State of Maine v. Donte Johnson

majority opinion

MAINE SUPREME JUDICIAL COURT Reporter of Decisions Decision: 2026 ME 87

Docket: Ken-24-563

Argued: October 8, 2025

Decided: August 13, 2026

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

STATE OF MAINE

DONTE JOHNSON

LAWRENCE, J.

[¶1] Donte Johnson appeals from a judgment of conviction entered by

the trial court (Kennebec County, Daniel Mitchell, J.) after a jury returned guilty

verdicts on multiple counts of drug trafficking and one count of refusing to

submit to arrest. Johnson argues that (1) a traffic stop on June 5, 2021, was an

unlawful arrest and that all evidence flowing from the stop should have been

suppressed, (2) the court should have dismissed the case as a sanction for the

State’s discovery violation, and (3) the sentencing court erroneously “double

counted” the quantity of drugs involved when determining the basic and

maximum sentences. We conclude that the trial court did not err by denying

the motion to suppress, nor did it abuse its discretion by declining to dismiss

the case in response to the State’s discovery violation. Although the sentencing 2

court erred by considering the quantity of drugs for the same purpose in both

steps one and two of the three-part Hewey analysis, we find that in the

circumstances of this case, the error did not affect Johnson’s substantial rights.

We therefore affirm the conviction.

I. BACKGROUND

[¶2] On June 7, 2021, the State filed a complaint in the trial court charging

Donte Johnson with aggravated trafficking in scheduled drugs (cocaine)

(Count 1) (Class A), 17-A M.R.S. § 1105-A(1)(D) (2021), 1 aggravated trafficking

in scheduled drugs (fentanyl) (Count 2) (Class A), 17-A M.R.S. § 1105-A(1)(M)

(2026), unlawful trafficking in scheduled drugs (cocaine base) (Count 3)

(Class B), 17-A M.R.S. § 1103(1-A)(A) (2026), refusing to submit to arrest

(Count 4) (Class E), 17-A M.R.S. § 751-B(1)(A) (2026), and two counts of

criminal forfeiture (Counts 5 and 6), 15 M.R.S. § 5826 (2021). 2 On August 20,

2021, Johnson was indicted on the original six charges, plus a new charge of

failure to give a correct name (Count 6) (Class E), 17-A M.R.S. § 15-A(2) (2026).3

1 Title 17-A M.R.S. § 1105-A(1)(D) has since been amended though not in any way that affects this

appeal. See P.L. 2021, ch. 396, § 4 (effective Oct. 18, 2021) (codified at 17-A M.R.S. § 1105-A(1)(D) (2026)).

2 Title 15 M.R.S. § 5826 has since been amended though not in any way that affects this appeal.

See, e.g., P.L. 2023, ch. 196, § 1 (effective Oct. 25, 2023) (codified at 15 M.R.S. § 5826 (2026)).

3 The second criminal forfeiture charge in the complaint became Count 7 in the indictment.

Johnson pleaded not guilty to Counts 1, 2, 3, 4, and 6, and denied Counts 5 and

7, the criminal forfeiture charges, in September 2021.

[¶3] In May 2022, Johnson moved to suppress evidence stemming from

his arrest on June 5, 2021, and moved to dismiss the charges against him. On

January 11, 2023, the court (Stokes, J.) held a hearing on Johnson’s motion to

suppress and denied the motion in a written order.

[¶4] The court found the following facts, which are supported by

competent evidence admitted during the suppression hearing, except as

otherwise indicated. See State v. Barclift, 2022 ME 50, ¶ 2, 282 A.3d 607. On

June 4, 2021, a law enforcement officer parked his cruiser in a parking lot on

Mt. Vernon Avenue in Augusta. From this position, he could see Boothby Street.

The officer positioned himself in that location because that area had past

incidents of drug activity. A little after 9:30 p.m., the officer saw an SUV enter

Boothby Street from State Street, turn around, and then leave Boothby Street

thirty seconds later before heading up the hill on State Street. The officer

followed the SUV and saw that there was no light illuminating its rear license

plate, so he pulled up behind the SUV and stopped it at about 9:44 p.m.

[¶5] The officer approached the driver’s side of the SUV and saw five

people in the vehicle. Using his flashlight, the officer saw three passengers in 4

the rear, none of whom were wearing seatbelts. The officer made direct eye

contact with a male passenger nearest to the right rear door. This passenger

had a light purple or blue backpack that was pulled up onto his shoulders,

which the officer found unusual, and, due to the passenger’s appearance, the

officer also suspected that the man was trying to hide his identity.4 The officer

asked the driver for identification, and the passenger near the rear right door

opened the door and began running. The officer commanded the man to stop,

but the man did not listen and ran into a thick brush, toward Boothby Street.

