State v. Vellina

• Decision Date: 14 February 2005
• Docket Number: No. 26288.,26288.
• Citation: 106 P.3d 364,106 Haw. 441
• Parties: STATE of Hawai`i, Plaintiff-Appellee, v. Warren VELLINA, Jr., Defendant-Appellant.
• Court: Hawaii Supreme Court

106 P.3d 364

106 Haw. 441

STATE of Hawai`i, Plaintiff-Appellee, v. Warren VELLINA, Jr., Defendant-Appellant.

No. 26288.

Supreme Court of Hawai`i.

February 14, 2005.

Arleen Y. Watanabe, Deputy Prosecuting Attorney, on the briefs, for the plaintiff-appellee State of Hawai`i.

James S. Tabe, Deputy Public Defender, on the briefs, for the defendant-appellant Warren Vellina, Jr.

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

Opinion of the Court by LEVINSON, J.

The defendant-appellant Warren Vellina, Jr. appeals from the judgment of the circuit court of the second circuit, the Honorable Shackley F. Raffeto presiding, filed on November 19, 2003, convicting him of and sentencing him for the following offenses: (1) burglary in the first degree, in violation of Hawai`i Revised Statutes (HRS) § 708-810(1)(c) (1993);¹ (2) two counts of theft in the first degree, in violation of HRS § 708-830.5(1)(b) (1993);² and (3) theft in the second degree, in violation of HRS § 708-831(1)(b) (1993 & Supp.2003).³ On appeal, Vellina contends: (1) that the circuit court erred in imposing mandatory minimum terms of imprisonment, pursuant to HRS §§ 706-660.1(1)(c) and 706-660.1(3)(c) (1993),⁴ in connection with his convictions of the two counts of first-degree theft of a firearm, pursuant to HRS § 708-830.5(1)(b), as evidenced by (a) the statute's plain language, (b) the legislative history underlying HRS § 706-660.1, (c) an in pari materia reading of HRS §§ 706-660.1 and 708-830.5, and (d) the "rule of lenity";⁵ and (2) that the circuit court plainly erred by improperly sentencing him to a consecutive term of imprisonment based upon an unsubstantiated allegation of misconduct.

For the reasons discussed infra, we hold that the circuit court erred in sentencing Vellina to mandatory terms of imprisonment, pursuant to HRS § 706-660.1, in connection with his convictions of two counts of first-degree theft of a firearm. We further hold that the circuit court plainly erred in imposing a consecutive sentence based upon Vellina's alleged but uncharged misconduct.

I. BACKGROUND

On July 28, 2003, a Maui grand jury returned an indictment against Vellina charging him with the following offenses: (1) burglary in the first degree (Count II), in violation of Hawai`i Revised Statutes (HRS) § 708-810(1)(c), see supra note 1; (2) theft in the first degree (Counts III and IV), in violation of HRS § 708-830.5(1)(b), see supra note 2; and (3) theft in the second degree (Count V), in violation of HRS § 708-831(1)(b), see supra note 3.

On October 6, 2003, the State of Hawai`i [hereinafter, "the prosecution"] filed a motion for imposition of mandatory minimum terms of imprisonment. The prosecution sought a mandatory minimum term of imprisonment of five years as to Count III, pursuant to HRS § 706-660.1(1)(c),⁶ and a mandatory minimum term of imprisonment of ten years as to Count IV, pursuant to HRS § 706-660.1(3)(c).

On October 9, 2003, Vellina entered a plea of no contest to all four charges against him.⁷ On November 18, 2003, the circuit court conducted a hearing on the prosecution's motion for mandatory minimum terms of imprisonment and sentencing. Vellina objected to the prosecution's motion for mandatory minimum terms of imprisonment on the basis that it was required to show "whether he used or possessed [a rifle and semi-automatic rifle] during the commission of another crime[.]" After entertaining arguments from both parties, the circuit court granted the prosecution's motion and orally ruled as follows:

[T]he indictment in this case did specifically put him on notice that the use or possession of a firearm in this case, Count 3, was a rifle, and Count 4 was a semi-automatic rifle.

And, also, he knew it before he changed his plea, because the motion had in fact been filed and was pending at the time he changed his plea. And that fact was brought up at the time of his change of plea, and he was specifically put on notice that he was facing up to 70 years in extended terms of imprisonment.

The court finds that there is no need for an independent finding by the court concerning the rifle and the semi-automatic rifle. But in any case, if that was needed, I could make that and will make it based on the fact that he pleaded no contest to the indictment, which specifically alleges those types of weapons in Count[s] 3 and 4.

Now, Garringer[ v. State, 80 Hawai`i 327, 909 P.2d 1142 (1996),] held that the enhanced sentencing under [HRS §] 706-660[.1] was not applicable to accomplice liability. The court there appeared to read the statute rather narrowly. And the defense is making a similar argument, that the enhancement statute shouldn't apply where the gun itself was not used to commit — or was possessed for the purpose of committing the offense.

