Mark I. Gessner v. State of Maine , 2017 ME 139 ( 2017 )

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2017 ME 139 Docket: Ken-16-407
Submitted
On Briefs: May 25, 2017
Decided: June 27, 2017
Panel: SAUFLEY, C.J., and ALEXANDER, GORMAN, JABAR, and HUMPHREY, JJ.
MARK I. GESSNER
v.
STATE OF MAINE
PER CURIAM
[¶1] Mark I. Gessner appeals from a judgment of the Superior Court
(Kennebec County, Marden, J.) denying his petition for release from the
Riverview Psychiatric Center. Gessner contends that the statute governing his
opportunity for release from institutional inpatient residency is
unconstitutionally vague as applied to him. We affirm the judgment.
[¶2] The record before us is sparse and does not contain any official
documentation regarding Gessner’s criminal history. Accordingly, we rely on
the court’s findings, supported by a Riverview institutional report, for our
summary of Gessner’s criminal history.
[¶3] Gessner was convicted of murder in 1995. While serving his
sentence for that crime, he pleaded guilty to an assault in 2000, he was
2
charged with assault on an officer and criminal mischief in 2004, and he was
charged with aggravated assault and trafficking in prison contraband in 2010.
In 2011, Gessner was found not criminally responsible by reason of insanity
for the 2010 charges, see 17-A M.R.S. § 39 (2016), and the court (Hjelm, J.)
committed him to the custody of the Commissioner of Health and Human
Services, see 15 M.R.S. § 103 (2011).1
[¶4] Gessner was ultimately transferred to Riverview on February 20,
2016, as a result of that commitment.2 He filed a petition for release one
month after he arrived at Riverview, on March 21, 2016. As amended,
Gessner’s petition requested full or modified release.
[¶5] The court (Marden, J.) held an evidentiary hearing on Gessner’s
petition for release in July 2016. Based on the evidence presented, the court
found that Gessner has been diagnosed with multiple mental illnesses since
1 We cite the 2011 version of section 103 because the statute has been amended since that time.
See P.L. 2013, ch. 424, § B-3 (effective July 16, 2013) (codified at 15 M.R.S. § 103 (2016)); P.L. 2011,
ch. 542, § A-10 (effective Mar. 20, 2012).
2 Effective October 9, 2013, the Legislature clarified the law to provide that a person serving a
term of imprisonment who is found not criminally responsible by reason of insanity “must first
serve the undischarged term of imprisonment or the unsuspended portion of the split sentence
before commencing the commitment.” 15 M.R.S. § 103-A(2) (2016); see P.L. 2013, ch. 265, § 4.
Gessner was found not criminally responsible in 2011, before this statute took effect. Although the
transfer may have occurred at the end of his sentence, it appears unlikely that Gessner would have
received the maximum “good time” calculation, and there is nothing in the record that explains why
his transfer to Riverview occurred five years after the entry of the commitment order and
twenty-two years into his thirty-year murder sentence.
3
1993, including reactive psychosis, depression with psychotic features,
schizophrenia, auditory hallucinations, and delusional ideation. He has a
history of refusing medication, both in prison and at Riverview, and does not
consider himself to be mentally ill. In the brief period that he has been at
Riverview, Gessner has not participated in the counseling recommended by
his primary provider, he yells loudly and angrily, and he swears and slams
doors.
[¶6] Faced with very little evidence of any improvement in Gessner’s
illness and with evidence of Gessner’s own resistance to treatment after
twenty-two years in a prison environment, the court was not persuaded that
the Riverview staff would be fully capable of supervising Gessner in a
transition into the community. The court found that Gessner had not met his
burden to establish that it was highly probable that he could be released,
either fully or on a modified basis, without likelihood that he would cause
injury to himself or others due to mental disease or mental defect. See
15 M.R.S. § 104-A(1), (2), (3) (2016); Beal v. State, 2016 ME 169, ¶ 5, 151 A.3d
502; see generally Green v. Comm’r of Mental Health & Mental Retardation,
2000 ME 92, 750 A.2d 1265.
4
[¶7] Gessner timely appealed from the judgment, arguing only that the
statute governing release, 15 M.R.S. § 104-A (2016), was unconstitutionally
vague. See 15 M.R.S. § 2115 (2016); M.R. App. P. 2. Because Gessner did not
raise the vagueness issue to the trial court, we review for obvious error, which
requires a showing “that there is (1) an error, (2) that is plain, and (3) that
affects substantial rights. Even if these three conditions are met, we will set
aside a [judgment] only if we conclude that (4) the error seriously affects the
fairness and integrity or public reputation of judicial proceedings.” State v.
Sexton, 2017 ME 65, ¶ 36, --- A.3d --- (citation omitted) (quotation marks
omitted); see State v. Preston, 2011 ME 98, ¶ 7, 26 A.3d 850.
[¶8] We test Gessner’s vagueness challenge “in the circumstances of the
individual case and considering whether the statutory language was
sufficiently clear” to give him adequate notice of the requisites for his release.
State v. Reckards, 2015 ME 31, ¶ 4, 113 A.3d 589 (quotation marks omitted).
Section 104-A requires consideration of whether “the person may be released
or discharged without likelihood that the person will cause injury to that
person or to others due to mental disease or mental defect.” 15 M.R.S.
§ 104-A(1).
5
[¶9] We are not persuaded, on this record, that the statutory language
is unconstitutionally vague. The trial court’s judgment provided Gessner with
an explanation of how he failed to satisfy the statutory requirements—
specifically, the court found that Gessner has not acknowledged his mental
illness or participated meaningfully in treatment, as advised by his primary
care provider, to address his explosiveness and adjust to life outside of prison.
Considering Gessner’s history of mental illness and violence, and his refusal to
acknowledge his mental illness or to participate in treatment, the statute’s
terms are not vague for purposes of addressing the individual circumstances
at issue here. See Reckards, 2015 ME 31, ¶ 4, 113 A.3d 589. Gessner has not
met his burden of demonstrating that the court committed obvious error. See
Dorr v. Woodard, 2016 ME 79, ¶ 7, 140 A.3d 467 (explaining that the burden is
on the person challenging the constitutionality of a statute to establish its
infirmity).
The entry is:
Judgment affirmed.
6
Rory A. McNamara, Esq., Drake Law, LLC, Berwick, for appellant Mark I.
Gessner
Maeghan Maloney, District Attorney, Carie James, Asst. Dist. Atty., and Mary-
Ann Letourneau, Stud. Atty., Prosecutorial District IV, Augusta, for appellee
State of Maine
Kennebec County Superior Court docket number CR-2016-60
FOR CLERK REFERENCE ONLY