MAINE	SUPREME	JUDICIAL	COURT	                                       Reporter	of	Decisions	
Decision:	 2019	ME	44	
Docket:	   And-18-275	
Argued:	   March	5,	2019	
Decided:	  March	26,	2019	
	
Panel:	    SAUFLEY,	C.J.,	and	ALEXANDER,	MEAD,	GORMAN,	JABAR,	HJELM,	and	HUMPHREY,	JJ.	
	
	
                                      STATE	OF	MAINE	
                                              	
                                             v.	
                                              	
                                    MICHAEL	G.	CUNNEEN	
	
	
HJELM,	J.	

        [¶1]	 	 Michael	 G.	 Cunneen	 appeals	 from	 a	 judgment	 convicting	 him	 of	

unlawful	possession	of	scheduled	drugs	(hydrocodone)	(Class	C),	17-A	M.R.S.	

§	1107-A(1)(B-1)(5)	 (2018);1	 unlawful	 possession	 of	 scheduled	 drugs	

(diazepam)	 (Class	 E),	 17-A	 M.R.S.	 §	1107-A(1)(E)	 (2018);	 and	 refusing	 to	

submit	 to	 arrest	 or	 detention	 (Class	 E),	 17-A	 M.R.S.	 §	 751-B(1)(A)	 (2018),	

entered	in	the	Unified	Criminal	Docket	(Androscoggin	County,	Kennedy,	J.)	after	

a	jury	trial.		Cunneen	argues	that	the	court	(Clifford,	A.R.J.)	erred	by	denying	his	

motion	 to	 suppress	 evidence	 obtained	 as	 the	 result	 of	 a	 roadside	 encounter	

with	 a	 police	 officer.	 	 He	 also	 asserts	 that	 the	 court	 (Kennedy,	 J.)	 erred	 by	



    1		This	charge	is	a	Class	C	offense	because	it	contains	an	allegation	that	Cunneen	previously	had	

been	convicted	of	one	of	several	types	of	drug-related	crimes.		
2	

engaging	 in	 a	 sentencing	 analysis	 that	 did	 not	 comply	 with	 the	 framework	

prescribed	in	17-A	M.R.S.	§	1252-C	(2018).2		We	affirm	the	judgment.	

                                            I.		BACKGROUND	

         [¶2]		Given	the	issues	presented	on	this	appeal,	the	following	description	

of	 the	 record	 largely	 focuses	 on	 the	 evidence	 presented	 at	 the	 hearing	 on	

Cunneen’s	suppression	motion—which	we	view	in	the	light	most	favorable	to	

the	court’s	order,	see	State	v.	Collier,	2013	ME	44,	¶	2,	66	A.3d	563—and	the	

sentencing	hearing.			

         [¶3]	 	 On	 the	 night	 of	 March	 28,	 2017,	 a	 Mechanic	 Falls	 police	 officer	

noticed	a	van	leaving	a	parking	lot	near	an	area	that	previously	had	generated	

complaints	of	drug	activity.		The	vehicle	was	traveling	in	the	opposite	direction	

of	 the	 police	 cruiser,	 so	 the	 officer	 turned	 his	 cruiser	 around	 and	 began	

following	 the	 van,	 which	 eventually	 turned	 onto	 a	 “dark”	 and	 “not	 heavily	

traveled”	street	in	a	residential	neighborhood.	




     2		Cunneen	also	argues	that	during	the	trial	the	court	(Kennedy,	J.)	abused	its	discretion	by	denying	

his	two	motions	for	a	mistrial	that	were	based	on	a	statement	made	by	the	investigating	officer	during	
the	officer’s	testimony	and	the	publication	of	a	very	brief	portion	of	the	recording	of	the	roadside	
investigation	containing	a	statement	that	the	parties	had	agreed	would	not	be	presented	to	the	jury.		
Cunneen’s	challenges	to	the	court’s	denial	of	his	motions	for	a	mistrial	are	unpersuasive,	and	we	do	
not	address	them	further.		See	State	v.	Bridges,	2004	ME	102,	¶	11,	854	A.2d	855	(stating	that	“[a]	
motion	 for	 a	 mistrial	 should	 be	 denied	 except	 in	 the	 rare	 circumstance	 that	 the	 trial	 is	 unable	 to	
continue	with	a	fair	result	and	only	a	new	trial	will	satisfy	the	interests	of	justice”);	see	also	State	v.	
Tarbox,	2017	ME	71,	¶	18,	158	A.3d	957.	
                                                                                        3	

