MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions Decision: 20 2 1 ME 3 Docket: SRP

- 20

- 13 Argue d : November	18,	2020 Decided: January	14,	2021 Panel: MEAD, GORMAN,	JABAR , HUMPHREY , and CONNORS , JJ.

STATE	OF	MAINE

v. ANTHONY	S.	LENG

CONNORS ,	J. [¶1] Anthony	S.	Leng	appeals	from his sentence	after	plead ing guilty to the	intentional	and	knowing	murder	of	his	wife

. See 17

- A	M.R.S.	§ 201(1)(A) (2020)

. He	argues	that	the	sentencing court	(Cumberland	County, Horton,	J. ) misapplied the	 first	 step	 of	 the	 sentencing	 analysis	 required	 by statute, see 17

- A M.R.S.	§ 1252

- C	(2018) , 1 by	not adequately compari ng the circumstances of his crime	 to	 the	 circumstances	 of	 other	 defendants	 who	 had	 committed similar	murders. We	affirm	Leng’s	sentence.

1 In	2019,	Maine’s	sentencing	statutes	were	repealed	and	replaced. See P.L.	2019,	ch.	113 ,	§§	A

- 1 , A

- 2 (emergency,	effective	May	16,	2019)

. Title	17

- A M.R.S.	§	1252

- C	(2018) ,	which	was in	effect	at the	time	of	Leng’s	crime ,	was	replaced	by 17

- A	M.R.S.	§ 1602 (1) (2020)

. The difference s between	the statutes had	no	effect	on the	trial	court’s	sentenc e or	this	appeal. See State	v.	Treadway ,	2020 ME 127, ¶ 13	n.4,

--- A.3d

--- .2 I.		BACKGROUND [¶ 2 ] The	following undisputed facts	are	drawn	from	the	State’s	summary of	the	evidence	that	it	would	have	presented	had	the	matt er	proceeded	to	trial.
See State v.	Lord ,	2019	ME	82,	¶	3,	208 A.3d 781 ;	M.R.U.	Crim.	P.	11(b)(3),	(e). [¶ 3 ] On	 January	 7,	2018,	shortly	before	10:00	 p.m.,	Leng	 and his	wife arrived	home	after	watching	a	football	game	at	a	friend’s	house.		Th eir ten
- and fifteen

- year - old	sons were	already	home.		Almost	immediately	after	Leng	and his	wife entered	 the	 kitchen,	 their younger son,	who	was	in	 the	living	 room, heard	a single gunshot	followed	by	more	gunshots

. He	heard	his	mother	say “ah , ” believe d he	heard her fall to	the	floor ,	and heard his	father	crying. H e also smelled	the	odor	of	gun powder

. The	younger	son	went	into	the	kitchen	where
h e	saw	his	father standing	by	the	refrigerator

. He	then	saw his	mother lying on the	floor next	to	blood	and	a	gun, and he screamed

. [¶ 4 ] The older son,	who	was	 upstairs	 getting	 ready	 to	 take	 a	 shower, heard	his	parents	arrive	home	and	then	almost	immediately	heard	a	gunshot,	a pause,	and	then	more	gunshots. He	ran	downstairs	where	he	saw	his	brother in	the	living room	with	his	head	buried	in	the	couch. The	older	son asked	his father	what	he	had	done , to	which	Leng replied ,	“I	just	killed	your	mother.” The older	son	picked	up	his	brother	and	ran	outside. Once	outside,	the	older	son3 went	to	the	door	that	le d into the	kitchen	and	looked through the	window. He saw	his	mother	lying	on	her	stomach	on	the	floor	with	her	empty	hands	by	her side and his	father’s	gun on	the floor near	his	mother.		The	older	son	called	9

- 1

- 1 and	told	the	operator	that	his	father	had	killed his mother	and	that	he	and	his brother	were	hiding	outside.		He	stayed	on	the	line	until	police	arrived , at	which
time both	children ran	barefoot	to	the	police. [¶ 5 ] After	 shooting his	 wife ,	 Leng also ca lled	 9

- 1

- 1 .	 	 He provided	 the address	but answered	no	further	questions	and made wailing	sounds .		From	the time	the	first	9

- 1

- 1	call	was	placed	until	his	surrender	to	police,	Leng remained alone in	the	house	for	fifteen	minutes. [¶ 6 ] When	police	entered the	home,	they	found	the	victim	lying	on	her right	side	on	 the	kitchen	 floor.		Her	purse	was	still	on	her	arm , and	her	keys were	under	her	body.		The	victim	had	a	knife	in	her	right	hand	and	eight	other knives grouped	around	her	head	and	on	top	of	her	hair

