MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions Decision: 20 20 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

. B ecause we	conclude that the	court	erred , we agai n 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,	i n May	of	2018,	after	a	jury

- waived	trial,	the court	(Kennebec	County, Billings,	J. )	found	Armstrong guilty of felony	murder2 (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	robber y	count

. [¶ 3 ] Armstrong	appealed, arguing	that	the	multiple	convictions	violated the	double	jeopardy	clauses	of	the	Maine	and	federal	constitution s. Armstrong , 2019	ME	117,	¶ ¶	24

- 26 ,	212	A.3d	856. We	agreed	and,	in	July	of	2019, vacated the	 judgment	 a nd	 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.		T he	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 felon y	murder	count].”		The	court	also	stated	that	“it	is	not	a	resentencing,	it	is3 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 (20 20 );	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	 jeopard y	 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 prohibi t ,	 among	 other	 things, “multiple	 punishments	 for	 the	 same	 offense

. ” 1
Stat e	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)

. S ee State v. Martinelli ,	2017	ME	217,	¶¶	5

- 10,	175	A.3d	636

.4 criminal	 act ; 2 if the duplicative	 counts	 are	 not	 identifie d	 and the	 problem resolved before conviction	 and	 sentencing ,	 the	 double	 jeopardy	 clause is violated

. S ee 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	o r 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 h o l d ing s	 and	 dispositions in cases where the	 double	 jeopardy	 violation	 was discovered only on	appeal,	however,	ha ve 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.	Robi nson ,	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 T he 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]	 tota lity	 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).5 first	appeal,	directed	the	trial	court	to	do	so. S ee,	e.g. , id. ¶ 15; State	v.	Fourn ier , 617	A.2d	998,	999

- 100 1 (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). [¶1 0 ] As	this	case demons trates , t he lack	of	attenti on	we	have	given	to the	question	of	whether	merger	or	dismissal	is	the	proper remedy	for	a double jeopardy	violation	resulting	from multiple	punishment s 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	ma y explain	 the	inconsistency	in	 our pronouncements	 on	 the	issue

— the	decision6

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

. [¶1 1 ] We take	th is 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. [¶1 2 ] 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 o f a n	improvidently dismissed ,	rather	than	merged, count7

c ould 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 depend s on	 the	 particular	 circumstances	 of	 each	 case,	 including whether	 and	 to	 what	 extent	 the sentences imposed on	 the	 d uplicative
convictions were	 “interrelated.” State	 v.	 Conroy ,	 2020	 ME	 22,	 ¶	 27, 225 A.3d 1011

. [¶1 3 ] Here, despite	 our	 mandate, the	 duplicative	 robbery count was dismissed	rather	than merg ed with	the	felony	murder count

. 3 Also,	the	court simply reimpose d its	previous	sentence	on	th e	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.8 Meiners	v.	Aetna	Cas.	& Sur .	Co. ,	663 A.2d 6, 8 (Me.	1995) ; Farnsworth	v.	Whiti ng , 106	Me.	543, 546 (1910)

. 4 [¶1 4 ] 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 (20 20 ). 5 Its	failure	to	do	so deprived	Armstrong	of a	substantial	right

. [¶1 5 ] We	 therefore have	 no	 choice	 but	 to	 vacate	 the	 judgment	 and remand	for resentencing on	a	single	conviction	reflecting the merged counts

. 6 The	entry	is: Judgment vacated

. Remanded for	 further proceedings	consistent	with	this	opinion.

4 A lthough	 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

. S ee P.L.	2019,	ch.	113,	§§	A

- 1	to	A

- 2 (effective	May	1 6 , 2019). T he 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

. S ee 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.9 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 F OR C LERK R EFERENCE O NLY