State of Maine v. Keith Merchant - Sentence Appeal

MAINE SUPRE ME JU DICI AL CO URT Reporter of De cisions Deci sion: 20 26 ME 17 Docket: SRP - 24 - 439 Argued: September 11, 2025 Decided: Februar y 2 6, 2026 Panel: STANFILL, C.J., and MEAD, CONNORS, LA WRENCE, DOUGLA S, and LIPEZ, JJ. STATE OF MAINE v. KEITH MERC HANT LAWREN CE, J. [¶1] In this discretionary sentence appeal, Keith Merchant appeals from a sentence impose d by the trial court (Somerse t County, Benson, J.) after his guilty pleas t o two counts of gross sexual assault, three counts of unlawful sexual contact, two counts of sexual abus e of a minor, and one count of violation of condition of rel ease. Merchant argues t hat the sentence violated his cons titut iona l rig ht ag ai nst dou bl e jeopardy; that th e c our t faile d to cons ider whether to impose a consec utive sentence during the appropr iate part of the sen tencin g analysis; and that the sentence is disproportionate and excessive. We agree the sentence must be vaca ted because the court erred in its sentencing analysis and remand for the cou rt to resentenc e Merchant.

2 I. BACKGROUN D [¶2 ] On Decembe r 15, 202 3, Merchant was c harged by indictment for sexually assault ing his nie ce, the vic tim, on numerous occasions begin ning when she was twelve years old. The grand j ury ind icted Merch ant on the following eight offenses: • Count 1: gross sexual assau lt (Class A), 17 - A M.R.S. § 2 53(1)(B) (2025), on or be twe en Octobe r 1, 2021, and Mar ch 3, 20 22; • Count 2: un lawfu l sexual con tact (Class B), 17 - A M.R.S. § 255 - A(1)(F) (202 5), on or betwee n Octob er 1, 2021, an d March 3, 202 2; • Count 3: gross sexual assault (Class A), 17 - A M.R.S. § 25 3(1)(B), o n or between March 4, 202 2, and Marc h 3, 202 3; • Count 4: un lawfu l sexual con tact (Class B), 17 - A M.R.S. § 255 - A(1)(F), on or between March 4, 20 22, and Ma rch 3, 2023; • Count 5: sexual abuse of a minor (Class C), 17 - A M.R.S. § 254(1)(A - 1) (20 25), o n or betwee n Mar ch 4, 2 023, and July 31, 2023; • Count 6: sexual abuse of a minor (Class C), 17 - A M.R.S. § 254(1)(A - 2), on or between March 4, 2023, and Jul y 31, 202 3; • Count 7: unlawful sexual contact (Cl ass D), 17 - A M.R.S. § 255 - A(1) (F - 2), on or between March 4, 20 23, and July 31, 202 3; and • Count 8: violation of condition of release (Class E), 1 5 M. R. S. § 1092(1)(A) (202 5), on or be tween Marc h 4, 2023, a nd July 31, 2 023.

3 The co urt acce pted Mer chan t’s g uilty ple a s t o all eight charges on August 13, 20 24, an d sche duled a sente ncing hea ring f or A ugust 27, 2024. [¶3 ] At t he se nten cin g hearin g, t he cour t heard tes timo ny fr om the le ad dete ctive 1 who i nvestigated the allegations against M erchant and h eard unsworn state ment s f rom the vi ctim, the vic tim’s mot her (Merch ant’s sister), and the victim ’s gra ndm other (Merchant’s moth er). [¶4 ] The court began its senten cing analysis by laying ou t the procedure set for th in State v. He wey, 622 A.2d 11 51 (Me. 1 993), an d codif ied in 17 - A M.R.S. § 1602 (2025). It w ent on t o not e the complexity of this case because of the m ult iple e pis ode s of crim inal con duct, re quir ing cons ide ration of whe ther the sentences should be imposed consecutively under 17 - A M.R.S. § 1608 (2025). [¶5 ] Addressi ng the in divi du al counts, the cour t began with Coun t 1. I t noted that although there were no aggravati ng factors unde r 17 -A M.R.S. § 253 -A (3) (2025) that it was req uir ed t o cons ider, there we re fac tors in tr insi c to th e gross sexual assault i n this c o u nt that went to the na ture and seriousness of the offense. Those factors included the age of the victim, the position of trust 1 The detective te stified t hat the sexual as saults occurre d over a per iod of thr ee to four year s, a time d urin g which there were repeated offense s, and that th e detect ive felt that it was a situati on where Merch ant groomed the victim and took advan tage of her lack of a fat her figure.