. When	the	police	found the handgun on	the	floor	near	the	victim, the	slide was in a locked	back	position, indicating	 that	 all	 of	 the	 ammunition	 in	 the	 gun	 had	 been	 spent,	 and a manually

- activated	red	dot	laser was in	 the	on	position.		The police collecte d ten	casings	and	 ten	bullets	or	bullet	 fragments,	and	 they discovered	multiple bullet	holes	less	than	six	inches above the	floor	in	the	cabinet	door	next	to	the4 victim’s	head.		Shards	from	the	cabinet	door	were	found	on	the	victim’s	hair	and

coat. [¶ 7 ] T he victim’s	 autopsy revealed	 that she had	 died	 as	 a	 result	 of multiple	gunshot	wounds	 to	her	head	and	neck.		Of	 significance , the	medical examiner	 determined	 that	 one	 of	 the	 six	 shots	 that	 struck	 the	 victim	 had entered	 the	 right	 side	 of her face,	 which	 was	 the	 side	 facing	 the	 floor	 when police	arrived	and	was	the	only	wound	that	travelled	in	a	“slightly	right	to	left and	 downward”	 path. Based	 on the	 medical	 examiner’s	 report,	 witnesses’ reports	of	a	pause	between	gunshots,	and	the	physical evidence	at	the	scene, police	determined	 that	 the	 victim	was	 first	 shot	when	 she	was	in	an	upright position	and	then	shot	several	more	times	after	she	had	collapsed	to	the	floor. [¶ 8 ] On	January	16,	2018,	the	State	filed	a	complaint	charging	Leng	with

mur dering	his	wife , to	which	he	pleaded	not	guilty.		In	February	2018,	Leng	was indicted	by	 the	grand	jury	 on	 one	count	 of	intentional	and	 knowing	murder,
17

- A	M.R.S.	§ 201(1)(A)

. [¶ 9 ] In	September 2019,	after	the	State	agreed	to	recommend	a	sentence
not	 to exceed	 forty	 years in	 prison ,	 Leng	 changed	 his	 plea	 to	 guilty.	 	 After5 following	 the	 procedure	 prescribed	 in M.R.U.	 Crim. P.	 11(b)

- (e) ,	 the	 court accepted	Leng’s	guilty	plea. 2 [¶1 0 ] T he	 court	 held	 a	 sentencing	 hearing three	 months	 later. It considered	the	parties’	oral	arguments ; the	parties’ written memoranda ,	which referenced	sentences	in seven other cases that	either	the State o r Leng,	or	both, deemed	 c omparable ; a statement	 from	 Leng accepting	 responsibility for	 the murder and	apologizing	to	his	children ; and several victim	impact	statements. 3 [¶ 1 1] With	respect	to	the	basic	sentence, the	parties	differed	markedly in	 their recommendations. The State urged a	 basic	 sentence	 of	 sixty	 years’ imprisonment ,	arguing that	the pr esence	of	children	during	the	murder	would justify	 the	imposition	 of	a	life	 sentence ; Leng	committed	 the	 “ultimate	act	 of domestic	violence”	after	years	of	threatening	to	kill	the	victim , just	as	she	was preparing	 to	 leave	 him ; and his staging	 of	 the	 crime	 scene to create	 the appearance	 that the	 victim was responsible	 for	 her	 own	 murder was

2 During	the	Rule	11	hearing,	the	court	asked	Leng twice w hether	he	understood	that	his	sentence could	 range	 anywhere	 between	 the	 minimum	 mandatory	 sentence	 of	 twenty

- five	 years’ imprisonment	to	the	agreed

- upon	“cap”	of	forty	years , to	which	Leng	repeatedly	answered t hat	he understood. See M.R.U.	Crim.	P.	11(c)(1);	17

- A	M.R.S.	§	1251(1)	(2018).

