State of Maine v. Mark D. Penley

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2023 ME 7
Docket: Oxf-21-400
Argued: October 5, 2022
Decided: January 19, 2023

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

STATE OF MAINE

v.

MARK D. PENLEY

LAWRENCE, J.

[¶1] Mark D. Penley appeals from a judgment of conviction of two counts

of intentional or knowing murder, 17-A M.R.S. § 201(1)(A) (2018),1 entered by

the trial court (Oxford County, Warren, J.) after a jury trial and from his two

concurrent life sentences. He challenges the court’s admission of evidence that

one of the victims was planning to seek a court order of protection from abuse

against him in the days before the victims’ deaths; the court’s failure to respond

to the prosecutor’s suggestion, during closing argument, that Penley had a

1 Because of statutory amendments enacted since the relevant time, see, e.g., P.L. 2019, ch. 462,
§ 3 (effective Sept. 19, 2019) (codified at 17-A M.R.S. § 201(4) (2022)); P.L. 2019, ch. 113, §§ A-1, A-2
(emergency, effective May 16, 2019) (repealing and replacing sentencing statutes), this opinion cites
the substantive statutes, including the statutes governing the imposition of the sentences, that were
in effect at the time of the victims’ deaths in January 2019. See State v. Hardy, 489 A.2d 508, 512
(Me. 1985) (holding that “the wrongdoer must be punished pursuant to the law in effect at the time
of the offense”).
2

burden of proof; and the court’s consideration of domestic violence in

determining the basic term of imprisonment for the crimes. We affirm the

judgment of conviction but vacate the sentences and remand for resentencing

consistent with this opinion.

I. BACKGROUND

[¶2] Viewing the evidence in the light most favorable to the State, the

jury rationally could have found the following facts beyond a reasonable doubt.

See State v. Gatto, 2020 ME 61, ¶ 16, 232 A.3d 228. On the night of January 1,

2019, Penley went to the apartment of Dana Hill, where he knew his

ex-girlfriend, Heather Bickford, was staying, and in the presence of Bickford’s

two young children,2 repeatedly shot Bickford and Hill, causing their deaths.

[¶3] On January 4, 2019, Penley was charged by complaint with two

counts of murder, 17-A M.R.S. § 201(1)(A), for the deaths of the two victims. A

grand jury indicted him for those charges in February 2019. Penley pleaded

not guilty to both charges.

[¶4] Penley moved in limine to exclude testimony from witnesses who

had heard from Bickford, shortly before her death, that she feared him and was

2Although Penley had treated the oldest child as his own and wanted to be the father of both
children, Hill was the children’s biological father.
3

planning to seek a court order of protection against him. The State moved in

limine for the court to admit statements that Bickford had made to others about

her fear of Penley and her intention to seek an order of protection from abuse.

After a nontestimonial hearing, the court ruled preliminarily that Bickford’s

statements to others would be admissible to the extent that they were evidence

of her existing mental state, intent, or plan, see M.R. Evid. 803(3), but that her

reasons for wanting to obtain an order of protection—i.e., her underlying

reports of Penley’s conduct toward her—would not be admissible.

[¶5] The court held a nine-day trial in October 2021. In addition to other

testimony and evidence, the court admitted the following testimony, which

Penley challenges on appeal:

• The testimony of Bickford’s landlord, a deputy judicial marshal at the
Rumford courthouse, that in December 2018 Bickford asked her when
the court would be open so that she could obtain a protection order
against Penley because she was scared;

• The testimony of Bickford’s friend that in late December 2018, Bickford
asked her to accompany her to get a protection order, though Bickford
did not end up obtaining one because the courthouse was closed;

• The testimony of another friend of Bickford’s that on December 28, 2018,
he accompanied Bickford to the South Paris courthouse to speak with a
law enforcement officer because she had told him she was scared of
Penley; and

• The testimony of a police officer that at the courthouse on December 28,
Bickford met with him and told him that she feared Penley and was going
4

to obtain a protection from abuse order against him, and that Bickford
provided the officer with a description of Penley’s vehicle so that the
officer could keep a lookout for it while Bickford stayed at Hill’s
apartment.

