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State v. Sweet & Poulin, continued

(ii) Poulin [¶25] Poulin was sentenced to a total of 65 years. Assuming that he obtains the benefit of current good time calculations, he will be eligible for release in approximately 54 years. See 17-A M.R.S.A. § 1253. This sentence in total is significantly longer than most sentences meted out in Maine. Poulin will not be released until he is into his eighties. It is clear from the discussion at sentencing that the judge intended to prevent Poulin from gaining access to any more children for many years. [¶26] We must determine whether, on the facts of this case, the sentence is simply too long. In particular, we review the court's decision not to suspend any portion of the sentences imposed for abuse of discretion. See Pfeil, 1998 ME 245, ¶ 19, 720 A.2d at 578. We do not substitute our judgment for that of the sentencing justice and unless the justice has exceeded the bounds of his discretion or made a positive error of law, we will not disturb the sentence imposed. See id. [¶27] Poulin's sentencing was unusual in that the court had before it Poulin's personal journal chronicling in detail his thoughts, desires, and actions relating to the sexual abuse of children. The lengthy journal, which Poulin does not dispute contains his own writings, was written during 1994 and 1995. The charges on which Poulin was sentenced alleged dates of crimes during 1996 and 1997. The journal therefore provided the court with significant and rare insights into the events that led to Poulin's convictions. [¶28] The journal unquestionably played a significant part in the court's decision. It contains a disturbing record of Poulin's efforts and successes in obtaining sex from children. It also sets out Poulin's involvement with N.A.M.B.L.A. and his belief that sexual relationships between adult men and young boys are acceptable no matter what the "moral majority" believes. The journal openly addresses his intention to ignore the laws criminalizing this behavior and to continue to practice this activity regardless of the possible consequences. During a period of incarceration he wrote a novel of "man/boy love," but threw it away before he was released because "I had heard that they search all your belongings before they let you go." Discussing Sweet, Poulin wrote:
	Richard was a boy lover but the years he spent in jail, I
believe, scared him away from the practice.  His honest
desire for boys is greatly suppressed, which is not good.  I
believe there is no such thing as a "reformed boy lover."

	Sooner or later, Richard is going to be attracted to a boy
and he's going to cross that line that society and the judicial
system has put between men and boys.  (Emphasis in
	[¶29]  In a chilling passage, Poulin demonstrated his understanding
of the vulnerability of certain boys.  "Ahh, the boys of Water Street.  They are
usually from broken homes or troubled ones at least.  Alcohol is almost
always a factor.  They are despondent and need love . . . .  These are the boys
I love."  The journal also contains graphic passages of Poulin's sexual
activities with several boys and frequently discusses possibilities of new
contacts with other boys.  As one relationship with a boy came to an end,
Poulin wrote:  "In the meantime, I must have him introduce me to one of his
friends.  I have to have another link before the chain falls apart and I have to
start anew."  It is significant that the journal disclosed Poulin's
understanding of when to disclose his penchant for sex with children and
when to hide it or to give the "I Look But Don't Touch" speech.
	[¶30]  During the sentencing hearing, the court indicated that it had
reviewed both Poulin's journal and his statement submitted in support of
sentencing.  The court gave particular weight to Poulin's own statement that
"there is no such thing as a 'reformed boy lover.'"  The court noted that
Poulin had inflicted physical pain, through anal intercourse, on one of his
victims at the same time that he acknowledged in his journal how much
pain he had suffered himself when he was first penetrated anally.  
	[¶31]  The court also had before it the victim impact statements
gathered by the victim witness advocates regarding the three boys
victimized by Poulin's assaults.  Those statements spoke volumes about the
destruction left in the wake of Poulin's activities.  Dr. James Jacobs
completed an evaluation of Poulin for sentencing and concluded that Poulin
has difficulty understanding the effects of his victimization on the children
and that empathy, lacking in Poulin, "is felt to be one component in
reducing risk of recidivism."  He further opined that Poulin "probably does
not have a good prognosis in sexual offender treatment due to the
underlying personality disorder components."
	[¶32]  We conclude that the court did not err in determining that
Poulin is not a good candidate for probation.  Control of his activities could
be attempted only through intense supervision and conduct management. 
Even with such resources in place, resources that are scarce in our current
system, Poulin's well-documented ability to fool those around him and still
gain access to vulnerable children is amply demonstrated in this record. 
	[¶33]  Finally, we conclude that the sentence, although extraordinary
in length, is sufficiently supported by the facts in the record that it must be
affirmed.  We note that a sentence of this length will be appropriate only in
the most unusual cases and would not be appropriate in the absence of the
multiple aggravating factors present here.  Indeed, in his sentencing
argument to the court, the prosecutor indicated that on only one prior
occasion in a 25-year history had his office recommended a sentence as
severe as the one recommended here.  In that case, involving a defendant
named Elwood Twist, the defendant was sentenced to 85 years (reduced
after appeal to 68 years as a result of a defective indictment) for multiple
unrepented acts of sexual assaults on children.  See State v. Twist, 528 A.2d
1250 (Me. 1987).
