State v. Gray

893 A.2d 611

2006 ME 29

STATE of Maine v. Kerry GRAY.

Supreme Judicial Court of Maine.

Argued: January 25, 2006.

Decided: March 29, 2006.

COPYRIGHT MATERIAL OMITTED

Norman R. Croteau, District Attorney, Andrew S. Robinson, Asst. Dist. Atty. (orally), Farmington, for State.

David M. Sanders, Esq. (orally), Livermore Falls, for defendant.

Panel: SAUFLEY, C.J., and CLIFFORD, DANA, ALEXANDER, CALKINS, LEVY, and SILVER, JJ.

CALKINS, J.

[¶ 1] Kerry Gray appeals from a judgment entered in the Superior Court (Androscoggin County, Gorman, J.) sentencing him to forty years imprisonment following his guilty pleas to attempted murder (Class A), 17-A M.R.S. §§ 152, 201 (2005); gross sexual assault (Class A), 17-A M.R.S. § 253(1)(A) (2005); and arson (Class A), 17-A M.R.S. § 802(1)(A) (2005). He argues that the court abused its discretion when it set the maximum sentence at forty years and when it declined to suspend any portion of the sentence. He also contends that the sentence is excessive. We disagree with his contentions and affirm the judgment.

I. BACKGROUND

[¶ 2] Gray raped his seventy-six year old neighbor at knifepoint in her home. He also slit her throat and set fire to her house. After he was indicted for these offenses, Gray underwent examinations to assess his "competency, criminal responsibility, [and] abnormal condition of [the] mind," as well as other issues related to his mental or emotional condition. 15 M.R.S. § 101-B (2005). Gray is a severely brain-damaged individual, who experienced several head traumas, including one in 1985 from a motor vehicle accident that left him in a coma for a month.

[¶ 3] Following a competency hearing, the court determined that Gray was competent to stand trial. Gray ultimately pleaded guilty to the charges of gross sexual assault, attempted murder, and arson, and the State dismissed another charge and agreed not to seek consecutive sentences.

[¶ 4] Two experts testified at the sentencing hearing. The State presented one of the psychologists who had participated in the competency evaluations. She testified that Gray told her that he cut the victim's telephone lines so that she could not call for help and that he started the fire to distract anyone who would be looking for him. The psychologist opined that these actions demonstrated Gray's ability to control his impulses. Another psychologist testified on Gray's behalf about an alternative correctional program for brain-injured individuals like Gray, and why such a program was a better alternative than placement with the Department of Corrections.

[¶ 5] In announcing the sentence, the court began by explaining that it would determine the basic sentence, that is, the first step in the statutory sentencing process, 17-A M.R.S. § 1252-C(1) (2005), on the gross sexual assault offense. The court stated that it considered the attempted murder to have been committed in order to facilitate the gross sexual assault and, under the circumstances of the offenses, it viewed the gross sexual assault as the worst of the three crimes. The court then described the details of the rape:

Keeping in mind that all rape involves some form of violence and violation, and contrary to the defendant's assertions that his familiarity to [the victim] should have lessened her horror, it is difficult to imagine circumstances more horrifying than those presented by Mr. Gray's actions. Mr. Gray told another neighbor that he fantasized about having sex with [the victim] and then went to her house to fulfill his fantasy. When she refused him, he wielded a knife to force her to submit. He dragged her upstairs to avoid being seen and then vaginally and anally raped the 76-year old woman he had known practically his whole life.

[The victim] did not submit easily. She fought back and as a result she was injured. The photographs presented by the State demonstrate some of her injuries and also give some indication of the duration of her suffering. [The victim's] face, neck, torso and arms are covered with dry blood and bruises. There were blood stains on the bed clothes, on the telephone, and on various pieces of clothing that had been discarded.

Mr. Gray admitted to [the psychologist] that he punched [the victim] repeatedly during the attack and slit her throat as punishment because she wouldn't play nice. Either before or after the rape he cut the telephone line to prevent her from calling for help. Given the relationship between Mr. Gray and his victim, the victim's age and relative fragility, the degree of force used by Mr. Gray to compel her to submit to his will and to prevent her from calling the police and the multiple penetrations of her body, the Court finds that Mr. Gray's actions compel a sentence substantially in excess of the twenty year limit generally allowed for Class A crimes.

