State v. Bennett

114 A.3d 994

2015 ME 46

STATE of Maine

v.Thomas BENNETT.

Docket No. Yor–14–161.

Supreme Judicial Court of Maine.

Argued: Feb. 10, 2015.

Decided: May 5, 2015.

Molly Butler Bailey, Esq. (orally), Strike, Goodwin & O'Brien, Portland, for appellant Thomas Bennett.

Kathryn Loftus Slattery, District Attorney, and Anne Marie Pazar, Esq. (orally), Prosecutorial District # 1, Alfred, for appellee State of Maine.

Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, and HJELM, JJ.

Opinion

SAUFLEY, C.J.

[¶ 1] Thomas Bennett, an employee of Saco Pawn and Loan, purchased what he knew to be stolen property for resale at the pawnshop. He did not disclose the purchase when the rightful owner, the victim of a recent burglary, told Bennett that he had been recently robbed and that he was trying to locate his stolen property. Bennett then lied to a detective with the Saco Police Department when he was asked whether he had purchased any of the victim's stolen property. After a jury found Bennett guilty of theft by receiving stolen property (Class D), 17–A M.R.S. § 359(1)(B)(5) (2014), the Superior Court (York County, Fritzsche, J. ) sentenced Bennett to fourteen days in jail and a $500 fine, plus applicable surcharges.

[¶ 2] Bennett directly appeals from his sentence. He argues that the sentence imposed by the court is illegal because it is disproportionate to the crime committed and in violation of his equal protection and due process rights. We affirm the sentence.

I. BACKGROUND

[¶ 3] “Viewed in the light most favorable to the jury's verdict, the record supports the following facts.” State v. Ormsby, 2013 ME 88, ¶ 2, 81 A.3d 336. On April 26, 2013, the victim's home was burglarized, and the victim reported that, among other items, comic books, electronics, and a Penn Senator fishing reel were stolen. After the burglary, a Saco police officer interviewed the victim and filed a report about the incident. The victim valued the fishing reel at approximately $700.

[¶ 4] The next day, the victim began driving to local pawnshops looking for his stolen items. One of these pawnshops was Saco Pawn and Loan, where Bennett was employed. The victim told Bennett that he had been robbed and was searching for his missing items, specifically mentioning his fishing reel and electronics. Bennett did not tell the victim that the fishing reel was at the pawnshop.

[¶ 5] A detective from the Saco Police Department investigated the burglary. As part of his investigation, on or about April 29, 2013, he spoke with Bennett regarding the missing fishing reel. The detective was familiar with Bennett because he oversees the pawnshops in the Saco area. That oversight includes checking for compliance with existing regulations and monitoring the property that is purchased and then sold from pawnshops. Bennett told the detective that an individual named Arthur McCurry had come into the pawnshop looking to sell comic books, electronics, and a couple of fishing reels. Bennett alleged that he had previously purchased property from McCurry that he believed had been stolen. Bennett explicitly told the detective that he did not purchase any items from McCurry.

[¶ 6] Thereafter, the detective interviewed McCurry about the burglary and obtained and executed a search warrant for Saco Pawn and Loan. While executing the warrant, a police officer located a Penn Senator fishing reel wrapped in a yellow cloth bag in a wooden cabinet behind the counter. The item was photographed and taken to the Saco Police Department, where the victim identified both the cloth bag and the fishing reel as his own. Officers executing the search warrant also checked the daily logs of purchases and sales for the business to determine whether any fishing reel was listed. During the time in question, there was no record of any transaction regarding a fishing reel.¹

[¶ 7] After the fishing reel was found, Bennett asked to speak with one of the detectives outside, where he admitted that he had purchased the reel from McCurry. He explained that he had been hoping McCurry would bring in more of the victim's stolen items so that he could purchase them from McCurry “in hopes of getting it all,” and then have the victim pay him back for the stolen property. Bennett further explained that he did not tell anyone this because he did not want to scare McCurry off from bringing in more stolen property. The detective specifically asked Bennett if he had purchased the fishing reel before the victim had come into the shop to look for his stolen property. Bennett admitted that he had, and admitted that he did not tell the victim that he had recovered his fishing reel.

