MAINE SUPREME JUDICIAL COURT Reporter of Decisions Decision: 2023 ME 35 Docket: Han-22-209 Argued: April 6, 2023 Decided: June 13, 2023
Panel: STANFILL, C.J., and MEAD, JABAR, HORTON, CONNORS, LAWRENCE, and DOUGLAS, JJ.
STATE OF MAINE
v.
RONALD T. CUMMINGS
MEAD, J.
[¶1] Ronald T. Cummings appeals from a judgment of conviction of gross
sexual assault (Class A), 17-A M.R.S. § 253(1)(A) (2013),1 entered by the trial
court (Hancock County, Mallonee, J.) following a jury trial, and from the
sentence the court imposed. Cummings contends that the judgment must be
vacated because the court committed obvious error in its response to a note
from the jury during its deliberations, and because of prosecutorial error
1 The indictment charged Cummings with sexually assaulting the victim in 2014. The evidence admitted at trial suggested that the crime might have occurred in 2013. Because Cummings “must be punished pursuant to the law in effect at the time of the offense,” State v. Parsons, 626 A.2d 348, 351 (Me. 1993) (quotation marks omitted), and the statutes cited in this opinion are the same for 2013 and 2014, we apply the earliest applicable (2013) version.
Statutes formerly located in Title 17-A M.R.S., part 3, which included sections 1151 through 1349-F, were repealed and replaced by P.L. 2019, ch. 113, §§ A-1, A-2 (effective May 16, 2019) (now codified at 17-A M.R.S. §§ 1501-2314 (2023)). 2
occurring during the State’s closing argument. We disagree and affirm the
judgment of conviction.
[¶2] Cummings also contends that his sentence must be vacated because
(1) the court lacked the authority to amend the sentence four days after it was
originally imposed; (2) the amended sentence illegally increased his
punishment; and (3) the amended sentence illegally imposed a requirement
that he submit to polygraph testing as a condition of supervised release. We
conclude that the court was authorized to amend Cummings’s sentence and
that the amendment was lawful. However, because the court did not conduct a
new sentencing analysis when it significantly reduced the maximum sentence
that it determined was appropriate for Cummings’s crime, and because it is
unclear whether the court required polygraph testing as a condition of
supervised release, we vacate the sentence and remand for a new sentencing
hearing.
I. BACKGROUND
A. Facts
[¶3] Viewing the evidence admitted at trial in the light most favorable to
the State, the jury rationally could have found the following facts. State v.
Beeler, 2022 ME 47, ¶ 2, 281 A.3d 637. 3
[¶4] Beginning when the victim was age eleven and ending when she was
fourteen, Cummings lived with the victim and her mother, who was in a
relationship with Cummings. One day when the victim was in eighth grade and
living in Bucksport, she was sick and stayed home from school with Cummings
while her mother worked. Cummings took her for a ride to his friend’s house
in Orrington, where he picked up what she eventually learned were “pot
brownies.” He later gave her one of the brownies in the living room of her
home, which made her feel lightheaded.
[¶5] Eventually the victim went to her bedroom; Cummings came in and
led her to his bedroom. He put her on the bed where he “kept telling [her] to
trust him,” that “something similar like this had happened in his life,” and that
“every young person needs . . . somebody . . . [to] show[] them how to do sexual
things in the bedroom.” Cummings asked the victim to take her pants off and
asked if he could show her how to receive oral sex. The victim started crying
and sat up. Cummings then started touching her, pulled her to the edge of the
bed, made her get on her hands and knees, and sexually assaulted her. In doing
so, Cummings held her in place by putting his hands on her hips and holding
her down on the bed; she could not get away from him. He stopped the assault
when the victim was “crying really hard” and “freaking out” trying to get up; 4
Cummings “put [her] on his knees . . . sitting on the edge of the bed [saying] you
did nothing wrong, this is normal, you can’t tell anybody.” When the victim said
she was going to tell her mother, Cummings begged her not to tell and said he
would hurt her brother and her mother and they would have no place to live.
[¶6] When the victim later wrote in her journal about what had
happened, Cummings told her she could not ever talk about it or write it down,
and that it “needed to be kept private.” The journal disappeared. Cummings
gave the victim $200 so she “wouldn’t tell anybody.” Sometime after she was
assaulted, the victim discovered nude pictures of herself on Cummings’s phone
that had been taken without her knowledge when she was in her bedroom, as
well as pictures of her in a bathing suit.