[¶6] The officer chased the passenger but stopped his pursuit because

the officer’s radio and two magazines were knocked off his belt due to the

combined effect of the darkness and the thick brush. The officer called dispatch

from his cruiser and requested K-9 assistance for a search. He described the

fleeing passenger as a Black male wearing a black sweatshirt, black pants, white

socks, and white sneakers. The officer found his radio and magazines as well

as a “‘wad’” of cash wrapped in an elastic band, a cell phone, a plastic bag

containing approximately 200 grams of cocaine, two smaller bags containing

suspected cocaine base, and a purple “‘rock’” suspected of being fentanyl. The

4 The court noted that the officer testified that this passenger, whom the officer later identified as

Johnson, was “wearing a hood tied around his neck such that only his eyes, his nose (described as being big) and some dreadlock braids were visible.”

officer found the cell phone and cash on the path used by the fleeing passenger

and found the drugs with K-9 assistance approximately ten feet off the same

path. It had rained earlier in the evening, but the items recovered from the

brush were not wet when the police found them, suggesting that the items had

not been there very long.

[¶7] The next morning, the same officer returned to the same location

from the night before on Mt. Vernon Avenue to conduct surveillance on Boothby

Street. The officer used binoculars to observe Boothby Street because he

suspected that the fleeing passenger would return for the discarded items.

Around 8:00 a.m. on June 5, 2021, the officer saw a man crossing Boothby

Street who he believed matched the description of the fleeing passenger. The

officer could see that the man was Black with “dreads” and a backpack, wearing

the same type of clothing as the fleeing passenger from the prior night, but

without a hood. The officer saw the man cross Boothby Street and go between

apartment buildings. A few minutes later, the officer saw a vehicle, a silver

Volkswagen, leaving the area.

[¶8] The Volkswagen turned onto Mt. Vernon Avenue. The officer saw

that the front passenger seat was missing the head rest and observed the

passenger-side seat belt and the top of the passenger’s head and curly hair. The 6

officer followed the vehicle, believing that this passenger was the fleeing

passenger from the night before. The passenger was leaning back in his seat,

suggesting to the officer that the passenger was attempting to conceal his

presence or identity. The officer “paced” the Volkswagen and determined that

it was traveling at thirty-three miles per hour in a twenty-five-mile-per-hour

zone.

[¶9] The Volkswagen stopped at a red light. While the Volkswagen was

stopped, the officer positioned his cruiser behind the Volkswagen, and another

officer intercepted the Volkswagen by cutting in front. Several officers

approached the Volkswagen with their weapons drawn and removed the

passenger, who was eventually identified as Johnson. Johnson was wearing

clothing identical to what the fleeing passenger from the previous evening had

worn, namely, a black shirt, a white t-shirt, black sweatpants, white socks, and

white sneakers. Johnson’s clothes and shoes were stained with mud and grass.

The officer found a black sweatshirt and a purple backpack on the passengerside floor of the Volkswagen. The officer identified Johnson as the fleeing

passenger from June 4, 2021.

[¶10] The court concluded that the officer had a reasonable, articulable

suspicion to stop the vehicles on June 4 and June 5, 2021. For the June 4 stop,

the officer had specific and articulable facts supporting his suspicion that the

rear-license-plate light was out on the SUV, which would be a motor vehicle

violation.5 For the June 5 stop, the officer was able to determine that the

Volkswagen was speeding. Additionally, the court concluded that the officer

was objectively reasonable in suspecting that the passenger in the Volkswagen,

later identified as Johnson, was the fleeing passenger from the night before

because his appearance on June 5 was similar to his appearance on the night of

June 4.

[¶11] The court also concluded that the officer’s identification of Johnson

as the fleeing passenger was “sufficiently reliable that a jury may consider it,”

and that ultimately the determination of the reliability of the identification

would be up to the jury. The court therefore denied Johnson’s motion to

suppress the officer’s identification of Johnson and any evidence flowing from

the stops on June 4 and 5, 2021, and denied his motion to dismiss.

