MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions Decision: 202 1 ME 9 Docket: SRP

- 20

- 17 Argued: November	17,	2020 Decided: February	23,	2021 Panel: M EAD,	GORMAN,	JABAR,	HUMPHREY,	HORTON,	and	CONNORS,	JJ. Majority: MEAD,	GORMAN,	HUMPHREY,	HORTON, and	CONNORS,	JJ. Concurrence: JABAR,	J.

STATE	OF	MAINE

v. MARIO	GORDON

HUMPHREY,	J. [¶1]	 	 In	 this	 appeal,	 Mario	 Gordon	 seeks	 our	 review of	 twelve

- year concurrent	sentences	imposed	on	him	for	three	counts	of	aggravated	trafficking in	scheduled	drugs,	17

- A	M.R.S.	§ 1105

- A(1)(B)(1),	(D),	(H)	(2020),	by	the	trial court	 (Kennebec	 County, Benson,	 J. )	 several	 months	 after	 the	 court	 had facilitate d	a	plea	agreement	involving	the	dismissal	of	other	charges. 1 Gordon does	not	appeal	from	the	judgment	of	conviction	and	argues	only	that	he	should be	 resentenced	 because	 the	 court	 (A) violated	 his	 due	 process	 rights	 by imposing	 the	 maximum	 sentences	 allo wed	 by	 the	 plea	 agreement	 and

1 As	explained	below, Gordon	was	also	convicted	of	other	crimes,	but	he	challenges	the	court’s sentencing	only	as	to	these	three	charges.2 (B) disregarded	 sentencing	 factors	 in	 declining	 to	 suspend	 a	 portion	 of Gordon’s	sentences	and	order	probation.		Based	on	the	record	properly	before us,	we	affirm	the	sentences.
I.		BACKGROUND [¶ 2 ]		The	 facts	we	consider	 are drawn	 from	 the	procedural	 record

. In February	 2017,	 Gordon	 was	 charged	 by	 indictment	 with	 three	 counts	 of aggravated	 trafficking	 in	 scheduled	 drugs	 (heroin,	 cocaine	 base,	 and oxycodone)	(Class	A),	17

- A	M.R.S.	§	1105

- A(1)(B)(1), based	on	conduct	alleged

to have	taken	place	in	December	2016 .		T he	indictment also alleged two	counts of	criminal	forfeiture

. 15	M.R.S.	§	5826	(2017)

. 2 [¶ 3 ]		Gordon	was	released	on	bail	but	was	arrested	again	in	April	2018. In	 July	2018,	he	was	charged	by	indictment	with	seven counts	of	aggravated trafficking	 in	 scheduled	 drugs	 (heroin,	 cocaine,	 and	 cocaine	 base)	 (Class	 A),
17

- A M.R.S.	 § 1105

- A(1)(B)(1),	 (D),	 (H); and four	 violations	 of	 conditions	 of release	(Class	E),	15	M.R.S.	§ 1092(1)(A)	(2020) .		The	indictment	also	include d one	 count	 of criminal	 forfeiture,	 15 M.R.S.	 §	 5826.	 	 As	 Class	 A	 crimes,	 the

2 This	statute	was	amended	after	the	commission	of	the	charged	crimes. See P.L.	2019,	ch.	97 , §§ 4

- 6	(effective	Sept.	19,	2019); P.L.	20 17,	ch.	460 ,	§	F

- 1	(effective	July	9,	2018)	(codified	at 15	M.R.S. §	5826	(2020) ).3 aggravated	 trafficking	 charges	 were	 punishable	 by	 up	 to	 thirty	 years	 of
incarceration. 17

- A M.R.S.	§ 1252(2)(A)	(2018). 3 [¶ 4 ]	 	 After	 finding	 Gordon	 competent	 to	 stand	 trial,	 the	 court	 held	 a dispositional	 conference	 on	 August	 20,	 2019.	 	 The	 parties	 reached	 a	 plea agreement	 that	 left	 open	 to	 Gordon a choice between	 two	 proposals	 by	 the
State: an	eight

- year	straight	sentence	or	a twelve

- year	cap	plea. [¶ 5 ]	 	 On	 that	 same	 day

— August	 20,	 2019

— the	 court	 held	 a	 hearing pursuant	to	M.R.U.	Crim.	P.	11 at	which	Gordon	entered	a	guilty	plea	and	the

court ensure d that	Gordon	understood	his	rights,	that	he	made	the guilty plea knowingly	 a nd	 voluntarily,	 and	 that	 there	 was	 a	 factual	 basis	 for	 the	 plea.
See M.R.U.	 Crim.	 P.	 11(b)(1)

- (3),	 (c)

- (e).	 	 In	 open	 court,	 the	 court	 confirmed Gordon’s	understanding	“that	up	to	12	years	could	be	imposed”	if	he	agreed	to the	plea	with	a	twelve

- year	cap. Gordon	also	confirmed	that	he	had	not	been made	 any	 other	 promises	 or	 offered	 any	 other	 benefits	 in	 exchange	 for	 his guilty	plea. [¶ 6 ]		With	respect	to	the	initial	2017	indictment,	Gordon	pleaded	guilty to	one	count	of	aggravated	 trafficking	in oxycodo n e	and admitted	 to the	 two

3 This	statute	has	been	repealed	and	replaced	with	a	new	statute	that	provides	the	same maximum sentence

. See P.L.	 2019,	 ch.	 113,	 §§	 A

- 1,	 A

- 2	 (effective	 May	 16,	 2019)	 (cod ified	 at 17

- A	 M.R.S. § 1604(1)(A)	(2020) ).4 counts	of	criminal	forfeiture.		With	respect	to	the	2018	indictment,	he	pleaded guilty	to three count s of	aggravated	trafficking

— one in	heroin, one	in cocaine base,	and one	in cocaine; and two	counts	of	violating	conditions	of	release .		He also	admitted	to the	count	of	criminal	forfeiture. [¶ 7 ]		Gordon	selected	 the	 twelve

- year - cap	option,	and	 the	court	held	a sentencing	hearing	on	December	18,	2019.		In	its	sentencing	memorandum,	the
Sta te	argued	for	a	straight	twelve

