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State v. Christopher Carr
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MAINE SUPREME JUDICIAL COURT  				       	 Reporter of Decisions
Decision:	1998 ME 237
Docket:	Cum-98-214
Argued:	October 7, 1998	
Decided:	October 30, 1998

Panel:	  CLIFFORD, and RUDMAN, DANA, SAUFLEY, ALEXANDER, and CALKINS, JJ.


STATE OF MAINE v. CHRISTOPHER CARR


RUDMAN, J.

	[¶1]  Christopher Carr appeals from the sentences imposed by the
Superior Court (Cumberland County, Crowley, J.) resulting from jury verdicts
finding him guilty of four counts of attempted murder, two counts of arson,
one count of criminal mischief, and one count of violating a protective
order.{1}  Carr was convicted of three counts of arson, but after his first appeal
we vacated one of those counts for failure to allege an essential element of
the crime charged and remanded for resentencing.  Carr now contends the
trial court erred by sentencing him within the extended range of Class A
crimes on his four convictions for attempted murder and one of the
convictions for arson.  We disagree with Carr's contentions and affirm his
sentences.
	[¶2]  We have already detailed at length the facts leading to Carr's
convictions in State v. Carr, 1997 ME 221, ¶ 2, 704 A.2d 353, 355.  They
may be summarized briefly as follows:  Carr and his wife were separated and
involved in an extended divorce and a custody dispute over their three-year-
old son.  During this time, she petitioned for and received a protection from
abuse order.  One night at 2:00 a.m., Carr started two fires at the wood-
framed, multi-unit apartment building where she lived in Brunswick with
their son and her parents.  Carr set one fire at the front door to the
residence, the only means of access to the apartment, and the other on the
hood of a truck parked next to the porch.  The family awoke to find the fires
already burning, but were able to extinguish them quickly.  After realizing
the fire at the front door left the telephone inoperable, they called 911 from
a neighbor's house. 
	[¶3]  After vacating Count VI of his indictment alleging arson
endangering persons, we remanded for resentencing.  Id. ¶ 16, 704 A.2d at
357.  The trial court imposed concurrent sentences of thirty years for
attempted murder and arson with the intent to destroy the building, with all
but twenty-five years suspended, and six years of probation.  The court also
sentenced Carr to ten years for the remaining arson conviction for intending
to destroy the truck, one year for aggravated criminal mischief, and 364
days for violating a protection order, all concurrent.  Carr received leave to
appeal from the sentence.  State v. Carr, No. SRP-98-23 (Me. Sent. Rev.
Panel, Apr. 6, 1998).
	[¶4]  Carr argues that the trial court misapplied principle by setting
the basic period of incarceration at thirty years for each of the four
attempted murder convictions and the conviction for arson of the building. 
First, he contends that the extended range is available only for those crimes
committed against a person, and therefore it was error to set a basic period
of incarceration of thirty years for arson of property.  Second, he argues
none of his crimes were sufficiently heinous to warrant a sentence in the
extended range of Class A crimes. 
	[¶5]  To determine the defendant's basic period of incarceration, the
trial court must consider "the particular nature and seriousness of the
offense without regard to the circumstances of the offender."  State v.
Hewey, 622 A.2d 1151, 1154 (Me. 1993) (quoting State v. Weir, 600 A.2d
1105, 1106 (Me. 1991)).  For Class A crimes, the trial court must also
decide whether the basic period of incarceration is within two discrete
zones-the extended forty-year range, pursuant to 17-A M.R.S.A. §
1252(2)(A), or the usual twenty-year range.{2}  State v. Lewis, 590 A.2d 149,
151 (Me. 1991).  The extended range is available only for "the most heinous
and violent crimes that are committed against a person."  Id. (quoting Com.
Amend. A to L.D. 2312, Statement of Fact (113th Legis. 1988)).
	[¶6]  We review the trial court's decision on the defendant's basic
period of incarceration for misapplication of principle.  Hewey, 622 A.2d at
1155.  To decide whether a sentence in the extended range is appropriate,
we examine the entire record.  State v. King, 1998 ME 60, ¶ 13, 708 A.2d
1014, 1018.  We then compare the defendant's conduct on a scale of
seriousness against all possible ways of committing the offense.  State v.
Bolduc, 638 A.2d 725, 727 (Me. 1994).  
I. Basic Period of Incarceration for Arson of the Building.
	[¶7]  Carr challenges the sentence on Count V, which charged him
with arson, Class A, pursuant to 17-A M.R.S.A. § 802(1)(B).  He argues that
because we vacated another arson charge which explicitly alleged reckless
endangerment of persons, the remaining arson charge cannot provide the
basis for an extended range sentence pursuant to State v. Cloutier, 646 A.2d
358, 361 (Me. 1994).  We disagree.
	[¶8]  Carr was charged with and convicted of arson, a Class A crime. 
That arson was the central act of the attempted murders for which he was
also convicted.  In contrast to the defendant's actions in Cloutier (setting
fire to structures and utility poles), Carr started the fires in order to place
people at risk.  We have never held that the language of the charging
instrument, rather than the facts adduced at trial, control the sentencing
options of the court, and we decline to do so here.
II. Basic Period of Incarceration for Attempted Murder.
	[¶9]  Carr also argues that the trial court misapplied principle by
utilizing the extended range for Class A crimes when it sentenced him for
attempted murder.  He contends that his acts are not among the most
heinous and violent crimes that can be committed against a person.  We
disagree.
	[¶10]  The trial court did not misapply principle by using the
extended range for sentencing.  It both carefully examined the
circumstances of Carr's acts and compared them to other ways of
committing the offenses.  In violation of a protection from abuse order
preventing him from even being at his wife's apartment, Carr set both fires
at night when the victims were asleep and least likely to escape, and then
gave no warning of the danger he created.  He started one fire at the base of
the front door, the primary exit from the apartment, and another on the
hood of the truck parked next to the front porch, further impeding escape. 
The fire at the front door disabled the telephone, thus preventing those
inside from calling for help.  Finally, Carr attempted to kill four people,
including his wife and three-year-old son, by burning them to death.  
	[¶11]  Carr contends we should adopt a bright line rule that only those
crimes resulting in physical injury to the victim merit extended range
sentences.  Although we have stated that the trial court may consider
whether the victim was injured, that fact is not dispositive.  State v. Jackson,
1997 ME 174, ¶ 11, 697 A.2d 1328, 1331-32.  In State v. Kehling, 601 A.2d
620, 625 (Me. 1991), for example, we upheld a sentence within the
extended range for arson that did not directly cause any physical injuries at
all.  In this case, that Carr's family did not burn to death is due primarily to
his ineptitude and their quick thinking, not to any act of restraint on his
part.  The bright line rule that Carr urges would have the unacceptable
consequence of rewarding him for his incompetence as an arsonist.  We
decline to do that.
	[¶12]  These acts may be considered among the most heinous and
violent crimes that can be committed against a person, and therefore the
trial court was justified in applying the extended range to set Carr's basic
period of incarceration at thirty years.  Accordingly, finding no other error,
we affirm the remainder of Carr's sentence as to Counts I-IV and VII-IX.
	[¶13]  The other issue raised by Carr does not merit discussion.
	The entry is:
			Sentences affirmed.

