Argued: May 11, 2017
F. Hess, Esq. (orally), The Law Office of Scott F. Hess, LLC,
Augusta, for appellant Wade R. Hoover
Maeghan Maloney, District Attorney, and Paul Cavanaugh II,
Dep. Dist. Atty. (orally), Prosecutorial District IV,
Augusta, for appellee State of Maine
SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and
Wade R. Hoover appeals from sentences totaling sixty years
imposed by the trial court (Kennebec County, Murphy,
J.) following his guilty plea to four counts of gross
sexual assault (Class A), 17-AM.R.S. § 253(1)(C) (2016),
in cases from Somerset County and Kennebec County that were
consolidated for sentencing.
In this appeal, although the consecutive sentences imposed on
Hoover totaled less than the maximum sentence that could have
been imposed on any one of the four counts to which he
pleaded guilty,  Hoover contends that (1) the court erred
by imposing a sentence that is disproportionate to the
offenses charged, and (2) the court was required to find
specific aggravating circumstances before imposing what
Hoover claims is a de facto life sentence. We affirm the
This is Hoover's second appeal arising out of the events
that led to these charges. In his first appeal, Hoover
unsuccessfully challenged the maintenance of this prosecution
following his plea and sentencing in federal court on charges
of sexual exploitation of a child and possession of child
pornography that arose from his creating still and video
images of the sexual violence that led to the State's
gross sexual assault charges. State v. Hoover [Hoover
I], 2015 ME 109, 121 A.3d 1281.
In October 2012, agents of the U.S. Department of Homeland
Security and the Maine State Police discovered hundreds of
images and videos of sexual assaults of a child on
Hoover's computer after receiving a tip and conducting a
consented-to search. Id. ¶ 3. Hoover admitted
his involvement and was immediately taken into custody.
Id. The State charged him with possession of
sexually explicit material (Class C), 17-A M.R.S. §
284(1) (C) (2016). Id. Hoover remained in State
custody until December 2012, when he was arrested on a
federal warrant and taken into federal custody. Id.
On February 5, 2013, Hoover waived federal indictment and
pleaded guilty to sexual exploitation of a child, 18 U.S.C.S.
§ 2251(a), (e) (LEXIS through Pub. L. No. 115-42), and
possession of child pornography, 18 U.S.C.S. §
2252A(a)(5)(B) (LEXIS through Pub. L. No. 115-42).
Id. ¶ 6. In July 2013, the United States
District Court for the District of Maine (J. Woodcock,
J.) held a sentencing hearing. Id. ¶ 8. In
the federal proceeding, as in this proceeding, Hoover
contested the prosecution's claims that he had drugged
his victims to render them unconscious and that he had
penetrated his victims anally. In the findings supporting
sentencing, both the United States District Court and the
Superior Court found that Hoover had drugged and anally
penetrated his victims.
At its July 2013 sentencing hearing, the federal court made
the following sentencing guidelines calculations: "As to
one of the victims (Male Minor Child 'A'), the base
offense level was 32, pursuant to U.S.S.G. § 2G2.1(a),
to which level the following were added: four levels because
the victim was younger than twelve years, pursuant to
U.S.S.G. § 2G2.1(b)(1)(A); two levels because [Hoover]
subjected the victim to anal sex, pursuant to U.S.S.G. §
2G2.1 (b)(2)(A); four levels because [Hoover] produced videos
in which he anally penetrated the victim with his penis,
pursuant to U.S.S.G. § 2G2.1 (b)(4); and two levels
because the minor victim spent the night at [Hoover's]
house and elsewhere and was in his care and custody, pursuant
to U.S.S.G. § 2G2.1(b)(5). The resulting adjusted
offense level was 44." See Hoover v. United
States, 2016 U.S. Dist. LEXIS 176564, at *5-6 (Dec. 21,
2016), accepted, 2017 U.S. Dist. LEXIS 6554 (Jan.
