State v. Smith
| Decision Date | 09 March 2021 |
| Docket Number | NO. CAAP-19-0000475,CAAP-19-0000475 |
| Citation | 149 Hawai‘i 153,484 P.3d 166 |
| Parties | STATE of Hawai‘i, Plaintiff-Appellee, v. Scott Brian SMITH, Defendant-Appellant |
| Court | Hawaii Court of Appeals |
On the briefs:
Renee Ishikawa Delizo, Deputy Prosecuting Attorney, County of Maui, for Plaintiff-Appellee.
Matthew S. Kohm, Wailuku, Alen M. Kaneshiro, for Defendant-Appellant.
In 2001, a jury convicted Defendant-Appellant Scott Brian Smith (Smith ) of assault, terroristic threatening, sexual assault, and kidnapping. The Circuit Court of the Second Circuit sentenced him to concurrent and consecutive prison terms totaling 45 years (Original Sentence ).1 He appealed. We affirmed. State v. Smith, 106 Hawai‘i 365, 105 P.3d 242 (App. 2004) ( Smith I ).
This appeal arises from two post-conviction motions filed by Smith in his criminal case, Hawai‘i Judiciary Information Management System (JIMS ) case 2PC990000325 (the Criminal Case ). On December 27, 2017, Smith filed a motion seeking review of his consecutive sentences under Hawai‘i Revised Statutes (HRS ) § 706-668.5(3) (Motion to Review Consecutive Sentence ).2 On November 21, 2018, the circuit court3 entered "Findings of Fact and Conclusions of Law on Defendant's Motion to Review Consecutive Sentence Under HRS §[ ]706-668.5" (Order Denying Motion to Review Consecutive Sentence ). The circuit court denied Smith's motion but found the sentence imposed for the kidnapping conviction to have been illegal. The circuit court directed Smith to file a petition for relief under Rule 40 of the Hawai‘i Rules of Penal Procedure (HRPP ).
As directed, on January 2, 2019, Smith filed an HRPP Rule 40 petition. A new JIMS case, 2PR191000001, was opened as a result of that filing. The circuit court granted the petition and ordered that Smith be resentenced at a further hearing in the Criminal Case.
On May 2, 2019, in the Criminal Case, the circuit court entered the "Judgment; Conviction and Sentence; Notice of Entry" (2019 Sentence ). The 2019 Sentence increased the sentence for kidnapping (Count 8) from 10 to 20 years, but ran the kidnapping sentence concurrently with the 20-year sentences for Smith's other class A felony offenses (Counts 3-6). The sentence for the remaining B felony (Count 1) remained consecutive to the concurrent sentences for the A felonies. The 5-year sentences on the class C felonies ran concurrently with each other and concurrently with the consecutive sentences on Counts 1, 3-6, and 8. That resulted in Smith's total sentence being reduced from 45 to 30 years.
On July 1, 2019, in the Criminal Case, Smith filed a new motion to reduce his sentence based on his medical condition (Motion to Reduce Sentence ). The State opposed the motion. Smith filed reply and supplemental memoranda. The circuit court entered the "Order Denying Defendant's Rule 35(b) Motion" on September 20, 2019 (Order Denying Motion to Reduce Sentence ).
In this appeal Smith contends that the circuit court erred when it: (1) reviewed but failed to alter his consecutive sentences; (2) recalculated his illegal sentence; (3) failed to resentence him to concurrent terms; and (4) denied his motion to reduce his sentence for medical reasons. For the reasons explained below, we affirm the Order Denying Motion to Review Consecutive Sentence, vacate the 2019 Sentence, affirm the Order Denying Motion to Reduce Sentence, and remand for resentencing consistent with this opinion.
