81 Hawai'i 421, State v. Sinagoga, 17540

CourtCourt of Appeals of Hawai'i
Citation918 P.2d 228
Docket NumberNo. 17540,17540
Parties81 Hawai'i 421 STATE of Hawai'i, Plaintiff-Appellee, v. John E. SINAGOGA, Defendant-Appellant.
Decision Date30 April 1996

Page 228

918 P.2d 228
81 Hawai'i 421
STATE of Hawai'i, Plaintiff-Appellee,
v.
John E. SINAGOGA, Defendant-Appellant.
No. 17540.
Intermediate Court of Appeals of Hawai'i.
April 30, 1996.

Page 230

[81 Hawai'i 423] Syllabus by the Court

1. A judge agreeing to be bound by a plea agreement under Hawai'i Rules of Penal Procedure Rule 11(e)(1) should serve as the sentencing judge. However, in the absence of a statute, governing procedural rule, or the tripartite concurrence of the prosecution, defense, and court, a judge who merely accepts a defendant's plea is not bound to preside over the sentencing of that defendant.

2. Under Hawai'i Revised Statutes (HRS) § 706-668.5 (1993), the court was well within its statutory authority to impose consecutive sentences where, as here, the defendant committed multiple offenses. This comports with indeterminate sentencing systems where the choice of imposing either consecutive or concurrent sentences is usually left to the discretion of sentencing judges.

3. The fact that a court does not orally address every factor stated in HRS § 706-606 (1993) at the time of sentencing does not mean the court failed to consider those factors. The statute does not require the court to expressly recite its findings on the record for each of the factors set forth in HRS § 706-606. Nevertheless, under HRS § 706-668.5, judges are duty-bound to consider HRS § 706-606 factors before imposing a sentence.

4. Absent clear evidence to the contrary, it is presumed that a sentencing court, following the receipt of a pre-sentence report under HRS § 706-601 (1993) and a mandated sentencing hearing under HRS § 706-604 (Supp.1992), will have considered all the factors in HRS § 706-606 before imposing concurrent or consecutive terms of imprisonment under HRS § 706-668.5.

5. While there is no requirement that the court recite its findings on the record for each of the factors set forth in HRS § 706-606, the Hawai'i Supreme Court has recommended that the sentencing court state the reasons for its sentence.

6. The preferable practice would be for the sentencing court to acknowledge on the record that it has considered the factors enumerated in HRS § 706-606, when imposing a concurrent or consecutive sentence under HRS § 706-668.5.

7. Consecutive sentences are not extended sentences. Consecutive sentences follow one another seriatim--one is completely served before the next is begun. On the other hand, an extended term authorized under the penal code is a sentence that enlarges the ordinary sentence for any given offense. A consecutive sentence does not enlarge the ordinary sentence for any given offense; a consecutive sentence only specifies how multiple sentences will be served.

8. If a sentencing court gives consideration to the defendant's previous convictions in choosing to impose consecutive, rather than concurrent, terms of imprisonment, then the court must ensure that any prior felony, misdemeanor, or petty misdemeanor conviction relied on was a counseled one.

9. The majority spells out the procedure to be followed by sentencing judges and parties in cases where ordinary sentencing procedures are applicable and there is a possibility that the court may use the defendant's prior criminal conviction(s) as a basis for the imposition or enhancement of a prison sentence.

Page 231

[81 Hawai'i 424] 10. The majority concludes that, after the court has furnished to the defendant or defendant's counsel a copy of the presentence report and any other report of defendant's prior criminal conviction(s), all prior criminal convictions reported may be considered by the court as a basis for the imposition or enhancement of a prison sentence except those which the defendant in good faith on the record challenges on the ground(s) that they were (1) uncounseled, (2) otherwise invalidly entered, and/or (3) not against the defendant. All challenged prior criminal convictions may not be considered by the court as a basis for the imposition or enhancement of a prison sentence unless and until the State satisfies its burden of proving to the reasonable satisfaction of the court that the opposite of the challenge is true.

11. Acoba, J., dissenting to the majority's sentencing procedure proposal, states that the majority's procedure: (1) in its presumptive aspect, raises a serious question about a valid waiver of defendant's right to counsel, (2) is contrary to the design of the Hawai'i Penal Code's sentencing provisions, (3) would engender unnecessary expense and inefficiencies and unfairly place the burden of going forward on a defendant, and (4) is an attempt to legislate a sentencing procedure or to adopt rules in excess of the court's power.

Joyce K. Matsumori-Hoshijo, Deputy Public Defender, for defendant-appellant.

