State v. Abarcar ( 2022 )


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  •    NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
    Electronically Filed
    Intermediate Court of Appeals
    CAAP-XX-XXXXXXX
    23-FEB-2022
    07:38 AM
    Dkt. 40 SO
    NO. CAAP-XX-XXXXXXX
    IN THE INTERMEDIATE COURT OF APPEALS
    OF THE STATE OF HAWAI#I
    STATE OF HAWAI#I, Plaintiff-Appellee,
    v.
    NICHOLAS ABARCAR, Defendant-Appellant
    APPEAL FROM THE CIRCUIT COURT OF THE THIRD CIRCUIT
    (CR. NO. 3CPC-XX-XXXXXXX)
    SUMMARY DISPOSITION ORDER
    (By:     Ginoza, Chief Judge, Hiraoka and Nakasone, JJ.)
    Defendant-Appellant Nicholas Abarcar (Abarcar), appeals
    from the Judgment of Conviction and Sentence (Judgment), filed on
    May 17, 2021 by the Circuit Court of the Third Circuit (Circuit
    Court).1     In accordance with a plea agreement with Plaintiff-
    Appellee State of Hawai#i (State), Abarcar pled guilty to
    Negligent Homicide in the Second Degree, in violation of Hawaii
    Revised Statutes (HRS) § 707-703(1), and three counts of
    Negligent Injury in the Second Degree, in violation of HRS § 707-
    706(1).2
    1
    The Honorable Robert D.S. Kim presided.
    2
    This case arose out of a fatal head-on collision that occurred on
    November 10, 2019, on Queen Ka#ahumanu Highway, in Kailua-Kona, Hawai#i Island,
    between Abarcar's vehicle and a vehicle driven by the decedent, Cassandra
    Ellis (Decedent). Abarcar was charged with manslaughter, first-degree and
    second-degree negligent homicide against Decedent; two counts of first-degree
    negligent injury, and one count of second-degree negligent injury against
    Decedent's two daughters and one of her daughter's friends; and one count of
    operating a vehicle under the influence of an intoxicant. Pursuant to the
    plea agreement, three of the counts were dismissed with prejudice.
    NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
    On appeal, Abarcar contends the Circuit Court "plainly
    and manifestly abused its discretion" by disregarding the
    sentencing factors under HRS § 706-606,3 resulting in a sentence
    that was "unduly harsh, violating [Abarcar's] substantial right
    to be punished appropriately and justly."
    Upon careful review of the record and the briefs
    submitted by the parties, and having given due consideration to
    the arguments advanced and the issues raised, we resolve
    Abarcar's point of error as follows, and affirm.
    Abarcar argues that the Circuit Court disregarded the
    HRS § 706-606 factors by "relying upon extraneous experiences and
    notions." Abarcar asserts that "there were a variety of
    dispositions available" pursuant to HRS §§ 706-6054 and 706-
    3
    HRS § 706-606 (2014), entitled "Factors to be considered in
    imposing a sentence," provides:
    The court, in determining the particular sentence to
    be imposed, shall consider:
    (1)   The nature and circumstances of the offense and
    the history and characteristics of the
    defendant;
    (2)   The need for the sentence imposed;
    (a)   To reflect the seriousness of the offense,
    to promote respect for law, and to provide
    just punishment for the offense;
    (b)   To afford adequate deterrence to criminal
    conduct;
    (c)   To protect the public from further crimes
    of the defendant; and
    (d)   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.
    4
    HRS § 706-605 (2014), entitled "Authorized disposition of
    convicted defendants," sets forth the authorized dispositions for criminal
    offenses, such as sentences for probation, payment of a fine, imprisonment,
    and performance of community service.
    2
    NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
    605.1,5 but the Circuit Court's statements at the sentencing
    hearing indicated that Arbacar's sentence was "not based solely
    on applying HRS Chapter 706." Abarcar also argues that the
    punishment imposed upon him was contrary to the Presentence
    Diagnosis and Report (PSI Report), and focused on retribution and
    deterrence, leading to Abarcar's "disparate treatment at
    sentencing."
    We review a sentencing court's imposition of sentence
    for an abuse of discretion.
    A sentencing judge generally has broad discretion in
    imposing a sentence. The applicable standard of review for
    sentencing or resentencing matters is whether the court
    committed plain and manifest abuse of discretion in its
    decision. Factors 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. And, generally, 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.
    State v. Mundon, 121 Hawai#i 339, 349, 
    219 P.3d 1126
    , 1136 (2009)
    (quoting State v. Kahapea, 111 Hawai#i 267, 278, 
    141 P.3d 440
    ,
    451 (2006)). "The weight to be given the factors set forth in
    HRS § 706-606 in imposing sentence is a matter generally left to
    the discretion of the sentencing court, taking into consideration
    the circumstances of each case." State v. Akana, 
    10 Haw. App. 381
    , 386, 
    876 P.2d 1331
    , 1334 (1994). A sentencing court "is not
    required to articulate and explain its conclusions with respect
    to every factor listed in HRS § 706-606. Rather, it is presumed
    that a sentencing court will have considered all factors before
    imposing concurrent or consecutive terms of imprisonment under
    HRS § 706-606." Lewi v. State, 145 Hawai#i 333, 350-51, 
    452 P.3d 330
    , 347-48 (2019) (quoting State v. Kong, 131 Hawai#i 94, 102,
    
