State v. Stanislaw

65 A.3d 1242

2013 ME 43

STATE of Maine

v.Theodore S. STANISLAW.

Docket No. SRP–11–378.

Supreme Judicial Court of Maine.

Argued: June 13, 2012.

Decided: May 7, 2013.

Glen L. Porter, Esq., (orally), and Ryan P. Dumais, Esq., Eaton Peabody, Bangor, on the briefs, for appellant Theodore S. Stanislaw.

Carletta Bassano, District Attorney, and Mary N. Kellett, Asst. Dist. Atty., (orally), Prosecutorial District No. VII, Ellsworth, on the briefs, for appellee State of Maine.

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

Majority: ALEXANDER, LEVY, SILVER, and JABAR, JJ.

Dissent: SAUFLEY, C.J., and MEAD and GORMAN, JJ.

SILVER, J.

[¶ 1] Theodore S. Stanislaw appeals for a second time challenging the sentence imposed by the trial court (Hancock County, Cuddy, J.) following his guilty plea to three counts of unlawful sexual contact (Class B), 17–A M.R.S. § 255–A(1)(E–l) (2012), and one count of unlawful sexual contact (Class C), 17–A M.R.S. § 255–A(1)(E) (2012).¹ He contends that the court erred in applying the three steps of the sentencing analysis required pursuant to 17–A M.R.S. § 1252–C (2012), that the court abused its discretion in imposing consecutive sentences on each of the counts, and that his overall sentence of twenty-seven years in prison is excessive. We vacate the sentence because it is disproportionate to other sentences for similar crimes.

I. BACKGROUND

[¶ 2] Stanislaw, now age 54, pleaded guilty in an open plea to sexual crimes involving five girls. The events took place between 2004 and 2008, and the victims were between ten and fourteen years old. His actions toward these girls involved a range of contact, but none of his actions constituted a ‘sexual act’ as that term is defined in 17–A M.R.S. § 251(1)(C) (2012). ² His criminal conduct involved exposing himself, touching and kissing his victims, and walking in on his victims and hugging them while they were unclothed or only partially clothed. Some of the touching was skin to skin, some involved touching through clothing. The record includes no evidence that any touching involved penetration.

[¶ 3] Based on his contact with the first victim, he pleaded guilty to three counts of unlawful sexual contact (Class B), 17–A M.R.S. § 255–A(1)(E–1). These acts occurred during the summers of 2004, 2005, and 2006, starting when the victim was ten years old. The victim's family was friendly with the Stanislaw family and the girl helped care for Stanislaw's young son. On one occasion Stanislaw exposed himself to her and placed her hand on his penis. On another occasion, after she fell asleep at his house, he carried her to a bed and pressed his body, including his penis, up against her while they were clothed. Stanislaw also allowed her to drive his motor vehicle in his driveway while she sat on his lap. While the girl was sitting on his lap, Stanislaw reached under her clothing and touched her breasts and genitals. This girl had been one of his piano students, but she had previously quit lessons because he had touched her leg and had sat uncomfortably close to her.

[¶ 4] For his actions with the second victim, Stanislaw pleaded guilty to one count of unlawful sexual contact (Class C), 17–A M.R.S. § 255–A(1)(E) and one count of assault (Class D), 17–A M.R.S. § 207(1)(A) (2012). The second girl, who was also his music student, was victimized beginning in 2007 when she was thirteen. Stanislaw touched her genitals three or four times through her clothes and at least once “French kissed” her during music lessons. Additionally, once when she complained of being cold after swimming, he removed her clothes and held her against him while he was naked.

[¶ 5] Stanislaw pleaded guilty to three counts of assault (Class D), 17–A M.R.S. § 207(1)(A), based on contacts with his third and fourth victims. He assaulted both of these girls, aged thirteen and fourteen, during 2008. He kissed the third victim on the lips in an “adult manner” on at least five occasions. On one occasion, he entered a bathroom where she was dressing and hugged her while she was half-naked and he was completely naked. Stanislaw kissed the fourth victim on the mouth on one occasion and during music lessons regularly put his hand on her clothed thigh in a way that made her feel uncomfortable.

[¶ 6] Finally, Stanislaw pleaded guilty to one count of unlawful sexual touching (Class D), 17–A M.R.S. § 260(1)(C) (2012), for his conduct with his fifth victim. This victim, who was twelve years old at the time of the offense, went to Stanislaw's residence to babysit his young son. While she was there Stanislaw “touched her in a sexual manner” through her clothing.

