MAINE	SUPREME	JUDICIAL	COURT Reporter	of Decisions Decision: 2017 ME 158 Docket: Ken

- 16

- 118,	SRP

- 16

- 119 Argued : May	11,	2017 Decided: July	18,	2017 Corrected: August	29 ,	2017 Panel: SAUFLEY,	C.J.,	and	ALEXANDER , MEAD, GORMAN ,	JABAR , HJELM, and HUMPHREY, JJ.

STATE	OF	MAINE

v. WADE	R.	HOOVER

ALEXANDER ,	J. [¶1] Wade	 R.	 Hoover	 appeals from sentence s	 totaling	 sixty	 years imposed by	the	trial	court	( Kennebec	County, Murphy,	J. ) following	his	guilty plea	 to	 four	counts	of	gross	sexual	assault	 (Class	A), 17

- A M.R.S.	 § 253(1)(C) (2016) , in cases from Somerset	 County	 and	 Kennebec	 County that were consolidated	for	sentencing

. [¶2 ] In	 this	 appeal,	 although	 the consecutive	 sentences imposed	 on Hoover	 totaled	 less	 than	 the	 maximum	 sentence	 that	 could	 have	 been imposed	 on	 any	 one	 of	 the	 four	 counts	 to which	 he	 ple ade d	 guilty, 1 Hoover

1 Title 17

- A	 M.R.S.	 §	 1252(4

- E)	 (2016) mandates a	 “basic	 term	 o f	 imprisonment”	 of	 “at	 least 20 years”	 and “a	 definite	 term	 of	imprisonment	 for	 any	 term	 of	 years”	 for	 a	 person	 convicted	 of gross	 sexual	 assault	 upon	 a	 person	 under	 twelve	 years	 of	 age as	 defined	 by 17

- A	 M.R.S.	 §	 253 (2016)

.2 contends	 that (1 )	 the	 court	 erred	 by	 imposing	 a	 sentence	 that	 is disproportionate	 to	 the	 offenses charged , and (2 )	 the	 court	 was	 required	 to
f

ind	specific	aggravating	circumstances before	imposing	what	Hoover	claims is	a	de	facto	life	sentence.		We	affirm	the	sentences. [¶ 3 ] This	is	Ho over’s	second	appeal	arising out	of the eve nts	that	led	to these	 charges. I n	 his	 first	 appeal , Hoover unsuccessfully challenged	 the maintenance	of	 t his	prosecution	 fo llowing	his	plea	and	sentencing	in	 federal
court on	 charges	 of sexual	 exploitation	 of	 a	 child and possession	 of child pornography that arose	from	his creating	still	and	video	images	of	the	s exual violence	 that	led	 to	 the State ’s gross	 sexual	 assault charges. State	 v.	Hoover ( Hoover	I ),	2015	ME	109,	121	A.3d	1281

. I.		CASE	HISTORY [¶4 ]	 	 In	 October	 2012 ,	 agents	 of the U.S. Department	 of H omeland Security and the Maine	State	Police	discovered	hundreds	of	images	and	videos of sexual	 assaults	 of	 a child	 on	 Hoover’s	 computer	 after	 receiving	 a	 tip	 and conducting	a	consented

- to	search. Id. ¶	3 .		Hoover	admitted	his	involvement and	 was	 immediately	 taken	 into	 custody. Id. The	 State	 charged	 him	 with possessio n	 of	 sexually	 explicit material (Class	 C), 17

- A	 M.R.S.	 §	 284(1)(C)3 (2016)

. Id. Hoover	remained	in	S tate	custody	until	December	2012,	when	he was	arrested	on	a	federal	warrant	and	taken	into	federal	custody. Id. ¶ ¶ 4

- 6. [¶5 ]	 	 On	 February	 5,	 2013,	 Hoover	 waived	 federal	 indictment	 and pleaded	 guilty	 to	 sexual	 exploitation	 of	 a	 child, 18	 U.S.C.S.	 §	 2251(a),	 (e) (LEXIS	 through	 Pub.	 L.	 No. 115

- 42 ),	 and	 possession	 of	 child pornography,
18 U.S.C.S.	 §	2252A(a)(5)(B) (LEXIS	 through	P ub.	L.	No. 115

- 42 ). Id. ¶	6.		 In July	 2013,	 the	 United	 States	 District	 Court	 for	 the	 District	 of	 Maine ( J. Woodcock,	J. ) held	a	sentencing	hearing. Id. ¶	8. In	the	federal	proceeding , as	in	 this	proceeding,	Hoover	contested	 the	prosecution ’ s	claims	 that he	had drugged	his	 victims	 to	 render	 them	unconscious	and	 that	he	had penetrated his	 victims	 anally. In the findings	 supporting	 sentencing , both	 the	 United
States	District Court and	 the	Superior	 Court	 found	 that	Hoover	 had	 drugged

an d	anally	penetrated	h is	victims. [¶6 ] At	 its July	 2013	 sentencing	 hearing,	 the federal c ourt	 made	 the following	 sentencing	guidelines	 calculations: “ As	 to	 one	 of the	 victims	 (Male Minor	Child ‘ A ’ ) ,	the	base	offense	level	was	32,	pursuant	to U.S.S.G.	§	2G2.1(a), to	which	level	 the	 following	were	added:	 four	levels	 because	 the	 victim	was younger	 than	 twelve	 years,	 pursuant to	U.S.S.G.	 §	 2G2.1(b)(1)(A) ;	 two	levels because [ Hoover ] su bjected	 the	 victim	 to	 anal	 sex,	 pursuant	 to U.S.S.G.4 § 2G2.1(b)(2)(A) ;	 four	levels	 because [ Hoover ] produced	 videos	in	which	 he anally	penetrated	the	victim	with	his	penis,	pursuant	to	U.S.S.G.	§	2G2.1(b)(4); and	 two	levels	because	 the	minor	vict im	spent	 the	night	at [ Hoover ’ s ] house and	 elsewhere	 and	 was	 in	 his	 care	 and	 cu stody,	 pursuant	 to U.S.S.G. § 2G2.1(b)(5)

