studstrup Justice, Superior Court STATE OF MAINE SUPERIOR COURT vs KENNEBEC, ss. LEROY E GOVE Docket No AUGSC-CR-2002-00380 BOX 353 TOWNHOUSE WHITEFIELD ME 04353 DOCKET RECORD DOB: 12/10/1959 Attorney: DAVID PARIS State's Attorney: DAVID CROOK 72 FRONT STREET BATH ME 04530-2657 APPOINTED 02/05/2003 Filing Document: INDICTMENT Major Case Type: FELONY (CLASS A,B,C) Filing Date: 10/18/2002 Charge (s) 1 OPERATING UNDER THE INFLUENCE 10/01/2002 RANDOLPH 29-A 2411(1) Class Cc 2 OPERATING MOTOR VEHICLE AFTER REVOCATION 10/01/2002 RANDOLPH 29-A 2557(1) Class Cc 3 REFUSING TO SUBMIT TO ARREST OR DETENTION 10/01/2002 RANDOLPH 17-A 751-A(1) (B) Class D 4 FAILING TO STOP FOR OFFICER 10/01/2002 RANDOLPH 29-A 2414(2) Class E Docket Events: 10/21/2002 FILING DOCUMENT - INDICTMENT FILED oN 10/18/2002 TRANSFER - BAIL AND PLEADING GRANTED ON 10/18/2002 TRANSFER - BAIL AND PLEADING REQUESTED ON 10/18/2002 10/22/2002 Charge(s): 1,2,3,4 HEARING - ARRAIGNMENT SCHEDULED FOR 10/31/2002 @ 8:30 L0/22/2002 Charge(s): 1,2,3,4 HEARING - ARRAIGNMENT NOTICE SENT ON 10/22/2002 DEFENDANT IS IN CUSTODY, NOTICE WAS SENT TO JAIL 10/23/2002 Charge(s): 1,2,3,4 MOTION - MOTION FOR APPOINTMENT OF CNSL FILED BY DEFENDANT ON 10/23/2002 0/25/2002 Charge(s): 1,2,3,4 MOTION - MOTION FOR APPOINTMENT OF CNSL GRANTED ON 10/24/2002 8 KIRK STUDSTRUP , JUSTICE COPY TO PARTIES/COUNSEL Page 1 of 6 Printed on: 05/28/2003 10/31/2002 10/31/2002 10/31/2002 12/12/2002 12/12/2002 12/12/2002 12/12/2002 12/12/2002 Charge(s): 1,2,3,4 HEARING - ARRAIGNMENT HELD ON 10/31/2002 S KIRK STUDSTRUP , JUSTICE Attorney: ANDREWS CAMPBELL DA: PAUL RUCHA Reporter: PHILIP GALUCKI Defendant Present in Court READING WAIVED. DEFENDANT INFORMED OF CHARGES. DEFENDANT. 21 DAYS TO FILE MOTIONS Charge(s): 1,2,3,4 PLEA - NOT GUILTY ENTERED BY DEFENDANT ON 10/31/2002 S KIRK STUDSTRUP , JUSTICE Attorney: ANDREWS CAMPBELL DA: PAUL RUCHA Reporter: PHILIP GALUCKI Defendant Present in Court BAIL BOND - NO BAIL ALLOWED SET BY COURT ON 10/31/2002 S KIRK STUDSTRUP , JUSTICE Attorney: ANDREWS CAMPBELL DA: PAUL RUCHA Reporter: PHILIP GALUCKI Defendant Present in Court HOLD WITHOUT BAIL. BAIL MAY BE REVIEWED. HEARING - RULE 11 HEARING HELD ON 12/02/2002 S KIRK STUDSTRUP , JUSTICE Attorney: ANDREWS CAMPBELL DA: ALAN KELLEY Reporter: DENNIS FORD Defendant Present in Court READING WAIVED Charge(s): 1,2,3,4 PLEA - GUILTY ENTERED BY DEFENDANT ON 12/02/2002 S KIRK STUDSTRUP , JUSTICE Attorney: ANDREWS CAMPBELL DA: ALAN KELLEY Reporter: DENNIS FORD Defendant Present in Court Charge(s): 1,2,3,4 PLEA - GUILTY ACCEPTED BY COURT ON 12/02/2002 S KIRK STUDSTRUP , JUSTICE Attorney: ANDREWS CAMPBELL DA: ALAN KELLEY Reporter: DENNIS FORD Defendant Present in Court Charge(s): 1,2,3,4 FINDING - GUILTY ENTERED BY COURT ON 12/02/2002 S KIRK STUDSTRUP , JUSTICE Attorney: ANDREWS CAMPBELL DA: ALAN KELLEY Reporter: DENNIS FORD Defendant Present in Court Charge(s): 1 RULING - ORIGINAL ORDERED ON 12/02/2002 S KIRK STUDSTRUP , JUSTICE Attorney: ANDREWS CAMPBELL DA: ALAN KELLEY Reporter: DENNIS FORD Defendant Present in Court Page 2 of 6 LEROY E GOVE AUGSC-CR-2002-00380 DOCKET RECORD Printed on: COPY OF INDICTMENT/INFORMATION GIVEN TO 05/28/2003 12/12/2002 12/12/2002 LEROY E GOVE AUGSC-CR-2002-00380 DOCKET RECORD It is adjudged that the defendant is guilty of 1 OPERATING UNDER THE INFLUENCE 29-A 2411 (1) Class C as charged and convicted. The defendant is sentenced to the DEPARTMENT OF CORRECTIONS for