MAINE SUPREME JUDICIAL COURT                                        Reporter of Decisions
Decision: 2015 ME 46
Docket:   Yor-14-161
Argued:   February 10, 2015
Decided:  May 5, 2015

Panel:       SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, and HJELM, JJ.



                                 STATE OF MAINE

                                          v.

                                THOMAS BENNETT

SAUFLEY, C.J.

         [¶1] Thomas Bennett, an employee of Saco Pawn and Loan, purchased what

he knew to be stolen property for resale at the pawnshop. He did not disclose the

purchase when the rightful owner, the victim of a recent burglary, told Bennett that

he had been recently robbed and that he was trying to locate his stolen property.

Bennett then lied to a detective with the Saco Police Department when he was

asked whether he had purchased any of the victim’s stolen property. After a jury

found Bennett guilty of theft by receiving stolen property (Class D), 17-A M.R.S.

§ 359(1)(B)(5) (2014), the Superior Court (York County, Fritzsche, J.) sentenced

Bennett to fourteen days in jail and a $500 fine, plus applicable surcharges.

         [¶2] Bennett directly appeals from his sentence. He argues that the sentence

imposed by the court is illegal because it is disproportionate to the crime
2

committed and in violation of his equal protection and due process rights. We

affirm the sentence.

                                I. BACKGROUND

        [¶3] “Viewed in the light most favorable to the jury’s verdict, the record

supports the following facts.” State v. Ormsby, 2013 ME 88, ¶ 2, 81 A.3d 336. On

April 26, 2013, the victim’s home was burglarized, and the victim reported that,

among other items, comic books, electronics, and a Penn Senator fishing reel were

stolen. After the burglary, a Saco police officer interviewed the victim and filed a

report about the incident. The victim valued the fishing reel at approximately

$700.

        [¶4] The next day, the victim began driving to local pawnshops looking for

his stolen items.      One of these pawnshops was Saco Pawn and Loan, where

Bennett was employed. The victim told Bennett that he had been robbed and was

searching for his missing items, specifically mentioning his fishing reel and

electronics.   Bennett did not tell the victim that the fishing reel was at the

pawnshop.

        [¶5] A detective from the Saco Police Department investigated the burglary.

As part of his investigation, on or about April 29, 2013, he spoke with Bennett

regarding the missing fishing reel.     The detective was familiar with Bennett

because he oversees the pawnshops in the Saco area. That oversight includes
                                                                                                        3

checking for compliance with existing regulations and monitoring the property that

is purchased and then sold from pawnshops. Bennett told the detective that an

individual named Arthur McCurry had come into the pawnshop looking to sell

comic books, electronics, and a couple of fishing reels. Bennett alleged that he had

previously purchased property from McCurry that he believed had been stolen.

Bennett explicitly told the detective that he did not purchase any items from

McCurry.

        [¶6] Thereafter, the detective interviewed McCurry about the burglary and

obtained and executed a search warrant for Saco Pawn and Loan. While executing

the warrant, a police officer located a Penn Senator fishing reel wrapped in a

yellow cloth bag in a wooden cabinet behind the counter.                              The item was

photographed and taken to the Saco Police Department, where the victim identified

both the cloth bag and the fishing reel as his own. Officers executing the search

warrant also checked the daily logs of purchases and sales for the business to

determine whether any fishing reel was listed. During the time in question, there

was no record of any transaction regarding a fishing reel.1

        [¶7] After the fishing reel was found, Bennett asked to speak with one of the

detectives outside, where he admitted that he had purchased the reel from


   1
     Pawnshops are required to keep records of the items that come into their possession and to file those
records with law enforcement. See 30-A M.R.S. § 3962 (2014).
4

McCurry. He explained that he had been hoping McCurry would bring in more of

the victim’s stolen items so that he could purchase them from McCurry “in hopes

of getting it all,” and then have the victim pay him back for the stolen property.

Bennett further explained that he did not tell anyone this because he did not want

to scare McCurry off from bringing in more stolen property.                      The detective

specifically asked Bennett if he had purchased the fishing reel before the victim

had come into the shop to look for his stolen property. Bennett admitted that he

had, and admitted that he did not tell the victim that he had recovered his fishing

reel.

