The Defendant Always Gets the Last Word Before Sentence is Imposed
State v. Carlton (HSC November 25, 2019)
Background. Brok Carlton was charged with kidnapping, robbery
in the first degree, assault in the second degree, and unauthorized control of
a propelled vehicle. He went to trial and lost. The Honorable Judge Rhonda Loo
of the circuit court sentenced him to 50 years imprisonment. Carlton appealed
to the ICA. The ICA vacated the judgment on the grounds that the jury was not
properly instructed on the law of merger for the kidnapping, robbery, and
assault charges. The ICA affirmed the UCPV count, but remanded the case back to
the circuit court and ordered the prosecution to either retry Carlton on the
other three counts or dismiss two of the three and have the circuit court
reinstate the conviction and resentence of Carlton. The judgment on appeal was
entered on June 27, 2016.
The prosecution took no
action until a hearing was held on January 11, 2017. At that hearing the
prosecutor informed the court for the first time that it was going to dismiss
two of the three counts and would proceed to resentencing on the remaining
count. The prosecutor failed to inform Carlton which count was going to be
reinstated and which two were going to be dismissed. Carlton moved to dismiss based
on a violation of Hawaii Rules of Penal Procedure (HRPP) Rule 48. Carlton
argued that more than six months had passed from the entry of the ICA’s
judgment on appeal on June 27, 2016 and the date of the prosecutor’s election
on January 11, 2017. The circuit court denied the motion on the grounds that
this was not a case in which there would be a new trial at all because the
prosecutor chose to proceed with dismissal of two counts and reinstating one of
the counts.
At the sentencing hearing,
the circuit court began by asking defense counsel to proceed first with the sentencing
argument. Counsel informed the court that Carlton maintained good behavior
during his years in custody and that the court should consider his post-conviction
conduct as a sentencing factor. The circuit court asked Carlton if he had
anything to say. Carlton apologized for his actions and asked for leniency.
Then the prosecution began its argument focusing sentencing factors in HRS §
706-606. The prosecutor urged the court to impose consecutive terms of
imprisonment. Then, for the first time, the prosecutor said that it wanted to
sentence Carlton to the robbery charge and dismiss the kidnapping and assault
charges. Carlton’s counsel asked to respond and maintained the court must
consider Carlton’s conduct while he was in custody—particularly that he
completed any and all classes available to him while incarcerated. The circuit court
did not address the sentencing factors and did not ask if Carlton had anything
to say after he learned what he would be sentenced do. The court sentenced
Carlton to 20 years running consecutively with the UCPV charge—a total of 25
years. Carlton appealed and the ICA affirmed this time.
HRPP Rule 48 Applies Even
if the Prosecution has the Option to Avoid Trail by Dismissing a Merged Count. A case shall be dismissed
if trial is not commenced within six months “order granting a new trial or
remand, in cases where such events require a new trial.” HRPP Rule 48(b)(3). The
HSC held that under the plain language of this rule, the provision applied
here. The ICA remanded the case back to the circuit court to give Carlton a new
trial unless the prosecution voluntarily dismissed two of the three counts.
According to the HSC, the ICA’s remand was an “order granting a new trial.” The
HSC observed that “[t]he fact that the new trial could be avoided by the State
if it dismissed two counts does not substantively change the ICA disposition
that a new trial was required[.]”
Even if the language has
some degree of ambiguity, the HSC noted that the rule must be interpreted to
effectuate the rule’s purpose. State v. Tsujimura, 140 Hawaii 299, 307,
400 P.3d 500, 508 (2017). Rule 48 ensures a speedy trial, relieves congestion
in the trial court, and promotes “efficiency of the criminal justice process.” State
v. Fukuoka, 141 Hawaii 48, 62-63, 404 P.3d 315, 328-329 (2017). And so the
HSC held that if Rule 48 did not apply in Carlton’s case, the prosecution would
be able to delay retrying the defendant beyond the six-month period. The time
to delay it election could extend indefinitely and the only time dismissal
would be warranted would be if it violated the constitutional right to a speedy
trial.