[¶6] After the presentation of evidence, the jury heard closing arguments

from the parties. Penley’s counsel argued, in part, that the State had

manipulated evidence:

Now, the last thing . . . that I [will] go over with you, ladies
and gentlemen, is what I call manipulation of evidence,
manipulation of the facts, whether it’s to correct the mistakes that
have been made, to supplement data. That’s happening here and it
needs to be pointed out.

Counsel addressed multiple instances of what he characterized as

manipulation, including the State’s handling of Facebook phone location

tracking data, which he described as “putting it in the order that [they] want,

manipulation of the evidence, manipulation of what they get from Facebook,

correcting the errors that they see.”3

[¶7] The State responded with the now-challenged assertion that “it’s

easy to make an accusation and not have to back it up with evidence.” The

prosecutor elaborated and argued that Facebook has a financial motivation for

ensuring the accuracy of its records and that other evidence, including a

3The detective who examined the Facebook GPS phone location records testified at length to
explain the records. He indicated that he had had to sort the data by date and time.
5

surveillance video and receipts found in his vehicle, showed that during the day

of the killings Penley was present at locations that were consistent with the

locations for his phone compiled by Facebook’s phone tracking system. Penley

did not object at trial to the prosecutor’s arguments.

[¶8] The jury found Penley guilty of both charged crimes. The court held

a sentencing hearing on November 23, 2021. The court heard from family

members of the victims and considered arguments from both parties before

delivering its sentences. The court considered the purposes of sentencing and

conducted the requisite two-step sentencing analysis.4 See 17-A M.R.S.

§ 1252-C(1)-(2) (2018); State v. Bentley, 2021 ME 39, ¶ 10, 254 A.3d 1171.

[¶9] The court first considered the objective nature and seriousness of

the crimes to determine the “basic” term of imprisonment—the first step in the

statutory sentencing process. See 17-A M.R.S. § 1252-C(1). The court set the

basic term of imprisonment for the crimes at life imprisonment, with the

sentences to run concurrently. The court based its determination on several

factors indicating that the murders were among the most serious: Penley

intended to kill multiple victims, the killings were premeditated, there were

4 There is no third step in murder sentencing because no period of probation is authorized.
See 17-A M.R.S. § 1201(1)(A) (2018).
6

signs of domestic violence in both the relationship with Bickford and the

committed crimes, and children were present at the scene of the murder. The

court then went on at some length about domestic violence:

And on the domestic violence issue, I don’t have before me
evidence of exactly what happened during the ten-year
relationship. That seems to have been an on and off relationship in
part, but there was a lot of evidence about the end of that
relationship and although . . . it’s definitely fair to state that there
appears to have been a complicated relationship there, because
they remained together . . . at least to some degree, even after
Mr. Penley learned that [the older child] was not his child, by the
end . . . it had soured to the point where Mr. Penley, based on those
Facebook messages, had descended into what I can only describe
as viciousness . . . . And based on some of the testimony at trial he
was doing at the end stalking.

I have no reason to know what happened earlier in the
relationship but it seems to have been triggered . . . at least in part
by . . . the fact that not only was [Bickford] leaving but the fact she
was going to someone else, particularly Mr. Hill, who [Penley]
demonstrated, I think it’s safe to say, extreme hatred for.

[¶10] In arriving at the basic term of imprisonment for the crimes, the

court also compared the facts of this case to two other cases where sentencing

courts imposed a basic term of imprisonment of life in prison when children

were present at the scene of the crime. See State v. Waterman, 2010 ME 45,

¶ 46, 995 A.2d 243 (holding that placing children close to a scene of violence or

murder can contribute to a determination that the murder is among the most

serious); State v. Hayden, 2014 ME 31, ¶¶ 4-6, 19, 86 A.3d 1221 (affirming the
7

court’s determination of a basic period of incarceration of life in prison when

the murder occurred in front of children and involved multiple victims, extreme

cruelty, and domestic violence).

[¶11] In the second step, the court examined the mitigating and

aggravating factors to determine the maximum sentences. See 17-A M.R.S.

§ 1252-C(2). In mitigation, the court found that Penley was a productive

member of society in that he held down a job and provided for Bickford and the

oldest child when they were together and that he was a loving father to the

oldest child even after he learned that he was not the child’s biological father.

