Rule 35. Correction or Reduction of Sentence

(a) Correction of Sentence. On motion of the defendant or the attorney for the State, or on the court's own motion, made within one year after a sentence is imposed, the justice or judge who imposed sentence may correct an illegal sentence or a sentence imposed in an illegal manner.

(b) Reduction of Sentence Before Commencement of Execution. The justice or judge who imposed sentence may reduce a sentence prior to the commencement of execution thereof.

(c) Reduction of Sentence After Commencement of Execution.

(1) Timing of Motion . On motion of the defendant or the attorney for the State, or on the court's own motion, made within one year after a sentence is imposed and before the execution of the sentence is completed, the justice or judge who imposed sentence may reduce that incomplete sentence.

(2) Ground of Motion . The ground of the motion shall be that the original sentence was influenced by a mistake of fact that existed at the time of sentencing.

(d) Definitions. A sentence is the entire order of disposition, including conditions of probation, supervised release and administrative release, suspension of sentence, and whether it is to be served concurrently with, or consecutively to, another sentence. A revision of sentence from imprisonment to probation is a permissible reduction of sentence. A reduction of sentence is either an obvious reduction or a change of sentence to which the defendant consents.

(e) Power of Trial Court Pending an Appeal. If an appeal is pending, the clerk of the Unified Criminal Docket shall immediately send notice to the clerk of the Law Court of the filing of the motion made under subdivisions (a) or (c); the court shall conduct a hearing and either deny the motion made under subdivisions (a) or (c) or certify to the Law Court that it would grant the motion, but the court may grant the motion only on remand of the case.

(f) Appeal by Defendant. A defendant may appeal from an adverse ruling of the court made under subdivision (a) or (c) to the Law Court as provided by the Maine Rules of Appellate Procedure.

(g) Appeal by State. The Maine Rules of Appellate Procedure govern the procedure for an appeal by the State to the Law Court from an adverse ruling of the court relative to a State-initiated motion made under subdivision

(a) or (c).

Committee Notes

Committee Advisory Note [December 2014] The Rule parallels the contents of Rule 35 of the Maine Rules of Criminal Procedure but differs in the following respects. First, in subdivision (a) and (c)(1) 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 (d) that defines the term "sentence" for purposes of the Rule, references to conditions of "supervised release" and "administrative release" are added for purposes of completeness. Third, in subdivision (e) the words "of the Unified Criminal Docket" are added after the word "clerk" and before the word "shall," and the words "of this Rule" are omitted after the reference to subdivision (c) and before the semicolon. Fourth, in subdivision (e) and (f) changes in procedure reflect the fact that the Superior Court will no longer serve as an intermediate appellate court under the unified criminal procedure. See Committee Advisory Note [December 2014] to M.R.U. Crim. P. 36. Appeals from the District Court under subdivision (a) or (c) formerly undertaken by the Superior Court now are to the Law Court, as provided by the Maine Rules of Appellate Procedure. As a consequence, Rule 36A of the Maine Rules of Criminal Procedure is not carried forward into these new Rules. Fifth, in subdivision (g) the procedure has similarly been changed with respect to a State-initiated motion under subdivision (a) or (c) formerly undertaken by the Superior Court. All State appeals are now to the Law Court from an adverse ruling as provided by the Maine Rules of Appellate Procedure.

[Advisory Notes to former Maine Rules of Criminal Procedure]

Advisory Committee Note—1971 [M.R. Crim. P. 35(b)(6).] Rule 35(b)(6) is a new provision suggested to accommodate the amendment of 14 M.R.S. § 5508 (Maine Laws, 1971, c.342). Since a petitioner may not proceed with his appeal in a post-conviction proceeding until issuance of a certificate of probable cause, the time limits of Rule of Civil Procedure 74(a) should not commence to run until after the issuance of the certificate. There is one ambiguity in the statute which the Rule seeks to eliminate. The statute provides: "The clerk of the Superior Court, upon receipt of a notice of appeal, shall forward to the law court the complete record of the proceedings in the Superior Court." It is not clear whether this means the record in the postconviction proceeding or the record in the post-conviction proceeding together with the complete record in the criminal proceeding. Since the purpose of the certificate of probable cause is to determine if there is any merit in the appeal from the decision in the post-conviction proceeding, the Law Court should only consider the record in that proceeding and not be required to comb the entire record in the original criminal case. The last sentence of the rule seeks to accomplish that objective.