[¶7] In May 2015, the victim and her mother went to the Bucksport
Police Department and met with an officer; the victim told the officer that “[her]
mother’s boyfriend had sex with [her].” Another officer, who was assigned as
the primary investigator, talked to Cummings; he acknowledged having “pot
cookies” in the house but did not say that he had given any to the victim. The
victim told the investigator that just before Cummings sexually assaulted her,
she was screaming “because she knew something bad was going to happen.” 5
B. Procedure
[¶8] In April 2019, Cummings was indicted on one count of gross sexual
assault (Class A), 17-A M.R.S. § 253(1)(A), and one count of possession of
sexually explicit material (Class C), 17-A M.R.S. § 284(1)(C) (2013). The court
granted Cummings’s motion to sever the counts for trial and only the conviction
for gross sexual assault is at issue in this appeal.
[¶9] The court held a jury trial on April 19, 2022. After the State rested
its case-in-chief, Cummings moved for a judgment of acquittal on the ground
that there was insufficient evidence for the jury to find the required element of
compulsion beyond a reasonable doubt. See 17-A M.R.S. § 253(1)(A).2 The
court denied the motion, and the jury returned a verdict of guilty.
[¶10] At a hearing on May 3, 2022, the court denied Cummings’s
post-trial motion for a judgment of acquittal, which was again based on his
2 Title 17-A § 253(1)(A) (2013) provided, in part: “A person is guilty of gross sexual assault if that
person engages in a sexual act with another person and . . . [t]he other person submits as a result of compulsion, as defined in section 251, subsection 1, paragraph E.”
Title 17-A M.R.S. § 251(1)(E) (2013) provided:
“Compulsion” means the use of physical force, a threat to use physical force or a combination thereof that makes a person unable to physically repel the actor or produces in that person a reasonable fear that death, serious bodily injury or kidnapping might be imminently inflicted upon that person or another human being.
“Compulsion” as defined in this paragraph places no duty upon the victim to resist the actor. 6
assertion that there was insufficient evidence that the victim submitted to the
sexual act as a result of compulsion. M.R.U. Crim. P. 29(b).
[¶11] The court held a sentencing hearing on June 24, 2022. In
conducting the analysis required by 17-A M.R.S. § 1252-C (2013),3 the court set
the basic sentence at twelve years; the maximum sentence at fifteen years; and
the final sentence at fifteen years, with all but eight years suspended, and eight
years of supervised release. The court entered judgment accordingly.
[¶12] Three days later, the court held a conference with counsel to
discuss “an anomaly of the sentence that was pronounced” and “how to remedy
3 The statute provided:
In imposing a sentencing alternative pursuant to section 1152 that includes a term of imprisonment relative to murder, a Class A, Class B or Class C crime, in setting the appropriate length of that term as well as any unsuspended portion of that term accompanied by a period of probation, the court shall employ the following 3-step process:
1. The court shall first determine a basic term of imprisonment by considering the particular nature and seriousness of the offense as committed by the offender.
2. The court shall next determine the maximum period of imprisonment to be imposed by considering all other relevant sentencing factors, both aggravating and mitigating, appropriate to that case. These sentencing factors include, but are not limited to, the character of the offender and the offender’s criminal history, the effect of the offense on the victim and the protection of the public interest.
3. The court shall finally determine what portion, if any, of the maximum period of imprisonment should be suspended and, if a suspension order is to be entered, determine the appropriate period of probation to accompany that suspension.
17-A M.R.S. § 1252-C (2013). Section 1252-C was later repealed and replaced. P.L. 2019, ch. 113, §§ A-1, A-2 (effective May 16, 2019) (codified at 17-A M.R.S. § 1602 (2023)). 7
that.” The problem arose because the sentence imposed on Cummings
conflicted with the applicable statutes, which authorized the court to suspend
part of the maximum sentence if it was followed by probation, but not if it was
followed by supervised release.4 See 17-A M.R.S. §§ 1203(1-A), 1231(1),
1252-C(3) (2013). Furthermore, the maximum authorized term of probation
available to the court was six years, not the eight years of supervision it
imposed. 17-A M.R.S. § 1202(1-A)(A-1)(1) (2013).
[¶13] The court noted that accomplishing what it had intended would
require a sentence of eight years to serve, followed by eight years of supervised
release—“functionally a more severe sentence than the one that was imposed”
because a violation of supervised release would subject Cummings to up to
eight years of additional confinement, rather than the additional seven years of
potential imprisonment under the original split sentence. See 17-A M.R.S.
§ 1231(6) (2013). The court set the matter for further hearing the following
day.
