Andrew Bean

PORTLAND — An appeal of a sentence for a multiple OUI offender drew a dubious reaction from justices on the Maine Supreme Judicial Court on Wednesday.

“This might be a case of ‘be careful what you wish for,’” Justice Donald Alexander told Rory McNamara, the lawyer for Andrew Bean, 63, of South Paris, who is appealing two five-year sentences for his 10th and 11th OUI convictions.

“The sentence you got is way below” what many in similar circumstances would get, Alexander said. Both McNamara and Oxford County Assistant District Attorney Joseph O’Connor conceded the sentence was relatively lenient, given Bean’s record.

Bean’s latest OUI arrests came in late 2015, recording a .21 blood-alcohol level on one arrest and .29 on the second. Prosecutors and Bean’s lawyers agreed to two 10-year sentences, to run concurrently, with at least five years suspended, meaning Bean would serve no more than five years in jail.

But McNamara said the judge in the case never verbally ran through the “Hewey” analysis, based on a 1991 state Supreme Court ruling, for how he arrived at the sentence. In that ruling, the Supreme Court said judges who are handing down a sentence should determine a base sentence for a crime, then review aggravating and mitigating factors, and then finally determine how much of a sentence should be suspended.

McNamara conceded the sentence was at the top of the cap that Bean and his lawyers had agreed to, but without the Hewey analysis, there was no way to determine whether the sentence could have been lighter.

“How can this be anything but harmless error?” Alexander asked. Justice Ellen A. Gorman said she couldn’t understand appealing a sentence that fell within the range of what the defendant had already agreed to in advance.

“I really have the question: ‘Why are you here?’” Alexander said, “The sentence can only get worse.”

McNamara said a section of state law can be interpreted as precluding a longer sentence if a case is sent back by the state Supreme Court to a lower court.

However, near the end of the oral arguments, the justices seemed to agree that not all judges have been following the ruling that requires them to verbally run through the Hewey analysis in court when handing down sentences.

Bean, who was also convicted on federal and state charges of being a convicted felon in possession of a firearm, was also sentenced to three years of probation and fined $2,100 on each of the OUI charges. His sentence in Maine is running concurrent with a 21-month sentence on the federal firearms charge, which he is serving at a federal prison in New Hampshire.

Bean pleaded guilty on April 26, 2016, in U.S. District Court to possessing a firearm after being convicted of four felony offenses.

According to court records, on Nov. 21, 2015, a Maine Game Warden discovered Bean in possession of a 12-gauge shotgun in the Paris area. Bean was prohibited from possessing firearms based on prior felony convictions for OUI and for operating after revocation in 2002 and again in 2006.

The state Supreme Court typically rules on issues months after oral arguments.

— Sun Journal staff contributed to this report


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