State of Maine v. Keith Merchant

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2026 ME 17
Docket: SRP-24-439
Argued: September 11, 2025
Decided: February 26, 2026

Panel: STANFILL, C.J., and MEAD, CONNORS, LAWRENCE, DOUGLAS, and LIPEZ, JJ.

STATE OF MAINE

v.

KEITH MERCHANT

LAWRENCE, J.

[¶1] In this discretionary sentence appeal, Keith Merchant appeals from

a sentence imposed by the trial court (Somerset County, Benson, J.) after his

guilty pleas to two counts of gross sexual assault, three counts of unlawful

sexual contact, two counts of sexual abuse of a minor, and one count of violation

of condition of release. Merchant argues that the sentence violated his

constitutional right against double jeopardy; that the court failed to consider

whether to impose a consecutive sentence during the appropriate part of the

sentencing analysis; and that the sentence is disproportionate and excessive.

We agree the sentence must be vacated because the court erred in its

sentencing analysis and remand for the court to resentence Merchant.
2

I. BACKGROUND

[¶2] On December 15, 2023, Merchant was charged by indictment for

sexually assaulting his niece, the victim, on numerous occasions beginning

when she was twelve years old. The grand jury indicted Merchant on the

following eight offenses:

• Count 1: gross sexual assault (Class A), 17-A M.R.S. § 253(1)(B)
(2025), on or between October 1, 2021, and March 3, 2022;

• Count 2: unlawful sexual contact (Class B), 17-A M.R.S.
§ 255-A(1)(F) (2025), on or between October 1, 2021, and
March 3, 2022;

• Count 3: gross sexual assault (Class A), 17-A M.R.S. § 253(1)(B), on
or between March 4, 2022, and March 3, 2023;

• Count 4: unlawful sexual contact (Class B), 17-A M.R.S.
§ 255-A(1)(F), on or between March 4, 2022, and March 3, 2023;

• Count 5: sexual abuse of a minor (Class C), 17-A M.R.S.
§ 254(1)(A-1) (2025), on or between March 4, 2023, 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 July 31, 2023;

• Count 7: unlawful sexual contact (Class D), 17-A M.R.S.
§ 255-A(1)(F-2), on or between March 4, 2023, and July 31, 2023;
and

• Count 8: violation of condition of release (Class E), 15 M.R.S.
§ 1092(1)(A) (2025), on or between March 4, 2023, and
July 31, 2023.
3

The court accepted Merchant’s guilty pleas to all eight charges on

August 13, 2024, and scheduled a sentencing hearing for August 27, 2024.

[¶3] At the sentencing hearing, the court heard testimony from the lead

detective1 who investigated the allegations against Merchant and heard

unsworn statements from the victim, the victim’s mother (Merchant’s sister),

and the victim’s grandmother (Merchant’s mother).

[¶4] The court began its sentencing analysis by laying out the procedure

set forth in State v. Hewey, 622 A.2d 1151 (Me. 1993), and codified in 17-A

M.R.S. § 1602 (2025). It went on to note the complexity of this case because of

the multiple episodes of criminal conduct, requiring consideration of whether

the sentences should be imposed consecutively under 17-A M.R.S. § 1608

(2025).

[¶5] Addressing the individual counts, the court began with Count 1. It

noted that although there were no aggravating factors under 17-A M.R.S.

§ 253-A(3) (2025) that it was required to consider, there were factors intrinsic

to the gross sexual assault in this count that went to the nature and seriousness

of the offense. Those factors included the age of the victim, the position of trust

1 The detective testified that the sexual assaults occurred over a period of three to four years, a
time during which there were repeated offenses, and that the detective felt that it was a situation
where Merchant groomed the victim and took advantage of her lack of a father figure.
4

Merchant had, the fact that there were multiple incidents over a period of

several years, the use of bribery, the secrecy of the conduct, the lack of concern

for pregnancy risks, and the attempts to manipulate the victim even after she

had been interviewed by police. The court also considered that there was no

physical force or violence used and that the sexual assault perpetrated in this

case was extremely bad, but not the very worst kind of this offense. It set the

basic sentence on Count 1 at eighteen years’ imprisonment.

