State v. Carlton.State v. Carlton.
This case raises the issue of whether
For the reasons discussed below, we hold that
I. BACKGROUND
A. Circuit Court Proceedings
On February 14, 2014, Brok Carlton was found guilty after a jury trial in the Circuit Court of the Second Circuit (circuit court) of kidnapping as a class A felony, in violation of
The ICA ordered the State on remand to retry Carlton on the kidnapping, robbery, and assault charges with appropriate merger instructions provided to the jury or to dismiss two of the three counts and have the circuit court reinstate the conviction and resentence Carlton on the non-dismissed count. The Judgment on Appeal was entered on June 27, 2016.
The State took no action until a hearing was held in the circuit court on January 11, 2017, when the State, for the first time, indicated that it was electing to dismiss two of the three counts and would proceed with resentencing on the remaining count. The State did not inform Carlton or defense counsel which counts would be dismissed and which count would bе reinstated. Instead, all of the counts were scheduled for resentencing at a later date.
On January 17, 2017, Carlton filed a motion to dismiss the three counts on the basis that
At the resentencing hearing on April 28, 2017, the circuit court asked defense counsel to proceed first with counsel’s sentencing argument. Defense counsel stated that Carlton had maintained good behavior during his years in custody and that the court should consider Carlton’s post-conviction conduct as a sentencing factor. After counsel finished, the court asked Carlton if he had anything to say. Carlton apologized for his actions and requested leniency. The State then proceeded with its argument, focusing on the sentencing factors under
At the end of its argument, for the first time, the State disclosed its decision to ask the circuit court to sentence Carlton on the robbery charge and to dismiss the kidnapping and assault charges. Carlton’s counsel asked the court if the defense could respond, and the court allowed defense counsel to do so. Carlton’s counsel maintained that the court could consider Cаrlton’s conduct while in custody and should particularly consider his completion of all the classes available to him while he was incarcerated. After Carlton’s counsel responded, the court summarized the facts of the case and considered the sentencing factors under
The circuit court then sentenced Carlton to twenty years imprisonment on the robbery offense and ordered that the twenty-year term for the robbery offense and the five-year term for the UCPV offense run consecutively for a total of twenty-five years. The court’s Amended Judgment; Conviction and Sentence; Notice of Entry was filed on April 28, 2017 (circuit court judgment). Carlton timely appealed on May 15, 2017.
B. ICA Proceedings
In a Summary Disposition Order,5 the ICA agreed with the State’s contention, first raised on appeal, that the clock for
The ICA also found that Carlton’s right of allocution was not violated because Carlton was aware that the State had not elected the specific counts for dismissal and did not object at the resentencing hearing. The ICA stated that Carlton’s counsel could have requested that Carlton be allowed to speak again, but he did not. On this basis, the ICA found that the issue was waived.
Despite the finding of waiver, the ICA went on to conclude that the circuit court did not violate Carlton’s right of allocution by asking Carlton to make a statement before knowing for which charge he was to be sentenced. Carlton was aware of the evidentiary basis of each charge, the ICA stated, so the fact that he did not know which charges would be dismissed could not demonstrate a lack of notice as tо the charges themselves or the evidentiary bases for them. “Thus,” the ICA stated, “Carlton received adequate notice of the facts at issue in resentencing.” Accordingly, the ICA concluded that Carlton received notice and the opportunity to be heard, and therefore his right of allocution as
II. STANDARDS OF REVIEW
“When interpreting rules promulgated by the court, principles of statutory construction apply.” State v. Lau, 78 Hawaiʻi 54, 58, 890 P.2d 291, 295 (1995). “Interpretation of a statute is a question of law which we review de novo.” Id. “Therefore, interpretation of
“We review questions of constitutional law by exercising our own independent constitutional judgment based on the facts of the case.” State v. Phua, 135 Hawaiʻi 504, 511-12, 353 P.3d 1046, 1053-54 (2015). Therefore, we review questions of constitutional law under the right/wrong standard. Id.
III. DISCUSSION
A. Interpretation of HRPP Rule 48(b)(3)
1. HRPP Rule 48(b)(3) Applies to Cases On Remand in which the State Mаy Elect Between a New Trial and Resentencing
”
At issue in this case is whether
[T]he court shall, on motion of the defendant, dismiss the charge, with or without prejudice in its discretion, if trial is not commenced within 6 months . . . (3) from the date of mistrial, order granting a new trial or remand, in cases where such events require a new trial.