- year	sentence	on	each	of	the	2018	aggravated trafficking	 charges	 with	 no	 period	 of	 probation	 and	 the	 imposition	 of mandatory	fines.		In	Gordon’s	memorandum	and	at	the	hearing,	he	argued	for a	sentence	of	ten	years	with	all	b ut	four	years	suspended	and	a	four

- year	period of	probatio n. [¶ 8 ]		Based	on	the	types	and	amounts	of	drugs	involved,	the	court	found that	 a	 basic	 sentence	 of	 twelve	 years	 was	 appropriate	 for	 each	 of	 the	 2018 trafficking	 charges. See 17

- A M.R.S.	 § 1252

- C(1)	 (2018). 4 The	 court	 then considered	 mitigating	 and	 aggravating	 factors	 to	 determine	 the	 maximum

sentence. See 17

- A	M.R.S.	§ 1252

- C(2)	(2018).		As	mitigating	factors,	the	court considered	Gordon’s	acceptance	of	responsibility,	his	psychiatric	conditio n,	and

4 As	part	of	a	recodification	of	Maine’s	sentencing	statutes,	17

- A	M.R.S.	§	1252

- C	was	repealed	and replaced. See P.L.	2019,	ch.	113 ,	§§	A

- 1,	A

- 2	(effective	May	16,	2019)	(codified	at 17

- A	M.R.S.	§	1602 (2020) ).5 his	family’s	support	of	him .		As	aggravating	factors,	the	court	considered	that Gordon	 had	 prior	 serious	 drug	 convictions	 and	 had	 trafficked	 in	 drugs	 to support	 himself.	 	 The	 court	 concluded	 that	 the	 aggravating	 and	 mitigating factors	balanced	each other	out,	and	it	set	a	maximum	sentence	of	twelve	years. Based	on	the	need	for	deterrence	and	prevention	of	drug	trafficking,	the	court determined	that	no	portion	of	the	period	of	incarceration	would	be	suspended.
See 17

- A M.R.S.	 §	 1252

- C(3)	 (2018).	 	 Th us,	 the	 court	 imposed a sentence	 of twelve	years, all unsuspended,	for	each	of	the	three	2018	aggravated	trafficking charges, with	 the	 sentences	 to	 run	concurrently, with	a	 $400	 noncumulative
fine. 5 [¶ 9 ]	 	 Gordon	 filed	 a	 motion	 with	 the	 trial	 court	 seeki ng	 to	 correct	 or reduce	 his	 sentences	 on	 the	 ground	 that	 the	 court	 had	 overlooked	 its	 own statement,	 made	 at	 the	 dispositional	 conference,	 that	 more	 lenient ,	 but unaccepted , sentenc ing	 proposals that each	 of the	 parties	 had	 offered	 were “within	the	realm of	reasonableness .” See M.R.U.	Crim.	P.	35.		Gordon	and	his

5 The	court	imposed	a	six

- month	sentence	for	each	of	the	two	charges	for	violating	conditions	of release,	to	run	concurrently	with	each	other	and	with	the	aggravated	trafficking	sentences.		For	the 201 7 aggravated	trafficking	charge,	the	court	imposed	a sentence	of	four	years,	to	run	concurrently with	 the	 twelve

- year	 sentences	 for	 the	 2018	 crimes,	 and	it	imposed	a	 $400	 fine.	 	 The	 court	 also entered	 judgments	 for	 the	 State	 on	 the	 201 7 and	 2018	 counts	 for	 criminal	 forfeiture.	 	 All	 other charges	were	dismiss ed.6 counsel	submitted	affidavits,	as	did	the	State,	to	summarize	what	had	happened during the	unrecorded	conference	held	on	August	20,	2019. [¶1 0 ]		The	court	denied	Gordon’s	motion,	ruling	that	th ere	had	not	been any	 mistake	 of	 fact	 on	 the	 court’s	 part	 regarding	 what	 had	 occurred	 at	 the dispositional	 conference	 and	 that	 the	 sentences	 ultimately	 imposed ,	 which

were consistent	 with	 the parties’ plea	 agreement as presented	 to	 the	 court,

were legal	 and appropriate.	 	 Gordon	 did	 not	 appeal	 from	 the	 judgment	 of conviction	or	from	the	ruling	on	the	motion	to	correct	or	reduce	the	sentence. [¶1 1 ]	 	 Upon	 Gordon’s	 application,	 the	 Sentence	 Review	 Panel	 granted Gordon	leave	to	appeal	his	sentences. See 15 M. R.S.	§	2152	(2020);	M.R.	App.	P.
20.
II.		DISCUSSION
A. Due	Process [¶1 2 ] Gordon	 argues	 that	 the	 court’s	 statements	 made	 at	 the dispositional	conference	rendered	the	twelve

- year	sentences	imposed	on	him unfair,	 in	 violation	 of	 his	 due	 process	 rights. 6 The	 United	 States	 and	 Maine

6 Gordon	did	not	raise,	and	we	do	not	address , any	issues	concerning	the	voluntariness	of	his	plea. A	judgment	of	conviction	may	be	challenged	on	the	ground	that	a	plea	was	not	entered	voluntarily, but	that	challenge	must	be	brought	on	post

- convict ion	review. See State	v.	Adams ,	2018	ME	60,	¶	12, 184	A.3d	875 .		Gordon	contends	only	that,	because	of	what	the	court	stated	during	the	dispositional conference,	the	sentences	ultimately	imposed	are	unfair	and	he	should	be	resentenced. The	potential pert inence	of part	of	the	discussions	at	the	dispositional	conference to	a	voluntariness determination7 Constitutions	 prohibit	 Maine’s	 government	 from	 depriving	 a	 person	 of	 life, liberty,	or	property	without	due	process	of	law.		U.S.	Const.	amend.	XIV,	§	1;	Me. Const.	 art.	 I,	 § 6