a term of 30 month(s). Note : COURT DOES NOT OBJECT TO COMMUNITY THERAPUTIC PROGRAM It is ordered that the defendant's motor vehicle operator's license or permit to operate, right to operate and right to apply for and obtain a license is suspended for a period of 6 year(s) effective 12/02/2002. The defendant's right to register a motor vehicle is suspended. Charge #1: It is ordered that the defendant forfeit and pay the sum of $ 2,000.00 as a fine to the clerk of the court, plus applicable surcharges and assessments. 10% GOV'T OPERATION SURCHARGE FUND $ 200.00 $ 25 VICTIMS COMPENSATION FUND 100% GENERAL FUND $ 2000.00 $ 30 DEPARTMENT OF TRANSPORTATION FINES 2% MAINE COMMUNITY POLICING INST $ 40.00 2% MAINE CRIMINAL JUSTICE ACADEMY $ 40.00 1% COUNTY JAIL $ 20.00 TOTAL DUE:§ 2,355.00. Charge(s): 1 RULING - ORIGINAL ISSUED ON 12/02/2002 S KIRK STUDSTRUP , JUSTICE Attorney: ANDREWS CAMPBELL DA: ALAN KELLEY Reporter: DENNIS FORD Defendant Present in Court DEFENDANT ACKNOWLEDGES RECEIPT Charge(s): 2 : RULING - ORIGINAL ORDERED ON 12/02/2002 S KIRK STUDSTRUP , JUSTICE Attorney: ANDREWS CAMPBELL DA: ALAN KELLEY Reporter: DENNIS FORD Defendant Present in Court It is adjudged that the defendant is guilty of 2 OPERATING MOTOR VEHICLE AFTER REVOCATION 29A 2557(1) Class C as charged and convicted. The defendant is sentenced to the DEPARTMENT OF CORRECTIONS for a term of 5S year(s). This sentence to be served consecutively to: AUGSCCR200200380 Charge: 1 It is ordered that all of the sentence as it relates to confinement be suspended. It is ordered that the defendant be placed on a period of probation for a term of 4 year(s) upon conditions attached hereto and incorporated by reference herein. $ 25 VICTIMS COMPENSATION FUND TOTAL DUE:$ 25.00. Special Conditions of Probation: Refrain from possession and use of any unlawful drugs and the possession or use of intoxicating Page 3 of 6 Printed on: 05/28/2003 LEROY E GOVE AUGSC-CR~ 2002-00380 DOCKET RECORD liquor. Pay to the Department of Corrections a supervision fee of $10 per month. Submit to random search and testing for alcohol, drugs upon reasonable suspicion of use or possession. Undergo substance abuse counseling / treatment, program as directed by the probation officer; consent to the release of any counseling/treatment information to your probation officer, the district attorney and the court. You shall contribute to the cost of any counseling treatment based on your financial ability as determined by the probation officer. Pay assessments as more fully specified above. Not operate or attempt to operate any motor vehicles including ATV, motorboat or aircraft until properly licensed by the Secretary of State. If the defendant has been convicted of an applicable offense listed in 25 MRSA sec 1574(4), the defendant shall submit to having a DNA sample drawn. Report to probation officer forthwith and as thereafter directed. 12/12/2002 Charge(s): 2 RULING - ORIGINAL ISSUED ON 12/02/2002 S KIRK STUDSTRUP , JUSTICE Attorney: ANDREWS CAMPBELL DA: ALAN KELLEY Reporter: DENNIS FORD Defendant Present in Court DEFENDANT ACKNOWLEDGES RECEIPT 12/12/2002 Charge(s): 3 . RULING -~- ORIGINAL ORDERED ON 12/02/2002 S KIRK STUDSTRUP , JUSTICE Attorney: ANDREWS CAMPBELL DA: ALAN KELLEY Reporter: DENNIS FORD Defendant Present in Court It is adjudged that the defendant is guilty of 3 REFUSING TO SUBMIT TO ARREST OR DETENTION 17-A 751~-A(1) (B) Class D as charged and convicted. The defendant is sentenced to the DEPARTMENT OF CORRECTIONS for a term of 364 day(s). This sentence to be served concurrently with: AUGSCCR200200380 Charge: 1 $ 10 VICTIMS COMPENSATION FUND TOTAL DUE:S 10.00. 