MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions

Decision: 2020 ME	97

Docket: Ken-19-413

Argued: May	11,	2020

Decided: July	14,	2020

Panel: MEAD,	GORMAN, HUMPHREY, HORTON,	and	CONNORS, JJ.

STATE	OF	MAINE

v.

AUBREY	ARMSTRONG

GORMAN,	J.

[¶1]		After Aubrey	Armstrong	was	convicted	of	both	felony	murder	and	

the	underlying	felony	of	robbery	and	sentenced	on	both	charges,	he	appealed,	

successfully	arguing that	the	two	convictions	violated	his	right	to	be	free	from	

double	 jeopardy.	 	 See	 State	 v.	 Armstrong,	 2019	 ME	 117,	 ¶¶	 1,	 24-26,	

212 A.3d 856.		Armstrong	now	challenges	the	trial	court’s	actions on	remand.		

Because we	conclude that	the	court	erred,	we	again vacate the	judgment.

I.		BACKGROUND

[¶2]		The	details	of	Armstrong’s	crime,	arrest,	and	 trial are	set	 forth	in	

our	 opinion	 in	 the	 first	 appeal.	 	 See	 Armstrong,	 2019	 ME	 117,	 ¶¶	 3-15,	

212 A.3d 856.		As	relevant	here,	in	May	of	2018,	after	a	jury-waived	trial,	the	

court	(Kennebec	County,	Billings,	J.)	found	Armstrong guilty of felony	murder	
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(Class A),	 17-A	 M.R.S.	 §	 202(1) (2020), and	 robbery	 (Class	 A),	 17-A	 M.R.S.	

§ 651(1)(C) (2020).	 	 The	 court	 entered	 a	 judgment	 and	 conviction	 on	 both	

counts,	sentencing	Armstrong	 to	 thirty	 years	in	prison	on	 the	 felony	murder	

count	 and	 a	 concurrent	thirty-year	 sentence,	 with	 all	 but	 twenty-nine	 years	

suspended	and	four	years	of	probation, on	the	robbery	count.		

[¶3]		Armstrong	appealed,	arguing	that	the	multiple	convictions	violated	

the	double	jeopardy	clauses	of	the	Maine	and	federal	constitutions.		Armstrong,	

2019	ME	117,	¶¶	24-26,	212	A.3d	856.		We	agreed	and,	in	July	of	2019,	vacated	

the	 judgment	 and	 remanded	 for	 the	 court	 to	 “take	 appropriate	 action	 to	

eliminate	the	double	jeopardy	effect	.	.	.	by	merging	the	two	counts	into	a	single	

defined	count	.	.	.	and	then	imposing	sentence	on	the	merged	count.”		Id. ¶	26.

[¶4]		In	October	 of	2019,	 the	court	convened	 a	hearing	 to	address	our	

mandate	and	to	resentence Armstrong.		Instead	of	the	court	merging	the	counts,	

however,	the	robbery	count	was	dismissed	by	the	State.		The	court	also	denied	

Armstrong’s	 request	 for	 a	 full sentencing	 hearing,	 explaining	 that	 it	 was

“unconstitutional	for	[Armstrong]	to	be	sentenced	on	both	counts,	and	we	are	

here	 today	 to	 alleviate	 that	 circumstance,	 and	 we	 will	 do	 that	 by	 having	 an	

amended	 [judgment	and	conviction]	 sentencing	him	 to	 [thirty]	 years	 on	[the	

felony	murder	count].”		The	court	also	stated	that	“it	is	not	a	resentencing,	it	is	
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simply	 an	 amended	 [judgment	 and	 conviction],” and	 entered	 an	 amended	

judgment	accordingly.

[¶5]		Armstrong	timely	appealed	from	the	amended	judgment	and	filed	

an	application	for leave	to	appeal	from	his sentence,	which	the	Sentence	Review	

Panel	granted.		See 15	M.R.S.	§§ 2115,	2151 (2020);	M.R.	App.	P.	2A,	2B(b),	20;	

State	v.	Armstrong,	No.	SRP-19-432	(Me.	Sent.	Rev.	Panel	Dec.	13,	2019).		