3 The adult	daughter of	Le ng and	the	victim submitted	a	written	letter	to	the	court	describing	the physical	and	verbal	abuse	that	Leng	had inflicted	on the	daughter during	her	childhood .		The	court referred	 to	 this	letter	at	sentencing	when	discussing	 the effect that	 the	 victim’s	death	had	on	her children.6 particularly	 “cruel	 and	 callous.” In	 contrast, Leng urged	 the	 court	 to	 set	 the basic	 sentence	 at	 thirty

- five	 years’	 imprisonment, citing	 several	 com parable cases	and arguing	that	“[t]his	was	not	a	life	sentence	case.”		The	State	and	Leng recommended	final	sentences of forty	years	and	thirty	years,	respectively. [¶1 2 ] In	pronouncing	its	sentence,	the	court	began	with	the	purposes	of sentencing,	drawi ng special attention	to	the	goals	of	eliminating	inequalities	in sentencing	 by	 considering	 sentences	 imposed	 in	 similar	 cases,	 encouraging individualization	of	sentencing,	and	recognizing	“domestic	violence	as	a	serious
crime.”	 	 17

- A	 M.R.S.	 § 1151	 (2018). 4 The	 court	 also	 acknowledged	 that	 the minimum	mandatory	sentence	for	murder	is	twenty

- five	years’	imprisonment and	that	the	maximum	sentence	is	life	imprisonment,	which,	the	court	noted, could	have	been	imposed	here	where	the	crime	was	the	murder	of	a	par ent	in the	presence	of	that	parent’s	children. [¶1 3 ] After	 these	 remarks,	 the	 court	 set	 the	 basic	 sentence	 at	 fifty	 to fifty

- five	 years.	 	 In	 formulating	 the	 basic	 sentence,	 the	 court	 took	 into consideration	several	factors:	(1) the	murder	was	a	crime	of domestic	violence ; (2) Leng’s previous	threats to	kill	the	victim could	be	taken	as	evidence	that	he

4 Title	17

- A	M.R.S.	 §	1151	 (2018) was	 repealed	and	 replaced with 17

- A	M.R.S.	 §	1501	(2020). P.L. 2019,	ch.	113 , §§	A

- 1 ,	A

- 2.7 had	formulated	the	intent	to	murder	the	victim	before	that	day ; ( 3 )	Leng	shot the	 victim	 several	 times,	 including	 after	 she	 had	 fallen	 to	 the	 floor ; ( 4 )	 th e victim’s	children	were	not	only	present	in	the	home	at	the	time	of	the	murder but	saw	their	mother’s	lifeless	body	on	the	floor	as	they	left	the	house	in	a	panic ; and	( 5 ) Leng	staged	 the	crime	scene	 to	make	it	appear	as	 though	he	acted	in self

- defense , t hereby	casting	blame	on	the victim	for	her	own	death. T he	court stated	 that i n	 addition	 to	 the	 basic	 sentences	 in	 the	 cases	 presented	 by	 the parties ,	 it also	 considered	 a	 case over	 which	 it	 had	 presided	 involving	 a conviction	for	domestic

- violence

- related murder	in	the	presence	of	children in which the	court had set	the	basic	sentence	at	fifty	to	fifty

- five	years. [¶1 4 ] After	 considering	 aggravating	 and	 mitigating	 factors , the	 court arrived	 at	 a	 final	 sentence	 of	 forty	 years in	 prison

. 5 T he	 court	 stated that although	 the	 forty

- year	 sentence wa s	 “entirely	 appropriate	 in	 this	 case,	 the sentence	in	the	absence	of	a	plea	agreement	might	have	been	more.” [¶1 5 ] Leng	applied	to	the	Sentence	Review	Panel,	seeking	leave	to	appeal from	 his	 sentence	 on	 the assertion that	 the	 court	 erred	 in	 setting	 the	 basic

5 The	 court	 also	 ordered	 Leng	 to	 pay	 $5,100	 to	 the	 Victims’	 Compensation	 Fund	 for reimbursement	of	the	victim’s	funeral	expenses.8
sentence , leading	 to	 an	 excessive	 final	 sentence.	 	 The	 Panel	 granted	 his application. See M.R.	App.	P.	20; 15	M.R.S.	§§	2151

- 2153	(2020)

. II.		DISCUSSION [¶1 6 ] Leng	argues	that	the	court failed	to cond uct	a	proper	comparison of	the	circumstances	of his crime	to	similar	murders. He	asserts that the	court’s reliance	upon	a	single	case	over	which	the	court	had	presided i s	inadequate	and d oes not	serve	the	goal	of	consistency	in	sentencing.
A. Standa rd	of Review [¶1 7 ]		In	a	murder	case,	the	sentencing court employs a	two
- step	process. State	v.	Hayden ,	2014	ME	31,	¶	17,	86	A.3d	1221 ;	17

- A	M.R.S.	§§	1201(1)(A), 1252

- C	 (2018). 6 “ In	 the	 first	 step,	 the	 court	 determines	 the	 basic	 period	 of incarceration,	 and in	 the	 second,	 the	 maximum	 period	 of	 incarceration.” Hayden , 2014	ME	31,	¶	1 7 ,	86	A.3d	1221

. We review	the	determination	of	the basic	 sentence	 for	misapplication	 of	legal	principles and	abuse	 of	 the	court’s sentencing	power

. State	v.	Nichols ,	2013	ME 71,	¶	13,	72	A.3d	503

.

