Presentence Jail Credit Available to Those Serving an Unrelated Term of Imprisonment
State v. Abihai (HSC April 28, 2020)
Background. Allan Abihai was serving a life term of
imprisonment for offenses committed in 1984. In 2014, Abihai left his facility through
the work furlough program and did not return. He was apprehended twenty days
later on June 29, 2014. After his arrest he was released on his own recognizance
and no bail had been set. He was, however, in custody on the old felonies from
the ‘80s. On March 17, 2015, he was formally charged with escape in the 2d
degree and rearrested. Bail was set at $10,000.
At trial, Abihai raised
the choice-of-evils defense and presented evidence that he was afraid of repercussions
for testifying in a federal criminal trial involving a prison gang. The jury
was instructed on the defense, but convicted him of escape in the 2d degree. Prior
to sentencing, the Department of Public Safety submitted a certificate of detention
showing 1,032 days of pretrial credit starting from his arrest on June 29,
2014. The circuit court imposed a five-year prison term running concurrently
with his life sentence. The circuit court at sentencing denied him credit for
time served. Abihai appealed and the ICA affirmed the conviction and sentence. Abihai
petitioned to the HSC.
Ineffective Assistance of
Counsel Claim Affirmed “Without Prejudice.” Abihai argued that his trial counsel was
constitutionally ineffective. The record, however, was insufficient. “[W]here
the record on appeal is insufficient to determine ineffective assistance of counsel,
but where: (1) the defendant alleges facts that if proven would entitled [them]
to relief, and (2) the claim is not patently frivolous wand without trace of
support in the record, the appellate court may affirm defendant’s conviction
without prejudice to a subsequent Rule 40 petition on the ineffective assistance
of counsel claim.” State v. Silva, 75 Hawai'i 419, 439, 864 P.2d 583,
592-593 (1993). The HSC held that the record on direct appeal is insufficient
for it to determine if there had been effective assistance of counsel. It affirmed
the conviction “without prejudice to a subsequent Rule 40 petition” on the
issue.
Calculating Jail Credit. The HSC interpreted the
jail credit statute:
Credit
for time of detention prior to sentence; credit for imprisonment under earlier
sentence for same crime. (1) When a defendant who is sentenced to imprisonment has
previously been detained in any State or local correctional or other
institution following the defendant’s arrest for the crime for which sentence
is imposed, such period of detention following the defendant’s arrest shall be
deducted from the minimum and maximum terms of such sentence. . . .
.
. . .
(3)
Notwithstanding any other law to the contrary, when a defendant is convicted
for a crime committed while serving a sentence of imprisonment on a separate
unrelated felony conviction, credit for time being served for the term of
imprisonment imposed on the defendant for the separate unrelated felony
conviction shall not be deducted from the term of imprisonment imposed on the defendant
for the subsequent conviction.
HRS § 706-671. The HSC
applied the two subsections in the statute. The HSC explained that the plain
and unambiguous language of HRS § 706-671(1) affords presentence detention
credit to defendants sentenced to imprisonment “who had been previously been detained
in a State institution following the person’s arrest for the crime for which sentence
was imposed.” Id.
No Credit Without Bail Being
Set. In this
case, Abihai was arrested on June 29, 2014, but was released on his own
recognizance for close to a year when he was rearrested and bail set. During
that time he might have been at Halawa, but he was not, for purposes of HRS §
706-671(1), detained “for the crime for which [the escape] sentence [was] imposed.”
Thus, he was not entitled to credit during the time he was “out” on his own recognizance.
The HSC did afford credit
from the time Abihai was rearrested and bail was set. Once arrested and bail
was set, he had to answer to the escape charge. See State v. Visintin,
143 Hawai'i 143, 146, 426 P.3d 367, 370 (2018). The strict and plain
application of HRS § 706-671(1) affords credit for Abihai.
But what about Subsection
(3)? The HSC
next examined whether subsection (3) deducted the credit. The HSC broke down
the subsection into six sections: (1) notwithstanding any other law to the
contrary, (2) when a defendant (3) is convicted for a crime committed (4) while
serving a sentence of imprisonment on a separate unrelated felony conviction,
(5) credit for time being served for the separate unrelated felony conviction
(6) shall not be deducted from the term of imprisonment imposed on the defendant
for the subsequent conviction.
The HSC took issue with the
fifth “factor”—credit for time being served for the separate unrelated felony
conviction. According to the HSC, Abihai was not just serving time for the “separate
unrelated felony conviction.” He was also serving for the escape. Thus, his
time was not excluded or deducted by HRS § 706-671(3). The HSC carefully noted
that he received credit because bail had been set. If there was no bail, HRS §
706-671(3) would have been triggered and there would have been no presentence
detention credit. And so, the HSC held that the circuit court erred in failing
to award credit from the setting of bail.
Justice Nakayama’s
Dissent. Justice
Nakayama took issue with the reading of HRS § 706-671. She wrote that prior to
this decision, presentence credit is not awarded when the defendant is serving
time for an unrelated criminal offense. For Justice Nakayama, this new
interpretation is a departure from prior interpretations and gives no
explanation why it should apply retroactively. Justice Nakayama addressed the
reading of subsection (1). For her, the statute awards credit for time served “solely
for the offense for which the defendant is later sentenced.” She also took
issue with the reading of subsection (3). She wrote that the other section
expressly forecloses the possibility of presentence credit for a crime
committed while a defendant is already serving a term of imprisonment. For her it
does not matter if bail had been set and if Abihai was simultaneously serving
time on the old felony and in pretrial detention for the new case. He was
simply serving time and thus barred from getting credit for the new offense
once convicted and sentenced. Chief Justice Recktenwald joined.
Is Subsection (1) saying
the same thing as subsection (3)? The HSC has read these two subsections carefully.
It held that subsection (1) gives credit when a defendant is sentenced to
prison and was previously “detained” on the same offense. Then subsection (3)
deducts that credit whenever a person is serving time on an unrelated felony
offense. The HSC read subsection (3) to mean that the defendant must be serving
exclusively that time. Once bail is set on the other case as it was for Abihai,
the defendant is doing more than just serving time on the old case. The
defendant is also getting pretrial credit. Are these subsections then saying
the same thing?
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