      [¶4]		Without	being	signaled	in	any	way	to	stop,	the	van	pulled	to	the	side	

of	the	road	at	a	spot	where	there	were	 no	nearby	 houses	or	 driveways.		The	

officer	 pulled	 behind	 the	 van	 and	 activated	 his	 rear	 emergency	 light	 “so	 that	

.	.	.	[he]	could	be	.	.	.	located	if	anything	was	to	happen.”		The	ensuing	encounter	

between	 Cunneen	 and	 the	 officer	 was	 recorded	 on	 the	 cruiser’s	 windshield	

camera.		The	driver	of	the	van—Cunneen—extended	his	left	arm	and	head	from	

the	driver’s	side	window.		Cunneen	initiated	verbal	contact	with	the	officer	by	

asking	 what	 was	 going	 on,	 and	 the	 officer	 responded,	 “I’m	 finding	 out	 why	

you’re	 pulling	 over.”	 	 Cunneen	 replied	 that	 he	 “pulled	 over	 because	 [he]	 saw	

[the	officer]	turn	around.”			

      [¶5]		When	the	officer,	using	a	flashlight,	approached	the	driver’s	side	of	

the	 van,	 he	 noticed	 “a	 large	 chunk	 of	 what	 appeared	 to	 be	 white	 powdery	

residue	 in	 [Cunneen’s]	 nostril.”	 	 The	 officer	 suspected	 that	 the	 white	 residue	

was	drugs,	and	he	also	noted	an	odor	of	alcohol	emanating	from	the	vehicle.		

The	officer	asked	Cunneen	to	step	out	of	the	vehicle	and	place	his	hands	on	the	

rear	of	the	van.			

      [¶6]	 	 Cunneen	 was	 less	 than	 fully	 compliant,	 and	 the	 officer	 instructed	

Cunneen	“numerous	times	to	put	his	hands	behind	his	back,	stop	resisting	and	

pulling	away.”		Several	times,	Cunneen	walked	away	from	the	officer	and,	at	one	
4	

point,	can	be	seen	on	the	recording	throwing	an	object	into	a	snowbank	on	the	

side	of	the	road.3		Despite	the	officer’s	orders,	Cunneen	“continued	to	scream	

and	holler”	and	“was	pulling	away	from	[the	officer],	turning	his	body,	[and]	not	

being	compliant	to	commands.”		Cunneen	continued	to	refuse	to	submit	to	the	

officer,	remained	argumentative,	and	eventually	was	placed	under	arrest.	

         [¶7]		After	being	charged	initially	by	criminal	complaint,	in	July	of	2017	

Cunneen	 was	 indicted	 for	 the	 three	 charges	 for	 which	 he	 now	 stands	

convicted—unlawful	possession	of	scheduled	drugs	(hydrocodone)	(Class	C);	

unlawful	possession	of	scheduled	drugs	(diazepam)	(Class	E);	and	refusing	to	

submit	 to	 arrest	 or	 detention	 (Class	 E)—and	 a	 fourth	 charge,	 unlawful	

possession	 of	 scheduled	 drugs	 (hydrocodone)	 (Class	 D),	 17-A	 M.R.S.	

§	1107-A(1)(C)	(2018),	which	the	State	dismissed	prior	to	trial.			

         [¶8]		Contending	that	his	roadside	interaction	with	the	officer	rose	to	the	

level	of	a	detention	and	was	not	supported	by	reasonable	articulable	suspicion,	




     3		After	reviewing	the	video	later	in	the	evening	and	seeing	the	images	of	Cunneen	throwing	the	

object	into	the	snow	bank,	the	officer	returned	to	the	scene	and	recovered	a	pill	bottle	that	contained	
twenty	hydrocodone	pills	and	more	than	sixty	diazepam	pills.		This	evidence	formed	the	basis	for	the	
drug	charges	in	this	case.			

