MAINE SUPREME JUDICIAL COURT                                                         Reporter of Decisions
Decision: 2016 ME 59
Docket:   Yor-15-37
Argued:   December 8, 2015
Decided:  April 21, 2016

Panel:        SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, and HJELM, JJ.


                                        STATE OF MAINE

                                                    v.

                                    DALE M. PINKHAM SR.

MEAD, J.

         [¶1] Dale M. Pinkham Sr. appeals from a judgment of conviction entered in

the Unified Criminal Docket (York County, Fritzsche, J.) following his

convictions after conditional guilty pleas, and a bench trial on aggravating factors

only, on three counts of aggravated trafficking in scheduled drugs (Class A),

17-A M.R.S. § 1105-A(1)(H) (Count I), (1)(B)(1) (Count II), (1)(C-1)(1)

(Count III) (2015);1 and one count of possession of a firearm by a prohibited

person (Class C) (Count VII), 15 M.R.S. § 393(1)(A-1)(1) (2015).

         [¶2] Pinkham contends that both 17-A M.R.S. § 1101(17)(E) (2015), which

provides that one of the ways in which a person may “traffick” in heroin is “[t]o


   1
     Counts I, II, and III alleged identical charges of trafficking in scheduled drugs, but each put forward
separate and distinct aggravating factors to enhance the charge from a Class B offense to a Class A
offense: Count I alleged trafficking six grams or more of heroin; Count II alleged that Pinkham had a
1986 felony conviction for unlawful trafficking in scheduled drugs; and Count III alleged that Pinkham
possessed a firearm in furtherance of the offense.
2

possess 2 grams or more of heroin,” and 17-A M.R.S. § 1105-A(1)(H),2 which

elevates trafficking in heroin from a Class B to a Class A offense, require proof of

specific weights of actual heroin, not mixtures or compounds containing some

amount of heroin. We agree. Because the State did not prove the weight of the

actual heroin involved, we vacate the judgments of conviction. Pursuant to the

terms of Pinkham’s conditional guilty pleas, we remand to allow Pinkham to

withdraw his guilty pleas and for further proceedings.                                      See M.R.U.

Crim. P. 11(a)(2).

                                          I. BACKGROUND

          [¶3] From the evidence admitted at trial, the court could find the following

facts.       See State v. Stanley, 2015 ME 56, ¶ 2, 115 A.3d 1236.                                       On

December 6, 2013, Maine Drug Enforcement Agency agents executed a search

warrant at Pinkham’s residence. They found 20.75 grams of a powder testing

positive for heroin, packaged in two “fingers” and five smaller “tickets,” as well as

several firearms, including a loaded .44 magnum revolver, and $3800 in cash.


    2
        Title 17-A M.R.S. § 1105-A(1)(H) (2015) provides:

             1. A person is guilty of aggravated trafficking in a scheduled drug if the person
          violates section 1103 [unlawful trafficking in scheduled drugs] and:

             ....

             H. At the time of the offense, the person trafficks in heroin in a quantity of 6 grams or
          more or 270 or more individual bags, folds, packages, envelopes or containers of any
          kind containing heroin. Violation of this paragraph is a Class A crime.
                                                                                                         3

When agents interviewed Pinkham that evening, he admitted that the heroin was

his and that he used some and regularly sold it as well. He said that the guns

belonged to his son.

         [¶4] The York County Grand Jury indicted Pinkham on seven criminal

counts and four counts of criminal forfeiture.3 Three of the criminal counts were

later dismissed by the State. The criminal charges remaining for trial were the

three counts of aggravated trafficking in scheduled drugs (Counts I-III) and the

charge of possession of a firearm by a prohibited person (Count VII), as recited

supra.

A.       The Conditional Guilty Pleas

         [¶5] Pinkham entered conditional guilty pleas to Counts I, II, and III absent

their aggravating factors, resulting in pleas to unlawful trafficking in scheduled

drugs (Class B), 17-A M.R.S. § 1103(1-A)(A) (2015).4 Pinkham’s conditional

guilty pleas were specifically limited to that part of the statutory definition of

“traffick” that includes “possess[ion] [of] 2 grams or more of heroin,” 17-A M.R.S.

§ 1101(17)(E).