The circuit court, in considering
Since
Applying these statutory principles to our construction of
However, even assuming an ambiguity in the language of the rule, “this court’s foremost obligation in [rule] interpretation is to effectuate the [rule’s] purpose.” State v. Tsujimura, 140 Hawaiʻi 299, 307, 400 P.3d 500, 508 (2017). Our interpretation of
Further, “it is well settled that this court may depart from a plain reading of a [rule] where a literal interpretation would lead to absurd and/or unjust results.” Morgan v. Planning Dep’t, 104 Hawaiʻi 173, 185, 86 P.3d 982, 994 (2004) (quoting Iddings v. Mee-Lee, 82 Hawaiʻi 1, 15, 919 P.2d 263, 277 (1986)). To read
Accordingly, we hold that
2. The HRPP Rule 48(b)(3) Clock Begins to Run when the Judgment of the Appellate Court Becomes Effective
Also at issue in this case is whether the clock for
See
Rule 41 and its commentary (“the intermediate court of appeals’ judgment cannot be effective and jurisdiction cannot revert to the court or agency from which appeal was taken until the time for filing the application has expired or, if an application is filed, the supreme court has rejected or dismissed the application or affirmed the intermediate court of appeals’ judgment in whole.“)
Thus, until the judgment on appeal becomes effective, the lower court does not have the power to exercise authority over a case in order to schedule further proceedings. Since trial cannot be scheduled until the judgment on appeal becomes effective, the clock for
Based on the plain meaning of
Applying this holding to this case, the judgment on appeal in the first appeal was entered on June 27, 2016, and no аpplication for writ of certiorari or request for extension of time for filing an application was filed. Therefore, under
B. Carlton’s Right of Allocution
Carlton also contends that the circuit court’s sentencing procedure violated his due process right of allocution by not affording him an opportunity to address the court after the State electеd which charges would be dismissed and which charge Carlton would be resentenced on. “Allocution is the defendant’s right to speak before sentence is imposed.” State v. Hernandez, 143 Hawaiʻi 501, 509, 431 P.3d 1274, 1282 (2018) (internal quotations and alterations omitted). The right of presentence allocution is an important constitutional right guaranteed under the due process clause, article I, section 5, of the Constitution of the State of Hawaiʻi. Id. (citing State v. Davia, 87 Hawaiʻi 249, 255, 953 P.2d 1347, 1353 (1998)). The right is also protected by
One “prime reason” for allocution is to provide the defendant an opportunity to plead for mitigation of the sentence. Hernandez, 143 Hawaiʻi at 511, 431 P.3d at 1284 (quoting State v. Carvalho, 90 Hawaiʻi 280, 286, 978 P.2d 718, 724 (1999)). Allocution also provides the defendant the opportunity to dispute the factual bases for sentencing and to meaningfully participate in the sentencing process. State v. Chow, 77 Hawaiʻi 241, 250, 883 P.2d 663, 672 (App. 1994). Beyond sentence mitigation, allocution is important because it allows the defendant to “acknowledge wrongful conduct, which is ‘the first step towards satisfying thе sentencing objective of rehabilitation,’” and it may have a therapeutic effect on the defendant. Hernandez, 143 Hawaiʻi at 511, 431 P.3d at 1284 (quoting Chow, 77 Hawaiʻi at 250, 883 P.2d at 672). The defendant’s public acknowledgement of wrongdoing may also have collateral benefits by deterring others from similar conduct and “purging . . . any felt need for retribution in a victim, a victim’s family, or the community as a whole.” Chow, 77 Hawaiʻi at 250, 883 P.2d at 672.
