State v. Kong. , 140 Haw. 103 ( 2017 )

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Electronically Filed
Supreme Court
SCWC-15-0000066
15-JUN-2017
08:15 AM
IN THE SUPREME COURT OF THE STATE OF HAWAII
---oOo---
________________________________________________________________
STATE OF HAWAII, Respondent/Plaintiff-Appellee,
vs.
STANLEY S.L. KONG, Petitioner/Defendant-Appellant.
________________________________________________________________
SCWC-15-0000066
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-15-0000066; CR. NO. 09-1-0683(2))
JUNE 15, 2017
RECKTENWALD, C.J., NAKAYAMA, McKENNA, AND WILSON, JJ., WITH
CIRCUIT JUDGE CHANG IN PLACE OF POLLACK, J., RECUSED
OPINION OF THE COURT BY McKENNA, J.
I. Introduction
In this case, the Circuit Court of the Second Circuit1
(“circuit court”) sentenced Stanley S.L. Kong to consecutive
terms of imprisonment, due to his “extensive criminality,” based
on a Presentence Investigation Report (“PSI”) that erroneously
1
The Honorable Shackley F. Raffetto presided.
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included two prior convictions. These prior convictions had
been previously vacated, remanded, and ultimately dismissed, but
Kong’s counsel did not bring this to the circuit court’s
attention. When Kong directly appealed his sentence, this court
affirmed the circuit court. State v. Kong, 131 Hawaii 94, 315
P.3d 720 (2013) (“Kong I”). We first held that the circuit
court adequately articulated the basis for Kong’s consecutive
sentences when it referenced Kong’s “extensive criminality.”
131 Hawaii at 103, 315 P.3d at 729. We then held that the
burden had been upon Kong to challenge, before the circuit
court, the erroneous inclusion of the two prior convictions.
131 Hawaii at 106, 315 P.3d at 732. We further held that the
sentencing court did not plainly err in relying upon the
erroneous PSI, in light of Kong’s many other prior convictions.
131 Hawaii at 107, 315 P.3d at 733.
Three days after this court issued its opinion in Kong I,
Kong filed a motion under Hawaii Rules of Penal Procedure
(“HRPP”) Rule 35(b) (2003)2, to “reconsider or reduce sentence.”
2
HRPP Rule 35 provides the following:
(a) Correction of Illegal Sentence. The court may
correct an illegal sentence at any time and may correct a
sentence imposed in an illegal manner within the time
provided herein for the reduction of sentence. A motion
made by a defendant to correct an illegal sentence more
than 90 days after the sentence is imposed shall be made
pursuant to Rule 40 of these rules. A motion to correct a
sentence that is made within the 90 day time period shall
(continued. . .)
2
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Before a different judge of the circuit court,3 he challenged the
erroneous inclusion of the two prior convictions in his PSI.
The circuit court denied Kong’s motion. While it acknowledged
that it might have sentenced Kong differently, the circuit court
ultimately expressed its doubts that it could re-evaluate Kong’s
sentence in light of Kong I. The Intermediate Court of Appeals
(“ICA”) affirmed, holding that Kong could not challenge, via a
Rule 35 motion, the erroneous inclusion of the two vacated and
dismissed prior convictions in his PSI in the first place.
On certiorari, Kong presents the following questions:
1. Did the Intermediate Court of Appeals gravely err when
it held that the lower court may abdicate its power to
independently review, reconsider, and reduce an original
sentence thereby undermining the policies and purposes of
HRPP Rule 35?
2. Did the ICA gravely err in holding that Mr. Kong could
not raise a good-faith challenge to the use of invalid and
vacated prior convictions in his Rule 35 motion?
(continued. . .)
empower the court to act on such motion even though the
time period has expired.
(b) Reduction of Sentence. The court may reduce a
sentence within 90 days after the sentence is imposed, or
within 90 days after receipt by the court of a mandate
issued upon affirmance of the judgment or dismissal of the
appeal, or within 90 days after entry of any order or
judgment of the Supreme Court of the United States denying
review of, or having the effect of upholding the judgment
of conviction. A motion to reduce a sentence that is made
within the time prior shall empower the court to act on
such motion even though the time period has expired. The
filing of a notice of appeal shall not deprive the court of
jurisdiction to entertain a timely motion to reduce a
sentence.
3
The Honorable Peter T. Cahill presided.
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We hold that the ICA erred in holding that a challenge to the
erroneous inclusion of prior convictions in a PSI cannot be
brought on a Rule 35 motion for post-conviction relief.
Therefore, the circuit court properly entertained the motion.
