76 Hawai'i 517, State v. Schroeder, 15356

• Decision Date: 30 August 1994
• Docket Number: No. 15356,15356
• Court: Hawaii Supreme Court
• Parties: 76 Hawai'i 517 STATE of Hawai'i, Petitioner-Appellee, v. Eric W. SCHROEDER, Respondent-Appellant.

Page 192

880 P.2d 192

76 Hawai'i 517

STATE of Hawai'i, Petitioner-Appellee, v. Eric W. SCHROEDER, Respondent-Appellant.

No. 15356.

Supreme Court of Hawai'i.

Aug. 30, 1994.

James M. Anderson, Deputy Pros. Atty., on the briefs, Honolulu, for petitioner-appellee State of Hawai'i.

Wendel D. Crutchfield, on the briefs, Honolulu, for respondent-appellant Eric W. Schroeder.

Before MOON, C.J., LEVINSON, NAKAYAMA and RAMIL, JJ., and Circuit Court Judge CRANDALL, Assigned in Place of KLEIN, J., Recused.

LEVINSON, Justice.

Following a jury-waived trial, the respondent-appellant Eric W. Schroeder was convicted of robbery in the first degree and kidnapping. The circuit court sentenced Schroeder to two concurrent indeterminate prison terms of twenty years, both subject to concurrent mandatory minimum prison terms of ten years. Schroeder later filed a motion to correct illegal sentence, alleging numerous grounds in support. The circuit court denied the motion.

Schroeder then appealed the denial of the motion to this court, and we assigned the matter to the Intermediate Court of Appeals (ICA). In its decision, the ICA affirmed the circuit court's denial of Schroeder's motion except with respect to the mandatory minimum sentence imposed in connection with the kidnapping conviction, as to which the ICA remanded to the circuit court with instructions to vacate that sentence. State v. Schroeder, 10 Haw.App. 535, ----, 880 P.2d 208, 213 (1992).

The State of Hawai'i (prosecution) applied to this court for a writ of certiorari, 74 Haw. 652, 843 P.2d 144, assigning as error, inter alia, that the ICA had incorrectly determined that State v. Estrada, 69 Haw. 204, 738 P.2d 812 (1987), precluded the circuit court from imposing a mandatory minimum prison sentence in connection with the kidnapping conviction. Because we believe that the ICA reached the right result for the wrong reasons, and the result therefore requires clarification and further explication, we granted the prosecution's application.

For the reasons set forth below, we affirm.

I. BACKGROUND

On October 10, 1985, the Oahu grand jury returned a two-count indictment charging Schroeder as follows:

COUNT I: On or about the 13th day of April, 1985, in the City and County of Honolulu, State of [Hawai'i], ERIC W SCHROEDER, while in the course of committing theft, and while armed with a dangerous instrument, to wit, a handgun, did threaten the imminent use of force against Phillip M. Richards, a person who was present, with the intent to compel acquiescence to the taking of or escaping with the property, thereby committing the offense of Robbery in the First Degree in violation of Section 708-840(1)(b)(ii) of the [Hawai'i] Revised Statutes. ¹

COUNT II: On or about the 13th day of April, 1985, in the City and County of Honolulu, State of [Hawai'i], ERIC W. SCHROEDER did intentionally restrain Phillip M. Richards with intent to facilitate the commission of a felony or flight after the commission of a felony, thereby committing the offense of Kidnapping in violation of Section 707-720(1)(c) of the [Hawai'i] Revised Statutes. ²

(Emphasis added.)

On January 30, 1987, after a three day bench trial, the circuit court convicted Schroeder of both counts. Before setting a sentencing date and referring Schroeder to the Adult Probation Division for a pre-sentence diagnosis and report, the circuit court issued the following oral findings ³ and directive from the bench:

The Court makes a specific finding that Mr. Schroeder was in the course of committing a theft and while in the course of committing a theft he was indeed armed with a dangerous instrument.

And the Court will further find that at that particular time, and with that instrument, he did threaten the imminent use of force with that instrument against the persur [sic] of the ship and therefore what he was trying to do was compel that person's acquiescence in stealing the money which this Court finds he ultimately did after which he made his getaway.

Accordingly the Court finds that the State has met its burden and does find [Schroeder] guilty of Robbery in the First Degree.

The Court understands there is a second charge against [Schroeder] and that is kidnapping. And the charge is that Mr. Schroeder restrained another person with the intent to facilitate the commission of a felony. And the Court finds that indeed was the case here.

Accordingly, the Court finds again the State has met its burden and finds [Schroeder] guilty of that charge.

....

... As far as this Court is concerned, he's guilty of the [class] A [felony]. I don't find that the victim was voluntarily released. Now, insofar as sentencing is concerned, I'm going to set a sentencing date....

