MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions

Decision: 2017 ME	28

Docket: SRP-15-628

Argued: October	27,	2016

Decided: February	14,	2017

Panel: SAUFLEY	C.J.,	and	ALEXANDER,	MEAD,	GORMAN,	JABAR,	HJELM,	and	HUMPHREY,	JJ.

STATE	OF	MAINE

v.

WALTER	A.	PARKER

ALEXANDER,	J.

[¶1]		Walter	A.	Parker	appeals	the sentence	imposed on	him	by	the	trial	

court	(Cumberland	County,	Warren,	J.)	following	a	resentencing	hearing.		The	

sentence	 was	 imposed	 following	 Parker’s	 plea	 of	 guilty to	 three	 counts	 of	

gross	sexual	assault	(Class	A),	17-A	M.R.S.	§	253(1)(C)	(2016),	and	two	counts	

of	unlawful	sexual	contact	(Class	B),	17-A	M.R.S.	§ 255-A(1)(E-1) (2016).		All	

charges	 involved	 sexual	 assaults	 on	 a	 nine-year-old	 girl	 over	 an	 extended	

period	of	time.		The	court	ultimately	sentenced	Parker	to	a	twenty-year	term	

of	 imprisonment	 followed	 by	 fifteen years	 of	 supervised	 release,	 in	

accordance	with	17-A	M.R.S	§	1231(2)(C) (2016) and	17-A	M.R.S.	§ 1252(4-E)

(2016).
2

[¶2]	 Parker	contends	that	the	supervised	release	sentencing,	mandated	

by	law,	is	unconstitutional,	as	a	violation	of	the	due	process	clause,	because	it	

“punishes	[the]	defendant	for	his	status	and	particular	characteristics,	and	not	

for	 substantive	 criminal	 conduct”; and	 as	 a	 violation of	 the	 double	jeopardy	

clause	 because	 it	 “may	 incarcerate	 [the]	 defendant	 twice	 based	 upon	 his	

substantive	 criminal	 conduct	 and	 not	 for	 his	 status	 and	 particular	

characteristics.”		Parker	also	contends	that	imposition	of	a	mandatory	term	of	

supervised	release	resulted	in	a	sentence	 to	 “more	prison	 time	 than	under	a	

traditional	Hewey1 analysis.”	 We	affirm	the	sentence.

I.		CASE	HISTORY

[¶3]	 	 The	 sentencing	 court	 found	 the	 following	 facts,	 which	 are	

supported	by	the	record.		Prior	to	the	events	leading	to	this	appeal,	Parker	had	

a	 “lengthy	 criminal	 history”	 including	 “a	 few	 felonies	 and	 a	 lot	 of	

misdemeanors.”	 	 The	 prior	 felonies	 included	 burglary,	 criminal	 threatening	

with	 a	 dangerous	weapon,	 and	 operating	 a	motor	 vehicle	in	 violation	 of	 the	

habitual	 offender	law.	 	Parker’s	 probations	 on	 his	 prior	 sentences	 had	 been	

“violated	on	numerous	occasions.”	

 1		State	v.	Hewey,	622	A.2d	1151,	1154-1155	(Me.	1993),	incorporated	into	the	sentencing	statute	

at	17-A	M.R.S.	§	1252-C	(2016).
3

[¶4]	 The	 court	 further	 found	 that	 Parker	 had	 sexually	 assaulted	 the	

nine-year-old	 victim	 on	 several	 occasions	 over	 an	 extended	 period	 of	 time,	

and that Parker was	 in	 a	 position	 of	 trust	 in	 the	 household and	 acted	 as	 a	

parental	figure	to	the	victim.	

[¶5]		As	a	result	of	 this	conduct,	Parker	was	indicted	on	 two	counts	of	

unlawful	 sexual	 contact	 (Class	 B)	 17-A	 M.R.S.	 §	 255-A(1)(E-1) and	 three	

counts	of	gross	sexual	assault	(Class	A) 17-A	M.R.S.	§	253(1)(C),	all	involving	a	

victim	under	twelve	years	of	age.

[¶6]	 	On	 July	 13,	 2015,	 Parker	 pleaded	 guilty	 to	 all five	 counts	 in	 the	

indictment.		The	court	(Clifford,	J.)	accepted	 the	plea	of	guilty,	and	continued	

the	matter	for	sentencing	before	any	judge.		

