Two Notices of Appeal, Lower Court Erred in Fixing Illegal Sentence, and other Oddities

State v. Smith (ICA March 9, 2021)

Background. Scott Smith was convicted of assault, terroristic threatening, sexual assault, and kidnapping. The circuit court—Hon. Judge Shackley Raffetto—sentenced him to 45 years of imprisonment in 2002. He appealed and the ICA affirmed. Smith filed a petition to set aside the conviction pursuant to HRPP Rule 40 asserting various constitutional grounds. The petition was denied. Smith appealed that and it was affirmed. In 2015, Smith filed a motion to recalculate the terms of imprisonment pursuant to HRS § 706-668.5(3). The motion was denied without prejudice because of the pending cases on appeal.

 

Smith filed a second Rule 40 petition in 2017 asserting more grounds to set aside the conviction. The petition was denied without a hearing and he appealed again. The ICA agreed on a single point: that the trial court erred in failing to instruct the jury on merger of kidnapping and assault. It remanded the case directing the prosecution to either dismissing both counts and having a new trial on both or dismissing one of the counts. Judgment on appeal was entered on July 2, 2020. In addition to the Rule 40 petition, Smith filed a motion to review the consecutive sentence based on HRS § 706-668.5(3). The circuit court, now with the Hon. Judge Peter T. Cahill presiding, denied the motion in part. Judge Cahill noted that the trial court erroneously imposed 10 years for the kidnapping when it should have been 20. Judge Cahill nevertheless denied the motion and indicated he would grant a Rule 40 petition. Smith did just that.

 

The circuit court granted the Rule 40 petition and resentenced Smith to the counts with kidnapping as a class A felony. The circuit court ran all of the class A felonies concurrently to each other and consecutively to the only class B felony. The class C felonies ran concurrently to all other counts. The upshot was a reduction from 45 years to 30 years prison. Smith appealed on July 1, 2019. He also filed a motion to reduce the sentence, which was denied on September 20, 2019. Smith filed an amended notice of appeal in an attempt to cover that too.

 

A word on Appellate Jurisdiction. The ICA first addressed appellate jurisdiction. “[A]ny party aggrieved by the judgment of a circuit court in a criminal matter may appeal to the [ICA] . . . . The sentence of the court in a criminal case shall be the judgment.” HRS § 641-11. In determining whether a judgment is final for appellate purposes, “courts have focused the inquiry on whether the relevant order terminated the proceedings in the case and left nothing further to be accomplished by the lower court.” State v. Nicol, 140 Hawai'i 482, 492, 403 P.3d 259, 269 (2017). A notice of appeal in a criminal case must be filed within 30 days upon entry after the “judgment or order appealed from.” Hawai'i Rules of Appellate Procedure (HRAP) Rule 4(b)(1).

 

The ICA agreed that Smith timely appealed from resentencing order of 30 years imprisonment. However, the ICA noted that Smith should have filed a brand new notice of appeal from the order denying the motion to reconsider the sentence instead of an amended notice of appeal. An “amended notice of appeal relates back to the notice of appeal it purports to amend, it does not appeal an order, judgment, or decreed entered subsequent to the notice of appeal it purports to amend.” Enos v. Pac. Transfer & Warehouse, Inc., 80 Hawai'i 345, 355-356, 910 P.2d 116, 126-127 (1996). An order denying a motion to reduce sentence is a separate order which, according to the ICA, requires a separate notice of appeal. Nevertheless, the ICA held there was appellate jurisdiction to review the entire matter despite counsel’s error. Villados v. State, 148 Hawai'i 386, 477 P.3d 826 (2020); State v. Uchima, 147 Hawai'i 64, 464 P.3d 852 (2020).

 

Two Notice of Appeals for one case? The ICA suggests that in order to perfect this appeal, there should have been a notice of appeal filed within 30 days of the entry of the judgment and sentence and a second notice of appeal filed after the denial of the motion for reduction of sentence. That seems a bit odd. Hawai'i Rules of Penal Procedure (HRPP) Rule 35 states that the lower court can entertain such a motion after entry of judgment even when a notice of appeal has been filed. And on top of that an appeal can proceed solely from an order denying the motion for reduction of sentence. State v. Kong, 140 Hawai'i 103, 398 P.3d 692 (2017). But is the second notice of appeal required with its second filing fee, second set of deadlines, second request for transcripts, second payment of transcripts, and nearly identical record on appeal required? Even when the first record on appeal is supplemented by the post-judgment litigation? According to the ICA, the answer is yes.

 

The Circuit Court Erred in Increasing the Kidnapping Charge to 20 Years (even though it was the Correct Sentence). Kidnapping is a class A felony unless “the defendant voluntarily released the victim, alive and not suffering from serious or substantial bodily injury, in a safe place prior to trial[,]” in which case it is a class B felony. HRS § 707-720(3). The jury here found that the prosecution established that Smith did not release the complainant free from serious or bodily injury. It should have been a class A felony subjecting him to 20 years prison, not the 10 years imposed by Judge Raffetto. Smith, however, argued that Judge Cahill erred in increasing the sentence from 10 to 20 years pursuant to HRS § 706-609:

 

When a conviction or sentence is set aside on direct or collateral attack, the court shall not impose a new sentence for the same offense, or for a different offense based on the same conduct, which is more severe than the prior sentence.

 

This statute “prevents a sentencing court from issuing a more severe sentence after the initial sentence has been set aside upon review.” State v. Samonte, 83 Hawai'i 507, 542, 928 P.2d 1, 36 (1996). It reflects the policy of “chilling a defendant’s exercise of the right to mount such a challenge” Fukusaku v. State, 126 Hawai'i 555, 563, 273 P.3d 1241, 1249 (App. 2012). While the circuit court correctly pointed out that Smith should have received an extra decade of imprisonment, it erred in fixing it. The ICA vacated that part of the sentence.

 

Dying of Cancer Doesn’t Merit Reconsideration. The ICA upheld the denial of the motion to reduce sentence. Smith presented evidence that he had throat cancer. His vocal cords and pharynx were removed. An incision was made into his windpipe. He is unable to speak and breathes through the incision in his windpipe. His doctor put his chances of survival over the next five years at 25%. But his “medical circumstances . . . are [not] compulsory mitigators.” State v. Kahapea, 111 Hawai'i 267, 281, 141 P.3d 440, 454 (2006). The ICA quoted extensively from Judge Raffetto’s original sentence and Judge Cahill’s statement that he did not “feel that the medical evidence warrants reconsideration of the sentence.” The ICA found no abuse of discretion in denying the motion. And so while most of the sentence was upheld, the ICA vacated part of it and remanded it for further proceedings and reminded the prosecution about the merger issue in the other proceeding.

 

Editor’s Note.  Scott Smith died of throat cancer in June 2020. When this opinion was issued, Smith had been dead for nearly nine months.