79 Hawai'i 281, Keawe v. State

• Decision Date: 01 August 1995
• Docket Number: No. 17405,17405
• Citation: 901 P.2d 481
• Parties: 79 Hawai'i 281 Jeffrey KEAWE, also known as Derrick Guzman, Petitioner-Appellant, v. STATE of Hawai'i, Respondent-Appellee.
• Court: Hawaii Supreme Court

Page 481

901 P.2d 481

79 Hawai'i 281

Jeffrey KEAWE, also known as Derrick Guzman, Petitioner-Appellant, v. STATE of Hawai'i, Respondent-Appellee.

No. 17405.

Supreme Court of Hawai'i.

Aug. 1, 1995.

Richard T. Pafundi, on the briefs, Honolulu, for petitioner-appellant.

Patricia A. Loo, Deputy Pros. Atty., on the briefs, City and County of Honolulu, Honolulu, for respondent-appellee.

Before MOON, C.J., and KLEIN, LEVINSON, NAKAYAMA and RAMIL, JJ.

RAMIL, Justice.

Petitioner-Appellant Jeffrey Keawe appeals from the circuit court's resentencing order. Keawe argues that his amended sentence, after a successful Hawai'i Rules of Penal Procedure (HRPP) Rule 40 challenge, was "an enhancement of [his] original sentence" and therefore violated the double jeopardy clauses of the Hawai'i and United States Constitutions. For the reasons stated below, we reject Keawe's argument and affirm the circuit court's resentencing order.

I. FACTS

On September 30, 1987, Keawe was charged with one count of theft in the second degree (Criminal No. 87-1296) in violation of Hawai'i Revised Statutes (HRS) § 708-831 (as amended 1986). ¹ See 1986 Haw.Sess.Laws Act 314, § 64 at 624-25. On January 18, 1988, he was charged with two counts of theft in the first degree in violation of HRS § 708-831 (1985) ² and eleven counts of forgery in the second degree (Criminal No. 88-0060) in violation of HRS § 708-852 (1985). ³ On March 2, 1988, Keawe entered no contest pleas to all of the charges against him in both criminal cases.

On April 6, 1988, the circuit court entered judgments of conviction and sentence in both Criminal Nos. 87-1296 and 88-0060. In the first criminal case, Criminal No. 87-1296, the circuit court sentenced Keawe to incarceration for an extended term of ten years, with a one year and eight month minimum term of imprisonment, and to pay restitution in the amount of $8,000. In the second criminal case, Criminal No. 88-0060, the court sentenced Keawe to incarceration for an extended term of ten years as to each count, to run concurrently with each other, with a three-year minimum term of imprisonment, and to pay restitution in the amount of $10,538. Lastly, the sentences in Criminal Nos. 87-1296 and 88-0060 were to be served concurrently with each other. ⁴

On January 26, 1993, Keawe filed a Petition for Post-Conviction Relief under HRPP Rule 40. Keawe argued that the extended term sentence was illegal because the court failed to give him any written notification of the possibility of an extended term as required by HRS § 706-664 (Supp.1992). ⁵ On May 21, 1993, the court granted Keawe's Rule 40 petition and vacated the sentences in both Criminal Nos. 87-1296 and 88-0060. See State v. Schroeder, 76 Hawai'i 517, 527-28, 880 P.2d 192, 202-03 (1994) and State v. Huelsman, 60 Haw. 71, 76-77, 79-80, 588 [79 Hawai'i 283] P.2d 394, 398-400 (1978) ("HRS § 706-664 requires a hearing on notice to the defendant as a prerequisite to imposition of a sentence of imprisonment for an extended term[.]"), reh'g denied, 60 Haw. 308, 588 P.2d 407 (1979).

At the July 28, 1993 resentencing hearing, the circuit court resentenced Keawe to a five-year indeterminate term of imprisonment in each criminal case with the terms to run consecutively. ⁶ In resentencing Keawe, the circuit court stated:

A very important factor in this Court's consideration in sentencing [Keawe] is his prior convictions. He has a very serious record of prior convictions. According to the presentence report, [Keawe] was convicted on March 11, 1980 in Maui County under Criminal 5800 of one count of Forgery, two counts of Theft in the First Degree, and one count of Credit Card Fraud. And he was put on probation. And then at a later time, that probation was revoked; he was sentenced to prison.

He was convicted on December 15, 1988 of seven counts of Forgery, one count of Theft in the First Degree, in [Hawai'i] County. In Criminal Number 86-0426, he was convicted again in Maui County under Criminal 88-0090 on October 12, 1988 of 17 counts of Forgery and one count of Theft in the First Degree.

With a record like that, we now approach sentencing in this case. The Court feels that [Keawe], with a record like that, is a danger to the property of others in the community and should be sentenced to a consecutive term of imprisonment with respect to the two cases.

I understand your argument, [defense counsel], that you feel he's being punished more severely. However, Judge Town sentenced him to extended terms of imprisonment without giving him proper notice, and I [do] not believe that a consecutive term of imprisonment under the circumstances violates his Constitutional rights.

