State v. Gessner

255 A.3d 1041

2021 ME 41

STATE of Maine

v.Mark GESSNER

Docket: Ken-20-242

Supreme Judicial Court of Maine.

Argued: April 8, 2021

Decided: July 27, 2021

Clifford B. Strike, Esq. (orally), Strike & Associates, Portland, for appellant Mark Gessner

Maeghan Maloney, District Attorney, and Michael H. Madigan, Asst. Dist. Atty. (orally), Prosecutorial District Four, Augusta, for appellee State of Maine

Panel: MEAD, GORMAN, JABAR, HUMPHREY, HORTON, and CONNORS, JJ.

CONNORS, J.

[¶1] Shortly after allegedly leaving the custody of Riverview Psychiatric Center in Augusta, without permission, Mark Gessner was arrested for criminal threatening with a dangerous weapon at his father's home in Bath. A jury acquitted Gessner of the criminal threatening charge in Sagadahoc County, and the State subsequently charged Gessner with escape in Kennebec County. After the trial court (Kennebec County, Murphy, J. ) denied Gessner's motion to dismiss the successive prosecution, Gessner entered a conditional guilty plea. On appeal, Gessner argues that, by separately trying him for criminal threatening in Sagadahoc County and then for escape in Kennebec County, the State violated 17-A M.R.S. § 14 (2021).¹ We agree and vacate the judgment.

I. BACKGROUND

[¶2] The following procedural facts are drawn from the record.

[¶3] On January 17, 2020, the State filed a complaint in the trial court (Kennebec County) charging Gessner with escape (Class B), 17-A M.R.S. § 755(1)(B) (2021). Gessner was indicted a month later. The indictment alleged that Gessner had been in the official custody of the Department of Health and Human Services on October 21, 2018, pursuant to a commitment order and that, without official permission, he left that custody or failed to return to custody after being granted temporary leave. The indictment further alleged that Gessner had "used physical force against another person, threatened to use physical force, or was armed with a dangerous weapon" at the time of the offense.

[¶4] On June 11, 2020, Gessner filed a motion to dismiss the indictment, arguing that 17-A M.R.S. § 14 barred the State from prosecuting him for escape in Kennebec County because (1) he had already been prosecuted for—and acquitted of—criminal threatening with a dangerous weapon in Sagadahoc County, (2) the alleged crimes arose from the same criminal episode, (3) prosecutors in both counties had knowledge of the alleged criminal conduct shortly after it allegedly occurred, and (4) the Sagadahoc County District Attorney's Office could have prosecuted Gessner for escape in accordance with the venue provision in the escape statute. Gessner's motion further argued that the indictment should be dismissed for "malicious prosecution" because the court could reasonably infer that "the only reason" that Kennebec County initiated the prosecution was because Sagadahoc County "lost at trial."

[¶5] The State filed a response arguing that Kennebec County had exclusive authority to prosecute Gessner for escape and that the alleged crimes did not arise from the same criminal conduct or same criminal episode. The State also denied Gessner's claim of misconduct.

[¶6] On June 24, 2020, the trial court held a nontestimonial hearing in which the facts—although minimally developed—were not disputed. The undisputed facts are the following: Gessner, who was confined to the Riverview Psychiatric Center in Augusta pursuant to a court order, was granted temporary leave in the form of a "two-hour unsupervised community pass" to ride his bike "in the Augusta/Hallowell area" beginning at 10:04 a.m. on October 21, 2018. Gessner traveled to his father's home in Bath, without official permission, where he engaged in an altercation with his brother. Gessner was arrested in Bath at 11:45 a.m. The State, through the Sagadahoc County District Attorney's Office, charged Gessner with two counts of criminal threatening with a dangerous weapon (Class C) in violation of 17-A M.R.S. §§ 209(1), 1252(4) (2018).² An investigating officer of the Bath Police Department submitted a report to the Sagadahoc County District Attorney's Office in which the officer described a conversation that he had with a representative from Riverview about the terms of Gessner's temporary leave and the circumstances of his arrest. By a letter dated October 23, 2018, Riverview notified the Sagadahoc County and Kennebec County District Attorneys’ Offices that Gessner had violated the terms of his temporary leave. Prior to trial in Sagadahoc County, the State dismissed one of the counts of criminal threatening. On September 27, 2019, a jury returned a verdict of not guilty on the other count. On January 17, 2020, the State, through the Kennebec County District Attorney's Office, charged Gessner with escape (Class B) in violation of 17-A M.R.S. § 755(1)(B).

