State of Maine v. Wade R. Hoover , 169 A.3d 904 ( 2017 )

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2017 ME 158Docket: Ken-16-118, SRP-16-119
Argued: May 11, 2017
Decided: July 18, 2017
Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.
STATE OF MAINE
v.
WADE R. HOOVER
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 Hoover
contends that (1) the court erred by imposing a sentence that is
1 Title 17-A M.R.S. § 1252(4-E) (2016) mandates a “basic term of imprisonment” of “at least
20 years” and “a definite term of imprisonment for any term of years” for a person convicted of
gross sexual assault upon a person under twelve years of age as defined by 17-A M.R.S. § 253
(2016).
2
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.
3
[¶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);
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 on
the 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,
2 The 2016 recommended decision by the magistrate judge (Nivison, Mag.) on Hoover’s motion
to vacate, set aside, or correct his sentences, pursuant to 28 U.S.C. § 2255 (2012), summarized the
2013 sentencing proceeding and was accepted and affirmed by the sentencing judge
(J. Woodcock, J.).
5
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 not
bar the State’s prosecution, regardless of any potential for duplicative
3 See Bartkus v. Illinois, 359 U.S. 121, 123-24 (1959); see also United States v. Guzman,
85 F.3d 823, 826-27 (1st Cir. 1996); State v. Mitchell, 1998 ME 128, ¶ 6, 712 A.2d 1033.
6
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 and
that he “messed with” or “fooled around with” the victims, but he denied
4 Hoover filed a writ of certiorari to the United States Supreme Court seeking review of our
decision, but his petition was denied on January 19, 2016. See State v. Hoover, 2015 ME 109,
121 A.3d 1281, cert. denied, 136 S. Ct. 905 (2016).
7
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.
5 The State did not further describe Hoover’s relationship with the Kennebec County victim at
the Rule 11 hearing. In its sentencing memorandum, the State explained that Hoover had dated the
Kennebec County victim’s mother before enlisting in the military in 2004. When Hoover left the
service in November 2008, he returned to the boy’s life, including as his karate teacher.
8
[¶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
9
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 offenses could be committed and not as aggravating
factors in determining the maximum sentence. For aggravating factors, the
court found that the victim impact on the boys and their families was
“profound,” Hoover breached their relationships of trust, and he
“memorialized these incidents by photographing these children in ways that
also violated their dignity.” For mitigating factors, the court found that
Hoover had no prior criminal history, he was honorably discharged from the
military, and he pleaded guilty, sparing the victims and their families the
rigors of trial.
[¶17] The court concluded that the aggravating factors outweighed the
mitigating factors, primarily because of the victim impact, and determined
that the maximum sentences would be twenty-five years for the Somerset
County case and thirty-five years for the Kennebec County cases. Because
there were two different victims and the assaults took place at different times
and in different places, the court ordered that the sentences be served
10
consecutively. The court ordered that the state sentence run concurrently
with the federal sentence based on the “downward deviation” suggestion in
Hoover I. See 2015 ME 109, ¶ 15 n.2, 121 A.3d 1281. The court determined
that lifetime supervision was appropriate given the number and nature of the
violations and the public safety risk.6 After considering the “principles of
sentencing,” the court found that “a lesser sentence than the one that is being
imposed in these matters would diminish the gravity of what occurred to
these boys and also would violate the principle that this Court . . . must
consider public safety in imposing sentences for this sort of conduct.”
[¶18] Hoover filed this direct appeal challenging the legality of his
sentences. See 15 M.R.S. § 2115 (2016); M.R. App. P. 2. Hoover also filed an
application for leave to appeal from his sentence, challenging the propriety of
his sentences. See 15 M.R.S. § 2151 (2016); M.R. App. P. 20. The Sentence
Review Panel granted Hoover leave to appeal on the issues of whether the
sentencing court “sufficiently outline[d] the justification for such a lengthy
sentence” and whether we “should impose specific requirements on a trial
court as a precondition for imposing a de facto life sentence.” The Sentence
6
Pursuant to 17-A M.R.S. § 1231(2)(C) (2016), a lifetime term of supervised release is
mandatory for a person sentenced, as Hoover was, under 17-A M.R.S. § 1252(4-E).