II.		DISCUSSION

[¶6]		Armstrong	argues	that	the	trial	court	erred	by	allowing	the	State	to	

dismiss	 the	 robbery	count	 on	 remand,	 rather	 than	merging	it	into	 the	 felony	

murder	count,	and	that	this	error	resulted	in	the	court’s	failure	to	sufficiently	

ameliorate	 the	 double	 jeopardy	 problem	 by	 resentencing	 him	 on	 a	 merged	

count	in	accordance	with	our	mandate	in	his	first	appeal.		

[¶7]		The	double	jeopardy	clauses	of	the	Maine	and	federal	constitutions	

prohibit,	 among	 other	 things, “multiple	 punishments	 for	 the	 same	 offense.”1

State	v.	Martinelli,	2017	ME	217,	¶	5,	175	A.3d	636 (quotation	marks	omitted).		

This	 prohibition can	 easily conflict with	 the	 ubiquitous	 and	 necessary	

prosecutorial	 practice	 of	 charging	 multiple,	 duplicative counts	 for	the	 same

 1		To	determine	whether	two	crimes	constitute	the	same	offense	for	double	jeopardy	purposes,	

we	employ	 the	 test	set	 forth	in	Blockburger v.	United	States, 284	U.S.	299,	304 (1932).	 See	State	

v. Martinelli,	2017	ME	217,	¶¶	5-10,	175	A.3d	636.
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criminal	 act;2 if the	 duplicative	 counts	 are	 not	 identified	 and	 the	 problem	

resolved before conviction	 and	 sentencing,	 the	 double	 jeopardy	 clause	 is

violated.	 See Ball	v.	United	States,	470	U.S. 856, 864-65 (1985)	 (“[A]	second	

conviction	[for	the	same	offense],	even	if	it	results	in	no	greater	sentence,	is	an	

impermissible	punishment.”);	State	v.	Allard,	557	A.2d	960,	962 (Me.	1989).

[¶8]		In	addressing	cases	where	the	double	jeopardy	issue	was	addressed

by	 the	 trial	 court,	 we	 have	 uniformly	 held	 that	 the	 trial	 court	 practice	 of	

consolidation	or merger	is	appropriate.	 See State	v.	Bellavance,	2013	ME	42,	

¶ 21,	 65	 A.3d	 1235; State	 v.	 Bagley,	 507	 A.2d	 560,	 562-63 (Me.	 1986).	 	Our	

holdings	 and	 dispositions	 in cases	where the	 double	 jeopardy	 violation	 was	

discovered	only	on	appeal,	however,	have been	less	consistent.		In	some	cases,	

we	have	directed	that	when	a	defendant	is	found	guilty	on	multiple	charges	for	

the	 same	 offense,	 “court	 action	 to	 consolidate	 the	 duplicative	 counts	 is	

appropriate”	to	avert	a	double	jeopardy	violation.		State	v.	Robinson,	1999	ME	

86,	¶¶ 12-15,	730 A.2d 684.	 	 In	 these	cases,	we	 have	either	consolidated	 the	

duplicative	verdicts	pursuant	to	our	own	authority	or,	as	we	did	in	Armstrong’s	

 2		The	State	may	decide	to	charge	and	pursue	multiple	charges	because,	as	we	have	noted,	“no	

analytical	 resource	 or	 process	 available	 to	 the	 State	 in	 advance	 of	 trial	 will	 permit	 the	 State	 to	

determine	 safely	 which	 of	 the	 two	 alternatives	will	 best	 fit	 [the]	 totality	 of	 evidence”	 ultimately	

adduced	at	trial.		State	v.	Hickey,	459	A.2d	573,	579-83 (Me.	1983);	see 17-A	M.R.S.	§	13-A (2020).
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first	appeal,	directed	the	trial	court	to	do	so.		See,	e.g.,	id.	¶ 15;	State	v.	Fournier,	

617	A.2d	998,	999-1001 (Me.	1992);	Allard,	557	A.2d	at	962-63.

[¶9]		In	 other	cases,	however,	we	have	 directed	 a	 trial	court	 to	 simply	

dismiss	 one	 of	 the	 duplicative	counts.		See,	e.g.,	State	v.	Paquin,	2020	ME	53,	

