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Criminal Defense

MAINE'S CRIMINAL LAW - AN OVERVIEW

1. CLASSIFICATION OF CRIMES AND SENTENCES OF IMPRISONMENT.

Under Maine criminal law, all crimes other than murder are designated as Class A, B, C, D or E. 17-A M.R.S.A. section 4. Because of the maximum terms of incarceration that they carry, Class D and E crimes are commonly referred to as misdemeanors, and Class A, B and C crimes are commonly referred to as felonies. Maximum terms of imprisonment for each class of crime are as follow:

Class A crimes- 30 years
Class B crimes- 10 years
Class C crimes- 5 years
Class D Crimes- 364 days
Class E Crimes- 6 months

17-A M.R.S.A. section 1252(2).

Murder is a class of crime unto itself, carrying a minimum sentence of 25 years and a maximum sentence of life in prison. 17-A M.R.S.A. section 1251.

Sentences of imprisonment may be ordered fully served in incarceration, may be wholly suspended with probation, or may be split, with an unsuspended portion of the sentence to be served in incarceration, followed by a period of probation. 17-A M.R.S.A. section 1152(2). The process for sentencing defendants on Class A, B and C crimes is set forth in case law and in the statutes. It involves a three part analysis, with the first stage focusing on the "particular nature and seriousness of the offense as committed by the offender." 17-A M.R.S.A. section 1252-C(1), State v. Hewey , 622 A.2d 1151, 1154 (Me. 1993). After ranking the offense along the range of punishment for that class of crime, compared to the various ways the offense could be committed, the next stage involves weighing all aggravating and mitigating factors, including those factors peculiar to the offender, to determine whether the sentence arrived at in the first stage of analysis should be increased or decreased. 17-A M..R.S.A. section 1252-C(2), Hewey at 1154. Finally, in the third stage of analysis, the court is to analyze what, if any, portion of the sentence arrived at in the first two stages should be suspended with probation. 17-A M.R.S.A. section 1252-C(3), Hewey at 1154. At this stage, the court is again to consider those factors peculiar to the offender. Hewey at 1154.

Although rarely used, Maine law also provides for the sentencing alternative of unconditional discharge-- essentially no sanction, other than the fact of conviction itself. 17-A M.R.S.A. section 1152(2)(A).


2. FINES

Fines can be imposed in place of or in addition to imprisonment. 17-A M.R.S.A. section 1152(C) and (G). They can be suspended in whole or in part (unless the statute of conviction expressly states that the fine cannot be suspended) and they can be enforced as a condition of probation. Id . The maximum fines for individuals, for each class of crime, are as follow:

Class A crimes- $50,000.00
Class B crimes- $20,000.00
Class C crimes- $5,000.00
Class D crimes- $2,000.00
Class E crimes- $1,000.00
17-A M.R.S.A. section 1301(1-A)

All fines are subject to a "government operations surcharge," which is frequently increased by the legislature and has now risen to 20% of the fine amount. 4 M.R.S.A. section 1057(2). Fines are also subject to a "victim compensation fund" surcharge, in the amount of $25.00 for each Class A, B and C crime and $10.00 for each Class D and E crime. 5 M.R.S.A. section 3360-I. The crime of Operating Under the Influence carries an additional surcharge of $30.00 where intoxicating liquor is involved and $125.00 where drugs or a combination of drugs and liquor are involved. 29-A M.R.S.A. section 2411(7).


