State of Maine v. Troy D. Hastey

2018 ME 147

• Court: Supreme Judicial Court of Maine
• Decided: November 6, 2018
• Status: Published

Opinion

MAINE SUPREME JUDICIAL COURT Reporter of Decisions Decision: 2018 ME 147 Docket: Aro-16-556 Argued: September 14, 2017 Decided: November 6, 2018 Revised: January 8, 2019; November 19, 2019

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).

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

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

8In 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. 10Because 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

16Although 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”).

Hastey previously waived his right to a jury trial. We do not reach the question of whether or 18

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 operating 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

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

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 (2013); 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

25The 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