[¶12] On July 25, 2023, Johnson filed a motion for discovery of the

disciplinary records of the officer who stopped him. The court (Worth, A.R.J.)

held a hearing on this motion on August 29, 2023, and issued an order requiring

5 The court concluded that this was likely a violation of 29-A M.R.S. § 1909 (2021), “and/or a

malfunctioning light bulb in violation of the inspection manual requirements.” Title 29-A M.R.S. § 1909 has since been amended but not in any way that affects this appeal. See P.L. 2021, ch. 216, § 45 (effective Oct. 18, 2021) (codified at 29-A M.R.S. § 1909 (2026)).

the Augusta Police Department to complete a “Law Enforcement Officer Giglio

Inquiry” form and requiring the State to provide all disciplinary records for the

officer from the Police Department. The court’s order was not entered until

September 20, 2023, and the court did not provide a deadline to produce this

discovery.

[¶13] Six months later, on March 1, 2024, Johnson filed a motion

pursuant to M.R.U. Crim. P. 16(e) for sanctions and dismissal for the State’s

failure to provide the officer’s disciplinary record. At that point, jury selection

for the trial was scheduled for March 7, 2024. The court (Murphy, J.) continued

the trial and then scheduled a hearing on the motion for sanctions.

[¶14] The court held the hearing on the motion for sanctions on May 3,

2024. At the hearing, Johnson disclosed that the State sent the ordered

discovery on March 1, 2024, approximately six months after the court ordered

discovery, upon receiving Johnson’s motion for sanctions. Johnson argued that

the State’s primary evidence at trial would be the officer’s testimony, and

therefore it was vital for him to receive the information relating to the officer’s

ability to act carefully and prudently when considering the facts before him.

Johnson requested that the court dismiss the case as an appropriate sanction

because the officer’s testimony was the crux of the State’s evidence and because

the court needed to send a message to the State to comply with discovery

orders. In the alternative, Johnson requested the exclusion of the testimony of

a different witness—who also identified Johnson—and related evidence.

[¶15] The State conceded that there was a discovery violation and agreed

to the exclusion of the other witness who identified Johnson and related

evidence. The Deputy Chief of the Augusta Police Department testified at the

hearing and explained that there had been miscommunication within the Police

Department and with the city attorney regarding the status of the production

of the documents.6 The Deputy Chief also testified regarding the nature of the

disciplinary records for the officer and the Police Department’s disciplinary

policies. The officer’s reprimands occurred on different dates from 2018 to

2024 and involved his failure to gather all information needed before

conducting a search, his discharge of a firearm in an unsafe manner, his failure

to update dispatch with his location, and his misuse of a police vehicle.

[¶16] At the conclusion of the testimony, the court requested that each

party provide the court with a brief memorandum regarding whether there was

6 The Deputy Chief testified to the following. The Police Department received the discovery request from the District Attorney’s Office on September 27, 2023. The Police Department sent the discovery materials to the city attorney in October 2023 for review. The city attorney returned the materials to the Chief of Police around December 2023 or January 2024, but the officer in charge of providing the materials to the State was not alerted of the return. Only upon request from the State on March 1, 2024, did the Police Department realize the mistake and provide the materials to the State.

a Giglio violation and, if so, what the sanctions should be. Johnson argued in his

memorandum that although none of the officer’s reprimands involved

dishonesty or untruthfulness, they were evidence needed for impeachment of

the officer as they relate to his inability to collect information before acting—

his credibility—and were therefore Giglio 7 and Brady8 material. The State

asserted that the reprimands were not Brady or Giglio material because they

did not involve the officer’s truthfulness or bias.

[¶17] On July 3, 2024, the court entered a brief handwritten order

granting in part Johnson’s motion for sanctions. The court found that the State

committed a serious discovery violation, stating, “It is completely unacceptable

for the defense to have to wait for the State to comply” with such a clear order

from the court. However, the court stated that it could not find that the

disciplinary records were Brady or Giglio material because the records did not

involve dishonesty or untruthfulness. The court did not dismiss the case but

Giglio v. United States, 405 U.S. 150, 154 (1972) (holding that “[w]hen the reliability of a given

witness may well be determinative of guilt or innocence, nondisclosure of evidence affecting credibility falls within this general rule” requiring disclosure of information favorable to the accused).

8Brady v. Maryland, 373 U.S. 83, 87 (1963) (holding that the prosecution cannot suppress “evidence favorable to an accused upon request . . . where the evidence is material either to guilt or to punishment”); see also State v. Twardus, 2019 ME 58, ¶ 32, 72 A.3d 523 (“The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching . . . .” (quotation marks omitted)).

instead ordered the exclusion of the testimony of the other witness who could

identify Johnson and all related evidence, including evidence regarding a cell

phone seized on June 5, 2021.