[¶7]	 	 Parker	 appeared	 before	 the	 court	 (Warren,	J.)	for sentencing	 on	

November	20,	2015.	 At	the	sentencing	hearing,	the	State outlined	the	facts	of	

Parker’s	 sexual	 violence	 against	 the	 victim,	 which had occurred	 over	 the	

course	of	more	 than	one	year.		During	 the	 first	sentencing	hearing,	 the	State	

and	Parker	argued	for	different	sentences,	but	each	argued	for	a	sentence	that	

would	include	a	 significant	 underlying	 sentence,	with	 part	 of	 the	 underlying	

sentence	 suspended	 and	 Parker	 being	 placed	 on	 probation	 for	 a	 significant	

period	of	time	following	release	from	imprisonment.		
4

[¶8]	 	 For	 a	 gross	 sexual	 assault	 committed	 against	 a	 person	 under	

twelve	 years	 of	 age,	 the	 basic	 term	 of	 imprisonment	 to	 begin	 the	 analysis	

required	by	17-A	M.R.S.	§	1252-C	(2016)	is	set	at	“a	term	of	at	least	20	years.”		

17-A	M.R.S.	§	1252(4-E)	(2016).		As	a result, the	court, in calculating	the	basic	

term	 of	 imprisonment pursuant	 to	 section	 1252(4-E)	 and	 step	 one	 of	 its

section	1252-C analysis,	began	with	the	mandated basic	term	of	imprisonment	

of twenty	 years.	 The	 court	 stated	 that	 Parker	 was	 a	 parental	 figure	 in	 the	

household	 and	 that	 the frequency	 of	 the sexual	 violence was	 a	 sentence	

aggravating	factor,	particularly because	it	was committed	against	a	nine-yearold.	 The	 court	 concluded	 that	 this	 conduct	 raised	 the	 basic	 sentence	 to	

twenty-two	years.	

[¶9]		In	step	two	of	its	section	1252-C analysis,	the	court	addressed	the	

aggravating	 and	 mitigating	 factors.	 	 The	 court	 found	 that	 the	 victim	 impact	

was	significant	in	that	she	was	continuously	subjected	to	this	conduct	and	had	

been	afraid	to	tell	anyone	until	a	 few	years	after	the	sexual	assaults stopped.		

The	 court	 also	 found	 that	 Parker’s	 lengthy	 criminal	 history	 and	 repeated	

violations	 of	 probation	 were aggravating	 factors.	 	 Addressing	 mitigating	

factors,	the	court	stated	that	Parker had accepted	responsibility	from	the	very	

beginning.	 In	 doing	 so, he	 avoided	 a	 trial,	 and	 the	 victim	 would	 not	 be	 put	
5

through	 that	 “extraordinarily	 unpleasant”	 experience.	 The	 final	 mitigating	

factor	 the	 court	 found	 was	 that	 Parker	 wants	 help	 and	 counseling,	 and	

understands	 that	he	presents	a	public	safety	issue.	 The	court	noted	 that	 the	

aggravating	 and	 mitigating	 factors	 were	 “in	 exact	 equipoise”	 and	 therefore	

determined	that	the	maximum	period	of	incarceration was	twenty-two	years.		

[¶10]		At	step	 three	of	 the	section	1252-C	analysis,	and	addressing	 the	

issue	 of	 probation,	 the	 court	 noted, based	 on	 Parker’s	 psychological	

evaluation,	 that	 Parker	 was	 in	 need	 of	 “not	 just	 treatment	 but	 supervision,	

given	that	he	is	at	risk	of	reoffending.”	 As	a	result,	the	court	determined	that	

all	but	 fourteen	years	of	Parker’s	term	of	imprisonment	would	be	suspended	

with	an	eighteen-year	probation	period	to	follow.	

[¶11]		Parker’s	ultimate	sentence	was	twenty-two	years’	imprisonment,	

with	all	but	fourteen	years	suspended,	and	probation	for	eighteen	years.		This	

sentence	contemplated	at	least	 thirty-two	years	of	State	supervision	through

incarceration	or	probation.	

