State v. Cattaneo ( 2021 )

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
24-FEB-2021
07:45 AM
Dkt. 70 MO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
STATE OF HAWAI#I, Plaintiff-Appellee, v.
MICHAEL A. CATTANEO, Defendant-Appellant
APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT
(CR. NO. 2PC151000023; CR. NO. 2PC151000122)
MEMORANDUM OPINION
(By: Ginoza, Chief Judge, Leonard and Nakasone, JJ.)
Defendant-Appellant Michael A. Cattaneo (Cattaneo)
appeals from a July 16, 2019 Order Denying Cattaneo's [Hawai#i
Rules of Penal Procedure (HRPP)] Rule 35 Motion for Reduction of
Sentence (Order Denying Motion to Reduce Sentence) and April 24,
2020 Findings of Fact (FOFs) and Conclusions of Law (COLs) and
Order Denying Motion to Reduce Sentence (FOFs/COLs & Order)
entered by the Circuit Court of the Second Circuit (Circuit
Court).1
1
The Honorable Richard T. Bissen, Jr. presided.
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This appeal arises out of two criminal cases brought
by Plaintiff-Appellee State of Hawai#i (State) against Cattaneo.
Cattaneo pleaded no contest to, and was convicted of, one count
of Negligent Homicide in the First Degree in violation of Hawaii
Revised Statutes (HRS) § 707-702.5(1)(b) (2014),2 one count of
Promoting a Dangerous Drug in the Third Degree in violation of
HRS § 712-1243(1) (2014),3 and one count of Prohibited Acts
Related to Drug Paraphernalia in violation of HRS § 329-43.5(a)
(2010).4 Cattaneo was sentenced to an indeterminate ten-year
2
HRS § 707-702.5 provides:
§ 707-702.5 Negligent homicide in the first degree .
(1) A person commits the offense of negligent homicide in
the first degree if that person causes the death of:
(a) Another person by the operation of a vehicle in a
negligent manner while under the influence of
drugs or alcohol; or
(b) A vulnerable user by the operation of a vehicle
in a negligent manner.
(2) Negligent homicide in the first degree is a class B
felony.
3
HRS § 712-1243 provides:
§ 712-1243 Promoting a dangerous drug in the third
degree. (1) A person commits the offense of promoting a
dangerous drug in the third degree if the person knowingly
possesses any dangerous drug in any amount.
(2) Promoting a dangerous drug in the third degree is
a class C felony.
4
HRS § 329-43.5 provides, in relevant part:
§ 329-43.5 Prohibited acts related to drug
paraphernalia. (a) It is unlawful for any person to use, or
to possess with intent to use, drug paraphernalia to plant,
propagate, cultivate, grow, harvest, manufacture, compound,
convert, produce, process, prepare, test, analyze, pack,
repack, store, contain, conceal, inject, ingest, inhale, or
otherwise introduce into the human body a controlled
substance in violation of this chapter. Any person who
(continued...)
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term of imprisonment for Negligent Homicide in the First Degree
and indeterminate five-year terms for each of the drug-related
convictions, with the five-year terms running concurrently to
each other and consecutively to the ten-year term.
Upon conclusion of a direct appeal from the December 4,
2015 Judgment of Conviction and Sentence (Judgment),5 discussed
briefly below,6 Cattaneo filed an HRPP Rule 35(b) Motion for
Reduction of Sentence (Motion to Reduce Sentence). After a
hearing, the Circuit Court entered the Order Denying Motion to
Reduce Sentence.
Cattaneo contends that the Circuit Court erred in
denying the Motion to Reduce Sentence by neglecting to consider
"the need to avoid unwarranted sentence disparities" among
similarly-situated defendants and failing to "state a sufficient
basis for re-imposing consecutive sentences upon resentencing."
Cattaneo also contends that he received ineffective assistance of
counsel during the hearing on the Motion to Reduce Sentence.
Cattaneo asks this court to vacate the Circuit Court's April 24,
(...continued)
violates this section is guilty of a class C felony and upon
conviction may be imprisoned pursuant to section 706-660
and, if appropriate as provided in section 706-641, fined
pursuant to section 706-640.
5
On December 20, 2018, this court issued a Summary Disposition
Order affirming the December 4, 2015 Judgment. See State v. Cattaneo, CAAP-
XX-XXXXXXX and CAAP-XX-XXXXXXX, 2018 WL 6696055 (Haw. App. Dec. 20, 2018)
(SDO). The Judgment on Appeal was entered on January 31, 2019. Cattaneo
filed an application for writ of certiorari to the Hawai #i Supreme Court,
which was denied on May 8, 2019. See State v. Cattaneo, SCWC-XX-XXXXXXX, 2019
WL 2024438, *1 (Haw. May 8, 2019).
6
See infra note 7.
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2020 FOFs/COLs & Order and remand this case for a rehearing
before a different judge. After reviewing the record on appeal
and the relevant legal authorities, and giving due consideration
to the issues and the arguments raised by the parties, we affirm.
I. BACKGROUND
On January 20, 2015, Cattaneo was indicted by a grand
jury on two counts of Negligent Homicide in the First Degree, one
count of Operating a Vehicle Under the Influence of an
Intoxicant, and one count of Driving Without Motor Vehicle
Insurance. On February 23, 2015, the State filed a Felony
Information and Non-Felony Complaint charging Cattaneo with two
counts related to dangerous drug possession and paraphernalia,
one count of Driving Under the Influence, one count of Driving
Without a License, and two counts related to driving without
insurance. On August 6, 2015, Cattaneo, represented by the
Office of the Public Defender, pleaded no contest to and was
convicted of one count of Negligent Homicide in the First Degree
in violation of HRS § 707-702.5(1)(b), one count of Promoting a
Dangerous Drug in the Third Degree in violation of HRS § 712-
1243(1), and one count of Prohibited Acts Related to Drug
Paraphernalia in violation of HRS § 329-43.5(a).