Now, [Schroeder] will be referred to the Adult Probation Division for a pre-sentence report prior to that particular hearing....

1/30/87 Tr. at 266-68. ⁴

On March 10, 1987, the prosecution filed a motion for imposition of a mandatory minimum sentence of ten years pursuant to Hawai'i Revised Statutes (HRS) § 706-660.1(a) (1985). ⁵ As will become apparent, the precise wording of the prosecution's motion and supporting affidavit are critical to the outcome of this appeal. In that connection, the prosecution's motion set forth the following request:

Comes now the STATE OF [HAWAI'I], and pursuant to Section 706-660.1 of the [Hawai'i] Revised Statutes, hereby moves this Honorable Court to sentence Eric W. Schroeder to a mandatory term of imprisonment of ten (10) years.

This motion is based upon all the records and files herein, upon the Affidavit attached hereto and made a part hereof by reference, and such evidence as may be adduced at the hearing on this motion.

(Additional emphasis added.) The attached affidavit, prepared by the deputy prosecuting attorney (DPA) who represented the prosecution throughout Schroeder's trial, averred in relevant part:

3. [Schroeder] was convicted of the offenses of Robbery in the First Degree and Kidnapping (both class A felonies);

4. The facts in the above-captioned offense show that [Schroeder] had a firearm in his possession, and threatened its use while engaged in the commission of a felony;

5. Based on the foregoing, it is respectfully requested that this Honorable Court sentence [Schroeder] to a mandatory term of imprisonment of ten (10) years.

(Emphasis added.)

The consolidated sentencing proceeding and hearing on the prosecution's motion for imposition of a mandatory minimum sentence was conducted on March 25, 1987. The prosecution was represented by a DPA, and Schroeder was represented by his trial counsel. Neither the prosecution nor the defense adduced any evidence, but rather relied solely on the pre-sentence report submitted by the Adult Probation Division, arguments of counsel, and remarks directed to the circuit court by Schroeder. Defense counsel addressed the following remarks to the circuit court regarding the prosecution's motion:

Again, I urge the Court to consider, within its discretion, to grant from 0 to 10 years mandatory minimum for the commission of the offense with a firearm ....

I am mindful of the purpose of the legislature in legislating that provision to deter the use of a firearm. I would urge that the Court be lenient in the use of that statute within the discretion of the Court and which was intended for the discretion of the Court by the Legislature. Mr. Schroeder, in the commission of the crime, how it was committed, ... was not overtly violent. Certainly there was a threat involved. But again, no overt violence. In fact, almost a passivity and a withdrawal. I would say a minimal amount to facilitate or to accomplish the commission of the crime.

3/25/87 Tr. at 13-14 (emphasis added).

The DPA's only argument regarding the prosecution's motion for mandatory minimum sentence occurred during the following colloquy with the circuit court:

[DPA]: ... The Court is aware of the facts in this case, having heard the jury-waived trial. So I will not talk about them.

However--

THE COURT: Jury-waived trial?

[DPA]: Excuse me. Trial in this case on January 27, 1987, Your Honor.

THE COURT: This case was a--

[DEFENSE COUNSEL]: It was a jury-waived bench trial.

THE COURT: Jury-waived bench trial. That is correct. That is correct.

Court made findings of fact and law in this trial.

[DPA]: That's correct, Your Honor. Therefore, the Court is well [sic] that this case is not one which is a spur of the moment type of robbery.... Instead, the evidence in this case established basically that it was a planned and premeditated act by [Schroeder]....

....

Your Honor, based upon the fact, the nature of his apprehension, the credit cards, the receipt for the gun, the fact that the gun was used in this case, the fact that it was a planned [and] premeditated offense, [Schroeder] did essentially kidnap, and kidnapping was charged as a class A felony, [Schroeder] is deserving of ... mandatory 10 years for the use of the handgun....

....

Your Honor, the State has no more to add.

Id. at 16-19 (emphasis added).

At the close of argument, the circuit court made the following oral ruling on the prosecution's motion:

THE COURT: The Court has had the benefit now of hearing arguments on the motion[ ] as well as on sentencing itself, both matters having been consolidated.

....

... So far as the motion for mandatory term of imprisonment is concerned, Mr. Schroeder, it may have been that you acted stupidly, and as you said, in this Court they should have charged you with stupidity. But, of course, there is no such offense.

However, your stupidity, as you have termed it, in the eyes of society and the community and those who are injured by your act, constitutes more than that. It constitutes a threat and menace to society. And the Court looks upon it as just that. Looks upon your action as that. Accordingly, the Court is going to give you a mandatory term of imprisonment. Accordingly, the Court will order...