78 Hawai'i 127, State v. Gaylord
| Decision Date | 14 March 1995 |
| Docket Number | No. 15878,15878 |
| Parties | 78 Hawai'i 127 STATE of Hawai'i, Plaintiff-Appellee, v. James E. GAYLORD, Defendant-Appellant. |
| Court | Hawaii Supreme Court |
James E. Gaylord, on the briefs, defendant-appellant, pro se.
Mark R. Simonds, Deputy Pros. Atty., on the briefs, Wailuku, Maui, for plaintiff-appellee.
Before MOON, C.J., and KLEIN, LEVINSON, NAKAYAMA and RAMIL, JJ.
In these consolidated appeals, 1 the defendant-appellant James Gaylord challenges his convictions of two counts of theft in the first degree and one count of theft in the second degree, as well as the resulting amended sentence--a mix of concurrent and consecutive indeterminate terms of imprisonment totalling fifteen years and a tripartite restitution order in the aggregate amount of $122,248.95--imposed on him by the trial court. Although Gaylord, acting pro se on appeal, raises twenty-nine points of error in his opening brief and seven more in his supplemental opening brief, only two issues 2 warrant analysis in this opinion: (1) whether Hawai'i Revised Statutes (HRS) § 708-830(6)(a) (1985), 3 pursuant to the substantive provisions of which he was convicted of the two counts of theft in the first degree, in violation of HRS § 708-830.5 (Supp.1991), 4 is unconstitutionally vague and/or overbroad; and (2) whether the trial court abused its discretion in sentencing Gaylord to consecutive terms of imprisonment for the sole purpose of allowing the Hawai'i Paroling Authority "full control/authority to collect the full payment of restitution." 5
We resolve the first issue in the negative and the second in the affirmative. Accordingly, we affirm Gaylord's amended judgment of conviction, vacate his amended sentence, and remand the matter to the circuit court for resentencing.
The theft charges against Gaylord, all of which were tried together, arose out of his conduct as an attorney licensed by this court and engaging in the practice of law in Lahaina, Maui. We now address the circumstances underlying the charges, as reflected in the record, and the events that followed.
Donald L. Nyen, a citizen of Canada residing on the island of Maui, retained Gaylord to represent him in a transaction involving the sale of a parcel of Canadian land. Without turning over the sale proceeds to Nyen, Gaylord traveled to the mainland, where he allegedly became ill for a few days. Fearing "intense embarrassment and pressure" if he were to return to Maui, and dreading criminal prosecution for mishandling clients' matters, he disappeared and remained incommunicado from June 1989 to March 1990.
After being indicted by a Maui grand jury and returning to Hawai'i for trial, the jury found that Gaylord was legally obligated to Nyen in the amount of the sale proceeds--specifically, $47,248.95--and, on September 9, 1991, convicted him of theft in the first degree for having dealt with Nyen's funds as his own and failing to make a required payment or disposition of property, the value of which exceeded $20,000.00, in violation of HRS §§ 708-830(6)(a) 6 and 708-830.5. 7
As a real estate commissioner, Gaylord was obligated to oversee the foreclosure of the property of Sattie Singh. After the requisite auction, Gaylord obtained possession of a deposit from the buyers in the amount of $70,000.00, which he was legally obligated to pay to Singh. Instead of doing so, however, Gaylord absconded to the mainland. On September 9, 1991, following indictment, the jury convicted him of theft in the first degree, likewise in violation of HRS §§ 708-830(6)(a) and 708-830.5, for failing to make a required payment or disposition of funds.
Susan Kinsela, a resident of Kaua'i, retained Gaylord to represent her with respect to various legal matters after Gaylord had served as her court-appointed counsel in connection with a theft that she had allegedly committed at a Maui condominium. (The charge was later withdrawn.) The matters included a civil lawsuit that Kinsela filed, inter alia, against the homeowners' association of the condominium, the Maui Police Department, the Maui County Prosecutor's Office, and the Maui and O'ahu Community Correctional Centers. In the course of his representation, Gaylord requested and received from Kinsela a payment of $5,000.00 as part of their retention agreement. After making the payment, Kinsela discovered that Gaylord had left the state without performing any work on her case. Pursuant to the same indictment as that involving the Singh matter, on September 9, 1991, the jury convicted Gaylord of theft in the second degree, in violation of HRS §§ 708-830(2) (1985) 8 and 708-831(1)(b) (Supp.1991), 9 for having obtained or exerted control over Kinsela's property through deception.
