State v. Lopez

184 A.3d 880

STATE of Maine

v.John V.C. LOPEZ

Docket: Yor–17–112

Supreme Judicial Court of Maine.

Argued November 15, 2017

Decided: April 26, 2018

Andrea S. Manthorne, Esq. (orally), Roach, Hewitt, Ruprecht, Sanchez & Bischoff, Portland, for appellant John V.C. Lopez

Janet T. Mills, Attorney General, and Donald W. Macomber, Asst. Atty. Gen. (orally), Office of the Attorney General, Augusta, for appellee State of Maine

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

JABAR, J.

[¶ 1] John V.C. Lopez appeals from a judgment of conviction entered by the sentencing court (York County, Billings, J. ) following his guilty plea to an information charging him with felony murder (Class A), 17–A M.R.S. § 202(1) (2017). The court imposed a prison sentence of twenty years, all but ten years suspended, with four years' probation and a restitution order of $6,592.63. Lopez challenges his sentence on the grounds that it (1) is unconstitutionally disproportionate; and (2) denies his constitutional right to equal protection. We affirm the judgment.

I. BACKGROUND

A. Factual History

[¶ 2] The following undisputed facts are set forth in the State's Rule 11 summary of evidence that, absent Lopez's guilty plea, would have been presented at trial. See M.R.U. Crim. P. 11 ; State v. Ward , 2011 ME 74, ¶ 2, 21 A.3d 1033.

[¶ 3] On March 24, 2013, Lopez and Bub Nguany were managing a drug operation at a house in Saco when two unknown men stole drugs and money from them. Lopez and Nguany made immediate plans to "recover their property and make things right." The next day, Lopez texted Mohamud Mohamed and asked him for a firearm to use. On March 26, 2013, the three men drove in two vehicles from Old Orchard Beach to Birch Street in Biddeford, where the victim, Charles Raybine, was sitting in a car with his nephew. As Nguany got out of his car, Raybine's nephew heard "talking, arguing or conversation" between the vehicles' occupants. Nguany then approached the driver's window, pulled out a gun, and shot Raybine three times. Nguany quickly returned to his car and both vehicles were driven back to Old Orchard Beach.

[¶ 4] After police responded to the scene, an alert was sent out with a description of the shooter and the vehicles. Because an Old Orchard Beach police officer had stopped Nguany for a traffic infraction a couple of days earlier, he recognized the descriptions as matching Nguany and Nguany's vehicle. Police then proceeded to arrest Nguany outside of Lopez's apartment. Incident to that arrest, police discovered drugs and a gun in his backpack, and testing demonstrated that the gun matched the bullets and shell casings found at the scene of the shooting.

B. Preliminary Proceedings

[¶ 5] On May 6, 2015, Lopez was indicted for one count of intentional or knowing murder, 17–A M.R.S. § 201(1)(A) (2017), and one count of conspiracy to commit murder (Class A), 17–A M.R.S. § 151(1)(A) (2017). After the State filed a notice of joinder concerning Lopez, Nguany, and Mohamed, Lopez pleaded not guilty to the charges at arraignment. See M.R.U. Crim. P. 8(b). Lopez subsequently reached a plea agreement with the State—in exchange for a guilty plea to an information charging him with felony murder (Class A), 17–A M.R.S. § 202(1), the State would dismiss the other charges and recommend a sentence of no greater than twenty-five years' imprisonment, all but fifteen years suspended, with four years' probation. Lopez reserved his right to argue for a lesser sentence than the sentence to be recommended by the State.¹ Accordingly, Lopez waived indictment on the felony murder charge and pleaded guilty. Like Lopez, co-defendant Mohamed was initially indicted for intentional or knowing murder and conspiracy to commit murder. In exchange for Mohamed's guilty plea to the conspiracy charge, the State dismissed the charge of intentional or knowing murder. For the charge of conspiracy to commit murder, 17–A M.R.S. § 151(1)(A), Mohamed received a sentence of seven years' imprisonment, all but three years suspended, with four years' probation. Nguany—the man who pulled the trigger—pleaded guilty to murder, 17–A M.R.S. § 201(1)(A), and conspiracy to commit murder, 17–A M.R.S. § 151(1)(A), and received a sentence of forty years' imprisonment.

C. Rule 11 Proceedings

[¶ 6] At the Rule 11 hearing on November 4, 2016, the court (Billings, J. ) verified that Lopez understood the contents of the plea agreement and confirmed that Lopez's guilty plea was knowing and voluntary. Asked whether he wished to correct any part of State's summary of the evidence, Lopez replied, "No, Your Honor." The court therefore accepted the guilty plea.

