State v. Kamana`o, No. 25271 (Haw. 12/3/2003), 25271
| Decision Date | 03 December 2003 |
| Docket Number | No. 25271,25271 |
| Parties | STATE OF HAWAI`I, Plaintiff-Appellee v. ANDREW KAMANA`O, Defendant-Appellant. |
| Court | Hawaii Supreme Court |
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT (Criminal No. 56708)
David Bettencourt, for the defendant-appellant Andrew Kamana`o.
Mangmang Qiu Brown, Deputy Prosecuting Attorney, for the Plaintiff-Appellee State of Hawai`i.
The defendant-appellant Andrew Kamana`o appeals from the order of the first circuit court, the Honorable Victoria S. Marks presiding, filed on August 14, 2002, denying Kamanao's motion for correction of illegal sentence, pursuant to Hawai`i Rules of Penal Procedure (HRPP) Rule 35 (2000) [hereinafter, "Rule 35 motion"].(1) On appeal, Kamana`o contends, inter alia, that: (1) the circuit court erred in finding that the sentencing court did not err in granting the motion of the plaintiff-appellee State of Hawai`i [hereinafter, "the prosecution"] for an extended term of imprisonment, pursuant to Hawai`i Revised Statutes (HRS) § 706-662(4) (1983),(2) based on Kamanao's refusal to admit guilt with respect to the offenses of which he was convicted; (2) the circuit court erred in denying his motion for correction of illegal sentence, based on the United States Supreme Court's decision in Apprendi v. New Jersey, 530 U.S. 466 (2000); and (3) the deputy public defender (DPD) rendered ineffective assistance by failing to (a) file memoranda to supplement Kamanao's motion for correction of illegal sentence drafted by his jailhouse lawyer, (b) investigate the record in order to assess the legality of Kamanao's extended term sentence, (c) failing to obtain a waiver of Kamanao's presence at the motion hearing, and (d) failing sufficiently to confer with Kamana`o in order to answer his questions and assure him that he would be represented adequately.
We agree with Kamana`o that the circuit court erred in finding that a sentence of imprisonment for an extended term was "warranted," thereby granting the prosecution's motion for an extended term of imprisonment, based on Kamanao's unwillingness to admit his culpability for the offenses of which he was convicted. We therefore hold that a sentencing court may not impose an enhanced sentence based on a defendant's refusal to admit guilt with respect to an offense the conviction of which he intends to appeal. Accordingly, we (1) vacate the circuit court's August 14, 2002 order denying Kamanao's motion for correction of illegal sentence, (2) vacate the circuit court's judgment of sentence, filed on January 10, 1984, and (3) remand the matter to the circuit court for resentencing.
On October 13, 1983, a jury returned a guilty verdict, convicting Kamana`o, interalia, of (1) two counts of rape in the first degree (a class A felony), in violation of HRS § 707-730 (repealed 1986), and (2) one count of sodomy in the first degree (a class A felony), in violation of HRS § 707-733 (repealed 1986).(3) On October 28, 1983, the prosecution filed a motion for an extended term of imprisonment, pursuant to HRS § 706-662(4), seesupra note 2.(4)
On January 6, 1984, the circuit court, the Honorable Donald K. Tsukiyama presiding, conducted a hearing on the matter, during which the prosecution argued that Kamana`o, having been convicted of two or more felonies, was a "multiple offender" within the meaning of HRS § 706-662(4), see supra note 2, and that Kamanao's "extensive criminality" warranted an extended term sentence. To that end, the prosecution urged that the following "aggravating factors" warranted an extended term sentence: (1) Kamanao's "pattern of conduct suggests [that] he represents a serious danger to society"; (2) the offenses of which Kamana`o was convicted "occurred while he was on probation"; (3) the presentence report listed Kamanao's prognosis as "poor" with respect to the ability to respond affirmatively to rehabilitation; and (4) Kamana`o demonstrated a "total lack of remorse for his conduct" and refused to admit his guilt.
Based on the foregoing arguments advanced by the deputy prosecuting attorney (DPA), the circuit court inquired as follows:
I'm not sure I understand the rationale . . . . Mr. Kamana`o is faced with a mandatory prison term of 20 years. Are you saying that these circumstances . . . justify extending the term from 20 years to the duration of his life? Why not 60 years or 40 years?
. . . .