1. Due Process Requires the Court to Afford the Defendant an Opportunity to be Heard Prior to Sentencing at a Meaningful Time and in a Meaningful Manner
It is the duty of the trial court to directly address the defendant and ensure the defendant’s right of allocution is upheld. See State v. Schaefer, 117 Hawaiʻi 490, 498, 184 P.3d 805, 813 (App. 2008) (“We know of no effective or adequate manner in which a defendant’s right of presentence allocution may be constitutionally realized than to affirmatively require that the trial court make direct inquiry of the defendant’s wish to address the court before sentence is imposed.” (quoting Chow, 77 Hawaiʻi at 247, 883 P.2d at 669)). This duty is also imposed on the trial court by the language of
As stated, the right of presentence allocution is an important constitutional right guaranteed under the due process clause of the Hawaiʻi Constitution. Hernandez, 143 Hawaiʻi at 509, 431 P.3d at 1282. We have observed that “procedural due process requires that a person have an ‘opportunity to be heard at a meaningful time and in a meaningful manner.’” In re Application of Maui Elec. Co., 141 Hawaiʻi 249, 269, 408 P.3d 1, 21 (2017) (quoting Freitas v. Admin. Dir. of Courts, 108 Hawaiʻi 31, 44, 116 P.3d 673, 686 (2005)). As a due process right, a defendant’s right of allocution is violated if the court fails to afford the defendant an opportunity to exercise the right at a meaningful time and in a meaningful manner. See, e.g., Carvalho, 90 Hawaiʻi at 286, 978 P.2d at 724 (a sentencing court must afford a defendant the right of presentence allocution “before ruling on the applicability of the young adult defendants statute“). In order to be meaningful, the opportunity for allocution must be reasonably calculated to achieve its
In this case, the court provided Carlton the opportunity for allocution before the State specified which charges would be dismissed and which charge would be reinstated. Each of the potential charges, kidnapping, robbery, and assault, are predicated on different conduct and the elements of the offenses are not the same. The robbery charge in particular involved conduct that was not encompassed by the kidnapping and assault charges. Since Carlton did not know the offense he was to be sentenced on, he did not know which of his actions he needed to address and possibly provide explanation, mitigation, or take responsibility for. Carlton was thus not afforded a meaningful opportunity to address the circumstances of the robbery offense because, at the time of his allocution, he did not know that this offense would provide the basis for the resentencing. In essence, the court and the State put Carlton in the position of having to address three offenses although only one of them was to underlie the conviction in this case.
The ICA found that Carlton waived any objection to the court’s violation of his due process right of allocution because, at the time of sentencing, Carlton was aware that the State had not elected the specific counts for dismissal and did not object at that time. Althоugh it is true that Carlton’s counsel could have requested that Carlton be allowed to speak again, it was the duty of the court, not Carlton’s counsel, to afford Carlton a fair opportunity to be heard. See Grindling v. State, 144 Hawaiʻi 444, 452, 445 P.3d 25, 33 (2019) (“[A] trial court’s constitutional duty to engage the defendant in a colloquy . . . does not devolve upon defense counsel when the court does not fulfill its responsibility.“);
As stated, in order to have a meaningful opportunity to exercise his right of allocution, Carlton needed to know the offense for which he would be sentenced before he made his statement to the cоurt. It is the duty of the sentencing court to ensure a defendant’s right of allocution can be exercised in an informed and knowing manner at the time the defendant addresses the court. We hold that by failing to afford Carlton an opportunity to make a statement after he was apprised of the offense for which he would be sentenced, the circuit court violated Carlton’s right of allocution as guaranteed by the due process clause, article I, section 5, of the Constitution of the State of Hawaiʻi.
2. Allowing the Defendant the Last Word Before Sentence Is Imposed Is an Element of Sound Judicial Administration
In addition to being unable to address the offense of conviction, Carlton had no opportunity to controvert the State’s sentencing argument or supplement the statements of defense counsel regarding his conduct while incarcerated.
The timing of the court’s invitation to the defendant to speak regarding all factual matters presented to the court is unquestionably significant to the meaningfulness of the right of allocution. See, e.g., Carvalho, 90 Hawaiʻi at 286, 978 P.2d at 724. In Carvalho, the sentencing court did not afford Carvalho an opportunity to be heard before denying his request for sentencing as a young adult defendant. Id. We held that, by not providing Carvalho an opportunity to be heard before ruling on the applicability of the young adult sentencing statute, the sentencing court had denied Carvalho his right of allocution. We stated that the “right of allocution is designed to рrovide an opportunity to affect the totality of the trial court’s sentencing determination.” Id. at 286, 978 P.2d at 724.
