Diana's attorney appeals sentence in murder conviction
Rockland — The defense attorney for Arnold Diana has appealed the convicted killer's sentence to the Maine Supreme Judicial Court.
Attorney Christopher K. MacLean of Camden argues the judge, when determining the length of the sentence, should not have taken into consideration that the victim's child was present around the time of the murder.
The judge also should not have increased the sentence due to the manner in which the woman was murdered, he said.
MacLean filed the appeal on behalf of Diana on Nov. 2.
Diana was convicted Oct. 12 in Knox County Superior Court to serve 45 years in prison for the November 2010 murder of Katrina Windred, 47, in Rockland.
MacLean argues the sentence should be closer to 25 years.
During the early evening of Nov. 20, 2010, Windred drove to Diana’s apartment building, the Thorndike Apartments, with her 11-year-old son. She entered the building and went to Diana’s apartment while her son remained outside in the car.
A sudden dispute flared up between Diana and Windred, and she died by strangulation during a brief altercation, said the affidavit.
Diana then placed Windred’s body in bed, and covered her with blankets.
He then brought Windred’s son to the apartment, explained that his mother had taken a nap and asked Diana to watch the son.
After the boy went to sleep that night, Diana removed Windred's body from the apartment.
When the son woke up in the morning, Diana said Windred had gone out with friends during the night, and was not back yet. Diana took the boy out to breakfast and arranged to return him to the boy’s father.
During the sentencing part of the trial, Superior Court Justice Jeffrey Hjelm set the basic period of incarceration at 40 years, according to the affidavit. Hjelm relied on a 2010 case, State v. Waterman, in which the earlier court considered as part of its basic sentence analysis that the defendant placed his three children in danger by having them in his car at the time of the shooting.
Exposing children to violence or murder exposes a risk of physical harm, and witnessing horrific violence can create devastating emotional harm in children, the 2010 court said.
In the Diana case, however, the child was not close to the murder scene at the time of the murder. The child was not exposed to any risk of physical harm and did not witness any violent crime, MacLean wrote in the appeal.
“For these reasons, it was inappropriate for the court to significantly enhance the basic sentence in reliance of State v. Waterman,” MacLean said.
The defense attorney also said the court enhanced the basic sentence after finding that strangulation as a manner of death is “intensely personal.”
"Diana argues that strangulation is not, in and of itself, a fact that should serve to enhance the basic sentence," MacLean said.
Strangulation suggests a crime of passion, without premeditation, according to the appeal.
MacLean said murder by manual strangulation during a very brief dispute and altercation, out of the presence of any other witnesses, and without any apparent premeditation, and without the use of weapons, should fall close to a minimum sentence of 25 years, and not the 40 years as found by the superior court.
“In determining the maximum period of incarceration, which the court determined to be 45 years, the court relied on Mr. Diana’s bringing the son to the crime scene (although the son only learned it was a crime scene a week or more after the fact) as a significant aggravating factor,” MacLean said in his appeal.
Whether it was appropriate for Hjelm’s court to rely on a Waterman enhancement as part of the basic period of incarceration, his court made a mistake by counting the same factor during the analysis of the maximum period of incarceration, MacLean said.
“In essence, relying on the presence of the child at the crime scene in both the first and second phases of the sentencing analysis improperly caused the sentence to be enhanced twice for the same reason,” MacLean said.
Courier Publications reporter George Chappell can be reached by phone at 207-594-4401, ext. 117, or by email at firstname.lastname@example.org.