In the plea agreement, the parties agreed, inter alia,
to seek concurrent sentencing on all counts. The Circuit Court
nevertheless sentenced Cattaneo to consecutive terms of
imprisonment. In CR. No. 15-1-0023(4), Cattaneo was sentenced to
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an indeterminate ten-year term of imprisonment for his conviction
of Negligent Homicide in the First Degree. In CR. No. 15-1-
0022(2), Cattaneo was sentenced to an indeterminate five-year
term for each of his convictions for Promoting a Dangerous Drug
in the Third Degree and Prohibited Acts Related to Drug
Paraphernalia, to run concurrently with each other and
consecutively with the ten-year term.
At the sentencing hearing, the Circuit Court solicited
statements from, inter alia: Cattaneo, Cattaneo's mother,
defense counsel, prosecution counsel, and the friends and family
of the deceased. The Circuit Court concluded that Cattaneo
"clearly ha[s] no respect for the law" and "no respect for other
people", and that Cattaneo's "rule-breaking attitude has cost a
man his life." The court then explained its sentencing
rationale:
[T]he focus is on how do we change you [(Cattaneo)]?
What must the Court do to change you or people who think
like you or people who act like you? How do I stop them and
you from doing this again?
. . . .
So what I can do is separate you from society long
enough for you to gain this insight that you started on and
also prevent this from happening to others? [sic]
The time for lessons has passed. This isn't a teaching
moment, in my mind. This is a moment for punishment.
. . . .
And so the Court is sentencing the defendant.
Considering the factors under Chapter 706-606, the
Court has considered the nature and circumstances of the
offense and the history and characteristics of this
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defendant, especially the history and characteristics of the
defendant.
The Court has considered the need for this sentence to
reflect the seriousness of the offense. And this is of the
most serious nature, the taking of one's life.
. . . .
The Court is considering promoting respect for the
law, providing just punishment for this offense, the Court
is absolutely considering affording adequate deterrence to
criminal conduct. And deterrence is not just to the
defendant, but to those who would think like this or like
him.
The Court is considering protecting the public from
further crimes of this defendant and providing the defendant
with needed educational or vocational training, medical
care, other correctional treatment in the most effective
manner.
The types of sentences available to the Court have
been adequately and appropriately pointed out by both
counsel. And the Court does appreciate the argument that
both counsels have made.
And the need to avoid unwarranted sentence disparities
among defendants with similar records who have been found
guilty of similar conduct. I do not know of the sentences
imposed in other courtrooms in either September or any other
months of similar cases. I know, however, what this Court
sentences in these types of offenses.
And so taken [sic] all that into account, in Criminal
Number 15-1-0023, Count Two, the defendant is committed to
the custody of the Department of Public Safety for a period
of 10 years.
In Criminal Number 15-1-0122, Count One, the defendant
is sentenced to a period of five years; Count Two, a period
of five years.
Those terms will run concurrently with each other and
consecutively to the sentence imposed in 15-1-023, totaling
15 years.
Thereafter, the court entered the Judgment. On January
27, 2016, Cattaneo filed a notice of appeal from the Judgment
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(Direct Appeal), which was docketed in CAAP-XX-XXXXXXX. The
Judgment was affirmed.7
On June 19, 2019, Cattaneo filed the Motion to Reduce
Sentence, requesting that the Circuit Court exercise its
discretionary power to reduce Cattaneo's sentence to a concurrent
sentence on all convictions pursuant to the provisions of HRS §§
706-6068 and 706-668.5.9 The motion stated that "[u]nder the
7
In the Direct Appeal, Cattaneo raised three points of error,
summarized as follows:
(1) the Circuit Court plainly erred when it focused on
unreliable hearsay in conjunction with sentencing in the
form of Facebook entries described in a letter attached to
the Presentence Diagnosis and Report (PSI Report); (2) the
Circuit Court plainly erred when it imposed consecutive
sentences in this case; and (3) this court should recognize
plain error in Cattaneo's sentencing because the State
failed to comply with the terms of the plea agreement.
State v. Cattaneo, CAAP-XX-XXXXXXX, 2018 WL 6696055 at *1 (Haw. App. Dec. 20,
2018) (SDO).
8
HRS § 706-606 (2014) provides:
§ 706-606 Factors to be considered in imposing a
sentence. 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 to be 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;
(continued...)
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provisions of HRS §§ 706-606 and 706-668.5, a concurrent sentence
would be more appropriate and in line with sentencing defendants
convicted of Negligent Homicide in the First Degree." Moreover,
Cattaneo argued that "other case sentencing(s) support the
original term of 10 years concurrent" because those other
"Comparable Cases" contain similar, if not "more egregious", fact
patterns resulting in convictions for Negligent Homicide in the
First Degree along with other felony convictions, but that those
same cases, in the same jurisdiction, resulted in concurrent
sentencing.
In addition, Cattaneo represented himself as a model
inmate who had sought diligently to improve himself in the almost
five years he had been incarcerated, proposing that the court
"may see Cattaneo has been serving good time and seeking to be as
productive as possible in his almost 5 years of [incarceration]
by gaining skills and being employed."10 Appended to the Motion
(...continued)
(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.
9
HRS § 706-668.5 (2014) provides, in relevant part: "The court, in
determining whether the terms imposed are to be ordered to run concurrently or
consecutively, shall consider the factors set forth in section 706-606." HRS
§ 706-668.5(2).