6 Title	 17

- A	M.R.S.	 §	 1201(1)(A)	 (2018)	was	 repealed	and	 repla ced	 by	17

- A	M.R.S.	 §	 1602(2) (2020). P.L.	2019,	ch.	113 , §§	A

- 1 ,	A

- 2.9 B. Comparable	Cases [¶1 8 ]		To	determine	the	basic	period	of	incarceration, a	sentencing court considers	“the	particular	nature	and	seriousness	of	 the	offense	as	committed by	the	offender.”		17

- A	M.R.S. § 1252

- C(1). The	court	“exami nes	the	crime,	the defendant’s	conduct	in	committing	it,	and	looks	at	other	sentences	for	similar offenses.” Hayden , 2014 ME 31, ¶ 18, 86 A.3d 1221 (alteration and quotation marks omitted). Consideration	 of	 comparable	 sentences,	 however,	 is	 at	 the discretion	of	the	court. Nichols ,	2013	ME	71,	¶¶ 16

- 20 ,	72	A.3d	503; see	also State	 v.	 Stanislaw ,	 2013	 ME	 43,	 ¶	 21,	 65	 A.3d	 1242 (stating	 that	 the	 court
examine s,	at	its	discretion, other	sentences for	similar	offenses); State	v.	Basu , 2005	ME	74,	¶	23,	875	A

. 2d	686 (s tating	 that	 the	court may consider	similar conduct	 of	 other	 offenders	in	deciding	 the	basic	sentence ).		 “[T]here	may	be times	 when	 appropriate	 case	 comparisons	 would	 advance	 the	 senten cing principle	 of	 eliminating	 significant	 unjustified	inequalities	in	 sentences,”	 but “[t]he	 court	 has	 wide	 discretion	 in	 determining	 the	 sources	 and	 types of information	to	consider	when	imposing	a	sentence.” State	v.	Reese ,	2010	ME 30, ¶	28,	991	A.2d 806

. [¶1 9 ] Leng’s	contention that	the	sentencing	court	relied	on	only	one	case is	not	supported	by	the	record. Although	the	court’s	commentary during this10 part	of	the	analysis	was	brief,	the	court expressly	stated	that	it had considered the	basic	senten ces	in	 the	cases	presented	by	 the	parties	as	well	as a	similar case	over	which the	court had	presided. The	court was not require d ,	however, to	conduct	a	comparison of	Leng’s	case	to	similar	cases at	all

— let	alone provide

a n exhaustive	 enumeration	 of	 analo gous	 cases — before	 setting	 the	 basic

sentence

. See Nichols , 2013 ME 71, ¶ 20, 72 A.3d 503 ( “While	it	is	permissible for	 the	sentencing	court	 to	consider	comparable sentences	at	 the	 first	step	if appropriate,	neither	the	statute	nor	our	case	law	mandate it.” ). Thus,	we	find

no	error. C. Sentencing [¶ 20 ] The term	 of	imprisonment	imposed for	a	conviction for murder can	range	from	twenty

- five	years to	life. 17

- A	M.R.S.	§ 1251	(2018). 7 “When	a court	imposes	a	basic	sentence	at	or	near	the	maximum,	it	does	not	misapply sentencing	 principles	 if	 it	 finds	 the	 defendant’s	 conduct	 most	 serious	 as compared	 to	 other	means	 of	 committing	 the	 crime	within	 that	 same	 range.” Hayden , 2014 ME 31, ¶ 18 , 86 A.3d 1221 ( alterations	 and quotation	 marks omitted).

