# State v. Fournier

> Supreme Judicial Court of Maine · November 30, 1992 · 617 A.2d 998

URL: https://www.frixlaw.com/law-library/cases/9764496

## Case

- **Full name:** STATE of Maine v. Michael FOURNIER
- **Court:** Supreme Judicial Court of Maine
- **Decided:** November 30, 1992
- **Citations:** 617 A.2d 998; 1992 Me. LEXIS 257
- **Precedential status:** Published
- **Opinion:** Dissent by Collins
- **Judges:** Wathen, Roberts, Glassman, Clifford, Collins, Rudman
- **Cited by:** 16 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9764496

## How later opinions describe it (automated extraction)

- noting that 17-A M.R.S.A. § 352(5)(E) (1983),11 a statute permitting aggregation of theft charges, “allows the State to aggregate amounts of value involved in related thefts to achieve a higher sentencing classification than if each theft were prosecuted separately” and “give[…
- rejecting defendant’s argument that he did not receive stolen property “because the dollar bills he received were not the same as the dollar bills stolen from the church” and explaining that, “[g]iven the fungible nature of money, the State satisfied its burden of providing be…
- holding that the court erred when it denied the defendant’s motion to consolidate fifteen *1122 counts involving over one hundred thefts into a single count

## Opinion text

COLLINS, Justice
dissenting.
Because in my view the court construes 17-A M.R.S.A. § 352(5)(E) (1983) 1 too narrowly, I respectfully dissent.
Under our sentencing statutes, theft offenses are classified according to the value of the property stolen. 17-A M.R.S.A. § 362 (1983 & Supp.1991). Section 352(5)(E) of the statute allows the State to aggregate amounts of value involved in related thefts to achieve a higher sentencing classification than if each theft were prosecuted separately. Its purpose is to give the State flexibility in its charging decisions in theft cases to ensure that the degree of the offense charged is “appropriate” and bears a reasonable relationship to the seriousness of the defendant’s conduct. See Model Penal Code & Commentaries Part II, § 223.1 at 141 (1989).
In construing a statute, our primary focus should be to ascertain the real purpose of the legislation. State v. Niles, 585 A.2d 181, 182 (Me.1990). We should avoid results that are “absurd, inconsistent, unreasonable or illogical if the language is fairly susceptible to such construction,” Id., and we should adopt “the sense of the words which best harmonizes with the context and promotes in the fullest manner the policy and objects of the legislature.” Davis v. State, 306 A.2d 127, 130 (Me.1973).
Under the court’s construction of § 352(5)(E), if the State chooses to aggregate under § 352(5)(E), all amounts of value involved in the individual thefts pursuant to one scheme or course of conduct must be aggregated in one single count or not aggregated at all. This construction is perhaps the result of the court’s mischarac-terization of the State’s charging decision in this case. Rather than redividing a single theft into a number of separate counts arbitrarily based on units of time as stated by the court, the State merely chose to use § 352(5)(E) to aggregate the underlying amounts into 15 Class B counts that reasonably relate to the seriousness of Fournier’s conduct.
*1002 A plain reading of the statute does not reveal the “all or nothing” requirement enunciated by the court. Moreover, the court’s “all or nothing” construction of the section plainly contradicts the legislative goal by reducing the State’s flexibility in charging decisions. It is not reasonable to believe that in enacting 17-A M.R.S.A. § 352(5)(E), the Legislature intended that a person who steals in excess of $500,000 by over 100 separate takings is subject to no greater maximum penalty than is one who steals $5,001 on one occasion. See Commonwealth v. Murray, 401 Mass. 771 , 519 N.E.2d 1293, 1296 (1988) (discussing Massachusetts larceny statute). The court’s construction of § 352(5)(E) requires the State to choose between charging Fournier with up to 180 separate counts, or one single count of aggregated theft. Charging by separate counts would create an unnecessarily complex and lengthy trial. Charging only a single count, on the other hand, would not adequately reflect the seriousness of Fournier’s conduct. The statute does not expressly prohibit more than one aggregation of theft offenses and I would not construe it to create such an implicit prohibition.
