State of Maine v. Jahneiro Plummer , 2020 ME 143 ( 2020 )


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  • MAINE SUPREME JUDICIAL COURT                                                    Reporter of Decisions
    Decision:    
    2020 ME 143
    Docket:      Ken-19-364
    Submitted
    On Briefs: September 29, 2020
    Decided:     December 29, 2020
    Panel:       MEAD, GORMAN, JABAR, HUMPHREY, HORTON, and CONNORS, JJ.
    STATE OF MAINE
    v.
    JAHNEIRO PLUMMER
    CONNORS, J.
    [¶1] This appeal addresses the treatment of the defendant’s motive for
    his crime when imposing his sentence. Jahneiro Plummer appeals his sentence
    imposed by the trial court (Kennebec County, Stanfill, J.) after he was convicted
    by a jury of two counts of aggravated trafficking in scheduled drugs (Class A),
    17-A M.R.S. § 1105-A(1)(D), (H) (2020), and one count of criminal forfeiture,
    15 M.R.S. § 5826 (2020). He asserts that the trial court improperly double
    counted the commercial purpose of his offenses when it conducted its
    sentencing analysis pursuant to 17-A M.R.S. § 1252-C (2018).1 Because we
    1 Title 17-A M.R.S. § 1252-C (2018) has recently been amended and reallocated as part of the
    recodification and revision to Title 17-A’s sentencing provisions. See P.L. 2019, ch. 113, §§ A-1 to -2
    (emergency, effective May 16, 2019) (codified at 17-A M.R.S. § 1602(1) (2020)). All citations to the
    2
    conclude that the trial court properly considered different aspects of the
    commercial nature of the offense at each step of its analysis, we affirm.
    I. BACKGROUND
    [¶2]     In November 2018, Plummer was indicted on two counts of
    aggravated       trafficking     in   scheduled       drugs     (Class     A),    17-A     M.R.S.
    § 1105-A(1)(D), (H), and one count of criminal forfeiture, 15 M.R.S. § 5826. He
    pleaded not guilty, and three months later, the trial court held a two-day jury
    trial. The jury found Plummer guilty on all counts.
    [¶3] In the subsequent sentencing proceeding, the court first considered
    the appropriate basic sentence pursuant to 17-A M.R.S. § 1252-C(1):
    The first step of that analysis is to consider the basic sentence
    that should apply having in mind the particular characteristics of
    the crime and the manner in which it was committed.
    In this case, Mr. Plummer has been convicted of aggravated
    trafficking, a Class A offense, both in heroin and in cocaine base. In
    both cases, the quantity of the drugs far exceeds the amount that
    the [L]egislature has set as the amount from which one would
    presume trafficking.
    And indeed, the quantity of drugs involved in this case is very
    large. These are not victimless crimes. On a daily basis as a judge,
    I see the effects of the amount of cocaine base and the amount of
    heroin in this community and it is devastating this community.
    sentencing statutes are to the statutes in effect at the time of the offense. See State v. Sweeney,
    