The circuit court erred, however, by (1) concluding that Kong I
precluded its re-evaluation of Kong’s sentence; and (2) failing
to address Kong’s challenge to the inclusion of the two vacated
and dismissed prior convictions in his PSI. Therefore, we
vacate the ICA’s December 27, 2016 Judgment on Appeal, and its
November 29, 2016 Memorandum Opinion. This case is remanded to
the circuit court for further proceedings consistent with this
opinion.
II. Background
A. 2011 Sentencing and First Appeal
In April 2011, Kong was convicted and sentenced to
consecutive sentences for one count of promoting a dangerous
drug in the second degree (ten years), and one count of
prohibited acts relating to drug paraphernalia (five years).
The circuit court sentenced him to consecutive sentences based
on his “extensive criminality,” as reflected in the multiple
felony convictions contained in his PSI. Kong I, 131 Hawaii at
96, 315 P.3d at 722. Two felony convictions in the PSI,
however, had been previously vacated, remanded, and ultimately
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dismissed, but Kong’s counsel did not object to their use in
sentencing. 131 Hawaii at 105, 315 P.3d at 731.
Kong first appealed his sentence in May 2011. On appeal,
Kong raised the following points of error regarding his
sentencing: “(1) whether the circuit court erred in imposing
consecutive terms of imprisonment without adequately
articulating a rationale; [and] (2) whether the circuit court
violated Kong’s due process rights by basing its sentence on
certain crimes set forth in the PSI report . . . that Kong
alleged were ‘vacated, remanded, and ultimately dismissed. . .
.’” 131 Hawaii at 99, 315 P.3d at 725. The ICA affirmed his
conviction and sentence. State v. Kong, 129 Hawaii 135, 295
P.3d 1005 (App. 2013).
This court affirmed the ICA. Kong I, 131 Hawaii 94, 315
P.3d 720. We answered in the negative Kong’s first question
presented: whether the circuit court’s statement regarding his
“extensive criminality” was insufficient to justify the
imposition of consecutive sentences and did not meet the
requirements of State v. Hussein, 122 Hawaii 495, 229 P.3d 313
(2010). Kong I, 131 Hawaii at 103, 315 P.3d at 729. We noted
that Hussein directed circuit courts to “state on the record at
the time of sentencing the reasons for imposing a consecutive
sentence,” and that the circuit court’s “extensive criminality”
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comment satisfied this requirement. Kong I, 131 Hawaii at 102,
103, 315 P.3d at 728, 729.
This court also found without merit Kong’s second question
presented: whether his sentence constituted plain error because
it was based on crimes he did not commit. Kong I, 131 Hawaii at
104, 315 P.3d at 730. Before this court, Kong had argued that
State v. Sinagoga, 81 Hawaii 421, 918 P.2d 228 (App. 1996)4
4
Sinagoga set forth five steps “to be taken by Hawaii courts in cases
where ordinary sentencing procedures are applicable and there is a
possibility that the court may use the defendant’s prior conviction(s) as a
basis for the imposition or enhancement of a prison sentence”:
Step one, the court shall furnish to the defendant or
defendant’s counsel and to the prosecuting attorney a copy
of the presentence report, HRS § 706-604, and any other
report of defendant’s prior criminal conviction(s). Step
two, if the defendant contends that one or more of the
reported prior criminal convictions was (1) uncounseled,
(2) otherwise invalidly entered, and/or (3) not against the
defendant, the defendant shall, prior to the sentencing,
respond with a good faith challenge on the record stating,
as to each challenged conviction, the basis or bases for
the challenge. Step three, prior to imposing the sentence,
the court shall inform the defendant that (a) each reported
criminal conviction that is not validly challenged by the
defendant is defendant’s prior, counseled, validly entered,
criminal conviction, and (b) a challenge to any reported
prior criminal conviction not made by defendant before
sentence is imposed may not thereafter, absent good cause,
be raised to attack the court’s sentence. Step four, with
respect to each reported prior criminal conviction that the
defendant challenges, the [Hawaii Rules of Evidence] shall
apply, and the court shall expressly decide before the
sentencing whether the State satisfied its burden of
proving to the reasonable satisfaction of the court that
the opposite of the defendant’s challenge is true. Step
five, if the court is aware of the defendant’s prior
uncounseled or otherwise invalid criminal conviction(s), it
shall not impose or enhance a prison sentence prior to
expressly stating on the record that it did not consider it
or them as a basis for the imposition or enhancement of a
prison sentence.
81 Hawaii at 447, 918 P.2d at 254. This framework was modified in State v.
Veikoso, 102 Hawaii 219, 74 P.3d 575 (2003). The Veikoso court held that “a
(continued. . .)