    The	recording	also	shows	that,	after	Cunneen	exited	the	van	at	the	officer’s	direction,	a	passenger	
in	the	van	moved	into	the	driver’s	seat	and,	at	Cunneen’s	instruction	but	in	defiance	of	the	officer’s	
order,	sped	away	from	the	scene,	but	before	doing	so	drove	very	close	to	the	officer	and	calmly	said,	
“You	can	shoot	me	right	now,	sir,	or	you	can	let	us	go.”			
                                                                                          5	

Cunneen	moved	to	suppress	all	evidence	obtained	as	a	result	of	that	encounter.		

After	 holding	 a	 hearing	 in	 January	 of	 2018,	 the	 court	 (Clifford,	 A.R.J.)	 denied	

Cunneen’s	motion,	concluding	that	the	officer	did	not	detain	Cunneen	until	the	

officer	observed	the	white	powder	in	Cunneen’s	nose.		The	court	determined	

that	 the	 officer’s	 observation	 constituted	 reasonable	 articulable	 suspicion	 of	

criminal	conduct,	which	then	allowed	the	officer	to	detain	Cunneen.			

       [¶9]		Cunneen	moved	for	further	findings	of	fact	and	conclusions	of	law,	

which	 consisted	 of	 a	 series	 of	 interrogatories	 to	 the	 court	 on	 several	 factual	

aspects	 of	 the	 suppression	 issue.	 	 In	 response,	 the	 court	 issued	 an	 order	

containing	 additional	findings,	 all	of	which	are	supported	by	the	record.		See	

State	v.	Seamon,	2017	ME	123,	¶	2,	165	A.3d	342.		Among	the	findings	were	that,	

while	the	officer	followed	the	van	operated	by	Cunneen,	neither	the	cruiser’s	

blue	 lights	 nor	 the	 siren	 was	 activated;	 Cunneen	 stopped	 the	 van	 of	 his	 own	

volition;	 and	 until	 the	 officer	 was	 close	 enough	 to	 Cunneen	 to	 observe	 the	

powdery	 substance	 in	 Cunneen’s	 nostril,	 there	 was	 no	 detention	 or	 stop	 for	

constitutional	purposes.			

       [¶10]		In	May	of	2018,	the	court	(Kennedy,	J.)	held	a	one-day	jury	trial,	

which	 resulted	 in	 guilty	 verdicts	 on	 all	 three	 charges.	 	 After	 holding	 a	

sentencing	hearing	the	following	month,	the	court	sentenced	Cunneen	on	the	
6	

Class	 C	 charge	 of	 unlawful	 possession	 of	 scheduled	 drugs	 to	 one	 year	 of	

incarceration	 with	 all	 but	 seven	 days	 suspended,	 one	 year	 of	 probation,	 the	

minimum	 mandatory	 fine	 of	 $400,	 and	 restitution	 for	 the	 cost	 of	 the	 drug	

analysis.		The	court	imposed	a	concurrent	seven-day	jail	term	on	the	charge	of	

refusing	 to	 submit	 to	 arrest	 or	 detention	 and	 another	 minimum	 mandatory	

$400	fine	on	the	Class	E	charge	of	unlawful	possession	of	scheduled	drugs.	

      [¶11]		Cunneen	filed	a	timely	direct	appeal,	see	15	M.R.S.	§	2115	(2018);	

M.R.	 App.	 P.	 2B(b)(1),	 but	 did	 not	 apply	 for	 sentence	 review,	 see	 15	M.R.S.	

§§	2151-2157	(2018);	M.R.	App.	P.	20.	

                                   II.		DISCUSSION	

      [¶12]	 	 Cunneen	 argues	 on	 appeal	 that	 the	 court	 erred	 by	 denying	 his	

motion	to	suppress	the	evidence	obtained	as	a	result	of	the	roadside	encounter	

with	the	officer,	including	the	pill	bottle	and	its	contents,	and	by	considering	

Cunneen’s	behavior	while	resisting	arrest	as	an	aggravating	factor	on	all	counts,	

after	 the	 court	 had	 already	 considered	 that	 same	 factor	 in	 setting	 a	 basic	

sentence	for	the	charge	of	resisting	arrest.	