[¶14] At that hearing, held four days after the initial sentencing,
Cummings appeared with counsel. The court began by acknowledging that it
4 Supervised release was an authorized option for the court, but not as part of a split sentence. By
statute, a period of supervised release could begin only after a defendant had served his full term of imprisonment. See 17-A M.R.S. §§ 1203(1-A), 1231(1), 1254 (2013). 8
had “mixed up the properties of probation and supervised release in
formulating the final sentence that was pronounced.” After the prosecutor
noted that Cummings’s potential imprisonment would increase from fifteen
years to sixteen years if the court did what it said it had originally intended, the
court stated that at the original sentencing hearing, “[m]y analysis of all of the
competing factors of the Hewey[5] analysis persuaded me that the proportional
and proper sentence for Mr. Cummings was to serve eight years, and then to
add eight years of supervision.” Accordingly, the court entered an amended
judgment imposing a sentence of eight years’ imprisonment to be followed by
eight years of supervised release, with attached specific conditions.
[¶15] Cummings timely appealed and applied to allow an appeal of his
sentence.6 M.R. App. P. 2B(b)(1), 20. The Sentence Review Panel granted leave
to appeal from the sentence and ordered that the sentence appeal be
considered as part of the appeal from the judgment of conviction.
5 State v. Hewey, 622 A.2d 1151 (Me. 1993); see 17-A M.R.S. § 1252-C.
6 The State suggests, without elaboration or developed argument, that because Count 2 of the indictment was severed and remains pending, “one could argue that the appeal was premature.” We deem that bare argument waived. See Mehlhorn v. Derby, 2006 ME 110, ¶ 11 & n.6, 905 A.2d 290. 9
II. DISCUSSION
A. Jury Note
[¶16] Consistent with the applicable statutes, the court instructed the
jury that “[t]o find defendant guilty you must find that he engaged in a sexual
act with another person and[] the other person submitted as a result of
compulsion. . . . Compulsion means the use of physical force, a threat to use
physical force, or a combination thereof that makes a person unable to
physically repel the actor.” See 17-A M.R.S. §§ 251(1)(E), 253(1)(A) (2013).
[¶17] During its deliberations, the jury sent out a note asking two
questions: “(1) Could we please have the definition of compulsion?” and
“(2) Legal definition for altering ‘state of mind’ with pot cookies and alcohol—
would that be a form of force?” In conferring with counsel, the court said:
“I believe the only available response is to bring them back in, tell them again
the definition of compulsion, and not respond to their second inquiry, which
would constitute commenting on the evidence.” That is what the court
ultimately did, although it sent the jury in writing the instruction it had
previously given on the definition of “compulsion” rather than reinstructing
orally. 10
[¶18] Although defense counsel remarked that “the thing that bothers
me is are they going to consider a mind-altering state of mind as a form of
force,” he told the court that “at this point in time I would say yes, we just give
them that abbreviated definition [of ‘compulsion’]. And it says physical force in
there so let them hash it out.” When asked by the court if Cummings objected
to its approach, defense counsel said he did not.
[¶19] Cummings now contends that the court erred in declining to
answer the note’s second question because the jury “did not comprehend” its
instruction on compulsion, and so it may have convicted on an improper
basis—namely, through proof of impairment of the victim’s power to resist and
not through proof of compulsion. Compare 17-A M.R.S. § 253(1)(A) with
17-A M.R.S. § 253(2)(A) (2013). Cummings was not charged with the section
253(2)(A) impairment by furnishing drugs or intoxicants alternative, and the
jury was not tasked with considering the elements of that crime.7
[¶20] “We review jury instructions in their entirety to determine
whether they presented the relevant issues to the jury fairly, accurately, and
adequately, and we will vacate the court’s judgment only if the erroneous
7 Title 17-A M.R.S. § 253(2)(A) (2013) provided: “A person is guilty of gross sexual assault if that
person engages in a sexual act with another person and . . . [t]he actor has substantially impaired the other person’s power to appraise or control the other person’s sexual acts by furnishing, . . . administering or employing drugs, intoxicants or other similar means.” 11
instruction resulted in prejudice.” State v. Gaston, 2021 ME 25, ¶ 24,
250 A.3d 137 (alteration and quotation marks omitted); see State v. Rosario,
2022 ME 46, ¶ 29, 280 A.3d 199 (stating that when the defendant fails to object
to jury instructions, review is for obvious error). Cummings does not challenge
the substance of the court’s original instruction or its reinstruction in response
to the note. Rather, he contends that the court’s response to the note was
incomplete because the court was required to give a separate answer to the
jury’s second question. His contention fails for two reasons.