[¶12]		Four	days	later,	on	November	24,	2015,	the	court	issued	an	order	

for	resentencing.	 The	order	stated	 that	after	reviewing	 the	relevant	statutes	

and	 State	 v.	 Cook,	 2011	 ME	 94,	 26	 A.3d	 834,	 the	 court	 realized	 that the	

sentence	 it	 had	 imposed	 was	 not	 authorized	 by	 law.	 	 On	 its	 own	 motion,	
6

pursuant	 to	 M.R.U.	 Crim.	 P.	 35(a),	 the	 court	 ordered	 a	 further	 hearing	 for	

resentencing.		

[¶13]		The	resentencing	hearing	was	held	on	December	15,	2015.	 At	the	

outset,	the	court	acknowledged	that	it	had	imposed	an	unauthorized	sentence	

by	including	a	term	of	probation,	because	when	a	defendant	is	sentenced	 for	

gross	sexual	assault	of	a	child	under	the	age	of	twelve	pursuant	to	17-A	M.R.S.	

§	 253(1)(C)—as	 was	 the	 case	 here—probation	 is	 not available,	 and	

supervised	release	must	be	imposed.	 For	gross	sexual	assault	of	a	child	under	

the	age	of	twelve,	17-A	M.R.S.	§	1231(1-A)	(2016)	requires	that:

Notwithstanding	 subsection	 1,	 the	 court	 shall	 impose	 as	 part	 of	

the	sentence	a	requirement	that	a	defendant	convicted	of	violating	

section	 253,	 subsection	 1,	 paragraph	 C	 be	 placed	 on	 a	 period	 of	

supervised	release	after	imprisonment.	The	period	of	supervised	

release	 commences	 on	 the	 date	 the	 person	 is	 released	 from	

confinement	pursuant	 to	section	1254	and	must	include	 the	best	

available	monitoring	 technology	 for	 the	duration	of	 the	period	of	

supervised	release.

[¶14]	 	 Subsection	 1-A	 in	 effect	 bars	 a	 probation	 alternative	 that	 is

provided in 17-A	M.R.S.	§	1231(1)	(2016),	and	requires,	instead,	“a	period	of	

supervised	 release”	 to	 commence	 immediately	 upon	 release	 from	

confinement	 and	 to	 include	 utilization	 of	 “the	 best	 available	 monitoring	

technology.”	 	 The	 requirement	 for imposition	 of	 “a	 period	 of	 supervised	
7

release”	 following	 release	 from	 imprisonment is	 repeated	 in	 17-A	 M.R.S.	

§ 1252(4-E), which	states:

If	the	State	pleads	and	proves	that	a	crime	under	section	253	was	

committed	against	a	person	who	had	not	yet	attained	12 years	of	

age,	 the	 court,	 notwithstanding	 subsection	 2,	 shall	 impose	 a	

definite	 term	 of imprisonment	 for	 any	 term	 of	 years.	 In	

determining	 the	 basic	 term	 of	 imprisonment	 as	 the	 first	 step	 in	

the	 sentencing	 process,	 the	 court	 shall	 select	 a	 term	 of	 at	 least	

20 years.	 The	 court	 shall	 also	 impose	 as	 part	 of	 the	 sentence	 a	

period	 of	 supervised	 release	 to	 immediately	 follow	 that	 definite	

term	of	imprisonment	as	mandated	by	section	1231.

[¶15]		Subsection	4-E,	by	exempting	sentencing	for	gross	sexual	assault	

upon	 a	 child	 under	 age	 twelve	 from	 the	 thirty-year maximum	 sentence	 for	

Class	A	crimes	specified	in	section	1252(2),	authorizes	a	“definite”	sentence	of	

imprisonment	 for	 “any	 term	of	years.”		Subsection	4-E	also	requires	 that	the	

basic	 term	 of	imprisonment	 to	 begin	 the	 section	 1252-C	 sentencing	analysis	

be	 at	 least	twenty	 years	 and	 requires	 imposition	 of	 “a	 period	 of	 supervised	

release”	to	immediately	follow	release	from	imprisonment.2

 2		Title	17-A	M.R.S.	§	1231(2)(C)	(2016)	states	that	the	authorized	period	of	supervised	release	is	

“[l]ife	for	a	person	sentenced	under	section	1252,	subsection	4-E.”		The	parties	and	the	trial	court,	

in	addressing	resentencing,	appeared	to	infer	that	the	references	in	17-A	M.R.S.	§§	1231(1-A)	and	