        [¶8] Bennett was indicted for theft by receiving stolen property (Class C),

17-A M.R.S. § 359(1)(B)(4) (2014). A jury trial was held on March 18, 2014, at

which Bennett testified in his own defense. At the conclusion of the one-day trial,

the jury acquitted Bennett of Class C theft by receiving stolen property,

17-A M.R.S. § 359(1)(B)(4), but convicted him of the lesser included offense of

Class D theft by receiving stolen property, 17-A M.R.S. § 359(1)(B)(5).2

        [¶9] After the entry of the jury’s verdict, the court asked whether Bennett

would like to proceed directly to sentencing or instead address sentencing at


    2
     Title 17-A M.R.S. § 359(1)(B)(4) (2014) involves property valued at “more than $1,000 but not
more than $10,000,” while 17-A M.R.S. § 359(1)(B)(5) (2014) involves property valued at “more than
$500 but not more than $1,000.” There was conflicting testimony at trial through the State’s and
Bennett’s experts regarding the value of the stolen fishing reel.
                                                                                   5

another time in the future. Bennett indicated that he would prefer to proceed

directly to sentencing. The State requested a $700 fine based in part on the wishes

of the victim that Bennett not be convicted of a felony or incarcerated. Bennett

requested a $350 fine.      Before sentencing Bennett, the judge asked whether

Bennett had anything that he wanted to say. Bennett then told the judge that he

was raising his nine-year-old grandson and was primarily responsible for the

child’s care and daily routine.

      [¶10] Before sentencing him, the court spoke directly to Bennett, stating:

      One of the things that was troublesome to me about just the facts of
      this case was that while the State initially had a value that the
      evidence didn’t fully support, they did have the basic fact that it was
      receiving stolen property.         The evidence was absolutely
      overwhelming.

      It seemed that Mr. McCurry was known to you to be a thief, that it
      suggested that he had stolen from his father. You had every reason to
      believe that that fishing reel was hot. There’s no reason Arthur
      McCurry would have ever had one of those legitimately.

      ...

      You—it’s not a question of believing it was probably stolen. I don’t
      think you had any doubt at all but that it was stolen. You had the
      opportunity to let [the victim] know . . . you had the opportunity to let
      the police know. It seemed that you were concerned about being out
      your $80 if they took it back from you.

      I’ve been looking at burglary and theft and bad check and robbery
      cases, particularly the burglary and theft charges. And it’s absolutely
      clear that for all the United States, including Maine, including [York]
      [C]ounty, there’s a profound problem with, particularly younger
6

      people, and some older people, misusing a variety of drugs. Many of
      them are still quite expensive. Some of the ones that are cheaper are
      even more dangerous.

      So for most of the people, they have no legitimate way of making the
      kind of money they need to support their addiction, so they steal
      things. And they don’t want fishing reels, they don’t want gold coins,
      they don’t want jewelry, they want cash. And your business and a
      number of others routinely take stolen items.

      Much of your merchandise is legitimate. You’re a lawful business,
      but a significant portion of what pawnshops take in is stolen, it’s
      known to be stolen. I’m absolutely, positively convinced of that. As
      a general proposition, that there’s a significant—that existence of the
      pawnshop is kind of the third part of the trinity of burglars and drug
      dealers. And they’re all –

      And so, normally, but for your child, I would probably give you
      somewhere between 30 and 60 days in jail. To make a statement of
      what you did was inexcusable and to have other pawnshop owners
      pay attention to this. Because of your child, I’m going to cut it back
      ....

Instead of sentencing Bennett to the thirty to sixty days in jail originally considered

by the court, the court sentenced Bennett to fourteen days in jail and a $500 fine,

plus surcharges. Bennett did not object to the court’s statements at sentencing or

move for correction or reduction of his sentence. See M.R. Crim. P. 35. Because

of the brevity of Bennett’s sentence, he is ineligible to file an application for leave

to appeal his sentence with the Sentence Review Panel of the Supreme Judicial

Court. See 15 M.R.S. §§ 2151, 2152 (2014); M.R. App. P. 20(a)(1). Instead,

Bennett appealed his sentence to us and was granted a stay of execution pending
                                                                                                    7

the outcome of this appeal.3 See 15 M.R.S. § 2115 (2014); M.R. App. P. 2; State v.

