Lead
Opinion of the Court by
We hold that (1) imposing a prison sentence consecutively to “any sentence” of a prior conviction pursuant to Hawaii Revised Statutes (HRS) § 706-606.5(5) (Supp.2006),
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),
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). Id. 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 term already being served, as recognized by the court, “in all of her eases, [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:
(1) 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 prisonrehabilitation programming.[ 7 ]
Hussein,
The ICA affirmed Petitioner’s sentence. Id. 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, id. 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 twen-tyHyear term of imprisonment[,]” id. at *3, and did not abuse its discretion in sentencing Petitionary id. With respect to the second point of error, the ICA determined that Petitioner’s counsel “was within the range of competence demanded of attorneys in criminal cases.” Id. 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(1) 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.
In the ICA, Petitioner asserted that “[t]he plain meaning of [‘any sentence’] include[s] all prison terms for all counts, authorizing the [c]ourt to begin the [ten]-year mandatory minimum term consecutive to the Class C 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 any sentence imposed on a defendant for a prior conviction, not necessarily the longest sentence being served for prior convictions.” Hussein,
The plain language of HRS § 706-606.5(5) indicates that a sentencing court may order a repeat offender mandatory minimum term to run consecutively to “any” pri- or sentence.
III.
A sentencing court must consider all sentencing options, since such consideration
Thus, when alternative sentencing options are available, an unclear record may result in a remand. See State v. Gray,
As discussed infra, 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 ease, we need not reach the question of any potential failure to address all possible sentencing options.
IV.
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
In State v. Kamana‘o,
Concurrent and consecutive terms of imprisonment.
(1) 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‘o,
HRS § 706-668 was repealed in 1986 and replaced with HRS § 706-668.5. Although HRS § 706-668 and HRS § 706-668.5 approach the imposition of concurrent and consecutive sentences differently, HRS § 706-668.5 is, as this court stated in regard to 706-668, “a general statute in the sense that it pertains generally to all offenses and without regard to the type of offender involved.” Id. at 217,
On the other hand, HRS 706-606.5 is a “specific statute in that it deals expressly with sentencing for certain felony convictions in cases involving repeat offenders, such as [the petitioner.” Id. In that connection, this court indicated that HRS 706-606.5 is the controlling statute when a defendant is sentenced as a repeat offender. Relying on the “notwithstanding ... any other law” language in HRS § 706-606.5, it was said that
it is manifest that HRS § 706-606.5 provides for sentencing in specific circumstances whereas HRS § 706-668 is a general rule. The express language of HRS § 706-606.5, “[notwithstanding ... any other law to the contrary ... []” clearly limits the applicability of HRS S 706-668 in cases involving the “[s]entencing of repeat offenders.” HRS § 706-668 is precisely the type of “law to the contrary” described in HRS § 706-606.5. Thus, reading the two statutes together, it is evident that HRS § 706-668 is the common starting point for sentencing, but that in the specific circumstances presented here, i.e., where the defendant is a repeat offender, the sentencing court may disregard the general rule and apply the statutory provision that applies to these particular facts.
Id. at 218,
However, whereas HRS § 706-668 dictated that “the ... sentences imposed by the court shall be served concurrently” to any term already being served (emphasis added), the current version of the statute, HRS § 706-668.5, gives the court discretion to impose such sentences either concurrently or consecutively. Similarly, HRS § 706-606.5, by stating that the “court may impose the above sentences consecutively,]” (emphasis added), allows the court discretion to impose the sentences concurrently or consecutively to pre-existing prison terms. Therefore, the conflict that existed in Kamana'o has largely been resolved.
Nevertheless, for the reasons discussed in Kamana’o, HRS § 706-606.5 in this instance is the more specific, and hence, controlling-statute. Thus, Petitioner is correct in arguing that the “any sentence” language in HRS § 706-606.5 applies, meaning that her repeat offender sentence may be run consecutively to any term she is already serving.
As discussed above, HRS § 706-668.5(2) states that “[tjhe 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.” (Emphasis added). See supra note 2 (listing factors).
“[Sjtatutes [that] relate to sentencing ... should be construed in pari mate-ria.” Kamana‘o,
V.
A.
Sentencing decisions are reviewed under the abuse of discretion standard.
[A] sentencing judge generally has broad discretion in imposing a sentence.... And, “[generally, to constitute an abuse it must appear that the court clearly exceeded the bounds of reason or disregarded rules or principles of law or practice to the substantial detriment of a party litigant.”
State v. Kahapea,
B.
We observe, however, that this court has indicated that “[although there is no requirement for the sentencing court to state its reasons for imposing sentence, we have urged and strongly recommended that the sentencing court do so[.]” Lau, 73 Haw. at
C.
The rationales that underlie a defendant’s right of presentence allocution, as set forth in State v. Chow,
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:
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 seventy of the sanction in the sentence.
(i) The statement of reasons may be relatively concise when the level of severity and type of sanction are 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.
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(e) The rules should provide that the sentencing court should integrate the sanctions of a current sentence with the remaining operative sanctions under any pri- or 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). In regard to the desirability of stating reasons on the record, the Commentary to Standard 18-5.19 provides that
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.
Id. at 212-13, Commentary to Standard 18-5.19 (footnotes and citations omitted) (emphases added).
E.
Other jurisdictions, based inter alia on the rationales set forth by the ABA, have adopted a requirement that the sentencing court state reasons on the record for imposing sentences consecutively. In State v. Hall,
[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 ofwhether sentences should be served concurrently or consecutively.
Id. at 45 (emphasis added) (citations omitted).
Several other states have held that a statement of reasons is essential to imposition of consecutive versus concurrent pxison terms. Some states have implemented the requirement by statute. See, e.g., People v. Champion,
VI.
Additionally, as the facts indicate, Respondent also moved for an extended term of imprisonment pursuant to HRS § 706-661 and HRS § 706-662(1) and (4)(a). Under the United States Supreme Court’s holding in Cunningham v. California,
A.
In State v. Maugaotega,
In Cimningham, 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 Maugaotega I, that Hawaii’s extended sentencing scheme is subject to the requirements of Apprendi. See Cunningham,
On remand, this court held that Hawaii’s extended sentencing term statute, HRS § 706-662, “is unconstitutional on its face.” State v. Maugaotega,
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,
Relatedly, in Oregon v. Ice, 555 U.S.-, -,
In regard to consecutive sentences, the majority noted that states have generally taken three approaches related to the imposition of such sentences: (1) “[m]ost [sjtates continue the common law-tradition[, where tjhey entrust to judges’ unfettéred discretion the decision whether sentences for discrete offеnses shall be served consecutively or concurrently”; (2) “[i]n some [sjtates, sentences for multiple offenses are presumed to run consecutively, but sentencing judges may order concurrent sentences upon finding cause therefor”; and (3) “[ojther [sjtates ... constrain judges’ discretion by requiring them to find certain facts before imposing consecutive, rather than concurrent, sentences.” Id. at -,
The mandated consideration of factors in HRS § 706-606 by the sentencing judge is akin to the third approach discussed in Ice— that in order to impose a consecutive sentence, the judge must “find certain facts.” As noted in Ice, “[ljimiting 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.” Id. at -,
VII.
