State v. Canosa. ( 2023 )

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Electronically Filed
Supreme Court
SCWC-XX-XXXXXXX
17-JAN-2023
09:59 AM
Dkt. 15 OP
IN THE SUPREME COURT OF THE STATE OF HAWAIʻI
---o0o---
________________________________________________________________
STATE OF HAWAIʻI,
Respondent/Plaintiff-Appellee,
vs.
STANLEY CANOSA,
Petitioner/Defendant-Appellant.
________________________________________________________________
SCWC-XX-XXXXXXX
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-XX-XXXXXXX, CAAP-XX-XXXXXXX, CAAP-XX-XXXXXXX;
CR. NO. 1PC091001524)
JANUARY 17, 2023
RECKTENWALD, C.J., NAKAYAMA, McKENNA, WILSON, AND EDDINS, JJ.
OPINION OF THE COURT BY WILSON, J.
This case raises the issue of whether a sixteen-month
delay in sentencing deprived the defendant of due process, where
the delay in sentencing precluded the defendant from being
sentenced prior to the expiration of the ordinary maximum term.
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We also consider whether the delay in sentencing
rendered the defendant’s allocution constitutionally
inadequate.
For the reasons discussed below, we hold that in this
specific instance, the State caused an unreasonable delay in
sentencing which deprived the defendant of due process and a
sentencing proceeding that was fundamentally fair, in violation
of article 1, section 5, of the Constitution of the State of
Hawai‘i and the Fourteenth Amendment to the United States
Constitution.
We also hold that the State’s unreasonable delay in
sentencing deprived the defendant of the opportunity for
allocution, in violation of the due process clause under article
1, section 5, of the Constitution of the State of Hawai‘i. As
such, we need not reach the defendant’s additional points of
error.
Therefore, the Intermediate Court of Appeals’ (“ICA”)
judgment on appeal is vacated. The defendant is to be released
forthwith, and this case is remanded to the circuit court to
impose a sentence of time served, nunc pro tunc from the date of
release.
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I. BACKGROUND
A. Circuit Court Proceedings
1. Canosa I: The First Trial and First Appeal
On September 29, 2009, the State of Hawai‘i charged
Petitioner/Defendant-Appellant Stanley Canosa (“Canosa”) with
burglary in the first degree, in violation of Hawaiʻi Revised
Statutes (“HRS”) § 708-810(1)(c) (2014)(Count 1); sexual assault
in the first degree, in violation of HRS § 707-730(1)(a) (Supp.
2013) (Count 2); unauthorized entry in a dwelling, in violation
of HRS § 708-812.6 (Supp 2010) (Count 3); and two counts of
sexual assault in the third degree, in violation of HRS § 707-
732(1)(f) (Supp. 2013) (“Counts 4 and 5”). On May 27, 2011, a
jury in the Circuit Court of the First Circuit (“circuit court”)
found Canosa guilty of Count 1, Count 2, and Count 3, and
acquitted Canosa of Counts 4 and 5.1 On November 29, 2011, the
circuit court sentenced Canosa to extended terms of twenty years
imprisonment for Count 1, life with the possibility of parole
for Count 2, and ten years imprisonment for Count 3. The
circuit court imposed all terms to run concurrently with credit
for time served.
Canosa appealed to the ICA. State v. Canosa, No.
CAAP-XX-XXXXXXX, 2014 WL 503045 (Haw. App. Feb. 7, 2014) (mem.)
1 The Honorable Randal K.O. Lee presided.
3
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(“Canosa I”). Canosa argued on appeal that the Deputy
Prosecuting Attorney committed prosecutorial misconduct that
deprived Canosa of a fair trial. Id. at *4. The ICA held that
the State committed prosecutorial misconduct during closing
arguments, vacated the judgment, and remanded the case for a new
trial.2 Id. at *5-6.
2. Canosa II: The Second Trial and Second Appeal
Canosa’s second trial began on April 8, 2015.3 The
circuit court declared a mistrial on April 14, 2015 following
Canosa’s request for a new attorney. Trial commenced again on
March 30, 2016.4 The circuit court dismissed the sexual assault
charge (Count 2) after the jury deadlocked on that charge. The
jury found Canosa guilty on Count 1 (burglary in the first
degree) and Count 3 (unauthorized entry in a dwelling).