11
Review Panel, however, denied leave to appeal as to the remaining issues
raised in his application.7
II. LEGAL ANALYSIS
A. Specific Requirements for a De Facto Life Sentence
[¶19] Citing Shortsleeves, 580 A.2d at 149-50, Hoover contends that the
sentencing court was required to find specific aggravating circumstances
before imposing what he asserts was a de facto life sentence for the gross
sexual assaults. Because, he contends, “the [L]egislature provided very little
in the way of guidance,” Hoover urges us to articulate factors to be considered
by sentencing courts when imposing a term of years that amounts to a de
facto life sentence.
[¶20] Shortsleeves involved an appeal of a life sentence for murder.
Id. at 145. In Shortsleeves, we indicated that our purpose for addressing
sentencing was to “provide the sentencing court with broad guidelines for the
circumstances in which the harshest penalty, a life sentence, may be imposed.”
7 Specifically, Hoover was denied leave to appeal whether (1) the trial court abused its
discretion in imposing a sixty-year sentence on four counts of gross sexual assault as compared to
sentences imposed in similar cases, (2) the sentence was excessive based on Hoover’s lack of
criminal history, personal circumstances, and “excellent prospects for rehabilitation,” (3) the trial
court adequately articulated its basis for the sentence and analyzed the crimes independently of
one another in accordance with Hewey, (4) there was sufficient evidence to support the aggravating
factors found by the court, and (5) the trial court properly admitted video evidence at the
sentencing hearing.
12
Id. at 149. The opinion distinguished a life sentence from a “term of years.” Id.Adopting the holding of State v. Anderson, Nos. AD-78-37, 78-40 (Me. App. Div.
June 30, 1980),8 the Shortsleeves opinion stated: “[T]he imposition of a life
sentence has such a serious impact on the offender so different from the
impact of a sentence for a term of years that a life sentence is never justified
unless the murder is accompanied by aggravating circumstances.”
580 A.2d at 149. After listing seven aggravating circumstances, we had held in
Shortsleeves that a life sentence for a particular crime “may not be imposed
unless there are aggravating circumstances of the type” we enumerated.
Id. at 150.
[¶21] In State v. Reese, 2010 ME 30, ¶¶ 26-27, 991 A.2d 806, an appeal
of a sentence of a term of years, we stated: “In Shortsleeves, we reasoned that
the additional aggravating factors must be demonstrated because of the
uniquely serious impact of a life sentence as compared with a sentence of a
term of years. . . . We decline to require any showing of particular aggravating
factors when the sentence, on a Class A crime, is to a term of thirty years or
8 The underlying murder convictions were affirmed in State v. Anderson, 409 A.2d 1290, 1307
(Me. 1979).
13
less.[9] The court need only determine, for a relatively long sentence within
that range, that the crime and the manner in which it was committed place it
‘at the most serious end of the spectrum for purposes of a basic sentence . . . .’”
[¶22] Shortsleeves, as applied in Reese, requires a finding of aggravating
circumstances only when (1) the sentence at issue is imposed upon conviction
for a single crime and (2) the sentence imposed is a life sentence, not a
sentence for a term of years. Hoover’s sentence met neither of these criteria.
The sixty-year total sentence resulted from consecutive sentences for four
crimes,10 not a single crime, and the sentences imposed were for terms of
years, not the life sentence for which Shortsleeves directs that aggravating
circumstances must be found. The trial court correctly determined that the
Shortsleeves analysis was not required in Hoover’s sentencing.
B. Constitutionally Disproportionate Sentence11
[¶23] Hoover argues that the trial court imposed an illegal sentence
pursuant to Me. Const. art. I, § 9, because his aggregate sentence of sixty years’
9 The maximum sentence that could have been imposed on the defendant in State v. Reese,
2010 ME 30, ¶ 24, 991 A.2d 806, for a Class A crime was a “definite period not to exceed 30 years.”
See 17-A M.R.S. § 1252(2)(A) (2016).
10 The court sentenced Hoover to twenty-five years’ imprisonment on the one count in the
Somerset County case; and to thirty-five years’ imprisonment on each of the three counts in the
Kennebec County case, which are to be served concurrently. The sentence from the Kennebec
County case is to be served consecutively to the Somerset County sentence for a sixty-year total
sentence.