[¶ 7] Stanislaw has one previous felony conviction. In 1982, when Stanislaw was twenty-four, he pleaded guilty in New York to Sexual Abuse 1st Degree for subjecting “a person less than eleven years old, to sexual contact, by fondling her vagina.” SeeN.Y. Penal Law § 130.65(3) (Consol. 2000 & Supp.2012). He was sentenced to five years' probation.

[¶ 8] For his offenses in Maine, Stanislaw was initially sentenced “to serve a total of twenty-eight years in prison, followed by four years of probation, during which he was at risk of serving an additional two years.” State v. Stanislaw, 2011 ME 67, ¶ 4, 21 A.3d 91( Stanislaw I ). This overall sentence included three consecutive sentences of nine years of imprisonment on each of the Class B offenses. Id. On the Class C offense, Stanislaw was sentenced to three years of imprisonment, with all but one year suspended, to be served consecutively to the terms on the Class B offenses, followed by four years of probation. Id. The sentences on the Class D offenses were not at issue in the prior appeal, see id. ¶ 5, and are not at issue here. The court arrived at the sentences on each of the Class B offenses by first setting a basic term of imprisonment, pursuant to 17–A M.R.S. § 1252–C(1), of nine years out of the ten-year maximum authorized by 17–A M.R.S. § 1252(2)(B) (2012). Stanislaw I, 2011 ME 67, ¶ 10, 21 A.3d 91.

[¶ 9] On appeal, we concluded that we were unable to review how the court determined the basic sentence on the Class B offenses because the court appeared to have combined its analysis of the objective facts of the crime itself with its analysis of aggravating factors. Id. ¶¶ 10, 13. We did not consider whether the court abused its discretion as to the maximum sentence, pursuant to 17–A M.R.S. § 1252–C(2), or the final sentence, pursuant to 17–A M.R.S. § 1252–C(3), nor did we consider whether the sentence was excessive. Stanislaw I, 2011 ME 67, ¶ 5 n. 5, 21 A.3d 91.

[¶ 10] On remand, the court held a hearing to resentence Stanislaw. At step one of the sentencing analysis, the court set the basic sentence at six years on each of the three Class B convictions and two to three years on the Class C conviction, pursuant to 17–A M.R.S. § 1252–C(1). The court found that the crimes as committed by Stanislaw were serious because they involved both unacceptable physical contact and a high likelihood of causing lasting emotional scars, but also found that the crimes were not committed in the most serious manner possible and therefore did not warrant the maximum basic sentence.

[¶ 11] At step two of the analysis, which involves setting the maximum period of imprisonment considering all relevant aggravating and mitigating factors pursuant to section 1252–C(2), the court increased the three sentences on the Class B offenses to eight years, and increased the sentence on the Class C offense to four years. The only mitigating factors the court found were that Stanislaw pleaded guilty, thereby sparing the victims from having to testify at trial, and that Stanislaw apologized to the victims and their families at the initial sentencing. The court was not persuaded by the testimony of Stanislaw's psychotherapist on the issue of rehabilitation. Aggravating factors listed by the court included Stanislaw's 1982 conviction for a similar crime, the effect of the crimes on the victims, and the need for protection of the public interest, as provided in section 1252–C(2). The court noted that, given his prior conviction and his use of the trust of parents, the community, and his multiple victims as a tool to facilitate the crimes, Stanislaw is still at high risk of re-offending.

[¶ 12] At step three of the sentencing analysis, which involves determining what portion of the sentence to suspend and the appropriate period of probation pursuant to section 1252–C(3), the court did not suspend any portion of the three eight-year Class B sentences. The court did suspend one year of the four-year sentence it imposed for the Class C offense, and imposed a period of probation of four years. The court noted that the reason for suspending part of the sentence was to provide for a period of supervision for the sake of public safety.

[¶ 13] The court then turned to consider whether to impose consecutive sentences pursuant to 17–A M.R.S. § 1256(2) (2012). The court concluded that a sentence for each Class B and Class C offense that was consecutive to the sentences for all other Class B and C offenses was justified because (1) the Class B offenses involved the same victim but different episodes; (2) the Class C conviction involved a different victim and different conduct from the Class B offenses; (3) the conduct was serious and committed in multiple episodes; and (4) Stanislaw was convicted of a sex crime in 1982. On these grounds, the court found that a combined sentence of imprisonment in excess of the maximum available for the most serious offense was needed to protect public safety. The court did not repeat the third step of the required sentencing analysis—determining whether a suspension of a portion of the sentence of imprisonment is required, 17–A M.R.S. § 1252–C(3)—after concluding that consecutive sentences should be imposed.

[¶ 14] In all, the court sentenced Stanislaw to twenty-eight...