State v. Decambra, Jr. ( 2021 )

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
20-MAY-2021
07:57 AM
Dkt. 66 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
STATE OF HAWAI#I, Plaintiff-Appellee,
v.
JOHN HENRY DECAMBRA, JR., Defendant-Appellant
APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT
(CASE NO. 2CPC-19-000722)
SUMMARY DISPOSITION ORDER
(By: Ginoza, Chief Judge, Hiraoka and Nakasone, JJ.)
Defendant-Appellant John Henry Decambra, Jr. (Decambra)
appeals from the Judgment; Conviction and Sentence, filed on June
30, 2020, in the Circuit Court of the Second Circuit (Circuit
Court).1 After pleading no contest pursuant to a plea agreement
with Plaintiff-Appellee State of Hawai#i (State) Decambra was
convicted of Assault in the Second Degree, in violation of Hawaii
Revised Statutes (HRS) § 707-711(1)(a) (Supp. 2016), and
Promoting a Dangerous Drug in the Third Degree, in violation of
HRS § 712-1243(1) (2014). Decambra was sentenced to a five-year
term of imprisonment for each charge, to run concurrently.
On appeal, Decambra contends that the State "breached the
plea agreement by arguing for a sentence of imprisonment of more
1
The Honorable Kelsey T. Kawano presided.
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
than one year," and that his counsel was ineffective for failing
to object to the breach of the plea agreement at sentencing.
Upon careful review of the record and the briefs
submitted by the parties and having given due consideration to
the arguments advanced and the issues raised by the parties, we
resolve Decambra's points of error as follows, and vacate and
remand for resentencing.
The pertinent background is as follows. The plea
agreement in this case was set forth in Decambra's Change of Plea
form, which stated:
I request that I shall be placed on a four year term
of probation, with the State reserving the right to
argue for one year of jail subject to early release
into a drug treatment program as may be approved by
Adult Client Services, and that I request no more than
six months of jail . . . .
Preliminarily, we note that HRS § 706-624(2)(a) (2014),
"Conditions of Probation," authorizes a "term of imprisonment to
be determined by the court at sentencing . . . not exceeding one
year in Class C felony cases," as a condition of probation. The
two offenses Decambra pled to were both Class C felonies. Thus,
the agreement in this case contemplated a sentence of probation
with the only difference in the parties' positions being the
amount of jail time imposed as a discretionary condition of
probation.
At sentencing, the State made the following argument in
response to the court's inquiry as to the State's "position" on
"the plea agreement:"
THE COURT: . . . .
What's the State -- does the State have anything to
add with regard to its position and the plea agreement?
[PROSECUTOR]: Ah, you Honor, ah, we will ultimately
defer to the Court in regards to the imposition of a further
jail sentence.
Ah, due to that he has substantial credit, ah, the
State defers to the Court to weigh that against the violent
nature of this attack which was basically a hammer to the
face. I mean it landed in his mouth.
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Ah, which is a -- an act of pretty extreme violence,
because he armed himself with a weapon in anger. Ah, and
attacked [the victem], um, by striking him in the head, ah, in
the facial area with the hammer.
Ah, that is not to be tolerated and I know we're in
special circumstances now. Um, and the State, at this
point, will further defer to the Court and the information
in the presentence investigation report.
(Emphases added). We note that, although defense counsel had
briefly mentioned the plea agreement, the State said nothing
about the plea agreement, and did not reaffirm or place its terms
on the record, i.e., that the parties agreed to a probation
sentence with a maximum of one year incarceration with an early
release provision, as a condition of probation.
The Circuit Court explained its reasoning in sentencing
Decambra to concurrent five-year prison terms for the offenses,
as follows:
THE COURT: All right. Thank you.
So in reviewing that police report that was
included in the PSI, together with all of the background
information, ah, the Court is struck by the viciousness
of your attack.
Um, [the prosecutor] refers to it as a hammer.
Um, the police reports refer to it as a small hatchet. And
that you went at the victim, hatcheted his head, causing him
to have two front upper teeth knocked loose. And treated
about the head for facial trauma with philtrum complex
laceration, which is basically a hatchet gash.
That strikes the Court as a severe act of
violence. The Court's view is that you are a dangerous
person. And I -- I appreciate the fact that you did admit
to striking the victim and that you did say you needed to
be held accountable.
You have an extensive criminal record. The Court
also has taken into account your inability to follow court
directives when placed on probation.
The Court believes that all matters considered,
a prison sentence is appropriate at this time. And that, ah,
probation sentence to allow you to remain in the community
while you attempt to do services would not be in the best
interest of the public safety.