Attorneys for State: Stephanie Anderson, District Attorney Julia Sheridan, Asst. Dist. Atty. 142 Federal Street Portland, ME 04101 Attorney for defendant: David Beneman, Esq. Levenson, Vickerson & Beneman P O Box 465 Portland, ME 04112-0465
FOOTNOTES******************************** {1} . Counts I through IV alleged, pursuant to 17-A M.R.S.A. § 152 (1983) (amended 1995), and § 201 (1983), that Carr attempted to murder each of the four occupants of the apartment. Count V alleged, pursuant to 17-A M.R.S.A. § 802(1)(B) (Supp. 1997), that he started a fire with the intent to destroy the building. Count VI alleged, pursuant to 17-A M.R.S.A. § 802(1)(B)(2) (Supp. 1997), that he started a fire recklessly endangering the occupants of the building. Count VII alleged, pursuant to 17-A M.R.S.A. § 802(1)(B) (Supp. 1997), that he started a fire with the intent to destroy a truck. Counts VIII, pursuant to 17-A M.R.S.A. § 805(1)(A) (1983) (amended 1995), and IX, pursuant to 19 M.R.S.A. § 769 (1983) (repealed 1997), alleged that Carr intentionally damaged an automobile in an amount exceeding $1000 in value, and violated a protective order, respectively. {2} . At the time of Carr's offense, the sentencing statute for Class A crimes provided: 2. The court shall set the term of imprisonment as follows: A. In the case of a class A crime, the court shall set a definite period not to exceed 40 years; . . . . 17-A M.R.S.A. § 1252(2)(A) (Supp. 1990).