- A.	 	 We	 review	 issues	 of	 due	 process	 de	 novo. See	 S tate	 v. Williamson ,	2017	ME	108,	¶	21,	163 A.3d	127.		We	review	the	court’s	sentencing to	 determine	 whether	 the	 procedures	 employed	 “struck	 a	 balance	 between competing	concerns	that	was	fundamentally	fair.” State	v.	Mullen ,	2020	ME	56, ¶	21,	231	A.3d	429 (quotation	marks	omitted). [¶1 3 ] In	 a sentence	 review, we	 are “limited	 to	 consideration	 of	 the propriety	of	the	sentence	and	the	sufficiency	and	accuracy	of	the	information on	which	it	was	based. ” 7 State	v.	Reese ,	2010	ME	30,	¶	21,	991	A.2d	806.		In	this analysis,	“[w] e	look	to	whether	the	sentencing	court	disregarded	the	statutory sentencing	 factors,	 abused	 its	 sentencing	 power,	 permitted	 a	 manifest	 and unwarranted	 inequality	 among	 sentences	 of	 comparable	 offenders,	 or	 acted irrationally	or	unjustly.” I d. ; see 15 M.R.S.	§	2154	(2020). Because	Gordon	did not	bring	a	direct	appeal	from	the	judgment	of	conviction	or	from	the	court’s ruling	 on	 his	 motion	 to	 correct	 or	 reduce	 his	 sentences,	 we	 review	 only	 his

does	 not	 prevent	 us	 from	 reviewing	whether	 the	 sentence	was	 proper	 based	 on	 the	information available	to	the	court	at	sentencing

.
7 In	contrast,	when	a party	has	brought	a	direct	appeal	from	a	sentence,	we	review “the	legality, and	not	the	propriety,	of	the	sentence.” State	v.	Dobbins ,	2019	ME	116,	¶ 51,	215	A.3d	769

.8 contention	that	the	court	abused	its	sentencing	p ower	or	acted	unjustly	in	the sentencing	process,	in	violation	of	due	process. Reese ,	2010	ME	30,	¶	21,	991 A.2d	806. [¶1 4 ] To	ensure	that	all	terms	of	the	plea	agreement	are	understood	by the	parties	and	the	court	before	a	defendant	enters	his	plea, Rule	11	requires that	the	court	“inquire	as	to	the	existence	and	terms	of	a	plea	agreement,” M.R.U. Crim.	P.	11(d),	and	that	the	terms	of	a	plea	agreement	be	recited	in	open	court on	the	record, see M.R.U.	Crim.	P.	11A(b). In	reviewing	the	sentence	impose d based	 on	 a	 plea	 agreement	 that	 has	 been	 reached	 and	 memorialized	 in compliance	with	Rules	11	and	11A,	we	consider both	the	Rule	11	hearing	and the	sentencing	proceedings,	including	the	hearing	transcripts	and	the	materials submitted	to	the	court	before	s entencing. See,	e.g. , State	v.	Lord ,	2019	ME	82, ¶ 19,	208	A.3d	781. [¶1 5 ] T he record	of	the plea proceedings here	reflect s the	plain	terms	of the	plea	 agreement	 and	 the	parties’ unequivocal assent	 to	 those	 terms. The record	 of	 the	 sentencing	 reveals	 t hat	 the court	sentenced	Gordon	within	 the range	of	the	twelve

- year - cap	option	that	Gordon	elected	to	accept. T here	is	no basis	 for	 us	 to	 decide,	 based	 on	 off

- the

- record	 statements	 made	 during	 a9 dispositional	 conference, 8 that	 the	 plea	 agreement	in	 this case	was	 anything other	than	what	was	placed	on	the	record	in	open	court	at	the	time	of	Gordon’s plea. 9 Thus,	we	discern	no	injustice	or	violation	of	due	process	in	the	record properly	before	us. See	Reese ,	2010	ME	30,	¶	21,	991	A.2d	806.
B. Applicatio n	of	the	Sentencing	Statute [¶1 6 ] We	 next	 consider	 whether	 the	 court	 misapplied	 the	 sentencing statute	or	abused	its	sentencing	power	in	imposing	the	twelve

- year	sentences. Gordon	 also	 contends	 that	 the	 court	 misapplied	 the	 statute	 governing	 the determi nation	of	 the	 final	sentence	by	 failing	 to	consider	all	relevant	 factors,

8 The c oncurring o pinion focuses	on	the	unrecorded	discussions	at	the	dispositional	co nference four	months before	sentencing

. Rules	11	and	11A are	designed	to	obviate	the	need	for	this	kind	of evidence	on	sentence	review,	however,	by	requiring	that	the	court “inquire	as	to	the	existence	and terms	of	a	plea	agreement,”	and that	the terms of the	plea	agreement	be disclosed on	the	record	in open	court	to en sure	that	there	is	a	fully	integrated,	unambiguous	plea	agreement	and	that	the	State , the	defendant ,	and	the	court understand	its	terms. M.R.U.	Crim.	P.	11(d) ,	11A(b).		Consistent	with this purpose, the	sentences	imposed	fall	within	the	terms	of	the	plea	agreement	stated	in	open	court, and	Gordon	does	not	argue	that	the	plea	agreement	has	been	violated. Nor	did	Gordon	appeal	from the	order	denying	his	motion	to	correct	or	reduce	his	sentenc e. Thus ,	we	cannot	conclude	that any statements	made	at	the	dispositional	conference	are	properly	before	us	for	purposes	of	reviewing the	propriety	of	Gordon’s	sentence.

9 To	the	extent	that	Gordon	seeks	review of	the	consequences	of	the	court’s statements	made	in the	 dispositional	 conference,	 “[c]hallenges	 to	 a	 conviction	 after	 a	 guilty	 plea	 on	 grounds	 of inv oluntariness	 of	 the	 plea,	 lack	 of	 knowledgeability	 on	 the	 part	 of	 the	 defendant	 regarding	 the consequences	of	his	plea,	ineffective	assistan ce	of	counsel,	misrepresentation,	coercion	or	duress	in securing	 the	 plea,	 the	 insanity	 of	 the	 pleader,	 or	 noncompliance	 with	 the	 requirements	 of	 M.R. Crim. P.	11	are	collateral	and	may	be	pursued	only	by	post

- conviction	review	.	.	.	.” Adams ,	2018	ME 60, ¶ 11,	 184	 A.3d	 875 (quotation	 marks	 omitted); see 15	 M.R.S.	 §§ 2121

