MAINE SUPREME JUDICIAL COURT                                       Reporter of Decisions
Decision: 2013 ME 71
Docket:   SRP-12-350
Argued:   May 16, 2013
Decided:  July 30, 2013

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



                                 STATE OF MAINE

                                          v.

                                 BRIAN NICHOLS


MEAD, J.

         [¶1] Brian Nichols appeals from the sentence imposed on him following a

judgment of conviction entered in the trial court (Clifford, J.) after he pleaded

guilty to the intentional or knowing murder of his wife. See 17-A M.R.S. §

201(1)(A) (2012). Nichols challenges the sentencing court’s application of the

first step of the sentencing analysis required by 17-A M.R.S. § 1252-C(1) (2012),

arguing that the court failed to (1) adequately compare his conduct to prior

comparable cases in setting the basic period of incarceration, and (2) accurately

place his conduct on a continuum of seriousness of possible ways that the crime of

murder could be committed.        He also argues that the unavailability of basic

sentence information implicates all criminal defendants’ equal protection and due
2

process rights.   We affirm Nichols’s sentence and reject his constitutional

arguments.

                                I. BACKGROUND

      [¶2] The following facts are established in the record. In May 2010, Brian

Nichols murdered his wife, Jane Tetreault, by shooting her in the head with a

.30-30 rifle while she lay in the couple’s bed. After shooting his wife, Nichols

called the police to report what he had done. The couple’s older son, then sixteen

years old, was in a nearby room during the murder and heard his mother scream.

When he heard the police sirens he got up, discovered his mother’s body, and “saw

blood everywhere.”

      [¶3] Nichols had a long history of domestic violence toward Tetreault. For

at least the year or two before the killing, Nichols “perseverated” on his erroneous

belief that Tetreault was having an affair. He grew increasingly suspicious in the

weeks and months before her murder, causing frequent arguments for the couple,

including one in which Nichols broke their television. Tetreault, fearing that

Nichols would kill her, slept at her office and in her older son’s room with the door

locked. Concerned about Nichols’ increasingly erratic behavior, Tetreault made

plans to commit him involuntarily the night of her murder, but for unknown

reasons did not follow through with her plan.
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      [¶4] In the days prior to Tetreault’s murder, Nichols asked the couple’s

younger son, then fifteen years old, whether he would mind if Nichols killed his

mother. Nichols also repaired a broken .30-30 rifle, which had been stored in his

basement. He skipped work and had trouble sleeping.

      [¶5] The day of the murder, Nichols smoked more marijuana than usual and

went to work. That evening, Nichols dropped his younger son off at a friend’s

house while he unsuccessfully searched for Tetreault. He later returned to the

house where his son was staying and had a beer with the friend’s father.

Afterward, he searched for Tetreault again, driving by her mother’s house and her

workplaces, eventually finding her at an office where she worked. After speaking

with Tetreault, Nichols left the office, drove by the house where his son was

staying, and returned home, where he found Tetreault’s car. That night, Nichols

murdered her in their home.

      [¶6] Nichols was indicted for his wife’s murder pursuant to 17-A M.R.S.

§ 201(1)(A).   He entered a plea of not guilty, later changing his plea to not

criminally responsible by reason of insanity. Nichols ultimately pleaded guilty

pursuant to an agreement with the State that it would not seek a sentence greater

than forty-two years’ imprisonment.

      [¶7] The State and Nichols each submitted memoranda in aid of sentencing.

The State’s memorandum identified the facts and basic sentences in four Maine
4

cases involving domestic violence homicides. In the first, where a defendant

severely beat his girlfriend and left her to die, the court set his basic sentence at

forty-five years because of the unprovoked, depraved, and brutal nature of the

crime. In the second, where a defendant strangled and beat his estranged wife with

a board, the court set his basic sentence at thirty-five to forty years because of the

crime’s brutality, rage, and victim suffering. In the third, where a defendant

repeatedly stabbed his girlfriend after she broke up with him, the court set the basic

sentence at fifty to sixty years. Finally, where a defendant repeatedly stabbed his

wife after learning of an affair, the court set the basic sentence at forty to fifty

years.

         [¶8] At Nichols’s sentencing hearing, the State argued for a basic sentence

of thirty-five to forty years, identifying for the court the objective facts of the

murder relevant to the court’s task of setting a basic sentence: Nichols used a

firearm, he shot Tetreault at close range in or near her mouth, the murder was

premeditated, it was born of jealousy and rage, and it was committed in close

proximity to the couple’s son.