In 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 supra, 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 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 the statutory factors. It 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
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.
VIII.
As observed, Petitioner’s second argument is that she was denied effective assistance of counsel at her sentencing hearings. This court has stated the appellant’s burden in establishing ineffective assistance of counsel is as follows:
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,
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.
At the sentencing hearing on April 27, 2007, [Petitioner] addressed the court and stated “I have no excuse for what I have done and I’m taking full responsibility for my action. I’m just asking for a fair sentence and I know whatever you give me will be fair.” [Petitioner’s] (prior) defense counsel argued that there were mitigating circumstances tvhich should redtice her sentence unthin 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] counsel’s assistance was within the range of competence demanded of attorneys in criminal eases. Therefore, [Petitioner] was not provided with ineffective assistance of counsel.
Hussein,
As acknowledged by [Petitioner], “mitigating factors,” including [Petitioner’s] remorse and taking responsibility for her actions, were argued at the sentencing hearing.... The [PSI] referenced in [Petitioner’s] Opening Brief-whieh the [c]ourt stated that it eonsidered-referenced the substance abuse and treatment issues raised by [Petitioner] on this appeal.
Id. at *3.
Thus, as to the first claim, we agree with the ICA inasmuch as all of the factors alleged by Petitioner were presented to the court for consideration, either in the PSI, 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 couH has reviewed the [PSI].” (Emphasis added.) The sentencing judge then, was made aware of the mitigating factors cited by Petitioner, either through the PSI or in open court at the sentencing hearing.
B.
As to Petitioner’s second claim, the ICA, analogizing to Federal Rule of Criminal Procedure (Fed.R.Crim.P.) Rule 35,
“does not suggest that a motion should be filed automatically in every ease. 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.”
Id. at *4 (quoting Shraiar v. United States,
We affirm the result reached by the ICA 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 ICA 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.”
IX.
However, we find it necessary to clarify the ICA’s opinion with respect to HRPP Rule 35. The ICA rejected Petitioner’s argument that counsel was ineffective for not filing a HRPP Rule 35 motion “to develop additional mitigating factors.” Hussein,
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....” In State v. Rodrigues,
It 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 35] permits the reduction of a sentence 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.
Id. at 133 n. 7,
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),
C.
Thus, inasmuch as the ICA’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. See State v. Mikasa,
X.
The four arguments raised by the dissent are (1) “the majority’s entire discussion of its new ‘rule’ is wholly unnecessary to dispose of this case and, thus, constitutes obiter dicta[,]” (2) “mandating the sentencing court to state specific reasons when imposing a consecutive sentence ... violates the doctrine of stare decisis[,T (3) “[requiring courts] to state specific reasons when imposing a consecutive sentence ... places [the courts] at risk of violating [the PSI confidentiality requirements,]” and (4) “the majority ... ereat[es] a new ‘rule’ that is wholly unnecessary to the disposition of [Petitioner’s case], and attempts to justify its grant of Petitioner’s [Application by conjuring up an issue surrounding HRPP Rule 35 under the guise of providing clarification.” Dissenting opinion at 530-31,
A.
In arguing that “the majority’s entire discussion of its new ‘rule’” is “dicta,” id., 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)!,]’ “ id. at 533,
“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[.]”
Id. (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 holding is neither a statement collateral to the holding, nor merely a “ ‘remark made’ ” in passing. Id.
Furthermore, the dissent ignores that grave error or obvious inconsistencies are not curbs on the exercise of this court’s discretion to accept or reject an application, but are requirements of the certiorari application.
[t]he requirements in HRS § 602-59(b) are “directed only to the application for the writ. It is not descriptive of the scope of review determinative of th[is cjourt’s decision to grant or deny certiorari. Thfis cjourt’s power in that regard is intended to simply be discretionary.”
Indeed, 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.
Similarly, in this ease, although the ICA did not err as to its ultimdissemate judgment, we accepted certiorari in our discretion, inasmuch as we (1) 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 ICA’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. See Robinson,
B.
Similar to this case, in Lau, despite “[f]ind-ing no reversible error,” and “affirming the] appellant’s sentence^]” this court set forth a new rule “mandatpng] 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.” Lau,
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), Lau implemented a new requirement that the pre-sentence report be included in the record on appeal, despite an established
The dissent maintains that “the majority’s reliance on Lau is unavailing inasmuch as the new ‘rule’ set forth in that case was directly related to the issue on appeal, i.e., whether the sentencing court, in imposing a twen-tyHyear term of imprisonment, considered an eight[-]year sentencing option under the young adult defendants statute for which he was qualified.” Dissenting opinion at 543,
Indeed, whether the PSI should be available to appellate courts was not an issue presented by any of the parties in Lau. Instead, this court’s apparent difficulty in conducting meaningful review of the record led it to conclude that the PSI should be included in the future. In 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 Lau are closely analogous. Also, the dissent’s assertion that the “new rule ... [is] wholly unrelated to the issue being ‘clarified,’ ” dissenting opinion at 543,
XI.
A.
The dissent cites to the United States Supreme Court for the proposition that “justice requires that directly controlling cases either be followed or candidly overruled.” Dissenting opinion at 532,
Similarly, Sinagoga is not called into question by this opinion inasmuch as the judge in that case followed the requirement set forth in this ease. In Sinagoga, the ICA deemed relevant, inter alia, that “[unquestionably, [the sentencing judge] did state the reasons for the court’s sentence.”
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. In 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 year’s, becomes imperative on the bases previously discussed.
In asserting that the rule set forth in the majority opinion is contrary to the presumption in Sinagoga, the dissent cites to Vellina and Tardliili as examples of eases 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).” Vellina,
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 532,
B.
The dissent asserts that it is unable to see how the mandate to give sentencing l-easons on the recoi’d can “co-exist” with the presumption in Sinagoga that a sentencing coui’t has reviewed all the statutory factors. Id. at 540,
Conti’ary to the dissent’s assei’tion, not only can the rale and the pi’esumption easily “co-exist,” but the analysis in such cases is straightforward. In fact, Sinagoga provides an apt example of how the requirement that the court state reasons for its sentence, and the рresumption that the court has considered the HRS § 706-606 factors, can coexist. In Sinagoga, the ICA 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."