On June 26, 1999, from sometime after midnight until after sunrise, Smith threatened, assaulted, kidnapped, and repeatedly raped the complaining witness (CW ), Smith's former girlfriend, in the presence of their 2½-year-old child. CW was taken to a hospital emergency room, where a doctor found that her right eye socket and left ring finger were fractured, her eyes were severely bruised and nearly swollen shut, and she had contusions on both ears. She also had lacerations on her right thigh, right arm, chin, and left thumb, all of which appeared to have been made with a sharp instrument. CW remained hospitalized for four days.4
Smith was charged by complaint with attempted murder (Count 1), terroristic threatening (Count 2), sexual assault (Counts 3-7), kidnapping (Count 8), use of deadly or dangerous weapon (Count 9), and unauthorized control of propelled vehicle (Count 10).5 During trial the State introduced evidence recovered from CW's residence, including a utility knife found beneath the child's bed; a woman's pantie that was shredded and soaked with blood; and a comforter, a cloth towel, and paper towels, all stained with blood. CW testified that she used paper towels to wipe herself after Smith's sexual assaults. Photographs showing blood and slash marks on the walls of the child's bedroom and blood on a living room couch and the hallway walls were also admitted into evidence.
The jury found Smith guilty of the following offenses:
The jury found Smith not guilty on Count 7 (sexual assault). A judgment of acquittal on Count 7 was entered on June 25, 2001.
The jury also answered the following interrogatories:
On November 20, 2002, circuit court judge Shackley F. Raffetto entered the Original Sentence:
Smith appealed. He contended, among other things, that the trial court abused its discretion by sentencing him to extended terms of imprisonment. Smith I, 106 Hawai‘i at 378, 105 P.3d at 255. We noted that Smith was sentenced to consecutive, not extended, terms of imprisonment pursuant to HRS § 706-668.5,11 after the trial court considered the sentencing factors set forth in HRS § 706-606.12 We rejected Smith's other contentions and affirmed the Original Sentence. Smith's application for writ of certiorari was denied. State v. Smith, 106 Hawai‘i 477, 106 P.3d 1120 (Table) (2005).
On July 29, 2013, Smith filed a petition13 under HRPP Rule 40.14 Smith contended: (1) he was denied the right to an impartial judge; (2) he received ineffective assistance of counsel at trial, during sentencing, and in his direct appeal; (3) he was deprived of discovery and access to evidence; (4) the jury was tampered with; and (5) the trial court erroneously instructed the jury about reasonable doubt. The circuit court denied the petition. Smith appealed. We affirmed, concluding that all of Smith's claims were either previously raised and ruled upon or were without merit. Smith v. State, No. CAAP-13-0005313, 2015 WL 4608127, at *3 (Haw. App. July 31, 2015) (SDO) ( Smith II ). Smith's application for writ of certiorari was denied. Smith v. State, No. SCWC-13-0005313, 2015 WL 6966318 (Haw. Nov. 10, 2015).
On October 27, 2015 (while the application for writ of certiorari in Smith II was pending), Smith filed a motion to recalculate his multiple terms of imprisonment under Act 194 of the 2015 legislative session.15 The motion was filed in the special prisoner proceeding created when Smith filed the First Rule 40 Petition, addressed in Smith II. The circuit court noted that the judgment on appeal in Smith II had been entered, but stated it was "unable to ascertain whether it has jurisdiction" because it did not know whether Smith had petitioned for certiorari. The circuit court denied the motion "without prejudice to the issue being raised in the proper proceeding." Smith appealed. We affirmed, holding:
Smith filed his [motion to recalculate sentence] at a time when [Smith II ] was on appeal. Therefore, the Circuit Court was correct that Smith's, [sic] filing of the Motion to Recalculate Sentence ... was not "proper." ... In any event, the Circuit Court denied the Motion to Recalculate Sentence without prejudice to Smith raising his Act 194 claim in another proceeding. Because Smith is free to file an HRPP Rule 40 petition raising a claim under Act 194, and given the muddled record relating to his Act 194 claim, we conclude that the Circuit Court did not err in denying without prejudice Smith's Motion to Recalculate Sentence.
Smith v. State, No. CAAP-15-0000920, 2017 WL 384096, at *3 (Haw. App. Jan. 27, 2017) (SDO) ( Smith III ).
On May 31, 2017, Smith filed a second petition for post-conviction relief.16 Smith contended that: (1) the circuit court's imposition of consecutive sentences violated his right to a fair trial, and the court failed to consider all statutory sentencing factors or state its reason for imposing multiple consecutive sentences; (2) the court improperly "based the severity of sentencing on [Smith's] failure to take responsibility and admit guilt"; (3) the court failed to instruct the jury on the possibility of...
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