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STATE v. KEITH7/26/1991
Gary L. Keith appeals from the sentence imposed following his conviction in Superior Court (Kennebec County, Alexander, J.) of operating a motor vehicle while under the influence of intoxicating liquor. 29 M.R.S.A. § 1312-B (Supp. 1990). Keith asserts that the court sentenced him pursuant to the mandatory minimum sentencing and enhanced his sentence based on his previous conviction for operating under the influence. He contends that the enhancement of the sentence was improper because the State failed to allege the prior conviction in the complaint and failed to prove that Keith had waived his right to counsel in the proceeding that resulted in the prior conviction. We are not persuaded on this record that the court relied on section 1312-B(2)(C) to improperly enhance Keith's sentence. Because the court erred in imposing a license suspension of one year, however, rather than the mandatory license suspension of 90 days as provided for in section 1312-B(2)(B) and applicable to Keith in this case, we modify the license suspension portion of the sentence and affirm.
Keith entered a plea of guilty in the Superior Court to the charge of operating or attempting to operate a 1979 Chevrolet in the parking lot of Richard's Lounge in Augusta while under the influence of intoxicating liquor. See 29 M.R.S.A. § 1312-B. Keith's plea was entered pursuant to a plea agreement under which the maximum sentence to which Keith would be exposed was seven days' incarceration and a $500 fine, with Keith free to argue for less time. See M.R.Crim.P. 11A. The court accepted the guilty plea, entered a judgment of conviction, and heard argument from the State and the defense regarding sentencing. The court then imposed a sentence of seven days' incarceration, a $500 fine and a one-year license suspension.
Operating under the influence is a Class D offense. 29 M.R.S.A. § 1312-B(2). A person convicted of a Class D offense may be sentenced to imprisonment for up to 364 days, 17-A M.R.S.A. § 1252(2)(D) (1983 & Supp. 1990), and be subject to a fine not to exceed $1000. 17-A M.R.S.A. § 1301(1-A)(D) (Supp. 1990). Designating operating under the influence as a special and unique crime, the legislature has made convictions for that offense subject to certain mandatory minimum sentences. If a convicted defendant's blood-alcohol level was 0.15% or more by weight (Keith's blood-alcohol level was 0.18% at the time of operation), the court must impose a prison sentence of at least 48 hours, a fine of at least $300 and suspend the defendant's driver's license for a period of 90 days. 29 M.R.S.A. § 1312-B(2)(B). Section 1312-B(2)(C) provides for a mandatory minimum period of incarceration of seven days, a mandatory minimum fine of $500 and a mandatory license suspension of one year when a person who previously has been convicted of operating under the influence is again convicted of that offense.
Keith contends that his sentence of seven days in jail, a fine of $500 and a license suspension of one year, equal to the mandatory minimum sentence required by section 1312-B(2)(C), was an enhanced sentence imposed pursuant to that section. Because the State failed to allege that he had previously been convicted of operating under the influence, Keith argues that his sentence was an enhanced penalty for being
Keith is correct that the State's failure to allege the previous conviction would preclude the court from imposing a mandatory penalty based on that prior conviction pursuant to section 1312-B(2)(C). When a sentence is imposed pursuant to a statutory provision that provides for an increased maximum sentence, or that limits the discretion of a sentencing court by requiring a mandatory minimum nonsuspendable sentence for
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