State v. Sweet & Poulin, corrected 2-2-00
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	2000 ME 14 
Docket:	Ken-99-79 & Ken-99-126
Argued:	November 1, 1999
Decided:	January 31, 2000

Panel:	WATHEN, C.J., and CLIFFORD, RUDMAN, DANA, SAUFLEY, and CALKINS, JJ.
Majority: 	WATHEN, C.J., and CLIFFORD, RUDMAN, and  SAUFLEY, JJ.
Concurrence:	DANA and CALKINS, JJ.
Dissent:  		DANA and CALKINS, JJ.

STATE OF MAINE

v.

RICHARD SWEET and PAUL POULIN

SAUFLEY, J.

	[¶1]  Richard Sweet and Paul Poulin appeal from sentences of 40
years and 65 years respectively entered in the Superior Court (Kennebec
County, Alexander, J.).  They challenge the use of the enhanced statutory
range of 20 to 40 years for Class A charges of gross sexual assault, the
imposition of consecutive sentences, and the length of the sentences in
their entirety.  We affirm the sentences.

I.  BACKGROUND

	[¶2]  Richard Sweet is today approximately 47 years old.  He was
first convicted of gross sexual misconduct in 1984, as a result of charges
related to five separate child victims.  He was sentenced to ten years in
prison and was released in 1991.  Within months of his release, he was
convicted of terrorizing (Class D) as a result of threats directed toward one
of the victims of his previous gross sexual misconduct charges.  He was
sentenced to seven days in the county jail.
	[¶3]  Paul Poulin is today approximately 32 years old.  Before the
events at issue, he had been convicted of multiple burglaries, both Class C
and Class B.  According to his own journal entries, he was a member of
N.A.M.B.L.A. (North American Man-Boy Love Association) and began sexually
assaulting young boys in the early 1990s.  He described himself as a "boy-
lover," and spent much of his time and energy finding and grooming young
boys, in the age range of 10 to 14, for sexual activities.
	[¶4]  Sweet and Poulin worked together and began a consensual
sexual relationship in September 1994.  Shortly thereafter, Poulin informed
Sweet that he was a "boy-lover," and the two began discussing the possibility
of introducing an adolescent boy into their relationship.  Over the course of
the next two years, Sweet and Poulin used alcohol, drugs, gifts, money, and
pornography to lure and groom young adolescent boys into sexual
relationships.  The victims from which the charges stem were 13 and 14
years old.  Allegations of sexual abuse surfaced after one of those boys
contacted authorities.  In October of 1997, both Sweet and Poulin were
indicted and charged with multiple sexual assault crimes involving a total of
four children.
	[¶5]  Sweet pled guilty to one count each of gross sexual assault
(Class A) and sexual abuse of a minor (Class C) committed against a thirteen-
year-old boy; one count of sexual abuse of a minor (Class C) perpetrated
against a second victim; and one count of conspiracy to commit gross sexual
assault (Class B).  Poulin pled guilty to one count each of gross sexual assault
(Class A), unlawful sexual contact (Class C), and sexual abuse of a minor
(Class C) committed against one victim; gross sexual assault (Class A) and
unlawful sexual contact (Class C) against a second victim; sexual abuse of a
minor perpetrated against a third victim; and conspiracy to commit gross
sexual assault (Class B).
	[¶6]  Applying State v. Hewey, 622 A.2d 1151 (Me. 1993), as
codified at 17-A M.R.S.A. § 1252-C (Supp. 1999), the sentencing court
entered basic sentences of 15 years for each gross sexual assault count.  The
court also determined that the nature of the crimes and the prior criminal
histories of each defendant warranted sentencing in the upper tier of 20 to
40 years on the gross sexual assault charges.  On both of Poulin's gross
sexual assault charges the court set the maximum sentence at 30 years and
determined that the sentences should run consecutively.  On Sweet's single
conviction for gross sexual assault, the court set the maximum sentence at
35 years.
	[¶7]  In addition, the court sentenced both Sweet and Poulin to five
years on each charge of unlawful sexual contact and sexual abuse of a minor. 
All charges related to the same victim ran concurrently and those related to
different victims ran consecutively.  Finally, the court sentenced each
defendant to ten years on the charges of conspiracy to commit gross sexual
assault to run concurrently with the gross sexual assault charge.  After
considering each of the defendants' prospects for rehabilitation, the court
declined to suspend any of the sentences.
	[¶8]  The sentences as a whole resulted in a 65-year period of
incarceration for Poulin:  30 years for gross sexual assault of one victim,
followed by a consecutive 30 years for the second gross sexual assault of a
second victim, followed by a consecutive five years for sexual abuse of a
minor related to a third victim.  Sweet was sentenced to a 40-year period of
incarceration:  35 years for gross sexual assault of one victim, followed by a
consecutive five years for sexual abuse of a minor related to a second victim.