1252(4-E)	(2016)	to	“a	period	of	supervised	release”	allowed	some	matter	of	choice	in	the	length	of	

the	period	of	supervised	release	to	be	imposed.		To	the	extent	that	the	reference	section	1231(2)(C)	

is	 ambiguous,	 the	 rule	 of	lenity	 authorizes	 resolution	 of	 ambiguities	in	 favor	 of	 the	more	lenient	

sentencing	choice.		State	v.	Harrell,	2012	ME	82,	¶	5,	45	A.3d	732; State	v.	Stevens,	2007	ME	5,	¶	5,	

912	A.2d	1229.
8

[¶16]		In	redetermining	the	basic	term	of	imprisonment	under	the	first	

step	 of	its	statutory	analysis,	 the	court	stated	 that	it	was	 “handcuffed	by	the	

statute	 in	 terms	 of	 what	 sentence	 should	 be	 given,”	 and	 that	 it	 was	

“constrained	by	the	sentencing	statutes	to	arrive	at	a	sentence	that	is	different	

from	the	one	.	.	.	[it]	previously	imposed.”	 Nonetheless,	the	court	stated	that	it	

was	starting	with	the	statutorily	mandated	basic	term	of	at	least	twenty	years,	

and	 that	 for	 the	 same	 reasons	it	 had	 found	at	 the	initial	 sentencing	 hearing,	

that	number	was	increased	to	twenty-two	years.		

[¶17]		Addressing	the	aggravating	and	mitigating	factors	under	step two	

of	 the	 statutory	 analysis,	 the	 court	 referred	 to	 its	 findings	 at	 the	 November	

sentencing	hearing.	 It	found	that	the	aggravating	factors	were	the	impact	on	

the	 victim	 and	Parker’s lengthy	 criminal	 history.	 For	mitigating	 factors,	 the	

court	 found	 the	 early	 acceptance	 of	 responsibility	 and	 the	 desire	 for	

treatment.		The	court	again	noted	that	the	aggravating	and	mitigating	factors	

“basically	were	in	 equipoise”	 and	 that	it	would	 adhere	 to	 the	 determination	

that	it	had	made	in	the	November	hearing.		The	court	then	stated	that	it	was	

“discomforted	by	the	 fact	that [it]	was	imposing	a	22	year	sentence	where	in	

the	 past	 [it]	 was	 imposing	 a	 22	 all	 but	 14-year	 sentence.”	 With	 no	 “escape	

clause”	and	unable	to	use	probation	to	lower	the	basic	twenty-two-year	term	
9

of	imprisonment,	the	court	reevaluated	the	aggravating	and	mitigating	factors,

finding	 that	it	 had	 placed	 too	much	 weight	 on	 Parker’s	 evasiveness	 and	 not	

enough	weight	on	his	ultimate	acceptance	of	responsibility.	 Finding	 that	 the	

mitigating	 factors	 outweighed	 the	 aggravating	 factors	 “slightly,”	 the	 court	

reduced	the	sentence	to	twenty	years.		

[¶18]		Where	 the	court	would	 typically	engage	in	 the	 third	step	of	 the	

statutory	analysis,	it	acknowledged	that	pursuant	to 17-A	M.R.S. §	1231(2)(C),

17-A M.R.S. § 1252(4-E),	and	our	holding	in	Cook,	it	instead	had	to	determine	a	

period	 of	 supervised	 release	 to	 impose	 following	 Parker’s	 term	 of	

imprisonment.	 In	making	such	a	determination,	 the	court	stated	 that	it	must	

consider	 the	purposes	of	sentencing	listed	in 17-A	M.R.S.	 §	1151	 (2016)	and	

the	factors	addressed	in	section	1252-C(2).	 Reviewing	section	1151,	the	court	

noted	that	the	“purpose	of	supervised	release	would	focus	on	rehabilitation	as	

opposed	 to	 deterrence.”	 After	 discussing	 the	 factors	listed	in	 sections	 1151	

and	1252-C(2),	and	in	accordance	with	 the	analysis	stated in	Cook,	 the	court	

determined	 that	a	 fifteen-year	period	of	supervised	release	was	appropriate.		

