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State v. Danaher

Superior Court of Maine, Kennebec

March 27, 2017

STATE OF MAINE
v.
BRIAN DANAHER

          ORDER ON MOTION TO REDUCE SENTENCE

          Eric J. Walker, Judge,

         Hearing on the Defendant's motion to reduce sentence was held on March 23, 2017. The Defendant was present and represented by David Geller, Esq.. The State was represented by Assistant District Attorney Frank Griffin. The Court promised the parties that it would listen to the full sentencing from February 1, 2016 following the hearing and it has done so.

         The Defendant entered guilty pleas on December 10, 2015, for two charges that included Aggravated Trafficking in Scheduled Drugs, Class A, according to 17-A M.R.S.A. § 1105-A(1)(B)(1) and Aggravated Trafficking in Scheduled Drugs, Class A, according to 17-A M.R.S.A. §1105-A(1)(D). These were "open" pleas and the sentencing was continued until February 1, 2016. The Defendant also admitted to three other counts of criminal forfeiture contained in the same indictment. Counts Three through Eight of the indictment were dismissed. The Defendant had also previously admitted to a motion to revoke probation (CR-11-215). The parties agreed that whatever sentences the Defendant received on the felony aggravated trafficking charges, the probation revocation would run concurrently with these sentences. The Defendant was present and represented by David Geller, Esq.. The State was represented by Assistant District Attorney Frank Griffin. The State had submitted a sentencing memorandum before sentencing for the Court's consideration that laid out a review of the evidence in the case and a Hewey analysis including the Defendant's criminal record and the aggravating and mitigating factors. During the sentencing argument, the State further explained that the drugs involved acetylfentanyl and cocaine base. The State argued that the drugs that the Defendant trafficked in were extremely dangerous and in unusually huge amounts. The State argued that the Defendant had a lengthy record with several previous probation revocations and terminations. The State explained this record included crimes of violence and included felonies and misdemeanors. The Defendant had served 15 months in 2008 for a Burglary conviction. In 2011, the Defendant was sentenced to 8 years all but 2 years suspended and 3 years of probation for Trafficking in Scheduled Drugs. The State argued that while the Defendant has had a serious drug addiction for many years, this did not excuse the serious drug trafficking charges. The State argued that the Defendant should serve 25 years in the Department of Corrections.

         The Defendant spoke at his sentencing and accepted full responsibility for his actions and apologized to the Court and his family and friends for the mistakes he had made. Defendant, through counsel, argued that the Defendant fully confessed to police to trafficking drugs for about 9 months when arrested but also admitted that he was heavily addicted to drugs. Defendant argued mitigating factors included: his drug addiction; his immediate acceptance of responsibility to police; his quickly pleading guilty and not having a trial; his difficult childhood; his history of employment and positive work history; his limited criminal history of mainly misdemeanors; and his true remorse for his criminal acts. Defendant also submitted other comparable cases from Kennebec County for the Court's consideration. The Defendant recommended that he should receive a sentence of 6 years (or a full revocation) on his pending probation revocation involving his 2011 Trafficking conviction. The Defendant agreed that he should not be placed back on probation again and recommended that he receive a straight sentence of 8 years to the Department of Corrections - to run concurrently with the probation revocation.

         The Court ultimately imposed a sentence of 12 years to the Department of Corrections on both counts of Aggravated Trafficking, Class A. These sentences were ordered to run concurrently with each other. The Court also imposed the two mandatory minimum $400 fines on the Aggravated Trafficking charges. The Court declined to order restitution to the State for the cost of drug testing. On the probation revocation matter, the Court ordered a full revocation and probation to terminate and ordered the Defendant to serve 6 years to the Department of Corrections - to run concurrently with the two Aggravated Trafficking sentences.

         The Defendant in this action argues that the sentences should be reduced because a mistake of fact existed at the time of sentencing according to Maine Rules of Unified Criminal Procedure, Rule 35(c). The Rule reads "On motion of the defendant or the attorney for the State, or on the court's own motion, made within one year after a sentence is imposed and before the execution of the sentence is completed, the justice or judge who imposed sentence may reduce that incomplete sentence." "The ground of the motion shall be that the original sentence was influenced by a mistake of fact that existed at the time of sentencing." The Defendant argues that the State's characterization of him that he was a bad person that needed to be locked up was a mistake of fact. The Defendant asks the Court to consider the fact that, since he has been in prison, he has done lots of good work including building 150 lamps in the prison shop. Defendant argues that this shows that he is a good worker who can learn and legitimately make money. Defendant argues that he has been attending substance abuse classes in prison and has become a "coach" within the program. Defendant argues that he has taken full responsibility for his actions and has shown maturity. Defendant also has attended some parenting classes while in prison. Defendant also points out that that he was young when he became addicted to drugs and his family basically left him.

         First, the Court is impressed with the positive steps the Defendant has taken while in prison and is encouraged with his progress. The Court hopes that the Defendant continues with these programs and other programs offered in the Department of Corrections before he is eventually released back into society. Unfortunately, none of these accomplishments point to a mistake of fact that existed at the time of sentencing. The State did not improperly argue that the Defendant was a "bad person" but instead correctly pointed out the Defendant's actions that lead to his convictions and his prior criminal record. None of these things were incorrect or improper. It should be noted that the State also pointed out some mitigating factors for the Court to consider at Defendant's sentencing.

         Most of the arguments that Defendant makes now were brought up and argued at his sentencing over a year ago and the Court considered them as mitigating factors at that time. The Court sees no evidence of any mistakes of fact at the time of sentencing that would warrant a reduction of the Defendant's sentence.

         "Because Frost failed to demonstrate that his sentence was influenced by a mistake of fact, the trial court was without authority to reduce the sentence pursuant to M.R. Crim. P. 35(c)." State v. Frost, 582 A.2d 782 (1990). As in the Frost case, this Court was not influenced by any mistake of fact and thus has no authority to reduce the sentence.

         "This is clearly a case in which a defendant's post-sentencing behavior is being offered as a basis for reducing his sentence. 'Facts consisting of post-sentencing developments, such as evidence indicative of a defendant's efforts at rehabilitation, are inadmissible at a hearing on motion to reduce sentence under Rule 35." 1 Cluchey & Seitzinger. Maine Criminal Practice § 35.3 at 35-15.. 16 n.4O (1987), " Stare v. Emery, 534 A.2d 1317 (1987), Accordingly, the Defendant's Motion to Reduce Sentence is DENIED.

         The entry shall be:

         For the foregoing reasons, the Defendant's Motion to ...


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