- 2132	 (2020) ;	 M.R.U. Crim. P. 65

- 75A

.10 particularly	his	family’s	support of	him and	the	ways	in	which	probation	would assist	him	with	his	mental	health	and	substance	use	issues. [¶1 7 ]		In	the	final	step	of	sentencing

— t he	step	at	issue	here

— “[t]he	court [must] finally	 determine	 what	 portion,	 if	 any,	 of	 the	 maximum	 term	 of imprisonment	should	be	suspended	and,	if	a	suspension	order	is	to	be	entered, determine	the	appropriate	period	of	probation	to	accompany	that	suspensio n.”
17

- A	 M.R.S.	 §	 1252

- C(3).	 	 In	 sentencing,	 the	 court	 must	 “articulate	 which sentencing	goals	are	served	by	the	sentence.” Reese ,	2010	ME	30,	¶	17,	991	A.2d 806.	 	 “We	 review	 the	 sentencing	 court’s	 analysis	 at	 each	 step	 to	 determine whether	it	disregarde d	the	relevant	sentencing	factors	or	abused	its	sentencing power.” State	v.	Hansen ,	2020	ME	43,	¶	27,	228	A.3d	1082	(alteration	omitted) (quotation	marks	omitted).		In	doing	so,	we	accord	heightened	deference	to	“the court’s	 determination	 whether	 to	 suspen d	 any	 portion	 of	 th[e]	 maximum period	in	arriving	at	the final sentence	imposed	on	the	offender	by	the	court.”
State	v.	Prewara ,	687	A.2d	951,	953	(Me.	1996)	(quotation	marks	omitted). [¶1 8 ]	 	 The	 goals	 of	 sentencing	 are	 set	 forth	in	 statute	 and are,	 amon g others, “[t] o prevent crime through the deterrent effect of sentences, the rehabilitation of convicted persons, and the restraint of convicted persons when required in the interest of public safety,” and “[t]o give fair warning of the11
nature of the sentences that may be imposed on the conviction of a crime.”
17

- A M.R.S.	 §	1151(1),	 (4)	 (2018). 10 Although	a	court	may	 order	a	period	 of probation	 if	 it	 determines	 that	 “the	 person	 is	 in	 need	 of	 the	 supervision, guidance,	 assistance	 or	 direc tion	 that	 probation	 can	 provide,”	 17

- A	 M.R.S. § 1201(2)	(2018),	 that	remains	in	 the	court’s	discretion,	and	a	court	will	not order	probation	if	it	“finds	that	such	a	sentence	would	diminish	the	gravity	of the	 crime	 for	 which	 that	 person	 was	 convicted,”	 17

- A M.R.S.	 § 1201(1)(D) (2018). 11 “The	court	is	not	required	to	discuss	every	argument	or	factor	that the	defendant	raises,	as	long	as	it	does	not	disregard	significant	and	relevant sentencing	factors.” Reese ,	2010	ME	30,	¶	34,	991	A.2d	806. [¶1 9 ]	 	 Befor e	 determining	 the	 sentences	 here,	 the	 court	 thanked	 the parties	for	their	“exhaustive	sentencing	memoranda”	and	indicated	that	it	had “carefully	considered”	the	memoranda	in	determining	the	sentence.		The	court then	set	a	basic	sentence	of	twelve	years	bas ed	on	the	significant	amounts	of cash	and	drugs	involved	and	the	types	of	drugs	that	Gordon	was	trafficking.		In determining	the	maximum	sentence,	the	court	explicitly	considered	mitigating

10 Title	17

- A	M.R.S.	§	1151	(2018) has	been	repealed	and	replaced. See P.L.	2019,	ch.	113 ,	§§	A

- 1, A

- 2	(effective	May	16,	2019)	(codified	at 17

- A	M.R .S.	§	1501	(2020) ).

11 Title	17

- A	M.R.S.	§	1201	(2018)	has	been	repealed	and	replaced. See P.L.	2019,	ch.	113 ,	§§	A

- 1, A

- 2	(effective	May	16,	2019)	(codified	at 17

- A	M.R.S.	§	1802	(2020) ).12 factors	such	as	the	supportiveness	of	Gordon’s	family,	including	r egarding	his mental	health,	but	it	found	that	these	mitigating	factors	were	offset	by	a	record of	 six	 serious	 drug	 convictions	 going	 back	 to	 2002	 and	 Gordon’s	 practice	 of supporting	himself	through	drug	trafficking. [¶ 20 ]		At	 the	 final	stage	of	sentenci ng,	which	is	at	issue	here,	 the	court identified	what	it	considered	to	be	the	crucial	sentencing	goals:	“the	prevention of	 crime	 through	 the	 deterrent	 effect	 of	 sentencing, ” and	 the	 giving	 of “ fair warning	of	the	nature	of	sentencing,	and	of	the	other	purp oses	of	sentencing.” Thus,	 the	court	based	its	 final	determination	not	 to	suspend	a	portion	of	 the sentence	or	order	a	period	of	probation	on	proper	sentencing	goals	primarily related	to	general	and	specific	deterrence. See 17

- A M.R.S.	§ 1151(1),	(4); se e also	Hansen ,	2020	ME	43,	¶	32,	228	A.3d	1082	(holding	that	the	court	did	not abuse	 its	 discretion	 in	 the	 third	 step	 of	 its	 sentencing	 analysis	 when	 it considered	all	goals	and	purposes	of	sentencing	and	noted	the	factor	that	was of	paramount	concern). [ ¶ 2 1]		Although	 the	court	did	not	 reference	 Gordon’s	mental	health	 or family	support	in	determining	whether	to	suspend	any	portion	of	the	sentences and	order	probation,	it	is	clear	from	the	court’s	consideration	of	those	facts	as mitigating	factors	that	the court	did	not	disregard	that	evidence.		Furthermore,13 the	court	explicitly	recognized	Gordon’s	argument	that	probation	would	make a	difference	for	him	upon	release.		The	court	considered	deterrence	to	be	the most	significant	sentencing	goal,	however,	when determining	whether it	should suspend	 any	 portion	 of	 the	 twelve

- year	 sentence	 for	 each	 crime	 and	 order probation

. See	Reese ,	2010	ME	30,	¶	34,	991	A.2d	806. [¶ 22 ]	 	 The	 court	 did	 not	 misapply	 sentencing	 principles	 or	 abuse	 its sentencing	authority	when	it determined,	based	on	the	information	provided at	 sentencing,	 that ,	 for	 the	purpose	 of	deterring	drug	 trafficking, concurrent , unsuspended	 twelve

- year	 sentences	 with	 no	 period	 of	 probation	 were appropriate	for	the	three	2018	aggravated	trafficking	convicti ons.		We	affirm the	sentences. The	entry	is: Sentences	affirmed.