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should not “extend to cases where convictions did not exist at
the time of sentencing,” or, in the alternative, that Sinagoga
should be overturned. Id. We disagreed with Kong, holding that
the Sinagoga framework applied to his case. 131 Hawaii at 105,
315 P.3d at 731. Under step two of the Sinagoga framework, the
defendant bears the burden of challenging prior convictions in a
PSI that the defendant alleges were “uncounseled” or “not
against the defendant.” Sinagoga, 81 Hawaii at 447, 918 P.2d at
254. We held that the vacated and dismissed prior convictions
were “not against the defendant”; therefore, Kong bore the
burden of challenging the inclusion of these prior convictions
in his PSI. Kong I, 131 Hawaii at 106, 315 P.3d at 732. As
Kong did not challenge the convictions before the circuit court,
we held that the circuit court did not err in relying on the PSI
at sentencing. 131 Hawaii at 105, 315 P.3d at 731.
We also held that the circuit court’s use of the vacated
and dismissed convictions in sentencing did not amount to plain
error, as “the record indicate[d] that the circuit court based
its imposition of a consecutive sentence on Kong’s ‘extensive’
(continued. . .)
defendant may not collaterally attack prior counseled DUI convictions on the
basis that they were obtained as the result of allegedly invalid guilty
pleas.” 102 Hawaii at 226, 74 P.3d at 582 (footnote omitted). In a
footnote, this court stated, “Because the ‘otherwise invalidly entered’
language in [step two of the] Sinagoga [framework] may be construed as
permitting collateral attacks whenever the validity of a conviction is
challenged, we emphasize, in light of our holding today, that this language
should be disregarded.” 102 Hawaii at 226 n.8, 74 P.3d at 582 n.8.
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criminal record as a whole and not solely on the specific
convictions that Kong allege[d were] invalid.” 131 Hawaii at
107, 315 P.3d at 733. In light of the many other prior
convictions referenced in the PSI, we held, “[I]t cannot be said
that Kong’s substantial rights were affected by the circuit
court’s use of the PSI report.” Id. (footnote omitted).
B. Kong’s Rule 35 Motion
Three days after Kong I was issued, Kong filed an HRPP Rule
35(b) Motion to “reconsider or reduce sentence.” Kong asked the
circuit court to re-sentence him to a concurrent 10-year prison
term instead of the 15 consecutive years Judge Raffetto had
originally sentenced him on the two drug convictions. At this
time, Kong raised his Sinagoga challenge to the PSI’s erroneous
inclusion of the two vacated and dismissed convictions. Kong
also attached a prison progress report reflecting the completion
of a number of required and voluntary programs. “Substance
Abuse-RDAP III (IOP)” was the only required program marked
“Incomplete.”
The State opposed Kong’s motion. The State argued that
Kong’s motion essentially requested concurrent, rather than
consecutive, sentencing. The State defended the consecutive
sentence as appropriate.
The circuit court held a hearing on Kong’s motion. At the
hearing, the circuit court stated that “it wouldn’t be a wise
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thing to do” to reduce Kong’s drug and paraphernalia sentences
in light of the fact that Kong had not completed the required
substance abuse program. Kong’s counsel explained that the
erroneous addition of the two vacated and dismissed convictions
resulted in Kong’s classification at a different level for
programming purposes; were Kong to be classified accurately,
Kong’s counsel contended that Kong’s substance abuse program
would be considered completed.
The circuit court suggested to Kong’s counsel that he file
a motion to correct the PSI so that the State would have an
opportunity to respond. With regard to any potential
reconsideration or reduction of sentence, the circuit court
stated, “I’m not suggesting to you [defense counsel] that I’m
going to do anything different than what’s already been done.
Because it’s already gone up on appeal.” The circuit court
continued the motion to reconsider or reduce sentence.
Kong’s counsel filed a supplemental memorandum in support
of his motion for reconsideration or reduction of sentence.
Attached was a 1994 “Notice and Judgment on Appeal,” in which
the ICA vacated Kong’s convictions for Burglary in the Second
Degree and Unauthorized Control of a Propelled Vehicle, and
remanded the case for further proceedings. Also attached was a
1995 “Motion to Dismiss with Prejudice,” in which the
prosecutor’s office, upon remand from the ICA, moved for an
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order dismissing the case with prejudice. The motion was
“approved and so ordered,” as indicated by a judge’s signature
on the bottom left of the motion.
