Rule 32. Sentence and Judgment

(a) Sentence.

(1) Timing . Sentence shall be imposed without unreasonable delay, provided, however, that the court may suspend the execution thereof to a date certain or determinable. In circumstances other than addressed in Rule 38, if a stay of execution has been ordered and if at the conclusion of the stay the defendant fails to surrender into the custody of the sheriff named in the commitment order, upon the request of the named sheriff or the attorney for the State, or by direction of the court, the clerk shall issue a warrant for the defendant's arrest.

(2) Allocution on a Conviction . Before imposing sentence on a Class C or higher crime, the court shall address the defendant personally and inquire if the defendant desires to be heard prior to the imposition of a sentence. In a Class D or E crime the court may address the defendant and inquire if the defendant desires to be heard prior to the imposition of sentence. The defendant may be heard personally or by counsel or both. Failure of the court to so address the defendant shall not affect the legality of the sentence unless the defendant shows that he or she has been prejudiced thereby.

(3) Statement of Reasons for Sentence of Imprisonment of One Year or More . If the court imposes a sentence of one year or more, it shall set forth on the record the reasons for the sentence. This requirement shall also apply in cases in which there has been a plea agreement. In a case in which there is a sentence of less than one year's imprisonment, the court may set forth on the record its reasons for the sentence. Noncompliance with this requirement shall not affect the legality of the sentence; however, it may affect appellate review by the Law Court.

(b) Judgment. A judgment of conviction shall set forth the plea, the verdict or findings and the adjudication, sentence, the defendant's date of birth and, when known, the defendant's State Identification Number. If the defendant is found not guilty or for any other reason is entitled to be discharged, judgment shall be entered accordingly. A judgment of conviction shall be signed by the court and entered by the clerk of the Unified Criminal Docket.

(c) Presentence Investigation and Report.

(1) When Made . The court may in its discretion direct the Department of Corrections to make a presentence investigation and report to the court before the imposition of sentence. The report shall be in writing unless the court directs that it be orally presented. Whether written or oral, its content may not be disclosed to anyone, including the court, until the defendant has pleaded guilty or nolo contendere or has been found guilty.

(2) Content of Report . Unless the court directs otherwise, the report of the presentence investigation shall contain any prior criminal record of the defendant and such information on the defendant's characteristics, the defendant's financial condition, and the circumstances affecting the defendant's behavior as may be helpful in imposing sentence or in the correctional treatment of the defendant, and such other information as may be required by the court, including, for example, information relative to the imposition of probation or supervised release.

(3) Access to Written Presentence Report and Right to Comment .

(A) In any case in which the court has ordered a written presentence report, in order to ensure that the defendant or, if the defendant is represented by counsel, both the defendant and the defendant's counsel are accorded an opportunity to examine the content of the report, sentence shall not be imposed until at least 48 hours after the report is filed with the clerk of the Unified Criminal Docket, unless this time period is waived by the defendant. Consent of the defendant, if given, shall be made a part of the record. The clerk shall mail a date-stamped copy of the written presentence report to the defendant or, if represented by counsel, to counsel and note the mailing in the Unified Criminal Docket. Before imposing sentence, the court shall afford the defendant, counsel for the defendant, or both an opportunity to comment upon the presentence report as well as upon any information from confidential

