State v. Torres

• Decision Date: 08 April 2021
• Docket Number: NO. CAAP-20-0000464,CAAP-20-0000464
• Citation: 485 P.3d 1110,149 Hawai‘i 198
• Parties: STATE of Hawai‘i, Plaintiff-Appellee, v. Richard Jose TORRES, Defendant-Appellant
• Court: Hawaii Court of Appeals

149 Hawai‘i 198

485 P.3d 1110

STATE of Hawai‘i, Plaintiff-Appellee,

v.Richard Jose TORRES, Defendant-Appellant

NO. CAAP-20-0000464

Intermediate Court of Appeals of Hawai‘i.

APRIL 8, 2021

On the briefs:

David Glenn Bettencourt, Honolulu, for Defendant-Appellant.

Brian R. Vincent, Deputy Prosecuting Attorney, City and County of Honolulu, for Plaintiff-Appellee.

LEONARD, PRESIDING JUDGE, HIRAOKA AND WADSWORTH, JJ.

OPINION OF THE COURT BY LEONARD, J.

This appeal arises out of a defendant's pretrial detention and commitment to the custody of the Director of the State of Hawai‘i (State ) Department of Health (Director of Health ). As discussed herein, we hold that pursuant to the applicable statute, a criminal defendant who has been ordered to be detained pretrial in the custody of the Director of Health, in an institution for detention, assessment, care, and treatment, shall receive credit for the time of detention in such institution, as well as receive any other statutory credit due for time served in a correctional institution.

Defendant-Appellant Richard Jose Torres (Torres ) appeals from the May 27, 2020 Judgment of Conviction and Sentence as to Count 1 (Judgment ), and challenges the July 9, 2020 Findings of Fact [(FOFs )] and Conclusions of Law [(COLs )] and Order Denying Defendant's Motion for Correction of Illegal Sentence, for Reduction of Sentence, for a New Trial, or Alternatively, to Dismiss Felony Information as De Minimis (Order Denying Relief ) entered against him by the Circuit Court of the First Circuit (Circuit Court ).¹

I. BACKGROUND

On January 10, 2018, Defendant-Appellant Torres was arrested at Kûhiô Beach Park in the City and County of Honolulu on suspicion of Promoting a Dangerous Drug in the Third Degree and Park Closure. Torres was held for two days and then released pending investigation by the Honolulu Police Department.

On September 25, 2018, the State filed a Felony Information and Non-Felony Complaint (Complaint ) charging Torres with Promoting a Dangerous Drug in the Third Degree, in violation of Hawai‘i Revised Statutes (HRS ) § 712-1243 (2014), and Park Closure, in violation of Revised Ordinances of Honolulu § 10-1.2(a)(12) (2017). Upon a finding of probable cause and issuance of a bench warrant, Torres was arrested on September 27, 2018. Bail was set at $11,000 and Torres never posted bail.

On January 3, 2019, while Torres was detained and awaiting trial at the Oahu Community Correctional Center (OCCC ), on motion of defense counsel, the Circuit Court ordered an examination of Torres's fitness to proceed to trial. On March 18, 2019, the Circuit Court found Torres unfit to proceed and suspended these criminal proceedings until further court order. The Judicial Determination of Unfitness to Proceed, Suspension of Proceedings and Order of Commitment to the Custody of the Director of Health (Unfitness Order ), states, inter alia :

A. The proceedings against [Torres] are suspended until further order of the Court.

B. During suspension of the proceedings:

1) [Torres] is committed to the custody of the Director of Health to be placed at the Hawai‘i State Hospital or an appropriate institution for detention, care, and treatment for so long as such unfitness shall endure.

2) [Torres's] commitment shall take effect upon the filing of this Order.

3) The person having present custody of [Torres], or if [Torres] is not in custody, then counsel for [Torres], shall forthwith make arrangements for such commitment. ...

....

C. [Torres] shall not be authorized to leave the institution in which he is placed without prior Court order.

(Emphasis added).

Following a series of fitness hearings and submissions by the court-appointed examiners, on December 11, 2019, the Circuit Court found Torres fit to proceed to trial and entered a Judicial Determination of Fitness to Proceed and Order (Fitness Order ). In the Fitness Order, the court confirmed Torres's pretrial status of incarceration at OCCC with bail set at $11,000.

A bench trial was conducted on February 20, 2020. The Circuit Court found Torres guilty of Promoting a Dangerous Drug in the Third Degree and not guilty of Park Closure. The court entered a Judgment of Acquittal as to the Park Closure charge and requested a pre-sentencing investigation and report (PSI ), which was submitted on May 14, 2020.