    2019 ME 164
    , ¶ 8 n. 2, 
    221 A.3d 130
    .
    3
    Children are being left without parents, parents without children,
    and families are being ripped apart. It is not a victimless crime.
    There is a large sum of money involved as well. And it—as—
    by the facts of the case and the manner of which it was committed,
    it appeared to be a purely commercial operation with planning
    involved as Mr. Plummer had traveled here from New York.
    Having all of that in mind, the Court does find, together with
    the goals as articulated in our statute, that the basic sentence is
    significant. The goals include setting a basic sentence that would
    have deterrent effect, restraining a person in the interest of public
    safety.
    The court set the basic sentence at eighteen years.
    [¶4] Moving to the second step of the statutorily required sentencing
    analysis, the court analyzed aggravating and mitigating factors. 17-A M.R.S.
    § 1252-C(2). With respect to aggravating factors, the court stated:
    The aggravating factors in this case include, as already
    indicated, that it was a purely profit or selfish mode would—in
    other words, there’s no evidence of addiction in this case. The fact
    that he came from out of the community for the sole purpose of
    selling drugs and in . . . a commercial motive. Mr. Plummer’s trial
    testimony lacked credibility in his testimony. And those are all the
    kinds of factors that the Court can consider as aggravating factors.
    [¶5]   During the sentencing hearing, the court then described the
    mitigating factors, including Plummer’s lack of criminal history, his family
    support, his volunteer work while in pretrial detention, the lack of firearms or
    violence associated with the trafficking, and his acceptance of the verdict. See
    4
    17-A M.R.S. § 1252-C(2). Because the mitigating factors “outweigh[ed] the
    aggravating factors,” the court reduced Plummer’s sentence from eighteen to
    fifteen years.
    [¶6] In the final step of the sentencing analysis, the court sentenced
    Plummer to fifteen years of imprisonment with all but six years suspended and
    four years of probation. See 17-A M.R.S. § 1252-C(3).
    [¶7]   Plummer timely but unsuccessfully appealed the judgment of
    conviction. See State v. Plummer, 
    2020 ME 106
    , 
    238 A.3d 241
    . He also filed an
    application to seek sentence review, see M.R. App. P. 20(a)(1), which the
    Sentence Review Panel granted, State v. Plummer, No. SRP-19-376 (Me. Sent.
    Rev. Panel Oct. 11, 2019), and which we now address separately. 15 M.R.S.
    § 2151 (2020); M.R. App. P. 20.
    II. DISCUSSION
    [¶8] Pursuant to 17-A M.R.S. § 1252-C, which codified our decision in
    State v. Hewey, 
    622 A.2d 1151
    , 1154-55 (Me. 1993), a court imposing a sentence
    follows a three-step process. In the first step, the court determines the “basic
    term of imprisonment by considering the particular nature and seriousness of
    the offense as committed by the offender.” 17-A M.R.S. § 1252-C(1). In the
    second step, the court determines the maximum period of imprisonment to be
    5
    imposed, “considering all other relevant sentencing factors, both aggravating
    and mitigating, appropriate to that case.” 17-A M.R.S. § 1252-C(2). “These
    sentencing factors include, but are not limited to, the character of the offender
    and the offender’s criminal history, the effect of the offense on the victim and
    the protection of the public interest.” Id. At the last step, the court determines
    “what portion, if any, of the maximum period of imprisonment should be
    suspended.” 17-A M.R.S. § 1252-C(3).
    [¶9] Plummer argues that the court erred when it considered the
    commercial motive of his offenses both when setting the basic sentence and
    when setting the maximum sentence and thus improperly engaged in “double
    counting.” See 17-A M.R.S. § 1252-C(2) (“The court shall . . . determine the
    maximum term of imprisonment to be imposed by considering all other
    relevant sentencing factors, both aggravating and mitigating . . . .”) (emphasis
    added).
    A.    Standard of Review
    [¶10] The threshold issue we must address is our standard of review of
    the sentencing court’s decision. We have stated that we review the sentencing
    court’s “determination of the basic sentence de novo for misapplication of legal
    principles and its determination of the maximum sentence for abuse of
    6
    discretion.” State v. Sweeney, 
    2019 ME 164
    , ¶ 17, 
    221 A.3d 130
     (quotation
    marks omitted). More precisely:
    We review de novo for misapplication of principle the basic
    sentence imposed at the first step of the analysis, and we review
    the maximum sentence and the final sentence determined at steps
    two and three for an abuse of discretion. We review the sentencing
    court’s analysis at each step to determine “whether [it] disregarded
    the relevant sentencing factors or abused its sentencing power.”
    State v. Hansen, 
    2020 ME 43
    , ¶ 27, 
    228 A.3d 1082
     (quoting State v. Stanislaw,
    
    2013 ME 43
    , ¶ 17, 
    65 A.3d 1242
    ).
    [¶11] By its nature, a double-counting claim relates to multiple steps of
    the sentencing analysis. More pertinently, the claim poses the question of
    whether the sentencing court misapplied a legal principle. We therefore review
    a double-counting claim de novo. Cf. United States v. Dudley, 
    463 F.3d 1221
    ,
    1226 (11th Cir. 2006) (“We review de novo a claim of double counting.”); United
    States v. Fiume, 
    708 F.3d 59
    , 61 (1st Cir. 2013) (reviewing a double-counting
    claim de novo).
    B.    Plummer’s Claim
    [¶12] A survey of our precedent shows that sometimes motive or
    purpose is considered at the first step and sometimes at the second step of the
    Hewey analysis. See, e.g., Hansen, 
    2020 ME 43
    , ¶ 31, 
    228 A.3d 1082
     (considering
    “motivation or reason for engaging in the criminal conduct” at the second step);
    7
    State v. Nichols, 
    2013 ME 71
    , ¶ 27, 
    72 A.3d 503
     (holding that the court may
    consider “the defendant’s motive” in deciding the continuum of the seriousness
    of murder at the first step (quoting State v. Cookson, 
    2003 ME 136
    , ¶ 38,
    
