[¶ 1] The State of Maine appeals from a judgment of the Superior Court (Franklin County, Murphy, J.) denying its motion to correct the sentence that the court imposed on Gerald W. Gilman following his conviction at a bench trial for operating after habitual offender revocation (Class C), 29-A M.R.S. § 2557-A(2)(D)(2)(2008).
[¶ 2] Gilman cross-appeals, contending that, in addition to violating article I, section 9 of the Maine Constitution, the mandatory sentencing provision also violated his equal protection and due process rights.
[¶ 3] The State's appeal is accompanied by the written approval of the Attorney General as required by 15 M.R.S. § 2115-A(2-B), (5) (2009) and M.R.App. P. 21(b). Because we agree with the State's contention that the sentence imposed on Gilman was illegal, and find no violation of Gilman's constitutional rights, we vacate only the sentence and remand for resentencing.
[¶ 4] The facts are not in dispute. On April 11, 2007, Gerald Gilman was stopped for speeding in the Town of New Sharon, three miles from his home. He had not been drinking. Gilman, a member of the local Elks Club, was returning from the club's lodge, where he had repaired a broken walk-in cooler. Gilman admitted to the officer that his driver's license was suspended, and at trial he testified that he knew he was suspended for an operating under the influence (OUI) conviction. In fact, Gilman's license had been revoked as a result of multiple previous convictions, which included three convictions for OUI within the previous ten years. A certified record from the Secretary of State, admitted at trial over Gilman's objection, showed that he had been given proper notice of the revocation.
[¶ 5] Gilman was indicted for operating after revocation (Class C). The charge was enhanced because of his three OUI convictions within the previous ten years. 29-A M.R.S. § 2557-A(2)(D)(2). Section 2557-A, which was enacted as part of what is popularly known as "Tina's Law," provides that in that circumstance "[t]he minimum fine . . . is $1,000 and the minimum term of imprisonment is 2 years, neither of which may be suspended by the court." 29-A M.R.S. § 2557-A(2)(D); P.L. 2005, ch. 606, § A-11 (effective Aug. 23, 2006).
[¶ 6] Gilman moved to dismiss the allegation of the aggravating factor of his prior OUI convictions as a violation of his equal protection guarantees. Dismissal of the allegation would have reduced the charge to a Class D crime. See 29-A M.R.S. § 2557-A(2)(A) (2008).
[¶ 7] At a jury-waived trial held on February 11, 2008, Gilman objected that his rights under the Confrontation Clause would be violated by the admission of a certificate issued by the Secretary of State under seal declaring that (1) his right to drive was under revocation when he was stopped, (2) he had proper notice of the revocation, and (3) his driving record included three OUI convictions within the previous ten years. The court (Murphy, J.) overruled the objection, denied Gilman's motion for a judgment of acquittal, and took the ultimate issue of whether the State had met its burden of proof under advisement. Gilman then filed a written
[¶ 8] On September 8, the court issued a written decision finding Gilman guilty beyond a reasonable doubt. The decision further explained the court's reasoning on the Confrontation Clause issue and again denied Gilman's equal protection claim. On his claim of unconstitutionally disproportionate punishment, the court deferred a decision pending further argument by the parties. Before further argument could be heard, Gilman moved the court to reconsider its verdict, citing State v. Stade, 683 A.2d 164 (Me.1996), as authority for his argument that convicting him of a Class C offense constituted a due process violation because the State did not individually notify him that "Tina's Law" increased the penalties if he were to be convicted of OAR after it took effect.
[¶ 9] On October 27, the court heard argument on Gilman's due process claim and denied it. It then heard testimony relevant to the disproportionate punishment issue and sentencing from four witnesses: another member of the Elks Club, a psychiatrist who treated Gilman through the United States Department of Veterans Affairs, Gilman's sister, and Gilman himself. At the conclusion of the hearing, the court took the disproportionate punishment issue and the sentence under advisement.
[¶ 10] On November 17, the court issued written findings and conclusions:
[¶ 11] At a final hearing on December 11, the court conducted the statutorily required sentencing analysis on the Class C conviction and sentenced Gilman to fifteen months imprisonment, with all but ninety days suspended, two years of probation, 500 hours of community service, and a $1000 fine. See 17-A M.R.S. § 1252-C (2009). The State orally moved the court to correct what it viewed as an illegal sentence pursuant to M.R.Crim. P. 35(a);
A. Scope of Article I, Section 9
[¶ 12] Article I of the Maine Constitution is a declaration of rights enjoyed by Maine citizens. Section 9 sets limits on the State's power to punish: "Sanguinary laws shall not be passed; all penalties and punishments shall be proportioned to the offense; excessive bail shall not be required, nor excessive fines imposed, nor cruel nor unusual punishments inflicted." Me. Const. art. I, § 9.
