Hussein Loses Some of its Umph?

State v. Kong (HSC December 10, 2013)
Background. After being charged with various drug offenses, Stanley Kong petitioned and was admitted into the Maui Drug Court Program. At the hearing on the petition, the circuit court explained that if he violated the terms and conditions of the program, he could be terminated fro the program. The circuit court found that Kong waived his rights “as indicated in the petition for admission” and let him in. Kong participated in the program for many months, but at a status hearing, Kong told the court that he had relapsed and “used drugs.” The circuit court gave him another chance and he remained in the program. At the next hearing, Kong did not show up so the court issued a bench warrant. He got picked up and appeared in custody before the court.

At that point, Kong told the court he wanted to “self-terminate” himself and requested to have bail set. The court told him that he had a right to a termination hearing with a lawyer “to determine if termination is appropriate.” The court also told him that if terminated, there would be a “stipulated facts” trial in which the facts that were alleged in the underlying charging instruments were stipulated as proven and he would almost certainly be found guilty as charged. Kong said he understood, but wanted to self-terminate anyway. His lawyer, however, raised the possibility of a conflict of interest and argued that her office may have to withdraw from representation. The hearing was continued.

At the next hearing, Kong again said he wanted to self-terminate. The court found that he terminated himself from the program, conducted a stipulated facts trial, and found Kong guilty as charged. At sentencing, Kong told the court that he did “not want to stipulate to the contents of [the presentence investigation] report” but did not specify. The court said that was “fine” and imposed consecutive terms of imprisonment.

Here was the court’s rationale for the consecutive terms:

Taking into consideration all of the factors set forth in Hawaii Revised Statutes Section 707-606, including the extensive record of the defendant, which includes six burglary convictions, which really represents—I’m sorry. Yeah, six burglary convictions, ten felonies, which represents a lot of harm to the community.

The Court is going to impose the following sentence in this matter. The defendant will be committed to the care and custody of the Director of the Department of Public Safety for a period of ten years on Count 1, five years on Count 2.
. . . .
In view of his extensive criminality, the Court is going to make these counts run consecutively for a total of fifteen years[.]

Kong appealed, the ICA affirmed, and Kong petitioned for certiorari. The HSC accepted certiorari.

Hussein is not Offended. Not long ago, the HSC held that the sentencing courts “must state on the record at the time of sentencing the reasons for imposing a consecutive sentence.” State v. Hussein, 122 Hawaii 495, 503, 229 P.3d 313, 328 (2010). This “express statement, which evinces not merely consideration of the 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.” Id. at 509-10, 229 P.3d at 327-28. It also provides “the conclusions drawn by the court from the consideration of all the facts that pertain to the statutory factors.” Id.

Here, the HSC held that the circuit court’s explanation—extensive criminality—met these factors of identifying the facts considered by the court and confirming the defendant, victim, public, and appellate court that the decision was deliberate, rational and fair. That was good enough for the HSC.

The HSC also addressed the argument that the ICA’s analysis was a “post hoc justification” for the circuit court’s rationale. The HSC did not necessarily agree with Kong’s argument that the ICA was speculating. Instead, it noted that the ICA was “attempting to link the circuit court’s express reasoning to the examples given in Hussein.” And even if it was error by the ICA to speculate, the HSC held that it did not warrant vacating Kong’s conviction.

The PSI Report May have been Wrong—But it’s All Good. The HSC rejected Kong’s argument that basing a sentence on a presentence investigation report that wrongly identifies prior convictions that had been vacated and dismissed was error. The HSC relied on State v. Sinagoga, 81 Hawaii 421, 918 P.2d 228 (App. 1996). There, ICA set up an analytical framework for challenging the prior convictions in a PSI report. The first step starts with a challenge by the defendant. Id. at 447, 918 P.2d at 254. According to the HSC, this framework applied to Kong and because Kong never challenged the priors before the circuit court, there was no error in the circuit court relying on that report.

Kong’s “Self-Termination” was a Valid Waiver of his Right to a Termination Hearing. Finally, the HSC held that Kong knowingly and intelligently waived his right to a termination hearing from the Maui Drug Court Program. Waiver must be the “knowing, intelligent, and voluntary relinquishment of a known right.” State v. Freidman, 93 Hawaii 63, 68 996 P.2d 268, 273 (2000). Here, the circuit court conducted a colloquy with Kong albeit that it was interrupted by a week. This was enough for the HSC even though it recognized that “extensive advisements regarding the right to a termination hearing did not occur” at the final self-termination hearing.

Justice Acoba’s Dissent. Justice Acoba believed that the majority got it wrong on all three issues. Justice Acoba wrote that the circuit court’s rationale in imposing an additional five years of prison does not past muster under Hussein. Justice Acoba, who wrote for the Court in Hussein, believed that that case marked “a sea change in this court’s jurisprudence.” Sentencing courts had to provide express reasons on the record for the imposition of consecutive prison sentences. This was because, inter alia, “the absence, refusal, of reasons is a hallmark of injustice.” Hussein, 122 Hawaii at 505, 229 P.3d at 323. That, according to Justice Acoba, was the kind of injustice that took place here. The circuit court’s statement provided no real grounds or reasons for the consecutive sentence. This is especially egregious since no one even asked for the consecutive terms.

Justice Acoba also took issue with the errors in the PSI report. The Sinagoga framework is limited to challenges to prior convictions that were uncounseled or not against the defendant. State v. Veikoso, 102 Hawaii 219, 226 n. 8, 74 P.3d 575, 582 n. 8 (2003). Justice Acoba noted that Kong challenged the very existence of prior convictions that showed up on his PSI. This places the challenge out of the Sinagoga analysis and the prosecution should not have benefitted from a presumption of validity in PSI reports. The use of a faulty PSI, according to Justice Acoba, violated Kong’s due process rights.

In the end, Justice Acoba would have vacated the judgment and remanded for sentencing again. “The vacation of a sentence based on prior void convictions would appear to be the obvious effectuation  of [the plain error] doctrine. Under the law, this is the right thing to do.” Justice McKenna joined.


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