Kong’s counsel also filed a “Written Notice of Objection to
the Pre-Sentence Report and Other Materials Contained in the
Court File.” The written notice asked, inter alia, that all
references to the vacated and dismissed prior convictions be
removed from Kong’s PSI. The State did not file a response to
the written notice. There is nothing in the record indicating
that the circuit court acted upon the written notice.
At the continued hearing on the motion to reconsider or
reduce sentence, the State argued that this court’s Kong I
opinion had “held that there was no abuse of discretion and the
Court made a proper finding in sentencing [Kong].” The State
argued that Kong’s sentence had been “reviewed by the appellate
process twice,” and that Kong’s motion for reconsideration or
reduction of sentence was without merit.
Kong’s counsel disagreed that this court’s opinion in Kong
I foreclosed reconsideration or reduction of Kong’s sentence.
He stated that the appeal was not about the sentence itself;
rather, the appeal concerned whether the initial sentencing
court had sufficiently articulated the basis for the sentence,
and whether it was plain error for the sentence to be based on a
PSI that included the two vacated and dismissed convictions.
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Kong’s counsel also pleaded for leniency, asking the circuit
court to re-evaluate Judge Raffetto’s sentence.
The circuit court also heard from Kong, who asked to be
sentenced based on only his valid convictions. The circuit
court stated, “Well, I don’t disagree with you there, and I
appreciate what you are saying.”
The circuit court ultimately sided with the State. The
circuit court suggested that it would have sentenced Kong
differently had it been the initial sentencing court, but
doubted that the initial sentence was “inherently unjust or
unfair,” in light of the fact that the Kong I court did not
remand Kong’s case for resentencing:
This has already been –- this sentence was appealed,
and the Supreme Court reviewed it, and if the Supreme Court
felt -- I understand the grounds when they look at these
things. But the appellate court –- the appellate court has
really scrutinized a lot of these cases, especially with
the composition of our present court. Even if it wasn’t
raised, if they feel this was inherently unjust or unfair,
they would have sent it back, and they didn’t.
And so –- and I understand that disparity, but I
don’t know what Judge Raffetto’s reasoning was, but that’s
what he did, and I just don’t see the grounds to reconsider
or reduce it.
I’m not saying that’s what I would have done, but
that’s not the standard to decide it.
The circuit court denied Kong’s motion to reconsider or
reduce sentence. Although the circuit court seemed to accept
that the PSI contained vacated and dismissed convictions, the
record does not reflect that the circuit court disposed of
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Kong’s “Written Notice of Objection to the Pre-Sentence Report
and Other Materials Contained in the Court File.”5
C. ICA Appeal
On appeal, Kong raised the following points of error, which
he continues to pursue on certiorari:
[1]. The circuit court failed to independently
consider the merits of Mr. Kong’s motion and wrongly
deferred to the appellate courts and the original
sentencing judge.
[2]. The circuit court failed to comply with the
framework in State v. Sinagoga and address the challenged
prior convictions contained in the pre-sentence
investigation report.6
In a memorandum opinion, the ICA affirmed the circuit
court’s order denying Kong’s motion to reconsider or reduce
sentence. State v. Kong, CAAP-15-0000066 (App. Nov. 29, 2016)
(mem.) at 11. As to the first point of error (whether the
circuit court failed to independently consider the merits of
Kong’s motion and wrongly deferred to the appellate courts and
the original sentencing judge), the ICA held that “the circuit
court sufficiently considered the merits of Kong’s motion,”
supporting its conclusion solely with a recapitulation of Kong’s
5
We note that HRS § 706-604(2) (2014) provides, in pertinent part, “The
court shall amend or order the amendment of the [pre-sentence] report upon
finding that any correction, modification, or addition is needed and, where
appropriate, shall require the prompt preparation of an amended report in
which material required to be deleted is completely removed. . . .”
6
Kong also raised a third point of error: “The prosecution’s objection
to a reduction in the sentence to concurrent terms of imprisonment violates
an agreement reached with Mr. Kong.” As this point of error is not pursued
on certiorari, this opinion does not address it. As this court is vacating
the ICA’s judgment on appeal and remanding this case to the circuit court for
further proceedings, defense counsel may raise this issue with the circuit
court on remand.
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filings in support of his motion and the arguments made in those
filings and at the hearings on the motion. Kong, mem. op. at 4.
Next, the ICA “presume[d] that the circuit court considered all
of the factors listed in HRS § 706-6067 when it denied Kong’s
Motion to Reconsider or Reduce.” Kong, mem. op. at 6. The ICA,
however, did not address Kong’s arguments that (1) the circuit
court wrongly believed that this court had already ruled that
Kong’s sentence was fair and just and simply deferred to this
court’s Kong I opinion; and (2) the circuit court wrongly
deferred to Judge Raffetto’s initial sentencing decision.
