MAINE	SUPREME	JUDICIAL	COURT	 	           	      	      	      	    Reporter	of	Decisions	
Decision:	    2018	ME	58	
Docket:		     SRP-17-22	
Argued:	      October	11,	2017	
Decided:	     April	26,	2018	
	
Panel:	 	     SAUFLEY,	C.J.,	and	ALEXANDER,	MEAD,	GORMAN,	JABAR,	HJELM,	and	HUMPHREY,	JJ.	
Majority:	    SAUFLEY,	C.J.,	and	MEAD,	GORMAN,	JABAR,	HJELM,	and	HUMPHREY,	JJ.	
Concurrence:	 ALEXANDER,	J.	
	
	
                                  STATE	OF	MAINE	
                                          	
                                         v.	
                                          	
                                  ANDREW	B.	BEAN	
	
	
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(1-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.	
2	      	

§	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.	

11A(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	


																																																
     1		It	was	asserted	at	oral	argument	that	Bean’s	right	to	argue	for	a	more	favorable	sentence	was	

not	part	of	the	plea	agreement	but	was	instead	the	result	of	an	impromptu	and	informal	request	made	
immediately	prior	to	the	Rule	11	hearing.		However,	because	Bean	in	fact	argued	for	a	more	favorable	
sentence	than	that	recommended	by	the	State,	and	the	State	did	not	object,	we	assume	for	purposes	
of	this	appeal	that	this	was	a	term	of	the	plea	agreement	entered	into	between	Bean	and	the	State.		
We	note,	however,	that	M.R.U.	Crim.	P.	11A(b)	requires	the	disclosure	of	a	plea	agreement	in	open	
court	in	order	to	allow	for	adequate	appellate	review.		An	essential	term	of	a	plea	agreement—such	
     	                                                                                             3	

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),	

																																																

as	the	right	to	argue	for	a	more	favorable	sentence,	which	preserves	the	right	to	seek	discretionary	
review—should	be	disclosed	and	recorded.	
4	   	

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	
    	                                                                                  5	

Class	 C	 criminal	 OUI	 and	 charge	 Bean	 by	 information	 with	 two	 counts	 of	

aggravated	 OUI	 (Class	 B),	 29-A	M.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).			
6	      	

            [¶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	

																																																
     2	 	 In	 imposing	 the	 firearms	 sentence,	 the	 court	 rejected	 a	 recommendation	 by	 the	 State	 for	 a	

five-year	term	of	imprisonment.		All	of	the	sentences	were	to	be	served	concurrently	with	a	sentence	
of	twenty-one	months’	imprisonment	for	a	federal	conviction	arising	from	the	November	21,	2015,	
incident.			
     	                                                                                                        7	

of	public	safety,	all	apply	to	this	case.”		See	17-A	M.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).			

                                                   II.		DISCUSSION	

	          [¶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	


																																																
    3	 	 The	 Maine	Rules	 of	Appellate	 Procedure	 were	 restyled	 effective	 for	appeals	 filed	 on	 or	 after	

September	1,	2017.		See	M.R.	App.	P.	1.		Because	Bean	filed	his	application	for	leave	to	appeal	from	
his	sentence	before	September	1,	2017,	the	restyled	Maine	Rules	of	Appellate	Procedure	do	not	apply.	
8	      	

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			




																																																
     4		We	refer	to	guilty	pleas	throughout	this	opinion,	but	we	recognize	that	the	defendant’s	plea	may	

be	entered	as	a	nolo	contendere	plea	or	an	“Alford”	guilty	plea	if	the	court	accepts	that	plea.		See	
M.R.U.	Crim.	P.	11(a);	see	also	North	Carolina	v.	Alford,	400	U.S.	25,	37	(1970);	Oken	v.	State,	1998	ME	
196,	¶	2	n.1,	716	A.2d	1007.			
    	                                                                                  9	

        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	
10	       	

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,	



																																																
    5		Nor	is	the	defendant’s	right	to	withdraw	his	plea	prior	to	the	imposition	of	sentence	absolute.		

Instead,	the	sentencing	court	has	discretion	regarding	whether	to	permit	the	defendant	to	do	so,	and	
must	 consider	 “[t]he	 length	 of	 time	 between	 entering	 the	 plea	 and	 seeking	 to	 withdraw	 it;	 [t]he	
potential	prejudice	to	the	State;	[t]he	defendant’s	assertions	of	innocence;	and	[a]ny	deficiency	in	the	
proceeding	at	which	the	defendant	entered	the	plea	in	accordance	with	M.R.	Crim.	P.	11.”		State	v.	
Hillman,	2000	ME	71,	¶	8,	749	A.2d	758.			
    6		When	a	direct	appeal	of	a	sentence	is	filed	without	an	indication	of	a	legitimate	basis	for	a	claim	

of	 illegality,	 including	 a	 constitutional	 violation,	 we	 may	 issue	 a	 show	 cause	 order	 requiring	 the	
defendant	to	demonstrate	why	the	direct	appeal	has	a	legitimate	basis	and	should	not	be	dismissed.		
     	                                                                                                11	

955	(Me.	1996)	(emphasizing	the	need	for	a	full	analysis	in	the	context	of	an	

open	plea).	

           2.	         Plea	Upon	Joint	Recommendation	

           [¶18]		At	the	other	end	of	the	spectrum	of	possible	plea	agreements	is	a	

fully	agreed	upon	plea,	which	we	refer	to	as	a	plea	upon	joint	recommendation.		

