State v. Hoover

2017 ME 158

STATE OF MAINE v. WADE R. HOOVER

Docket: Ken-16-118

Docket: SRP-16-119

MAINE SUPREME JUDICIAL COURT

Argued: May 11, 2017

Corrected: August 29, 2017

July 18, 2017

Reporter of Decisions

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

ALEXANDER, J.

[¶1] Wade R. Hoover appeals from sentences totaling sixty years imposed by the trial court (Kennebec County, Murphy, J.) following his guilty plea to four counts of gross sexual assault (Class A), 17-A M.R.S. § 253(1)(C) (2016), in cases from Somerset County and Kennebec County that were consolidated for sentencing.

[¶2] In this appeal, although the consecutive sentences imposed on Hoover totaled less than the maximum sentence that could have been imposed on any one of the four counts to which he pleaded guilty,¹ Hoovercontends that (1) the court erred by imposing a sentence that is disproportionate to the offenses charged, and (2) the court was required to find specific aggravating circumstances before imposing what Hoover claims is a de facto life sentence. We affirm the sentences.

[¶3] This is Hoover's second appeal arising out of the events that led to these charges. In his first appeal, Hoover unsuccessfully challenged the maintenance of this prosecution following his plea and sentencing in federal court on charges of sexual exploitation of a child and possession of child pornography that arose from his creating still and video images of the sexual violence that led to the State's gross sexual assault charges. State v. Hoover (Hoover I), 2015 ME 109, 121 A.3d 1281.

I. CASE HISTORY

[¶4] In October 2012, agents of the U.S. Department of Homeland Security and the Maine State Police discovered hundreds of images and videos of sexual assaults of a child on Hoover's computer after receiving a tip and conducting a consented-to search. Id. ¶ 3. Hoover admitted his involvement and was immediately taken into custody. Id. The State charged him with possession of sexually explicit material (Class C), 17-A M.R.S. § 284(1)(C) (2016). Id. Hoover remained in State custody until December 2012, when he was arrested on a federal warrant and taken into federal custody. Id. ¶¶ 4-6.

[¶5] On February 5, 2013, Hoover waived federal indictment and pleaded guilty to sexual exploitation of a child, 18 U.S.C.S. § 2251(a), (e) (LEXIS through Pub. L. No. 115-42), and possession of child pornography, 18 U.S.C.S. § 2252A(a)(5)(B) (LEXIS through Pub. L. No. 115-42). Id. ¶ 6. In July 2013, the United States District Court for the District of Maine (J. Woodcock, J.) held a sentencing hearing. Id. ¶ 8. In the federal proceeding, as in this proceeding, Hoover contested the prosecution's claims that he had drugged his victims to render them unconscious and that he had penetrated his victims anally. In the findings supporting sentencing, both the United States District Court and the Superior Court found that Hoover had drugged and anally penetrated his victims.

[¶6] At its July 2013 sentencing hearing, the federal court made the following sentencing guidelines calculations: "As to one of the victims (Male Minor Child 'A'), the base offense level was 32, pursuant to U.S.S.G. § 2G2.1(a), to which level the following were added: four levels because the victim was younger than twelve years, pursuant to U.S.S.G. § 2G2.1(b)(1)(A); two levels because [Hoover] subjected the victim to anal sex, pursuant to U.S.S.G. § 2G2.1(b)(2)(A); four levels because [Hoover] produced videos in which he anally penetrated the victim with his penis, pursuant to U.S.S.G. § 2G2.1(b)(4); and two levels because the minor victim spent the night at [Hoover's] house and elsewhere and was in his care and custody, pursuant to U.S.S.G. § 2G2.1(b)(5). The resulting adjusted offense level was 44." See Hoover v. United States, 2016 U.S. Dist. LEXIS 176564, at *5-6 (Dec. 21, 2016), accepted, 2017 U.S. Dist. LEXIS 6554 (Jan. 18, 2017).²

[¶7] "As to the other victim (Male Minor Child 'B'), the calculations were the same, but the four-level enhancement for the victim, pursuant to U.S.S.G. § 2G2.1(b)(4), was based on the Court's finding that [Hoover] penetrated the victim anally with [his] penis and fingers, and with two unidentified objects. The resulting adjusted offense level was 44." Id.

[¶8] In setting the length of Hoover's sentence, the federal court noted that the applicable guideline range for Hoover's conduct was life imprisonment, but the statutorily authorized maximum was 480 months, or forty years. After considering Hoover's sexual assaults of the young victims as an aggravating factor, the court sentenced Hoover to 360 months in prison onthe exploitation charge and 120 months in prison on the possession charge, to be served consecutively, as well as a lifetime of supervised release. Hoover I, 2015 ME 109, ¶ 8, 121 A.3d 1281. Hoover is expected to be released from federal custody in 2047, at the age of sixty-nine.

