Maintaining Innocence can Never Justify a Sentence
State v. Barnes (HSC June 6, 2019)
Background. A jury convicted Ronald Barnes of four counts of sexual assault in the first degree with regard to one minor and one count of sexual assault in the first degree with regard to a different minor. These offenses carry a 20 year prison term per count. The prosecution moved to seek consecutive terms and conditions of imprisonment. At the sentencing hearing, the prosecution argued that consecutive terms were justified due to the seriousness of the crimes and the fact that there were two minors. Barnes objected and argued that nothing in his personal history showed that he was a sexual predator. Barnes also informed the sentencing court he would not be making any statement as he intended to appeal the case.
The court—in which the Hon. Judge Karen Ahn presided—demanded that she “just need[s] it from your mouth. You have every right to say what you wish before sentencing. Do you wish to say anything?” Barnes’s response was brief: “Not in this court, Your Honor.” The sentencing court noted that “while the defendant certainly has the right to appeal all matters that are appealabe, he has been uncooperative in the preparation of any aspect of the presentence report and does not appear to have expressed any sadness that the two children suffered harm of any kind.”
The court granted the prosecution’s motion and sentenced Barnes to forty years imprisonment: the four counts relating to one minor were served concurrently with each other, but the last count for the other minor was served consecutively. Barnes appealed. The ICA affirmed.
A Tricky Problem for Sentencing Courts. The accused has the right to remain silent. U.S. Const. Am. V; Haw. Const. Art. I, Sec. 10. This is one “of our most treasured protections—preservation of our autonomy, privacy, and dignity against the threat of state” coercion. State v. Kamanao, 103 Hawaii 313, 320, 8 P.3d 401, 406 (2003). The sentencing court cannot impose or enhance a sentence based on the defendant’s “refusal to admit guilt with respect to an offense the conviction of which he [or she] intends to appeal.” State v. Barrios, 139 Hawaii 321, 388, 389 P.3d 916 933 (2016). At the same time, however, the sentencing court may impose a harsher sentence “based on his or her lack of remorse.” State v. Kamanao, 103 Hawaii 321-322, 82 P.3d at 407-408.
Determining whether the court’s sentence was based on a lack of remorse or merely on asserting his right to remain silent guided by three factors:
(1) The defendant’s maintenance of innocence after conviction, (2) the judge’s attempt to get the defendant to admit guilt, and (3) the appearance that had the defendant affirmatively admitted guilt, his sentence would not have been so severe . . . . [I]f there is an indication of the three factors, then the sentence was likely to have been improperly influenced by the defendant’s persistence of his innocence.
Id. at 323, 82 P.3d at 409.
HSC Finds an “Indication” of Exercising a Constitutional Right to Impose a Harsher Sentence. The HSC adopted the three factors and was careful to note that this test needs merely an “indication” of the three—not necessarily proof positive of the factor.
Under the first factor it was clear for the HSC that Barnes maintained his innocence after conviction. The same went for the second factor. Judge Ahn tried to get Barnes to admit guilt. Barnes told the probation officer preparing the PSI that he was going to appeal and that he was innocent. At the sentencing hearing Barnes’s attorney again said that he was going to appeal and did not want to make a statement. Judge Ahn, however, needed to hear “it from [his] mouth” before sentencing him. Finally, it looked like if Barnes had admitted guilt, he would had a lighter sentence.
And so the HSC held that the court erred in imposing the consecutive terms of imprisonment. The judgment was vacated and remanded for resentencing.
Chief Justice Recktenwald’s Dissent. Chief Justice Recktenwald wrote that the majority’s application of the Kamanao test was too rigid. This was not a matter of finding an “indication” of the three factors, which automatically results in vacating the sentence. For the Chief Justice the court must take a more nuanced approach that balances these three factors. In his balancing application, Chief Justice Recktenwald would have concluded that there was no error by the sentencing court. Justice Nakayama joined.
They’re not Really Factors After all. This case has clarified for us that the Kamanao factors aren’t factors at all. The majority of HSC justices held that once an “indication” of the three elements are found, then the constitutional right to remain silent has been compromised and the sentence must be vacated and remanded. The Chief Justice and Justice Nakayama, on the other hand, believed that the factors were just that—factors. That suggests a more nuanced balancing test would apply. The majority maintained that the stricter elements analysis is justified because of the constitutional right to remain silent. If there’s any indication, then the matter is closed.