As aggravating factors, the court considered Penley’s prior misdemeanor

convictions, the conscious pain and suffering of Bickford, and the impact on the

families of the victims, including the victims’ two children. The court concluded

that the aggravating factors outweighed the mitigating factors and imposed two

concurrent life sentences. The court also ordered Penley to pay $11,423.63 in

restitution to the Victims’ Compensation Fund and statutorily required fees of

$70. See 5 M.R.S. § 3360-I (2018).

[¶12] Penley timely appealed from the judgment of conviction and

successfully applied to the Sentence Review Panel for appellate review of his

sentences after the trial court enlarged the time for him to file the petition for
8

sentence review. See 15 M.R.S. §§ 2115, 2151-2152 (2022); M.R.

App. P. 2B(b)(1), 20(h). We review Penley’s sentences as a part of his appeal

from the judgment of conviction. See M.R. App. P. 20(h).

II. DISCUSSION

[¶13] Penley argues that the court erred in (A) admitting evidence of

Bickford’s fear of Penley and intention to obtain a protection order against him,

(B) allowing prosecutorial arguments in closing that implied that Penley had a

burden of proof, and (C) improperly taking domestic violence into account

when setting the basic term of imprisonment for the crimes. We address each

issue in turn.

A. Evidence of the Victim’s Intention to Seek a Protection Order

[¶14] Penley and the State agree that the trial court properly excluded

evidence of Bickford’s statements to others about Penley’s previous conduct.

See M.R. Evid. 404(b) (“Evidence of a crime, wrong, or other act is not

admissible to prove a person’s character in order to show that on a particular

occasion the person acted in accordance with the character.”). Penley contends,

however, that the court erred in admitting evidence that Bickford told others

that she was afraid of Penley and wanted a protection from abuse order against

him. Penley contends that the evidence was hearsay that is not probative of
9

Penley’s motive or his relationship with Bickford and that its admission—even

to establish Bickford’s then-existing state of mind, see M.R. Evid. 803(3)—was

unfairly prejudicial and resulted in the jury considering impermissible

evidence suggesting prior bad acts to show that Penley acted in conformity with

those acts in committing the charged crime, see M.R. Evid. 403, 404, 803(3).

[¶15] We review a ruling admitting or excluding alleged hearsay

evidence for an abuse of discretion. State v. Tieman, 2019 ME 60, ¶ 12, 207 A.3d

618. Hearsay—a statement not made while testifying at the current trial or

hearing that is offered in evidence to prove the truth of the matter asserted in

the statement—is generally inadmissible. See M.R. Evid. 801(c), 802. Evidence

is admissible notwithstanding the hearsay rule, however, if it is “[a] statement

of the declarant’s then-existing state of mind (such as motive, intent, or plan).”

M.R. Evid. 803(3). “[T]he state of mind hearsay exception [is] limited to

evidence that is highly relevant and uttered in circumstances indicating its

truthfulness above and beyond the reliability presumed of all statements of

present mental state.” State v. Mahaney, 437 A.2d 613, 617 (Me. 1981)

(quotation marks omitted). In addition to the Rule 803(3) requirement that

state-of-mind evidence be “highly relevant,” see id., Rule 403 of the Maine Rules

of Evidence calls for the exclusion of evidence if “its probative value is
10

substantially outweighed by a danger of . . . unfair prejudice.” That

determination is reviewed for an abuse of discretion. See State v. Williams,

2020 ME 128, ¶ 29, 241 A.3d 835.

[¶16] Considering the state-of-mind exception in conjunction with

Rule 403, we agree with other jurisdictions holding that a murder victim’s state

of mind is generally not probative of the defendant’s state of mind and should

not be admitted unless it is relevant to rebut a defense or justification that

brings the deceased person’s state of mind into question. See, e.g., Woods v.

State, 733 So. 2d 980, 987-88 (Fla. 1999) (referencing as examples arguments

that the death resulted from self-defense, suicide, or accident). The Minnesota

Supreme Court held, for instance, that testimony about a victim’s emotional

state three months before the murder, when she was seeking an order for

protection based on the defendant’s previous conduct, did not bear on the

defendant’s motive to commit the charged crime. State v. Bauer, 598 N.W.2d

352, 357, 366-67 (Minn. 1999), overruled in part on other grounds by State v.

