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State v. Macdonald, part 2
Appeal of Sentence
	[¶13]  MacDonald appeals the sentence on two grounds.  She contends
that the court erred by characterizing her crime as among the most serious
arsons, warranting a basic period of incarceration in the elevated range of 20
to 40 years, and it erred with respect to its assessment of mitigating and
aggravating factors.
	[¶14]  We have described the sentencing process as follows:
In the three-step process of sentencing, the trial court first
determines the basic period of incarceration by reference to the
offender's criminal conduct in committing the crime. . . . The
second step in the sentencing process is to individualize the
basic period of incarceration to determine the maximum period
of incarceration based on those aggravating and mitigating
factors peculiar to the specific offender.  As the final step, the
court may then suspend a portion of the maximum period of
incarceration for placement of the offender on supervised
probation.

State v. Bolduc, 638 A.2d 725, 727 (Me. 1994) (citations omitted).{5}  
	[¶15]  When the defendant has been convicted of a Class A crime, the
court must engage in an additional preliminary step to determine whether
the crime falls within the higher tier of Class A sentences.  "Of all Class A
offenses, only the most heinous and violent crimes committed against a
person are punishable by a maximum period of incarceration above the
original [20-year] limit."  State v. Hewey, 622 A.2d 1151, 1155 (Me. 1993) (
quotations and citation omitted).{6}  We review the sentencing court's
determination of the defendant's basic period of incarceration or term of
imprisonment for misapplication of principle.  Id.  We have stated,
[I]n reaching its determination the trial court is to compare the
defendant's conduct on a scale of seriousness against all possible
means of committing the crime in order to determine which
acts deserve the most punishment, and the basic period of
incarceration imposed for similar conduct of other offenders
convicted of offenses within the same classification.

State v. Ardolino, 1997 ME 141, ¶ 24, 697 A.2d 73, 81 (citations and
quotation omitted).
	[¶16]  The court took a focused view of MacDonald's crime, labeling as
"one of the most heinous types of arson that could be committed" the
lighting on fire of a person's bed while that person was asleep in it.  The
court did not err in principle in setting the basic term of imprisonment. 
MacDonald's conduct could be considered more heinous than, for example,
the act of setting fire to an occupied building.  Such a view, however, fails to
take into account the full course of MacDonald's conduct at the time of the
arson.  Indeed she did light Dolloff's bed on fire.  Almost immediately,
however, she also awoke Dolloff, telling her of the fire and pulling her from
the burning mattress.  MacDonald then alerted her son to the fire and
proceeded to attempt to put the fire out.
	[¶17]  The court erred in completely disregarding such conduct as
part of the analysis under the second step of the sentencing process --
individualizing the basic term of imprisonment based on those aggravating
and mitigating factors peculiar to the specific offender.  We review the
sentencing court's assessment of mitigating and aggravating factors for an
abuse of discretion.  State v. Lilley, 624 A.2d 935, 936 (Me. 1993).  "Such
abuse may occur when a material factor deserving significant weight is
ignored . . . ."  West Point-Pepperell v. State Tax Assessor, 1997 ME 58, ¶ 7,
691 A.2d 1211, 1213.
	[¶18]  The sentencing court noted MacDonald's minor criminal
history, including one felony conviction nearly thirty years ago, and her
lengthy and unsuccessful struggle with substance abuse as aggravating
factors.  In regard to mitigating factors, the court acknowledged her good
reputation at work and her efforts to raise her son, and it characterized her
as a productive member of society.  The court then concluded that these
factors balanced each other out, thus leaving her individualized maximum
period of imprisonment at 25 years.
	[¶19]  No consideration was given to MacDonald's conduct in
immediately pulling Dolloff from harms way, alerting her son and Dolloff to
the danger, sending her son to alert others in the building and to get help,
and attempting to put the fire out.  Because the court did not take account of
these factors in any way, presumably MacDonald's sentence would have been
the same had she done none of these things after having set the fire, and
simply left the apartment without raising an alarm.  Given the great
significance of MacDonald's actions after having set the fire -- for surely
without those efforts greater harm almost certainly would have occurred --
at the very least we must conclude that the sentencing court exceeded the
bounds of its discretion by not considering those actions as mitigating
factors as required by 17-A M.R.S.A. § 1252-C(2).
	[¶20]  An appropriate sentence must take into account MacDonald's
nearly instantaneous efforts to minimize the harm resulting from her
criminal act.  Otherwise, the conclusion is inescapable that MacDonald
would receive no greater punishment had she abandoned her victims and
slipped silently away after setting the fire.  A sentence that disregards those
crucial actions on MacDonald's part must be vacated.
	The entry is:
Judgment affirmed.  Sentence vacated. 
Remanded to the Superior Court for
resentencing consistent with the opinion
herein.

