MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions

Decision: 20 2 3 ME 18

Docket: Pen

- 21

- 350 Argued : June	6,	2022

Decided: February	28,	2023

Panel: STANFILL ,	C.J.,	and MEAD ,	JABAR ,	HORTON

, CONNORS

, and	LAWRENCE JJ.

STATE	OF	MAINE

v.

RAYSHAUN	MOORE

CONNORS ,	J.

[¶1] Rayshaun	Moore	appeals	from	a	judgment	of	conviction of murder

,

17

- A	 M.R.S.	 §	 201(1)(A)

- (B)	 (2022), entered	 by	 the	 trial	 court

(Penobscot County, Anderson,	J. )	after	a	jury	trial. Moore	argues	that the	trial

court	erred	by	denying	his	request to	examine the	grand	jury	transcript and by

considering his decision	to	go	to	trial	as	an	aggravating	factor	at	sentencing. 1

We	affirm	the	judgment	of	convictio n	but	vacate	the	sentence

.

1 Moore makes two additional arguments on appeal. First, he argues that the trial court erred by stating during jury selection that, because of the right to a jury trial, the court must “inconvenience people like you.” Th is argument is without merit, and we do not address it further. See Stat e v. Fleming

, 644 A.2d
1034, 1036

- 37 (Me. 1994)

. Second, Moore argues that the trial court abused its discretion by allowing the lead detective to identify Moore in surveillance videos. See M.R. Evid. 701. Moore’s argument raises the issue whether a witness who has substantial familiarity with complex video ev idence may offer lay opinion testimony to assist the trier of fact in interpreting that evidence

. See United States v. Begay

, 42 F.3d 486,

502

- 03 (9th Cir. 1994) ; United States v. Torralba

- Mendia

, 784 F.3d 652, 659

- 60 (9th Cir. 2015); United

States v. Muhammad

, 512 F. App’x 154, 160

- 61 & n.7 (3d Cir. 2013); United States v

. Zepeda

- Lopez

, 478

F.3d 1213, 1221

- 23 (10th Cir. 2007) . Whether the State laid an adequate foundation under that theory or under a more traditional approach is debatable. We need not address these questions, however, because2

I. BACKGROUND

[¶ 2 ] Viewing	the	evidence	in	the	light	most	favorable	to	the jury ’s	verdict,

the	record	supports	the following facts. See State	v.	Athayde ,	2022	ME	41,	¶ 2,

277 A.3d 387

.

[¶ 3 ] On the	evening	of	January	31,	2020, Moore, the	victim

, and	several

others	were “ hanging	out ” at	Moore’s	apartment	in	Bangor.		At	approximately

9:00	p.m.,	one	of	Moore’s	roommates	asked “everybody” to	leave	because	they

were	being	too	loud. The	victim	and	some	of	the others	left in	a	car

. Moore	and

one	of	the	others	left	on	foot	shortly	thereafter. About	an	hour	later, the	victim

and	 some	 of	 the	 others returned	 to Moore’s apartment ,	 looking	 for	 Moore

.

When	Moore’s other roommate	said	that Moore	was	not	there, “ t hey ” accused

Moore’s roommate	of	lying and tried	to	force their way	into	the	apartment. One

of Moore’s	roommate s contacted Moore through	Facebook	to	tell Moore what

had	happened and	to	tell	Moore	to	“take	care	of	it .” Moore	sent th at roommate

an	audio	Facebook	message in	return stating,	“I’m	going	to	end [ inaudible ] this

shit	in	my	own [ inaudible ] way	on	the	streets.”

whether or not the detective’s testimony was properly admitted , we conclude that the testimony was harmless because Moore admitted to being involved in the confrontation depicted in the video s ; the jury viewed the videos numerous times during the trial and twice during deliberations, suggesting that the jury decided for itself who was depicted in the videos ; and the record contains overwhelming evidence in

support of the jury’s verdict. See M.R.U. Crim. P. 52 (a) ; State v. White

, 2002 ME 122, ¶ 16, 804 A.2d

1146

.3

[¶ 4 ] Around 11:00	p.m.,	Moore, the	victim ,	and	several	others	met	in	the

parking	lot	of	the	Half	Acre	Nightclub.		A	physical	fight	broke	out	among	them,

during	 which the	 victim punched	 Moore	 in	 the	 face. After	 the	 fight,	 Moore

returned	to	his	apartment	where	he	told	one	of	his	roommates	that he	“might

catch	a	body”	and	“might	end	up	in	jail.”		Moore	appeared	to	be	angry,	and	his

roommate	tried	to	stop	him	from	leaving.

