AUBURN — A judge shaved two years off the sentence of a Lewiston man convicted of drug trafficking Friday following a rare ruling by the state’s highest court.

David Tyree Brown, 30, of Lewiston was convicted on four counts of aggravated drug trafficking after a three-day trial in 2017.

He was sentenced to serve eight years of a 10-year sentence in prison for those felonies, which were elevated because the jury believed the drug transaction was conducted within 1,000 feet of Longley Elementary School on Birch Street.

Brown later appealed his sentence to the Maine Supreme Judicial Court.

Writing for the high court in its March 14 decision, Justice Joseph Jabar said, “The state did not present evidence from which a jury could rationally conclude beyond a reasonable doubt that Brown trafficked within 1,000 feet of a school.”

David Brown, right, listens to his attorney, Jim Howaniec, in Androscoggin County Superior Court in Auburn on Friday.  Sun Journal photo by Daryn Slover

That factor had elevated the four counts of trafficking in scheduled drugs to four counts of aggravated trafficking, each count punishable by up to 30 years in prison rather than 10 years in prison for the lesser crime of unlawful trafficking.

The high court overturned the trial court’s sentence and sent the case back to Androscoggin County Superior Court for Brown to be sentenced on the lesser crimes.

On Friday, Active-Retired Justice Thomas E. Delahanty II set Brown’s new sentence at eight years, with two years suspended, meaning he must serve six years.

After his release from prison, Brown will be on probation for three years instead of four, Delahanty said.

Delahanty explained the reasoning behind his decision.

He said he would be “fully justified in imposing the same sentence as I did before.” Other than the measurement from the school to the home in which Brown was dealing drugs, “nothing has changed” with the case, Delahanty said. But on Friday, he considered the “totality of circumstances” in the case, he said, including Brown’s compliance with prison protocols and availing himself of voluntary prison programs that has “established a good track record.”

At the time Delahanty imposed Brown’s original sentence, there existed few mitigating circumstances that would have lowered his sentence and several aggravating circumstances that actually increased his sentence, Delahanty said.

In arriving at Brown’s original sentence, Delahanty said he considered the proximity of Brown’s drug dealing to the school to be “not a significant” factor. Delahanty said he had already taken into account that Brown hadn’t been selling drugs to any students or faculty members and hadn’t made any of the transactions during school hours.

The sentence Delahanty had imposed on Brown after trial already fell within the guidelines for the crimes, he judge said.

Assistant Attorney General Johanna Gauvreau addresses the court during the re-sentencing of David Brown, right, in Androscoggin County Superior Court in Auburn on Friday. Next to Brown is his attorney, Jim Howaniec. Sun Journal photo by Daryn Slover

Assistant Attorney General Johanna Gauvreau argued Friday that Brown should receive the same sentence handed down after his trial, with only the length of his probation shortened. She said the judge shouldn’t consider any positive efforts Brown has made since his original sentencing in determining what his new sentence should be.

By contrast, defense attorney James Howaniec argued in a written brief that Brown’s “progress” during incarceration, including his completion of two prison programs and his application for programs aimed at substance-abuse counseling and education in family violence should be considered by the judge. Howaniec also argued that Delahanty’s new sentence on trafficking charges should reflect the length of sentences of other Class B trafficking convictions in Maine that range from zero to three years behind bars.

Brown told the judge he is seeking a lower-risk prisoner classification in an effort to access job training and work opportunities that would enable him to earn an income to help support his “handful” of children and afford housing and transportation once he’s released from prison.

“I’m asking you to help me help myself,” he said. He asked the judge for an adjusted prison sentence of four years or less.

“I’m politely asking that you take into consideration my goals for me and my kids’ future,” Brown said.

Gauvreau told the judge Brown had six children in Pennsylvania and four in Maine at the time he was sentenced in December 2017 for whom he was not paying child support.

Delahanty called it a “rather unique circumstance” when a judge is in a position to impose sentencing a second time for charges from the same case. Usually, he said, it’s due to a second conviction after a new trial has been ordered.

Brown lived on the second floor of an apartment building on Walnut Street at the time he was charged. Drug agents had used a confidential informant to make crack cocaine buys from Brown, whose home was in the area of the school on Birch Street.

According to an affidavit by a federal Drug Enforcement Agency task force agent, three controlled buys of crack cocaine were made using confidential informants between Dec. 23, 2016, and Feb. 10, 2017. The sources returned from his building each time with powder that later tested positive for the presence of crack cocaine.

David Brown, center, waits for his re-sentencing proceeding to begin in Androscoggin County Superior Court in Auburn on Friday. Sun Journal photo by Daryn Slover

The fourth count stems from 27 grams of crack cocaine recovered by drug agents in Brown’s bedroom when they executed a search warrant at his home after the controlled purchases.

The chief justice of the state’s highest court pointed out in her concurring opinion in March that the law elevating a drug-trafficking charge to the most serious level of crime in Maine — other than murder — due to proximity to a school may have consequences unintended by state lawmakers.

“To be clear, the Legislature’s adoption of a statute designed to keep school children from obtaining drugs, witnessing the sale of drugs, or being exposed to the violence that could arise during a drug transaction is laudable,” Chief Justice Leigh Saufley wrote. “Protecting our children from exposure to this pernicious activity and the presence of a culture that includes violence, misery, and death is a critically important legislative goal.”

She wrote that, “The statute put in place to effectuate such goals, however, misses its mark. (This case) is a perfect example of the unintended consequences of this blunt instrument. The drug sales at issue occurred in a private dwelling, outside the view of any children, youth, or participants in school activities. The transactions had no connection to the school.”

Moreover, Saufley wrote that population density could further worsen the unintended consequences of the lawmakers. “The result could include a disparate racial or poverty-based impact that was unintended by the drafters.”

 

Androscoggin County Superior Court Justice Thomas E. Delahanty II presides over the re-sentencing of David Brown in Androscoggin County Superior Court in Auburn on Friday. Sun Journal photo by Daryn Slover

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