Mosher, 2012 ME 133, ¶ 4, 58 A.3d 1070.

                                       II. DISCUSSION

A.       Standing to Appeal Sentence

         [¶11] As an initial matter, we note that a direct appeal from a sentence is

only justiciable upon a claim “that the sentence is illegal, imposed in an illegal

manner, or beyond the jurisdiction of the court, and the illegality appears plainly in

the record.” State v. Schmidt, 2010 ME 8, ¶ 5, 988 A.2d 975. Any claimed abuse

of discretion in the court’s application of the Hewey process can be reviewed only

upon the grant of an application for “leave to appeal from sentence,” which is not

available to Bennett in this case. 15 M.R.S. § 2152; see id. § 2151; 17-A M.R.S.

§ 1252-C (2014); State v. Ricker, 2001 ME 76, ¶ 18, 770 A.2d 1021.

         [¶12] There are no statutory infirmities in the sentence before us. The court

had jurisdiction to sentence Bennett, see 15 M.R.S. § 1 (2014), and Bennett’s jail

sentence falls well within the timeframe explicitly authorized by the Legislature for

a person convicted of a Class D crime, see 17-A M.R.S. § 1252(2)(D) (2014)

(authorizing a court to impose a term of imprisonment of less than one year). No

aspect of the sentence, including the commitment to jail, the fine, or the

     3
       Bennett has also filed a petition for post-conviction review, which has been stayed pending the
outcome of this appeal. The court denied Bennett’s motion for stay of execution of his sentence until
after the resolution of his post-conviction review.
8

surcharges, falls outside of the court’s authority.        See id.; 17-A M.R.S.

§ 1301(1-A)(D) (2014); 4 M.R.S. § 1057 (2014).

      [¶13] Thus, the record discloses no obvious illegality that can be addressed

through this direct appeal. Nonetheless, Bennett argues that the sentence is illegal

because (1) it constitutes an unconstitutionally disproportionate sentence in

violation of the Eighth Amendment to the United States Constitution and article 1,

section 9 of the Maine Constitution; (2) he was punished based on his profession,

not on the crime he committed, in violation of his equal protection rights; and

(3) his sentence was “enhanced” without sufficient factual support, in violation of

his due process rights. Claims alleging violations of a defendant’s constitutional

rights constitute an attack on the legality of the sentencing proceeding and may be

cognizable on direct appeal. See Ricker, 2001 ME 76, ¶ 19, 770 A.2d 1021.

B.    Constitutional Claims

      [¶14] We review the legality and constitutionality of a sentence de novo.

State v. Harrell, 2012 ME 82, ¶ 4, 45 A.3d 732; see State v. Brockelbank, 2011 ME

118, ¶ 15, 33 A.3d 925; State v. Cain, 2006 ME 1, ¶ 7, 888 A.2d 276. “On direct

appeal, we are limited to reviewing only the legality, and not the propriety, of

sentences imposed by the trial court.” State v. Briggs, 2003 ME 137, ¶ 4, 837 A.2d

113; see State v. Mahan, 1998 ME 143, ¶ 1 n.3, 711 A.2d 1314.
                                                                                  9

      1.     Eighth Amendment

      [¶15] We first address Bennett’s Eighth Amendment claim. The Eighth

Amendment to the United States Constitution provides that “[e]xcessive bail shall

not be required, nor excessive fines imposed, nor cruel and unusual punishments

inflicted.” U.S. Const. amend. VIII. Article 1, section 9 of the Maine Constitution

explicitly provides that “all penalties and punishments shall be proportioned to the

offense.” Me. Const. art. I, § 9. “[O]nly the most extreme punishment decided

upon by the Legislature as appropriate for an offense could so offend or shock the

collective conscience of the people of Maine as to be unconstitutionally

disproportionate, or cruel and unusual.” State v. Ward, 2011 ME 74, ¶ 18, 21 A.3d