McCoy, 682 N.W.2d 153, 160 n.6 (Minn. 2004). The Colorado Supreme Court

similarly held that testimony concerning the victim’s opinion that the

defendant would kill her was not proper state-of-mind evidence because

references to her state of fear were “significantly overshadowed by references
11

to other matters not encompassed by the state of mind exception.” People v.

Madson, 638 P.2d 18, 24-25, 30 (Colo. 1981).

[¶17] As the Supreme Court of Florida stated, “The victim’s hearsay

statements in a homicide case that the victim was afraid of the defendant

generally are not admissible under the state of mind exception because the

victim’s state of mind is not a material issue in a murder case.” Stoll v. State,

762 So. 2d 870, 874 (Fla. 2000); see also Anderson v. State, 15 S.W.3d 177,

184 (Tex. App. 2000). If the state-of-mind evidence conveys information

beyond that expressly contemplated by Maine Rule of Evidence 803(3), there

is a significant danger of unfair prejudice. See Bauer, 598 N.W.2d at 367;

Madson, 638 P.2d at 28-31; M.R. Evid. 403.

[¶18] Here, the court abused its discretion in admitting evidence of

Bickford’s statements that she was afraid of Penley and wanted a protection

order against him. Bickford’s state of mind was not an element of the crime and

was not probative of whether Penley had the “conscious object” to kill Bickford

and Hill or was the person who did so. 17-A M.R.S. § 35(1)(A) (2018). In other

contexts, evidence of a victim’s state of mind may have significant probative

value and be admissible under Rule 803(3).5 Such evidence, however, is

5 See, e.g., People v. Thompson, 753 P.2d 37, 45-47 (Cal. 1988) (holding that the victim’s statement
that she feared the defendant might kill her—a statement made on the night of the murder in
12

generally not admissible when (a) the victim’s state of mind is not relevant to

either an element of a crime or a defense or justification and (b) the danger of

unfair prejudice is significant. See M.R. Evid. 403, 803(3); Mahaney, 437 A.2d at

617.

[¶19] Nonetheless, “[a]ny error, defect, irregularity, or variance that

does not affect substantial rights shall be disregarded.” M.R.U. Crim. P. 52(a).

Here, the court’s admission of the challenged evidence and failure to deliver a

limiting instruction sua sponte was harmless under this standard given the

evidence of Penley’s hostile words and conduct toward Bickford before the

murders, and the substantial other evidence connecting him to the crime.

See Tieman, 2019 ME 60, ¶ 18, 207 A.3d 618 (stating that an error is harmless

if it is “highly probable the error did not affect the jury’s verdict” (quotation

marks omitted)). The evidence included Penley’s statement to Bickford in a

recorded message: “You’re threatening to put a PFA on me? Good. I will be

down tonight. I fucking will. You want to threaten a fuckin’ PFA on me? Fuck

you, you bitch. Fuck you.” The evidence also included the following:

circumstances suggesting no motive to fabricate—was admissible because it was probative of
whether the victim consented to intercourse or was murdered in the commission of a rape as the
State charged).
13

• At the time of the murders, Bickford and Hill were reuniting.

• Penley was enraged that Bickford was spending time at Hill’s apartment,
and he contacted Bickford incessantly, leaving voice messages
demonstrating increasing anger at Bickford and Hill and making threats
of violence.

• In the days leading up to the killings, Penley behaved in an intimidating
and aggressive manner toward Bickford in the presence of others.

• Penley told a friend that he had previously surreptitiously entered Hill’s
apartment with a gun while Bickford and the children were asleep there.
He also told the friend that if he could not have Bickford, nobody could,
and said that he wanted to shoot Bickford and Hill.

• Penley dug at least one grave-sized hole near his home.

• Facebook phone location tracking data indicated that Penley’s phone
traveled to a lot near Hill’s apartment at 5:40 p.m. on the night of the
murders and that the phone was turned off or disconnected from the
network from that time until 7:27 p.m., when the phone was located in
the town where Penley lived, near the home of a member of Penley’s
family.

• Security footage captured a dark figure entering the area where the
killings took place at 5:51 p.m. and exiting at 6:19 p.m., with a person next
approaching at 8:25 p.m. Penley called the police from Hill’s apartment
at 8:26 p.m.

• At the crime scene, police found a gun in Bickford’s hand that had a serial
number matching a gun box found at Penley’s home.