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 factorsl.]” Id. (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 “[wjhile there is no requirement that the court recite its findings on the record for each of the factors set forth in HRS § 706-606, the Hawaii Supreme Court has recommended that a sentencing court state the reasons for its sentence." Id. (emphases added). The ICA’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
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 or concurrent sentence, and the requirement expressed herein that the court state its reasons for imposing a consecutive sentence. As recognized in Sin-agoga, 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 “coexist” and what appellate courts should do where the “sentencing court fails to state its reasons,” dissenting opinion at 26, the reviewing court should (1) 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.
Moreover, it is neither “unfair” nor “insulting” to review the exercise of that discretion for abuse as the dissent maintains. Id. at 541,
XII.
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 addition to findings of fact, must be placed on the record when extended terms of imprisonment were imposed. This court stated:
[In all] cases in whieh appeals may hereafter be taken from extended term sentences, the sentencing court shall state onthe 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.
This court concluded that the language of the then extended sentencing statute, HRS
Rather than declare the statute unconstitutional, this court, “by judicial eonstruetion[,]” “remedied” the language of “HRS § 706-662 by substituting the unduly
Huelsman is analogous to this case. The rule
although the Huelsman court did set forth а new rule “mandating] that sentencing courts state their reasons for imposing an [extended]sentence on the record,” majority op. at 519, 229 P.3d at 337 , such rule was ... directly relevant to the disposition of the defendant’s case.... [T]he court vacated the defendant’s sentenceand remanded the case for resentencing in conformity with its opinion.
Dissenting opinion at 537,
XIII.
The dissent’s third argument is that directing that sentencing courts place reasons on the record would result in courts violating the PSI confidentiality provision of HRS § 806-73. Id. at 530-31,
A.
HRS § 806-73(b) provides in relevant part that
[a]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 ditties. The records, or the content of the records, shall be divulged only as folloivs:
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(3) A copy of a presentence report or investigative report shall be provided only to:
(A) The persons or entities named in section 706-601;
(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
(P) Any Hawaii state adult probation officer or adult probation officer of another state or federal jurisdiction who:
(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 ofHaivai'i;
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(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:
(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;
(B) Correctional case manager, correctional unit manager, and parole officers involved with the defendant’s treatment or supervision; and
(C) In accordance with applicable law, 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 inconsistеnt 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 Laiv Dictionary 318 (8th ed.2004) (emphases added). “Public” is defined as “[ofpen or available for all to use, share, or enjoy[,]” id. at 1264 (emphasis added), and “public record” is defined as “[a] 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).
Under HRS § 806-73, then, the records themselves, including “[a] copy of a[PSI],” are manifestly subject to “restricted” dissemination, and are not to be made “available to all to use.” See State v. Sumera, 97 Hawai‘i 430, 433 n. 4,
However, under HRS § 806-73(b)(3)(A), the PSI “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 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 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 prosecuting attorney a copy of the report of any pre-sentence diagnosis!)]” Manifestly, HRS § 706-604(2) also indicates that the court has access to a copy of the PSI 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 PSI is prepared “by personnel assigned to the court, intake service center or other agency designated by the eourt[.]” The PSI 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 thereby, education, occupation, and personal habits;
(c) Information 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) Information concerning defendant’s compliance or non-compliance with any order issued under section 806-11; and
(e) Any other matters that the reporting person or agency deems relevant or the court directs to be included.
HRS § 706-602(1) (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 PSI 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 PSI].” HRS § 706-604(2) thus guarantees both the defendant and the prosecution access to the PSI and an opportunity to challenge or to add to the information therein. See also State v. Paaaina,
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[ed]” in the PSI:
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,
C.
Because they both concern PSIs, HRS §§ 806-73 and 706-604 must be construed in pari materia. See Barnett,
Manifestly, HRS § 806-73 contemplates HRS § 706-604(2) as encompassing a limited qualification of the PSI’s confidentiality, 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 PSI, inasmuch as, as discussed supra, HRS § 706-604(2) allows (1) controversion and supplementation of the PSI by the parties, (2) amendment by the court, and (3) examination of the probation officer who prepared the report. See Lessary,
D.
Additionally, our courts have sanctioned the use of information contained in the PSI 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,
As to the propriety of employing the information contained in the PSI for sentencing, this court recently emphasized that “[t]he trial court is statutorily required to ‘accord due consideration’ ” to the PSI, and held that the court “abused its discretion in failing to accord the evidence its proper weight.” Id. at 446,
State v. Chavira, No. 29082,
Chavira’s Sentencing Statement, which was made part of the [PSI] 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 Chavi-ra because of his past associations or because of where he was originally from.
Id. (emphasis added). The ICA concluded that the circuit court had properly considered the information in the PSI in arriving at its sentencing decision, holding that
the circuit court’s consideration of Chavi-ra’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 apprvpriately placed significant emphasis on the circumstances of the offense, noting that it “involved 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.
Id. 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 PSI. See Commentary on HRS § 706-601 (“The vast majority of cases are disposed of upon pleas of guilty. It 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 PSI in order (1) to set forth the court’s 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 conseien-tiously 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 ICA 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 PSI “such as the defendant’s ‘history of delinquency,’ ‘mental condition,’ ‘family situation,’ ‘personal habits,’ or other such information not available from public records[.]” Dissenting opinion at 541,
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 [PSI]; or ... ignore thе majority’s new mandate and not recite specifics, thereby preserving confidentiality!,]” dissenting opinion at 541,
E.
The foregoing cases demonstrate that the PSI is the pertinent source of information in the sentencing process as contemplated in HRS §§ 706-601, -602, and -604. See HRS § 706-601 (dictating that in felony cases and for youthful offenders, “the court shall order a pre-sentence correctional diagnosis of the defendant and accord due consideration to a ivritten repori of the diagnosis before imposing sentence”) (emphases added); see also Nobriga,
Thus, “it is extremely unlikely that without a special provision providing for a[PSI] that the relevant information will be brought to the attention of the court.” Id.; see also Nobriga,
F.
1.
The dissent points out that when the confidentiality provision was being considered in 1985, the Conference Committee on the bill stated that
[rjeeords 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 539,
The dissent further cites to the legislative history of the 2006 amendment to HRS § 806-73 for the proposition that the PSI is to be kept confidential in large part to protect “a defendant’s privacy.” Dissenting opinion at 539,
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 legislative intent and statutory mandate.” Dissenting opinion at 540,
2.
The dissent also cites to the commentary to the ABA Standards for Criminal Justice that relate to the confidentiality of PSI reports, arguing that this opinion undermines a defendant’s right to privacy. Dissenting opinion at 539,
(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.