1033 (alterations omitted) (quotation marks omitted). Bennett was sentenced to

two weeks in the county jail and a $500 fine after a jury convicted him of theft by

receiving stolen property. His sentence falls within the lower range of the lowest

quadrant of the incarceration time authorized by the Legislature for a Class D

crime. Therefore, as to Bennett’s Eighth Amendment claim, no illegality appears

plainly in the record, see Ricker, 2001 ME 76, ¶ 18, 770 A.2d 1021, and his direct

appeal as to that claim fails.

      2.      Equal Protection

       [¶16] Bennett contends that the sentence imposed violates his right to equal

protection pursuant to the Maine and United States Constitutions because the court
10

enhanced his sentence solely because he was a pawnshop employee, thus

discriminating against him with no rational basis for such discrimination.

         [¶17] The Maine Constitution guarantees that “[n]o person shall be deprived

of life, liberty or property without due process of law, nor be denied the equal

protection of the laws.” Me Const. art. 1, § 6-A. This provision is coextensive

with the Fourteenth Amendment to the United States Constitution. Mosher, 2012

ME 133, ¶ 11, 58 A.3d 1070. To determine whether there is a violation of the

equal protection clause we apply a two-step analysis. State v. Poole, 2012 ME 92,

¶ 8, 46 A.3d 1129. First, as a threshold requirement, the party challenging the

constitutionality has the burden to “show that similarly situated persons are not

treated equally under the law.”               Id. (quotation marks omitted).              Absent this

threshold showing, an equal protection claim is not viable. See id. Only where

this threshold requirement is met do we move on to the second step of determining

what level of scrutiny to apply.4 Id.

         [¶18] Bennett has failed to demonstrate that the court treated “arguably

indistinguishable” classes of people differently. Ross v. Moffitt, 417 U.S. 600, 609



     4
     Rational basis scrutiny is applied when, as here, the challenged discrimination does not involve a
fundamental right or suspect class. See Anderson v. Town of Durham, 2006 ME 39, ¶ 29, 895 A.2d 944.
“Under the rational basis standard, the burden is on the party challenging the government action to
demonstrate that there exists no fairly conceivable set of facts that could ground a rational relationship
between the challenged classification and the government’s legitimate goals.” Id. (quotation marks
omitted).
                                                                                 11

(1974). To the extent that Bennett argues that, as a pawnshop employee, he was

treated dissimilarly from all other employees, the defined classes of pawnshop

employees and nonpawnshop employees are not similarly situated.           See, e.g.,

Carter v. Arkansas, 392 F.3d 965, 968-69 (8th Cir. 2004) (holding that public

school employees are not similarly situated with other state employees); Arnold v.

City of Columbia, Mo., 197 F.3d 1217, 1220-21 (8th Cir. 1999) (holding that city

police officers are not similarly situated with other city employees); Clark v.

United States, 691 F.2d 837, 841-42 (7th Cir. 1982) (stating that pensioners with

state and private pension plans are not similarly situated with federal pensioners).

To the extent that Bennett argues that he was treated dissimilarly to other

pawnshop employees who engaged in similar criminal conduct, i.e., similarly

situated individuals, our review of the record leads us to the opposite conclusion.

The court explicitly addressed the need to deter all pawnshop employees from

treating complicity in a theft as an acceptable business decision, and Bennett has

failed to demonstrate that the court would have treated another pawnshop

employee engaged in this sort of criminal conduct any differently.

      [¶19] Although the exact formula for determining whether individuals are

similarly situated is not always easy to discern, see, e.g., Coyne v. City of

Somerville, 972 F.2d 440, 444-45 (1st Cir. 1992), Bennett has failed to demonstrate
12

the required showing here. Thus, his equal protection claim fails on this basis

alone.