14
imprisonment is disproportionate to his offenses. The sentence, he contends,
“carries an inference of disproportionality due to the extreme length of the
sentence, and failure of the trial court to balance the legislatively established
purposes of sentencing under 17-A M.R.S.[] § 1151.”
[¶24] Article I, section 9 of the Maine Constitution requires that “all
penalties and punishments shall be proportioned to the offense,” and bars
infliction of “cruel []or unusual punishments.” See State v. Freeman,
2014 ME 35, ¶ 12, 87 A.3d 719.
[¶25] In evaluating Hoover’s constitutional proportionality claim,
neither the general propriety of the sentence, evaluated according to the so-
called Hewey analysis,12 nor Hoover’s lack of a serious criminal record or
other individual factors, have any significance in determining whether his
punishment is disproportionate and thus unconstitutional. See State v. Ward,
2011 ME 74, ¶ 15, 21 A.3d 1033; State v. Gilman, 2010 ME 35, ¶ 21,
993 A.2d 14 (holding that article I, section 9 of the Maine Constitution “does
not require consideration of the individual circumstances of each offender”).
11 Other than the proportionality issue, Hoover does not argue, and the record here does not
indicate, that the sentences imposed were illegal or imposed in an illegal manner. See State v.
Schmidt, 2010 ME 8, ¶ 6, 988 A.2d 975. The court had jurisdiction to sentence Hoover, see 15 M.R.S.
§ 1 (2016), and the period of incarceration for each charge, and in total, was within the range
authorized by law, see 17-A M.R.S. §§ 1252(4-E), 1256(2)(A) (2016).
12 State v. Hewey, 622 A.2d 1151, 1154-55 (Me. 1993); 17-A M.R.S. § 1252-C (2016).
15
[¶26] The test we have applied to determine whether a particular
punishment violates article I, section 9 is (1) whether the sentence imposed is
“greatly disproportionate” to the crime, and (2) whether the sentence “offends
prevailing notions of decency, whether it shocks the conscience of the public,
or our own respective or collective sense of fairness, or whether it is inhuman
or barbarous.” Ward, 2011 ME 74, ¶ 18, 21 A.3d 1033 (quoting Gilman,
2010 ME 35, ¶ 23, 993 A.2d 14). In applying that test, we recognize that “only
the most extreme punishment decided upon by the Legislature as appropriate
for an offense could so offend or shock the collective conscience of the people
of Maine as to be unconstitutionally disproportionate, or cruel and unusual.”
Id. (alteration omitted).
[¶27] Here the allegedly disproportionate punishment arises from the
aggregation of consecutive sentences, neither of which is individually
disproportionate. The sentence for the Somerset County case, twenty-five
years, was twenty-five percent higher than the twenty-year minimum basic
sentence set by law. See 17-A M.R.S. § 1252(4-E). The sentence for the
Kennebec County cases, thirty-five years, was seventy-five percent higher
than the twenty-year basic sentence, but far below the “any term of years”
sentence authorized by law. Id.
16
[¶28] Addressing a challenge to consecutive sentences as
constitutionally disproportionate in the aggregate in State v. Stanislaw, we
stated that “[w]hen consecutive sentences are imposed, the sentencing court
must make a determination that the unsuspended portion of any consecutive
sentence is not excessive and is proportionate to the offense.” 2013 ME 43,
¶ 24, 65 A.3d 1242 (citing Me. Const. art I, § 9). This suggests that the court
must begin by determining excessiveness and proportionality individually for
each consecutive sentence, rather than for the aggregate sentence. That view
is confirmed by Stanislaw’s observation that “[i]f the court decides to impose
consecutive sentences for various convictions, it must perform a separate
Hewey analysis for each conviction.”13 2013 ME 43, ¶ 16, 65 A.3d 1242.
[¶29] Hoover argues that the trial court effectively sentenced him to a
single sixty-year prison term. That argument would be more tenable had
Hoover’s consecutive sentences been imposed on several charges arising out
of a single criminal episode or event. But even with such events, consecutive
13 The Stanislaw opinion further observes that “[i]n order to ensure that its final sentence
accurately reflects the court’s determination of an appropriate sentence for multiple offenses, a
sentencing court should make its decision about concurrent or consecutive imposition before it
undertakes the third step of the Hewey analysis.” 2013 ME 43 ¶ 16, 65 A.3d 1242. That analysis
from Stanislaw cannot apply here because, by law, the third step of the Hewey analysis is
inapplicable, as suspension of any portion of the sentence of incarceration is barred and imposition
of a life term of supervised release is mandated following release from incarceration. See
17-A M.R.S. § 1231(1), 2(C) (2016).