[¶ 5 ] Moore	returned	to	the	Half	Acre	Nightclub. Shortly after	midnight

,

on	 February	 1,	 2020, the	 victim also	 returned	 to	 the	 night	 club. Almost

immediately, Moore confronted the	victim ,	chased him around	the	parking lot

,

and	stabbed him seven	times

. The	victim later died.

[¶ 6 ] After the	stabbing,	Moore	went	to	a	friend’s	apartment. Moore ,	who

had	blood	all	over	his	hands	and	clothes

, stated	that	he	had	stabbed	his	friend

and	 t hat	 he	 had	 thrown the	 knife	in	 the	 river.	 	Moore	 removed	 some	 of	 his

clothes	and	put	them	in	a	trash	bag.

[¶ 7 ] After	 hearing	 about the	 stabbing,	 one	 of Moore’s	 roommates

checked	Moore’s	nightstand	to	see whether Moore’s knife	was	there and found

that	it	was	missing. When	Moore	returned	to	his own apartment,	he	told	one	of

his	 roommates	 that	 he	 “ had	 just caught	 a	 body”	 and	 that	 “the	 cops	 would4

probably	be	there	looking	for	him.” He also told	one	of	his	roommates	not	to

talk	to	the	police.

[¶ 8 ] Police recovered	Moore’s	wallet	and	keys,	which	he	had	dropped	in

the	parking	lot	where the	victim was stabbed

. Moore’s	friend	gave	police the

bag	 containing	 Moore’s	 bloody clothes

— which ,	 at	 some	 point, had	 been

covered	in	bleach

— and	told them	that	Moore	had	th rown	the	knife	in	the	river.

Because	the	knife	had	landed	on	a	frozen	section	of	the	river

, police	were	able

to	 recover	it. Moore’s	 roommate	identified	 the	 knife	as	belonging	 to	Moore.

The	victim’s and	Moore’s	DNA	were	found	on	the	knife ,	and the victim’s DNA

was	found	in	blood	samples	collected	from	Moore’s	jacket	and	left	shoe.

[¶ 9 ] The State	charged	Moore	by	complaint	with	intentional	or	knowing

murder, 17

- A	 M.R.S.	 §	 201(1)(A)

. Moore	 filed	 a	 motion	 in	 the	 trial	 court

requesting	 that	 the	 grand jury	 proceedings	 be	 recorded. The	 court	 granted

Moore’s	motion	to	record the	proceedings

.

[¶1 0 ] A	few	months	later ,	the	grand	jury	indicted	Moore	for	intentional

or	 knowing	 murder and depraved	 indifference	 murder

. S ee 17

- A M.R.S.

§ 201(1)(A)

- (B)

. Moore	filed	a	motion	requesting	that	a	transcript	of	the	grand

jury	proceedings	be	prepared	and	that the	transcript be	disclosed	to	the	parties5

under	 a	 protective	 order

. Moore	 argued	 that	 he	 needed	 the	 grand	 jury

transcript	in	order	“to	mo unt	a	complete	defense.” The	State	objected.

[¶1 1 ] The court	held	a	hearing	on	Moore’s	motion. Moore reiterated	his

need to	prepare	a	complete	defense	and argued	that	disclosure	of	the	transcript

would	put	him on “ a	level	playing	field ” with	the	State

. Moore	further	argued

that,	as	a	matter	of	policy, the	grand	jury	transcript	should	be	provided	to any

defendant	who has	been charged	with	a	serious	offense	and	intends	 to	go	 to

trial. To	preserve	the	secrecy	of	the	grand	jury,	Moore	suggested	that	the	court

redact the	 names	 of the grand	 jury witnesses	 and	 prohibit any further

dissemination	 of the	 transcript. Noting	 that	 the g overning rule	 requires	 a

