Court Cannot base Sentence on Uncharged, Dismissed, or Unadjudicated Conduct

 State v. Satoafaiga (HSC February 7, 2022)

Background. Victoria Satoafaiga was indicted with sexual assault in the third degree, sexual assault in the first degree by way of penetration, attempted sexual assault in the 3d degree, and custodial interference. She reached a plea agreement. Satoafaiga pleaded no contest to the amended charge of sexual assault in the fourth degree and custodial interference as charged. All other counts were dismissed. The circuit court—the Hon. Judge Rhonda I. L. Loo presiding—ordered a presentence investigation and report. Satoafaiga moved to defer her no contest plea.

 

At the hearing, the circuit court denied the motion. The circuit court reviewed the PSI report and made several comments about the case on the record. The circuit court noted that Satoafaiga was in a position of trust when she committed the offenses. She was a counselor at the Boys and Girls Club and was twice the age of the complainant. The circuit court commented, “I think everything you did to her, besides the digital penetration and the custodial interference . . . I mean, talk about a negative influence on a child.” The circuit court also noted that this was not an isolated event. In the time leading up to the offenses, Satoafaiga and the complainant sent thousands of text messages to each other. Then the circuit court made this comment:

 

But this was more than text messaging. It was penetration with a finger to a vagina. And the problem is, is that inappropriate text messaging might be a few messages here and there, or maybe even a couple of messages here and there, but 15,978 messages were exchanged. . . . it means there was an exchange going on between the two of you. So talk about some inappropriate behavior.

 

The circuit court reviewed Satoafaiga’s letter and also found that she was not taking responsibility for what she had done. The circuit court denied the motion to defer he plea and sentenced her. Satoafaiga pointed out that she did not plead to the felony and this was a misdemeanor for sexual assault in the fourth degree. The circuit court acknowledged that but still commented that “it still occurred at the Boys & Girls club, I think in the upper room. This inappropriate activity between you and the juvenile, you and the minor did happen. It happened.”

 

The circuit court imposed one year of imprisonment. Satoafaiga appealed. The ICA affirmed.

 

The deferral statute and granting one lies within the firm discretion of the sentencing court. The sentencing court may defer the conviction a no-contest or guilty plea for certain offenses when (1) the defendant pleads guilty or no contest before trial; (2) the court finds that “the defendant is not likely again to engage in a criminal course of conduct;” and (3) the “ends of justice and the welfare of society do not require that the defendant shall presently suffer the penalty imposed by law.” HRS § 853-1(a).

 

Granting a deferral motion lies “within the discretionary province of a trial judge.” State v. Martin, 56 Haw. 292, 294, 535 P.2d 127, 128 (1975). The sentencing court “should always consider the possible alternatives” and avoid “blind adherence” to predetermined rules or policies when it comes to granting a deferral. Id. And so, while courts may have a “wide latitude in the selection of penalties,” State v. Murray, 63 Haw. 12, 25, 621 P.2d 334, 342 (1980), the discretion is not unlimited and it cannot be arbitrary and capricious. State v. Martin, 56 Haw. at 294, 535 P.2d at 128-129.

 

The HSC rejected Satoafaiga’s argument that the sentencing court erred in finding that she was likely to reoffend and that the ends of justice and welfare of society required the penalty imposed by law. The HSC noted that the sentencing court considered Satoafaiga’s age, the several text messages, and that the build up to the incident showed it was not a one-time, accidental, or thoughtless incident. This was not an abuse of discretion.

 

But the court erred in basing its decision by considering sexual penetration. The HSC, however, held that the circuit court erred in relying on evidence of sexual penetration in support of its sentence. Satoafaiga pleaded no contest to sexual assault in the fourth degree, which means she was found guilty and sentenced for engaging in “sexual contact.” HRS § 707-733(1)(a). “Sexual contact” means “any touching, other than acts of ‘sexual penetration’ of the sexual or other intimate parts of another.” HRS § 707-700. The HSC noted that by its own definition, sexual assault in the fourth degree cannot include sexual penetration.

 

A sentence based on “unsubstantiated allegation[s]” of uncharged conduct is erroneous. State v. Vellina, 106 Hawai'i 441, 450, 106 P.3d 364, 373 (2005). “[A] judge cannot punish a defendant for an uncharged crime in the belief that it to deserves punishment.” State v. Nunes, 72 Haw. 521, 525, 824 P.2d 837, 840 (1994). Moreover, a court cannot base the sentence on conduct in which the defendant had been acquitted. State v. Koch, 107 Hawai'i 215, 225, 112 P.3d 69, 79 (2005).

 

Here, Satoafaiga pleaded no contest to sexual assault in the fourth degree—an offense that by its own terms excludes sexual penetration. And yet, the HSC held that the court penalized Satoafaiga for alleged acts of penetration. The HSC noted that even though it was not absolutely clear how much weight the court gave toward the alleged penetration, it was enough to vacate the judgment and remand for sentencing.

 

The court expressly noted that sexual penetration twice and when Sataoafaiga objected, the circuit court still commented that “it” took place in the upper room of the Boys & Girls Club and that “[i]t happened.” For the HSC this showed that the circuit court abused its discretion in relying on unadjudicated conduct of sexual penetration.

 

In sum, the HSC held that “just as a court may not penalize a defendant for conduct with no support in the record, it cannot hold a defendant responsible for conduct that they could not logically have committed, given their offense of conviction.” The HSC vacated the judgment and remanded for resentencing.