Loren J. Thomas, Deputy Prosecuting Attorney, City & County of Honolulu, for plaintiff-appellee.

Before BURNS, C.J., and WATANABE and ACOBA, JJ.

Opinion of the court by ACOBA, Judge, except for Part IV.B.4, which is a dissenting opinion.

In a complaint filed on February 24, 1993, Defendant-Appellant John E. Sinagoga (Defendant) was charged with three counts of Terroristic Threatening in the First Degree. On August 9, 1993, he pleaded no contest to Count I and guilty to Counts II and III. Under the Judgment filed on September 29, 1993, Defendant was sentenced to consecutive indeterminate prison terms of five years each on Counts I, II and III. He appeals only the sentences imposed by the Judgment.

I.

On August 9, 1993, Defendant appeared with his counsel at a change of plea hearing. In preparation for the hearing, Defendant had entered into a plea agreement with the State. Under the agreement's terms, Defendant would plead no contest to Count I, Terroristic Threatening in the First Degree as defined in Hawai'i Revised Statutes (HRS) § 707-716(1)(d) (1993) 1 and guilty to Counts II and III, Terroristic Threatening in the First Degree as defined in HRS § 707-716(1)(a) (1993). 2 In exchange, the State of Hawai'i (the State) would agree to Defendant's request for probation with one year of incarceration and credit for time served. The State also agreed not to seek "enhanced" sentencing.

At the beginning of the hearing, Judge Marcia Waldorf explained to Defendant that according to the change of plea document, Defendant had agreed to plead in accordance with the agreement. Defendant expressed reservations about signing the document, responding, "I do't [sic] know, it just doesn't seem right." The judge recessed the court to allow Defendant time to consult with his counsel.

Reconvening several minutes later, Judge Waldorf reiterated that by signing the change of plea document, Defendant was agreeing to plead as provided in the agreement. Defendant answered that he understood

Page 232

[81 Hawai'i 425] the document and confirmed, in responses to further questions, that he had the requisite capacity to enter the plea. In the course of accepting the plea, Judge Waldorf informed Defendant that the court could order an "extended term[,]" that is a "doubling" of the five-year ordinary sentence on each count to ten years on each count, which, if imposed consecutively, would total thirty years. 3 The court also explained that neither she nor any other judge was bound by the plea agreement reached between Defendant's attorney and the prosecutor. Defendant indicated that he understood this.

[Judge Waldorf:] All right. Do you further understand, though, [Defendant], that as a matter of fact, the court, whether it be me or any other judge, is not compelled to follow agreements that are reached by attorneys. You understand that?

[Defendant:] Yes, I do.

(Emphasis added.) Defendant then entered a plea of no contest to Count I and pleas of guilty to Counts II and III. After it accepted Defendant's pleas, the court, through its clerk, informed the parties that sentencing would take place before "Judge Spencer" on September 29, 1993.

At the sentencing hearing before Judge Leland H. Spencer, both the prosecutor and the public defender requested that the court follow the plea agreement. Instead, Judge Spencer orally reviewed Defendant's prior criminal record, which included convictions in various jurisdictions for burglary, assault, driving under the influence, and drug and concealed weapon possession. Judge Spencer noted that the offenses Defendant was charged with in the present case were felonies involving violence, and that Defendant was not a young man. Judge Spencer then declared that Defendant would be "a danger to people, whether in Hawaii [Hawai'i] or any other state where he happens to be; and that as long as he's free to do so, he's going to continue to be a danger to both people and to property." Judge Spencer, thereafter, sentenced Defendant to an indeterminate term of imprisonment of five years on each count, with the terms to run consecutively.

Defendant's October 26, 1993 motion for reconsideration and modification was denied on January 13, 1994.

Defendant raises four points on appeal. We consider them seriatim.

II.

Defendant argues that, in accepting Defendant's plea, Judge Waldorf employed language indicating she would retain sentencing authority under the agreement. Thus, he maintains, an implied term of the plea agreement was that Judge Waldorf, not Judge Spencer, would impose the sentence. Defendant relies on People v. Arbuckle, 22 Cal.3d 749, 150 Cal.Rptr. 778, 587 P.2d 220 (Cal.1978).

In Arbuckle, the defendant entered into a plea agreement with the State of California. The first judge, who accepted the plea bargain, was transferred to another department of the Superior Court. The case was brought before a second judge for sentencing. The defendant's request for sentencing before the first judge was denied. Id.

On appeal of the sentence, the California Supreme Court concluded that the defendant entered into the plea agreement "in expectation of and in reliance upon sentence...

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