At sentencing on May 27, 2020, the Circuit Court heard arguments from the prosecution, defense, and Torres himself. In response to the court's inquiry as to whether the defense had any "additions or corrections" to the PSI, counsel raised the issue of pretrial credit for time served, noting deficient and/or a lack of certifications as to Torres's time in the custody of the Director of Health, as well as Torres's time detained at OCCC between his arrest and commitment to the Director of Health. The Circuit Court engaged in the following discussion with defense counsel regarding the period for which Torres was to receive credit for time served:

THE COURT: ... Mr. Torres was held in custody from that September 27, 2018 date.

MR. BETTENCOURT: Right.

THE COURT: Bail was set. He obviously was not able to post bail.

He came in for arraignment on this case on October 4th, 2018. He came into arraignment for both cases at this time and remained in custody with the Department of Public Safety until March 18, 2019, at which point the Circuit Court found Mr. Torres unfit to proceed and committed him to the custody of the Director of the Department of Health. And as Mr. Torres indicated, he eventually found himself in Kahi Mohala.

THE DEFENDANT: Right.

THE COURT: He remained in the custody of the Department of Health all the way up until December 11th of 2019, when he was found fit to proceed. The cases were reinstated and he was transferred back into the custody of the Department of Public Safety.

So Mr. Torres should have received credit from September 27, 2018 when the bench warrant was served up until March 18th, 2019 when he was found unfit to proceed. He should have also began receiving credit when the case was reinstated on December 11th, 2019, when the case was reset for trial, all the way up until today. That should be the proper accounting of credit for Mr. Torres.

....

MR. BETTENCOURT: Well, we object on constitutional grounds. There's no excuse for excluding the time in which he was in custody. If he had walked away from Kahi Mohala, he could have been charged with escape, because he was in custody.

....

MR: BETTENCOURT: Because if he's in custody for purposes of escape, he's in purpose -- in custody for purposes of being in -- confined.

THE COURT: Well, at minimum the dates that the court has indicated should be calculated for credit.

MR BETTENCOURT: Right.

THE COURT: Subject to any additional finding that the time that he was in the custody of the Department of Health may also be included as credit. I'll leave that for smarter judges to decide. But at the very minimum, by this court's calculation, Mr. Torres should have at least on the order of 11 to 12 months of credit.

....

THE COURT: ... and as Mr. Bettencourt indicated, depending on the constitutional analysis for the time with Department of Health, that might even be increased. But at a very minimum, those are the numbers --

MR. BETTENCOURT: I don't know of any statutory provision that excludes that time.

THE COURT: I suppose it would be the definition of custody, right?

But other than the dispute on the actual amount of of credit, Mr. Bettencourt.

MR. BETTENCOURT: Yeah.

(Emphasis added).

The Circuit Court sentenced Torres to serve an indeterminate term of three years imprisonment with credit for time served, referencing "the minimum of which the court has already outlined at the beginning of this sentencing hearing."² The following exchange ensued:

THE DEFENDANT: ... you're gonna give me for 20 months' credit already.

THE COURT: You will get at least the 11 to 12 months.

THE DEFENDANT: What? How come you're not gonna give -- credit me for the time in Kahi Mohala.

THE COURT: I don't know if the statute allows that. If the statute allows and you're eligible for that credit, you will get it. I just don't know -- I'm not saying that you don't get it.

THE DEFENDANT: Yeah.

THE COURT: I just don't know if you get that credit.

THE DEFENDANT: When do you think I'm gonna find out?

MR. BETTENCOURT: We may have to file a motion on that and raise it that way.

THE COURT: But for all the time that you were in at O.C.C.C., you get credit. There's no doubt about that in my mind.

THE DEFENDANT: Uh-huh.

THE COURT: I'm not sure about the time in Kahi Mohala.

....

THE DEFENDANT: ... So I still might have about -- about a year and a half more to go.

THE COURT: Something like -- it might -- it depends on what the Parole Board sets.

THE DEFENDANT: Yeah, but, you know, I -- yeah, I did the nine months. I did all the programs there.

THE COURT: Well, they may have you do it again. And I don't know exactly what the Paroling Board is gonna require.

(Emphasis added).

The Judgment reflects the three-year term and that Torres was "to receive credit for time served," but it does not specify whether that credit was to include Torres's commitment to the custody of the Director of Health.

On June 15, 2020, pursuant to Hawai‘i Rules of Penal Procedure (HRPP ) Rule 35(a), Torres filed a Motion for Correction of Illegal Sentence, for Reduction of Sentence, for a New Trial, or Alternatively, to Dismiss Felony Information as De Minimis ( HRPP Rule 35 Motion ), arguing, inter alia , that the court failed to properly apply the statutes governing credit for time served. The HRPP Rule 35 Motion requested, inter alia :

1. An Order of Resentencing, after requiring the Department of Public Safety to comply with H.R.S. § 706-671(1) by providing this Court with a documentation of all of time that Defendant TORRES was detained prior to sentencing in a "State or local correctional or other institution" prior to sentencing;

2. An Order of Resentencing pursuant to H.R.P.P. Rule 35(a), after

...