¶1dissenting
¶2I must respectfully dissent from that part of the opinion of the Court dealing *691with the illegality of the sentences imposed. I do not find that the statement of the sentencing justice in this case demonstrates a jurisdictional infirmity as a matter of law and thus, I would not take cognizance of the claim on direct appeal.
¶3Initially, it should be noted that the sentence in each case consisted of a fine of $250. Criminal trespass is a Class E crime and the laws of Maine authorize a sentence of imprisonment for a period not in excess of 6 months (17-A M.R.S.A. § 1252(2)(E)), and a fine not in excess of $500 (17-A M.R.S.A. § 1301(1)(C)). Although consideration of the relative severity of the sentence is not controlling, it is clear that, on their face, the sentences in this case, fit comfortably within the lower scale of the authorized range of gravity.
¶4The general principle that underlies our analysis of claims of sentence illegality has been clearly stated as follows:
This principle is that even though illegality in a sentence may qualify for review in a direct appeal, as a ‘jurisdictional’ infirmity, yet, because the review in a direct appeal is confined strictly to the record brought before the court, the claimed illegality of a sentence can be given ultimate cognizance on direct appeal only where the alleged sentencing infirmity appears so plainly on the face of the record that there can be no rational disagreement as to its existence.
¶5State v. Blanchard, 409 A.2d 229, 233 (Me.1979).
¶6In the present case the Court appears to have reversed the usual method of analysis. The sentences are found to be unconstitutional, not because the record demonstrates the existence of an infirmity beyond any possibility of rational disagreement, but rather, because the Court is uncertain as to what valid considerations led to the sentences imposed. I submit that such a defect is not cognizable on direct appeal.
¶7A comparison of the sentencing record in this case with the record involved in State v. Sutherburg, 402 A.2d 1294 (Me.1979) reveals the error in this Court’s analysis. In Sutherburgthe defendant had first been convicted in the District Court of O.U.I. and fined $150. Following a trial de novo before a jury in the Superior Court, defendant was once again convicted and fined $750. The sentencing justice explicitly stated that defendant was without justification for trying the case. After calculating the cost of providing a jury the court stated:
And I am going to fine him $750. I am compromising on the full cost of the jury, but I feel that he should pay $750 as some reimbursement to the State for the expense it has been put to in this case.
¶8Id. at 1296. On those facts we had no difficulty in concluding from the record that “the comments of the trial justice clearly reveal that the defendant was being penalized for exercising his right to trial by jury.” Id.In Sutherburg, there could be no rational disagreement as to the existence of the infirmity in the sentence and in fact the State conceded that the sentence was unconstitutional. Id.In the present case it is not at all clear from the record that the defendants were penalized for exercising their right to trial by jury. The record admits of rational disagreement as to whether defendants were appropriately penalized for committing a crime involving expense to the City of Bangor or were unjustly penalized for demanding a trial by jury. Direct review of the alleged infirmity should be precluded by the fact that the infirmity does not appear plainly and affirmatively on the record. I would affirm the entire judgment.