showing	of	a	“particularized	need

, ” see M.R.U.	Crim.	P.	6(g), and	that	Moore’s

argument	applied	to	“most	any	case,”	t he	court	order ed the	preparation	of	the

grand	jury	transcript but den ied Moore’s request for	its disclos ure

. The	court

posited	that	if	a	witness	were	to	testify	at	trial	in	a	manner	inconsistent	with

his	 or	 her	 grand	 jury	 testimony, the	matter	 could	 be	 revisited	 to	 determine

whether that	inconsistency amount ed to a “ particularized	need. ”

[¶1 2 ] D uring a	pretrial	conference,	Moore	renewed	his	request	for	the

disclosure	 of	 the	 grand	 jury	 transcript

. Moore	 listed	 the	 names	 of	 several

potential witnesses	and	argued	that	he	needed	to	know	whether	they	had	made6

statements	to	the	grand	jury	that c ould	implic ate	their	Fifth	Amendment	rights.

The	 court

— and ,	 with	 hesitation, the	 State

— confirmed	 that	 none	 of	 the

witnesses	identified	by	Moore	testified	before	the	grand	jury.

[¶1 3 ] After a	 seven

- day	 trial	 at	 which	 Moore	 did	 not	 testify,	 t he jury

returned	a	verdict	of	guilty

. Several	months	later ,	the	court	held	a	sentencing

hearing. Applying	the	sentencing	statute, 17

- A	M.R.S.	§	1602	(2022) ,	the	court

set	the	basic	sentence	at	twenty

- fi ve	years’	imprisonment. In	determining	the

maximum	 term	 of	 imprisonment,	 the	 court	 identified	 three	 aggravating

circumstances,	including	Moore’s “ lack	of	remorse, ” Moore’s	criminal	record,

and	the	impact of	the	murder on	the	victim’s	family. Regarding	Moore’s	lack	of

remorse,	the	court	stated:

[T] here	are	three	potential	aggravating	circumstances	that	deserve
discussion.		One	is	the	lack	of	remorse.		Well,	I	have	wrestled	with this	concept	 for	 years	because	if	 you	decide	 that	 you	will	have	a

t rial	as	the	Constitution	says	you’re	entitled	to,	then	you	sort	of	run the	risk,	if	you	don’t	get	found	not	guilty,	of	being

— getting	a	greater sentence	because	you’re	not	showing	remorse	by	pleading	guilty.

And	I	think	that’s	kind	of	a	conundrum.

And	 I	 r ealize	 that	 in,	 probably,	 most	 or	 all	 courts,	 this	 is commonly	 done.	 	 If	 you

— if	 you	 get	 convicted	 after	 a	 trial,	 then you’re	 showing	 no	 remorse,	 and	 that’s	 a

— that’s	 a	 proper sentencing	consideration.		And	I’m	sure	our	law	court	would	agree.

I	think	there could	be	a	different	situation	if	the	defendant	testifies to	a	jury	and	is	found	guilty	anyway.		Then,	the

— it’s	implicit	that the	defendant	is	lying.		And	if	you’re	lying,	you’re	not	really	showing much	remorse	for	the	crime	you’ve	been	convicted	of.7

I	thi nk	it’s	a	little	different	if	you	have	a	trial,	you	don’t	testify, you’re	just	exerting	your	Constitutional	rights.		So	it	is	a	factor,	but I’m	going	to	be	conservative	in	my	application	of	it.

The	court	 found	 that	 there	were	no	mitigating	circumstances	a nd	imposed	a

thirty

- two

- year	sentence. Moore	timely	appealed.

II.		DISCUSSION

A. The trial	 court	 did	 not	 err	 or	 abuse	 its	 discretion	when	 it	 denied

Moore	access	to the	grand	jury	transcript.