See	M.R.U.	Crim.	P.	11A(a)(4).7		In	the	context	of	a	joint	recommendation	plea,	

the	defendant	enters	a	plea	of	guilty,	again	following	a	thorough	colloquy	with	

the	court	to	assure	that	the	defendant	understands	the	rights	that	he	is	forever	

waiving.	 	 See	 M.R.U.	 Crim.	 P.	 11(b)-(c).	 	 A	 plea	 entered	 upon	 the	 joint	

recommendation	of	the	parties	will	become	operative	only	if	the	court	accepts	

the	joint	recommendation	or	imposes	a	sentence	that	is	more	favorable	to	the	

defendant.		See	M.R.U.	Crim.	P.	 11A(d)-(e).		If	the	court	 decides	that	 it	would	

impose	a	sentence	that	is	less	favorable	to	the	defendant	than	what	the	parties	




																																																
    7		The	same	procedures	and	limitations	are	applicable	when	the	state	elects,	pursuant	to	M.R.U.	

Crim.	 P.	 11A(a)(2),	 not	 to	 oppose	 the	 recommendation	 of	 the	 defendant	 rather	 than	 explicitly	
agreeing	to	the	joint	recommendation.	
12	   	

have	 jointly	 recommended,	 the	 defendant	 must	 be	 allowed	 to	 withdraw	 his	

guilty	plea,	and	all	of	his	rights,	including	the	right	to	trial,	remain	intact.		See	id.	

          [¶19]		Before	the	court	determines	whether	it	will	accept	and	impose	the	

jointly	recommended	sentence,	it	will	hear	from	the	State	and	the	defendant,	

and	 in	 certain	 circumstances,	 the	 victim,	 regarding	 the	 facts	 of	 the	 case.	 	 See	

M.R.U.	Crim.	P.	11(b),	(e).		The	court	will	then	undertake	an	analysis	to	assure	

that	 the	 sentence	 meets	 the	 statutory	 framework	 and	 sentencing	 goals.	 	 In	

many	instances,	the	court’s	analysis	will	not	be	extensive	because	both	the	State	

and	 the	 defendant	 have	 agreed	 that	 the	 proposed	 sentence	 is	 appropriate.		

However,	the	court	must	assure	itself	and	the	public,	among	other	things,	that	

the	 sentence	 is	 legal,	 that	 the	 proposal	 falls	 within	 the	 range	 of	 the	 court’s	

discretion,	and	that	the	sentence	meets	the	sentencing	goals	established	by	the	

Legislature.		

          [¶20]		In	contrast	to	the	defendant’s	appellate	options	following	an	open	

plea,	 the	 defendant	 does	 not	 have	 the	 right	 to	 file	 an	 application	 for	

discretionary	review	of	an	 agreed-upon	 sentence	when	the	court	accepts	the	

recommendation.	 See	 15	 M.R.S.	 §	2151(2)	 (excluding	 from	 our	 discretionary	

review	 sentences	 imposed	 as	 a	 result	 of	 the	 court	 accepting	 a	 plea	 with	 an	

agreed-upon	 sentence	 pursuant	 to	 M.R.U.	 Crim.	 P.	 11A(a)(2)	 and	 (4)).	 	 A	
     	                                                                                                 13	

defendant’s	 application	 for	 review	 of	 a	 sentence	 entered	 upon	 joint	

recommendation	will	therefore	be	dismissed.			

           [¶21]		In	addition,	when	the	joint	recommendation	is	fully	accepted	by	

the	 court,	 the	 defendant	 will	 be	 deemed	 to	 have	 waived	 any	 claim	 of	

constitutional	disproportionality	or	cruel	and	unusual	punishment.		Cf.	State	v.	

Chavarria,	 208	 P.3d	 896,	 900-01	 (N.M.	 2009)	 (holding	 that	 a	 defendant	 who	

pleads	 guilty	 and	 understands	 the	 maximum	 potential	 sentence	 waives	 his	

right	to	appeal	on	grounds	of	cruel	and	unusual	punishment).		Moreover,	any	

later	 discovered	 illegality	 in	 the	 sentence	 should	 be	 addressed	 through	 a	

motion	to	correct	the	sentence	pursuant	to	M.R.U.	Crim.	P.	35.8		Thus,	although	

there	 may	 be	 instances	 in	 which	 a	 direct	 appeal	 may	 be	 taken	 to	 address	 an	

illegality	following	a	plea	upon	joint	recommendation,	those	instances	will	be	

rare,	and	a	direct	appeal	that	does	not	clearly	assert	such	an	illegality	will	be	

dismissed.		




																																																
    8		A	defendant	who	has	not	waived	his	right	to	do	so	may	also	appeal	directly	from	a	conviction	

entered	upon	a	guilty	plea	pursuant	to	a	joint	recommendation	by	challenging	the	constitutionality	
of	the	statute	defining	the	offense	for	which	he	was	convicted.		See	Class	v.	United	States,	583	U.S.	---,	
138	S.	Ct.	798,	803	(2018).			
14	       	

              3.	      Cap	Plea	

              [¶22]		In	some	circumstances,	as	in	this	case,	the	State	and	the	defendant	

may	 agree	 that	 the	 defendant	 will	 enter	 a	 guilty	 plea	 and	 the	 State	 will	

recommend	a	particular	sentence,	but	the	State	agrees	that	the	defendant	may	

reserve	the	right	to	argue	for	a	more	favorable	sentence.		See,	e.g.,	State	v.	Cook,	

2011	ME	94,	¶	14,	26	A.3d	834.		This	is	often	referred	to	as	a	“cap	plea”	because	

the	State’s	recommendation	becomes	the	harshest	sentence—the	cap—that	the	

court	 can	 impose	 while	 accepting	 the	 plea	 agreement.	 	 See	 M.R.U.	 Crim.	 P.	

11A(d).			

              [¶23]	 	 When	 the	 sentence	 falls	 within	 those	 that	 are	 subject	 to	 an	

application	for	discretionary	appellate	review,	see	15	M.R.S.	§	2151,	and	when	

the	defendant	has	not	explicitly	waived	the	right	to	file	such	an	application,	the	

defendant	may	file	an	application	for	leave	to	appeal	that	part	of	the	sentence	

for	which	the	defendant	reserved	the	right	to	argue	to	the	sentencing	court.9			

              [¶24]		A	defendant	may	explicitly	waive	his	right	to	appeal	the	sentence	

pursuant	to	a	plea	agreement	that	also	allows	him	to	argue	for	a	sentence	more	

favorable	 than	 the	 State’s	 recommendation.	 	 To	 accomplish	 such	 a	 waiver,	

																																																
    9	
    	 An	 appeal	 from	 the	 imposition	 of	 restitution	 will	 be	 limited	 by	 15	 M.R.S.	 §	 2151(3)	 and	
17-A	M.R.S.	§1330-A	(2017).			
      	                                                                              15	

however,	 the	 defendant	 must	 clearly	 and	 unambiguously	 state	 an	 intent	 to	

waive	the	right	to	appeal,	and	the	waiver	must	be	made	on	the	record	at	the	

Rule	11	hearing.				

