‘Tina’s Law’ mandatory minimum sentence declared “unconstitutional” for local man

FARMINGTON – A Superior Court justice has ruled that a two-year minimum prison sentence is unconstitutionally harsh for a Norridgewock man who was convicted of operating a vehicle with a revoked driving license.

The ruling was made by Justice Michaela Murphy, who then sentenced Gerald Gilman, 61, to 90 days in the Franklin County Jail.

Justice Murphy’s decision represents the first successful constitutional challenge to the much harsher jail sentences spelled out by LD 1906 “Act To Safeguard Maine’s Highways.” This statue, passed by the state Legislature in 2006, is better known as “Tina’s Law.”

The state has said it intends to appeal the judge’s decision.

Mr. Gilman was originally pulled over while driving home the Farmington Elks Lodge in April 2007. He had been at the Elk’s Lodge to voluntarily repair some broken equipment, and after it was discovered that his license had been previously revoked, police placed Gilman under arrest. Gilman had an extensive record of driving-related offenses with four operating while under the influence convictions, the latest occurring in 2005, three operating after suspension convictions, most recently in 1978, a driving to endanger conviction in 2000 and an operating after revocation conviction in 2006.

After a jury-waived trial in the Franklin County Superior Court and after ruling on several other legal motions, Justice Murphy found Gilman guilty of the habitual offender case. Because of his three prior OUI convictions, that put him in line for a minimum mandatory prison sentence of two years under the new sentencing provisions of “Tina’s Law.”

Named for a woman who was killed by a habitual offender on the Maine Turnpike in July 2005, Tina’s Law added minimum sentences varying from six months to five years for certain habitual offenders.

In hearings and motions heard before, during and after Gilman’s conviction his attorney, Walter Hanstein, argued that a two-year sentence was “constitutionally disproportionate” to the crime that had been committed. Specifically, the defense argued, the prison sentence would be particularly harsh for someone like Gilman, rising to a level beyond which was acceptable for someone who had driven with a revoked license.

Gilman, witnesses testified, suffered from Post-Traumatic Stress Disorder, or PTSD, following his service as a Marine in Vietnam during the Tet Offensive of 1968. Gilman’s psychiatrist at Togus Veteran’s Administration Center, as well as treatment records, documented decades of psychological problems and also the good progress he had been making over the past several years.

At one point, Murphy wrote in her decision, Gilman told his psychiatrist “I have kept all this stuff in drums in the back of my head and I think they are leaking.”

The psychiatrist, deeply concerned that Gilman was a suicide risk, considered hospitalizing him involuntarily and only relented when Gilman agreed to get treatment. While the psychiatrist saw some positive signs, such as Gilman’s decision to stop drinking in 2006, he testified he thought prison could potentially be deadly to his patient.

“[He] expressed grave concern about Mr. Gilman’s ability to remain psychologically healthy,” Murphy wrote , “and to survive a two-year prison sentence.”

Quoting Article I, Section 9 of the Maine Constitution, Murphy wrote that: “Sanguinary laws shall not be passed; all penalties and punishments shall be proportional to the offense; excessive bail shall not be required, nor excessive fines imposed, nor cruel or unusual punishment inflicted.”

“The court concludes,” Murphy wrote in summary, “after consideration of the characteristics of Mr. Gilman, as well as the manner in which this sentence would be carried out, that imposition of a two-year mandatory minimum sentence would be greatly disproportionate to the offense and also concludes that it would offend the prevailing notions of decency.”

Today in Franklin County Superior Court, Murphy sentenced Gilman to 90 days in jail, with two years of probation to follow. Gilman will also need to complete 500 hours of community service and pay the minimum fine of $1,000.

After the sentencing, Assistant District Attorney Andrew Robinson then filed an oral 35-A motion, to correct an illegal sentence. Murphy denied that motion immediately, and Robinson noted that the state did intend to appeal that denial. Hanstein then said that he intended to file a cross-appeal on several motions previously denied by Murphy earlier in the year.

Those appeals would potentially be heard by the State of Maine’s Law Court, possibly next year.

The impact of Murphy’s decision, which is the first of its kind in the state, was felt almost immediately. Three other Tina’s Law cases on the docket were set for special sentencing hearings on Jan. 23.

Editor’s note: Gilman’s attorney, Walter Hanstein, is related to the author.