	[¶34]  Here, the number of victims, the length of time during which
the activities continued, the nature of the sexual activities, the dire effects
on the victims, the defendant's own statements to the effect that a "boy
lover" never changes, and the extremely significant risk of his reoffending
upon release have all combined to warrant a sentence of significant length. 
We cannot say that the sentence structured by the court in this case
exceeded the bounds of the court's discretion or reflected any error of law
or principle.
	The entry is:
The sentence imposed on Richard Sweet is
affirmed.  The sentence imposed on Paul
Poulin is affirmed.
CALKINS, J., with whom DANA, J., joins, concurring in part and dissenting in part. [¶35] I respectfully dissent to that portion of the opinion affirming Poulin's sentences. I do not fault the manner in which the sentences were imposed. I agree that the heinousness of the commission of the offenses and the prior criminal record were sufficient to warrant sentencing in excess of 20 years.{7} I cannot disagree, at least in the abstract, with the discussion of consecutive sentences. [¶36] I dissent because the totality of Poulin's sentences is excessive.{8} Although a court follows the established sentencing procedures and principles, a sentence which is excessive will be vacated. See State v. Frechette, 645 A.2d 1128, 1129 (Me. 1994) (vacating four sentences of 20 years each imposed consecutively). In reviewing the propriety of a sentence, see 15 M.R.S.A. § 2155(1) (Supp. 1999), excessiveness is considered. See Daniel E. Wathen, Disparity and the Need for Sentencing Guidelines in Maine: A Proposal for Enhanced Appellate Review, 40 Me. L. Rev. 1, 11 n.32 (1988) (quoting State v. Carter, No. AD-76-824 (Me. App. Div. Jan. 2, 1979)). [¶37] A measure of excessiveness is the range of sentences for similar offenses. I am not aware of any gross sexual assault cases, in which the sentences were reviewed by us or the former Appellate Division of the Supreme Judicial Court, where the sentences imposed upon a single defendant approximated the 65 years imposed on Poulin. The longest such sentence I have found in the reported cases is 40 years. See State v. Lobozzo, 1998 ME 228, ¶ 6, 719 A.2d 108, 110 (affirming sentences of 40 years on kidnapping and gross sexual assault and lesser sentences on unlawful sexual contact and assault, all to be served concurrently).{9} [¶38] In my view Poulin's sentence of 65 years is outside the reasonable bounds of discretion. The total length of his sentences, combined with the court's refusal to suspend even a few years, is excessive in light of the totality of circumstances, which include, in addition to those mentioned by the sentencing court, Poulin's relatively young age and his age at the release point. I fear that the affirmance of this sentence will substantially raise the bar of sentences generally.
Attorneys for State: David W. Crook, District Attorney Alan P. Kelley, Deputy Dist. Atty., (orally) 95 State Street Augusta, ME 04330 Attorneys for defendants: Jeffrey P. Towne, Esq., (orally) 179 Main Street Waterville, ME 04901 (for Richard Sweet) John O'Donnell, Esq., (orally) Tilton & O'Donnell 160 College Avenue Waterville, ME 04901-6216 (for Paul Poulin)
FOOTNOTES******************************** {1} . Title 17-A, section 1151 provides that the general purposes of punishment are: 1. To prevent crime through the deterrent effect of sentences, the rehabilitation of convicted persons, and the restraint of convicted persons when required in the interest of public safety; 2. To encourage restitution in all cases in which the victim can be compensated and other purposes of sentencing can be appropriately served[;] 3. To minimize correctional experiences which serve to promote further criminality; 4. To give fair warning of the nature of the sentences that may be imposed on the conviction of a crime; 5. To eliminate inequities in sentencing that are unrelated to legitimate criminological goals; 6. To encourage differentiation among offenders with a view to a just individualization of sentences; 7. To promote the development of correctional programs which elicit the cooperation of convicted persons; and 8. To permit sentences which do not diminish the gravity of the offenses, with reference to the factors, among others, of: A. The age of the victim; and B. The selection by the defendant of the person against whom the crime was committed or of the property that was damaged or otherwise affected by the crime because of the race, color, religion, sex, ancestry, national origin, physical or mental disability or sexual orientation of that person or of the owner or occupant of that property. 