A.    Motion	to	Suppress		

      [¶13]		The	dispositive	question	raised	in	Cunneen’s	suppression	motion	

is	when,	during	his	roadside	encounter	with	the	officer,	he	became	subject	to	
                                                                                         7	

detention.	 	 Cunneen	 contends	 that	 the	 officer’s	 actions—which	 included	

turning	 the	 cruiser	 around	 after	 observing	 Cunneen	 leave	 the	 parking	 area,	

following	 Cunneen’s	 van,	 activating	 the	 cruiser’s	 rear	 light	 bar	 after	 both	

vehicles	had	come	to	a	stop,	and	approaching	Cunneen’s	van	with	a	flashlight—

resulted	in	a	Fourth	Amendment	detention	because	those	actions	constituted	a	

show	of	authority	sufficient	to	lead	a	reasonable	person	to	conclude	that	he	was	

not	 free	 to	 leave.	 	 The	 State,	 on	 the	 other	 hand,	 asserts—and	 the	 court	

concluded—that	 there	 was	 no	 detention	 until	 the	 officer	 observed	 the	 white	

powder	in	Cunneen’s	nose.		“When	reviewing	a	ruling	on	a	motion	to	suppress,	

we	review	the	court’s	factual	findings	for	clear	error	and	its	legal	conclusions	

de	 novo”	 and	 “will	 uphold	 the	 court’s	 denial	 of	 a	 motion	 to	 suppress	 if	 any	

reasonable	 view	 of	 the	 evidence	 supports	 the	 court’s	 decision.”	 	 State	 v.	

Marquis,	2018	ME	39,	¶	15,	181	A.3d	684.	

      [¶14]		The	inquiry	as	to	whether	a	seizure	has	occurred	is	an	objective	

one.		State	v.	Ciomei,	2015	ME	147,	¶	8,	127	A.3d	548.		A	seizure	implicating	the	

Fourth	 Amendment	 occurs	 when,	 “in	 view	 of	 all	 of	 the	 circumstances	

surrounding	the	incident,	a	reasonable	person	would	have	believed	that	he	was	

not	 free	 to	 leave.”	 	 Collier,	 2013	 ME	 44,	 ¶	 7,	 66	 A.3d	 563	 (quotation	 marks	

omitted).		
8	

      [¶15]		As	we	have	held,	not	“every	contact	between	police	and	a	citizen	

implicates	the	Fourth	Amendment	right	to	be	free	from	unreasonable	searches	

and	 seizures;	 an	 officer	 may	 approach	 a	 citizen	 and	 engage	 in	 a	 consensual	

conversation	 without	 effecting	 a	 detention	 for	 purposes	 of	 the	 Fourth	

Amendment,	and	thus	need	not	have	an	articulable	suspicion	before	engaging	

in	 that	 conversation.”	 	 Id.	 (alteration	 and	 quotation	 marks	 omitted);	 see	 also	

State	v.	Gulick,	2000	ME	170,	¶	17	n.7,	759	A.2d	1085.		The	question	of	whether	

an	officer	has	detained	someone—or	is	 merely	engaged	in	 an	encounter	that	

falls	short	of	having	constitutional	significance—involves	a	consideration	of	an	

officer’s	use	of	physical	force	or	show	of	authority.		Collier,	2013	ME	44,	 ¶	8,	

66	A.3d	563.		Relevant	factors	include,	for	example,	“the	threatening	presence	

of	several	officers;	the	display	or	use	of	a	weapon;	the	use	of	physical	touching	

or	 force;	 the	 language	 or	 tone	 of	 voice	 indicating	 that	 compliance	 with	 the	

officer’s	 request	 might	 be	 compelled;	 whether	 the	 officer	 was	 blocking	 the	

defendant’s	path	to	leave;	the	use	of	sirens,	lights,	or	a	loudspeaker;	the	display	

of	a	badge	or	wearing	of	a	uniform;	the	location	of	the	encounter;	whether	there	

was	a	chase;	 and	whether	the	officer	approaches	on	foot	or	in	 a	vehicle.”		Id.	

