State v. Hussein. Â , 122 Haw. 495 ( 2010 )

LAW L|BRARY
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IN THE SUPREME COURT OF THE STATE OF HAWAl‘I
~--000---
STATE OF HAWAYI,
Respondent/Plaintiff-Appellee
VS.
LILLIAN M. HUSSEIN,
Petitioner/Defendant-Appellant
NO. 286l7
99 =@ m 12 sav am
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CR. NOS. 06-1-O696, 06-1-2157, 06-1-2l58, 06-1-2l59,
O6~l-2l60, 06-l-2l6l, 06-l-2l62, 06-1-2163y & 06-1-2l64)
APRIL 21, 2010
ACOBA AND DUFFY, JJ., AND CIRCUIT JUDGE POLLACK,
ASSIGNED BY REASON OF VACANCY; AND MOON, C.J.,
» CONCURRING SEPARATELY AND DISSENTING,
WITH WHOM NAKAYAMA, J., JOINS
OPINION OF THE COURT BY ACOBA, J.
We hold that (l) imposing a prison sentence
consecutively to “any sentence” of a prior conviction pursuant to
Hawafi Revised Statutes (HRS) § 706-606.5(5) (Supp. 2O06),1
l
HRS § 706-606.5(l) governs sentencing of repeat offenders, and
states as follows:
(1) Notwithstanding section 706-669 and any other law
to the contrary, anV person convicted of murder in the
second degree, anv class A felonv, any class B felonV, or
anv of the following class C felonies: . . . section 708-
831 relating to theft in the second degree;
. section
(c0ndnued")
CH3'lLH
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\
including the lesser of such sentences, is a novel, but accurate,
view of the statute; (2) henceforth, the circuit court must state
its reasons for imposing a consecutive as opposed to a concurrent
sentence under HRS § 706~668.5 (Supp. 2OO8)2 or HRS § 706~606.5;
’Q~condnued)
708-839.8 relating to identity theft in the third degree;
. section 708-852 relating to forgery in the second
degree; . . . , any class A felony, any class B felony, or
any of the class C felony offenses enumerated above and ppg
has a prior conviction or prior convictions for the
following felonies, including an attempt to commit the same:
. a class B felony, any of the class C felony offenses
enumerated above, or any felony conviction of another
jurisdiction, shall be sentenced to a mandatory minimum
period of imprisonment without possibility of parole during
such period as follows:
(c) Three or more prior felony convictions:
(iii) Where the instant conviction is for
a class B felony--ten years;
(iv) Where the instant conviction is for
a class C felony offense enumerated
above-~five years.
(Emphases added.) It may be noted that under HRS § 706-606.5(l)(c)(iii) &
(iv), the so-called mandatory minimum sentences as to class B felonies and
class C felonies are in effect equal to the maximum indeterminate term of
imprisonment for such felonies. §p§ HRS § 706-660 (l993) (setting forth ten
years as the maximum term for a class B felony and five years for a class C
felony). As to whether the mandatory minimum shall be applied concurrently or
consecutively to sentences already being served for the previous convictions,
HRS § 706-606.5(5) provides that
{t]he sentencing court may impose the above sentences
consecutive to any sentence imposed on the defendant for a
prior conviction, but such sentence shall be imposed
concurrent to the sentence imposed for the instant
conviction, The court may impose a lesser mandatory minimum
period of imprisonment without possibility of parole than
that mandated by this section where the court finds that
strong mitigating circumstances warrant such action. Strong
mitigating circumstances shall include, but shall not be
limited to the provisions of section 706-62l. The court
shall provide a written opinion stating its reasons for
imposing the lesser sentence.
(Emphasis added.)
2 In 2006, at the time of Petitioner's conviction, HRS § 706-668.5
(l993), which provides the option of entering multiple sentences concurrently
or consecutively, provided:
(c0ndnuedn)
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(3) the requirement that reasons be given in imposing consecutive
2Q"c0ndnued) ' ,
(l) If multiple terms of imprisonment are imposed on a
defendant at the same time, or if a term of imprisonment is
imposed on a defendant who is already subject to an
unexpired term of imprisonment, the terms may run
concurrently or consecutively. Multiple terms of
imprisonment imposed at the same time run concurrently
unless the court orders or the statute mandates that the
terms run consecutively. Multiple terms of imprisonment
imposed at different times run consecutively unless the
court orders that the terms run concurrentlV.
,(2) 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.
(Emphases added.) HRS § 706-668.5(l) was amended in 2008 and now states that
[i]f multiple terms of imprisonment are imposed on a
defendant, whether at the same time or at different times,
-or if a term of imprisonment is imposed on a defendant who
is already subject=to an unexpired term of imprisonment, the
terms may run concurrently or consecutively. Multiple terms
of imprisonment run concurrently unless the court orders or
the statute mandates that the terms run consecutively.
(Emphasis added.) The revised version of the statute therefore embodies a
presumption that multiple terms, whether imposed at the same time or at
different times, will run concurrently unless the judge orders otherwise.
Hence, pursuant to the discussion herein, there is an even stronger rationale
under the current version of the statute for requiring the court to give
reasons when imposing a consecutive sentence.
HRS 706-606 (l993) provides as follows:
The court, in determining the particular sentence to
be imposed, shall consider:
(l) 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. , ‘
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sentences is closely connected to a probable Hawai‘i Rules of
Penal Procedure (HRPP) Rule 35 motion filed by
Petitioner/Defendant-Appellant Lillian M. Hussein (Petitioner)
and, therefore, is not dicta; (4) the Intermediate Court of
Appeals (ICA) did not gravely err in rejecting Petitioner's
ineffective assistance of counsel claim; and (5) upon entry of
judgment on this certiorari application, Petitioner may still
seek reduction of her sentence pursuant to HRPP Rule 35 (2O08),3
including, ipp§; alia, on the ground set forth in item (l). In
doing so, we affirm the lCA’s judgment in State v. Hussein, No.
286l7, 2008 WL 53078l3 (Haw. App. Dec. 22, 2008) (SDO), but, as
noted §pp;a, mandate that henceforth, the sentencing court must
state its reasons for imposing a consecutive sentence on the
record, and additionally clarify that a HRPP Rule 35 motion may
be filed subsequent to appellate proceedings, the ICA indicating
to the contrary.
I.
A.
Petitioner pleaded guilty to thirty-nine counts,
including eight counts of identity theft in the second degree
(class B felonies), four counts of identity theft in the third
degree (class C felonies), fifteen counts of forgery in the
second degree (class C felonies), one count of fraudulent use of
3 ee infra note 20 for the text of HRPP Rule 35.
4
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a credit card (class C felony), and seven counts of theft in the
second degree (class C felonies).4 On January 3l, 2007,
Respondent/Plaintiff-Appellee State of Hawafi (Respondent) filed
motions for (l) sentencing of repeat offender, pursuant to HRS
§ 708-606.5, (2) consecutive term sentencing, pursuant to HRS
§ 706-668.5 (l993) and HRS § 706-606, and (3) extended term
sentencing, pursuant to HRS § 706-661 %Supp. 2006) and HRS § 706-
662(l) and (4)(a) (Supp. 2O06).5 At Petitioner's sentencing
4 The remaining counts were misdemeanors and petty misdemeanors.
Id.
5 The relevant version of HRS § 706-661 entitled “Extended terms of
impLisonment,” provided as follows:
The court may sentence a person who satisfies the
criteria for any of the categories set forth in section
706-662 to an extended term of imprisonment, which shall
have a maximum length as follows:
235 - for a class B felony--indeterminate twenty-year
term of imprisonment; and
(4) For a class C felony--indeterminate ten-year
term of imprisonment.
In exercising its discretion on whether to impose the
extended term of imprisonment or to use other available
sentencing options, the court shall consider whether the
extended term is necessary for the protection of the public
and whether the extended term is necessary in light of the
other factors set forth in section 706-606.
When ordering an extended term sentence, the court
shall impose the maximum length of imprisonment, The
minimum length of imprisonment for an extended term sentence
under paragraphs (2), (3), and (4) shall be determined by
the Hawaii paroling authority in accordance with section
706-669.
(Emphasis added.) The relevant version of HRS § 706-662 entitled “Criteria
for extended terms of imprisonment,” provided in relevant part:
A defendant who has been convicted of a felony
qualifies for an extended term of imprisonment under section
706-661 if the convicted defendant satisfies one or ore of
the following criteria:
(l) The defendant is a persistent offender in that
the defendant has previously been convicted of
two felonies committed at different times when
the defendant was eighteen years of age or
(condnued")
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hearing, the first circuit court (the court)6 granted
Respondent’s motions “for a consecutive term and for sentencing
of [Petitioner] as a repeat offender” under HRS § 706-606.5(l).
Hussein, 2008 WL 53078l3, at *l., The court denied Respondent’s
motion for extended terms. lQp Petitioner was sentenced to ten
years for each of the eight counts of identity theft in the
second degree, with a repeat-offender-mandatory-minimum of ten
years. lQp Petitioner also received five years for each of the
twenty-seven class C felony counts, ldp
The court ordered the sentences in the instant matter
to run concurrently with each other, and to run consecutively to
the time that Petitioner was already serving for other matters,
as permitted by HRS § 706-606.5(5). ldp At the time, Petitioner
was concurrently serving a ten-year term and two five-year terms
of imprisonment, The sentencing judge ordered the ten-year
mandatory minimum for the instant matter to run consecutively to
the prior ten-year term, as opposed to the prior five-year term.
Thus, by virtue of adding the mandatory minimum repeat offender
ten-year term for the instant matter to the previous ten-year
S(...continued)
older;
(4l . lhe defendant is a multiple offender in that:
(a) The defendant is being sentenced for two
or more felonies or is already under
sentence of imprisonment for any felony[.]
(8mphases added.)
6 The Honorable Dexter D. Del Rosario presided.
6
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term already being served, as recognized by the court, “in all of
her cases, [Petitioner] will be serving a [twenty]-year term of
incarceration.”
B.
Petitioner appealed her sentence to the ICA.
Petitioner raised three points of error on appeal:
(l) the [court] erred in omitting to consider less than
fully consecutive mandatory minimum terms, resulting in an
excessive overall sentence; and
(2) [Petitioner] was denied effective assistance of
sentencing counsel because counsel failed to adequately
argue for a strong mitigating circumstances reduction in
[Petitioner’s] mandatory minimum term and failed to file a
motion under [HRPP] Rule 35 to add mitigating factors from
prison rehabilitation programming.[7]
Hussein, 2008 WL 53078l3, at *l.
The ICA affirmed Petitioner's sentence. lQp at *4.
with respect to the first point of error, the ICA held that even
though the sentencing court did not explicitly state its
awareness of a less severe sentencing option, iQy at *2-3, in
regard to running the instant ten year term consecutive to the
prior five year term, it “clearly indicated its awareness that
the impact of the consecutive sentencing would be for
[Petitioner] to serve a twenty[-]year term of imprisonment[,]”
idp at *3, and did not abuse its discretion in sentencing
Petitioner[,] id. With respect to the second point of error, the
7 Petitioner raised as a third point of error that “Cr. No.
06-l-0696 must be dismissed for failure to secure a written waiver of
indictment or complaint.” The ICA deemed that point of error waived inasmuch
as Petitioner conceded in her Reply Memorandum that it was not well-founded.
Hussein, 2008 WL 58078l3, at *l n.2.
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ICA determined that Petitioner's counsel “was within the range of
competence demanded of attorneys in criminal cases.” ldp at *4.
C.
In her application to this court, Petitioner presents
two arguments. First, Petitioner claims that the ICA adopted a
“new” interpretation of HRS § 706-606.5(5) on appeal, and gravely
erred in presuming that the sentencing court considered it as'a
sentencing option. Second, Petitioner claims that the ICA's
failure to recognize the ineffective assistance of counsel claim
\
constitutes grave error.
II.
As to Petitioner's first argument, HRS § 706-606.5(l)
requires a sentencing court to impose a mandatory minimum term of
imprisonment of ten years for a class B felony and five years for
an enumerated class C felony, when a defendant has been convicted
of three or more prior felonies within a specified time period.8
HRS § 706-606.5(5) also provides that “[t]he sentencing court may
impose the [mandatory minimum] sentences consecutive to any
sentence imposed on the defendant for a prior conviction, but
such sentence shall be imposed concurrent to the sentence imposed
for the instant conviction.” (Emphases added.)
In the ICA, Petitioner asserted that “[t]he plain
meaning of [‘any sentence'] include[s] all prison terms for all
See supra note l.
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counts, authorizing the [c]ourt to begin the [ten]-year mandatory
minimum term consecutive to the Class G felony [five]-year terms
or misdemeanor terms [that were imposed as part of] the prior
conviction . . . .” The ICA agreed with Petitioner that HRS
§ 706-606.5(5) gives a sentencing court “discretion to run a
[repeat offender] mandatory minimum sentence consecutive to ggy
sentence imposed on a defendant for a prior conviction, not
necessarily the longest sentence being served for prior
convictions.” Hussein, 2008 WL 53078l3, at *2 (emphasis in
original).
The plain languageiof HRS § 706-606.5(5) indicates that
a sentencing court may order a repeat offender mandatory minimum
term to run consecutively to “any” prior sentence.9 Petitioner's
approach to interpreting the term “any sentence” in HRS § 706-
606.5(5) was correct, albeit novel, in the sense that it has not
been raised or recognized in any of our prior decisions.
Consequently, under a plain reading of HRS § 706-606.5(5), we
hold that a sentencing judge may consider imposing a defendant's
mandatory minimum sentence consecutively to the shortest of any
sentence previously imposed.
9 We have said that
where the language of the statute is plain and unambiguous,
our only duty is to give effect to its plain and obvious
meaning. When construing a statute, our foremost obligation
is to ascertain and give effect to the intention of the
legislature, which is to be obtained primarily from the
language contained in the statute itself.
State v. To omura, 80 Hawafi 8, l8, 904 P.2d 893, 903 (l995) (internal
quotation marks and citations omitted).
9
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III.
A sentencing court must consider all sentencing
options, since such consideration is mandated by HRS § 706-
606(3). ee HRS § 706-606 (“The court, in determining the
particular sentence to be imposed, shall consider . . . ft1he
kinds of sentences available[.]”) (Emphasis added.)). In
addition, it has been noted that “in order to forestall any
claims that the court failed to do so, the trial court would be
well advised to state clearly on the record that the[]
a1ternative[ sentencing options] were considered.” State v.
Mersberg, 61 Haw. 1, 2, 594 P.2d 1078, 1078 (1979)w; see also
State v. 0aylord, 78 Hawafi 127, 144, 890 P.2d 1167, 1184
(1995); State v. Lau, 73 Haw. 259, 264y 831 P.2d 523, 526 (l992)
(“In order to negate the unnecessary and time-consuming search of
the record on appeal, we emphasize and reiterate our caveat in
Mersberg that where sentencing alternatives are available, the
sentencing court should state clearly on the record that such
alternatives were considered.”).
m In Mersberg, this court said that
[i]n the instant case we are satisfied that the trial court
did consider all possible alternative sentences, including
the provisions of HRS § 706-667. However, in order to
forestall any claims that the court failed to do so, the
trial court would be well advised to state clearly on the
record that these alternatives were considered. Such a
record would be especially helpful and relevant when a young
adult defendant is sentenced upon his conviction of a crime.
Mersberg, 61 Haw. at 2, 594 P.2d at 1078.
