MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions Decision: 201 9 ME 92 Docket: Aro

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- 172 Argued: May	14,	2019 Decided: June 11 ,	2019 Panel: SAUFLEY,	C.J.,	and	ALEXANDER,	MEAD,	GORMAN,	JABAR,	HJELM,	and	HUMPHREY,	JJ.

STATE	OF	MAINE

v. FABIEN A. PELLETIER
MEAD,	J. [ ¶1] Fabien A. Pelletier	appeals	from	a	judgment	of	conviction entered by	the	trial	court	(Aroostook	County, Stewart,	J. )	on three	counts	of gross	sexual assault	 of	 a person	 under	 the	 age	 of	 fourteen	 (Class	 A),	 17

- A	 M.R.S. A. § 253 (1)(B)	( Supp.	2002 ), 1 and two	counts	of unlawful	sexual	contact	(Class	C),
17

- A	 M.R.S. A. § 255 (1)(C)	 ( Supp.	 200 2 ) , 2 following	jury	 verdicts	 of	 guilty on each	 offense

. Pelletier contends	 that	 the	 prosecutor	 committed	 misconduct during	 opening	 statements	 by telling	 the	 jur ors that	 they	 would	 hear

1 Title	17

- A	M.R.S.A.	§	253(1)(B) (Supp.	2002) has	since	been	amended. P.L.	2001,	ch.	383,	§	14 (effective	Jan. 31,	2003);	P.L.	2003,	ch.	711,	§ B

- 2	(effective	July	30,	2004)	(codified as	subsequently amended at	17

- A	M.R.S.	§	253(1)(B)	(2018) )

.

2 Title	17

- A	M.R.S.A.	§	255(1)(C) (Supp.	2 002) was	repealed	and	replaced	by 17

- A	M.R.S.	§ 255

- A. P.L.	 2001,	 ch. 383,	 §§ 22

- 23 (effective	 Jan.	 31,	 2003)	 (codified	 a s	 subsequently	 amended	 at 17

- A M.R.S.	§ 255

- A	( 2018 ) )

.2 inculpatory testimony	that	was	ultimately	never	elicited	at	trial. He	also	argues that	 the	 court	 erred by imposing	 a	 sentence	 within	 the	 enhanced	 range provided	by the	version	of	17

- A	M.R.S. A. § 1252 ( 2)(A)	that became	effective	on September 29, 1995. We	affirm	the	judgment	but	remand	for	resentencing.
I.		BACKGROUND [¶ 2 ] “ Viewed	 in	 the	 light	 most	 favorable	 to	 the	 State,	 the	 jury	 could rationally	have	found	the	following	facts	beyond	a	reasonable	doubt. ” State v. Olah ,	2018	ME	56,	¶	2,	184	A.3d	360. From 1993 to 1998,	two boys	who	are related	 to	Pelletier were	 occasional	 overnight	guests	in	his	home.		When	 the
younger boy was	 ten	 years	 old,	 Pelletier	 touched	 the	 boy’s	 penis ;	 additional sexual	assaults	occurred	during the	following	weeks,	months,	and	years

. [¶ 3 ] In	April	2016,	the	younger boy disclosed	th e abuse	to	a	counselor and	met	with	a	detective.		Following	the	younger boy’s disclosure, the older boy spoke	with	the	det ective	and	disclosed	that,	when	he	was	between	the	ages	of twelve	 and	 fourteen,	 Pelletier had show n him	 pornographic	 videos and committed	sexual	assaults	against	him. [¶ 4 ] Pelletier	was	charged	by	criminal	complaint	with	 three	counts	 of gross	 sexual	 assau lt	 (Class	 A),	 17

- A	 M.R.S. A. §	 253(1)(B),	 and	 two	 counts	 of unlawful	sexual	contact	(Class	C),	17

- A	M.R.S. A. §	255(1)(C).		An indictment	for3 the	same	charges	was	returned	on	September	19,	2016.		The	indictment	alleged that	 Pelletier	 had	 committed	 the	 crimes “[o]n	 or	 about	 between October 30, 1993	and	September	 18,	1998,	in	Wallagrass,	Aroostook	County, Maine.” 3 [¶ 5 ] T he	court conducted a	two
- day	jury	trial on	April	9	and	10,	2018