• Eight cartridge casings recovered from the scene bore tool markings that
matched the tool markings produced by the gun found at the crime scene.
The gun was not excluded as the source of the marks on the bullets
recovered from the victims’ bodies and the crime scene.
14

• Penley had ammunition in his vehicle and home that matched the
ammunition that was fired in Hill’s apartment. A gun magazine found in
Penley’s home was stained with Bickford’s blood.

• Penley’s boots, which police initially saw at Penley’s home but later
recovered from the home of a member of Penley’s family, had treads that
matched tread patterns in blood at the scene of the crime.

• DNA testing revealed Bickford’s DNA in the red-brown stains at the
bottom of Penley’s boots.

[¶20] Given Penley’s own mention of Bickford’s intent to “put a PFA” on

him—and the abundant admissible evidence that Penley was angry at both

victims and was linked to the crime scene and the murder weapon—the court’s

admission of evidence that Bickford feared Penley and wanted to obtain a court

order to protect her from him was harmless error.6 See State v. Discher,

597 A.2d 1336, 1338-39, 1342 (Me. 1991) (holding that improperly admitting

evidence regarding a statement by the victim’s mother was harmless in light of

the defendant’s own similar statement, together with the other evidence in the

case).

6Furthermore, the prosecutor’s closing arguments referencing Bickford’s fear, to which Penley
raised no objection at trial, do not amount to obvious error given the admissible evidence,
summarized in closing, of Penley’s intimidating words and conduct toward Bickford before the
killings. See State v. Pratt, 2020 ME 141, ¶¶ 14, 19, 243 A.3d 469.
15

B. Prosecutorial Error

[¶21] Penley argues that the prosecutor undermined the fairness of the

proceedings by improperly suggesting in closing argument that Penley had the

burden of proving his theory that Facebook phone location tracking data were

unreliable, inaccurately indicating that there was no evidence to demonstrate

problems with the Facebook data, and improperly disparaging defense counsel

for challenging the data “over and over and over and over again.”

[¶22] Because Penley did not object to the State’s argument, we review

for obvious error. See M.R.U. Crim. P. 52(b); State v. Sousa, 2019 ME 171, ¶ 15,

222 A.3d 171. “To show obvious error, there must be (1) an error, (2) that is

plain, and (3) that affects substantial rights.” Sousa, 2019 ME 171, ¶ 15,

222 A.3d 171 (quotation marks omitted). “[I]f these three conditions are met,

we will set aside a jury’s verdict only if we conclude that (4) the error seriously

affects the fairness and integrity or public reputation of judicial proceedings.”

Id. (quotation marks omitted). “When a prosecutor’s statement is not sufficient

to draw an objection, particularly when viewed in the overall context of the

trial, that statement will rarely be found to have created a reasonable

probability that it affected the outcome of the proceeding.” Id. (quotation

marks omitted).
16

[¶23] We review claims of error arising from prosecutorial conduct to

determine, first, whether the conduct was in error. State v. Cheney, 2012 ME

119, ¶ 34, 55 A.3d 473; State v. White, 2022 ME 54, ¶ 19 n.9, 285 A.3d 262. If it

was in error, we review each of the State’s comments individually but also

consider all comments as a whole in determining whether to vacate the

conviction. Cheney, 2012 ME 119, ¶ 34, 55 A.3d 473; White, 2022 ME 54, ¶ 19

n.9, 285 A.3d 262. We will affirm the judgment if “it is highly probable that the

jury’s determination of guilt was unaffected by the prosecutor’s comments.”

Cheney, 2012 ME 119, ¶ 34, 55 A.3d 473 (quotation marks omitted).

[¶24] A closing argument is improper if it conveys a shift in the burden

of proof to the defendant or suggests “that the defendant must present evidence

in a criminal trial.” Id. ¶ 34. A prosecutor must “focus . . . on the evidence itself

and what the evidence shows or does not show, rather than on the defendant

and what he or she has shown or failed to show.” State v. Chan, 2020 ME 91,

¶ 25, 236 A.3d 471 (quotation marks omitted). Thus, a prosecutor may say that

the record contains no evidence to support a proposed finding but may not say

that the defendant failed to provide evidence to support a proposed finding.