4 Merchant had, the fact that there were multiple incident s over a period of several years, the use of bribery, the secrecy of the co nd uct, t he lack of concern for pregnancy risks, and the attempts to manipulate the victim even after s he had been i nterviewed by police. T he court also considere d that there was no physical force or vio lence used and th at the sexual assault perpetrated in this case was extremely bad, but not the ve ry worst kind of thi s offense. It se t the basic sentence on Count 1 a t eig hteen years ’ imprisonment. [¶6 ] The co ur t then moved on to the se cond s tep in the Hew ey analysis. It considered the ag gravating factors specifi c to Mer cha nt ’s case, inc ludin g the enormous impact not only directly on the victim but also on h er family, as well as the mitigating factors of M erchant’s methamphetamine use, exper ien cing a head injury or multiple traumatic b rain injuries, being se xu al ly abuse d a s a child, and ultima te ly accept i ng res ponsibility for his actio ns. T he co urt adj uste d the s enten ce to twenty years’ impri sonment on Count 1, findin g t hat t he aggra vat ing fa ctor of victim imp act out weighe d the m itig atin g fac tors. Finally, in the thir d s tep of the H ewey analysis, aft er considerin g the purposes of sentenc ing under 17 - A M.R.S § 1501 (20 25), 2 the co urt dete rm ined tha t none 2 Title 17 - A M.R.S. § 1501 (8) - (9) were amended in 2021 and 2023 but the amendme nts do no t affect this appeal or t he analy sis done by the sente ncing court. See P.L. 2021 ch. 170, § 1 (effe ctive Oct. 18, 2021); P.L. ch. 174, § 1 (effective O ct. 18, 2021); P.L. 202 1 ch. 366, § 26 (ef fective

5 of the twenty years would be suspended b ut note d its in tentio n to im pose a period of supervise d release rather than probation. See 17 - A M.R.S. § 1881(2) (2025). [¶7 ] The court then moved to Coun t 3, the second of the two gross sexual assault charges, and stated tha t the same analysis it had conducte d in Co unt 1 applied, but it th en imposed a di fferent sentence. Th e c ou rt sentenced Merchant to ten years’ imprisonment to be served consecutively to Cou nt 1 and, again, it suspended none of the sentence. The cour t exp lained tha t it was imposing consecutive sentences on Count 1 and Count 3 because Count 3 was a separate criminal episode. See 17 - A M.R.S. § 1608(1)(A). It s tated that, although i t could im pose a completely s u spended sentence, it declined to do so, instead impos ing ten years of super vised release at the conclusion of Merchant ’s ten yea rs’ imprisonment on Count 3. See 17 - A M.R.S. § 1881(2). This mad e Merchant’s sentence on Count 3 ten years’ imprisonment followed by ten years of supervised release. [¶8 ] On th e remaining c ounts, the court imposed f ive years’ impriso nment on Count 2, five ye ars’ imprisonment on Count 4, two years’ impriso nment on Count 5, two years’ imprisonment on Count 6, six m on ths’ Oct. 18, 2021); P.L. 2021 ch. 647, §§ B - 33, B - 65 (effe ctive Jan. 1, 202 3); P.L. 2023 ch. 430, § 2 (effe ctive Oct. 25, 2023).

6 impriso nment o n Count 7, and ninety d ays’ impriso nment on Cou nt 8, al l to be served co ncurrent ly with the s enten ce o n C ou nt 1. [¶9 ] Merchant filed a motion to extend the dead line for filing an appeal of his sen tence, w hic h was g ran ted. M erchant timely applied f or l eave to appeal his s enten ce, and the Sentence Revie w Panel granted his application on November 21, 2024. See M.R. App. P. 2B(b)(1), 20; 15 M.R.S. § 2 151 (2025). II. DISCUSSIO N [¶10 ] Merchant argue s that the court erred wh ile con ductin g its Hewey analy sis. We agre e that the co urt err ed, alt houg h in a dif fe ren t manner tha n Merchant argue s. The cou rt erred when it adopted th e exact s ame Hewey analysis for Count 3 as was articulated for Cou nt 1 but then imposed a sentence on Count 3 different fro m the sentence that i t i mposed on Count 1. [¶11 ] “[W]e rev iew the s enten cing c ourt’s d eterm inatio n of the b asic sentence de novo for misapplication of legal principles and its determ ination of the maximum sentence for ab use of disc retion.” State v. Plummer, 2020 ME 143, ¶ 10, 243 A. 3d 118 4 (quo tation m arks o mitted). “ [W]e review the senten cing court’s analysis at each step to determine whether it disregarded the relevant sentencing factors or abused i ts sentencing po wer.” Id. (alteration and quot ation marks omitte d).