10
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Thus, when alternative sentencing options are
available, an unclear record may result in a remand. §§§ State
v. Gray, 77 Hawai‘i 476, 479, 888 P.2d 376, 380 (App. l995)
(“Because it appears that the district court may have been
unaware of the applicability of the above-quoted parts of HRS §§
706-641 and -642, we vacate the part of the sentence ordering
Gray to pay a $1,000 fine and remand that part for
resentencing.”), overruled on other grounds by State v. Bolosan,
78 Hawai‘i 86, 92 n.10, 890 P.2d 673, 679 n.10 (1995). In the
instant case, the ICA noted that, “[a]lthough the [court] did not
specifically state that it was aware of a less severe option, the
[c]ourt clearly indicated its awareness that the impact of the
consecutive sentencing would be for [Petitioner] to serve a
twenty[-]year term of imprisonment.” Hussein, 2008 WL 5307813,
at *3.
As discussed ipf;a, following disposition of this
appeal, Petitioner may file a motion for reduction of sentence
under HRPP Rule 35(b), and therein explicitly request that the
instant sentence run consecutively to the five-year or
misdemeanor terms, as opposed to the ten-year sentence, thus
reducing the sentence. In this case, we need not reach the
question of any potential failure to address all possible
sentencing options.“ The ICA’s “conclu[sion] that the [court]
“ We observe that sentencing options should be raised and considered
at the time of the sentencing hearing.
ll
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did not abuse its discretion in sentencing [Petitioner,]” iQy, is
affirmed, but on the particular facts of this case.
IV. 3
A§
As noted before, Respondent moved for and the court
imposed consecutive sentences pursuant to HRS §§ 706-668.5 and
-606. HRS § 706-668.5” is the general statute governing the
sentencing of a defendant convicted of multiple offenses and
provides, in relevant part, that “[m]ultiple terms of
imprisonment imposed at different times run consecutively unless
the court orders that the terms run concurrently.” Respondent
also requested that Petitioner be sentenced to mandatory minimum
terms pursuant to HRS § 706-606.5, the repeat offender statute,
In State v. KamanaYn 118 Hawafi 210, 188 P.3d 724 4
(2008), this court examined the distinction between HRS § 706-668
(the prior version of HRS § 668.5), governing the imposition of
” In 1982, HRS § 706-668, the predecessor to HRS § 706-668.5, was
amended to provide judges with the specific discretion to impose either
concurrent or consecutive sentences.
[Prior to 1982], the law require[d] a judge to sentence a
person to terms of imprisonment to run concurrently, giving
no discretion to judges. This requirement negate[d] the
deterrent and punishment aspects of sentencing and in so
doing fail[ed] to deter similar future behavior on the part
of the particular individual involved. The [1982 amendment]
provides that judges have discretion to sentence a person to
consecutive terms of imprisonment. Your committee feels
that judges will exercise their discretion in invoking
consecutive terms of imprisonment when appropriate as in
instances where the defendant committed multiple or
subsequent offenses.
Ga lord, 78 HawaiH at 146, 890 P.2d at 1186 (quoting S. Conf. Comm. Rep. No.
5-82, in 1982 Senate Journal, at 874; H. Conf. Comm. Rep. No. 6-82, in 1982
House Journal, at 817 (emphases in original)).
12
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concurrent and consecutive terms of imprisonment, and HRS § 706-
606.5. HRS § 706-668 stated as follows:
Concurrent and consecutive terms of imprisonment.
(l) Except as provided in subsection (2), when multiple
sentences of imprisonment are imposed on a person at the
same time, or when a person who is subject to any
undischarged term of imprisonment is sentenced to an
additional term of imprisonment, the sentence or sentences
imposed by the court shall be served concurrently,
Kamana‘@, 118 Hawai‘i at 213 n.9, 138 P.3d at 727 n.9 141 P.3d 440, 451 (2006)
16
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(quoting State v. 8auch, 94 Hawafi 3l5, 322, 13 P.3d 324, 331
(2000) (citations omitted)) (brackets in original). As in this
case, “[a]bsent clear evidence to the contrary, it is presumed
that a sentencing court will have considered all factors before
imposing concurrent or consecutive terms of imprisonment under
HRS § 706-606 [].” Tauiliili, 96 HawaFi at 199, 29 P.3d at 918;
see also State v. Rivera, 106 Hawafi 146, 163, 102 P.3d 1044,
1061 (2004); State v. Ve1lina, 106 HawaFi 441, 449, 106 P.3d
364, 372 (2005). Under that standard, the court in this case
acted correctly with respect to HRS § 706-606, inasmuch as the
court heard argument from both parties as to Respondent’s motion
for consecutive sentences, took notice of the records and files,
and reviewed the pre-sentence report. Under the “clear evidence”
standard, we cannot conclude the ICA gravely erred in deciding
that the court did not err in imposing a consecutive sentence in
this respect.
B.
We observe, however, that this court has indicated that
“[a]lthough there is no requirement for the sentencing court pp
state its reasons for imposing sentence, we have urged and
strongly recommended that the sentencing court do so[.]” Lap, 73
Haw. at 263, 831 P.2d at 525 (emphasis added); see also Ga lord,
78 Hawafi at 144, 890 P.2d at 1184 (“In order to facilitate
appellate review for abuse of a trial court’s sentencing
discretion, and whenever a defendant is qualified for sentencing
17
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`alternatives and the sentence imposed is unsatisfactory to the
defendant, we strongly encourage and recommend that the
sentencing court state its reasons for imposing the particular
sentence.”) (Quotation marksy brackets, ellipses, and citation
omitted.); State v. Sinagoga, 81 HawaiH.42l, 429, 918 P.2d 228,
236 (App. 1996) (stating that the “preferable practice is for the
sentencing court to . . . acknowledge on the record that it has
considered the factors enumerated in HRS § 706-606 when imposing
concurrent or consecutive sentences under HRS § 706-668.5”),
overruled on other grounds by State v. Veikoso, 102 HawaFi 219,
226, 74 P.3d 575, 582 (2003); cf. State v. Valera, 74 Haw. 424,
435-36, 848 P.2d 376, 381 (1993) (ho1ding that “the sentence
imposed should be tailored to the particular circumstances
of a defendant's case[,]” that “a sentencing judge is required to
consider specific statutory factors in determining the sentence
to be imposed” under HRS § 706-606 and “that a sentencing judge’s
discretion is [not] without limits” as “[a] sentencing judge is 3
still required to impose a fair, proper, and just sentence, based
upon the crime of which the defendant was convicted”) (internal
quotation marks and citations omitted).
C.
The rationales that underlie a defendant's right of
presentence allocution, as set forth in State v. Chow, 77 Hawaid
241j 250, 883 P.2d 663, 672 (App. 1994), seem especially -
pertinent when.the court renders a consecutive sentence judgment.
18
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In Qppy, the ICA held that denial of a defendant's right to
presentence allocution was not harmless, regardless of any
potential impact on the defendant's sentence, because, ip;§;
glig, allocution is an essential part “of the fair treatment
which should be accorded a defendant in the sentencing process."
lgy As part of the “fair treatment,” a sentencing court’s
statement on the record as to its reasons for imposing a
consecutive sentence would be meaningful to the defendant
inasmuch as it provides a rationale as to why increased
punishment is chosen. No less significant, it was also said in
Chow that presentence allocution may have the effect of “purging,
to some extent, feelings of any felt need for retribution in a
victim, a victim’s family, or the community as a who1e.” lpg
The express statement by the court of its reasons for increased
punishment will often provide a similar benefit for the victim
and the community at 1arge.
D.
The American Bar Association (ABA) has recognized the
virtues of generally requiring the sentencing court to state on
the record its reasons for the sentence imposed:
. j 4
Standard 18-5.19 Imposition of sentence
(a) The rules of procedure should provide that sentence
be imposed in open court in the presence of the offender.
(b) The rules should provide that a sentencing court,
when imposing sentence, should state or summarize the
court’s findings of fact, should state with care the precise
terms of the sentence imposed, and should state the reasons
for selection of the type of sanction and the level of
severity %f the sanction in the sentence.
(i) The statement of reasons may be relatively
concise when the level of severity and type of sanction are
19
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consistent with the presumptive sentence, but the sentencing
court should always provide an explanation of the court’s
reasons sufficient to inform the parties, appellate courts,
and the public of the basis for the sentence.
(c) The rules should provide that the sentencing court
should integrate the sanctions of a current sentence with
the remaining operative sanctions under any prior sentence
of the offender.
ABA Standards for Criminal Justice: Sentencing at 211-12,
Standard 18-5.19, Imposition of Sentence (3d ed. 1994)
[hereinafter ABA Standards for Sentencing] (emphases added). 1n
regard to the desirability of stating reasons on the record, the
Commentary to Standard 18-5.19 provides that
[h]istorically, sentencing courts were not required to and
commonly did not state the reasons for their sentencing
determinations. Change in that practice has been one of the
most basic and necessary reforms of sentencing. Two decades
ago, Judge Marvin Frankel expressed the rationale for change
in fundamental terms:
The question “Why?” states a primitive and
insistent human need. The small child, punished
or deprived, demands an explanation. The
existence of the rationale may not make the hurt
pleasant, or even just. But the absence, or
refusal, of reasons is a hallmark of injustice.
The despot is not bound by rules. He need
not account for what he does.
Criminal sentences, as our judges commonly
pronounce them, are in these vital aspects
tyrannical.
These Standards agree with Judge Frankel’s assessment that
sentencing courts, when imposing a sentence, should state
their reasons for selection of the type of sanction and the
level of severity of sanction in the sentences imposed.
. Explanations given by sentencing courts are
vital to achievement of appropriate individualization of
sentences with a sentencing system that is reasonably
determinate and that seeks to avoid unwarranted disparities
in sentences imposed. `
The sentencing court’s statement of reasons for
the sentence imposed is, of course, essential to meaningful
appellate review of sentences. A statement of reasons for
sentence may be especially helpful when a sentence is
challenged on appeal as possibly based on an improper
factor.
ld. at 212-13, Commentary to Standard 18-5.19 (footnotes and
20
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citations omitted) (emphases added).“ The Commentary
specifically references consecutive sentencing in a footnote,
stating that “[t]he imposition of consecutive sentences of total
confinement, where such sentences are permitted, should be
accompanied by a statement of reasons for the selection of
consecutive terms.” lgy at 213 n.2 (emphasis added) (citation
omitted). Thus, the ABA Standards and accompanying Commentary
supporting a requirement that the sentencing court provide
reasons for its sentence, appear even more significant when a
court chooses to order a consecutive sentence.
E.
Other jurisdictions, based ip;gr alig on the rationales
set forth by the A8A, have adopted a requirement that the
sentencing court state reasons on the record for imposing
sentences consecutively. 1n State v. Hall, 648 N.W.2d 41, 44
(Wis. App. 2002), the Wisconsin appellate court determined that
" While we do not require specific findings of fact in this context,
the ABA Standards recognize that findings of fact promote reasoned decisions
and meaningful appellate review: '
The requirement of findings of fact serves multiple
purposes. First, the discipline of thought necessary for a
court’s reasoned determination of a sentence is fostered by
the process of articulation of the factual bases for the
judgment. Second, findings of fact are essential to
meaningful appellate review of sentences. Third, if the
sentencing phase of a case is resumed later, whether as a
result of remand following appeal or otherwise, further
proceedings are facilitated by having a record of the
factual findings on which the original sentence had been
imposed. Fourth, sentencing court’s findings may be of
considerable value to the agency performing the intermediate
function when it carries out its duties to monitor and
evaluate patterns of sentencing.
ABA Standards for Sentencing at 209, Commentary to Standard 18-5.18.
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“[b]ecause the trial court gave inadequate reasons for the
[consecutive] sentence imposed, [the defendant’s] sentence is the
product of an erroneous exercise of discretion[,]” because “‘[a]
good sentence is one which can be reasonably explained.’”
(Quoting McCleary v. State, 182 N.W.2d 512, 522 (Wis. 197l)).
With regard to consecutive sentencingf that court stated that
[i]n situations where, as here, the defendant is convicted
of more than one offense, the sentencing court may impose_
consecutive rather than concurrent sentences. In sentencing
a defendant to consecutive sentences, the trial court must
provide sufficient justification for such sentences and
apply the same factors concerning the length of a sentence
to its determination of whether sentences should be served
concurrently or consecutively.
Id. at 45 (emphasis added) (citations omitted).” That court
quoted the ABA standards as stating that “‘[t]he imposition of
w The Ha1l court recognized that the sentencing court has broad
discretion, but also that the court must support that discretion with stated
reasons:
Generally, there is a strong public policy against
interfering with the sentencing discretion of the trial
court. Thus, sentencing is left to the discretion of the
trial court, and our review is limited to determining
whether the trial court erroneously exercised that
discretion. Nevertheless, the supreme court has made it
clear that an erroneous exercise of discretion mi ht be
found under the following circumstances: §1) [f|ailure to
state on the record the relevant and material factors which
influenced the court’s decision.
Hall, 648 N.W.2d at 45 (emphasis added) (internal quotation marks and citation
omitted). Thus, that court concluded that discretion “must be exercised on a
rational and explainable basis.” lpg The Hall court quoted the Wisconsin
Supreme Court as having explained discretion as follows:
|T here must be evidence that discretion was in fact
exercised. Discretion is not synonymous with
decision-making. Rather, the term contemplates a process of
reasoning. This process must depend on facts that are of
record or that are reasonably derived by inference from the
record and a conclusion based on a logical rationale founded
upon proper legal standards. [T1here should be evidence in
the record that discretion was in fact exercised and the
basis of that exercise of discretion should be set forth.
Id. (quoting McClear , 182 N.W.2d at 5l2) (emphases added).
22
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consecutive sentences of total confinement, where such sentences
are permitted, should be accompanied by a statement of reasons
for the selection of consecutive terms.’” ;gy at 47 (quoting A§A
Standards for Sentencing at 213 n.2, Commentary to Standard
18-5.19, Imposition of Sentence).
Several other states have held that a statement of
reasons is essential to imposition of consecutive versus
concurrent prison terms. Some states have implemented the
requirement by statute, See, e.g., People v. Champion, 891 P.2d
93, 124 (Cal. l995) (holding that “the trial court erred in not
giving reasons for imposing consecutive sentences[,]” because
“[t]he decision to impose consecutive sentences is . . . a
‘sentence choice’ for which, under the determinate sentencing
law, the trial court must give reasons”), overruled on another
point in People v. Combs, 101 P.3d 1007, 1033 (2004); State v.
Boudreaux, 945 So. 2d 898, 902 (La. App. 2 Cir. 2006) (“When two
or more convictions arise from the same act or transaction, or
constitute parts of a common scheme or plan, the terms of
imprisonment shall be served concurrently unless the court
expressly directs that some or all be served consecutively.”
(Citing La. C. Cr. P. art. 883.)); State v. Murphy, No.
M2007-02416-CCA-R3-CD, 2009 WL 1643442, at *11 (Tenn. Crim. App.
