Courts don’t need a charging document for jurisdiction, but do need a pretty good reason to impose consecutive terms

 State v. Bautista (HSC September 13, 2023)

Background. The prosecution filed a complaint in the district court alleging seven crimes of violence against Rommel Bautista, including attempted murder in the second degree. All of the charges stemmed from an incident that occurred between Bautista and his wife in their home in Kahului. The district court held a preliminary hearing and found probable cause supported every count. The district court confirmed bail and committed the case to the circuit court.


The prosecution did not file a complaint in the circuit court. At the arraignment, Bautista pleaded not guilty. Five months later, the parties reached an agreement. Bautista pleaded no contest to three class C felonies: assault in the second degree, terroristic threatening in the first degree, and abuse of a family or household member in the presence of a minor. All other counts—including the attempted murder and assault in the first degree—were dismissed. There were no agreements as to sentencing. The circuit court—with the Honorable Judge Rhonda I. L. Loo presiding—accepted the plea, found him guilty of the three offenses, and ordered a presentence investigation and report.


The PSI report included supportive letters from Bautista’s family, coworkers, and his wife, the complainant. She wrote that the incident “did not have any lasting effects on me. The only effect it has had on our son is that his father is gone and he misses his father. Please we ask for your help and kindness to lessen him years in jail.” She added this was the first time Bautista hit him and “despite what happened that night I feel safe with him if he could be on probation and be given another chance.”


At the sentencing hearing, Bautista’s wife, parents, and sister sat in the courtroom. Bautista appeared on zoom from the jail and was not brought up due to the COVID-19 pandemic. He agreed to waive his physical presence for the sentencing hearing. At the hearing, the prosecution asked the court to sentence Bautista to three consecutive five-year terms of imprisonment for a total of 15 years. Bautista argued for probation.


The court addressed Bautista. “Mr. Bautista, you know, what’s worse than a jealous man is a drunk, jealous man. And that night you . . . were drinking a lot of tequila, and you went off on your wife.” The court recounted the incident and the impact it had on children exposed to domestic violence. The court recounted the complaining witness’s injuries and commented that “there was no part of your wife’s body that was not untouched.” The court then commented on Bautista’s letter that was in the PSI report:


You know, Mr. Bautista, your statement to the Court that you wrote was: ‘I’d like to spread my wings, fly high again, and catch . . . my dreams.’ . . . Sure sounds like a caged bird to me. Well, I know Big Bird, Angry Birds, and jail birds. And you know what we do with jailbirds? . . . We clip their wings and we keep them locked up in cages.


The court acknowledged the lack of criminal record, but said it was a “very severe case” and the offenses were “so serious you could have killed your wife.” And while she “maybe now . . . has changed her tune, she thought that night that she as going to die.” The court then sentenced Bautista:


So the Court feels that there’s a need for respect for the law and you need to be justly punished and afford adequate deterrence to everyone. Will five years protect her and your family? I don’t think so. Will ten years protect your wife and your family? I don’t think so. Will fifteen years protect your wife and your family? Perhaps.


The court sentenced him to the fifteen years—three five-year terms running consecutively. Bautista moved to reconsider the sentence. The court—this time with the Hon. Judge Kirstin M. Hamman presiding—denied the motion. Bautista appealed and the ICA affirmed. Bautista petitioned for a writ of cert, which was accepted.


The circuit court had jurisdiction to sentence—even without a charging document filed in the circuit court. Bautista first presented a jurisdictional challenge. After the preliminary hearing, the case was committed to the circuit court and the prosecution did not file a charging document. Bautista argued that without a charging document in the circuit court, the circuit court did not have jurisdiction to accept the no-contest plea, find him guilty, and sentence him. “Jurisdiction is defined as the power and authority on the part of the court to hear and judicially determine and dispose of the cause pending before it.” Schwartz v. State, 136 Hawai'i 258, 262, 361 P.3d 1161, 1165 (2015).