II.  DISCUSSION

	[¶9]  The defendants assert that the sentencing court erred by
improperly establishing sentences for the gross sexual assault charges in the
enhanced range of 20 to 40 years.  They further claim that the sentencing
court abused its discretion when it entered consecutive sentences and that
the sentences are, taken in their entirety, excessive.

A.  Sentencing Framework

	[¶10]  Criminal sentencing is one of the most difficult
responsibilities of a judge.  Within certain parameters, the judge is given the
discretion to fashion an individual sentence.  That discretion must be
exercised in a way that meets often competing goals.{1}  For example, the
court must both individualize the sentence to the particular defendant, 17-A
M.R.S.A. § 1151(6) (1983), and must at the same time "eliminate
inequalities in sentences that are not related to legitimate criminological
goals," 17-A M.R.S.A. § 1151(5) (1983).  In other words, while addressing
the many goals of sentencing, the court must endeavor to create consistency
among sentences for similar crimes and must, at the same time, tailor the
sentence to the individual defendant.{2}  
	[¶11]  In order to place all of the differing considerations into a
manageable framework, the sentencing court must engage in the analysis
first announced in Hewey, 622 A.2d at 1151, and now codified at 17-A
M.R.S.A. § 1252-C.  This analysis, commonly referred to as a Hewey Analysis,
requires the court to undertake three steps.  First, the court must
determine a basic sentence based solely on the nature and seriousness of the
offense.{3}  Next, the court must examine the crime and all relevant
mitigating and aggravating factors in order to establish an individualized
maximum sentence.  Finally, the court must set a final sentence,
determining how much of the sentence, if any, should be suspended and
what circumstances and conditions of probation, if any, should be ordered. 
See State v. Bolduc, 638 A.2d 725, 727 (Me 1994).
	[¶12]  When, as here, the defendant has been convicted of one or
more Class A crimes, "the court must engage in an additional preliminary
step to determine whether the crime falls within the higher tier of Class A
sentences."  State v. MacDonald, 1998 ME 212, ¶ 15, 718 A.2d 195, 199;
see also 17-A M.R.S.A. §1251(2)(A) (1983).  In this context, "[t]he court may
consider a serious criminal history of the defendant and impose a maximum
period of incarceration in excess of 20 years based on either the nature and
seriousness of the crime alone or on the nature and seriousness of the crime
coupled with the serious criminal history of the defendant."  17-A M.R.S.A.
§ 1252(2)(A) (Supp. 1999).  Accordingly, depending on the nature of the
crime and the defendant's criminal history, the highest sentence available
for a Class A crime may be either 20 years or 40 years.