Construing the statute to allow more than one aggregation would not mean that the discretion of the State to aggregate under § 352(5)(E) is unfettered and may be exercised in an arbitrary or capricious manner. See State v. Heald, 382 A.2d 290, 301 (Me.1978) (reasonable prosecutorial discretion in the enforcement of criminal laws is inherent in our criminal justice system); State v. Pickering, 462 A.2d 1151, 1161 (Me.1983) (prosecutorial discretion is subject to constitutional constraints); M.Bar R. 3.7(i)(l) (public prosecutor shall not institute or cause to be instituted criminal charges when the lawyer knows, or it is obvious, that the charges are not supported by probable cause). See also District of Columbia v. Dixon, 230 A.2d 481, 482 (D.C.1967) (prosecutor has a right to decide whether to prosecute a case except when that right is exercised “in a scandalous or corrupt manner, or [its exercise is] shown to be ‘capricious and vexatiously repetitious’ ”). Rather, the aggregation must be appropriate and bear a reasonable relationship to the seriousness of the conduct of the defendant. Such is the case here. Fournier perpetrated approximately 180 separate acts of theft involving more than $500,000. He pressured his mother, who was in a position of trust with St. John’s Parish having access to Parish funds, to steal over $500,000 for his benefit. Fournier’s acts of theft were rationally aggregated into 15 separate counts of aggravated theft by receiving (each a Class B offense). The 15 separate aggregated counts each represented distinct amounts stolen during separate periods of criminal conduct during the time period between June 1988, when Fournier’s criminal conduct began, and January 1990, when it ended. The counts, as aggregated by the State, resulted in charges appropriately reflecting the seriousness of Fournier’s conduct.
Under the court’s reading of § 352(5)(E), however, the maximum prison sentence which can be imposed on remand in light of Fournier’s single Class B conviction, is 10 years of imprisonment. See 17-A M.R.S.A. § 1252(2)(B) (1983). The maximum permissible term of probation is 4 years. 2 See 17-A M.R.S.A. § 1202(1) (1983 & Supp. 1991-92). The court reaches this conclusion despite the fact that without the aid of the aggregation provision, the State had the option of charging Fournier with 12 Class B theft offenses, eighty-three Class C offenses and numerous Class D and E offenses. A more “absurd, inconsistent, unreasonable [and] illogical” result is hard to envision. See Niles, 585 A.2d at 182 .
Moreover, as a special condition of probation Fournier was sentenced to pay restitution in the amount of $200 a month or 10% of his gross salary. At this rate, it would take Fournier in excess of 208 years to repay the $500,000 that he stole. It is obviously unlikely that the Church will ever recover from Fournier all of the money stolen. Making matters worse, under the *1003 court’s reading of § 352(5)(E), the maximum term of probation which could be imposed on Fournier is four years. See 17-A M.R.S.A. § 1202(1) (1983 & Supp.1991-92). If, however, the statute were read to give effect to the Legislature’s purpose of ensuring the prosecution flexibility in its charging decisions, consecutive sentences of probation could be imposed. See 17-A M.R.S.A. §§ 1152(2)(D) & 1256(2) (1983 & Supp.1991-92). As a result, the trial court would have the option of sentencing Four-nier to a longer period of probation conditioned on restitution. 3 See M.R.S.A. § 1204(2-A)(B) (1983). Such a sentence would bear a reasonable relationship to the seriousness of Fournier’s crimes while encouraging Fournier to make his restitution payments in a timely manner, thus giving effect to the purpose of the Legislature.
I would affirm the convictions in all respects.
. 17-A M.R.S.A. § 352(5)(E) (1983) provides:
Amounts of value involved in thefts committed pursuant to one scheme or course of conduct, whether from the same person or several persons, may be aggregated to charge a single theft of appropriate class or grade. Subject to the requirement that the conduct of the defense shall not be prejudiced by lack of fair notice or by surprise, the court may at any time order that a single aggregated count be considered as separate thefts. No aggregated count of theft shall be deemed duplicitous because of such order and no election shall be required. Prosecution may be brought in any venue in which one of the thefts which have been aggregated was committed.
. In addition, a Class B offense carries a maximum fine of $20,000. See 17-A M.R.S.A. § 1301 (1989 & Supp.1991).
. Common sense leads me to believe, and clinical research appears to confirm that probationers pay their restitution obligations more diligently when under the threat of probation revocation. See Van Voorhis, Restitution Outcome & Probationer’s Assessments of Restitution: The Effects of Moral Development, 12 Crim.Just. & Behav. 259 (Sept. 1985).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9764496. Public record. Not legal advice.