MAINE	SUPREME	JUDICIAL	COURT	                                       Reporter	of	Decisions	
Decision:	 2018	ME	147	
Docket:	   Aro-16-556	
Argued:	   September	14,	2017	
Decided:	  November	6,	2018	
	
Panel:	    SAUFLEY,	C.J.,	and	ALEXANDER,	MEAD,	GORMAN,	JABAR,	HJELM,	and	HUMPHREY,	JJ.	
Majority:	 SAUFLEY,	C.J.,	and	ALEXANDER,	MEAD,	GORMAN,	HJELM,	and	HUMPHREY,	JJ.	
Dissent:	  JABAR,	J.	
	
	
                                         STATE	OF	MAINE	
                                                 	
                                                v.	
                                                 	
                                         TROY	D.	HASTEY	
	
	
HUMPHREY,	J.	

	       [¶1]		In	this	appeal	we	address	the	question	of	whether	evidence	of	the	

factual	 circumstances	 underpinning	 a	 defendant’s	 prior	 manslaughter	

conviction	is	admissible	to	establish	an	enhancing	factor	necessary	to	convict	

the	defendant	of	the	Class	B	offense	of	operating	a	motor	vehicle	while	under	

the	influence	of	intoxicants.			

        [¶2]	 	 In	 February	 2016,	 Troy	 D.	 Hastey	 was	 indicted	 for	 aggravated	

criminal	OUI	(Class	B),	29-A	M.R.S.	§	2411(1-A)(D)(2)	(2017).1		The	enhancing	




    1		As	relevant	to	this	case,	29-A	M.R.S.	§	2411(1-A)(D)(2)	(2017)	provides	that	a	person	commits	

the	 enhanced	 OUI	 offense	 if	 that	 person	 operates	 a	 motor	 vehicle	 while	 under	 the	 influence	 of	
intoxicants	and	has	“a	prior	criminal	homicide	conviction	involving	or	resulting	from	the	operation	
of	a	motor	vehicle	while	under	the	influence	of	intoxicating	liquor	or	drugs	.	.	.	.		For	purposes	of	this	
subparagraph,	 the	 10–year	 limitation	 specified	 in	 section	 2402	 and	 Title	 17-A,	 section	 9-A,	
2	

factor	alleged	in	the	indictment	is	Hastey’s	1991	manslaughter	conviction	that	

the	 State	 alleges	 “involve[ed]	 or	 result[ed]	 from	 the	 operation	 of	 a	 motor	

vehicle	while	under	the	influence	of	intoxicating	liquor	or	drugs.”		29-A	M.R.S.	

§	2411(1-A)(D)(2).			

        [¶3]	 	 The	 State	 appeals	 from	 an	 order	 of	 the	 Unified	 Criminal	 Docket	

(Aroostook	County,	Stewart,	J.)	granting	Hastey’s	motion	in	limine	to	exclude	

evidence	of	his	alleged	intoxication	at	the	time	he	committed	the	manslaughter	

offense.		The	State	argues	that	the	trial	court	erred	when	it	ruled	that	the	State’s	

proof	 regarding	 Hastey’s	 prior	 conviction	 is	 limited	 to	 the	 face	 of	 the	 1990	

indictment	and	1991	judgment	and	commitment,	which	do	not	establish	that	

Hastey	was	operating	while	under	the	influence	at	the	time	of	the	homicide.		We	

agree,	and	we	vacate	the	court’s	order	granting	Hastey’s	motion	in	limine	and	

remand	for	the	entry	of	an	order	denying	the	motion.	

                                        I.		BACKGROUND	

        [¶4]	 	 On	 March	 8,	 1990,	 Hastey	 was	 indicted	 for	 (1)	 one	 count	 of	

manslaughter	 for	 “reckless	 and	 criminally	 negligent	 operation	 of	 a	 motor	

vehicle”	causing	the	death	of	another	person	(Class	B),	see	17-A	M.R.S.A.	§	203	



subsection	3	does	not	apply	to	the	prior	criminal	homicide	conviction	.	.	.	.			The	convictions	may	have	
occurred	at	any	time.”		29-A	M.R.S.	§	2411(1-A)(A),	(D)(2)	(2017).			
                                                                                                                  3	

(Supp.	 1989),	 and	 (2)	 one	 count	 of	 OUI	 (Class	 D),	 29	 M.R.S.A.	 §	1312-B	

(Supp.	1989).2	 	 On	 May	 23,	 1991,	 Hastey	 pleaded	 guilty	 to	 the	 manslaughter	

offense	and	was	sentenced.		The	OUI	charge	was	dismissed.			

        [¶5]		On	December	12,	2015,	Hastey	was	arrested	for	allegedly	operating	

a	motor	vehicle	under	the	 influence	of	intoxicants.		He	was	later	 indicted	for	

aggravated	 criminal	 OUI	 (Class	 B),	 29-A	 M.R.S.	 §	2411(1-A)(D)(2).	 	 The	

indictment	 alleged	 that	 Hastey	 “had	 a	 prior	 conviction	 for	 a	 prior	 criminal	

homicide	 involving	 or	 resulting	 from	 the	 operation	 of	 a	 motor	 vehicle	 while	

under	the	influence.”			

        [¶6]		On	April	26,	2016,	Hastey	moved	to	dismiss	the	indictment,	arguing	

that	 because	 the	 1990	 OUI	 charge	 had	 been	 dismissed	 and	 there	 were	 no	

findings	of	fact	regarding	the	1991	manslaughter	conviction,	he	had	not	been	

convicted	of	a	criminal	homicide	involving	or	resulting	from	operation	under	

the	 influence	 as	 required	 to	 trigger	 the	 enhanced	 charge	 and	 sentencing	

pursuant	 to	 section	2411(1-A)(D)(2).	 	 Hastey	 also	 argued	 that	 if	 the	 State	 is	



   2	 	 The	 1990	 indictment	 contains	 a	 clerical	 error	 with	 respect	 to	 the	 OUI	 charge.	 	 It	 incorrectly	

references	29	M.R.S.	§	1312	(Supp.	1988).		The	text	of	the	charge	clearly	indicates	that	Hastey	was	
charged	pursuant	to	29	M.R.S.	§	1312-B(1)	(Supp.	1989):	“(1)	Offense.		A	person	is	guilty	of	a	criminal	
violation	under	this	section	if	he	operates	or	attempts	to	operate	a	motor	vehicle:	(A)	While	under	
the	influence	of	intoxicating	liquor	or	drugs	or	a	combination	of	liquor	and	drugs;	or	(B)	While	having	
0.08%	or	more	by	weight	of	alcohol	in	his	blood.	.	.	.			The	offense	defined	in	subsection	1	is	a	Class	D	
crime.”			
4	

allowed	 to	 present	 evidence	 that	 he	 was	 intoxicated	 when	 he	 committed	 the	

manslaughter	offense,	then	“the	State	would	have	to,	in	effect,	re-prosecute	the	

1990	charges”	which	would	 violate	the	 “Double	Jeopardy	Clause’s	protection	

against	a	second	prosecution	for	the	same	offense.”		See	U.S.	Const.	amend.	V;	

Me.	Const.	art.	I,	§	8.			

        [¶7]		On	July	1,	2016,	the	court	denied	Hastey’s	motion	to	dismiss.		Citing	

the	“categorical	approach”3	established	by	federal	courts	to	determine	whether	

certain	 prior	 state	 convictions	 qualify	 as	 predicate	 offenses	 under	 certain	

federal	laws,	see,	e.g.,	Taylor	v.	United	States,	495	U.S.	575,	601-02	(1990),	the	

court	noted	that	Hastey’s	motion	to	dismiss	“raise[d]	significant	and	legitimate	

questions	as	to	admissible	evidence	and	how	evidence	of	prior	convictions	may	

be	reviewed	at	trial.”			




