84 Hawai'i 476, State v. Cornelio, 19479

• Decision Date: 07 April 1997
• Docket Number: No. 19479,19479
• Citation: 935 P.2d 1021
• Parties: 84 Hawai'i 476 STATE of Hawai'i, Plaintiff-Appellee, v. William A. CORNELIO, III, Defendant-Appellant.
• Court: Hawaii Supreme Court

Page 1021

935 P.2d 1021

84 Hawai'i 476

STATE of Hawai'i, Plaintiff-Appellee, v. William A. CORNELIO, III, Defendant-Appellant.

No. 19479.

Supreme Court of Hawai'i.

April 7, 1997.

Vickie Russell, Wailuku, Maui, for defendant-appellant William A. Cornelio, III.

Artemio C. Baxa and Randall T. Page, Deputy Prosecuting Attorneys, Wailuku, Maui, for plaintiff-appellee State of Hawai'i.

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

LEVINSON, Justice.

The defendant-appellee William A. Cornelio, III, appeals from the judgment, guilty conviction, and sentence, entered by the circuit court on October 13, 1995, convicting him, as charged, of terroristic threatening in the first degree in violation of Hawai'i Revised Statutes (HRS) § 707-716(1)(d) (1993) (Count One), ¹ place to keep firearm in violation of HRS § 134-6(c) (1993) (Count Two), ² prohibited possession of a firearm in violation of HRS § 134-7(b) (1993) (Count Three), ³ prohibited possession of firearm ammunition in violation of HRS § 134-7(b) (Count Four), ⁴ and possession of a prohibited firearm or device in violation of HRS § 134-8 (1993). ⁵ Cornelio was sentenced to indeterminate ten-year prison terms as to Counts Two, Three, and Four and indeterminate five-year prison terms as to Counts One and Five. Relying on HRS §§ 706-660.1 (1993) ⁶ [84 Hawai'i 479] and 706-606.5 (1993), ⁷ the circuit court further imposed mandatory minimum periods of imprisonment, without the possibility of parole, of three years and four months as to Counts One through Four and one year and eight months as to Count Five.

Having determined that Cornelio's inability to control his behavior posed a danger to the community and acting pursuant to HRS § 706-668.5 (1993), ⁸ the court ordered that all of Cornelio's terms of imprisonment, both with respect to their indeterminate maximums and their mandatory minimums, would run consecutively. Accordingly, Cornelio was sentenced, cumulatively, to a indeterminate maximum prison term of forty years and--as a precondition of eligibility for parole--a mandatory minimum term of fifteen years.

On appeal, Cornelio argues that the circuit court committed an abuse of discretion or otherwise reversibly erred in sentencing him to consecutive mandatory minimum terms of imprisonment pursuant to HRS §§ 706-606.5 and 706-660.1. (Cornelio does not challenge the consecutive character of the indeterminate maximum terms of his sentence.) For the reasons set forth below, we hold: (1) that HRS § 706-606.5 mandates that adjudications of guilt with respect to multiple counts charged in the same indictment must be treated as a single "conviction" for purposes of sentencing thereunder; (2) that any mandatory minimum terms of imprisonment imposed pursuant to HRS § 706-606.5 in connection with a multicount indictment must be served concurrently with one another; but (3) that a defendant subjected to mandatory minimum terms of imprisonment pursuant to HRS § 706-660.1 may, subject to appellate review for abuse of discretion, be sentenced to serve them consecutively to any mandatory minimum terms imposed pursuant to HRS § 706-606.5. Accordingly, except as to Count One, we vacate Cornelio's October 13, 1995 sentence and remand to the circuit court for resentencing consistent with this opinion.

I. BACKGROUND

During the afternoon of November 19, 1994, Cornelio participated in a brawl near the entrance of Kahekili Beach Park on the island of Maui. At some point during the disturbance, Cornelio removed a sawed-off shotgun from the trunk of his car, loaded the weapon, and pointed it at the head of Vahafolau Faleta, another participant in the altercation. In response, and with the assistance of his brother, Faleta (who was evidently a much larger man) disarmed, beat, and pursued Cornelio down the beach to the Royal Lahaina luau grounds. Having successfully nabbed Cornelio there, Faleta pummeled him with his fists and Cornelio's shotgun until a bystander intervened and broke up the fight. A Royal Lahaina security guard then obtained the shotgun from Faleta. After arriving at the scene, the police confiscated the shotgun and determined that its barrel was seventeen and three-quarters inches in length.

At trial, the parties stipulated that Cornelio had previously been convicted of a felony, was aware of his status as a convicted felon, and was further aware, because of that status, that it was unlawful for him to own, possess, or control a firearm or ammunition. The jury ultimately returned guilty verdicts against Cornelio as to all of the offenses charged in the indictment.

