Friday, April 23, 2010

Sentencing Court has to Explain why it gave Consecutive Terms

State v. Hussein (HSC April 21, 2010)

Background. Hussein pleaded guilty to 39 offenses. This included 8 counts of identity theft in the 2d degree, class B felonies, 4 counts of identity theft in the 3d degree (class Cs), 15 counts of forgery in the 2d degree (class Cs), 1 count of fraudulent use of credit card (a class C), and 7 counts of theft in the 2d degree (class C). Hussein was already serving a ten-year sentence (one ten-year term and two five-year terms concurrently). The State moved for the instance offenses to run consecutively with the one she was already serving. The circuit court granted the motion. Hussein appealed on the grounds that the sentence was unlawful and that her counsel was ineffective for not presenting mitigating factors at sentencing and for failing to file a motion to reduce the sentence. The ICA affirmed.

No "Clear Evidence" that the Sentencing Court Failed to Consider General Sentencing Factors. The sentencing court has wide discretion in imposing a sentence. State v. Kapahea, 111 Hawai'i 267, 278, 141 P.3d 440, 451 (2006). When considering whether to run sentences concurrently or consecutively, the sentencing court must look to a number of factors listed in HRS § 706-606. HRS § 706-668.5(2). "Absent a clear evidence to the contrary, it is presumed that a sentencing court will have considered all factors before imposing concurrent or consecutive terms of imprisonment under HRS § 706-606." State v. Tauiliili, 96 Hawai'i 195, 199, 29 P.3d 914, 918 (2001). Here, the HSC held that because the circuit court heard argument from both parties on the motion for consecutive sentences, took notice of the record, and reviewed the pre-sentence investigation (PSI) report, there was no "clear evidence" to rebut the presumption. Thus, the HSC held that the ICA did not gravely err in affirming the consecutive sentence.

New Rule: Sentencing Court must Explain why it Imposed Consecutive Terms. Generally, "[a]lthough 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[.]" State v. Lau, 73 Haw. 259, 263, 831 P.2d 523, 525 (1992). Relying on a bevy of sources ranging from the ABA proposed standards, to the defendant's right to allocution, see State v. Chow, 77 Hawai'i 241, 250, 883 P.2d 663, 672 (App. 1994), to the reasoning in Oregon v. Ice, 555 U.S. __, 129 S.Ct. 711 (2009), and the law of other jurisdictions, the HSC set forth a new rule in sentencing procedure: the sentencing court "must state its reasons as to why a consecutive sentence rather than a concurrent one was required."

The HSC explained that this new rule serves two purposes. First, sentencing courts now must identify the facts or circumstances that the court considers important. This "express statement, which evinces not merely consideration of the [HRS § 706-606] 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, stating the reasons on the record constitute the court's conclusions drawn from the facts as they pertain to the sentencing factors. This allows, for example, the defendant to be informed that the court has concluded he or she is dangerous to the safety of the public, or poses an unacceptable risk of re-offending. See HRS § 706-606(2). In other words, according to the HSC, stating the reasons "confirm for the defendant, the victim, the public, and the appellate court, that the decision to impose consecutive sentences was deliberate, rational, and fair."

Sorry Folks, not a Retroactive Rule. The HSC made it crystal clear that "circuit courts must state on the record at the time of sentencing the reasons for imposing a consecutive sentence" only after the filing of the judgment in this case.

Not all Sentencing Courts are "Circuit Courts." The final articulation of the new rule states that "circuit courts" are required to state why it imposed a consecutive sentence. But circuit courts are not the only sentencing courts in Hawai'i. What if a district court wanted to impose consecutive sentences? Or how about the family court imposing consecutive sentences for abuse of a family or household member? Perhaps there is no meaningful distinction. But the HSC did not explain why circuit courts were required, but other sentencing courts were not.

Defense Counsel not Ineffective. The HSC rejected Hussein's claims of ineffective assistance of counsel based on the failure to present mitigating factors. According to the HSC, these factors were presented by counsel and were in the PSI report. The sentencing court was made aware of them at the time of the sentencing by reviewing the PSI report. As for the failure to file a motion to reduce the sentence pursuant to Hawai'i Rules of Penal Procedure (HRPP) Rule 35, the HSC stated that "counsel's decision not to file a[n] HRPP Rule 35 motion post-sentencing to present those same factors did not fall outside the range of competence expected of criminal lawyers."