          [¶25]		As	with	other	types	of	pleas,	the	defendant	in	a	cap	plea	may	file	a	

direct	appeal	of	a	sentence	if	there	is	a	legitimate	claim	of	illegality,	including	

any	constitutional	violation.		As	always,	however,	a	direct	appeal	that	does	not	

support	a	claim	of	actual	illegality	will	be	dismissed.		See	State	v.	Ricker,	2001	

ME	76,	¶	18,	770	A.2d	1021.			

B.	       Bean’s	Appeal	

          [¶26]	 	 The	 sentence	 imposed	 on	 Bean	 followed	 a	 cap	 plea.	 	 At	 the	

sentencing,	 Bean	 agreed	 to	 plead	 guilty,	 knowing	 what	 sentence	 the	 State	

would	recommend,	and	knowing	that	he	would	not	have	the	right	to	withdraw	

the	 plea	 if	 the	 court	 accepted	 the	 State’s	 recommendation.	 	 He	 did,	 however,	

reserve	 the	 right	 to	 argue	 for	 a	 shorter	 underlying	 sentence,	 for	 a	 shorter	

unsuspended	portion	of	the	sentence,	and	for	a	shorter	term	of	probation.			

          [¶27]		Bean	did	not	explicitly	waive	his	right	to	apply	for	a	discretionary	

review	of	the	sentence	imposed.		Accordingly,	as	explained	above,	on	this	cap	

plea	Bean	retained	the	right	to	apply	for	leave	to	appeal	the	sentence	through	

the	discretionary	sentence	review	process	set	forth	in	15	M.R.S.	§	2151.		Bean	
16	       	

did	 apply	 for	 leave	 to	 appeal,	 the	 Sentence	 Review	 Panel	 granted	 his	

application,	and	we	now	proceed	to	review	the	propriety	of	his	sentence.			

              [¶28]		To	analyze	the	propriety	of	Bean’s	sentence,	we	review	the	court’s	

analysis	of	the	multiple	steps	required	in	sentencing.		See	17-A	M.R.S.	§	1252-C.		

In	so	doing,	we	look	to	the	trial	court’s	articulation	of	the	basic	sentence,	the	

identification	and	weighing	of	the	aggravating	and	mitigating	factors	in	order	

to	determine	the	maximum	sentence,	and	the	factors	it	considered	to	determine	

whether	any	part	of	the	sentence	will	be	suspended.10		See	id.			

              [¶29]	 	 Although	 the	 court	 did	 quite	 clearly	 address	 the	 goals	 of	

sentencing,	 see	 17-A	 M.R.S.	 §	 1151,	 it	 did	 not	 undertake	 a	 section	 1252-C	

analysis	on	the	record.		No	exception	to	the	section	1252-C	requirements	is	set	

forth	in	the	statute	regarding	a	cap	plea.		See	id.			The	statute	requires	at	least	a	

basic	1252-C	analysis,	and	because	of	the	potential	for	appellate	review,	that	

basic	 analysis	 should	 have	 been	 provided	 to	 the	 parties	 and	 the	 public	 to	

explain	the	court’s	decision	to	accept	the	cap	proposed	by	the	State.		See	M.R.U.	

Crim.	 P.	 32(a)(3).	 	 Because	 the	 court	 in	 this	 instance	 did	 not	 articulate	 the	

																																																
    10		Ordinarily,	we	review	the	basic	sentence	established	by	a	court	for	misapplication	of	principle	

and	the	maximum	and	final	sentence	for	abuse	of	discretion.		State	v.	Reese,	2010	ME	30,	¶¶	22-23,	
991	 A.2d	 806.	 	 Here,	 the	 issue	 is	 one	 of	 compliance	 with	 17-A	 M.R.S.	 §	1252-C	 generally,	 and	 we	
therefore	apply	a	de	novo	review.		State	v.	Harrell,	2012	ME	82,	¶	4,	45	A.3d	732.			
      	                                                                                    17	

section	1252-C	elements	of	the	sentence	or	explain	a	rationale	for	the	ultimate	

sentence	imposed,	the	court	erred.			

C.	       Harmless	Error	

          [¶30]		As	have	many	other	courts,	we	have	held	that	errors	in	sentencing	

are	 subject	 to	 a	 harmless	 error	 analysis.	 	 See,	e.g.,	 State	 v.	 Svay,	 2003	 ME	 93,	

¶¶	16-17,	828	A.2d	790;	Williams	v.	United	States,	503	U.S.	193,	202-03	(1992).		

In	 conducting	 any	 harmless	 error	 analysis,	 we	 are	 guided	 by	 Maine	 Rule	 of	

Unified	Criminal	Procedure	52(a),	which	states,	“Any	error,	defect,	irregularity,	

or	variance	that	does	not	affect	substantial	rights	shall	be	disregarded.”			

          [¶31]		Generally,	“harmful	error	is	error	that	[is]	sufficiently	prejudicial	

to	have	affected	the	outcome	of	the	proceeding.”		State	v.	Pillsbury,	2017	ME	92,	

¶	18,	161	A.3d	690	(quotation	marks	omitted).		In	the	context	of	an	error	in	the	

application	of	sentencing	procedures,	a	defendant’s	substantial	rights	are	not	

compromised	 if	 we	 determine,	 by	 a	 review	 of	 the	 entire	 record,	 that	 even	 if	

proper	procedures	had	been	followed,	it	is	highly	probable	that	the	sentence	

would	not	be	different.		See	Svay,	2003	ME	93,	¶	16,	828	A.2d	790.		