And I see the logic of the argument; however, I have to, I think, read the statute in its plain meaning, and it does state specifically that it applies where there is possession of a weapon in the commission of a felony.

So I don't think that I could extend that holding in Garringer to cover this situation, so I'm going to find that the statute does apply and grant the motion.

The prosecution then requested that the circuit court sentence Vellina to consecutive terms of imprisonment:

Mr. Vellina was sentenced six weeks ago for the rash of burglaries in the Waiehu terrace area. All the orange dots are all the houses that [Vellina] burglarized in the Waiehu Terrace are (indicating). Th[ere] the court did sentence [Vellina] to essentially a 20-year prison term, ten years consecutive to ten years on those matters.

. . . .

Now what the [prosecution] is seeking is a consecutive ten-year prison term to the 20-year prison term that you did impose back on September 23rd. I know the court has granted my motion for a mandatory minimum of ten years out of ten years, and that this would be a very strong sentence, giving this defendant now a 30-year prison term with a mandatory minimum of ten years.

. . . .

But more importantly, this burglary is different than the rash of burglaries in the Waiehu Terrace area for what [Vellina] stole this time. What [Vellina] stole this time, as the court knows, is two firearms, one being a very dangerous semi-automatic rifle.

And what [Vellina] did with those firearms is the reason he deserves a consecutive ten-year prison term. [Vellina] sold those firearms to a drug dealer for drugs. So now what we have is a drug dealer in this community armed with a semi-automatic rifle that this defendant stole.

THE COURT: The weapons were never recovered?

[Deputy Prosecuting Attorney (DPA)]: One weapon was recovered, Judge. The semi-automatic rifle was never recovered. The bolt-action rifle was recovered by the victim of the crime.

So then what you have here is police officers in this community, citizens in this community, living their lives, doing their jobs, knowing that there is one more gun out there in another drug dealer's hands, and that's because of [Vellina].

. . . .

[Vellina]:. . . . I was very scared, and I'm just asking you please not to run it consecutive. Run it concurrent to my prior sentences.

THE COURT: Stealing a semi-automatic rifle and selling it to a drug dealer is —

[Vellina]: I didn't sell it.

THE COURT: You traded it for drugs?

[Vellina]: No.

THE COURT: Well —

[Vellina]: Your honor, I[am] just looking at a lot of time right now, and I want to have a future out there with my family. I don't want to spend my life in prison. So please give me a chance. I'm asking.

THE COURT: All right. Thank you.

Well, I must say you've had lots of chances, and done a lot of damage in the community. Now, when I hear that you've — some drug dealer now has a semi-automatic — an illegal semi-automatic weapon that you stole and transferred to him, I mean, that's pretty damaging to the community. Do you realize that?

[Vellina]: Yes, I do.

(Emphases added.)

The circuit court sentenced Vellina to the following: (1) an indeterminate ten-year maximum term of imprisonment in connection with Count II; (2) an indeterminate ten-year maximum term of imprisonment, subject to a five-year mandatory minimum term, in connection with Count III; (3) an indeterminate ten-year maximum term of imprisonment, subject to a five-year mandatory minimum term, in connection with Count IV; and (4) an indeterminate five-year maximum term of imprisonment in connection with Count V. The circuit court ordered "Counts 3, 4 and 5 to run concurrently and consecutive to Count 2 for a total of twenty (20) years. Count 2 to run consecutive to the consecutive term imposed in Cr. Nos. 02-1-0171(2) and 02-1-0271(2) for a total of thirty (30) years."

On December 17, 2003, Vellina timely filed a notice of appeal. On December 10, 2004, the circuit court certified that no presentence investigation report was ever prepared in connection with the present matter.

II. STANDARDS OF REVIEW

A. Sentencing

[A] sentencing judge generally has broad discretion in imposing a sentence. State v. Gaylord, 78 Hawai`i 127, 143-44, 890 P.2d 1167, 1183-84 (1995); State v. Valera, 74 Haw. 424, 435, 848 P.2d 376, 381 . . . (1993). The applicable standard of review for sentencing or resentencing matters is whether the court committed plain and manifest abuse of discretion in its decision. Gaylord, 78 Hawai`i at 144, 890 P.2d at 1184; State v. Kumukau, 71 Haw. 218, 227-28, 787 P.2d 682, 687-88 (1990); State v. Murray [,] 63 Haw. 12, 25, 621 P.2d 334, 342-43 (1980); State v. Fry, 61 Haw. 226, 231, 602 P.2d 13, 16 (1979).

Keawe v. State, 79 Hawai`i 281, 284, 901 P.2d 481, 484 (1995). "[F]actors which indicate a plain and manifest abuse of discretion are arbitrary or capricious action by the judge and a rigid refusal to consider the defendant's contentions." Fry, 61 Haw. at 231, 602 P.2d at 17. And, "`[g]enerally, to constitute an abuse it must appear that the court clearly exceeded the bounds of reason or disregarded rules or principles of law or

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