. The	 resulting adjusted	 offense	 level	 was	 44. ” See Hoover	 v. United	States ,	2016 U.S. Dist.	LEXIS	176564, at *5

- 6 (Dec.	21,	2016) , accepted , 2017 U.S. Dist.	LEXIS	6554 (Jan.	18,	2017)

. 2 [¶7 ] “ As	 to	 the other	 victim	 (Male	 Minor	 Child ‘ B ’ ),	 the	 calculations were	 the	 same,	 but	 the	 four

- level	 enhancement	 for	 the	 victim,	 pursuant	 to U.S.S.G.	 § 2G2.1(b)(4) , was based	 on	 the Court’s finding	 that [ Hoover ] penetrate d	 the	 victim	 anally	 with [ his ] penis	 and	 fingers,	 and	 with	 two unidentified	objects. The	resulting	adjusted	offense	level	was	44. ” Id. [¶ 8 ] In	setting	the	length	of	Hoover’s	sentence,	t he federal court	noted that	 the	 applicable	 guideline	 range	 for Hoover’s	 conduct was	 life imprisonment,	 but	 the	 statutorily	 authorized	maximum was	 480	months,	 or forty	years. After considering	Hoover’s	sexual	assaults	of	the	young	victims	as an	aggravating	factor,	th e	court	sentenced	Hoover	to	360 months	in	prison	on

2 The 2016 recommended	decision	by	the	magistrate	j udge	( Nivison , Mag .) on	Hoover’s	motion to	vacate,	set	aside , or	correct his	sentence s , pu rsuant	to	28	U.S.C.	§	2255	(2012 ), s ummarized	the 2013	 sentencing	 proceeding and	 was	 accepted and	 affirmed by	 the	 sentencing	 judge ( J. Woodcock, J .).5 the exploitation c harge and	120	months	in	pri son	on	the	possession	charge ,	to be	served	consecutively,	as	well	as	a	lifetime	of	supervised	release. Hoover	I , 2015	ME	 109, ¶	 8 ,	 121	 A.3d	 1281 .	 	Hoover	is	 expected	 to	 be	 released from federal	custody	in 2 047,	at	the	age	of	si xty
- nine. [¶9 ]		After his February	2013 guilty pleas to	the	federal	charges,	Hoover was	 indicted by	 the	 State	 on thirteen	 counts	 of	 gross	 sexual	 assault upon	 a child	under	the	age	of	twelve ,	17

- A	M.R.S.	§	253 (1)(C), arising	from the	sexual violence depicted	 in	 the	 images	 and	 videos	 discovered	 on	 his	 computer.
Hoover	I ,	2015 ME	109,	¶	7,	121	A.3d	1281

. T he	Somerset	County	grand	j ury indicted	Hoover	on	one count	of	gross	sexual	assault. T he	Kennebec	County grand	 j ury	 indicted	 him	 on	 twelve addition al counts	 of	 gross	 sexual	 ass ault involving	a	different	victim

. [¶1 0 ] In	 February	 2014,	 Hoover	 moved	 to	 dismiss	 the	 State’s indic tments,	 arguing	 that	 the	 State ’s prosecution	 subjected	 him	 to	 double jeopardy	in	violation	of	both	the	federal	and	state	constitutions. Id. ¶	9.		The motion	was	denied,	a nd	Hoover	appealed

. Id. We affi rmed	the	motion	court’s order concluding	that	there	was	no	e vidence	supporting	the B artkus exception to	the	dual	sovereignty	doctrine , 3 and that double	jeopardy	principles	did	not

3 See Bartkus	 v.	 Illinois ,	 359	 U.S. 121,	 123

- 24	 (1959) ; see	 also United	 States	 v.	 Guzman , 85 F.3d 823,	826

- 27	(1st	Cir.	1996) ; State	v.	Mitchell ,	1998	ME	128,	¶	6,	712	A.2d	1033

.6 bar	 the	 State’s	 prosecution,	 regardless	 of	 any	 potential	 for	 duplicative punishment. 4 Id. ¶	19. I n	a	 footnote,	we stated	 that	 “if	Hoover	is	eventually convicted	of	the	gross	sexual	assault	charges,	the	trial	court	could	consider,	as a	basis	for	a	downward	departure	in	the	resulting	sentence,	that	the	sexually assaultive	 conduct	 underlying	 the	 offenses	 has	 previously	 been	 taken	 into account	in	sentencing for	a	different	offense.” Id. ¶ 15	n.2. [¶1 1 ] After	 withdrawing	 several	 pending	 motions,	 o n November 30, 2015,	 Hoover	 ple ade d	 guilty	 to the	 one count	 of	 gross	 sexual assault	in	the	Somerset County case	and	to	counts	one,	six,	and	twelve	in	the Kennebec County case. The	court	( Murphy,	J. )	conducted	an	inquiry	pursuant to	 M.R.U.	 Crim.	 P.	 11(b). The	 State	 provided	 the	 court with	 the	 following factual	bases for	the	charges