June 12, 2009) (unpublished opinion) (holding that “the trial
court erred by imposing consecutive sentencing without any
findings of whether the defendant met the statutory criteria set
23
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out in Tennessee Code Annotated section 40-35-115, or that there
were any other statutorily mandated reasons to justify
consecutive sentencing”). Others have done so by judicial
determination See, e.g., Wi1liams v. State, 891 N.E.2d 621, 630
(1nd. Ct. App. 2008) (holding that “[a] trial court is required
. to state its reasons for imposing consecutive sentences or
enhanced terms”); State v. Moore, No. 08-0147, 2008 WL 5412315,
at *2 (Iowa Ct. App. Dec. 31, 2008) (where sentencing court
imposed sentences consecutively, stating that “[t]he district
court must demonstrate its exercise of discretion by stating upon
the record the reasons for the particular sentence imposed”)
(citation @mitt@d>,- state v. saiiaqher, 668 A.za 55, 66 ;549 U.S. 270(2007), that motion was subject to the requirements of Apprendi
v. New Jersey, 530 U.S. 466 (2000). §§p Apprendi, 530 U.S. at
494 n.19, 489 (holding that a defendant's sentence based on the
sentencing court’s own factual finding was unconstitutional
because “when the term ‘sentence enhancement’ is used to describe
24
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an increase beyond the maximum authorized statutory sentence, it
is the functional equivalent of an element of a greater offense
than the one covered by the jury’s guilty verdict,” and “[o]ther
than the fact of a prior conviction, any fact that increases the
penalty for a crime beyond the prescribed statutory maximum must
be submitted to a jury, and proved beyond a reasonable doubt”);
see also Blakely v. Washington, 542 U.S. 296, 303 (2004) (holding
that a sentence of thirty-seven months beyond the statutory
maximum imposed by a judge based on the judge’s factual finding
of “deliberate crueltyY violated the rule set forth in Apprendi
and stating that “the ‘statutory maximum’ for Apprendi purposes
is the maximum sentence a judge may impose solely on the basis of
the facts reflected in the jury verdict or admitted by the
defendant”).
A.
In State v. Maugaotega, 107 Hawafi 399, 402, 114 P.3d
905, 908 (2005), judgment vacated by Maugaotega v. Hawaii, 549
U.S. 1191 (2007) (Maugaotega I), this court held that “Hawaii’s
extended term sentencing scheme[,]” which required judges to make
certain findings in order to impose an extended sentence, did
“not run afoul of Apprendi[.]” The dissent in Maugaotega 1
disagreed, concluding that “[b]ased on the dissent in Rivera,
the extended terms of imprisonment [should be vacated] and
remand[ed] for resentencing in conformance with Apprendi.” 107
Haw`ai‘i at 411, 114 P.3d at 917 (Ac@ba, J., diaaanting, joined by
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Duffy, J.). 1n Rivera, the dissent had argued that Hawaii’s
extended term sentencing scheme was subject to the requirements
of Apprendi and Blakel , because “[w]hen a judge inflicts
punishment that the jury’s verdict alone does not allow, the jury
has not found all the facts which the law makes essential to the
punishment . . . and the judge exceeds his for her] proper
authority, and the sentence must be vacated.” 106 Hawafi at
171, 102 P.3d at 1069 (internal quotation marks and citation
omitted).
In Cunningham, the United States Supreme Court in
effect overruled this court’s decision in Maugaotega I, and
confirmed the determination of the dissenting opinion in Rivera
and Mau aote a 1, that Hawaii’s extended sentencing scheme is
subject to the requirements of Apprendi. See Cunningham, 549
U.S. at 274; Maugaotega, 549 U.S. at 1191. Thus, Maugaotega 1
was vacated by the Supreme Court and remanded to this court for
further consideration in light of Cunningham. See Maugaotega,
549 U.S. at l191.
On remand, this court held that Hawaii’s extended
sentencing term statute, HRS § 706-662, “is unconstitutional on
its face.” State v. Maugaotega, 115 Hawafi 432, 447, 168 P.3d
562, 577 (2007) (Maugaotega II)." lt was concluded that
" The concurrence in part and dissent in part, asserted that
contrary to the majority’s position, 1 would vacate the
sentences and the judgments thereon and remand for a jury
trial, unless waived by Appellant, on the motion for
(condnued")
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“Cunningham [e]liminated [t]he [r]ole [o]f [t]he [s]entencing
[j]udge [i]n [f]inding [f]acts [n]ecessary [f]or [t]he
[i]mposition [o]f [a]n [e]xtended [t]erm [o]f [i]mprisonment
[o]utside [t]he [m]aximum [a]uthorized [s]olely [b]y [t]he
[j]ury's [v]erdict.” lgy at 443, 168 P.3d at 573. Thus, it is
now manifest that the jury requirements of Apprendi are
applicable to the findings necessary to impose an extended
sentence under HRS § 706-662.”
"(~.c0nIhn1ed) ,
2 extended terms filed by Plaintiff-Appellee State of HawaiH
(the prosecution). This disposition on remand is required
because (l) [HRS] §§ 706-661 and -662, the extended term
sentencing statutes, are not rendered unconstitutional in
their entirety under Cunnin ham, (2) the legislature
expressly intended to preserve extended term sentencing, (3)
such a disposition is approved by Cunnin ham, and (4) the
facts of this appeal warrant it.
115 Hawaifi at 451, 168 P.3d at 581 (Acoba, J., concurring and dissenting,
joined by Duffy, J.) (footnote omitted).
" lt may be noted that, “[e]ffective October 3l, 2007, the
legislature [] amended HRS § 706-662 as part of its reform of the state's
extended sentencing scheme to bring it into compliance with Apprendi and
[Cunningham]. The amended version of HRS § 706-662 provides in relevant part:
Criteria for extended terms of imprisonment. A
defendant who has been convicted of a felony may be subject
to an extended term of imprisonment under HRS § 706-661, if
it is proven beyond a reasonable doubt that an extended term
of imprisonment is necessary for the protection of the
public and that the convicted defendant satisfies one or
more of the following criteria
State v. Jess, 117 Hawafi 381, 388 n.4, 184 P.3d 133, 140 n»4 (2008)
(brackets and citation omitted). Additionally, this court in Jess judicially
reformed the former version of HRS § 706-662 to allow courts to impanel a jury
to make the necessary findings under HRS § 706-662 in order to be in
compliance with Apprendi. §§p igy at 388-89, 184 P.3d at 140-41 (holding that
“the circuit court would act within its discretion if, pursuant to HRS §§
706-662(1) and 706-662(4) (Supp. 1996), it empaneled a jury to make a factual
finding as to whether the prosecution has proved beyond a reasonable doubt
that a defendant's commitment for an extended term or terms of imprisonment is
necessary for the protection of the public”).
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B.
Foreseeably, the less burdensome procedural alternative
of consecutive term sentencing may be viewed as a way to obtain
the same sentencing result as would be reached in extended
sentences, but without the necessity of convening the more
lengthy jury procedures required by Apprendi. See Kahapea, 111
Hawafi at 285, 141 P.3d at 458 (Acoba, J., concurring in part,
joined by Duffy, J.) (“It would appear plain, then, that our
sentencing law does not sanction the circumvention by a judge of
the extended term sentencing procedure by resort to the
consecutive term provision. Such subterfuge would violate the
provisions of the penal code and potentially raise serious due
process considerations.”). Coupled requests for consecutive
sentencing and extended term sentencing are evident in appeals
that have been brought before this court and the ICA.”
” A quick review of recent cases supports a conclusion that
Respondent very frequently moves for both extended and consecutive terms in
the same case, and that it is not uncommon for the court to deny a motion for
an extended term, while granting a motion for consecutive terms. See, e.g.¢
Kaman§o, 118 HawaFi at 2l2, 188 P.3d at 726 (noting that following the
federal district court’s vacation of extended term sentences, upon
resentencing, the defendant was sentenced to consecutive terms); Wilderman v.
State, No. 26970, 2008 WL 281272, at *3 (HawaiH Jan. 2l, 2008) (SDO) (noting
that the defendant claimed on appeal that “[t]he court abused its discretion
in sentencing him to consecutive terms of imprisonment at the same time it
denied the State’s motion for an extended term of imprisonment”) (emphasis
added); State v. Pavich, 119 HawaiU.74, 87, 193 P.3d l274@ 1287 (App. 2008)
(stating that, based upon the record, “[the defendant’s] attorney was
disappointed when the State moved for extended terms of imprisonment and for
consecutive sentences”) (emphasis added); Loher v. State, 118 Hawafi 522,
527, 193 P.3d 438, 443 (App. 2008) (stating that “the Circuit Court granted
the State’s motions to sentence {the defendant to an extended term,
consecutive sentences, and as a repeat offender”) (emphasis added); State v.
M klebust, No. 28756, 2008 WL 5053561, at *2 (Haw. App. Nov. 28, 2008) (SDO)
(noting that the defendant's counsel stated that “[o]ne of the things that
[the judge] indicated during [a] conference was that if [the defendant] went
to trial and he was convicted[,] he was looking at an extended term and/or
(condnuedH)
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Relatedly, in Oregon v. lce, No. 07-901, 555 U.S. --,
--, 129 S.Ct. 71l, 714 (Jan. 14, 2009), an Oregon statute
required judges to impose concurrent sentences for offenses
arising out of a continuous course of conduct unless they found
certain “predicate facts” allowing them to impose consecutive
sentences. A five-to-four majority of the United States Supreme
Court upheld the judicial determination of predicate facts in the
imposition of a consecutive sentence against the claim that the
jury fact-finding requirements set forth in Apprendi and Blakely
applied to the determination of such facts. lgy
The majority decided that “twin considerations -
historical practice and respect for state sovereignty - counsel
against extending Apprendi’s rule to the imposition of sentences
for discrete crimes.” lgy at --, 129 S.Ct. at 7l7. Acoording to
the majority, “[t]he decision to impose sentences consecutively
is not within the jury function that ‘extends down centuries into
the common law.’” lQi (quoting A. rendi, 530 U.S. at 477). 0n
the other hand, the dissent argued that “Oregon’s sentencing
scheme allows judges rather than juries to find the facts
"(...continued)
consecutive sentencing") (emphasis added); Penaflor v. S_tate, No. 28527, 2008
WL 2503259, at *1 (Haw. App. .Jun. 24, 2008) (SDO) (noting that "[t]he circuit
court sentenced [the defendant] to consecutive terms of imprisonment but
denied the State of Hawai‘i’s motion for extended term sentencing") (emphasis
added) (footnote omitted); Salis v. State, No. 27451, 2008 WL 1829513, at *l &
*1 n.3 (Haw. App. Apr. 23, 2008) (mem.) (noting that the judge imposed
consecutive terms, and stating that "[t]he State also filed a Motion for
Extended Term of Imprisonment in 97-0973, . . . but this motion was denied")
(emphases added).
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necessary to commit defendants to longer prison sentences and
thus directly contradicts what we held eight years ago [in
Apprendi] and have reaffirmed several times since.” lgy at --,
129 S.Ct. at 720 (Scalia, J., dissenting, joined by Roberts,
C.J., Souter, and Thomas, JJ.).
ln regard to consecutive sentences, the majority noted
that states have generally taken three approaches related to the
imposition of such sentences: (l) Y[m]ost [s]tates continue the
common law-tradition[, where t]hey entrust to judges’ unfettered
discretion the decision whether sentences for discrete offenses
shall be served consecutively or concurrently”; (2) “[i]n some
[s]tates, sentences for multiple offenses are presumed to run
consecutively, but sentencing judges may order concurrent
sentences upon finding cause therefor”; and (3) “[o]ther [s]tates
constrain judges’ discretion by requiring them to find
certain facts before imposing consecutive, rather than
concurrent, sentences.” lgy at --, 129 S.Ct. at 714. According
to the Supreme Court, the first two approaches do not
“transgress[] the Sixth Amendment.” lgy ln lpp, “[t]he sole
issue in dispute [was] whether the Sixth Amendment, as construed
in Apprendi and Blakel , precludes the [third approach].” lgy
The mandated consideration of factors in HRS § 706-606
by the sentencing judge is akin to the third approach discussed
in loe -- that in order to impose a consecutive sentence, the
30
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judge must “find certain facts.” As noted in lgp, “[l]imiting
judicial discretion to impose consecutive sentences serves the
‘salutary objectives’ of promoting sentences proportionate to
‘the gravity of the offense,’ and of reducing disparities in
sentence length.” lgy at --, 129 S.Ct. at 719 (citations
omitted). ln many instances the term of imprisonment would be
the same under consecutive term sentencing as under extended term
sentencing. Consequently, if consecutive term sentencing may be
employed as a possible alternative to extended sentencing and the
jury fact-finding requirements imposed in Apprendi, such a
possibility warrants closer scrutiny of consecutive sentences.
Vll.
ln this case, a concurrent sentence would have resulted
in ten years of imprisonment, as opposed to the twenty years that
Petitioner received as a consequence of running the terms
consecutively. Although to this point we have recognized the
benefits of a statement of reasons but not mandated it, we now
conclude, based on the reasons and circumstances set forth §pp;g,
that a court must state its reasons as to why a consecutive
sentence rather than a concurrent one was required.
Such a requirement serves dual purposes. First,
reasons identify the facts or circumstances within the range of
statutory factors that a court considers important in determining
that a consecutive sentence is appropriate. An express
31
***FoR PUBL1cATIoN IN wEsT's HAwAf1 REPoRTs AND PAcIFIc REPoRTER***'
statement, which evinces not merely consideration of the factors,
but recites the specific circumstances that led the court to
impose sentences consecutively in a particular case, provides a
meaningful rationale to the defendant, the victim, and the
public.
Second, reasons provide the conclusions drawn by the
court from consideration of all the facts that pertain to they
statutory factors. lt is vital, for example, for the defendant
to be specifically informed that the court has concluded that he
or she is dangerous to the safety of the public, or poses an
unacceptable risk of re-offending, or that rehabilitation appears
unlikely due to his or her lack of motivation and a failure to
demonstrate any interest in treatment, or that the multiplicity
of offenses and victims and the impact upon the victims’ lives
warrant imposition of a consecutive term. Hence, reasons confirm
for the defendant, the victim, the public, and the appellate
court, that the decision to impose consecutive sentences was
deliberate, rational, and fair.
Consequently, after the filing date of the judgment
herein, circuit courts must state on the record at the time of
sentencing the reasons for imposing a consecutive sentence.
Vlll.
As observed, Petitioner's second argument is that she
was denied effective assistance of counsel at her sentencing
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hearings.
This court has stated the appellant's burden in
establishing ineffective assistance of counsel is as follows:
(citations omitted).
“meager pre-sentence preparation and argument.”
The burden of establishing ineffective assistance of counsel
rests upon the appellant. [The appellant's] burden is
twofold: First, the appellant must establish specific
errors or omissions of defense counsel reflecting counsel’s
lack of skill, judgment or diligence. Second, the appellant
must establish that these errors or omissions resulted in
either the withdrawal or substantial impairment of a
potentially meritorious defense.
State v. Antone, 62 Haw. 346, 348-49, 615 P.2d l01, 101-04 (l980)
First, Petitioner challenges her counsel’s
Second,
Petitioner alludes to her counsel’s failure to file a HRPP Rule
35 motion for reduction of sentence,” “to develop post-
sentencing strong mitigating factors to support
reconsideration[.]”
20
HRPP Rule 35 provides:
(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 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.
(Emphasis added.)
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A.
As to the first claim, Petitioner contends that her
counsel was ineffective for failing to cite certain mitigating
factors in a written sentencing memorandum.” However, the lCA
determined that both Petitioner and Petitioner's counsel
presented mitigating circumstances at the sentencing hearing:
At the sentencing hearing on April 27, 2007,
Petitioner addressed the court and stated “l have no
excuse for what l have done and l’m taking full
responsibility for my action. l’m just asking for a fair
sentence and l know whatever you give me will be fair.”
[Petitioner’s] (prior1 defense counsel argued that there
were mitigating circumstances which should reduce her
sentence within the context and in harmony with [Petitioner]
taking full responsibility for her actions. We conclude
that, notwithstanding the fact that counsel did not file a
written sentencing memorandum and Petitioner) now submits
that counsel could have better argued the mitigating
circumstances, [Petitioner’s] counselfs assistance was
within the range of competence demanded of attorneys in
m Petitioner points to the following mitigating factors as having
been omitted:
[1] The offenses [for which she was convicted] are
crimes against property which caused no physical harm
or injury to another person.