But Remember, HRPP Rule 35 Motions can still be Brought after Appeal. The HSC took this opportunity to clarify the right to file an HRPP Rule 35 motion. "The court may reduce a sentence within 90 days after the sentence is imposed, or within 90 days after receipt by the court of a mandate issued upon affirmance of the judgment or dismissal of the appeal." HRPP Rule 35(b). The HSC wanted to clarify that a motion to reduce sentence can still be brought after the judgment was affirmed on appeal. See State v. Rodrigues, 68 Haw. 124, 133 n. 7, 706 P.2d 1293, 1300 n. 7 (1985), State v. Putnam, 93 Hawai'i 362, 365 n. 4, 3 P.3d 1239, 1242 n. 4 (2000), State v. LeVasseur, 1 Haw. App. 19, 29, 613 P.2d 1328, 1335 (1980). Thus, the HSC held that Hussein can still file her own HRPP Rule 35 motion once the judgment in this case is issued.

Chief Justice Moon's Concurrence and Dissent. Chief Justice Moon agreed with the majority that the ICA's sdo should be affirmed. However, he took issue with the court's new requirement. First, requiring the sentencing court to state specific reasons for imposing consecutive sentence terms without overruling State v. Sinagoga, 81 Hawai'i 421, 918 P.2d 228 (App. 1996), which applied the presumption that the sentencing court considered all of the HRS § 706-606 factors before imposing the consecutive sentence, violated the doctrine of stare decisis. Chief Justice Moon wrote that the majority's new rule did not seem to apply to Hussein since it held that she failed to present absence overcoming the presumption of correctness in sentencing. That meant, according to Chief Justice Moon, that the discussion and announcement of the new rule was unnecessary and inapplicable obiter dicta. This only causes confusion because Sinagoga was not expressly overruled. Moreover, according to Chief Justice Moon, the majority exploited the certiorari system in order to promulgate a new rule "that is wholly unnecessary to the disposition of Hussein's conviction or sentence, and attempts to justify its grant of [Hussein's] application by conjuring up an issue surrounding HRPP Rule 35 under the guise of providing clarification." Justice Nakayama joined.

Tuesday, April 20, 2010

Family Court Cannot Mix and Mash Juvie Jurisdiction

In re N.C. (HSC April 19, 2010)

Background. When N.C. allegedly committed sex acts with another child when N.C. was eight and nine years old. The prosecutor's office filed petitions against N.C. alleging that N.C. "violated or attempted to violate the law": three counts of sexual assault in the third degree. About a month later, the prosecutor's office amended the petition and added to each count that N.C. committed the offense of sexual assault in the third thereby bringing "him before [the family court] as a Person in Need of Supervision under sections 571-11(2) and 571-44[.]" After motions to dismiss were denied, the prosecutor and N.C. stipulated to submit evidence to the family court in lieu of testimonial evidence. The family court concluded that N.C. was a "status offender" and sentenced N.C. N.C. appealed. The ICA affirmed the family court.

A Highly Technical Point: the Opening Brief Needs an Argument. The ICA refused to hear N.C.'s argument that the family court erred in failing to engage in an on-the-record waiver of his right to testify on his own behalf. The Opening Brief must contain a "[t]he argument, containing the contentions of the appellate on the points presented and the reasons therefor, with citations on to the authorities, statutes and parts of the record relied on. . . . Points not argued may be deemed waived." Hawai'i Rules of Appellate Procedure (HRAP) Rule 28(b)(7). According to the HSC, the N.C.'s brief included, as a point of error, that the family court erred in failing to establish a wavier of constitutional rights before proceeding on a trial of stipulated evidence. However, N.C.'s "argument" simply stated that the family court "failed to colloquy [N.C.] regarding the relinquishment of the rights he waived by proceeding to trial[.]" This was not enough.

The HSC held that N.C. did not articulate the reasons for his point of error and certainly failed to give any citations to authorities he relied upon. Thus, it was not error to deem this point waived under HRAP Rule 28(b)(7). Nonetheless, the HSC found that the family court's failure to engage N.C. in a colloquy regarding his waiver of his right to testify constituted plain error.

