Sentencing Court’s Thirteen Consecutive Misdemeanors Unjustified and how to Stip to a Probation Revocation

 State v. Sandoval (HSC May 27, 2021)

Background. Manuel Sandoval was charged in three separate criminal cases about repeated violations of an injunction against harassment. He pleaded no contest in two cases totaling eleven counts of violating the injunction and sentenced to probation. While on probation, he was charged with another count of violating an injunction and assault in the 2d degree. After a bench trial, the circuit court—the Hon. Judge Christine Kuriyama—found Sandoval guilty.

 

Prior to sentencing, the prosecution moved to revoke his probation. At a hearing on the motion, Sandoval’s counsel announced that he would stipulate that the new conviction violated the terms and conditions of his probation. The following exchange took place:

 

THE COURT: Is he still stipulating to both motions [to revoke]?

[DEFENSE COUNSEL]: Yes, Judge, with an explanation, if you would bear with us.

THE COURT: Alright.

THE DEFENDANT: Yeah. My explanation, I was out for three weeks, Your Honor. And I did see my probation officer. And I did get a full-time job . . . even though some of my supervise[d] release the prosecutor said that, oh, they couldn’t confirm that[.]

 

[DEFENSE COUNSEL]: But—but, Judge, Mr. Sandoval, even though he was working, he did not provide the information to his probation officer ‘cause he was arrested shortly thereafter.

. . . .

          And, of course, we’re also agreeing that he did get arrested for violating the restraining order.

. . . .

THE COURT: Mr. Sandoval, the motions then will be granted and you will be resentenced in those two misdemeanor cases; do you understand?

THE DEFENDANT: Yes, ma’am.

THE COURT: In addition to the felony case today.

 

At sentencing, the prosecution went through the sentencing factors in HRS § 706-606. The court heard from counsel and Sandoval. Then the circuit court stated “it concerns me greatly that you’re saying, I want to get out and get my girl bac. Which indicates to the Court that if you are released from custody you’re going to be violating the restraining order [the complainant] may have in place at this time.” The circuit court also noted Sandoval’s lack of insight, the safety and well-being to the complainant, mental health issues, and what appeared to be escalating behavior. In the end, the circuit court sentenced Sandoval to five years imprisonment and one year for each of the twelve TRO violations all running consecutively for a total of seventeen years imprisonment. Sandoval appealed. The ICA affirmed.

 

No Jurisdiction to Revisit the Old Cases. Sandoval timely appealed from the order resentencing him to imprisonment. On appeal, however, he attempted to take up issues about his no-contest plea that originally placed him on probation. The HSC held that there was no appellate jurisdiction to review that issue. A defendant in criminal cases has 30 days to appeal the circuit court’s judgment. HRS § 641-11; Hawai'i Rules of Appellate Procedure (HRAP) Rule 4(b)(1). The time to appeal from the judgment had passed long ago and there was no jurisdiction to revisit that. See United States v. Cate, 971 F.3d 1054, 1057-58 (9th Cir. 2020); United States v. Wallace, 335 F.3d 76, 78 (2d Cir. 2003); United States v. Torres-Flores, 624 F.2d 776, 780 (7th Cir. 1980); United States v. Francischine, 512 F.2d 827, 828-829 (5th Cir. 1975).

 

The HSC carefully noted that appellate review of “prior rulings leading up to an appealable order are only reviewable where the appealed order is predicated on those prior rulings.” Thus, according to the HSC, when the defendant appeals from the revocation and resentencing order, there is appellate review for only the revocation or the imposition of the new sentence.

 

Due Process Requires Something more before Revoking Probation. Due process extends beyond sentencing to parole and probation. Gagnon v. Scarpelli, 411 U.S. 778, 781-782 (1973) (“Even though the revocation of parole is not a part of the criminal prosecution, . . . the loss of liberty entailed is a serious deprivation requiring that the parolee be accorded due process.”). The HSC surveyed courts from other jurisdictions on the question of whether due process requires a knowing, voluntary, and intelligent waiver of rights before a probation violation can be stipulated without a hearing. Meadows v. Settles, 561 S.E.2d 105, 108-109 (Ga. 2002); United States v. Pelensky, 129 F.3d 63, 68 (2d Cir. 1997); Commonwealth v. Sayyid, 17 N.E.3d 469, 470 (Mass. App. Ct. 2014). After all, a stipulation that the defendant violated probation is a waiver of the defendant’s right to constitutionally protected procedures. Accordingly, the HSC held that “before accepting a stipulation to revoke probation and resentence a defendant, courts must consider whether the defendant knowingly, voluntarily and intelligently entered into the agreement.”

 

But a Colloquy is not Necessarily Required. Although the HSC noted that the on-the-record colloquy “is an effective way to ensure that a defendant’s rights are adequately protected,” it did not require the colloquy in every stipulation. Instead it held that trial courts must use their discretion to ensure that the record establishes the court “canvases the matter with the accused to make sure he has a full understanding of what the plea connotes and of its consequences[.]” Settles, 561 S.E. 2d at 109. The court must ensure the defendant is made aware of the maximum sentence he or she faces when stipulating to a probation violation. Id.

 

According to the HSC, that did not happen here. The record does not show that Sandoval knew he had agreed that the conviction formed the basis for the revocation of his probation and it does not show he had been informed about the potential penalty he faced at the time he stipulated to the violations. The HSC vacated the resentencing order.

 

The Consecutive Terms of Imprisonment were Unjustified. The sentencing court can impose consecutive terms of imprisonment. HRS § 706-668.5. When imposing consecutive terms, however, the court must “explain its rationale for each consecutive sentence in order to inform the defendant and appellate courts of the specific factors underlying each sentence.” State v. Barrios, 139 Hawai'i 321, 337, 389 P.3d 916, 932 (2016). It is not enough to provide an explanation for consecutive terms in general. “While the same factors could be sufficiently aggravated to justify imposing more than one consecutive sentence, the sentencing court should specify that basis or identify another basis for determining how many consecutive sentences to impose.” Id. Finally, “a large disparity between the maximum statutory sentence for each offense and the aggregate consecutive sentence imposed by the court” requires “a clearly articulated rationale.” Id. at 338, 389 P.3d at 933.

 

Here, the circuit court’s explanation failed to justify the dramatic and lengthy sentence. True, the circuit court agreed with the prosecution’s analysis and specified the factors in HRS § 706-606; and yes, the circuit court stated it was concerned about the repeated violations and escalating behavior. But for the HSC this was not enough to reflect thirteen consecutive sentences. There must be a rationale for “each and every consecutive sentence.”