7 Title	 17

- A	M.R.S.	 §	 1251	 (2018)	 was	 repealed	 and	 replaced	 by	 17

- A	 M.R.S.	 §	 1603	 (2020). P.L. 2019,	ch.	113 , §§	A

- 1 ,	A

- 2.11 [¶ 2 1] Here ,	 the	court properly considered	 the	presence	of the	victim’s children	 at	 the	murder	in	setting	 the	basic	sentence at	 the	higher	end	 of	 the
range . In State v. Waterman , 2010 ME 45, ¶ 46, 995 A.2d 243 , we observed that children	exposed	to	violence are	at risk	of	physical,	neurological,	psychological, and	developmental	harm

. Because	of	the “ severe	collateral	impact	on	children,” we	stated	that	the	presence	of	children	at	or	close	to	the	scene	of	a	murder	is

“ an	aggravating	circumstance	that	could	raise	a	defendant’s	homicidal	conduct
to ‘most	 serious

. ’” Id. (quoting State	 v.	 Hutchinson ,	 2009 ME	 44,	 ¶	 42,
969 A.2d 923).	 	 We	 recently	 reaffirmed	 this	 principle	 in State	 v.	 Weyland , 2020 ME 129,	 ¶	 36, 240	 A.3d	 841 ,	 in	 which	 we	 concluded	 that	 “children witnessing	 ‘horrific	 violence’	 exacted	 upon	 one	 parent	 by	 another	 is	 a significant	factor	in	a	se ntencing	decision.” See	also State v. Diana , 2014 ME 45, ¶¶ 38

- 39, 89 A.3d 132 ; Nichols , 2013 ME 71, ¶ 28, 72 A.3d 503. [¶ 22 ] Next , the	 court	 appropriately recognized	 that	 the	 domestic violence	nature	of	the	murder	was	a	factor	to	be given	special consideration in sentencing. See Nichols , 2013 ME 71, ¶ 29, 72 A.3d 503 (concluding that murder committed as an act of domestic violence is “an objective factor properly considered in the first step of the sentencing analysis”). Effective	t wo	months befo re	Leng	murdered	his	wife,	 t he	Legislature	amended	17

- A	M.R.S.	§	1151,12 establishing as	 a goal	 of	 sentencing “[t]o	 recognize	 domestic	 violence	 as	 a serious	 crime	 against	 the	 individual	 and	 society

. ” P.L.	 2017,	 ch.	 105,	 §	 3 (effective	 Nov. 1,	 2017) (codified	 at	 17

- A	 M.R.S.	 §	 1151(9)	 (2018)).
A cknowledging the	recent	statutory	amendment, 8 the	sentencing	court stated that it	 “intend[ed]	 to	 keep	 that	 particular	 goal	 of	 sentencing	 in	 mind	 as	 [it] proceeded	with	the	analysis.” [¶ 23 ]		Finally,	the	court properly	considered	other	factors	in	setting	the basic	sentence,	including that	Leng	had	threatened	to	kill	his	wife on	numerous occasions before	he	murdered	her , thereby	demonstrating	that he	had	formed the intent	to	commit murder	at	some	earlier	time , and that	he had s taged the crime	scene	to	make	the	victim	of	his	abuse	appear	to	be	the	aggressor. [¶ 24 ]	 	 In	 sum,	 t he	 court	 followed	 proper	 sentencing	 procedures , appropriately	exercised	its	discretion	in	determining	the	sources	and	types	of information	 t o	 consider , and thoughtfully considered	 the	 relevant	 facts	 and sentencing	principles	in determining	Leng’s	sentence

. The	entry	is: Sentence affirmed.

8 Notably,	 several	 months	 after	 the	 murder	 occurred,	 the Legislature	 repealed	 and	 replaced 17

- A M.R.S.	§ 1251,	prescribing	the	length	of	a	sentence	for	a	murder	conviction,	to	require	courts	to

“ assign	 special	 weight ” when	 the	 victim wa s “ a	 family	 or	 household	 member ”	 and	 “a	 victim	 of domestic	violence	committed by	the	convicted person . ” P.L.	2017,	ch.	374,	§	1	(effective	Aug. 1, 2018) (codified	at	17

- A	M.R.S.	§ 1251(2)(C)	(2018)).13

James	R.	Gioia,	Esq.,	Fairfield	&	Associates, P.A., Portland,	and	Peter	J.	Cyr,	Esq. (orally) ,	Law	Offices	of	Peter	J.	Cyr,	Portland,	for	appellant	Anthony	S.	Leng Aaron	M.	Frey,	Attorney	General,	and	Donald	W.	Macomber,	Asst.	Atty.	Gen. (orally) ,	Office	of	the	Attorney	General,	Augusta,	for	appellee	State	of	Maine

Cumberland	County	Unified	Criminal	Docket	docket	number	CR

- 2018

- 201 F OR C LERK R EFERENCE O NLY