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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.” Id. at 209, Standard 18-5.18(b). Manifestly, the ABA Standards contemplate not only the discussion of facts contained in the PSI on the record, but also the presentation of evidence on those facts. It encourages courts to address disputed facts as well as make findings regarding material in the PSI. This contradicts the dissent’s position with regard to the privacy concerns surrounding the PSI reports and demonstrates that the contents of the PSI 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, in 2006 Senate Journal, at 1134. Moreover, the legislature’s decision to increase the availability of PSI reports came long after this court had addressed the importance of stating sentencing reasons on the record in Lau, 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 legislation.’ ” Gray v. Admin. Dir.,
G.
The dissent’s position on the confidentiality of PSIs 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 the prosecution, the defendant, and the court, of the PSI’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,
XIV.
Finally, the dissent argues that the majority unnecessarily addresses Petitioner’s HRPP Rule 35 motion inasmuch as the ICA’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 ICA’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. It 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 [cjourt’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.
XV.
Based on the foregoing, the ICA’s decision is affirmed consistent with this opinion, and the court’s judgment is affirmed.
Notes
. HRS § 706-606.5(1) governs sentencing of repeat offenders, and states as follows:
(1) Notwithstanding section 706-669 and any other law to the contrary, any person convicted of murder in the second degree, any class A felony, any class B felony, or any of the following class C felonies: ... section 708-831 relating to theft in the second degree; ... section 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 who 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:
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(c) Three or more prior felony convictions:
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(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. See HRS § 706-660 (1993) (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 706-621. The court shall provide a written opinion stating its reasons for imposing the lesser sentence.
(Emphasis added.)
. In 2006, at the time of Petitioner's conviction, HRS § 706-668.5 (1993), which provides the option of entering multiple sentences concurrently or consecutively, provided:
(1) 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 mn con-cunently 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 concurrently.
(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(1) 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 (1993) provides as follows:
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:
(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 lands 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.
. See infra note 20 for the text of HRPP Rule 35.
. The remaining counts were misdemeanors and petty misdemeanors. Id.
. The relevant version of HRS § 706-661 entitled "Extended terms of imprisonment,” 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:
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(3) 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:
(1) 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 older;
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(4) The 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[.]
(Emphases added.)
.The Honorable Dexter D. Del Rosario presided.
. Petitioner raised as a third point of error that "Cr. No. 06-1-0696 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,
. See supra note 1.
. 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. Toyomura,
. 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,
. We observe that sentencing options should be raised and considered at the time of the sentencing hearing.
. 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.
Gaylord,
. The maximum indeterminate term for a class B felony is 10 years. See HRS § 706-660(1). The mandatory minimum term is a part of the maximum indeterminate term, see HRS § 706-606.5(5), and will run consecutively to the prior conviction. Kamana'o,
. Requiring a sentencing court to consider the factors in HRS § 706-606 signaled a shift in legislative policy from the “pre-1986 emphasis on rehabilitation to a post-1986 overriding aspiration ‘to afford deterrence and to provide just punishment.'” Gaylord,
. 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.
. The Hall court recognized that the sentencing court has broad discretion, but also that the court must suppоrt 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 might be found under the following circumstances: (I) [fjailure to state on the record the relevant and material factors which influenced the court’s decision.
Hall,
[Tfhere 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. [TJhere 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 McCleary,
. The concurrence in part and dissent in part, asserted that
contrary to the majority's position, I would vacate the sentences and the judgments thereon and remand for a jury trial, unless waived by Appellant, on the motion for extended terms filed by Plaintiff-Appellee State of Ha-wai'i (the prosecution). This disposition on remand is required because (1) [HRS] §§ 706-661 and -662, the extended term sentencing statutes, are not rendered unconstitutional in their entirety under Cunningham, (2) the legislature expressly intended to preserve extended term sentencing, (3) such a disposition is approved by Cunningham, and (4) the facts of this appeal warrant it.
. It may be noted that, "[effective October 31, 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,
. 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., Kamana'o,
. 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 affir-mance 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.)
. 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.
. The ICA 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 Hawai'i rule provides 90 days.” Hussein,
. It should be noted that until this court acts with regard to Petitioner's application for certio-rari, there is no final judgment in this appeal. See Hawaii Rules of Appellate Procedure (HRAP) Rule 41 (2008); Rapozo v. Better Hearing of Hawaii, LLC,
. 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 appeal, 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 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. Hill,
. HRS § 602-59(b) (Supp.2008) states:
(b) The application for writ of certiorari shall tersely state its grounds, which shall include:
(1) Grave errors oflaw or of fact; or
(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.)
. See, e.g., Mikasa,
. For example, in Kaufman, this court affirmed the ICA, which had affirmed the circuit court.
. See also dissenting opinion at 533,
. The dissent argues that because we do not require specific findings of fact, sentencing courts could satisfy the rule by “parrotfing] or repeating] die language of the factor itselff.]” Dissenting opinion at 540,
. Indeed, in the past we have similarly adopted prophylactic rules governing the conduct of criminal trials and sentencing. For example, in Tachibana v. State,
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.
Id. at 238,
However, here, as in Tachibana, ihe 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!,]” id. at 235,
. 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 sеction. The finding of the court shall be incorporated into the record.
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(4) Multiple offender. The defendant is a multiple offender whose criminality was so extensive that a sentence of imprisonment for an extended term is wananted. ...
Huelsman,
. See also State v. Melear,
. 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 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.
. 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 PSI, 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.
. The dissent argues Heggland "is inapposite because ... convictions although contained in a PSI report, can be ascertained from the public records[.]” Dissenting opinion at 542,
[Heggland] said he was sentenced in 1997 for the Arizona case first. (It 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 III), 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 codefen-dants as he was the one who possessed the handgun. After sentencing in Colorado, he said he was returned to Arizona to serve his prison term. Due to misconducts [sic], he ended up serving a longer sentence, four years nine months.
Id. at 443,
. The dissent charges that the sentencing court (and apparently the ICA,) "unwittingly ... violated] ... the confidentiality of ... PSI reports,” dissenting opinion at 542,
. The dissent cites to State v. Pantoja, 89 Hawai'i 492,
. 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 failure to file a HRPP Rule 35 motion because it was not "filed, in advance of the notice of appeal." (Emphasis added.) Because Petitioner's belief that counsel forfeited her opportunity to file a HRPP Rule 35 motion by not filing before the notice of appeal was central to her ineffective assistance argument, i1 was incumbent upon the ICA in addressing that argument to point out that counsel had not in fact forfeited such motion, inasmuch as it could still be filed following appellate proceedings.
. I observe that then-intermediate Court of Appeals (ICA)-Judge Acoba authored the opinion for the court.