3. PROBATION AND SPLIT SENTENCES

The following maximum terms of probation are available for each class of crime, under 17-A M.R.S.A. section 1202(1):
Class A- 4 years
Class B- 3 years
Class C- 2 years
Class D- 1 year
Class E- 1 year
Maximum probation terms are extended for Class A, B and C sex crimes involving victims under age 12, as well as for those sentenced as repeat sexual assault offenders. 17-A M.R.S.A. section 1202. For certain felony offenses committed against a family or household member, probation terms are extended to 6 years for Class A, and 4 years for Class B and C crimes. Id . Also, if it is pled and proved that certain Class D or E crimes were committed against a family or household member, the offender may be sentenced to serve two years of probation in order to complete a certified "batterers' intervention program." 17-A M.R.S.A. section 1202(1-B). This extended period of probation must be terminated once the batterers' intervention program has been completed and at least one year of the probation term has been served, provided all other probation conditions have been met. Id . A sentence with probation may take either of two forms. It may be fully suspended with probation, or a portion of the sentence may be ordered to be served in incarceration and the remainder suspended with probation. 17-A M.R.S.A. sections 1152(2)(D), (2)(B), 1203-C and 1203. The latter form is referred to as a "split sentence." Id. Probation is an available sentencing option for nearly all felony offenses. Probation is not available for murder or for those cases in which the court finds that ordering probation would diminish the gravity of the offense. 17-A M.R.S.A. section 1201(A) and (D). Probation is no longer available for most Class D and E offenses. In 2004, the Maine Legislature limited probation for Class D and E crimes to a handful of offenses. At that time, the Legislature created the alternative sentencing options of deferred disposition and administrative release (discussed below). Probation for Class D and E crimes is now restricted to the following: (1) certain Class D crimes committed against a family or household member; (2) certain Class D and E sex offenses; (3) most forms of indecent conduct; (4) patronizing prostitution of a person under age 18; (5) any Class D or E crime for which the parties reach a written agreement and the court makes a finding that the underlying criminal episode generated probable cause to believe the defendant committed a Class A, B or C crime, but only if the defendant has never before been convicted of murder or of a Class A, B or C crime and has never before been placed on misdemeanor probation under this particular mechanism; (6) the Class D crime of stalking; (7) any Class D drug offense involving a schedule W drug (which includes heroin, cocaine, barbiturates, amphetamines, LSD and "ecstasy"); and (8) OUI offenses where the driver has one prior OUI offense within 10 years of the instant conduct. 17-A M.R.S.A. section 1201(1)(A-1). Throughout the entire probation term, a probationer remains at risk of having any or all of the suspended portion of his or her sentence ordered served in incarceration for a probation violation. 17-A M.R.S.A. section 1206(7-A). For example, on a sentence of 3 years, with all but 90 days suspended and 2 years of probation, the offender who violates probation after 1 year and 11 months may be ordered to serve up to a full 2 years and 9 months in prison for the violation.
a. Probation Supervision Fees
Courts are instructed to impose a probation condition that each probationer pay a supervision fee of between $10.00 and $50.00 per month. 17-A M.R.S.A. section 1204(1-A). The amount is to be based on the offender's finances and the burden imposed by payment. Id. A willful failure to pay or to make a good-faith effort to obtain funds needed to pay the fee can lead to a probation revocation. Id. The court cannot remove a supervision fee requirement unless and until the probationer is in his final 30 days of probation. Id. If the Department of Corrections requests, courts are also instructed to impose electronic monitoring and drug and alcohol testing fees as probation conditions. 17-A M.R.S.A. section 1204(1-B). Again, the court must set the amount of the fee under an ability to pay test; willful failure to pay can lead to a probation revocation; and the offender cannot be relieved of the condition, if at all, until the last 30 days of probation. Id.


4. WHERE AND HOW WILL A TERM OF INCARCERATION BE SERVED?

Ordinarily, sentences of incarceration for Class D and E Crimes must be served in the county jail, in the county where the crime was committed. 17-A M.R.S.A. section 1252(1)(A). Exceptions may be made for consecutive misdemeanor sentences that aggregate to more than 9 months and for county jail sentences that are either to precede or to follow sentences to the Department of Corrections. 17-A M.R.S.A. section 1252(7). In such exceptional cases, a sentencing judge may order that the entire aggregate sentence be served in the Department of Corrections. Id . For Class A, B and C crimes, unsuspended sentences of more than 9 months must be served in the Department of Corrections, the State's prison system. 17-A M.R.S.A. section 1252(1)(B)(2). If the unsuspended portion of a sentence on a Class A, B or C crime is 9 months or less, that portion of the sentence must be served in the county jail. 17-A M.R.S.A section 1252(1)(B)(1). If probation is revoked on a Class A, B or C crime, and the probationer is ordered to serve more than 9 months of the sentence for the violation, incarceration will take place in Department of Corrections custody. 17-A M.R.S.A. section 1206(9). If the revocation sentence in such a case is 9 months or less, the term will be served in the county jail. Id.

