MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions

Decision: 2019 ME	92

Docket: Aro-18-172

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.	 2002),

2 following	jury	 verdicts	 of	 guilty on	

each	 offense.	 	 Pelletier	 contends	 that	 the	 prosecutor	 committed	 misconduct	

during	 opening	 statements	 by telling	 the	 jurors 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2		Title	17-A	M.R.S.A.	§	255(1)(C)	(Supp.	2002)	was	repealed	and	replaced	by	17-A	M.R.S.	§ 255-A.		

P.L.	 2001,	 ch. 383,	 §§ 22-23 (effective	 Jan.	 31,	 2003)	 (codified	 as	 subsequently	 amended	 at	

17-A M.R.S.	§ 255-A	(2018)).
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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	the abuse	to	a	counselor	

and	met	with	a	detective.		Following	the	younger	boy’s disclosure,	the older	boy

spoke	with	the	detective	and	disclosed	that,	when	he	was	between	the	ages	of	

twelve	 and	 fourteen,	 Pelletier	 had	 shown him	 pornographic	 videos and	

committed	sexual	assaults	against	him.

[¶4]		Pelletier	was	charged	by	criminal	complaint	with	 three	counts	 of	

gross	 sexual	 assault	 (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	for	
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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]		The	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	reaction,	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).
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[¶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	

offenses 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	 that	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.	§ 2152

(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);	 see also State	 v.	 Pelletier,	 No.	 SRP-18-171	

(Me. Sent. Rev. Panel	July	19,	2017).
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II.		DISCUSSION

A. Prosecutorial	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	object	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	error	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).

[¶10]		“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	a	
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fact	later	found	to	be	inadmissible	when	“the	prosecutor	had	a	reasonable	belief	

that	 the	 testimony	would	be	offered	and	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).

[¶11]		Here,	the	State	indicated in	its	opening	statement that	the	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.	 	 The	 State’s	 choice	 to	 reference	

Pelletier’s	supposed	admission	in	its	opening,	therefore,	was	not	made	in	good	

faith.”	 	However,	 by	 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.		See
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State	v.	Gordon, 321	A.2d	352,	366 (Me. 1974).		Consequently,	Pelletier	has	not	

demonstrated	obvious	error.

B. Sentencing

[¶12]		Next,	Pelletier	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	beyond	twenty years.5

The	entry	is:

Sentence	vacated.		Judgment	affirmed	in	all	other	

respects.		Remanded	for	resentencing.

 4	 	 Pelletier	 also	 challenges	 his	 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).		“In	determining	the	basic	term	the	court	is	not	to	consider	the	subjective	impact	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	setting	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	factors.
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Tina	Heather	Nadeau,	 Esq. (orally),	 The	 Law	 Office	 of	 Tina	Heather	 Nadeau,	

PLLC,	Portland,	for	appellant	Fabien	Pelletier

Todd	R.	Collins,	District	Attorney (orally),	and	James	Mitchell,	Asst.	Dist.	Atty.,	

Prosecutorial	District	No.	8,	Caribou,	for	appellee	State	of	Maine

Aroostook	County	Unified	Criminal	Docket	docket	number	CR-2016-20258

FOR	CLERK	REFERENCE	ONLY