The court set the basic sentence for the gross sexual assault at thirty-five years.¹

[¶ 6] Next, the court looked at the mitigating and aggravating factors to arrive at the maximum sentence, which is the second step of the sentencing analysis. 17-A M.R.S. § 1252-C(2). The court considered that by pleading guilty Gray had expressed some remorse and had spared the victim from going through a trial.

[¶ 7] The court noted Gray's argument that his brain damage should be seen as a mitigating factor. However, the court stated, "Mr. Gray's deficits, although tragic, do not explain his behavior." The court quoted from a portion of one of the competency examination reports, which referred to Gray's head injury from the auto accident and other brain damage from additional traumas and years of substance abuse:

Mr. Gray has demonstrated in the past that he has the ability to refrain from acting on impulses which he knows are wrong or substituting more acceptable outlets, thus he does have some capacity to control his behavior and is not as helpless as he would like others to believe.

The court concluded that Gray's limitations did "not support the shortening of his sentence."

[¶ 8] The court also looked at Gray's 1998 conviction for unlawful sexual contact and his 2001 convictions for visual sexual aggression against a child and for sexual misconduct with a child under the age of fourteen. The court referred to other evaluation reports and recited from one stating that Gray suffered from "a wide array of mild impairments consistent with the sequelae of traumatic brain injury." The court found that "the sequelae of traumatic brain injury" did not explain these prior convictions or the extent of his capacity for violence as demonstrated in the current offenses. The court stated:

All of the evaluators who have seen Mr. Gray agree he does have the ability to control his impulses and apply judgment.. . . He admitted to [the psychologist] that he had been able to walk off other impulses to rape, yet he chose not to control his impulses here and committed a violent, heinous crime against a woman who had shown him nothing but kindness.

All of the information presented demonstrates clearly that Mr. Gray appreciated the wrongfulness of his actions and took steps to avoid being caught or stopped before, during or after the rape. Mr. Gray slit [the victim's] throat either to compel her to submit to his will or to prevent her from escaping, or to keep her from reporting his crime to the police. Those actions have resulted in a conviction for the crime of attempted murder.

Then Mr. Gray set fire to [the victim's] house while she was in it battered and bleeding. Those actions resulted in Mr. Gray's conviction for the crime of arson. Because there has been no suggestion that consecutive sentences be imposed for those crimes, the Court has considered those actions as aggravating factors here.

In addition, Mr. Gray was still on probation for his last sexual crime at the time that he attacked [the victim]. The aggravating factors in this case also include the effect Mr. Gray's actions have had on the victim and her family. [The victim] survived this attack entirely through her own courage and strength. However, in the effort she lost her ability to live independently[. P]erhaps more importantly, she lost the right to live free of fear.

[¶ 9] Finally, the court considered the risk that Gray presented to the public in light of the escalation of violence he had shown. The court stated that it was not satisfied that the program described by Gray's expert witness could provide effective limits for the protection of the public. The court concluded that Gray's actions warranted a maximum sentence of forty years.

[¶ 10] The third step of the sentencing analysis is a determination as to whether any portion of the maximum sentence should be suspended so that a period of probation may be imposed. 17-A M.R.S. § 1252-C(3). The court concluded that none of the forty years should be suspended. Because Gray had been on probation without success in the past, the court found that he was not a candidate for probation in the future. The lack of effective rehabilitation services both inside and outside of prison was one of the reasons the court gave for not imposing probation. The court concluded: "In summary, there is no effective way to protect society from Mr. Gray except to remove him from it." The court then imposed concurrent sentences of seventeen years for attempted murder and twenty years for arson, giving its reasons for each of those sentences.

II. DISCUSSION

[¶ 11] Gray does not challenge the basic sentence set by the court in the first step of the sentencing process, which was thirty-five years.² He challenges the maximum sentence of forty years and the refusal of the court to suspend any portion of the sentence. We apply the abuse of discretion standard both when reviewing the maximum sentence and when reviewing the court's decision to not suspend any portion of the maximum sentence. State v. Sweet, 2000 ME 14, ¶ 15, 745 A.2d 368, 372-73. Gray further contends that the overall...