MAINE SUPREME JUDICIAL COURT Reporter of Decisions

Decision: 2015 ME 28

Docket: Ken-13-577; Ken-13-581

Argued: February 10, 2015

Decided: March 17, 2015

Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, and HJELM, JJ.

STATE OF MAINE

v.

COLLIN R. GIROUX

MEAD, J.

[¶1] Collin R. Giroux appeals from a judgment of conviction entered by the 

trial court (Marden, J.) following his guilty pleas to burglary (Class B), 

17-A M.R.S. § 401(1)(B)(4) (2014); burglary (Class C), 17-A M.R.S. § 401(1)(A); 

three counts of theft by unauthorized taking (Class C), 17-A M.R.S. § 353(1)(B)(4) 

(2014); criminal mischief (Class D), 17-A M.R.S. § 806(1)(A) (2014); and 

violation of condition of release (Class E), 15 M.R.S. § 1092(1)(A) (2014). The 

court also revoked Giroux’s probation imposed in an earlier case based on his 

admission to violating probation.

[¶2] Giroux contends that the court abused its discretion in denying his 

motion made prior to sentencing to withdraw his pleas and his admission. See

M.R. Crim. P. 32(d). The motion was made on the ground that the discussion of 

Giroux’s diagnosis of kleptomania in a presentence mental evaluation report 
2

constituted new evidence of a mental abnormality that would be admissible, 

pursuant to 17-A M.R.S. § 38 (2014), to raise a reasonable doubt as to his intent to 

commit the crimes charged. The State contends that a diagnosis of kleptomania 

cannot raise a reasonable doubt on the issue of intent. We affirm the judgment.

I. BACKGROUND

[¶3] In 2012, Giroux was on probation as part of a sentence imposed in 

2008 for burglary and theft convictions. That year, the State charged him with the 

seven crimes listed supra and moved to revoke his probation. At Giroux’s request,

the State Forensic Service conducted two mental examinations, the first to 

determine his competence to stand trial, and the second to address issues of 

criminal responsibility and abnormal condition of the mind. See 15 M.R.S. 

§ 101-D(1)-(2) (2014). The examiner concluded that Giroux was competent, able 

to appreciate the wrongfulness of his conduct, and able “to engage in goal-directed, 

planful behavior at the times of the current allegations.” In his report, the 

examiner noted that

Mr. Giroux has been stealing things since he was a young teenager, 

and possibly even before that. . . . [I]t appears that these thefts have 

reflected a recurrent failure to resist impulses to steal objects that have 

been of no real use to him. . . . Mr. Giroux’s pattern of stealing is 

consistent with a DSM-IV diagnosis of Kleptomania.

[¶4] At a hearing held pursuant to M.R. Crim. P. 11, Giroux waived 

indictment, pleaded guilty to all of the new charges, and admitted to violating 
3

probation. The plea agreement that he accepted included a thirty-month cap on 

time to serve. Giroux’s counsel asked that the case be continued for sentencing, 

and requested a third evaluation so that he could further explore the impact of 

Giroux’s kleptomania on the court’s eventual sentence, saying:

[I]n the criminal responsibility [evaluation] there it was identified that 

kleptomania is a real diagnostic phenomenon, it is abnormal, but it 

does not rise to the level that it would negate the specific intent of the 

offenses here. We have reviewed that and the defendant has made 

that determination. . . . [W]e do want the opportunity to present that 

phenomenon to the Court at . . . sentencing . . . to determine if it 

would mitigate [the sentence imposed].

The court granted both requests.

[¶5] The presentence examination report was filed on January 23, 2013. It, 

too, discussed Giroux’s diagnosis of kleptomania. On August 13, 2013, eight 

months after he pleaded guilty, Giroux moved to withdraw his pleas and his 

admission on the ground that the discussion of kleptomania in the third report 

constituted new evidence of a mental abnormality that would be admissible to raise 

a reasonable doubt as to his intent to commit the crimes charged.1 Following a 

hearing, the court denied Giroux’s motion, finding that “appropriate analysis of 

Maine statutes and decisions will not support the use of kleptomania as a defense 

to the crime of theft.”

 1

 Title 17-A M.R.S. § 38 (2014) provides: “Evidence of an abnormal condition of the mind may raise 

a reasonable doubt as to the existence of a required culpable state of mind.”
4

[¶6] At sentencing, the court entered judgment and sentenced Giroux to an 

aggregate of five years’ imprisonment, with all but two years suspended, and two 

years of probation. In addition, the court partially revoked Giroux’s earlier 

probation and imposed two years of the underlying sentence, to be served 

concurrently with the new sentence. Giroux appealed from the conviction and the 

revocation of his probation. We granted Giroux a certificate of probable cause to 

proceed with the appeal from the revocation of probation and consolidated the two 

appeals.

