Hearing on a Motion to Reduce Sentence is not the same thing as a Sentencing Hearing.

State v. Cattaneo (HSC October 22, 2021)

Background. Michael Cattaneo pleaded no contest to negligent homicide in the first degree and two drug-related offenses. He was sentenced to ten years prison for the homicide and five years each for the drug offenses. The circuit court—the Hon. Judge Richard T. Bissen, Jr. presiding—ordered the drug offenses to run concurrently to each other but consecutively to the homicide totaling fifteen years imprisonment. Cattaneo filed a motion to reduce the sentence pursuant to Hawai'i Rules of Penal Procedure Rule 35(b). He requested that all counts run concurrently for an open ten-year sentence.

 

The circuit court denied the motion and specifically rejected Cattaneo’s argument that it had to evaluate his sentence with “comparable cases.” The circuit court stated it was not its “practice to review cases that are issued by other courts, whether in this circuit or others. Because I happen to know that every case is nuanced, every case has something that may not be obvious to someone.” Cattaneo appealed. The ICA affirmed on the grounds that while the circuit court was required to consider comparable cases because it was a sentencing factor in HRS § 706-606, it did an adequate job in doing that. Cattaneo sought further review by the HSC.

 

Courts need not Consider HRS § 706-606 Sentencing Factors in a Rule 35(b) motion. The HSC addressed the threshold question of whether courts are required to consider the statutorily required sentencing factors on a motion to reduce the sentence. It began by quoting HRPP Rule 35(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 affirmance 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 thought eh 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.

 

According to the HSC, nothing in the rule suggests the court must re-evaluate the sentencing factors in HRS § 706-606. The HSC pointed out that the court must examine the factors—including the “need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct”—only at sentencing. A hearing on a motion to reduce sentence is something different.

 

Rule 35(b) motions are not Resentencing Hearings. The HSC held that “a motion under HRPP Rule 35(b) is neither a sentencing nor a resentencing hearing. It asks the court to change its mind[.]” and is “essentially a plea for leniency.” State v. Brigham, 666 A.2d 405, 406 (R.I. 1995). According to the HSC, the motion gives the court the chance “to ponder clemency without obliging a re-review of the statutory factors.” The “function of Rule 35 is simply to allow the court to decide if, on further reflection, the original sentence now seems unduly harsh.” State v. Kong, 140 Hawai'i 103, 110, 398 P.3d 692, 699 (2017). The HSC supported the distinction by noting that at a Rule 35(b) hearing, the appearance of the defendant is not required and there is no constitutional right to allocution. HRPP Rule 43(c)(3). The HSC affirmed and held that lower courts need not examine sentencing factors on a motion to reduce the sentence pursuant to HRPP Rule 35(b).

 

The Troubling Hypothetical. The HSC posed a hypothetical to illustrate the practical problems in requiring courts to re-examine the factors in HRS § 706-606. The HSC considered defendants “who argue their sentence should be reduced because, since sentencing, they have transformed from a violent person into a peaceful person (implicating HRS § 706-606(1), which concerns ‘the history and characteristics of the defendant’).” If the factors were required, the court “would have to revisit every HRS § 706-606 sentencing factor to determine whether the lawfully-imposed sentence is still appropriate given the defendant’s new peaceable disposition. This obligation . . . would create an unwarranted imposition on courts’ broad discretion in sentencing maters.”

 

It’s a troubling hypothetical. A motion to reduce the sentence and seek leniency must be filed either within 90 days of the sentence or 90 days after the defendant has appealed to a higher court and lost. HRPP Rule 35(b). A lot can happen while a case is on appeal. A defendant can be sentenced to prison, receive a minimum term, and change his or her life. Such changes may be part of a defendant’s “history and characteristics” but they also seem to be evidence in support of a plea for leniency. Wouldn’t it be required then? Such distinctions have yet to be raised.

 

The Issue is Better Suited under HRPP Rule 35(a). The HSC’s holding expressly zeroed in on HRRP Rule 35(b). Under HRPP Rule 35(a), the court “may correct a sentence imposed in an illegal manner.” The HSC noted that if the circuit court erred in failing to adequately consider the sentencing factors in HRS § 706-606, defendants “may appeal their sentence and make that case or bring motions under HRPP Rule 35(a).” It would seem that the best practice is to file a motion under both provisions—challenging the legality of the sentence and, if that doesn’t work, ask for clemency.