"As to the other victim (Male Minor Child 'B'),
the calculations were the same, but the four-level
enhancement for the victim, pursuant to U.S.S.G. §
2G2.1(b)(4), was based on the Court's finding that
[Hoover] penetrated the victim anally with [his] penis and
fingers, and with two unidentified objects. The resulting
adjusted offense level was 44." Id.
In setting the length of Hoover's sentence, the federal
court noted that the applicable guideline range for
Hoover's conduct was life imprisonment, but the
statutorily authorized maximum was 480 months, or forty
years. After considering Hoover's sexual assaults of the
young victims as an aggravating factor, the court sentenced
Hoover to 360 months in prison on the exploitation charge and
120 months in prison on the possession charge, to be served
consecutively, as well as a lifetime of supervised release.
Hoover I, 2015 ME 109, ¶ 8, 121 A.3d 1281.
Hoover is expected to be released from federal custody in
2047, at the age of sixty-nine.
After his February 2013 guilty pleas to the federal charges,
Hoover was indicted by the State on thirteen counts of gross
sexual assault upon a child under the age of twelve, 17-A
M.R.S. § 253(1)(C), arising from the sexual violence
depicted in the images and videos discovered on his computer.
Hoover I, 2015 ME 109, ¶ 7, 121 A.3d 1281. The
Somerset County grand jury indicted Hoover on one count of
gross sexual assault. The Kennebec County grand jury indicted
him on twelve additional counts of gross sexual assault
involving a different victim.
In February 2014, Hoover moved to dismiss the State's
indictments, arguing that the State's prosecution
subjected him to double jeopardy in violation of both the
federal and state constitutions. Id. ¶ 9. The
motion was denied, and Hoover appealed. Id. We
affirmed the motion court's order concluding that there
was no evidence supporting the Bartkus exception to
the dual sovereignty doctrine,  and that double jeopardy
principles did not bar the State's prosecution,
regardless of any potential for duplicative
punishment. Id. ¶ 19. In a footnote, we
stated that "if Hoover is eventually convicted of the
gross sexual assault charges, the trial court could consider,
as a basis for a downward departure in the resulting
sentence, that the sexually assaultive conduct underlying the
offenses has previously been taken into account in sentencing
for a different offense." Id. ¶ 15 n.2.
After withdrawing several pending motions, on November 30,
2015, Hoover pleaded guilty to the one count of gross sexual
assault in the Somerset County case and to counts one, six,
and twelve in the Kennebec County case. The court
[Murphy, /.) conducted an inquiry pursuant to M.R.U.
Crim. P. 11(b). The State provided the court with the
following factual bases for the charges. See M.R.U.
Crim. P. 11(b)(3), (e).
On October 3, 2012, federal and state law enforcement agents
conducting a child pornography investigation discovered
hundreds of images and videos of sexual assaults of a child
on Hoover's computer after a consented-to search. Some of
the images and videos seized from Hoover appeared to be
"homemade." Hoover admitted that he made the videos
and that he "messed with" or "fooled around
with" the victims, but he denied drugging or penetrating
them. The victims appeared to be unconscious in the videos,
and they have no memory of the sexual assaults. The videos
showed sexual acts committed by Hoover against the victims
and appeared to show penetration. Hoover was the Somerset
County victim's karate teacher. In April 2012, he took
the Somerset County victim, then eleven years old, to a cabin
where he sexually assaulted the boy as shown in the video.
Hoover assaulted the Kennebec County victim in December 2008
when the victim was ten years old and again in July 2009 and
February 2010 when the victim was eleven years
The court accepted the open plea and continued the matter for
sentencing. Before the sentencing hearing, Hoover filed a
motion objecting to the State's request that the court
review certain images and videos of the assaults that were
contained on a thumb drive. The court denied Hoover's
motion and viewed the images in camera. The parties disagreed
on whether the images and videos ...