Accordingly, the Court hereby will proceed with
sentencing in Case 2CPC-19-000722, count one, five years
indeterminant [sic] sentence of imprisonment. Count two, five
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years indeterminant [sic] sentence -- sentence of imprisonment
to run concurrently.
Decambra contends the State breached the plea agreement
by arguing for a sentence greater than one year, contrary to the
terms of the plea agreement, and that such breach amounted to
plain error. Decambra points to the State's in-court
descriptions of the assault as an extreme act of violence and of
the violent nature of the attack with a hammer which he armed
himself with, in anger. Decambra argues that this constituted an
indirect attempt to influence the Circuit Court to impose a
sentence of more than one year, after the State had promised not
to do so. Decambra also contends the error was not harmless
because the Circuit Court relied upon the State's argument in
sentencing him to five years imprisonment when it noted the
viciousness of the assault and described it as an act of severe
violence.
The State contends that Decambra waived the alleged
breach of the plea agreement by failing to object during
sentencing or filing a motion to reduce his sentence pursuant to
Rule 35 of the Hawai#i Rules of Penal Procedure (HRPP). The
State responds that it did not expressly or impliedly breach the
plea agreement because it merely referenced relevant sentencing
factors and ultimately deferred to the Circuit Court as to
whether Decambra should receive a further jail sentence beyond
the 158 days he had served. The State contends Decambra should
have reasonably expected the State to argue for a further jail
sentence when the State reserved its right to argue for one year
of jail in the plea agreement. The State justifies its reference
to the violent nature of the assault as an attempt to address the
nature and circumstance of the offense under HRS § 706-606
(2014)2 and to describe the seriousness of the offense. The
2
HRS § 706-606 states:
§706-606 Factors to be considered in imposing a sentence. The court,
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State further notes the plea agreement did not require the State
to request one year of jail and it did not do so. The State
claims the plea agreement "did not contain any terms limiting the
type of sentencing arguments the State could make." Lastly, the
State urges that "as a matter of policy, adopting Decambra's
position under these circumstances would discourage similar plea
agreements by creating a virtually impossible standard for the
State to meet," because it would, "in essence, prevent the State
from making arguments regarding the nature and circumstances of
an offense for fear of breaching a similar plea agreement, which
would ultimately discourage, to the detriment of future
defendants, the State from offering similar agreements."
"[B]reaches of plea agreements provide appropriate
bases for appellate review under the plain error standard,
inasmuch as a breach implicates due process and the interests of
justice." State v. Miller, 122 Hawai#i 92, 101, 223 P.3d 157,
166 (2010) (internal quotation marks and citations omitted). A
defendant's "failure to raise the issue at sentencing or by HRPP
Rule 35 motion does not preclude our review of the alleged error
under the plain error doctrine." Id."It is well settled that the terms of a plea agreement,
which serve as the inducement for entering a plea, must be
fulfilled." State v. Adams, 76 Hawai#i 408, 414, 879 P.2d 513,
in determining the particular sentence to be imposed, shall consider:
(1) The nature and circumstances of the offense and the history
and characteristics of the defendant;
(2) The need for the sentence imposed:
(a) To reflect the seriousness of the offense, to promote
respect for law, and to provide just punishment for the
offense;
(b) To afford adequate deterrence to criminal conduct;
(c) To protect the public from further crimes of the
defendant; and
(d) To provide the defendant with needed educational or
vocational training, medical care, or other correctional
treatment in the most effective manner;
(3) The kinds of sentences available; and
(4) The need to avoid unwarranted sentence disparities among
defendants with similar records who have been found guilty
of similar conduct.
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519 (1994) (citations omitted).
The touchstone for determining whether a breach of a
plea agreement has occurred, however, is whether the
defendant has reasonable grounds for reliance on his
interpretation of the prosecutor's promise, and
whether the defendant in fact relied to his detriment
on that promise. This determination requires an
inquiry into the precise meaning of the language of
the agreement as it was understood by the defendant
and defendant's legitimate expectations arising
therefrom.
Furthermore, a plea agreement containing terms that
are ambiguous or reasonably susceptible to different
interpretations is strictly construed in favor of the
defendant. Even where the state technically complies
with every term, a breach of the plea agreement may be
found if the spirit of the agreement is breached.
State v. Abbott, 79 Hawai#i 317, 320, 901 P.2d 1296, 1299 (App.
1995) (citations and quotation marks omitted).
The State contends that there was no breach where the
State deferred to the Circuit Court for "a further jail sentence"
and did not ask for more than a year of incarceration. This
contention is without merit. In this case, the Circuit Court
specifically asked the State regarding its position on the plea
agreement. The State never responded to the Circuit Court
regarding the plea agreement. The State never affirmed the
existence of the plea agreement or its terms in response to the
Circuit Court's direct question. By not reaffirming and
confirming the plea agreement, and arguing for unspecified
"further jail" instead, the State did not fulfill the terms of
the agreement. See Adams, 76 Hawai#i at 414, 879 P.2d at 519.