Committee Notes

Committee Advisory Note [December 2014] The Rule parallels the content of Rule 32 of the Maine Rules of Criminal Procedure but differs in the following respects. First, in subdivision (a)(1) and (c)(3)(B) the letter "s" in the word "state" is capitalized because the word is used in the term "attorney for the State." See Committee Advisory Note [December 2014] to M.R.U. Crim. P. 3(d) and (f). Second, in subdivision (b) the word "court" replaces the words "justice or judge." See Committee Advisory Note [December 2014] to M.R.U. Crim. P. 3(b) and (d). Further, the words "of the Unified Criminal Docket' are added following the word "clerk" for clarity. Third, the heading to subdivision (c) is changed from " Pre-sentence Investigation " to " Presentence Investigation and Report " to better identify the subdivision's content. Fourth, in subdivision (c)(1) the words "Department of Corrections" replaces "State Division of Probation and Parole" because that division no longer exists and its responsibilities now lie with the Commissioner of Corrections pursuant to 34-A M.R.S. § 5402(2)(D). Further, a new sentence is added in subdivision (c)(1) clarifying that unless the court expressly directs that the presentence report be orally presented the report must be in writing. Still further, the words "or the granting of probation" are not carried forward in new subdivision (c)(1) because it incorrectly suggests that probation is a freestanding alternative to a sentence. Finally, subdivision (c)(1) is changed to make it clear that, whether a presentence report is to be submitted in writing or orally, its content may not be disclosed, even to the court, before the court has accepted a plea of guilty or nolo contendere from the defendant or the defendant has been found guilty. Fifth, in subdivision (c)(2), the words "Unless the court directs otherwise" are added to make clear that the content of a presentence report is under the court's direction and control. Further, in subdivision (c)(2) the words "including, for example, information relative to the imposition of probation or supervised release" are added as examples of other information a court might want to be included in the presentence report. Sixth, the heading to subdivision (c)(3) is changed from " Access to Written Pre-sentence Report " to " Access to Written Presentence Report and Right to Comment " to better identify the paragraphs' content. Seventh, in subdivision (c)(3)(A) and (B) the words "Unified Criminal Docket" replace the words "of the court" and "criminal docket" for clarity.

[Advisory Notes to former Maine Rules of Criminal Procedure]

Advisory Committee Note—1971 [M.R. Crim. P. 32(d).] Under the original Rule 32(d) a defendant may, after entry of a plea of guilty, and after sentence, withdraw a plea of guilty in order to correct manifest injustice. The granting of this right is within the discretion of the trial judge. No time limit is imposed upon the right. Federal authorities construing the comparable federal rule have held that the motion to withdraw may be made at any time. This provision could cause some difficulty because the basis for a motion under Rule 32(d) is most frequently the same kind of defect that can be raised pursuant to Maine's post-conviction relief statute. The usual allegations in support of a motion under Rule 32(d) are: mistake, inadvertence, ignorance, perjured testimony, and fear which overcame the defendant's exercise of his free judgment. (For a general discussion of Rule 32(d), see 8A Moore's Federal Practices §§ 32.07[3] & [4].) All of these matters may be raised in a proceeding for post-conviction relief under the Maine statute. It therefore seems unnecessary and unduly complicated to have a second procedure available in Rule 32(d). A further difficulty with the existence of the right to relief under Rule 32(d) is that relief may be granted by a single Superior Court justice with no method for the State to secure review of that determination. Whereas, if relief is granted pursuant to the post-conviction relief statute, the State may appeal to the Law Court. The only possible benefit to a defendant in proceeding under Rule 32(d) rather than under the post-conviction statute, other than the lack of the right of appeal in the State, is that there is no requirement in the proceeding under Rule 32(d) that the defendant be in custody. Thus, it is conceivable that under Rule 32(d) a defendant who has fully served his sentence following the entry of a plea of guilty may move to withdraw that plea and set aside the judgment of conviction. Cf. Thoreson v. State, 239 A.2d 654 (Me. 1968). Since it was the belief of the Committee that the existence of this alternative remedy when Maine has a comprehensive post-conviction relief procedure is not only unwise but likely to lead to confusion and complications, Rule 32(d) is amended.

Advisory Committee Note—1983 [M.R. Crim. P. 32(e).] Eligibility for probation is now covered comprehensively by statute. 17-A M.R.S. § 1201. Rule 32(e) is an incomplete statement of the law; more importantly, as a procedural rule, it is an inappropriate vehicle for conveying the substantive law of probation eligibility. [M.R. Crim. P. 32(f).] The substance of the first sentence of 32(f) is wholly controlled by 17-A M.R.S. § 1206. The third sentence is premised upon a practice which is no longer permitted by statute. Title 17-A, Chapter 49. Finally, both sentences address matters of substantive law rather than procedure.