12/12/2002 Charge(s): 3 RULING - ORIGINAL ISSUED ON 12/02/2002 S KIRK STUDSTRUP , JUSTICE Attorney: ANDREWS CAMPBELL DA: ALAN KELLEY Reporter: DENNIS FORD Defendant Present in Court DEFENDANT ACKNOWLEDGES RECEIPT ‘ Page 4 of 6 Printed on: 05/28/2003 12/12/2002 12/12/2002 12/12/2002 12/12/2002 12/12/2002 12/12/2002 01/29/2003 02/03/2003 02/06/2003 02/12/2003 02/14/2003 LEROY E GOVE AUGSC-CR-2002-00380 DOCKET RECORD Charge(s): 4 RULING - ORIGINAL ORDERED ON 12/02/2002 S KIRK STUDSTRUP , JUSTICE Attorney: ANDREWS CAMPBELL DA: ALAN KELLEY Reporter: DENNIS FORD Defendant Present in Court It is adjudged that the defendant is guilty of 4 FAILING TO STOP FOR OFFICER 29-A 2414 (2) Class E as charged and convicted. The defendant is sentenced to the KENNEBEC COUNTY JAIL for a term of 180 day(s). This sentence to be served concurrently with: AUGSCCR200200380 Charge: 1 This sentence to be served concurrently with: AUGSCCR200200380 Charge: 3 $ 10 VICTIMS COMPENSATION FUND TOTAL DUE:$ 10.00. Charge(s): 4 RULING - ORIGINAL ISSUED ON 12/02/2002 S KIRK STUDSTRUP , JUSTICE Attorney: ANDREWS CAMPBELL DA: ALAN KELLEY Reporter: DENNIS FORD Defendant Present in Court DEFENDANT ACKNOWLEDGES RECEIPT: Charge(s): 1,2,4 ABSTRACT - BMV ISSUED ON 12/12/2002 3 SEPERATE ABSTRACTS MAILED Charge(s): 1 ABSTRACT - SBI EDI ON 12/12/2002 LAST EDI SENT: 12/12/2002 21:20:16 Charge(s): 2 ABSTRACT - SBI EDI ON 12/12/2002 LAST EDI SENT: 12/12/2002 21:20:22 Charge(s): 3 ABSTRACT - SBI EDI ON 12/12/2002 LAST EDI SENT: 12/12/2002 21:20:23 OTHER FILING - STATEMENT OF TIME FILED ON 01/27/2003 CREDIT FOR 63 DAYS TIME SERVED FROM OCTOBER 1, 2002 TO DECEMBER 3, 2002. MOTION - MOTION FOR APPOINTMENT OF CNSL FILED BY DEFENDANT ON 02/03/2003 MOTION - MOTION FOR APPOINTMENT OF CNSL GRANTED ON 02/05/2003 S KIRK STUDSTRUP , JUSTICE MOTION - MOTION TO PREPARE TRANSCRIPT FILED BY DEFENDANT ON 02/12/2003 Attorney: DAVID PARIS REQUESTING 12/2/02 PLEA/SENTENCING DENNIS FORD COURT REPORTER. MOTION - OTHER MOTION GRANTED ON 02/13/2003 S KIRK STUDSTRUP , JUSTICE Page 5 of 6 Printed on: 05/28/2003 15/19/2003 15/19/2003 15/19/2003 15/19/2003 15/28/2003 5/28/2003 5/28/2003 15/28/2003 5/28/2003 LEROY E GOVE AUGSC-CR-2002-00380 DOCKET RECORD MOTION - MOTION REDUCTION OF SENTENCE FILED BY DEFENDANT ON 02/03/2003 HEARING - MOTION REDUCTION OF SENTENCE SCHEDULED FOR 05/23/2003 @ 8:30 NOTICE TO PARTIES/COUNSEL HEARING -. MOTION REDUCTION OF SENTENCE NOTICE SENT ON 05/19/2003 WRIT - HABEAS CORPUS TO TESTIFY ISSUED ON 05/19/2003 CERTIFIED COPY TO SHERIFF DEPT. HEARING - MOTION REDUCTION OF SENTENCE HELD ON 05/23/2003 S KIRK STUDSTRUP , JUSTICE Attorney: DAVID PARIS DA: ALAN KELLEY Reporter: PHILIP GALUCKI Defendant Present in Court MOTION - MOTION REDUCTION OF SENTENCE UNDER ADVISEMENT ON 05/23/2003 S KIRK STUDSTRUP , JUSTICE MOTION - OTHER MOTION FILED BY DEFENDANT ON 04/11/2003 MOTION TO AMEND PRO SE MOTION FOR REDUCTION OF SENTENCE. MOTION - OTHER MOTION GRANTED ON 05/23/2003 S KIRK STUDSTRUP , JUSTICE MOTION TO AMEND PRO SE MOTION FOR REDUCTION OF SENTENCE. MOTION - MOTION REDUCTION OF SENTENCE DENIED ON 05/27/2003 S KIRK STUDSTRUP , JUSTICE , COPIES TO PARTIES /COUNSEL A TRUE COPY ATTEST: Clerk Page 6 of 6 Printed on: 05/28/2003