Speedy trial analysis applies to delays in sentencing

 State v. Canosa (HSC January 17, 2023)

Background. Stanley Canosa was charged with burglary in the first degree, sexual assault in the first degree, unauthorized entry into a dwelling, and two counts of sexual assault in the third degree. A jury found him guilty of every count except for the offenses of sexual assault in the third degree. He was also subject to extended sentencing and sentenced to 20 years for the burglary, 10 for unauthorized entry into a dwelling, and life for sexual assault in the first degree. The ICA vacated the judgment and remanded the case for a new trial.

 

In the second trial, Canosa asked for a new attorney. The third trial resulted in a jury deadlocked on sexual assault in the first degree. That count was dismissed. The jury found him guilty of burglary and unauthorized entry into a dwelling and extended sentencing again. The circuit court sentenced him to 20 years for the burglary and 10 for the unauthorized entry into a dwelling. The circuit court imposed the terms consecutively. Canosa appealed and the ICA vacated judgment after finding a sentencing error. The case was remanded for sentencing.

 

The judgment on appeal was issued on November 15, 2018. Canosa applied for certiorari to the HSC. The HSC rejected the application on January 18, 2019. Nearly a year and a half later on June 4, 2020, Canosa filed a written objection. He argued that before sentencing could occur, the ordinary terms of imprisonment had run and he was no longer subjected to extended terms of imprisonment. The circuit court—the Honorable Judge Karen Nakasone presided—overruled overruled the objection. The Court imposed the same terms of imprisonment: 20 for the burglary and 10 for the unauthorized entry into a dwelling, but ordered that they be served concurrently. Canosa appealed. The ICA affirmed. He petitioned for certiorari by the HSC.

 

Due Process continues after trial and at sentencing. Canosa argued that the near 16-month delay after the rejection of certiorari and sentencing deprived him of his due process rights under the State and federal constitutions. The HSC agreed.

 

“After conviction, a defendant’s due process right to liberty, while diminished, is still present. He retains an interest in a sentencing proceeding that is fundamentally fair.” Betterman v. Montana, 578 U.S. 437, 447-448 (2016). The HSC agreed with the SCOTUS that “although the Speedy Trial Clause does not govern, a defendant may have other recourse, including, in appropriate circumstances, tailored relief under the Due Process Clauses of the Fifth and Fourteenth Amendments.” Id. at 439.

 

The HSC agreed with Justice Sotomayor’s concurring opinion in Betterman that the four factors from Barker v. Wingo, 407 U.S. 514 (1972), apply to delays in sentencing. Betterman v. Montana, 578 U.S. at 451 (Sotomayor, J., concurring). Here are the factors:

 

(1) the length of the delay; (2) reasons for the delay; (3) the defendant’s assertion of the right; and (4) prejudice to the defendant.

 

Id. at 451. The HSC adopted this analysis and applied the four factors here. The HSC also held that all four factors weighed in Canosa’s favor.

 

The length of the delay. The HSC examined the length of the delay from the denial of his certiorari petition on January 18, 2019 to the sentencing hearing on June 4, 2020—sixteen months and seventeen days. Given that the delay in Betterman was fourteen months, this was sufficient to move on to the next factor. The HSC also noted that a seven-month delay may also be sufficient. See State v. Almeida, 54 Haw. 443, 509, P.2d 549 (1973). The HSC also noted it was “especially striking” that the delay encompassed the expiration of ordinary statutory terms on September 22, 2019.

 

The reasons for the delay. The HSC agreed that when examining the reason for the delay, there is a shared responsibility between the prosecution and the trial court. At oral argument, the prosecution acknowledged Canosa’s case “slipped through the cracks.” The HSC concluded that the delay was caused by “unexplained government inaction[.]” When the reasons for the delay are deliberately caused by the government, the factor weighs heavily against the government. State v. Visintin, 143 Hawai'i 143, 159, 426 P.3d 367, 383 (2018). When it is a neutral reason like mere negligence, the factor weighs less heavily but still falls on the prosecution and the circuit court, not the defendant. Id. Slipping through the cracks is in the neutral-negligence category. The factor weighs against the prosecution.

