State v. Schroeder, 15356

• Court: Court of Appeals of Hawai'i
• Citation: 10 Haw.App. 535,880 P.2d 208
• Docket Number: No. 15356,15356
• Parties: STATE of Hawai'i, Plaintiff-Appellee, v. Eric W. SCHROEDER, Defendant-Appellant.
• Decision Date: 21 July 1992

Page 208

880 P.2d 208 10 Haw.App. 535 STATE of Hawai'i, Plaintiff-Appellee,
v.
Eric W. SCHROEDER, Defendant-Appellant. No. 15356. Intermediate Court of Appeals of Hawai'i. July 21, 1992.
Reconsideration Denied Aug. 20, 1992.
Certiorari Granted (State);
Certiorari Denied (Schroeder)
Oct. 27, 1992.

Syllabus by the Court

1. Where, after a defendant's bench trial conviction, the trial judge referred the defendant to the Adult Probation Division (Division) for a pre-sentence report and received in response a report from the Division prior to sentencing; and where a copy of the report was delivered to the defendant and discussed by him with his attorney; and where the report, because of the defendant's refusal to talk to the probation officer who prepared the report, did not contain all of the information required by HRS § 706-602 (1985) but the missing information was contained in letters attached to the report from the defendant and a third party, the report and the attached material provided sufficient information for the court to make a reasoned judgment on the proper sentence to be imposed for the defendant's convictions, the pre-sentence report sufficiently complied with HRS § 706-602, and the requirement of HRS § 706-600 (1985) that all sentences be imposed in accordance with HRS chapter 706 (1985) was not violated.

2. [10 Haw.App. 536] A defendant may not be given an enhanced sentence on account of aggravatingcircumstances

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pursuant to a statute providing therefor unless the aggravating circumstances are alleged in the complaint or indictment, and the statute's applicability has been determined by the trier of fact.

[10 Haw.App. 546] Eric W. Schroeder, pro se, on the opening brief.

Myles S. Breiner, on the reply brief, Honolulu, for defendant-appellant.

James M. Anderson, Deputy Pros. Atty., City and County of Honolulu, on the brief, Honolulu, for plaintiff-appellee.

Before [10 Haw.App. 535] BURNS, C.J., and HEEN and WATANABE, JJ.

[10 Haw.App. 536] HEEN, Judge.

Defendant-Appellant Eric Schroeder (Defendant) was indicted on October 25, 1985, for the offenses of Robbery in the First Degree (Count I), Hawaii Revised Statutes (HRS) § 708-840(1)(b)(ii) (1985 & Supp.1991), and Kidnapping (Count II). HRS § 707-720(1)(c) (Supp.1991). On January 30, 1987, after a bench trial, Defendant was convicted on both counts. ¹ On March 10, 1987, the State filed a motion for imposition of a mandatory minimum sentence of ten years for each conviction pursuant to HRS § 706-660.1(a) (1985) ² on the ground that [10 Haw.App. 537] Defendant used a gun in committing the offenses, which were part of one episode. On March 25, 1987, the court sentenced Defendant to two concurrent maximum prison terms of 20 years. The court also granted the State's motion and sentenced Defendant to serve a concurrent mandatory minimum term of ten years on each count.

Defendant appealed his convictions on April 20, 1987. On July 15, 1987, Defendant filed a motion for reduction of his sentence, which was denied. The convictions were affirmed by this court in a memorandum opinion filed on October 6, 1988 (S.Ct. No. 12142).

On July 6, 1989, Defendant, acting pro se, filed a Motion To Correct Illegal Sentence (Motion). ³ After a hearing, the court entered findings of fact and conclusions of law and an order (Order) denying the Motion on April 26, 1991. ⁴ Defendant filed his notice of appeal of the Order on May 23, 1991.

On appeal, Defendant argues that:

(1) the entire sentence was illegal because the court was not provided with a report of a "pre-sentence correctional[10 Haw.App. 538] diagnosis" of Defendant as required by HRS § 706-601 (1985 & Supp.1991);

(2) the mandatory minimum sentence imposed for Count II was illegal because (a) the indictment did not give him notice of the possibility of its imposition, and (b) the sentencing court did not find beyond a reasonable doubt that Defendant had used or threatened to use a firearm while committing a felony; and

(3) the court erred in not ordering and considering a pre-sentence correctional diagnosis

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and report before ruling on his motion for a reduction of the sentence.

We affirm the Order except with respect to the minimum sentence imposed for Count II and remand with instructions to vacate the mandatory minimum sentence imposed for that count.

I.

HRS § 706-600 (1985) requires that all sentences be imposed in accordance with HRS chapter 706. Defendant asserts that the court did not order or receive a pre-sentence correctional diagnosis and report as required by HRS § 706-601(1)(a) (1985 & Supp.1991). ⁵ Therefore, since the information required under HRS § 706-602 (1985) ⁶ was not furnished to the court for its consideration [10 Haw.App. 539] in imposing sentence, the sentences were not imposed in accordance with the provisions of HRS chapter 706, and were illegal. The argument is without merit.

The record shows that, upon finding Defendant guilty, the trial court "referred [Defendant] to the Adult Probation Division for a pre-sentence report prior to [the sentencing] hearing." At the sentencing hearing, the court stated it had "read and reviewed the pre-sentence report" dated March 11, 1987. The record also shows that Defendant was furnished a copy of the report, examined it with his attorney, and made minor corrections to it through his attorney. A copy of the pre-sentence report is attached to Defendant's "Ex Parte Motion For Leave To File Presentence Report" filed on October 30, 1991. The report set forth the circumstances of the offense and information on Defendant's arrest in California.

Defendant's argument is based on the probation officer's statement in the first paragraph of the report that the report was "in lieu of a presentence report" because Defendant had refused to furnish any information to the probation officer. The probation officer's statement does not affect the substance of the report.

[10 Haw.App. 540] Admittedly, due to Defendant's recalcitrance, the portion of the report prepared by the probation officer does not contain information regarding Defendant's "physical and mental condition, family situation and background, economic status and capacity to make restitution or to make reparation ..., education, occupation, and personal habits," as required by HRS § 706-602. However, the report includes a handwritten letter from Defendant to the probation officer, which provides enough of the missing information to satisfy the statute. In the letter, Defendant set forth, albeit not in great detail, information regarding his family, employment, arrest record, "present and future prison life," and prospects for his future.

Additionally, the report includes a letter from Mr. Wally Inglis, Program Director of the Mental Health Association in Hawaii, which describes Defendant as "a bright, articulate, sensitive person who cares not only for his own well-being, but is also willing to speak up for the rights and needs of those who share his predicament[.]"

In our view, the material presented to the court provided sufficient information for the court to...