(quotation	marks	omitted).			
                                                                                                                 9	

        [¶16]	 	 Here,	 Cunneen’s	 choice	 to	 stop	 his	 vehicle	 did	 not	 implicate	 the	

Fourth	Amendment.		Cunneen	pulled	to	the	side	of	the	road	and	stopped	his	van	

when	 the	 officer	 merely	 followed	 him	 without	 having	 activated	 the	 cruiser’s	

emergency	lights	or	siren	and	without	having	signaled	Cunneen	in	some	other	

way	to	stop.		See	id.	¶	9	(“As	a	matter	of	law,	the	mere	fact	that	a	trooper	was	

driving	 behind	 [the	 appellant],	 even	 as	 [the	 appellant]	 turned	 into	 an	 empty	

parking	lot,	cannot	support	the	finding	of	a	seizure.”);	see	also	Gulick,	2000	ME	

170,	¶¶	3,	11,	759	A.2d	1085;	State	v.	Brewer,	1999	ME	58,	¶	12,	727	A.2d	352.		

Indeed,	 the	 motion	 court	 did	 not	 find—and	 the	 evidence	 presented	 at	 the	

suppression	 hearing	 did	 not	 require	 the	 court	 to	 find4—that	 when	 Cunneen	




    4		Maine	Rule	of	Unified	Criminal	Procedure	41A(d)	requires	a	court	to	make	findings	of	fact	and	

conclusions	of	law	in	support	of	an	order	adjudicating	a	suppression	motion.		If	the	court	fails	to	do	
so,	 the	 rule	 then	 allows	 a	 party	 to	 request	 that	 the	 court	 issue	 findings	 and	 conclusions.	 	 M.R.U.	
Crim.	P.	41A(d).		Here,	although	the	court	issued	an	initial	set	of	findings	and	conclusions,	Cunneen	
requested	additional	findings	and	conclusions	but	did	so	in	a	motion	that	presented	the	court	with	a	
series	of	questions.		That	format	would	be	fatally	defective	pursuant	to	the	analogue	of	the	rule	that	
applies	in	civil	proceedings	because	in	civil	cases	a	motion	for	further	findings	and	conclusions	must	
present	the	proposed	affirmative	findings	and	conclusions	that	the	movant	seeks	the	court	to	issue.		
See	M.R.	Civ.	P.	52(b);	Eremita	v.	Marchiori,	2016	ME	160,	¶	3,	150	A.3d	336.		Neither	criminal	rule	
41A(d)	nor	our	case	law	extends	that	requirement	to	motions	for	findings	and	conclusions	filed	in	
criminal	cases.		Nonetheless,	to	effectively	focus	the	court	on	the	evidence	and	issues	that	the	movant	
wishes	 the	 court	 to	 address,	 a	 prudent	 party	 in	 a	 criminal	 case	 who	 files	 a	 motion	 pursuant	 to	
Rule	41A(d)	will	adhere	to	the	requirements	associated	with	the	civil	rules.	

    Even	if	Cunneen’s	motion	for	findings	and	conclusions	can	be	seen	as	adequate	pursuant	to	Rule	
41A(d),	he	did	not	request	that	the	court	address	the	factual	question	of	whether	he	had	been	aware	
that	he	was	being	followed	by	a	police	officer	rather	than	someone	not	in	law	enforcement.		Because	
of	the	lack	of	any	request	for	the	court	to	address	that	issue,	we	would	be	free	to	attribute	to	the	court	
an	implicit	finding,	which	is	supported	by	the	evidence,	that,	when	Cunneen	stopped	his	vehicle	by	
the	side	of	the	road,	he	did	not	know	that	it	was	a	police	officer	who	had	been	following	him.		See	
10	

stopped	he	even	knew	that	he	was	being	followed	by	a	police	officer.		The	court	

correctly	found	that	Cunneen	was	not	seized	for	Fourth	Amendment	purposes	

when	he	pulled	to	the	side	of	the	road.			

