MARK I. GESSNER
STATE OF MAINE
Submitted On Briefs: May 25, 2017
County Superior Court docket number CR-2016-60
A. McNamara, Esq., Drake Law, LLC, Berwick, for appellant
Mark I. Gessner
Maeghan Maloney, District Attorney, Carie James, Asst. Dist.
Atty., and Mary-Ann Letourneau, Stud. Atty., Prosecutorial
District IV, Augusta, for appellee State of Maine
SAUFLEY, C.J., and ALEXANDER, GORMAN, JABAR, and HUMPHREY,
Mark I. Gessner appeals from a judgment of the Superior Court
(Kennebec County, Marden, J.) denying his petition
for release from the Riverview Psychiatric Center. Gessner
contends that the statute governing his opportunity for
release from institutional inpatient residency is
unconstitutionally vague as applied to him. We affirm the
The record before us is sparse and does not contain any
official documentation regarding Gessner's criminal
history. Accordingly, we rely on the court's findings,
supported by a Riverview institutional report, for our
summary of Gessner's criminal history.
Gessner was convicted of murder in 1995. While serving his
sentence for that crime, he pleaded guilty to an assault in
2000, he was charged with assault on an officer and criminal
mischief in 2004, and he was charged with aggravated assault
and trafficking in prison contraband in 2010. In 2011,
Gessner was found not criminally responsible by reason of
insanity for the 2010 charges, see 17-A M.R.S.
§ 39 (2016), and the court [H]elm, J.)
committed him to the custody of the Commissioner of Health
and Human Services, see 15 M.R.S. § 103
Gessner was ultimately transferred to Riverview on February
20, 2016, as a result of that commitment. He filed a
petition for release one month after he arrived at Riverview,
on March 21, 2016. As amended, Gessner's petition
requested full or modified release.
The court [Marden, J.) held an evidentiary hearing
on Gessner's petition for release in July 2016. Based on
the evidence presented, the court found that Gessner has been
diagnosed with multiple mental illnesses since 1993,
including reactive psychosis, depression with psychotic
features, schizophrenia, auditory hallucinations, and
delusional ideation. He has a history of refusing medication,
both in prison and at Riverview, and does not consider
himself to be mentally ill. In the brief period that he has
been at Riverview, Gessner has not participated in the
counseling recommended by his primary provider, he yells
loudly and angrily, and he swears and slams doors.
Faced with very little evidence of any improvement in
Gessner's illness and with evidence of Gessner's own
resistance to treatment after twenty-two years in a prison
environment, the court was not persuaded that the Riverview
staff would be fully capable of supervising Gessner in a
transition into the community. The court found that Gessner
had not met his burden to establish that it was highly
probable that he could be released, either fully or on a
modified basis, without likelihood that he would cause injury
to himself or others due to mental disease or mental defect.
See 15 M.R.S. § 104-A(1), (2), (3) (2016);
Bealv. State, 2016 ME 169, ¶ 5, 151 A.3d 502;
see generally Green v. Comm'r of Mental Health &
Mental Retardation, 2000 ME 92, 750 A.2d 1265.
[¶7] Gessner timely appealed from the judgment, arguing
only that the statute governing release, 15 M.R.S. §
104-A (2016), was unconstitutionally vague. See 15
M.R.S. § 2115 (2016); M.R. App. P. 2. Because Gessner
did not raise the vagueness issue to the trial court, we
review for obvious error, which requires a showing "that
there is (1) an error, (2) that is plain, and (3) that
affects substantial rights. Even if these three conditions
are met, we will set aside a [judgment] only if we conclude
that (4) the error seriously affects the fairness and
integrity or public reputation of judicial proceedings."
State v. Sexton, 2017 ME 65, ¶ 36, __A.3d
__(citation omitted) (quotation marks omitted); see State
v. Preston, 2011 ME 98, ¶ 7, 26 A.3d 850.
We test Gessner's vagueness challenge "in the
circumstances of the individual case and considering whether
the statutory language was sufficiently clear" to give
him adequate notice of the requisites for his release.
State v. Reckards,2015 ME 31, ¶ 4, 113 A.3d
589 (quotation marks omitted). Section 104-A requires
consideration of whether "the person may be released or
discharged without likelihood that the person will ...