[¶ 8] Bennett was indicted for theft by receiving stolen property (Class C), 17–A M.R.S. § 359(1)(B)(4) (2014). A jury trial was held on March 18, 2014, at which Bennett testified in his own defense. At the conclusion of the one-day trial, the jury acquitted Bennett of Class C theft by receiving stolen property, 17–A M.R.S. § 359(1)(B)(4), but convicted him of the lesser included offense of Class D theft by receiving stolen property, 17–A M.R.S. § 359(1)(B)(5).²

[¶ 9] After the entry of the jury's verdict, the court asked whether Bennett would like to proceed directly to sentencing or instead address sentencing at another time in the future. Bennett indicated that he would prefer to proceed directly to sentencing. The State requested a $700 fine based in part on the wishes of the victim that Bennett not be convicted of a felony or incarcerated. Bennett requested a $350 fine. Before sentencing Bennett, the judge asked whether Bennett had anything that he wanted to say. Bennett then told the judge that he was raising his nine-year-old grandson and was primarily responsible for the child's care and daily routine.

[¶ 10] Before sentencing him, the court spoke directly to Bennett, stating:

One of the things that was troublesome to me about just the facts of this case was that while the State initially had a value that the evidence didn't fully support, they did have the basic fact that it was receiving stolen property. The evidence was absolutely overwhelming.

It seemed that Mr. McCurry was known to you to be a thief, that it suggested that he had stolen from his father. You had every reason to believe that that fishing reel was hot. There's no reason Arthur McCurry would have ever had one of those legitimately.

...

You—it's not a question of believing it was probably stolen. I don't think you had any doubt at all but that it was stolen. You had the opportunity to let [the victim] know ... you had the opportunity to let the police know. It seemed that you were concerned about being out your $80 if they took it back from you.

I've been looking at burglary and theft and bad check and robbery cases, particularly the burglary and theft charges. And it's absolutely clear that for all the United States, including Maine, including [York] [C]ounty, there's a profound problem with, particularly younger people, and some older people, misusing a variety of drugs. Many of them are still quite expensive. Some of the ones that are cheaper are even more dangerous.

So for most of the people, they have no legitimate way of making the kind of money they need to support their addiction, so they steal things. And they don't want fishing reels, they don't want gold coins, they don't want jewelry, they want cash. And your business and a number of others routinely take stolen items.

Much of your merchandise is legitimate. You're a lawful business, but a significant portion of what pawnshops take in is stolen, it's known to be stolen. I'm absolutely, positively convinced of that. As a general proposition, that there's a significant—that existence of the pawnshop is kind of the third part of the trinity of burglars and drug dealers. And they're all—

And so, normally, but for your child, I would probably give you somewhere between 30 and 60 days in jail. To make a statement of what you did was inexcusable and to have other pawnshop owners pay attention to this. Because of your child, I'm going to cut it back....

Instead of sentencing Bennett to the thirty to sixty days in jail originally considered by the court, the court sentenced Bennett to fourteen days in jail and a $500 fine, plus surcharges. Bennett did not object to the court's statements at sentencing or move for correction or reduction of his sentence. See M.R. Crim. P. 35. Because of the brevity of Bennett's sentence, he is ineligible to file an application for leave to appeal his sentence with the Sentence Review Panel of the Supreme Judicial Court. See 15 M.R.S. §§ 2151, 2152 (2014) ; M.R.App. P. 20(a)(1). Instead, Bennett appealed his sentence to us and was granted a stay of execution pending the outcome of this appeal.³ See 15 M.R.S. § 2115 (2014) ; M.R.App. P.2 ; State v. Mosher, 2012 ME 133, ¶ 4, 58 A.3d 1070.

II. DISCUSSION

A. Standing to Appeal Sentence

[¶ 11] As an initial matter, we note that a direct appeal from a sentence is only justiciable upon a claim “that the sentence is illegal, imposed in an illegal manner, or beyond the jurisdiction of the court, and the illegality appears plainly in the record.” State v. Schmidt, 2010 ME 8, ¶ 5, 988 A.2d 975. Any claimed abuse of discretion in the court's application of the Hewey process can be reviewed only upon the grant of an application for “leave to appeal from sentence,” which is not available to Bennett in this case. 15 M.R.S. § 2152 ; see id. § 2151 ; 17–A M.R.S. § 1252–C (2014) ; State v. Ricker, 2001 ME 76, ¶ 18, 770 A.2d 1021.

[¶ 12] There are no statutory infirmities in the sentence before us. The court had jurisdiction to sentence Bennett, see 15 M.R.S. § 1 (2014), and Bennett's jail sentence falls well within the timeframe explicitly authorized by the Legislature for a person convicted of a Class D crime, see 17–A M.R.S. § 1252(2)(D) (2014) (authorizing a court to impose a term of imprisonment of less than one year). No aspect of the sentence, including the commitment to...