         [¶9] Nichols argued for a basic sentence of thirty to thirty-five years. He

attached an extensive list of final murder sentences in Maine cases to his

sentencing memorandum, identifying the basic sentences imposed in two of them.

In the first, the court set the basic sentence at thirty years when a defendant beat
                                                                                    5

the victim severely and killed her with a blow to the head with a hammer. In the

second, the court set the basic sentence at thirty years when a defendant strangled

his girlfriend after an argument. Despite an extensive search for basic sentences

that included talking with other defense attorneys and looking at files in three

different courthouses, Nichols asserted that he was unable to obtain data about

other defendants’ basic sentences in comparable cases.

      [¶10] The sentencing court correctly noted that the determination of a basic

term of imprisonment, as required by the first step of the statutory sentencing

analysis, 17-A M.R.S. § 1252-C(1), involves considering the particular nature and

seriousness of the offense as committed by the offender. The court noted that the

sentencing memoranda submitted by the parties, with their descriptions of other

murder sentences, were “very helpful.” The court then cited the facts of the

murder that it considered in determining the basic period of Nichols’s

incarceration: (1) Nichols used a firearm to directly cause Tetreault’s death; (2) her

death was violent and premeditated; (3) one of the couple’s sons was in the home;

(4) her murder was an act of domestic violence; and (5) although Tetreault did not

have any prolonged suffering in her death, “she was put in great fear immediately

prior to . . . the homicide.” The court set Nichols’s basic sentence at thirty-five to

forty years. The court next considered, pursuant to step two of the sentencing

analysis, 17-A M.R.S. § 1252-C(2) (2012), the aggravating and mitigating
6

circumstances applicable to Nichols, ultimately imposing a final sentence of forty

years in prison.

      [¶11] Nichols filed a motion for findings of fact, which the court granted.

In its order, the court restated the standard for determining the basic period of

incarceration. It also explained that it “generally accepted the position of the State,

for the reasons advanced by the State, that the basic period of incarceration was

thirty-five to forty years,” and cited the facts of the murder it considered, including

that it was “planned and premeditated, committed with a rifle in the near presence

of a son, . . . [and] was the culmination of a long history of domestic violence

abuse . . . .” Pursuant to M.R. App. P. 20 and 15 M.R.S. § 2151 (2012), we

granted Nichols leave to appeal the forty-year sentence imposed.

                                 II. DISCUSSION

      [¶12] We first articulated the three-step process that a sentencing court is

required to follow in State v. Hewey, 622 A.2d 1151 (Me. 1993). The sentencing

analysis discussed in Hewey was later codified by the Legislature. P.L. 1995,

ch. 69, § 1 (effective Sept. 29, 1995) (codified at 17-A M.R.S. § 1252-C (2012)).

The statute provides that

      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.
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             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.

17-A M.R.S. § 1252-C. In sentencing a defendant convicted of murder, the third

step does not apply. See 17-A M.R.S. § 1201(1)(A) (2012); State v. Waterman,

2010 ME 45, ¶ 25 n.1, 995 A.2d 243. In murder cases, the court must first

determine a basic period of incarceration and then evaluate the mitigating and

aggravating factors to determine the final sentence. Nichols’s arguments focus

solely on the first step, the court’s determination of his basic sentence “by

considering the particular nature and seriousness of the offense as committed by

the offender.” See 17-A M.R.S. § 1252-C(1).

      [¶13] We review the sentencing court’s determination of the basic period of

incarceration for misapplication of sentencing principles.       State v. Ardolino,

1997 ME 141, ¶ 24, 697 A.2d 73. “[A] basic sentence will survive appellate

scrutiny unless it appears to err in principle.” State v. Cookson, 2003 ME 136,

¶ 41, 837 A.2d 101 (quotation marks omitted). We also review the basic term for
8

an abuse of the court’s sentencing power. State v. Reese, 2010 ME 30, ¶ 23,

991 A.2d 806.

      [¶14] The first step of the statutory sentencing process requires that the

court review the facts and nature of the crime and the conduct in committing the

crime in as objective a manner as possible, without regard to the offender’s

individual circumstances. See, e.g., State v. Hamel, 2013 ME 16, ¶ 6, 60 A.3d 783;

State v. Stanislaw (Stanislaw I), 2011 ME 67, ¶ 9, 21 A.3d 91. At the same time,

the court must take into account the sometimes-competing goals of sentencing that

include deterrence, restraint in the interest of public safety, minimization of

correctional experience that may promote future criminality, and the elimination of

inequalities in sentencing that are unrelated to criminological goals. 17-A M.R.S.