          [¶32]		In	State	v.	Cobb,	we	applied	a	harmless	error	analysis	where	the	

sentencing	court	had	improperly	considered	unproven	aggravating	factors	in	

setting	the	maximum	term	of	imprisonment.		2006	ME	43,	¶	24,	895	A.2d	972.		
18	       	

We	held	that	although	it	was	error	for	the	sentencing	court	to	consider	those	

aggravating	factors,	the	error	did	not	affect	the	defendant’s	substantial	rights	

because	it	was	“clear	that	the	court	would	have	concluded	that	Cobb’s	criminal	

history,	 combined	 with	 the	 nature	 and	 seriousness	 of	 the	 crime,	 warranted	

setting	the	maximum	sentence	in	the	upper	tier,	even	without	the	[improper]	

evidence.”		Id.			

	             [¶33]		Here,	Bean	pleaded	guilty	to	two	counts	of	Class	B	aggravated	OUI,	

each	of	which,	standing	alone,	carried	the	potential	for	a	maximum	sentence	of	

ten	 years.	 	 See	 17-A	 M.R.S.	 §	 1252(2)(B)	 (2017).	 	 The	 record	 before	 the	

sentencing	court	established	that	Bean	had	a	blood	alcohol	content	of	0.21	upon	

his	 first	 arrest	 and	 0.29	 upon	 his	 second	 arrest,	 and	 that	 the	 second	 arrest	

occurred	 within	 weeks	 of	 the	 first.	 	 His	 high	 blood	 alcohol	 content	 in	 each	

incident	 would	 have	 justified	 a	 correspondingly	 severe	 basic	 period	 of	

incarceration.11	 	 See	 State	 v.	 Seamon,	 2017	 ME	 123,	 ¶	 12	 n.2,	 165	 A.3d	 342	

(explaining	that	the	“particular	nature	and	seriousness”	of	the	specific	offense	


																																																
    11		Bean	contends	that	the	sentencing	court	“likely”	imposed	a	basic	term	of	imprisonment	“at	or	

near	the	statutory	maximum,”	intended	for	particularly	egregious	crimes.		State	v.	Stanislaw,	2011	
ME	67,	¶	13,	21	A.3d	91.		However,	the	ultimately	imposed	underlying	ten-year	sentence	is	likely	a	
result	of	a	combination	of	a	higher	than	minimum	basic	sentence	and	the	court’s	consideration	of	the	
extraordinary	 aggravating	 factors	 properly	 considered	 in	 calculating	 the	 maximum	 period	 of	
incarceration—the	number	of	prior	convictions	and	the	proximity	in	time	between	his	arrests.			
    	                                                                                19	

for	 which	 a	 defendant	 is	 charged	 is	 the	 proper	 focus	 in	 setting	 the	 basic	

sentence).		With	respect	to	a	maximum	sentence,	Bean’s	nine	prior	convictions	

for	 OUI	 and	 five	 convictions	 for	 operating	 after	 revocation	 were	 aggravating	

factors	 that	 would	 have	 warranted	 a	 ten-year	 term	 of	 imprisonment	 as	 the	

maximum	 sentence	 for	 either	 or	 both	 of	 the	 OUI	 convictions.	 	 See	 15	 M.R.S.	

§	1252(2)(B).	 	 Finally,	 given	 that	 the	 court	 was	 issuing	 a	 sentence	 for	

convictions	“arising	from	different	criminal	episodes,”	and	that	Bean	had	been	

released	 on	 bail	 when	 he	 was	 arrested	 for	 the	 second	 offense,	 the	 court	 was	

authorized,	within	its	discretion,	to	impose	consecutive	rather	than	concurrent	

sentences.		See	17-A	M.R.S.	§	1256(2)(A),	(C)	(2017);	State	v.	Downs,	2009	ME	3,	

¶	30,	962	A.2d	950.			

	       [¶34]		Ultimately,	for	his	tenth	and	eleventh	OUI	convictions,	arising	from	

incidents	 that	 occurred	 within	 weeks	 of	 each	 other,	 Bean	 received	 an	

unsuspended	sentence	of	five	years,	with	an	underlying	sentence	of	ten	years.		

Although	he	could	legally	have	received	consecutive	unsuspended	terms	that	

totaled	twenty	years,	pursuant	to	the	State’s	recommended	sentence	cap,	he	did	

not.	 	 The	 sentencing	 court	 made	 it	 clear	 in	 imposing	 the	 sentence	 that	 “the	

restraint	of	convicted	persons	when	required	in	the	interest	of	public	safety”	

was	very	much	a	part	of	the	court’s	analysis.		On	this	record,	there	can	be	little	
20	   	

question	that	public	safety	demanded	a	substantial	sentence.		The	court	would	

have	 acted	 well	 within	 its	 discretion	 to	 have	 rejected	 the	 plea	 agreement	

entirely	as	insufficiently	protective	of	public	safety.		On	a	review	of	the	entire	

record,	the	absence	of	a	section	1252-C	analysis	was	not	sufficiently	prejudicial	

to	 affect	 the	 outcome	 of	 the	 proceeding	 and	 did	 not	 affect	 Bean’s	 substantial	

rights.				

          The	entry	is:	

                       Sentence	affirmed.		

                                 	     	      	      	     	

ALEXANDER,	J,	concurring.	

	         [¶35]	 	 I	 concur	 with	 the	 Court	 that	 the	 sentences	 imposed	 on	 Andrew	

Bean	 for	 what	 were	 his	 tenth	 and	 eleventh	 operating	 under	 the	 influence	

convictions	and	a	related	conviction	for	possession	of	a	firearm	by	a	felon	must	

be	 affirmed.	 	 See	 Court’s	 Opinion	 ¶	 34.	 	 I	 do	 not	 concur	 with	 the	 Court’s	

conclusion	 that,	 although	 there	 was	 no	 request	 for	 findings,	 the	 sentencing	

court	erred	when	it	did	not	reference	the	standards	set	in	17-A	M.R.S.	§	1252-C	

(2017)	 in	 articulating	 its	 rationale	 for	 imposing	 the	 State’s	 recommended	

sentence.		See	Court’s	Opinion	 ¶¶	28-29.		That	sentence	had	been	negotiated	
   	                                                                                   21	

with	 Bean,	 as	 a	 sentencing	 cap,	 as	 part	 of	 Bean’s	 agreement	 to	 plead	 to	 the	

charges	at	issue.	