During the sentencing phase of the trial, the jury
made findings as to both Count 1 and Count 3 that the State had
proven beyond a reasonable doubt that: Canosa was a persistent
offender (in that he had previously been convicted of two or
more felonies committed at different times when he was 18 years
2 The ICA concluded that since a new trial was warranted in light
of the prosecutorial misconduct during closing arguments, it did not need to
reach Canosa’s assertion of other alleged incidents of prosecutorial
misconduct. Id. at *6.
3 The Honorable Dean E. Ochiai presided.
4 The Honorable Karen S.S. Ahn presided.
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of age or older); Canosa was a multiple offender (in that he was
being sentenced for two or more felonies); and extended
sentencing was necessary to protect the public.
The circuit court entered its judgment on June 27,
2016, and sentenced Canosa to extended terms of twenty years
imprisonment for Count 1, and ten years imprisonment for Count
3. The circuit court imposed those terms to run consecutively.
Canosa appealed to the Intermediate Court of Appeals.
State v. Canosa, No. CAAP-XX-XXXXXXX, 2018 WL 1889511 (Haw. App.
Apr. 20, 2018) (SDO) (“Canosa II”). On appeal, Canosa argued,
that the circuit court abused its discretion by imposing a new
sentence that was more severe following retrial in violation of
HRS § 706-609. Id. at *2. The ICA agreed, and found that “due
to the imposition of consecutive terms in Canosa’s second
sentence, the maximum possible imprisonment was increased from
twenty to thirty years. Therefore, Canosa’s second sentence was
more severe and violated HRS § 706-609[.]” Id. at *3.
The ICA vacated the June 27, 2016 judgment and
sentence and remanded for resentencing on April 20, 2018. Id.
at *4. The ICA issued its judgment on appeal on November 15,
2018 ordering the same. Canosa filed an application for writ of
certiorari, which this court rejected on January 18, 2019.
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On remand for resentencing, the circuit court held a
sentencing hearing on June 4, 2020.5 On the morning of June 4,
2020, Canosa filed a written objection to resentencing, and
during the hearing made oral objections on the basis that he did
not agree with the argument his counsel was making.
Canosa argued that he was prejudiced by the delay in
resentencing, both with respect to parole considerations, and
with respect to being deprived of a “fair opportunity to present
mitigation and/or allocution of [his] sentence.” Canosa also
argued that extended terms could not be imposed because the
ordinary maximum ten-year and five-year sentences had already
expired on September 22, 2019 for Count 1, and September 22,
2014 for count 3. In support of this argument, Canosa asserted
that “[t]he time still run. And before you was [sic] able to
sentence me, that time expired, the ordinary terms. And one
extended term is in essence extending the ordinary sentences
beyond the statutory terms. And once that expired, I mean, what
is there to extend?”
Further, Canosa argued that when the ICA vacated the
June 27, 2016 judgment and sentence, the ICA vacated the entire
sentence, and not just to the extent it imposed consecutive
terms.
5 The Honorable Karen T. Nakasone presided.
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The circuit court overruled Canosa’s objections as
follows:
THE COURT: Okay. So the Court’s ruling on the objections.
There was an objection. One of the objections defendant
raised is the delay. And there was a delay from the time
that the Supreme Court rejected certiorari from January
2019 to the time the sentencing -- we began to try to
schedule -- try to reschedule this resentencing. So you
know, Mr. Canosa, I can tell you that it’s unfortunate that
the delay occurred. But the fact that there was a delay in
having this resentencing -- and this is my ruling -- does
not mean that in any way that the Court cannot legally
resentence you or that the State -- there's any kind of
waiver by the State. And the Court’s ruling is that the
fact that there was a delay in coming to this resentencing
does not mean that there is an infirmity with the Court
proceeding with sentencing today.
THE DEFENDANT: What do you mean one infirmity?
THE COURT: I’m ruling, sir. Okay?
The Court retains jurisdiction, the power, the authority,
and the duty to resentence defendant in accordance with the
directive of the appellate court. So that is the ruling on
the delay objection.
There was objections made on consecutive sentencing. The
State is not asking for consecutive terms. I’m not going to
impose consecutive terms, so I’m not going to address those
objections. They are moot.
THE DEFENDANT: Your Honor -- (inaudible). Excuse me one
minute. I understand what you’re saying, but he not
arguing, you know, for me. That’s why I gotta speak on my
behalf.