[2] [Petitioner] has accepted responsibility for her actions
by waiving indictment, changing her plea, and stipulating to
her repeat offender status . . . .
[3] [Petitioner] has a documented history of drug use and
homelessness which led to the commission of the offenses.
[4] [Petitioner] is educated and intelligent, and has the
ability to pursue gainful employment.
[5] [Petitioner] has expressed genuine remorse and
apologized to the victims.
[6] [Petitioner] has work experience, with a history of
employment as an administrative assistant, secretary, and
receptionist.
[7] While incarcerated [Petitioner] has participated in X
in an apparent sincere effort to improve her chances of
gainful employment.
[8] While incarcerated [Petitioner] has participated in X to
address her substance abuse problem.
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criminal cases. Therefore, [Petitioner] was not provided
with ineffective assistance of counsel.
Hussein, 2008 WL 5307813, at *4 (ellipsis and citation omitted)
(emphases added). The lCA further noted that mitigating factors
were presented in the presentence report (PSl), which was
reviewed by the sentencing judge:
As acknowledged by [Petitioner], “mitigating factors,”
including [Petitioner’s] remorse and taking responsibilityy
for her actions, were argued at the sentencing hearing.
The [PSl] referenced in [Petitioner’sJ Opening Brief -
which the [c]ourt stated that it considered - referenced the
substance abuse and treatment issues raised by [Petitioner]
on this appeal.
lgy at *3, _
Thus, as to the first claim, we agree with the lCA
inasmuch as all of the factors alleged by Petitioner were
presented to the court for consideration, either in the PSl, or
in court at the sentencing hearing. At Petitioner's sentencing
hearing, the judge stated, “The court will take judicial notice
of the records and the files. The court has reviewed the fPSll,”
(Emphasis added.) The sentencing judge then, was made aware of
the mitigating factors cited by Petitioner, either through the
PSl or in open court at the sentencing hearing.
B.
As to Petitioner's second claim, the lCA, analogizing
to Federal Rule of Criminal Procedure (Fed. R. Crim. P.) Rule
35,22 noted that HRPP Rule 35
” The lCA recognized, as we have herein, that “Fed. R. Crim. P.
35(b) is similar to a Motion for Reduced Sentence under HRPP Rule 35(b) except
the federal rule provides 120 days to file the motion, whereas the HawaiH
rule provides 90 days.” Hussein, 2008 WL 5307813, at *4 n.3.
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“does not suggest that a motion should be filed
automatically in every case. To the contrary, . . . such a
motion would normally be accompanied by evidence,
information, and argument to support a reduction in
sentence. No court has held that failure to file such a
motion automatically constitutes ineffective assistance of
counsel.”
lgy at *4 (quoting Shraiar v. United States, 736 F.2d 817, 818
(1st Cir. 1984)) (internal quotation marks omitted). Based on
that rationale, the lCA “reject[ed] [Petitioner’s] argument that
defense counsel’s failure to file an HRPP Rule 35 motion to
develop additional mitigating factors rendered counsel’s
representation constitutionally ineffective in this case.” lgy
We affirm the result reached by the lCA inasmuch as it
appears that all mitigating factors that were known at the time
of sentencing were presented to the sentencing court, and,
therefore, counsel’s decision not to file a HRPP Rule 35 motion
post-sentencing to present those same factors did not fall
outside the range of competence expected of criminal lawyers.
Also relevant to our affirmance of the lCA is the fact that
Petitioner discharged sentencing counsel three weeks subsequent
to her sentencing. Thus, inasmuch as Petitioner argues that “[a
HRPP] Rule 35 motion with a hearing several months after sentence
would have given [Petitioner] the opportunity to develop
additional strong mitigating factors based upon taking advantage
of educational courses, workline duties, substance abuse
programming, and so forth[,]” that argument is inapplicable to
Petitioner's sentencing counsel as he was no longer retained by
Petitioner “several months after sentence.”
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lX.
However, we find it necessary to clarify the lCA’s
opinion with respect to HRPP Rule 35. The lCA rejected
Petitioner's argument that counsel was ineffective for not filing
a HRPP Rule 35 motion “to develop additional mitigating factors.”
Hussein, 2008 WL 5307813, at *4. The lCA focused exclusively on
the fact that “[R]ule [35] does not suggest that a motion should
be filed automatically in every case.” lgy The lCA never
considered, intimated, or suggested in any way that a Rule 35
motion could still be timely filed. Because the lCA ruled on
counsel’s failure to file a Rule 35 motion p;;p; to initiation of
appellate proceedings, one may be left with the impression that
the time for filing had expired. lndeed, subsequent to the lCA's
SDO, Petitioner indicates that “[t]he Hawafi rule retains the
[c]ourt’s jurisdiction to reduce a sentence if the motion is
filed prior to the notice of appeal[,]” and thus, “due diligence
required such a motion.” (Emphasis added.) Petitioner therefore
apparently believes that because counsel failed to file a HRPP
Rule 35 motion, she has lost that opportunity.
A.
But, according to HRPP Rule 35(b), “[t]he 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 . . . .” ln State v. Rodrigues, 68 Haw. l24, l33, 706
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P.2d 1293, 1300 (1985), this court affirmed the court’s
sentencing decision, deciding “[t]hat the circuit court
mistakenly concluded the defendant had been convicted on three,
rather than two, prior occasions is of no consequence; he was
still subject to a ten-year mandatory minimum term of
imprisonment.”
lt was noted, however, that pursuant to HRPP Rule 35,
the sentence could be reduced upon receipt of final judgment from
this court:
The record indicates the circuit court “reluctantly .
grant[ed] the motion to have the defendant sentenced as a
repeat offender.” HRS § 706-606.5(3), however, vests the
court with authority to impose a lesser mandatory minimum
sentence where “strong mitigating circumstances warrant such
action.” Since {HRPP Rule 351 permits the reduction of a
7sentence upon receipt of this court’s mandate following
affirmance of the judgment, the circuit court will be able
to consider the exercise of its discretionary power if such
action is warranted.
lgy at 133 n.7, 706 P.2d at 1300 n.7 (emphasis added) (ellipsis
and brackets in original). This court and the lCA have affirmed
the proposition that HRPP Rule 35 allows for reduction of a
sentence following appeal. _§g State v. Putnam, 93 Hawafi 362,
365 n.4, 3 P.3d 1239, 1242 n.4 (2000) (“[HRPP] Rule 35 (1980)
allows a court to reduce a sentence within ninety days of a
judgment on appeal affirming the judgment.”); 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.”); see also State v. Gomes, 107 Hawafi
308, 310-ll, 113 P.3d 184, 186-87 (2005) (noting that the
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petitioner filed a HRPP Rule 35 motion subsequent to this court’s
affirmance of the judgment).”
B.
The foregoing interpretation of HRPP Rule 35 adheres to
the plain language of Rule 35(a), which allows the correction of
an illegal sentence “at any time” within 90 days “after the
sentence is imposed[,]” and Rule 35(b), which allows the
reduction of a sentence “within 90 days after receipt by the
court of a mandate issued upon affirmance of the judgment or
dismissal of the appeal[.]” This construction of HRPP Rule 35 is
supported by the interpretation given Fed. R. Crim. P. Rule 35
(1983),“ which, prior to its amendment in 1985, was
” lt should be noted that until this court acts with regard to
Petitioner's application for certiorari, there is no final judgment in this
appeal. §gg Hawaifi Rules of Appel1ate Procedure (HRAP) Rule 41 (2008);
Rapozo v. Better Hearing of Hawaii, LLC, 120 Hawafi 257, 260, 204 P.3d 476,
479 (2009) (“An appeal is generally considered to be ‘a continuation of an
original proceeding and not a new action.’” (Quoting Leslie v. Tavares, 93
Hawafi l, 4, 994 P.2d 1047, 1050 (2000).)); see also HRAP Rule 2.1(b) (2008)
(“‘Appeal’ includes every proceeding in the Hawafi appellate courts other
than an original action[.]”). Because Petitioner‘s application for certiorari
was timely filed, it stayed the finality of the lCA decision. §pg HRAP Rule
41.
“ Fed. R. Crim. P. Rule 35 (1983) provided:
(a) Correction of 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.
_ (b) Reduction of Sentence. A motion to reduce a sentence may
be made, or the court may reduce a sentence without motion,
within 120 days after the sentence is imposed or probation
is revoked, or within 120 days after receipt by the court of
a mandate issued upon affirmance of the judgment or
dismissal of the a eal, or within 120 days after entry of
any order or judgment of the Supreme Court denying review
of, or having the effect of upholding, a judgment of
conviction or probation revocation. Changing a sentence
from a sentence of incarceration to a grant of probation
shall constitute a permissible reduction of sentence under
(c0ndnued")
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substantially similar to HRPP Rule 35.“1
C.
Thus, inasmuch as the lCA’s SDO may certainly be
construed as concluding that a HRPP Rule 35 motion is no longer
viable, we find it necessary to clarify that Petitioner may still
file a HRPP Rule 35 motion subsequent to this appeal. ee State
v. Mikasa, 111 Hawafi 1, 1, 135 P.3d 1044, 1044 (2006)
(affirming lCA decision, but granting certiorari “to clarify the
application by [the lCA] of the law relevant to a defendant's
claim that a sentencing court relied on an uncharged crime in
imposing sentence”); Nacino v. Koller, 101 HawaiH.466, 467, 71
P.3d 417, 418 (2003) (affirming the lCA, but granting certiorari
“to clarify the law regarding [HRS] § 346-37, the statute
involved”); Korsak v. Hawafi Permanente Med. Group, 94 HawaiH
297, 300, 12 P.3d 1238, 1241 (2000) (granting certiorari “to
clarify several aspects of the lCA opinion”); pig Ranches v. 0ity
and County of Honolulu, 115 Hawaid 462, 464-65, 168 P.3d 592,
“(...continued)
this subdivision.
(Emphasis added.)
” Federal courts have held that the 120-day time limitation for
filing a Fed. R. Crim. P. Rule 35(b)`motion begins to run after the appellate
judgment has been issued. See United States v. Hi1l, 826 F.2d 507, 507 (7th
Cir. 1987) (affirming “[Hill’s] conviction” and holding that “Hill had until
February 6, 1986,” or 120 days from the date her conviction was affirmed on
appeal, “to file a motion under Fed. R. Crim. P. 35(b) for a reduction of
sentence”); United States v. Dansker, 581 F.2d 69, 74 (3d Cir. 1978) (holding
“that the 120-day period of Rule 35 begins to run from the date of receipt of
the mandate affirming the judgment of conviction or dismissing the appeal or
after appropriate Supreme Court action”); United States ve Oshatz, 822 F.
Supp. l077, 1078-79 (S.D.N.Y. 1993) (noting that defendant's Rule 35 motion
was filed and granted after appellate proceedings were exhausted).
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594-95 (2007) (“The requirements in HRS § 602-59(b) are ‘directed
only to the application for the writ. lt is not descriptive of
the scope of review determinative of [this court’s] decision to
grant or deny certiorari. [This court’s] power in that regard is
intended to simply be discretionary.'” (Quoting State v. Chong,
86 HawaFi 282, 283 n.1, 949 P.2d 122, 123 n.1 (1997).)). Hence,
under HRPP Rule 35(b), Petitioner may file a HRPP Rule 35 motion
for reduction of her sentence although the judgment of the court
is affirmed.
X.
The four arguments raised by the dissent are (l) “the
majority’s entire discussion of its new ‘rule’ is wholly
unnecessary to dispose of this case and, thus, constitutes obiter
g;gpg[,]” (2) “mandating the sentencing court to state specific
reasons when imposing a consecutive sentence . . . violates the
doctrine of stare decisis[,]” (3) “[requiring courts] to state
specific reasons when imposing a consecutive sentence
places [the courts] at risk of violating [the PSl confidentiality
requirements,]” and (4) “the majority . . . creat[es] a new
‘rule’ that is wholly unnecessary to the disposition of
[Petitioner's case], and attempts to justify its grant of
Petitioner's [A]pplication by conjuring up an issue surrounding
HRPP Rule 35 under the guise of providing clarification.”
Dissenting opinion at 1-2. For the following reasons, we
respectfully disagree.
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'A.
ln arguing that “the majority’s entire discussion of
its new ‘rule’” is “dicta,” ;gy, the dissent states that dicta
“is ‘a judicial comment made . . . that is unnecessary to the
decision in the case and therefore not precedential (although it
may be considered persuasive)[,]’” igy at 8 (quoting Black’s Law
Dictionary 1102 (8th ed. 2004) (emphasis in original)) (brackets
omitted), and that “‘an inferior tribunal might not be bound
under the doctrine of stare decisis if the pronouncement of a
superior court is actually dictum[,]’” igp at 9 (quoting Bppip§gp
v. Ariyoshi, 65 Haw. 641, 654, 658 P.2d 287, 298 (1982) (emphasis
in original)). However, as also stated in Black’s, obiter dictum
is derived from the Latin for 8something said in passing.”
Black’s Law Dictionary 1177 (9th ed. 2009), Black’s also states:
“Strictly speaking an obiter dictum is a remark made or
opinion expressed by a judge, in his decision upon a cause,
‘by the way’ -- that is, incidentally or collaterally and
not directly upon the question before the court; or is any
statement of law enunciated by the judge or court merely by
way of illustration, argument, analogy, or suggestion[.]”
lgy (quoting Brief Making and the Use of Law Books 304 (3d ed.
1914)) (emphasis added). As previously discussed, the
requirement that sentencing courts state their reasons for
imposing a consecutive sentence is germane to any HRPP Rule 35
motion Petitioner may file on remand, as well as to all future
cases in which a court imposes a consecutive as opposed to a
concurrent sentence under HRS § 706-668.5. Consequently, this
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holding is neither a statement collateral to the holding, nor
merely a “‘remark made’” in passing. lgy
Furthermore, the dissent ignores that grave error or
obvious inconsistencies are ppg curbs on the exercise of this
court’s discretion to accept or reject an application, but are
requirements of the certiorari application.“ Thus, despite the
absence of any reversible error in the lCA’s opinion, when a
majority of this court determines to accept certiorari and to
issue an opinion, that opinion is not “dicta” merely because it
affirms the decision of the lCA. Hence, as this court stated in
Ranches,
ft]he requirements in HRS § 602-59(b) are “directed only to
the application for the writ. lt is not descriptive of the
scope of review determinative of th[is c]ourt's decision to
grant or deny certiorari. Th|is c ourt’s power in that
regard is intended to simply be discretionary.”
115 HawaFi at 464-65, 168 P.3d at 594-95 (quoting Chon , 86
Hawai‘i at 283 n.1, 949 P.2d at 123 n.1) (emphases added). HRS
§ 602-59(a) makes manifest that the acceptance or rejection of
certiorari is a matter within the discretion of this court. The
statute's plain language confirms this, stating that “a party may
” HRS § 602-59(b) (Supp. 2008) states:
(b) The application for writ of certiorari shall
tersely state its grounds, which shall include:
(l) Grave errors of law or of fact; pp
(2) Obvious inconsistencies in the decision of the
intermediate appellate court with that of the
supreme court, federal decisions, or its own
decision,
and the magnitude of those errors or inconsistencies
dictating the need for further appeal.
(Emphasis added.)
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seek review of the [lCA’s] decision and judgment or dismissal
order only by application . . . for a writ of certiorari, ppg
acceptance or rejection of which shall be discretionary upon the
supreme court.” HRS § 602-59(a) (emphasis added). §
lndeed, this court has posited additional grounds for
accepting certiorari outside those expressly enumerated in HRS
§ 602-59(b). Certiorari has been accepted in numerous instances,
in the absence of any error, in order to provide clarification.”