See id. ¶ 27; Sousa, 2019 ME 171, ¶¶ 10-13, 222 A.3d 171.
17

[¶25] For instance, we vacated a judgment based on obvious error when

a prosecutor improperly shifted the burden of proof when cross-examining a

defendant. State v. Robbins, 2019 ME 138, ¶¶ 7, 13-16, 43, 215 A.3d 788. The

prosecutor questioned the defendant about other events occurring at the time

the defendant was committing the crime. Id. ¶ 7. When the defendant corrected

the prosecutor to say “allegedly” committing the crime, the prosecutor

responded, “No, no there is no . . . allegedly here,” because of “testimony on the

record” that the defendant committed the crime. Id. (emphasis and quotation

marks omitted). We determined that the prosecutor’s comments improperly

implied that the burden of the proof shifted to the defendant after the State

offered evidence suggesting guilt. See id. ¶¶ 7, 13.

[¶26] An isolated misstep by a prosecutor might not, however, require

us to vacate a judgment of conviction. For instance, we held that the statement

that the defendant “ha[d] no evidence” of someone else committing the crime

was improper but did not vacate the judgment when the comment was mild

and isolated, the court instructed the jury on the proper burdens soon

afterward, and the voluminous evidence of the defendant’s guilt suggested that

the comment would not have tipped the balance. Cheney, 2012 ME 119, ¶¶ 17,

35-36, 55 A.3d 473 (quotation marks omitted).
18

[¶27] Here, Penley asserts one instance of improper burden-shifting

during the State’s rebuttal closing argument:

You know, it’s easy to make an accusation and not have to
back it up with evidence. And with regard to the Facebook records,
that’s exactly what [defense counsel] tried to do over and over and
over and over again.

This statement is improper because it suggested that the defendant had a

burden to produce evidence to prove his position and repeatedly failed to do

so. The context for the comment, however, at least partially diminishes the

deleterious effect of the prosecutor’s misstep. Defense counsel had structured

his closing argument around several themes, including that the State

manipulated evidence. He argued that the State had manipulated the Facebook

data by “putting it in the order that [they] want, manipulation of the evidence,

manipulation of what they get from Facebook, correcting the errors that they

see.”

[¶28] The State responded with the now-challenged assertion that “it’s

easy to make an accusation and not have to back it up with evidence.” The

prosecutor elaborated, however, and argued that Facebook has financial

motivations for ensuring the accuracy of its records and that other evidence

corroborated the Facebook phone location data.
19

[¶29] Although the prosecutor’s statement taken alone improperly

implied that Penley had a burden of proof, the prosecutor’s subsequent

arguments properly addressed the state of—and weight of—the evidence in the

record. Moreover, the court explicitly instructed the jury after the closing

arguments that “[t]he law never imposes upon a defendant in a criminal case

the burden or duty of calling any witnesses or producing any evidence, and you

can never rely on the failure of a defendant to offer evidence on any issue.”

See id. ¶¶ 18, 36. The court also instructed that “the closing arguments of the

attorneys in this case are not evidence.” The court thus did not commit obvious

error by not, sua sponte, striking the prosecutor’s argument or delivering a

limiting instruction.7

C. Sentencing

[¶30] Lastly, Penley argues that his sentences were improper because,

as a matter of law, a consideration of domestic violence belongs only in the

second step of the sentencing process, where the court weighs the aggravating

We also do not discern obvious error from the cumulative effect of the prosecutor’s improper
7

arguments about the Facebook data and about Bickford’s statements of her fear and her plan to
obtain a protection order. See State v. Sholes, 2020 ME 35, ¶ 9, 227 A.3d 1129; State v. Gould, 2012
ME 60, ¶¶ 16-17, 43 A.3d 952.
20

and mitigating factors. In his view, the court “multi-counted” the domestic

violence factor by also considering it in step one.

[¶31] “In a murder case, the sentencing court employs a two-step

process.” State v. Athayde, 2022 ME 41, ¶ 51, 277 A.3d 387 (quotation marks

omitted); see 17-A M.R.S. § 1252-C(1)-(2). The court first “determines the basic

term of imprisonment based on an objective consideration of the particular

nature and seriousness of the crime.” Athayde, 2022 ME 41, ¶ 51, 277 A.3d 387

(quotation marks omitted). Second, “the court determines the maximum

period of incarceration based on all other relevant sentencing factors, both

aggravating and mitigating, appropriate to that case, including the character of

the offender and the offender’s criminal history, the effect of the offense on the

victim, and the protection of the public interest.” Id. (alteration and quotation

marks omitted). On a discretionary appeal from a sentence, we review “a

court’s determination of the basic sentence de novo for misapplication of legal

principles” and its determination of the maximum period of incarceration for

abuse of discretion. State v. Sweeney, 2019 ME 164, ¶¶ 11, 17, 221 A.3d 130

(quotation marks omitted).

