Five different and unrelated cases are still one “sentence” and credit for time served applies to all five, not each individual case

 State v. Vaden (HSC March 15, 2023)

Background. Jonathan Vaden was on probation when he was prosecuted for five separate criminal cases alleging various drug and property offenses. After spending several months in jail, Vaden pleaded no contest to every offense except for a class A drug offense. The parties waived a presentence (PSI) report and the circuit court of the second circuit—with the Honorable Judge Richard T. Bissen, Jr. presiding—did not order one. Vaden was sentenced to four years probation in each case with the condition that he complete the Maui Drug Court Program. He petitioned into the program by having his probation revoked and resentenced to a new term of probation.

 

He was ultimately terminated from the program. His probation was revoked and he was resentenced to prison. He was sentenced to 5 years prison for the felonies, 1 year for the misdemeanors, and 30 days for the petty misdemeanors in the four unrelated cases. Those counts and cases ran concurrently to each other. In this case there was a class B felony. He was sentenced to 10 years in that, 5 years in the other felony count, and 1 year in the misdemeanor. Those counts ran concurrently to each other, but consecutively to the four unrelated cases. The total came to 15 years. The resentencing order did not identify the credit he had served in any case and the Department of Public Safety did not give the court the certificates of detention showing his credit.

 

He was credited 340 days against the four unrelated cases and 1 days for the 10-year sentence. Vaden moved to correct the credit calculation and argued that he was entitled to the credit that had accrued in the 10-year sentence because it accrued simultaneously with the four unrelated cases. The motion was denied. Vaden appealed and the ICA affirmed. He petitioned for a writ of certiorari.

 

A note about PSI reports. The HSC took issue with the waived PSI report. It noted that these reports have “many uses in the criminal justice process.” State v. Carlton, 146 Hawai'i 16, 27, 455 P.3d 356, 367 (2019). It gives victims and their families an opportunity to be heard. HRS § 706-604(3). The Hawai'i Paroling Authority uses it to determine the minimum term of imprisonment. HRS § 706-669(2). Probation officers and mental health professionals conducting court-ordered assessments get it too. HRS §§ 806-73(b)(3)(F) & 806-73(b)(3)(C). The HSC noted that waiving a PSI may be appropriate when a recent pre-existing one has been made, “trial courts should not consent to their waiver as a matter of course” pursuant to HRS § 706-601(3).

 

And about certificates of detention. The HSC also took issue with the lack of a certificate of detention from DPS. DPS is required to provide the sentencing court with a certificate showing how long the defendant was in custody. HRS § 706-671(1). A certificate is also required when the defendant is resentenced in the same case. HRS § 706-671(2). That did not happen here. The HSC observed that this is particularly problematic because the calculation may be wrong.

 

The types of jail credit. Jail credit is determined by HRS § 706-671:

 

(1) When a defendant who is sentenced to imprisonment has previously been detained in any State or local correctional or other institution following the defendant’s arrest for the crime for which sentence is imposed, such period of detention following the defendant’s arrest shall be deducted from the minimum and maximum terms of such sentence. . . .

(2) When a judgment of conviction or a sentence is . . . vacated and a new sentence is thereafter imposed upon the defendant for the same crime, the period of detention and imprisonment theretofore served shall be deducted from the minimum and maximum terms of the new sentence. . . .

 

The HSC noted that HRS § 706-671(1) controls credit for detention time from arrest to the initial sentence. Subsection (2) credits time served as part of the sentence. It applies when a defendant serves time pursuant to probation that is later revoke. State v. Delima, 78 Hawai'i 343, 348, 893 P.2d 194, 199 (1995). According to the HSC, the 340 days at issue are three different time periods: time served from arrest to the initial sentencing, which is governed by HRS § 706-671(1); time served under probation controlled by subsection (2); and time served from reassert for violating the Drug Court Program and resentencing, which is also under subsection (1).

 

There court must credit the “aggregate” once across all five cases. When the issue is determining credit under HRS § 706-671(1), “credit for presentence imprisonment is properly granted against only the aggregate of the consecutive sentence terms.” State v. Tauiliili, 96 Hawai'i 195, 199, 29 P.3d 914, 918 (2001). The HSC held that this case remains good law and that Vaden is entitled to credit just once against the aggregate of later imposed consecutive sentences.