[¶ 14] Whether the Maine Constitution requires that punishments be proportionate to the offender, as well as the offense, has been an open question. In discussing a closely related provision of section 9, we left it unanswered:
State v. Worthley, 2003 ME 14, ¶ 7, 815 A.2d 375, 377 (footnote omitted).
[¶ 15] This case requires us to answer the question left open in Worthley. For several reasons, we conclude that (1) section 9 requires only that a punishment be proportionate to the offense for which a person is convicted, (2) the two-year mandatory sentence prescribed by statute is proportionate to the offense that Gilman committed, and (3) the sentence imposed by the trial court was therefore illegal and
[¶ 16] The plain language of section 9 requires that "punishments shall be proportioned to the offense." Me. Const. art. I, § 9 (emphasis added). It says nothing about the individual offender. This is of primary importance because we have said:
Voorhees v. Sagadahoc County, 2006 ME 79, ¶ 6, 900 A.2d 733, 735-36 (citation omitted) (quotation marks omitted). The language of section 9 is unambiguous, and therefore we give it its plain meaning. See Joyce v. State, 2008 ME 108, ¶ 11, 951 A.2d 69, 72 (stating that "[i]t is a fundamental rule of statutory interpretation that words in a statute must be given their plain and ordinary meanings" (alteration in original) (quotation marks omitted)).
[¶ 17] Our prior decisions support this construction. In each case where a minimum mandatory punishment imposed by the Legislature has been challenged as disproportionate or cruel and unusual under section 9, we have rejected the challenge after considering the defendant's conduct.
[¶ 18] Furthermore, although federal authority does not control our interpretation of our State Constitution, it is instructive that in its recent Eighth Amendment jurisprudence the Supreme Court has upheld or struck down severe sentences based on consideration of a particular offense or category of offender,
United States v. Campusano, 947 F.2d 1, 3-4 (1st Cir.1991).
[¶ 19] A plain-language construction of section 9 is further supported by our cases holding that the Legislature has the power to enact mandatory sentences. See State v. Lane, 649 A.2d 1112, 1115 (Me.1994) (collecting cases). Implicit in those decisions is a recognition that the Legislature may lawfully choose to remove a sentencing court's discretion when it determines it is appropriate to do so, subject only to the constitutional prohibition against punishment disproportionate to a given offense. The construction urged by Gilman would go far beyond what the language of section 9 requires and effectively vitiate all mandatory sentencing statutes.
[¶ 20] A minimum mandatory sentence is the Legislature's establishment of a basic sentence, and a legislative decision that a sentencing court may not find that mitigating factors justify a lesser maximum sentence.
[¶ 21] Because we hold that the clause, "all penalties and punishments shall be proportioned to the offense," means what its plain language says, and does not require consideration of the individual circumstances of each offender, the sentence imposed on Gilman was illegal unless it
B. The Two-Year Minimum Mandatory Sentence
[¶ 22] This Court "always [has] the power and duty to uphold the State and Federal Constitutions," and will "protect the individual from an unconstitutional invasion of his rights by the legislative . . . branch of government." Dep't of Corr. v. Superior Court, 622 A.2d 1131, 1134-35 (Me.1993) (quotation marks omitted). Nevertheless, we recognize the primacy of the Legislature as "the voice of the sovereign people" in the area of crime and punishment:
State v. King, 330 A.2d 124, 127-28 (Me. 1974); see State v. Benner, 553 A.2d 219, 220 (Me.1989) ("[T]he power of punishment is vested in the legislative, not in the judicial department. It is the legislature, not the court, which is to define a crime and ordain its punishment." (quotation marks omitted)).
[¶ 23] We have described the test for determining when a sentence is cruel and unusual as whether it "is greatly disproportionate. . . and whether it offends prevailing notions of decency," Worthley, 2003 ME 14, ¶ 6, 815 A.2d at 376; whether it "shock[s] the conscience of the public, [or] our own respective or collective sense of fairness," State v. Reardon, 486 A.2d 112, 121 (Me.1984); or whether it is "inhuman [or] barbarous," State v. Heald, 307 A.2d 188, 192 (Me.1973). Because the Legislature is "the voice of the sovereign people," King, 330 A.2d at 127, and thus expresses the people's will, only the most extreme punishment decided upon by that body 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.