The HSC rejected Bautista’s argument that without a charging document filed in the circuit court, the circuit court lacked jurisdiction. The HSC specifically rejected his reliance on State v. Kaulia, 128 Hawai'i 479, 291 P.3d 377 (2013). In that case, the HSC held that after the defendant demanded a jury trial for assault in the third degree and after the prosecution moved to amend the complaint to aver a petty misdemeanor, the district court lacked jurisdiction on remand because the prosecution failed to file an amended charging document averring the petty misdemeanor. Id. at 491, 291 P.3d at 389.


The HSC explained that the jurisdictional problem in Kaulia was that the prosecution did not file an amended complaint in the district court and no “valid charging document re-established district court jurisdiction. Instead, the original misdemeanor complaint was still in play. That meant Kaulia retained his constitutional right to a jury trial, and the circuit court still had jurisdiction.” This, according to the HSC, was different. The prosecution charged Bautista with felony offenses and the case was committed to the circuit court without an amendment of the charges. The charges did not change when the case was committed to the circuit court. There being no amendment to the charge, there was no need to file a charging document in the circuit court.


Narrowing Obrero. The HSC also rejected Bautista’s reliance on State v. Obrero, 151 Hawai'i 472, 517 P.3d 755 (2022). Circuit courts have jurisdiction over “offenses cognizable under the laws of the State, committed within their respective circuits or transferred to them for trial by change of venue from some other circuit.” HRS § 603-21.5(a)(1). “Cognizable means capable of being known or recognized, or capable of being judicially tried or examined before a designated tribunal; within the court’s jurisdiction.” State v. Obrero, 151 Hawai'i at 478 n. 12, 517 P.3d at 761 n. 12. Here, the charging document pleaded cognizable offenses and it did not matter that it was filed in the district court.


The HSC also rejected Bautista’s argument that the prosecution violated HRS § 801-1, a statute that required an indictment to be filed before the arraignment pursuant to Obrero. The HSC held that Obrero does not apply retroactively.


We hold that Obrero applies to cases that were pending trial before the decision. Obrero does not apply retroactively to defendant who pled out or to defendants convicted after a trial. So defendants awaiting sentencing, or those challenging a charging instrument’s validity for the first time on appeal (like Bautista) or even later per HRPP Rule 40, are foreclosed from having their pleas nullified or their trial conviction overturned per HRS § 801-1.


The HSC reasoned, among other things, that “vacating virtually every conviction initiated by a felony complaint does not” further the interests of justice.


The Rules of Penal Procedure do not Require a Second Complaint in the Circuit Court. The HSC also rejected Bautista’s argument that the penal rules contemplate that a complaint be filed in the circuit court after a preliminary hearing in the district court.


A complaint may be filed in either the district or circuit court; provided that a complaint shall not be filed initially in the circuit court when it charges: (i) a felony, and none of the 3 conditions set for in Rule 7(b) of these rules has yet occurred, or (ii) only an offense or offenses other than a felony.


HRPP Rule 7(h)(2). HRPP Rule 7(b) identified the three conditions: a finding of probable cause by the district court after a preliminary hearing; the defendant waiving the right to a preliminary hearing; or the defendant waiting the right to an indictment.


According to the HSC, because there was no waiver of indictment or preliminary hearing, and because there was a preliminary hearing and finding of probable cause, HRPP Rule 5(c) applied: “If the defendant is held to answer in the circuit court, the court shall transmit to the circuit court all papers and articles received in evidence at the preliminary hearing and any bail received by it.”


The HSC held that no rule requires a scone complaint to be filed in the circuit court. While the complaint “may be filed in either the district or circuit court,” HRPP Rule 7(h)(2), it is not required to do both. The circuit court had jurisdiction to sentence Bautista.


Each consecutive term of imprisonment requires an adequate on-the-record basis. The sentencing court must consider the factors in HRS § 706-606 when imposing any sentence. Id. The sentencing court is presumed to have reviewed and considered these factors absent any evidence to the contrary. State v. Hussein, 122 Hawai'i 495, 518, 229 P.3d 313, 336 (2010).