                            I.		RELEVANT	CASE	HISTORY	

       [¶36]	 	 Before	 the	 events	 which	 gave	 rise	 to	 the	 charges	 leading	 to	 the	

sentences	 at	 issue	 on	 this	 appeal,	 Bean	 had	 a	 serious	 criminal	 record.	 	 That	

record	included	at	least	nine	prior	operating	under	the	influence	convictions,	

most	of	which	were	felonies.		His	prior	record	caused	Bean	to	be	designated	a	

felon	 prohibited	 from	 possessing	 firearms	 by	 operation	 of	 15	M.R.S.	

§	393(1)(A-1)	(2017).			

       [¶37]	 	 On	 November	 21,	 2015,	 Bean,	 “very	 obviously	 intoxicated,”	 was	

arrested	for	operating	a	motor	vehicle	while	under	the	influence	of	intoxicants.		

29-A	 M.R.S.	 §	 2411(1-A)	 (2017).	 	 His	 Intoxilyzer	 test	 registered	 a	 0.21	 blood	

alcohol	content.		Because	Bean	had	a	firearm	beside	him	in	his	vehicle,	he	was	

also	 charged	 with	 possession	 of	 a	 firearm	 by	 a	 prohibited	 person	 (Class	 C),	

15	M.R.S.	§	393(1)(A-1).			

       [¶38]	 	 One	 month	 later,	 on	 December	 20,	 2015—three	 days	 after	 his	

indictment	 for	 the	 charges	 arising	 from	 the	 first	 arrest—Bean	 was	 again	

arrested	for	operating	under	the	influence.		When	stopped,	Bean	confessed	“I’m	
22	   	

drunk,	just	take	me	to	jail.”		This	time	his	Intoxilyzer	test	registered	a	0.29	blood	

alcohol	content.			

          [¶39]	 	 In	 November	 2016,	 Bean	 reached	 an	 agreement	 with	 the	

prosecutor	 to	 plead	 guilty	 to	 two	 counts	 of	 aggravated	 operating	 under	 the	

influence	(Class	B),	29-A	M.R.S.	§	2411(1-A)(D)(2),	and	one	count	of	possession	

of	a	firearm	by	a	prohibited	person	(Class	C),	15	M.R.S.	§	393(1)(A-1).		As	part	

of	the	plea	negotiations,	the	prosecutor	agreed	to	recommend	a	sentencing	cap	

of	 ten	 years,	 all	 but	 five	 years	 suspended,	 legislatively	 mandated	 minimum	

fines,	and	a	six-year	suspension	of	his	right	to	operate.		Bean	was	free	to	argue	

for	 a	 lesser	 sentence	 on	 the	 two	 Class	 B	 aggravated	 operating	 under	 the	

influence	charges.			

          [¶40]	 	 After	 a	 sentencing	 hearing	 at	 which	 Bean	 argued	 for	 a	 lesser	

sentence,	the	court	imposed	a	sentence	on	the	two	Class	B	aggravated	operating	

under	the	influence	charges	of	ten	years’	imprisonment	with	all	but	five	years	

suspended	and	three	years’	probation,	the	sentences	to	be	served	concurrently.		

The	 court	 also	 imposed	 a	 concurrent	 sentence	 of	 twenty-one	 months	 on	 the	

Class	C	possession	of	a	firearm	by	a	prohibited	person	charge.		The	sentence	

ultimately	imposed	was	consistent	with	the	cap	recommended	by	the	State	and	

negotiated	as	part	of	the	plea	arrangement.			
     	                                                                                               23	

               II.		APPLICATION	OF	SECTION	1252-C	SENTENCING	FACTORS	

           [¶41]		The	Court’s	opinion	accurately	identifies	several	factors	properly	

addressed	by	the	sentencing	court	in	articulating	the	reasons	for	its	sentence.		

Court’s	Opinion	¶	10.		But	the	Court	faults	the	sentencing	court,	holding	that	the	

court	committed	error,	because	it	did	not	articulate	what	it	believed	to	be	the	

“basic”	 sentence	 for	 Bean’s	 crimes,	 what	 it	 believed	 to	 be	 the	 “maximum”	

sentence	for	Bean’s	crimes	after	considering	aggravating	and	mitigating	factors,	

and	 then	 apply	 those	 factors	 to	 determine	 how	 much,	 if	 any,	 of	 the	 sentence	

would	 be	 suspended	 and	 how	 much	 probation	 Bean	 would	 receive—the	

sentencing	factors	listed	in	17-A	M.R.S.	 §	1252-C(1)-(3).		See	Court’s	Opinion	

¶¶	28-29.	

           [¶42]		Subsection	(1)	of	section	1252-C	directs	that	in	sentencing	“[t]he	

court	 shall	 first	 determine	 a	 basic	 term	 of	 imprisonment	 by	 considering	 the	

particular	nature	and	seriousness	of	the	offense	as	committed	by	the	offender.”		

Unfortunately,	here,	and	in	most	cases	involving	serious	and	somewhat	unique	

crimes,	 there	 is	 no	 body	 of	 data	 to	 aid	 in	 identifying	 the	 “basic”	 term	 of	

imprisonment.12	 	 The	 crimes	 and	 the	 circumstances	 at	 issue	 were	 unique—

																																																
    12		The	lack	of	data	to	support	identification	of	the	“basic”	sentence	that	could	be	appropriate	for	

these	 crimes	 may—looking	 at	 the	 big	 picture—be	 a	 positive.	 	 We	 are	 probably	 fortunate	 that	
prosecutions	and	combined	sentencings	for	OUI	convictions	involving	the	tenth	and	eleventh	OUIs,	
24	       	

tenth	and	eleventh	convictions	for	felony	OUIs,	Class	B	crimes,	with	an	available	

maximum	 sentence	 for	 each	 of	 ten	 years.	 	 Because	 those	 crimes	 constituted	

separate	and	serious	criminal	actions,	the	court	had	the	capacity	to	make	those	

sentences	consecutive,	totaling	twenty	years.		See	17-A	M.R.S.	§	1256(2)(A),	(D)	

(2017)	(addressing	consecutive	sentencing).	

