The Maine Supreme Judicial Court on Tuesday told a Superior Court justice for a second time to resentence a man convicted of felony murder in a drug-related slaying five years ago.
Aubrey Armstrong , 31, of Far Rockaway, New York, was found guilty in 2018 in the 2015 slaying of Joseph Marceau of Augusta, who was found bound and beaten in his apartment.
Under Maine law, a person is guilty of felony murder when a death is caused during the commission of a felony crime such as robbery.
Originally, Armstrong was convicted of felony murder and robbery in a jury-waived trial before Superior Court Justice Dan Billings at the Capital Judicial Center in Augusta. The judge sentenced Armstrong to 30 years in prison, the maximum sentence under the law, for felony murder and added a separate, but concurrent, 30-year sentence with all but 29 years suspended on the included robbery count.
Last summer, the state’s highest court vacated the sentence because it violated the double jeopardy clause of the U.S. Constitution, which says that a person may not be punished more than once for the same criminal act. Justices ordered Billings to merge the counts and resentence Armstrong for the conviction of killing Marceau while committing a felony crime.
Instead, Billings allowed the prosecutor to dismiss the robbery charge and the judge reimposed the sentence for felony murder. What Billings should have done was merge the two counts and conduct a new sentencing hearing that outlined the aggravating and mitigating factors and the judge’s reasons for arriving at a final sentence, Justice Ellen Gorman wrote for the court.
Gorman said that the state’s high court, which heard oral arguments in the second appeal remotely in May, had been inconsistent in previous cases that alleged double jeopardy violations.
“We take this opportunity to state a uniform rule of practice: when a trial results in multiple verdicts for the same offense, the appropriate procedure to prevent a double jeopardy violation is to merge, not dismiss, the duplicative counts,” she said. “If a double jeopardy violation is discovered on appeal, we will vacate the convictions and remand for merger of the duplicative counts. The result of this procedure will be multiple findings of guilt but only one conviction and one sentence.”
Armstrong’s appellate attorney, Rory McNamara of Berwick called the decision “an example of scrupulous adherence to the law.”
Assistant Attorney General Leanne Robbin predicted that the clarification of the sentencing procedure after a conviction on duplicative counts would be helpful in future cases.
“In the State’s view, the merger of the counts of felony murder and robbery makes no substantive difference in the facts before the court for sentencing,” she said Tuesday. “We will be requesting that the court impose the same sentence when it reviews the same facts again on the merged conviction.”
Armstrong is incarcerated at the Maine State Prison in Warren, according to the Maine Department of Corrections. His earliest release date is Jan. 15, 2041, and he must serve four years of probation after that.
Two other defendants pleaded guilty to felony murder in Marceau’s death. A fourth suspect committed suicide in jail.
Billings was appointed a District Court judge in August 2012 by Gov. Paul LePage, for whom he’d served as legal counsel. LePage elevated Billings in the Superior Court about 18 months later.
Armstrong’s resentencing date has not been set.