80 Hawai'i 327, Garringer v. State

Decision Date23 January 1996
Docket NumberNo. 18573,18573
Citation909 P.2d 1142
Parties80 Hawai'i 327 Ricky Dale GARRINGER, Petitioner-Appellant, v. STATE of Hawai'i, Respondent-Appellee.
CourtHawaii Supreme Court

Page 1142

909 P.2d 1142
80 Hawai'i 327
Ricky Dale GARRINGER, Petitioner-Appellant,
v.
STATE of Hawai'i, Respondent-Appellee.
No. 18573.
Supreme Court of Hawai'i.
Jan. 23, 1996.

Page 1143

[80 Hawai'i 328] Ricky Dale Garringer, on the briefs, Aiea, Pro Se.

Vickie L. Kapp, Deputy Prosecuting Attorney, on the briefs, Honolulu, for respondent-appellee.

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

KLEIN, Justice.

Ricky Dale Garringer appeals from the circuit court's order denying his Hawai'i Rules of Penal Procedure (HRPP) Rule 40 petition for post-conviction relief. For the following reasons, we vacate the circuit

Page 1144

[80 Hawai'i 329] court's order and remand for further proceedings.

I.

Garringer conceded at trial that he and a minor accomplice (Minor) planned to commit theft at a Jack-in-the-Box restaurant in Waipi'o Gentry. Garringer accompanied the Minor to the restaurant's drive-through window, where the Minor threatened Robert Pointer with a shotgun and demanded money. The Minor pounded the shotgun on the counter and it went off, killing Pointer. 1 Garringer then grabbed the money from the cash register and the two men fled in a car stolen by Garringer prior to the robbery.

Garringer was convicted, inter alia, of multiple counts relevant to the instant appeal: Robbery in the First Degree pursuant to Hawai'i Revised Statutes (HRS) § 708-840(1)(b)(ii) (1993) (Count I); 2 Possession of Prohibited Firearm pursuant to HRS § 134-8(a) (Count IV) (Supp.1994); 3 Possession of Firearm by a Person Convicted of Certain Crimes pursuant to HRS §§ 134-7(b) and (h) (Supp.1994) (Count V); 4 and Place to Keep Loaded Firearm pursuant to HRS §§ 134-6(a) and (d) (Supp.1994) (Count VI). 5 He was sentenced to the following terms of incarceration, "to be served concurrently with all other terms presently being served": life imprisonment with the possibility of parole and a mandatory minimum term of six years and eight months on Count I; five years in prison with a mandatory minimum term of one year and eight months on both Counts IV and VI; and ten years in prison with a mandatory minimum of three years and four

Page 1145

[80 Hawai'i 330] months on Count V. 6

In an earlier appeal, in connection with which Garringer was represented by substitute counsel, we affirmed the sentences imposed by the circuit court despite Garringer's claim that the court abused its discretion in sentencing him to an extended life term of imprisonment under HRS § 706-662(4). State v. Garringer, 73 Haw. 624, 827 P.2d 1148 (1992) (Table). Garringer subsequently filed a pro se HRPP Rule 40 petition for post-conviction relief on August 3, 1993. The circuit court denied his petition without a hearing.

II.

A.

Garringer argues that: 1) the indictment did not fairly notify him that he could face sentencing enhancement under HRS § 706-660.1 (1993) 7 based upon the aggravating circumstance of using a firearm in the commission of a felony; and 2) there was insufficient evidence that he used a firearm in the commission of a felony--i.e., enhanced sentencing under HRS § 706-660.1 may not be premised upon a finding of accomplice liability.

1.

In State v. Schroeder, 76 Hawai'i 517, 880 P.2d 192 (1994), we stated that "an indictment must be read in a common-sensical fashion in order to ascertain whether the material aggravating circumstance has been sufficiently alleged therein to support the imposition of enhanced sentencing." Id. at 530, 880 P.2d at 205. Respectively, Counts I, IV, V, and VI of the indictment in the instant case alleged that on or about December 30, 1989: "[Garringer] and [his co-defendant], while in the course of committing theft, and while armed with a dangerous instrument, did threaten the imminent use of force against [Pointer], a person who was present, with the intent to compel acquiescence to the taking of or escaping with the property" (emphasis added); "[Garringer] did possess, transfer, or acquire a shotgun with a barrel length less than eighteen inches" (emphasis added); "[Garringer] did own, possess, or control a firearm"; and, finally, "[Garringer] did carry or possess a loaded firearm and did fail to confine said firearm[.]"