[¶18] The court (Daniel Mitchell, J.) held a jury trial on August 29 and 30,

2024. The jury found Johnson guilty on Counts 1, 2, 3, and 4 and acquitted

Johnson on Count 6, failure to give a correct name. The court ordered the

forfeiture of funds under Counts 5 and 7.

[¶19] Johnson’s sentencing occurred on November 26, 2024. The

sentencing court conducted a Hewey analysis for Counts 1 and 2, the lead

charges. In the first step in the analysis, the court determined that the quantity

of drugs was significant, placing the case at the higher end of the scale of the

seriousness of the way in which the offense could have been committed. The

court set the basic sentence at twelve years of incarceration.

[¶20] For the second step of the Hewey analysis, the court considered

Johnson’s mitigating factors, such as his lack of an adult criminal record, his

behavior after his arrest, his family obligations, and his acceptance of

responsibility. For the aggravating factors, the court considered the “large

amount of fentanyl and cocaine in this case seized from Mr. Johnson at the time

of his arrest,” the fact that Johnson fled from the police and was not arrested 12

until the following day, his juvenile record, and the fact that “he engaged in the

sale of highly dangerous narcotics for pecuniary gain.” Ultimately, the court

found that the mitigating factors outweighed the aggravating factors and

reduced the basic sentence by three years, setting the maximum sentence at

nine years of incarceration. For the third step of the analysis, the court set

Johnson’s sentences on Counts 1 and 2 to run concurrently at nine years of

incarceration with all but seven years suspended,9 followed by three years of

probation.10

[¶21] The court entered a final judgment on December 11, 2024.

Johnson timely filed an appeal. M.R. App. P. 2B(a)(1), (b)(1).

II. DISCUSSION

A. Motion to Suppress

[¶22] Johnson challenges the trial court’s denial of his motion to

suppress relating to the June 5, 2021, stop, arguing that the vehicle stop was

unlawful under the Fourth Amendment to the United States Constitution.11

Johnson filed a motion with the Law Court on September 17, 2025, requesting that this Court

grant the sentencing court leave to correct a clerical error that omitted the suspended sentence as to Count 2. We granted the motion on September 19, 2025.

The court set a sentence on Count 3 at five years of incarceration and a sentence on Count 4 at

six months of incarceration, both to run concurrently with the sentences on Counts 1 and 2.

Johnson has not argued, before the trial court or on appeal, that the vehicle stop constituted a

violation of his rights under the Maine Constitution, and instead only briefly referenced the Maine

Johnson does not appeal the court’s decision relating to the June 4, 2021, stop,

or the officer’s identification of Johnson. He contends that the stop on June 5,

2021, was a “de facto arrest” requiring probable cause as the basis to detain

Johnson and that it was not a Terry stop requiring only a reasonable, articulable

suspicion. The State argues that the June 5 stop was not an arrest and instead

constituted an investigatory stop supported by a reasonable, articulable

suspicion arising from the car’s speed and the officer’s suspicion that Johnson

was the fleeing passenger from the night before.

[¶23] “‘The denial of a motion to suppress is reviewed for clear error as

to factual issues and de novo as to issues of law.’” State v. Lovell, 2022 ME 49,

¶ 18, 281 A.3d 651 (quoting State v. Fleming, 2020 ME 120, ¶ 25, 239 A.3d 648).

We uphold the trial court’s denial of a motion to suppress “if any reasonable

view of the evidence supports the trial court’s decision.” State v. Ouellette, 2024

ME 29, ¶ 11, 314 A.3d 253 (quotation marks omitted).

[¶24] The Fourth Amendment to the United States Constitution forbids

unreasonable searches and seizures. U.S. Const. amend. IV; Terry v. Ohio, 392

U.S. 1, 8-9 (1968). An investigatory stop is a reasonable seizure if it is based on

a reasonable, articulable suspicion that criminal activity has occurred, is

Constitution in his motion to suppress submitted to the trial court. Therefore, our analysis rests on the United States Constitution. See State v. Hemminger, 2022 ME 32, ¶ 15 n.6, 276 A.3d 33. 14

occurring, or imminently will occur. See State v. Vaughan, 2009 ME 63, ¶ 10,

974 A.2d 930; Terry, 392 U.S. at 21-22.

[¶25] An investigatory stop, or Terry stop, “must be limited in scope and

executed through the least restrictive means.” State v. Donatelli, 2010 ME 43,

¶ 12, 995 A.2d 238 (quotation marks omitted). Terry stops are analyzed for

constitutionality with a two-step process, considering (1) “whether the officer’s