We have also accepted certiorari to address matters of first
impression. See State v. Maluia, 107 Hawafi 20, 22, 108 P.3d
974, 976 (2005) (despite “hold[ing] that th[e] error was harmless
beyond a reasonable doubt and therefore affirm[ing] the lCA's
SDO[,]” “grant[ing the petitioner's] application for a writ of
certiorari for the sole purpose of addressing [anl issue of first
impression in this jurisdiction”) (emphasis added); Korsak, 94
Hawafi at 305, 12 P.3d at 1246 (although disagreeing with the
petitioner that “the lCA erroneously applied the statutory
” See, e.g.¢ Mikasa, 111 HawaFi at 1, 9, 135 P.3d at 1044, 1052
(affirming the lCA’s approval of the circuit court’s decision to impose
consecutive sentences because “the court was presented with and set forth a
multiplicity of circumstances that would support an exercise of discretion in
favor of consecutive sentences[,]” but granting certiorari to clarify “that
other factors would not support consecutive sentences if the court’s remarks
‘clearly indicate[d]’ that an improper ground was an *aggravating factor’ in
the sentencing decision”); Nacino, 101 HawaFi at 467, 71 P.3d at 418; Korsak,
94 Hawafi at 300, 12 P.3d at 1241; State v. Kaufman, 92 Hawafi 322, 323, 991
P.2d 832, 833 (2000) (determining that “[a]lthough the lCA reached the correct
result, [this court1 granted certiorari in this case to clarify that a motion
to set aside a DAG plea tolls the period of deferral pending the decision of
the court on the motion[,]” and “[a]ccordingly, [] affirm{ed the petitioner’s]
judgment of conviction and sentence”) (emphasis added); Omori v. Jowa Hawaii
Qpy, 91 HawaiH.146, 146, 981 P.2d 703, 703 (1999) (“grant[ing] certiorari fg£
the sole purpose of clarifying what we believe may not be clear from the
opinion of the [lCA]”) (emphasis added).
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presumption of compensability[,]” and thereby affirming the lCA,
“grant[ing] certiorari to explicitly examine the language of HRS
§ 386-85 to ascertain its proper scope[,]” because “Hawaii’s
appellate courts have never determined” the issue). The dissent
does not suggest that the opinions issued in the foregoing cases
were merely “dicta” because the decision of the lCA was
affirmed.” Furthermore Petitioner has indicated that she
believed a HRPP Rule 35 motion should have been filed. lnasmuch
as we clarify that upon remand, Petitioner will have the
opportunity to file a HRPP Rule 35 motion, our holding that the
sentencing court would be required to state reasons is germane to
Petitioner's probable Rule 35 motion andy thus, cannot be
considered dicta.
Similarly, in this case, although the lCA did not err
as to its ultimdissemate judgment, we accepted certiorari in our
n For example, in Kaufman, this court affirmed the lCA, which had
affirmed the circuit court. 92 HawaiH at 323, 991 P.2d at 833. However, in
that case, despite that fact that the petitioner's “sentence [wa]s affirmed,
leaving nothing further to ‘litigate[,]'” dissenting opinion at l0, this court
explicitly “h[e]ld that the tolling provisions under HRS § 706-627 apply to
deferral periods pursuant to a [deferred acceptance of guilty] plea[,]”
Kaufman, 92 Hawai‘i at 330, 991 P,2d at 840. Similarly, in Maluia, this court
“h[e]ld that the prosecution may not ask a defendant to comment on another
witness’s veracity[,]” 107 Hawafi at 24, 108 P.3d at 978, and that such
behavior constitutes “prosecutorial misconduct[,]” igy at 25, 108 P.3d at 979,
despite “affirm[ing] the lCA's . . . {SDO] affirming the . . . judgment of the
circuit court[,]” ;gy at 27, 108 P.3d at 981. lt would be wrong to suggest
that what this court explicitly held in those cases is not controlling because
there was “nothing further to litigate,” and, indeed, the lCA and the holdings
in those cases have been appropriately treated as precedential. See, e.g.,
State v. Shannon, 118 HawaiH.15, 29; 185 P.3d 200, 214 (2008) (referring
approvingly to the “holding” in Kaufman); State v. Kehdy, No. 29146, 2009 WL
1805908, at *6 (Hawafi App. June 25, 2009) (SDO) (citing the holding in
Maluia aPPrOVinqly).
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discretion, inasmuch as we (l) adopt the principle for future
application, that the sentencing court must state on the record
the reasons for imposing a consecutive sentence as necessary for
the proper administration of justice, (2) clarify that a HRPP
Rule 35 motion may be filed after the cessation of appellate
proceedings in this case, in light of the lCA's decision
indicating otherwise, and (3) note that the requirement that
reasons be given in imposing consecutive sentences at the
sentencing hearing would be germane to a probable HRPP Rule 35
motion filed by Petitioner. §g§ Robinson, 65 Haw. at 655, 658
P.2d at 298 (stating that this court’s discussion of an issue is
not dicta when it is “closely connected with the question upon
which the case was decidedj and the opinion [is] expressed with a
view to settling a question that would in all probability have to
be decided before the litigation was ended”) (quotation marks
omitted).
B.
Simi1ar to this case, in Lgg, despite “[f]inding no
reversible error,” and “affirm[ing the] appellant's sentence[,]”
this court set forth a new rule “mandat[ing] that the sentencing
court make [the pre-sentence] report part of the record in all
cases where a pre-sentence report has been prepared and that the
report be sealed.” Lag, 73 Haw. at 264, 831 P.2d at 526. This
court recognized “that traditionally the pre-sentence report is
not admitted into evidence or made part of the record on
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appeal[,]” and “that such practice complies with HRS § 806-73,
which provides that all records of the adult probation divisions,
including pre-sentence reports ‘are confidential and are not
public records.’” lgy (emphases added).
Nevertheless, “in order to maintain a complete record
and to facilitate appellate review of whether the sentencing
court properly exercised its discretion,” id. (emphasis added),
Lgg implemented a new requirement that the pre-sentence report be
included in the record on appeal, despite an established practice
to the contrary. Just as in Lgg, giving reasons for a
consecutive sentence facilitates “maint[enance of] a complete
record and . . . appellate review of whether the sentencing court
properly exercised its discretion[.]” §§g igy As in Lag, we may
impose measures related to improving the administration of
n
justice where the facts of the case warrant. Just as the mandate
set forth in Lau is manifestly not dicta, but a clear requirement
binding on the courts, we confirm without qualification that the
mandate set forth herein is not dicta, but binding precedent.
.lhe dissent maintains that “the majority’s reliance on
_gg is unavailing inasmuch as the new ‘rule’ set forth in that
case was directly related to the issue on appeal, iypy, whether
the sentencing court, in imposing a twenty[-]year term of
imprisonment, considered an eight[-]year sentencing option under
the young adult defendants statute for which he was qualified.”
Dissenting opinion at 32 (citing Lau, 73 Haw. at 259-60, 831 P.2d
47**4FoR PuBLIcAT1oN 1N wEsT's HAwArI REPoRTs AND PAcIFIc REPoRTER***
at 523-24). The dissent fails to cogently explain how the
requirement set forth in Lgg that the PSl be placed in the record
on appeal in future cases, was any more “related to the issue on
appeal” than the rule set forth in this case.
lndeed, whether the PSl should be available to
appellate courts was not an issue presented by any of the parties
in Lgg. lnstead, this court’s apparent difficulty in conducting
meaningful review of the record led it to conclude that the PSl
should be included in the future. ln this case, although, as in
Lau, our review of the record does not reveal any error on the
part of the sentencing judge, this court will be better able to
review arguments such as Petitioner;s in the future if reasons
for selecting a consecutive sentence are provided. Consequently,
the rationale supporting the rules set forth in this case and in
Lgg are closely analogous. Also, the dissent’s assertion that
the “new rule . . . [is] wholly unrelated to the issue being
‘clarified,'” dissenting opinion at 32, is incorrect inasmuch as
the “new rule” is related to the issues raised on appeal,
including a HRPP Rule 35 motion, which “would in all probability
have to be decided before the litigation was ended,” Robinson, 65
Haw. at 655, 658 P.2d at 298.
Xl.
A.
The dissent cites to the United States Supreme Court
for the proposition that “justice requires that directly
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controlling cases either be followed or candidly overruled.”
Dissenting opinion at 6 (quoting Solem v. Helm, 463 U.S. 277, 312
(1983) (Burger, C.J., dissenting, joined by White, Rehnquist, and
O’Connor, JJ.) (other citation omitted)) (emphasis in original).
However, the dissent’s citation is inapposite inasmuch as this
opinion does not overrule Lpp, Sinagoga, or subsequent cases that
cite to them.” Lpp did not deal with consecutive sentencing, as
the question in Lpp was whether the court erred by not stating
reasons for imposing the maximum “indeterminate term of twenty
years” for a class A felony under HRS § 706-659, although
appellant “could have received a special indeterminate term of
eight years” under the young adult defendants statute, Lpp, 73
Haw. at 260, 831 P.2d at 524. When this court stated that “there
is no requirement for the sentencing court to state its reasons
for imposing sentence[,]” ipy at 263, 831 P.2d at 525, it was
referring to the sentence imposed under HRS § 706-659, ppg HRS
§ 706-668.5. Thus, if Lpp were decided again following this
opiniony the result would be the same.
Similarly, Sinagoga is not called into question by this
opinion inasmuch as the judge in that case followed the
requirement set forth in this case. ln Sinagoga, the lCA deemed
relevant, inter alia, that “[u]nguestionably, Ithe sentencing
29 . §_ep also dissenting opinion at 8 (citing Sina o a, 81 Hawai‘i at
428, 918 P.3d at 235, Vellina, 106 Hawai‘i at 449, 106_ P.3d at 372, and
Tauiliili, 96 Hawai‘i at 199-200, 29 P.3d at 918-19', as precedent from which
this opinion allegedly departs).
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judge] did state the reasons for the court’s sentence.” 81
Hawafi at 429, 918 P.2d at 236 (emphasis added). The defendant
conceded that “the court considered the factors stated in HRS
§ 706-606(2)(b) and (c),” and the lCA concluded that, “|i|n light
of the court’s findingfs,l . . . the court undoubtedly
considered” the remaining factors. lpg at 428, 918 P.2d at 235
(emphasis added). Thus, Sinagoga would be decided the same way
under the rationale set forth today.
This opinion does not impose a requirement, contrary to
Sinagoga, that “a court . . . orally address every factor stated
in HRS § 706-606” or “expressly recite its findings on the record
for each of the factors set forth in HRS § 706-606[,]” see id.,
as the dissent maintains. Dissenting opinion at 8. ln any given
case, a sentencing court’s reasons for imposing multiple
sentences consecutively, as opposed to concurrently, may or may
not include reference to the HRS § 706-606 factors, as the
circumstances warrant. The value of stating reasons on the
record, which the dissent concedes has been urged upon sentencing
courts for the last seventeen years, becomes imperative on the
bases previously discussed.”
” The dissent argues that because we do not require specific
findings of fact, sentencing courts could satisfy the rule by “parrot[ing] or
repeat[ing] the language of the factor itself[.]” Dissenting opinion at 26
n.9. This statement confuses the statutory factors with sentencing reasons,
This court’s decision in Sinagoga relied on that distinction, stating that
“[w]hile there is no reguirement that the court recite its findings on the
record for each of the factors set forth in HRS § 706-606, the HawaiH.Supreme
Court has recommended that a sentencing court state the reasons for its
sentence.” 81 HawaiH.at 428, 918 P.2d at 235 (emphasis added). Our holding
today does not require sentencing courts to merely reiterate statutory factors
' (c0ndnued j
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'ln asserting that the rule set forth in the majority
opinion is contrary to the presumption in Sinagoga, the dissent
cites to Vellina and Tauiliili as examples of cases that follow
Sinagoga. Dissenting opinion at 6. However, those cases are not
implicated inasmuch as neither one stated that the court need not
state reasons for imposing a consecutive sentence, but only that
“it is presumed that a sentencing court will have considered all
_factors before imposing concurrent or consecutive terms of
imprisonment under HRS § 706-606 (1993).” Vel1ina, 106 Hawafi at
449, 106 P.3d at 372 (quoting Tauiliili, 96 Hawafi at 199-200, 29
P.3d 914, 918-19) (emphasis added). That today's holding does
not call into question the decisions in those cases highlights
the fact, then, that this case does ppg violate the doctrine of
stare decisis. Accordingly, the rule we announce is consistent
with the statement of the lCA in Sinagoga that “[w]hile there is
no reguirement that the court recite its findings on the record
for each of the factors set forth in HRS § 706-606, the Hawafi
Supreme Court has recommended that a sentencing court state the
reasons for its sentence.” 81 Hawafi at 428, 918 P.2d at 235
(emphasis added)f ln light of the considerations previously
discussed, it is appropriate to now make this court’s
recommendation in Sinagoga concrete.
s°(...continued_) '
any more than Sinagoga did. Although specific findings of fact are not
required, this opinion does require that sentencing courts state the reasons
'for imposing consecutive sentences.
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Because the dissent’s characterization of this court’s
holding as a violation of the doctrine of stare decisis is not
justified, there is no necessity to show “some compelling
justification.” Dissenting opinion at 6 (quoting State v.
Garcia, 96 HawaiU.200, 206, 29 P.3d 919, 925 (200l)) (emphasis
omitted). Furthermore, the dissent’s reference to Garcia is
incorrect, as this court’s discussion was in the context of
addressing the prosecution’s argument that two prior decisions of
this court, State v. Wilsony 92 HawaiT.45, 987 P.2d 268 (1999),
and Gray v. Admin. Dir. of the Court, 84 Hawafi 138, 931 P.2d 580(1997), “were wron 1 decided,” and should be “overrulled|.”
Garcia, 96 HawaiYi at 205, 29 P.3d at 924 (emphases added); ppp;
Bynum v. Magno, 106 Hawafi 81, 92 n.24, 101 P.3d 1l49, 1160 n.24
(2004) (citing, gpgpg pggp, Garcia and concluding that “the
compelling justification standard as to overturning precedent is
inapplicable” because “[t]hat standard has been applied where,
specific precedent is overturned”) (citations omitted) (emphasis
added). As discussed pppgp, in this case, we do not conclude
that ppg or Sinagoga was wrongly decided. Thus, the dissent
fails to show which specific precedent, much less ppg and
Sinagoga, is overturned. §pp ggg at 92, 101 P.3d at 1l60. The
numerous cases cited pppgp, wherein this court has affirmed, but
accepted certiorari and issued an opinion to clarify or to
address a matter of first impression, as well as this court’s
holding in Lau, belie the dissent’s assertion that our holding
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“exploits the certiorari process” and “has no precedential
value.” Dissenting opinion at 34.
B.
The dissent asserts that it is unable to see how the
mandate to give sentencing reasons on the record can “co-exist”
with the presumption in Sinagoga that a sentencing court has
reviewed all the statutory factors. lpg at 27, The dissent
asks, “[S]hould the reviewing court apply the presumption
inasmuch as the presumption is still good law? Or, would a
” 4 lndeed, in the past we have similarly adopted prophylactic rules
governing the conduct of criminal trials and sentencing.‘ For example, in
Tachibana v. State, 79 HawaiT 226, 236, 900 P.2d 1293, 1303 (1995), despite
the absence of any existing rule dictated by precedent, “we h[e]ld that[,] in
order to protect the right to testify under the Hawafi Constitution, trial
courts must advise criminal defendants of their right to testify and must
obtain an on-the-record waiver of that right in every case in which the
defendant does not testify[.]” ln that case, this court declined to apply the
new rule to the case under review because ~
while a primary purpose of placing the waiver on the record
is to improve the accuracy of verdicts, a silent record in a
trial held before our decision today does not in and of
itself raise serious doubts about the accuracy of the guilty
verdict. We believe it likely that retroactive application '
would be a significant burden on the administration of
justice,
lpg at 238, 900 P.2d at 1305 (quotation marks, ellipses and brackets omitted)
(emphasis added). Similarly, with respect to the requirement announced
herein, a prior record that is silent as to the court’s reasoning for imposing
a consecutive as opposed to a concurrent sentence does not clearly raise
doubts about the fairness of the sentence opposed, or necessarily indicate
that the judge did not engage in the considerations required by HRS § 706-
606.5.