JABAR,	J.,	concurring. [¶23]	 	 I	 agree	 with	 the	 Court’s	 decision	 to	 affirm	 the	 trial	 court’s sentences	and	its	reliance	on State	v.	Adams ,	2018	ME	60,	¶	12,	184	A.3d	875.14 [¶24] However,	 I	 write	 separately	 to	 discuss	 an	 issue	 surrounding	 a judge’s	role	in	plea	negotiations	that	we	should	address. [¶25]	 	 I	 believe	 that	 in	 this	 case	 the	 trial	 judge,	 although	 doing	 so unintentionally,	 misled	 Gordon	 and	 Gordon’s	 defense	 attorney	 when he indicated	that	he	thought	the	prosecution’s	recommendation	of	eight	years	and the	 defense’s	 recommendation	 of	 ten	 years	with	 all	 but	 six	 years	 suspended were	 both	 reasonable	 sentences.	 	 Gordon	 and	 his	 attorney	 relied	 on	 what	 I would	characterize	as	an	i ndication	of	the	range	of	sentences	in	which	the	judge might	impose	a	sentence	in	this	case.		Based	on	this	expression	by	the	judge, Gordon	chose	to	plead	guilty	with	an	agreed

- upon	cap	of	twelve	years.
A. Plea	Bargains	and	Judicial	Facilitation [¶26] In 1970,	in Brady	v.	United	States, the	United	States	Supreme	Court stated	 that	it	 “has	long	 been	 recognized”	 that	 a	 “ a	 guilty	 plea	is	 a	 grave	 and solemn	act	to	be	accepted	only	with	care	and	discernment.” 397	U.S.	742,	748 (1970). However,	the Brady Court also	stated	that	guilty	pleas	occurred	in	“well over	three

- fourths	of	the	criminal	convictions	in	this	country.” Id. at	752.		Since Brady ,	 this	 number	 has	 only	 continued	 to	 grow. See National	 Association	 of Criminal	 Defense	 Lawyers, The	 Trial	 Penalty:	 The	 Sixth	 Amendment	 Right	 to Trial	on	the	Verge	of	Extinction	and	How	to	Save	It 5	(2018)	(“[O]ver	the	last	fifty15 years,	trial	by	jury	has	declined	at	an	ever

- increasing	rate	to	the	point	that	this institution	now	occurs	in	less	than	3% of	state	and	federal	criminal	cases.		Trial by	jury	has	been	replaced	by	a	system	of	guilty	pleas	which	diminishes,	to	the point	 of	 obscurity,	 the	 role	 that	 the	 Framers	envisioned	 for	jury	 trials	as	 the primary	 protection	 for	 individual	 liberties	 and	 the principal	 mechanism	 for public	 participation	 in	 the	 criminal	 justice	 system.”	 (alteration	 omitted) (footnotes	omitted)	(quotation	marks	omitted)). [¶27]	 	 Judicial facilitation	 has	 a	 role	 in	 protecting	 the	 defendant’s individual	liberties.		For	a	long	time,	this	role	was	taboo	because “[t]he	unequal positions	of	the	judge	and	the	accused,	one	with	the	power	to	commit	to	prison and	 the	 other	 deeply	 concerned	 to	 avoid prison,	 at	 once	 raise	 a	 question	 of fundamental	fairness.		When	a	judge	becomes	a	participant	in	plea	bargaining he	brings	to	bear	the	full	force	and	majesty	of	his	office.		His	awesome	power	to impose	 a	 substantially	 longer	 or	 even	 maximum	 sentence	 in	 ex cess	 of	 that proposed	is	present	whether	referred	to	or	not.” United	States	ex	rel.	Elksnis	v. Gilligan ,	256	F.	Supp.	244,	254	(S.D.N.Y.	1966). See	also 5	Wayne	R.	LaFave	et al., Criminal	Procedure §	21.3(d)	at	895	(4th	ed.	2015) (“Some	years	ago	there

w as	a	general	consensus	that	trial	judges	should	not	participate	in	the	pretrial negotiations	which	influence	a	great	many	defendants	to	plead	guilty.”).16 [¶28] However,	 states	 began	 to	 recognize	 that	 judicial	 facilitation, although	 a	 risk	 because	 of	 the power	 the	 judge’s	 position	 holds,	 can	 be beneficial	to	running	an	efficient	court	system. See Nancy	J.	King	&	Ronald	F. Wright, The	 Invisible	 Revolution	 in	 Plea	 Bargaining:	 Managerial	 Judging	 and Judicial	 Participation	 in	 Negotiations ,	 95	 Tex.	 L.	 Rev.	 325 ,	 327	 (Dec.	 2016) (“What	once	were	informal,	sometimes

