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?