        [¶17]		Cunneen	further	contends	that	his	interaction	with	the	officer	rose	

to	the	level	of	a	Fourth	Amendment	seizure	when	the	officer	emerged	from	the	

cruiser	and	informed	Cunneen	that	he	was	there	to	“find[]	out”	what	Cunneen	

was	 doing.	 	 An	 examination	 of	 the	 factors	 germane	 to	 the	 detention	 analysis	

does	not	make	the	contrary	conclusion	erroneous.		Although	the	officer	was	in	

uniform	 and	 was	 driving	 a	 marked	 police	 cruiser,	 he	 was	 alone.	 	 He	 did	 not	

display	 a	 weapon	 or	 badge,	 activate	 his	 siren	 or	 flashing	 blue	 lights	 facing	

Cunneen,	or	block	Cunneen	from	leaving.		Cunneen	initiated	verbal	contact	with	

the	officer	by	asking	him	what	was	going	on.		When	the	officer	responded	by	

saying	that	he	was	trying	to	find	out	why	Cunneen	had	pulled	over,	the	officer	

did	not	touch	Cunneen,	issue	any	command,	or	respond	in	a	tone	of	voice	that	

indicated	compliance	was	required	or	that	exerted	authority.		See	Collier,	2013	

ME	44,	¶	8,	66	A.3d	563;	cf.	State	v.	Patterson,	2005	ME	26,	¶¶	6,	14,	868	A.2d	

188	 (affirming	 a	 suppression	 order	 because	 the	 trial	 court	 reasonably	 could	



Sullivan	 v.	 Tardiff,	 2015	 ME	 121,	 ¶	 15,	 124	 A.3d	 652.	 	 This	 would	 further	 weaken	 any	 claim	 by	
Cunneen	that	his	constitutional	rights	were	violated	when	he	stopped	by	the	side	of	the	road.	
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have	 found	 that	 the	 officer’s	 request	 to	 “‘please	 roll	 down	 the	 window’”	

constituted	an	order).		Further,	given	the	time	of	night	and	the	absence	of	any	

ambient	lighting,	the	officer’s	use	of	a	flashlight	did	not	convert	the	situation	

into	a	detention.			

      [¶18]		Almost	immediately	after	the	officer	was	in	Cunneen’s	immediate	

presence,	the	officer	noticed	a	white	powdery	substance	in	Cunneen’s	nostril.		

Particularly	 when	 combined	 with	 the	 odor	 of	 alcohol	 the	 officer	 detected	 as	

coming	from	the	 van,	this	 justified	an	investigatory	 detention	of	Cunneen—a	

conclusion	that	Cunneen	does	not	challenge.		See	State	v.	Moulton,	1997	ME	228,	

¶	 10,	 704	 A.2d	 361.	 	 Up	 to	 that	 point,	 however,	 the	 officer’s	 conduct	 and	

interaction	 with	 Cunneen	 did	 not	 rise	 to	 the	 level	 of	 a	 Fourth	 Amendment	

seizure,	and	the	court	did	not	err	by	denying	Cunneen’s	motion	to	suppress.		

B.    Sentencing		

      [¶19]		Cunneen	argues	that	the	court	erred	by	considering	his	behavior	

when	 he	 resisted	 arrest	 as	 an	 aggravating	 factor	 to	 determine	 the	 maximum	

period	of	incarceration	in	the	second	of	the	three-step	sentencing	framework,	

when	the	court	had	already	considered	that	evidence	in	determining	the	basic	

sentence,	which	is	the	first	step	of	the	process.		In	effect,	Cunneen	contends	that	
12	

the	court	double-counted	a	factor	in	its	sentencing	analysis.		The	claim	of	error	

is	not	borne	out	by	the	record.	

        [¶20]		We	first	note	that	the	sentences	involving	incarceration,	which	had	

the	overall	effect	of	one	year	with	all	but	seven	days	suspended,	were	exactly	

what	Cunneen	urged	the	court	to	impose.5		Although	here	he	seeks	to	challenge	

the	sentences,	the	court’s	adoption	of	his	sentence	recommendations	makes	it	

difficult	for	him	to	persuasively	assert	error.			