What I'm asking is: Do you feel that life imprisonment in this case is necessary to punish Mr. Kamana`o solely, or is there some other reason why the Court should consider a life term as opposed to 20 years, which in itself is a fairly substantial prison term.
The DPA responded as follows:
Your Honor, basically, the State's position would be: If the Court would sentence [Kamana`o] to 20 years, if there would be some guaranty [sic] that he would be out of the community for that 20 years, then the State might consider just asking for the 20 years. But, under the circumstances, if it's left up to the Hawaii Paroling Authority as to what his minimum [term of imprisonment] might be, then the State, before it would agree or be satisfied with a 20-year mandatory sentence and [Kamanao's mandatory] minimum [term] being set at six, the State would recommend or request life to increase his mandatory minimum [term].
(Emphasis added.) In response, defense counsel contended that the lack of "violent contact" between Kamana`o and the three complainants constituted a "mitigating factor," which the sentencing court should consider in rendering its decision with respect to extended term sentencing. Defense counsel posited that the facts upon which the jury relied in convicting Kamanao established that the "assailant" committed the offenses without gratuitous violence and, therefore, that an extended term of imprisonment was not "warranted."
Having heard the foregoing arguments by counsel, the circuit court granted the prosecution's motion for an extended term sentence, remarking as follows:
[T]here is no question, based on the evidence, and the Court finds and concludes that [Kamana`o] has been convicted of and is being sentenced for eight felonies, which are clearly reflected in the record herein. There's also no question, and the Court finds and concludes, that [Kamanao] is already under a sentence of imprisonment for a felony in Criminal No. 52291, as previously indicated in relation to the Court's findings as to the motion for repeat offender sentencing. Further, the Court finds and concludes that the maximum terms of imprisonment authorized for each of [Kamanao's] convictions, if made to run consecutively, would exceed 40 years, and to the class A felonies alone, which are Counts VI, IX, and XI.
The problem that the Court faces and addresses is whether or not, however, Mr. Kamanao's criminality is so extensive as to require an extended term of imprisonment from 20 years to life. I'm not sure I appreciate the rationale advanced by the Prosecution for its request for a life sentence. I would agree with [defense counsel] that[,] notwithstanding the seriousness of the offenses with which [Kamana`o] has been charged and for which he has been convicted, there appears to be no so-called aggravating circumstances. No weapons were used; there appears to be no other injuries inflicted upon the victims in this case. Certainly[,] had a weapon been used, even shown in this case, or had injury been inflicted upon the victims, the Court would, without hesitation, find that his offenses were so extensive as to require an extended term of imprisonment . . . .
In addition to the nature and multiplicity of the offenses committed by [Kamana`o], the seriousness, the flagrancy of his conduct is aggravated by what has been pointed out by [the DPA]: That he refuses to acknowledge his culpability for these offenses. I cannot change what is in Mr. Kamanao's mind. I can only go by the fact that a jury has convicted him of the offenses, and, on that basis, the Court finds that he is guilty of these offenses and is culpable. That being the case, his refusal to acknowledge this very serious behavioral problem, which caused him to terrorize and victimize and assault his victims, negates any reasonable expectation of his rehabilitation, whether in 20 years or for the duration of his life.
It seems to the Court, and it is the Court's opinion, that [Kamanao's] criminality manifests a very serious, a very profound emotional or psychological problem, which must be treated before he may be reasonably and realistically and safely considered for reintegration into the community. The essential first step which is apparent for rehabilitation and reintegration must be a recognition and acknowledgment of the existence of a problem, and unless this problem can be identified and treated, based on the offenses for which [Kamana`o] has been convicted, he poses a very real, a very serious threat to the safety of the community.
Unfortunately, since [Kamana`o] neither acknowledges nor recognizes the existence of a problem, this attitude simply magnifies, as the Court indicated, the flagrancy and the seriousness of this criminality and precludes, unfortunately, any rational consideration of his rehabilitation. Now, until and unless [Kamana`o] recognizes his problem, there can be no basis for a reasonable expectation of his rehabilitation.
. . . .
What I am simply saying is, I don't know whether or not this problem can be identified and treated in a year, 10 years, 20 years, or more. I am saying, however, because of the seriousness of the problem, because it is profound, that if Mr. Kamana`o does not acknowledge, recognize that he has this problem, he cannot be rehabilitated, he cannot be redirected. And as long as he is not rehabilitated or redirected, he poses a very serious threat to the safety of the community. . . .
Why am I pointing this out...
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