ICA Reluctantly Holds Due Process may Prohibit HPA from Imposing Higher Min. Term when Defendant Prevails on Appeal

Fukusaku v. State (ICA April 3, 2012)

Background. Raita Fukusaku was convicted of two counts of 2d degree murder, and was sentenced to two consecutive terms of imprisonment with mandatory minimum terms of 15 years each. The Hawai'i Paroling Authority set the minimum terms to two twenty-year terms. Thus, he had to serve 40 years before being eligible for parole. Fukusaku appealed and the case was remanded for re-sentencing. Fukusaku was again sentenced to two consecutive life terms imprisonment with the possibility of parole. This time, the HPA gave him two terms of twenty-five years making it a 50-year minimum term. Fukusaku sought a petition to correct the terms pursuant to Hawai'i Rules of Penal Procedure (HRPP) Rule 40. Fukusaku, pro se, argued that the HPA was being vindictive and unjustified in upping the terms. The petition was denied without a hearing. Fukusaku appealed.

The Standard of Review. A Rule 40 petition is the appropriate procedural means to challenge the HPA's minimum term decision. Coulter v. State, 116 Hawai'i 181, 184, 172 P.3d 493, 496 (2007). A hearing on a Rule 40 petition should be permitted only when the petition states a colorable claim. Dan v. State, 76 Hawai'i 423, 427, 879 P.2d 528, 532 (1994). In other words, the petitioner must show "if taken as true the facts alleged would change the [outcome of the proceeding], however, a petitioner's conclusions need not be regarded as true." Id.

Due Process Prohibits a Heavier Sentence for Winning on Appeal. When the defendant successfully gets his or her sentence set aside and is retried, "it would be a flagrant violation of the Fourteenth Amendment for a state trial court to follow an announced practice of imposing a heavier sentence upon every reconvicted defendant for the explicit purpose of punishing the defendant for having his succeeded in getting his original conviction set aside." North Carolina v. Pearce, 395 U.S. 711, 723-24 (1969). Since then, the SCOTUS has found "presumptive vindictiveness" when a more severe sentence is imposed after the defendant won on appeal and is resentenced. United States v. Goodwin, 457 U.S. 368, 373-74 (1982). The presumption may be overcome when objective information which was not presented or considered during the original sentencing justifies the increase in the sentence. Texas v. McCullough, 475 U.S. 134, 143-44 (1986).

Pearce has no Place for Parole (At Least Here). In his opening brief, Fukusaku first argued that the Pearce presumption applied to the HPA's determination of the minimum term. The prosecution countered that the presumption applies only where there is a reasonable likelihood that the increased sentence was the product of vindictiveness. Goodwin, 457 U.S. at 373; Alabama v. Smith, 490 U.S. 794, 799 (1989). Fukusaku, in his reply brief, conceded this point. The ICA, without ruling on the matter, found that the concession was "well taken as it is supported by United States Supreme Court and the Ninth Circuit authority."

But Due Process Still Controls . . . But the analysis did not end with Pearce. In minimum term determinations, "judicial intervention is appropriate where the HPA has failed to exercise any discretion at all, acted arbitrarily and capriciously so as to give rise to a due process violation, or otherwise violated the prisoner's constitutional rights." Williamson v. HPA, 97 Hawai'i 183, 195, 35 P.3d 210, 222 (2001). Moreover, actual vindictiveness would allow Fukusaku to overturn the HPA's decision. See McCullough, 475 U.S. at 138.

Despite Statutory Prohibition, Due Process Controls. The ICA turned to the policy interests underlying the imposition of a more severe term. First, it turned to HRS § 706-609, which prohibits the sentencing court from imposing "a new sentence for the same offense, or for a different offense based on the same conduct, which is more severe than the prior sentence." That, however, is limited to sentencing and had not been extended to parole determinations. State v. Keawe, 79 Hawai'i 281, 290, 901 P.2d 481, 490 (1995).

The Chilling Effect at Re-Sentencing is the same before the HPA. The ICA reasoned that even if the statutory prohibition is limited to sentences, due process controls. The defendant's right to appeal must be "free and unfettered" to avoid a chilling effect on appeals. Pearce, 395 U.S. at 724-25. The chilling effect discussed in Pearce, according to the ICA, is the same chill in HPA decisions. A defendant can certainly be afraid to challenge the HPA for fear that reappearing before it would only lead to a more severe minimum term. "It would provide little comfort to most defendants to be informed that although a defendant's court-imposed sentence could not be increased after a successful challenge to a conviction or court-imposed sentence, the HPA, without justification or meaningful review, could increase the defendant's minimum term of incarceration . . . after a successful challenge."

Arbitrary and Capricious for HPA to Impose Higher Min. Term When the only Difference is that Defendant won on Appeal. The ICA ultimately concluded that "where the HPA is required to again set a defendant's minimum term only because the defendant successfully challenged a conviction or court-imposed sentence--we conclude that it would be arbitrary and capricious for the HPA to impose an increased minimum term based on the same information it had when it imposed the original (lower) minimum term before the successful challenge."

Here, the HPA increased the minimum term based on the "nature of the offense." The HPA had no new information and nothing was new about the "nature of the offense." This, according to the ICA, was arbitrary and capricious. The ICA remanded the petition back to the circuit court for hearing.


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