Lewi v. State

• Decision Date: 07 November 2019
• Docket Number: SCWC-16-0000090
• Citation: 452 P.3d 330
• Parties: Desmond J. LEWI, Petitioner/Petitioner-Appellant, v. STATE of Hawai‘i, Respondent/Respondent-Appellee.
• Court: Hawaii Supreme Court

452 P.3d 330

Desmond J. LEWI, Petitioner/Petitioner-Appellant,

v.STATE of Hawai‘i, Respondent/Respondent-Appellee.

SCWC-16-0000090

Supreme Court of Hawai‘i.

NOVEMBER 7, 2019

Keith S. Shigetomi, Honolulu, for petitioner.

Ricky R. Damerville, Hilo, and Suzanna L. Tiapula (with him on the briefs) for respondent State of Hawai‘i.

Richard Stacey, Honolulu, for respondent Hawai‘i Paroling Authority.

RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.

OPINION OF THE COURT BY McKENNA, J.

I. Introduction

We hold that Desmond J. Lewi's ("Lewi") Hawai‘i Rules of Penal Procedure ("HRPP") Rule 40 petition stated a colorable claim that the Hawai‘i Paroling Authority ("HPA") violated his due process rights by arbitrarily and capriciously determining that he was a "Level III" offender for purposes of calculating his minimum term of imprisonment on a manslaughter conviction. As we therefore remand this case to the circuit court for a hearing as to whether the HPA arbitrarily and capriciously maintained Lewi's Level of Punishment at Level III, Lewi may also amend his Rule 40 petition to include his claim on appeal that the circuit court did not adequately explain its decision to impose a consecutive sentence.

We therefore affirm in part, and vacate in part, the ICA's July 13, 2017 judgment on appeal, which affirmed the Circuit Court of the Third Circuit's¹ ("circuit court") January 27, 2016 "Findings of Fact, Conclusions of Law and Order Denying Petition to Vacate, Set Aside, or Correct Judgment or to Release Petitioner from Custody Filed August 14, 2015, Without a Hearing." This case is remanded to the circuit court for further proceedings consistent with this opinion.

II. Background

A. Underlying Criminal Proceedings

On October 7, 2008, the State charged Lewi via Complaint with five offenses: Count 1, Murder in the Second Degree, in violation of Hawai‘i Revised Statutes ("HRS") § 707-701.5(1) ; Count 2, Carrying or Use of a Firearm in the Commission of a Separate Felony, in violation of HRS § 134-21(a) ; Count 3, Carrying or Possessing a Loaded Firearm on a Public Highway, in violation of HRS § 134-26(a) ; Count 4, Place to Keep Ammunition, in violation of HRS § 134-27(a) ; and Count 5, Ownership or Possession Prohibited, in violation of HRS § 134-7(b) and (h).²

The charges stemmed from an incident in which Lewi shot and killed his sister's boyfriend, Cameron Mauga, after a long history of conflict. On the morning of October 5, 2008, the extended Lewi family was gathered at Puhi Beach Park for a child's birthday party. Mauga confronted Lewi, who was seated in the driver's seat of his (Lewi's) truck. Lewi's 6-year-old son was seated in the front passenger seat. Mauga punched Lewi in the head. Lewi kept a loaded shotgun in his truck, so he brandished it, hoping to scare Mauga off. Instead, Mauga grabbed for the gun. As the two struggled, the gun discharged, killing Mauga.

Lewi was incarcerated at the Hawai‘i Community Correctional Center pending trial, as he was unable to post his $1,000,000.00 aggregate bail. After a month of incarceration, Lewi's bail was reduced, and Lewi posted bail. While released on bail, he was placed on electronic monitoring, and he reported to work (as a skilled construction worker) and returned home before his curfew with no problems.

On March 23, 2010, Lewi pleaded guilty to the lesser offense of manslaughter on Count 1.³ He also pleaded guilty to the firearms offenses in Counts 3 and 5. Lewi signed his change of plea form, which stated: "I understand that the Court may impose any of the following penalties for the offense(s) to which I now plead: the maximum term of imprisonment ..., consecutive terms of imprisonment (if more than one charge), ... probation with up to two year[s] of imprisonment and other terms and conditions." He also acknowledged the following: "I have not been promised any kind of deal or favor or leniency by anyone for my plea, except that I have been told that the government has agreed as follows ...: The State will reduce Count 1 to manslaughter and dismiss the counts not plead [sic] to.^{[4 ]} The State may seek a prison term of 30 years. I will seek probation and any legal sentence ...."

The minutes of the change of plea hearing note that the circuit court questioned Lewi and "found he understood the consequences of his plea & had made a knowing voluntary & intelligent entry of plea & waiver of trial."⁵ As part of the plea agreement, the State moved to nolle prosequi, with prejudice, Counts 2 and 4 (other weapons offenses), and the circuit court granted the motion.