THE COURT: Sir, I’ve read your objections. I let you talk
today briefly. I understand what you’re saying. I'm going
to rule. Okay?
THE DEFENDANT: How can I have one fair opportunity to
argue myself? He not arguing for me.
THE COURT: I will let you speak at resentencing. Okay?
I’m going to address the objections regarding imposition of
extended terms.
Defendant argued today and in his written pleading that the
extended terms cannot be imposed because the ordinary
maximum term already expired. And he argues that it’s
logically impossible to extend a sentence that is already
expired and does not exist.
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This Court interprets the remand as having vacated the
prior sentences and the ICA remanded it back here for
resentencing consistent with the appellate court order.
Defendant’s status is post conviction pending resentencing,
and the Court retains jurisdiction to resentence.
So the ICA’s order vacated the June 27, 26 sentence with an
order to resentence. So this Court -- my conclusion is
that the 2016 sentence is vacated. Defendant’s pending
sentencing. He is being held on existing trial custody
orders. He is receiving all jail credit he’s entitled to
on Counts 1 and 3.
The vacated sentence does not mean that the ordinary
sentence for Counts 1 and 2 was still running. And it
doesn’t mean that the ordinary sentence was running and
expired and can no longer exist. So the Court rejects that
argument that the Court can no longer sentence defendant to
extended term because the ordinary sentence has run.
This argument -- the Court’s ruling is that this argument
made by the defense is premised on the erroneous legal
assumption that the ordinary sentences are still in effect
and are running. And that’s not the case.
So for these reasons, the objections are rejected and
overruled. I’ve made my ruling.
(emphasis added).
The circuit court then sentenced Canosa to ten years
extended to twenty years for Count 1 and five years extended to
ten years for Count 3. The circuit court ruled that the terms
were to run concurrently, with credit for time served.
The circuit court entered its judgment resentencing
Canosa on June 4, 2020, and Canosa filed a timely notice of
appeal on July 6, 2020 initiating case number CAAP-XX-XXXXXXX.
On July 10, 2020, the circuit court entered an amended judgment
(“2020 Amended Judgment”), correcting clerical errors. Canosa
filed a timely notice of appeal to the 2020 Amended Judgment on
August 12, 2020, thus initiating case number CAAP-XX-XXXXXXX.
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3. Canosa III: Motion to Correct Illegal Sentence
and Third Appeal
On August 24, 2020, Canosa filed pro se6 a motion to
correct an illegal sentence pursuant to Hawaiʻi Rules of Penal
Procedure (“HRPP”) Rule 35(a). Canosa argued in his motion that
having completed serving the ordinary terms of imprisonment
statutorily prescribed by HRS § 706-660 (ten years for Count 1,
five years for Count 3) which had expired on September 22, 2019
before the resentencing court could impose extended sentences,
the extended sentences were in violation of Canosa’s right to
due process under article 1, section 5, of the Hawai‘i State
Constitution and the Fourteenth Amendment to the United States
Constitution. Canosa concluded that the court was unauthorized
to impose extended sentences once the ordinary terms of
imprisonment prescribed by HRS § 706-660 had expired, and
requested remedying the illegal sentence by declaring time
served nunc pro tunc with respect to Counts 1 and 3.
The circuit court issued an order denying Canosa’s
HRPP Rule 35(a) motion on October 21, 2020 (“Order Denying
Motion to Correct Illegal Sentence”). Canosa timely filed an
6 Canosa noted that he filed pro se “because after directing my
court-appointed counsel . . . to file a Rule 35(a) motion for correction of
illegal sentence, [counsel] has not kept me informed of whether or not such
motion was filed. Accordingly, I am proceeding pro se only to the extent of
making sure that this motion is filed within the 90 day time period . . . .
subsequently, I expect that [counsel] will assist in representing me at the
hearing on this motion.”
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appeal of the circuit court’s denial of his HRPP Rule 35(a)
motion, initiating case number CAAP-XX-XXXXXXX. The ICA
consolidated Canosa’s three appeals from his June 4, 2020
resentencing (CAAP-XX-XXXXXXX, CAAP-XX-XXXXXXX, and CAAP-20-
0000650) under CAAP-XX-XXXXXXX (“Canosa III”).