D. Sentencing

[¶ 7] In chambers and on the record with counsel before sentencing two weeks later on February 17, 2017, the court asked the State to explain the disparity between the sentence recommended for Lopez and the sentence received by Mohamed. Specifically, the court asked the State "why the State sees the distinction between Moham[e]d and ... Lopez." The court stated that its concern centered on the principle that

part of the provisions of the Sentencing Code is to eliminate disparity in sentencing between defendants. I think public policy is aimed at disparity generally across ... a class of crimes and looking at it ... statewide. But, to me, it is particularly an issue with co[-]defendants in the same case.

[¶ 8] According to the State, there was direct evidence that Lopez (1) was actively involved in the drug trade when he was robbed the night before the murder; and (2) sought out a firearm within twenty-four hours after that robbery. Conversely, the State lacked direct evidence that Mohamed engaged in the drug trade, and the only evidence linking him to the murder was the cell phone location records and the text message between Lopez and Mohamed in which Lopez requested a firearm. The State explained that although it could present witnesses who would place Mohamed in Old Orchard Beach before the murder, witnesses identifying Mohamed in Old Orchard Beach after the murder "were problematic in terms of getting them here and having their cooperation. That was sort of the proof issue."

[¶ 9] The State made its final sentence recommendation of twenty-five years' imprisonment, all but fifteen years suspended, and four years' probation. Lopez argued that the court should impose a lesser sentence of seven years' imprisonment, all but three years suspended, and four years' probation. In open court after sentencing recommendations, the court again addressed the variation between the sentence the State recommended for Lopez and the sentence Mohammed received. First, the court noted the "legitimate circumstances that differentiate Mr. Lopez's circumstances from Mr. Mohamed's circumstances," explaining that "the State had some doubt about their ability to prove particularly the [murder] charge but possibly even the conspiracy charge due to the state of the evidence." In the court's view, "when an experienced prosecutor comes forward and says ... they believe they have the evidence and believe somebody is guilty, that they have some doubt about how that would actually play out in court, that's something the court should take into account." Second, the court found it "significant" that Lopez was involved in the drug trade and "was present at the time of the robbery that, it seems pretty clear, kicked off the course of events that led to Mr. Raybine's tragic murder." Finally, the court acknowledged its obligation to "permit sentences that do not diminish the gravity of the offense," and reiterated that Lopez pleaded guilty to a "serious charge that ultimately involves the death of a human being."

[¶ 10] The court set the basic sentence for Lopez at twenty years' imprisonment. The court set out what it considered aggravating factors, which included (1) Lopez's involvement in the drug trade; (2) the crime's impact on the victim's family; and (3) the "commission of armed robberies, shootings, those going on in our community and the effect that that has on our community and the public as a whole." The court also set out mitigating factors, which included (1) Lopez's youth; (2) his history as a "productive member of society"; (3) his intelligence; (4) his "effort while in jail"; and (5) the fact that Lopez pleaded guilty and "spared the victim's family [from] a trial." Concluding that aggravating and mitigating factors were "closely in balance," the court determined that the maximum period of incarceration was also twenty years.

[¶ 11] In arriving at the final sentence, the court suspended ten years of the twenty-year sentence and ordered four years' probation. The court considered (1) Lopez's efforts while in jail; (2) his lack of significant prior criminal conduct; (3) that Lopez accepted responsibility by expressing remorse for his actions; (4) his "character, his family and community support"; (5) the "gravity and seriousness" of the felony murder offense; and (6) a concern for public safety because, despite all Lopez's advantages, "he made very bad choices that led him to a circumstance ... that someone ended up being murdered." The court also ordered Lopez to pay $6,592.63 in restitution.

E. Post–Conviction Proceedings

[¶ 12] On March 6, 2017, Lopez filed an application for leave to appeal his sentence pursuant to 15 M.R.S. § 2151 (2017) and M.R. App. P. 20(a)(1) (Tower 2016).² The Sentence Review Panel denied that application. Lopez also filed a timely notice of appeal. After confirming that Lopez intended to claim a violation of his constitutional rights, a permissible ground for challenging his conviction on direct appeal, see State v. Bennett , 2015 ME 46, ¶ 13, 114 A.3d 994, we permitted the appeal to proceed.

II. DISCUSSION

[¶ 13] Lopez contends that his sentence is unconstitutionally disproportionate and that it denies him the equal protection of the law. "We review the legality and constitutionality of a sentence de novo." Id. ¶...