¶ 29,	--- A.3d	---;	State	v.	Murphy, 2015	ME	62,	¶	28,	124	A.3d	647 (remanding	

“to	the	trial	court	for	identification	of	the	single	count	of	which	[the	defendant]	

was	 convicted,	 dismissal	 of	 the	 [duplicative]	 counts,	 and	 entry	 of	 a	 final	

sentence	on	the	merged	charge”).		In	still	others,	we	have	vacated	a	duplicative	

conviction without	providing	any	guidance	 for	 the	disposal	of	 the	duplicative	

underlying	verdicts.		See	State	v.	Thornton,	540	A.2d	773,	776-77 (Me.	1988);	

State	v.	Poulin,	538	A.2d	278,	279 (Me.	1988).

[¶10]		As	this	case	demonstrates,	the	lack	of	attention	we	have	given	to	

the	question	of	whether	merger	or	dismissal	is	the	proper	remedy	for	a	double	

jeopardy	violation	resulting	from	multiple	punishments can	cause uncertainty	

regarding	 the	 distinct	 question of	 whether	 resentencing	 is	 required	 on	 the	

single	 remaining	 conviction.	 	 Although	 the	 difference	 between	 merging	 and	

dismissing	 counts will	 not	 necessarily be	 significant in	 any	 given case—

particularly	when	the	double	jeopardy violation	lingers	until	appeal,	which	may	

explain	 the	inconsistency	in	 our	pronouncements	 on	 the	issue—the	decision	
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can carry consequences. For	instance, a	double	 jeopardy	 violation	 resulting	

from	 multiple	 punishments	 may	 be	 identified	 after	 conviction	 but	 before	

appeal,	in	which	case	merger	will	allow	the	court	to	correct	an impermissible	

sentence,	see M.R.U.	Crim.	P.	35,	without	jeopardizing	the	duplicative	findings	

of	guilt should	an	appeal later vacate	one	of	those	findings.

[¶11]		We	take	this opportunity to	state	a	uniform	rule	of	practice: when

a	 trial	 results	 in	 multiple	 verdicts for	 the	 same	 offense,	 the	 appropriate	

procedure	to	prevent a double	jeopardy	violation	is	to	merge,	not	dismiss,	the	

duplicative	counts. If	a	double	jeopardy	violation	is	discovered	on	appeal,	we	

will	 vacate	 the	convictions	and	 remand	 for	merger	 of	 the	duplicative	counts.		

The	 result	 of	 this	 procedure	 will	 be	 multiple	 findings	 of	 guilt	 but	 only	 one	

conviction	and	one	sentence.

[¶12]	 	 Merger	 is	 the	 correct	 remedy	 because	 it	 prevents	 the	

constitutional	injury	while	preserving	multiple	verdicts.	A	mere	finding	of	guilt,	

by	itself,	 does	 not	 constitute	 punishment	 for	 double	 jeopardy	 purposes	 and,	

therefore,	 multiple	 verdicts	 for	 the	 same	 offense	 do	 not	 violate	 the	 double	

jeopardy	clause.		See,	e.g.,	United	States	v.	Josephberg,	459	F.3d	350,	355 (2d	Cir.	

2006).		If one of those	verdicts	is	later	vacated—whether	by	the	trial	court	or	

on	appeal—revival of an	improvidently dismissed,	rather	than	merged, count
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could raise independent	double	jeopardy	problems.	 See	United	States	v.	Rivera,	

872	 F.2d	 507,	508-09 (1st	 Cir.	 1989).	 	Consistent	 orders	 of	merger will	 also

avoid	obscuring the substantive	question	of	whether	resentencing	is	required	

when	 a	 duplicative	 conviction	 is	 vacated.	 	 This is	 a	 question	 of	 substantial	

justice	that depends on	 the	 particular	 circumstances	 of	 each	 case,	 including	

whether	 and	 to	 what	 extent	 the	 sentences	 imposed	 on	 the	 duplicative	

convictions were	 “interrelated.”	 	 State	 v.	 Conroy,	 2020	 ME	 22,	 ¶	 27,	

225 A.3d 1011.

[¶13]	 	 Here,	 despite	 our	 mandate,	 the	 duplicative	 robbery	 count was	

dismissed	rather	than	merged with	the	felony	murder	count.