While courts may impose consecutive terms of imprisonment, “there exists a presumption that multiple terms of imprisonment run concurrently, unless the court orders or the [applicable] statute mandates that the terms run consecutively.” Lewi v. State, 145 Hawai'i 333, 350, 452 P.3d 330, 347 (2019). The sentencing court is required to explain the need for consecutive sentences as opposed to the presumed concurrent sentence. Id. at 351, 452 P.3d at 348.


Thus, a sentencing court must put on the record “a meaningful rationale to the defendant, the victim, and the public” when imposing consecutive terms of imprisonment. State v. Hussein, 122 Hawai'i 509, 229 P.3d at 327. When the sentencing court uses the same factors to justify multiple consecutive sentences, it must still “specify . . . or identify another basis for determining how many consecutive sentences to impose.” Barrios, 139 Hawai'i at 337, 389 P.3d at 932. A “clearly articulated rationale is necessary when there is a large disparity between the maximum statutory sentence for each offense and the aggregate consecutive sentence imposed by the court.” Id. at 338, 389 P.3d at 933. This must be given for “each and every consecutive sentence.” State v. Sandoval, 149 Hawai'i 221, 236, 487 P.3d 308, 323 (2021).


The sentencing court did not provide an adequate basis for each consecutive sentence. The HSC held that the sentencing court did not follow these “stringent” directives. The sentencing court’s rationale was that “perhaps” fifteen years would protect the complaining witness and Bautista’s family. This was not enough. The HSC noted that the rationale “must be tethered to each consecutive sentence. The court acted as if it were sentencing Bautista to one count with a potential range of 0 to 15 years.” The HSC emphasized the need for “substantial and pointed reasons to justify a consecutive sentence.” Reciting sentencing factors may sometimes work for concurrent terms, but not consecutive ones. The HSC noted that the sentencing court did not distinguish the three offenses and treated them all as a single offense. “Stacking sentences after merely reciting a case’s circumstances is an abuse of discretion.”


Finally, it noted that consecutive terms are severe. “Our law requires a court to do much more than express a desire to clip a person’s wings, and put them in a cage.” The HSC vacated the judgment and remanded for resentencing.


Graham said…
Consecutive sentencing is a severe consequence, but Judge Loo stated: "the doctor at the hospital did confirm the extent of her injuries with the facial bruising, the collapsed lung, which could have caused death, fracture to not one rib but three different ribs . . . ." I concede that the "jail bird" comment was beneath what a Judge should say. A beating that causes a collapsed lung and potential death is a legitimate reason.
Graham said…
I believe that had the case gone to trial, the defendant might have been found guilty of attempted murder and wanted to avoid an open 20 year term of imprisonment. The remaining charges should have merged into the first charge had he been convicted. Batista got lucky that Judge Loo made that comment about a jail bird, which the Hawai'i Supreme Court thought was inappropriate and perhaps that helped Batista's claim that his consecutive terms were an abuse of discretion. It is only a Memo Opinion. Maybe, the HSC thought that the 3 counts should have been considered merged, but the defendant plead to all three and should have been told to expect consecutive sentencing, since there was no agreements as to sentencing. A better agreement would have been to agree to a five year open term of imprisonment and concurrent sentencing, rather than asking for probation, which would never have been the result (no matter who the judge was)due to the severe injuries and that the beating could have caused death. The jail bird comment was probably meat for the Maui News article, but was Not what a Judge should say.
Graham said…
Judge Loo liked to make a comment that would result in the heading of the Maui News Article. I had a co-defendant in the "Stranger Danger" Judge Loo Comment, but my client despite the probation department recommending an additional term of imprisonment was released with credit for time already served. Many attorneys failed to learn how to present a defendant and his/her situation to Judge Loo. I learned how to submit helpful information for a presentence report, to "help" every client write a letter to Judge Loo and write my own and in my Stranger Danger case, I prepared a video with audio from Q&A with police that swayed Judge Loo to sentence my client to credit for time served. The other co-defendant had been sentence to a prison term the week before. To few attorneys wish to get to understand how judges think and simply "fight" and argue hurting their client's situation.

Graham, how did you present that video to judge? Did you file it somehow? Or did you play it for the court during the sentencing hearing?

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