89 Hawai'i 492, State v. Pantoja, 21033

• Decision Date: 26 February 1999
• Docket Number: No. 21033,21033
• Citation: 974 P.2d 1082
• Parties: 89 Hawai'i 492 STATE of Hawai'i, Plaintiff-Appellee, v. Omi PANTOJA, Defendant-Appellant
• Court: Hawaii Court of Appeals

Page 1082

974 P.2d 1082

89 Hawai'i 492

STATE of Hawai'i, Plaintiff-Appellee, v. Omi PANTOJA, Defendant-Appellant

No. 21033.

Intermediate Court of Appeals of Hawai'i.

Feb. 26, 1999.

William A. Harrison (Harrison & Matsuoka, of counsel) on the brief for defendant-appellant.

Andrea Low, Deputy Prosecuting Attorney, City and County of Honolulu, on the brief for plaintiff-appellee.

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

Opinion of the Court by WATANABE, J.

In this appeal, Defendant-Appellant Omi Pantoja (Defendant) contends that the District Court of the First Circuit (the district court) erred when it (1) determined that she was a subsequent prostitution offender for mandatory enhanced sentencing purposes and (2) imposed a mandatory enhanced sentence upon her despite the lack of evidence that she was represented by counsel or knowingly waived representation at the time of her prior prostitution conviction. We disagree with Defendant's first contention but agree with her second contention. Accordingly, we vacate the sentencing portion of the district court's September 9, 1997 Judgment and remand for resentencing.

BACKGROUND

Following a bench trial on August 21, 1997, Defendant was found guilty of committing the offense of prostitution, in violation of Hawai'i Revised Statutes (HRS) § 712-1200(1) (1993). ¹ Defendant testified in her own defense at trial and stated that her full name was "Omi Pantoja." Her attorney addressed her during the course of the trial as "Miss Pantoja."

At Defendant's sentencing hearing, Plaintiff-Appellee State of Hawai'i (the State) sought to have Defendant mandatorily sentenced as a subsequent prostitution offender. ² Towards this end, the State introduced into evidence a copy of a two-page "Offender Identification Summary" (abstract) for "Omi Pantoja." The abstract, dated August 21, 1997, was certified by the Administrator of the Hawai'i Criminal Justice Data Center to be "a criminal history record check completed on the State [Offender Based Tracking System/Computerized Criminal History] (OBTS/CCH) system."

Defense counsel objected to the introduction of the abstract to establish that Defendant had a prior prostitution conviction, stating:

Your Honor, if the Court's thinking to sentence [Defendant] as a second offender, we'd object. And, basically, the objection is that the State has only introduced into evidence at this point in time what appears to be an abstract indicating an individual with the same name as [Defendant], who was previously convicted for the offense.

However, there's been no proof that this individual before the Court is the same individual that's--the abstract's applicable to.

The district court, however, ruled as follows:

THE COURT: All right. The Court is in receipt of the certified abstract of one, Omi Pantoja [Defendant], social security number 103-56-2260, setting forth the [D]efendant's conviction history for this offense in violation of [HRS] Section 712-1200. And, the Court is prepared to sentence the [D]efendant in something other than a first conviction.

The sentence is $500.00 (five hundred dollar) fine and 30 (thirty) days [sic] imprisonment. Mittimus to issue forthwith.

This appeal followed.

DISCUSSION

I. Whether There Was Sufficient Evidence to Establish that Defendant Had a Prior Prostitution Conviction.

A.

At the time that Defendant was convicted below, HRS § 712-1200(4)(b) mandated that she receive a stiffer (enhanced) sentence as long as she had previously been convicted of prostitution.

"It is axiomatic that when an enhanced punishment for a particular criminal offense is sought because of a prior conviction, the present defendant must be the same person who was previously convicted. It necessarily follows that proof of such identity is an essential part of the case for the prosecution[.]" Annotation, Evidence of Identity for Purposes of Statute as to Enhanced Punishment in Case of Prior Conviction, 11 A.L.R.2d § 2, at 872 (1950).

In cases involving the applicability of a statute authorizing enhanced punishment upon proof of the defendant's previous conviction courts in other jurisdictions have taken two distinct approaches in determining whether evidence that the defendant has the identical name as a defendant in a prior prosecution is sufficient proof of a prior conviction. Annotation, 11 A.L.R.2d § 7, at 884. "One line of authorities holds that identity of name of the defendant and the person previously convicted is prima facie evidence of identity of that person, and, in the absence of rebutting testimony, supports a finding of such identity." Id. The other line of authorities holds that "the identity of the accused and the one against whom the former judgments were entered must be established by affirmative evidence, mere proof of identity of names not being sufficient." Id. § 9, at 887.