Attorneys for State: David W. Crook, District Attorney Alan P. Kelley, Asst. Dist. Atty. 95 State Street Augusta, ME 04330 Attorney for defendant: Ronald W. Bourget, Esq. Bourget & Bourget, P.A. Augusta, ME 04330-5194
FOOTNOTES******************************** {1}. 17-A M.R.S.A. § 802 (1983 & Supp. 1997) provides in part: 1. A person is guilty of arson if he starts, causes, or maintains a fire or explosion; . . . . B. On his own property or the property of another . . . . (2) which recklessly endangers any person or the property of another. . . . . 3. Arson is a Class A crime. {2}. Devine acknowledged that he did not mention PTSD in the written psychological evaluation he prepared for MacDonald. Although he testified that MacDonald met several of the diagnostic criteria for PTSD outlined in the Diagnostic and Statistical Manual of Mental Disorders, two or more of which must be satisfied to support a PTSD diagnosis, he acknowledged that there was no reference in his evaluation of MacDonald having satisfied any of those criteria. The court mentioned this deficiency of Devine's report as support for its exclusion of his testimony pursuant to M.R. Evid. 702. {3}. The court also concluded that, "even if it was potentially admissible under 702, under 403 its primary effect is not to affect credibility but to get it before the jury where it's more likely prejudicial than probative under 403." Finally, the court concluded that it would not "normally [be] allowed under 404." Because we find that the testimony was properly excluded pursuant to Rule 702, we need not address the propriety of the court's ruling with respect to Rules 403 and 404. {4}. Both M.R. Evid. 702 and Fed. R. Evid. 702 provide: If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise. {5}. Subsequent to MacDonald's offense, the Legislature enacted 17-A M.R.S.A. § 1252-C (Supp. 1997), which provides, In imposing a sentencing alternative pursuant to section 1152 that includes a term of imprisonment relative to murder, a Class A, Class B or Class C crime, in setting the appropriate length of that term as well as any unsuspended portion of that term accompanied by a period of probation, the court shall employ the following 3-step process: 1. The court shall first determine a basic term of imprisonment by considering the particular nature and seriousness of the offense as committed by the offender. 2. The court shall next determine the maximum period of imprisonment to be imposed by considering all other relevant sentencing factors, both aggravating and mitigating, appropriate to that case. These sentencing factors include, but are not limited to, the character of the offender and the offender's criminal history, the effect of the offense on the victim and the protection of the public interest. 3. The court shall finally determine what portion, if any, of the maximum period of imprisonment should be suspended and, if a suspension order is to be entered, determine the appropriate period of probation to accompany that suspension. See P.L. 1995, c. 69, § 1. See State v. Cunningham, 1998 ME 167, ¶ 5. {6}. Subsequent to MacDonald's offense, the Legislature enacted 17-A M.R.S.A. § 1252(2)(A) (Supp. 1997), which provides, In the case of a Class A crime, the court shall set a definite period not to exceed 40 years. The court may consider a serious criminal history of the defendant and impose a maximum period of incarceration in excess of 20 years based on either the nature and seriousness of the crime alone or on the nature and seriousness of the crime coupled with the serious criminal history of the defendant[.] See P.L. 1995, ch. 473, § 1.
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