Another botched attempt to impose consecutive sentences.

 State v. Bunag (HSC April 26, 2026). Alden Bunag was a substitute teacher for thirteen months. In that time, he sexually assaulted a child, recorded it, and shared it in an online chatroom. FBI agents investigated. The victim confirmed three instances of penetration. Agents also found child pornography on his phone and evidence of distribution. Bunag was prosecuted by the United States and ultimately was sentenced to a federal prison for 210 months.

The State also prosecuted Bunag. The State indicted Bunag with one count of continuous sexual assault of a minor, promoting child abuse in the first degree, promoting child abuse in the second degree, and promoting child abuse in the third degree. Prosecutors dismissed count 2 and Bunag pleaded guilty to the other three without a plea agreement.

 

At sentencing, the prosecution orally moved for consecutive terms of imprisonment. The motion was granted. Count one was 20 years and was consecutive with count 2, which is a ten-year maximum. Count 4 was five years and ran concurrently with the other two. The total came to 30 years. It also ran concurrently with the federal sentence. The circuit court gave this for its reasons:

 

Whether the -- whether the defendant -- there’s no question he’s going to serve time. The only question is whether it should be consecutive to any other time that he may be doing.

 

Considering the position of how this thing came about, the vic -- the position that the defendant was in and the position this young person was in, defendant was the teacher.

 

He had control over his action. He had control over some young peo -- some young people that were his students. In this case, unfortunately, the young person in this case the person that he selected.

 

That is dangerous. This young person was looking to him for emotional support, educational support, not ruin [his] life. Because that’s going to be staying with this young person for the rest of [his] life.

. . . .

 

So the State ha[s] every right to ask for consecutive years considering the seriousness of -- of what happened here as she [the prosecutor] stated on the record. She has every right to ask for.

 

And considering the nature of this thing, this is what -- the Court’s going to sentence you to . . . 30 years. 30, open term of 30 years based on the factors under -- under 706-606 and as stated by the prosecutor on for [sic] the record. Those are the factors that this Court has to consider[.]

 

The circuit court justified the consecutive sentence by discussing Bunag’s role as a teacher and the emotional harm inflicted on the victim. There was no mention of the offense conduct in count 3—recording the assaults and distributing the video. There was no mention of Bunag’s history and characteristics other than his role as a teacher. Nor did it discuss deterrence, public safety, rehabilitation, or sentencing disparities. When it came finding a reason for the consecutive sentence, the circuit court deferred to the prosecutor by saying “as stated by the prosecutor on the record.”

 

Bunag appealed. Four days after the notice of appeal was filed, the circuit court issued an order granting the prosecution’s motion that was drafted by the prosecution. In the written order, the circuit court addressed factors in HRS § 706-606 but still failed to mention the full range of statutory factors and Bunag’s background and his offense. The ICA affirmed and relied heavily on the after-the-fact order. The HSC granted cert.

 

Consecutive sentencing is not normal. Consecutive sentences exceed what the HSC called “the presumptive statutory maximum sentence.” See HRS § 706-668.5(1). The HSC compared consecutive sentencing to extended term sentences in HRS §§ 706-660 and 661. But unlike extended term sentencing, there are little procedural protections.

 

The only real procedural protection comes from the HSC itself. “Courts must state on the record at the time of sentencing the reasons for imposing a consecutive sentence.” State v. Bautista, 153 Hawai‘i 284, 290, 535 P.3d 1029, 1035 (2023). See also State v. Hussein, 122 Hawai‘i 495, 510, 229 P.3d 313, 328 (2010), and State v. Barrios, 139 Hawai‘i 321, 333, 389 P.3d 916, 928 (2013). The HSC identified three violations of the rule.

 

An after-the-fact order granting the motion for consecutive sentencing is not the same thing as an on-the-record explanation. The HSC took issue with the ICA’s reliance on the after-the-fact order. There was an analysis in the order that was simply not made on the record at the time of sentencing. The order, according to the HSC, is “off limits” when it comes to reviewing the adequacy of the consecutive sentence rationale.

 

An on-the-record explanation at the time of sentencing serves two purposes. First, it ensures the court made a proper analysis before imposing the sentence. And second, it ensures for “the defendant, the victim, the public, and the appellate court, that the decision to impose consecutive sentences was deliberate, rational, and fair.” State v. Kong, 131 Hawai‘i 94, 102, 315 P.3d 720, 728 (2013). And so, the ICA erred by relying on the post-conviction order.

 

The sentencing court’s explanation for 30 years imprisonment was “suboptimal.” The HSC addressed the on-the-record explanation and held that it did not pass muster. Concurrent sentences are presumed. Lewi v. State, 145 Hawai‘i 333, 350, 452 P.3d 330, 347 (2019). In order to depart from concurrent terms, the sentencing court must consider the factors in HRS § 706-606 and “adequately distinguish between the need for consecutive sentences” from the presumed concurrent sentence. State v. Bautista, 153 Hawai‘i at 290, 353 P.3d at 1035. “Stacking sentences after merely reciting a case’s circumstances is an abuse of discretion.” Id. at 291, 353 P.3d at 1036.

 

That is what the sentencing court did here. It reviewed the “nature and circumstances of the offense” but did nothing else. Granted, the HSC noted that that factor is in HRS § 706-606. It is “discussed at every sentencing hearing” and is the “foremost factor courts rely on.” But when that is all the court recites, it runs afoul and is “the type of mere recitation we rejected in Bautista.” Not only that, but the sentencing court failed to explain why count 3 should run consecutively to count 1. The sentencing court neglected the other factors in HRS § 706-606 entirely.

 

The “outsourcing” problem. Finally, there’s the issue of deferring too much to the prosecutor. The court’s sentence was based on “the factors under . . . 706-606 and as stated by the prosecutor on the record.” The HSC held that that was erroneous. It was an error for the circuit court to just adopt what the prosecutor said and not articulate its own conclusions. This approach is not “the independent analysis our case law demands.” The court—not the prosecutor—has to give a reasons to ensure it was “deliberate, rational, and fair.” Hussein, 122 Hawai‘i at 510, 229 P.3d at 328. The sentencing judge has to use his or her own words.

 

The HSC vacated the judgment and remanded for a new sentencing hearing.