. See M.R.U.	Crim.	P.	11(b)(3),	(e). [¶1 2 ]	 	 On	 October	 3,	 2012,	 federal	 and	 state	 l aw	 enforcement	 agents conducting	a	child	pornography	investigation	discovered	hundreds	of	images and	 videos	 of sexual	 assaults	 of	 a child	 on	 Ho over’s	 computer	 after a consented

- to	 search. Some	 of	 the	 images	 and	 videos	 seized	 from	 Ho over appeared	 to	be	 “ho memade.” Hoover	admitted	 that	he	made	 the	 videos	and

4 Hoover	 filed	 a	 writ	 of	 certiorari	 to	 the	 United	 States	 Supreme	 Court	 seeking	 review	 of our decision,	 but	 his petition	 w as	 denied	 on	 January	 19,	 2016. See State	 v.	 Hoover ,	 2015	 ME	 109, 121 A.3d 1281, cert.	denied ,	136	S.	Ct.	905	(2016)

.7 that	 he	 “messed	 with”	 or	 “fooled	 around	 with”	 the	 victims,	 but	 he	 denied drugging	or	penetrating	them. The	victims	appeared	to	be	unconscious	in	the videos,	and	they	have	no memory	of	the	sexual	assaul ts. The videos	show ed sexual	 acts committed	 by	Hoover	 against the	 victims	 and	 appear ed to	 show penetration. Hoover	 was	 the	 Somerset County victim’s	 karate	 teacher. In April	 2012,	 he	 took	 the	 Somerset County victim,	 then	 eleven	 years old , to	 a cabin where	 he	 sexually	 assaulted the	 boy	 as	 shown	 in	 the	 video. Hoover assaulted	the	Kennebec County victim	in	December	2008	when	the	victim	was ten	years	old	and again in	July 2009	and	February	2010	when	the	victim	was eleven	years	old. 5 [¶1 3 ]	 	The	 court accepted	 the	 open	 plea	and	 conti nued	 the	matter	 for sentencing. Before	the	sentencing	hearing,	Hoover	filed	a	motion	objecting	to the	 State’s	 request	 that	 the	 court	 review	 certain	 images	 and	 videos	 of	 the assaults	 that	 w ere	 contained	 on	 a	 thumb	 drive. Th e	 court	 denied	 Hoover’s
motion	a nd	viewed	the	images	in	camera. The	parties	disagreed	on	whether the	images	and	videos	contained	eviden ce	of	drugging	and	penetration. The
court stated that	it	would	make factual	finding s on	the se issue s .

5 The	State	did	not	 further	describe	Hoover’s	relationship	with the	Kennebec County victim	at the	Rule 11	hearing. In	its	sentencing	memorandum,	the	State	explained	that	Hoover	had	dated	the Kennebec County victim’s	mother	 before	enlisting	in	 the	military	in	 2004

. When	Hoover	left	 the service	in	November	2008,	he	returned	to	the	boy’s	life,	i ncluding	as	his	karate	tea cher.8 [¶1 4 ]	 	 On	 Februar y	 24,	 2016,	 the	 court	 held a	 contested	 sentencing hearing. B efore	 the	 hearing,	 the	 State	 asked	 the	 court to	 engage	 in	 a

“ Shortsleeves

- type ” analysis and	 find	 aggravating circumstances given	 that Hoover	could	be	sentenced	 to	any term	of	 years	amounting	 to a	de facto	life

sentence. See State	 v.	 Shortsleeves ,	 580	 A.2d	 145 ,	 149

- 50 (Me. 1990)

. The

court noted	 that for	 the	 charges	 in	 these	 cases the	 Legislature	 has	 not authorized	life	 sentences,	 only	 de	 facto	life	 sentences,	 and declined	 to	 apply Shortsleeves stating that	the	statute	and	case	law	do	not	limit	what	cons titutes an	aggravating	factor. [¶1 5 ]		Both	Hoover	and	 the	State	submitted	sent encing	memoranda	 to the	 court. H oover	 also	 provided twenty
- four	 exhibits ,	 including numerous sentencing	 orders	 and	 transcripts from	 what	 Hoover	 alleged	 were	 other, similar	 sentencings

. The	 State	 recommended	 twenty

- five years’ imprisonment	in	 the	Somerset County case,	 forty years’	imprisonment	in	 the Kennebec County case,	 to	 be	 served	 co nsecutively,	 a nd	 lifetime	 supervised release. Hoover	requested	an	overall	period	of	incarceration of	twenty

- five	to thirty	years. Hoover	agreed	that	lifetime	supervised	release	was	appropriate

. [¶1 6 ]		After	considering	the	images	and	videos	on	the	thumb drive and the	 attached	 forensic	 report,	 the	 court	 found	 that the	 victims had been9 drugged	and	that	there	was penetration. The	court	set	the	basic	sentence	for the	 Somerset County case	 at	 twenty	 years and	 the	 basic	 sentence	 in	 the Kennebec County case	at	thirty	yea rs	based	on	multiple	incidents. The	court considered	the	drugging	and	penetration	in	determining	the	basic	sentence	as different	 ways	 that	 the	 offenses	 could	 be	 committed	 and	 not	 as	 aggravating factors	 in	 determining	 the	 ma ximum	 sentenc e. For	 aggravating	 factors,	 the court	 found	 that	 the	 victim	 impact	 on	 the	 boys	 and	 their	 families	 was “profound,”	 Hoover	 breached	 their	 relationships	 of	 trust,	 and	 he “memorialized	 these	incidents	by	photographing	 these	children	in	ways	 tha t also	 violated their	 dignity.” For	 mitigating	 factors,	 the	 court	 found	 that Hoover	had	no	prior	criminal	history,	he	was	honorably	discharged	 from	the military,	 and	 he	 ple ade d	 guilty , sparing	 the	 victims	 and	 their	 families	 the rigors	of	tr ial. [¶1 7 ] The	court	conclude d	that	the	aggravating	factors	outweighed	the mitigating	 factors,	 primarily	 because	 of	 the	 victim	 impact,	 and	 determined that	 the	 maximum	 sentences	 would	 be	 twenty