    3		As	we	explain	in	greater	detail	below,	the	categorical	approach	is	an	analytical	process	that	the	

United	States	Supreme	Court	first	endorsed	and	applied	in	deciding	whether	a	predicate	burglary	
conviction	under	Missouri	law	qualified	as	a	violent	felony	under	the	federal	Armed	Career	Criminal	
Act,	18	U.S.C.S.	§	924(e)	(LEXIS	through	Pub.	L.	No.	115-196).		See	Taylor	v.	United	States,	495	U.S.	575	
(1990).		The	approach	was	developed	to	address	the	lack	of	uniformity	among	state	criminal	codes.		
In	 Taylor,	 the	 Court	 was	 dealing	 with	 a	 crime,	 “burglary,”	 that	 was	 one	 of	 the	 “violent”	 crimes	
enumerated	but	not	defined	in	the	Act	and	that	“has	not	been	given	a	single	accepted	meaning	by	the	
state	courts.”		Id.	at	580.		The	Court’s	solution	was	to	hold	that	“burglary”	under	the	Act	“must	have	
[a]	uniform	definition	independent	of	the	labels	employed	by	the	various	States’	criminal	codes,”	and	
therefore	the	elements	of	a	predicate	burglary	offense	must	substantially	correspond	to	the	elements	
of	“generic”	burglary.		Id.	at	592,	598,	602.		Thus,	applying	the	“categorical	approach,	a	court	assesses	
whether	a	crime	qualifies	as	a	[predicate	offense]	in	terms	of	how	the	law	defines	the	offense	and	not	
in	terms	of	how	an	individual	offender	might	have	committed	it	on	a	particular	occasion.”		Johnson	v.	
United	States,	135	S.	Ct.	2551,	2557	(2015)	(quotation	marks	omitted).	
                                                                                                                5	

        [¶8]		On	August	19,	2016,	Hastey	moved	in	limine	to	exclude	any	evidence	

of	 his	 alleged	 intoxication	 at	 the	 time	 of	 the	 1990	 offense,	 arguing	 that	 the	

admission	 of	 such	 proof	 would	 contravene	 the	 categorical	 approach	 and	 the	

Double	 Jeopardy	 Clause.4	 	 The	 State	 opposed	 the	 motion,	 asserting	 that	 the	

phrase	“involving	or	resulting	from”	in	section	2411(1-A)(D)(2)	introduces	an	

evidentiary	element	that	the	government	must	prove	in	the	prosecution	of	the	

new	case—that	Hastey’s	prior	criminal	homicide	(manslaughter)	conviction	in	

fact	involved	or	resulted	from	the	operation	of	a	motor	vehicle	while	he	was	

under	the	influence	of	intoxicants.		The	State	indicated	its	intention	to	present	

at	 trial	 testimonial	 evidence,	 certified	 records	 from	 the	 Bureau	 of	 Motor	

Vehicles,	and	“properly	sworn	test	results	from	the	blood	test	administered	to	

[Hastey]	in	1990.”		The	court	granted	Hastey’s	motion.		The	State	filed	a	“motion	

for	reconsideration	and	further	conclusions	of	law,”	which	the	court	denied	on	

October	27,	2016.			




   4		Hastey	does	not	raise	the	double	jeopardy	argument	in	his	brief	to	us	and	therefore	it	is	waived.		

See	 Aseptic	 Packaging	 Council	 v.	 State,	 637	 A.2d	 457,	 463	 n.4	 (Me.	 1994).	 	 Even	 if	 preserved,	 the	
argument	lacks	merit	because	where	a	conviction	is	based	on	a	plea,	“jeopardy	only	attaches	to	those	
counts	 of	 an	 indictment	 to	 which	 the	 defendant	 pleads	 guilty”	 and	 a	 “pretrial	 dismissal	 of	 an	
indictment	 or	 count	 within	 an	 indictment	 does	 not	 invoke	 the	 double	 jeopardy	 clause	 because	
jeopardy	cannot	attach	until	a	jury	is	sworn	on	such	charges.”		United	States	v.	Hawes,	774	F.	Supp.	
965,	 969-70	 (E.D.N.C.	 1991);	 see	 also	 United	 States	 v.	 Vaughan,	 715	 F.2d	 1373,	 1376-77	 (9th	 Cir.	
1983).		
6	

         [¶9]		On	November	10,	2016,	after	obtaining	the	written	approval	of	the	

Attorney	General,	the	State	timely	appealed	the	court’s	order	granting	Hastey’s	

motion	 in	 limine	 and	 the	 order	 denying	 the	 motion	 for	 reconsideration	 and	

further	 conclusions	 of	 law.	 	 See	 15	 M.R.S.	 §	 2115-A(1)	 (2017);	 M.R.	 App.	 P.	

2(b)(2)(A),	21	(Tower	2016).5			

                                         II.		DISCUSSION	

A.       Interlocutory	Appeal	

         [¶10]		As	a	preliminary	matter,	Hastey	argues	that	the	State’s	appeal	of	

the	in-limine	order	is	interlocutory	and	not	ripe	for	appeal	because	the	ruling	

is	 subject	 to	 reconsideration	 by	 the	 trial	 court	 and	 is	 not	 final	 until	 the	

challenged	evidence	is	offered	by	the	State	at	trial.		See	M.R.U.	Crim.	P.	12(c);	

State	v.	Brackett,	2000	ME	54,	¶	6,	754	A.2d	337.			

         [¶11]		The	State	may	appeal	an	interlocutory	“order	of	the	court	prior	to	

trial	which,	either	under	the	particular	circumstances	of	the	case	or	generally	

for	the	type	of	order	in	question,	has	a	reasonable	likelihood	of	causing	either	

serious	 impairment	 to	 or	 termination	 of	 the	 prosecution.”	 	 15	 M.R.S.	

§	2115-A(1).			



     5		This	appeal	was	commenced	before	September	1,	2017,	and	therefore	the	restyled	Maine	Rules	

of	Appellate	Procedure	do	not	apply.		See	M.R.	App.	P.	1.	
                                                                                    7	

       [¶12]	 	 In	 our	 assessment	 of	 whether	 the	 State’s	 appeal	 meets	 the	

requirements	 of	 section	 2115-A(1),	 we	 first	 consider	 whether	 there	 is	 “any	

reasonable	 likelihood	 that	 the	 State	 will	 be	 handicapped	 in	 trying	 the	

defendant.”	 	 Brackett,	 2000	 ME	 54,	 ¶	 5,	 754	 A.2d	 337	 (quotation	 marks	

omitted).	 	 Without	 question,	 the	 State	 will	 be	 handicapped.	 	 Contrary	 to	

Hastey’s	contention,	it	is	hard	to	imagine	that	the	court’s	in-limine	order	would	

not	impede	the	State’s	ability	to	proceed	in	the	trial	of	the	case.		In	the	absence	

of	 evidence	 outside	 of	 the	 1990	 indictment	 and	 the	 1991	 judgment	 and	

commitment,	the	State	will	not	be	able	to	prove	beyond	a	reasonable	doubt	that	

Hastey	was	intoxicated	at	the	time	he	committed	the	predicate	manslaughter	

offense.			

       [¶13]		We	next	consider	“whether	entertaining	the	appeal	is	consistent	

with	the	strong	public	policy	against	piecemeal	appeals	and	the	impossibility	of	

this	[C]ourt’s	serving	as	an	advisory	board	to	trial	lawyers	and	judges.”		Id.	¶	6	

(quotation	 marks	 omitted).	 	 In	 Brackett,	 we	 dismissed	 as	 interlocutory	 the	

appeal	 of	 a	 motion	 in	 limine	 argued	 on	 the	 grounds	 that	 the	 evidence	 was	

inadmissible	under	Maine	Rule	of	Evidence	412.		See	id	at	¶¶	2,	7.		We	noted	

that	 we	 are	 hesitant	 to	 entertain	 appeals	 from	 in-limine	 rulings	 involving	

relevancy,	probative	value,	and	the	prejudicial	effect	of	evidence	because	“the	
8	

theoretical	facts	presented	in	the	motion	in	limine	may	differ	from	the	actual	

facts	presented	at	trial.”		Id.	¶	7	(discussing	M.R.	Evid.	403).		In	contrast,	in	State	

v.	 Patterson,	 we	 determined	 that	 the	 appeal	 of	 a	 motion	 in	 limine	 was	 not	

premature	because	the	justice	who	granted	the	motion	was	to	preside	at	the	

trial	the	following	week	and	clearly	stated	his	intention	to	exclude	the	contested	

evidence.		651	A.2d	362,	366	(Me.	1994).		

      [¶14]	 	 As	 in	 Patterson,	 it	 is	 appropriate	 for	 us	 to	 entertain	 this	 appeal	

because	it	is	not	premature.		Although	it	is	possible	that	the	justice	who	granted	

Hastey’s	motion	may	not	preside	at	the	eventual	trial,	the	in	limine	ruling	was	

stated	 with	 finality.	 	 The	 court	 clearly	 excluded	 any	 extrinsic	 evidence	 that	

Hastey	 was	 intoxicated	 at	 the	 time	 of	 the	 1990	 manslaughter	 offense,	 thus	

creating	a	reasonable	likelihood	that	the	prosecution	would	be	terminated.			