[¶6] The court then moved on to the second step in the Hewey analysis.

It considered the aggravating factors specific to Merchant’s case, including the

enormous impact not only directly on the victim but also on her family, as well

as the mitigating factors of Merchant’s methamphetamine use, experiencing a

head injury or multiple traumatic brain injuries, being sexually abused as a

child, and ultimately accepting responsibility for his actions. The court adjusted

the sentence to twenty years’ imprisonment on Count 1, finding that the

aggravating factor of victim impact outweighed the mitigating factors. Finally,

in the third step of the Hewey analysis, after considering the purposes of

sentencing under 17-A M.R.S § 1501 (2025),2 the court determined that none

2 Title 17-A M.R.S. § 1501(8)-(9) were amended in 2021 and 2023 but the amendments do not
affect this appeal or the analysis done by the sentencing court. See P.L. 2021 ch. 170, § 1 (effective
Oct. 18, 2021); P.L. ch. 174, § 1 (effective Oct. 18, 2021); P.L. 2021 ch. 366, § 26 (effective
5

of the twenty years would be suspended but noted its intention to impose a

period of supervised release rather than probation. See 17-A M.R.S. § 1881(2)

(2025).

[¶7] The court then moved to Count 3, the second of the two gross sexual

assault charges, and stated that the same analysis it had conducted in Count 1

applied, but it then imposed a different sentence. The court sentenced

Merchant to ten years’ imprisonment to be served consecutively to Count 1 and,

again, it suspended none of the sentence. The court explained that 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 stated that,

although it could impose a completely suspended sentence, it declined to do so,

instead imposing ten years of supervised release at the conclusion of

Merchant’s ten years’ imprisonment on Count 3. See 17-A M.R.S. § 1881(2).

This made Merchant’s sentence on Count 3 ten years’ imprisonment followed

by ten years of supervised release.

[¶8] On the remaining counts, the court imposed five years’

imprisonment on Count 2, five years’ imprisonment on Count 4, two years’

imprisonment on Count 5, two years’ imprisonment on Count 6, six months’

Oct. 18, 2021); P.L. 2021 ch. 647, §§ B-33, B-65 (effective Jan. 1, 2023); P.L. 2023 ch. 430, § 2 (effective
Oct. 25, 2023).
6

imprisonment on Count 7, and ninety days’ imprisonment on Count 8, all to be

served concurrently with the sentence on Count 1.

[¶9] Merchant filed a motion to extend the deadline for filing an appeal

of his sentence, which was granted. Merchant timely applied for leave to appeal

his sentence, and the Sentence Review Panel granted his application on

November 21, 2024. See M.R. App. P. 2B(b)(1), 20; 15 M.R.S. § 2151 (2025).

II. DISCUSSION

[¶10] Merchant argues that the court erred while conducting its Hewey

analysis. We agree that the court erred, although in a different manner than

Merchant argues. The court erred when it adopted the exact same Hewey

analysis for Count 3 as was articulated for Count 1 but then imposed a sentence

on Count 3 different from the sentence that it imposed on Count 1.

[¶11] “[W]e review the sentencing court’s determination of the basic

sentence de novo for misapplication of legal principles and its determination of

the maximum sentence for abuse of discretion.” State v. Plummer, 2020 ME 143,

¶ 10, 243 A.3d 1184 (quotation marks omitted). “[W]e review the sentencing

court’s analysis at each step to determine whether it disregarded the relevant

sentencing factors or abused its sentencing power.” Id. (alteration and

quotation marks omitted).
7

[¶12] When crafting an appropriate individualized sentence, the court

utilizes a three-step framework commonly known as the Hewey analysis and

codified at 17-A M.R.S. § 1602. See Hewey, 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 requires the

court to determine the maximum period of incarceration by looking at the

relevant aggravating and mitigating sentencing factors. Id. § 1602(1)(B).