    837 A.2d 101
    )); State v. Burns, 
    2011 ME 92
    , ¶ 13, 
    26 A.3d 817
     (addressing the
    motive of greed at the first step); State v. Downs, 
    2009 ME 3
    , ¶ 20, 
    962 A.2d 950
    (discussing at step one the motive to reoffend against the same victim); State v.
    Basu, 
    2005 ME 74
    , ¶ 25, 
    875 A.2d 686
     (considering at step one that the
    defendant “acted in a premeditated manner and for pecuniary gain”).
    [¶13] This apparent blurring between the two steps is a product of the
    multifaceted nature of motivation. In step one, the court reviews factors
    relevant to the objective nature of the crime, while at the second step, it
    considers factors “peculiar to [the individual] offender.” Hewey, 
    622 A.2d at 1154
    . “Motive” does not fit exclusively into either of these categories.
    Generally, the premeditation and planning involved in committing a crime is
    analyzed as an objective characteristic of the crime at the first step, see Basu,
    
    2005 ME 74
    , ¶ 25, 
    875 A.2d 686
    , while the individual circumstances of the
    particular offender, such as whether the crime was a product of the individual’s
    drug addiction, is weighed at the second step, see State v. Lilley, 
    624 A.2d 935
    ,
    8
    936-37 (Me. 1993). But the critical point for the purpose of reviewing a
    double-counting claim is that the same factor not be considered at both steps.
    [¶14] Importantly, the same fact can generate multiple factors. A
    sentencing court may consider the same facts at steps one and two of its
    sentencing analysis, provided that it does so for different purposes. See State v.
    Lord, 
    2019 ME 82
    , ¶ 32, 
    208 A.3d 781
     (“[B]ecause the facts surrounding a
    conviction for murder do not sort neatly into separately identifiable
    characteristics, there will inevitably be times when an ‘aggravating’ . . .
    circumstance will be considered in both the imposition of a life sentence in step
    one of a murder sentencing analysis and as an aggravating factor that must be
    addressed in step two.”); State v. Gray, 
    2006 ME 29
    , ¶ 13, 
    893 A.2d 611
     (the
    sentencing court may “refer to the same facts in the various steps of the
    sentencing analysis so long as the court is weighing different considerations at
    each step” (quotation marks omitted)).
    [¶15] Applying these principles to the matter before us, the sentencing
    court did not double count. While the court’s reference at the second step to
    factors “as already indicated” was imprecise, and although the court alluded to
    the commercial nature of the criminal operations at both the first and second
    9
    steps, the court assessed the facts relating to those commercial operations for
    different reasons at each step.
    [¶16] At step one, the court discussed the commercial operation in terms
    of scale, relating to the seriousness of the crime. The fact that Plummer was
    convicted of trafficking a large amount of heroin and cocaine base was an
    objective factor properly considered by the court at the first step of its analysis.
    The court did not use the term “commercial” to explore Plummer’s personal
    motivation for the crime but instead to weigh the nature and gravity of the
    crime.
    [¶17]    In contrast, at step two, the court referred to Plummer’s
    “commercial motive” in noting that his actions were not based on an addiction,
    but rather purely on selfish, monetary gain. The court did not consider again at
    step two the scale of the operation but rather Plummer’s motivations for
    engaging in criminal activity—a distinct consideration not weighed at step one.
    While the fact that this was a commercial operation, which, by definition,
    reflects a pecuniary goal, Plummer’s personal motivation was considered
    exclusively at the second step. There was no double counting.
    The entry is:
    Judgment affirmed.
    10
    Rory A. McNamara, Esq., Drake Law, LLC, Berwick, for appellant Jahneiro
    Plummer
    Aaron M. Frey, Attorney General, and Katie Sibley, Asst. Atty. Gen., Office of the
    Attorney General, Augusta, for appellee State of Maine
    Kennebec County Unified Criminal Docket docket number CR-2018-1580
    FOR CLERK REFERENCE ONLY