B. Intermediate Court of Appeals
1. Canosa’s Opening Brief
On appeal, Canosa presented the following questions:
(1) “Did the trial court abuse its discretion in re-sentencing
[Canosa] to an extended sentence after his underlying maximum
sentence had already expired?”7 and (2) “Did the trial court
abuse its discretion in denying [Canosa]’s Motion for
[C]orrection of Illegal Sentence?”
As to the circuit court’s abuse of discretion in re-
sentencing Canosa to an extended sentence after his underlying
maximum sentence had already expired, Canosa relied on State v.
March, 94 Hawai‘i 250, 255, 11 P.3d 1094, 1098 (2000) and State
v. Kahalewai, 71 Haw. 624, 626, 801 P.2d 558, 560 (1990) in
arguing that in this “case of first impression,” the circuit
court did not have the statutory authority to extend the
ordinary terms of imprisonment prescribed by HRS § 706-660
because they had already expired, constituting an illegal
7 Canosa defines “underlying maximum sentence” in a footnote as
“the maximum penalty prescribed by law for the underlying charged offenses.”
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sentence not authorized by statute that violated his right to
due process. Canosa further argued that “by operation of
serving and satisfying the ordinary terms of imprisonment
prescribed by HRS [§] 706-660 . . . before a legal sentence was
ever imposed,” it was “the court’s duty in rendering a legal
disposition of this case . . . to declare time served, [n]unc
pro tunc . . . because no other sentence could be imposed in
accordance with HRS [§] 706-660 and nor could any other sentence
of imprisonment be authorized by statute.”
Canosa next contested the circuit court’s ruling that
a delay does not impair the court’s jurisdiction, authority and
duty to resentence a defendant in accordance with the directive
of the appellate courts. To this point, Canosa asserted that
the court’s jurisdiction and duty to resentence Canosa ended
when the maximum sentences for each conviction were served on
September 22, 2014 and September 22, 2019 respectively.
Canosa then argued that from the time the ICA issued
its November 15, 2018 Judgment on Appeal ordering a remand for
sentencing, the State had a duty to act diligently and prudently
in completing resentencing by September 22, 2019 and failed to
do so. According to Canosa, “the State gave up its right to
pursue extended sentencing as [Canosa] had fully served the
maximum term of imprisonment for the underlying charges prior to
an extended sentence being sought to be imposed.” Canosa
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asserted that since there was no underlying sentence to extend
after September 22, 2019, the June 4, 2020 sentence was “an
egregious violation of Canosa’s right not to be punished twice
for the same offenses [sic] in accordance with the principles of
double jeopardy.”
As to the circuit court’s abuse of discretion in
denying Canosa’s HRPP Rule 35(a) motion for correction of
illegal sentence, Canosa again raised violation of due process
and double jeopardy claims, and relied on Ex parte Lange, 85
U.S. 163 (1873), for the proposition that because Canosa served
the underlying maximum penalty before being resentenced on June
4, 2020, a second judgment on the same verdict is void, and he
therefore must be discharged.
Canosa concluded by requesting that the ICA vacate his
sentence and order him immediately released after having fully
served a ten-year term prior to being resentenced on June 4,
2020.
2. The State’s Answering Brief
In answer, the State asserted that Canosa’s points of
error essentially alleged the same error—that the court abused
its discretion in imposing an extended sentence after his
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underlying maximum sentence as to both charges had expired.8
The State’s rebuttal cited Hussey v. Say and relied on law of
the case doctrine in concluding “[t]hat the circuit court did
not abuse its discretion in imposing an extended term is law of
the case and cannot be re-litigated.” Hussey v. Say, 139 Hawai‘i
181, 185, 384 P.3d 1282, 1286 (2016). The State supported this
finding with the following language from Canosa II: “[g]iven
that the jury made the required factual findings under HRS §
706-662, it was within the Circuit Court’s discretion to
sentence Canosa to extended terms of imprisonment.” Canosa II,
2018 WL 1889511, at *3. On this basis, the State contended that
when the ICA vacated the circuit court’s judgment in Canosa II,
it only did so “to the extent it imposes consecutive sentences
in violation of HRS § 706-609[,]” and that when it “remand[ed]
for resentencing consistent with this summary disposition
order[,]” the only portion of the judgment that was vacated was
the consecutive sentence, and therefore “the only task left for
the circuit court was to enter a judgment of conviction and
sentence without the consecutive sentence.” The State concluded
that “[b]ecause the portion of the judgment relating to Canosa’s
8 The State considers Canosa’s opening brief argument that the
“extended sentence was an abuse of discretion as the State did not prove that
[he] was a danger to the public” to be waived pursuant to Hawai‘i Rules of
Appellate Procedure (“HRAP”) Rule 28(b)(4) insofar as it was not a point of
error raised.