The ICA did directly address Kong’s second point of error
(whether the circuit court failed to comply with the Sinagoga
framework and address the challenged prior convictions contained
in the PSI). Kong, mem. op. at 7-10. The ICA held that
Sinagoga did not apply to Kong’s motion to reduce his sentence
in the first place. Kong, mem. op. at 9. The ICA reasoned only
that “[t]here is nothing in Sinagoga to suggest that it applies
7
HRS § 706-606 (2014) is titled, “Factors to be considered in imposing a
sentence,” and it includes (1) the nature and circumstances of the offense
and the history and characteristics of the defendant; (2) the need for the
sentence imposed to reflect the seriousness of the offense, to promote
respect for law, and to provide just punishment for the offense; to afford
adequate deterrence to criminal conduct; to protect the public from further
crimes of the defendant; and to provide the defendant with needed educational
or vocational training, medical care, or other correctional treatment in the
most effective manner; (3) the kinds of sentences available; and (4) the need
to avoid unwarranted sentence disparities among defendants with similar
records who have been found guilty of similar conduct.
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to Kong’s motion to reduce his sentence.” Id. The ICA cited no
other authority for its holding.
Regardless of its holding, the ICA went on to state, “[W]e
do not suggest that the circuit court should consider
convictions improperly entered on a PSI report.” Id. The ICA
then stated that it did not appear that the circuit court relied
on the vacated and dismissed convictions when it denied Kong’s
motion to reconsider or reduce sentence. Id. The ICA noted
that the circuit court asked Kong’s counsel to file a separate
motion to request a correction to the PSI. Id. Next, the
circuit court asked Kong whether he had any other convictions
besides the overturned ones, and when Kong answered
affirmatively but asked to be sentenced with regard only to
valid convictions, the circuit court stated, “I don’t disagree
with you there.” Id. Thus, the ICA concluded, “[I]t appears
that the circuit court recognized that some of Kong’s
convictions had been vacated and that the court did not rely on
those vacated convictions when it denied Kong’s Motion to
Reconsider or Reduce.” Kong, mem. op. at 10.
III. Standard of Review
“A trial court has the discretion to, within the time
limits set forth by HRPP Rule 35, reduce a sentence.” State v.
Williams, 70 Haw. 566, 569, 777 P.2d 1192, 1194 (1989).
Therefore, orders on HRPP Rule 35 motions for reduction of
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sentence are reviewed for an abuse of discretion. “[F]actors
which indicate a plain and manifest abuse of discretion are
arbitrary or capricious action by the judge and a rigid refusal
to consider the defendant’s contentions.” State v. Kahapea, 111
Hawaii 267, 278, 141 P.3d 440, 451 (2006). “[G]enerally, to
constitute an abuse it must appear that the court clearly
exceeded the bounds of reason or disregarded rules or principles
of law or practice to the substantial detriment of a party
litigant.” Id.
IV. Discussion
A. A defendant may raise a Sinagoga challenge to a PSI in
connection with a Rule 35 motion to reduce sentence.
On certiorari, Kong asks, “Did the ICA gravely err in
holding that Mr. Kong could not raise a good-faith challenge to
the use of invalid and vacated prior convictions in his Rule 35
motion?” Kong argues that it was appropriate for him, after
Kong I held that Sinagoga applied, to raise a good-faith
challenge to the inclusion of the vacated and dismissed
convictions in his PSI in his Rule 35 motion, and, once the
challenge was raised, the State and the circuit court should
have addressed it.
As it raises a threshold issue, we start with Kong’s
challenge to the ICA’s holding that the Sinagoga framework does
not apply on a Rule 35 motion to reduce sentence. The ICA
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incorrectly held that Sinagoga did not apply to Kong’s Rule 35
motion to reconsider or reduce sentence. Kong, mem. op. at 9.
The ICA reasoned only that “[t]here is nothing in Sinagoga to
suggest that it applies to Kong’s motion to reduce his
sentence.” Id. The ICA cited no other authority for its
holding.
To the contrary, while there is no Hawaii appellate case
affirmatively holding that a Sinagoga challenge can be raised in
a Rule 35 proceeding, there is authority suggesting the same.
State v. Kido, 109 Hawaii 458, 128 P.3d 340 (2006), is analogous
to the instant case. In that case, a defendant was charged and
convicted with promoting a dangerous drug in the third degree
and unlawful use of drug paraphernalia. 109 Hawaii at 459, 128
P.3d at 341. As part of his sentence, he was ordered not to
enter the Chinatown Weed and Seed geographical area. Id. While
that case was on appeal, the defendant was found in the
Chinatown Weed and Seed geographical area and arrested. Id.