Finally, step three requires the court to determine “what portion, if any, of the

maximum term of imprisonment under [step two] should be suspended.” Id.

§ 1602(1)(C). In cases where there are multiple criminal episodes, the

sentencing court can construct an aggregate sentence by choosing the most

serious representative counts, often referred to as the primary counts, to serve

as the foundation of the sentence. State v. Downs, 2009 ME 3, ¶ 14, 962 A.2d

950. A sentencing court can impose consecutive sentences3 on the primary

counts if it finds a statutory basis to do so. Id. ¶ 29; 17-A M.R.S. § 1608(1). In

crafting an aggregate sentence with primary counts, the sentencing court must

perform a separate Hewey analysis, going through each of the three steps, for

each primary count that it determines will run consecutively to another count.

3 A consecutive sentence is one “involving imprisonment that immediately follows in time another

sentence involving imprisonment.” 17-A M.R.S. § 2(5-D) (2025).
8

Downs, 2009 ME 3, ¶ 14, 962 A.2d 950; see State v. Chase, 2025 ME 90, ¶ 29, 345

A.3d 183.

[¶13] The procedure followed by the sentencing court in State v. Chase

provides a model of the proper way in which a court should issue an aggregate

sentence in cases where there are multiple episodes of criminal conduct. Chase,

2025 ME 90, ¶ 29, 345 A.3d 183. In Chase, the defendant was charged with nine

counts involving three different criminal episodes. Id. ¶¶ 4-6, 8. There, the

sentencing court began by discussing the sentencing factors set forth in section

1501 and then continued by grouping the counts by date, with each of the

primary counts being a conviction of gross sexual assault. Id. ¶¶ 8, 11-12. At

the outset and before moving on to the individual counts, the court determined

that “[t]o achieve the goals of sentencing, . . . the three groups of sentences

would run consecutively due to the serious and heinous nature of the multiple

criminal episodes.” Id. ¶ 12 (citing 17-A M.R.S. § 1608(1)(D)). The court in

Chase then moved on to each of the primary counts, conducting a separate

Hewey analysis for each. Id. ¶¶ 13-15. Each Hewey analysis yielded a different

sentence, and the court carefully explained why there was an increase in each

sentence during step two of each analysis. Id. ¶¶ 13-15, 29.
9

[¶14] In Merchant’s case, the court similarly began by recognizing the

sentencing factors in section 1501 and noting the potential for issuing

consecutive sentences due to the multiple episodes of criminal conduct. It

moved on to the analysis for Count 1, the first primary count of gross sexual

assault, by considering the factors that pertained to the nature and seriousness

of the offense and setting a basic sentence of eighteen years’ imprisonment.4

Next, the court proceeded to identify and weigh both the aggravating and

mitigating factors and set the maximum sentence of incarceration at twenty

years’ imprisonment. The court then moved on to the third and final step of the

analysis, where it determined that none of the twenty years’ imprisonment

would be suspended but indicated its intent to impose supervised release,

rather than probation, on Count 3.5 Ultimately, the final sentence was twenty

4 Merchant argues that the court erred by combining conduct from Counts 1 and 3 when it
determined the basic sentence of Count 1, thus violating his right to be free from double jeopardy
under the Maine and United States Constitutions. A court may consider other offenses when setting
the basic sentence if it is considering the nature of the specific offense as being part of a larger series
of activity that bears on the seriousness of the offense at issue. See e.g., State v. Lord, 2019 ME 82, ¶
34, 208 A.3d 781. Here, the court considered the larger timeframe and multi-year span of conduct in
order to analyze the nature and seriousness of the offense in Count 1 in the context of the series of
sexual assaults. Therefore, the court properly considered the conduct that surrounded Count 1 and
not extrinsic aggravating factors like the number of offenses. Id.; see also Downs, 2009 ME 3, ¶ 20,
962 A.2d 950.