    315 P.3d 720
    , 728 (2013) (internal quotation marks and footnote
    omitted) (emphasis added)).
    5
    HRS § 706-605.1 (2014 & Supp. 2016), entitled "Intermediate
    sanctions; eligibility; criteria and conditions," sets forth alternative,
    intermediate sanctions, such as house arrest, drug court programs, residential
    programs, and other similar programs.
    3
    NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
    Here, the record reflects that at the May 17, 2021
    sentencing, the Circuit Court indicated that it had reviewed the
    PSI Report, the records and files of the case, and stated that it
    considered "all the factors" in its review. The PSI Report
    contained the pre-sentence investigator's review of the HRS §
    706-606 sentencing factors, and detailed letters from both the
    prosecutor and Abarcar's trial counsel addressing all of the
    factors. The PSI Report also included victim impact statements,
    as well as approximately 50 letters for Abarcar and 14 letters
    for the victims, from their respective families, friends, and
    community members. The Circuit Court stated that it had
    "reviewed every letter from both sides."
    At sentencing, the State argued for the maximum
    sentence of five years imprisonment on the Negligent Homicide
    offense concurrent with the Negligent Injury offenses because of
    Abarcar's "decision making process he took that day, along with
    his prior DUI." Abarcar's counsel referenced and summarized his
    argument "[a]pplying the factors under 706-606" as detailed in
    the report, and requested a sentence of probation with community
    service, and if the court felt necessary, house arrest,
    electronic monitoring or "even intermittent jail if the Court
    believes that incarceration is appropriate[.]"
    The Circuit Court imposed sentence as follows:
    THE COURT: Okay. So the Court has reviewed the
    presentence report, I've reviewed all the letters, all the
    attachments. I'm not aware of any media stories that said
    whatever you're referring to. I did not know of it. I did
    not consider it. The Court based my review on the
    presentence report and the records and files of this case.
    There is a lot of attention to this case by the
    respective families. The question when I came into court
    this morning as a judge was, what is justice. Cause that's
    why we're here. What is justice. On the one side I'm being
    asked to send Mr. Abarcar to prison. On the other side I'm
    being asked to consider his record and to give him probation
    and community service and maybe intermittent jail.
    This is my analysis of the case. In the blink of an
    eye someone is dead. [Decedent] died horribly in front of
    her daughters. Her two-year-old daughter [ ] wonders why
    mom is gone. I can only conclude that this tragedy was
    senseless. It was negligence. But it was senseless.
    There's no –- no rhyme or reason.
    4
    NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
    Looking at the radio to attempt to sink [sic] a phone
    while driving, a lot of young people do that. You drive on
    the road, you see them. Adults do it too. I drive, I live
    in the community, I see people on their phones. I see them
    looking down, jamming on their brakes when they don't pay
    attention. The overriding thing about this tragedy is that
    it was completely avoidable. It was completely avoidable
    and it was senseless and it caused such destruction to the
    [Decedent's] family as well as the Abarcar family.
    And so based upon my review, considering all the
    factors, it is the judgment and conviction of the Court as
    follows as to the charges to which Defendant pled.
    Negligent Homicide in the Second Degree, Count Three. Count
    Four, Negligent Injury in the Second Degree, lesser included
    offense. Count Five, Negligent Injury in the Second Degree,
    lesser included offense. And Count Six, Negligent Injury in
    the Second Degree. Defendant is convicted and found guilty
    of the charges to which Defendant pled.
    It is the judgment and sentence of the Court as
    follows. Defendant is committed to the custody of the
    Director of the Department of Public Safety for
    incarceration for an indeterminate period of five years as
    to Count Three. One year as to Counts Four, Five, and Six
    with credit for any and all time served. Terms of
