State v. Perry

• Decision Date: 04 April 2000
• Docket Number: No. 22245.,22245.
• Citation: 93 Haw. 189,998 P.2d 70
• Parties: STATE of Hawai`i, Plaintiff-Appellee, v. Anderson Leroy PERRY, Defendant-Appellant.
• Court: Hawaii Court of Appeals

998 P.2d 70

93 Haw. 189

STATE of Hawai`i, Plaintiff-Appellee, v. Anderson Leroy PERRY, Defendant-Appellant.

No. 22245.

Intermediate Court of Appeals of Hawai`i.

April 4, 2000.

Certiorari Denied May 3, 2000.

Joyce K. Matsumori-Hoshijo, Deputy Public Defender, on the briefs, for defendant-Appellant. Caroline M. Mee, Deputy Prosecuting Attorney, City and County of Honolulu, on the briefs, for plaintiff-appellee.

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

Opinion of the Court by ACOBA, J.

We hold in this appeal by Defendant-Appellant Anderson Leroy Perry (Defendant), that in resentencing Defendant following revocation of his probation, the first circuit court (the court) erred in granting a motion for a mandatory term of imprisonment filed by Plaintiff-Appellant State of Hawai`i (the State) and in so sentencing Defendant. Upon revocation of Defendant's probation, the court was bound, pursuant to Hawai`i Revised Statutes (HRS) § 706-625 (Supp. 1998), to resentence Defendant only to a sentence that could have been imposed originally for the crime for which he was convicted. In this case, Defendant's conviction did not include liability for the aggravated circumstances of causing serious bodily injury to a child eight years or younger, which would have exposed him to an extended sentence under HRS § 706-662(5) (1993), or, as the court found, to a mandatory sentence under HRS § 706-660.2 (1993).

As set forth in both the September 11, 1995 guilty plea and the January 8, 1996 judgment of conviction and sentence, Defendant was originally convicted of the crime of Assault in the First Degree without reference to any aggravating circumstances. Accordingly, we vacate the court's mandatory term sentence and remand the case for proceedings consistent with this opinion.

I.

On September 8, 1994, Defendant was indicted for the offense of Assault in the First Degree, HRS § 707-710 (1993), and additionally, for the aggravating circumstances of causing serious bodily injury to a child eight years old or younger which, upon conviction, would subject him to special sentencing sanctions under HRS §§ 706-662(5) or -660.2. The indictment charged that on or about May 14, 1993 through May 17, 1993, Defendant

intentionally or knowingly caused serious bodily injury to [Complainant¹], a child less than eight (8) years of age, by striking [Complainant], and/or by failing to seek and obtain medical treatment for the injuries [Complainant] sustained, thereby committing the offense of Assault in the First Degree, in violation of Sections 707-710 and 702-203(2) of the [HRS] and subjecting him to the penalty provisions for Offenses Against Children, pursuant to Sections 706-662(5) and 706-660.2 of the [HRS].

(Emphasis added.)

Under HRS § 707-710, Assault in the First Degree is committed when a person "intentionally or knowingly causes serious bodily injury to another person." Assault in the First Degree is a class B felony, HRS § 707-710(2), for which punishment is set at a maximum prison term of ten years. HRS § 706-660 (1993).² HRS § 702-203(2) (1993) refers to penal liability based on legal omission of "[a] duty to perform the [charged] omitted act[.]" In the context of this case, it seemingly refers to the allegation that Defendant failed to obtain medical treatment for Complainant. HRS § 706-662, which sets forth the criteria for imposition of an extended term of imprisonment, provides in relevant part as follows:

A convicted defendant may be subject to an extended term of imprisonment under section 706-661, if the convicted defendant satisfies one or more of the following criteria:

. . . .

(5) The defendant is an offender against the elder, handicapped, or minor under the age of eight whose imprisonment for an extended term is necessary for the protection of the public. The court shall not make this finding unless:

(a) The defendant attempts or commits any of the following crimes: murder, a sexual offense which constitutes a felony under chapter 707, robbery, felonious assault, burglary, and kidnapping; and

(b) The defendant, in the course of committing or attempting to commit the crime, inflicts serious or substantial bodily injury upon a person who is:

(i) Sixty years of age or older;

(ii) Blind, a paraplegic, or a quadriplegic; or

(iii) Eight years of age or younger; and

(c) Such disability is known or reasonably should be known to the defendant.

(Emphases added.) HRS § 706-661(2) (1993) states that a defendant who "is an offender against [a] ... minor under the age of eight [and] whose imprisonment for an extended term is necessary for the protection of the public" under HRS § 706-662(5), may be subjected to an extended indeterminate prison term of twenty years for a class B felony. HRS § 706-660.2 indicates that a mandatory prison sentence may be imposed in the following pertinent circumstance:

[A] person who, in the course of committing or attempting to commit a felony, causes the death or inflicts serious or substantial bodily injury upon a person who is:

. . .