Advisory Committee Note—1973 [M.R. Crim. P. 35(b)(6).] Subdivision (b)(6) of Rule 35 is amended in order to make it clear that appeals in post-conviction proceedings are civil appeals. This becomes most important with the change in procedure for handling criminal appeals since counsel handling appeals in post-conviction proceedings will be required to refer to the Civil Rules in order to be sure that the proceeding is handled properly. The decision to consider appeals in postconviction proceedings as civil appeals is based upon the statute. 14 M.R.S. § 5508 prior to its amendment in 1971 read: "A final judgment entered under § 5505 may be reviewed by the Supreme Judicial Court sitting as a law court in an appeal brought by the petitioner or the state in the same mode and scope of review as any civil action." Although the amendment of the statute in 1971 eliminated this language and instituted the requirement of a certificate of probable cause if the petitioner appealed the statute as amended does contain the following language: "If an appeal is taken by the state, a certificate of probable cause is not required but shall be in accordance with the Civil Rules." It obviously makes no sense to have an appeal by the state taken in accordance with the Civil Rules and an appeal by the petitioner taken in accordance with the Criminal Rules.

Advisory Committee Note—1985 [M.R. Crim. P. 35.] Subdivision (a) expands the time for making a motion to correct an illegal sentence or a sentence imposed in an illegal manner, thereby obviating unnecessary appeals or petitions for post-conviction review during this period. Certain sentencing matters are outside the scope of the rule, as, for example, the resentencing provided for in 17-A M.R.S. § 1256(G). Subdivision (b) carries forward the provision in present Rule 35 that a justice may revise a sentence prior to the commencement of execution thereof. The word "reduce" is used instead of the word "revise," since a reduction is what is intended. Revision has not been thought to include anything but reduction in present Rule 35 and the amendment does not disturb that understanding. If there is doubt about whether a change of sentence constitutes a reduction, the consent of the defendant to the change should be obtained. Subdivision (c) carries forward so much of the court's power to reduce a sentence based upon a mistake of fact at the time of sentencing as was declared constitutional in State v. Hunter , 447 A.2d 797 (Me. 1982). An example of a mistake of fact which might support a reduction of sentence is a mistake about the nature or extent of a defendant's criminal record.

Advisory Committee Note—1989 [M.R. Crim. P. 35(e).] The new provision treats motions brought under Rule 35(a) or (c) during the pendency of an appeal in the same manner as Rule 33 motions. The new procedure allows the full integration of Rule 35(a) or (c) motions into the appeal process, a result particularly desirable in light of the new mechanism for sentence review created by P.L. 1989, ch. 218 (15 M.R.S. §§ 2151-2157).

Advisory Committee Note—1992 [M.R. Crim. P. 35(c)(1).] The previous language appeared to require that the motion not only be filed within one year after sentence imposition but that final court action relative to that motion occur within the one-year period. State v. Gagne, 570 A.2d 825, 826 (Me. 1990); 1 Cluchey & Seitzinger, Maine Criminal Practice , § 35.3 at 35-15 (1990). The new language in subparagraph 1 of paragraph c is designed to make clear that, like a motion brought to correct a sentence under paragraph a ( Id . at § 35.2 at 35-11), the trial court has the power to act upon a timely motion even after the expiration of the one-year period.