Upon being searched in preparation for incarceration, police
found rock cocaine on the defendant. 109 Hawaii at 459-60, 128
P.3d at 341-42. The defendant pled no contest to a charge of
promoting a dangerous drug in the third degree and was sentenced
to five years in prison, with a mandatory minimum of one year in
prison as a repeat offender, due to the prior drug and
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paraphernalia convictions (that he had appealed). 109 Hawaii at
460, 128 P.3d at 342.
A year after his sentencing as a repeat offender, the ICA
vacated and remanded for a new trial the drug and paraphernalia
convictions that had provided a basis for his repeat offender
sentence. Id. The defendant then moved, under HRPP Rule 35(a),
to correct an illegal sentence. Id. The circuit court denied
the motion, and the defendant appealed. Id. (The defendant was
later convicted of the drug and paraphernalia charges at his new
trial. 109 Hawaii at 461, 128 P.3d at 343.)
This court held that the circuit court erred in denying the
defendant’s Rule 35 motion (although the error was moot, as the
defendant had been convicted of both charges at his new trial).
109 Hawaii at 463, 128 P.3d at 345. This court held, “[A]
defendant is entitled, by timely HRPP Rule 35 motion to correct
sentence . . . once the defendant has successfully attacked a
prior conviction on which the sentence was based in whole or
part because that conviction no longer constitutes a proper
basis for increased punishment for a subsequent offense under
HRS § 706-606.5,” Hawaii’s repeat offender sentencing statute.
109 Hawaii at 467, 128 P.3d at 349 (footnote omitted).
The facts in Kido differ in three respects. First, the
defendant in Kido moved under subsection (a) of HRPP Rule 35 to
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correct an illegal sentence, while Kong moved under subsection
(b) of the rule to reduce his sentence. Second, the defendant
in Kido challenged the imposition of a mandatory minimum
sentence as a repeat offender, while Kong challenged the
erroneous inclusion of vacated and dismissed convictions in the
PSI as a basis for his consecutive sentence. Third, the
defendant in Kido did not expressly bring a Sinagoga challenge
in his Rule 35 motion, while Kong did in his.
Kido is, however, still analogous to this case. The holding
quoted above clearly applies to Kong. In addition, the relief
sought under subsections (a) and (b) under HRPP Rule 35 differ
only in degree; while subsection (a) allows correction of a
sentence in violation of the law, subsection (b) allows
reduction of a sentence that, while lawful, may nevertheless be
too harsh. See HRPP Rule 35 (a) and (b); United States v.
Maynard, 485 F.2d 247, 248 (9th Cir. 1973) (“If a lawful
sentence was lawfully imposed in the first instance, then the
function of Rule 35 is simply to allow the [sentencing] court to
decide if, on further reflection, the original sentence now
seems unduly harsh.”).
Second, it does not matter that the defendants in Kido and
Kong challenged different types of sentencing (i.e., repeat
offender sentencing in Kido, and consecutive sentencing in
Kong). The Sinagoga rule applies to ordinary sentencing.
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Sinagoga, 81 Hawaii at 440, 918 P.2d at 247. Sinagoga itself
noted that repeat offender sentencing and consecutive sentencing
are both subject to “ordinary sentencing procedures.” Id.
Therefore, a Sinagoga challenge may be brought in either
sentencing context.
Third, although Kido did not involve an express Sinagoga
challenge, the functional similarities between the Kido
defendant’s challenge and Kong’s challenge to the use of invalid
convictions in sentencing override differences in form. Both
Kido and Kong had two convictions vacated by the ICA, yet both
defendants were subsequently sentenced as though those two prior
convictions remained valid. Both defendants brought Rule 35
motions seeking re-evaluation of their sentences. This court in
Kido held that a Rule 35(a) challenge should have been allowed
to correct the illegal mandatory minimum sentence. Therefore,
we now similarly hold that a defendant may bring a Sinagoga
challenge in a Rule 35(b) motion seeking to reduce a sentence.
Moreover, disallowing a Sinagoga challenge on a Rule 35
motion to reconsider would not seem consistent with HRPP Rule 2
(1977), which provides that the Hawaii Rules of Penal Procedure
“are intended to provide for the just determination of every
penal proceeding. They shall be construed to secure simplicity
in procedure, fairness in administration and the elimination of
unjustifiable expense and delay.” Disallowing a Sinagoga
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challenge in a Rule 35 motion to reconsider sentence --
effectively requiring a criminal defendant to file a Rule 40
post-conviction petition alleging ineffective assistance of his
original counsel in not bringing the erroneous convictions in
the PSI to the attention of the original sentencing judge,
assuming a defendant would even be aware of such a possibility
-- would not further simplicity in procedure, fairness in
administration, and the elimination of unjustifiable expense and
delay. In short, a defendant may bring a Sinagoga challenge in
connection with a Rule 35 motion.