Manifestly, the statements of counsel at a sentencing hearing that contain factual assertions can significantly impact the court’s application of the sentencing factors set forth in
This ability to controvert, correct, or supplement factual representations made by counsel is similar to a defendant’s right to controvert or supplement the presentence investigation report (PSI), as provided by
Like the PSI, the statements of counsel at the sentencing hearing may influence the court’s sentencing determination. In order to ensure the defendant is afforded a meaningful opportunity to address all information before the court and to affect the totality of the trial court’s sentencing determination, the defendant should be given the opportunity to make a statement to the court after both counsel have completed their sentencing arguments.13 Failing to afford the defendant this opportunity undermines the defendant’s ability to controvert or supplement factual assertions made during the proceeding. Additionally, the statements of counsel at the sentencing hearing have relevance beyond the initial sentencing determination because transcripts of sentencing hearings may be used in subsequent proceedings. See,
We have stated that courts should, “as a matter of good judicial administration, unambiguously address themselves to the defendant providing a personal invitation to speak prior to sentencing.” Phua, 135 Hawaiʻi at 517, 353 P.3d at 1059 (internal quotations omitted). This court, as well as the ICA, has indicated that the sentencing court should give the defendant an opportunity to speak just before sentence is imposed by stating that “[t]he right is one easily administered . . . by the following inquiry: ‘Do you, . . . [(defendant’s name)], have anything to say before I pass sentence?’” Id. (some alterations in original) (quoting Chow, 77 Hawaiʻi at 248, 883 P.2d at 670). It is noted, however, that due process does not necessarily demand that a defendant be given the last word in all circumstances. See, e.g., State v. Nicholson, 120 Hawaiʻi 480, 486, 210 P.3d 3, 9 (App. 2009) (affirming circuit court’s refusal to allow defendant a second allocution after the court expressed disbelief in response to defendant’s statement when imposing sentence). Nevertheless, prudential judicial administration instructs that the defendant be given the last word before sentencing is imposed in order to avoid eroding the meaningfulness of the defendant’s right of allocution. Under the circumstаnces presented in this case, the failure to provide Carlton an opportunity to speak after counsel completed their arguments clearly impaired Carlton’s ability to controvert or supplement the statements of counsel.
Given our holding that Carlton’s due process right of allocution was violated by the court’s failure to require timely disclosure of the offense for which he would be sentenced, it is unnecessary to determine whether the court’s failure to provide Carlton the opportunity to controvert or supplement the statements of counsel also rose to the level of a due process, statutory, or rule violation that requires resentencing. However, we reiterate that sound judicial administration requires that the sentencing court afford the defendant an opportunity for allocution after the arguments of counsel are complete and before sentence is imposed. Phua, 135 Hawaiʻi at 517, 353 P.3d at 1059.
IV. CONCLUSION
Based on the foregoing, we vacate in part and affirm in part the ICA’s Judgment on Appeal entered on July 11, 2019 (ICA judgment) and the circuit court judgment. The sentence set forth in the circuit court judgment and affirmed by the ICA judgment are vacated, and the case is remanded to the circuit court for resentencing before a different judge. We otherwise affirm the ICA judgment and the circuit court judgment for the reasons stated herein.
Richard D. Gronna (Benjamin E. Lowenthal on the opening brief) for petitioner
Renee Ishikawa Delizo for respondent
/s/ Mark E. Recktenwald
/s/ Paula A. Nakayama
/s/ Sabrina S. McKenna
/s/ Richard W. Pollack
/s/ Michael D. Wilson
Notes
When the same conduct of a defendant may establish an element of more than one offense, the defendant may be prosecuted for each offense of which such conduct is an element. The defendant may not, however, be convicted of more than one offense if: . . . . (e) The offense is defined as a continuing course of conduct and the defendant’s course of conduct was uninterrupted, unless the law provides that specific periods of conduct constitute separate offenses.
Except in the case of traffic offenses that are not punishable by imprisonment, the court shall, on motion of the defendant, dismiss the charge, with or without prejudice in its discretion, if trial is not commenced within 6 months . . . (3) from the date of mistrial, order granting a new trial or remand, in cases where such events require a new trial.
The court, in determining the particular sentence to be imposed, shall consider:
(1) The nature and circumstances of the offense and the history and characteristics of the defendant;
(2) The need for the sentence imposed:
(continued. . .)
(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 othеr 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.
Effective for intermediate court of appeals’ judgments on appeal and orders of dismissal entered on or after January 1, 2012, a party has 30 days to file an application for a writ of certiorari, which can be extended for no more than an additional 30 days upon the filing of a written request for extension in accordance with
The supreme court’s judgment on appeal is not subject to further state review and is effective upоn entry.
After adjudication of guilt, sentence shall be imposed without unreasonable delay. Pending sentence, the court may commit the defendant or continue or alter bail, subject to applicable provisions of law. Before suspending or imposing sentence, the court shall address the defendant personally and afford a fair opportunity to the defendant and defendant’s counsel, if any, to make a statement and present any information in mitigation of punishment.
The 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 and afford fair opportunity, if the defendant or the prosecuting attorney so requests, to controvert or supplement them. The 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 (continuеd. . .) to be deleted is completely removed or other amendments, including additions, are made.
(3) A copy of a presentence report or investigative report shall be provided only to:
(A) The persons or entities named in section 706-604;
(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) In 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: (continued. . .) (i) Is engaged in the supervision of a defendant or offender convicted and sentenced in the courts of Hawaii; or (ii) Is engaged in the preparation of a report for a court regarding a defendant or offender convicted and sentenced in the courts of Hawaii[.]