7 [¶12 ] When crafting an appropriate individua lize d sen tence, the court util izes a three - s te p framew ork commonl y know n as the He w ey analysis and codif ied at 17 - A M.R.S. § 1602. See He we y, 622 A.2d at 1154 - 55. Step one requires the court to determine the basic sentence by considering the nature and seriousness of the offense. 17 - A M.R.S. § 1602(1)(A). Step two requi res the court to det erm ine the ma ximum per iod of inca rcer atio n by l ookin g a t the relevant aggravati ng and mitigating sentenci ng fact ors. Id. § 1602(1)(B). Finally, step three re quires the co urt to deter mine “what p ortion, if a ny, of the maximum t erm of impri sonment u nder [step two] sh ould be suspended.” Id. § 1602 (1) (C). In cases where there are m ultiple criminal episodes, the sen tencin g co urt ca n constr uct an aggr egate se nte nce by choosing the mos t serious representative counts, often referred to as the primar y counts, to serve as the foundation of th e sentence. State v. Downs, 200 9 ME 3, ¶ 14, 9 62 A. 2d 950. A sentencing court can impose consecutive sentences 3 on the primar y coun ts if it f inds a s tatu tory bas is to do so. Id. ¶ 29; 17 - A M. R.S. § 1608(1). In crafting an aggregate sen tence with pri mary counts, the sentenci ng court mus t perform a separate Hewey analysis, going through eac h of the three steps, fo r each primary c ou nt that it determines will run consecutively to another cou nt. 3 A consec utive s entence is one “invol ving i mpris onment t hat im mediat ely fo llo ws in time anot her sentence involvi ng imprisonm ent.” 17 - A M.R.S. § 2(5 - D) (2025).

8 Downs, 2009 ME 3, ¶ 14, 96 2 A.2d 95 0; see Sta te v. Chase, 202 5 ME 90, ¶ 29, 345 A.3d 183. [¶13 ] The procedure follow ed by the sentenci ng co u rt i n State v. Chase provides a model of the proper way in which a court should issue an aggregate sentence in c ases where there are multiple episodes of criminal conduct. C hase, 2025 ME 90, ¶ 29, 345 A.3 d 183. In Chas e, the defendant was charged with n ine coun ts invo lving t hre e diff ere nt crim inal episodes. Id. ¶ ¶ 4-6, 8. There, the sen tencin g court began by d iscus sing the se nten cing fac tors se t for th in se ction 1501 and then conti nued by group ing the c ou nt s by dat e, with each of the primary cou nts being a conviction of gross sexual assault. Id. ¶¶ 8, 11 - 12. At the o utse t and before moving on to the individual coun ts, t he court determined that “ [t]o ac hieve the goa ls o f se nten cing,. . . t he three gr oups of sentences would run con se cutiv ely due to t he se rio us and heinous n atu re o f the multipl e crimin al e pis odes.” Id. ¶ 12 (c iting 17 - A M.R.S. § 160 8(1)(D)). The court in Cha se then moved on to each of the pr imary counts, conducting a separ ate Hewey analysis for each. Id. ¶¶ 13 - 15. Eac h Hew ey analysis yielded a different sentenc e, an d the court carefully expla ined why th er e was an increase in eac h sentenc e during step two of ea ch analysis. Id. ¶¶ 13 - 15, 29.

9 [¶14 ] In Mer chant’ s case, the co urt similarly began by reco gniz ing th e sentencing factors in section 15 01 and not ing the p oten tial f or issuin g consecutive sentences due to t he multiple episodes of crim inal conduct. It moved on to t he analysis for Co unt 1, the first primary count of gross sex ual assault, by c onsidering the factors t hat pertained to the natu re and seriousness of the offens e and sett ing a bas ic se nte nce of eighteen y ears’ impr isonment. 4 Next, t he court proceeded to identi fy and weig h both th e aggravating and mitig ating factors and set the maximum sentenc e of incarceration at t w e n t y years’ i mprisonment. The court then moved on to the third and final step of the analysis, where i t determined that none of the twenty years’ imprisonment would be suspended but indicated its intent to impose supervised release, rather than probation, on Cou nt 3. 5 Ultimately, the final sentence was twenty 4 Merchant ar gues that t he court er red by co mbining condu c t from Co unts 1 and 3 when it determined t he basic sentence o f Count 1, t hus violating his right to be free from double jeopar dy under the Main e and United States C onstit ution s. A court may consid er o the r off ense s whe n set tin g the ba sic sent ence if it is consid ering the natur e of t he spe cifi c offen se as being p art of a large r ser ie s of activity that bears on the seriousne ss of the offe nse at issue. See e.g., State v. Lor d, 2019 M E 82, ¶ 34, 208 A.3d 781. He re, the court consi dered the larger ti meframe and multi - y ear span of cond uct in order to analy ze the natu re and serio usness of t he offen se in Count 1 in the c ontext of the series of sexual assau lts. Theref ore, the co urt proper ly considered the conduct that surround ed Count 1 and not extrinsic a ggravatin g factors like the nu mber of offenses. Id.; see also Downs, 2009 ME 3, ¶ 20, 962 A.2d 950. 5 Merchant argues th at the court er red when it faile d to cons ider whether to impo se consecutiv e sentences bef ore moving on to the third step in the Hewey analysis on C ount 1, co ntrary to our guidance in Stat e v. Stanislaw, 2013 ME 4 3, 65 A.3d 1242. B ecause t he court i ndicated that its in tent to impose a period of sup ervised release on Count 3 shaped its deter m ination in the third step of the Hewey ana lysis on Count 1, it had to impose consecutiv e sentenc es on Coun ts 1 and 3 to av oid an illegal split sentence on Count 1. See 17 - A M.R.S. § 1 881(2). T herefore, although not clearly

