State v. Hussein, 28617.

• Citation: 229 P.3d 313
• Decision Date: 28 April 2010
• Docket Number: No. 28617.,28617.
• Parties: STATE of Hawai`i, Respondent/Plaintiff-Appellee v. Lillian M. HUSSEIN, Petitioner/Defendant-Appellant.
• Court: Supreme Court of Hawai'i

229 P.3d 313

STATE of Hawai`i, Respondent/Plaintiff-Appellee
v.
Lillian M. HUSSEIN, Petitioner/Defendant-Appellant.

No. 28617.

Supreme Court of Hawai`i.

April 21, 2010.

As Corrected April 28, 2010.

229 P.3d 314

COPYRIGHT MATERIAL OMITTED

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Mary Ann Barnard, Honolulu, on the application and briefs for petitioner/defendant-appellant.

Stephen K. Tsushima, Deputy Prosecuting Attorney, City and County of Honolulu, on the brief for respondent/plaintiff-appellee.

ACOBA and DUFFY, JJ., and Circuit Judge POLLACK, Assigned by Reason of VACANCY; and MOON, C.J., Concurring Separately and Dissenting, With Whom NAKAYAMA, J., Joins.

Opinion of the Court by ACOBA, J.

We hold that (1) imposing a prison sentence consecutively to "any sentence" of a prior conviction pursuant to Hawai`i Revised Statutes (HRS) § 706-606.5(5) (Supp.2006),¹

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including the lesser of such sentences, is a novel, but accurate, view of the statute; (2) henceforth, the circuit court must state its reasons for imposing a consecutive as opposed to a concurrent sentence under HRS § 706-668.5 (Supp.2008)² or HRS § 706-606.5; (3) the requirement that reasons be given in imposing consecutive sentences is closely connected to a probable Hawai`i Rules of Penal Procedure (HRPP) Rule 35 motion filed by Petitioner/Defendant-Appellant Lillian M. Hussein (Petitioner) and, therefore, is not dicta; (4) the Intermediate Court of Appeals (ICA) did not gravely err in rejecting Petitioner's ineffective assistance of counsel claim; and (5) upon entry of judgment on this certiorari application, Petitioner may still seek reduction of her sentence pursuant to HRPP Rule 35 (2008),<sup>3</sup> including, inter alia, on the ground set forth in item (1). In doing so, we affirm the ICA's judgment in State v. Hussein, No. 28617, 119 Hawai`i 335, 197 P.3d 787, 2008 WL 5307813 (Haw.App. Dec. 22, 2008) (SDO), but, as noted supra, mandate that henceforth, the sentencing court must state its reasons for imposing a consecutive sentence on the record, and additionally clarify that a HRPP Rule 35 motion may be filed subsequent to appellate proceedings, the ICA indicating to the contrary

I.

A.

Petitioner pleaded guilty to thirty-nine counts, including eight counts of identity theft in the second degree (class B felonies), four counts of identity theft in the third degree (class C felonies), fifteen counts of forgery in the second degree (class C felonies),

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one count of fraudulent use of a credit card (class C felony), and seven counts of theft in the second degree (class C felonies).⁴ On January 31, 2007, Respondent/Plaintiff-Appellee State of Hawai`i (Respondent) filed motions for (1) sentencing of repeat offender, pursuant to HRS § 706-606.5, (2) consecutive term sentencing, pursuant to HRS § 706-668.5 (1993) and HRS § 706-606, and (3) extended term sentencing, pursuant to HRS § 706-661 (Supp.2006) and HRS § 706-662(1) and (4)(a) (Supp.2006).⁵ At Petitioner's sentencing hearing, the first circuit court (the court)⁶ granted Respondent's motions "for a consecutive term and for sentencing of Petitioner as a repeat offender" under HRS § 706-606.5(1). Hussein, 2008 WL 5307813, at *1. The court denied Respondent's motion for extended terms. Id. Petitioner was sentenced to ten years for each of the eight counts of identity theft in the second degree, with a repeat-offender-mandatory-minimum of ten years. Id. Petitioner also received five years for each of the twenty-seven class C felony counts. Id.

The court ordered the sentences in the instant matter to run concurrently with each other, and to run consecutively to the time that Petitioner was already serving for other matters, as permitted by HRS § 706-606.5(5). Id. At the time, Petitioner was concurrently serving a ten-year term and two five-year terms of imprisonment. The sentencing judge ordered the ten-year mandatory minimum for the instant matter to run consecutively to the prior ten-year term, as opposed to the prior five-year term. Thus, by virtue of adding the mandatory minimum repeat offender ten-year term for the instant matter to the previous ten-year term already being served, as recognized by the court, "in all of her cases, Petitioner will be serving a twenty-year term of incarceration."

B.