10
Cattaneo stated that he goes to school full-time while also
holding a full-time job in the kitchen where he prepares meals for special
diet need prisoners. In addition, Cattaneo stated that he has taken courses
in vocational plumbing, received several certificates on courses of personal
improvement, obtained an OSHA "10" safety card, and is signed up to take
(continued...)
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to Reduce Sentence is a hand-written note (Note), apparently
authored by Cattaneo, in which he expresses contrition,
acknowledges the "terrible decision" he made that led to the
taking of another's life, acknowledges that "[t]here is no
question that [he] needed to take a long hard look at [his] life
and the direction it was headed", and that he "has come a long
way from where [he] was, and [he is] sure [he has] a ways to go."
On June 25, 2019, the State filed a Statement of No
Position to Cattaneo's Motion to Reduce Sentence.
A hearing on the Motion to Reduce Sentence was held on
June 27, 2019, at which Cattaneo was represented by Matthew Kohm
(Kohm).
Kohm argued that Cattaneo has shown remorse and has
adjusted, such that the Court might find that Cattaneo "can be
productive or that he deserves a chance." Kohm reiterated points
concerning Cattaneo's good conduct and self-improvement in
prison. Kohm made arguments regarding mitigating factors related
to Cattaneo's conviction for Negligent Homicide, his lack of
prior felony convictions, and the prospects for his reintegration
in society. With respect to "Comparable Cases," Kohm argued:
Lastly, I would say is I know this Court is very aware
of the different sentences that go on in this Court and
other Courts. Myself, as a civil attorney, most of my
practice, I also get to see these cases from the civil side
and what the parole board does.
(...continued)
further vocational courses and to do the "RDAP program." Cattaneo also stated
that he has family ready and job prospects to help him transition back to life
on Maui should he be released.
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I will let the Court know, [Cattaneo] was set as a
Level 3 offender. I was involved in a First Circuit case,
State v. Sioni Tilini, who was an Army vet who was in a
collision and he killed the other driver. And he was also
set as a Level 3 offender.
So I say that to this Court so that it's not like
[Cattaneo] is going to walk if he got a concurrent sentence.
But it's the parole board, it's been my experience is that
they do treat these severely. And he will still have to do
many things before he's eligible for parole.
In response, the Circuit Court, inter alia, stated that
it had "read all of [Cattaneo's] moving papers" and further
acknowledged that "[Cattaneo] has made good use of his time[.]
There's no doubt he's made improvements."
Cattaneo made a statement, reiterating the main thrust
of his Note, expressing contrition for the damage he caused,
taking full responsibility for his actions, and stating that he
had no excuse for his bad decision-making. Additionally,
Cattaneo stated that "when [he] was sentenced to prison . . .
prison was exactly what [he] needed." Nevertheless, Cattaneo
stated that he had matured to become a "completely different
person" with "more to offer society."
The Circuit Court acknowledged Cattaneo's arguments and
representations: "I think you have made good use of your time.
And so I appreciate the words you've just spoken, as well as what
you wrote, which the Court also spent a lot of time reviewing."
Kohm further argued that Cattaneo has adjusted well to
and remained misconduct-free in prison, and that he wants to
contribute and be part of society. Kohm reiterated that Cattaneo
had "attempted to have some maturity" and that certain
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aggravating character insights which may have been considered by
the court in sentencing were made "before [Cattaneo's] wake-up
call." Kohm concluded by asking the court to reduce Cattaneo's
sentence and give him concurrent sentencing.
In regards to "the portion of the doctrine that has to
do with other cases in this jurisdiction," the Circuit Court
stated:
[I]t's not the Court's practice to review cases that
are issued by other Courts, whether in this circuit or
others. Because I happen to know that every case is nuanced,
every case has something that may not be obvious to someone.
I get it all the time, and I hear it sometimes in
letters where someone says, well, how come this guy stole a
car and he got a year and the other guy assaulted somebody
and he got 30 days and, you know, sometimes even from the
same Court.
So I think it's dangerous to -- while we do follow the
rule of precedent as far as the law is concerned, I think it
would be dangerous to start deciding cases on how someone
else decided a case without knowing every single detail
about that case.
I don't know about any other Court, but I personally
try my best to factor in every single element that I think
is important. And some cases can have 50 things that you
should consider, and some have five. I don't know what other
judges do in deciding their ultimate decision.
So I do factor in the argument of the prosecutor, the
argument of the defense, the recommendation from probation.
Obviously, the input from the victims and the input from the
defendant. They're all significant factors.
I did exactly that in this case with Mr. Cattaneo.
The Circuit Court concluded:
There has been no change in circumstance in this case,
except for the passage of time and the improvement of the
defendant[.]
. . . .
I sent him to be punished. I sent him to think greatly about
the life he took and the impact it had on those who remain.
So it's with that this Court recalling all of the
factors that were taken into account that I deny your
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motion. And this is not a simple decision either. I've
pondered this as well.
. . . .
This sentence was made to reflect the very, very
serious consequence that occurred, as well as all the other
factors that have already been discussed that I won't
rehash. But it's also a deterrent to every other person out
there.
. . . .
[discussing other recent driving related fatalities]
This is not a reflection of Mr. Cattaneo and I'm not
comparing him to those. As I said, I don't look at the other
cases one way or the other to give somebody a harsher
sentence or a lighter sentence because I think it's not fair
to a person to do that. I think every single case should
stand on its own.
But I do deny your motion with much thought, counsel.
On July 16, 2019, the Circuit Court entered the Order
Denying Motion to Reduce Sentence. On August 14, 2019, after a
withdrawal and substitution of counsel was approved, Cattaneo was
granted a thirty-day extension of time to file a notice of
appeal. On September 16, 2019, Cattaneo filed a notice of appeal
from the Order Denying Motion to Reduce Sentence.