B.	   Order	on	Motion	in	Limine	

      [¶15]	 	 In	 line	 with	 Hastey’s	 argument	 to	 us	 on	 appeal,	 the	 court	

announced	in	its	in-limine	order	that	it	“will	follow	the	categorical	approach	to	

determine	whether	the	required	elements	of	the	predicate	offense	[in	section	

2411(1-A)(D)(2)]	 are	 established.”	 	 Applying	 that	 analytical	 framework,	 the	

court	 granted	 Hastey’s	 motion	 and	 concluded	 that	 the	 State’s	 proof	 of	 the	
                                                                                       9	

enhancing	 factor	 would	 be	 limited	 to	 the	 1990	 indictment	 and	 the	 1991	

judgment	and	commitment	because,	although	those	documents		

      establish	[Hastey]	was	convicted	of	manslaughter,	which	was	the	
      result	of	criminally	negligent	operation	of	a	motor	vehicle[,]	.	.	.	[the	
      State]	 cannot	 establish	 the	 element	 “while	 under	 the	 influence”	
      without	 relying	 on	 extrinsic	 evidence	 outside	 from	 the	 1990	
      indictment	and	1991	judgment.		To	establish	the	predicate	element	
      of	“while	under	the	influence,”	evidence	of	[Hastey’s]	intoxication	
      at	 the	 time	 of	 the	 1990	 offense	 would	 have	 to	 be	 offered	 and	
      admitted.	 	 This	 would	 surely	 be	 a	 factfinding	 endeavor,	 which	
      would	 unfairly	 require	 [Hastey]	 to	 defend	 very	 old	 and	 stale	
      allegations.		It	is	the	[c]ourt’s	belief	that	is	the	type	of	unfairness	
      and	 potential	prejudice	that	the	categorical	approach	is	meant	to	
      avoid.	
	
	     [¶16]		The	State	argues	that	the	court	erred	by	depriving	the	State	of	the	

opportunity	 to	 present	 extrinsic	 evidence	 at	 trial	 of	 Hastey’s	 alleged	

intoxication	 because	 the	 statutory	 phrase	 “involving	 or	 resulting	 from”	

introduces	 a	 specific	 enhancing	 element	 separate	 and	 distinct	 from	 the	

homicide	 conviction	 that	 requires	 proof	 of	 the	 circumstances	 underlying	 the	

commission	of	the	manslaughter	offense.			

	     [¶17]	 	 We	 begin	 with	 a	 brief	 discussion	 of	 the	 categorical	 approach	 to	

provide	a	context	for	our	assessment	of	the	trial	court’s	reasoning	and	decision.		

We	 then	 examine	 section	 2411(1-A)(D)(2)	 to	 determine	 whether	 the	 court	

erred	when	it	excluded	evidence	of	the	circumstances	of	Hastey’s	prior	criminal	

homicide	conviction.	
10	

	       1.	     The	Categorical	Approach	

        [¶18]		In	1990,	the	United	States	Supreme	Court	first	applied	an	analytical	

process	that	came	to	be	known	as	the	“categorical	approach”	to	determine	the	

meaning	 of	 the	 word	 “burglary”	 in	 a	 sentence-enhancing	 provision	 of	 the	

federal	 Armed	 Career	 Criminal	 Act.	 	 See	 Taylor,	 495	 U.S.	 at	 602.6	 	 The	 Act	

imposed	an	enhanced	sentence	“upon	certain	firearm-law	offenders	who	also	

have	three	prior	convictions	for	‘a	violent	felony,’”	and	defined	“violent	felony”	

to	include	“burglary.”		Nijhawan	v.	Holder,	557	U.S.	29,	34	(2009)	(quoting	18	

U.S.C.S.	 §	 924(e)	 (LEXIS	 through	 Pub.	 L.	 No.	 115-196)).	 	 Taylor	 entered	 a	

conditional	 guilty	 plea	 to	 possession	 of	 a	 firearm	 by	 a	 convicted	 felon,	 18	

U.S.C.S.	§	922(g)(1)	(LEXIS	through	Pub.	L.	No.	115-196)	and,	because	he	had	

four	 prior	 felony	 convictions,	 including	 two	 burglary	 convictions	 under	


    6		The	Supreme	Court	appears	to	have	coined	the	term	“categorical	approach”	in	Taylor:	

	
        [T]he	enhancement	provision	[of	§	924(e)	of	the	Armed	Career	Criminal	Act]	always	
        has	embodied	a	categorical	approach	to	the	designation	of	predicate	offenses.	.	.	.	
        	
        	       .	.	.	.	
        	
        	       First,	the	language	of	§	924(e)	generally	supports	the	inference	that	Congress	
        intended	the	sentencing	court	to	look	only	to	the	fact	that	the	defendant	had	been	
        convicted	of	crimes	falling	within	certain	categories,	and	not	to	the	facts	underlying	
        the	prior	convictions.	.	.	.	
        	
        	       Second,	 as	 [the	 Supreme	 Court	 has]	 said,	 the	 legislative	 history	 of	 the	
        enhancement	statute	shows	that	Congress	generally	took	a	categorical	approach	to	
        predicate	offenses.	
        	
Taylor,	495	U.S.	at	588,	600-01.	
                                                                                                    11	

Missouri	law,	he	received	an	enhanced	sentence	pursuant	to	the	Armed	Career	

Criminal	Act.		See	Taylor,	495	U.S.	at	577-79.		On	appeal,	Taylor	argued	“that	his	

burglary	convictions	should	not	count	for	enhancement,	because	they	did	not	

involve	 ‘conduct	 that	 presents	 a	 serious	 potential	 risk	 of	 physical	 injury	 to	

another,’	under	§	924(e)(2)(B)(ii).”		Id.	at	579.			

       [¶19]	 	 The	 Supreme	 Court	 determined	 that	 Congress	 intended	 the	

enhancement	 provision	 of	 the	 Act	 to	 embody	 a	 categorical	 approach.	 	 Id.	

at	588-90.	 	 The	 Court	 reasoned	 that	 because	 “burglary”	 was	 not	 defined	 in	

§	924(e)	and	does	not	have	“a	single	accepted	meaning	by	the	state	courts,”	it	

“must	have	[a]	uniform	definition	independent	of	the	labels	employed	by	the	

various	States’	criminal	codes”	that	substantially	corresponds	to	the	elements	

of	“generic”	burglary.7		Id.	at	580,	592,	599,	602.	

       [¶20]		In	other	words,	under	the	categorical	approach,	“a	state	offense	is	

a	 categorical	 match	 with	 a	 generic	 federal	 offense	 only	 if	 a	 conviction	 of	 the	

state	offense	‘necessarily’	involved	facts	equating	to	the	generic	federal	offense.		

Whether	 the	 [defendant’s]	 actual	 conduct	 involved	 such	 facts	 is	 quite	

irrelevant.”		Moncrieffe	v.	Holder,	569	U.S.	184,	190	(2013)	(alterations	omitted)	


   7		“Although	the	exact	formulations	vary,	the	generic,	contemporary	meaning	of	burglary	contains	

at	least	the	following	elements:	an	unlawful	or	unprivileged	entry	into,	or	remaining	in,	a	building	or	
other	structure,	with	intent	to	commit	a	crime.”		Id.	at	598.	
12	

(citations	 omitted)	 (quotation	 marks	 omitted);	 see	 also	 Descamps	 v.	 United	

States,	 570	 U.S.	 254,	 261,	 264	 (2013)	 (applying	 the	 categorial	 approach,	

“[s]entencing	 courts	 may	 look	 only	 to	 the	 statutory	 definitions—i.e.,	 the	

elements—of	 a	 defendant’s	 prior	 offenses,	 and	 not	 to	 the	 particular	 facts	

underlying	 those	 convictions”	 (quotation	 marks	 omitted)	 (emphasis	 in	 the	

original)).8	

        [¶21]	 	 Because	 Hastey’s	 pending	 OUI	 charge	 and	 its	 alleged	 enhancing	

provisions,	including	his	predicate	manslaughter	conviction,	are	all	products	of	

Maine	law,	we	have	no	occasion	to	consider	the	categorical	approach,	nor	are	

we	bound	to	adopt	it.		See	State	v.	Burnett,	755	N.E.2d	857,	860-61	(Ohio	2001)	

(explaining	 that	 the	 Supremacy	 Clause	 binds	 state	 courts	 to	 decisions	 of	 the	

United	 States	 Supreme	 Court	 on	 questions	 of	 federal	 statutory	 and	

constitutional	law).		We	need	only	apply	section	2411(1-A)(D)(2),	and	we	have	




   8		In	contrast,	when	an	enhancing	provision	of	a	federal	statute	is	not	based	on	a	generic	crime,	

but	 instead	 “refer[s]	 to	 the	 specific	 way	 in	 which	 an	 offender	 committed	 the	 crime	 on	 a	 specific	
occasion,”	federal	courts	apply	a	circumstance-specific	approach	in	which	the	court	“must	look	to	the	
facts	and	circumstances	underlying	an	offender’s	conviction.”		Nijhawan	v.	Holder,	557	U.S.	29,	34	
(2009).		In	Nijhawan,	after	considering	whether	a	prior	offense	“involve[d]	fraud	or	deceit	in	which	
the	loss	to	the	.	.	.	victims	exceeds	$10,000,”	id.	(alteration	in	original),	the	Supreme	Court	“held	that	
the	 $10,000	 threshold	 was	 not	 to	 be	 applied	 categorically	 as	 a	 required	 component	 of	 a	 generic	
offense,	but	instead	called	for	a	‘circumstance-specific	approach.’”		Moncrieffe	v.	Holder,	569	U.S.	184,	
202	(2013).	
                                                                                                  13	

no	 occasion	 to	 equate	 its	 enhancing	 provisions	 to	 a	 generic	 crime.9	 	 The	

categorical	approach	simply	does	not	apply.	

