315 P.3d 720
Haw.2013Background
- Kong was charged with Promoting a Dangerous Drug in the Second Degree and Prohibited Acts Related to Drug Paraphernalia.
- He entered the Maui Drug Court program after waiving trial rights and admitted to the charges.
- Kong agreed to self-terminate from the Drug Court program amid treatment noncompliance and scheduling of a termination hearing.
- The circuit court sentenced Kong to 10 years on Count 1 and 5 years on Count 2, running consecutively for a total of 15 years, based on an asserted “extensive criminality.”
- The Intermediate Court of Appeals affirmed, and Kong appeals arguing Hussein-based reasoning, PSI-related errors involving vacated convictions, and the termination-hearing colloquy.
- Kong argues the two vacated convictions listed in the PSI unjustifiably influenced the sentence and that the termination colloquy was insufficient to waive rights.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Consecutive vs. concurrent sentencing | Kong argues Hussein requires explicit on-record reasons for consecutive sentences. | Kong contends the court provided insufficient, non-specific justification. | Consecutive sentences affirmed; reasoning satisfied Hussein's dual purposes on the record. |
| Use of vacated convictions in PSI | Kong asserts the PSI included vacated convictions that should not support sentencing. | State contends the PSI was proper; Kong failed to timely challenge the convictions. | No reversible error; PSI-based sentence upheld because the court relied on Kong's overall extensive criminality, not on vacated convictions alone. |
| Sinagoga framework applicability | Kong claims Sinagoga dictates handling of invalid convictions in PSI; Veikoso/Heggland limit its reach. | State argues Sinagoga applies and Kong waived objections by not challenging the PSI. | Sinagoga framework inapplicable to the vacated-convictions issue here; court properly relied on a general extensive record. |
| Waiver and voluntariness of Drug Court termination | Kong contends the termination colloquy was inadequate to waive right to a termination hearing. | Kong acknowledged rights in prior hearings and repeatedly affirmed self-termination. | Kong voluntarily and intelligently self-terminated; termination itself valid. |
| Plain error due to use of invalid convictions | Dissent asserts plain error; the majority holds not plain error; the issue discusses potential need for remand; not a binding holding for the main opinion. |
Key Cases Cited
- State v. Hussein, 122 Hawai'i 495 (Haw. 2010) (mandatory on-record reasons for consecutive sentence; dual purposes explained)
- State v. Sinagoga, 81 Hawai'i 421 (App. 1996) (framework for challenging prior convictions listed in PSI)
- State v. Veikoso, 102 Hawai'i 219 (Haw. 2003) (limits Sinagoga to certain challenges; collateral attacks concerns)
- State v. Heggland, 118 Hawai'i 425 (Haw. 2008) (modifies Sinagoga framework; burden-shifting considerations)
- State v. Miller, 122 Hawai'i 92 (Haw. 2010) (plain error considerations in sentencing contexts)