. In his	 opening	 statement,	 having	 summarized	 information	 that	 he	 expected	 to elicit	 as	 testimony	 from	 persons	 who	 would	 be	 witnesses	 for	 the	 State, the prosecutor told	the	jurors ,	“you’re	going	to	hear	this	testimony	and	you’re	going to	hear	that	once	it	came	out,	[the	younger boy ]	finally	told	his	mother;	and	his mother,	in	reacti on,	confronted	[Pelletier],	and	confronted	him	with	what	her son	and [the	older boy ] had	said	had	happened.		And	[Pelletier]’s	response	was, don’t	worry,	it	won’t	happen	again.” [¶ 6 ] The	State	called	both	of the	boys to	the	stand,	and	each	testified	to having	been sexually	abused and	assaulted by	Pelletier	when	he	was	younger than	age	fourteen.		After	the boys testified,	the State	rested without	the	younger boy’s mother	taking	the	stand.		The	jury	returned	guilty	verdicts	on	all	counts.

3 “[I]f	 the	 victim	 had	not	attained	 the	 age	 of	 16	 years	at	 the	 time	 of	 the	 crime,	 a	prosecution for

. . . unlawful	 sexual	 contact	 .	 .	 .	 or	 gross	 sexual	 assault	 .	 .	 .	 may	 be	 commenced	 at	 any	 time.” 17

- A M.R.S.	§ 8 (1)	(2018).4 [¶ 7 ] On	April	26 ,	2018,	the	court	held	a	sentencing	hearing.		The	court explained	that pursuant	to the	law	in	effect	at	the	time of Pelletier’s	crimes, the court	could	not	impose	a	sentence	in	excess	of twenty	years	unless	Pelletier’s offense s were among	the	most	heinous and	violent	crimes	committed	against	a person.		The	court	 further	stated	 that	heinousness	was	 the	court’s	 finding	 to make

. It	 then found	 tha t	Pelletier’s	crimes	were	heinous	and	 thus	were	“the types	 of	 crimes	 that	 when	 setting	 a	 base	 sentence	 would	 be	 in excess	 of
20 years.”		The	court	set	a	base	sentence in	the	range of	twenty	years	and	a	day to	twenty
- five	years	and	ultimately	sentenced	Pelletier	to	twenty

- four	years,	all but	sixteen	years	suspended,	with	probation for six	years. [¶ 8 ] Pelletier	timely	appealed	and	applied	for	review of his	sentence. See 15	M.R.S.	§§ 2115 , 2151 (2018) ;	M.R.	App.	P.	2B(b)(1). The	Sentence Review Panel granted	Pelletier leave to	appeal	from	his	sentence, see 15	M.R.S. § 215 2 (2018),	permitting	the discretionary sentence	appeal	to	be	considered	as	part of	 Pelletier’s direct appeal	 from	 the	 judgment	 of	 conviction, see M.R. App. P. 20(g),	 (h) ; s ee also State	 v.	 Pelletier ,	 No.	 SRP

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- 171 (Me. Sent. Rev. Panel	July	19,	2017).5 II.		DISCUSSION
A. Prosecut orial	Misconduct [¶ 9 ] Pelletier first argues	that	“[t]he	prosecutor	engaged	in	misconduct that	prejudiced	Pelletier	when	he	alluded	to	a	supposed	confession	of	Pelletier in	his	opening	statement	without	ever	presenting	any	testimony	to	support	that contention.”		Because	Pelletier	did	not	objec t	at	 trial	 to	what	he	contends	on appeal	was	prosecutorial	misconduct, we review	for	obvious	error. See State	v. Nobles ,	 2018	ME	 26,	 ¶	 21,	 179 A.3d	 910 ; State	 v.	 Rainey ,	 580 A.2d 682,	 686 (Me. 1990) ;	 M.R. U. Crim.	 P.	 52(b). “To	 demonstrate	 obvious	 error,	 the defendant	must	show	that	there	is	(1)	an	error,	(2)	that	is	plain,	and	(3)	that affects	substantial	 rights.		Even	if	 these	 three	conditions	are	met,	we	will	set aside	a	jury’s	verdict	only	if	we	conclude	that	(4)	the	er ror	seriously	affects	the fairness	 and	 integrity	 or	 public	 reputation	 of	 judicial	 proceedings.” State	 v. Lajoie ,	2017	ME	8,	¶	22,	154	A.3d	132	( citation	and quotation	marks	omitted). [¶1 0 ] “ It	is	improper	for	an	attorney	to	refer	to	any	testimony	or	to	assert any	facts	in	his	opening	statement	unless,	in	good	faith,	he	reasonably	believes that	supporting	evidence	will	be	offered	and	admitted	at	trial.” State	v.	Bernier , 486	A.2d	147,	149	(Me .	1985) ; see also Rainey ,	580 A.2d	at	686

