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STATE v. LEMIEUX12/27/1991
On his guilty plea to aggravated assault, 17-A M.R.S.A. § 208 (Class B) (1983), the Superior Court (Kennebec County, Brody, C.J.) sentenced defendant Jean W. Lemieux to 8 years imprisonment with all but 5 years suspended, and probation for a period of 6 years conditioned inter alia upon restitution in an amount not to exceed $10,000. We find no error in the sentence except that the term of probation exceeded the statutory maximum of 4 years and that the order for restitution was inadequately supported by the information made available to the court.
On January 21, 1989, at about 2:30 p.m., defendant's automobile struck and seriously injured a pedestrian, Frank Staples, as he was crossing Front Street in Waterville. Staples landed on the sidewalk about 20 feet from where he was struck. Defendant and a number of eyewitnesses stopped their vehicles and a police officer arrived within minutes. When asked by the police officer what had happened, defendant said that Staples had stepped into the street ahead of his car. The officer smelled alcohol on defendant's breath, administered a field sobriety test which defendant failed, and arrested defendant for operating under the influence. Later, at the police station, a breath test showed defendant had a blood-alcohol level of 0.19%. Defendant admitted to having had a six-pack of beer the night before, two 16-ounce beers in the morning, and two more immediately before the accident.
Following his indictment, defendant pleaded guilty to aggravated operating under the influence and aggravated assault in
At the sentencing hearing, defendant's attorney requested that defendant serve his sentence for the Class B aggravated assault on intensive supervision. The State argued for a 10-year sentence with all but 5 years suspended, followed by a period of probation. While acknowledging defendant was unlikely to have the means to pay, the prosecutor also requested restitution. In imposing sentence, the court considered defendant's prior convictions for operating under the influence, the negligible deterrent effect those convictions had had, defendant's prospects for rehabilitation, and the threat that he posed to public safety, and sentenced defendant to 8 years with all but 5 suspended, the final 18 months to be served on intensive supervision and to be followed by a 6-year period of probation. As a condition of intensive supervision and probation, the court ordered that defendant pay restitution not to exceed $10,000.
I.
Defendant contends that the court failed to give due consideration to his lack of a prior criminal record, age, and ill health or to the recommendation of the probation officer who prepared the presentence report. After reviewing for misapplication of principle the court's determination of the basic sentence warranted by the nature and seriousness of the offense, see State v. Lewis, 590 A.2d 149, 150 (Me. 1991), and for abuse of discretion the court's weighing of aggravating and mitigating factors, see State v. Weir, 600 A.2d 1105, 1106-1107 (Me. 1991), we find no error in the sentence imposed on Lemieux.
In setting an 8-year basic sentence for the Class B offense committed by Lemieux, the court properly considered the relevant sentencing principles set forth by the Legislature in 17-A M.R.S.A. § 1151 (1983 & Supp. 1991). Lemieux's offense was a very serious one. Driving in broad daylight and with a blood-alcohol level of 0.19%, he hit an older gentleman who was crossing a downtown Waterville street in a marked crosswalk and who was plainly visible to motorists approaching the intersection. The victim's injuries were very severe, requiring surgical reconstruction and causing the victim continuous
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