Two Types of Family Court Jurisdiction: Law Violators. HRS § 571-11 affords two kinds of jurisdiction to the family court. The family court has exclusive original jurisdiction over any person under 18 whose alleged act "would constitute a violation or attempted violation of any federal, state, or local law or municipal ordinance." HRS § 571-11(1). Law violator jurisdiction comes with certain procedural requirements. For example, law violator jurisdiction over children under 12 must come with a "written recommendation of a licensed psychologist or psychiatrist or other physician duly qualified by special training and experience in the practice of child psychiatry." HRS § 571-44. Allegations of a law violation must also be proven beyond a reasonable doubt and in accordance with the rules of evidence. HRS § 571-41(c). Disposition of cases also differ. Law violators can be placed on probation and fined. HRS § 571-48(1).

. . . and Persons in Need of Supervision. The family court also has exclusive original jurisdiction over any child in the circuit who is neglected of educational services, who is "beyond the control of the child's parent or other custodian or whose behavior is injurious to the child's own or others' welfare," who is truant, or who is in violation of curfew. HRS § 571-11(2). These allegations need only be proven by a preponderance of the evidence. Probation is not permitted, but the family court can place the child under protective supervision. HRS § 571-48(2).

HSC: the Allegations Determine the Basis of Jurisdiction. The HSC held that the family court erred in adjudicating N.C. as a law violator. The amended petition, according to the HSC, alleged law violations, but cited HRS §571-11(2). Based on the allegations, "the family court was obligated to comply with the requirements of a formal proceeding conducted under HRS" § 571-11(1). This caused all kinds of errors. That meant that the family court's conclusion that the State proved the offenses by a preponderance of evidence was error. It meant that since N.C. was under 12, there should have been a written recommendation by a child therapist pursuant to HRS § 571-44. Finally, it also meant that there should have been an on-the-record colloquy establishing that N.C. knowingly, intelligently, and voluntarily waived his right to testify at his trial. In re T.C., 121 Hawai'i 92, 99-102, 214 P.3d 1082, 1089-92 (2009); Tachibana v. State, 79 Hawai'i 226, 900 P.2d 1293 (1995). The HSC reversed the family court.

Justice Recktenwald's Dissent. Although Justice Recktenwald agreed with the majority that the prosecutor's petitions were problematic, he believed that the remedy should have been depriving the family court of jurisdiction rather than reversing the judgment. Justice Recktenwald noted that the family court's person-in-need-of-supervision jurisdiction is triggered when the child's behavior is injurious to himself or herself or another's welfare. HRS § 571-11(2)(B). That covers a lot of conduct, including conduct that would make him a law violator. Thus, Justice Recktenwald believed that the petition must (1) identify the specific provisions of jurisdiction relied upon and (2) state the "facts that bring the child within the scope of" that jurisdiction. Here, the petitions were defective because they did not identify which aspect of HRS § 571-11(2) applied. Justice Recktenwald wrote that this was a jurisdictional defect that required dismissal. Justice Nakayama joined.

Evaluating the Pleadings Requires an Examination of the Allegations over the Declarations and Citations. The family court's jurisdiction over minors is limited and determined by statute. Here, the complaint mixed the two distinct bases and the HSC had decide which jurisdiction controlled. On one hand there was the direct citation to persons in need of supervision. Then again, the allegations put it closer to law violator jurisdiction. The HSC majority ignored the citations and went with the allegations over the formal declarations of jurisdiction. In essence, the majority looked to the allegations and went with them. But what if there is no citation and a mere allegation? What then?

Entre Dupree. Very recently, the HSC decided a similar issue in Dupree v. Hiraga, 121 Hawai'i 297, 291 P.3d 1084 (2009). In that case, Dupree sent a letter to the county clerk alleging that a candidate for the Maui County Council was not a resident of where he purported to be. The clerk had jurisdiction over two distinct actions: voter registration challenges and nomination paper objections. Like the family court, deadlines and procedures for the action depended on the jurisdiction. The HSC there held that even though the letters alleged a statement of facts that could have fit either jurisdiction, there was no jurisdictional defect, and the clerk did not err in concluding that the letters initiated a voter challenge as well as a nomination papers objection.

Does this case cast doubt upon Dupree? If the allegations--and allegations alone--control, then how would do you determine the basis of jurisdiction of Dupree's letter? And under Justice Recktenwald's analysis in which the complaint must identify the jurisdictional basis as well as the allegations, Dupree becomes even more uncertain. Perhaps Dupree is confined to agency procedures and pro se complaintants. And perhaps the family court pleadings are held to a slightly more restrictive standard. But the HSC never cited Dupree and has left an express explanation on the two cases for another day.