[¶7] At the conclusion of the hearing, the court found that the escape and criminal threatening allegations were part of "one course of conduct" because the alleged crimes occurred across county lines within "a span of a few hours" and because escape is a "continuing" offense. The court further found that the State had not engaged in prosecutorial misconduct. The court took the matter under advisement to consider whether venue would have been proper in Sagadahoc County on a charge of escape from custody in Kennebec County. On June 30, 2020, the court issued a written decision denying Gessner's motion. The court concluded that, pursuant to 17-A M.R.S. § 755(3-A) (2021) and State v. Chasse , 2002 ME 90, 797 A.2d 1262, the State properly commenced the prosecution for escape in Kennebec County.

[¶8] On August 12, 2020, the State filed a motion to amend the indictment by striking the language alleging that Gessner "used physical force against another person, threatened to use physical force, or was armed with a dangerous weapon," making the amended charge a Class C offense under 17-A M.R.S. § 755(1)(A) (2021). On August 21, 2020, Gessner entered a conditional guilty plea to the amended charge. See M.R.U. Crim. P. 11(a)(2). He timely appeals. See 15 M.R.S. § 2115 (2021) ; M.R. App. P. 2B(b).

II. DISCUSSION

A. Standards of Review

[¶9] We review a trial court's application of a statutory defense de novo. See State v. Carter , 2016 ME 157, ¶ 5, 150 A.3d 327 ; State v. Graham , 2015 ME 35, ¶ 15, 113 A.3d 1102 ; State v. Cannell , 2007 ME 30, ¶ 6, 916 A.2d 231. In doing so, we interpret the relevant statutes de novo. State v. Conroy , 2020 ME 22, ¶ 19, 225 A.3d 1011. When interpreting a statute, "[w]e look first to the plain language of the statute to determine its meaning if we can do so while avoiding absurd, illogical, or inconsistent results." Id. "Only if the meaning of a statute is not clear will we look beyond the words of the statute to examine other potential indicia of the Legislature's intent, such as the legislative history." Id. "Nothing in a statute may be treated as surplusage if a reasonable construction applying meaning and force is otherwise possible." State v. Tozier , 2015 ME 57, ¶ 6, 115 A.3d 1240 (quotation marks omitted).

[¶10] That said, we review a trial court's factual determinations for clear error, see State v. Treadway , 2020 ME 127, ¶¶ 13-16, 240 A.3d 66, even when the court's fact-finding is based entirely upon documentary evidence and stipulated facts, Herzog v. Irace , 594 A.2d 1106, 1108 (Me. 1991).

B. The Separate Trials Statute

[¶11] The separate trials statute, 17-A M.R.S. § 14, provides:

A defendant shall not be subject to separate trials for multiple offenses based on the same conduct or arising from the same criminal episode, if such offenses were known to the appropriate prosecuting officer at the time of the commencement of the first trial and were within the jurisdiction of the same court and within the same venue, unless the court, on application of the prosecuting attorney or of the defendant or on its own motion, orders any such charge to be tried separately if it is satisfied that justice so requires.

In other words, section 14 generally limits the multiplicity of prosecutions for all criminal offenses arising from the same set of circumstances. See L.D. 314, § 1, at 13-14 (107th Legis. 1975); see also State v. Soule , 2002 ME 51, ¶ 9, 794 A.2d 58 (describing section 14 as a compulsory joinder statute). The penalty for failure to join in one trial all such offenses is a bar to further prosecution. Model Penal Code & Commentaries § 1.07 cmt. 3 at 116 (Am. L. Inst. 1985).

[¶12] The prohibition against separate trials for multiple offenses based on the same conduct or arising from the same criminal episode is subject to two conditions. First, the "appropriate prosecuting officer" must have known, when the first trial began, of the criminal offenses that are later alleged in the second prosecution. 17-A M.R.S. § 14. The purpose of this condition is to prevent a defendant from taking advantage of the fact that he has successfully concealed his criminal activity from enforcement officials. Model Penal Code & Commentaries § 1.07 cmt. 3 at 123. Second, the trial court that presided over the first prosecution must have been a court of proper jurisdiction and venue of the offenses alleged in the second prosecution. 17-A M.R.S. § 14.

[¶13] Gessner argues that the trial court erred by concluding that his section 14 defense fails on the jurisdiction and venue requirements of the statute. Aside from arguing that the trial court properly concluded that venue was improper in Sagadahoc County for the escape charge, the State also argues that we could affirm the judgment on the alternative ground that the trial court erred when it found that the crimes with which Gessner was charged in Sagadahoc County and Kennebec County arose from the same criminal episode. See 15 M.R.S. § 2115-A(3) (2021) ; M.R. App. P. 2C(a)(1). We address each argument in turn.³

1. Jurisdiction and Venue

[¶14] For section 14 to bar successive prosecution, the alleged offenses must have been...