- five	 years for	 the	 Somerset County	 case and	 t hirty

- five	 years	 for	 the	 Kennebec	 County	 cases

. B ecause there	were	two	different victims	and	the	assaults	took	place	at	different	times and	 in	 different	 places,	 the	 court	 ordered	 that	 the	 sen tences	 be	 served10 consecutively. The	 court ordered	 that	 the	 state	 sentence	 run	 concurrently with	 the	 federa l	 se ntence	 based	 on	 the “downward	 deviation”	 suggestion	in
Hoover	 I

. See 2015 ME	109,	¶	15	n.2 ,	121 A.3d	1281. T he	court	determined that	lifetime	supervision	was	appropriate	given	the	number	and	nature	of	the violations	 and	 the	 public	 safety	 risk. A fter considering	 the	 “principles	 of

s entencing,”	the	court	found that	“a	lesser	sentence	than	the	one that	is being imposed	 in	 these	 matters	 would	 diminish	 the	 gravity	 of	 what	 occurred	 to these	 boys	 and	 also	 would	 violate	 the	 principle	 that	 this	 Court	 .	 .	 .	 mus t consider	public	safety	in	imposing	senten ces	for	this	sort	of	conduct.” [¶1 8 ]	 	 Hoover	 filed	 this	 direct	 appeal challenging the	 legality	 of his

sentences

. See 15	M.R.S.	§	2115	(2016) ;	M.R. App.	P.	2. Hoover	also	 filed	an appl ication	for	leave	to	appeal from	his	sentence,	challe n ging the	propriety	of his	 sentence s . See 15 M.R.S.	 § 2151	 (2016) ;	 M.R.	 App.	 P.	 20. The	 Sentence Review	 Panel	 granted	 Hoover	 leave	 to	 appeal on the	 issue s of	 whether	 the sentencing	 court	 “sufficiently	 outline[d]	 the	 justificatio n	 for	 such	 a	 lengthy sentence”	 and whether	 we “should	 impose	 specific	 requirements	 on	 a	 trial court	as	a	precondition	 for	impo sing	a	de	 facto	life	sentence.” The	Sentence11 Review	 Panel,	 however,	 denied	 leave to	 appeal as	 to	 the	 remaining	 issues raised	in	h is	application. 6
II.		LEGAL	ANALYSIS
A. Specific	Requirements	for a De	Facto	Life	Sentence [¶1 9 ] Citing Shortsleeves ,	580	A.2d at 149

- 50 ,	Hoover	contends	that	the sentencing	 court	 was	 required	 to	 f ind	 specific	 aggravating	 circumstances before	 imposing what	 he	 asserts	 was a	 de	 facto	 life	 sentence	 for the gross sexual	assault s . Because ,	he	contends, “the	 [L]egislature	provided	 very	little in	the	way	of	gu idance,”	Hoover	urges	us	to articulate	factors	to	be	considered by	 sentencing	 courts	 when	 imposing	 a	 term	 of	 years	 that	 amounts	 to	 a	 de fact o	life	sentence

. [¶ 20 ] Shortsleeves involved	 an	 appeal	 of	 a	 life	 sentence	 for	 murder

. Id. at	 145. In Shortsleeves ,	 we	 indicated	 that	 our purpose for addressing sentencing	was	to	“provide	the	sentencing	court	with	broad	guidelines	for	the circumstances	in	which	the	harshest	penalty,	a	life	sentence,	may	be	imposed.”

6 Specifically,	 Hoover	 was	 denied	 leave	 to	 appeal	 whether	 (1)	 the	 trial	 court	 abused	 its discretion	in	imposing	a	sixty

- year	sentence	on	four	counts	of	gross	sexual	assault	as	compared	to sentences	 imposed	 in	 similar	 cases,	 (2)	 the	 sentence	 was	 exce ssive	 based	 on	 Hoover’s	 lack	 of criminal	history,	personal	circumstances,	and	 “excellent	prospects	 for	rehabilitation,”	 (3)	 the	 trial court	 adequately	 articulate d its	 basis	 for	 the	 sentence	 and	 analyze d the	 crimes	independently	 of one	another	in	accordance with Hewey ,	(4)	there	was sufficient	evidence	to	support	the	aggravating factors	 found	 by	 the	 c ourt,	 and	 (5)	 the	 trial	 court properly admitted video evidence	 at the sentencing hearing

.12 Id. at 149.		The	opinion	distinguished	a	life	sentence from	a	“term	of	yea rs.” Id. Adopting	the	holding	of State	v.	Anderson , Nos. AD

- 78

- 37,	78

- 40 (Me.	App.	Div. June	 30, 1980) , 7 the Shortsleeves opinion stated:	 “[T]he	 imposition	 of	 a	 life sentence	 has	 such	 a	 serious	 impact	 on	 the	 offender	 so	 different	 from	 the impact	of	a sentence	 for	a	term	of	years	that	a	life	sentence	is	never	justified unless	 the	 murder	 is	 accompanied	 by	 aggravating	 circumstances.” 580 A.2d a t 149

. After	listing	seven aggravating	circumstances , we	had	held	in Shortsleeves that	 a	life	 se ntence	 for	 a particular	 crime “ may	 not	 be	imposed unless	 there	 are	 aggravating	 circumstances	 of	 the	 type ” we	 enumerated. Id. at 150. [¶ 2 1] In State	v.	Reese ,	2010 ME	30, ¶¶ 26

- 27, 991 A.2d 806 ,	an	appeal of a	sentence of a	term	of	years,	we	stated:	“In Shortsleeves, we	reasoned	that the	 additional	 aggravating	 factors	 must	 be	 demonstrated	 because	 of	 the uniquely	 serious	impact	 of	a	life	 sentence	as	 compared	with	a	 sentence	 of	a term	of	years.