action was justified at its inception” and (2) “whether [the stop] was reasonably

related in scope to the circumstances which justified the interference in the first

place.” Id. (quotation marks omitted). “‘Where police actions taken during the

detention exceed what is necessary to dispel the suspicion that justified the

stop, the detention may amount to an ‘arrest’ and is lawful only if it is supported

by probable cause.’” State v. Langlois, 2005 ME 3, ¶ 8, 863 A.2d 913 (quoting

Flowers v. Fiore, 359 F.3d 24, 29 (1st Cir. 2004)) (alteration omitted). In

evaluating whether police actions exceed what is necessary, we weigh “‘the

gravity of the public concerns served by the seizure, the degree to which the

seizure advances the public interest, and the severity of the interference with

individual liberty.’” Donatelli, 2010 ME 43, ¶ 13, 995 A.2d 238 (quoting State v.

Huether, 2000 ME 59, ¶ 8, 748 A.2d 993).

[¶26] Johnson concedes that the officer had reasonable suspicion to

initially conduct a Terry stop on June 5, 2021, to verify his suspicion that

Johnson was the fleeing passenger. However, Johnson argues that the officer’s

stop of the Volkswagen exceeded the scope of a Terry stop and that the officer

therefore needed probable cause to stop the silver Volkswagen, which, Johnson

claims, he did not have.

[¶27] We first address whether the officer’s actions exceeded the scope

of a Terry stop, using the factors outlined in Donatelli above. See Donatelli, 2010

ME 43, ¶ 13, 995 A.2d 238. There is a significant State interest in detecting and

stopping illegal drug trafficking. See id. ¶ 14. Johnson’s seizure advanced this

interest because the officer had a reasonable suspicion that Johnson was the

fleeing passenger from the previous night who discarded quantities of cocaine,

fentanyl, and cash. Cf. State v. White, 2013 ME 66, ¶ 14, 70 A.3d 1226

(explaining that the State’s interest in protecting the public from the threat of

drunk drivers was advanced by the defendant’s seizure).

[¶28] Additionally, the interference with Johnson’s individual liberty

was not so severe as to constitute a de facto arrest. See Donatelli, 2010 ME 43,

¶ 13, 995 A.2d 238. Although Johnson is correct that multiple officers drawing

firearms can constitute a de facto arrest, the officers’ presence alone is not 16

enough to tip the scale away from a Terry stop. See id. ¶¶ 14-16; Langlois, 2005

ME 3, ¶ 10, 863 A.2d 913 (holding that the defendant was subject to an

investigatory detention and not an arrest when the officer ordered him at

gunpoint to lie down). The officer suspected Johnson of being the fleeing

passenger who possessed illegal drugs and cash, that suspect did not listen to

commands from the officer to stop running on June 4, Johnson was not alone in

the vehicle on June 5, and the detention lasted for less than three minutes

before Johnson was arrested based on probable cause. As such, the actions

taken by the officers to stop Johnson were “reasonably related in scope to the

circumstances which justified the interference in the first place” and therefore

did not constitute a de facto arrest. Langlois, 2005 ME 3, ¶ 10, 863 A.2d 913

(quotation marks omitted); see Donatelli, 2010 ME 43, ¶¶ 15-17, 995 A.2d 238;

see also United States v. Chaney, 647 F.3d 401, 409-10 (1st Cir. 2011)

(concluding that there was not a de facto arrest when officers used handcuffs

and drawn handguns because there were multiple suspects in a dark, small

hotel room who ignored repeated orders from officers and the detention lasted

less than five minutes).

[¶29] Because the stop on June 5, 2021, was a lawful Terry stop, only

reasonable suspicion was needed to support the stop. See State v. Lepenn, 2023

ME 22, ¶ 16, 295 A.3d 139. Johnson conceded that reasonable suspicion existed

given the officer’s suspicion that Johnson was the fleeing passenger. The officer

then clearly saw Johnson once he was detained and quickly located the purple

backpack and black sweatshirt in the front seat of the car, at which point the

officer had probable cause to arrest Johnson. See Langlois, 2005 ME 3, ¶ 11, 863

A.2d 913 (holding that once the officer discovered illegal drugs in the

defendant’s pocket, he had probable cause to arrest the defendant). Therefore,

the court did not err by denying the motion to suppress.