[¶32] A basic term of imprisonment at or near the top of the statutory

sentencing range for the crime is appropriate when a court “finds the
21

defendant’s conduct most serious as compared to other means of committing

the crime within that same range.” Hayden, 2014 ME 31, ¶ 18, 86 A.3d 1221

(quotation marks omitted). By statute, a court must “assign special weight” in

sentencing for murder to the fact “[t]hat the victim is a family or household

member as defined in Title 19-A, section 4002, subsection 4 who is a victim of

domestic violence committed by the convicted person.” 17-A M.R.S.

§ 1251(2)(C) (2018); see 19-A M.R.S. § 4002(4) (2018) (defining “family or

household members” to include “former domestic partners,” meaning

“2 unmarried adults who [we]re domiciled together under long-term

arrangements that evidence[d] a commitment to remain responsible

indefinitely for each other’s welfare”).

[¶33] If a murder is committed as an act of domestic violence, “that is an

objective factor properly considered in the first step of the sentencing analysis.”

Athayde, 2022 ME 41, ¶ 52, 277 A.3d 387 (quotation marks omitted). There

may, however, also be “evidence of previous domestic violence apart from the

acts constituting the crime itself.” Id. “In such circumstances, that history of

domestic violence would be considered as an aggravating factor in step two of

the sentencing analysis.” Id.
22

[¶34] The fact that Penley murdered his ex-girlfriend as an act of

domestic violence “is an objective factor properly considered in the first step of

the sentencing analysis.” State v. Nichols, 2013 ME 71, ¶ 29, 72 A.3d 503;

see State v. Reese, 2010 ME 30, ¶ 30, 991 A.2d 806 (holding that in determining

the basic sentence the sentencing court acted properly in considering that the

crime “occurred within the context of a violent relationship”); State v. Cookson,

2003 ME 136, ¶¶ 39, 41, 837 A.2d 101 (finding no error in the sentencing

court’s determination of the basic sentence when it considered the fact that the

“murder was a crime of domestic violence”). The court did not err by

considering the objective nature of the murder of Bickford as an act of domestic

violence in step one.

[¶35] The court, however, went further and delved into Penley’s history

with Bickford and Hill in step one by considering the “complicated relationship”

between Penley and Bickford over the course of ten years, acts of stalking

before the murder, and Penley’s burgeoning hatred of Hill. Any history of

domestic violence, apart from the commission of the crime itself, is properly

considered only in step two. See Athayde, 2022 ME 41, ¶ 52, 277 A.3d 387;

cf. Reese, 2010 ME 30, ¶ 30, 991 A.2d 806 (affirming the consideration of

previous threatening words and behavior in setting the basic sentence because
23

the defendant knew when he committed the charged elevated aggravated

assault that his domestic partner would be aware of these prior acts as she tried

to escape).

[¶36] The court’s analysis here cannot be viewed as harmless error

because it may have affected the court’s determination of the basic term of

imprisonment at life in prison. See State v. Stanislaw, 2011 ME 67, ¶ 16, 21 A.3d

91 (holding that when a court misapplies the law in setting the basic term of

imprisonment, the court “is left without a foundation on which to build an

appropriate sentence,” and the sentence must be vacated and the matter

remanded for resentencing). Accordingly, we vacate the sentences and remand

the matter for resentencing consistent with this opinion.

The entry is:

Sentences vacated. Matter remanded for
resentencing consistent with this opinion.
Judgment affirmed in all other respects.

Rory A. McNamara, Esq. (orally), Drake Law LLC, York, for appellant Mark D.
Penley

Aaron M. Frey, Attorney General, and Donald W. Macomber, Asst. Atty. Gen.
(orally), Office of the Attorney General, Augusta, for appellee State of Maine
24

Oxford County Unified Criminal Docket docket number CR-2019-21
FOR CLERK REFERENCE ONLY