[¶9] After his February 2013 guilty pleas to the federal charges, Hoover was indicted by the State on thirteen counts of gross sexual assault upon a child under the age of twelve, 17-A M.R.S. § 253(1)(C), arising from the sexual violence depicted in the images and videos discovered on his computer. Hoover I, 2015 ME 109, ¶ 7, 121 A.3d 1281. The Somerset County grand jury indicted Hoover on one count of gross sexual assault. The Kennebec County grand jury indicted him on twelve additional counts of gross sexual assault involving a different victim.

[¶10] In February 2014, Hoover moved to dismiss the State's indictments, arguing that the State's prosecution subjected him to double jeopardy in violation of both the federal and state constitutions. Id. ¶ 9. The motion was denied, and Hoover appealed. Id. We affirmed the motion court's order concluding that there was no evidence supporting the Bartkus exception to the dual sovereignty doctrine,³ and that double jeopardy principles did notbar the State's prosecution, regardless of any potential for duplicative punishment.⁴ Id. ¶ 19. In a footnote, we stated that "if Hoover is eventually convicted of the gross sexual assault charges, the trial court could consider, as a basis for a downward departure in the resulting sentence, that the sexually assaultive conduct underlying the offenses has previously been taken into account in sentencing for a different offense." Id. ¶ 15 n.2.

[¶11] After withdrawing several pending motions, on November 30, 2015, Hoover pleaded guilty to the one count of gross sexual assault in the Somerset County case and to counts one, six, and twelve in the Kennebec County case. The court (Murphy, J.) conducted an inquiry pursuant to M.R.U. Crim. P. 11(b). The State provided the court with the following factual bases for the charges. See M.R.U. Crim. P. 11(b)(3), (e).

[¶12] On October 3, 2012, federal and state law enforcement agents conducting a child pornography investigation discovered hundreds of images and videos of sexual assaults of a child on Hoover's computer after a consented-to search. Some of the images and videos seized from Hoover appeared to be "homemade." Hoover admitted that he made the videos andthat he "messed with" or "fooled around with" the victims, but he denied drugging or penetrating them. The victims appeared to be unconscious in the videos, and they have no memory of the sexual assaults. The videos showed sexual acts committed by Hoover against the victims and appeared to show penetration. Hoover was the Somerset County victim's karate teacher. In April 2012, he took the Somerset County victim, then eleven years old, to a cabin where he sexually assaulted the boy as shown in the video. Hoover assaulted the Kennebec County victim in December 2008 when the victim was ten years old and again in July 2009 and February 2010 when the victim was eleven years old.⁵

[¶13] The court accepted the open plea and continued the matter for sentencing. Before the sentencing hearing, Hoover filed a motion objecting to the State's request that the court review certain images and videos of the assaults that were contained on a thumb drive. The court denied Hoover's motion and viewed the images in camera. The parties disagreed on whether the images and videos contained evidence of drugging and penetration. The court stated that it would make factual findings on these issues.

[¶14] On February 24, 2016, the court held a contested sentencing hearing. Before the hearing, the State asked the court to engage in a "Shortsleeves-type" analysis and find aggravating circumstances given that Hoover could be sentenced to any term of years amounting to a de facto life sentence. See State v. Shortsleeves, 580 A.2d 145, 149-50 (Me. 1990). The court noted that for the charges in these cases the Legislature has not authorized life sentences, only de facto life sentences, and declined to apply Shortsleeves stating that the statute and case law do not limit what constitutes an aggravating factor.

[¶15] Both Hoover and the State submitted sentencing memoranda to the court. Hoover also provided twenty-four exhibits, including numerous sentencing orders and transcripts from what Hoover alleged were other, similar sentencings. The State recommended twenty-five years' imprisonment in the Somerset County case, forty years' imprisonment in the Kennebec County case, to be served consecutively, and lifetime supervised release. Hoover requested an overall period of incarceration of twenty-five to thirty years. Hoover agreed that lifetime supervised release was appropriate.

[¶16] After considering the images and videos on the thumb drive and the attached forensic report, the court found that the victims had been drugged and that there was penetration. The court set the basic sentence for the Somerset County case at twenty years and the basic sentence in the Kennebec County case at thirty years based on multiple incidents. The court considered the drugging and penetration in determining the basic sentence as different ways that the...