State v. Solomon

• Decision Date: 29 April 2005
• Docket Number: No. 24470.,24470.
• Citation: 111 P.3d 12,107 Haw. 117
• Parties: STATE of Hawai'i, Plaintiff-Appellee, v. James Franklin SOLOMON, Jr., Defendant-Appellant.
• Court: Hawaii Supreme Court

111 P.3d 12

107 Haw. 117

STATE of Hawai'i, Plaintiff-Appellee, v. James Franklin SOLOMON, Jr., Defendant-Appellant.

No. 24470.

Supreme Court of Hawai'i.

April 29, 2005.

James S. Tabe, Deputy Public Defender, for defendant-appellant.

Daniel H. Shimizu, Deputy Prosecuting Attorney, for plaintiff-appellee.

MOON, C.J., LEVINSON, NAKAYAMA, ACOBA, and DUFFY, JJ.

Opinion of the Court by NAKAYAMA, J.

Defendant-appellant James Franklin Solomon, Jr. (Solomon) appeals from the May 4, 2001 order of the family court of the first circuit, the Honorable Michael D. Wilson presiding, convicting Solomon of abuse of a family or household member, in violation of Hawai'i Revised Statutes (HRS) § 709-906 (Supp.2001),¹ and sentencing him to one year probation, subject to the conditions that he (1) pay a $50.00 criminal injuries compensation fee, and (2) undergo (a) domestic violence intervention/anger management, (b) parenting classes, (c) sex offender evaluation and treatment, if necessary, and (d) mental health evaluation and treatment, if necessary. On appeal, Solomon argues that (1) the family court's acceptance of his guilty plea without an affirmative showing that he voluntarily, intelligently, and knowingly pled guilty constituted an abuse of discretion amounting to plain error, (2) the family court abused its discretion when it ordered him to undergo sex offender evaluation and treatment as a condition of his probation sentence, and (3) the imposition of sex offender treatment constituted cruel and unusual punishment, in violation of the eighth amendment to the United States Constitution² and article I, section 12 of the Hawai'i Constitution.³ The State of Hawai'i [hereinafter, "the prosecution"] concedes that the record is insufficient to affirmatively show that Solomon's guilty plea was knowing and voluntary, but argues that the family court did not abuse its discretion by sentencing Solomon to undergo sex offender evaluation and treatment, and, moreover, that such sentence did not constitute cruel and unusual punishment. Inasmuch as the record fails to affirmatively demonstrate that Solomon's guilty plea was knowing and voluntary, we vacate Solomon's conviction and sentence, and remand to the family court for a new change of plea hearing. Although this issue is outcome-dispositive of the instant appeal, we address Solomon's remaining points of error in order to provide guidance to the family court on remand.

I. BACKGROUND

On March 5, 2001, Solomon was charged by complaint with one count of abuse of a family or household member, in violation of HRS § 709-906, see supra note 1, after he tied up his four-year-old nephew by the wrists and ankles to a bed or a tree and hit him with a belt.

On March 27, 2001, Solomon pled guilty to the charged offense. Prior to accepting Solomon's guilty plea, the family court conducted the following colloquy to determine whether Solomon's guilty plea was made knowingly, voluntarily, and intelligently:

THE COURT:.... Mr. Solomon, it's my understanding, sir, that you've decided to plead guilty to the charge of abuse of family household member this morning; is that correct, sir?

[SOLOMON]: Yes.

THE COURT: All right. Then let me ask you a few questions. How old are you?

[SOLOMON]: Forty-three.

THE COURT: And how much education do you have?

[SOLOMON]: Up to the tenth grade.

THE COURT: Are you under the influence of alcohol or any drugs this morning?

[SOLOMON]: No.

THE COURT: You understand the maximum penalty in this case is one year in jail and a $2,000 fine?

[SOLOMON]: Yes.

THE COURT: Also you understand you have the right to go to trial in this case, and by pleading guilty you give up certain rights you'd have if you went to trial?

[SOLOMON]: Yes.

THE COURT: Also you understand that if the [c]ourt imposes a sentence you do not agree with, you cannot at that time withdraw your guilty plea. You understand that?

[SOLOMON]: Yes.

THE COURT: Has anybody threatened or coerced you to plead guilty in this case?

[SOLOMON]: No.

THE COURT: So you're doing so of your own free will; is that correct?

[SOLOMON]: Yes.

THE COURT: Are you satisfied with the advice of your attorney?

[SOLOMON]: Yes.

THE COURT: All right. I'll ask for a statement of facts from the [prosecution].