Petitioner appealed her sentence to the ICA. Petitioner raised three points of error on appeal:

(1) the court erred in omitting to consider less than fully consecutive mandatory minimum terms, resulting in an excessive overall sentence; and

(2) Petitioner was denied effective assistance of sentencing counsel because counsel failed to adequately argue for a strong mitigating circumstances reduction in Petitioner's mandatory minimum term and failed to file a motion under HRPP Rule 35 to add mitigating factors from prison

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rehabilitation programming.⁷

Hussein, 2008 WL 5307813, at *1.

The ICA affirmed Petitioner's sentence. Id. at *4. With respect to the first point of error, the ICA held that even though the sentencing court did not explicitly state its awareness of a less severe sentencing option, id. at *2-3, in regard to running the instant ten year term consecutive to the prior five year term, it "clearly indicated its awareness that the impact of the consecutive sentencing would be for Petitioner to serve a twenty-year term of imprisonment," id. at *3, and did not abuse its discretion in sentencing Petitioner, id. With respect to the second point of error, the ICA determined that Petitioner's counsel "was within the range of competence demanded of attorneys in criminal cases." Id. at *4.

C.

In her application to this court, Petitioner presents two arguments. First, Petitioner claims that the ICA adopted a "new" interpretation of HRS § 706-606.5(5) on appeal, and gravely erred in presuming that the sentencing court considered it as a sentencing option. Second, Petitioner claims that the ICA's failure to recognize the ineffective assistance of counsel claim constitutes grave error.

II.

As to Petitioner's first argument, HRS § 706-606.5(1) requires a sentencing court to impose a mandatory minimum term of imprisonment of ten years for a class B felony and five years for an enumerated class C felony, when a defendant has been convicted of three or more prior felonies within a specified time period.⁸ HRS § 706-606.5(5) also provides that "the sentencing court may impose the mandatory minimum sentences consecutive to any sentence imposed on the defendant for a prior conviction, but such sentence shall be imposed concurrent to the sentence imposed for the instant conviction." (Emphases added.)

In the ICA, Petitioner asserted that "the plain meaning of `any sentence' includes all prison terms for all counts, authorizing the court to begin the ten-year mandatory minimum term consecutive to the Class C felony five-year terms or misdemeanor terms that were imposed as part of the prior conviction. . . ." The ICA agreed with Petitioner that HRS § 706-606.5(5) gives a sentencing court "discretion to run a repeat offender mandatory minimum sentence consecutive to any sentence imposed on a defendant for a prior conviction, not necessarily the longest sentence being served for prior convictions." Hussein, 2008 WL 5307813, at *2 (emphasis in original).

The plain language of HRS § 706-606.5(5) indicates that a sentencing court may order a repeat offender mandatory minimum term to run consecutively to "any" prior sentence.⁹ Petitioner's approach to interpreting the term "any sentence" in HRS § 706-606.5(5) was correct, albeit novel, in the sense that it has not been raised or recognized in any of our prior decisions. Consequently, under a plain reading of HRS § 706-606.5(5), we hold that a sentencing judge may consider imposing a defendant's mandatory minimum sentence consecutively to the shortest of any sentence previously imposed.

III.

A sentencing court must consider all sentencing options, since such consideration

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is mandated by HRS § 706-606(3). See HRS § 706-606 ("The court, in determining the particular sentence to be imposed, shall consider . . . the kinds of sentences available.") (Emphasis added.). In addition, it has been noted that "in order to forestall any claims that the court failed to do so, the trial court would be well advised to state clearly on the record that the alternative sentencing options were considered." State v. Mersberg, 61 Haw. 1, 2, 594 P.2d 1078, 1078 (1979)¹⁰; see also State v. Gaylord, 78 Hawai`i 127, 144, 890 P.2d 1167, 1184 (1995); State v. Lau, 73 Haw. 259, 264, 831 P.2d 523, 526 (1992) ("In order to negate the unnecessary and time-consuming search of the record on appeal, we emphasize and reiterate our caveat in Mersberg that where sentencing alternatives are available, the sentencing court should state clearly on the record that such alternatives were considered.").

Thus, when alternative sentencing options are available, an unclear record may result in a remand. See State v. Gray, 77 Hawai`i 476, 479, 888 P.2d 376, 380 (App.1995) ("Because it appears that the district court may have been unaware of the applicability of the above-quoted parts of HRS §§ 706-641 and -642, we vacate the part of the sentence ordering Gray to pay a $1,000 fine and remand that part for resentencing."), overruled on other grounds by State v. Bolosan, 78 Hawai`i 86, 92 n. 10, 890 P.2d 673, 679 n. 10 (1995). In the instant case, the ICA noted that, "although the court did not specifically state that it was aware of a less severe option, the court clearly indicated its awareness that the impact of the consecutive sentencing would be for Petitioner to serve a twenty-year term of imprisonment." Hussein, 2008 WL 5307813, at *3.

As discussed infra, following disposition of this appeal, Petitioner may file a motion for reduction of sentence under HRPP Rule 35(b), and therein explicitly request that the instant sentence run consecutively to the five-year or misdemeanor...