B. The circuit court erred in abandoning Kong’s Sinagoga
challenge due to its mistaken belief that Kong I precluded
its re-evaluation of Kong’s sentence.
Having held that the circuit court had the power to
entertain Kong’s Sinagoga challenge in connection with his Rule
35 motion, we now examine the circuit court’s handling of the
matter. On certiorari, Kong’s remaining question presented is,
“Did the Intermediate Court of Appeals gravely err when it held
that the lower court may abdicate its power to independently
review, reconsider, and reduce an original sentence thereby
undermining the policies and purposes of HRPP Rule 35?” He
argues that the circuit court possessed the independent
discretion to re-evaluate Kong’s sentence and reduce it if it
was unduly harsh. Kong points out that the circuit court itself
expressed that it did not understand why Judge Raffetto imposed
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consecutive sentences; nevertheless, the circuit court still
declined to reconsider Kong’s sentence. Kong also contends that
the circuit court erroneously concluded that this court would
have sua sponte evaluated Kong’s sentence and remanded it if it
was unjust. Kong argues that the refusal to exercise discretion
is itself an abuse of discretion, citing to cases from other
jurisdictions in support of that proposition.
To the extent Kong’s first argument implies that the
circuit court had full discretion to reconsider Judge Raffetto’s
sentence without any additional facts, he is incorrect. With
respect to the effect of having a different judge reconsider a
ruling by a prior judge in a criminal case, State v. Oughterson,
99 Hawaii 244, 253, 54 P.3d 415, 424 (2002), states, “Unless
cogent reasons support the second court’s action, any
modification of a prior ruling of another court of equal and
concurrent jurisdiction will be deemed an abuse of discretion. .
. .” This criminal rule is not, however, an absolute rule. A
“change in the factual underpinning [in] a particular ruling may
rise to the level of a ‘cogent reason’ that would justify a
court in overturning the ruling of another court of equal and
concurrent jurisdiction.” 99 Hawaii at 254, 54 P.3d at 425.
Thus, contrary to Kong’s assertion, the circuit court could
not change the prior judge’s sentence without cogent reasons.
It appears, however, that the erroneous inclusion of two felony
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convictions in the PSI would constitute a “cogent reason” for
the circuit court to reconsider Kong’s sentence. We need not
decide this issue at this time, however, because the circuit
court also based its refusal to reconsider on an erroneous
interpretation of the effect of this court’s ruling in Kong I.
On remand, the circuit court should first address whether cogent
reasons exist to reconsider Judge Raffetto’s sentence.
Kong’s alternative argument, that the circuit court
erroneously considered this court’s Kong I opinion to preclude
his independent re-evaluation of Kong’s sentence, however, has
merit. At an initial hearing on Kong’s motion to reconsider or
reduce sentence, the circuit court stated, “I’m not suggesting
to you [defense counsel] that I’m going to do anything different
[regarding sentencing] than what’s already been done. Because
it’s already gone up on appeal.” (Emphasis added.) At a later
hearing, the circuit court elaborated its reasoning as follows:
This has already been –- this sentence was appealed, and
the Supreme Court reviewed it, and if the Supreme Court
felt -- I understand the grounds when they look at these
things. But the appellate court –- the appellate court has
really scrutinized a lot of these cases, especially with
the composition of our present court. Even if it wasn’t
raised, if they feel this was inherently unjust or unfair,
they would have sent it back, and they didn’t.
These statements indicate the circuit court thought it was
unable to reconsider the prior judge’s sentence not because of
“comity” reasons, but because it thought this court had already
passed judgment on the justness and fairness of Kong’s sentence.
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The circuit court’s interpretation of the effect of this court’s
opinion in Kong I was incorrect.
In this regard, the circuit court seemed to reference the
Kong I majority’s holding that the circuit court did not plainly
err in relying on the inaccurate PSI in imposing consecutive
sentences. 131 Hawaii at 107, 315 P.3d at 733. To the circuit
court, had this court held that Kong’s sentence amounted to
plain error and remanded the case for re-sentencing, then it
would be appropriate to revisit Kong’s sentence. This reasoning
is erroneous, as it conflates the result of a direct appeal with
what may be possible in a motion for post-conviction relief.