The	court	then	set supervised	release conditions	prohibiting contact	with	the	

victim	or	her	 family, being	in	places	where	children	congregate, and use	and	
10

possession	of	pornography; and	requiring monitoring, sex	offender	treatment,

and	that	Parker	live	at	a	residence	approved	by	probation.	

[¶19]	 	 Parker	 filed	 a	 timely	 application	 to	 permit	 the	 appeal	 of	 his	

sentence.		M.R.	App.	P.	2(b)(2)(A),	20.		The	Sentence	Review	Panel	granted	the	

application	 to	 appeal	 the	 sentence,	 and	 the	 appeal	 is	 properly	 before	 us	

pursuant	to	M.R. App.	P.	2,	20(g),	(h).

II.		LEGAL	ANALYSIS

A. Due	Process.

[¶20]	 	 Parker	 argues	 that	 the	 supervised	 release	 sentencing	 scheme,	

17-A M.R.S.	§	1231(2)(C),	violates	his	due	process	rights	because	it	punishes	

him	 for	 his	 status	 and	 characteristics,	 and	 not	 his	 substantive	 criminal	

conduct.	 He	 asserts	 that	 the	 statutory	 scheme	 targets	 a	 distinct	 class	 of	

persons,	 violent	 sex	 offenders,	 for	 open-ended	 sanctions	 of	 incarceration,	

which,	 he	 asserts,	 exceeds the	 bounds	 of	 criminal	 sentencing	 and	implicates

due	process	concerns.	

[¶21]	 	 Parker’s	 actual	 complaint	 focuses	 not	 on his status	 or	

characteristics—such	 as	 gender,	 age,	 race,	 or	 economic	 status—but	 on	 the	

application	of	statutory	requirements	aggravating	his	sentence	because	of	the	

nature	of	his	crime,	gross	sexual	assault,	and	the	age	of	his	victim,	under	age	
11

twelve.		These	statutory	aggravating	factors	direct	that	any	adult	convicted	of	

committing	gross	sexual	assault	upon	a	child	under	age	twelve	face	a	definite	

term	of	imprisonment	of	at	least	twenty years,	to	be	immediately	followed	by	

a	 period	 of	 supervised	 release.	 	 The	 combination	 of	 imprisonment	 and	

supervised	 release, which,	 if	 conditions	 are	 violated,	 may	 result	 in	 further	

imprisonment,	can,	under	the	law,	extend	for	a	convicted	person’s	life.

[¶22]		As	applied	 to	Parker,	the	 trial	judge’s	statement	at	resentencing	

indicated	 that	 the	 court	 contemplated	 that	 Parker’s	 maximum	 time	 in State	

custody	 or	 supervision	 could	 be limited	 to	 thirty-five	 years:	 twenty	 years’

imprisonment	 and	 fifteen	 years	 of	 supervised	 release	 which	 can	 lead	 to	

imprisonment	 if	 release	 conditions	 are	 violated.	 	 However,	 the	 court	 also	

understood	 the	 possibility that	 Parker’s	 maximum	 time	 in	 State	 custody	 or	

supervision	could	approach	fifty	years.3

 3

 Title 17-A	M.R.S.	§	1231(6) (2016),	addressing	possible	revocation	of	a	period	of	supervised	

release,	directs	that

[i]f	 the	 court	 revokes	 a	 period	 of	 supervised	 release,	 the	 court	 shall	 require	 the	

person	to	serve	time	in	prison	under	the	custody	of	the	Department	of	Corrections.	

This	time	in	prison	may equal	all	or	part	of	the	period	of	supervised	release,	without	

credit	 for	 time	 served	 on	 post-release	 supervision.	 The	 remaining	 portion	 of	 the	

period	of	supervised	release	that	is	not	required	to	be	served	in	prison,	if	any,	may	

not	run	during	the	time	in	prison	and	must	resume	again	after	the	person’s	release	

and	is	subject	to	revocation	at	a	later	date.