 

The HSC rejected Vaden’s argument that he was entitled to credit for this case and that it cannot be transferred to the four other cases. See State v. March, 94 Hawai'i 250, 255, 11 p.3d 1094, 1099 (2000). The HSC held that nothing in the plain text of HRS § 706-671(1) suggests he is entitled to what the HSC called “double dipping.” The HSC noted that term “sentence” in the jail credit statute could refer to more than one case:

 

The statute’s use of the singular “sentence” reflects the fact that the word may refer not only to a particular term of incarceration imposed for a conviction on a single criminal count, but also to the sum of the terms of incarceration and other penalties imposed on a defendant for their crimes. Multiple consecutive sentences are really just one sentence.

 

That meant that Vaden already received credit for this case. It was credited against the four unrelated cases as part of a single sentence. The HSC applied the same meaning for subsection (2) with credit for time served from an earlier sentence. The HSC also noted that crediting against each individual case would be unfair and curb the sentencing court’s ability to impose consecutive sentences.

 

For instance, if a defendant commits five misdemeanors in five separate cases and serves one year before sentencing, they would receive five years of credit if the court imposes consecutive statutory maximum terms (one year for each misdemeanor). In that situation, the defendant would ultimately serve no additional jail time, and the court’s decision to impose consecutive would be pointless.

 

Not a Double Jeopardy problem either. No person “subject for the same offence” shall not be “twice put in jeopardy of life or limb[.]” U.S. Const. Art. V. See also Haw. Const. Art. I, Sec. 10. Double Jeopardy “protects against multiple punishments for the same offense.” North Carolina v. Pearce, 395 U.S. 711, 717 (1969). This requires that the “punishment already exacted must be fully ‘credited’ in imposing sentence upon a new conviction for the same offense.” Id. at 718-719.

 

The HSC rejected Vaden’s constitutional argument. If Vaden’s jail time accrued on probation was vacated and if the trial court refused to credit that time against a sentence imposed for a “new conviction for the same offense,” there would be a Double Jeopardy violation. That, according to the HSC, is not what happened. His 340 days were served before sentencing and his probation was not vacated, but revoked. Moreover, the HSC noted that his constitutional rights would only be at issue if the “total punishment” exceeded the statutory maximum—that would be 21 years, not the concurrent 10.

 

Justice Wilson’s Dissent. Justice Wilson wrote a lengthy dissent.

 

Based on the plain language of the statutory provisions, Vaden’s presentence detention time and probation incarceration time should be deducted from each of the five-year and ten-year sentences comprising his fifteen-year consecutive sentence, rather than just once from the aggregate fifteen-year consecutive sentence. The Majority’s misinterpretation of the credit due Vaden for his previous incarceration improperly extends Vaden’s sentence by failing to deduct 340 days credit from Vaden’s ten-year sentence. Depriving Vaden of credit toward each of the offenses . . . contravenes important Hawai'i public policy, codified in HRS § 353L-3(b), to reduce the State’s incarceration population.

 

Justice Wilson explained that the jail credit statute refers to a single sentence and the entitlement of credit for time served. It makes no distinction between concurrent and consecutive sentences. “Respectfully, the language required to reach [the Majority’s] result is ringingly absent from the statute’ plain terms.” The Majority, according to Justice Wilson, is fixated on Tauiliili, and not the language of the statute itself, and the case should be overruled. He also took issue with the fact that the “Majority increases the period of incarceration for all defendants receiving a consecutive sentence who have been held in custody prior to imposition of a consecutive sentence.” The Legislature has addressed the impact of mass incarceration in Hawai'i and the need to reduce the incarcerated population. HRS § 353L-3(b). This mandate to reduce the inmate population should have been considered when interpreting the jail credit statute. “Inventing an exception to preclude credit for time served in the context of consecutive sentencing perpetuates overincarceration, and defies the legislature’s mandate to reduce the population of incarcerated individuals in Hawai'i.” He would have awarded the jail credit in this case.

 

Moreover, the plea agreement in which the defendant agreed to consecutive terms if he did not complete Drug Court was unlawful and unenforceable. He would have also vacated and remanded for resentencing entirely to consider the factors of HRS § 706-606. Justice McKenna joined.