II. DISCUSSION

[¶7] Whether to grant a request to withdraw a plea is within the sound 

discretion of the trial court:

In general, a defendant does not have an absolute right to withdraw a 

guilty plea, and we review a court’s decision to deny a motion to 

withdraw a plea for an abuse of discretion. We do so primarily by 

addressing four factors: (1) the length of time between entering the 

plea and seeking to withdraw it; (2) the potential prejudice to the 

State; (3) the defendant’s assertions of innocence; and (4) any 

deficiency in the proceeding at which the defendant entered the plea 

in accordance with M.R. Crim. P. 11.

State v. Newbert, 2007 ME 110, ¶ 16, 928 A.2d 769 (alterations, citation, and 

quotation marks omitted).

[¶8] Considering the first factor, eight months elapsed between the Rule 11 

hearing and Giroux’s motion to withdraw his pleas, weighing against Giroux’s 
5

position.2 Concerning the second, the State did not point to any prejudice that it 

would suffer by the delay, weighing in Giroux’s favor. Addressing the fourth 

factor, Giroux did not, and does not, allege that there was any defect in the Rule 11 

proceeding. On balance, Giroux falls well short of demonstrating an abuse of 

discretion in the court’s decision unless the third factor—his assertion of 

innocence—weighs decisively in his favor.

[¶9] In analyzing that factor, Giroux admits that he committed the acts 

charged. He asserts that he is innocent of criminal conduct, however, because his 

kleptomania prevented him from acting with the requisite intent.3 See 17-A M.R.S. 

§ 38 (“Evidence of an abnormal condition of the mind may raise a reasonable 

doubt as to the existence of a required culpable state of mind.”); State v. Estes, 

418 A.2d 1108, 1117 (Me. 1980) (“Evidence of abnormal condition of [the] 

mind . . . if it creates a reasonable doubt as to the existence of the requisite 

culpable state of mind will result in an acquittal. . . . [It] raises the question 

 2

 In State v. Newbert, we noted that a three-month delay weighed against the defendant. 

2007 ME 110, ¶ 16, 928 A.2d 769.

3

 The crime of burglary is not committed unless a defendant “enters or surreptitiously remains in a 

structure knowing that that person is not licensed or privileged to do so, with the intent to commit a crime 

therein,” 17-A M.R.S. § 401(1)(A) (2014), and conviction of theft by unauthorized taking requires that a 

defendant “obtain[] or exercise[] unauthorized control over the property of another with intent to deprive 

the other person of the property,” 17-A M.R.S. § 353(1)(A) (2014).
6

whether the State has proven beyond a reasonable doubt that the defendant 

committed a crime at all.”).4

[¶10] Giroux’s argument fails because positive legislative action and our 

precedent make clear that a person may have the required intent to commit a crime 

even if he suffers from a compulsion to perform the prohibited act. Additionally, 

Giroux knew of his diagnosis before he entered his pleas, weakening his assertion 

that the third mental evaluation report constituted new information that would have 

changed his decision to plead guilty.

A. Precedent

[¶11] In 1979, we said that

[i]nability to control one’s actions does not negate the existence of a 

culpable mental state; rather, it serves as an excuse. . . . A person may 

act knowing that it is practically certain that his conduct will cause a 

forbidden result while lacking the capacity to refrain from causing the 

result or without appreciating its wrongfulness.

State v. Ellingwood, 409 A.2d 641, 646 (Me. 1979) (citation omitted).

 4

 In State v. Estes, we explained that 

[t]he Criminal Code does not undertake to define “abnormal condition of [the] mind” 

because the phrase is one of common usage and understanding. . . . [T]he question is not 

the precise nature of the abnormality but whether the abnormality, whatever its character, 

raises a reasonable doubt as to whether the defendant possessed the requisite culpable 

state of mind for the particular offense charged.

418 A.2d 1108, 1117 (Me. 1980) (citation omitted). For purposes of this appeal, we assume, without 

deciding, that kleptomania is an “abnormal condition of the mind.”
7

[¶12] Two years later, in considering whether evidence of drug withdrawal 

could constitute an abnormal condition of the mind that might raise an issue as to a 

defendant’s intent, we held that

an addict in [the defendant’s] state suffers from a “compulsion” to 

obtain drugs. Existence of a compulsion, or a compelling need, does 

not tend to negate a conscious purpose to cause certain results. Nor 

does evidence of a compelling need tend to show that a defendant 

lacked conscious awareness of the attendant circumstances of his 

actions. In fact, evidence of a compelling need tends to confirm the 

conclusion that defendant acted with awareness and with the 

conscious object of fulfilling that need.

State v. Mishne, 427 A.2d 450, 455 (Me. 1981) (emphasis added) (citation 

omitted).