       2.	     Title	29-A	M.R.S.	§	2411(1-A)(D)(2)	

       [¶22]		Although	we	generally	review	a	trial	court’s	decision	to	admit	or	

exclude	 evidence	 for	 an	 abuse	 of	 discretion	 or	 for	 clear	 error,	 see	 State	 v.	

Mooney,	2012	ME	69,	¶	9,	43	A.3d	972,	the	question	presented	in	this	case	is	a	

purely	 legal	 one:	 whether	 the	 court	 erred	 when	 it	 applied	 the	 categorical	

approach	to	the	enhancement	provision	of	29-A	M.R.S.	§	2411(1-A)(D)(2).10	

       [¶23]	 	 This	 is	 a	 question	 of	 statutory	 interpretation	 that	 requires	 a	

de	novo	 review.	 	 See	 State	 v.	 Jones,	 2012	 ME	 88,	 ¶	 6,	 46	 A.3d	 1125.	 	 “In	

interpreting	a	statute,	our	single	goal	is	to	give	effect	to	the	Legislature’s	intent	

in	enacting	the	statute.”		Dickau	v.	Vt.	Mut.	Ins.	Co.,	2014	ME	158,	¶	19,	107	A.3d	

621.		To	determine	that	legislative	intent,	“we	first	look	to	the	plain	language	of	

the	 provisions	 to	 determine	 their	 meaning.”	 	 Mainetoday	 Media,	 Inc.	 v.	 State,	

2013	ME	100,	¶	6,	82	A.3d	104.		“We	seek	to	discern	from	the	plain	language	of	

the	statute	the	real	purpose	of	the	legislation,	avoiding	results	that	are	absurd,	


   9		We	express	no	opinion	as	to	whether	or	under	what	circumstances	we	would	consider	adoption	

or	application	of	the	analytical	framework	of	a	categorical	approach.	
   10		Because	Hastey	is	being	prosecuted	for	the	Class	B	OUI	offense	and	not	being	re-prosecuted	for	

the	1990	OUI	offense,	Hastey’s	statute	of	limitations	defense	is	without	merit.		See	17-A	M.R.S.	§	8	
(2017).			
14	

inconsistent,	unreasonable,	or	illogical.		If	the	statutory	language	is	clear	and	

unambiguous,	we	construe	the	statute	in	accordance	with	its	plain	meaning	in	

the	context	of	the	whole	statutory	scheme.”		State	v.	Mourino,	2014	ME	131,	¶	8,	

104	A.3d	893	(quotation	marks	omitted).		“If	the	plain	language	of	a	statute	is	

ambiguous—that	is,	susceptible	of	different	meanings—we	will	then	go	on	to	

consider	the	statute’s	meaning	in	light	of	its	legislative	history	and	other	indicia	

of	legislative	intent.”		Mainetoday	Media,	Inc.,	2013	ME	100,	¶	6,	82	A.3d	104.	

        [¶24]		Section	2411(1-A)(D)(2)	is	a	provision	within	Maine’s	OUI	law	that	

enhances	the	penalty	for	OUI	offenses	committed	under	certain	circumstances	

and,	in	part,	provides	that	a	defendant	will	be	guilty	of	a	Class	B	OUI	offense	if	

he	 “[o]perates	 a	 motor	 vehicle	.	.	.	[w]hile	 under	 the	 influence	 of	 intoxicants,”	

29-A	 M.R.S.	 §	 2411(1-A)(A),	 and	 has	 “a	 prior	 criminal	 homicide	 conviction	

involving	 or	 resulting	 from	 the	 operation	 of	 a	 motor	 vehicle	 while	 under	 the	

influence.”	 	 29-A	 M.R.S.	 §	 2411(1-A)(D)(2)	 (emphasis	 added);	 see	 also	 29-A	

M.R.S.	§	2411(5)(D-2)	 (2017).	 	 This	 enhancing	 provision	 plainly	 requires	 the	

State	to	prove	beyond	a	reasonable	doubt11	that	(1)	Hastey	has	a	“prior	criminal	



     11		The	parties	do	not	contest	that,	consistent	with	the	Sixth	Amendment,	the	factfinder	must	find	

the	predicate	elements	of	the	Class	B	OUI	offense	beyond	a	reasonable	doubt.		See	Alleyne	v.	United	
States,	570	U.S.	99,	108,	111-12	(2013)	(“Facts	that	increase	the	mandatory	minimum	sentence	are	
[]	 elements	 and	 must	 be	 submitted	 to	 the	 jury	 and	 found	 beyond	 a	 reasonable	 doubt.”);	 see	 also	
Apprendi	v.	New	Jersey,	530	U.S.	466,	490	(2000);	State	v.	Nugent,	2007	ME	44,	¶	6,	917	A.2d	127.			
                                                                                                               15	

homicide	conviction”	(2)	that	“involv[ed]	or	result[ed]	from	the	operation	of	a	

motor	vehicle	while	under	the	influence	of	intoxicating	liquor	or	drugs.” 12		29-A	

M.R.S.	§	2411(1-A)(D)(2).		These	are	two	distinct	elements.13	

        [¶25]		The	first	element	of	the	enhancement	provision	requires	proof	of	

a	prior	conviction	for	a	specific	type	of	criminal	offense—a	criminal	homicide.		

Id.		Although	“criminal	homicide”	is	a	category	of	offenses,14	the	parties	do	not	


   12	 	 The	 manslaughter	 charge	 to	 which	 Hastey	 pleaded	 guilty	 in	 1991	 alleged	 his	 reckless	 or	

criminally	negligent	operation	of	a	motor	vehicle;	however,	that	charge	did	not	allege	that	he	was	
under	the	influence	at	the	time.			
   13		The	distinction	in	section	2411(1-A)(D)(2)	between	the	elements	of	a	“prior	criminal	homicide	

conviction”	 and	 the	 factual	 circumstances	 underlying	 that	 criminal	 homicide—“involv[ed]	 or	
result[ed]	from	the	operation	of	a	motor	vehicle	while	under	the	influence	of	intoxicating	liquor	or	
drugs”—is	made	all	the	more	clear	by	“the	whole	statutory	scheme.”		State	v.	Mourino,	2014	ME	131,	
¶	8,	104	A.3d	893	(quotation	marks	omitted).		

   First,	there	is	no	criminal	homicide	offense	in	Maine	law	that	has	OUI	as	an	element—such	an	
offense	did	not	exist	in	1990,	nor	does	it	exist	now—and	thus,	OUI	cannot	be	an	element	of	any	“prior	
criminal	 homicide	 conviction.”	 Rather,	 OUI	 is	 an	 element	 for	 the	 enhancing	 provision	 of	 section	
2411(1-A)(D)(2).			

   Second,	the	Legislature	has	enacted	a	number	of	other	provisions	that	clearly	require	the	State	to	
plead	 and	 prove	 certain	 definitional	 elements	 of	 an	 offense.	 	 See,	 e.g.,	 15	 M.R.S.	 §	 393(1)(A-1)(5)	
(2017)	 (possession	 of	 a	 firearm	 by	 a	 prohibited	 person);	 17-A	 M.R.S.	 §	 151(4)	 (2017)	 (criminal	
conspiracy);	 17-A	 M.R.S.	 §	 253(7)	 (2017)	 	 (gross	 sexual	 assault);	 17-A	 M.R.S.	 §	 451(2)	 (2017)	
(perjury);	 17-A	 M.R.S.	 §	 802(2)	 (2017)	 (arson);	 17-A	 M.R.S.	 §	 1252(4-B)(B)	 (2017)	 (enhanced	
sentence	for	repeat	sexual	offender).		If	the	Legislature	had	intended	to	limit	the	type	of	qualifying	
criminal	homicides	to	those	that	include	impaired	operation	as	an	element	of	the	homicide	offense—
even	if	such	an	offense	existed	in	Maine	law—we	expect	that	the	Legislature	would	have	used	that	
demonstrated	ability	by	stating	that	the	enhancing	homicide	is	one	where	the	State	was	required	to	
plead	and	prove,	as	part	of	the	prior	criminal	homicide	prosecution,	that	the	defendant	had	operated	
under	the	influence	or	with	a	certain	alcohol	level	in	his	system.			