a. County Jail Work Release
Work release is available for county jail inmates, under 30-A. M.R.S.A. section 1605. The sheriff, not the court, grants or denies the privilege. 30-A M.R.S.A. section 1605(2-A) and (9). Typically, jail policy dictates that an inmate must serve 1/3 of his or her sentence before becoming eligible for work release.

b. Home Release Monitoring
Home release monitoring is available to inmates at county jails where a program for the same has been established. 30-A M.R.S.A. section 1659. This program allows inmates to serve the latter portion of their sentences at home, under restrictive conditions. An inmate must complete 1/3 of his or her sentence before participation is allowed. 30-A M.R.S.A. section 1659(2)(D). In order to be eligible, the inmate must be serving a sentence on a Class C, D or E crime, not involving a sexual assault; must meet a medium or minimum security classification; and must reside in a county where a home release monitoring program has been established. 30-A M.R.S.A. section 1659(2)(A) through (C-1). The inmate must request program participation in writing. 30-A M.R.S.A. section 1659(1). The sheriff must notify the sentencing court prior to releasing the inmate to home monitoring. Id. The court may withdraw the privilege at any time, with or without a hearing, although the court must first provide the sheriff with an opportunity to comment. Id.


5. DEFERRED DISPOSITION AND ADMINISTRATIVE RELEASE.

Beginning in 2004, the Maine Legislature created two new sentencing options: "deferred disposition" and "administrative release."

A sentence of deferred disposition is authorized for anyone who pleads guilty to any Class C, D or E crime. 17-A M.R.S.A. section 1348. In a deferred disposition arrangement, the court accepts the guilty plea and continues the case for later disposition (typically for one year). 17-A M.R.S.A. section 1348-A(1). During the deferral period, the defendant is required not to commit any criminal conduct, and may be placed under any other reasonable conditions the court deems appropriate to assist the defendant to lead a law-abiding life. Id. The prosecutor can bring a motion for a hearing on disposition if there is probable cause to believe the defendant has violated a deferred disposition requirement. 17-A M.R.S.A. section 1348-A(2). If the court decides by a preponderance of the evidence that the defendant inexcusably failed to comply with a deferred disposition requirement, the court may continue the running of the deferred disposition period with new or amended conditions or with unchanged conditions, or the court may terminate the deferment and impose a sentence within the range of punishment available for the crime to which the person pled guilty. Id. At the end of the deferral term, there is to be a hearing on disposition. 17-A M.R.S.A. section 1348-B(1). At that hearing, the defendant bears the burden of demonstrating by a preponderance of the evidence that he or she has complied with all deferred disposition conditions. Id. If this burden is met, the State may move to allow the defendant to withdraw the previously entered guilty plea. Id. If this occurs, the court is to grant the State's motion, allowing the defendant to withdraw the guilty plea, at which point the State is to dismiss the charge with prejudice. Id . If the burden is not met, or if the written deferred disposition agreement calls for imposition of a sentence even upon successful completion, the court is to sentence the defendant within the terms of the written agreement. Id.

