Argued: October 11, 2017
A. McNamara, Esq. (orally), Drake Law, LLC, Berwick, for
appellant Andrew B. Bean.
S. Robinson, District Attorney, and Joseph M. O'Connor,
Asst. Dist. Atty. (orally), Office of the District Attorney,
South Paris, for appellee State of Maine.
SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and
Majority: SAUFLEY, C.J., and MEAD, GORMAN, JABAR, HJELM, and
Andrew B. Bean applied for leave to appeal from a sentence
entered in the Unified Criminal Docket (Oxford County,
Clifford, J.) following his guilty plea, entered
upon an agreement that his sentence would not exceed an
agreed upon "cap." The Sentence Review Panel
granted his application for sentence review. Bean contends
that, notwithstanding the cap agreement with the State,
through which he pleaded guilty to two counts of aggravated
criminal operating under the influence (Class B), 29-A M.R.S.
§ 2411(l-A)(D)(2) (2017), and possession of a firearm by
a prohibited person (Class C), 15 M.R.S. § 393(1)(A-1)
(2017), the sentencing court was required to explain its
selection of the basic, maximum, and final periods of
incarceration. See 17-A M.R.S. § 1252-C (2017);
M.R.U. Crim. P. 32(a)(3). The State argues that any error in
the court's articulation of the sentence was harmless. We
agree that the error was harmless, and we affirm the
When Bean appeared in court on November 29, 2016, he pleaded
guilty to what would become his tenth and eleventh
convictions for operating under the influence. He entered
those guilty pleas with the advice of counsel and pursuant to
an agreement that the State would dismiss certain other
charges against him and would recommend concurrent sentences
of ten years in prison, with all but five years suspended and
three years of probation, for the aggravated OUI convictions.
If the court rejected the State's recommendation as too
low, Bean would be allowed to withdraw his pleas.
See M.R.U. Crim. P. HA(d)-(e). With the State's
agreement, Bean also reserved the right to argue that the
court should exercise its discretion to sentence him to less
time in prison. The court declined Bean's request for
a lower sentence and accepted the recommendation of the
State. Arguing that the court did not sufficiently articulate
its reasons for accepting the State's recommendation, and
that the court failed to separately state basic, maximum, and
suspended portions of each sentence pursuant to 17-A M.R.S.
§ 1252-C, Bean seeks a remand for a new sentencing.
The details are these, taken from the record and the
transcript of the sentencing. On November 21, 2015, Maine
game wardens arrested Bean after he drove his truck to a
hunting camp where the game wardens were present to monitor a
dispute. Bean was "very obviously intoxicated." The
wardens conducted a series of field sobriety tests, which
Bean failed. Bean then submitted to a blood alcohol test
using an Intoxilyzer, and he registered a 0.21 blood alcohol
content. Beside him in the passenger compartment of his truck
was a rifle, which Bean was prohibited from possessing
because of his criminal history.
Very shortly thereafter, on December 17, 2015, Bean was
charged by indictment with possession of a firearm by a
prohibited person (Class C), 15 M.R.S. § 393(1)(A-1),
criminal OUI (Class C), 29-A M.R.S. § 2411(1-A)(B)(2),
and fraudulently obtaining a license or permit (Class E), 12
M.R.S. § 10757 (2017).
On December 20, 2015-three days after his indictment for the
first arrest and only one month after that arrest-Bean was
arrested again. This time, a Paris police officer observed
Bean driving well under the speed limit and weaving back and
forth over the road. When the police officer pulled him over,
Bean stated, "I'm caught, I confess, I'm drunk,
just take me to jail." He submitted to an Intoxilyzer
test and registered a 0.29 blood alcohol content. Bean was
later charged by indictment with criminal OUI (Class C), 29-A
M.R.S. §2411(1-A)(B)(2), attaching false plates (Class
E), 29-A M.R.S. §2104(1) (2017), and violating a
condition of release (Class E), 15 M.R.S. § 1092(1)(A)
A year after the first of the two stops, on November 29,
2016, Bean entered his pleas of guilty. He was represented by
counsel. The court held a Rule 11 hearing on both indictments
to determine whether to accept the plea agreement that Bean
had reached with the State. See M.R.U. Crim. P. 11.
Pursuant to the agreement between Bean and the State, the
State would dismiss the charges of fraudulently obtaining a
license or permit, attaching false plates, and violating a
condition of release. It would also dismiss the two charges
of Class C criminal OUI and charge Bean by information with
two counts of aggravated OUI (Class B), 29-AM.R.S. §
2411(1-A)(D)(2). Thus, conditioned upon the court's
acceptance of the agreement, Bean entered a plea of guilty to
two counts of aggravated OUI (Class B) and one count of
possession of a firearm by a prohibited person (Class C).
Bean waived all rights related to trial, including his right
to appeal from the convictions. After accepting Bean's
guilty pleas, the court proceeded immediately to the
The State made the following recommendation to the court:
THE COURT: [I]s the State recommending a cap on this case?
