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

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 sentences	 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	 pleaded	 guilty,1 Hoover	

contends	 that	 (1)	 the	 court	 erred	 by	 imposing	 a	 sentence	 that	 is	

 1	 	Title 17-A	 M.R.S.	 §	 1252(4-E)	 (2016) mandates a	 “basic	 term	 of	 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

disproportionate	 to	 the	 offenses charged, and	(2)	 the	 court	 was	 required	 to	

find	specific	aggravating	circumstances before	imposing	what	Hoover	claims	

is	a	de	facto	life	sentence.		We	affirm	the	sentences.

[¶3]		This	is	Hoover’s	second	appeal	arising	out	of the	events	that	led	to	

these	 charges.	 	 In	 his	 first	 appeal, Hoover unsuccessfully challenged	 the	

maintenance	of	 this	prosecution	 following	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	sexual	

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	 Homeland	

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	

possession	 of	 sexually	 explicit	 material (Class	 C),	 17-A	 M.R.S.	 §	 284(1)(C)	

(2016).		Id.		Hoover	remained	in	State	custody	until	December	2012,	when	he	

was	arrested	on	a	federal	warrant	and	taken	into	federal	custody.		Id. ¶¶ 4-6.
3

[¶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	Pub.	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	

and	anally	penetrated	his	victims.

[¶6]	 	 At	 its July	 2013	 sentencing	 hearing,	 the federal court	 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] subjected	 the	 victim	 to	 anal	 sex,	 pursuant	 to	 U.S.S.G.	

§ 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);	
4

and	 two	levels	because	 the	minor	victim	spent	 the	night	at	[Hoover’s] house	

and	 elsewhere	 and	 was	 in	 his	 care	 and	 custody,	 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]

penetrated	 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,	the	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,	the	court	sentenced	Hoover	to	360 months	in	prison	on	

the exploitation charge and	120	months	in	prison	on	the	possession	charge,	to	

be	served	consecutively,	as	well	as	a	lifetime	of	supervised	release.		Hoover	I,

 2		The	2016	recommended	decision	by	the	magistrate	judge	(Nivison, Mag.) on	Hoover’s	motion	

to	vacate,	set	aside, or	correct	his	sentences, pursuant	to	28	U.S.C.	§	2255	(2012),	summarized	the	

2013	 sentencing	 proceeding and	 was	 accepted and	 affirmed by	 the	 sentencing	 judge	

(J. Woodcock, J.).
5

2015	ME	 109,	¶	 8,	 121	 A.3d	 1281.	 	Hoover	is	 expected	 to	 be	 released	from	

federal	custody	in 2047,	at	the	age	of	sixty-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.		The	Somerset	County	grand	jury	

indicted	Hoover	on	one count	of	gross	sexual	assault.		The	Kennebec	County	

grand	 jury	 indicted	 him	 on	 twelve	 additional	 counts	 of	 gross	 sexual	 assault	

involving	a	different	victim.

[¶10]	 	 In	 February	 2014,	 Hoover	 moved	 to	 dismiss	 the	 State’s	

indictments,	 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,	and	Hoover	appealed.		Id.		We affirmed	the	motion	court’s	

order concluding	that	there	was	no	evidence	supporting	the Bartkus exception	

to	the	dual	sovereignty	doctrine,

3 and that double	jeopardy	principles	did	not	

bar	 the	 State’s	 prosecution,	 regardless	 of	 any	 potential	 for	 duplicative	

 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

punishment.4		Id. ¶	19.		In	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.

[¶11] After withdrawing	 several	 pending	 motions,	 on	

November 30, 2015,	 Hoover	 pleaded	 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).

[¶12]	 	 On	 October	 3,	 2012,	 federal	 and	 state	 law	 enforcement	 agents	

conducting	a	child	pornography	investigation	discovered	hundreds	of	images	

and	 videos	 of	 sexual	 assaults	 of	 a	 child	 on	 Hoover’s	 computer	 after a	

consented-to	 search.	 	 Some	 of	 the	 images	 and	 videos	 seized	 from	 Hoover	

appeared	 to	be	 “homemade.”		Hoover	admitted	 that	he	made	 the	 videos	and	

that	 he	 “messed	 with”	 or	 “fooled	 around	 with”	 the	 victims,	 but	 he	 denied	

 4 Hoover	 filed	 a	 writ	 of	 certiorari	 to	 the	 United	 States	 Supreme	 Court	 seeking	 review	 of	 our

decision,	 but	 his	 petition	 was	 denied	 on	 January	 19,	 2016.	 	 See State	 v.	 Hoover,	 2015	 ME	 109,	

121 A.3d 1281,	cert.	denied,	136	S.	Ct.	905	(2016).
7

drugging	or	penetrating	them.		The	victims	appeared	to	be	unconscious	in	the	

videos,	and	they	have	no	memory	of	the	sexual	assaults.		The videos	showed

sexual	 acts committed	 by	Hoover	 against the	 victims	 and	 appeared 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

[¶13]	 	The court	accepted	 the	 open	 plea	and	 continued	 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	 were	 contained	 on	 a	 thumb	 drive.	 	 The	 court	 denied	 Hoover’s	

motion	and	viewed	the	images	in	camera.		The	parties	disagreed	on	whether	

the	images	and	videos	contained	evidence	of	drugging	and	penetration.		The	

court	stated that	it	would	make	factual	findings on	these issues.