Having departed from Maui with what remained of Nyen, Singh, and Kinsela's monies, Gaylord proceeded to travel across the mainland, purchasing several automobiles, assuming the identity of a deceased person, and making a false passport application. He was eventually apprehended by federal law enforcement agents and served a federal sentence for passport fraud before he was brought to trial in the second circuit court on the theft charges that underlie this appeal.
Following Gaylord's convictions, his sentencing hearing was originally scheduled to take place on November 6, 1991, but was later continued to December 9, 1991. In a series of memoranda filed with the trial court, Gaylord proposed that he be sentenced to three five-year concurrent terms of probation, subject, inter alia, to the condition that he make restitution to Nyen, Singh, and Kinsela. In substance, Gaylord articulated his position as follows:
[T]he defendant believes that he should be given an opportunity to make restitution while on probation.... [T]hose who lost money because of [his] criminal conduct ... would receive no benefit from a term of imprisonment and would benefit from a program of restitution.
....
... [I]t is clear to any reasonable person that a period of imprisonment would make it unlikely that the defendant could successfully make restitution
....
A sentence of probation requiring the defendant to make restitution would be an appropriate alternative to a sentence of imprisonment.... Defendant believes that he can make full restitution within a reasonably short time if he is sentenced to time served 10 and probation.
... Imprisonment would cost the State of Hawai'i a substantial sum of money and would make it impossible for the defendant to pay restitution.
In its sentencing memorandum, the prosecution took the position that, in light of the nature and circumstances of the offenses and Gaylord's history and characteristics, Gaylord should be sentenced to indeterminate prison terms of ten years (Cr. No. 90-0085), ten years (Count One of Cr. No. 90-0261), and five years (Count Two of Cr. No. 90-0261), all to run consecutively pursuant to HRS § 668.5 (Supp.1992). 11
Gaylord's continued sentencing hearing commenced, as scheduled, on December 9, 1991. At the outset, the deputy prosecuting attorney (DPA) called Georgina Yuen, the chairperson of the Hawai'i Paroling Authority, as a witness, whereupon the following colloquy ensued:
Q [by the DPA] ... [Y]ou are acquainted with the procedures of the [Hawai'i] Paroling Authority, and the way parole is administered; is that right?
A [by Yuen] Yes, I was a part-time member for six years prior to assuming the chairmanship this past July.
Q ... [I]f consecutive sentences were available, would it make a difference at all with a person receiving consecutive sentencing [ ] when it comes to restitution?
For instance, hypothetically, if ... it were possible to sentence a person to 20 years in terms of two 10 year consecutive ... terms ..., as opposed to two ten year terms concurrently, does that make any difference as to how the [Hawai'i] Paroling Authority could manage restitution with respect to that person?
A The policy of the [Hawai'i] Paroling Authority is that a person does not receive an early discharge from a sentence until restitution has been paid in full.
Q I see.
A So this would allow the courts or the Paroling Authority to have a longer term under which collection can be made.
. . . . .
Q Okay. Now, let me shift this. As far as the Paroling Authority is concerned, if a person were on parole ... [and] had to make approximately $122,000 in restitution, is it correct, then, that in a ten year period, the Paroling Authority would be seeking restitution of approximately a thousand dollars a month?
A That's correct.
Q Okay. Now, if a person had only a ten year sentence, after the expiration of that ten year sentence, under the jurisdiction of the Paroling Authority, would the Paroling Authority have an ability to collect any further moneys from that person?
A No, the Paroling Authority would not.
....
Q Okay. Consequently, a longer period of time would ... allow the Paroling Authority more time to collect?
A Yes, it would.
....
Q In your experience, has the ... [Hawai'i] Paroling Authority in fact been put in a ... better position, because of consecutive sentencing, to obtain restitution that they would not have been able to ... had it not been ... consecutive? Does any case come to mind?
A There have been instances in the First Circuit Court where the judges have put on the record the fact that they are giving a consecutive sentence purely for restitution purposes.
At sentencing, they place it on the record that they do not expect the defendant to serve additional time incarcerated because of the consecutive sentence, but wish to have this person under the jurisdiction of the criminal justice system for a longer period of time, so that the victims can be paid off.
Q I see.
A A particular case that comes to mind is a...
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