ICA Won’t Extend Hussein to the HPA

Nichols v. State (ICA December 24, 2014)

Background. Nicholas Nichols was charged with various felonies in two separate cases. One case involved a home invasion and a shooting. The other case arose out of an assault in Kalakaua District Park. Nichols entered a plea agreement. He pleaded guilty to two felony counts in the assault and fifteen felonies in the home-invasion case. The parties agreed that for each count, he would be sentenced to prison and that he would serve some offenses concurrently. The parties, however, were free to argue that some should run consecutively. The prosecution also agreed not to seek extended terms of imprisonment. In the assault case, the circuit court sentenced Nichols to ten years concurrently in the assault case. In the home-invasion case, Nichols was sentenced to prison on those with a five-year mandatory minimum on seven of the counts. All would run concurrently to each other and total twenty years. In the end, though, the circuit court imposed that the assault case run consecutively to the home-invasion case making a total of thirty years with a mandatory minimum of five years.

Nichols was given counsel for the minimum-term hearing before the Hawaii Paroling Authority. The HPA held the hearing and issued its order. It found that Nichols was a Level III offender and set its minimum term at 30 years—in other words, it maxed him out. The HPA stated that the “significant factors identified in determining the level of punishment” included (1) the nature of the offense and (2) degree of injury to person. There was no other explanation.

Nichols petitioned the circuit court pursuant to HRPP Rule 40, but it was dismissed without a hearing. Nichols appealed.

Reviewing the Minimum Term Determination. A Rule 40 petition is the appropriate way to challenge a minimum term of imprisonment set by the HPA. Coulter v. State, 116 Hawaii 181, 184, 172 P.3d 493, 496 (2007). “[J]udicial 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. Hawaii Paroling Auth., 97 Hawaii 183, 195, 35 P.3d 210, 222 (2001). Judicial review is limited to situations in which “the decision of a state administrative agency is an arbitrary one . . . made without fair, solid, and substantial cause or reason; but it is not necessarily so because mistakenly or even wrong[.]” Id. Review is limited to whether “the parole board has followed the appropriate criteria, rational and consistent with the applicable statutes and that its decision is not arbitrarily and capricious nor based on impermissible considerations.” Id.

Stating the Reasons for the Heavy Minimum. The ICA looked at the HPA’s powers and roles. First, the HPA has the power to equate the minimum with the maximum sentence. Williamson, 97 Hawaii at 195, 35 P.3d at 222. The ICA noted that such action was “extraordinary” and would normally require a more detailed explanation by the HPA before taking that action. “Where the absence of a more detailed explanation would prevent our meaningful review of, or leave us in doubt, whether the HPA acted arbitrarily or capriciously in applying its Guidelines, we may require a more detailed explanation.”

But not here. The ICA actually held that in this case there was enough in the record for it to see how the HPA reached its decision. Nichols’ conduct was violent in both cases. People were shot, paralyzed, and seriously injured. That was satisfactory for the ICA to affirm the dismissal of his Rule 40 petition.

The HPA is not a Sentencing Court. In reaching this holding, the ICA noted that unlike the circuit court, which must state its reasons for consecutive terms of imprisonment, State v. Hussein, 122 Hawaii 495, 509-10, 229 P.3d 313, 327-28 (2010), the HPA is held to different standards, but it was unclear which standards the ICA meant. A sentencing court has the power to impose consecutive terms. It’s just that when it does exercise that power it has to state on the record why consecutive terms are necessary. Similarly, the HPA has the power to max out inmates. But here the ICA did not extend the disclosure requirement from Hussein to the HPA. Could this be an open invite for the HSC to do just that? We’ll see.