17-A M.R.S.A. § 1151 (1983 & Supp. 1999). {2} . Along with a number of purposes and goals of sentencing that are intended to assist the court in considering all of the information necessary and appropriate to the exercise of its discretion, see 17-A M.R.S.A. § 1151, the court is also required to consider the effect of the crime on the victim, see 17-A M.R.S.A. §§ 1171-1174 (1983 & Supp. 1999) and to consider where the defendant will be incarcerated if a term of imprisonment is imposed, see 17-A M.R.S.A. § 1252(7) (Supp. 1999). {3} . In order to undertake the first step in the analysis, that is, to establish the "basic term," the court must necessarily first identify the legal parameters within which a sentence may be imposed for the crime at issue. This preliminary step requires the court to articulate the very highest sentence and the very lowest sentence available at law. At this point in the analysis, the court must also be aware of factors that would change the class of the crime. For example, if the crime is alleged and proved only as an attempt, the crime will be generally one class lower. See 17-A M.R.S.A. § 153(4) (1983). If the crime was committed with a weapon, the crime will, in most instances, be one class higher. See 17-A M.R.S.A. § 1252(4) (1983). {4} . Those factors included "factors which the Law Court has specifically indicated can justify going into the second tier, the heinousness of the crimes, which are particularly heinous here in terms of the taking advantage of the special needs kids and things like that and-which the Legislature has imposed and can justify going into the second tier by allowing the prior record to support going into the second tier." {5} . Indeed, the State suggests that Sweet's sexual abuse of an earlier victim was one factor that ultimately led the victim to kill another person. That young man is currently serving a 30-year sentence for murder. {6} . The record indicates that Poulin was sentenced to three years in prison and four years of probation in September 1990. Unless his probation was terminated, he remained on probation during the period in question notwithstanding counsel's ambiguous statements to the contrary. Sweet admits that during the time in question, he was on probation. {7} . The sentencing judge, in his discussion of whether to impose a sentence in the 20 to 40-year range, mentioned several times that there were multiple victims. I do not agree that a sentence should be placed in the 20 to 40-year range because there are several victims and, in addition, make that sentence consecutive because the offenses were committed on separate victims. The court, however, had sufficient other grounds on which to place the sentence in the 20 to 40-year range and for the imposition of consecutive sentences. {8} . In my view, both defendants received de facto life sentences. Even if Poulin is able to earn the maximum amount of good time, he cannot be released from prison for 54.75 years which means that he will be in his mid-eighties before release. If Sweet earns the maximum good time, he cannot be released for approximately 35 years which means that he will be in his early eighties before he will be released. Assuming that the average life expectancy of a white male in the United States is in his mid-seventies, the defendants are not expected to live long enough for release. (In 1996 the average life expectancy, adjusted for age, of a white male in the United States was 73.8 years. Center for Disease Control, Mortality Patterns -- Preliminary Data, United States, 1996, Morbidity and Mortality Wkly. Rep. (October 10, 1997).) We have previously refused to define sentences of 65 years (State v. Wood, 662 A.2d 908, 913 (Me. 1995)) and 75 years (State v. Goodale, 571 A.2d 228, 229 (Me. 1990)) as de facto life sentences, but at the time of the sentences in those cases prisoners were able to earn more substantial reductions to their sentences than Poulin will be able to earn. We noted that Wood would be able to reduce his sentence to 38 years. See Wood, 662 A.2d at 913. The Maine Legislature has not sanctioned life sentences for any offense except murder (see 17-A M.R.S.A. § 1251 (Supp. 1999)) and attempted murder (see 17-A M.R.S.A. § 152(4) (Supp. 1999)), and we set forth guidelines limiting the situations for which a life sentence should be imposed to those murders with certain aggravating circumstances. See State v. Shortsleeves, 580 A.2d 145, 149-50 (Me. 1990). We recognized: "[t]he imposition of a life sentence has such a serious impact on the offender so different from the impact of a sentence for a term of years that a life sentence is never justified unless the murder is accompanied by aggravating circumstances." Id. at 149 (quoting State v. Anderson and Sabatino, Nos. 78-37, 78-40 (Me. App. Div. June 30, 1980)). I am willing to assume, for the time being, that the authority granted by the Legislature for consecutive sentences permits de facto life sentences, but at the very least such sentences must be scrutinized carefully and limited to the most extreme behavior. Although Sweet's de facto life sentence comes close to the permissible limit, I do not dissent in his case because I do not consider the 40-year total sentence to be illegal or beyond the bounds of permissible discretion. {9} . The opinion refers to a 68-year sentence imposed upon Elwood Twist for multiple offenses of rape and gross sexual misconduct. We did not review the sentence in his case, and it is not noted in the appeal of his conviction. See State v. Twist, 528 A.2d 1250 (Me. 1987). There is much difficulty in ascertaining generally what sentences have been imposed for similar offenses. 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. Furthermore, there is the added problem of comparing sentences for offenses committed before October 1, 1995 with offenses committed after that date. Compare 17-A M.R.S.A. § 1253(3)-(5) with § 1253(8) (Supp. 1999). A sentence of 68 years for a pre-1995 offense would result in a release after 39 years whereas the same sentence for a post-1995 offense would result in a release after 58 years in prison, assuming maximum good time credits for both.

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