3		Also,	the	court	

simply	reimposed its	previous	sentence	on	the	felony	murder conviction	rather	

than	resentencing	Armstrong on	a	new,	merged	conviction, as	required	by our	

mandate.		See	Armstrong,	2019	ME	117,	¶ 26,	212 A.3d	856.		It	is	axiomatic	that	

a	 trial	 court	 must	 “conform	 with	 the	 directions	 of	 the	 appellate	 court	 on	

remand.”		United	States	v.	Dávila-Félix,	763 F.3d	105,	109	 (1st	Cir.	2014);	see	

 3	 	 The	 court’s	 failure	 to	 follow	 our mandate	 to	 merge	 the	 duplicative	 count	 may	 have	 been	

influenced	by	the	parties.		According to	the	State’s	brief,	during	an	unrecorded	chambers	conference	

before	the	hearing,	Armstrong	objected	to	merger of	the	counts.		The	State	then	elected	to	dismiss	

the	robbery	count.		
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Meiners	v.	Aetna	Cas.	&	Sur.	Co.,	663 A.2d 6, 8 (Me.	1995);	Farnsworth	v.	Whiting,	

106	Me.	543,	546 (1910).

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[¶14]		In	order	to resentence	Armstrong	on	the	merged	conviction,	the	

trial	 court	was	 required	 to hold	 a	 new	 sentencing	 proceeding	 at	which	 both	

parties	 could	 be	 heard, see State	 v.	 Lacourse,	 2017	 ME	 75,	 ¶¶	 16-17,	

159 A.3d 847,	and	conduct	a	new	sentencing	analysis	pursuant	to	17-A	M.R.S.	

§ 1602 (2020).5 Its	failure	to	do	so deprived	Armstrong	of	a	substantial	right.

[¶15]	 	 We	 therefore have	 no	 choice	 but	 to	 vacate	 the	 judgment	 and	

remand	for	resentencing on	a	single	conviction	reflecting	the merged	counts.

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The	entry	is:

Judgment	 vacated.	 	 Remanded for	 further	

proceedings	consistent	with	this	opinion.

 4	 	 Although	 the	 State	 contends	 that	 Armstrong’s	 original	 sentences	 were	 not	 sufficiently	

interrelated	 to	 require	 resentencing,	 our	 decision	 and	 mandate	 in	 Armstrong’s	 first	 appeal	

demonstrate that	we	reached	a	contrary	conclusion.		See	State	v.	Armstrong,	2019 ME	117,	¶	26,	212	

A.3d	856.

5		Title	17-A	M.R.S.	§	1252-C (2018) was	in	effect	at	the	time	of	Armstrong’s	initial	sentencing	but	

has since	been	repealed	and	replaced.		See P.L.	2019,	ch.	113,	§§	A-1	to	A-2 (effective	May	16, 2019).		

The	new version,	which had	taken	effect	by	the	time	of	the	proceedings	on	remand,	is	codified	at	17-A	

M.R.S.	§	1602 (2020).		

6		Because	we	are	vacating	the	judgment,	Armstrong’s	pending	sentence	appeal is	moot.	 See State	

v.	Armstrong,	No.	SRP-19-432	(Me.	Sent.	Rev.	Panel	Dec. 13,	2019).		We	note that, because	the	trial	

court	 must	 sentence	 anew	 on	 remand—on	 a	 single,	 merged	 count,	 as	 we	 have	 just	 described—

Armstrong may	seek	leave	 to	appeal	 that	new	sentence,	which	he	will	never	before	have	had	 the	

opportunity	to	challenge.
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Rory	A.	McNamara,	Esq.	(orally),	Drake	Law,	LLC,	Berwick,	for	appellant	Aubrey	

Armstrong

Aaron	M.	Frey,	Attorney	General,	and	Leanne	Robbin,	Asst.	Atty.	Gen.	(orally),	

Office	of	the	Attorney	General,	Augusta,	for	appellee	State	of	Maine

Kennebec	County	Unified	Criminal	Docket	docket	number	CR-2016-172

FOR	CLERK	REFERENCE	ONLY