§ 1151 (2012); State v. Koehler, 2012 ME 93, ¶ 33, 46 A.3d 1134.

A.    Comparison with Precedent

      [¶15]     Nichols first contends that the sentencing court was required to

expressly compare his conduct to precedent and that it erred by failing to do so.

We disagree, and take this opportunity to clarify the statutory sentencing process.

      [¶16] We have previously held that it is permissible to compare the facts of

a defendant’s case to precedent. See, e.g., State v. Berube, 1997 ME 165, ¶¶ 5, 8,

& n.3, 698 A.2d 509 (affirming the sentencing court’s implicit determination of the
                                                                                  9

basic sentence because, among other reasons, it relied on sentencing data compiled

by a Superior Court justice).

      [¶17] However, the language discussing the first step of the sentencing

process in some of our opinions may have been misperceived as requiring this

comparison as a mandatory sentencing element. See Cookson, 2003 ME 136, ¶ 38,

837 A.2d 101 (“The first step determines the basic period of incarceration by

examining the crime, the defendant’s conduct in committing it, and by looking at

other sentences for similar offenses.” (emphasis added)); Stanislaw I, 2011 ME 67,

¶ 8, 21 A.3d 91 (same); State v. Dalli, 2010 ME 113, ¶ 6, 8 A.3d 632 (same); State

v. Robbins, 2010 ME 62, ¶ 9, 999 A.2d 936 (same); Waterman, 2010 ME 45, ¶ 43,

995 A.2d 243 (same).

      [¶18] Notwithstanding the possible interpretation of these cases to require

the sentencing court to make specific findings regarding precedent, we expressly

held in State v. Reese that the sentencing court was “not require[d] . . . to make

factual comparisons using precedent, although there may be times when

appropriate case comparisons would advance the sentencing principle of

eliminating significant unjustified inequalities in sentences.” 2010 ME 30, ¶ 28,

991 A.2d 806 (emphasis added) (citation omitted). Similarly, in State v. Stanislaw

(Stanislaw II), we explained that in step one of the sentencing process “[t]he court

examines the crime, the defendant’s conduct in committing it, and, at its
10

discretion, other sentences for similar offenses.” 2013 ME 43, ¶ 21, 65 A.3d 1242

(emphasis added). See also State v. Basu, 2005 ME 74, ¶ 23, 875 A.2d 686 (noting

that the sentencing court “may consider” sentences of other offenders for similar

conduct (emphasis added)).

      [¶19] Nichols cites Stanislaw I for the proposition that the sentencing court

must expressly reference precedent.       In Stanislaw I, we vacated Stanislaw’s

sentence because the sentencing court at step one improperly considered facts

relating to the impact of Stanislaw’s crimes on his victims and the limited

possibility of his rehabilitation.   2011 ME 67, ¶¶ 11, 16, 21 A.3d 91.           We

concluded that “[t]he record demonstrates that the court did not focus on the

objective nature of Stanislaw’s conduct in the first step of its analysis; nor did the

court refer in any way to sentences imposed for similar offenses,” and noted that

the State had presented four comparable sentences for the court to consider. Id.

¶ 11 & n.8. Reading Stanislaw I in light of our pronouncements in Reese, Basu,

and Stanislaw II, that consideration of comparable sentences is at the discretion of

the sentencing court, we do not find support in Stanislaw I, as Nichols contends,

that the court is required to make factual findings on precedent.

      [¶20] Nichols’s arguments reflect a popular, but mistaken, belief that the

statute requires the court to consider comparable sentences as part of the first step

of the statutory sentencing process established in 17-A M.R.S. § 1252-C(1). It
                                                                                  11

does not. While it is permissible for the sentencing court to consider comparable

sentences at the first step if appropriate, neither the statute nor our case law

mandate it.

      [¶21] There is an inherent difficulty in collecting, compiling, and comparing

cases involving identical charges but vastly differing facts and surrounding

circumstances. A useful database for such information would need to include an

accurate and complete description of the operative facts and the judge’s

pronouncement of the basic period of incarceration.           We have previously

recognized the difficulty in obtaining sentencing data.      See, e.g., Stanislaw I,

2011 ME 67, ¶ 8 n.7, 21 A.3d 91 (“[B]ecause of the multiple variables in conduct

and process that may impact a particular sentence, the Judicial Branch does not

have the technological capacity to maintain the sentencing statistics that would

support th[e] endeavor” to eliminate all inequalities in sentencing); State v. Sweet,

2000 ME 14, ¶ 37 n.9, 745 A.2d 368 (Calkins, J., dissenting) (“Except for a case

by case search in each of the Superior Court clerks’ offices, there is no way to find

out what sentences have been imposed.”); Berube, 1997 ME 165, ¶ 5 n.3,

698 A.2d 509 (noting the limitation of the data collected on final sentences in

manslaughter cases, including the lack of information on the seriousness of the

criminal conduct, aggravating and mitigating factors, or whether the sentence was
12

the result of a plea). The Judicial Branch currently has no ability to capture this

type of data in a database, although it may in the future.