(3) Eight years of age or younger; and such disability is known or reasonably should be known to the defendant, shall, if not subjected to an extended term of imprisonment pursuant to section 706-662, be sentenced to a mandatory minimum term of imprisonment without possibility of parole as follows:

. . .

(3) For a class B felony—three years, four months [.]

(Emphases added.)

The State and Defendant entered into a plea bargain and on September 11, 1995, Defendant entered a guilty plea to the charge of "Assault in the First Degree" in accordance with the plea bargain. The plea agreement stated, as the factual basis for the plea, that "[Defendant] attempted to spank [Complainant] ... on his buttocks but hit him in the stomach instead, resulting in a serious injury to his pancreas." The plea agreement did not mention the omission to act provisions of HRS § 702-203(2) or the penalty provisions of HRS §§ 706-662(5) and -660.2. As indicated above, the factual statement in the plea agreement did not declare that Defendant struck a person of eight years of age or younger, an element required to invoke the penalty provisions for an offense against children in HRS §§ 706-662(5) and -660.2.

The other relevant terms of the plea agreement as stated in the guilty plea form were as follows:

Defendant agrees to plead guilty as charged. The State agrees to recommend a sentence of five (5) years probation, no further jail, credit for time already served, anger management, substance abuse assessment and treatment if necessary, and parenting classes. State further agrees not to ask for enhanced sentencing.³

(Emphases added)

On the guilty plea form, the section labeled "maximum indeterminate [prison] sentence" was marked as ten years, a sentence consistent with the provisions of HRS §§ 707-710(2) and 706-660. The section labeled "extended maximum indeterminate sentence" (emphasis added) was marked "n/a," apparently for "not applicable," signifying that an extended sentence was excluded under the terms of the plea bargain. The plea form also contained form language related to extended and mandatory sentences.⁴

The court minutes reflect that after the court questioned Defendant, the court "FOUND [DEFENDANT] VOLUNTARILY ENTER[ED] HIS PLEA OF GUILTY WITH THE UNDERSTANDING OF THE NATURE OF THE CHARGE AGAINST HIM AND THE CONSEQUENCES OF HIS PLEA."⁵ On January 8, 1996, the court⁶ sentenced Defendant, in accordance with the terms of the plea agreement, to a term of probation for five years with special conditions.⁷ The January 8, 1996 Judgment of guilty conviction and probation sentence (the judgment) stated that the charge to which Defendant had pled guilty was Assault in the First Degree and that the court "adjudged that the Defendant has been convicted and is guilty as stated above." (Emphasis added.) No reference was made in the judgment to the penalty provisions of HRS §§ 706-662(5) and -660.2.

The judgment contained the following bolded and capitalized provision:

ANY FAILURE BY YOU TO COMPLY WITH ALL OF THE TERMS AND CONDITIONS OF PROBATION WILL MEAN THAT THE COURT CAN REVOKE YOUR PROBATION AND SENTENCE YOU TO PRISON, OR CHANGE OR ADD TO THE TERMS OF PROBATION.

On January 23, 1996, Defendant signed the judgment and his signature was witnessed by a probation officer.

On August 12, 1998, the State filed a Motion for Revocation of Probation (the revocation motion) pursuant to HRS § 706-625. The affidavit of Debra Iijima (Iijima), Defendants' probation officer, attached to the revocation motion, contended that Defendant had violated his probation terms by failing to (1) "report at least once a month [for probation meetings] as instructed by his probation officer"; (2) "notify his probation officer prior to a change of address"; (3) "report[] any legitimate employment since [August 1996]"; (4) "provide monitored urine samples within two hours of instruction"; (5) "enter and remain in a drug/alcohol treatment program as instructed by the probation officer"; and (6) "refrain from the use of alcohol and illegal drugs." The revocation motion also asserted that, in violation of his probation terms and conditions, Defendant had drunk an alcoholic beverage in February 1996 and had used marijuana in October 1997. Iijima maintained that Defendant "violated said terms and conditions of probation[.]"

HRS § 706-625, which governs probation revocation proceedings, provides in pertinent part as follows:

Revocation, modification of probation conditions. (1) The court, on application of . . . the prosecuting attorney, . . . after a hearing, may revoke probation, reduce or enlarge the conditions of a sentence of probation, pursuant to the provisions applicable to the initial setting of the conditions and the provisions of section 706-627.

. . .

(3) The court shall revoke probation if the defendant has inexcusably failed to comply with a substantial requirement imposed as a condition of the order[.]

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