However, here, as in Tachibana, the rule set forth for future
application is appropriate inasmuch as “the burden would be relatively
minimal[,]” and by placing his or her reasoning on the record, “a trial judge
would establish a record that would effectively settle” issues regarding the
fairness of the sentence imposed, “and thereby relieve the trial judge of
extended post-conviction proceedings[,]” lpg at 235, 900 P.2d at l302, while
facilitating efficient appellate review, lpg at 233, 900 P.2d at 1300. Thus,
“the . . . procedure would best serve all of the interests of all parties in
the administration of justice.” lpg at 235, 900 P.2d at l302, Despite this
court’s affirmance of the circuit court in Tachibana, there can be no question
that the colloquy rule set forth for future application was ppg “dictum,” just
as our affirmance here can leave no doubt that the requirement of giving
reasons is mandated for the future. ‘
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violation of the Hussein ‘rule’ require the reviewing court to
ignore the presumption, vacate the sentence imposed, and remand
the case for a new sentencing hearing?” lpg 1
Contrary to the dissent’s assertion, not only can the
rule and the presumption easily “co-exist,” but the analysis in
such cases is straightforward. ln fact, Sinagoga provides an apt
example of how the requirement that the court state reasons for
its sentence, and the presumption that the court has considered
the HRS § 706-606 factors, can co-exist. ln Sina o a, the lCA
discussed at some length “[t]he fact that a court does not orally
address every factor stated in HRS § 706-606 at the time of
sentencing does not mean the court failed to consider those
factors.” 81 Hawafi at 428, 918 P.2d at 235 (emphases added);
That court noted that “under HRS § 706-668.5, judges
are duty-bound to consider HRS § 706-606 factors before imposing
sentence[,]” but that, “absent clear evidence to the contrary, it
is presumed that a sentencing court . . . will have considered
all the factors[.]” lpg (emphasis added).
Sinagoga proceeded to discuss, separate and apart from
its discussion of whether all factors had been considered, the
distinct question of whether the judge had stated reasons for his
decision to impose the sentences consecutively, as opposed to
concurrently, stating that “[w]hile there is no reguirement that
the court recite its findings on the record for each of the 1
factors set forth in HRS § 706-606, the Hawafi Supreme Court has
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recommended that a sentencing court state the reasons for its
sentence.” lpg (emphases added). The lCA’s discussion in
Sinagoga shows that it manifestly (and correctly) believed that
“stat[ing] reasons for the court’s sentence[,]” and
“acknowledg[ing all factors] on the record” are distinct
requirements. Sinagoga expressed a preference that the
sentencing court do ppgp. However, that court did not need to
address the propriety of setting forth reasons for the
consecutive sentence in that particular case, because the judge
had done so, and thus, there was no necessity to address that
issue. Sinagoga then presents a prime example of a situation
where the court stated reasons on the record, thereby satisfying
the rule set forth herein, ppg, despite the fact that the judge
did not explicitly address each HRS § 706-606 factor, “[b]ecause
no clear evidence to the contrary exist[ed], [the lCA could not]
say, under the circumstances, that the court failed to consider
all the factors set forth in HRS § 706-606.” lpg at 429, 918
P.2d at 230 (emphasis added). Hence, contrary to the dissent’s
assertion, it is entirely possible for the rule that reasons be
given to “co-exist with the presumption” in Sinagoga, dissenting
opinion at 29, as it did in that very case.
The dissent’s argument apparently stems from its
confusion between the requirement in HRS § 706-668.5 that the
court consider all of the HRS § 706-606 factors before imposing a
consecutive pg concurrent sentence, and the requirement expressed
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herein that the court state its reasons for imposing a
consecutive sentence. As recognized in Sinagoga, and noted
above, these are two separate matters, Whether or not the court
satisfies the requirement that reasons be given, the presumption
that all HRS § 706-606 factors were considered remains, absent
clear evidence to the contrary.
However, merely because all of the factors were
considered does not mean that the requirement of giving reasons
was satisfied. A presumption that the court considered the HRS
§ 706-606 factors does not indicate what the judge’s rationale
was in arriving at the conclusion that a consecutive sentence
should be entered.; As noted before, an explanation of the
court’s rationale is intended to inform the defendant, the
victim, and the public of the reasons why the sentence was
entered, and to aid in appellate review.
Thus, to answer the dissent’s questions as to how the
presumption and rule can “co-exist” and what appellate courts
should do where the “sentencing court fails to state its
reasons,” dissenting opinion at 26, the reviewing court should
(l) apply the presumption that the court considered all of the
HRS § 706-606 factors, (2) and hold that the sentencing court
erred by not stating the reasons for the sentence imposed on the
record, in violation of Hussein, Because the two requirements
are separate, no “dilemma” or “confusion” results.
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Moreover, it is neither “unfair” nor “insulting” to
review the exercise of that discretion for abuse as the dissent
'maintains. ld. at 28. As discussed supra, this court has
reviewed the decisions of sentencing courts for abuse of
discretion numerous times and such review is entirely
appropriate. See, e1g., State v. Ortiz, 91`Hawafi 181, 195, 981
P.2d 1127, 1141 (l999) (stating that “in order to engage in
meaningful review of a sentencing court’s decision without
involving ourselves unduly in the exercise of the court’s
discretion, we require the sentencing court to ‘. . . enter into
the record all findings of fact which are necessary to its
decision'”) (brackets, internal quotation marks, and citations
omitted); State v. Okumura, 78 Hawafi 383, 413, 894 P.2d 80, 110
(1995) (remanding for re-sentencing because court did not state
its reasons for imposing an extended term of sentence on the
record); State v. Tamura, 63 Haw. 636, 638, 633 P.2d 1115, 1118
(1981) (concluding that because the court stated its reasons for
imposing an extended term of sentence on the record, the standard
set forth in State v. Huelsman, 50 Haw. 71, 588 P.2d 394 (1978j,
was satisfied). Therefore, the dissent’s assertion that such
review is “unfair” or “insulting” is unfounded.
XIl.
This is not the first time this court has mandated that
sentencing courts state their reasons for imposing an enhanced
sentence on the record, This court has held that reasons, in
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addition to findings of fact, must be placed on the record when
extended terms of imprisonment were imposed. This court stated:
[ln all] cases in which appeals may hereafter be taken from
extended term sentences, the sentencing court shall state on
the record its reasons for determining that commitment of
the defendant for an extended term is necessary for
protection of the public ppp shall enter into the record all
findings of fact which are necessary to its decision.
Huelsman, 60 Haw. at 9l, 588 P.2d at 407 (emphases added).
Huelsman involved the appellant's appeal of the court’s
imposition of an extended term sentence pursuant to HRS § 706-
662.” lpg at 73, 588 P.2d at 397. This court had previously
vacated the appellant's sentence in a prior disposition and
remanded for resentencing. lpg At the resentencing hearing, the
sentencing court did not state any “of the facts upon which [it]
relied, and provided only a conclusory finding in each case[.]”
lpg at 75, 588 P.2d at 398. The sentencing court merely stated
that “the evidence shows beyond a,reasonable doubt that the
defendant is a multiple offender whose criminality is so
extensive that a sentence of imprisonment for an extended term is
warranted as required under Section [706-]662(4) of the Hawaii
Penal Code.” ld. (citations omitted)
” HRS 706-662 (1978) stated in relevant part:
The court may sentence a person who has been convicted of a
felony to an extended term of imprisonment if it finds one
or more of the grounds specified in this section. The
finding of the court shall be incorporated into the record,
(4) Multiple offender. The defendant is a multiple
offender whose criminality was so extensive that a sentence
of imprisonment for an extended term is warranted.
Huelsman, 60 Haw. at 73 n.2, 588 P.2d at 396 n.2 (emphasis added).
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This court concluded that the language of the then
extended sentencing statute, HRS § 706-662(4), conferred upon
sentencing judges unfettered discretion in how to sentence,
thereby “fail[ing] to provide due process” guarantees against
arbitrary sentences. lpg at 89, 588 P.2d at 405. Subsection (4)
differed from the three other subsections contained in HRS § 706-
662 that required a finding by the court that additional
confinement of the defendant “is necessary for the protection of
the public.” `HRS § 706-662 (1978). HRS § 706-662(4), on the
other hand, required a finding that “[t]he defendant is a
multiple offender whose criminality was so extensive that a
sentence of imprisonment for an extended term is warranted[,]”
without any reference to the protection of the public. HRS
§ 706-662(4) (emphasis added). This court concluded that the
term “warranted” alone was unconstitutionally vague, thus
violating the due process clause of the Hawafi Constitution.
Huelsman, 60 Haw. at 89, 588 P.2d at 405.
Rather than declare the statute unconstitutional, this
court, “by judicial construction[,]” “remedied” the language of
“HRS § 706-662 by substituting the unduly broad term ‘warranted’
[with] the more limited standard ‘necessary for the protection of
the public.’” lpg at 90, 588 P.2d at 406. Although not
necessary to the disposition of the case, Huelsman concluded that
“[t]he practice followed by sentencing courts of entering
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conclusory findings” in regard to sentencing under HRS § 706-662
“tend[ed] to force upon this court a choice between treating the
sentencing decision as essentially non-reviewable or involving
itself unduly in the exercise of sentencing discretion.” lpg at
9l, 588 P.2d at 407. As such, this court mandated that a
sentencing court must “state on the record its reasons” for
imposing an extended term of sentence and include in the record
“the [PSl] and all evidence considered by the sentencing court”
in making its decision. lpg (emphasis added).
Huelsman is analogous to this case. The rule announced
in Huelsman cannot be considered mere dicta as it expressly sets
forth a requirement to be followed by sentencing courts.
Furthermore, the same concerns regarding this court’s ability to
review a court’s decision to impose an extended term of
imprisonment apply with equal weight to the imposition of
consecutive sentences. Nevertheless, the dissent maintains that
although the Huelsman court did set forth a new rule
“mandat[ing] that sentencing courts state their reasons for
imposing an [extended] sentence on the record,” majority op.
at 64, such rule was . . . directly relevant to the
disposition of the defendant's case. . . . [T]he court
vacated the defendant's sentence and remanded the case for
resentencing in conformity with its opinion.
Dissenting opinion at 19 (citing 60 Haw. at 92, 588 P.2d at 407)
(some brackets in original and some added) (emphasis omitted).
However, as indicated before, the requirement regarding reasons
will be directly applicable to Petitioner's probable HRPP Rule 35
motion in this case. lndeed, this court’s decision in Huelsman
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and subsequent cases are precedent for the mandate that reasons
be given.”
1 Xlll.
The dissent’s third argument is that directing that
sentencing courts place reasons on the record would result in
courts violating the PSl confidentiality provision of HRS § 806-
73. lpg at 2. The dissent concedes that such concerns have
never been raised previously, and in fact this court has
“strongly recommended,” giving reasons since at least 1992. gpp,
73 Haw. at 263, 831 P.2d at 525. The dissent’s objection is
groundless because (l) the plain language of HRS § 806-73 (Supp.
, ” see also state v. Me1ear, 63 Haw. 488, 499, 630 P.2d 619, 628
(1981) (citing Huelsman’s adoption of “a two-step process for the imposition
of the extended term sentence”); Tamura, 63 Haw. at 638, 633 P.2d at 1117-18
(citing Huelsman for the proposition that “the sentencing court shall state on
the record its reasons for determining that commitment of the defendant for an
extended term is necessary for protection of the public and shall enter into
the record all findings of fact which are necessary to its decision”)
(quotation marks omitted); State v. Alexander, 62 Haw. 112, 118, 612 P.2d 110,
114 (1980) (citing Huelsman for the proposition that a sentencing court “may
appropriately conduct an inquiry broad in scope, largely unlimited either as
pto the kind of information he may consider, or the source from which it may
come”) (quotation marks omitted); State v. Davis, 60 Haw. 100, 102, 588 P.2d
409, 411 (1978) (following Huelsman, stating that a trial court’s use of the
PSl “constituted permissible use of hearsay under the [extended term sentence]
statute”); State v. Ortez, 60 Haw. 107, l24, 588 P.2d 898, 909 (1978)
(expanding the Huelsman PSl requirement, stating that “in all other cases in
which appeals may hereafter be taken from the review of sentences under Act
188, the reviewing court shall state on the record the reasons for its
determinations and shall enter into the record all findings of fact which are
necessary to its decision” and, furtherm0re, “[t]he record in each case shall
include any [PSl]”); State v. Sanchez, 82 Hawafi 517, 535, 923 P.2d 934, 952
(App. l996) (citing Huelsman for the proposition that “the sentencing court
shall state on the record its reasons for determining that commitment of the
defendant for an extended term is necessary for the protection of the public
and shall enter into the record all findings of fact which are necessary to
its decision” and further stated that “[t]he record in each such case shall
include the [PSl] and all evidence considered by the sentencing court”)
(quotation marks omitted); State v. Schroeder, 10 Haw. App. 535, 540-4l, 880
P.2d 208, 210-11 (l992) (citing Huelsman to support the conclusion that “the
material presented to the court [in the PSl] provided sufficient information
for the court to make a reasoned judgment” as to sentencing) (citation
omittedL
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2006) mandates that the PSl itself be kept confidential; (2) HRS
A§ 806-73(b)(3l(A) expressly contemplates divulging information
contained in the PSl under HRS § 706-604 (Supp. 2006); (3)
eenetruing sas § 806-73 ip Qa;; materia with HRS § 706-604<2),
such information may be imparted in the limited context of the
sentencing hearing and when imposing sentence; and (4) our case
law confirms the foregoing.
A.
HRS § 806-73(b) provides in relevant part that
La]ll adult probation records shall be confidential and
shall not be deemed to be public records. As used in this
section, the term “records” includes, but is not limited to,
all records made by any adult probation officer in the
course of performing the probation officer's official
duties.` The records, or the content of the records, shall
be divulged only as follows:
(3) A copy of a presentence report or investigative
report shall be provided only to:
(A) The persons or entities named in section
lQQjY4;
B) The Hawaii paroling authority;
(C) Any psychiatrist, psychologist, or other
treatment practitioner who is treating the
defendant pursuant to a court order or
parole order for that treatment;
(D) The intake service centers;
(E) ln accordance with applicable law, persons
or entities doing research; and
(F) Any Hawaii state adult probation officer
or adult probation officer of another
state or federal jurisdiction who:
(i) ls engaged in the supervision of a
defendant or offender convicted and
sentenced in the courts of Hawaii;
or
(ii) ls engaged in the preparation of a
report for a court regarding a
defendant or offender convicted and
sentenced in the courts of HawaiTJ
(5) Notwithstanding subsection (b)(3), upon
notice to the defendant, records and
information relating to the defendant's
risk assessment and need for treatment
services or information related to the
defendant's past treatment and assessments
may be provided to:
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(A) A case management, assessment or
treatment service provider assigned
by adult probation to service the
defendant; provided that such
information shall be given only upon
the acceptance or admittance of the
defendant into a treatment program;
(E) Correctional case manager,
‘ jcorrectional unit manager, and
parole officers involved with the
defendant's treatment or
supervision; and
(C) ln accordance with applicable law,
1 persons or entities doing research.