In State v. Nishi, 9 Haw.App. 516, 528, 852 P.2d 476, 482 (1993), reconsideration granted, 9 Haw.App. 660, 853 P.2d 543 (1993), this court held that a person's certified traffic abstract issued by the traffic violations bureau, which included "not only the person's name, but also the person's driver's license number, which is identical to the person's social security number, and the person's date of birth .... is adequate to connect a defendant with a prior conviction." Id. at 527, 852 P.2d 476. However, we also concluded that the defendant had been erroneously sentenced as a second-time offender because the prosecution had failed to submit any evidence to show that the defendant was the same person who had been previously convicted, as shown on the certified copy of a traffic abstract submitted to the court. In so holding, we stated:

Unless conceded by the defendant, the State is required to show, by evidence satisfactory to the court, the fact of the defendant's prior conviction. Thus, the State must satisfactorily identify the defendant being sentenced to be the same person who was previously convicted.

Although we have stated above that a certified copy of a traffic abstract is satisfactory evidence to establish a prior No No-Fault Insurance conviction, the record discloses no evidence to tie Defendant with the Michael Nishi of the traffic abstract. The State presented no evidence of Defendant's driver's license number or social security number or birth date that could be compared with information appearing on the traffic abstract.

Id. at 528, 852 P.2d at 482 (internal quotation marks, brackets, ellipsis, and citation omitted). In other words, we joined the second line of authorities in holding that the fact that the defendant had the identical name with an individual who had been previously convicted was insufficient, in and of itself, to authorize application of the enhanced punishment statute. Other evidence tying the defendant to the previously convicted individual is required.

B.

In this case, we conclude that the evidence in the record was sufficient to establish, beyond a reasonable doubt, that Defendant had a prior prostitution conviction.

At trial, Honolulu Police Officer Daniel Bean (Officer Bean) testified on direct examination that he was assigned to special undercover duty on June 16, 1997 and arrested an "Omi Pantoja" on that date. He identified Defendant in court as the "Omi Pantoja" he had arrested. On cross-examination, Officer Bean confirmed that "Miss Pantoja" was the individual he arrested on June 16, 1997:

[DEFENSE COUNSEL] That night when you arrested Miss Pantoja, didn't you ask her about an individual named Martin?

[OFFICER BEAN] First of all, I think it's an afternoon case, if I'm not mistaken, around one o'clock.

[DEFENSE COUNSEL] Afternoon. I stand corrected, an afternoon case.

* * * * * *

[DEFENSE COUNSEL] Now, when you arrested her, did Officer Lau--Acting Sgt. Lau appear during the course of the arrest?

[OFFICER BEAN] Yes, sir.

Defendant testified that her name was Omi Pantoja, the same name as the person identified on the abstract introduced into evidence. Defense counsel addressed Defendant as "Miss Pantoja" throughout his questioning of her. Furthermore, Defendant admitted that she was arrested by Officer Bean on June 16, 1997.

According to the abstract, the Omi Pantoja who had a prior conviction for the same offense of prostitution was female, her date of birth was "8/31/75," she was born in New York, and her race was "O" (presumably, "other"). Additionally, she weighed 135 pounds, her height was "506" (presumably, 5'6"), and her social security number was 103-56-2260. In other words, the abstract, unlike the traffic abstract in Nishi, contained physical identifying information about the individual referred to in the abstract. Because Defendant was in the courtroom, the district court had the opportunity to evaluate whether Defendant met the physical description of the Omi Pantoja referred to in the abstract. ³

In addition, the abstract set forth the details of four offenses for which "Omi Pantoja" had been arrested, ⁴ as well as the disposition or current status of those offenses. Included among the four offenses was the June 16, 1997 prostitution offense which Defendant had just been convicted of violating. According to the official OBTS/CCH system records, ⁵ therefore, Defendant was the same "Omi Pantoja" who had committed the prior offenses.

Finally, we observe that the name "Omi Pantoja" is rather unusual, at least in Hawai'i. Courts in other jurisdictions have recognized that the fact that a defendant has a name that is uncommon or unusual for a particular locality can be cogent evidence that the defendant is the same individual as one with the same name who has a prior conviction. See, e.g., Hefferman v. United States, 50 F.2d 554 (3d Cir.1931); State v. Bizer, 113 Kan. 731, 216 P. 303 (1923); Hollander v. State, 82 Nev. 345, 418 P.2d 802 (1966); State v. Aime, 62 Utah 476, 220 P. 704 (Utah 1923).

II. Whether the Absence of Evidence that Defendant Was Represented by Coun...