THE STATE: Yes we are, Your Honor. On the two OUI counts, we
are recommending sentences of ten years, all suspended but
five years; there are minimum fines of I believe $2, 100
each, as well as a six-year license suspension.
rationale for this recommendation, the State pointed to
Bean's high blood alcohol content and the proximity in
time between the two arrests. The State also emphasized
Bean's extensive history of operating under the
influence, including his nine prior convictions for operating
under the influence and five convictions for operating after
suspension. The State contended that a more lenient sentence
would fail to meet the statutory sentencing objective of
restraining convicted persons in the interest of public
safety. See 17-A M.R.S. §1151(1) (2017).
Bean's counsel then argued for a sentence of five years
of imprisonment, with all but twenty-one months suspended,
and two years of probation. In so doing, he emphasized
Bean's cooperation with the arresting officers and the
fact that Bean had not harmed anyone in either incident.
The court accepted the State's recommendation regarding
the sentences for the OUI convictions and declined to accept
Bean's request for the more favorable sentence. It
sentenced Bean to ten years' imprisonment, all but five
years suspended, with three years of probation for each count
of aggravated OUI, to be served concurrently with one
another. In addition, the court sentenced Bean to twenty-one
months' imprisonment for the possession of a firearm by a
prohibited person, also to be served concurrently with the
In announcing the sentence, the court expressly acknowledged
the legislatively established goals of sentencing, noting
that "the prevention of crime through the deterrent
effect of sentences, the rehabilitation of convicted persons,
and the restraint of convicted persons when required in the
interest of public safety, all apply to this case."
See 17-AM.R.S. §1151 (2017). The court also
stated, "To minimize correctional sentence experiences
which serve to promote further criminality also applies to
every ... substantial sentence that we're talking about.
And to give fair warning of the nature of the sentences that
may be imposed on the conviction of a crime, to encourage
differentiation among defendants with a view to [a just]
individual sentence." See id. The court did not
specifically articulate a basic and maximum period of
incarceration, see 17-A M.R.S. § 1252-C; nor
did the court describe its rationale for suspending a portion
of the sentences.
Bean timely applied for leave to appeal from his sentence,
and the Sentence Review Panel granted the application.
See M.R. App. P. 20(b) (Tower 2016);15 M.R.S. §
Bean contends that the sentencing court erred by failing to
conduct the sentencing procedure that the Legislature has
codified at 17-A M.R.S. § 1252-C, which was enacted
following our decision in State v. Hewey, 622 A.2d
1151, 1154-55 (Me. 1993). The State argues that any error in
the court's sentencing procedure was harmless. We address
each of these arguments in turn below. We also discuss the
availability of a discretionary appeal where, as here, a
defendant enters a plea pursuant to an agreement that the
State will recommend a particular sentence as a "cap,
" and the court imposes a sentence that does not exceed
the sentence recommended by the State. A. Plea Terminology
and Availability of Review
The availability of a sentence appeal differs depending on
the context of the sentencing. Because there are several
types of potential plea circumstances and agreements, because
the parties may each interpret a discussion or agreement
differently, and because the language used to describe the
context and any agreement will be critical to determining the
availability of an appeal from the sentence, we begin by
summarizing the availability of sentencing appeals in each of
the various circumstances in which a defendant enters a plea
When a defendant enters a plea of guilty without any
agreement or arrangement with the State as to the sentence
that the court will be asked to impose, we refer to that as
an "open" plea. See State v. Stevens, 2017
ME 30, ¶ 2 n.1, 156 A.3d 131. Both the State and the
defendant are free to present arguments on any aspect of the
sentence that could be imposed. In an open plea, the parties
may argue for, and the court may enter, any sentence
authorized by law. The court's authority to exercise its
full discretion within the law is identical to its sentencing
authority following a verdict of guilty after a trial.
Once the defendant has pleaded guilty in an open plea,
following a colloquy between the defendant and the court to
assure that the defendant understands the many rights that
are waived by entering the plea, see M.R.U. Crim. P.
11, the court may, within the limits of the law, impose
whatever sentence it determines to be justified and supported
by the facts of the case. When the plea is an open plea, the
defendant does not retain the right to withdraw the guilty
plea after sentencing in the event that he disagrees with the
Unless there has been a waiver of appeal, a defendant who
enters an open plea does retain the right to file an
application for review of any sentence longer than a year.
See 15 M.R.S. § 2151 (2017). The Sentence
Review Panel of the Supreme Judicial Court then has the
discretion to decide whether to grant that application and
allow an appeal to proceed. See id. § 2152. The
defendant also has the right to file a direct appeal of the
sentence when the constitutionality or legality of the
sentence can legitimately be challenged. See State v.
Hoover, 2017 ME 158, ¶¶ 18, 40, 169 A.3d 904.
As with a sentence imposed by the court following a trial,
the sentencing judge's full analysis of the factors
outlined in section 1252-C is at its most critical in the
context of an open plea. See State v. Prewara, 687
A.2d 951, 955 (Me. ...