MAINE	SUPREME	JUDICIAL	COURT	 	             	    	      	       	   Reporter	of	Decisions	
Decision:	    2017	ME	139	
Docket:	      Ken-16-407	
Submitted	
  On	Briefs:	 May	25,	2017	
Decided:	     June	27,	2017	
	
Panel:	       SAUFLEY,	C.J.,	and	ALEXANDER,	GORMAN,	JABAR,	and	HUMPHREY,	JJ.	
	
	
                                  MARK	I.	GESSNER	
                                          	
                                         v.	
                                          	
                                  STATE	OF	MAINE	
	
	
PER	CURIAM	

      [¶1]	 	 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	judgment.	

	     [¶2]	 	 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.			

	     [¶3]	 	 Gessner	 was	 convicted	 of	 murder	 in	 1995.	 	 While	 serving	 his	

sentence	 for	 that	 crime,	 he	 pleaded	 guilty	 to	 an	 assault	 in	 2000,	 he	 was	
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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	 (Hjelm,	 J.)	

committed	 him	 to	 the	 custody	 of	 the	 Commissioner	 of	 Health	 and	 Human	

Services,	see	15	M.R.S.	§	103	(2011).1			

	        [¶4]	 	 Gessner	 was	 ultimately	 transferred	 to	 Riverview	 on	 February	20,	

2016,	 as	 a	 result	 of	 that	 commitment.2	 	 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.				

	        [¶5]	 	 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	



     1		We	cite	the	2011	version	of	section	103	because	the	statute	has	been	amended	since	that	time.		

See	P.L.	2013,	ch.	424,	§	B-3	(effective	July	16,	2013)	(codified	at	15	M.R.S.	§	103	(2016));	P.L.	2011,	
ch.	542,	§	A-10	(effective	Mar.	20,	2012).	

     2		Effective	October	9,	2013,	the	Legislature	clarified	the	law	to	provide	that	a	person	serving	a	

term	 of	 imprisonment	 who	 is	 found	 not	 criminally	 responsible	 by	 reason	 of	 insanity	 “must	 first	
serve	 the	 undischarged	 term	 of	 imprisonment	 or	 the	 unsuspended	 portion	 of	 the	 split	 sentence	
before	 commencing	 the	 commitment.”	 	 15	M.R.S.	 §	103-A(2)	 (2016);	 see	 P.L.	 2013,	 ch.	 265,	 §	 4.		
Gessner	was	found	not	criminally	responsible	in	2011,	before	this	statute	took	effect.		Although	the	
transfer	may	have	occurred	at	the	end	of	his	sentence,	it	appears	unlikely	that	Gessner	would	have	
received	the	maximum	“good	time”	calculation,	and	there	is	nothing	in	the	record	that	explains	why	
his	 transfer	 to	 Riverview	 occurred	 five	 years	 after	 the	 entry	 of	 the	 commitment	 order	 and	
twenty-two	years	into	his	thirty-year	murder	sentence.			
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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.		

	      [¶6]	 	 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);	Beal	v.	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.			
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	      [¶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.	

	      [¶8]		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	 cause	 injury	 to	 that	

person	 or	 to	 others	 due	 to	 mental	 disease	 or	 mental	 defect.”	 	 15	M.R.S.	

§	104-A(1).			
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	      [¶9]		We	are	not	persuaded,	on	this	record,	that	the	statutory	language	

is	unconstitutionally	vague.		The	trial	court’s	judgment	provided	Gessner	with	

an	 explanation	 of	 how	 he	 failed	 to	 satisfy	 the	 statutory	 requirements—

specifically,	 the	 court	 found	 that	 Gessner	 has	 not	 acknowledged	 his	 mental	

illness	 or	 participated	 meaningfully	 in	 treatment,	 as	 advised	 by	 his	 primary	

care	provider,	to	address	his	explosiveness	and	adjust	to	life	outside	of	prison.	

Considering	Gessner’s	history	of	mental	illness	and	violence,	and	his	refusal	to	

acknowledge	 his	 mental	 illness	 or	 to	 participate	 in	 treatment,	 the	 statute’s	

terms	are	not	vague	for	purposes	of	addressing	the	individual	circumstances	

at	issue	here.		See	Reckards,	2015	ME	31,	¶	4,	113	A.3d	589.		Gessner	has	not	

met	his	burden	of	demonstrating	that	the	court	committed	obvious	error.		See	

Dorr	v.	Woodard,	2016	ME	79,	¶	7,	140	A.3d	467	(explaining	that	the	burden	is	

on	 the	 person	 challenging	 the	 constitutionality	 of	 a	 statute	 to	 establish	 its	

infirmity).			

       The	entry	is:	

                     Judgment	affirmed.	
	
	      	         	   	     	      	
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Rory	 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	
	
	
Kennebec	County	Superior	Court	docket	number	CR-2016-60	
FOR	CLERK	REFERENCE	ONLY	