On February 19, 2020, Cattaneo moved for entry of FOFs
and COLs Regarding the Order Denying Motion to Reduce Sentence,
and on April 24, 2020, the court entered its FOFs/COLs & Order.
In the FOFs/COLs & Order, the court stated, inter alia,
that "[t]he Court reviewed all available information to reach its
original sentence. The Court considered the arguments of the
parties[.]" The court stated that "[i]n considering the Motion
to Reduce Sentence, the Court reconsidered all of the factors
that were relevant to [Cattaneo's] sentencing on December 4,
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2015," and that "[t]here has been no change of circumstance,
except for the passage of time and [Cattaneo's] personal
improvements."
The Circuit Court concluded, inter alia, that "[a]
sentencing court has discretion to impose consecutive terms."
The court noted its obligation to consider the factors set forth
in HRS § 706-606 and set forth the factors. The court concluded
that Cattaneo's original sentence reflected the court's
consideration of the HRS § 706-606 factors, the sentence
specifically served the purposes of punishment and deterrence,
and there was no reason to change or reduce Cattaneo's sentence.
II. POINTS OF ERROR
Cattaneo raises three points of error on appeal,
contending that: (1) the Circuit Court plainly erred in refusing
to consider facts and arguments regarding the need to avoid
unwarranted disparities in sentencing among similarly-situated
defendants; (2) the Circuit Court abused its discretion in
failing to state a "sufficient basis for re-imposing consecutive
sentences upon resentencing;" and (3) Cattaneo received
ineffective assistance of counsel at the Motion to Reduce
Sentence hearing.
III. APPLICABLE STANDARDS OF REVIEW
In general, "[a] judge has broad discretion in matters
related to sentencing." State v. Phillips, 138 Hawai#i 321, 357,
382 P.3d 133, 169 (2016) (citation omitted). Accordingly, "[t]he
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authority of a trial court to select and determine the severity
of a penalty is normally undisturbed on review in the absence of
an apparent abuse of discretion or unless applicable statutory or
constitutional commands have not been observed." Barnett v.
State, 91 Hawai#i 20, 26, 979 P.2d 1046, 1052 (1999) (citations
and internal quotation marks omitted).
"A trial court has the discretion to, within the time
limits set forth by HRPP Rule 35, reduce a sentence. Therefore,
orders on HRPP Rule 35 motions for reduction of sentence are
reviewed for an abuse of discretion." State v. Kong, 140 Hawai#i
103, 109, 398 P.3d 692, 698 (2017) (Kong II) (citation and
internal quotation marks omitted).
The trial court abuses its discretion when it clearly
exceeds the bounds of reason or disregards rules or
principles of law or practice to the substantial detriment
of a party litigant. The burden of establishing abuse of
discretion is on appellant, and a strong showing is required
to establish it.
State v. Hinton, 120 Hawai#i 265, 273, 204 P.3d 484, 492 (2009)
(citation and quotation marks omitted). "[T]he determination of
the existence of clear abuse is a matter which is not free from
difficulty[,] and each case in which abuse is claimed must be
adjudged according to its own peculiar circumstances." State v.
Gaylord, 78 Hawai#i 127, 144, 890 P.2d 1167, 1184 (1995)
(citation omitted). "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." State v. Kahapea, 111 Hawai#i 267, 278, 141 P.3d
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440, 451 (2006) (brackets, citations, and internal quotation
marks omitted).
Concerning ineffective assistance of counsel, the
supreme court has explained:
When reviewing a claim of ineffective assistance of
counsel, this court looks at whether defense counsel's
assistance was within the range of competence demanded of
attorneys in criminal cases. The defendant has the burden of
establishing ineffective assistance of counsel and must meet
the following two-part test: 1) that there were specific
errors or omissions reflecting counsel's lack of skill,
judgment, or diligence; and 2) that such errors or omissions
resulted in either the withdrawal or substantial impairment
of a potentially meritorious defense. To satisfy this second
prong, the defendant needs to show a possible impairment,
rather than a probable impairment, of a potentially
meritorious defense. A defendant need not prove actual
prejudice.
State v. Wakisaka, 102 Hawai#i 504, 513-14, 78 P.3d 317, 326-27
(2003) (citations and internal quotation marks omitted).
IV. DISCUSSION
A. Motion to Reduce Sentence
Cattaneo argues that the Circuit Court erred in denying
his Motion to Reduce Sentence because the court in denying the
motion failed to consider "[t]he need to avoid unwarranted
sentence disparities among defendants with similar records who
have been found guilty of similar conduct" in violation of HRS
§ 706-606(4), and failed "to adequately articulate the reasons
that it imposed consecutive sentences" in violation of HRS § 706-
668.5(2). Specifically, Cattaneo contends that the court refused
to consider facts and arguments regarding two similarly-situated
defendants who also were convicted of multiple offenses including
Negligent Homicide in the First Degree but who received
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concurrent, rather than consecutive, prison sentences. In
addition, Cattaneo claims that the Circuit Court did not explain
why the disparity between Cattaneo's sentence and these other
sentences was warranted. We examine each contention in turn.
It is well-established that sentencing determinations
are committed to the sound discretion of the trial court and
entitled to substantial deference on appeal. Kahapea, 111
Hawai#i at 281, 141 P.3d at 454; State v. Kong, 131 Hawai#i 94,
101, 315 P.3d 720, 727 (2013) (Kong I) ("A sentencing judge
generally has broad discretion in imposing a sentence.")
(citation omitted); State v. Murray, 63 Haw. 12, 25, 621 P.2d
334, 342 (1980) (a sentencing court is "afforded wide latitude in
the selection of penalties from those prescribed and in the
determination of their severity").
