Taking the Surprise out of Sentencing

State v. Sanney (HSC Sept. 20, 2017)

Background. Yoshiro Sanney was indicted with one count of sexual assault in the second degree and attempted sexual assault in the second degree. Sanney was a homeless, unemployed veteran with a history of substance abuse and mental health issues. The offense arose when in broad daylight Sanney cut out the shorts of an unconscious homeless woman, performed cunnilingus and then attempted to have sexual intercourse with her. Prior to trial, Sanney’s attorney said that he would change his plea after learning that the judge was inclined to sentence him to probation with eighteen months jail. There were no agreements from the prosecution.

The circuit court held a change of plea hearing. At the hearing, Sanney made it clear on the record that his change of plea based on the court’s inclination for probation with up to 18 months jail. The circuit court, however, told Sanney that the inclination is not a promise and that the “inclination is only as good as the representations it is based on[.]” Sanney indicated that he understood. He pleaded guilty as charged. At sentencing, the circuit court stated that there were differences in the PSI report from the representations made. Sanney, however, argued that the differences were of little to no consequence when it came to the facts of the offense, but did not argue that he should have his plea withdrawn. The circuit court stated that it felt “tricked” and sentenced Sanney to prison for ten years.

Sanney moved for reconsideration of the sentence, but the motion was denied. He appealed to the ICA. The ICA affirmed. Sanney petitioned to the HSC and the HSC remanded to consider the merits of the motion for reconsideration. On remand, the motion was denied again. The ICA affirmed again and Sanney petitioned to the HSC.

The Sentencing Inclination v. the Plea Bargain. The HSC noted the difference between the sentencing inclination and the plea bargain based on California precedent. A plea bargain requires the defendant to plead guilty in exchange for some kind of benefit from the prosecution and the court approves it. People v. Clancey, 56 Cal. 4th 562, 299 P.3d 131 (2013). The sentencing “inclination,” however is more like an “indicated sentence” in which there are no agreements with the prosecution and the defendant pleads guilty “irrespective of whether guilt is adjudicated at trial or admitted by plea.” Id. See also HRPP Rule 11(f)(1).

The HSC adopted wholly California’s approach to “sentencing inclinations.”

First, absent unusual circumstances, a trial court should not provide a sentencing inclination unless plea negotiations have concluded or did not occur. Second, before giving a sentencing inclination, a trial court should consider whether the existing record concerning the defendant and the defendant’s offense(s) is adequate to make a reasoned and informed judgment as to the appropriate penalty. Third, a trial court must follow the established “principle forbidding a trial court from improperly considering the defendant’s exercise of his constitutional right to a . . . trial as an influential factor in determining the appropriate sentence.” In other words, the sentencing inclination must be the same punishment the court would be prepared to impose if the defendant were convicted after trial. Finally, a trial court may not bargain with the defendant over the sentence to be imposed, as a trial court’s sentencing inclination must be the same punishment the court would impose if the defendant were convicted following a trial.

The Bad News for Sanney. Because this was a new pronouncement of law, it was not applicable at the time of Sanney’s change of plea, sentencing, and post-judgment litigation. Thus, the only issue was whether it was an abuse of discretion. Given the state of the record and the problems posed by Sanney, the HSC affirmed and found no abuse of discretion in sentencing him to prison.

. . . the Good News for Everyone Else as of Now. The HSC applied this ruling prospectively. It added a twist to the inclination: “if a defendant pleads guilty or no contest in response to a court’s sentencing inclination, but the court later decides not to follow the inclination, then the court must so advise the defendant and provide the defendant with the opportunity to affirm or withdraw the plea of guilty or no contest.”

The Hybrid Situation. This case makes it clear that there’s a difference between inclined sentences—where the prosecution has no real say and has offered nothing and the defendant pleads as charged and asks the court for some kind of indication of a sentence—and the plea bargain, where the parties hash out an agreement. But what about the hybrid between the two? Often times, the parties reach an agreement where the defendant pleads to amended charge and some of the details of the sentence are agreed upon, but the prosecution is free to argue for certain things. What then? Can there be an inclination then? It makes sense that this procedure should be followed too. But that’s a different question for a different day.