- illicit	interactions	between	judges	and parties	in	criminal	cases	have	in	many	 courts	evolved	into	highly	 structured best	practices	for	docket	management.”). [¶29]		In	2015,	we,	in	our	role	as	the	Su preme	Judicial	Court not sitting	as the	 Law	 Court,	 recognized	 the	 benefit	 of	 judicial	 facilitation	 and	 amended Rule 11A	 and	 adopted	 Rule	 18	 to	 allow	 the	 court	 to	 “participate	 in	 the negotiation	of	the	specific	terms	of	the	plea	agreement	in	the	manner	set forth in	 Rule	 18	 relating	 to	 dispositional	 conferences.”	 	 M.R.U.	 Crim.	 P.	 11A(a).
See M.R.U.	Crim.	P.	18.		In	Rule	18(b)	we	stated	that [t]he	 court	 shall	 have	 broad	 discretion	 in	 the	 conduct	 of	 the dispositional	conference.		Counsel	and	unrepresented	defe ndants must	be	prepared	to	engage	in	meaningful	discussion	regarding	all aspects	 of	 the	 case	 with	 a	 view	 toward	 reaching	 an	 appropriate resolution.		The	court	may	participate	in	such	discussions	and	may facilitate	a	plea	agreement	by	suggesting	or	addressi ng	a	specific aspect	of	the	matters	under	consideration. M.R.U.	Crim.	P.	18(b).17 [¶30] In	 adopting	 this	 preference	 for	 a	meaningful	 discussion	 toward reaching	 an	 appropriate	 resolution,	 we	 gave	 the	 court	 broad	 discretion. Although	 other	 states	 have	 gi ven	 direction	 to	 trial	 judges	 regarding	 their conduct	during	plea	negotiations,	we	have	not	had	the	chance	to	comment	on the	limits	of	that	broad	discretion.		We	should	do	so	in	this	case.
B. Sentencing	Inclination [¶31] In	 2013,	 the	 California	 Supreme	 Court	 explained	 that	 indicated sentencing,	 also	 referred	 to	 as	 sentencing	inclination,	 served	 a	 different	 role than	 the	 plea	 bargain	 because	 “the	 charging	 function	 is	 entrusted	 to	 the executive”	branch	 of	government. People v. Clancey ,	299	P.3d	131,	135	 (Cal. 2013) .	 	However,	 the	 court	 could	 “indicate	what	 sentence	it	will	impose	if	 a given	set	of	 facts	is	confirmed,	irrespective	of	whether	guilt	is	adjudicated	at trial	or	admitted	by	plea.” Id. (alteration	omitted)	(quotat ion	marks	omitted). [¶32] The	California	court	provided	instruction on	how	and	when	 the court	could	make	these	indications,	and	the	instruction	was	important	because of	the	“prospect	of	prosecutorial	intransigence	and	judicial	overreach[	].” Id. at 138 .		Its	first	instruction	is	especially	relevant	when	considering	the	facts	of	this

case: [I]n order to preserve the executive’s prerogative to conduct plea negotiations, a trial court generally should refrain from18 announcing an indicated sentence while th e parties are still negotiating a potential plea bargain. The “horse trading” between the prosecutor and defense counsel is the process by which the vast majority of criminal cases are disposed. Absent unusual circumstances, there is little need for a court to articulate its view of the case until the parties are satisfied that further negotiations are unlikely to be productive. Even	 then,	 a	 trial	 court	 may prudently	 refrain	 unless	 the	 court	 is	 convinced	 the	 punishment proposed	 by	 the	 People	 is	 not	 an appropriate	 sanction	 for	 the particular	defendant	and	the	specific	offense or	offenses.
Id. (citations	omitted).		The	California	court	then	instructed	the	trial	courts	to “consider	whether	the	existing	record	.	.	.	is	adequate	to	make	a	reasoned	and info rmed	judgment,”	to	“not	offer	any	inducement	in	return	for	a	plea	of	guilty or	nolo	contendere,”	and	to	“not bargain with	a	defendant	over	the	sentence	to be	imposed.” Id .	at	138

- 39	(quotation	marks	omitted). [¶33]	 	 In State	 v.	 Sanney, the	 Hawaii	 Suprem e	 Court	 agreed	 with	 the California	approach	to	sentencing	inclination.		404	P.3d	280,	287	(Haw.	2017)

. In	that	case	the	defendant	did	not	have	a	plea	agreement	with	the	prosecutor but	he	“agreed	to	change	his	plea	after	his	attorney	said	the	judge	was	inclined to	sentence	him	 to	probation	with	up	 to	eighteen	months	in	jail	(of	which	he had	already	served	ab out	ten	months).” Id. at	283. [¶34] At	 that	 point,	 the	 court	 held	 a	 change	 of	 plea	 hearing	 and	 the defense	attorney	stated	on	the	record	that	he	“did	relay	to	[the	defendant]	that the	 Court	 ha[d]	 given	 us	 an	inclination	 for	 probation	in	 this	 case	with	 up to19 18 months	in	jail,	and,	you	know,	based	on	that	inclination	[the	defendant	was] intending	 to	 change	 his	 plea.” Id. At	 the	 change	 of	 plea	 hearing	 the	 court informed	the	defendant	that	“an	inclination	is	not	a	promise”	and	that	the	court would	 still	 co nsider	 the	 presentence	 report	 and	 the	 arguments	 at	 the sentencing	hearing. Id. [¶35] On	appeal, although	finding	no	error	in	the	case, the	Supreme	Court of	Hawaii took	 the	opportunity	 to	adopt	a	plea	withdrawal	standard	in	cases that	involve	the	court giving	a	sentencing	inclination	but	later	deciding	not	to follow	through	with	it.		The	new	rule	states, [I]f a defendant pleads guilty or no contest in response to a court’s sentencing inclination, but the court later decides not to follow the inclinatio n, then the court must so advise the defendant and provide the defendant with the opportunity to affirm or withdraw the plea of guilty or no contest. Id. at	291. 12 See	also Haw.	R.	Penal	P.	32(d); State v. Jim ,	574	P.2d	521,	523	(Haw. 1978) (“What	 the	manifest	injustice	rule	seeks	 to	avoid	is	an	opportunity	 for

12 In	adopting	this	rule,	t he	Hawaii	Supreme	Court	referenced	the American	Bar	Association’s	Plea Bargain	 Standard 14

- 2.1 for “ Plea	 withdrawal	 and	 specific	 performance ,” which	 allows	 for	 a withdrawal	of	a	guilty	plea	when	it	is “ necessary	to	correct	a	manifest	injustice.” State v. Sanney ,	404 P.3d	280,	288	( Haw. 2017) (quotation	marks	omitted)

. The	court	recognized	that	the	standard	did not	explicitly	refer	to scenarios	when	judges	provide sentencing	inclinations , but	the	court	reasoned that	“t he	ABA	Standard	applies,	however,	even	when	a	court	has	not	agreed	 to	be	bo und,	but	has merely	 indicated	 a	 tentative	 inclination	 to	 follow	 a	 plea	 agreement,	 including	 sentencing recommendations. Stating	a	tentative	inclination	to	follow	the	sentencing	recommendations	of	a	plea agreement	is	analogous	to	giving	a	sentencing	inclin ation	without	a	plea	agreement. Thus, the	ABA Standard	can	be	analogized	to	situations where	a	court	changes	its	sentencing	inclination. ” Id. at 288