   In	fact,	the	trial	court	in	its	in-limine	order	appears	to	have	recognized	that	these	are	two	distinct	
elements	when	it	observed	that	the	State	“cannot	establish	the	element	‘while	under	the	influence’	
without	relying	on	extrinsic	evidence	outside	from	the	1990	indictment	and	1991	judgment.”			
   14		“Criminal	homicide”	is	not	a	defined	term	in	the	laws	of	Maine,	therefore	we	afford	“criminal	

homicide”	its	“plain,	common,	and	ordinary	meaning,	such	as	people	of	common	intelligence	would	
16	

dispute	that	manslaughter	falls	within	the	category	of	“criminal	homicide.”		The	

State	can	prove	the	first	element	because	the	1991	judgment	and	commitment	

demonstrates	that	Hastey	was	previously	convicted	of	manslaughter.			

        [¶26]		The	second	element—“involving	or	resulting	from	the	operation	

of	a	motor	vehicle	while	under	the	influence”—unambiguously	“refer[s]	to	the	

specific	way	in	which	an	offender	committed	the	crime	[of	manslaughter]	on	a	

specific	occasion,”	Nijhawan,	557	U.S.	at	34,	which	in	the	context	of	this	case	

requires	a	present	inquiry	into	Hastey’s	conduct	at	the	time	that	he	committed	

the	manslaughter	offense.		The	modifying	phrase	“involving	or	resulting	from”	

is	framed	in	the	disjunctive,	thus	allowing	the	State	to	prove	either	alternative	

as	an	enhancement	element.		Hastey’s	1991	manslaughter	conviction	did	not	

contain	a	statutory	element	of	impaired	operation.		Even	if	that	conviction	itself	



usually	ascribe	to	them.”		See	Dickau	v.	Vt.	Mut.	Ins.	Co.,	2014	ME	158,	¶	22,	107	A.3d	621	(quotation	
marks	 omitted).	 	 “Criminal	 homicide”	 is	 commonly	 defined	 as	 “[t]he	 act	 of	 purposely,	 knowingly,	
recklessly,	or	negligently	causing	the	death	of	another	human	being.”		Criminal	Homicide,	Black’s	Law	
Dictionary	(10th	ed.	2014)	(alternatively	defining	“criminal	homicide”	as	“[h]omicide	prohibited	and	
punishable	by	law,	such	as	murder	or	manslaughter”).			

   Because	manslaughter	includes	as	an	element	“[r]ecklessly,	or	with	criminal	negligence,	causes	
the	death	of	another	human	being,”	17-A	M.R.S.	§	203	(2017),	we	reasonably	infer	that	the	Legislature	
intended	to	include	manslaughter	when	it	used	the	term	“criminal	homicide.”			

   The	Legislature’s	use	of	the	term	 “criminal	homicide”	last	appeared	in	the	1976	criminal	code,	
where	 crimes	 like	 murder	 and	 manslaughter	 were	 degrees	 of	 “criminal	 homicide.”	 	 See	 State	 v.	
Shortsleeves,	580	A.2d	145,	149	(Me.	1990)	(citing	P.L.	1975,	ch.	499,	§	1	(effective	Mar.	1,	1976)).		“In	
1977,	the	six	degrees	of	criminal	homicide	were	eliminated	and	the	crimes	were	recategorized	as	
murder,	felony	murder,	manslaughter	and	aiding	or	soliciting	suicide.”		Id.	(citing	P.L.	1977,	ch.	510,	
§§	38-43	(effective	Oct.	24,	1977)	(codified	at	17-A	M.R.S.A.	§§	201-04	(Pamph.	1978))).	
                                                                                                            17	

therefore	did	not	“involv[e]”	an	OUI,	section	2411(1-A)(D)(2)	also	entitles	the	

State	 to	 try	 to	 prove	 that	 the	 prior	 homicide	 conviction	 “result[ed]”	 from	

impaired	operation—an	element	that	plainly	must	permit	the	presentation	of	

extrinsic	evidence.		29-A	M.R.S.	§	2411(1-A)(D)(2).			

        [¶27]		Precluding	a	factual	probe	into	the	circumstances	of	Hastey’s	prior	

manslaughter	conviction	is	contrary	to	the	plain	language	of	the	enhancement	

provision	of	the	statute	and	would	frustrate	the	statutory	scheme	of	imposing	

the	 most	 severe	 penalties	 on	 repeat	 OUI	 offenders	 who	 have	 caused	 serious	

bodily	injury	or	death	of	other	people	while	operating	under	the	influence.		See	

Mourino,	 2014	 ME	 131,	 ¶	 8,	 104	 A.3d	 893;	 see	 generally	 29-A	 M.R.S.	 §	 2411	

(2017).15	

        [¶28]		Because	section	2411(1-A)(D)(2)	requires	a	present	inquiry	into	

the	 factual	 circumstances	 underlying	 a	 prior	 homicide	 conviction,	 the	 State	

must	be	permitted	the	opportunity	to	offer	evidence	in	the	current	prosecution	




   15	 	 In	 1999,	 Public	 Law	1999,	 chapter	 703,	 section	 1,	 was	 enacted	and	 added	 an	 enhancement	

provision	making	it	a	Class	C	crime	to	operate	a	motor	vehicle	under	the	influence	of	intoxicants	if	a	
person	has	a	“prior	criminal	homicide	conviction	involving	or	resulting	from	the	operation	of	a	motor	
vehicle	while	under	the	influence	of	intoxicating	liquor	or	drugs.”		P.L.	1999,	ch.	703,	§	1	(effective	
Aug.	 11,	 2000)	 (codified	 at	 29-A	 M.R.S.A.	 §	 2411(6)(B)	 (Supp.	 2000))	 and	 in	 its	 current	 form	 is	
codified	at	29-A	M.R.S.	§	2411(1-A)(D)(2)	(2017)	(emphasis	added).		The	Legislature	increased	the	
offense	from	Class	C	to	Class	B	in	2005.		See	P.L.	2005,	ch.	606,	§	A-3	(effective	Aug.	23,	2006)	(codified	
at	29-A	M.R.S.	§	2411(5)(D-2)	(2017)).		
18	

to	establish	that	Hastey’s	1991	manslaughter	conviction	involved	or	resulted	

from	his	operation	of	a	motor	vehicle	under	the	influence.16	

         3.	      Evidentiary	Issues	

         [¶29]		We	recognize	that,	in	part,	the	court’s	motivation	for	applying	the	

limitations	of	the	categorical	approach	was	a	thoughtful	concern	that	allowing	

evidence	 outside	 of	 the	 indictment	 and	 the	 judgment	 and	 commitment	 of	 an	

event	 that	 occurred	 more	 than	 twenty-six	 years	 earlier	 would	 be	 unfair	 to	

Hastey.17	 	 However,	 several	 protective	 measures	 will	 shield	 Hastey	 from	

potential	unfairness.		First,	if	Hastey	seeks	a	jury	trial,18	Maine	Rule	of	Unified	



   16	 	 Although	 the	 “rule	 of	 lenity	 counsels	 us	 to	 resolve	 ambiguities	 in	 favor	 of	 the	 more	 lenient	

punishment	when	construing	an	ambiguous	criminal	statute,”	State	v.	Harrell,	2012	ME	82,	¶	5,	45	
A.3d	732	(quotation	marks	omitted),	the	rule	of	lenity	only	applies	if	“we	can	make	no	more	than	a	
guess	as	to	what	[the	Legislature]	intended”	because	there	is	a	“grievous	ambiguity	or	uncertainty	in	
the	 statute.”	 	 Muscarello	 v.	 United	 States,	524	 U.S.	125,	 138-39	 (1998)	(quotation	 marks	 omitted).		
Section	2411(1-A)(D)(2)	does	not	present	us	with	a	grievous	ambiguity,	and	the	Legislature’s	intent	
is	clear,	so	the	rule	of	lenity	does	not	apply.	
   17		Hastey	also	argues	that	Maine	Rule	of	Evidence	410	bars	admission	of	statements	made	during	

his	 1991	 Rule	11	 plea	 colloquy.	 	 See	 M.R.U.	 Crim.	 P.	 11.	 	 Because	 there	 is	 no	 Rule	 11	 transcript	
available	 in	 the	 record,	 we	 need	 not	 decide	 whether	 M.R.	 Evid.	 410	 applies	 to	 bar	 admission	 of	
statements	made	in	connection	with	or	during	his	guilty	plea	proceedings.		See	M.R.	Evid.	410	(“In	
a	.	.	.	criminal	case,	evidence	of	the	following	is	not	admissible	against	the	person	who	made	the	plea	
or	participated	in	the	plea	discussions:	.	.	.	(c)	A	statement	made	in	connection	with	a	guilty	or	nolo	
contendere	 plea	 or	 during	 a	 proceeding	 on	 either	 of	 those	 pleas	 under	 Maine	 Rule	 of	 Criminal	
Procedure	11	or	a	comparable	Federal	or	state	procedure.”);	see	also	State	v.	Little,	527	A.2d	754,	756	
(Me.	 1987)	 (discussing	 the	 scope	 of	 conversations	 protected	 by	 M.R.	 Evid.	 410	 and	 noting	 that	
“[g]iven	the	importance	of	guilty	pleas	and	in	the	interest	of	protecting	the	plea	bargaining	process	
which	 often	 culminates	 in	 a	 guilty	 plea,	 it	 is	 essential	 that	 an	 accused	 be	 free	 to	 negotiate	 a	 plea	
without	fear	that	any	incriminating	statements	he	makes	while	engaged	in	plea	negotiations	will	be	
used	against	him	in	other	proceedings”).	
   18		Hastey	previously	waived	his	right	to	a	jury	trial.		We	do	not	reach	the	question	of	whether	or	

under	what	circumstances	he	may	withdraw	that	waiver.		See	State	v.	Ouellette,	2006	ME	81,	¶	28,	
                                                                                                            19	