17
sentences may be imposed for separate and serious crimes that are
committed in the course of a single criminal event. See State v. Commeau,
2004 ME 78, ¶¶ 1, 14-24, 852 A.2d 70 (affirming consecutive sentences for
kidnapping and gross sexual assault when the kidnapping occurred before
and continued after the gross sexual assault). Here, the sexual assaults for
which consecutive sentences were imposed involved different victims and
occurred years apart in different counties. Pursuant to 17-A M.R.S.
§ 1256(2)(A) (2016), the trial court properly imposed consecutive sentences
in such circumstances.
[¶30] When consecutive sentences have been properly imposed, we
have held that “[c]onsecutive sentences are separate punishments for
different offenses, and two sentences do not become a single sentence by
virtue of their running consecutively.” State v. Keene 2007 ME 84, ¶ 26,
927 A.2d 398 (citations omitted). Because “a defendant does not have a
constitutional right to serve concurrent sentences for multiple violent
offenses,” id., a defendant’s “constitutional argument concerning the legality of
his sentences is limited to a determination of whether each sentence
individually is cruel or unusual.” Ward, 2011 ME 74, ¶ 22, 21 A.3d 1033.
18
[¶31] When determining whether a punishment is disproportionate
and violative of article I, section 9, we apply the two-part test addressed in
paragraph twenty-six. Ward, 2011 ME 74, ¶ 18, 21 A.3d 1033. “[W]e look to
see whether a particular sentence is greatly disproportionate to the offense
for which it is imposed, and if it is not, we then examine whether it offends
prevailing notions of decency.” Id. ¶ 18 n.4. “[I]f a punishment fails either
part of the test, it is unconstitutional.” Id.; accord State v. Frye,
390 A.2d 520, 521 (Me. 1978). “We review the legality and constitutionality of
a sentence de novo.” State v. Bennett, 2015 ME 46, ¶ 14, 114 A.3d 994.
[¶32] Addressing Hoover’s sentences, first, we compare the gravity of
the offenses with the severity of the sentences. See Stanislaw, 2013 ME 43,
¶ 29, 65 A.3d 1242; Ward, 2011 ME 74, ¶ 20 n.5, 21 A.3d 1033. Second, in the
“rare case in which this threshold comparison leads to an inference of gross
disproportionality [we] should then compare the defendant’s sentence with
the sentences received by other offenders in the same jurisdiction.” Ward,
2011 ME 74, ¶ 20 n.5, 21 A.3d 1033 (quoting Graham v. Florida,
560 U.S. 48, 60 (2010) (alterations omitted)).
[¶33] Hoover urges that a more lenient sentence was appropriate
because he did not physically injure, kidnap, torture, maim, mutilate, or
19
murder the victims. However, the gravity of the offenses for which Hoover
was convicted is substantial given the court’s findings of the victims’ young
ages, Hoover’s repeated sexual assaults over a period of years, breaches of the
victims’ trust, the use of drugs to incapacitate the victims, penetration, and the
memorialization of his sexual violence by photographing and videotaping his
degrading acts. For Hoover’s crimes, the Legislature has mandated a basic
term of imprisonment of “at least twenty years” and a maximum term of “any
term of years.” See 17-A M.R.S. § 1252(4-E).
[¶34] Viewed by these requirements, none of the individual sentences
is constitutionally disproportionate. Hoover’s aggregate sentence imposed
here of sixty years may be “harsh,” but it is not so severe that it results in an
inference of gross disproportionality when compared to the gravity of
Hoover’s several offenses. See Freeman, 2014 ME 35, ¶¶ 10, 23, 87 A.3d 719(concluding that a fifty-year sentence with ten years suspended for two
convictions of attempted murder, consolidated for sentencing, where the
three victims suffered no physical injuries was “harsh and at the far end of the
range of sentences that could be imposed under these circumstances” but did
not result in an inference of gross disproportionality).
