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State v. Pelletier

Supreme Court of Maine

June 11, 2019

STATE OF MAINE
v.
FABIEN A. PELLETIER

          Argued: May 14, 2019

          Tina Heather Nadeau, Esq. (orally), The Law Office of Tina Heather Nadeau, PLLC, Portland, for appellant Fabien Pelletier

          Todd R. Collins, District Attorney (orally), and James Mitchell, Asst. Dist. Atty., Prosecutorial District No. 8, Caribou, for appellee State of Maine

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

          MEAD, J.

         [¶1] Fabien A. Pelletier appeals from a judgment of conviction entered by the trial court (Aroostook County, Stewart, J.) on three counts of gross sexual assault of a person under the age of fourteen (Class A), 17-A M.R.S.A. § 253(1)(B) (Supp. 2002), [1] and two counts of unlawful sexual contact (Class C), 17-A M.R.S.A. § 255(1) (C) (Supp. 2002), [2] following jury verdicts of guilty on each offense. Pelletier contends that the prosecutor committed misconduct during opening statements by telling the jurors that they would hear inculpatory testimony that was ultimately never elicited at trial. He also argues that the court erred by imposing a sentence within the enhanced range provided by the version of 17-A M.R.S.A. § 1252(2)(A) that became effective on September 29, 1995. We affirm the judgment but remand for resentencing.

         I. BACKGROUND

         [¶2] "Viewed in the light most favorable to the State, the jury could rationally have found the following facts beyond a reasonable doubt." State v. Olah, 2018 ME 56, ¶ 2, 184 A.3d 360. From 1993 to 1998, two boys who are related to Pelletier were occasional overnight guests in his home. When the younger boy was ten years old, Pelletier touched the boy's penis; additional sexual assaults occurred during the following weeks, months, and years.

         [¶3] In April 2016, the younger boy disclosed the abuse to a counselor and met with a detective. Following the younger boy's disclosure, the older boy spoke with the detective and disclosed that, when he was between the ages of twelve and fourteen, Pelletier had shown him pornographic videos and committed sexual assaults against him.

         [¶4] Pelletier was charged by criminal complaint with three counts of gross sexual assault (Class A), 17-A M.R.S.A. § 253(1)(B), and two counts of unlawful sexual contact (Class C), 17-A M.R.S.A. § 255(1)(C). An indictment for the same charges was returned on September 19, 2016. The indictment alleged that Pelletier had committed the crimes "[o]n or about between October 30, 1993 and September 18, 1998, in Wallagrass, Aroostook County, Maine."[3]

         [¶5] The court conducted a two-day jury trial on April 9 and 10, 2018. In his opening statement, having summarized information that he expected to elicit as testimony from persons who would be witnesses for the State, the prosecutor told the jurors, "you're going to hear this testimony and you're going to hear that once it came out, [the younger boy] finally told his mother; and his mother, in reaction, confronted [Pelletier], and confronted him with what her son and [the older boy] had said had happened. And [Pelletier]'s response was, don't worry, it won't happen again."

         [¶6] The State called both of the boys to the stand, and each testified to having been sexually abused and assaulted by Pelletier when he was younger than age fourteen. After the boys testified, the State rested without the younger boy's mother taking the stand. The jury returned guilty verdicts on all counts.

         [¶7] On April 26, 2018, the court held a sentencing hearing. The court explained that pursuant to the law in effect at the time of Pelletier's crimes, the court could not impose a sentence in excess of twenty years unless Pelletier's offenses were among the most heinous and violent crimes committed against a person. The court further stated that heinousness was the court's finding to make. It then found that Pelletier's crimes were heinous and thus were "the types of crimes that when setting a base sentence would be in excess of 20 years." The court set a base sentence in the range of twenty years and a day to twenty-five years and ultimately sentenced Pelletier to twenty-four years, all but sixteen years suspended, with probation for six years.

         [¶8] Pelletier timely appealed and applied for review of his sentence. See 15 M.R.S. §§ 2115, 2151 (2018); M.R. App. P. 2B(b)(1). The Sentence Review Panel granted Pelletier leave to appeal from his sentence, see 15 M.R.S. § 2152 (2018), permitting the discretionary sentence appeal to be considered as part of Pelletier's direct appeal from the judgment of conviction, se ...


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