[¶1 4 ] Moore argues	that	the	trial	court	erred	or	abused	its	discretion	by

denying	 his	 request	 to provide	 him	with	access	 to the	grand	jury	 transcript

,

relying	on M.R.U.	Crim.	P.	6 (g) ,	the	Maine	Constitution,	and	the	U nited	States

Constitution. We review	the	denial	of	a	request	for	the	release	of the grand	jury

transcript	for an abuse	of	discretion. See State v. Philbrick

, 551 A.2d 847, 851

(Me. 1988)

. We review alleged due process violations de novo. State v.

Williamson

, 2017 ME 108, ¶ 21, 163 A.3d 127

.

1. Moore failed to establish that he had a particularized need for

the grand jury transcript as required by M.R.U. Crim. P. 6(g).

[¶1 5 ] M.R.U.	Crim.	P. 6(g) provides that a court may furnish a copy of the

grand jury transcript to the defe ndant or the State upon a showing of

“particularized need.” W e ha ve consistently	affirmed	the	particularized	need

standard	and rejected attempts	to	deviate	from	the	requirement

. State	v.	Doody

,8

432	A.2d	 399,	 401

- 02 & n.3	 (Me. 1981) ; see, e.g.
, Philbrick ,	 551	A.2d	at	 851 ;

State v.	 Cote ,	 444	 A.2d	 34,	 36	 (Me.	 1982) ; State v. Mahaney

, 437 A.2d 613,

619

- 20 (Me. 1981) ; State	v. Cugliata ,	372	A.2d	1019,	102 4

- 2 6 (Me.	1977)

.

[¶1 6 ] Moore acknowledged before	the	trial	court that	his request	for	the

grand	jury transcript was based	on	his	position	that	defendants	should	have a

broad right	to access	transcripts	of	grand	jury proceedings

. H e makes no claim

on	appeal	that	he satisf ied the	particularized	need	requirement in	the	rule	as

interpreted	under our	case	law ;	instead,	he asks	that	we reject	our	“rather	old

decisions”	and	set	a	new	course of broad disclosure	of grand	jury	transcripts

.

We decline Moore’s invitation	 to interpret	Rule	6 (g) in	a	manner	 that all	but

eliminates	the	particularized	need	requirement.

2. Moore ’s claim that he was entitled to the grand jury transcript

under the Maine Constitution is unpreserved and undeveloped

.

[¶1 7 ] Moore	invokes	both	the	Maine	and	United	States	Constitutions	in

his	claim	that	his	right	to	due	process	was	violated	by	the	denial	of	hi s	request

to	 examine	 the	 grand	 jury	 transcript. Ordinarily

, under	 our	 “primacy

approach,” we address	 the	 state	 claim	 first, “ independently	 of	 the	 federal

constitutional	 claim

, ”	 and	 “proceed	 to	 review	 the	 application	 of	 the	 federal

Constitution	only	if	the	state	constitution	does	not	settle	the	issue.” Athayde

,9

2022	 ME	 41,	 ¶	 20,	 277	 A.3d	 387

. In	 that	 analysis,	 w e give weight	 to

interpretations of	 federal	 counterparts	 only if they	 are deemed to	 be

persuasive. Id. ; State	v.	Reeves ,	2022	ME	10,	¶	41,	268	A.3d	281.

[¶1 8 ]		Although we	have	not	previously	identified	the criteria that	we	will

review	in our analysis of	 our	 state	 constitution ,	 courts	in	 other	jurisdictions

have identified	the	criteria	 for	analyzing	their	state	constitutions

. 2 Generally

speaking,	 the	review	includes,	without	limitation,	an	examination	of	 the	 text,

legislative	 history, and general	 his torical	 context of	 the	 state	 constitutional

provision; relevant	common	law

, statutes ,	and	rules ; economic	and	sociological

considerations ; and	precedent	from	jurisdictions	with	similar	provisions	to	the

extent that	precedent	is deemed	persuasive.

[¶1 9 ]		Before	the	trial	court,	Moore	made	no	argument	based	on	the	state

constitution	 but	 merely	 referenced	 it

. Moore also has	 not	 engaged	 in	 a n

adequate analysis on	appeal

. 3 For	example,	he	does	not	explain	why	or	how	his

2 See

, e.g. , Sheesley v. State , 437 P.3d 830

, 836

- 37 (Wy o . 2019); People v. Tanner , 853 N.W.2d 653, 666

- 79 (Mich. 2014); Kerrigan v. Comm’r of Pub. Health

, 957 A.2d 407, 421 ( Conn. 2008); Kahn v. Griffin

, 701 N.W.2d 815, 829 (Minn. 2005); Jones v. State , 745 A.2d 856, 864

- 65 (Del. 1999); Commonwealth v.