 

Assertion of the right to be sentenced. The third factor—assertion of the right—puts the onus on the defendant to bring about commencement of proceedings:

 

[A] defendant has no duty to bring himself [or herself] to trial; the State has that duty. Thus, a defendant does not waive his or her right to a speedy trial by failing to demand one. However, the assertion of the right to a speedy is entitled to strong evidentiary weight in determining whether the defendant is being deprived of the right.

 

Visintin, 143 Hawai'i at 160, 426 P.3d 384 (citations omitted).

 

The HSC applied these principles here. It noted that Canosa asserted his right to be sentenced without unreasonable delay with a written objection to the court filed the morning of the June 4, 2020 hearing. The delay meant that he could not argue that he was entitled to ordinary statutory maximum terms. He even testified at the hearing that he wrote to his attorney before the expiration of the ordinary terms asking why he was not being sentenced. He offered to enter the letter in evidence, but the circuit court declined.

 

As with the delays between arrest and indictment, Visintin, 143 Hawai'i at 161, 426 P.3d at 385,  The HSC noted that there was no other “conventional forum” for Canosa to assert the right sooner. Moreover, “[a]fter adjudication of guilt, sentence shall be imposed without unreasonable delay.” Hawai'i Rules of Penal Procedure (HRPP) Rule 32(a). According to the HSC, this created a “reasonable presumption that when his illegal sentence was vacated and remanded . . . he would have the opportunity to be sentenced” before expiration of the ordinary terms of imprisonment. The third factor weighed in Canosa’s favor.

 

The prejudice factor. The fourth factor also went Canosa’s way.

 

Prejudice, of course, should be assessed in the light of the interests of defendants which the speedy trial right was designed to protect. This Court has identified three such interests: (i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired. Of these, the most serious is the last, because the inability of a defendant adequately to prepare [the] case skews the fairness of the entire system.

 

Barker, 407 U.S. at 532. The HSC went straight to the third interest.

 

The HSC agreed with Canosa that the delay prevented him from seeking ordinary terms of imprisonment—the 10 and the 5—and deprived him of the right to allocution. It also prejudiced him in preventing the parole board from setting his mandatory term of imprisonment and delaying his ability to be paroled.

 

The HSC addressed allocution. Allocution is the defendant’s constitutional right to be heard before sentence is imposed. Haw. Const. Art. I, Sec. 5; HRS § 706-604(1). This right of allocution means that there has to be a meaningful opportunity to be heard:

 

[T]he right of presentence allocution is an important constitutional right guaranteed under the due process clause of the Hawai'i Constitution. As a due process right, a defendant’s right of allocution is violated if the court fails to afford the defendant an opportunity to exercise the right at a meaningful time and in a meaningful manner. In order to be meaningful, the opportunity for allocution must be reasonably calculated to achieve its purposes of providing the defendant with an opportunity to plead for mitigation, contest the factual bases for sentencing, and acknowledge wrongdoing.

 

State v. Carlton, 146 Hawai'i 16, 25-26, 455 P.3d 356, 365-366 (2019) (citations omitted).

 

The HSC held that the delay prevented Canosa from having a meaningful opportunity to plead for mitigation. The HSC explained that the prosecution’s delay put the sentencing court in an “unusual situation” in which the defendant had been detained beyond the statutory maximum. The circumstance deprived him of having “the appearance of justice.” The prosecution had 9 months to sentence Canosa before the ordinary terms expired. The failure to do so deprived him of a meaningful opportunity to be heard before sentencing. The fourth factor of prejudice weighs against the prosecution.

 

An unusual remedy: immediate release. On balance, the delay in sentencing was a due process violation. The Court has authority to “take such other steps as may be necessary . . . for the promotion of justice in matters pending before it” to fashion a remedy. HRS § 602-5(a)(6). The Court, therefore, ordered Canosa immediately released from custody and vacated his sentence.