[¶21] First, by agreeing to the court’s response to the note, Cummings
waived any objection to it now. See State v. McLaughlin, 2020 ME 82, ¶ 25,
235 A.3d 854; State v. Wilson, 409 A.2d 226, 229 (Me. 1979).
[¶22] Second, even if Cummings’s objection were not waived, the court’s
response to the note answered both of the jury’s questions. The first question
asked for the definition of “compulsion” and the second—apparently an
offshoot of the first—asked if the use of “pot cookies and alcohol” would qualify
as “force” sufficient to satisfy that definition. The court’s answer informed the
jury for a second time that the force required to find Cummings guilty was
“physical force.” That answer was neither incomplete nor incorrect. We have
said that 12
[n]ot every statutory phrase requires explanation . . . . The focus is on whether the jury would have reasonably understood the common sense meaning of the term. The jury is ordinarily entrusted to determine the common meaning of words; when a term is not defined in a statute, a jury can generally determine the meaning of the term by common sense.
State v. Hall, 2019 ME 126, ¶ 28, 214 A.3d 19 (citations and quotation marks
omitted).
B. Prosecutorial Error
[¶23] In presenting the State’s closing argument, the prosecutor asked
the jury, when considering
whether [the victim] was fabricating a story, what motive would she have for telling you that she was assaulted by Mr. Cummings? Has the jury heard one word about some reason . . . you see a movie, the child wants the natural parents to get back together and resents the stepparent or whatever. That’s just one example. But did you hear anything about that? No. What motive would there possibly be for [the victim] to recite to you anything other than what actually happened to her?
[¶24] Cummings asserts that the judgment must be vacated on the
ground of prosecutorial error because “the obvious implication was[] whether
[the jury] heard any evidence from the defense,” and so the State’s argument
“shifted onto the defendant a burden that he did not have.” He acknowledges
that he did not object to the State’s argument at trial,8 and so our review is for
8To the contrary, Cummings strategically responded in his own closing argument: “[The prosecutor] asked about a motive. We don’t have to prove there was a motive, but I would submit 13
“obvious error affecting substantial rights.” In re Weapons Restriction of J.,
2022 ME 34, ¶ 35, 276 A.3d 510 (quotation marks omitted); see State v. Robbins,
2019 ME 138, ¶ 11, 215 A.3d 788 (“An error affects a criminal defendant’s
substantial rights if the error was sufficiently prejudicial to have affected the
outcome of the proceeding. . . . When a prosecutor’s statement is not sufficient
to draw an objection, particularly when viewed in the overall context of the
trial, that statement will rarely be found to have created a reasonable
probability that it affected the outcome of the proceeding.” (alteration,
citations, and quotation marks omitted)).
[¶25] It is well established that “prosecutors must limit their arguments
to the facts in evidence. . . . Shifting the burden of proof to the defendant or
suggesting that the defendant must present evidence in a criminal trial is
improper closing argument.” In re Weapons Restriction of J., 2022 ME 34, ¶ 36,
276 A.3d 510 (alterations, citation, and quotation marks omitted); see State v.
White, 2022 ME 54, ¶ 27, 285 A.3d 262. We discern no improper shifting of the
burden here, and thus no error, much less obvious error. Although Cummings
asserts that the challenged portion of the State’s argument must refer to his
failure to supply a motive, but see supra n.8, it could easily be understood to
this to you. You saw her testimony. She is an angry child.” He went on to explain why the victim’s testimony should lead the jury to reach that conclusion. 14
refer to a credible victim who did not testify to anything that suggested a motive
for her to lie.
C. Sentencing
[¶26] Concerning his appeal from the sentence imposed by the court,
Cummings contends that (1) the court lacked the authority to issue an amended
sentence; (2) the amended sentence was illegal because it was more severe
than the original; and (3) he is, or may be, subject to an unlawful requirement
to submit to polygraph examinations as a condition of his supervised release.
We conclude that the court was authorized to amend the sentence it originally
imposed and that the amended sentence was not illegal. However, because the
court reduced Cummings’s maximum sentence to eight years using the same
sentencing analysis that originally resulted in a fifteen-year maximum
sentence, and because it is unclear whether submission to polygraph testing is
a condition of Cummings’s supervised release, we vacate the sentence and
remand for the court to conduct a de novo sentencing hearing.