Lewi's presentence investigation and report ("PSI") included a letter from his deputy public defender to the court requesting a sentence of two years' imprisonment plus probation. At the May 24, 2010 sentencing hearing, Lewi's counsel objected to the PSI's inclusion of victim impact letters from individuals who were not relatives of the victim. Those letters were removed from the PSI. The minutes of the sentencing hearing also state that Lewi's counsel "noted various corrections to the presentencing report."

At the sentencing hearing, the circuit court sentenced Lewi to 20 years' imprisonment on Count 1 (Manslaughter), 10 years imprisonment on Count 3 (Carrying or Possessing a Loaded Firearm on a Public Highway), with the sentences in Counts 1 and 3 to run concurrently, and 5 years imprisonment on Count 5 (Ownership or Possession Prohibited), with the sentence in Count 5 to run consecutively to the sentences in Counts 1 and 3. [13:220]

The circuit court stated the following regarding its imposition of consecutive sentences:

The question is whether the sentence—or the sentences are to run concurrently or consecutively. It's true there's a presumption in favor of concurrent sentencing. But what is of concern to the Court is that you're not supposed to have had the firearm in your truck to begin with. Not supposed to have had a firearm in your possession, period. Let alone a loaded shotgun on a public highway. That possession in and of itself was an illegal act. And after that you acted recklessly in allowing that firearm to go off and shoot Mr. Mauga.

So based upon the seriousness of the offenses and the need for punishment and deterrence, consecutive sentence would be warranted.

On the other hand, to your credit you have a limited criminal history. I have read the letters and seems that you have a strong prosocial character, yeah. And you apparently are not—although there's some arguments on the other side, didn't seem as if you were a problem while out on bail. And these factors favor concurrent sentencing.

And regarding community protection, not sure how that cuts. But balancing these considerations the Court believes that it's appropriate to sentence you to a 25-year indeterminate term, okay.

At the end of the sentencing hearing, the circuit court also stated that "if the Paroling Authority maxes the amount on both [consecutive sentences], [the circuit court would] be willing to look at concurrent [sentencing]." Defense counsel responded that she "would place a Rule 35 on the record at this time,"⁶ which the circuit court "[s]o noted."

On June 9, 2010, Lewi moved to reduce his sentence from consecutive terms totaling 25 years to concurrent terms totaling 20 years. Lewi pointed out that this court had issued State v. Hussein, 122 Hawai‘i 495, 229 P.3d 313 (2010), weeks before he was sentenced. In Hussein, we held that a sentencing court must state on the record at the time of sentencing "its reasons as to why a consecutive sentence rather than a concurrent one was required." 122 Hawai‘i at 509, 229 P.3d at 328. Lewi argued that the circuit court's reasons for imposing a consecutive sentence were insufficient, appending a portion of the transcript of the sentencing hearing to his motion.

The circuit court denied Lewi's motion to reduce sentence, referring back to its statements at the previous sentencing hearing, and reasoning as follows:

The Hussein case does not require the court to make, uh, specific findings, but state reasons for imposing consecutive, um, sentences; and the court believes that it did this. It did recognize the presumption under H.R.S. Section 706-668.5 in favor of concurrent sentencing and addressed the factors under H.R.S. Section 706-606, and came to the conclusion that consecutive terms totaling 25 years, um, is an appropriate sentence.

In deciding upon the consecutive terms, um, the court did take into consideration the multiplicity of the offenses and the impact upon the victim. And the Hussein case expressly recognizes these criteria as bases for imposing consecutive sentences. Regarding the impact upon the victim, death is the ultimate impact; and of course Mr. Mauga died in regard—in this case.

And what I'll—what was of great concern is that immediately prior to Mr. Mauga's death, as stated during sentencing, it was illegal for Mr. Lewi to have possession of a firearm and it was illegal for him to have a loaded firearm on the public highway. It was Mr. Lewi's illegal acts immediately prior to his contact with Mr. Mauga which ultimately resulted in Mr. Mauga's death.

The court's choice of the 25-year term as compared to the 30-year term [requested by the State] was based upon a recognition of the mitigating factors previously mentioned, a minimal prior criminal history, apparent pro social behavior, et cetera. If the sentence imposed by the court was purely based upon considerations of multiplicity of offenses and the impact upon the victim, the 30-year term would have been imposed; instead, the 25 year term was imposed because of the mitigating factors.

On September 10, 2010, the HPA set all of Lewi's minimum terms at the maximum duration: 20 years on Count 1, 10 years on Count 3, and 5 years on Count 5. The HPA also set Lewi's level of punishment at Level III, the highest level, for all three counts, stating "Significant factors identified in determining the level of punishment: (1) Nature of...