Because,	as	the	trial	judge	referenced,	a	person	serving	time	in	prison	following	a	revocation	of	

a	period	of	supervised	release	may	not	receive	credit for	the	time	served	on	supervised	release,	and	

any	remaining	time	on	supervised	release	may	not	run	during	time	in	prison	and	must	resume	after	
12

[¶23]	 	 In	 addressing	 a	 claim	 that	 factors	 considered	 at	 sentencing	

violated	 a	 defendant’s	 due	 process	 rights,	 we	 have	 held	 that	 courts	 are

accorded	wide	discretion	in	the	sources	and	types	of	information	that	may	be	

relied	upon at	sentencing.		State	v.	Bennett,	2015	ME	46,	¶	22,	114	A.3d	994;	

State	v.	Farnham,	479	A.2d	887,	890	 (Me.	1984).		The	court’s	considerations	

“are	limited	only	by	the	due	process	requirement that	such	information	must	

be	factually	reliable	and	relevant.”		Bennett,	2015	ME	46,	¶	22,	114	A.3d	994

(quoting State	v.	Grindle,	2008	ME	38,	¶	18,	942	A.2d	673).

[¶24]	 	 “Federal	 cases have	 interpreted	 the	 due	 process	 clause	 as	

requiring	 a	 defendant	 ‘not	 to	 be	 sentenced	 on	 false	 information	 .	 .	 .	 [and]	

requir[ing]	 that	 the	 defendant	 be	 given	 an	 adequate	 opportunity	 to	 refute	

information	relied	on	at	sentencing.’”	Bennett, 2015	ME	46, ¶	23, 114	A.3d	994

(quoting United	States	v.	Wilfred	Am.	Educ.	Corp.,	953	F.2d	717,	722	 (1st	Cir.	

1992)	(citation	omitted)).

[¶25]		Here, there	is	no	claim	that	Parker	was	sentenced	based	on	false	

or	inadequate	information.		Other	than	complaints	about	sentencing	based	on	

 a	 release	 from	 prison,	 Parker’s	 maximum	 period	 in	 State	 custody	 or	 supervision	 could	 be	

approximately	fifty	years.

We	express	no	opinion	on	whether	an	application	of	the	supervised	release	law	that	resulted	in	

a	 time	 in	 State	 supervision	 considerably	 longer	 than	 that	 might	 present	 a	 constitutional	

proportionality	issue.
13

his	“status”	or	“characteristics,”	Parker	has	identified	no	process	 that	he	was	

due	 and	 of	 which	 he	 has	 been	 deprived.	 	 His	 due	 process	 argument really	

appears	to	address	the length	of	his	total	sentence,	assuming	his	prospective	

compliance	 with	 the	 conditions	 of	 his	 supervised	 release,	 which	 is	 a	

constitutional	proportionality	claim.

[¶26]	 	 The	 Eighth	 Amendment	 to	 the	 United	 States	 Constitution	

provides	 that	 “[e]xcessive	 bail	 shall	 not	 be	 required,	 nor	 excessive	 fines	

imposed,	 nor	 cruel	 and	 unusual	 punishments	 inflicted.”	 U.S.	 Const.	 amend.	

VIII.	 Article	1,	section	9	of	the	Maine	Constitution	explicitly	provides	that	“all	

penalties	 and	 punishments	 shall	 be	 proportioned	 to	 the	 offense.”	Me.	 Const.	

art.	I,	§	9.		In	Bennett,	2015	ME	46,	¶	15,	114	A.3d	994,	we	observed	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.”

(quoting State	v.	Ward,	2011	ME	74,	¶	18,	21	A.3d	1033 (alterations	omitted)).

[¶27]		We	have	approved	prison	sentences	of	sixty-five	years	and	forty	

years	in	 cases	 where	 the	 facts	indicated	multiple	 sexual	 assaults	 committed	

against	minors.		See,	e.g., State	v.	Sweet,	2000	ME	14,	745	A.2d	368.		As	applied	

in	 this	 case,	 the	 sentences	 for	 multiple	 Class	 A	 gross	 sexual	 assaults	
14

committed	 on	 a	 nine-year-old	 victim—twenty	years’ imprisonment	 followed	

by	 fifteen	 years	 of	 supervised	 release with	 the	 possibility	 of	 fifteen	 years	in	