B.  Standards of Review

	[¶13]  Because of the complexity of the multiple steps comprising
our sentencing process, the standards of review for each individual step
must be understood before an examination of the sentence itself is
appropriate.
	[¶14]  We review the "basic" sentence, set by the court pursuant to
17-A M.R.S.A. § 1252-C(1), for misapplication of principle.  See State v.
King, 1998 ME 60, ¶ 14, 708 A.2d 1014, 1018; State v. Carr, 1998 ME 237,
¶ 6, 719 A.2d 531, 533; State v. Pfeil, 1998 ME 245, ¶ 14, 720 A.2d 573,
577; State v. Wilson, 669 A.2d 766, 768 (Me. 1996).  Similarly, we review
the sentencing court's determination that a Class A crime falls in the
enhanced range of 20 to 40 years for misapplication of principle.  See
McDonald, 1998 ME 212, ¶ 15, 718 A.2d at 199; State v. Shackelford, 634
A.2d 1292, 1295-96 (Me. 1993).
	[¶15]  Because the sentencing court is in a better position to review
aggravating and mitigating factors, we review its "maximum" sentence,
entered pursuant to 17-A M.R.S.A. § 1252-C(2), for abuse of discretion.  See
State v. Lewis, 1998 ME 83, ¶ 8, 711 A.2d 119, 123-24; Pfeil, 1998 ME
245, ¶ 18, 720 A.2d at 578.  We also review the sentencing court's decision
to suspend any part of the maximum sentence for abuse of discretion.  See
Pfeil, 1998 ME 245, ¶ 19, 720 A.2d at 578; State v. Ardolino, 1997 ME 141,
¶ 26, 697 A.2d 73, 81.  Finally, we review the sentencing court's decision to
apply sentences consecutively for abuse of discretion, see State v. Shulikov,
1998 ME 111, ¶ 28, 712 A.2d 504, 511-12; State v. Prewara, 687 A.2d 951,
954 (Me. 1996), or error of law, see State v. Fleming, 644 A.2d 1034, 1035-
36 (Me. 1994); State v. Brooks, 634 A.2d 1265, 1267 (Me. 1993).

C.  The Sentences Imposed on Sweet and Poulin

	1.  Enhancement of Class A Sentences to the Higher Tier

	[¶16]  Sweet and Poulin argue that the court erred in determining
that the sentences for the Class A gross sexual assaults fall in the upper tier
of sentences, allowing sentences of up to 40 years.  They argue that the
court misapplied the provisions of 17-A M.R.S.A. § 1251(2)(A) by
considering more than the nature of the crimes and the criminal histories of
the defendants in its analysis, and more generally, that the court erred in
concluding that these crimes were among the most heinous ways that a
gross sexual assault can be committed.  We disagree.
	[¶17]  We first address the court's application of 17-A M.R.S.A.
§ 1251(2)(A).  At sentencing, the court clearly articulated the factors to be
considered in determining whether the upper or lower tier was applicable
to the crimes before it:  "So we can consider prior record in addition to the
heinousness or lack of heinousness of any particular crime in deciding
whether the matter is tipped over into the second tier."  The court then
discussed the nature and seriousness of the crimes and the criminal
histories of the defendants.  Although the court did not pause and announce
explicitly that the second tier was appropriate in sentencing both
defendants on the gross sexual assault charges, its conclusion was
unmistakable.  Moreover, when it reached the determination of maximum
sentences, the court considered the full panoply of aggravating and
mitigating factors, see 17-A M.R.S.A. § 1252-C(2), and reiterated the
specific factors it had considered in reaching the second tier.{4}  Although
defendants' confusion from reading the cold record of the sentencing is
understandable, on close review of the court's articulation of its decisions,
we discern no error in the application of 17-A M.R.S.A. § 1251(2)(A).
	[¶18]  We next address the defendants' contention that the court
engaged in a misapplication of principle when it found that the sentences
met the criteria for the upper tier.  Primarily, Sweet and Poulin argue that
their conduct leading to the gross sexual assault charges was not violent, and
therefore enhanced sentences were inappropriate.  They are correct that
their conduct did not include forced, precipitously violent, or injury-
producing conduct.  Rather, their method of obtaining victims had as its
center point coercion, not physical violence.  Stripped to its essence, their
goal was to create willing and eager sexual partners of children.  By their
actions, they exposed their victims to an environment of sex, alcohol, and
pornography.  They undertook these actions with boys whose ages placed
them at the cusp of sexual development.  Their actions in this regard may
well have created greater long-term damage to their victims than a violent
one-time assault could have done.{5}  In addition, the young victims were
subjected to anal penetration, attempted penetration, and a variety of other
physically intrusive sexual activities.  We conclude, as did the sentencing
court, that such conduct is sufficiently heinous that the absence of
precipitous violence does not preclude a sentence in the upper tier.