Concurrence Opinion
Opinion by
I concur in the majority’s affirmance of Petitioner’s consecutive sentence based upon the application of the presumption that the sentencing court considered all of the factors set forth in Hawaii Revised Statutes (HRS) § 706-606 before imposing a consecutive sentence, originally promulgated in State v. Sinagoga,
I. DISCUSSION
A. Violation of the Doctñne of Stare Deci-sis
As related by the majority, Petitioner, at the time of sentencing
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 term already being served, as recognized by the court, “in all of her eases, [Petitioner] will be serving a [twenty]-year term of incarceration.”
Majority op. at 499,
Under that standard, the [sentencing] 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.
Id. at 503,
In Sinagoga, decided in 1996, the ICA reviewed the defendant’s challenge to the sentencing court’s imposition of three consecutive terms of imprisonment on three counts of terroristic threatening. In imposing the consecutive terms, the sentencing judge:
orally reviewed [defendant's prior criminal record, which included convictions in various jurisdictions for burglary, assault, driving under the influence, and drug and concealed weapon possession. [The sentencing judge] noted that the offenses [defendant was charged with in the present ease were felonies involving violence, and that [defendant was not а young man. [The sentencing judge] then declared that [defendant would be “a danger to people, whether in Hawaii or any other state where he happens to be; and that as long as he’s free to do so, he’s going to continue to be a danger to both people and to property.”
Sinagoga,
In light of the [trial] court’s finding that [defendant posed “a danger to people” and if “free[d]” would “continue to be a danger,” the court undoubtedly considered “[t]he need for the sentence ... [t]o reflect the seriousness of the offense[s], to promote respect for [the] law, and to provide just punishment....” HRS § 70[6]-606(2)(a). Arguably, the “needed ... correctional treatment” factor in HRS § 706-606(2)(d) was implicit in the court’s sentence of incarceration, along with the court’s consideration of “[t]he kinds of sentences available” as the factor in HRS § 706-606(3) required.
The 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. The statute contains no requirement that the court expressly recite its fíndings on the record for each of the factors set forth in HRS § 706-606. Nevertheless, under HRS § 706-668.5, judges are duty-bound to consider HRS § 706-606 factors before imposing sentence. The information relevant to HRS § 706-606 factors is made available to the judges in pre-sentence reports. HRS § 706-601 (1993). The law presumes that judges will conscientiously fulfill their duty to obey the directive of HRS § 706-668.5, and that counsel will offer factor-relevant information at sentencing hearings mandated by HRS § 706-604 (Supp.1992). Therefore, absent clear evidence to the contrary, it is presumed that a sentencing court, following the receipt of a pre-sentence report under HRS § 706-601 and a mandated sentencing hearing under HRS § 706-60j, will have considered all the factors in HRS § 706-606 before imposing concurrent or consecutive terms of imprisonment under HRS § 706-668.5.
Id. at 428,
Clearly, the majority’s application of the Sinagoga presumption is consistent with the doctrine of stare decisis, which is
“a doctrine that demands respect in a society governed by the rule of law.” While the doctrine of stare decisis does not absolutely bind [a c]ourt to its prior opinions, a decent regard for the orderly development of the law and the administration of justice requires that directly controlling cases be either followed or candidly overruled.
Solem v. Helm,
While there is no necessity or sound legal reason to perpetuate an error under the doctrine of stare decisis, we agree with the proposition expressed by the United States Supreme Court that a court should “not depart from the doctrine of stare decisis without some compelling justification.” Hilton v. South Carolina Pub. Ry. Comm’n,502 U.S. 197 , 202,112 S.Ct. 560 ,116 L.Ed.2d 560 (1991) (emphasis added). Cf. Dairy Road Partners v. Island Ins. Co., Ltd.,92 Hawai'i 398 , 421,992 P.2d 93 , 116 (2000) (stating that “a court should not overrule its earlier decisions unless the most cogent reasons and inescapable logic require it”) (internal quotation marks and citations omitted). Thus, when the court reexamines a prior holding, its judgment is customarily informed by a series of prudential and pragmatic considerations designed to test the consistency of overruling a prior decision with the ideal of the rule of law, and to gauge the respective costs of reaffirming and overruling a prior case. Planned Parenthood of Southeastern Pennsylvania v. Casey,505 U.S. 833 , 854,112 S.Ct. 2791 ,120 L.Ed.2d 674 (1992). In this calculus, considerations of stare deci-sis have special force in the area of statutory interpretation, for here, unlike in the context of constitutional interpretation, the legislative power is implicated, and the legislative branch remains free to alter what we have done.” Hilton,502 U.S. at 202 ,112 S.Ct. 560 .
Garcia,
Here, as in Sinagoga, the sentencing court’s consideration of the “kinds of sentences [that were] available,” HRS § 706-606(3), in this ease “was implicit in the court’s [ultimately imposed] sentence of incarceration.” Sinagoga,
B. Obitur Dictum
“Obiter dictum” is “[a] judicial comment made while delivering a judicial opinion, but one that is unnecessary to the decision in the case and therefore not precedential (although it may be considered persuasive).” Black’s Law Dictionary 1102 (8th ed.2004) (emphasis added). The majority’s affirmance of Petitioner’s sentence based on the existing presumption in Sinagoga,—that was also followed in Vellina and Tauiliili,
This court has stated that, under the doctrine of stare decisis, “it is the duty of all inferior tribunals to adhere to the decision [of a court of last resort], without regard to their views as to its propriety, until the decision has been reversed or overruled by the court of last resort or altered by legislative enactment.” Robinson v. Ariyoshi,
we think a more constructive approach would be to consider a statement of a superior court binding on inferior tribunals, even though technically dictum, where it “was passed upon by the court with as great care and deliberation as if it had been necessary to decide it, was closely connected with the question upon which the case was decided, and the opinion was expressed with a view to settling a question that would in all probability have to be decided before the litigation was ended.”
Id. at 655,
Although I concur in the Robinson court’s “constructive approach” to affording prece-dential value to statements that are “technically dictum,” especially where “the opinion was expressed with a view to settling a question that would in all probability have to be decided before the litigation was ended,” Robinson,
In the case at bar and notwithstanding the fact that the sentencing court did not state its reasons for the imposed sentence, the majority concludes that neither the ICA nor the sentencing court erred based on its application of Sinagoga. Such conclusion effectively ends Petitioner’s “litigation” with respect to her first point of error, and, as a result, the majority’s discussion regarding Petitioner’s sentence should end there; it does not.
Instead, the majority includes a lengthy discussion that is not only wholly unnecessary to the disposition of the instant case, but inappropriately sets forth a new “rule” mandating that sentencing judges state their reasons for imposing a consecutive versus concurrent sentence, which creates an untenable situation for our sentencing judges, discussed infra. Under the “constructive approach” described in Robinson, the majority’s discussion setting forth its new “rule” is not being “expressed with a view to settling a question that would in all probability have to be decided before the litigation was ended.”