     3
     Following trial, the court ordered the forfeiture of $10,010 in currency and the .44 magnum revolver.
See 15 M.R.S. § 5826 (2015). Pinkham does not challenge the forfeiture on appeal.
     4
     Title 17-A M.R.S. § 1103(1-A)(A) (2015) provides that, absent an express statutory provision to the
contrary, “a person is guilty of unlawful trafficking in a scheduled drug if the person intentionally or
knowingly trafficks in what the person knows or believes to be a scheduled drug, which is in fact a
scheduled drug, and the drug is . . . [a] schedule W drug. Violation of this paragraph is a Class B crime.”
Heroin is a schedule W drug. 17-A M.R.S. § 1102(1)(I) (2015).
4

        [¶6] When the court addressed Pinkham concerning his intention to enter

conditional guilty pleas, it said:

        COURT: So what that leaves us with, Mr. Pinkham, is Counts I, II
        and III, in their non-aggravated portion [which] are Class B offenses
        for trafficking in a scheduled drug. The claim there is that about
        December 6, 2013 in Buxton, you intentionally or knowingly
        trafficked in what you knew or believed to be a scheduled drug, which
        was, in fact, heroin. So they’re claiming that the trafficking is not a
        question of your being caught selling it, but rather that you’re
        possessing two or more grams of a substance whose total weight,
        including the inert substance or the cut, was more than two grams. So
        do you know that they have to prove that you intentionally or
        knowingly possessed a certain substance, you knew or believed it to
        be heroin. The total weight was excessive (sic) two grams. At least
        some if it was, in fact, heroin. . . . So do you know that that’s the
        Class B part of this?

        PINKHAM: Yes, sir.

        [¶7] The State offered no objection to the court’s explanation constraining

the scope of the pleas to the trafficking charges in Counts I, II, and III to the weight

of heroin in Pinkham’s possession. After the court heard the State’s proffer of the

evidence that it expected to present had there been a trial, which included evidence

of Pinkham’s possession of heroin and his confession to selling it, the court

accepted the pleas.          Pinkham’s attorney then noted, without objection or

qualification by the State, that “with respect to the Rule 115 . . . the issue we were



    5
     The rule governs, inter alia, the acceptance of conditional guilty pleas. M.R. Crim. P. 11(a)(2)
(Tower 2014); see M.R.U. Crim. P. 11(a)(2) (effective July 1, 2015, in York County).
                                                                                    5

obviously concerned about is the prong of possession of two grams or more of

heroin as equating to trafficking,” to which the court responded, “That’s right.”

           [¶8] Although the State could have sought to establish as an alternative

basis for conviction that Pinkham did “sell, barter, trade, exchange or otherwise

furnish [heroin] for consideration,” and was therefore guilty of trafficking the drug,

17-A M.R.S. § 1101(17)(C) (2015), it is clear that Pinkham’s conditional pleas to

Counts I, II and III were tendered only in response to the allegation that he

“possess[ed] 2 grams or more of heroin.” 17-A M.R.S. § 1101(17)(E).

           [¶9] The pleas preserved for appeal the argument raised in Pinkham’s third

motion in limine, which the court rejected, that the State was required to prove that

he possessed two grams or more of actual heroin.

B.         Bench Trial on the Aggravating Factors

           [¶10] At a bench trial convened to address the viability of the aggravating

factors alleged in Counts I, II, and III, which would, if proved, elevate the Class B

offenses to which Pinkham pleaded guilty to Class A offenses,6 the State presented

the testimony of officers who conducted the search of the Pinkham residence, and




     6
         See 17-A M.R.S. §§ 1105-A(1)(H), (1)(B)(1), (1)(C-1)(1) (2015).
6

others who interviewed Pinkham. The officers confirmed that Pinkham confessed

to possessing the heroin found in the home and to selling it on a daily basis.7

        [¶11] The State also offered the testimony of the chemist for the Maine

Health and Environmental Testing Laboratory who tested the powder recovered

from Pinkham. He testified that prior to testing he aggregated 19.52 grams of

powder from the two “fingers,” and separately aggregated 1.23 grams of powder

from the five “tickets.” He then tested the two mixtures; each tested positive for

heroin and at least one also tested positive for a cutting agent, caffeine. The

chemist could not say whether each of the original “fingers” or “tickets” contained

heroin before they were mixed together, nor did he determine the amount of actual

heroin in the mixtures, although the laboratory could have done so if the

submitting agency had requested such a test. In sum, the chemist told the court

that there was some detectable amount of heroin in the mixtures that met the

laboratory’s unspecified threshold reporting requirement, “but I have no idea how

much heroin was in fact there.”

        [¶12] At the conclusion of the trial the court found that the aggravating

factors alleged in Counts I, II, and III had been proved beyond a reasonable doubt,

and thus found Pinkham guilty of the three counts of Class A aggravated


    7
       Pinkham provided considerable detail regarding his heroin selling operation including pricing,
profits, amounts, and his supplier’s location.
                                                                                                     7

trafficking charged in the indictment. The court also found Pinkham guilty on

Count VII; Pinkham does not challenge that verdict on appeal. At a sentencing

hearing, the court entered judgment and sentenced Pinkham on Counts I, II and III

to concurrent terms of fourteen years’ imprisonment, with all but seven years

suspended, and four years of probation, along with a $400 fine on each count and

$120 in restitution; on Count VII the count imposed three years’ imprisonment to

be served concurrently. Pinkham appealed.