	2.  Consecutive Sentences

	[¶19]  Sweet and Poulin next challenge the court's imposition of
consecutive sentences.  In Sweet's case, a five-year sentence was added
consecutively to the 35-year sentence on the gross sexual assault sentence. 
In Poulin's case, the imposition of consecutive sentences had a greater
impact.  He was sentenced to 30 years on each of the gross sexual assault
charges.  Because the charges related to different victims, the court ordered
the two 30-year sentences to be served consecutively.  Added to the
consecutive five year sexual abuse of a minor sentence on the third victim,
these sentences result in the 65-year term that Poulin will have to serve. 
We review the sentencing court's decision to impose consecutive sentences
for abuse of discretion.  See Shulikov, 1998 ME 111, ¶ 28, 712 A.2d at 511-
12; Prewara, 687 A.2d at 954.
	[¶20]  We recognize that the action of imposing consecutive
sentences has resulted in final sentences, particularly in Poulin's case, that
are at the high end of sentencing, even for such heinous crimes.  The
Legislature has, however, approved consecutive sentences in certain
circumstances.  See 17-A M.R.S.A. § 1256(2) (1983 & Supp. 1999). 
Specifically, section 1256(2) provides that consecutive sentences are proper
if:  (1) the "convictions are for offenses . . . arising from different criminal
episodes"; (2) the "defendant was . . . on probation . . . at the time the
person committed a subsequent offense"; or (3) the "seriousness of the
criminal conduct involved . . . or the seriousness of the criminal record of
the convicted person, or both, require a sentence of imprisonment in
excess of the maximum available for the most serious offense."  17-A
M.R.S.A. § 1256(2)(A), (B), & (D); see also Shulikov, 1998 ME 111, ¶ 12,
712 A.2d at 512.
	[¶21]  Most, if not all, of those factors were present as to each
defendant.  Both Sweet and Poulin were on probation during part or all of
the time during which these offenses were committed.{6}  The charges arose
from different criminal episodes, involving the victimization of two boys in
Sweet's case and three boys in Poulin's case.  The serious nature of the
crimes against these children cannot be disputed.  In each instance, the
defendants "groomed" the boys for sexual encounters.  This included giving
them drugs or alcohol, exposing them to "man/boy" pornography, and
encouraging the boys to engage in sexual activities with each other.  Both
defendants were aware that their actions were criminal and that they were
at grave risk of lengthy incarceration for those acts.  Nonetheless, they
continued their pursuit of children as sexual partners.  They chose their
victims for their vulnerability and naiveté.  They destroyed or badly damaged
the natural sexual and emotional development of these boys.  On these facts,
we cannot say that the court abused its discretion when it determined that
consecutive sentences were necessary and appropriate.

	3.  Total Length of Sentences

	[¶22]  Finally, both Sweet and Poulin urge the court to conclude that
the sentences are simply too long.  Once we have determined that each
individual step in the Hewey process was correctly applied, we review the
sentence in its entirety for abuse of discretion.  Because of the difference in
final sentence lengths, we address each separately.

		(i) Sweet

	[¶23]  Sweet was sentenced to a total of 40 years in prison.  Using
current good time calculations, he may be released in approximately 35
years.  See 17­p;A M.R.S.A. § 1253 (1983 & Supp. 1999).  The length of this
sentence reflects both the serious nature of Sweet's crimes and his criminal
history.  Sweet had previously served a ten-year sentence for his earlier
sexual activities with children.  He was convicted of threatening one of those
victims after his release.  He was on probation at the time of these new
offenses.  He was aware of his counseling options and aware of the dire
consequences awaiting him should he abuse more children.  
	[¶24]  Nonetheless, Sweet sought out and assaulted two more
children.  	The court was justified in concluding that because Sweet was not
deterred by his previous sentence or willing to take advantage of the
services available to him through probation, the risks he posed to children
were grave. Moreover, it was clear that Sweet was not a good candidate for
further probation.  The court's decision to impose a lengthy unsuspended
sentence reflects the sentencing goals of restraining the convicted person
in the interest of public safety as well as recognizing the gravity of the
offenses.  See 17-A M.R.S.A. § 1151(1), (8) (1983 & Supp. 1999).  We
conclude that the court did not exceed the bounds of its discretion in
sentencing Sweet to 40 years in prison.