HSC cuts the bill for an expert, upholds consecutive sentence on remand because it is not “more severe” than original sentence.

 State v. Lavoie (HSC August 13, 2025). Marlin Lavoie was charged, tried, and convicted of murder and firearms-related offenses. The circuit court (Hon. Judge Joseph E. Cardoza) sentenced him to life with the possibility of parole and the firearms charges consecutively. Lavoie appealed. The HSC vacated the conviction and remanded the case for a new trial.

 

On remand, the parties reached a plea agreement. Lavoie pleaded guilty to manslaughter, using a firearm in a separate felony, and being a felon in possession. The parties used the presentence report from the first trial, which included reports on his mental health and social history. Before sentencing, Lavoie’s court-appointed attorney filed a motion to hire an expert to assess him for dangerousness. The assessment would be used to assist him at sentencing and before the parole board. The bill came to $8,767.

 

The circuit court (Hon. Judge Peter T. Cahill) found the request exorbitant and unnecessary but authorized up to $1,000. Before sentencing, the HSC issued State v. Obrero, 151 Hawaii 472, 517 P.3d 755 (2022). Because a grand jury did not indict Lavoie, Lavoie moved to dismiss the case. The court granted the motion and dismissed without prejudice. He was reindicted under a new docket and under the plea deal as before, Lavoie pleaded guilty again.

 

Then the circuit court sentenced Lavoie to forty years imprisonment: twenty for the manslaughter running consecutively to the other counts, which ran concurrently to each other. Lavoie appealed.

 

The ICA ruled that Lavoie did not properly preserve the issue about hiring the expert because that was part of the dismissed docket. And then it affirmed the conviction. Lavoie petitioned to the HSC.

 

The dismissed case didn’t matter: the issue is preserved. The HSC first addressed whether Lavoie adequately preserved the issues on appeal. The HSC held that he preserved the issue. The HSC noted that the case “spanned two different circuit court dockets. Both the circuit court and the parties treated the two records as one. Also, the ICA allowed Lavoie to supplement the appellate record with his presentence report and fee motion hearing transcript from the other record.” When the record is properly supplemented, the court can address the merits of a claim. See State v. Apao, 95 Hawaii 440, 442, 447, 24 P.3d 3e2, 34, 39 (2001); State v. Hoang, 93 Hawaii 333, 335, 3 P.3d 499, 501 (2000). Moreover, the court can also take judicial notice of related proceedings where the parties are the same. State v. Akana, 68 Haw. 164, 165, 706 P.2d 1300, 1302 (1985).

 

The HSC noted that “access to justice principles promote a merit-based approach to resolving a party’s claims.” See JK v. DK, 153 Hawaii 268, 274, 533 P.3d 1215, 1221 (2023). It addressed the issue on expert fees.

 

For “regular” sentencing, there was no need to hire an expert to assess dangerousness. The authorization for payment of fees for the defense depends on whether it is “necessary for an adequate defense.”

 

The court may, upon a satisfactory showing that a criminal defendant is unable to pay for transcripts or witness fees and transportation, or for investigatory, expert or other services, and upon a finding that the same are necessary for an adequate defense, direct that such expenses be paid from available court funds or waived[.]

 

HRS § 802-7. This statute gives “considerable discretion” to the trial court. State v. Hoopii, 68 Haw. 246, 248-49, 710 P.2d 1193, 1195 (1985).

 

While experts assist the defense at pretrial, trial, and extended sentencing stages, “[r]egular sentencing” does not, according to the HSC, have the “adversarial, fact-intensive qualities of trial and extended term sentencing.” The HSC recognized that exceptional circumstances could justify an expert for “regular sentencing” but mandatory funding for HRS § 802-7 is typically not “necessary for an adequate offense” when the prosecution does not seek extended term sentencing.

 

The HSC distinguished between pretrial and trial from sentencing. Trial is adversarial while sentencing “requires far less fact-finding” and involves “far more discretion.” See State v. Nobriga, 56 Haw. 75, 77, 527 P.2d 1269, 1271 (1974).