        [¶21]		Regardless	of	whether	Cunneen	would	be	able	to	clear	this	hurdle	

on	the	merits,	his	challenge	is	not	cognizable	on	this	direct	appeal.		After	the	

jury	 returned	 guilty	 verdicts,	 the	 court	 became	 responsible	 for	 imposing	

sentences	 on	 three	 charges—one	 Class	C	 crime	 and	 two	 Class	 E	 crimes.	 	 The	

three-step	process	that	is	the	predicate	of	Cunneen’s	challenge	to	the	sentences	

does	 not	 apply	 to	 Class	 D	 or	 E	 crimes	 and	 therefore	 applies	 here	 only	 to	 the	

Class	 C	 drug	 possession	 charge.	 	 See	 17-A	M.R.S.	 §	1252-C.	 	 Pursuant	 to	 that	

statute,	in	the	first	step	of	the	sentencing	analysis,	the	court	was	required	to	

impose	the	basic	sentence	based	on	“the	particular	nature	and	seriousness	of	


   5		Cunneen	requested	that	the	court	impose	on	count	1	a	sentence	of	one	year	with	all	but	7	days	

suspended,	and	a	seven-day	concurrent	sentence	on	the	count	that	Cunneen	identified	as	count	3,	but	
which,	due	to	the	pretrial	dismissal	of	the	original	count	2,	in	reality	appears	to	be	count	4.		These	are	
the	 sentences	 the	 court	 imposed.	 	 The	 court’s	 only	 departure	 from	 Cunneen’s	 sentence	
recommendations	was	to	impose	the	minimum	mandatory	fines	on	the	drug	charges	rather	than	to	
waive	the	fines	as	Cunneen	had	requested.			
                                                                                    13	

the	 offense	 as	 committed	 by	 the	 offender.”	 	 17-A	 M.R.S.	 §	 1252-C(1);	 see	

Seamon,	2017	 ME	123,	¶	12	 n.2,	 165	A.3d	342.		Here,	the	court	set	the	basic	

sentence	at	the	“low	end”	of	the	range	of	a	lawful	sentence	and,	in	doing	so,	did	

not	state	that	it	was	considering	Cunneen’s	resistive	behavior	during	the	traffic	

stop.			

       [¶22]		The	court	next	turned	to	the	second	step	of	the	sentencing	process	

to	determine	the	maximum	period	of	incarceration	in	order	to	individualize	the	

ultimate	 sentence	 through	 a	 consideration	 of	 “all	 other	 relevant	 sentencing	

factors,	both	aggravating	and	mitigating,	appropriate	to	that	case.”		17-A	M.R.S.	

§	1252-C(2);	see	Seamon,	2017	ME	123,	¶	12,	n.2,	165	A.3d	342;	State	v.	Cook,	

2011	ME	94,	¶	12,	26	A.3d	834.		This	is	when	the	court	referred	to	Cunneen’s	

challenging	 and	 uncooperative	 behavior	 during	 his	 interaction	 with	 the	

officer—some	of	the	same	conduct	that	gave	rise	to	the	charge	of	refusing	to	

submit	to	arrest	or	detention.		Based	on	this,	as	well	as	mitigating	factors	that	

it	articulated,	the	court	set	the	maximum	sentence	at	one	year.			

       [¶23]	 	 In	 setting	 that	 maximum	 sentence,	 the	 court	 did	 not	 state	 or	

otherwise	suggest	that	it	was	applying	that	part	of	the	analysis	to	the	charge	of	

refusing	 to	 submit	 to	 arrest—in	 fact,	 the	 court	 had	 already	 articulated	 the	

sentence	 to	 be	 imposed	 on	 that	 charge.	 	 Therefore,	 contrary	 to	 Cunneen’s	
14	

contention,	 the	 court	 did	 not	 engage	 in	 double-counting	 any	 factor	 against	

Cunneen.		As	Cunneen’s	behavior	during	his	roadside	encounter	with	the	officer	

bears	 on	 the	 Class	 C	 crime,	 the	 court	 considered	 it	 only	 once—during	 the	

second	step	of	the	sentencing	process.		And	as	that	factor	related	to	the	resisting	

charge	itself,	the	court	also	considered	it	only	once—when	it	set	the	sentence.			