- 89

.20 the	defendant	to	test	the	severity	of	sentence	before	finally	committing	himself to	 a	 guilty	 plea.”	 (quotation	 marks	 omitted)). One	 of	 its	 stated	 reasons	 for adopting	this	standard	wa s	that	“t he	new	rule	will	foster	public	confidence	in the	judicial	system,	as	defendants	will	no	longer	question	whether	they	were somehow	misled	into	entering	into	a	change	of	plea	based	on	a	judge’s	stated sentencing	inclination.” Sanney, 404	P.3d	at	291.
C. Gordon’s	Case [¶36]		In	this	case,	the	court	held	a	dispositional	conference	in	chambers that	was	unrecorded;	however,	the	parties	agree	on	what	was	said	during	the conference.		The	State	offered	Gordon	a	plea	that	would	impose	an	eight

- year straight	sentence	and	mandat ory	fines,	and	Gordon’s	counsel	represented	that Gordon	would	agree	to	a	sentence	of	ten	years	with	all	but	six	years	suspended and	a	period	of	probation.		After	this,	the	judge	stated	that	both	of	the	proffered dispositions	 were	 either	 “within	 the	 realm	 o f	 reasonableness”	 or	 that	 “both sides	 were	 being	 reasonable.”	 	 The	 judge	 then	 asked	 what	 the	 State	 would propose	for	a	“cap”	agreement	that	would	allow	Gordon	to	argue	for	less.		The State	stated	that	it	would	recommend	twelve	years	plus	applicable	fines	f or	any cap	agreement.21 [¶37]	 	 After	 the	 dispositional	 conference,	 Gordon’s	 counsel	 consulted with	 Gordon.	 	 Gordon’s	 counsel	 advised	 him	 that	 he	 “believed	 that	 the

worst
- case	scenario	would	be	that	the	judge	would	impose	the	8

- year	sentence .	.	.	since	the judge	had	said	that	the	State’s	offer	was	reasonable,”	and	counsel recommended	that	Gordon	choose	the	twelve

- year - cap	option	and	argue	for	a lesser	sentence.		Gordon’s	counsel	advised	him	that	the	best	he	could	hope	for was	ten	years	with	all	but	six	year s	suspended	and	probation	with	conditions. Gordon	chose	 to	proceed	with	 the	cap	recommendation,	as	long	as	 the	judge who	conducted	the	dispositional	conference	was	the	sentencing	judge. [¶38]	 	 At	 the	 Rule	 11	 hearing	 the	 prosecutor	 explained	 that	 the	 ple a agreement	 was	 not	 completely	 negotiated	 and	 that	 Gordon	 was	 given	 the option	of	proceeding	with	the	State’s	recommendation	of	eight	years	straight or	a	recommendation	of	a	twelve

- year	cap,	and	Gordon	would	be	able	to	argue for	less.		The	court	 then	asked Gordon	if	he	understood	 the	options	and	 that “one	is	one	that	would	allow	[him]	and	[his	attorney]	to	argue	for	a	lesser	period of	 time,	 but	 that	 up	 to	 12	 years	 could	 be	 imposed.”	 	 Gordon	 stated	 that	 he understood. [¶39]		Gordon	later	indicated	to	the	S tate	that	he	was	going	choose	the option	of	a	twelve

- year	cap	that	would	allow	him	to	argue	for	less.		This	choice22 was	obviously	based	on	what	the	judge	had	expressed	during	the	dispositional conference	as	a	reasonable	sentence	and	explains	why	Gordon	indi cated	to	his attorney	 that	he	only	wanted	 to	enter	a	guilty	plea	in	 front	of	 the	judge	who handled	the	dispositional	conference. [¶40]	 	 At	 the	 sentencing	 hearing,	 the	 State	 argued	 for	 a	 straight twelve

- year	 sentence	 with	 no	 period	 of	 probation	 and	 the	 im position	 of mandatory	fines.		Gordon	argued	for	a	sentence	of	ten	years	with	all	but	four years	suspended	and	a	four

- year	period	of	probation.		The	parties’	presentation of	recommendations

— to	ask	for	more	or	less	than	what	they	were	willing	to accept	at	th e	dispositional	conference

— is	a	common	sentencing	practice.		The prosecutor	wanted	an	eight

- year	sentence	and	therefore	asked	for	a	sentence of	more	than	eight years.		The	defense	wanted	a	ten

- year	sentence,	with	all	but
six years	suspended,	and	so	he	requ ested	a	ten

- year	sentence	all	but	four	years suspended.	 	 The	 judge	 was	 well	 aware	 of	 what	 the	 parties’	 positions	 were before	they	agreed	to	the	twelve