Likewise, this court and the Hawai#i Supreme Court have
repeatedly affirmed the proposition that HRPP Rule 35 vests the
circuit courts with discretion to reduce a defendant's sentence
following a direct appeal. See, e.g., State v. Hussein, 122
Hawai#i 495, 512, 229 P.3d 313, 330 (2010) (citing, inter alia,
State v. LeVasseur, 1 Haw. App. 19, 29, 613 P.2d 1328, 1335
(1980) ("[W]e point out that under [HRPP Rule 35] it is open to
the court below to reduce the sentence within ninety (90) days of
the receipt of our mandate if it sees fit.") (emphasis added)).
HRPP Rule 35(b) states that the circuit court "may reduce a
sentence within 90 days after the sentence is imposed, or within
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90 days after receipt by the court of a mandate issued upon
affirmance of the judgment or dismissal of the appeal[.]"
(Emphasis added). This court has also concluded that a circuit
court must consider the factors set forth in HRS § 706–606 in
ruling on an HRPP Rule 35(b) motion to reduce sentence. See,
e.g., State v. Sauceda, No. 30622, 2011 WL 1909112, *1 (Haw. App.
May 18, 2011) (SDO) (citing Kahapea, 111 Hawai#i at 278, 280–82,
141 P.3d at 451, 453–55); see also State v. Kong, CAAP-15-
0000066, 2016 WL 6997646, *2-4 (Haw. App. Nov. 29, 2016) (mem.
op.), vacated on other grounds, Kong II, 140 Hawai#i 103, 398
P.3d 692 (reviewing circuit court's denial of HRPP Rule 35(b)
motion for independent consideration of merits under HRS § 706-
606).
Reconciling a trial court's obligation to consider the
HRS § 706-606 sentencing factors with its general discretion in
sentencing matters, appellate courts in this jurisdiction have
oftentimes stated that "[t]he 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. Barrios,
139 Hawai#i 321, 328, 389 P.3d 916, 923 (2016) (quoting Kong I,
131 Hawai#i at 101, 315 P.3d at 727 (quoting State v. Akana, 10
Haw. App. 381, 386, 876 P.2d 1331, 1334 (1994))). Thus,
"'[a]bsent clear evidence to the contrary, it is presumed that a
sentencing court will have considered all factors before imposing
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concurrent or consecutive terms of imprisonment under HRS
§ 706–606.'" Id. at 333, 389 P.3d 928 (quoting Kong I, 131
Hawai#i at 102, 315 P.3d at 728 (quoting Hussein, 122 Hawai#i at
503, 229 P.3d at 321)).
In State v. Kahapea, the supreme court considered,
inter alia, whether the trial court abused its discretion in
denying a defendant's HRPP Rule 35 motion where the defendant's
sentence to consecutive terms of imprisonment for theft of public
funds was significantly greater than the sentences of the
defendant's co-conspirators and sentences imposed on defendants
in other cases involving the theft of public funds. 111 Hawai#i
267, 141 P.3d 440. In relevant part, Kahapea argued that his
sentence of, inter alia, five ten-year terms of imprisonment to
run consecutively violated HRS § 706-606(4) on the grounds that
other allegedly similarly-situated defendants received concurrent
sentencing. Id. at 280-82, 141 P.3d at 453-55.11
On appeal, the supreme court examined whether the
circuit court correctly concluded that Kahapea's sentence was
"ultimately mandated," and examined the circuit court's denial of
Kahapea's HRPP Rule 35 motion in light of the "statutory
penological goals of retribution, incapacitation, and
deterrence[.]" Id. at 281-82, 141 P.3d at 454-55. While the
11
As set forth above, HRS § 706-606(4) requires a court to
consider: "The need to avoid unwarranted sentence disparities among
defendants with similar records who have been found guilty of similar
conduct."
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circuit court had distinguished the sentences of other allegedly
similarly-situated defendants put forward in Kahapea's HRPP Rule
35 motion, the supreme court's analysis focused on the gravity of
Kahapea's crimes and whether "the punishment fit the crimes, as
well as the needs of the individual defendant and the community."
Id. at 281, 141 P.3d at 454 (brackets, citations and internal
quotation marks omitted). The supreme court noted that "even a
disparity among defendants' sentences does not establish that any
particular defendant's sentence is excessive", and concluded that
"the circuit court reasonably placed greater significance" on the
damage caused by Kahapea's actions. Id. (brackets, citation and
internal quotation marks omitted). In so doing, the supreme
court appeared to give credence to the prosecution's argument,
which the court quoted in its opinion, that "Kahapea's reference
to the sentences of other defendants merely illustrates a
different sentencing court's discretion and does not demonstrate
that the court that sentenced him abused its discretion in
imposing consecutive terms of imprisonment." Id. The supreme
court concluded that "[w]hile stern, the circuit court's sentence
furthers the statutory penological goals . . . and does not
reflect arbitrary or capricious action or a rigid refusal to
consider the defendant's contentions", and therefore that the
denial of Kahapea's HRPP Rule 35 motion was not a plain and
manifest abuse of discretion. Id. at 282, 141 P.3d at 455(citation and internal quotation marks omitted).
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The supreme court's interpretation of HRS § 706-606
accords with the statute's legislative history. As part of a
"comprehensive review of the entire penal code" conducted in
response to growing public concern with crime in the early 1980s,
the Hawai#i Legislature endorsed a fundamental philosophical
departure from the then-existing "approach of sentencing which
emphasize[d] rehabilitation toward achieving the goal of just
punishment." Conf. Comm. Rep. No. 51-86, in 1986 Senate Journal,
at 747,748, 1986 House Journal, at 937, 938. Although the
legislative overhaul called for restraint in "judicial discretion
in the initial decision to imprison", it "allow[ed] for
discretion in the term of imprisonment." Stand. Comm. Rep. No.