1. Authority to Amend the Sentence
[¶27] Cummings’s argument that the trial court lacked the authority to
amend his sentence rests on his construction of M.R. App. P. 3(b), which limits
the actions a trial court may take once an appeal is docketed pursuant to 15
Rule 3(a).9 Here, Cummings filed his notice of appeal on June 24, 2022, but it
was not entered on the trial court’s docket until June 30, two days after the
court amended Cummings’s sentence. Until docketing occurred, Rule 3(b) was
not invoked and the trial court retained full authority over the case. See
Alexander, Maine Appellate Practice § 3.1(b) at 67-68 (6th ed. 2022) (“Once an
appeal is docketed in the trial court and ‘Law’ is marked on the docket, the trial
court’s authority to . . . take further action in the matter is limited, pending
disposition of the appeal by the Law Court. After docketing, primary authority
over the matter shifts to the Law Court.” (emphasis added)); State v. Curtis,
1998 ME 254, ¶ 4, 721 A.2d 175 (“Judgment is considered to occur when a
sentence imposed is entered on the criminal docket.”).
[¶28] Furthermore, even if Rule 3(b) controlled, the trial court “is
permitted . . . to conduct proceedings . . . for the correction . . . of a sentence
pursuant to M.R.U. Crim. P. 35(a).” M.R. App. P. 3(c)(1). Maine Rule of Uniform
Criminal Procedure 35(a), in turn, allows a court “on [its] own motion . . . [to]
correct an illegal sentence or a sentence imposed in an illegal manner.” The
original sentence imposed on Cummings was, contrary to his contention, illegal.
9 Maine Rule of Appellate Procedure 3(b) provides that after an appeal is docketed in the trial court, “The trial court shall take no further action pending disposition of the appeal by the Law Court except as provided in Rules 3(c) and (d) of these Rules.” 16
[¶29] Although Cummings, in arguing that his original sentence was not
illegal, is correct in asserting that it would have been “perfectly legal [for the
court] to impose a split sentence and probation rather than supervised release,”
see 17-A M.R.S. §§ 1152(2)(B), 1201, 1231(1) (2013), the court could not have
imposed a split sentence with eight years of probation because the statutory
maximum was six years, 17-A M.R.S. § 1202(1-A)(A-1)(1). Accordingly, even if
the court had originally imposed probation instead of supervised release,
Cummings’s sentence would have required correction, and M.R. App. P. 3(b)
allowed the trial court to take that action.
2. Legality of the Amended Sentence
[¶30] We review the legality of a sentence de novo. State
v. Murray-Burns, 2023 ME 21, ¶ 18, 290 A.3d 542. As the trial court recognized,
the amended sentence increased Cummings’s potential incarceration from
fifteen years to sixteen years.10 It is nonetheless the operative sentence because
it was imposed as part of a single, unitary sentencing proceeding. The amended
judgment was entered and docketed on June 28, 2022, the same day on which
the original judgment was docketed. “Judgment is considered to occur when a
10The court originally imposed a maximum sentence of fifteen years. Under the amended sentence, Cummings is required to serve eight years and is then exposed to an additional eight years of incarceration if his supervised release is fully revoked. 17-A M.R.S. § 1231(6) (2013). 17
sentence imposed is entered on the criminal docket.” Curtis, 1998 ME 254, ¶ 4,
721 A.2d 175. The court’s original judgment entered four days earlier had not
become final before it was amended, and so it is the amended judgment from
which Cummings appeals.
3. Sentencing Analysis
[¶31] Because Cummings was convicted of gross sexual assault in
violation of 17-A M.R.S. § 253(1)(A), the court was permitted, but was not
required, to impose a period of supervised release as part of the sentence.
17-A M.R.S. § 1231(1). Although we conclude that the court had the authority
to impose what was a lawful amended sentence, the sentencing analysis the
court employed requires that we vacate the sentence and remand for a de novo
sentencing hearing.
[¶32] Ordinarily, the statutory three-step sentencing procedure
required the court to first determine a basic sentence “considering the
particular nature and seriousness of the offense”; then determine the maximum
sentence after considering aggravating and mitigating factors appropriate to
the case; and finally decide what portion, if any, of the maximum sentence to
suspend and the length of a term of probation to accompany the suspended
portion. 17-A M.R.S. § 1252-C. If the court chose to impose a period of 18
supervised release after imprisonment, however, the court would not proceed
to the third step because no part of a sentence followed by supervised release
is suspended.11 See supra n.4.