B. Discovery Sanctions

[¶30] Johnson argues that the court abused its discretion by declining to

dismiss the case as a sanction for the State’s discovery violation. Johnson

asserts that dismissal was the only remedy capable of vindicating Johnson’s

rights because the case had already been pending for three years, the court

needed to impose a significant sanction to deter repeated discovery violations,

and Johnson did not receive a fair suppression hearing because he did not have

the officer’s disciplinary information. The State argues that the court’s sanction

was sufficiently tailored to the circumstances and that the sanction was

significant because the court excluded an eyewitness who could identify

Johnson in a case in which identification was a key issue.

[¶31] It is undisputed that the State committed a discovery violation by

failing to produce the officer’s disciplinary records and the Law Enforcement

Giglio Inquiry form as ordered by the court. Therefore, only the form of the

court’s sanction needs our review. State v. Page, 2023 ME 73, ¶ 13, 306 A.3d

142. We review for an abuse of discretion a trial court’s sanction for a discovery

violation. State v. Reed-Hansen, 2019 ME 58, ¶ 17, 207 A.3d 191. In our review,

“[w]e look for a prejudicial effect on the defendant as a result of the discovery

violation, as mitigated—or not—by the trial court’s ruling,” State v. Poulin, 2016

ME 110, ¶ 28, 144 A.3d 574, and will overturn a jury verdict on appeal only if

the effect deprived the defendant of a fair trial, State v. Lowery, 2025 ME 3, ¶ 25,

331 A.3d 268.

[¶32] We agree with Johnson that the State’s failure to provide the

disciplinary records in a timely manner was a serious discovery violation.

However, Johnson’s argument that dismissal was the only appropriate sanction

because the disciplinary documents—which he did not receive until

March 2024—were necessary at the suppression hearing in early 2023 is

unpersuasive. The disciplinary documents would not have been admissible at

the suppression hearing for the court to consider as the fact finder because the

documents are character evidence and they do not implicate the officer’s

credibility as to his truthfulness. See Lovell, 2022 ME 49, ¶ 8, 281 A.3d 651

(“The Maine Rules of Evidence apply to hearings on motions to suppress.”); M.R.

Evid. 404(a), 607-608. None of the reprimands in the officer’s records involve

his truthfulness or untruthfulness, nor are they Brady or Giglio material. See

State v. Jobin, 510 A.2d 527, 529 & n.2 (Me. 1986) (noting that the officer’s

personnel records were not in any way probative of truthfulness or

untruthfulness); cf. Reed-Hansen, 2019 ME 58, ¶¶ 14-15, 207 A.3d 191

(concluding that the State violated Brady obligations and M.R.U. Crim. P. 16(c)

by failing to disclose a video that contained evidence of an exculpatory nature

and evidence that was relevant and material to the preparation of the defense).

[¶33] The reprimand that Johnson argues was the most important Brady

or Giglio material constituted character evidence involving an unrelated event

that occurred three years prior to Johnson’s arrest in which the officer did not

gather all the facts before conducting a search. This reprimand speaks to the

officer’s character to act in a similar way, which is inadmissible, and does not

speak to the officer’s truthfulness. M.R. Evid. 404(b). In fact, the trial court

ruled that it was inadmissible when Johnson later attempted to introduce the

reprimand as evidence at trial. Therefore, an earlier production of the

reprimand documents would not have affected the suppression hearing

because the documents were not admissible at that hearing. Any further

prejudice from not having the reprimand documents was sufficiently mitigated

because Johnson had three months to review the documents in preparing his

defense and he later unsuccessfully attempted to introduce them for

impeachment at trial. See State v. Pelletier, 2023 ME 74, ¶ 34, 306 A.3d 614.

[¶34] Moreover, the court’s sanction excluding the only other witness

who could identify Johnson was an extraordinary punishment for a serious

violation. See Reed-Hansen, 2019 ME 58, ¶ 17, 207 A.3d 191 (“[T]he

suppression of a necessary witness’s testimony is an extreme sanction.”

(emphasis added)). A key issue at trial was the identification of Johnson as the

passenger from June 4, 2021, and the State was appropriately punished by

being made to rely on only the officer’s testimony and dashcam video to

support identification of Johnson as that suspect. Therefore, the court did not

abuse its discretion. 12

12 Johnson’s argument that dismissal was required because the case had already been pending for

three years is also unpersuasive. While the State failed to produce the ordered discovery for six months, the State was not the sole cause of the continued delay of the trial date—it was delayed for other reasons—and complete dismissal would be disproportionate to any prejudice caused by a delay in discovery. Moreover, a motion raising a violation of the right to a speedy trial is the proper vehicle to address a significant delay in trial. See Winchester v. State, 2023 ME 23, ¶ 29, 291 A.3d 707.