A Disclosure: I was appellate counsel in Dupree. I argued that the letter were defective and did not vest jurisdiction.

Friday, April 2, 2010

ICA Finds Middle Ground Between Mandatory and Directory Deadlines

Styke v. Sotelo (ICA March 31, 2010)

Background. Styke had a fight with her boyfriend, Sotelo. Sotelo was prosecuted. Styke filed an ex parte petition for a temporary restraining order (TRO) against Sotelo. The motion was granted for 90 days on April 2, 2007 with an expiration date on July 3, 2007. The initial show-cause hearing was set for April 12, 2007. The hearing, however, was continued three times. The first continuance went from April 12 to April 19 because Styke was in the hospital. On April 19, the family court judge, Judge Bissen, recused himself because he recognized Styke and "did not have a positive view" of her. Sotelo moved to dismiss the TRO. That was denied and the hearing was continued a 2d time to April 26 before Judge Geronimo Valdriz. On April 26, Judge Valdriz denied Sotelo's renewed motion to dismiss and Judge Valdriz realized he presided over the preliminary hearing in Sotelo's prosecution and recused himself. The hearing was continued a 3d and final time to May 3, before Judge Keith Tanaka. At that hearing, the family court granted Sotelo's motion to dismiss based on "the 15-day rule." Styke appealed.

The Fifteen-day Rule . . . A TRO cannot last longer than 90 days. HRS § 586-5(a). "On the earliest date that the business of the court will permit, but no later than fifteen days from the date the temporary restraining order is granted, the court . . . shall hold a hearing on the application requiring cause to be shown why the order should not continue." HRS § 586-5(b). If service is not effected, the family court may set a new hearing date within the TRO period. Id. "All parties shall be present at the hearing[.]"

"Shall" Doesn't Always mean must. The ICA rejected Sotelo's interpretation that the court "shall hold a hearing" within fifteen days from the granting of the TRO. "It is well-established that, where a statute contains the word 'shall,' the provision generally will be construed as mandatory." Malahoff v. Saito, 111 Hawai'i 168, 191, 140 P.3d 401, 424 (2006). However, that is not always the case. There are some circumstances where "shall" is merely directory (i.e., not mandatory). Shall is non-mandatory "when a statute's purpose confutes the probability of a compulsory statutory design." Narmore v. Kawafuchi, 112 Hawai'i 69, 83, 143 P.3d 1271, 1285 (2006). It is also non-mandatory when "unjust consequences result" or "when no advantage is lost, when no right is destroyed, when no benefit is sacrificed, either to the public or to the individual, by giving it that construction." Id.

When the statute addresses deadlines, the rule is formulated differently:

[A] statute specifying a time within which public officials are required to perform an act is directory unless the statute denies the exercise of power after such time, or the nature of the act or the statutory language indicates that the time was intended to be a limitation. In evaluating whether a provision is to be accorded directory or mandatory effect, the objective of the court is to ascertain the legislative intent.

Malahoff, 111 Hawai'i at 192, 140 P.3d at 425. The ICA also quoted Perry v. Planning Comm'n of Hawai'i County, 62 Haw. 666, 676, 619 P.2d 95, 103 (1980):

Seemingly absolute time periods for administrative action . . . are often considered mere guides for the conduct of business with dispatch and for orderly procedure. They have generally been characterized as directory, unless time is of the essence of the act required, the statute contains negative language denying the exercise of authority beyond the period prescribed for action, or a disregard of the relevant provision would injuriously affect public interests or private rights.

Id. at 676, 619 P.2d at 103. And in determining whether a "shall" is mandatory or directory, the court must "the intention of the legislature must be ascertained." Jack Endo Elec., Inc. v. Lear Siegler, Inc., 59 Haw. 612, 617, 585 P.2d 1265, 1269 (1978).

The Fifteen-day rule for Show-Cause Hearings is Directory. The ICA concluded that the 15-day rule for show-cause hearings in HRS § 586-5(b) was directory. According to the ICA, about any consequences that may result from noncompliance with the 15-day rule. There is no express language stating that the TRO dissolves if no hearing is brought within fifteen days of its issuance. Moreover, it does not deny the exercise of the family court's power in the event of noncompliance. In fact, the statute expressly allows the family court to schedule a hearing beyond the fifteen days in the event of insufficient service.