                                        II. DISCUSSION

       [¶13] Concerning both the weight required to establish Class B trafficking

(two grams), 17-A M.R.S. § 1101(17)(E), and the weight required to prove the

aggravating factor in Count I (six grams), 17-A M.R.S. § 1105-A(1)(H), the issue

is whether, as the State contends, the term “heroin” as used in 17-A M.R.S.

§ 1101(17)(E) and § 1105-A(1)(H) means a “compound, mixture or preparation

containing” heroin, see 17-A M.R.S. § 1102(1)(I) (2015),8 or whether it means

actual heroin. If it is the former, there was sufficient evidence that Pinkham

possessed much more than the weight necessary to establish both the Class B

trafficking offenses to which he pleaded guilty and the aggravated offense charged




   8
     The statute has been amended, but not in any way that affects this appeal. P.L. 2015, ch. 330, § 1
(emergency, effective July 12, 2015).
8

in Count I. If it is the latter, there was insufficient evidence that the substance

recovered from Pinkham contained actual heroin of any given quantity.

      [¶14] It is well established that “[w]hen interpreting a statute de novo, we

first examine the plain meaning of the statutory language. The fundamental rule in

the interpretation of any statute is that the intent of the legislature, as divined from

the statutory language itself, controls.”     State v. Solomon, 2015 ME 96, ¶ 9,

120 A.3d 661 (quotation marks omitted). More specifically, “[w]hen interpreting a

criminal statute, we are guided by two interrelated rules of statutory construction:

the rule of lenity, and the rule of strict construction. Pursuant to each of these

rules, any ambiguity left unresolved by a strict construction of the statute must be

resolved in the defendant’s favor.”         State v. Lowden, 2014 ME 29, ¶ 15,

87 A.3d 694 (citations omitted).

      [¶15] The crime of trafficking heroin to which Pinkham pleaded guilty in

Count I may be committed in one of two ways, either by (1) “possess[ing] 2 grams

or more of heroin,” or by (2) “possess[ing] . . . 90 or more individual bags, folds,

packages, envelopes or containers of any kind containing heroin.” 17-A M.R.S.

§§ 1101(17)(E), 1103(1-A)(A).         The difference in the two alternatives is

significant. Whereas the second alternative criminalizes trafficking in a sufficient

number of packages “containing heroin,” id. § 1101(17)(E) (emphasis added), the

first criminalizes trafficking two grams or more of “heroin,” not two grams or
                                                                                     9

more of a compound containing heroin. The fact that the Legislature drew that

distinction between two alternatives in the same sentence suggests that it was

purposeful. It would have been simple enough to define the crime as prohibiting

trafficking in two grams or more of any mixture containing heroin, had that been

the Legislature’s intent.

      [¶16] Prior to 2007 that is what the Legislature did. As late as 2006,

schedule W included “all narcotic drugs, including, but not limited to, the

following narcotic drugs or their salts, isomers or salts of isomers: heroin . . . . As

used in this chapter, ‘heroin’ means any compound, mixture or preparation

containing heroin.” 17-A M.R.S. § 1102(1)(I) (2006) (emphasis added). In 2007,

that provision, including the final sentence that would have conclusively resolved

the   issue   in   this     case,   was   repealed.   P.L.   2007,   ch.   55,   §   1

(effective Sept. 20, 2007).

      [¶17] The provision now states that schedule W includes “any compound,

mixture or preparation containing narcotic drugs, including, but not limited to, the

following narcotic drugs or their salts, isomers or salts of isomers: heroin.”

Id. (codified at 17-A M.R.S. § 1102(1)(I)). The State argues that the legislation

simply moved the “compound, mixture or preparation containing” language to the

top of the paragraph and changed nothing insofar as heroin is concerned. That

argument ignores the critical “[a]s used in this chapter” clause, however, which
10

was repealed and not reenacted. See 17-A M.R.S. § 1102(1)(I) (2006). A plain

language reading of the current section 1102(1)(I) classifies a “compound, mixture

or preparation containing . . . heroin” as a schedule W drug, but it does not, as it

did formerly, provide that that is the meaning of the word “heroin” throughout title

17-A, chapter 45.

           [¶18] We do not regard the omission of “[a]s used in this chapter” as

meaningless. Rather, we conclude that section 1102(1)(I) continues to categorize a

mixture containing heroin as a schedule W drug, but when section 1101(17)(E) sets

out “possess[ing] 2 grams or more” as an element of the crime to which Pinkham

pleaded guilty, it means, as it plainly says, two grams or more of heroin, and not

two grams or more of a compound or mixture containing some heroin.