A Trap for the Unwary—Rule
48 Clock Begins when Judgment on Appeal Becomes Effective, not when it is
Filed. Having
held that the rule applies, the next question for the HSC was whether there was
a violation of HRPP Rule 48(b)(3). There wasn’t. Although the judgment was
filed on June 27, 2016, it was not effective on that date. When an application
for writ of certiorari is not filed, the judgment on appeal becomes effective
either “upon the thirty-first day after entry or . . . where the time for
filing an application for a writ of certiorari is extended in accordance with
Rule 40.1(a).” Hawaii Rules of Appellate Procedure (HRAP) Rule 36(c)(1). And so
even though more than six months had passed from the filing of the judgment,
the Rule 48 clock does not begin running until that judgment becomes effective.
Here, the judgment was
entered on June 27, 2016 and there was no application for writ of certiorari
nor a request to extend the time file such an application. That meant that the
judgment did not become effective until July 28, 2016. That meant trial had to
commence before January 24, 2017. The prosecution indicated it would not seek a
new trial on January 11—which was within the six-month period. Thus, the
circuit court did not err in denying Carlton’s motion.
Making
the Defendant go First can Violate the Right of Allocution and Due Process. “Allocution is the defendant’s right to speak
before sentence is imposed.” State v. Hernandez, 143 Hawaii 501, 509, 431
P.3d 1274, 1282 (2018). This right is guaranteed under the due process clause
of the Hawaii Constitution. Id. It is also protected pursuant to HRS § 706-604(1)
and HRPP Rule 32(a). The main reason for the right to allocution is to allow
the defendant a chance to plead a mitigating sentence. State v. Hernandez,
143 Hawaii at 5112, 431 P.3d at 1241. It also allows the defendant to dispute
any facts used to form the basis for a sentence and to meaningfully participate
in the sentencing process. State v. Chow, 77 Hawaii 241, 250, 883 P.2d
663, 672 (App. 1994).
The trial court has a duty
to directly address the defendant at sentencing and ensure that the right to
allocution is upheld. State v. Schaefer, 117 Hawaii 490, 498, 184 P.3d
805, 813 (App. 2008) and HRS § 706-604(1). And so as a due process right, the
HSC noted that the right of allocution is violated when the court fails to give
the defendant an opportunity to exercise that right at a meaningful time and in
a meaningful way. See State v. Carvalho, 90 Hawaii 280, 286, 978 P.2d
718, 724 (1999).
In this case, the trial
court gave Carlton his chance to speak before he even knew what counts would be
dismissed and what count would be reinstated. He did not know what the offense
was and what the maximum terms of that sentence would be. According to the HSC,
“the court and the State put Carlton in the position of having to address three
offenses although only one of them was to underlie the conviction in this case.”
The trial court failed to give Carlton a meaningful opportunity to exercise his
right of allocution because he was in the dark about what offense to which he
would be sentenced.
The HSC rejected the ICA’s
contention Carlton waived any objection to this violation of due process. It is
true that Carlton’s counsel could have requested that he speak again once he
learned about the offense, but “it was the duty of the court, not Carlton’s counsel, to afford Carlton a
fair opportunity to be heard.” See Gridling v. State, 114 Hawaii 444,
452, 445 P.3d 25, 33 (2019) (“trial court’s constitutional duty to engage the
defendant in a colloquy . . . does not devolve upon defense counsel when the
court does not fulfill responsibility.”). Thus, the failure to object at the
sentencing hearing did not constitute a wavier of the due process right of
allocution.
The Defendant Should
Always have the Last Word. The HSC recognized that these were unusual circumstances. Most
defendants are aware of what the offense before being sentenced. However, due
process requires the defendant to have a meaningful opportunity to participate
in his or her own sentencing proceeding. The defendant has the right to address
the court in order to seek mitigation and to correct or challenge any of the
representations made by counsel or in the pre-sentencing investigation report. State
v. Phua, 135 Hawaii 504, 517 n. 21, 353 P.3d 1046, 1059 n. 21 (2015). It is
designed to protect the defendant from derogatory information and unsupported
factual assertions. State v. Barrios, 139 Hawaii 321, 331, 380 P.3d 916,
926 (2016).
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