Nevertheless, the majority asserts that, “despite the absence of any reversible error in the ICA’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 ICA.” Majority op. at 504,
My belief that the majority’s opinion violates the doctrine of stare decisis and constitutes dicta is entirely unrelated to any issues regarding this court’s power to accept or reject applications for certiorari review but, rather, is based wholly on my belief that the majority’s holding here is only tangentially related to the facts presented in this opinion and has no effect on the parties currently before this court. To be clear, what makes the majority’s discussion dicta is that its entire discussion underlying the new “rule” is wholly unnecessary to the disposition of Petitioner’s first point of error and that the majority resolves the alleged error not by applying the new “rule,” but by the application of the existing precedent, i.e., the Sina-goga presumption. Thus, in my view, the majority’s discussion is merely a thinly veiled attempt to set forth a new rule that is entirely unrelated to the issues that the parties asked this court to decide.
In an apparent attempt to establish a connection between its new “rule” and the disposition of Hussein’s case, the majority argues that:
[Hussein] has indicated that she believed a HRPP Rule 35 motion should have been filed. Inasmuch as we clarify that[,] upon remand, [Hussein] has the opportunity to file a HRPP Rule 35 motion, our holding that the sentencing court would be required to state reasons is germane to [Hussein’s] probable [HRPP] Rule 35 motion and, thus, cannot be considered dicta.
Majority op. at 515,
In the instant case, however, the majority affirms Hussein’s consecutive sentence, agreeing with the ICA that the sentencing court “did not abuse its discretion” in imposing such sentence. Id. at 501,
The majority’s argument that the filing of a HRPP Rule 35 motion is “probable” rests solely on the fact that Hussein argued in her application that a HRPP Rule 35 motion “should have been filed.” However, based on the law of the case established by the majority opinion and the fact that it is impossible to foretell what actions, if any, Hussein will take post-appeal, the majority’s arguments regarding a “probable” HRPP Rule 35 motion filed by Hussein are both legally and factually unsupported and improperly based on mere speculation.
Additionally, the majority concludes, based on Lau, that
the rationale supporting the rules set forth in this case and in Lau are closely analogous. Also, the dissent’s assertion that the “new rule ... [is] wholly unrelated to the issue being ‘clarified,’ “ dissenting op. at 543,229 P.3d at 361 , 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 .
Majority op. at 516,
Admittedly, the issue in Lau and in the instant case are nearly identical, i.e., dealing with the sentencing court’s failure to state its reasons for the imposed sentence; however, the circumstances surrounding the eases are entirely distinguishable. First, Lau was decided gve-Sinagoga; thus, the Lau court was not bound by an existing precedent as are the ICA and this court here. Second, this court in Lau did not have the benefit of reviewing the information contained in the PSI report to assess whether sufficient evidence existed to support the sentencing court’s imposed sentence.
Nevertheless, the majority maintains that, “[jjust 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.” Majority op. at 516,
I recognize that appellate courts do not always apply new pronouncements retrospectively where such application would create a significant burden on the administration of justice. However, assuming for the sake of argument that the majority’s new “rule” has any precedential application whatsoever given its dieta-based creation, the question of retrospective application would arise only if the presumption in Sinagoga were overruled. By not doing so, any issue regarding a defendant’s consecutive sentence where the trial court failed to explicitly state its reasons would be governed by Sinagoga—whether arising pre-or post-new “rule”—because (1) the presumption is still good law and (2) its application would not only be consistent with the doctrine of stare decisis, but would require adherence. See Solem,
The majority also cites to State v. Huelsman,
As indicated by the majority, the defendant in Huelsman challenged the sentencing court’s imposition of an extended sentence, contending that the extended term statute-HRS § 706-662 (1978)
The record in these cases[7 ] does not disclose that the sentencing judge gave any consideration to protection of the public as a reason for imposing the extended terms, as distinguished from the purely retributive purpose of enhancing the punishment inflicted on appellant for his offenses. We find it necessary, therefore, to ... remand these cases for resentencing in light of this opinion and need not deal in detail with appellant’s contentions with re-speet to the extended term sentence proceedings from which these appeals are taken.
The present appeal exemplifies how difficult it may be to determine from the record of an extended term sentence hearing whether the discretion of the sentencing court was exercised within the statutory guidelines. The practice followed by sentencing courts of entering conelusory findings in the language of the applicable subsection of s 662 tends 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. Accordingly, we direct that in further proceedings in these cases, and in all other 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 tern is necessary for protection of the public and shall enter into the record all findings of fact which are necessary to its decision. The record in each such case shall include the presentence report and all evidence considered by the sentencing court.
Id. at 91-92,
Thus, although the Huelsman court did set forth a new rule “mandating] that sentencing courts state their reasons for imposing an enhanced sentence on the record,” majority op. at 519,
In sum, because the entirety of the majority’s extensive discussion, attempting to justify its new “rule,” constitutes obiter dicta, the “rule” clearly has no precedential value. In fact, the most that can be said of the majority’s new “rule” is that it is merely a restatement of the “urg[ing] and [strong] recommend[ation]” in Lau that sentencing courts state their reasons for the imposed sentence and to also state that sentencing alternatives were considered. See majority op. at 503-04,
C. Placing Sentencing CouHs At Risk
As importantly, I have grave concerns that the majority’s new “rule” creates an untenable situation for our sentencing judges. In conscientiously attempting to comply with the majority’s new “rule” that they state specific reasons for imposing a consecutive sentence, our sentencing judges may unwittingly divulge confidential information gleaned from PSI reports in contravention of HRS § 806-73.
It is well-settled that, “[i]n ordinary sentencing situations, the sentencing court is given a great deal of discretion to fashion an ‘individualized’ sentence, ‘fitted to the personal characteristics of the defendant,’ and ‘the particular circumstances of [the] defendant’s ease.’” State v. Pantoja,
Pursuant to HRS § 706-602(1) (1993), the PSI report 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 thereby, education, occupation, and personal habits;
(c) Information 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) Information concerning defendant’s compliance or non-compliance with any order issued under section 806-11[ (regarding the disposal of firearms) ]; and
(e) Any other matters that the reporting person or agency deems relevant or the court directs to be included.
In 1985, the legislature considered “A Bill [ (S.B. No. 249) ] for an Act Relating to the Confidentiality of Adult Probation Records” and indicated that
[r]ecords [(ie., case records and PSI reports) ] originated by adult probation officers pursuant to the duties and powers already established in section 806-73, Hawaii Revised Statutes, are not clearly and expressly confidential. This fact sometimes hampers adult probation officers in the performance of them duties. This bill makes explicit the documents which can be released and to whom they can be released.