Under the express terms of the agreement, Decambra had
reasonable grounds to rely on the State's promise to ask for a
probation sentence with a maximum one-year incarceration
probation condition, subject to early release to a program
approved by probation. See Abbott, 79 Hawai#i at 320, 901 P.2d
at 1299. In this case, the Circuit Court had the option to
sentence Decambra to a five-year indeterminate prison term for
each charge. HRS §§ 707-711(2) (2014), 712-1243(2) (2014), and
706-660(1)(b) (2014). Thus, the State was required to make it
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clear to the Circuit Court that it supported the imposition of
probation with the discretionary probation condition of maximum
one-year incarceration with early release to a program, and not
merely request a vague and potentially limitless "further jail
sentence." Rather than recommending the probation sentence the
State had agreed to, the State instead "defer[red] to the Court
in regards to the imposition of a further jail sentence" and
argued the "violent nature of this attack." This constituted a
breach of the agreement.
The State also claims it "was required to cite facts
and make arguments to justify the imposition of further jail
time" by addressing the nature and circumstance of the offense
under HRS § 706-606(1) and in describing the "seriousness of the
offense" factor in subsection (2). While the State was not
precluded from making this argument under HRS § 706-606, once the
State chose to present sentencing argument, it was required to
present such argument within the boundaries of the plea
agreement, which bound the State to request a probation sentence
with a probation condition of maximum one-year incarceration with
early release to a program. However, the State only argued for
additional incarceration and never said it had agreed to a
probation sentence. The Circuit Court's imposition of concurrent
five-year prison terms, in light of this record, establishes that
Decambra relied to his detriment on the State's promise to
support a probation sentence with a potential maximum
incarceration term of one year as a probation condition. See id.
The breach of the plea agreement was not harmless
beyond a reasonable doubt. Decambra was prejudiced by foregoing
his constitutional rights and pleading no contest in reliance on
the State's promises to argue for a probation sentence with
certain probation terms. See Miller, 122 Hawai#i at 127-28, 223
P.3d at 192-93. Where a plea is based on an unfulfilled promise,
there is certainly a reasonable possibility that the error might
have contributed to the conviction, inasmuch as the conviction
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rests entirely on Decambra's plea. Id. at 128, 223 P.3d at 193
(citing State v. Nichols, 111 Hawai#i 327, 334, 141 P.3d 974, 981
(2006)). The record shows that Decambra was prejudiced because
the State's arguments about "the violent nature of this attack,"
as "an act of pretty extreme violence," appear to have influenced
the Circuit Court's decision to impose an indeterminate sentence,
because the Circuit Court made similar statements that "the court
is struck by the viciousness of your attack," and remarked that
the injury "strikes the Court as a severe act of violence."
Either resentencing or withdrawal of a plea may be the
appropriate remedy depending on the defendant's particular
circumstances. Adams, 76 Hawai#i at 414, 879 P.2d at 519.
"[Res]entencing by another judge is the proper remedy in such a
case." State v. Anderson, 4 Haw. App. 102, 114, 661 P.2d 716,
724 (1983). The court should give considerable weight to the
choice of the defendant. Adams, 76 Hawai#i at 414, 879 P.2d at
519. Decambra requests this court to "vacate his judgment and
remand to the circuit court for resentencing before a different
judge." Because Decambra has not sought to withdraw his no
contest plea and instead requests resentencing, we remand for
resentencing before a different judge. See Abbott, 79 Hawai#i at
321, 901 P.2d at 1300 (remanding for resentencing before a
different judge "[b]ecause Defendant has not sought to withdraw
his no-contest plea and instead requests resentencing before a
new judge, and because Defendant's choice of remedies is entitled
to great weight . . . .") (internal citation omitted). Given our
disposition of this case, we do not address Decambra's claim that
his trial counsel was ineffective.
Therefore, IT IS HEREBY ORDERED that the Judgment;
Conviction and Sentence, filed on June 30, 2020, in the Circuit
Court of the Second Circuit, is vacated with respect to the
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sentence, and we remand for resentencing before a different
judge, consistent with this Summary Disposition Order.
DATED: Honolulu, Hawaii, May 20, 2021.
On the briefs:
/s/ Lisa M. Ginoza
Cynthia A. Kagiwada Chief Judge
for Defendant-Appellant
/s/ Keith K. Hiraoka
Gerald K. Enriques Associate Judge
Deputy Prosecuting Attorney
County of Maui /s/ Karen T. Nakasone
for Plaintiff-Appellee Associate Judge
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