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State v. Pinkham

Supreme Judicial Court of Maine

April 21, 2016

STATE OF MAINE
v.
DALE M. PINKHAM SR

         Argued December 8, 2015.

Page 204

          Tyler J. Smith, Esq., Libby O'Brien Kingsley & Champion, LLC, Kennebunk, for appellant Dale M. Pinkham Sr.

         Janet T. Mills, Attorney General, and Jamie R. Guerrette, Asst. Atty. Gen., Office of the Attorney General, Augusta, for appellee State of Maine.

         Tyler J. Smith, Esq., for appellant Dale M. Pinkham Sr.

         Raphaelle Silver, Asst. Atty. Gen., Office of the Attorney General, Augusta, for appellee State of Maine.

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

          OPINION

Page 205

          MEAD, J.

          [¶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); [1] 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),[2] 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).

         I. BACKGROUND

          [¶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.[3] 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 supra.

         

Page 206

          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).[4] 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 ...


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