prison	 for	 violation	 of	 supervised	 release—are	 not	 constitutionally

disproportionate	 and	 are	 not	 cruel	 or	 unusual	 punishment.	 	 See	 Cook,	

2011 ME	 94,	 ¶	 19	 n.9,	 26	 A.3d	 834	 (addressing	 sentencing	 for	 gross	 sexual	

assault	committed	on	minors	under	the	age	of	twelve	and	noting	that	a	term	of	

supervised	release	may	be	appropriate,	even	if	the	combination	of	the	term	of	

imprisonment	 and	 the	 term	 of	 supervised	 release	 exceed	 the	 statutory	

maximum	sentence	for	the	crime).

B. Double	Jeopardy

[¶28]	 	 Parker	 also	 argues	 that	 the	 supervised	 release	 sentencing	

process,	 17-A M.R.S.	 §	 1231(2)(C),	 violates	 the Double	 Jeopardy Clause

because	it	seeks	to	punish	him	twice	for	the	same	conduct.	 He	further	alleges	

that	the	imposition	of	supervised	release	is	punitive	in	nature,	and	not	civil	or	

regulatory.		

[¶29]	 	 The	 Double	 Jeopardy	 Clauses	 of	 the	 United	 States	 Constitution	

and	 Maine	 Constitution	 protect	 a	 criminal	 defendant	 from	 a	 second	

prosecution	 for	 the	 same	 offense	 after	 a	 conviction,	 and	 from	 multiple	

punishments	 for	 the	 same	 offense.	 	 State	 v.	 Savard,	 659	 A.2d	 1265,	 1266	
15

(Me. 1995).	 	 To	 prevail	 on	 his	 double	 jeopardy	 claim,	 Parker	 must	

demonstrate	 that	 the	 term	 of	 supervised	 release	 punishes	 him	 twice	 for	 the	

same	offense,	or	was	imposed	as	the	result	of	a	separate	proceeding	but	based	

on	 the	 same	conduct.		Id.		Parker	argues	 that	he	is	 subject	 to	punishment	in	

two	different	proceedings—the	sentencing	hearing,	and, should	it	happen,	the	

supervised	 release	 revocation	 hearing.	 	Because	any	 sanction	 resulting	 from	

violation	of	supervised	release,	like	any sanction	 for	a	violation	of probation,

is	 based	 on violation	 of	 the	 conditions	 imposed,	 and	 not	 the	 substantive	

criminal	 conduct	 that	 led	 to	 the	 imposition	 of	 supervised	 release,	 double	

jeopardy	concerns	are	not	implicated.		

[¶30]	 	The	 nature	 of	 supervised	 release	 and	 imposition	 of supervised	

release	as	part	of	the original	sentencing	process	were addressed	in	detail	in	

Cook,	2011	ME	94,	¶¶	21-30,	26	A.3d	834.	 “[A]lthough	incarceration	following	

the	 revocation	 of	 a	 term	 of	 supervised	 release	 is	 punishment,	 it	 punishes	 a	

defendant’s failure	to	abide	by	conditions	of	release	imposed	by	the	court	and	

the	 resulting	 breach	 of	 trust,	 not	 a	 defendant’s	 original,	 or	 new,	 criminal	

conduct.”		Id. ¶	26.		Parker’s	double	jeopardy	claim	fails.		
16

C. Three-Step	Sentencing	Analysis

[¶31]	 	 Parker	 asserts that the supervised	 release	 statutory	 scheme	

abrogates	the	typical	Hewey	analysis,	by	mandating	“at	least	20	years”	as	the	

first	 step	 and	 completely	 removing	 step	 three	 by	 eliminating	 probation	 and	

mandating	supervised	release,	and	that	as	a	result he	was	sentenced	to	more	

prison	time	than he	would	have	been	under	a	traditional	Hewey analysis.	 As	a	

result,	Parker	contends,	he	was	denied	a	meaningful	proportionality	review.