Following a brief factual synopsis from the prosecution, Solomon again entered a guilty plea. Finding that Solomon "voluntarily entered his plea of guilty with an understanding of the nature of the charge against him and the consequences of his plea[,]" the family court accepted Solomon's guilty plea and adjudged him guilty.

After adjudging Solomon guilty, the family court immediately commenced sentencing proceedings. During the proceedings, the prosecution asked the family court to order a presentence investigation, and requested that Solomon be sentenced to a three-day jail term, as agreed. Defense counsel also requested that Solomon receive a three-day jail sentence, but urged the family court to credit Solomon for time already served. Defense counsel, however, deferred all other conditions of Solomon's sentence to the presentence investigation recommendation. The family court thereafter credited Solomon for time served and informed the parties that Solomon would not serve any additional period of incarceration. The family court, however, continued sentencing until May 4, 2001 to afford the probation department sufficient time to prepare a presentence investigation report to assist the court in determining the appropriate terms and conditions for Solomon's sentence.

On May 4, 2001, the family court heard arguments to determine the terms and conditions of Solomon's sentence. The arguments, however, were made in the absence of a presentence investigation report because Solomon "was not aware that he was supposed to initiate the contact with the—with the [probation officer]." At the hearing, the prosecution requested one year probation, with the conditions that Solomon undergo "[domestic violence intervention], parenting [classes], mental health assessment and treatment, and sex offender evaluation and treatment but not registration." In support of its position that Solomon undergo sex offender evaluation and treatment, the prosecution explained that

[t]he sex offender evaluation and treatment seems to be the major stumbling block, Your Honor. The [d]efense may argue that it's unwarranted by the facts of this matter. However, this was a four-year-old child who was bound to, depending on whose account, a bed or a tree and hit with a belt. There's an unmistakable bondage-type element here that the [prosecution] would argue at least needs to be evaluated and explored.

If no treatment is deemed necessary, then that's fine. But the [prosecution] would ask this [c]ourt to take the prudent path and at least have the evaluation done to see if further treatment is necessary. Not to do so would—in light of what has already happened to one four-year-old boy, would be very difficult to explain should this happen again.

The [prosecution] would argue that [Solomon] had an opportunity to go and have a presentence investigation conducted. If the presentence investigation had come back with sex offender evaluation and treatment not necessary, well the [prosecution's] grounds for asking for such would be much weaker. However, [Solomon] neglected to go into [the Adult Service Branch] and have the presentence investigation conducted.

As such, the [prosecution] would argue that the [c]ourt should take the prudent path and perhaps even assume the worst in this matter and order the sex-the sex offender evalu—or the sex offender evaluation and treatment.

Without the [presentence investigation], Your Honor, the [prosecution] would really be arguing that the [c]ourt should err on the side of caution in this matter as there is a binding and beating element of—a bondage-type element to this crime.

(Some formatting omitted.) Defense counsel, however, argued that the facts of the case did not warrant the imposition of sex offender evaluation and treatment as a condition of Solomon's probation and would amount to cruel and unusual punishment:

Considering what's being asked here, the sex offender evaluation and treatment is a very rigorous and demanding program, Your Honor. Based on the mere facts alone that was presented in this case, the facts alone do not warrant such a condition of probation. And without any other indication more, I don't think that it's appropriate sentencing.

It would be overly—the sentence in this case would be extremely unfair and possibly a violation of his [eighth a]mendment rights, Your Honor, because the facts in this case—just the mere fact that it's a four-year-old child—that was possibly tied at the wrists, Your Honor, that doesn't indicate a sex offender—sexual predator here.

And I realize the [c]ourt's concern with the possibility of that. But because there is concern and because it's just a mere possibility, I think the [presentence investigation] would be critical in this case if the [c]ourt were to impose such a condition. So we would be objecting-strenuously objecting to any kind of sex offender eval[uation] or treatment in this case.

....

But as far as the sex offender eval[uation] and treatment-there's also nothing in his criminal history that would indicate that's necessary here. This is the very first abuse-type case. He has nothing—no other criminal convictions that would indicate that's the path that he's taking here, Your Honor.

After hearing the arguments presented, the family court ordered Solomon to pay $50.00 to the criminal injury compensation fund and sentenced him to one year probation, subject to the special conditions that he undergo domestic violation intervention counseling, parenting classes, sex offender evaluation and treatment, if necessary, and mental health assessment and treatment, if necessary:

The presentence investigation was something that was the responsibility of [Solomon] to follow

...