.	.	. We	decline	to	require	any	showing	of	particular	aggravating factors	wh en	 the	sentence,	on	a	Class	A	crime,	is	 to	a	 term	of	 thirty	years	or

7 The	u nderlying	murder	convictions were affirmed in State	v. Anderson , 409	A.2d	1290 ,	1307 (Me. 1979 )

.13 less. [ 8 ] The	 court	need	 only	 determine, for	a	 relatively	long	 sentence	within that	range,	that	the	crime	and	the	manner	in	w hich	it	was	committed	place	it

‘ at	the	most	serious	end	of	the spectrum	for	purposes	of	a	basic se ntence	.	.	.	.’” [¶22 ] Shortsleeves ,	as	applied	in Reese , require s a	finding	of	aggravating circumstances	only	when (1) the	sentence	at	issue	is	imposed	upon	convic tion for	 a	 single	 crime	 and	 (2) the	 sentence	 imposed	 is	 a	 life	 sentence,	 not	 a sentence	for	a	term	of	years.		Hoover’s	sentence met	neither	of	these	criteria. The	 sixty

- year	 total	 sentence resulted	 from consecutive sentences for	 four crimes, 9 not	 a	 single	 crime,	 and	 the	 sentences	 imposed	 were	 for	 terms	 of years,	 not	 the	 life	 sentence	 for	 which Shortsleeves directs	 that	 aggravating circumstances	must	 be	 found.	 	 The	 trial	 court	 correctly	 determined	 that	 the Shortsleeves analysis	was	not	required in Hoover’s	sentencing.
B

. Constitutionally	Disproportionate	Sentence 10 [¶23 ]	 	 Hoover	 argues	 that	 the	 trial	 court	 imposed	 an	 illegal	 sentence pursuant	to	Me.	Const.	art.	I,	§	9,	because	his	aggregate	sentence	of	sixty	years’

8 The	 maximum	 sentence	 that could	 have	 been	 imposed	 on	 the	 defendant	 in State	 v.	 Reese , 2010 ME	30, ¶	24, 991 A.2d 806 ,	for	a	Class	A	crime	was	a	“definite	period	not	to	exceed	30	years.” See 17

- A	M.R.S. § 1252(2)(A)	(2016).

9 T he	 court	 sentenced Hoover	 to	 twenty

- five	 years’	 imprisonment on	 the	 one	 count	 in	 the Somerset	 County case; and	 to	 thirty

- five	 years’	imprisonment	 on	 each	 of	 the	 three	 counts	in	 the Kennebec	 County	 case ,	 which	 are	 to	 be	 served	 concur rently.	 	 The	 sentence	 from	 the	 Ken nebec County	 case	is	 to	 be	 served	 consecutive ly to	 the	 Somerset	 County	 sentence for	 a	 sixty

- year	 total sentence

.14 imprisonment is	disproportionate	to	his offenses. The	sentence,	he	contends, “carries	 an	 inference	 of	 disproportionality	 due	 to	 the	 extreme	 length	 of	 the sentence,	and	 failure	of	the	trial	court	to	balance	the	legislatively	established
purposes	o f	sentencing	under	17

- A	M.R.S.[] § 1151

. ” [¶24 ] Article	 I, section 9	 of	 the	 Maine	 Constitution requires that	 “ all penalties	 and	 punishments	 shall be	 proportioned	 to	 the	 offense,” and	 bars infliction	 of	 “ cruel	 [ ]or	 unusual	 punishments.” See State	 v.	 Freeman , 2014 ME 35,	¶	12, 87 A.3d	719

. [¶ 25 ] In	 evaluating Hoover’s constitutional	 proportionality	 claim, neither	 the	general	propriety	of	 the	sentence,	evaluated	according	 to	 the	so

called Hewey analysis, 11 nor	 Hoover ’ s	 lack	 of	 a	 serious	 criminal	 record	 or other	 individual factors,	 have	 any	 significance	 in	 determining	 whether	 his punishment	is disproportionate	and	thus unconstitutional. See State	v.	Ward , 2011	 ME	 74,	 ¶ 15,	 21	 A.3d	 1033 ; State	 v.	 Gilman , 2010	 ME	 35,	 ¶	 21,
993 A.2d 14 ( holding	 that article	 I,	section	9	of	 the Maine	Constitution “ does not	require	consideration	of	the	individual circumstances	of	each	offender” ).