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underlying and extended sentences were not vacated[,]” Canosa’s
argument had no merit. The State requested that the ICA affirm
the 2020 Amended Judgment and Order Denying Motion to Correct
Illegal Sentence. Canosa did not file a reply brief.
3. The ICA’s Memorandum Opinion9
The ICA affirmed the 2020 Amended Judgment and the
Order Denying Motion to Correct Illegal Sentence, finding that
the circuit court properly exercised its authority to resentence
Canosa to extended terms of imprisonment in counts 1 and 3, with
each sentence to run concurrently. First, the ICA concluded
that the circuit court retained authority on remand in 2020 to
resentence Canosa to extended terms “regardless of whether the
time under an ordinary maximum sentence for his convictions
would have expired by the time of resentencing.” According to
the ICA, Canosa was never sentenced to “an ordinary maximum
sentence under HRS § 706-660 for Counts 1 and 3[;]” instead, his
sentences on Counts 1 and 3 “have always been for extended term
sentences, including under the 2016 Judgment.” The ICA, citing
State v. Keck, agreed with the circuit court’s reasoning that
when Canosa’s second sentence under the 2016 judgment was
vacated, “[h]is status, in essence, reverted to that of an
unsentenced felon.” State v. Keck, Nos. 29530, 29531, 2010 WL
9 The ICA held oral argument on April 20, 2022.
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4491240, at *1 (Haw. App. Nov. 10, 2010). The ICA further noted
Canosa’s failure to cite—and the ICA’s failure to find—any
authority supporting the proposition that “a defendant's
sentence automatically defaults to the statutory maximum term
for the convicted crime when the defendant's consecutive
extended sentences have been vacated and the case is remanded
for resentencing.”
Second, the ICA found Canosa’s double jeopardy
argument to be without merit. The ICA distinguished Canosa’s
case from Lange,10 and cited Jones v. Thomas for the proposition
that “the Double Jeopardy Clause prohibits punishment in excess
of that authorized by the legislature[.]". Jones v. Thomas, 491
U.S. 376, 383 (1989) (citing United States v. DiFrancesco, 449
U.S. 117, 139 (1980)). The ICA reasoned that since HRS § 706–
662 authorized extended sentencing for counts 1 and 3, and
because a jury made the necessary findings such that extended
sentences for counts 1 and 3 were proper, the circuit court’s
sentence was not in excess of statutory authority. On that
basis, and pursuant to the law of the case under Canosa II, the
ICA concluded that Canosa was not punished for the same crime
twice.
10 The ICA argued that unlike Canosa’s case, the statute at issue in
Lange authorized the imposition of only one of two alternative sentences, but
that the defendant in Lange was ultimately subjected to both.
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Third, the ICA rejected Canosa’s contention that the
plain language of HRS § 706-600 limited the circuit court’s
resentencing authority. Relying on State v. Haugen,11 the ICA
concluded that “it would be absurd for sentences to default to
the statutory maximum term while defendants await resentencing
upon successfully exercising their right to appeal, especially
when a jury makes the necessary findings that a defendant meets
the criteria for extended terms of imprisonment.” State v.
Haugen, 104 Hawai‘i 71, 77, 85 P.3d 178, 184 (2004).
Having concluded the circuit court did not err in
resentencing Canosa in 2020, the ICA thus concluded (without
further analysis) that there was no error when the circuit court
denied Canosa’s motion to correct his sentence.
Finally, the ICA determined that Canosa’s assertions
of plain error were raised for the first time at oral argument
and therefore waived pursuant to HRAP Rule 28(b)(4) and (7).