Accordingly, the court in Criminal 88-0060 will sentence [Keawe] to be transferred to the custody of the Department of Public Safety for--that is, in Counts I and II--Counts I through [X]III for indeterminate terms of imprisonment not to exceed five years, [concurrently with each other] with the [Hawai'i] Paroling Authority to determine the minimum term of imprisonment.

And the Court will sentence [Keawe] in Criminal 87-1296 to be transferred to the custody of the Department of Public Safety for an indeterminate term of imprisonment not to exceed five years, with the [Hawai'i] Paroling Authority to determine the minimum term of imprisonment with the terms of imprisonment in Criminal 88-0060 to run concurrent[ly] with each other for each count but consecutive[ly] to the term of imprisonment in Criminal 87-1296.

Now, I'll tell you very frankly, I would have considered an extended term of imprisonment. But there were proof problems. The files come from island counties. And although I could take judicial notice of some of the matters in the files, I was concerned that there may be difficulty with one or more elements that have to be established, bearing in mind the files come from other island counties and could not be established simply by taking judicial notice of the documents in the files. Otherwise, I would have sentenced him as Judge Town did.

Mr. Keawe has established by his past record that he's not--at least was not an honest person, to make an understatement. Whether or not this trait still exists, I don't know. But under the circumstances, it's reasonable to conclude that he's a real danger to the community. And I think the parole authority should be aware of this Court's opinion that he's a danger to the property of other people in the community.

I think he's still a danger based on his past conduct. And frankly, I'm going to give input to the parole authority as to the opinion of the Court.

(Emphases added.) The court also resentenced Keawe to pay restitution, $8,000 in Criminal No. 87-1296 and $10,538 in Criminal No. 88-0060, and gave Keawe credit for time served.

Keawe thereafter filed a timely appeal from the circuit court's Order of Resentencing.

II. STANDARD OF REVIEW

In reviewing Keawe's appeal, we recognize that a sentencing judge generally has broad discretion in imposing a sentence. State v. Gaylord, 78 Hawai'i 127, 143-44, 890 P.2d 1167, 1183-84 (1995); State v. Valera, 74 Haw. 424, 435, 848 P.2d 376, 381, reconsideration denied, 74 Haw. 650, 853 P.2d 542 (1993). The applicable standard of review for sentencing or resentencing matters is whether the court committed plain and manifest abuse of discretion in its decision. Gaylord, 78 Hawai'i at 144, 890 P.2d at 1184; State v. Kumukau 71 Haw. 218, 227-28, 787 P.2d 682, 688 (1990); State v. Murray 63 Haw. 12, 25, 621 P.2d 334, 342-43 (1980); State v. Fry, 61 Haw. 226, 231, 602 P.2d 13, 16 (1979). " 'Generally, to constitute an abuse it must appear that the court clearly exceeded the bounds of reason or disregarded rules or principles of law or practice to the substantial detriment of a party litigant.' " Gaylord, 78 Hawai'i at 144, 890 P.2d at 1184 (quoting Kumukau, 71 Haw. at 227-28, 787 P.2d at 688 (1990) (citation and internal quotation marks omitted)).

Keawe's primary argument that his resentence was an enhanced sentence and therefore in violation of the constitutional protection against double jeopardy is a question of law reviewable under a right/wrong standard. State v. Baranco, 77 Hawai'i 351, 355, 884 P.2d 729, 733 (1994).

III. DISCUSSION

A.

Before addressing Keawe's primary argument, we consider whether the sentencing court abused its discretion in resentencing Keawe to consecutive terms of imprisonment. The circuit court's authority to impose consecutive terms of imprisonment is governed by HRS § 706-668.5 (Supp.1992), which provides:

Multiple sentence of imprisonment.

(1) If multiple terms of imprisonment are imposed on a defendant at the same time, or if a term of imprisonment is imposed on a defendant who is already subject to an unexpired term of imprisonment, the terms may run concurrently or consecutively. Multiple terms of imprisonment imposed at the same time run concurrently unless the court orders or the statute mandates that the terms run consecutively. Multiple terms of imprisonment imposed at different times run consecutively unless the court orders that the terms run concurrently.

(2) The court, in determining whether the terms imposed are to be ordered to run concurrently or consecutively, shall consider the factors set forth in section 706-606.

(Emphases added and bold in original.)

HRS § 706-606 (Supp.1992) provides:

Factors to be considered in imposing a sentence.

The court, in determining the particular sentence to be imposed, shall consider:

(1) The nature and circumstances of the offense and the history and characteristics of the defendant (2) The need for the sentence imposed:

(a) To reflect the seriousness of the offense, to promote respect for law, and to provide just punishment for the offense;

(b) To afford adequate deterrence to criminal conduct;

(c) To protect the public from further crimes of the defendant; and

(d) To provide the defendant with needed educational or vocational...