         [¶20] Even if we were to conclude that Bennett had surpassed the threshold

requirement of proving that similarly situated individuals are not treated equally,

the challenged judicial classification is rationally related to a legitimate state

interest. The State has an undeniably strong interest in deterring pawnshops, and

by extension pawnshop employees, from engaging in negotiations to buy and sell

items that are known or believed to be stolen. Preventing further crime through the

deterrent effect of sentences is a legitimate criminological goal. See 17-A M.R.S.

§ 1151(1) (2014). Moreover, pawnshop employees are more likely than employees

in other types of employment to have opportunities to receive stolen property.

Indeed, the Legislature has enacted specific provisions related to these concerns by

requiring pawnshop employees to keep detailed records of purchase and sales

transactions. See 30-A M.R.S. § 3962 (2014). Thus, any judicial classification

applied to pawnshop employees is neither irrational nor arbitrary. See State v.

Chapin, 610 A.2d 259, 261 (Me. 1992).

         3.    Due Process

         [¶21] Finally, Bennett argues that his sentence violates his right to due

process because it is based on factually unreliable information, and he was not
                                                                                                       13

given an opportunity to refute the information relied on at sentencing.                              We

disagree.

        [¶22]     The United States and Maine Constitutions guarantee that “[n]o

person shall be deprived of life, liberty, or property, without due process of law.”

U.S. Const. amend. V; Me. Const. art. I, § 6-A. A court “is accorded wide

discretion in the sources and types of information that may be relied upon” at

sentencing, State v. Farnham, 479 A.2d 887, 890 (Me. 1984), and “is not limited to

facts found at trial,” State v. Gallant, 600 A.2d 830, 832 (Me. 1991). “[T]hey are

limited only by the due process requirement that such information must be

‘factually reliable and relevant.’” State v. Grindle, 2008 ME 38, ¶ 18, 942 A.2d

673 (quoting State v. Hewey, 622 A.2d 1151, 1154 (Me. 1993)).

        [¶23] Federal cases have interpreted the due process clause as requiring a

defendant “not to be sentenced on false information . . . [and] requir[ing] that the

defendant be given an adequate opportunity to refute information relied on at

sentencing.” United States v. Wilfred Am. Edu. Corp., 953 F.2d 717, 722 (1st Cir.

1992) (citation omitted). The Federal Constitution does not, however, “restrict[]

the view of the sentencing judge to the information received in open court.”

Williams v. New York, 337 U.S. 241, 251 (1949).5

   5
      Unlike the present case, many of the cases discussing a court’s duty under due process to ensure the
factual reliability of evidence it considers at sentencing involve hearsay statements or evidence of
additional unlawful, uncharged conduct of the defendant that was not presented at trial. See, e.g., United
14

        [¶24] Here, at sentencing, the court did not consider unreliable information

such as unreliable hearsay or information alleging attenuated additional uncharged

conduct of Bennett. The court stated,

        Much of your merchandise is legitimate. You’re a lawful business,
        but a significant portion of what pawnshops take in is stolen, it’s
        known to be stolen. I’m absolutely, positively convinced of that. As
        a general proposition, that there’s a significant—that existence of the
        pawnshop is kind of the third part of the trinity of burglars and drug
        dealers.

        [¶25] These statements do not demonstrate a constitutional infirmity. The

evidence at trial overwhelmingly established that Bennett received what he knew

to be stolen property, that he failed to record the transaction as required by law,

and that, by his own admission, he intended to buy more of the victim’s stolen

property from McCurry so that he could sell it back to its rightful owner.