Although Counts IV through VI do not allege that Garringer either used or threatened to use a firearm, mere possession thereof is sufficient for the purposes of HRS § 706-660.1. See supra note 7. To the extent that a firearm was employed in the robbery, the circuit court correctly held that Garringer "was on notice that the charges against him included the use of a firearm." (Emphasis added). In any event, the court did not impose mandatory minimum terms of imprisonment for these counts under HRS § 706-660.1. See supra note 6. Furthermore, we are convinced that a plain reading of the robbery count must result in the conclusion that the possession of a shotgun--i.e., the relevant aggravating circumstance supporting the imposition of enhanced sentencing--was being charged. See Schroeder, 76 Hawai'i at 530, 880 P.2d at 205. Thus, we hold that Garringer was on notice that the charges against him included the possession of a firearm.

2.

Garringer next argues that there was insufficient evidence in the record to support enhanced sentencing with respect to Count I because he never actually possessed the shotgun during the robbery. The prosecution

Page 1146

[80 Hawai'i 331] responds that Garringer's liability as an accomplice justified the imposition of an enhanced sentence.

The sentencing court, which also presided over the trial in the instant case, found that the evidence:

clearly show[ed] that [Garringer] did aid and abet [the Minor] on December 30, 1990, in the commission of the felony at the Jack in the box [sic]. At the time [the Minor] was in possession of a shotgun which was used to cause the death of Pointer.

And it must have been clear to [Garringer] as his course of conduct as an accomplice did result in the use of that shotgun and his accomplice liability did not terminate prior to the time of his use by [the Minor] on the record made at the time of the trial.

I have been provided and shall find that beyond a reasonable doubt as a matter of fact that [Garringer] while engaged in the commission of that Class A felony did have it in his possession and used and threatened the use of a shotgun, a firearm, within the meaning of HRS [s] 706-660.1 beyond a reasonable doubt.

(Emphasis added.)

The sentencing court appears to have held Garringer legally responsible under HRS § 706-660.1 by imputing possession of the shotgun to him based on the actual possession and "use by [the minor]" during the robbery, as opposed to any actual or constructive possession by Garringer during the crime or while fleeing from the crime scene. The following exchange took place after the court made its findings:

[Defense]: Your Honor, if I may and this is with all due respect to what the Court has just stated as its findings. The legislature did not state specifically in this statute that an accomplice liability person who is considered an accomplice should, in fact, fall under this statute.

THE COURT: That is true.

[Defense]: And this statute is designed to presume from the Court its discretion. And all of these statutes which remove from the Court's discretion are specific as to whether they should be applied.

And I would argue to the Court that when a person is considered an accomplice and really the evidence shows that Mr. Garringer only knew of the weapon at the time when [the Minor] pulled it out with his hands. So he had no ability to at that point to be an accomplice to the Robbery.

The plan as he stated on the record for them to commit a theft--a robbery accomplice after the fact when the gun was brought out. So with that I would argue to the Court I can't see where the Court can find that he had it in his possession, threatened its use.

THE COURT: I think that as I--as I had indicated and that I agree with you that the language of 706-660.1 does not possess a cover in a [sic] commission of such felony with a firearm, but I think it must, the accomplice liability in 706-660.1 that that section maybe applicable to an accomplice on the general scheme of the penal legislation as it embraces in our [Hawai'i] Penal Code [sic] it has to be so if one can be punished as an accomplice then he can be punished as an accomplice in the course of the commission of the felony which in the--while in the possession of a firearm it has to be that way because none of the other laws with respect to accomplice liability carries out a sentence in 706-660.1 to witness [sic] accomplice.

[Defense]: Your Honor, just to be clear then the Court is making its findings and basing its findings of beyond a reasonable doubt as to the elements of 706-660.1 in the fact that Mr. Garringer was convicted as an accomplice to [the Minor], but not that [he personally had] any physical control of the weapon or threatened its use.

THE COURT: No, to the extent that he is convicted as an accomplice and to the extent that he acted as an accomplice in possession of [the shotgun] as well as [the Minor, he] was in deed [sic] in possession of [the shotgun]. Garringer was be [sic, presumably 'by'] operation of law.

[Defense]: Your Honor, therefore, as to the amount of time, I believe that it is--it could be discretionary with the Court as to

Page 1147

[80 Hawai'i 332] the amount of mandatory time, I would request the Court for the maximum which is ten years. And the fact that, one, he was, as the Court has said, sentenced as an accomplice to [the Minor].

The State chose to trade away their ability to seek 15 years of mandatory time for this specific statute from [the Minor] in exchange for his testimony and his plea bargain. He was charged with Murder in this case.

....

I would ask the Court not to give him the ten years, but to make it perhaps five years.

THE COURT: Argument against?

[Prosecution]: Yes, the...

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