State v. Waiau, 5968

CourtSupreme Court of Hawai'i
Citation588 P.2d 412,60 Haw. 93
Docket NumberNo. 5968,5968
PartiesSTATE of Hawaii, Plaintiff-Appellee, v. Clifford Kalani WAIAU, also known as Allen Waiau, Defendant-Appellant.
Decision Date13 December 1978

Syllabus by the Court

1. Participation in hearing by prosecutor as proponent of extended term sentence

in contravention of agreement not to request extended term upon which guilty plea was based, although at direction of trial court, constituted breach of plea agreement.

2. Breach of plea agreement by prosecutor resulting from participation in extended term sentencing hearing may be remedied by remand for resentencing by another judge.

Wayne D. Parsons, Deputy Public Defender, Honolulu (Marie N. Milks, Honolulu, Deputy Public Defender, with him on the briefs), for defendant-appellant.

James F. Nagle, Deputy Pros. Atty., City & County of Honolulu, Honolulu, for plaintiff-appellee.


KIDWELL, Justice.

This appeal is from a felony conviction and sentence based upon a negotiated guilty plea. By the plea bargain, the prosecuting attorney agreed not to request an extended term sentence under HRS § 706-661. Upon the instruction of the court, the prosecutor instituted proceedings for an extended term sentence, and appellant was sentenced to an extended term of twenty years of imprisonment rather than the ordinary term of ten years. Since the prosecuting attorney's participation in the sentencing proceeding was in contravention of the plea agreement, we remand for resentencing.


Appellant was indicted on two counts of robbery in the first degree, two counts of kidnapping in the first degree and one count of burglary in the first degree. Private counsel was appointed by the court to represent appellant, as an indigent, upon the request of the Public Defender. After a plea of not guilty, appellant changed his plea to one of guilty to a reduced charge of robbery in the second degree on the first count and an order of nolle prosequi of the other counts was entered. Appellant's written guilty plea recited his understanding that the prosecution would not request an extended term sentence and would stand silent at the sentencing unless specifically called upon by the judge to give a recommendation. This understanding was confirmed at the plea taking by the prosecuting attorney. The court interrogated appellant at the plea taking but made no reference to the possibility of extended term sentencing, asking only if appellant understood that he might be sentenced to ten years in prison or $10,000 fine or both. Sentencing was deferred for the preparation of a presentence report.

Subsequently, the prosecuting attorney filed a notice of hearing for imposing an extended term sentence pursuant to HRS §§ 706-661 and 706-662(1), to which was attached his affidavit to the effect that appellant is a persistent offender as defined in § 706-662(1) and a request that a hearing be held pursuant to HRS § 706-664. Appellant responded with a motion for specific performance of the plea bargain and for a change in the sentencing judge, which was heard together with the extended term sentencing proceeding. At this hearing the prosecuting attorney acknowledged that the commitment not to request an extended term sentence had been made and stated that he would stand on that commitment, to which the court responded that the extended term sentencing hearing was being held pursuant to the order of the court rather than the request of the prosecutor. Appellant then took the stand in support of his motion for specific performance of the plea bargain and testified that he would not have pleaded guilty had he been told that he could be sentenced for an extended term of twenty years. On cross-examination, appellant was asked whether he wanted "to take back" his guilty plea, to which appellant's counsel objected as not in issue, stating that he had advised appellant not to take back the plea. The objection was sustained and the question was not answered. The motion having been denied, the prosecuting attorney attempted to submit the extended term issue on the notice of hearing (referred to in the colloquy between the prosecuting attorney and the court as a motion) and the attached affidavit. The court advised the prosecuting attorney that "you better put some evidence on" and, no witness having been summoned, the hearing was continued.

Prior to resumption of the sentencing hearing, appellant's counsel moved for leave to withdraw as counsel upon the ground that he had wrongly advised appellant that he could not be sentenced to a term of more than ten years and that a conflict of interest had been created on the issue of counsel's competency. In denying this motion, the court stated that he saw no conflict and that the only decision on which counsel was required to advise was whether appellant wished to withdraw his guilty plea on the basis of his mistaken apprehension that he would face only a ten year sentence.