Criminal	Procedure	26(e)	permits	the	court	to	separate	the	trial	of	the	“current	

principal	crime”	from	the	trial	to	determine	the	existence	and	circumstances	of	

his	prior	conviction,19	thereby	requiring	the	jury	to	determine	Hastey’s	guilt	of	

the	 principal	 OUI	 offense	 before	 considering	 evidence	 of	 the	 enhancement	

portion	of	the	charge	alleging	his	prior	manslaughter	conviction.		Second,	the	

State	 has	 the	 burden	 of	 proving	 beyond	 a	 reasonable	 doubt	 that	 his	

manslaughter	conviction	involved	or	resulted	from	operation	a	motor	vehicle	

while	 under	 the	 influence	 of	 intoxicants.	 	 Third,	 while	 the	 State	 may	 seek	 to	

introduce	the	types	of	evidence	generally	admissible	in	a	criminal	proceeding,20	

its	 efforts	 will	 be	 subject	 to	 the	 Maine	 Rules	 of	 Evidence,	 the	 Maine	 Rules	 of	

Unified	 Criminal	 Procedure,	 and	 other	 applicable	 laws,	 including	 29-A	 M.R.S.	

§	2431	 (2017)	 (imposing	 evidentiary	 rules	 for	 the	 admission	 of	 alcohol	 test	

results).	 	 Fourth,	 the	 fact-finder	 will	 be	 required	 to	 assess	 the	 credibility	 of	




n.6,	901	A.2d	800	(noting	that	“[s]ome	states	grant	defendants	an	absolute	right	to	withdraw	jury	
trial	waivers	while	other	states	leave	it	to	the	discretion	of	the	court	to	permit	a	withdrawal.”)				
   19		M.R.U.	Crim.	P.	26(e)	permits	bifurcation	if	“the	prior	conviction	is	for	a	crime	that	is	identical	

to	the	current	principal	crime	or	is	sufficiently	similar	that	knowledge	of	the	fact	that	the	defendant	
has	 been	 convicted	 of	 the	 prior	 crime	 may,	 in	 the	 determination	 of	 the	 presiding	 justice,	 unduly	
influence	the	ability	of	the	jury	to	determine	guilt	fairly.”	
   20		The	State	has	stated	its	intention	to	introduce	extrinsic	evidence—including	testimony	from	

police	officers,	certified	records	from	the	Bureau	of	Motor	Vehicles,	and	results	from	the	blood	test	
administered	 to	 Hastey	 in	1990—to	 prove	 that	the	 manslaughter	 conviction	 involved	 or	 resulted	
from	operation	under	the	influence.			
20	

witnesses	and	the	reliability	of	documentary	evidence	of	an	incident	that	by	the	

time	of	any	trial	will	have	occurred	nearly	thirty	years	before.		See	Nijhawan,	

557	U.S.	at	42	(“[U]ncertainties	caused	by	the	passage	of	time	are	likely	to	count	

in	the	[defendant’s]	favor.”).		And,	finally,	in	the	exercise	of	its	broad	discretion,	

particularly	 when	 considering	 the	 effect	 that	 a	 near	 thirty-year-old	 homicide	

may	have	on	jurors	being	asked	to	decide	whether	Hastey	operated	under	the	

influence	in	2016,	the	court	must	assess	the	risk	of	unfair	prejudice	against	the	

probative	value	of	the	evidence	that	the	State	plans	to	offer.		See	M.R.	Evid.	403;	

State	v.	Renfro,	2017	ME	49,	¶	10,	157	A.3d	775.	

                                 III.		CONCLUSION	

      [¶30]	 	 In	 relevant	 part,	 the	 enhancement	 provision	 of	 29-A	 M.R.S	

§	2411(1-A)(D)(2)	requires	the	State	to	prove	beyond	a	reasonable	doubt	the	

existence	of	(1)	a	“prior	criminal	homicide	conviction,”	(2)	that	“involve[ed]	or	

result[ed]	from	the	operation	of	a	motor	vehicle	while	under	the	influence	[of	

intoxicants].”		The	latter	requirement	is	a	factual	element	that	the	State	must	

prove	in	the	present	prosecution	and	may	do	so	by	offering	extrinsic	evidence	

to	establish	that	Hastey’s	1991	manslaughter	conviction	involved	or	resulted	

from	 his	 operation	 of	 a	 motor	 vehicle	 while	 he	 was	 under	 the	 influence	 of	
                                                                                    21	

intoxicants.		Therefore,	we	vacate	the	court’s	in-limine	order	and	remand	for	

the	entry	of	an	order	denying	Hastey’s	motion	in	limine.	

     The	entry	is:	
     	
                   Order	 granting	 Hastey’s	 motion	 in	 limine	
                   vacated.	 	 Remanded	 for	 further	 proceedings	
                   consistent	with	this	opinion.		
                   	
                                         	
JABAR,	J.,	dissenting.	

      [¶31]		I	respectfully	dissent	because	I	believe	that	the	sentence	enhancer	

contained	in	29-A	M.R.S.	§	2411(1-A)(D)(2)	(2017)	is	based	on	the	existence	of	

a	prior	conviction,	not	on	aggravating	facts	that	may	have	occurred	during	the	

course	 of	 the	 prior	 conviction.	 	 The	 phrase	 “involving	 or	 resulting	 from”	

modifies	 the	 term	 “criminal	 homicide	 conviction.”	 	 See	 id.	 	 Accordingly,	 the	

State’s	burden	must	be	to	prove	that	the	criminal	homicide	conviction	involved	

or	 resulted	 from	 operating	 under	 the	 influence,	 not	 that	 Hastey	 was	 both	

convicted	 of	 criminal	 homicide	 and	 that,	 in	 the	 course	 of	 committing	 the	

homicide,	he	operated	under	the	influence.			

                                   I.		DISCUSSION	

	     [¶32]		Sentence	enhancers	generally	come	in	two	categories—(1)	prior	

convictions	and	(2)	facts	associated	with	the	commission	of	the	crime	presently	

charged,	 usually	 called	 “aggravating	 factors.”	 	 For	 example,	 17-A	 M.R.S.	
22	

§	1252(4-B)(A)	 (2017)	 enhances	 the	 penalty	 of	 “repeat	 sexual	 assault	

offenders”	 who	 have	 been	 previously	 convicted	 of	 certain	 offenses,	 while	

17-A	M.R.S.	§	210(1)(B)	(2017)	increases	a	terrorizing	offense	from	Class	D	to	

Class	C	when	it	causes	the	evacuation	of	a	building.		The	former	requires	proof	

of	a	past	conviction	(usually	for	the	same	or	similar	conduct),	while	the	latter	

requires	proof	of	specific	facts	associated	with	the	present	crime	charged.		The	

Court	references	such	enhancers	in	its	opinion,	but	fails	to	make	a	distinction	

between	 those	 based	 on	 aggravating	 factors	 and	 those	 based	 on	 prior	

convictions.		Court’s	Opinion	¶	24	n.14.			

	       [¶33]		The	Court	takes	the	position	that	the	sentence	enhancer	in	section	

2411	is	based	on	aggravating	factors	associated	with	a	prior	conviction.		Court’s	

Opinion	¶	24.		In	its	view,	the	language	“involving	or	resulting	from”	does	not	

modify	 the	 prior	 criminal	 homicide	 conviction,	 but	 rather	 is	 a	 separate	 and	

distinct	 element	 to	 be	 proved	 in	 addition	 to	 the	 prior	 conviction.21	 	 Court’s	


    21		The	Court	notes	that	“involving	or	resulting	from”	is	framed	in	the	disjunctive,	and	that	the	

State	may	attempt	to	prove	either	alternative.		Court’s	Opinion	¶	26.		To	prove	“resulting	from,”	the	
Court	 states,	 “plainly	 must	 permit	 the	 presentation	 of	 extrinsic	 evidence.”	 	 Court’s	 Opinion	 ¶	26.		
However,	the	plain	language	of	the	statute	does	not	support	such	a	reading.			