       [¶24]		Because	the	court	evaluated	the	evidence	only	once	in	sentencing	

Cunneen	on	the	Class	C	charge,	the	only	possible	error	committed	by	the	court	

would	 be	 when,	 in	 the	 three-step	 process,	 it	 took	 that	 evidence	 into	 account.		

For	 example,	 a	 court	 might	 err	 by	 characterizing	 certain	 evidence	 as	 an	

aggravating	factor	in	the	second	step	of	the	sentencing	process	if	that	evidence	

should	 have	 been	 taken	 into	 consideration	 in	 the	 first	 step,	 when	 the	 court	

assesses	the	way	the	crime	itself	was	committed.6			

       [¶25]		On	a	direct	appeal	of	a	sentence,	which	is	the	process	that	Cunneen	

has	invoked	here,	the	justiciable	questions	are	limited	to	claims	that	a	sentence	

is	illegal,	was	imposed	in	an	illegal	manner,	or	is	beyond	the	court’s	jurisdiction.		

State	v.	Bennett,	2015	ME	46,	¶	11,	114	A.3d	994;	see	also	State	v.	Cunningham,	




  6		In	fact,	in	his	sentencing	memorandum	presented	to	the	trial	court,	Cunneen	stated	that	his	own	

behavior	toward	the	officer	was	an	aggravating	factor,	which	would	therefore	be	considered	during	
the	second	step	of	the	sentencing	process—an	approach	that	Cunneen	may	now	be	seen	to	present	
as	judicial	error.			
                                                                                    15	

1998	ME	167,	¶	5,	715	A.2d	156	(stating	that	“we	do	not	consider	the	legality	

of	a	sentence	on	direct	appeal	unless	a	jurisdictional	infirmity	appears	on	the	

record	 so	 plainly	 as	 to	 preclude	 rational	 disagreement	 as	 to	 its	 existence.”	

(quotation	marks	omitted)).		The	sentences	imposed	here	were	neither	illegal	

nor	outside	of	the	court’s	jurisdiction.			

      [¶26]	 	 Beyond	 that,	 we	 have	 made	 clear	 that	 “[a]	 departure	 from	 the	

sentencing	process	set	forth	in	State	v.	Hewey,	622	A.2d	1151	(Me.	1993)[,]	and	

now	codified	at	[17-A	M.R.S.	§	1252-C],	creates	no	reviewable	issue	on	direct	

appeal.”		Cunningham,	1998	ME	167,		¶	5,	715	A.2d	156.		Because	of	the	nature	

of	any	possible	error,	Cunneen	was	required	to	have	raised	it	by	seeking	leave	

with	 this	 Court’s	 Sentence	 Review	 Panel	 to	 allow	 a	 discretionary	 review	 of	

sentence	pursuant	to	15	M.R.S.	§	2152	and	Maine	Rule	of	Appellate	Procedure	

20.		Because	Cunneen	did	not	apply	to	pursue	a	discretionary	appeal	but	rather	

has	pursued	his	claim	only	on	this	direct	appeal,	we	do	not	consider	his	claim	

of	error.	

                                 III.		CONCLUSION	

      [¶27]		The	officer’s	interaction	with	Cunneen	before	he	observed	a	white	

powdery	 substance	 in	 Cunneen’s	 nostril	 did	 not	 constitute	 a	 Fourth	
16	

Amendment	 seizure,	 and	 any	 potential	 challenge	 to	 his	 sentence	 is	 not	

cognizable	on	direct	appeal.		We	therefore	affirm	the	judgment.	

         The	entry	is:	

                            Judgment	affirmed.		
	
	     	     	      	     	    	
	
Rory	 A.	 McNamara,	 Esq.	 (orally),	 Drake	 Law,	 LLC,	 Berwick,	 for	 appellant	
Michael	G.	Cunneen	
	
Andrew	S.	Robinson,	District	Attorney,	Nathan	Walsh,	Asst.	Dist.	Atty.	(orally),	
and	Michael	B.	Dumas,	Asst.	Dist.	Atty.,	Prosecutorial	District	III,	Lewiston,	for	
appellee	State	of	Maine	
	
	
Androscoggin	County	Unified	Criminal	Docket	docket	number	CR-2017-951	
FOR	CLERK	REFERENCE	ONLY	
	