[¶13] In State v. Abbott, we again addressed the impact of a compulsion on 

a required mens rea in reviewing a murder case where a forensic psychiatrist 

testified that the defendant had suffered a psychotic episode that made him feel 

compelled to shoot his sons. 622 A.2d 723, 724 (Me. 1993). We held that

the expert psychiatric testimony presented by defendant was directed 

to the issue of criminal responsibility and did not generate an issue 

whether an abnormal mental condition bore on the culpable state of 

mind. Testimony that defendant felt compelled to shoot his sons does 

not bear on the determination whether defendant had the requisite 

mental state. Compulsion “does not tend to negate a conscious 

purpose to cause the result nor show that defendant lacked conscious 

awareness of the circumstances of his actions.”

Id. at 725 (citing Mishne, 427 A.2d at 455).
8

[¶14] In light of our jurisprudence, the court correctly found that evidence 

of kleptomania could not raise a reasonable doubt as to Giroux’s intent to commit 

burglary and theft.

B. Legislative Action

[¶15] As we noted in Abbott, Giroux’s argument that he was compelled to 

commit criminal acts would be properly considered in the context of an insanity 

plea pursuant to 17-A M.R.S. § 39 (2014), which he did not enter.5 622 A.2d at 

725. Even if he had, his argument would have carried weight only before 1986, 

when the statute provided that a defendant could establish that he was not 

criminally responsible by satisfying either of two tests: (1) a cognitive test, if the 

defendant “lacked substantial capacity to appreciate the wrongfulness of his 

conduct”; or (2) a volitional test, if the defendant “lacked substantial capacity to 

conform his conduct to the requirements of the law.” 17-A M.R.S.A. § 39 (1983). 

Giroux’s assertion that because of kleptomania he was unable to stop stealing goes 

directly to the volitional test.

[¶16] The volitional test was repealed in 1986, however, reflecting a 

conscious decision by the Legislature to reject the defense that Giroux advances.

P.L. 1985, ch. 796, § 5 (effective July 16, 1986). The statement of fact 

 5

 Title 17-A M.R.S. § 39(1) (2014) provides: “A defendant is not criminally responsible by reason of 

insanity if, at the time of the criminal conduct, as a result of mental disease or defect, the defendant lacked 

substantial capacity to appreciate the wrongfulness of the criminal conduct.”
9

accompanying the repeal states the Legislature’s intent explicitly: “The bill 

eliminates the volitional element of the insanity defense. . . . The elimination of 

this ‘inability to control test’ from the insanity defense will leave only the 

cognitive test.” L.D. 2397, Statement of Fact (112th Legis. 1986). The 

Legislature’s explicit rejection of what one senator referred to during floor debate 

as “the devil made me do it defense,” 2 Legis. Rec. 1431 (1986), compels a 

conclusion that the trial court did not abuse its discretion in denying Giroux’s 

motion to withdraw his pleas, which relied on precisely that defense.

C. Giroux’s Knowledge of the Kleptomania Diagnosis

[¶17] Finally, Giroux knew that he suffered from a compulsion to steal and 

that he had been diagnosed with kleptomania well before he entered his pleas. The 

competency evaluation goes into great detail regarding his long-standing 

compulsion to steal. The criminal responsibility evaluation repeated and expanded 

on that discussion; made reference to a 2007 psychiatric discharge summary 

reporting that “[Giroux] was agreeable to a trial of [a medication] as this has some 

efficacy to treat Kleptomania”; and made a diagnosis: “Mr. Giroux’s pattern of 

stealing is consistent with a DSM-IV diagnosis of Kleptomania.” Furthermore, at 

the Rule 11 hearing Giroux’s counsel referred to the kleptomania diagnosis and 

told the court that “it does not rise to the level that it would negate the specific 

intent of the offenses here.”
10

[¶18] The presentence report, resulting from the third mental evaluation 

conducted, does not add significant substance to those earlier discussions. Rather,

it summarizes them in an unsurprising conclusion: “Mr. Giroux’s lifelong pattern 

of stealing, including his thefts at the times of the index offenses, appears to be the 

direct result of his Kleptomania and his personality disorder.” Because at the time 

he pleaded guilty Giroux was already well aware of his compulsion—for example, 

he reported handcuffing himself to avoid stealing and reported contemplating using 

a Taser on himself to combat the urge to steal—the kleptomania diagnosis did not 

require the trial court to grant Giroux a discretionary withdrawal of his pleas.

The entry is:

Judgment affirmed.

On the briefs:

Ronald W. Bourget, Esq., Law Offices of Ronald W. Bourget, 

Augusta, for appellant Collin R. Giroux

Maeghan Maloney, District Attorney, and Fernand LaRochelle, Dep.

Dist. Atty., Kennebec County District Attorney, Augusta, for 

appellee State of Maine

At oral argument:

Ronald W. Bourget, Esq., for appellant Collin R. Giroux

Paul F. Cavanaugh II, Asst. Dist. Atty., Kennebec County District 

Attorney, Augusta, for appellee State of Maine

Kennebec County Superior Court docket numbers CR-08-480, 12-534, 12-942

FOR CLERK REFERENCE ONLY