[¶32]		A	sentencing	court	typically	engages	in	a	three-step	process	when	

imposing	a	sentence that	will	include	time	in	prison:	(1)	it	determines a	basic	

period	 of	 incarceration,	 which	 is	 set solely	 by	 reference	 to	 the	 offender’s	

criminal	conduct	and	the	nature	and	seriousness	of	the	offense;	(2)	in	order	to	

individualize	 each	 sentence	 and	 set	 the	 maximum	 term,	 the	 court	 next	

considers	aggravating	and	mitigating	factors	that	will	either	reduce,	enhance,

or	have	no	effect	on	the	maximum	sentence;	and	(3)	once	the	sentencing	court	

has	 determined	 the	 maximum	 period	 of	 incarceration,	 it	 may	 suspend	 a	

portion	 of	 that period	 and	 supplement	 it	 with	 a	 period	 of	 probation.	 	 17-A	

M.R.S. § 1252-C;	State	v.	Hewey,	622	A.2d	1151,	1154-55	(Me.	1993).		

[¶33]	 	In	 determining	 the	length	and	 conditions	 of	 supervised	 release,	

we	 have	 recognized	 that	 the	 usual	 three-step	 analysis	 cannot	 apply	 because	
17

the	 court	 is	 barred	 from	 suspending	 any	 portion	 of	 the	 sentence	 of	

imprisonment	 and	 is	 instead	 required	 to	 impose a	 period	 of	 supervised	

release.		Cook,	2011 ME	94,	¶	21,	26	A.3d	834.		With	that	limitation,	we	have	

instructed	 the	 sentencing	 court	 to	 “consider	 statutory	 sentencing	 factors	

appropriate	 to	 its	 primary	 purpose	 of	 supervision	 and	 rehabilitation”	 after	

which	 it may “impose	 any	 conditions	 of	 supervised	 release	 authorized	 by	

17-A M.R.S.	§	1232 that	it	deems	reasonable	and	appropriate.”		Id. ¶	29.

[¶34]		Here,	the	court did	not	misapply	the	law	in	setting	a	twenty-year	

basic	term	of	imprisonment,	as	the	basic	term was	statutorily	mandated.		State	

v.	Holland,	2012	ME	2,	¶	38,	34	A.3d	1130 (noting	that	our review	of	the	first	

step	is	de	novo,	 for	misapplication	of	 the	law);	17-A	M.R.S.	§ 1252(4-E).		The	

court’s	discussion	of	the	second	step	reveals	no	abuse	of	discretion	in	setting

the	 twenty-year	 maximum	 sentence,	 two	 years	 less	 than	 the	 original

determination	 made	 by	 the	 court,	 after	 reevaluating	 the	 aggravating	 and	

mitigating	 factors.	 Cook,	 2011	ME	 94,	 ¶	 8,	 26 A.3d	 834	 (observing	 that	our

review	at	step	two	is	for	an	abuse	of	discretion).		Because	it	recognized	that	its	

original	sentence	was	affected	by	an	error	of	law,	the	court’s	original	analysis	

did	 not	 bind	 the	 court	 and prevent	 it	 from	 changing	 its	 analysis	 of	 the	

discretionary	choices	it	was	making.
18

[¶35]		In	imposing	supervised	release,	the	sentencing	court	followed	the	

analysis	we	required in	Cook,	considered	the	factors	set	forth	in	section	1151	

and	1252-C(2), and	imposed	conditions	authorized	by	section	1232.	 Id.	¶	29.		

The	sentencing	court	properly	engaged	in	the	analysis	required	for	imposing	a	

sentence that	included supervised	release,	and	the	resulting	sentence	does	not	

reflect	any	misapplication	of	principle	or	error	of	law.

The	entry	is:

Judgment	affirmed.

Merritt	 T.	 Heminway,	 Esq.	 (orally),	 H&H	 LawCenter,	 P.A.,	 Portland,	 for	

appellant	Walter	A.	Parker

Stephanie	 Anderson,	 District	 Attorney,	 and	 Meghan	 E.	 Connelly,	 Asst.	 Dist.	

Atty.	 (orally),	 and	 Trevor	 Savage,	 Stud.	 Atty.,	 District	 Attorney’s	 Office,	

Portland,	for	appellee	State	of	Maine

Lawrence	C.	Winger,	Esq.,	amicus	curiae	pro	se

Cumberland	County	Unified	Criminal	Docket	docket	number	CR-2015-723

FOR	CLERK	REFERENCE	ONLY