10 Other	 than	 the	 proportionality	issue, Hoover	 does	 not	argue , and	 the	 record	 here	 does	 not indicate , that	 t he	 sentence s	 imposed	 were illegal	 or	 imposed	 in	 an	 illegal	 manner. See S tate	 v. Schmidt ,	2010	ME	8,	¶	6,	988	A.2d	975 .		The	court	had	jurisdiction	to	sentence	Hoover, see 15	M.R.S. §	 1	 (2016) , and the	 period	 of	 incarceration	 for	 each	 charge , and	 in	 total , was	 within	 the	 range authorized	by	law, see 17

- A	M.R.S.	§ § 1252(4

- E) ,	1256(2)(A) (2016)

.
11 State	v.	Hewey ,	622	A.2d	1151,	1154

- 55	(Me.	1993) ; 17

- A	M.R.S. § 1252

- C	(2016)

.15 [¶26 ] The	 test	 we	 have	 applied	 to	 determine	 whether	 a	 particular punishment	violates article	I,	section	9 is	(1)	whether	the	sentence	imposed is

“ greatly	disproportionate ” to	the	crime,	and	(2)	wheth er	the	sentence “ offends prevailing	notions	of	decency,	whether	it	shocks	the	conscience	of	the	public, or	our	own	respective	or	collective	sense	of	fairness,	or	whether	it	is	inhuman or	 barbarous. ” Ward ,	 2011	 ME	 74,	 ¶	 18 ,	 21	 A.3d	 1033 (quoting Gilman , 2010 ME	35,	¶	23,	993	A.2d	14 )

. In	applying	that	test, we	recognize that	“ only the	most	extr eme	punishment	decided	upon	by	the	Legislature as	appropriate for	an	offense	could	so	offend	or	shock	the	collective	conscience	of	the	people of	Maine	as	 t o	be	unconstitutionally	disproportionate,	or	cruel	and	unusual. ” Id. (alteration omitted ). [¶ 27 ] Here	 the	all egedly	disproportionate	punishment arise s from	 the aggregation	 of	 consecutive sentences,	 neither	 of	 which	 is	 individually disproportionate.	 	 The	 sentence for	 the	 Somerset	 County	 case, twenty
- five
years, was twenty
- five	 percent higher	 than	 the twenty
- year minimum basic sentence	 set	 by law. See 17

- A	 M.R.S.	 §	 1252(4

- E). The sentence	 for	 th e Kennebec	 County	 cases,	 thirty

- five years,	 was	 seventy
- five	 percent higher than	 the	 twenty

- year	 basic	 sentence,	 but	 far	 below	 the “ any	 term	 of	 years ” sentence	authorized	by	law. Id.16 [¶28 ] Addressing	 a	 challenge	 to	 consecutive	 sentences	 as constitutionally	 disproportionate in	 the	 aggregate in State	 v.	 Stanislaw , we stated	 that “ [w] hen	consecutive	sentences	are	imposed,	 the	sentencing	court must	make	a	determination	that	the	unsuspended	portion	of	any	consecutive sentence	is	 not	excessive	and	is	 proportionate	 to	 the	 offense. ” 2013 ME	 43, ¶ 24,	65	A.3d	1242 (citing Me.	Const.	art	 I,	§	9 )

. This	suggests that	the	court must	begin	by	determining excessiveness	and	proportionali ty individually	for each	consecutive sentence ,	rather	than for the	aggregate	sentence.		That	view is	confirmed	by Stanislaw ’s observation	that “ [i] f	the	court	decides	to	impose consecutive	 sentences	 for	 various	 convicti ons,	 it	 must	 perform	 a	 separate Hewey analysis	for	each	conviction. ” 12 2013	ME	43, ¶	16 ,	65	A.3d	1242

. [¶29 ] Hoover argues that	the	trial	court	effectively	sentenced	him	to	a single	 sixty

- year	 prison	 term. That	 argu ment would	 be more	 tenable had Hoover’s consecutive	sentences	been	imposed on several	charges	arising	out of	a	single	criminal	episode	or	event.		But	even	with	such	events,	consecutive

12 The Stanislaw opinion	 further	 observes	 that “ [i] n	 order	 to	 ensure	 that	 its	 final	 sentence accurately	 reflects	 the court’ s	 determination	 of	 an	 appropriate	 sentence	 for	 multiple	 offenses,	 a sentencing	 court	 should	 make	 its	 decision	 about	 concurrent	 or consecutive	 imposition	 before	 it undertakes	 the	 third step	of	 the Hewey analysis .”		2013	ME	43	¶	16,	65	A.3d	1242.		That	analysis from Stanislaw cannot	 apply here because,	 by	 law,	 the	 third	 step	 of	 the Hewey analysis	 is inapplicable,	as	suspension	of	any	portion	of	the	sentence	of	incarceration	is	barred	and imposition of	 a	 life	 term	 of	 supervised	 release	 is	 mandated	 following	 release	 from	 incarceration. See 17

- A M.R.S.	§ 1231(1), 2(C)	(2016)

.17 sentences	 may	 be	 imposed	 for	 separate and	 serious	 crimes	 that	 are committed	 in	 the	 course	 of	 a	 single	 criminal event. See	 State	 v.	 Commeau , 2004	 ME	 78,	 ¶¶ 1, 14

- 24,	 852	 A.2d	 70	 ( affirming	 consecutive	 sentences	 for kidnappin g	 and	 gross	 sexual	 assault	 when the	 kidnapping	 occurred	 before and	 continued	 after	 the	 gross	 sexual	 assaul t).	 	 Here , the	 sexual	 assaults	 for which	 consecutive	 sentences	 were	 imposed involved	 different	 victims	 and occurred	 years	 apart in	 different	 counties