- year	cap.		The	State	and	the	defense	attorney both	 knew	 that	 the	judge	indicated	 that	 the	State’s	 recomme ndation	 of	eight years	was	a	 reasonable	position	and	 the	defendant’s	 recommendation	 of	 ten years	with	all	but	six	years	suspended	was	also	a	reasonable	recommendation.23 [¶41]	 	 The	 Court	 in	 its	 opinion	 did	 not	 address	 whether	 the	 judge’s statements	 during	 t he	 dispositional	 conference	 regarding	 reasonable sentences	 constituted	 an	 expression	 of	 a	 “sentencing	 inclination”	 that	 might have	misled	Gordon	into	entering	a	plea	of	guilty.		I	believe	that	the	judge	did give	 an	inclination	 of	 at	least	 the	 range	 of	 sent ences	within	which	 he	would impose	Gordon’s	sentence	upon	Gordon’s	guilty	plea.		Although	the	judge	did not	express	a	specific	sentence	during	the	dispositional	conference,	he	did	state that	 the	 State’s	 recommendation	 of	 eight	 years	 was	 reasonable	 and	 the defense’s	recommendation	of	 ten	 years	with	all	but	six	years	suspended	was reasonable.		Anyone	who	has	participated	in	these	types	of	negotiations	knows that	 when	 a	 judge	 indicates	 that	 eight	 years	 and	 six	 years	 are	 reasonable sentence	 recommendations,	 the n	 the	 judge	 is	 willing	 to	 accept	 a	 sentence between	 the	 two	positions	in	order	 to	 facilitate	a	plea	agreement.		When	 the parties	cannot	agree	to	a	specific	sentence	but	are	not	far	apart,	as	was	the	case here,	it	is	a	common	practice	for	the	judge	to	sugge st	that	the	parties	agree	to	a cap,	which	 the	judge	did	here,	and	 then	he	would	impose	 the	 final	sentence, usually	something	within	the	range	that	both	parties	had	recommended.		It	was not	unreasonable	for	Gordon’s	attorney	to	come	to	this	conclusion	and	a dvise Gordon	as	such.24 [¶42]	 	 If,	 during	 the	 sentencing	 hearing, additional	 information	 is revealed	 about	 Gordon	 that	 the	 judge	 did	 not	 have	 at	 the	 time	 of	 the dispositional	conference,	it	is	certainly	understandable	that	the	judge	may	no longer	 believe	 t hat	 a	 sentence	 between	 eight	 years	 and	 six	 years	 was reasonable.	 	 Here,	 there	 is	 nothing	 on	 the	 record	 indicating	 what	 the	 judge knew	about	Gordon’s	background	and	record	at	 the	 time	of	 the	dispositional conference	 and	 how	 it	 compared	 with	 what	 he	 learned at	 the	 time	 of sentencing.	 	 However,	 if	 the	 judge	 learned	 additional	 information	 about	 the case	and	Gordon	during	the	sentencing	hearing	that	he	did	not	know	at	the	time of	 the	dispositional	conference	and	 this	information	changed	his	assessment regarding the	reasonableness	of	the	parties’	recommendations,	then	the	judge should	have	informed	Gordon	that	he	had	changed	his	initial	assessment	and he	should	have	given	Gordon	the	opportunity	to	withdraw	his	guilty	plea. See Sanney, 404	P.3d	at	290; Clancey ,	29 9	P.3d	at	135. [¶43]		The	twelve

- year	sentence	imposed	by	the	judge	is	not	within	the “realm	 of	 reasonableness”	 expressed	 by	 the	 judge	 during	 the	 dispositional conference.		It	is	apparent	that	the	judge’s	analysis	regarding	what	he	thought was	 a	 reasonab le	 sentence	 changed.	 	 The	 sentence	 imposed	 by	 the	 judge	 is twice	 what	 Gordon’s	 attorney	 recommended	 during	 the	 dispositional25 conference	 and	 50%	 higher	 than	 what	 the	 State	 recommended	 during	 the dispositional	conference.		If	at	the	time	of	the	dispositional conference	the	judge was	 thinking	 that	 twelve	years	was	a	possible	sentence,	 then	he	should	have not	expressed	the	opinion	that	ten	years	with	all	but	six	years	suspended	was	a reasonable	recommendation.		If	the	judge	learned	additional	information	at	the time	 of	 the	 sentencing	 that	 changed	 his	 initial	 assessment	 regarding	 the reasonableness	 of	 a	 six

- year	 sentence,	 then	 he	 should	 have	 indicated	 so	 to Gordon	before	imposing	the	sentence. [¶44]		Although	the	judge	did	not	indicate	a	specific	sentence,	when	h e expressed	 his	 opinion	 that	 the	 State’s	 recommendation	 and	 Gordon’s recommendation	were	within	 the	 realm	 of	 reasonableness,	 he	 did	 provide	 a sentencing	inclination	that	facilitated	the	guilty	plea. [¶45]		With	Gordon’s	extensive	criminal	record,	the	cou rt	did	not	abuse its	discretion	by	sentencing	Gordon	to	twelve	years.		But	for	the	fact	that	Gordon was	misled	by	 the	judge’s	statement	during	 the	dispositional	conference,	 the judge	 properly	 sentenced	 Gordon	 using	 the Hewey analysis. State	 v.	 Hewey,
622 A.2d	1151 (Me.	1993). [¶46] We	 should	adopt	 the	 standard	 set	by	Hawaii	and	California	 and hold	 that	 if	 the	 judge	 expresses	 a	 sentencing	 inclination	 and	 the	 defendant26 relies	on	that	in	accepting	a	guilty	plea,	then	if	the	judge	changes	his	mind	from that sentencing	 inclination	 he	 must	 advise	 the	 defendant	 of	 his	 change	 of inclination.		 If	 the	request	 to	withdraw	a	plea	is	made	before	 the	sentence	is imposed,	then	“the	motion should be granted if the defendant has presented a fair and just reason for his re quest and the State has not relied upon the guilty plea to its substantial prejudice

. ” Sanney, 404 P.3d at 290 (quotation marks omitted). If the request to withdraw is made after the sentence is imposed, then the defendant must prove that a manifest injustice has occurred. Id. I do believe that judges play a very important role in facilitating p lea agreements, and it is

not something we should discourage; however, judges must be aware that their

comments can have a significant impact on a defendant’s decision to enter a guilty plea, especially if the judge makes a quantitative or qualitative expr ession regarding any particular sentence.
D. Conclusion [¶47]		In	this	case	the	defense	did	not	present	a	motion	to	withdraw	the guilty	plea	and	any	challenges	to	a	conviction	on	the	ground	of	involuntariness of	the	plea,	misrepresentation,	coercion,	or duress	in	securing	the	plea	must	be left	to	post

- conviction	review	pursuant	to	Title	15	M.R.S.	§§	2121

- 2132	(2020). I	agree	with	the	Court	that	we	have	no	choice	but	to	affirm.27

Brad	C.	Grant,	Esq. (orally) ,	Ferris,	Gurney,	Grant	&	Crook	PA,	Waterville,	 for appellant	Mario	Gordon Aaron	 M.	 Frey,	 Attorney	 General,	 and	 Katie	 Sibley,	 Asst.	 Atty.	 Gen. (or ally) , Office	of	the	Attorney	General,	Augusta,	for	appellee	State	of	Maine

Kennebec	County	Unified	Criminal	Docket	docket	numbers	CR

- 2016

- 3007	and	CR

- 2018

- 593 F OR C LERK R EFERENCE O NLY