C. Sentencing

[¶35] Johnson argues that the sentencing court erred by “double

counting” the quantity of drugs that he trafficked in setting both the basic and

maximum sentences. Johnson contends that there is a reasonable probability

that he would have received a lesser sentence if the sentencing court did not

consider the quantity of drugs as an aggravating factor in the second step of the

sentencing analysis after properly considering the quantity of drugs in the first

step of the analysis. The State concedes that the reference to the quantity of

drugs in the second step of the analysis was plain error but argues that

Johnson’s substantial rights were not affected because the sentencing court

weighed the mitigating factors so significantly against the aggravating factors

that it reduced the basic sentence by three years.

[¶36] Johnson did not raise any objections to the sentencing court on this

issue, and therefore we review it for obvious error. State v. Miller, 2005 ME 84,

¶ 11, 875 A.2d 694. An error is obvious “when there is (1) an error, (2) that is

plain, and (3) that affects substantial rights.” State v. Watson, 2024 ME 24, ¶ 18,

319 A.3d 430 (quotation marks omitted). A sentencing error affects substantial

rights when there is a “reasonable probability that, but for the error, the

sentencing court would have imposed a different, more favorable sentence.”

State v. Goncalves, 2025 ME 70, ¶ 46, 340 A.3d 639 (alteration and quotation

marks omitted). Should these conditions be met, we must also consider

whether “the error seriously affects the fairness and integrity or public

reputation of judicial proceedings before we vacate a judgment on the basis of

the error.” Id. ¶ 43 (quotation marks omitted).

[¶37] A sentencing court must follow the three-step Hewey analysis

when creating a sentence for a Class A, Class B, or Class C crime. 17-A M.R.S.

§ 1602(1) (2024);13 see State v. Hewey, 622 A.2d 1151, 1154-55 (Me. 1993). In

step one, “the court [must] determine a basic term of imprisonment by

considering the particular nature and seriousness of the offense as committed

by the individual.” State v. Ellis, 2025 ME 56, ¶ 17, 339 A.3d 794 (quotation

marks omitted). In step two, “the court [must] determine the maximum term

of imprisonment to be imposed by considering all other relevant sentencing

factors, both aggravating and mitigating, appropriate to the case.” Id.

(quotation marks omitted). Some factors include, but are not limited to, the

individual’s criminal history, the protection of the public interest, and the effect

of the offense on the victim. Id. While the same set of facts may make up the

factors that the court considers at each step, the court may not consider the

13 Title 17-A M.R.S. § 1602(1) has since been amended but not in any way that affects this appeal.

See, e.g., P.L. 2025, ch. 420, § 1 (effective Sep. 24, 2025) (codified at 17-A M.R.S. § 1602(1) (2026)).

same factor for the same purpose at both step one and step two of the analysis.

Id. ¶ 18.

[¶38] Here, as the State also concedes, the sentencing court committed

plain error by considering the scale of the possession of drugs at both step one

and two for the same purpose.14 Cf. State v. Plummer, 2020 ME 143, ¶¶ 15-17,

243 A.3d 1184 (holding that the court did not err when it discussed the

defendant’s drug trafficking in steps one and two because the court assessed

the scale of the trafficking in step one but the commercial motive of the

trafficking in step two); State v. Murray, 2026 ME 61, ¶¶ 21-22, --- A.3d ---(explaining that the court did not double count the defendant’s grooming of the

victims because the court considered the defendant’s “grooming in determining

the seriousness of the conduct” at step one but the “subjective impact that [the

defendant’s] grooming had on the victims” at step two of the sentencing

analysis (emphasis added)). The court did not elaborate on the context or

impact of the large amounts of drugs as an aggravating factor, simply noting the

quantity—no different from what it did in its consideration of the quantity of

14 During step one, the sentencing court stated, “I think the quantities of the drugs involved in this

case are significant, and [] they place Mr. Johnson in the higher end of the scale compared to other ways in which these crimes could have been committed. I don’t think this is one of those cases where an individual defendant just barely meets the legal definition of trafficking.” For step two, the court stated, “As far as aggravating factors go, the Court believes that the large amount of fentanyl and cocaine in this case seized from Mr. Johnson at the time of his arrest are aggravating factors.” 24

drugs at the first step of the sentencing analysis. There would be no error, for

example, if the court had considered the quantity of drugs trafficked at step one

and then considered the effect of trafficking such a large quantity on public

safety at step two. See, e.g., Plummer, 2020 ME 143, ¶¶ 15-17, 243 A.3d 1184;

