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State v. Norma Sheldon
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MAINE SUPREME JUDICIAL COURT				Reporter of Decisions
Decision:	2000 ME 193 
Docket: 	Wal-00-152
Submitted
 on Briefs:  	October 6, 2000
Decided:	November 2, 2000

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




STATE OF MAINE v. NORMA SHELDON


CALKINS, J.

	[¶1]  Norma Sheldon appeals from a judgment entered in the Superior
Court (Waldo County, Mead, C.J.) denying her motion for a new trial and
denying, in part, her motion for a reduction of her sentence.  Sheldon
argues that newly-discovered evidence warrants a new trial and that her
sentence should be reduced because of her medical problems and because of
accounting errors in the calculation of restitution.  We affirm the denial of
the new trial motion, and we dismiss the appeal from the disposition of the
sentence reduction motion.
I. PROCEDURAL BACKGROUND
	[¶2]  Sheldon was indicted by the grand jury for theft, a violation of
17-A M.R.S.A. § 353 (1983).  Specifically, she was charged with exercising
unauthorized control over currency belonging to the Town of Northport. 
The offense is Class B because the amount exceeded $10,000.  See 17-A
M.R.S.A. § 362(2) (Supp. 1999).  On September 23, 1998, Sheldon's
three-day jury trial concluded with a guilty verdict.  A sentencing hearing
was held on November 9, 1998, and Sheldon was sentenced to two years
incarceration with all but nine months suspended (Brodrick, A.R.J.).  She
was sentenced to pay a fine of $5000 and to pay restitution to the Town of
Northport in the amount of $19,735.  Her sentence was stayed pending
appeal.
	[¶3]  Sheldon appealed her sentence, see 15 M.R.S.A. § 2151 (Supp.
1999), but her sentence appeal was denied by the Sentence Review Panel on
October 12, 1999.  See 15 M.R.S.A. § 2152 (Supp. 1999).  Sheldon's
conviction was affirmed.  State v. Sheldon, Mem. Dec. 99-146
(November 23, 1999).  Sheldon then moved to stay the execution of her
sentence because of her medical problems, and the Superior Court granted
her motion and subsequently granted additional stays.  In the meantime,
Sheldon made several post-judgment motions including the motion for
reduction of sentence.  After her conviction was affirmed, Sheldon filed a
motion for a new trial on the ground of newly discovered evidence, and a
consolidated hearing was held on the new trial motion and the sentence
reduction motion.  At the time the court addressed Sheldon's motion to
reduce her sentence, she had not commenced the execution of her
sentence.  Her motion for reduction was granted in part.  The court vacated
the fine, but the sentence of incarceration and restitution remained as
initially imposed.{1}  The new trial motion was denied.  
II. MOTION FOR NEW TRIAL
	[¶4]  Sheldon worked as the tax collector, treasurer, and clerk for the
Town of Northport for approximately nine years.  Her responsibilities
included collecting automobile excise tax payments.  She collected
payments using a four-part form.  The top white copy was the original, and
she sent it to the Department of Motor Vehicles.  She gave the yellow copy
to the taxpayer, and she kept the pink and green copies for Town purposes. 
She filed the pink copies alphabetically, and she used the green copies to
deposit the collected taxes by bundling them with their corresponding
deposit slips and adding machine tapes.  Each year an auditor would match
pink copies to green copies to verify that all collected tax money could be
traced to a corresponding deposit.
	[¶5]  The State claimed that, during the 1995-96 fiscal year, Sheldon
stole motor vehicle excise tax payments.  At Sheldon's trial, the accountants
who conducted the 1995-96 fiscal year audit testified that they found
eighty-five pink copies without corresponding green deposit copies.  Prior
to the trial, Sheldon and her attorney were able to review the Town's excise
tax records, but were unable to find the eighty-five pink copies which did
not have corresponding green copies.
	[¶6]  After trial, Sheldon and her attorney again reviewed the Town's
tax records.  At that time, they found only eleven of the eighty-five pink
copies.  Sheldon moved, pursuant to M.R. Crim. P. 33, for a new trial arguing
that her post-trial discovery, that the State does not have most of the eighty-
five pink copies upon which it relied at trial, entitles her to a new trial. 
Sheldon also claims that her post-trial review of the records reveals that the
accountants made errors in the audit.  She contends that some of the taxes,
claimed by the State to have been stolen, had not been paid during the fiscal
year at issue and, thus, should not have been included in the calculation of
stolen taxes.      
	[¶7]  In State v. Dechaine, 630 A.2d 234, 236 (Me. 1993), we
reiterated the five elements that a defendant must demonstrate by
convincing evidence to establish entitlement to a new trial on the ground of
newly discovered evidence:
(1)the evidence is such as will probably change the result if a
new trial is granted; 
(2)it has been discovered since the trial; 
(3)it could not have been discovered before the trial by the
exercise of due diligence; 
(4)it is material to the issue; and 
(5)it is not merely cumulative or impeaching, unless it is
clear that such impeachment would have resulted in a
different verdict.
Id. (citations omitted).  The standard of review for the denial of a motion for
new trial on the ground of newly discovered evidence is twofold:  clear error