[¶33] At the first sentencing hearing, the court conducted a sentencing
analysis following the statutory procedure and determined that an appropriate
maximum sentence was fifteen years given the nature of the crime Cummings
committed, aggravated by the exploitation of his relationship with the victim
and the effect of his actions on her. Four days later, at the hearing held to
correct the original sentence, the court did not undertake a new sentencing
analysis but rather stated:
My analysis of all of the competing factors of the Hewey analysis[12] persuaded me that the proportional and proper sentence for Mr. Cummings was to serve eight years, and then to add eight years of supervision. . . . To the extent that there’s a necessity for modifying the Hewey analysis, I will simply say that the aggregate of all of those factors persuaded me that that is . . . the correct outcome . . . .
11What was implicit in 2013 is now explicit in the current version of the statute, which makes clear that supervised release follows the maximum period of imprisonment determined at step two. 17-A M.R.S. § 1602(3) (2023) (“When the court . . . chooses to impose a period of supervised release after imprisonment for any other violation of section 253, . . . the court, after employing the first 2 steps of the sentencing process as specified in subsection 1, paragraphs A and B, shall determine the appropriate period of supervised release to follow the maximum term of imprisonment.”).
12 See supra n.5. 19
Neither counsel objected; indeed Cummings’s counsel, although questioning
whether the court’s original sentencing analysis remained effective, said
“obviously, I’m not going to raise any defects in the Hewey analysis, if there are
any.”
[¶34] We conclude, however, that the court’s focus on the ultimate
outcome of the second sentencing hearing resulted in an obvious error that we
must correct. See M.R.U. Crim. P. 52(b); State v. Haji-Hassan, 2018 ME 42, ¶ 18,
182 A.3d 145 (“We may take notice of an obvious error affecting a substantial
right, even if the claim of error was not properly preserved.” (quotation marks
omitted)). The problem lies in the differing maximum sentences imposed in the
original and amended judgments—in the first judgment the court determined
that a maximum sentence of fifteen years was appropriate based on the
applicable aggravating and mitigating factors, and in the second it determined,
without further analysis, that a maximum sentence of eight years was the
appropriate result based on those same factors. See 17-A M.R.S. § 1252-C(2).
We do not intend to say that the sentence imposed in the amended judgment
was incorrect, but it required a de novo sentencing analysis explaining how the
court arrived at that new result. 20
[¶35] On remand, if the court again imposes a term of supervised release
as a part of Cummings’s sentence, it should clarify whether the conditions of
supervised release include a requirement that Cummings submit to polygraph
examinations at the request of his supervising official—a condition that he
contends is both unsupported by the record and unconstitutional, if it was
indeed imposed as a part of the court’s amended sentence.
[¶36] Whether the court actually imposed that condition is unclear. The
State is correct in noting that the amended judgment and commitment, which
includes written conditions of Cummings’s supervised release, says nothing
about a polygraph testing requirement. That condition was requested by the
State in its sentencing memorandum and discussed at the first sentencing
hearing, where the State told the court that a polygraph requirement was “a
standard part of the specialized sex offender protocol,” and defense counsel
countered that such a requirement was “dubious at best.” The court, in orally
reviewing the conditions of supervised release that it was imposing, indicated
that “the internet, polygraph, residence [conditions], those all stay in,” but the
polygraph requirement was not listed among the specific written conditions
imposed by the court in its judgment. 21
[¶37] Because the trial court will be required to resentence Cummings
as a result of our opinion, and because it is not clear that the court ultimately
imposed a requirement that he submit to polygraph testing, we need not decide
whether such a condition would be supported by the record in this case or
whether it would violate Cummings’s constitutional rights against
self-incrimination, as he contends. On remand, if the State again seeks a
polygraph testing condition, the trial court will hear the parties’ arguments and
make a determination in the first instance as to whether it may, or will, impose
any requested conditions. See Murray-Burns, 2023 ME 21, ¶ 21, 290 A.3d 542
(declining an appellant’s “invitation to provide prophylactic guidance . . .
because the question is not ripe for our adjudication”).
The entry is:
Judgment of conviction affirmed. Sentence vacated. Remanded to the trial court for resentencing in accordance with this opinion.
Jamesa J. Drake, Esq. (orally), and Rory A. McNamara, Esq., Drake Law LLC, Auburn and York, for appellant Ronald T. Cummings
Toff Toffolon, Dep. Dist. Atty. (orally), Prosecutorial District VII, Ellsworth, for appellee State of Maine
Hancock County Unified Criminal Docket docket number CR-2018-1547 FOR CLERK REFERENCE ONLY