Conf. Comm. Rep. No. 14, in 1985 Senate Journal, at 852; Conf. Comm. Rep. No. 24, in 1985 House Journal, at 894. Consequently, HRS § 806-73 now provides that “[a]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.” See also Lau,
In 2006, when considering further revisions to HRS § 806-73 “to add persons and entities to the list of those who are allowed access to adult probation records,” Sen. Stand. Comm. Rep. No. 2250, in 2006 Senate Journal, at 1134, the Committee on Judiciary and Hawaiian Affairs noted its 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.” Id. To address those concerns, the Committee amended the measure (generally limiting disclosure of certain types of information) “to balance privacy and other issues,” id., which amendments were eventually adopted.
As observed by the American Bar Association (ABA) in its commentary to standards related to confidentiality of PSI reports:
The willingness of persons to respond fully and candidly to preparers of presen-tenee reports is affected by the expectation as to the ultimate distribution of those reports. Among the sources from whom information may be sought about individual defendants are the defendants themselves, members of their families, and others who may have significant information, relevant to sentencing, about the defendants’ private lives. It is in the public interest to encourage disclosures of information by the assurance that the information will not be made available generally to the public. Offenders have a right to privacy on matters not connected to the offenses of which they have been convicted. No legitimate interests are served by making the contents of presentence reports routinely a matter of public record. ...
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It almost goes without saying that the presentence reports should be available to sentencing courts and to appellate courts reviewing sentences. Of course, reports should be made available in a manner that does not incorporate them into the open records of the cases.
ABA Standards for Criminal Justice: Sentencing at 186, Standard 18-5.6 (3d ed.1994) (emphases added). Relatedly, ABA Standard 18-5.21, which addresses the contents of presentence reports, provides in relevant part: “(b) The rules should establish appropriate measures to protect the privacy of offenders or victims with regard to informa
Paragraph (b) cautions that the raw data includеd in the sentence reports may include information about offenders and victims and about other persons that is not a matter of public record. Individuals’ privacy should be protected against unwarranted disclosures. Sentence reports should be open to persons with satisfactory reasons for access to the raw data only on conditions that take privacy concerns adequately into account.
Id. at 217-18.
The foregoing underscores my fear that sentencing judges, in conscientiously attempting to comply with the majority’s new “rule”, may unwittingly violate the legislative intent and statutory mandate. Although I acknowledge that this court has previously urged and recommended that our sentencing courts state the reasons for the imposed-sentence and that sentencing alternatives were considered, see, e.g., Lau,
Moreover, the new “rule” announced today by the majority not only trespasses upon a sentencing court’s discretion, but will create confusion for our sentencing judges. The majority’s holding today begs the question: “How will the new ‘rule’, henceforth, co-exist with the un-overruled presumption in Sina-goga?” To illustrate, assume a sentencing court fails to state its reasons for imposing a consecutive sentence on the record as required under the majority’s decision in this case. The defendant then appeals the sentence, arguing that the sentencing court violated “the Hussein ‘rule.’ ” Based upon the majority’s holding today, it is unclear what
If, for example, a sentencing judge’s “reasons” for imposing a consecutive sentence is based on confidential information gleaned from the PSI report, such as the defendant’s “history of delinquency,” “mental condition,” “family situation,” “personal habits,” or other such information not available from public records,
D. The Majority’s Commentary on HRPP Rule 35
The majority states that,
[bjecause the ICA ruled on counsel’s failure to file a Rule 35 motion prior to initiation of appellate proceedings, one may be left with the impression that the time for filing had expired. Indeed, subsequent to the ICA’s SDO, Petitioner indicates [in her application] that “[t]he Ha-wai'i rule retains the [cjourt’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.” Petitioner therefore apparently believes that because counsel failed to file a HRPP Rule 35 motion, she has lost that opportunity.
Majority op. at 512,
In her application, Petitioner specifically argues:
Contrary to the ICA’s footnote 3 [ (commenting on the similarities between the federal Rule 35 and Hawaii’s Rule 35, except with regard to the time limitations for bringing such motion) ], there is a crucial distinction between the federal and Hawaii'i Rule 35 provision. The Hawai'i rule retains the lower [c]ouH's jurisdiction to reduce a sentence if the motion is filed, prior to the notice of appeal. [Petitioner] contends, due diligence required such a motion.
(Emphasis added.) Contrary to the majority’s pure speculation that “one may be left with the impression that the time for filing [a Rule 35 motion] had expired[,]” and that Petitioner, “therefore[,] apparently believes that[,] because counsel failed to file a HRPP Rule 35 motion, she has lost that opportunity[,] id. (emphases added), nowhere in her application does she indicate such belief. All that can be gleaned from Petitioner’s application is that she believed the mere failure to file a Rule 35 motion prior to the notice of appeal amounted to ineffective assistance of counsel.
Moreover, there is absolutely nothing in the ICA’s SDO that could reasonably be interpreted as suggesting that, “because counsel failed to file a HRPP Rule 35 motion, Petitioner has lost that opportunity.” Id. The ICA’s entire analysis with regard to Petitioner’s contention that counsel’s failure to file a Rule 35 motion constituted ineffective assistance consists of the following:
Finally, we note that in Shraiar v. United States,736 F.2d 817 (1st Cir.1984), a defendant claimed that counsel failed to file a motion for reduction of his sentence, pursuant to Federal Rules of Criminal Procedure 35(b).3 736 F.2d at 818 . The court in Shraiar stated:
The rule does not suggest that a motion should be filed automatically in every case. To the contrary, the Advisory Committee’s note indicates that such аmotion 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.
Id. We reject [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.
SDO at 7. One need only read Rule 35 to understand—as even the majority acknowledges—that “the plain language of ... Rule 35(b) ... 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[.]’ ” Majority op. at 512,
Finally, although I recognize that this court has granted certiorari in the absence of any error in order to provide clarification, none of the cases relied upon by the majority, see id. at 513,
despite “[fjinding no reversible error,” and “affirming 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.” Lau,73 Haw. at 264 ,831 P.2d at 526 ....
... As in Lau, we may impose measures related to improving the administration of justice where the facts of the ease warrant.
Majority op. at 515-16,
review of the record reveal[ed] that the sentencing court had the benefit of a pre-sentence report, the arguments of counsel, which included references to both the ordinary twenty year term and the special indeterminate term of eight years, and [the defendant’s personal statement,” and, thus, it could be reasonably inferred that “the sentencing court did consider the sentencing alternatives.
