State of Maine v. Fabien A. Pelletier, 210 A.3d 177

Pelletier was indicted for three counts of gross sexual assault and two counts of unlawful sexual contact for assaults occurring between 1993 and 1998 against two boys who stayed overnight in his home.
At trial (April 2018) the prosecution’s opening statement told jurors the younger victim’s mother would testify that she confronted Pelletier and he said “don’t worry, it won’t happen again.”
The State called both victims, who testified to sexual abuse when under age fourteen; the State then rested without calling the mother and presented no testimony of the alleged statement by Pelletier.
Pelletier was convicted on all counts; at sentencing the court found the offenses were “heinous,” imposed an enhanced base sentence under the law it believed applied, and sentenced Pelletier to 24 years with most suspended.
Pelletier appealed, arguing prosecutorial misconduct for promising testimony not produced and that the sentence was improperly enhanced based on facts not pleaded or found by a jury. The State conceded resentencing was required and will not seek a sentence beyond 20 years.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Prosecutorial misconduct for promising testimony not produced	Prosecutor misstated evidence in opening by promising the mother’s testimony about Pelletier’s remark; this prejudiced Pelletier	Prosecutor reasonably believed in good faith the mother would testify; absence of objection and no record showing State knew she wouldn’t testify	No obvious error: no evidence State lacked good-faith belief, so no reversible misconduct
Sentencing enhancement based on court-found facts	Enhanced sentence exceeded statutory authorization because court found additional fact (heinousness) not pleaded or jury-found, violating right to jury	State conceded error and joined remand; will not pursue >20 years on remand	Sentence vacated and remanded for resentencing without enhancement
Consideration of victim impact in setting base term	Court improperly considered subjective victim impact in setting basic term	Court focused on objective facts of conduct; did not improperly rely on subjective impact	No abuse of discretion in considering objective factors; claim rejected
Standard of review for unpreserved error (prosecutorial misconduct)	N/A (issue of whether error was plain and affected substantial rights)	N/A	Reviewed for obvious error; defendant failed to meet burden

State v. Olah, 184 A.3d 360 (Me. 2018) (standard for viewing evidence in defendant’s disfavor on appeal)
State v. Nobles, 179 A.3d 910 (Me. 2018) (review for obvious error when no trial objection)
State v. Rainey, 580 A.2d 682 (Me. 1990) (opening statement comments permissible if prosecutor reasonably expects evidence will be admitted)
State v. Lajoie, 154 A.3d 132 (Me. 2017) (explaining obvious-error test)
State v. Bernier, 486 A.2d 147 (Me. 1985) (impropriety of asserting facts in opening without good-faith belief supporting evidence will be offered)
Frazier v. Cupp, 394 U.S. 731 (U.S. 1969) (recognizing evidence previewed in opening may not ultimately be presented for many reasons)
State v. Gordon, 321 A.2d 352 (Me. 1974) (prosecutor’s good-faith belief about forthcoming testimony relevant to opening statements)
State v. Reese, 991 A.2d 806 (Me. 2010) (court may not consider subjective victim impact when setting basic term; may consider objective factors)