and abuse of discretion.  When reviewing the factual findings made by the
court, the clear error standard is used.  See State v. Hardy, 501 A.2d 815,
816 (Me. 1985); State v. Sawyer, 314 A.2d 830, 834 (Me. 1974).  "The
ultimate decision on the motion," however, is "left to the sound legal
discretion of the Justice below."  State v. O'Clair, 292 A.2d 186, 197 (Me.
1972).  Thus, those factual findings required to decide the motion,
including such findings as to whether the evidence was discovered after trial
and whether it could have been discovered before trial with due diligence,
will stand unless clearly erroneous.  The ultimate decision on the motion,
that is, the decision on those factors that involve mixed fact and law
questions and the application of the facts to the five elements listed above, is
reviewed for an abuse of discretion.
	[¶8]  The trial court did not specify the basis upon which it denied the
motion for new trial.  The evidence presented at the motion hearing
discloses that Sheldon failed to demonstrate that the new evidence could
not have been discovered before the trial by the exercise of due diligence. 
Sheldon does not maintain that she was prohibited from reviewing the Town
records before trial or that such records were not made available to her. 
She claims that it was difficult to gain adequate access to the Town's tax
records before trial, and she demonstrated at the hearing on her new trial
motion that she made several pretrial requests to examine the records. 
Furthermore, when she and her attorney eventually were able to review
them, the records were in complete disarray.  Nonetheless, the records
were available to her, and she and her attorney, in fact, spent a day and a
half before the trial reviewing them.  Sheldon knew that some pink copies
were missing because she continued to search for them until her case went
to trial.  Because she had access to the tax records, she also had an
opportunity to discover any accounting errors prior to trial.  Sheldon does
not explain why her pretrial review of the records did not allow her to
conclude that the accountants had reached erroneous conclusions as to
certain missing taxes.  The fact that pink copies were missing and that
accounting errors were made could have been discovered by her prior to
trial.  The trial court did not err or abuse its discretion in determining that
Sheldon failed to establish by convincing evidence that she met the
necessary requirements for obtaining a new trial.
III. MOTION FOR REDUCTION OF SENTENCE
	[¶9]  In her motion to reduce her sentence, Sheldon states that her
physical condition deteriorated significantly after her sentencing in
November 1998.  She suffered work-related injuries, requiring surgery on
both shoulders.  She experiences pain, has limited use of both arms, and
attends physical therapy.  She argues that she is imprisoned in her home
because of her physical condition.  She also contends that the restitution
should be reduced because her physical condition limits her ability to earn
income and because the accountants erroneously calculated the amount of
stolen taxes.  
	[¶10]  Sheldon expressly brought her motion pursuant to M.R. Crim. P.
35(b) which provides for a motion to reduce a sentence before execution of
the sentence has begun.{2}  There is no provision in the Maine Rules of
Criminal Procedure for an appeal from the denial of a Rule 35(b) motion. 
Rule 35(f) provides for a discretionary appeal from denials of Rule 35(a) and
(c) motions only.  See also M.R. Crim. P. 37C.  Rule 35(a) allows a motion to
correct a sentence, and Rule 35(c) provides for a motion to reduce a
sentence after commencement of execution.  
	[¶11]  A defendant who is sentenced to a period of incarceration
longer than one year may seek review of the sentence, but that review is
discretionary.  See M.R. Crim. P. 40; 15 M.R.S.A. §§ 2151, 2152.  Sheldon,
in fact, sought review of her sentence, but her sentence appeal was denied. 
Given the fact that Sheldon was not entitled to an appeal of right from her
sentence when it was imposed and would not be entitled to an appeal of
right from a denial of a motion to correct a sentence or a motion to reduce
the sentence once execution commenced, it is neither rational nor logical to
permit her an appeal of right from the denial of a motion to reduce a
sentence before execution of the sentence.  The omission in the criminal
rules of any reference to an appeal from denials of Rule 35(b) motions is
intentional.  There is no right of appeal from the denial of a motion brought
pursuant to Rule 35(b).  
	The entry is:
Appeal from order denying new trial affirmed. 
Appeal from disposition of motion to reduce
sentence dismissed.

Attorney for State: Geoffrey A. Rushlau, District Attorney 137 Church Street Belfast, ME 04915 Attorneys for defendant: Sandra Hylander Collier, Esq. Catherine L. Haynes, Esq. P O Box 1391 Ellsworth, ME 04605
FOOTNOTES******************************** {1} . The sentencing judge retired before Sheldon brought her motion to reduce her sentence. M.R. Crim. P. 25 authorizes the Chief Justice of the Superior Court to assign another justice to duties of justices who become unavailable. Pursuant to this authority, the Chief Justice (Mead, C.J.) ordered that any available justice could preside over the motion to reduce sentence. {2} . M.R. Crim. P. 35(b) provides: Reduction of Sentence Before Commencement of Execution. The justice or judge who imposed sentence may reduce a sentence prior to the commencement of execution thereof.