           [¶19] That conclusion finds further support in other parts of the chapter of

the criminal code concerning drugs.9 See State v. Mourino, 2014 ME 131, ¶ 8,

104 A.3d 893 (“[W]e construe the statute in accordance with its plain meaning in

the context of the whole statutory scheme.” (quotation marks omitted)). Since the

repeal of the former section 1102(1)(I), see P.L. 2007, ch. 55, § 1, “heroin” is not

specifically defined. In contrast, the Legislature specifically defines “cocaine” to

include “[a] mixture or preparation that contains any quantity of . . . [c]ocaine.”

17-A M.R.S. § 1102(1)(F)(2)(a) (2015).

     9
         See Title 17-A, chapter 45.
                                                                                    11

       [¶20] Furthermore, the Legislature recently added the drug fentanyl to the

definition of “traffick” in a way that demonstrates that it continues to differentiate

between a drug and mixtures that contain the drug. Identically to the treatment of

heroin in section 1101(17)(E), “traffick” is now defined to include the possession

of “2 grams or more of fentanyl powder or 90 or more individual bags, folds,

packages, envelopes or containers of any kind containing fentanyl powder.”

P.L. 2015, ch. 346, § 1 (effective Oct. 15, 2015) (codified at 17-A M.R.S.

§ 1101(17)(F) (2015)). Dissimilar to the post-2007 treatment of heroin, however,

but similar to the current treatment of cocaine, “Fentanyl powder” is newly defined

to mean “any compound, mixture or preparation, in granular or powder form,

containing fentanyl.” P.L. 2015, ch. 346, § 3 (effective Oct. 15, 2015) (codified at

17-A M.R.S. § 1101(24) (2015)).

       [¶21] In short, when the Legislature uses the name of a drug and intends for

the term to include mixtures containing that drug, it knows how to accomplish that

result, and does so, most recently within the past year. The fact that it once defined

heroin in that way, and then repealed that definition, has meaning. Logically, that

meaning is that the Legislature intended to continue including mixtures containing

heroin for crimes involving schedule W drugs generally,10 but when a specific


  10
        See, e.g., 17-A M.R.S. § 1107-A(1)(C) (2015) (making it a crime to possess “[a]
schedule W drug”).
12

quantity of heroin is an element of the crime, as in this case, that quantity refers to

the specified amount of actual heroin.

          [¶22] If, as the State contends, requiring proof of a specific quantity of

actual heroin runs counter to common street practice because traffickers sell, and

users buy, the “cut” weight of the drug, that is an argument that must be made to

the Legislature. It is our task to strictly construe criminal statutes as enacted by

that body, in the context of the relevant statutory scheme.                                See Lowden,

2014 ME 29, ¶ 15, 87 A.3d 694; Mourino, 2014 ME 131, ¶ 8, 104 A.3d 893

(stating that “criminal statutes must be construed strictly with ambiguities resolved

in favor of the accused” (quotation marks omitted)).

                                         III. CONCLUSION

          [¶23] Pinkham has prevailed on the issue preserved by his conditional guilty

pleas. Because he expressly pleaded guilty to the charge of trafficking based on

possession of two grams or more of heroin, and not to any alternative manner of

proof provided in 17-A M.R.S. § 1101(17), we vacate the judgments of conviction

on Counts I, II, and III and remand to the Superior Court, where Pinkham must be

allowed to withdraw his guilty pleas if he wishes.11


     11
       In vacating the underlying convictions, we express no opinion on the sufficiency of the evidence
supporting the court’s finding that the State proved the aggravating factors alleged in Counts II and III. It
necessarily follows from our decision, however, that the aggravating factor alleged in Count I—
trafficking in six grams or more of heroin—was not proved beyond a reasonable doubt, because the State
did not prove that any quantifiable amount of actual heroin was involved, be it two grams or six.
                                                                                 13

        [¶24] Because we are vacating all three trafficking convictions and allowing

Pinkham to withdraw his guilty pleas to those counts, we do not reach his

alternative argument that the trafficking convictions must be consolidated in order

to avoid a double jeopardy violation.

        The entry is:

                           Judgment on Counts I, II, and III vacated.
                           Remanded to allow Pinkham to withdraw his
                           guilty pleas to those counts, and for further
                           proceedings. Judgment on Counts VII, VIII, IX,
                           and X affirmed.



On the briefs:

        Tyler J. Smith, Esq., Libby O’Brien Kingsley & Champion,
        LLC, Kennebunk, for appellant Dale M. Pinkham Sr.

        Janet T. Mills, Attorney General, and Jamie R. Guerrette, Asst.
        Atty. Gen., Office of the Attorney General, Augusta, for
        appellee State of Maine


At oral argument:

        Tyler J. Smith, Esq., for appellant Dale M. Pinkham Sr.

        Raphaelle Silver, Asst. Atty. Gen., Office of the Attorney
        General, Augusta, for appellee State of Maine



York County Superior Court docket number CR-2013-2963
FOR CLERK REFERENCE ONLY