487, in 1985 House Journal, at 1216. With specific reference to
HRS § 706-606, the supreme court subsequently characterized the
reforms as reflecting an "overriding aspiration 'to afford
deterrence and to provide just punishment.'" Gaylord, 78 Hawai#i
at 149-50, 890 P.2d at 1189-90 (citing Conf. Comm. Rep. No. 51-
86, in 1986 Senate Journal, at 748, 1986 House Journal, at 938).
Considered alongside the plain text of the statute, this
understanding supports the conclusion that courts applying HRS
§ 706-606 are fundamentally charged with ensuring that the
"punishment fit the crimes" under the "penological goals"
established by the Legislature. Kahapea, 111 Hawai#i at 281-282,
141 P.3d at 454-55.
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Here, Cattaneo's sentence was imposed in part to
reflect the grave consequences of his actions. At the original
sentencing hearing on December 4, 2015, the Circuit Court
articulated in great detail its reasons for ordering the sentence
it did and set forth its purpose of imposing "just punishment."
The court considered each of the HRS § 706-606 factors in turn
and noted, among other things, that Cattaneo's offense was "of
the most serious nature, the taking of one's life." Echoing the
"penological goals of retribution, incapacitation, and
deterrence" articulated in Kahapea, 111 Hawai#i at 282, 141 P.3d
at 455, the Circuit Court explained that Cattaneo's sentence was
aimed at "promoting respect for the law", "affording adequate
deterrence . . . not just to the defendant, but to those who
would think like this or like him", and "protecting the public
from further crimes of this defendant[.]" Regarding HRS § 706-
606(4), the court expressly considered "the need to avoid
unwarranted sentence disparities among defendants who have been
found guilty of similar conduct" and stated that, although it
"[did] not know of the sentences imposed in other courtrooms", it
knew "what this Court sentences in these types of offenses."
The Circuit Court thus concluded, inter alia:
[T]he focus is on how do we change you [(Cattaneo)]? What
must the Court do to change you or people who think like you
or people who act like you? How do I stop them and you from
doing this again?
. . . .
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So what I can do is separate you from society long
enough for you to gain this insight that you started on and
also prevent this from happening to others? [sic]
The time for lessons has passed. This isn't a
teaching moment, in my mind. This is a moment for
punishment.
At the June 27, 2019 hearing on the Motion to Reduce
Sentence, the Circuit Court "recall[ed] all of the factors that
were taken into account" in Cattaneo's original sentencing. The
court stated that it considered all of Cattaneo's moving papers,
that the input of the defense was a significant factor in its
deliberation, that it was "not a simple decision" to deny the
Motion to Reduce Sentence, and that the court pondered the
decision, and denied the motion after "much thought." The
Circuit Court also grappled with the needs of the community and
discussed the worsening number of fatalities occurring on the
roads. See Kahapea, 111 Hawai#i at 281, 141 P.3d at 454 (noting
the sentencing court's discretion to make the punishment fit the
needs of the community). In conclusion, the Circuit Court
maintained its central purpose of securing just punishment,
stating, inter alia:
There has been no change in circumstance in this case,
except for the passage of time and the improvement of the
defendant[.]
. . . .
I sent him to be punished. I sent him to think greatly
about the life he took and the impact it had on those who
remain.
. . . .
This sentence was made to reflect the very, very
serious consequence that occurred. . . . But it's also a
deterrent to every other person out there.
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Cattaneo argues that the Circuit Court neglected to
consider HRS § 706-606(4), the need to avoid unwarranted sentence
disparities among similarly-situated defendants, pointing to a
series of statements made by the court at the June 27, 2019
hearing on the Motion to Reduce Sentence. The Circuit Court
stated that "it's not the Court's practice to review cases that
are issued by other Courts, whether in this circuit or others."
The court went on to say that it "think[s] it would be dangerous
to start deciding cases on how someone else decided a case
without knowing every single detail about that case", and that
the court "[does not] look at the other cases one way or the
other to give somebody a harsher sentence or lighter sentence
because . . . it's not fair to a person to do that. [The court]
thinks every single case should stand on its own." Cattaneo
contends that these statements rebut the presumption that the
sentencing court considered HRS § 706-606(4). Reviewing the
record as a whole, we find these contentions to be unpersuasive.
The Circuit Court's statements were made in direct
reference to Cattaneo's "argument and moving papers," following
the court's express recognition of "the portion of the doctrine
that has to deal with other cases" -- which Cattaneo acknowledges
is a reference to HRS § 706-606(4) -- and in fact demonstrate
that the court "considered" HRS § 706-606(4). The Circuit Court
made further reference to the disparate sentencing argument and
stated:
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I happen to know that every case is nuanced, every case has
something that may not be obvious to someone.
I get it all the time, and I hear it sometimes in
letters where someone says, well, how come this guy stole a
car and he got a year and the other guy assaulted somebody
and he got 30 days and, you know, sometimes even from the
same Court.
The court explained its ultimate determination on the
Motion to Reduce Sentence, including:
I don't know about any other Court, but I personally
try my best to factor in every single element that I think
is important. And some cases can have 50 things that you
should consider, and some have five. I don't know what other
judges do in deciding their ultimate decision.
This Court takes very seriously its sentencing. And I
try to give it a lot of thought because I know how much it's
impacting that person, whether it's one day or I sentence
them to the rest of their life in prison. I think that's a
heavy, heavy decision to make, and not one to be taken
lightly.
So I do factor in the argument of the prosecutor, the
argument of the defense, the recommendation from probation.