20
[¶35] Hoover’s sentences may also be compared to the sentences
addressed in State v. Sweet, 2000 ME 14, 745 A.2d 368. There,
forty-seven-year-old Richard Sweet pleaded guilty to gross sexual assault of a
thirteen-year-old boy and sexual abuse of a minor perpetrated against a
second victim. Id. ¶¶ 2, 5. Sweet was sentenced to thirty-five years’
imprisonment for the gross sexual assault conviction followed by a
consecutive five years for the sexual abuse of a minor conviction, for a total of
forty years’ imprisonment. Id. ¶¶ 6-8. Sweet’s co-defendant,
thirty-two-year-old Paul Poulin, pleaded guilty to gross sexual assault against
two different victims and sexual abuse of a minor against a third victim. Id.
¶¶ 3, 5. The court sentenced Poulin to a sixty-five-year period of
incarceration: thirty years’ imprisonment for each gross sexual assault
conviction and five years’ imprisonment for the sexual abuse of a minor
conviction, to be served consecutively. Id. ¶¶ 6-8.
[¶36] Sweet and Poulin challenged the length of their respective
sentences. Id. ¶ 22. As to Sweet, we concluded that the trial court did not
abuse its discretion in imposing such a long sentence when the sentence
reflected the serious nature of the crimes, his criminal history, and the grave
risks he posed to children. Id. ¶¶ 23-24. As to Poulin, we noted that Poulin
21
would not be released until he was in his eighties and that the sentencing
court “intended to prevent Poulin from gaining access to any more children
for many years.” Id. ¶ 25. We concluded that the sentence
although extraordinary in length, is sufficiently supported by the
facts in the record that it must be affirmed. We note that a
sentence of this length will be appropriate only in the most
unusual cases and would not be appropriate in the absence of the
multiple aggravating factors present here. . . . Here, the number of
victims, the length of time during which the activities continued,
the nature of the sexual activities, the dire effects on the victims,
the defendant’s own statements to the effect that a "boy lover"
never changes, and the extremely significant risk of his
reoffending upon release have all combined to warrant a sentence
of significant length.
Id. ¶¶ 33-34.
[¶37] Evaluated in this context, Hoover’s sentence does not carry an
inference of gross disproportionality. See Freeman, 2014 ME 35, ¶ 23,
87 A.3d 719.
[¶38] We must also consider “whether [Hoover’s sentence] offends
prevailing notions of decency, whether it shocks the conscience of the public,
or our own respective or collective sense of fairness, or whether it is inhuman
or barbarous.” Ward, 2011 ME 74, ¶ 18, 21 A.3d 1033. “[O]nly the most
extreme punishment decided upon by the Legislature as appropriate for an
offense could so offend or shock the collective conscience of the people of
22
Maine as to be unconstitutionally disproportionate, or cruel and unusual.” Id.(alteration omitted).
[¶39] Examining Hoover’s sixty-year term of imprisonment for four
convictions of gross sexual assault committed against victims who were
younger than twelve years old, the facts support the trial court’s conclusion
that “a lesser sentence than the one being imposed . . . would diminish the
gravity of what occurred to these boys and also would violate the principle
that this Court . . . must consider public safety in imposing sentences for this
sort of conduct.” “The Legislature could not have envisioned a much worse
scenario” than what occurred in this case when it determined that “any term
of years” is appropriate for this type of crime. 17-A M.R.S. § 1252(4-E);
Ward, 2011 ME 74, ¶ 20, 21 A.3d 1033.
[¶40] Hoover’s sentence neither carries an inference of gross
disproportionality nor offends prevailing notions of decency, and, therefore, is
not violative of the proportionality mandate of article I, section 9 of the Maine
Constitution. See Freeman, 2014 ME 35, ¶ 23, 87 A.3d 719; Gilman,
2010 ME 35, ¶ 24, 993 A.2d 14.
The entry is:
Judgment affirmed.
23
Scott F. Hess, Esq. (orally), The Law Office of Scott F. Hess, LLC, Augusta, for
appellant Wade R. Hoover
Maeghan Maloney, District Attorney, and Paul Cavanaugh II, Dep. Dist. Atty.
(orally), Prosecutorial District IV, Augusta, for appellee State of Maine
Kennebec County Superior Court docket number CR-2013-486
Somerset County Superior Court docket number CR-2013-72
FOR CLERK REFERENCE ONLY