 

A possible “unique circumstances” exception. The HSC did recognize that there may be “unique circumstances” that require an expert. The HSC gave an example: if the victim of domestic violence injures or kills their abuser or if someone with severe post-traumatic stress disorder feels threatens and harms another may require an expert for a psychological assessment. But that is not the case here. Lavoie was neither of those things.

 

No error in considering extreme mental or emotional disturbance as a mitigating factor. The HSC rejected Lavoie’s challenge to the consecutive terms of imprisonment. Lavoie argued that the circuit court failed to consider the fact that he had been suffering from an extreme mental or emotional disturbance. Consecutive sentencing requires the court to “adequately distinguish between the need for consecutive sentences and the sentence a defendant would have received under the presumption of concurrent sentencing.” State v. Bautista, 153 Hawaii 284, 290, 535 P.3d 1029, 1035 (2023). In this case, the sentencing court assessed each factor for sentencing under HRS § 706-606 and adequately explained the “need for the sentence imposed.” HRS § 706-606(2).

 

As for failing to consider the fact that his manslaughter was the result of EMED, the HSC noted “no statutory or constitutional requirement for a sentencing court to dispel possible mitigating factors or defenses.” And it need not expressly articulate how it assessed mitigating factors.

 

The sentence was not “more severe” than the one he received before he appealed. Before he appealed, Lavoie was sentenced to life with the possibility of imprisonment running consecutively to 20 years for the class A felony. On remand, he was resentenced to manslaughter, a 20-year sentence, running consecutively with the other 20-year sentence. Lavoie argued that this sentence on remand was more severe and unconstitutional. But the HSC noted that Lavoie ignored HRS § 706-609:

 

When a conviction or sentence is set aside on direct or collateral attack, the court shall not impose a new sentence for the same sentence, or for a different offense based on the same conduct, which is more severe than the prior sentence.

 

HRS § 706-609.

 

The Court never articulated a test to determine when a sentence on remand is “more severe.” In other cases, it has looked to the total length of the sentence. Keawe v. State, 79 Hawaii 281, 282, 901 P.2d 481, 482 (1995). In Keawe, the defendant was resentenced to two five-year terms after the single ten year term was set aside. Id. at 289, 901 P.2d at 489. The HSC held that even though it may have impacted his parole status, the total length of the sentence was the same and was not “more severe.” Id. at 290, 901 P.2d at 490.

 

But at other times, the Court looked at the increased severity of each count. In State v. Samonte, 83 Hawaii 507, 542, 928 P.2d 1, 36 (1996), the defendant was at first sentenced to life without parole, 10 years each for two class B felonies. Id. The terms ran concurrently. Id. After winning his appeal, the case was remanded and he was resentenced. Id. He was resentenced to life without parole and this time had extended twenty-year sentences for the same counts; all of which ran concurrently. Id. at 543, 928 P.2d at 37. The HSC vacated the extended terms because they were “more severe” than the concurrent ten-year sentences the first time around. Id.

 

Most jurisdictions adopt the “aggregate approach,” which compares the total imprisonment terms. People v. Johnson, 363 P.3d 169, 177 (Col. 2015). That was the approach at work in Keawe. But a minority of jurisdictions use the count-by-count approach, “which compares the trial court’s original sentence on an individual conviction against the trial court’s sentence on that same conviction after appeal and remand, applying the presumption of vindictiveness if there is an increase.” Johnson, 363 P.3d at 179. The HSC recognized that Samonte did something like that by looking at each count at resentencing.

 

The HSC clarified its reading of HRS § 706-609 and adopted the aggregate approach to determine when a sentence is “more severe” after remand. The HSC used this approach because it “recognizes the fact-intensive analysis courts engage in when re-sentencing defendants for multiple convictions, and retains its broader discretion at resentencing.” And it does not deter defendants from exercising the right to appeal.

 

Under this approach, Lavoie’s new sentence is not “more severe.” He was sentenced to 40 years imprisonment, and that is less than the first sentence of life with the possibility of parole. There was no statutory violation.