. P ursuant	 to 17

- A	 M.R.S. § 1256(2)(A)	(2016) , the	 trial	court properly	impose d consecutive sentences in	such	circumstances. [¶30 ] When consecutive	 sentences	 have	 been	 properly	 imposed,	 we have	 held	 that “[c] onsecutive sentences are	 separate	 punishments	 for different	 offenses,	 and	 two sentences do	 not	 become	 a	 single sentence by virtue	 of	 their	 running	 consecutively.” State	 v.	 Keene 2007 ME	 84,	 ¶ 26,
927 A.2d 398 (citations	 omitted).	 	 Because	 “a	 defendant	 does	 not	 have	 a constitutional	 right	 to	 serve	 concurrent sentences for	 multiple	 violent offenses ,” id. ,	a	defendant’s	“ constitutional	argument	concerning	the	legality	of his sentences is limited	 to	 a	 determination	 of	 whether	 each sentence individ ually	is	cruel	or	unusual .” Ward ,	2 011 ME 74,	¶	22,	21	A.3d	1033.18 [¶ 3 1] When	 determini ng	 whether	 a	 punishment	 is	 disproportionate and	 violative	 of article	 I,	 section	 9 ,	 we	 apply the two
- part	 test addressed	in paragraph twenty
- six

. Ward ,	2011	ME	74,	¶	18,	21	A.3d	1033. “[W] e look	to see	 whether	 a	 particular	 sentence	is	 greatly	 disproportionate	 to	 the	 offense for	which	it	is	imposed ,	and	if	it	is	 not,	we then	examine	whether	it	 offends prevailing notions	 of	 decency.” Id. ¶	 18	 n.4.	 	 “[I]f	 a	 punishment	 fails	 either part	 of	 the	 test,	 it	 is	 unconstitutional.” Id. ; accord State	 v.	 Frye , 390 A.2d 520, 521	(Me. 1978)

. “ We review	the	legality	and	constitutionality	of

a sentence de	novo.” State	v. Bennett ,	2015	ME	46,	¶	14,	114	A.3d	994

. [¶32 ] Addressing	Hoover’s	sentences,	 f irst,	we	compare the	gravity	of the	 offense s with	 the	 severity	 of	 the	 sentence s . See Stanislaw ,	 2013	ME	 43, ¶ 29,	65 A.3d 1242; Ward ,	2011	ME	74,	¶	20	n.5,	21	A.3d	1033

. Second,	in	the

“ rare	case	in	which	 this	 threshold	comparison leads	 to	an	inference	of	gross disproportionality [ we ] should	 then compare the	 defendant’s	 sentence	 with the	 sentences	 received	 by	 other	 offenders	 in	 the	 same	 jurisdiction.” Ward , 2011	 ME	 74,	 ¶ 20	 n.5,	 21	 A.3d	 1033 (quoting Graham	 v.	 Florida , 560 U.S. 48, 60	(2010) (alterations	omitted))

. [¶33 ] Hoover	 urges	 that	 a	 more	 lenient	 sentence	 was	 appropriate because	 he	 did	 not	 physically	 injure,	 kidnap,	 torture,	 maim,	 m utilate,	 or19 murder	 the	 victims. However ,	 the	 gravity	 of	 the	 offenses	 for	 which	Hoover was	 convicted	is	 substantial	 given	 the	 court’s	 findings	 of	 the	 victims’	 young
ages, Hoover’s repeated	sexual	assaults	over	a	period	of	years,	breach es of	the victims’	trust,	the	use of	drugs	to	i ncapacitate	the	victims, penetration,	and	the
memori alization	of	his	sexual	violence by	photograp hing	and	videotaping	his degrading	 acts

. For	 Hoover’s	 crimes,	 the	 Legislature	 has	 mandated a	 basic

term of	imprisonment of	“at	least	twenty	year s”	and	a	maximum	term of “any term	of	years .” See 17

- A	M.R.S.	§ 1252(4

- E). [¶34 ] Viewed	by	these	requirements,	no ne	of	the individual	sentence s is	 constitutionally	 disproportionate.	 	 Hoover’s aggregate	 sentence imposed here of	sixty	years may	be “harsh,”	but	it	is	not	so	severe	that	it	results	in	an inference	 of	 gross	 disproportionality	 when	 compared	 to	 the	 gravity	 of Hoover’s several offenses. See Freeman ,	2014	ME	35,	¶ ¶ 10, 23,	87	A.3d	719 (concluding	 that	 a	 fifty

- year	 sentence with	 ten	 years suspended	 for	 two convictions	 of	 attempted	 murder ,	 consolidated	 for	 sentencing, where	 the three victims	suffered	no	physical	injuries	was	“harsh	and	at	the	far	end	of	the range	of	sentences	that	could	be	imposed	under	the se circumstances”	but	did not	resul t	in	an	inference	of	gross	disproportionality)

.20 [ ¶35 ] Hoover’s	 sentences may also be	 compared	 to	 the	 sentences addressed in State	 v.	 Sweet , 2000	 ME	 14, 745	 A.2d	 368

. There, forty

- seven - year - old	Richard	S weet	ple ade d	guilty	to gross	sexual	assault	of	a thirteen

- year - old	 boy	 and	 sexual	 abuse	 of	 a	 min or	 perpetrated	 against	 a second victim. Id. ¶ ¶ 2, 5. Sweet was	 sentenced	 to	 thirty

- five	 years’ imprisonment	 for	 the	 gross	 sexual	 assault	 conviction	 followed	 by	 a consecutive	five years	for	the	sexual	abuse	of	a	minor	conviction,	for	a	total	of forty	 years’	 imprisonment. Id. ¶¶ 6