Edmunds , 586 A.2d 887, 895 (Pa. 1991); State v. Gunwall , 720 P.2d 808, 812

- 13 (Wash. 1986); State v.

Jewet t , 500 A.2d 233 , 236

- 37 (Vt. 1985)

.

3 In State v. Bradberry , Justice Souter, concurring specially, explained why a party must adequately raise

state constitutional issues:

It is the need of every appellate court for the participation of the bar in the p rocess of trying to think sensibly and comprehensively about the questions that the judicial power has been established to answer. Nowhere is the need greater than in the field of State constitutional10

position	is	based	 on	 the	 text	 or	legislative	history	 of the	Maine	Constitution

.

Nor	 has	 he	 presented	 any	 historical	 context	 with	 respect	 to	 grand	 jury

proceedings	in	Maine under the	common	law,	statutes

, or	rules	to	support	his

position. 4 And,	finally,	Moore	has	not	stated	why	we	should	depart	from	our

precedent. See State v. Levesque ,	281	A.2d	570,	57 2 (Me.	1971) ( conclud ing that

a “[f]ailure to transcribe grand jury proceedings and provide the accused with

a transcript of grand jury testimony is not a denial of due process ”)

.

[¶ 20 ] Given	the	lack	of	preservation	of Moore’s argument	at	the	trial	level

and his cursory	development	of	the	argument	on	appeal,	we decline to engage

in	an	analysis	of	article	 I,	section s 6,	6

- A,	and	7

, of	 the	Maine	Constitution	 to

depart	from	our	holding in Levesque

. See United States v. Phillips

, 433 F.2d 1364,

law, where we are asked so often to confront questions that have already been decided under the National Constitution. If we place too much reliance on federal precedent we will render the State rules a mere row of shadows; if we place too little, we will render State practice incoherent. If we are going to steer between these extremes, we will have to insist on developed advocacy from those who bring the cases before us.

522 A.2d 1380, 1389 (N.H. 1986) (Souter, J., concurring); see also State v. Dellorfano , 517 A.2d 1163, 1166 (N.H. 1986); Saldana v. State , 846 P.2d 604, 622

- 24 (Wyo. 1993) (Golden, J. , concurring) (surveying the case law).

4 For example, an analysis of Maine case law before the ratification of the Fourteenth Amendment of the

United States Constitution in 1868, prohibiting states from depriving citizens of due process

, c ould be

i nstructive

. See, e.g.

, Low’s Case

, 4 Me. 439, 4 39

- 53 (1827) ; McLellan v. Richardson

, 13 Me. 82, 86 (1836) ; State v. Burlingham

, 15 Me. 104, 10 7

- 08 (1838); State v. Bailey

, 21 Me. 62, 6 6

- 68 (1842) ; State v. Knight

, 43 Me. 11, 12 8 (1857)

. Likewise

, an examination of Maine case law before the adoption of the

Federal Rules of Criminal Procedure in 1944 and the Maine Rules of Criminal Procedure in 1965 c ould

also be illuminating

. See, e.g.

, State v. Benner

, 64 Me. 267, 28 2

- 87 (1874) ; Hunter v. Randall

, 69 Me. 183,

189 (1879) ; State v. Wilkinson

, 76 Me. 317, 319

- 21 (1884) ; State v. Bowman

, 90 Me. 363, 364

- 68

, 38 A.

331 (1897) ; State v. Wombolt

, 126 Me. 351, 351

- 53

, 138 A. 527 (1927)

.11

1366 (8th Cir. 1970) (“Such	naked	castings	into	the	constitutional	sea	are	not

sufficient	to	command	judicial	consideration	and	discussion.” ).

3. Moore was not entitled to the grand jury transcript under the

United States Constitution.