              [¶43]	 	 No	 precedent	 of	 this	 Court,	 no	 reports,	 no	 body	 of	 data	 are	

available	 to	 provide	 the	 sentencing	 court	 or	 counsel	 any	 idea	 as	 to	 what	 the	

“basic”	 sentence	 for	 tenth	 and	 eleventh	 felony	 OUI	 convictions,	 for	 offenses	

committed	a	month	apart,	should	be.13		All	the	sentencing	judge	would	have,	all	

any	 sentencing	 judge	 would	 have,	 would	 be	 that	 judge’s	 knowledge	 and	

experience	 with	 regard	 to	 similar	 situations—two	 felony	 OUIs	 committed	

within	a	short	time	period	and	presented	to	the	court,	together,	for	sentencing.	




																																																

or	 the	 ninth	 and	 tenth	 OUIs,	 or	 the	 eighth	 and	 ninth	 OUIs,	 are	 few	 and	 far	 between,	 making	
identification	 of	 the	 “basic”	 sentence	 for	 such	 offenses	 nearly	 impossible	 to	 determine	 with	 any	
precision.		
    13		One	relevant	precedent	might	be	State	v.	Horr,	2003	ME	110,	831	A.2d	407.		Horr	involved	only	

one	driving	event,	not	two	separate	events.		Id.	¶¶	3,	5.		Horr	was	convicted	of	aggravated	operating	
under	the	influence	(Class	C),	violation	of	the	habitual	offender	law	(Class	C),	driving	to	endanger	
(Class	E),	and	theft	(Class	D).		Id.	¶	1.		The	aggravated	operating	under	the	influence	conviction	was	
Horr’s	fourteenth	OUI	conviction.		Id.	¶	6	n.6.		We	affirmed	the	court’s	imposition	of	four	consecutive	
maximum	sentences,	totaling	approximately	eleven	and	one-half	years,	on	the	four	charges.		Id.	¶	5.	
   	                                                                                25	

       [¶44]	 	 While	 sentencing	 for	 tenth	 and	 eleventh	 felony	 OUI	 convictions	

appears	virtually	unprecedented,	most	judges	would	have	had	some	experience	

with	sentencing	for	two	felony	OUIs,	usually	Class	C	felonies,	committed,	as	in	

this	case,	fairly	close	together	in	time.		At	the	time	of	sentencings	involving	the	

sixth	 and	 seventh,	 or	 seventh	 and	 eighth	 OUI	 convictions,	 being	 sentenced	

together,	experience	indicates	that	common	practice	in	such	sentencings	is	to	

impose	 “consecutive	 maxes”—that	 is,	 two	 five-year	 terms	 of	 incarceration	

imposed	 consecutively	 with	 no	 part	 of	 the	 sentence	 suspended.	 	 See	 State	 v.	

Horr,	2003	ME	110,	¶¶	1-5,	831	A.2d	407	(affirming	imposition	of	“consecutive	

maxes”	for	Class	C	OUI	and	habitual	offender	violations,	plus	two	lesser	offenses	

in	a	case	involving	a	single	driving	event	by	an	individual	with	a	very	serious	

prior	criminal	record).		

       [¶45]	 	 “Consecutive	 maxes”	 are	 supported	 by	 experience	 that	 repeat	

offenders,	at	this	level,	have	demonstrated	that,	for	them,	rehabilitation	efforts	

and	 driving	 prohibitions,	 enforced	 through	 probation,	 are	 a	 useless	 exercise.		

Removal	from	society,	for	as	long	as	possible,	has	become	the	only	alternative	

available	to	protect	the	public.			

       [¶46]	 	 The	 resulting	 ten-year	 sentence	 of	 incarceration	 arising	 from	

experience-based	 practice	 in	 multiple	 repeat	 offender	 OUI	 sentencing	 would	
26	   	

have	been	double	the	five	years	of	incarceration	sentence	recommended	by	the	

State,	as	the	cap,	in	this	case.		Accordingly,	had	the	sentencing	judge	properly	

considered	and	articulated	the	“basic”	sentence	for	these	crimes,	based	on	the	

limited	 information	 and	 experience	 available,	 the	 court	 may	 have	 been	

required	to	reject	the	plea	agreement	with	the	five-year	cap	as	too	lenient.		See	

M.R.U.	 Crim.	 P.	 11A(d)-(e).	 	 Instead,	 respecting	 and	 deferring	 to	 the	

prosecutor’s	and	defense	counsel’s	experience	and	understanding	of	the	case,	

the	court	appropriately	went	along	with	the	plea	arrangement	and	accepted	the	

recommended	cap.	

          [¶47]		Beyond	the	difficulty	of	articulating	the	“basic”	sentence	and	in	so	

doing	 perhaps	 embarrassing	 the	 prosecutor	 and	 defense	 counsel,	 there	 is	

another	difficulty	with	applying	the	section	1252-C	standards	here.		Subsection	

(2)	of	 section	 1252-C	 requires	 that	 after	 the	 “basic”	 sentence	 is	 identified,	 a	

sentencing	court	must	then	“determine	the	maximum	period	of	imprisonment	

to	 be	 imposed	 by	 considering	 all	 other	 relevant	 sentencing	 factors,	 both	

aggravating	and	mitigating,	appropriate	to	that	case.”		Those	standards	require	

articulation	of	a	“maximum”	sentence	that	the	court	would	set	after	considering	

aggravating	and	mitigating	factors.	
   	                                                                                 27	

        [¶48]	 	 Like	 the	 “basic”	 sentence,	 the	 court	 could	 not	 have	 properly	

articulated	the	maximum	sentence	it	might	set	because,	here,	that	“maximum”	

sentence	was	established	by	the	sentencing	cap.		That	“maximum”	sentence	set	

by	the	cap	(ten	years	total,	five	years	of	incarceration)	was	only	one-quarter	of	

the	sentence	of	incarceration	that	could	have	been	imposed	had	the	maximum	

sentences	on	each	of	the	Class	B	OUIs	been	imposed	and	had	the	sentences	been	

made	consecutive.	

