State v. T. Ross
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MAINE SUPREME JUDICIAL COURTReporter of Decisions
Decision:  1997 ME 67
Docket: CUM-96-465
Submitted on briefs February 14, 1997
Decided April 4, 1997

Panel:  WATHEN, C.J.,  GLASSMAN, CLIFFORD, RUDMAN, DANA, and  LIPEZ, JJ.

STATE OF MAINE

v.  

TERRY L. ROSS

WATHEN, C.J.
	
	[¶1]  Defendant, Terry Ross, appeals from a judgment entered in the
Superior Court (Cumberland County, Calkins J.) on a jury verdict finding him
guilty of taking shellfish from a closed area in violation of 12 M.R.S.A. § 6621
(1994).{1}  Defendant argues that the court violated his First Amendment
right to peaceably assemble, that he was subjected to an unreasonable search
and seizure, and that his conviction violated the ex post facto clause of the
United States Constitution.  Because defendant failed to provide a transcript
of the trial, we are unable to review the merits of his arguments, and we
affirm the judgment.  The appeal must be denied.  State v. Thwing, 487 A.2d
260, 262 (Me. 1985).
	[¶2]  The record does reveal a sentencing infirmity that compels a
modification of the judgment and sentence.  Defendant was fined $300
pursuant to section 6621(4).  In addition, his offense was classified as a Class
D crime and he was accordingly assessed a $10 victim's compensation fund
fee pursuant to 5 M.R.S.A. § 3360-I (Supp. 1996).{2}   The marine resources
statute provides that the violation of any of its provisions "shall be a Class D
crime, unless another penalty has been expressly provided."  12 M.R.S.A. §
6204 (1994) (emphasis added).  In the case of taking shellfish from a closed
area in violation of section 6621, the penalty is expressly provided: 

4.  Penalty.  Notwithstanding the provisions of Title 17-A,
section 4-B,{3} a person who violates this section commits a crime
punishable by: 
	
	A.  For the first offense, a fine of not less than $300 and
	not more than $1,500;
		
	B.  For subsequent offenses, a fine of not less than $500
	and not more than $1,500.

12 M.R.S.A. § 6621(4) (1994).  When it appears so plainly "on the face of the
appeal record," as to "foreclose rational disagreement," that defendant's
sentence was contrary to statutory authority, we will take note of the
infirmity on direct review.  State v. Parker, 372 A.2d 570, 572 (Me. 1977). 
Accordingly, we modify the judgment by striking the reference to the
offense as a Class D crime and the imposition of a victim compensation
assessment.
	The entry is:

Judgment modified in accordance with
the opinion herein, and as so modified,
affirmed.
                                                               

Attorneys for State:

Stephanie Anderson, District Attorney
Julia Sheridan, Asst. Dist. Atty.
142 Federal Street
Portland, ME 04101

For defendant:

Terry L. Ross
RR 3 Box 615 B
Wiscasset, ME 04578

FOOTNOTES******************************** {1} It shall be unlawful to fish for or take shellfish from any area closed by regulation or to possess, ship, transport or sell shellfish so taken. 12 M.R.S.A. § 6621(1). {2} As part of the sentence or fine imposed, the court shall impose an assessment of ... $10 on any person convicted of a Class D crime or a Class E crime. 5 M.R.S.A. § 3360-I. {3} Section 4-B provides in part: A law or ordinance which is stated to be a criminal violation or which otherwise uses language indicating that it is a crime, but does not provide an imprisonment penalty is a civil violation ... unless the law or ordinance is an exception to the operation of this subsection. 17-A M.R.S.A. § 4-B(3) (Supp. 1996).