Administrative release is an available sentencing option for Class D and E crimes, and for the Class C crime of operating after license revocation. 17-A M.R.S.A. section 1349(1). It is not available if the person has also been sentenced to serve a period of probation for the same offense. Id. However, a person already serving a period of probation may move the court to convert the probation period to a period of administrative release. 17-A M.R.S.A. section 1174-A. Unlike a deferred disposition, administrative release can be imposed when a person has been found guilty after trial, as well as after the person has pled guilty. Id. Administrative release may be imposed as part of a sentence involving a wholly suspended jail term; a jail term suspended in part after a period of incarceration is served; or a fine that is suspended in whole or in part. 17-A M.R.S.A. section 1349-B(1) and (2). The maximum term of administrative release is one year. Id. During the administrative release term, the person must abide by conditions ordered by the court, which must include that the person commit no criminal conduct and may include any other conditions the court determines are reasonable and appropriate to help ensure the person's "accountability and rehabilitation." 17-A M.R.S.A. section 1349-C. If the prosecutor has probable cause to believe the person has violated an administrative release condition, the prosecutor can file a motion to revoke administrative release. If the court determines by a preponderance of the evidence that a violation has occurred, the court can revoke administrative release. If the court revokes administrative release, it may order that a portion of the suspended sentence be imposed, with administrative release to continue; it may decide not to impose any portion of the suspended sentence, but to continue administrative release with or without added conditions; or it may impose all or a portion of the suspended sentence and terminate administrative release. 17-A M.R.S.A. section 1349-E, 1206. Once the administrative release period has been fully served, or terminated without a motion to revoke, under 17-A M.R.S.A. section 1349-A(3), the sentence is completed and the person is fully discharged.

6. COMMUNITY SERVICE WORK.

Community service work is authorized as a sentencing alternative for Class D and E crimes, under 17-A M.R.S.A section 1345. The work may be performed for any entity approved by the court. 17-A M.R.S.A. section 1345(1). If a defendant does not perform the work as ordered, he or she is to be returned to court "for further disposition." 17-A M.R.S.A. sedtion 1345(2). Community service may be ordered on its own or in combination with other sentencing alternatives, such as probation, deferred dispostion and administrative release. 17-A M.R.S.A. sections 1204(2-A)(L), 1348-A(1) and 1349-C(2)(C).

7. RESTITUTION

One of the "general purposes" of sentencing, set forth in Maine's sentencing statutes, is "[t]o encourage restitution in all cases in which the victim can be compensated and other purposes of sentencing can be appropriately served." 17-A M.R.S.A. section 1151(2). Courts are instructed, "whenever practicable," to inquire into the extent of a victim's loss and to order restitution "where appropriate." 17-A M.R.S.A. section 1323(1).

It is not appropriate to order payment of restitution to a victim who has not consented to restitution, 17-A M.R.S.A. section 1325(2)(A), to a victim who is an accomplice of the offender, 17-A M.R.S.A. section 1325(2)(B), or to a victim who has been compensated from a collateral source, except to the extent the victim's loss exceeds the amount of collateral compensation, 17-A M.R.S.A. section 1325 (2)(C). The prosecution must first establish, by a preponderance of the evidence, that the victim's economic losses are the result of the offender's criminal conduct. State v. Walker , 675 A.2d 499 (Me. 1996). So, for instance, is not appropriate for a court to order payment of restitution for the cost to the state of court and counsel fees for prosecuting an offender in an OUI case. State v Lane , 649 A.2d 1112 (Me. 1994). Similarly, it is inappropriate to order restitution for damage to another's automobile on a conviction of leaving the scene of an accident, because it is not the criminal conduct of leaving the scene, but the accident itself, that causes the victim's damage. State v. Beaudoin , 503 A.2d 1289 (Me. 1986).

Restitution cannot be ordered unless the court finds that the offender has the present or future capacity to pay. State v.Walker , 675 A.2d 499 (Me. 1996). The finding of capacity to pay is to be derived from all of the information before the court. Id. Restitution is authorized as a part of any sentencing alternative other than unconditional discharge. 17-A M.R.S.A. section 1153(2-A). This includes the sentencing alternative, under 17-A M.R.S.A. section 1152(2)(C), of a fine that is suspended in whole or in part.