 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,	including	as	his	karate	teacher.
8

[¶14]	 	 On	 February	 24,	 2016,	 the	 court	 held	 a	 contested	 sentencing	

hearing.	 	 Before	 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	constitutes	

an	aggravating	factor.

[¶15]		Both	Hoover	and	 the	State	submitted	sentencing	memoranda	 to	

the	 court.	 	 Hoover	 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	 consecutively,	 and	 lifetime	 supervised	

release.		Hoover	requested	an	overall	period	of	incarceration	of	twenty-five	to	

thirty	years.		Hoover	agreed	that	lifetime	supervised	release	was	appropriate.

[¶16]		After	considering	the	images	and	videos	on	the	thumb	drive and

the	 attached	 forensic	 report,	 the	 court	 found	 that	 the	 victims	 had been	
9

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	years	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	 maximum	 sentence.	 	 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	 that	

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	 pleaded	 guilty, sparing	 the	 victims	 and	 their	 families	 the	

rigors	of	trial.

[¶17]		The	court	concluded	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	 thirty-five	 years	 for	 the	 Kennebec	 County	 cases.	 	 Because	

there	were	two	different victims	and	the	assaults	took	place	at	different	times	

and	 in	 different	 places,	 the	 court	 ordered	 that	 the	 sentences	 be	 served	
10

consecutively.	 	 The	 court ordered	 that	 the	 state	 sentence	 run	 concurrently	

with	 the	 federal	 sentence	 based	 on	 the “downward	 deviation”	 suggestion	in	

Hoover	 I.		See 2015 ME	109,	¶	15	n.2,	121 A.3d	1281.		The	court	determined	

that	lifetime	supervision	was	appropriate	given	the	number	and	nature	of	the	

violations	 and	 the	 public	 safety	 risk.6	 	 After	 considering	 the	 “principles	 of	

sentencing,”	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	 .	 .	 .	 must	

consider	public	safety	in	imposing	sentences	for	this	sort	of	conduct.”

[¶18]	 	 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	

application	for	leave	to	appeal from	his	sentence,	challenging the	propriety	of

his	 sentences.	 	 See 15 M.R.S.	 § 2151	 (2016);	 M.R.	 App.	 P.	 20.	 	 The	 Sentence	

Review	 Panel	 granted	 Hoover	 leave	 to	 appeal on the	 issues of	 whether	 the	

sentencing	 court	 “sufficiently	 outline[d]	 the	 justification	 for	 such	 a	 lengthy	

sentence”	 and	 whether	 we “should	 impose	 specific	 requirements	 on	 a	 trial	

court	as	a	precondition	 for	imposing	a	de	 facto	life	sentence.”		The	Sentence	

 6 Pursuant	 to	 17-A	 M.R.S.	 §	 1231(2)(C)	 (2016),	 a	 lifetime	 term	 of	 supervised	 release	 is	

mandatory	for	a	person	sentenced,	as	Hoover	was,	under 17-A	M.R.S.	§ 1252(4-E).
11

Review	 Panel,	 however,	 denied	 leave to	 appeal as	 to	 the	 remaining	 issues	

raised	in	his	application.7

II.		LEGAL	ANALYSIS

A. Specific	Requirements	for a De	Facto	Life	Sentence

[¶19]		Citing	Shortsleeves,	580	A.2d	at 149-50,	Hoover	contends	that	the	

sentencing	 court	 was	 required	 to	 find	 specific	 aggravating	 circumstances

before	 imposing what	 he	 asserts	 was a	 de	 facto	 life	 sentence	 for the gross	

sexual	assaults.		Because,	he	contends, “the	 [L]egislature	provided	 very	little	

in	the	way	of	guidance,”	Hoover	urges	us	to articulate	factors	to	be	considered	

by	 sentencing	 courts	 when	 imposing	 a	 term	 of	 years	 that	 amounts	 to	 a	 de	

facto	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.”		

 7	 	 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	 excessive	 based	 on	 Hoover’s	 lack	 of	

criminal	history,	personal	circumstances,	and	 “excellent	prospects	 for	rehabilitation,”	 (3)	 the	 trial	

court	 adequately	 articulated its	 basis	 for	 the	 sentence	 and	 analyzed the	 crimes	independently	 of	

one	another	in	accordance	with	Hewey,	(4)	there	was	sufficient	evidence	to	support	the	aggravating	

factors	 found	 by	 the	 court,	 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	years.”		Id.		

