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State v. Bean

Supreme Court of Maine

April 26, 2018


          Argued: October 11, 2017

          Rory A. McNamara, Esq. (orally), Drake Law, LLC, Berwick, for appellant Andrew B. Bean.

          Andrew 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.


          Majority: SAUFLEY, C.J., and MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.

          SAUFLEY, C.J.

         [¶1] 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 sentence.

         I. BACKGROUND

         [¶2] 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.[1] 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.

         [¶3] 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.

         [¶4] 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).

         [¶5] 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) (2017).

         [¶6] 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 sentencing hearing.

         [¶7] 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.

         As a 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).

         [¶8] 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.

         [¶9] 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 other sentences.[2]

         [¶10] 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.

         [¶11] 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);[3]15 M.R.S. § 2152 (2017).


         [¶12] 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

         [¶13] 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 of guilty.[4]

         1. Open Plea

         [¶14] 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.

         [¶15] 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 final sentence.[5]

         [¶16] 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.[6] See State v. Hoover, 2017 ME 158, ¶¶ 18, 40, 169 A.3d 904.

         [¶17] 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. ...

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