5 Merchant argues that the court erred when it failed to consider whether to impose consecutive
sentences before moving on to the third step in the Hewey analysis on Count 1, contrary to our
guidance in State v. Stanislaw, 2013 ME 43, 65 A.3d 1242. Because the court indicated that its intent
to impose a period of supervised release on Count 3 shaped its determination in the third step of the
Hewey analysis on Count 1, it had to impose consecutive sentences on Counts 1 and 3 to avoid an
illegal split sentence on Count 1. See 17-A M.R.S. § 1881(2). Therefore, although not clearly
10

years’ imprisonment on Count 1. This was a proper exercise of the court’s

discretion in following the sentencing procedure, and we discern no error.

[¶15] The same cannot be said, however, for the sentence imposed on

Count 3. The court applied the same “general sentencing conclusions reached

in arriving at the sentence in Count 1” to Count 3. It reasoned that Count 1

occurred over the course of one year and Count 3 occurred over the course of

another year, and thus the same analysis on Count 1 would pertain to Count 3.

Yet, while ostensibly relying on the same reasons articulated in its analysis on

Count 1, the court then imposed a sentence of ten years’ imprisonment with

none of it suspended on Count 3. Consistent with its intent stated during the

analysis on Count 1, the court did impose a ten-year period of supervised

release, making the final sentence on Count 3 ten years’ imprisonment followed

by a ten-year period of supervised release.

[¶16] The court did not draw any distinction between the two primary

counts of gross sexual assault that would explain the decision to impose twenty

years’ imprisonment on Count 1 but ten years’ imprisonment on Count 3. It is

logically inconsistent that the same Hewey analysis for the same criminal

conduct committed by the same defendant would result in two different

articulated, the court in fact determined at the appropriate point in its sentencing analysis that the
sentences would be consecutive.
11

sentences. We conclude that the court abused its sentencing power by

imposing a sentence on Count 3 when it failed to conduct a separate Hewey

analysis and provide a rationale that would explain the discrepancy between

the sentences imposed on Counts 1 and 3. See also Chase, 2025 ME 90, ¶ 29,

345 A.3d 183 (conducting independent sentencing analyses on three primary

counts of gross sexual assault before imposing a higher sentence on two of the

three counts).6

[¶17] We remand this matter for resentencing consistent with our

sentencing jurisprudence and in line with the procedure followed by the

sentencing court in Chase.7

The entry is:

Sentence vacated. Remanded for resentencing
consistent with this opinion.

6 On appeal, Merchant also argues that the court’s unsuspended sentence of thirty years of
incarceration is excessive and disproportionate, and therefore the sentence violates the Maine and
United States Constitutions. Because the court will be required to resentence Merchant as a result of
our opinion, we do not decide whether the existing sentence is disproportionate or excessive. See
State v. Cummings, 2023 ME 35, ¶ 37, 295 A.3d 1227. We also note that the sentencing will occur
before a different judge because the sentencing judge has since resigned.

7 To be clear, upon remand the sentencing court may not impose a sentence which is more severe

than the sentence that we have vacated. 15 M.R.S. § 2156(1-A) (2025); see also State v. Murray-Burns,
2023 ME 21, ¶ 20, 290 A.3d 542. Therefore, the sentence on Count 3 cannot be a consecutive sentence
of twenty years’ imprisonment.
12

John E. Baldacci, Jr., Esq. (orally), Steve Smith Trial Lawyers, Augusta, for
appellant Keith Merchant

Michael H. Madigan, Esq. (orally), Asst. Dist. Atty., and Evan C. Toothaker, Stud.
Atty., Kennebec County District Attorney’s Office, Augusta, for appellee State of
Maine

Somerset County Unified Criminal Docket docket number CR-2023-982
FOR CLERK REFERENCE ONLY