Adopting	the	holding	of State	v.	Anderson, Nos.	AD-78-37,	78-40 (Me.	App.	Div.

June	 30,	 1980),

8 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 at 149.		After	listing	seven	aggravating	circumstances,	we	had	held	in	

Shortsleeves that	 a	life	 sentence	 for	 a	 particular	 crime “may	 not	 be	imposed	

unless	 there	 are	 aggravating	 circumstances	 of	 the	 type” we	 enumerated.		

Id. at 150.

[¶21]		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	when	 the	sentence,	on	a	Class	A	crime,	is	 to	a	 term	of	 thirty	years	or	

 8		The	underlying	murder	convictions	were	affirmed in	State	v.	Anderson, 409	A.2d	1290,	1307

(Me. 1979).
13

less.[9] The	 court	need	 only	 determine, for	a	 relatively	long	 sentence	within	

that	range,	that	the	crime	and	the	manner	in	which	it	was	committed	place	it	

‘at	the	most	serious	end	of	the spectrum	for	purposes	of	a	basic sentence	.	.	.	.’”

[¶22]		Shortsleeves,	as	applied	in	Reese,	requires a	finding	of	aggravating	

circumstances	only	when (1) the	sentence	at	issue	is	imposed	upon	conviction	

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,10 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	Sentence11

[¶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’	

 9	 	 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).

10 The	 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	 concurrently.	 	 The	 sentence	 from	 the	 Kennebec	

County	 case	is	 to	 be	 served	 consecutively 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	of	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	socalled	 Hewey analysis,12 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”).

 11	 	Other	 than	 the	 proportionality	issue,	Hoover	 does	 not	argue, and	 the	 record	 here	 does	 not	

indicate, that	 the	 sentences	 imposed	 were illegal	 or	 imposed	 in	 an	 illegal	 manner.	 	 See State	 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).

12		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)	whether	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	extreme	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	 to	be	unconstitutionally	disproportionate,	or	cruel	and	unusual.”

Id. (alteration	omitted).

[¶27]		Here	 the	allegedly	disproportionate	punishment arises 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	 the	

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	proportionality	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	 convictions,	 it	 must	 perform	 a	 separate	

Hewey analysis	for	each	conviction.”13 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	 argument	 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	

 13	 	 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	

kidnapping	 and	 gross	 sexual	 assault	 when the	 kidnapping	 occurred	 before	

and	 continued	 after	 the	 gross	 sexual	 assault).	 	 Here, the	 sexual	 assaults	 for

which	 consecutive	 sentences	 were	 imposed involved	 different	 victims	 and	

occurred	 years	 apart	 in	 different	 counties.	 	 Pursuant	 to	 17-A	 M.R.S.	

§ 1256(2)(A)	(2016),	the	 trial	court properly	imposed 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

individually	is	cruel	or	unusual.”		Ward,	2011 ME 74,	¶	22,	21	A.3d	1033.
18

[¶31]	 	 When	 determining	 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,	 first,	we	compare the	gravity	of	

the	 offenses with	 the	 severity	 of	 the	 sentences.	 	 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,	 mutilate,	 or	
19

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,	breaches of	the	

victims’	trust,	the	use of	drugs	to	incapacitate	the	victims,	penetration,	and	the	

memorialization	of	his	sexual	violence by	photographing	and	videotaping	his	

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

term of	imprisonment of	“at	least	twenty	years”	and	a	maximum	term	of “any	

term	of	years.”		See 17-A	M.R.S.	§ 1252(4-E).

[¶34]		Viewed	by	these	requirements,	none	of	the	individual	sentences

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	these circumstances”	but	did	

not	result	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	Sweet	pleaded	guilty	to gross	sexual	assault	of	a	

thirteen-year-old	 boy	 and	 sexual	 abuse	 of	 a	 minor	 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	Poulin,	pleaded	guilty	to	gross	sexual	assault	against	

two	different	 victims	and	 sexual	abuse	 of	a	minor	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,	to	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 noted	 that	Poulin	
21

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	length,	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	aggravating	factors	present	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	 of	
22

Maine	as	to	be	unconstitutionally	disproportionate,	or	cruel	and	unusual.”		Id.

(alteration	omitted).

[¶39]	 	 Examining	 Hoover’s	 sixty-year	 term	 of	 imprisonment	 for	 four	

convictions	 of	 gross	 sexual	 assault	 committed	 against	 victims	 who	 were	

younger	 than	 twelve	 years	 old,	 the	 facts	 support	 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	sentences	 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:

Judgment	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	number	CR-2013-72

FOR	CLERK	REFERENCE	ONLY