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).

The HSC observed that “prudential judicial administration instructs that the defendant be given the last word before sentencing is imposed in order to avoid eroding the meaningfulness of the defendant’s right of allocution.” In this case, Carlton had no chance to speak after he heard his counsel and the prosecutor make their arguments. The circuit court’s procedure “impaired Carlton’s ability to controvert or supplement the statements of counsel.” The HSC wanted to reiterate that “sound judicial administration requires that the sentencing court afford the defendant an opportunity for allocution after the arguments of counsel are complete and before sentence is imposed.”


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