- 87	(holding that there	was	no	error	in	a	prosecutor’s	reference	during	opening	statements	to	a6 fact	later	found	to	be	inadmissible	when	“the	prosecutor	had	a	reasonable	belief that	 the	 testimony	would	be	offered	an d	admitted	at	 trial” ). As	 the	Supreme Court	of	the	United	States	has	recognized, “[m]any	things	might	happen	during the	course	of	the	trial	which	would	prevent	the	presentation	of	all	the	evidence described	in	advance.” Frazier	v.	Cupp ,	394	U.S.	731,	736 (1969). [¶1 1 ] Here,	the	State indicated in	its	opening	statement that	th e	younger victim’s	 mother would	 testify; however,	 during	 the	 presentation	 of	 its

case - in

- chief , after	the	prosecutor	stated	that	the	mother	would	be	the	State’s next	witness,	 the	court	 took	a	 recess.		 Following	 the	 recess,	 the State	 rested. The	record	does	not	contain	an	explanation	as	to	why	the	State did	not call	the mother	as	a	witness as	it	had	planned

. See M.R. App.	P.	5(a).		Pelletier	contends that	the	State	“ made	a	tactical	decision	not	to	call	the	mother	as	a	witness	in	its

case - in

- chief,	 though	 she	 was	 the	 only	 witness	 who	 could	 establish

— theoretically

— what	 Pelletier	 told	 her.	 	 T he	 State’s	 choice	 to	 reference Pelletier’s	supposed	admission	in	its	opening,	therefore,	was	not	made	in	good faith.” However,	 b y	 not	 offering any record evidence	 to	 show	 that	 the	 State knew at	the	time the	prosecutor	made	the	statement	during	his	opening that	it would	not	call	the	mother	as	a	witness , Pelletier	has	failed	to	establish that	the State	lacked	a	good	faith belief that	the	mother	would	testify as it expected

. See7 State	v.	Gordon , 321	A.2d 352, 366 (Me. 1974)

. Consequently,	Pelletier	has	not demonstrated	obvious	error.
B. Sentencing [¶1 2 ] Next,	P elletier	challenges	the	process	used	by	the	sentencing	court, arguing	that	his	right	to	a	jury	trial	was	violated	when	the	court enhanced	the penalty	 for	 Pelletier’s crime	 beyond	 what	 was	 statutorily	 authorized	 after finding	 an	 additional	 fact	 not	 pleaded	 and	 proved	 to	 the	 jury. 4 The	 State concedes	and	joins	the	request	to	remand	the	matter	for	resentencing	at	which
time it	confirms	that	it	will	not	seek	a	sentence	b eyond twenty years. 5 The	entry	is: Sentence	vacated.		Judgment	affirmed	in	all	other respects.		Remanded	for	resentencing.

4 Pelletier	 also	 challenges	 hi s	 sentence	 by	 arguing	 that	 the	 court	 abused	 its	 discretion	 in considering	subjective	victim	impact	when	setting	his	basic	term	of	imprisonment. See 17

- A	M.R.S. § 1252

- C	(2018).		“ I n	determining	the	basic	term	the	court	is	not	to	consider	the	subjective	im pact	of the	crime	on	the	victim but	it may take into	account	objective	factors.” State	v.	Reese ,	2010	ME	30, ¶ 18,	991	A.2d	806.		Contrary	to	Pelletier’s	contention,	the	record	demonstrates	that	the	court	stated the	facts	that	it	was	considering	in	settin g	the	base	sentence	and	those	facts	appropriately	focused on	the	objective	nature	of	Pelletier’s	conduct.

5 At	 oral	 argument,	 the	 State further acknowledged	 that	 it	 had	 not	 pleaded any	 sentencing enhancement	factor s .8 Tina	Heather	Nadeau,	 Esq. (orally) ,	 The	 Law	 Office	 of	 Tina	Heather	 Nadeau, PLLC,	Portland,	for	appellant	Fabien	Pelletier
T od d R. Collins,	District	Attorney (orally),	and James	Mitchell,	Asst.	Dist.	Atty., Pro secutorial	District	No.	8,	Caribou,	for	appellee	State	of	Maine

Ar oostook	County	Un ified	Criminal	Docket	docket numbe r	CR

- 2016

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