December 8, 2015.
J. Smith, Esq., Libby O'Brien Kingsley & Champion, LLC,
Kennebunk, for appellant Dale M. Pinkham Sr.
T. Mills, Attorney General, and Jamie R. Guerrette, Asst.
Atty. Gen., Office of the Attorney General, Augusta, for
appellee State of Maine.
J. Smith, Esq., for appellant Dale M. Pinkham Sr.
Silver, Asst. Atty. Gen., Office of the Attorney General,
Augusta, for appellee State of Maine.
SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, and HJELM,
[¶1] Dale M. Pinkham Sr. appeals from a
judgment of conviction entered in the Unified Criminal Docket
(York County, Fritzsche, J. ) following his
convictions after conditional guilty pleas, and a bench trial
on aggravating factors only, on three counts of aggravated
trafficking in scheduled drugs (Class A), 17-A M.R.S. §
1105-A(1)(H) (Count I), (1)(B)(1) (Count II), (1)(C-1)(1)
(Count III) (2015);  and one count of possession of a
firearm by a prohibited person (Class C) (Count VII), 15
M.R.S. § 393(1)(A-1)(1) (2015).
[¶2] Pinkham contends that both 17-A M.R.S.
§ 1101(17)(E) (2015), which provides that one of the
ways in which a person may " traffick" in heroin is
" [t]o possess 2 grams or more of heroin," and 17-A
M.R.S. § 1105-A(1)(H), which elevates
trafficking in heroin from a Class B to a Class A offense,
require proof of specific weights of actual heroin, not
mixtures or compounds containing some amount of heroin. We
agree. Because the State did not prove the weight of the
actual heroin involved, we vacate the judgments of
conviction. Pursuant to the terms of Pinkham's
conditional guilty pleas, we remand to allow Pinkham to
withdraw his guilty pleas and for further proceedings.
See M.R.U. Crim. P. 11(a)(2).
[¶3] From the evidence admitted at trial,
the court could find the following facts. See
State v. Stanley, 2015 ME 56, ¶ 2, 115 A.3d
1236. On December 6, 2013, Maine Drug Enforcement Agency
agents executed a search warrant at Pinkham's residence.
They found 20.75 grams of a powder testing positive for
heroin, packaged in two " fingers" and five smaller
" tickets," as well as several firearms, including
a loaded .44 magnum revolver, and $3800 in cash. When agents
interviewed Pinkham that evening, he admitted that the heroin
was his and that he used some and regularly sold it as well.
He said that the guns belonged to his son.
[¶4] The York County Grand Jury indicted
Pinkham on seven criminal counts and four counts of criminal
forfeiture. Three of the criminal counts were
later dismissed by the State. The criminal charges remaining
for trial were the three counts of aggravated trafficking in
scheduled drugs (Counts I-III) and the charge of possession
of a firearm by a prohibited person (Count VII), as recited
A. The Conditional Guilty Pleas
[¶5] Pinkham entered conditional guilty
pleas to Counts I, II, and III absent their aggravating
factors, resulting in pleas to unlawful trafficking in
scheduled drugs (Class B), 17-A M.R.S. § 1103(1-A)(A)
(2015). Pinkham's conditional guilty pleas
were specifically limited to that part of the statutory
definition of " traffick" that includes "
possess[ion] [of] 2 grams or more of heroin," 17-A
M.R.S. § 1101(17)(E).
[¶6] When the court addressed Pinkham
concerning his intention to enter ...