   To	“involve”	is	“to	include	or	contain	as	a	part,”	or	alternatively,	“to	have	as	an	essential	feature	or	
consequence.”		Involve,	Webster’s	New	College	Dictionary	(3d	ed.	2008).		To	“result”	is	“to	happen	or	
exist	as	a	result	of	a	cause.”		Result,	Webster’s	New	College	Dictionary	(3d	ed.	2008).		Thus,	the	State	
may	use	a	conviction	from	a	criminal	homicide	that	“involve[ed]”	operating	under	the	influence—i.e.	
that	 Hastey	 was	 operating	 under	 the	 influence	 when	 he	 committed	 the	 homicide	 that	 lead	 to	 his	
conviction—or	a	conviction	that	“result[ed]”	from	operating	under	the	influence—i.e.,	that	Hastey’s	
operation	under	the	influence	was	the	actual	cause	of	the	homicide	leading	to	his	conviction.		Under	
                                                                                                            23	

Opinion	¶	24.		I	disagree	with	the	Court’s	assertion	that	a	plain	reading	of	the	

statute	 supports	 its	 holding.	 	 At	 best,	 the	 language	 is	 ambiguous,	 and	 a	

reasonable	 interpretation	 is	 that	 the	 language	 “involving	 or	 resulting	 from”	

modifies	the	term	“criminal	homicide	conviction”	rather	than	being	a	separate	

and	distinct	element.			

	       [¶34]		The	legislative	history	behind	section	2411	strongly	supports	the	

proposition	 that	 it	 contains	 a	 sentence	 enhancement	 predicated	 on	 the	 prior	

conviction.	 	 In	 2003,	 the	 Legislature	 undertook	 a	 comprehensive	 revamp	 of	

criminal	 and	 civil	 violations,	 seeking	 to	 create	 a	 one-to-one	 relationship	

between	 each	 offense	 and	 the	 corresponding	 statutory	 cite.	 	 L.D.	 1567,	

Summary	(121st	Legis.	2003).		In	the	summary	of	the	bill,	the	Legislature	stated	

“[t]he	 enhancers	 that	 this	 bill	 includes	 are	 for	 prior	 convictions.”22	 	 Id.	 	 This	

could	not	be	any	clearer—the	sentence	enhancer	is	for	the	prior	conviction,	not	

for	facts	associated	with	that	conviction.		



either	alternative,	however,	the	record	of	conviction	will	provide	a	sufficient	basis	for	the	State	to	
prove,	in	a	subsequent	prosecution	under	section	2411,	that	Hastey’s	prior	conviction	involved	or	
resulted	from	operating	under	the	influence	without	resort	to	extrinsic	facts.	
    22		That	the	sentence	enhancer	in	section	2411	is	based	on	a	prior	conviction	is	further	supported	

by	its	reference	to	17-A	M.R.S.	§	9-A	(2017),	which	requires	that	the	State	plead	the	existence	of	a	
prior	 conviction	 to	 be	 used	 as	 a	 sentence	 enhancer.	 	 See	 L.D.	 1567,	 Summary	 (121st	 Legis.	 2003)	
(“When	 a	 person	 has	 a	 prior	 conviction	 for	 committing	 the	 same	 or	 another	 crime,	 that	 prior	
conviction	may	sometimes	be	used	to	enhance	the	penalty,	but	the	State	must	plead	and	prove	to	a	
jury	that	the	prior	conviction	did	occur.”).	
24	

	      [¶35]	 	 The	 Nevada	 Supreme	 Court	 has	 recently	 dealt	 with	 an	 almost	

identical	issue.		In	Redeker	v.	Eighth	Judicial	District	Court,	the	Nevada	court	was	

faced	 with	 the	 interpreting	 of	 a	 statute	 enhancing	 the	 penalty	 of	 defendants	

who	had	been	“convicted	of	a	felony	involving	the	use	or	threat	of	violence	to	

the	 person	 of	 another.”	 	 127	 P.3d	 520,	 522	 (Nev.	 2006)	 (emphasis	 added).		

There,	the	Nevada	court	refused	to	allow	the	state	to	treat	the	facts	of	the	prior	

conviction	as	a	separate	element	and	to	present	evidence	of	the	underlying	facts	

of	the	prior	case;	the	court	limited	the	evidence	to	proof	of	the	prior	conviction.	

       The	language	of	[the	statute]	.	.	.	does	not	restrict	the	determination	
       of	the	character	of	a	felony	simply	to	consideration	of	its	statutory	
       elements.		On	the	other	hand,	the	statute	does	not	indicate	that	no	
       limits	 should	 be	 placed	 on	 the	 sort	 of	 evidence	 that	 can	 be	
       considered	 in	 making	 that	 determination.	 	 We	 believe	 that	 the	
       approach	in	 Taylor	and	Shepard	answers	the	concerns	 about	due	
       process	 .	 .	 .	 as	 well	 as	 the	 practical	 difficulties	 and	 potential	
       unfairness	 of	 a	 factual	 approach	 recognized	 by	 the	 United	 States	
       Supreme	Court.	
	
Id.	 at	 525-26.	 	 Succinctly,	 the	 Nevada	 court	 concluded	 that	 “[t]he	 statutory	

language	 indicates	 that	 the	 felony	 itself	 must	 involve	 the	 use	 or	 threat	 of	

violence,	not	that	the	defendant	made	threats	of	violence	and	also	committed	a	

felony.”		Id.	at	528.		

	      [¶36]		Here,	the	Court’s	holding	in	this	case	does	just	that—it	creates	a	

sentence	enhancer	 not	based	on	the	fact	of	a	prior	conviction,	but	on	 a	prior	
                                                                                      25	

conviction	 plus	 facts	 occurring	 during	 the	 prior	 conviction.	 	 This	 creates	 an	

element	 beyond	 the	 fact	 of	 a	 prior	 conviction.	 	 This	 added	 element	 is	 not	

supported	by	the	legislative	history	or	apparent	intent	of	section	2411.		

      [¶37]		The	approach	adopted	by	the	Court	will	allow	the	State	to	produce	

extrinsic	evidence	that	Hastey	was	operating	under	the	influence	at	the	time	of	

his	 manslaughter	 conviction,	 even	 though	 there	 is	 the	 possibility	 that	 the	

conviction	 did	 not	 “involve	 or	 result	 from”	 the	 operation	 of	 a	 motor	 vehicle	

while	 under	 the	 influence.	 	 The	 Court’s	 approach	 will	 necessarily	 result	 in	 a	

retrial	 of	 the	 factual	 circumstance	 surrounding	 a	 twenty-six-year-old	

manslaughter	case.		There	are	potential	unintended	consequences	of	such	an	

approach.	

      [¶38]		In	the	long	run,	the	Court’s	holding	will	make	it	more	difficult	for	

the	State	to	prove	the	existence	of	an	enhancer	pursuant	to	section	2411.		In	

this	case,	the	transcript	for	the	Rule	11	hearing	was	not	available,	but	in	future	

cases	the	categorical	approach	adopted	 by	the	federal	courts	 and	other	state	

courts	would	more	readily	establish	a	connection	between	the	prior	criminal	

homicide	 conviction	 and	 operating	 under	 the	 influence	 than	 having	 to	 prove	

that	 the	 defendant	 operated	 under	 the	 influence	 during	 the	 prior	 conviction.		

The	defendant	would	have	another	bite	at	the	apple,	and	could	convince	a	jury	
26	

that	even	though	the	court	documents	could	establish	that	the	prior	conviction	

for	criminal	homicide	involved	or	resulted	from	operating	under	the	influence,	

they	were	not	operating	under	the	influence	during	the	prior	conviction.	

         [¶39]		Besides	the	practical	problems	confronting	the	State	in	proving	a	

twenty-six-year-old	 incident	 of	 operating	 under	 the	 influence,	 it	 is	

fundamentally	unfair	to	Hastey	to	undo	the	terms	of	his	plea	to	manslaughter.		

After	twenty-six	years,	Hastey	now	faces	having	to	defend	against	the	charge	of	

operating	under	the	influence	that	was	dismissed	as	part	of	his	plea	agreement.		

See	 Descamps	 v.	 United	 States,	 570	 U.S.	 254,	 270-71	 (2013)	 (stating	 that	 an	

approach	 scrutinizing	 the	 facts	 underlying	 a	 conviction	 “will	 deprive	 some	

defendants	of	the	benefits	of	their	negotiated	plea	deals”).	