10 years’ i mprisonment on Count 1. This w as a proper exer cise of the court’s discretion in following the sentenc ing procedure, and we d iscern no error. [¶15 ] The same cannot be said, how ever, for the sentence imposed o n Count 3. The cour t applied the same “general senten cing conclusions rea ched in ar riv ing a t the sente nce in Co unt 1” to Coun t 3. It reasoned that Count 1 occurred over the course of one year a nd C ount 3 occurred over t he course of another year, and thus the same a na ly si s on C ou nt 1 wou ld pertain t o C oun t 3. Yet, while ostensibly relying on the same r easons articulated in its analysis on Count 1, the court then imposed a sentence of ten y ears’ imprisonment with none of it suspende d on Count 3. Consistent with its inte nt state d during the analysis on Count 1, the c our t di d impose a ten - year period of superv ised release, making the final sentence on Count 3 ten years’ impris onment followed by a ten - year period of supervised release. [¶16 ] The cour t did no t draw any di stinction between the two primary counts of gross se xual assault that would ex plain the decision to impose tw e nt y years’ imprisonmen t on Count 1 but ten years ’ imprisonment o n C oun t 3. I t i s logic ally in cons istent t hat the same Hew ey analysis for the same criminal cond uct committe d by t he same defen dant would resu lt in tw o diffe rent articulated, the court in fact deter mined at the appropriat e p oint i n its sentencing analysis that the senten ces would be c onse cutiv e.

11 sentences. We co nclude that the co urt abus ed its sentencing power by imposing a sentence on Count 3 whe n it failed to c onduct a separate He we y analysis and provide a rationale th at would explain the discrepancy between the sentences imposed on Counts 1 and 3. See al s o C hase, 2025 ME 90, ¶ 29, 345 A.3d 183 (cond ucting independent sentenci ng analys e s on three primary counts of gross sexual assault before imposing a higher sentence on two of the three c ounts). 6 [¶17 ] W e r eman d th is ma tter for rese nten cing co ns iste nt wit h our sentencing jurisprudence and in line with t he procedure followed b y the sen tencin g cour t in Chase. 7 The ent ry is: Sentenc e vacated. Remand ed for resente ncing cons isten t with this o pinion. 6 On appeal, Merchant also argue s that the court’s unsuspen ded sentenc e of thirty years of incar cerat ion is ex cess ive and disp rop ort ionat e, and therefore the sent ence v iolates the Maine and United Stat es C on stitution s. Because th e court will be requ ired to re sentence Merchant a s a result of our opinion, we d o not decide whet her the exist ing sentence i s disproport ionate or ex cess i ve. See State v. Cummings, 2023 ME 35, ¶ 37, 295 A.3d 1 227. We also note t hat the sent encing w ill occur before a differ ent judge b ecause the sen tencing jud ge has since resigned. 7 To be clear, upon re mand the senten cing court ma y not impose a sentence which i s more severe than the s entence th at we hav e vacated. 15 M.R.S. § 2156(1 - A) (202 5); see also Stat e v. Murray - B ur ns, 2023 ME 21, ¶ 20, 290 A.3d 542. Theref ore, the sentence on Count 3 cannot be a cons ecutive sen tence of twent y years’ im prisonme nt.

12 John E. Baldac ci, Jr., Esq. (ora lly), Ste ve Smith Trial Lawyers, Augusta, for appellant Keith Merchant Michael H. Madigan, Esq. (ora lly), Ass t. Di st. Att y., and Evan C. Tooth aker, Stud. Atty., Kenn ebe c Co unty D istrict At torney ’s Of fice, Augusta, for appellee State of Maine Somerset County Unif ied Criminal Dock et dock et number CR- 2023 - 982 F OR C LERK R EF ERENC E O NLY