Obviously, the input from the victims and the input from the
defendant. They're all significant factors.
I did exactly that in this case with Mr. Cattaneo.
The record on appeal demonstrates that the Circuit
Court considered the need to avoid unwarranted sentencing
disparities pursuant to HRS § 706-606(4) and rejected the
argument that Cattaneo's sentence presented an unwarranted
sentence disparity. The court, in confronting whether to
exercise its discretion to reduce Cattaneo's sentence, took
considerable pains to explain why Cattaneo's sentence was
"ultimately mandated" in light of the "statutory penological
goals" and purpose of "just punishment" despite Cattaneo's
argument that his consecutive sentences presented an unwarranted
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disparity. See Kahapea, 111 Hawai#i at 281-82, 141 P.3d at 454-
55.
In the written FOFs/COLs & Order, as well, the Circuit
Court expressly recognized its obligation to consider the factors
set forth in HRS § 706-606. The Circuit Court concluded that
Cattaneo's original sentence reflected the court's consideration
of the HRS § 706-606 factors, that the sentence also specifically
served the purposes of punishment and deterrence, and that
because there were no significant changes of circumstance, the
court concluded that there was no reason to change or reduce
Cattaneo's sentence.
Reviewing the July 19, 2019 Order Denying Motion to
Reduce Sentence and the April 24, 2020 FOFs/COLs & Order, as well
as the entire record of these proceedings, we reject Cattaneo's
argument that the Circuit Court did not sufficiently consider HRS
§ 706-606(4) in denying the Motion to Reduce Sentence.12
For these reasons, we conclude that the Circuit Court
did not fail to sufficiently consider facts and arguments
concerning the need to avoid unwarranted sentencing disparities
as required by HRS § 706-606(4).
12
Although the court did not expressly distinguish the two
"Comparable Cases" cited by Cattaneo in the Motion to Reduce Sentence, the
record shows that the court carefully considered the arguments at both the
original sentencing hearing and the hearing on the Motion to Reduce Sentence
regarding the need to avoid unwarranted sentencing disparities and deliberated
the "nuanced" circumstances of this case. See Gaylord, 78 Hawai #i at 144, 890
P.2d at 1184 ("each case in which abuse is claimed must be adjudged according
to its own peculiar circumstances"); Kahapea, 111 Hawai #i at 281, 141 P.3d at
454 ("[A] disparity among defendants' sentences does not establish that any
particular defendant's sentence is excessive") (citation and internal
quotation marks omitted).
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B. The Consecutive Sentences
Cattaneo argues that the Circuit Court failed to state
a sufficient basis for "re-imposing" consecutive sentences upon
"resentencing." In doing so, Cattaneo improperly conflates what
happened in this case – the court rejected Cattaneo's request to
reduce his sentence – with something that did not happen here – a
resentencing of Cattaneo. The Circuit Court was not required to
"resentence" Cattaneo upon the denial of the HRPP Rule 35 motion
and expressly declined to do so.
We nevertheless note that HRS § 706-668.5 vests the
trial court with discretion to prescribe consecutive sentences
where "multiple terms of imprisonment are imposed on a
defendant." See HRS § 706-668.5(1). HRS § 706-668.5(2) provides
that "[t]he court, in determining whether the terms imposed are
to be ordered to run concurrently or consecutively, shall
consider the factors set forth in section 706-606." Interpreting
HRS §§ 706-606 and 706-668.5(2), the supreme court has held that
"circuit courts must state on the record at the time of
sentencing the reasons for imposing a consecutive sentence."
Kong I, 131 Hawai#i at 102, 315 P.3d at 728 (citation and
internal quotation marks omitted; emphasis in original).
As discussed above, at the original sentencing hearing,
the Circuit Court went point-by-point through the HRS § 706-606
factors. At the hearing on Cattaneo's Motion to Reduce Sentence,
the court recalled "all of the factors that were taken into
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account" in its original sentence, considered Cattaneo's moving
papers and the arguments set forth therein, and found "no change
in circumstance in this case, except for the passage of time and
the improvement of the defendant[.]" Upon conclusion of the
arguments and hearing a statement from Cattaneo, the Circuit
Court reiterated the essence of its rationale for maintaining
Cattaneo's sentence as it did. The court's reasons are further
stated in the FOFs/COLs & Order.
We conclude that Cattaneo's second point of error is
without merit.
C. Ineffective Assistance of Counsel
Cattaneo argues that he received ineffective assistance
of counsel at the hearing on his Motion to Reduce Sentence,
contending that his then-counsel was ineffective because he
failed to: (1) "properly support the argument regarding the
Comparable Cases because he did not have the court records as
evidence;" (2) realize that the Circuit Court was "mistake[n] in
flatly refusing to consider [] HRS §706-606(4)" and "failing to
object" when such a mistake "should have been readily apparent;"
and (3) "argue that the Court did not provide a sufficient basis
for imposing consecutive sentences." These arguments are without
merit.
When reviewing a claim of ineffective assistance of
counsel, we look to whether defense counsel's assistance was
within the "range of competence expected of criminal lawyers."
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Hussein, 122 Hawai#i at 511, 229 P.3d at 329. To prevail on his
claim of ineffective assistance of counsel, Cattaneo has the
burden of establishing (1) "specific errors or omissions of
defense counsel reflecting counsel's lack of skill, judgment, or
diligence" and (2) "that these errors or omissions resulted in
either the withdrawal or substantial impairment of a potentially
meritorious defense." Id. at 510, 229 P.3d at 328.