[¶ 24] Gilman was convicted of a Class C crime, punishable by a maximum of five years imprisonment. See 17-A M.R.S. § 1252(2)(C) (2009). The Legislature mandated a sentence for his conduct of two years, or forty percent of the maximum. 29-A M.R.S. § 2557-A(2XD). It deemed that penalty necessary to prevent revoked drivers with three recent OUI convictions, who have repeatedly proved
C. Equal Protection
[¶ 25] Gilman contends that, because he was not impaired when he was stopped for speeding, the Legislature had no rational basis for increasing his sentence for operating after revocation because of his prior OUI convictions. He acknowledges that in order to reach the result he seeks, we would be required to overrule our decision in State v. Chapin, where the same argument was advanced and rejected. 610 A.2d 259, 261 (Me.1992).
[¶ 26] In Chapin, we concluded that the danger created by drunk drivers was "certainly strong enough" to justify the imposition of a minimum mandatory sentence for habitual offenders with OUI convictions who continue to drive. Id. Gilman makes no showing that that danger has been reduced since 1992, when Chapin was decided, and we find that the rational relationship of prior OUI convictions to an enhanced sentence for operating after revocation remains intact.
D. Due Process
[¶ 27] Gilman next contends, on the authority of State v. Stade, 683 A.2d 164, that because his license had been revoked, the State was required to individually notify him that the minimum statutory penalties for operating after revocationM had increased with the enactment of 29-A M.R.S. § 2557-A. See P.L. 2005, ch. 606, § A-11 (effective Aug. 23, 2006).
[¶ 28] In Stade, we held that a defendant's due process rights may be violated when an agent of the State makes affirmative misrepresentations that are then relied upon to the defendant's detriment. 683 A.2d at 166. Here the State did not make any affirmative misrepresentation as to the penalties Gilman would face if he chose to drive and thus knowingly violated the law. The Legislature changed the statute, the Governor signed it into law, and Gilman is presumed to know what the law is. See Houghton v. Hughes, 108 Me. 233, 236-37, 79 A. 909 (1911). Contrary to Gilman's argument, due process did not require that he be individually notified of the change in order to ensure that he could conduct a thoughtful cost/benefit analysis before consciously choosing to break the law. Moreover, the law in effect at the time of his most recent OUI conviction provided that he could be sentenced to as long as five years in prison for the operation of any vehicle before his license was restored. See 17-A M.R.S. § 1252(2)(C); 29-A M.R.S. § 2557(2)(B)(2) (2005).
E. Confrontation Clause
[¶ 29] Gilman finally contends that his Sixth Amendment right to confront the witnesses against him was violated when the Superior Court admitted, over his objection, a certified record from the Secretary of State stating that his privilege to operate had been revoked, that he had received proper notice of the revocation, and that he had three OUI convictions within the preceding ten years. As
[¶ 30] Gilman contends that Tayman must be overruled on the authority of the Supreme Court's decision in Melendez-Diaz v. Massachusetts, ___ U.S. ___, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009). In Melendez-Diaz, the Court held that the admission of a chemist's certificate stating that an analyzed substance was cocaine violated the Sixth Amendment, because although "[d]ocuments kept in the regular course of business may ordinarily be admitted at trial despite their hearsay status. . . that is not the case if the regularly conducted business activity is the production of evidence for use at trial." Id. at 2538, 174 L.Ed.2d at 328 (citation omitted).
[¶ 31] We recently analyzed the impact of Melendez-Diaz on Tayman and concluded that Tayman remains good law. State v. Murphy, 2010 ME 28, ¶ 26, 991 A.2d 35, 43. Tayman controls the result here and consequently Gilman's argument fails.
The entry is:
Judgment of conviction affirmed. Sentence vacated; remanded to the Superior Court for resentencing.
29-A M.R.S. § 2557-A(2)(D) (2008). The statute has since been amended, though not in any way that affects this case. P.L. 2009, ch. 54, § 5 (effective April 22, 2009) (codified at 29-A M.R.S. § 2557-A(2)(D)(2) (2009)).