Advisory Committee Note—1996 [ M.R. Crim. P. 35(f).] The amendment identifies the appeal mechanism available to a defendant relative to the denial of a Rule 35 motion brought under subdivision (a) or (c) in both District Court and Superior Court. It further makes a defendant's Rule 35 appeal to the Law Court conditioned upon the issuance of a certificate of probable cause pursuant to new Rule 37C. [M.R. Crim. P. 35(g).] The amendment is in recognition of the recent statutory changes to 15 M.R.S. § 2115-A authorizing the state to appeal to the Law Court from the denial of a state-initiated Rule 35 motion for correction or reduction of sentence. See P.L. 1995, ch. 47, effective September 29, 1995.

Advisory Committee Notes—2001 [M.R. Crim. P. 35(f).] This amendment is one of many significant modifications to the appellate rules in Part VII in response to statutory changes made at the Second Regular Session of the 119th Legislature in P.L. 1999, chapter 731, Part ZZZ, effective (as relevant here) January 1, 2000—changes proposed by the Court Unification Task Force (a body established pursuant to Resolves 1998, chapter 107) in its final report to the joint standing committee of the Legislature having jurisdiction over judiciary matters. The Legislature has radically curtailed the statutory criminal appellate and review jurisdiction of the Superior Court. See P.L. 1999, ch. 731, § ZZZ-9. It is now limited to 3 areas: (1) hearing certain petitions and appeals as provided with the Maine Bail Code; (2) appeals from an adverse order of the District Court on a motion to correct or reduce a sentence pursuant to 15 M.R.S. § 2111 and M.R. Crim. P. 35(f); and (3) appeals from a District Court order revoking probation pursuant to 17-A M.R.S. § 1207(1) and M.R. Crim. P. 37F. Except as to these three exceptions, criminal appeals from the District Court are taken directly to the Law Court. See P.L. 1999, ch. 731, §§ ZZZ-15 and ZZZ-22 [defendant initiated] and ZZZ-18, ZZZ20 and ZZZ-21 [state initiated]. Further, although the Superior Court has criminal appellate and review jurisdiction relative to the 3 above—described areas, it is no longer an "intermediate" appellate court for any defendant— initiated appeal. Instead, all defendant-initiated appeals now authorized are final —i.e., not subject to further appellate scrutiny by the Law Court. See Id . at §§ ZZZ-10 through ZZZ-14 and ZZZ-25. See also M.R. Crim. P. 35(f), as amended. The same holds true for any state—initiated appeals to the Superior Court as well. See Id . at § ZZZ-12. However, one hybrid situation exists under Rule 35 that treats the Superior Court's determination as not final. 15 M.R.S. § 2115-A (2-A)[P.L. 1999, ch. 731, § ZZZ-19] provides as follows: 2-A. Appeal from adverse decision of the Superior Court sitting as an appellant [sic] court relative to an aggrieved defendant's appeal from the denial of a Rule 35 motion in District Court . If a defendant's appeal to the Superior Court sitting as an appellate court relative to a motion for correction or reduction of a sentence brought in District Court under Rule 35 of the Maine Rules of Criminal Procedure is granted in whole or in part, an appeal may be taken by the State from the adverse decision of the Superior Court to the Law Court. To carry out the above-described Legislative directive, amendments have been made to Rules 35, 36, 36A, 36C, 36D, 37C, 37D, 37F, and 37G. [M.R. Crim. P. 35(g).] See Advisory Committee Note to M.R. Crim. P. 35(f).

Advisory Committee Note—2002 [M.R. Crim. P. 35(f).] The amendment substitutes a reference to the Maine Rules of Appellate Procedure for former Rule 37C. [M.R. Crim. P. 35(g).] The amendment substitutes a reference to the Maine Rules of Appellate Procedure for former Rule 37B.

Advisory Committee Note—2004 [M.R. Crim. P. 35 (f) and (g).] These amendments replace the word "order" with the word "ruling" in order to bring Rule 35 into conformity with Rule 19 of the Maine Rules of Appellate Procedure.

Committee Advisory Note [December 2014] The heading of Part VII in the Maine Rules of Criminal Procedure reads " APPEALS. " In the new Rules the heading to Part VII reads " REVIEW BY APPEAL OR PETITION " to better describe its contents.