Prior to sentencing, the prosecution filed: (1) a motion for the imposition of extended and/or consecutive terms of imprisonment, pursuant to HRS §§ 706-606 (1993), ⁹ 706-661 (1993), ¹⁰ 706-662 (1993), ¹¹ and 706- 668.5; ¹² (2) a motion for the imposition of a mandatory minimum period of imprisonment, pursuant to HRS § 706-606.5, see supra note 7, of (a) three years and four months in connection with Counts Two, Three, and Four and (b) one year and eight months in connection with Counts One and Five; and (3) an "additional" motion for the imposition of a mandatory period of imprisonment, pursuant to HRS § 706-660.1(2)(d), see supra note 6, in connection with Count One. At the hearing on the motions, the prosecution adduced evidence that: (1) Cornelio had been paroled from prison on October 12, 1994, following (a) a conviction, in Cr. No. 87-1557, of rape in the second degree ¹³ and (b) additional convictions, in Cr. No. 89-0063, of place to keep firearm, prohibited possession of firearm, and criminal property damage in the second degree; and (2) Cornelio's date of conviction in Cr. No. 87-1557 was July 26, 1990; and (3) the conviction of criminal property damage in Cr. No. 89-0063 involved the use of a firearm in the commission of a felony. ¹⁴

At the conclusion of the hearing, the circuit court addressed the following oral remarks to Cornelio in imposing sentence:

... I have to look at what you've done in the past in order to determine what's appropriate at the present time as well as what's appropriate punishment for the conduct you engaged in.

And when the court looks at your record, it's apparent you're not able to control your behavior. And you knew you shouldn't have had a gun, and ... somehow you got a sawed-off shotgun driving around ... in your car.

And I know nobody got killed, but I'm amazed that somebody didn't get killed. What I have to conclude from your behavior is that you are a danger to the community. You go around shooting other people's cows. You've got a sawed-off shotgun as soon as you get out of prison.

I'm s[u]re you knew what you were doing was wrong, but you still weren't able to control your behavior, that's the point, and when you can't, you're a danger to the community.

So I have to take you off the streets. Because other people have a right to be safe from that sort of conduct. You know people who send their children to school every day and other people who drive along the highway out in Kaupak[u]lua where you were shooting the animals. They have a right to be away from all that.

You have no right to conduct yourself in that manner, but I want you to understand where we're coming from here--

....

... I hope some day you may be able to reflect upon why things are happening to you and reflect that it's your behavior that caused you to be here today. It's not somebody's else [sic].

You're here because you failed to be able to control yourself, and now the court's forced to take you out of circulation so you can't be out there creating dangerous circumstances for other citizens.

So the court is going to impose the following sentence: With regard to count one, the court will impose five years imprisonment. With regard to count two, ten years imprisonment. With regard to count three, ten years imprisonment. Count four, ten years imprisonment. Count five, five years imprisonment. [ ¹⁵]

With respect to count one, the court will find that this is a second firearm offense felony and will impose the three year four months mandatory minimum sentence. [ ¹⁶]

With regard to count two, a mandatory minimum sentence of three years and four months imprisonment will be imposed. With regard to count three, a three years and four months mandatory imprisonment will be imposed. With regard to count four, mandatory imprisonment of three years and four months will be imposed. And with regard to count five[,] mandatory minimum imprisonment of one year and eight months will be imposed. [ ¹⁷]

In addition to this[,] for the reasons that I have stated, I'm going to run all of those ... mandatories as well as the regular [i.e., indeterminate maximum] term[s] of imprisonment[ ] ... consecutively. And they will also run consecutively with your imprisonment in [Cr. No. 87-1557].[ ¹⁸]

Maybe when you get out, you'll be able to control your behavior. I hope so.

The net effect of the circuit court's sentence was (1) that Cornelio was ordered to serve indeterminate maximum prison terms totaling forty years and mandatory minimum periods of imprisonment totaling fifteen years and (2) that the sentence would be served consecutively to the terms imposed in connection with Cornelio's prior conviction in Cr. No. 87-1557.

On February 9, 1996, Cornelio filed a motion to reduce sentence, asking that the circuit court reconsider allowing all or some of the foregoing mandatory minimum periods of imprisonment to run concurrently. In support of his motion, Cornelio argued that he had voluntarily, and at some risk to himself, provided assistance to the prosecutor's office in another criminal case. ¹⁹ The prosecution opposed the motion, claiming that Cornelio posed a danger to the community and citing as evidence the affidavit of Cornelio's trial attorney, who had successfully petitioned the court to withdraw as counsel because Cornelio, angered at his conviction, had threatened...