- 8. Sweet’s co - defendant, thirty

- two
- year - old	Paul	Poul in,	ple ade d	guilty	to gross	sexual	assault	against two	different	 victims	and	 sexual	abuse	 of	a	mino r	against	a	 third	 victim. Id. ¶ ¶ 3, 5.	 	 The	 court	 sentenced	 Poulin	 to	 a	 sixty

- five

- year	 period	 of incarceration:	 thirty	 years’	 imprisonment	 for	 each	 gross	 sexual	 assault conviction	 and	 five	 years’	 imprisonment	 for	 the	 sexual	 abuse	 of	 a	 minor conviction,	t o	be	served	consecutively. Id. ¶¶	6

- 8

. [¶36 ] Sweet	 and	 Poulin	 challenged	 the	 length	 of	 their	 respective

sentences. Id. ¶	 22.	 	 As	 to	 Sweet,	 we concluded	 that	 the	 trial	 court	 did	 not abuse	 its	 discretion	 in	 imposing	 such	 a	 long	 sentence	 when	 the	 sentence reflected	the	serious	nature	of	the	crimes,	his	criminal	history,	and	the	grave risks	he	posed	 to	children. Id. ¶ ¶ 23

- 24.		As	 to	Poulin,	we not ed	 that	Poulin21 would	 not	 be	 released	 until	 he	 was	 in	 his	 eighties	 and	 that	 the	 sentencing court	 “intended	 to	 prevent	 Poulin	 from	 gaining	 access	 to any	more children for	many	years.” Id. ¶	25.		We concluded	that	the	sentence although	extraordinary	in	lengt h,	is	sufficiently	supported	by	 the facts	 in	 the	 record	 that	 it	 must	 be affirmed.	 	 We	 note	 that	 a sentence	 of	 this	 length	 will	 be	 appropriate	 only	 in	 the	 most unusual	cases	and	would	not	be	appropriate	in	the	absence	of	the multiple	a ggravating	factors	pre sent	here

.	.	.	. Here,	the	number	of victims,	 the	length	 of	 time	during	which	 the	activities	continued, the	nature	of	 the	sexual	activities,	 the	dire	effects	on	 the	victims, the	 defendant’s	 own	 statements	 to	 the	 effect	 that	 a	 "boy	 lover" never	 changes,	 and the	 extremely	 significant	 risk	 of	 his reoffending	upon	release	have	all	combined	to	warrant	a	sentence of	significant	length.

Id. ¶¶	33

- 34. [¶37 ] Evaluated	 in	 this	 context,	 Hoover’s	 sentence	 does	 not	 carry	 an inference	 of	 gross	 disproportionality. See Freeman ,	 2014	 ME	 35,	 ¶	 23,
87 A.3d 719. [¶38 ] We	 must	 also consider	 “whether	 [Hoover’s	 sentence]	 offends prevailing	notions	of	decency,	whether	it	shocks	the	conscience	of	the	public, or	our	own	respective	or	collective	sense	of	fairness,	or	whether	it	is inhuman or	 barbarous.” Ward ,	 2011	 ME	 74,	 ¶	 18,	 21 A.3d	 1033.	 	 “[O]nly	 the	 most extreme	 punishment	 decided	 upon	 by	 the	 Legislature	 as	 appropriate	 for	 an offense	 could	 so	 offend	 or	 shock	 the	 collective	 conscience	 of	 the	 people	 of22 Maine	as	to	be	unconstitut ionally disproportionate ,	or	cruel	and	unusual.” Id. (alteration	omitt ed)

. [¶39 ] Examining	 Hoover’s	 sixty

- year	 term	 of	 imprisonment	 for	 four convictions	 of	 gross	 sexual	 assault	 committ ed	 against	 victims	 who	 were younger	 than	 twelve	 years	 old ,	 the	 facts	 s upport	 the trial court’s	 conclusion that	 “a	 lesser	 sentence	 than	 the	 one	 being	 imposed	 .	 .	 .	 would	 diminish	 the gravity	 of	 what	 occurred	 to	 these	 boys	 and	 also	 would	 violate	 the	 principle that	this	Court	.	.	.	must	consider	public	safety	in	imposing	sente n ces	 for	this sort	 of	 conduct.” “The	 Legislature	 could	 not	 have	 envisioned	 a	much	worse scenario”	than	what	occurred	in	this	case	when	it	determined	that	“any	term of	 years”	 is	 appropriate	 for	 this	 type	 of	 crime

. 17

- A	 M.R.S.	 §	 1252(4

- E); Ward , 2011	ME	74, ¶	20,	21 A.3d	1033

. [¶40 ] Hoover’s	 sentence	 neither	 carries	 an	 inference	 of	 gross disproportionality	nor	offends	prevailing	notions	of	decency,	and,	therefore, is not	violative	of	the	proportionality	mandate	of article	I,	section	9 of	the	Maine
Constitution

. See Freeman ,	 2014	 ME	 35,	 ¶	 23,	 87	 A.3d	 719 ; Gilman , 2010 ME 35,	¶	24,	993	A.2d	14

. The	entry	is: Judg ment	affirmed.23

Scott	F.	Hess,	Esq. (orally) , The	Law	Office	of	Scott	F.	Hess,	LLC,	Augusta,	 for appellant	Wade R. Hoover Maeghan	 Maloney,	 District	 Attorney,	 and	 Paul Cavanaugh	 II,	 Dep .	 Dist.	 Atty. (orally), Prosecutorial	District	IV,	Augusta,	for	appellee	State	of	Maine

Kennebec	County	Superior	Court	docket	number	CR

- 2013

- 486 Somerset	County	Superior	Court	docket	n umber	CR

- 2013

- 72 F OR C LERK R EFERENCE O NLY