      [¶22]    Despite the fact that no central repository for sentencing data

currently exists, Nichols’s attorneys undertook extraordinary measures in their

attempts to track down cases that might provide comparable sentences, and we

commend them for their efforts.         The sentencing court had the benefit of

sentencing memoranda, including comparable sentences, from both Nichols and

the State, and commented on how they were helpful in determining Nichols’s basic

sentence. A “court has wide discretion in determining the sources and types of

information to consider when imposing a sentence.” Reese, 2010 ME 30, ¶ 28,

991 A.2d 806. There was no misapplication of principle in setting Nichols’s basic

sentence.

B.    Constitutional Arguments

      [¶23] Nichols contends that the absence of information regarding other

defendants’ basic sentences violates all criminal defendants’ equal protection and

due process rights because the unavailability of data prevents defendants from

presenting an adequate sentencing argument. We review his constitutional

arguments for obvious error because he first raised them on appeal. See State v.

Burdick, 2001 ME 143, ¶ 13, 782 A.2d 319; see also State v. Tayman,

2008 ME 177, ¶ 23, 960 A.2d 1151. Obvious error occurs when there is “(1) an
                                                                                                         13

error, (2) that is plain, and (3) that affects substantial rights.” State v. Pabon,

2011 ME 100, ¶ 29, 28 A.3d 1147. If these conditions are met, we must “also

conclude that (4) the error seriously affects the fairness and integrity or public

reputation of judicial proceedings” before we vacate a judgment on the basis of the

error. Id.

        [¶24]       Concerning his claim of equal protection, Nichols has not

demonstrated that other defendants sentenced for murder are “similarly situated.”

See Doe I v. Williams, 2013 ME 24, ¶ 53, 61 A.3d 718 (quotation marks omitted).

Nor has Nichols demonstrated that similarly situated persons have been treated

differently. See id. Given the current technological limitations of the Judicial

Branch, prosecutors, and the Bar, any defendant would have the same difficulty as

Nichols in obtaining information concerning basic sentences.1

        [¶25]     Because an analysis of comparable precedent is not required by

section 1252-C(1), Nichols has also failed to establish a procedural due process

violation. For these reasons, there is no plain error affecting substantial rights. See

Pabon, 2011 ME 100, ¶ 29, 28 A.3d 1147.



   1
      To the extent that Nichols argues that the lack of data prevents equality in sentencing, 17-A M.R.S.
§ 1151(5) (2012), we are not persuaded that his sentence must be vacated because preventing sentencing
inequality is not the only objective of sentencing. See State v. Reese, 2010 ME 30, ¶ 18, 991 A.2d 806
(“The court need not address all of these factors in any given sentence and it may address other factors.”);
State v. Hamel, 2013 ME 16, ¶ 8, 60 A.3d 783 (“[T]he selection for appropriate emphasis among these
disparate purposes rests in the discretion of the court.” (quotation marks omitted)).
14

C.    Continuum of Seriousness

      [¶26] Lastly, Nichols contends that the court failed to accurately place his

conduct on a continuum of seriousness against all possible means of committing

murder. In considering the objective facts of the offense, a sentencing court may

compare the crime committed to all the possible means of committing that offense

by measuring the defendant’s conduct on a “scale” or “continuum” of seriousness.

See, e.g., Stanislaw I, 2011 ME 67, ¶ 8, 21 A.3d 91 (quotation marks omitted);

Basu, 2005 ME 74, ¶ 23, 875 A.2d 686; Berube, 1997 ME 165, ¶ 3, 698 A.2d 509.

The continuum of seriousness is obviously not a tangible line, where sentencing

courts can precisely pinpoint where the murder falls. Rather, the continuum of

seriousness is a concept aimed at identifying certain objective facts that raise or

lower the seriousness of the crime. Accordingly, we have held that

      the sentencing court is not required to elucidate all the possible means
      by which the defendant’s crime may be committed, find which
      method of commission is worse than the defendant’s or which method
      is the worst possible way of committing the crime, and then assign the
      basic sentence according to where the defendant’s conduct falls on
      that spectrum.