(6) Any person, agency, or entity'receiving
records, or contents of records, pursuant
~to this subsection shall be subject to the
same restrictions on disclosure of the
records as Hawaii state adult probation
offices.
(7) Any person who uses the information
covered by this subsection for purposes`
inconsistent with the intent of this
subsection or outside of the scope of
their official duties shall be fined no
more than $500.
(Emphases added.)
The terms “confidential” and “public record” are not
defined in the statute, Black’s Law Dictionary defines
“confidential” as “meant to be kept secret,” and
“confidentiality” as “the state of having the dissemination of
certain information restricted.” Black’s Law Dictionary 318 (8th
edp 2004) (emphases added). “Public” is defined as “ o|pen or
available for all to use, share, or enjoy[,]” lpg at 1264
(emphasis added), and “public record” is defined as “ al record
that a governmental unit is required by law to keep[,]” and is
“generally open to view by the public[,]” id. at 1301 (emphases
added) .34
" The dissent does not attempt to define the terms “confidential” or
“public record” but merely assumes that the term “confidential” must preclude
any reference to such information at the sentencing hearing. The dissent’s
3 (c0ndnued")
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Under HRS § 806-73, then, the records themselves,
including “[a] copy of a [PSl],” are manifestly subject to
“restricted” dissemination, and are not to be made “available to
all to use.” See State v. Sumera, 97 Hawafi 430, 433 n.4, 39
P.3d 557, 560 n.4 (2002) (indicating that the prosecution’s
inclusion of a copy of the PSl appended to its Answering Brief
might be violative of HRS § 806-73, by noting that, despite not
objection from the defendant, “[a]ffixing the [PSl] to an
appellate brief, which is itself a public document, makes this
confidential document part of the public record and available to
the general public”).
However, under HRS § 806-73(b)(3)(A), the PSl “shall be
provided” to the “persons or entities named in [HRS §] 706-604.”
HRS § 706-604(2) states that
[t]he court shall furnish to the defendant or the
defendant's counsel and to the prosecuting attorney a copy
of the report of any pre-sentence diagnosis or
psychological, psychiatric, or other medical examination ppp
afford fair opportunity, if the defendant or the prosecuting
attorney so requests, to controvert or supplement them, lpg
court shall amend or order the amendment of.the 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 or other amendments,
including additions, are made. '
(Emphases added.) Thus, in connection with HRS § 806-
73(b)(3)(A), HRS § 706-604(2) mandates that “[t]he court shall
furnish to the defendant or the defendant's counsel and to the
“(...continued)
extremely broad reading of the term “confidential” would seem to preclude the
necessity of the admonition in the statute that probation records “shall not
be deemed to be public records,” thus rendering that phrase a nullity.
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prosecuting attorney a copy of the report of any pre-sentenceA
diagnosis[.]” Manifestly, HRS § 706-604(2) also indicates that
the court has access to a copy of the PSl inasmuch as the court
is required to “furnish” a copy to the parties, and also to
“amend” the report when necessary. See id.; see also HRS § 706-
601(1) (Supp. 2006) (requiring that “the court shall order a
pre-sentence correctional diagnosis of the defendant and accord
due consideration to a written report of the diagnosis before
imposing sentence”); HRS § 706-602(1) (1993 & Supp. 2006)
(mandating that “[t]he pre-sentence diagnosis and report shall be
made by personnel assigned to the court”).
B.
All penal sentences must be imposed in accordance with
HRS chapter 706. HRS § 706-600 (1993). HRS § 706-602(1)
provides that, in the sentencing procedure, the PSl is prepared
“by personnel assigned to the court, intake service center or
other agency designated by the court[.]” The PSl must contain
the following information:
(a) An analysis of the circumstances attending the
commission of the crime;
(b) The defendant's history of delinquency or criminality,
physical and mental condition, family situation and
background, economic status and capacity to make
restitution or to make reparation to the victim or
victims of the defendant's crimes for loss or damage
caused therebyf education, occupation, and personal
habits;
(c) lnformation made available by the victim or other
source concerning the effect that the crime committed
by the defendant has had upon said victim, including
but not limited to, any physical or psychological harm
or financial loss suffered;
'(d) lnformation concerning defendant's compliance or
non-compliance with any order issued under section
806-l1; and
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(e) Any other matters that the reporting person or agency
deems relevant or the court directs to be included.
HRS § 706-602(l) (emphases added). Hence, a wide variety of
information is contained in the report, much of which may be
public by nature. For instance, the circumstances of the crime,
the defendant's criminal record, education, and employment
history are types of information that would generally be
available to the public or through alternative means. The victim
impact statement is often made a part of the PSl and the victim
or the victim’s family is given the opportunity to be heard in
open court at the hearing itself. HRS § 706-604(3) (1993).
As noted, in the sentencing process, HRS § 706-604(2)
“afford[s] fair opportunity, if the defendant or the prosecuting
attorney so requests, to controvert or supplement [the PSl].”
HRS § 706-604(2) thus guarantees both the defendant and the
prosecution access to the PSl and an opportunity to challenge or
to add to the information therein. See also State v. Paaaina, 67
Haw. 408, 410, 689 P.2d 754, 757 (1984) (holding that, although
defendant is not entitled access to the probation officer's
recommendation itselfy he or she pppg be provided notice of any
factual information therein which is not already contained in the
PSl, because “HRS §§ 706-602 and 706-604 clearly contemplate that
a defendant will have access to all factual information used in
sentencing” (emphasis in original)); Hawai7i Revised Code of
Judicial Conduct Rule 2.9(a)(3) (providing that “[a] judge may
consult with court staff and court officials whose functions are
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to aid the judge in carrying out the judge’s adjudicative
responsibilities, provided that any factual information received
by the judge that is not part of the record is timelypdisclosed
to the parties”) (emphasis added). Additionally, the court is
required to “amend or order the amendment of the 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 or other amendments, including additions, are
made.” HRS § 706-604(2).
The Commentary on HRS § 706-604(2) emphasizes that the
entire report must be provided to the defendant and any
“information the source of which is regarded as confidential”
cannot be “insert[edl” in the PSl:
The right to controvert is meaningless unless the report
itself. rather than the factual contents and conclusions, is
made available to the defendant. Even more ludicrous would
be the insertion into the report of information the source
of which is regarded as confidential. The defendant, under
such circumstances could not be expected to controvert such
information by showing, for example, that the source was
unreliable or biased.
(Emphasis added.) Thus, HRS § 706-604(2) precludes “the
insertion of . . . information” obtained from “confidential”
sources as “ludicrous” inasmuch as the defendant has “the right
to confront” and such a right would be “meaningless” were the
sources not disclosed. See State v. Nobriga, 56 Haw. 75, 78, 527
P.2d 1269, 1271 (1974) (concluding that “history of delinquency”
in HRS § 706-602(l) authorizes the use of a defendant's juvenile
record in the PSl, and such use does not violate the
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confidentiality provisions in HRS chapter 571 governing the
family courts). By definition, then, the PSl is not a depository
for information that cannot be discussed in a sentencing hearing.
See State v. Lessary, 83 HawaiH_280, 285, 925 P.2d l104, 1109
(App. l996) (holding that “[the d]efendant’s right to a ‘fair
opportunity’ to ‘controvert or supplement’ the pre-sentence
report” includes the right to call the probation officer to
testify at the sentencing hearing regarding the officer's reasons
for addressing certain factors in the report). Moreover, because
the statute directs the court to “amend or order the amendment of
the report upon finding that any correction, modification, or
addition is needed,” HRS § 706-604(2l, the court may address the
contents of the PSl on the record,
C.
Because they both concern PSls, HRS §§ 806-73 and 706-
604 must be construed lp ppgl materia, _pp Barnett, 91 Hawafi at
3l, 979 P.2d at l057, §ppgp at 15; §§§ al§p Kaman§o, 118 HawaiH
at 218, 188 P.3d at 732 (“[S]tatutes [that] relate to sentencing
should be construed lp ppgl materia.”). But, “where there
is a plainly irreconcilable conflict between a general and a
specific statute concerning the same subject matter, the specific
will be favored. However, where the statutes simply overlap in
their application, effect will be given to both if possible, as
repeal by implication is disfavored.” Richardson v. City &
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County of Honolulu, 76 HawaiH.46, 55, 868 P.2d 1193, 1202 (1994)
(quotation marks and citation omitted).
Manifestly, HRS § 806-73 contemplates HRS § 706-604(2)
as encompassing a limited qualification of the PSl’s
1confidentiality, inasmuch as HRS § 806-73(b)(3)(A) states that
“[a] copy of a presentence report or investigative report shall
be provided [] to[ t]he persons or entities named in section
706-604[.]” Construing the two statutes together indicates that
HRS § 706-604(2) is an exception to HRS § 806-73 for purposes of
divulging information in the PSl, inasmuch as, as discussed
gppgg, HRS § 706-604(2) allows (l) controversion and
supplementation of the PSl by the parties, (2) amendment by the
court, and (3) examination of the probation officer who prepared
the report. §gg Lessary, 83 Hawafi at 285, 925 P.2d at 1109.
The Commentary on HRS § 706-604(2) further indicates that the
source of information in the report may not be confidential, and
that the sentencing phase is as important as the determination of
guilt. Thus, HRS § 806-73 incorporates the PSl uses permitted by
HRS § 706-604(2) in sentencing proceedings. lnasmuch as HRS
§ 806-73 apparently contemplates the uses of the PSl as embodied
in HRS § 706-604(2), the two statutes must be read together.”
” While HRS § 806-73 deals broadly with the “duties and powers of
‘ probation officers” and the confidentiality of “adult probation records,” HRS
§ 706-604(2) deals more specifically with a particular exception to the
confidentiality of the PSl, which is a specific type of probation record.
Thus, assuming arguendo, in the case of any conflict, HRS § 706-604, which is
the more specific statute, would control.
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D.
Additionally, our courts have sanctioned the use of
information contained in the PSl in open court in determining the
proper sentence to be imposed, and this court has never held that
such procedure violates HRS § 806-73 in nearly twenty-five years.
For instance, in State v. Heggland, 118 HawaiH_425, 441, 193 P.3d
341, 357 (2008), one of the issues on appeal was whether there
was sufficient competent evidence at sentencing of the date of
Heggland’s sentencing for a prior conviction in Colorado. This
court noted that the evidence consisted of “(1) [a] document
entitled lntegrated Colorado Online Network (lCON),” “(2) the
testimony of [the] parole officer[,]” and “(3) the presentence
diagnosis and report[.]” lpg at 442, 193 P.3d at 358 (emphasis
added). This court set forth in detail the information regarding
the Colorado conviction that was contained in the PSl. §gg lpg
at 443, 193 P.3d at 359. Significantly, this court noted that
“Lr1eferences to the [PSl1 were made at the . . . sentencing
hearing by the court and counsel, but Heggland did not raise any
challenge to the sentence date [for the prior conviction]
contained in the [PSl].” lpg (emphasis added). This court
further noted that Heggland had put other corrections “on the
record” both at the sentencing hearing and in prior appearances.
lpg at 443 n.17, 193 P.3d at 359 n.17 (emphasis added).
As to the propriety of employing the information
contained in the PSl for sentencing, this court recently
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emphasized that “[t]he trial court is statutorily required to
‘accord due consideration’” to the PSl, and held that the court
“abused its discretion in failing to accord the evidence its
proper weight.” lpg at 446, 193 P.3d at 362 (quoting HRS
§ 706-601 (Supp. 2003)). Based on the foregoing, in Heggland,
the contents of the PSl were a subject of discussion at the
sentencing hearing and in this court’s opinion on appeal.
lndeed, this court held that the sentencing court should have
relied on information in the PSl as competent evidence. pp
member of this court objected to the use of the PSl based on HRS
§ 806-73. Heggland illustrates the importance of the information
contained in the PSl in conducting and/or reviewing a sentencing
hearing and, thus, that the dissent’s position is erroneous.“
“ The dissent argues Heggland “is inapposite because . . .
convictions although contained in a PSl report, can be ascertained from the
public records[.]” Dissenting opinion at 29 n.12. However, the majority in
Heggland opined that “the combined evidence” including the PSl was pivotal and
should have been considered by the sentencing court. 118 Hawaii at 446, 193
P.3d at 362. This court quoted the PSl not merely to ascertain the subject
prior conviction date of the defendant, but included the defendant's personal
characterizations of his various convictions.
[Heggland] said he was sentenced in 1997 for the
Arizona case first. (lt is not known if he was sentenced as
an adult.) He was then extradited to Colorado and arrested
on November 5, 1997. On November 14, 1997, he was sentenced
to five years [sic] prison for Conspiracy to Commit
Aggravated Robbery (Count llI), concurrent with his Arizona
sentence, with credit for 323 days time served. The
remaining Counts were dismissed. He noted that he got a
stiffer sentence than his codefendants as he was the one who
possessed the handgun. After sentencing in Colorado, pg
said he was returned to Arizona to serve his prison term.
Due to misconducts fsic], he ended up serving a longer
sentence, four years nine months.
ld. at 443, 193 P.3d at 359 (brackets in original) (emphasis omitted and
emphases added).
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§
State v. Chavira, No. 29082, 2009 WL 458772 (Haw. App.
Feb. 25, 2009) (SDO), further demonstrates the use of information
in the PSl both at the sentencing hearing and on appeal. ln that
case, the lCA, in the context of reviewing Chavira's challenge to
the circuit court’s sentencing decision, reviewed on the record
the pertinent information contained in the PSl. lpg at *1. ln
that connection the lCA stated that
Chavira's Sentencing Statement, which was made part of the
[PSl] upon his request, brought up the issue of Chavira's
early involvement with gangs, alcohol, and drugs while he
was growing up in California and explained the factors that
had caused that involvement¢ including his parents' own
involvement in a gang. The circuit court acknowledged the
“challenging circumstances” that Chavira faced as a youth,
suggesting that it viewed those circumstances as a
mitigating factor. At no point did the circuit court
indicate that it was imposing a harsher sentence on Chavira
because of his past associations or because of where he was
originally from.
ld. (emphasis added). The lCA concluded that the circuit court
had properly considered the information in the PSl in arriving at
its sentencing decision, holding that
the circuit court’s consideration of Chavira's history of
substance abuse was appropriate, particularly in view of the
role that Chavira's drug use and intoxication played in the
instant offense. Finally, the circuit court appropriately
placed significant emphasis on the circumstances of the
offense, noting that it “invo1ved unprovoked conduct, was
extremely serious in nature, [and] involved the potential
loss of life.”
Accordingly, the circuit court did not abuse its
discretion in sentencing Chavira to consecutive terms of
imprisonment.
ld. at *2 (emphases added).
When a defendant pleads no contest, as Chavira did, or
guilty, there is no source of information available to the
sentencing court for purposes of rendering a reasoned and
personalized sentencing decision, aside from that provided in the
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PSl. §gg Commentary on HRS § 706-601 (“The vast majority of
cases are disposed of upon pleas of guilty. lt is obvious that
in such cases the court has no information upon which to select
between and among various sentencing alternatives.”). Chavira
illustrates the necessity of allowing the sentencing court to
refer to information in the PSl in order (l) to set forth the
courtfs rationale for the sentence chosen, and (2) to provide for
meaningful appellate review. Because there was evidence in the
Chavira record that the sentencing judge conscientiously
considered the defendant's personal and family history, and the
circumstances of the offense, both the prosecution and the
defendant had the opportunity to articulate a position on the
consecutive sentence, and the lCA was able to come to the
informed decision that the court did not abuse its discretion.