Id. at 260,
To the contrary, the issue purportedly being clarified here is related to Petitioner’s purported belief that, “because counsel failed to file a HRPP Rule 35 motion, she has lost that opportunity.” Majority op. at 542,
II. CONCLUSION
Based on the foregoing, I concur in the majority’s affirmance of the sentence imposed upon the Petitioner. I cannot agree, however, with the majority’s new “rule,” mandating the sentencing court to state specific reasons when imposing a consecutive sentence—without overruling the long-standing presumption set forth in Sinagoga—be-cause it violates the doctrine of stare decisis. Moreover, the majority’s entire discussion of its new “rule” is obiter dicta, ie., not necessary to the actual adjudication of this case, has no precedential value and is, thus, not binding on our sentencing courts. The majority’s attempt to bolster the viability of its new “rule” based on its prediction that Hussein will probably file a post-appeal HRPP Rule 35 motion is factually and legally unsupported and based on mere speculation. I also believe that, given the plain language of HRPP Rule 35, the ICA’s disposition with regard to the HRPP Rule 35 motion does not require clarification. The majority’s attempt to justify its commentary on HRPP Rule 35 under the guise of an unwarranted clarification is, in my view, wholly inappropriate. Inasmuch as I concur in the majority’s conclusions that neither the ICA nor the sen-, tencing court erred, I would affirm the ICA’s judgment on appeal via order without further comment.
. Factors (2)(a), (2)(d), and (3) state:
(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;
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(d) To provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner; [and]
(3) The kinds of sentences available[.]
HRS § 706-606.
. In Lau, the defendant asserted on appeal that "the sentencing court committed reversible error by not stating its reasons for imposing a twenty year sentence [(as opposed to the special indeterminate term of eight years) ].” Id. at 260,
Our review of the record reveals that the sentencing court had the benefit of a[PSI] report, the arguments of counsel, which included references to both the ordinary twenty year term and the special indeterminate term of eight years, and [defendant's] personal statement. Thus, we can reasonably infer that the court did consider the sentencing alternativesf.J
Id. (emphasis added). Consequently, the Lau court affirmed the defendant's sentence.
. In Nobrega, this court observed that:
Perhaps the strongest reason that can be urged in support of the course pursued [here] is that the case [before the court in Nobrega ] was to go back to the [c]ircuit [c]ourt for further action and that that court would naturally want instructions upon the point in question and that, if such instructions were not given, the case would probably be brought to this court again for the settlement of the question. Under such circumstances, with a view to settling the law of the case once and for all, the court would often be justified in going further than it would under some other circumstances.
Nobrega,
. In Lau, this court observed that "traditionally the [PSI] report is not admitted into evidence or made part of the record on appeal,”
had the pre-sentence report been made part of the record in this case (and ordered sealed to comply with the confidentiality requirement of HRS § 806-73), our review of the report could have been helpful in determining all of the specific factors which the sentencing court had before it when it considered the sentencing alternatives.
Id. at 264-65,
. At the time Huelsman was decided, HRS § 706-662 stated in relevant part that:
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 in the record.
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(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. The court shall not make such a finding unless:
(a) The defendant is being sentenced for two or more felonies or is already under sentence of imprisonment for felony; or
(b) The maximum terms of imprisonment authorized for each of the defendant’s crimes, if made to run consecutively would equal or exceed in length the maximum of the extended term imposed, or would equal or exceed forty years if the extended term imposed is for a class A felony.
(Emphases added.)
. I note that Huelsman dealt with an appeal from four separate cases.
. The majority attempts to bolster its reliance on Huelsman based on its prediction that Hussein will probably file a post-appeal HRPP Rule 35 motion. However, as previously discussed, the majority’s prediction is legally and factually unsupported and improperly based on mere speculation. Consequently, I continue to believe that the majority’s reliance on Huelsman is misplaced.
. As previously stated, the Sinagoga court observed that there is no statutory requirement "that the court expressly recite its findings on the record for each of the factors set forth in HRS § 706-606.” Sinagoga,
orally reviewed Defendant’s prior criminal record, which included convictions in various jurisdictions for burglary, assault, driving under the influence, and drug and concealed weapon possession. [The sentencing judge] noted that the offenses Defendant was charged with in the present case were felonies involving violence, and that Defendant was not a young man. [The sentencing judge] then declared that Defendant would be "a danger to people, whether in Hawaii [Hawai'i] or any other state where he happens to be; and that as long as he’s free to do so, he's going to continue to be a danger to both people and to property.”
Id. at 425,
In my view, the most critical tool that is "essential to appellate review” is the PSI report, which is now available due to the mandate in Lau that the report be sealed and made part of the record. Given the presumption in Sinagoga that the sentencing court considered the factors enumerated in HRS § 706-606, the appellate court’s task is to review the PSI report, including the evidence presented and the arguments made by counsel at the sentencing hearing, and then decide whether there is sufficient support in the record for the imposed sentence, i.e., that the sentencing court did not abuse its discretion. The majority’s new "rule” that compels sentencing judges state their reasons is not "essential to appellate review,” it simply makes it easier.
. The majority believes that my view “stems from [my] confusion between the requirement in HRS § 706-668.5 that the court consider all of the HRS § 706-606 factors before imposing a consecutive or concurrent sentence, and the requirement expressed [in the majority's opinion] that the court state its reasons for imposing a consecutive sentence.” Majority op. at 519,
. I note that, although information regarding a defendant’s adult criminal convictions, including the conviction for which he or she is currently being sentenced, are subjects covered in the PSI report, the same information can be ascertained from the records of the underlying criminal cases, which are public records. Thus, I am not concerned about divulging information about a defendant’s prior adult criminal record.
Moreover, I am not'—as the majority curiously asserts—suggesting that: (1) the judge should be "precluded from relying upon [any] information in the PSI”; or (2) “no court, no prosecutor, and no defense attorney could reference any information in the PSI regardless of the type of sentencing proceeding." Majority op. at 526,
Additionally, the majority mischaracterizes the dissent's position when it argues that "prior offenses or police reports” “are not pub[l]ic records despite the dissent's statement to the contrary.” Id. (emphasis added). To be clear, I reiterate that I am not concerned about information regarding a defendant’s adult criminal convictions inasmuch as such information, i.e., the defendant's various criminal court case files, are accessible to the public, unless they have been sealed by the court.
. Indeed, the majority’s discussion of State v. Chavira, No. 29082 (Haw.App. Feb. 25, 2009) (s.d.o.), clearly demonstrates how sentencing judges can unwittingly (and, undoubtedly, under the majority’s new rule will) violate the legislative intent and statutory mandate regarding the confidentiality of the information contained in PSI reports. Presumably, in attempting to comply with the urging of the Lau court to state its reasons for the imposed sentence, the Chavira court divulged detailed information contained in the PSI report regarding the defendant’s personal and family history. Because the PSI report is sealed and made part of the record, the sentencing court could have simply referred to the defendant’s personal and family history in general terms, indicating that the basis of which is con-taincd in the PSI report, and the appellate court could itself have simply reviewed the PSI report to ascertain if it contained sufficient basis to support the sentencing court’s conclusions.
Additionally, the majority's discussion of State v. Heggland,
. 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 Hawai'i rule provides 90 days.