Ellis, 2025 ME 56, ¶ 19, 339 A.3d 794; State v. Sweeney, 2019 ME 164, ¶¶ 18-19,

221 A.3d 130 (affirming the court’s consideration of domestic violence at step

one of the sentencing analysis in evaluating the objective elements of the

charged incident and at step two of the analysis in examining the history of the

relationship between the defendant and the victim).

[¶39] Holding that the court’s sentencing determination was plain error,

we look to whether the error affected Johnson’s substantial rights.15 If there is

“a reasonable probability that, but for the error, the sentencing court would

have imposed a different, more favorable sentence,” then the error has affected

15 We also note that the court’s error here is not constitutional or structural in nature. In general,

it is not improper for a court to consider the quantity of drugs as an aggravating factor in a drug-trafficking case, assuming that there is support in the record. See 17-A M.R.S. § 1602(1)(B); State v. Bentley, 2021 ME 39, ¶ 11, 254 A.3d 1171. The court did not make a consequential finding unsupported by evidence in the record, nor did it defy its statutory mandate. Either action would be more likely to require vacatur of the sentence. See, e.g., Goncalves, 2025 ME 70, ¶¶ 45-46, 49, 340 A.3d 639 (requiring vacatur when the sentencing court’s reliance on consequential facts not supported in the record was explicit and incontrovertible); Ellis 2025 ME 56, ¶¶ 25-28, 339 A.3d 794; State v. Hodgkins, 2003 ME 57, ¶ 8, 822 A.2d 1187 (explaining that “[a]n error affects the defendant’s substantial rights when a court imposes a sentence that is not authorized by law”). This error is instead a creature of the Hewey-analysis process and procedure, and, under the obvious-error test, it cannot be an automatic vacatur because a defendant’s substantial rights are not affected by an error that is not material. See Goncalves, 2025 ME 70, ¶¶ 48-49, 340 A.3d 639.

Johnson’s substantial rights. Goncalves, 2025 ME 70, ¶ 46, 340 A.3d 639

(alteration and quotation marks omitted).

[¶40] In step two of its analysis, the court noted as aggravating factors

the large amounts of drugs involved along with Johnson’s sale of these highly

dangerous drugs for pecuniary gain. These factors are obviously closely

related, if not inextricably linked. At the conclusion of step two, the court

reduced the sentence by three years due to the significant mitigating factors

that outweighed the aggravating factors. Given the implicit tie between

Johnson’s pecuniary gain and the quantity of drugs sold, we cannot say that

there is a reasonable probability that the sentence may have been reduced

further had the court not made this error; in other words, the error is not

material. See Goncalves, 2025 ME 70, ¶ 49, 340 A.3d 639. Thus, we are not

convinced that this error in fact affected Johnson’s substantial rights and

therefore conclude that the court’s actions do not amount to obvious error.

See id. ¶ 48. In light of this determination, we need not address whether this

error under these circumstances seriously affects the fairness and integrity or

public reputation of judicial proceedings.

III. CONCLUSION

[¶41] In sum, the court did not err by denying Johnson’s motion to

suppress because the stop on June 5 was a lawful Terry stop. Nor did the court

abuse its discretion by declining to dismiss the case as a discovery sanction and

instead precluding the State from presenting a key witness and offering

significant relevant evidence. We reiterate that the State’s discovery violation

was serious and concerning, but the court’s sanction was extraordinary and

sufficiently addressed the violation. Finally, we hold that although the

sentencing court erred by referencing the quantity of drugs involved in this

case at both step one and step two of the sentencing analysis, the error did not

affect Johnson’s substantial rights, and we therefore affirm the judgment.

The entry is:

Judgment affirmed.

Rory A. McNamara, Esq. (orally), Drake Law LLC, York, for appellant Donte

Johnson

Maeghan Maloney, District Attorney, and Tyler J. LeClair, Asst. Dist. Atty.

(orally), Prosecutorial District IV, Augusta, for appellee State of Maine

Kennebec County Unified Criminal Docket docket number CR-2021-750

FOR CLERK REFERENCE ONLY

State of Maine v. Donte Johnson

Authorities cited

Opinion · public domain