Even though a plain error review on direct appeal may result in
affirmance of a sentence because the high plain error standard
of “affecting substantial rights” was not met, Kong’s sentence
can be reconsidered by a different sentencing judge under HRPP
Rule 35 at the judge’s discretion (a lower standard), as long as
cogent reasons exist. Therefore, in this case, the circuit
court was not precluded, by this court’s affirmance of Kong’s
sentence in Kong I, from re-evaluating Kong’s sentence on a Rule
35 motion.
In connection with his Rule 35 motion, Kong presented the
circuit court with evidence that two vacated and dismissed prior
convictions were erroneously included in his PSI, and that his
consecutive sentence should be re-evaluated in light of this
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mistake. In other words, Kong brought a Sinagoga challenge to
his PSI as part of his Rule 35 motion. In response to his
challenge, however, Kong notes, “Nothing happened here.”
Neither the State nor the circuit court addressed whether the
prior convictions were indeed invalid. As Kong argues, the
State and the circuit court simply abandoned compliance with the
Sinagoga framework.
Kong’s argument is persuasive. Again, the five steps in
the Sinagoga framework are
Step one, the court shall furnish to the defendant or
defendant’s counsel and to the prosecuting attorney a copy
of the presentence report, HRS § 706-604, and any other
report of defendant’s prior criminal conviction(s). Step
two, if the defendant contends that one or more of the
reported prior criminal convictions was (1) uncounseled,
. . . and/or ([2]) not against the defendant, the defendant
shall, prior to the sentencing, respond with a good faith
challenge on the record stating, as to each challenged
conviction, the basis or bases for the challenge. Step
three, prior to imposing the sentence, the court shall
inform the defendant that (a) each reported criminal
conviction that is not validly challenged by the defendant
is defendant’s prior, counseled, validly entered, criminal
conviction, and (b) a challenge to any reported prior
criminal conviction not made by defendant before sentence
is imposed may not thereafter, absent good cause, be raised
to attack the court’s sentence. Step four, with respect to
each reported prior criminal conviction that the defendant
challenges, the [Hawaii Rules of Evidence] shall apply, and
the court shall expressly decide before the sentencing
whether the State satisfied its burden of proving to the
reasonable satisfaction of the court that the opposite of
the defendant’s challenge is true. Step five, if the court
is aware of the defendant’s prior uncounseled or otherwise
invalid criminal conviction(s), it shall not impose or
enhance a prison sentence prior to expressly stating on the
record that it did not consider it or them as a basis for
the imposition or enhancement of a prison sentence.
Sinagoga, 81 Hawaii at 447, 918 P.2d at 254 (as modified by
Veikoso, 102 Hawaii 219, 74 P.3d 575).
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In this case, through a “Written Notice of Objection to the
Pre-Sentence Report and Other Materials Contained in the Court
File,” made in connection with his Rule 35 motion to reconsider
or reduce sentence, Kong complied with the second step in the
Sinagoga framework by challenging the inclusion of the two
vacated and dismissed convictions in the PSI. The State did not
respond. There is nothing in the record to reflect that the
circuit court took any action on the written notice.8 Further,
the circuit court did not expressly state on the record that it
did not consider the two convictions in denying Kong’s motion to
reconsider or reduce sentence.9
Having decided that Sinagoga applies in Rule 35 motion
proceedings, and that the circuit court was not precluded by
Kong I from re-evaluating Kong’s sentence, we hold that it was
error for the circuit court to abandon Kong’s Sinagoga challenge
to the erroneous inclusion of two vacated and dismissed prior
convictions in his PSI.
8
See supra, n.5.
9
It is true that the circuit court told Kong, “I don’t disagree with you
there,” in response to Kong’s statement that his sentence should be based
only on valid, not invalid, convictions. This statement, however, falls
short of “expressly stating on the record that [the circuit court] did not
consider [invalid convictions] as a basis for the imposition or enhancement
of a prison sentence,” or, in this case, the denial of a motion to reduce
sentence, as Sinagoga would require. See Sinagoga, 81 Hawaii at 447, 918
P.2d at 254.
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V. Conclusion
For the foregoing reasons, the ICA’s December 27, 2016
Judgment on Appeal, and its November 29, 2016 Memorandum
Opinion, are vacated, and this case is remanded to the circuit
court for further proceedings consistent with this opinion.
Benjamin E. Lowenthal /s/ Mark E. Recktenwald
for petitioner
/s/ Paula A. Nakayama
Peter A. Hanano
for respondent /s/ Sabrina S. McKenna
/s/ Michael D. Wilson
/s/ Gary W.B. Chang
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