STATE OF MAINE

SUPREME JUDICIAL COURT Docket No. And-03-356

Sitting as the Law Court Decision No. 2005 ME 83

Dated: November 16, 2005

STATE OF MAINE

v. ORDER OF

RECONSIDERATION

CHRISTIAN AVERILL

Panel: SAUFLEY, C.J., and CLIFFORD, DANA, ALEXANDER, CALKINS, and LEVY, JJ.

PER CURIAM

The State's Motion for Reconsideration is granted insofar as it requests reconsideration of the language in State v. Schofield, 2005 ME 82, ¶ 40, --- A.2d ‑‑‑, ---, relied on in State v. Averill, 2005 ME 83, ¶ 10, --- A.2d ---, ---. All other portions of the State's Motion for Reconsideration were previously denied by Order dated August 16, 2005.

Upon reconsideration, the Court amends paragraph 40 of the Schofield opinion to read as follows:

[¶40] On remand, Schofield may be sentenced constitutionally within the zero- to twenty-year range without the need for further fact-finding regarding heinousness. If the State recommends a sentence in the upper range, or if the court is inclined to impose such a sentence even in the absence of a recommendation, Schofield must be provided with the opportunity for a sentencing trial before the fact-finder of her choice (i.e., judge or jury). If she selects a jury, at the beginning of the proceeding, the trial judge should instruct the jury as follows:

You are being asked to make a decision today that will assist me in sentencing Ms. Schofield who has been convicted of the Class A offense of manslaughter.

In imposing sentences, judges are required to look at a number of circumstances concerning the defendant, the victim, and the commission of the crime. One of the circumstances that a jury is required to determine is whether the offense committed by the defendant is among the most heinous crimes committed against a person.

The parties will provide information and testimony from which you can evaluate the offense committed by Ms. Schofield and determine whether it is among the most heinous committed against a person.

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ALEXANDER, J., statement of nonconcurrence.

Because I do not believe that the original sentencing was affected by any error of law or that any jury trial is required for sentencing, I do not join this amendment order.

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