        [¶49]		Thus,	the	court	could	not	have	forthrightly	applied	two	of	the	three	

criteria	 articulated	 in	 section	 1252-C.	 	 Because	 of	 the	 unique	 nature	 of	 the	

crimes—tenth	 and	 eleventh	 OUI	 offenses—in	 all	 likelihood	 the	 court	 would	

have	imposed	a	much	higher	sentence,	had	it	been	considering	sentencing	as	

part	of	an	open	plea	or	post-trial,	after	conviction,	without	the	restriction	of	the	

cap.	

        [¶50]	 	 The	 Court	 holds	 that	 the	 sentencing	 court	 erred	 in	 failing	 to	

articulate	the	court’s	view	of	the	“basic”	sentence	and	the	“maximum”	sentence.		

Court’s	Opinion	¶¶	28-29.		That	holding,	in	essence,	requires	judges,	faced	with	

pleas	to	serious	felonies	with	a	cap	sentencing	recommendation,	to	sometimes	

embarrass	the	parties	by	criticizing	a	recommendation	as	too	low	and	reject	the	

plea	agreement.		The	sentencing	judge	here	did	not	do	that,	recognizing	that	a	
28	       	

sentencing	agreement	may	be	important	for	the	prosecution,	the	defense,	and	

crime	 victims14	 who	 want	 to	 resolve	 the	 case,	 sometimes	 for	 reasons	 not	

apparent	to	the	court,	and	avoid	the	tensions,	rigors	and	uncertainty	of	a	trial.	

              [¶51]	 	 We	 have	 faced	 similar	 situations	 of	 inadequate	 articulation	 of	

statutory	factors,	including	section	1252-C	factors,	in	sentencing,	but	without	

holding	that	the	sentencing	court	erred.		In	State	v.	Barnard,	2003	ME	79,	¶	25,	

828	A.2d	 216,	 the	 defense,	 on	 a	 sentence	 review	 appeal,	 asserted	 that	 the	

sentencing	court	had	considered	the	sentencing	factors	in	the	wrong	order	in	

its	 sentencing	 discussion.	 	 Without	 addressing	 the	 alleged	 misstatements	 in	

sentencing,	 we	 found	 no	 error,	 holding	 that	 “the	 resulting	 sentence,	 slightly	

above	the	mandatory	minimum,	demonstrates	no	misapplication	of	principle.”		

Id.		The	sentencing	court’s	action	here,	stating	its	reasoning	for	its	sentence	and	

imposing	a	sentence	that	was	only	one-quarter	of	the	prison	term	that	might	

have	been	imposed,	was	not	error	and	deserves	similar	treatment.			

              [¶52]		In	another	analogous	case,	when	a	sentencing	court	did	not	make	

a	 statutorily	 required	 finding	 regarding	 a	 sentencing	 factor,	 and,	 as	 here,	

counsel	 did	 not	 request	 that	 the	 court	 address	 the	 required	 finding,	 we	

																																																
    14		There	were	no	direct	crime	victims	here,	but	crime	victims’	interests	must	be	considered	in	

approving	or	disapproving	plea	arrangements	in	many	cases.		
     	                                                                                             29	

affirmed,	 holding	 that	 the	 sentencing	 court	 committed	 no	 error.	 	 State	 v.	

Commeau,	 2004	 ME	 78,	 ¶¶	 18-24,	 852	 A.2d	 70.	 	 In	 Commeau,	 the	 trial	 court	

imposed	 consecutive	 sentences	 on	 two	 crimes	 totaling	 fifty	 years.	 	 Id.	 ¶	 1.	

During	sentencing,	the	court	did	not	address	a	finding	required	for	consecutive	

sentencing	 by	 17-A	 M.R.S.	 §	1256(3)(B)	 (2017)15	 that	 one	 crime	 was	 not	

committed	to	facilitate	the	other	crime.		Id.	¶¶	18-19.		As	here,	the	applicability	

of	 the	 statutory	 requirement	 for	 sentencing	 findings	 was	 “presented	 for	 the	

first	time	on	appeal.”		Id.	¶	19.	

           [¶53]	 	 Addressing	 counsel’s	 choice	 not	 to	 request	 statutorily	 required	

findings	during	or	after	the	sentencing	hearing,	we	observed:	“Not	requesting	

findings	after	the	sentence	was	announced	appears	a	competent	tactical	choice;	

a	request	for	findings	could	have	invited	adverse	findings,	fully	supported	by	

the	 record	 .	 .	 .	 .”	 	 Id.	 ¶	 21	 n.10.	 	 The	 same	 tactical	 considerations	 may	 have	

applied	in	this	case.	

           [¶54]	 	 Reviewing	 for	 obvious	 error,	 id.	 ¶	 19,	 we	 held	 that	 consecutive	

sentencing	 to	 “fifty	 years	 in	 prison	 represents	 no	 error	 of	 fact	 or	 law,	 nor	 an	

abuse	of	discretion.”		Id.	¶	24	(emphasis	added).		We	should	do	the	same	here.		

																																																
    15		Title	17-A	M.R.S.	§	1256(3)(B)	(2017)	is	not	materially	changed	from	the	statute	referenced	in	

State	v.	Commeau,	2004	ME	78,	852	A.2d	70.	
30	   	

                 III.		POTENTIAL	UNANTICIPATED	CONSEQUENCES	

          [¶55]		The	defendant’s	tactical	decision	to	accept	the	plea	arrangement	

with	the	sentencing	cap	and	then	appeal	when	the	cap	was	imposed,	arguing	

failure	 to	 articulate	 the	 criteria	 stated	 in	 section	 1252-C,	 presents	 a	

considerable	risk	of	unanticipated	consequences.		Had	the	defendant	succeeded	

in	 convincing	 the	 Court	 that	 the	 sentencing	 court’s	 failure	 to	 articulate	 the	

“basic”	 and	 the	 “maximum”	 sentences	 was	 error	 and	 that	 the	 error	 was	 not	

harmless,	 the	 matter	 would	 have	 been	 remanded	 to	 the	 trial	 court	 for	

resentencing.	