The dissent’s view would preclude such a reasoned
approach. Contrary to Heggland and Chavira, the dissent
maintains that the judge should be precluded from relying upon
information in the PSl “such as the defendant's ‘history of
delinquency,’ ‘mental condition,' ‘fami1y situation,’ ‘personal
habits,' or other such information not available from public
records[.]” Dissenting opinion at 27. However, Chavira
manifestly indicates that reliance on such information in the
context of sentencing is appropriate.” See also Nobriga, 56 Haw.
37 The dissent charges that the sentencing court (and apparently the
ICA,) "unwittingly . . . violate[d] . . . the confidentiality of . . . PSl
reports," dissenting opinion at 29_ n.12, without any support and apparently
(continued...)
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at 77, 527 P.2d at 1271 (stating that HRS § 706-602 “was geared
to assist the trial judge at the sentencing stage”) (emphasis
added). Moreover, under HRS § 706-604(2), the defendant or
prosecution is authorized to controvert any of the foregoing
information on the record. However, in the dissent’s view, no
court, no prosecutor, and no defense attorney could reference any
information in the PSl regardless of the type of sentencing
proceeding. Such a rule would unequivocally hamstring
prosecutors and deputy attorney generals from arguing details of'
prior offenses or police reports (which are not pubic records
despite the dissent’s statement to the contrary), or the impact
on a victim. The dissent’s interpretation of the law would
constrain the government significantly in its effort to protect
the safety of the community. Thus, to imply or to assert that
such information cannot be referred to during sentencing is
simply wrong.
The “new ‘rule’,” then, does not place judges “in an
untenable situation” that “they [either] comply with the new
‘rule’ by reciting their specific reasoning . . . and, thus, risk
violating the confidentiality of the [PSl]; or . . . ignore the
majority’s new mandate and not recite specifics, thereby
preserving confidentiality[,]” dissenting opinion at 27-28, as
’7(...c0ntinued)
on pure speculation._ Moreover, as opposed to the dissent’s view, the ICA
noted that reference to the defendant's personal and family history
"suggest[ed] that [the sentencing court] viewed those circumstances as a
mitigating factor." Chavira,` 2009 WL 458772, at *1.
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the dissent would have it. Sentencing judges will not “risk
violating the confidentiality of the [PSl],” lpg, because it is
entirely appropriate, indeed reguired, that judges utilize
information from the PSl in determining the appropriate sentence,
and such use of the PSl by the court in the context of sentencing
is expressly allowed by the statutes.” §gg HRS § 706-601
(requiring that the court “accord due consideration to a written
report of the diagnosis before imposing sentence”); HRS § 706-
604(2) (mandating that “[t]he court shall amend or order the
»amendment of the report upon finding that any correction,
modification, or addition is needed”); HRS § 806-73(b)(3)(A)
(mandating that “[a] copy of a [PSl] shall be provided” to “[t]he
persons or entities named in section 706-604”); ggg glgp Nobriga,
56 Haw. at 75, 81, 527 P.2d at 1270, 1273 (holding that “a trial
judge at the sentencing stage may consider a [PSl] which includes
an adult-defendant's juvenile court record”).
E.
The foregoing cases demonstrate that the PSl is the
pertinent source of information in the sentencing process as
contemplated in HRS §§ 706-60l, -602, and -604. See HRS § 706-
601 (dictating that in felony cases and for youthful offenders,
” The dissent cites to State v. Pantoja, 89 HawaiH.492, 974 P.2d
1082 (l999), State v. March, 94 HawaiH 250, 11 P.3d 1094 (2000), State v,
Akana, 10 Haw. App. 381, 876 P.2d 1331 (1994), and Solem, 463 U.S. at 290,
dissenting opinion at 2l, for the general proposition that sentencing courts
have substantial discretion to impose sentences on defendants. Our holding
does not in any way conflict with this proposition. The requirement that
sentencing courts state their reasons does not interfere with their
discretion, but only ensures that the discretion has not been abused.
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“the court shall order a pre-sentence correctional diagnosis of
the defendant and accord due consideration to a written report of
the diagnosis before imposing sentence”) (emphases added); ggg
glgp Nobriga, 56 Haw. at 77, 527 P.2d at 1270 (holding that, in
the context of a sentencing hearing, HRS § 706-602 governs oyer~
provisions in the Family Court Act that “afford certain
protections to juveniles involved in adversary proceedings”). As
indicated above, in change-of-plea cases, such as in Heggland and
Chavira, the PSl will often be the sole source of relevant
information to inform the court’s sentencing decision. The
Commentary on HRS § 706-601 explains that “[t]he vast majority of
cases are disposed of upon pleas of guilty[,]” and “in such cases
the court has no information upon which to select between and
among various sentencing alternatives.” The Commentary further
emphasizes that “[i]n any system which vests discretion in the
sentencing authority, it is necessary that the authority have
sufficient and accurate information so that it may rationally
exercise its discretion.” lpg
Thus, “it is extremely unlikely that without a special
provision providing for a [PSl] that the relevant information
will be brought to the attention of the court.” lpg; ggg also
Nobriga, 56 Haw; at 81, 527 P.2d at 1273. Even “where the case
is tried before the sentencing judge, the evidence at trial is
not likely to produce information relevant to sentencing a
subsequently convicted defendant[,]” inasmuch as such information
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is “not likely to be fully explored in an adversary proceeding
designed to decide the issue of guilt.” Commentary on 706-601.
We believe that in order to “rationally exercise its discretion,”
lpg, the court is not only permitted to, but required to, employ
the PSl in the sentencing hearing. lndeed, HRS § 706-604(2)
explicitly allows the parties and the court to reference the PSl,
ggg Lessar , 83 Hawafi at 285, 925 P.2d at 1l09, Heggland, 118
Hawaid at 443, 193 P.3d at 359, Chavira, 2009 WL 458772 at *1,
and to be heard at the sentencing hearing regarding the contents
of the PSl, and HRS § 806-73 does not prohibit, but permits, the
use of information contained in the PSl at sentencing. The
dissent’s position in this regard, thus, is entirely
unsupportable. 2
F.
1.
The dissent points out that when the confidentiality
provision was being considered in l985, the Conference Committee
on the bill stated that
[r]ecords originated by adult probation officers pursuant to
duties and powers already established in [HRS § 806-73] are
not clearly and expressly confidential, This fact sometimes
hampers adult probation officers in the performance of their
duties. This bill makes explicit the documents which can be
released and to whom they can be released.
Dissenting opinion at 22 (quoting Conf. Comm. Rep. No. 14, in
1985 Senate Journal, at 852; Conf. Comm. Rep. No. 24, in 1985
House Journal, at 894) (emphasis added) (bracketed material
omitted). But, by making the records confidential, the
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legislature was apparently attempting to facilitate probation
officers in the performance of their duties. Plainly, the
sentencing courts' reliance upon information contained2in the PSl
at the sentencing hearing does not in any way “hamper[]” the`
duties of probation officers.
The dissent further cites to the legislative history of
the 2006 amendment to hRS § 806-73 for the proposition that the
PSl is to be kept confidential in large part to protect “a
defendant's privacy.” Dissenting opinion at 23 (quoting S.
Stand. Comm. Rep. No. 2250, in 2006 Senate Journal, at 1134).
The Committee on Judiciary and Hawaiian Affairs had expressed
“concerns ‘regarding a defendant's privacy and the ability of
case management, assessment, or treatment providers to use
information in a defendant's adult probation records to
selectively grant certain defendants access to a treatment
program.’” lpg (quoting S. Stand. Comm. Rep. No. 2250, in 2006
Senate Journal, at 1134). However, in 2006, the legislature in
fact “add[ed] persons and entities to the list of those who are
allowed access to adult probation records[,]” to “[a]llow state
or federal court programs access to a copy of any adult probation
record,” thus increasing the dissemination of such information,
Sen. Stand. Comm. Rep. No. 2250, in 2006 Senate Journal, at 1134.
Relying on those reports, the dissent asserts that
“sentencing judges, in conscientiously attempting to comply with
the majority’s new ‘rule,' may unwittingly violate the
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legislative intent and statutory mandate.” Dissenting opinion at
24-25. However, in the context of the 2006 amendments, the
legislature recognized that “balanc[ing] privacy and other
issues” weighed in favor of expanding the list of those allowed
access to adult probation records. §gg Sen. Stand. Comm. Rep.
Nog 2250, in 2006 Senate Journal, at 1134. lndeed, 2006 was the
same year that HR8 § 706-604(2) was amended to require the court
“upon finding that any correction, modification, or addition is
needed,” to amend the PSl. Similarly, the legislature had
previously determined, when it imposed the confidentiality
requirement in l985, that the balance weighed in favor of an
exception for use of the PSl at sentencing hearings under HRS
§ 706-604. Thus, the dissent’s concerns about violating the
legislative intent are truly unfounded.
2.
The dissent also cites to the commentary to the ppg
Standards for Criminal Justice that relate to the confidentiality
of PSl reports, arguing that this opinion undermines a
defendant's right to privacy.A Dissenting opinion at 24.
However, as noted su ra, the same ABA standards cited by the
dissent explicitly state that a “sentencing court’s statement of
reasons for the sentence imposed is, of course, essential to
meaningful appellate review of sentences.” ABA Standards for
~Sentencing at 212-13, Commentary to Standard 18-5.19 (footnotes
and citations omitted) (emphasis added). lt is difficult to
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discern how the ABA Standards support the dissent’s position that
information in the PSl should not be alluded to on the record
inasmuch as the ABA Standards states
(a) The rules of procedure should provide that counsel for
both parties, the offender, and the victim have the
opportunity to present submissions material to the sentence
to the sentencing court.
(i) Both parties should be permitted to present
evidence and information, to confront and
cross-examine witnesses for the other side, and to
offer rebuttal evidence and,information to that
adduced by the other side, contained in the
presentence report, or otherwise presented to the
sentencing court.
ABA Standards for Sentencing at 203-04, Standard 18-5.17
(emphases added). The ABA Standards further explain that “[t]he
rules should provide that the sentencing court make express
findings on all disputed issues of fact material to the
determination of the sentence imposed.” lpg at 209, Standard
18-5.18(b). Manifestly, the ABA Standards contemplate not only
the discussion of facts contained in the PSl on the record, but
also the presentation of evidence on those facts. lt encourages
courts to address disputed facts as well as make findings
regarding material in the PSl. This contradicts the dissent’s
position with regard to the privacy concerns surrounding the PSl
reports and demonstrates that the contents of the PSl are subject
to inquiry at sentencing hearings.
As noted previously, the dissent’s concerns have
already been weighed by the legislature in its decision to “add
persons and entities to the list of those who are allowed access
to adult probation records[.]” Sen. Stand. Comm. Rep. No. 2250,
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in 2006 Senate Journal, at 1l34. Moreover, the legislature’s
decision to increase the availability of PSl reports came long
after this court had addressed the importance of stating
sentencing reasons on the record in lgp, Sinagoga, Lessary, and
related cases. The legislature has not responded to this court’s
admonition to sentencing courts to give reasons for their
sentences by altering the language in either HRS § 806-73 or HRS
~§ 706-604. “‘Where the legislature fails to act in response to
our statutory interpretation, the consequence is that the
statutory interpretation of the court must be considered to have
the tacit approval of the legislature and the effect of
legis1ation.”” Gray’v. Admin. Dir., 84 Hawaid.at 143 n.9, 931
1P.2d at 585 n.9 (quoting State v. Dannenberg, 74 Haw. 75, 83, 837
P.2d 776, 780 (1992)) (brackets omitted). See also Gorospe v.
Matsui, 72 Haw. 377, 891 P.2d 80 (199l) (stating that “[t]he
legislature has had several years in which to reflect on our
holding [] and to correct our construction of the statutes if it
deems us to be in error”) (citing Honolulu Star Bulletin v.
Burns, 50 Haw. 603, 607, 466 P.2d 171, 173 (l968)). Thus, they
dissent’s views in this regard are unsupported.
G.
The dissent’s position on the confidentiality of PSls
would completely abrogate the language and purpose of HRS § 706-
604 and ignore the qualification on confidentiality in HRS § 806-
73(b)(3)(A). The importance of the availability for and use by
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the prosecution, the defendant, and the court, of the PSl’s
contents in sentencing proceedings is highlighted by the
Commentary’s admonition equating the importance of the
determination of guilt with the sentencing stage, declaring that
“[t]he question of whether the defendant should be sentenced to
imprisonment or to probation is no less significant than the
question of guilt[.]” Commentary on HRS § 706-604(2) (emphasis
added). As noted above, the dissent’s concerns about risks in
violating the confidentiality requirements of the statutes rings
hollow in light the fact that this court has, for nearly two
decades, “urged and strongly recommended” that sentencing courts
state their reasons for imposing a particular sentence. Lau, 73
Haw. at 263, 831 P.2d at 525. The dissent’s attempt to distance
this court from its own forceful language is unconvincing.
0ltimately the fallacy in the dissent’s position is that HRS
§§ 806-73 and 706-604 expressly contemplate that both the defense
and the prosecution may controvert or supplement the PSl, andy
that the court may order amendment of the report. Plainly, then,
the statutes presume that a defendant's personal information may
'be disclosed on the record and in open court at sentencing
hearings to the extent the parties and the court find it
necessary to refer to it. What HRS §§ 806-73(b) and 706-605
prohibit is not such use of the report, but public disclosure and
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access to the PSl itself. We thus respectfully reject the
dissent’s position,
XlV.
Finally, the dissent argues that the majority
unnecessarily addresses Petitioner's HRPP Rule 35 motion inasmuch
as the lCA’s opinion cannot “reasonably be interpreted as
suggesting” Petitioner had lost the opportunity to appeal.
~Dissenting opinion at 31. To the contrary, as discussed supra,
the lCA’s opinion addressed the HRPP Rule 35 issue as though it
was a closed matter, never indicating that the opportunity still
existed, and obviously left Petitioner with the impression that’
the time to file a HRPP Rule 35 motion had passed. A key element
of Petitioner's ineffective assistance claim is that she believed
counsel was ineffective not by virtue of his “mere failure” to
file a HRPP Rule 35 motion generally, but in particular because
he failed to do so “prior to the notice of appeal” and thus, in
her view, forfeited that claim. lt is difficult to discern how
Petitioner's statements that “due diligence required such a
motion[,]” “prior to the notice of appeal[,]” in order to
“retain[] the lower [c]ourt’s jurisdiction[,]” can mean anything
other than that she believed that counsel’s failure to file a
HRPP Rule 35 motion prior to appeal foreclosed any future
opportunities.” Furthermore, because Petitioner's “any sentence”
39 Additionally, Petitioner's entire discussion of the HRPP Rule 35
issue in her Opening Brief reveals that an essential part of her ineffective
assistance claim was that she had been "highly prejudic[ed]" by counsel’s
(connnued")
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argument is both novel and correct, it is important to point out,
in light of the lCA’s decision on ineffective assistance of
counsel, that such an argument may still be raised in a HRPP Rule
35 motion, a proposition that was not expressed by the lCA.
Thus, the dissent’s assertion is incorrect.
XV.
Based on the foregoing, the lCA’s decision is affirmed
consistent with this opinion, and the court’s judgment is
affirmed.
Mary Ann Barnard, on
the application and ` .
briefs, for petitioner/ =’ 35 sid g|%v
defendant-appellant.
Stephen K. Tsushima,. w ’ g /$OZnAQ QQf€0Q(\
Deputy Prosecuting.xW
Attorney, City and
County of Honolulu, on
the brief for respondent/
plaintiff-appellee.
”(...continued)
out that counsel had not in fact forfeited such motion, inasmuch as it could
still be filed following appellate proceedings.
84