[¶ 2 1] Moving	on	to Moore’s federal claim, we previously observed that

the United States Supreme Court has not dispensed with the particularized

need requirement and that its views concerning access to grand jury testimony

are based on its supervisory authority over lower fed eral courts rather than on

the federal constitution. Cugliata

, 372 A.2d at 1025 & n.2 (citing Dennis v.

United States

, 384 U.S. 855 (1966) ). As noted above, Moore does not claim that

he had a particularized need for the grand jury transcript here

. Instead, while

acknowledging	 that	 federal	 case	 law	 does	 not	 support	 his	 position

, Moore

broadly argues that his right to a fair trial outweighs any state interest in

maintaining grand jury secrecy and that	disclosure	of	the	transcript	should	be

the	 default rule. W e	 decline	 to	 reimagine	 the	 United	 States	 Constitution	 as

requiring	such	disclosure.12

B

. A	criminal	defendant’s decision	to	exercise his	constitutional	right to	a	jury	trial may	not	be	considered at	sentencing.

[¶ 22 ] Moore	argues	that ,	by	considering	his	decision	to stand trial	as	an

aggravating	factor	at	sentencing, the sentencing court	violated	his	right	to	a	jury

trial	under	the	U nited	States Constitution. 5 See U.S.	Const.	amend.	VI.

[¶ 23 ] “ Generally

, a	 defendant	 is	 not	 entitled	 to	 a	 direct	 review	 of	 a

sentence	and	must	seek	review	through	the	sentence	review	process.” State v.

Winslow

, 2007 ME 124, ¶ 27, 930 A.2d 1080 ; see 15	 M.R.S.	 §§	 2151

- 2157

(2022)

. “Nonetheless, w hen a defendant claims that the sentence is illegal and

when the illegality appears on the face of the record, we will review the

sentence on direct appeal. ” Winslow

, 2007 ME 124, ¶ 27, 9 30 A.2d 1080;

see State v. Discher

, 597 A.2d 1336, 1343 (Me. 1991)

. A defendant’s claim that

his sentence has been increased because he has exercised his right to a trial

goes to the legality of the sentence. State v. Farnham

, 479 A.2d 887, 889

(Me. 1984)

. We review de novo a claim that a constitutional violation has

occurred at sentencing

. State v. Cain

, 2006 ME 1, ¶ 7, 888 A.2d 276

.

5 Moore	also argues t hat ,	by punishing	him	based	on	a	perceived lack	of	remorse at	sentencing

, the	 trial	 court violated	 his	 right	 against	 self

- incrimination	 under	 the	 U nited	 States Constitution.

Because	 we conclude	 that	 the	 trial	 court	 erred	 on	 other	 grounds,	 we decline	 to	 address Moore’s

argument

.13

[¶ 24 ] “ It is black

- letter law that an accused cannot be punished by a more

severe sentence because he unsuccessfully exercised his constitutional right to

a trial.” Farnham ,	479	A.2d	at	891. Although	a	court	may deny leniency to	a

defendant who	is	convicted	after	a	 trial

, in	so	doing, it	may	not	consider	 the

defendant’s	exercise	of	his	right	to	trial

. In Winslow

, we observed,

It is to be expected that, on the whole, defendants who plead guilty

to criminal offenses receive more lenient sentences than

defendants who go to trial. Remorse and acceptance of responsibility are factors that courts look at in sentencing, and

defendants who plead guilty are more likely to demonstrate

sincere remorse than defendants who do not plead guilty. The trial

exposes a defendant to a much lengthier scrutiny by the sentencing

court than would take place with a plea of guilty. The	 trial may bring	 to	 light	 facts	 about	 the	 defendant	 and	 the	 crime	 that	 are unfavorable	 to	 the	 defendant	 and	 that	 may	 not	 come	 to	 the attention	 of	 the	 court	 in	 a	 plea	 proceeding. The length of time waiting for trial generally gives the State additional opportuni ty to

research the defendant’s criminal record. It is permissible for plea

agreements to involve a recommendation of a more lenient

sentence than the prosecutor would recommend after trial.

2007	ME	124,	¶	31,	930	A.2d	1080 ( c itations omitted)

.