Advisory Committee Note—1984 [M.R. Crim. P. 32(a).] The amendment requires a statement of sentencing reasons in those cases where a sentence of imprisonment may be appealed to the Appellate Division of the Supreme Judicial Court and encourages a statement of sentencing reasons in any other case. This requirement would help focus the decision-making of the sentencing judge, as well as facilitate the work of the Appellate Division. Sentencing reasons were required by statute prior to 1976. 15 M.R.S. § 1743 (1964). Section 1743 was one of many sections included in the list of repealers accompanying the enactment of the Criminal Code in 1976. P.L. 1975, ch. 499, § 2. No explanation was given for the repeal and a 1976 law review article suggests that the repeal may have been inadvertent. Zarr, Sentencing , 28 Me. L. Rev. 117, 148 n.107 (1976).

Advisory Committee Note—1988 [M.R. Crim. P. 32(c)(2).] The amendment and new Rules 32(c)(3) and (4) reorganize and make several substantive changes in the rules governing reports of pre-sentence investigations. Rule 32(c)(2), governing the content of reports of pre-sentence investigations, is the same as the first sentence of former Rule 32(c)(2). New Rule 32(c)(3) addresses access to the written pre-sentence report by the parties. The approach to access presently found in the Administrative Order of the Supreme Judicial Court dated December 7, 1982 (the existence of which is not well known) has been substantially modified in an effort to protect more effectively a defendant's due process rights to both timely access to the report and opportunity to dispute any facts contained therein. As to these due process rights, see generally State v. Dumont , 507 A.2d 164, 166 (Me. 1986). New Rule 32(c)(4) governs the right of the defense to both hear and comment upon information presented as part of an oral pre-sentence report. [M.R. Crim. P. 32(c)(3) and (4).] See Advisory Committee Note to amendment to Rule 32(c)(2).

Advisory Committee Note—1989 [M.R. Crim. P. 32(a)(2).] Language is added to new Rule 32(a)(2) to make clear that in a Class D or Class E crime the court is not required to address a defendant personally to inquire if he or she desires to be heard to prior to sentencing. Former subdivision "(f)" is now "(e)."

Advisory Committee Note—1989 [M.R. Crim. P. 32(a)(3).] The amendment removes an outdated reference to "Appellate Division" in light of P.L. 1989, ch. 218, effective Sept. 30, 1989 (15 M.R.S. §§ 2151-2157). The Law Court now performs the sentence review function previously carried out by the Appellate Division of the Supreme Judicial Court.

Advisory Committee Note—1990 [M.R. Crim. P. 32(c)(3)(A) and (B).] Rule 32(c)(3) is amended by deleting the references to Superior Court to make clear that the rule is applicable to both the District and Superior courts.

Advisory Committee Note—1991 [M.R. Crim. P. 32(d).] This amendment updates the rule by removing language that is no longer relevant. The authority to continue a matter prior to imposition of sentence was repealed effective May 1, 1976. See 34 M.R.S. § 1631 (1964), repealed by P.L. 1975, ch. 499, § 70.

Advisory Committee Note—1994 [M.R. Crim. P. 32(e).] Legislation has now incorporated the substance of Rule 32(e) into 17-A M.R.S. § 1206(2). See P.L. 1993, c. 234, § 1. This change was anticipated by the amendment last year of Rule 1(b), the Advisory

Committee Note to which stated that "the fragmentary provision contained in Rule 32(e) should be deleted once the corresponding change is made to the statute") (Me. Rptr. 602-17 A.2d CIX).

Advisory Committee Note—2002 [M.R. Crim. P. 32(a)(1).] The amendment clarifies the arrest process in the event a defendant fails to surrender himself or herself into custody at the conclusion of a court-ordered stay of execution, other than a stay pending appeal already addressed in Rule 38.