          [¶56]		The	defendant	is	correct	that	on	a	sentence	review,	neither	we	nor	

the	trial	court	can,	on	remand,	increase	a	sentence	that	is	subject	to	appeal.		See	

15	 M.R.S.	 §	 2156(1-A)	 (2017).	 	 However,	 on	 a	 vacate	 and	 remand,	 if	 the	

sentencing	 court	 is	 required	 to	 articulate	 its	 determination	 regarding	 the	

“basic”	 sentence	 and	 the	 “maximum”	 sentence,	 the	 court	 could	 and	 perhaps	

would	determine	that	the	recommended	cap	sentences	were	unacceptably	low.		

With	the	determination	that	the	recommended	sentence	was	too	low,	the	court	

could	reject	the	plea	arrangement,	allow	Bean	to	withdraw	his	pleas,	and	set	

the	 matter	 for	 trial.	 	 See	 M.R.U.	 Crim.	 P.	 11A(d).	 	 After	 trial,	 a	 new,	 higher	

sentence	 likely	 would	 be	 imposed	 should	 Bean	 be	 found	 guilty—a	 virtual	
   	                                                                                   31	

certainty	considering	his	own	admissions	to	operating	while	seriously	 under	

the	influence.	

       [¶57]	 	 The	 defendant,	 in	 his	 arguments,	 cites	 State	 v.	 Palmer,	

468	A.2d	985,	 987-988	 (Me.	 1983),	 to	 support	 the	 proposition	 that	 the	

sentencing	 court	 cannot	 increase	 a	 sentence	 once	 that	 sentence	 has	 been	

imposed.		Palmer,	which	relied	on	United	States	Supreme	Court	precedent,	was	

decided	a	quarter	century	before	the	United	States	Supreme	Court’s	opinion	in	

Padilla	v.	Kentucky,	559	U.S.	356	(2010).	

       [¶58]		Here,	Bean	is	seeking	a	remand,	post-conviction,	for	the	trial	court	

to	 make	 findings	 that	 could	 well	 require	 the	 trial	 court	 to	 reject	 the	 agreed	

sentencing	cap	and	reset	the	case	for	trial,	with	a	potentially	higher	sentence	

after	 trial,	 not	 bound	 by	 the	 plea	 agreement.	 	 In	 rejecting	 “opening	 the	

floodgates”	 arguments	 apparently	 advanced	 by	 those	 concerned	 about	 the	

adoption	of	new	grounds	to	challenge	guilty	pleas,	the	Padilla	Court	observed	

that	most	post-conviction	challenges	address	convictions	after	trial,	not	after	

plea.		Padilla,	559	U.S.	at	372.		Then,	addressing	post-conviction	challenges	to	

pleas,	the	Court	observed:	

       The	nature	of	relief	secured	by	a	successful	collateral	challenge	to	
       a	guilty	plea—an	opportunity	to	withdraw	the	plea	and	proceed	to	
       trial—imposes	 its	 own	 significant	 limiting	 principle:	 Those	 who	
       collaterally	attack	their	guilty	pleas	lose	the	benefit	of	the	bargain	
32	   	

          obtained	as	a	result	of	the	plea.		Thus,	a	different	calculus	informs	
          whether	it	is	wise	to	challenge	a	guilty	plea	in	a	habeas	proceeding	
          because,	 ultimately,	 the	 challenge	 may	 result	 in	 a	 less	 favorable	
          outcome	 for	 the	 defendant,	 whereas	 a	 collateral	 challenge	 to	 a	
          conviction	 obtained	 after	 a	 jury	 trial	 has	 no	 similar	 downside	
          potential.	
	
Id.	at	372-373.		
	
	     [¶59]	 	 The	 Court’s	 warning	 must	 be	 taken	 soberly	 by	 one	 invoking	 a	

post-conviction	challenge	to	a	plea,	or	as	here,	seeking	to	undo,	post-conviction,	

an	agreement	for	a	plea	and	a	sentencing	cap.		In	essence,	Padilla	warns	that	a	

successful	post-conviction	challenge	to	a	plea	takes	the	case	back	to	where	it	

was	before	the	plea.		See	id.		If	the	plea	resulted	in	a	felony	being	reduced	to	a	

misdemeanor,	the	felony	charge	may	be	reinstated	and	prosecuted.		If	charges	

were	 dismissed	 in	 exchange	 for	 the	 plea,	 the	 dismissed	 charges	 may	 be	

reinstated	 and	 prosecuted.	 	 If	 the	 charge	 was	 amended	 to	 eliminate	 an	

aggravating	 factor	 or	 a	 mandatory	 minimum	 sentence	 requirement,	 those	

enhancements	 may	 be	 reinstated	 and	 prosecuted.	 	 If	 the	 plea	 resulted	 in	 a	

lighter	sentence,	a	more	severe	sentence	may	be	imposed	if	there	is	a	conviction	

after	 trial.	 	 And	 if	 the	 case	 reverts	 to	 pre-plea	 status,	 bail	 requirements	 may	

again	be	imposed.	

          [¶60]	 	 Thus,	 Bean’s	 appeal	 taken	 here	 was	 not	 without	 considerable	

long-term	risk	if,	in	the	short-term,	he	had	prevailed.		Because	the	sentencing	
    	                                                                            33	

court	properly	and	appropriately	respected	the	plea	agreement	reached	by	the	

prosecution	and	the	defense	and	elected	not	to	embarrass	them	by	an	honest	

articulation	of	the	factors	stated	in	section	1252-C,	the	trial	court	committed	no	

error	in	its	sentencing	statement.		I	concur	in	affirming	the	sentence.	

	        	        	         	   	   	

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	
	
	
Oxford	County	Unified	Criminal	Docket	docket	number	CR-2015-414	
FOR	CLERK	REFERENCE	ONLY	
