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STATE v. LEMIEUX12/27/1991
pain.
After setting the basic sentence "the court [should] apply its discretion to determine the degree of mitigation called for by the circumstances of the offender and the degree of aggravation indicated by specific factors demonstrating a high risk of re-offending." State v. Weir, 600 A.2d at 1106. " e accord the sentencing court great deference in weighing these factors in order that it may appropriately indivialize each sentence." Id.
By suspending only 3 years of Lemieux's 8-year sentence for aggravated assault and by ordering him incarcerated for 3 1/2 years of the unsuspended portion of that sentence, the court acted well within its discretion in applying sentencing principles. The court was required to consider that the actual time defendant will serve in prison will be substantially less than 3 1/2 years, by reason of the statutory provisions allowing credit for good-time. See Although defendant's age and health were factors in favor of less prison time or a sentence served only on intensive supervision, there were several counterbalancing aggravating factors. Lemieux's license had twice been suspended for operating under the influence; yet by his own admission he continued to drink regularly. The court assessed Lemieux's prospect for rehabilitation and found it poor, in part because of his poor health. He had no steady job or permanent residence, and lacked other sources of stability that increase the chances of rehabilitation. Balancing the threat to public safety against Lemieux's health and age, the court determined that he would continue to be a threat even if physically impaired. Because the court "is accorded wide discretion when determining what sources and types of information will consider when imposing sentence," see State v. Rosa, 575 A.2d 727, 730 (Me. 1990), it was free to reject the probation officer's recommendation that the entire sentence be served on intensive supervision. See State v. Rolerson, 593 A.2d 220, 223 n. 3 (Me. 1991).
II.
On appeal Lemieux also challenges the court's order that he pay restitution not to exceed $10,000 as a condition of intensive supervision and probation. One of the purposes of the restitution statute, 17-A M.R.S.A. § 1321-1330 (1983 & Supp. 1991), is "to encourage the compensation of victims by the person most responsible for the loss incurred by the victim, the offender." Id. § 1321. The restitution statute authorizes the sentencing court to order an offender to make monetary reimbursement for a victim's economic loss, see id. § 1322(6)(A), except when the victim "has otherwise been compensated from a collateral source. . . ." Id. § 1325(2)(C). Although a court may leave the exact determination of the victim's actual losses to the Department of Probation, see State v. Stinson, 424 A.2d 327, 335 (Me. 1981), that is not what the present sentence does. Here the court sentenced defendant to pay restitution "not to exceed $10,000." In contrast to the sentence imposed in Stinson, this sentence purports to find the victim's economic losses to be at least $10,000, leaving to the probation officer only the discretion to determine when defendant should be required to pay.
The court having complied with the directive of 17-A M.R.S.A. § 1323 to "inquire of a prosecutor . . . with respect to the extent of the victim's financial loss," the prosecutor who requested the restitution order should have responded with an adequate factual foundation for setting the amount of the victim's economic loss. All that the sentencing court had before it to show that the victim had compensable economic losses were the victim's medical records. Although those records documented the victim's serious injuries, they did not p
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