[¶ 25 ] Thus, “ [t] here is a difference between increasing a defendant’s

sentence because the defendant chooses to exercise the right to trial

. . . and

considering a defendant’s conduct at trial and information learned at trial,

along with other factors, in determ ining the genuineness of a defendant’s claim14

of personal reform and contrition.” 6 State v. Grindle

, 2008 ME 38, ¶ 19,

942 A.2d 673 (quotation marks omitted )

. “[ A ] sentence	 based	in	 part	 on	 an

impermissible	consideration	is	not	made	proper simply because	the	sentencing

judge consider [ ed ] other permissible	factors as	well

, ” Commonwealth v. Bethea

,

379 A.2d 102, 106 (Pa. 1977)

, and	“[t] he	quantitative	role	 the	impermissible

factor	 played	 in	 such	 decision	 does	 not	 detract	 from	 the	 nature	 of	 the

constitutional	 violation

, ” Farnham

, 479 A.2d at 895 n.4 (Glassman, J.,

concurring in part and dissenting in part ). It follows that simply exercising the

right to trial can never be cited as an aggravating factor.

[¶ 26 ] When a sentencing court references a defendant’s demand for a

trial, we evaluate	the	reference	in	the	context	of the	entire	sentencing process

.

State v. Hayden

, 2014 ME 31, ¶ 24, 86 A.3d 1221

. “[I]t	is	sufficient	to	render	a

sentence	invalid	if	it	 reasonably	appears	 from	 the	 record	 that	 the trial court

relied	in	whole	or	in	part	upon	[the	defendant’s	election	to	stand	trial].” Bethea

,

379	A.2d	at	107. We	need	not	conclude that	the	sentencing	court in	fact	relied

upon	an improper consideration

. Id. at	106

- 07. “Any	doubt	as	to	whether	the

6 Our jurisprudence has not always been precise, however, in articulating this distinction. See, e.g. , State

v. Farnham

, 479 A.2d 887, 893 (Me. 1984) ( “There is a clear

- cut distinction between enhancing a sentence

because the convicted defendant insisted on a trial and considering that fact along with others in assessing how real is defendant’s claim of remorse and reform at the time of sentencing.” (emphasis added) ) ; cf. State

v. Grindle

, 2008 ME 38, ¶ 26, 942 A.2d 673 ( “[T]he court did not base its decision solely on Grindle’s exercising his right to testify and its belief that Grindle testified untruthfully. Instead, the court properly considered several aggravating factors . . . .” (emphasis added))

.15

defend ant	was	 punished	 for	 exercising	 his	 right	 to	 trial	must	 be	 resolved	in

favor	of	the	defendant.” Farnham

, 479	A.2d	at	894

- 95	( Glassman, J., concurring

in part and dissenting in part ).

[¶ 27 ]		Here, the	court concluded	that	most	or	all	courts would agree	that

“if	you	get	convicted	after	a	trial,	then	you’re	showing	no	remorse,	and

.	.	. that’s

a proper	sentencing	consideration.” Although the	sentencing	court then	stated

it	was	going	to	be conservative	in apply ing	this	principle, this is	of	no	import

because	any	increase	in	Moore’s	sentence for	that	reason is improper.		Because

a fair	 reading	 of these remarks suggest s that	 the sentencing cour t was

— or

m ight have	been

— influenced	by	Moore ’s decision to	stand	trial ,	we	must vacate

Moore’s sentence	and	remand	for	resentencing. 7

The	entry	is:

Sentence	vacated

. Remanded	for	resentencing. Judgment	affirmed	in	all	other	respects.

Rory	A.	McNamara,	Esq.,	Drake	Law	LLC,	York,	for	appellant	Rayshaun	Moore

Aaron	M.	Frey,	Attorney	General,	and	Donald	W.	Macomber,	Asst.	Atty.	Gen., Office	of	the	Attorney	General,	Augusta,	for	appellee	State	of	Main e

7 Because the trial ju stice retired during the pendency of this appeal, a different justice will necessarily

have to resentence Moore on remand.16

Penobscot	Unified	Criminal	Dock et	docket	number	CR

- 2020

- 480

F OR C LERK R EFERENCE	ONLY