    incarceration shall run concurrent as to all counts.
    . . . .
    Defendant entered the pleas indicated, it is adjudged
    that the Defendant has been convicted of and is guilty of
    the offense stated above, committed in the manner and set
    forth in the charge. It is further ordered that bail
    conditions are cancelled.
    You're going to spend some time in prison. You're
    young, you're going to get out, you have promise. But what
    you did, you have to pay the price.
    And this is a warning to all who get distracted of
    what can happen. And it's a message not only to you but to
    the community as to –- pay attention, our roads, we all
    drive on the roads.
    [Decedent] had nothing but happiness followed by
    death.
    Mittimus forthwith.
    [DEFENSE COUNSEL]: Your Honor, would the Court
    entertain a motion to stay the sentence pending appeal?
    THE COURT:   No.   Denied.
    (Emphases added).
    The record reflects that the Circuit Court considered
    the "nature and circumstances of the offense[s]" under subsection
    (1) of HRS § 706-606, by noting the tragic nature of the case,
    the fact that someone died, and how the Decedent "died horribly
    5
    NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
    in front of her daughters." The Circuit Court also considered
    the "history and characteristics" of Abarcar under subsection
    (1), by noting that it was "being asked to consider his record
    and to give him probation . . . ." The Court noted the "kinds of
    sentences available" to it under subsection (3), and expressed
    that it was weighing two different sentencing options from the
    opposing sides: prison or "probation and community service and
    maybe intermittent jail." Under HRS § 706-606(2)(a) and (2)(b),
    the Circuit Court considered the need for the sentence imposed to
    reflect the "seriousness of the offense[s]," to "provide just
    punishment," and to afford deterrence, by noting the seriousness
    of the inattentive driving conduct, that others in the community
    drove in a similarly distracted manner, and stating that the
    Court had contemplated "[w]hat is justice" in light of the
    "destruction to the [Decedent's] family[.]"
    Although the Circuit Court did not expressly articulate
    or address every HRS § 706-606 sentencing factor or explain its
    conclusions as to every factor, it was "not required" to do so.
    Lewi, 145 Hawai#i at 350-51, 452 P.3d at 347-48. The Circuit
    Court is presumed to have considered all of the factors before
    imposing its sentence. See id. The record reflects that the
    Court considered "all the factors," and that it had reviewed the
    PSI Report that contained extensive HRS § 706-606 factor-specific
    written argument from both sides. We cannot conclude from this
    record that the Circuit Court committed "plain and manifest"
    abuse of its broad sentencing discretion when it sentenced
    Abarcar to concurrent terms of imprisonment, and rejected a
    sentence of probation. Mundon, 121 Hawai#i at 349, 
    219 P.3d at 1136
    . In deciding in favor of the more severe penalty of
    imprisonment for Abarcar, the record does not reflect that the
    Court was "arbitrary or capricious" or expressed a "rigid
    refusal" to consider Abarcar's mitigating arguments. Id.; see
    Kahapea, 111 Hawai#i at 282, 
    141 P.3d at 455
     ("While stern, the
    circuit court's sentence furthers the statutory penological goals
    of retribution, incapacitation, and deterrence and does not
    6
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    reflect 'arbitrary or capricious action' or 'a rigid refusal to
    consider the defendant's contentions.'") (citation omitted)).
    For the foregoing reasons, the Judgment of Conviction
    and Sentence, filed on May 17, 2021 by the Circuit Court of the
    Third Circuit, is affirmed.
    DATED: Honolulu, Hawai#i, February 23, 2022.
    On the briefs:
    /s/ Lisa M. Ginoza
    Jason R. Kwiat                     Chief Judge
    (Schlueter, Kwiat & Kennedy)
    for Defendant-Appellant            /s/ Keith K. Hiraoka
    Associate Judge
    Stephen L. Frye
    Deputy Prosecuting Attorney        /s/ Karen T. Nakasone
    County of Hawai#i                  Associate Judge
    for Plaintiff-Appellee
    7
    

Document Info

Docket Number: CAAP-21-0000339

Filed Date: 2/23/2022

Precedential Status: Precedential

Modified Date: 2/23/2022