State v. Schofield, 2006 ME 101, ¶ 11, 904 A.2d 409. This is true whether a

defendant’s actions are “among the most serious ways in which the crime might be

committed,” see, e.g., State v. Holland, 2012 ME 2, ¶ 40, 34 A.3d 1130 (affirming

the imposition of a basic sentence of life imprisonment), or involved less serious
                                                                                 15

ways, see, e.g., State v. Cobb, 2006 ME 43, ¶¶ 11, 26, 895 A.2d 972 (affirming the

imposition of a basic sentence of twenty years).

       [¶27]   In murder cases, the factors articulated in State v. Shortsleeves,

580 A.2d 145, 149-50 (Me. 1990), such as premeditation, extreme cruelty, and

multiple deaths, provide “guidelines to assist [sentencing courts] in placing

murderous behavior along a continuum.” State v. Wilson, 669 A.2d 766, 768

(Me. 1996). The court may also consider “the force and duration of the crime, and

the defendant’s motive.” Cookson, 2003 ME 136, ¶ 38, 837 A.2d 101 (citation

omitted). The proximity of children to the crime is similarly relevant and may

raise the level of seriousness of a defendant’s conduct. Waterman, 2010 ME 45,

¶ 46, 995 A.2d 243.      “The [sentencing] court has broad discretion in what

information it considers” as long as it is “factually reliable.” Wilson, 669 A.2d at

769.

       [¶28] Here, the court described appropriate factors concerning Tetreault’s

murder that it considered in determining Nichols’s basic sentence: (1) the murder

was planned and premeditated; (2) it was committed with a firearm; (3) it occurred

near the couple’s son; (4) it was an act of domestic violence; and (5) although

Tetreault did not have any prolonged physical suffering, she was “put in great fear

immediately prior to” her death.     Because the murder was premeditated and
16

occurred in close proximity to the couple’s son, the seriousness of the murder was

greater in comparison to other ways it could have been committed.

      [¶29] Nichols contends that the court erred in considering at step one the

fact that the murder was a culmination of Nichols’s domestic violence against

Tetreault. He argues that the factor of domestic violence should be considered in

the second step of the statutory sentencing process, like a defendant’s criminal

history. We disagree. The fact that Nichols murdered his wife as an act of

domestic violence is an objective factor properly considered in the first step of the

sentencing analysis. See Reese, 2010 ME 30, ¶ 30, 991 A.2d 806 (considering that

the crime “occurred within the context of a violent relationship” in evaluating the

sentencing court’s determination of the basic sentence); Cookson, 2003 ME 136,

¶¶ 39, 41, 837 A.2d 101 (finding no error in the sentencing court’s determination

of the basic sentence when it considered the fact that the “murder was a crime of

domestic violence”).

      [¶30] Nichols finally contends that there was no support in the record for

the court’s finding that Tetreault experienced fear prior to her murder. In fact, the

record provides ample support for that finding based on (1) the account of the

couple’s older son, who described hearing his mother scream before being killed;

and (2) the couple’s history of domestic violence and Nichols’s increasingly

volatile conduct toward Tetreault in the week prior to her murder, which caused
                                                                                  17

her to consider committing him involuntarily and to sleep at work or in her son’s

room.

        [¶31]    In sum, because the court appropriately considered objective,

factually reliable information in placing Nichols’s conduct along a continuum of

seriousness, there was no misapplication of principle.

                                   III. CONCLUSION

        [¶32] We conclude that the sentencing court did not misapply sentencing

principles in imposing Nichols’s basic sentence and that the basic term was not an

abuse of the court’s sentencing power.        Indeed, we commend the court for

conducting a sentencing proceeding that was exemplary in conforming to the

analytical steps prescribed by statute, and demonstrating thoughtful consideration

of the information that was presented by the parties.

        The entry is:

                        Sentence affirmed.

_______________________________________

On the briefs:

        Adam P. Sherman, Esq., Paradie, Sherman & Worden, P.A., Lewiston, for
        appellant Brian Nichols

        Janet T. Mills, Attorney General, and Lauren F. LaRochelle, Asst. Atty.
        Gen., Office of Attorney General, Augusta, for appellee State of Maine
18

At oral argument:

        Adam P. Sherman, Esq., for appellant Brian Nichols

        Lauren F. LaRochelle, Asst. Atty. Gen., for appellee State of Maine



Androscoggin County Superior Court docket number CR-2010-446
FOR CLERK REFERENCE ONLY