Moreover, Bennett admitted that he had previously purchased property from

McCurry that he believed had been stolen. There is a rational connection between

Bennett’s testimony and the court’s assertion that some property that “pawnshops

States v. Wilfred Am. Edu. Corp., 953 F.2d 717, 722 (1st Cir. 1992) (holding that the court permissibly
relied on an affidavit alleging additional criminal conduct that was provided to the court and the
defendant the evening before the sentencing hearing); State v. Soucy, 2006 ME 8, ¶ 16, 890 A.2d 719
(“[A] court may consider uncharged conduct [of the defendant] . . . and the court has discretion to
determine the process for ensuring that the information is reliable.”); State v. Whitten, 667 A.2d 849, 852
(Me. 1995) (holding that the court abused its discretion by considering a letter that alleged additional
criminal conduct of the defendant without taking any steps to ensure its reliability); State v. Fleming, 644
A.2d 1034, 1036 (Me. 1994) (holding that the court did not violate the defendant’s right to due process by
considering the victim’s family’s statements or a letter from the victim’s doctor to determine the impact
of the defendant’s conduct on the victim); State v. Dumont, 507 A.2d 164, 167-68 (Me. 1986) (holding
that the court was allowed to consider affidavits at sentencing asserting that the defendant had engaged in
similar unlawful conduct on other occasions).
                                                                                    15

take in is stolen, it’s known to be stolen. I’m absolutely positively convinced of

that.”

         [¶26] The court’s reference to drug-seeking behavior and the connection to

burglaries does not change the analysis. It is not improper for judges, who are

confronted daily with the many consequences of drug addiction, including charges

of theft, burglary, and other drug-related crimes, to use their own knowledge and

experience when considering an appropriate sentence. See Barclay v. Florida, 463

U.S. 939, 950 (1983) (“It is neither possible nor desirable for a person to whom the

State entrusts an important judgment to decide in a vacuum, as if he had no

experiences. . . . It is entirely fitting for the moral, factual, and legal judgment of

judges and juries to play a meaningful role in sentencing.”); Stedtfeld v. State, 755

P.2d 1311, 1315 (Idaho Ct. App. 1988) (“[T]rial judges are vested with sentencing

discretion so that they can apply their own judgment and experience to the task of

independently sentencing each defendant that comes before them.”).                The

sentencing justice carefully articulated that the reasoning for Bennett’s sentence

was rooted in deterring this type of behavior. The justice noted that pawnshops—

businesses that supply quick cash in exchange for goods—are ripe for playing a

part in the pursuit of access to drugs.       The Legislature has enacted specific

provisions related to these concerns. See 30-A M.R.S. § 3962. When read in

context, the sentencing justice’s statements were made to reinforce the deterrent
16

effects of sentencing and to remind Bennett and other pawnshop owners or

employees that their role in receiving potentially stolen property is not isolated,

that the perpetuation of this behavior has far-reaching consequences, and that

courts take this crime seriously.

      [¶27] The court’s understanding of the relationship between drug addiction

and the unlawful taking of property to be sold at pawnshops is not the type of

factually unreliable information that we have determined deprives a defendant of

his right to due process. See State v. Whitten, 667 A.2d 849, 851-53 (Me. 1995).

The connection is further demonstrated by the Legislature’s careful attention to the

need for pawnshops to keep records of the items that come into their possession

and to file those records with law enforcement on a monthly basis.              See

30-A M.R.S. § 3962.

      [¶28] Finally, the court did not unconstitutionally deprive Bennett of his

opportunity to refute the information relied on at sentencing. The court gave

Bennett the opportunity to postpone sentencing until a later date so that he could

prepare a sentencing argument. When Bennett indicated that he wanted to proceed

immediately to sentencing, after listening to the sentencing recommendations of

both parties, the court explicitly provided him with the opportunity “to tell [the

court] anything he’d like [the court] to know about himself or the offense or

anything he’d like to say.” Bennett neither objected to the court’s statements after
                                                                              17

they were made, nor moved for correction or reduction of his sentence pursuant to

M.R. Crim. P. 35. The sentencing proceeding was constitutionally sound.

        The entry is:

                           Sentence affirmed.



On the briefs:

        Molly Butler Bailey, Esq., Strike, Goodwin & O’Brien, Portland, for
        appellant Thomas Bennett

        Kathryn Loftus Slattery, District Attorney, and Anne Marie Pazar, Esq.,
        Prosecutorial District # 1, Alfred, for appellee State of Maine


At oral argument:

        Molly Butler Bailey, Esq., for appellant Thomas Bennett

        Anne Marie Pazar, Esq., for appellee State of Maine



York County Superior Court docket number CR-2013-1448
FOR CLERK REFERENCE ONLY