                                              II.		CONCLUSION	

         [¶40]	 	 The	 Court’s	 approach	 creates	 the	 practical	 difficulties	 and	

potential	unfairness	that	the	United	States	Supreme	Court	has	long	cautioned	

against.	23		See	Taylor	v.	United	States,	495	U.S.	575,	601-02	(1990);	Descamps,	


   23		The	Court	points	to	Nijhawan	v.	Holder,	557	U.S.	29,	34	(2009),	as	showing	that	the	Supreme	

Court	has	required	a	circumstance-specific	approach	when	a	federal	statute	refers	to	the	“specific	
way	in	which	 an	 offender	 committed	 the	 crime	 on	a	 specific	 occasion.”	 	 Court’s	 Opinion	 ¶	20	 n.8.		
However,	in	Nijhawan,	the	Supreme	Court	was	faced	with	an	enhancing	provision	based	on	a	prior	
offenses	 that	 “involve[d]	 fraud	 or	 deceit	 in	 which	 the	 loss	 to	 the	 .	.	.	victims	 exceeds	 $10,000.”	 	 Id.	
(quotation	 marks	 omitted).	 	 Importantly,	 the	 Supreme	 Court	 looked	 to	 “the	 italicized	 statutory	
words”—in	 which—as	 a	 reference	 to	 the	 specifics	 of	 the	 crime	 committed,	 not	 that	 it	 “involve[d]	
fraud	or	deceit.”		Id.	at	34,	39	(“The	words	‘in	which’	(which	modify	‘offense’)	can	refer	to	the	conduct	
involved	‘in’	the	commission	of	the	offense	of	conviction,	rather	than	to	the	elements	of	the	offense.”).		
                                                                                                            27	

570	 U.S.	 at	 270-71.	 	 The	 federal	 courts	 have	 adopted	 a	 categorical	 approach	

regarding	 proof	 of	 prior	 convictions,	 not	 other	 facts	 surrounding	 the	 prior	

conviction.		Other	state	courts	have	acknowledged	the	categorical	approach’s	

wisdom.	24		See,	e.g.,	Redeker	v.	Eighth	Judicial	Dist.	Court,	127	P.3d	520,	525-26	

(Nev.	 2006);	 People	 v.	 Gallardo,	 407	 P.3d	 55,	 56,	 64	 (Cal.	 2017)	 (holding,	 in	

interpreting	its	own	state	criminal	code,	“that	a	court	considering	whether	to	

impose	an	increased	sentence	based	on	a	prior	qualifying	conviction	may	not	

determine	the	nature	or	basis	of	the	prior	conviction	based	on	its	independent	

conclusions	about	what	facts	or	conduct	realistically	supported	the	conviction”	

(quotation	 marks	 omitted));	 State	 v.	 Hancock,	 65	 N.E.3d	 585,	 587-92	

(Ind.	2016)	 (applying	 the	 categorical	 approach	 to	 Indiana’s	 and	 Ohio’s	 state	

statutes	 to	 determine	 whether	 a	 prior	 conviction	 in	 Ohio	 was	 substantially	



Likewise,	the	Supreme	Court	looked	to	examples	of	other	statutes	that	referenced	the	specific	way	a	
crime	was	committed—“for	the	purpose	of,”	“if	committed	for	commercial	advantage,”	“in	which	the	
revenue	loss	.	.	.	exceeds	$10,000.”		Id.	at	37-38.		Section	2411	does	not	include	comparable	language.		
See	29-A	M.R.S.	§	2411(1-A)(D)(2).	
    24		The	categorical	approach	requires	a	sentencing	court	to	“compare	the	elements	of	the	statute	

forming	 the	 basis	 of	the	 defendant’s	 conviction	with	 the	 elements	 of	 the	 ‘generic	 crime,’”	 and	 the	
“prior	conviction	qualifies	.	.	.	only	if	the	statute’s	elements	are	the	same	as,	or	narrower	than,	those	
of	the	generic	offense.”		Descamps	v.	United	States,	570	U.S.	254,	257	(1990);	see	Taylor	v.	United	States,	
495	U.S.	575,	600	(1990).		A	variant	of	this	approach,	the	modified	categorical	approach,	is	applicable	
to	divisible	statutes—statutes	that	set	out	means	of	committing	a	crime	in	the	alternative.		Descamps,	
570	U.S.	at	257.		In	the	modified	approach,	the	sentencing	court	is	allowed	to	consult	a	“limited	class	
of	documents,”	such	as	the	indictment,	jury	instructions,	plea	agreement,	plea	colloquy,	and	explicit	
factual	findings	the	defendant	assented	to.		Descamps,	570	U.S.	at	257;	see	Shepard	v.	United	States,	
544	U.S.	13,	25-26	(2005).			
28	

similar	 to	 the	 offense	 in	 Indiana);	 State	 v.	 Dickey,	 350	 P.3d	 1054,	 1057-58,	

1067-68	(Kan.	2015)	(applying	the	categorical	approach	in	a	comparison	of	two	

of	 its	 own	 state	 criminal	 statutes).	 	 Although	 in	 Maine	 the	 issue	 must	 be	

presented	 to	 a	 jury	 instead	 of	 a	 judge	 during	 sentencing,	 the	 issue	 before	 us	

remains	the	same—whether	the	enhancer	in	section	2411	refers	only	to	prior	

convictions	 or	 to	 prior	 convictions	 plus	 facts	 that	 constitute	 an	 aggravating	

factor.	 	 The	 precedents	 and	 process	 used	 by	 the	 federal	 courts	 is	 both	

informative	and	persuasive.25	

        [¶41]		We	should	affirm	the	trial	court’s	order	granting	Hastey’s	motion	

in	limine	regarding	the	introduction	of	extrinsic	evidence	and	limit	the	State’s	




   25		The	Supreme	Court	has	required	that,	pursuant	to	the	Sixth	Amendment,	“other	than	the	fact	

of	a	prior	conviction,	any	fact	that	increases	the	penalty	for	a	crime	beyond	the	prescribed	statutory	
maximum	 must	 be	 submitted	to	a	 jury	 and	 proved	 beyond	 a	 reasonable	 doubt.”	 	 Apprendi	 v.	New	
Jersey,	530	U.S.	466,	490	(2000);	see	also	Alleyne	v.	United	States,	570	U.S.	99,	108,	111-12	(2013).		
Despite	 this,	 the	 Maine	 Legislature	 has	 gone	 further	 than	 what	 is	 constitutionally	 mandated	 by	
requiring	that	all	facts	that	serve	to	increase	a	sentence,	including	prior	convictions,	be	included	in	
the	charging	document,	submitted	to	a	jury,	and	proved	beyond	a	reasonable	doubt.		See	17-A	M.R.S.	
9-A	(2017);	L.D.	1740,	Bill	Summaries,	Joint	Standing	Committee	on	Criminal	Justice	(120th	Legis.	
2001)	(recognizing	the	prior	convictions	exception	to	the	Sixth	Amendment	requirements,	but	not	
implementing	it	into	Maine	law);	L.D.	1567,	Summary	(121st	Legis.	2003)	(“[T]he	State	must	plead	
and	prove	to	a	jury	that	the	prior	conviction	did	occur,	instead	of	the	court	making	that	determination	
in	order	to	enhance	a	crime	at	the	point	of	sentencing.”).		As	a	result	of	the	Legislature’s	decision,	
Maine	 has	 a	 unique	 system	 in	 which	 sentence	 enhancement	 based	 on	 prior	 convictions	 must	 be	
pleaded	and	proved	to	the	jury,	not	to	a	sentencing	judge.		See	State	v.	Averill,	2005	ME	83,	¶	14,	887	
A.2d	519	(Clifford,	J.,	dissenting)	(“Pursuant	to	our	existing	law,	discrete	prior	criminal	convictions	
that	lead	to	a	higher	classification	of	crime,	or	that	can	lead	to	longer	sentences,	have	to	be	pleaded	
and	proved	beyond	a	reasonable	doubt.”).	
                                                                                      29	

proof	 to	 evidence	 of	 the	 conviction	 itself,	 including	 relevant	 court	 pleadings,	

transcripts,	and	judicial	findings.	

	     	     	      	      	     	
	
Todd	R.	Collins,	District	Attorney,	and	Kurt	A.	Kafferlin,	Asst.	Dist.	Atty.	(orally),	
8th	Prosecutorial	District,	Houlton,	for	appellant	State	of	Maine	
	
Kirk	D.	Bloomer,	Esq.	(orally),	Houlton,	for	appellee	Troy	D.	Hastey	
	
	
Aroostook	County	Unified	Criminal	Docket	docket	number	CR-2015-30352	
FOR	CLERK	REFERENCE	ONLY	