In Hussein, the supreme court considered an ineffective
assistance claim arising out of defense counsel's allegedly
"meager pre-sentence preparation and argument." 122 Hawai#i at
510-11, 229 P.3d at 328-329. In particular, the defendant
claimed "that her counsel was ineffective for failing to cite
certain mitigating factors in a written sentencing memorandum" to
the sentencing court. Id. at 510, 229 P.3d at 328. The supreme
court concluded that the defendant was not denied effective
assistance "inasmuch as all of the factors alleged by [the
defendant] were presented to the [sentencing] court for
consideration." Id. at 511, 229 P.3d at 329. Notably, although
this court had noted that "counsel did not file a written
sentencing memorandum and [defendant] now submits that counsel
could have better argued the mitigating circumstances," the
supreme court looked at the fact that the judge stated at the
defendant's sentencing hearing that "[t]he court has reviewed the
[presentence report]", which this court had determined
"referenced the . . . issues raised by [the defendant] on this
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appeal." Id. (italics in original). The supreme court thus
agreed with this court's conclusion that the defendant was not
provided ineffective assistance of counsel, as the sentencing
court "was made aware of the mitigating factors cited by
[defendant], either through the [presentence report] or in open
court." Id.
Cattaneo similarly contends that his prior counsel,
Matthew Kohm, was ineffective because Kohm "failed to effectively
create a record of the facts in the [Comparable Cases] because
[Kohm] did not present the [Comparable Cases'] court records as
evidence." However, the Motion to Reduce Sentence, submitted to
the court by Kohm on behalf of Cattaneo, contains a multiple-
paragraphs-long section entitled "Other Cases", describing the
facts of the convictions and sentencing in these Comparable
Cases13 in support for the argument that "a concurrent sentence
would be more appropriate and in line with sentencing defendants
convicted of Negligent Homicide in the First Degree." As
Cattaneo himself states in his Opening Brief, "[t]he Motion to
Reduce Sentence provided detailed information regarding the facts
and circumstances of the Comparable Cases."
13
The two circuit court cases pointed to by Cattaneo are docketed in
JIMS as State v. Shine, 2PC141000708, and State v. Duran, 2PC151000134. In
his Opening Brief, Cattaneo requests this court take judicial notice of the
eCourt Kôkua records of those cases pursuant to Hawai #i Rules of Evidence
(HRE) Rule 201(b). Although "[j]udicial notice may be taken at any stage of
the proceeding", HRE 201(f), Cattaneo does not point to any specific
adjudicative fact or facts of which we are to notice. We therefore decline to
take judicial notice of those proceedings beyond what was presented to the
Circuit Court.
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In addition to presenting the Comparable Cases argument
in the written motion, Kohm raised the issue, albeit briefly, at
the hearing on the Motion to Reduce Sentence, stating "I know
this Court is very aware of the different sentences that go on in
this Court and other Courts." Shortly thereafter, the court
stated that it had "read all of [Cattaneo's] moving papers",
later thanking Kohm for his "excellent argument and moving
papers" and proceeded to discuss "the portion of the doctrine
that has to do with other cases in this jurisdiction[.]" The
court did not reject Cattaneo's Comparable Cases argument for
lack of detail or evidence. Indeed, the court stated it
considered "the argument of the defense" as a "significant
factor" in its decision-making, and the court's Order Denying the
Motion to Reduce Sentence reflects that it "considered the moving
papers, submissions of parties and the argument submitted at the
motion."
Thus, we reject Cattaneo's claim of ineffective
assistance of counsel for alleged failure to supplement the
argument by introducing the court records of Comparable Cases.
Cattaneo also contends that his counsel was ineffective
for failing to object to the Circuit Court's refusal to consider
HRS § 706-606(4). Cattaneo's counsel presented ample argument
based on HRS §706-606(4) and adequately preserved the issue for
appellate review. We, therefore, fail to see any lack of
competence emanating from a failure to object to the court's
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explanation of the basis for his ruling. Moreover, as discussed
above, the Circuit Court fulfilled its obligation to consider the
HRS § 706-606 factors, including HRS § 706-606(4). We conclude
that counsel's lack of objection did not constitute the
"withdrawal or substantial impairment of a potentially
meritorious defense." Hussein, 122 Hawai#i at 510, 229 P.3d at
328.
Finally and relatedly, Cattaneo contends that his
counsel was ineffective for failing to object to the Circuit
Court's "lack of rationale for its disproportionately long,
consecutive sentences." Again, as discussed herein, the Circuit
Court's stated purposes of retribution, incapacitation, and
deterrence -- based on the court's particular consideration of
the "history and characteristics of the defendant," and of "the
need for this sentence to reflect the seriousness of the
offense," as articulated at length in the original sentencing and
discussed at the hearing on the Motion to Reduce Sentence, as
well as in the FOFs/COLs & Order -- satisfied the requirement
that the court state on the record its reasons for imposing
consecutive sentencing under HRS §§ 706-606 and 706-668.5. See
Kong I, 131 Hawai#i at 103, 315 P.3d at 729. It therefore
follows that Cattaneo's counsel's failure to object based on the
court's "lack of rationale" cannot sustain a claim for
ineffective assistance of counsel.
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We therefore reject Cattaneo's contention that he was
denied ineffective assistance of counsel on his Motion to Reduce
Sentence.
V. CONCLUSION
For these reasons, the Circuit Court's July 16, 2019
Order Denying Motion to Reduce Sentence is affirmed.
DATED: Honolulu, Hawai#i, February 24, 2021.
On the briefs:
/s/ Lisa M. Ginoza
Pamela I. Lundquist, Chief Judge
for Defendant-Appellant.
/s/ Katherine G. Leonard
Renee Ishikawa Delizo, Associate Judge
Deputy Prosecuting Attorney,
County of Maui, /s/ Karen T. Nakasone
for Plaintiff-Appellee. Associate Judge
32