At the resumed sentencing hearing, the court found appellant to be a persistent offender who is a danger to the community and whose incarceration for an extended term is necessary for the protection of the public. A sentence of an extended term of twenty years was imposed. On this appeal, appellant presents only the question of the denial of his motion for specific performance of the plea bargain and for the change of the sentencing judge.


In State v. Gumienny, 58 Haw. 304, 568 P.2d 1194 (1977), we had the question whether a defendant should have been permitted to withdraw a guilty plea made pursuant to a plea bargain, where the prosecution had fulfilled its part of the bargain by moving for deferred acceptance of the guilty plea but the court denied the motion and accepted the plea. We held that the defendant's unilateral expectation that the motion would be granted did not entitle him to withdraw his plea, in light of conscientious efforts by the trial judge to make the defendant understand that he could not rely on such an expectation and the absence of any showing that the expectation was improperly induced. We were impelled to that conclusion by concern for preserving the independence of the trial judge from the plea bargaining process.

We expressed a similar concern in State v. Davis, Haw., 588 P.2d 409, filed this day, where the trial judge directed the prosecuting attorney to institute an extended term sentencing proceeding after a negotiated guilty plea. We rejected an argument that consideration of an extended term sentence is solely a matter of prosecutorial discretion, concluding that the policy of keeping the sentencing judge free from the plea bargaining process forbids empowering the prosecutor by a plea bargain to foreclose consideration of an extended term by the sentencing judge.

Neither Gumienny nor Davis, however, involved a breach of a plea bargain. In the present case the trial judge may well have retained full discretion to consider an extended term sentence and to direct the institution of proceedings for that purpose, despite his failure to advise appellant of that possibility when the guilty plea was accepted, as to which we need not express an opinion. 1 The prosecuting attorney may have been free from criticism in presenting the request that the court consider an extended term sentence and in presenting evidence in support of such a sentence, in view of the court's mandate. Nevertheless, in doing so the prosecuting attorney was in contravention of an express term of the plea bargain. The State argues, in its brief, that this departure...

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11 cases
  • State v. Miller, 28849.
    • United States
    • Supreme Court of Hawai'i
    • January 25, 2010
    ...breach affected the sentencing decision. See id. It is the breach in and of itself that is the injustice. See id.; see also State v. Waiau, 60 Haw. 93, 97, 588 P.2d 412, 415 (1978) (stating that "the interests of justice require that appellant have a means of escape from the position in whi......
  • State v. Pratt, SCWC–27897.
    • United States
    • Supreme Court of Hawai'i
    • May 11, 2012
    ...on our independent review of the record, that [the defendant's] constitutional right to testify was violated."); see also State v. Waiau, 60 Haw. 93, 97, 588 P.2d 412, 415 (1978) (stating that "the interests of justice require that appellant have a means of escape from the position in which......
  • 76 Hawai'i 408, State v. Adams
    • United States
    • Supreme Court of Hawai'i
    • August 29, 1994
    ...568 (1990) (citation omitted); see also State v. Howard, 110 N.J. 113, 122, 539 A.2d 1203, 1208 (1988). The State cites State v. Waiau, 60 Haw. 93, 588 P.2d 412 (1978), and State v. Anderson, 4 Haw.App. 102, 661 P.2d 716 (1983), for the proposition that the appropriate remedy, if any, is to......
  • State v. Whitehawk, 18293
    • United States
    • United States State Supreme Court of Idaho
    • May 23, 1990
    ...agreement as it was made between the parties and to remedy any breach of the agreement by either party. Id.; see also State v. Waiau, 60 Haw. 93, 588 P.2d 412 (1978) (concern expressed for "preserving the independence of the trial judge from the plea bargaining process"); People v. Santos, ......
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