The ICA also looked to the legislative history. According to the ICA, the statutes for TROs and protective orders from domestic abuse were intended to protect abused family or household members and streamline the procedures to obtain a TRO. See Coyle v. Compton, 85 Hawai'i 197, 204-05, 940 P.2d 404, 411-12 (App. 1997). This is why the ICA rejected Sotelo's argument that Styke could just reapply for another TRO. It would undermine the purpose of streamlining the procedures for obtaining and issuing ex parte TROs.

Directory, yes, but not "Permissive." The ICA stated that even though the 15-day rule was directory, "that does not mean that a court is free to disregard the provision. The ICA noted that the rule is directory to the extent that an automatic dismissal is not required. According to the ICA, this 15-day rule "is not permissive, and the family court is not free to follow the provision or not as the court chooses." Instead, the ICA held that the family court "is obligated to hold a show-cause hearing on a TRO within fifteen days from the date the TRO is granted (where service has been effected) unless there is a substantial reason amounting to good cause for a delay." See Shaw v. Packard, 886 A.2d 1287, 1289-90 (Me. 2005).

Two Recusals and Hospitalization were "Substantial Reasons." In applying the new standard, the ICA held that the recusals of the judges and the hospitalization of one of the parties were "substantial reasons" for going beyond the 15-day rule. After all, the parties "shall be present" at the show-cause hearing, HRS § 586-5(b), and "an impartial judge is required to insure a fair trial." State v. Silva, 78 Hawai'i 115, 117, 890 P.2d 702, 704 (App. 1995) overruled on other grounds by Tachibana v. State, 79 Hawai'i 226, 235 n. 5, 900 P.2d 1293, 1320 n. 5 (1993).

What about the "Shall" that all Parties be Present? The ICA held that the "shall" in the 15-day rule was not mandatory, but there must be compliance unless there was a "substantial reason" for the delay. The ICA pointed out that the absence of the one of the parties was among the "substantial reasons" allowing a violation of the 15-day rule. The ICA turned to, of all things, HRS § 586-5(b), which states that the parties "shall be present." What about that "shall"? Is that directory too? Apparently not.

The Standard in Determining a Mandatory "Shall" may Depend on Whether the Statute is a Deadline. The word "shall" in a statute does not always mean that it is mandatory. That much is clear. But it seems that there are different ways to approach the interpretation of the word. At first, the general rule seems to be that "shall" is mandatory. Malahoff v. Saito, 111 Hawai'i 168, 191, 140 P.3d 401, 424 (2006). Then there are three circumstances in which the "shall" is directory as stated in Namore v. Kawafuchi, 112 Hawai'i 69, 83, 143 P.3d 1271, 1285 (2006).

That all seems to change when the "shall" is for a deadline. In those cases, the general rule may be that it is a mere "guide." Perry v. Planning Comm'n of Hawaii County, 62 Haw. 666, 676, 619 P.2d 95, 103 (1980). A more recent articulation is this:

In general, a statute is directory rather than mandatory if the provisions of the statute do not relate to the essence of the thing to be done or where no substantial rights depend on compliance with the particular provisions and no injury can result from ignoring them.

Coon v. City and County of Honolulu, 98 Hawai'i 233, 255, 47 P.3d 348, 370 (2002). The ICA relied on this formulation here. But earlier in Coon, however, the HSC stated that "where the language of a statute is plain and unambiguous that a specific time provision must be met, it is mandatory and not merely directory." Id. at 255, 47 P.3d at 370. And to make matters even more confusing, you have Tataii v. Cronin, 119 Hawai'i 337, 339, 198 P.3d 124, 126 (2008) (deadline was mandatory as to the day a complaint must be filed, but the time to file a complaint on that day--by 4:30 p.m.--was directory).

The case of the two "Shalls." The confusion in the standards and general rules can be illustrated in this statute. There are two shalls in HRS § 586-5(b). The first is the fifteen-day rule. The show-cause hearing "shall" be convened no later than 15 days after the issuance of the properly-served TRO. The ICA held that this "shall" is directory, but not permissive. Because it's a deadline, the ICA appeared to have used the standard from Coon and Perry. But then the statute also states that "[a]ll parties shall" attend the hearing. Which general rule applies then? Sorting this out may take time.