With respect to Canosa’s argument that the circuit court
committed plain error by resentencing him to extended sentences
without requiring the State to prove that he still remained a
danger to the public at the time of resentencing, the ICA
determined that Canosa “failed to raise this issue as a point of
11 The ICA cited to State v. Haugen, 104 Hawai‘i 71, 77, 85 P.3d 178,
184 (2004) which concluded that an absurdity would result if the court
applied a statute on sentencing for first-time drug offenders to a defendant
with a prior drug conviction in another state.
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error or provide any substantive argument, in violation of
[HRAP] Rule 28(b)(4) and (7)[.]”. The ICA then argued that
United States v. Booker, 543 U.S. 220 (2005) was inapposite to
Canosa’s assertions, concluding that Booker does not invalidate
Canosa’s sentence on the basis that four years passed between
the jury’s determinations for extended sentencing and Canosa’s
2020 resentencing.
Canosa's second argument that the ICA deemed waived
was that he was prejudiced by the State’s sixteen month delay in
his resentencing after certiorari was denied on January 18,
2019, which resulted in adverse impacts on parole and his
ability to obtain services while incarcerated (among other
assertions). The ICA deemed this argument waived for purposes
of this appeal, but without prejudice to Canosa raising it in a
HRPP Rule 40 petition, finding that (1) Canosa never argued this
claim before the circuit court, (2) there was no factual support
for this claim in the record, and (3) the State had no ability
to anticipate this claim being raised at oral argument.
The ICA affirmed the 2020 Amended Judgment and the
Order Denying Motion to Correct Illegal Sentence, while noting
that “Canosa may pursue his claim of prejudice due to the delay
in his 2020 resentencing through a HRPP Rule 40 petition.”
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C. Application for Writ of Certiorari
Canosa timely filed an application for writ of
certiorari on August 5, 2022. In his application, Canosa argues
that the ICA gravely erred in this “unique case of first
impression” by:
1. reasoning that because a [j]ury on June 22, 2016, made
the required factual findings under HRS [§] 706-662
(2014) that Petitioner is a persistent and multiple
offender and that extended terms of imprisonment was
necessary for the protection of the public, the
resentencing court was, on June 4, 2020, upon remand for
resentencing from Petitioner, authorized to resentence
him to extended terms of imprisonment and,
2. for using that reasoning to affirm the Amended Judgment
of conviction and sentence filed July 10[,] 2020, and
the Order Denying Defendant’s Motion to Correct Illegal
Sentence pursuant to Rule 35(a) of the Hawaii Rules of
Penal Procedure filed October 21, 2020 by the Circuit
Court of the First Circuit, and thereby constitutes
[sic] grave errors because it resulted in the violation
of Petitioner’s right to be free from the unlawful
restraint of his liberty, in violation of the Fourteenth
Amendment under the United States Constitution as he is
still being held in prison on an illegal sentence.
First, Canosa argues that the ICA erred by affirming
the circuit court’s use of the 2016 jury’s findings under HRS §
706-662 to impose extended terms of imprisonment beyond the
ordinary terms of imprisonment prescribed by HRS § 706-660 for
Counts 1 and 3. He argues that the circuit court no longer had
authority to “use the jury’s findings under HRS § 706-662 to
extend the ordinary terms of imprisonment” because “those
ordinary terms of imprisonment prescribed by HRS § 706-660 for
both his convictions [(ten years for Count 1, five years for
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Count 3)] were already expired before the resentencing court
could extend it beyond its statutorily prescribed range.”
Canosa further argues that “the ICA knew and/or should
have known” the following: (1) “that when a court imposes an
extended term of imprisonment[,] what the court extends from,
and beyond, is the ordinary terms of imprisonment (statutory
maximum penalty) prescribed by HRS [§] 706-660”; (2) “by the
time [Canosa] was resentenced on June 4, 2020, the ordinary
terms of imprisonment prescribed by HRS [§] 706-660 for both his
[b]urglary conviction (count 1) and his unauthorized entry in a
[d]welling conviction (count 3) had already expired on September
22, 2019, and September 22, 2014, respectively”; (3) “the
State’s and/or resentencing court’s unreasonable delay to comply
with the remand order for resentencing . . . had allowed the
ordinary terms of imprisonment prescribed by HRS [§] 706-660 to
expire”; (4) “during [Canosa]’s resentencing on June 4, 2020, he
argued that the extended terms cannot be imposed because the
ordinary maximum terms had already expired”; and (5) “[Canosa]’s
contention for [the ICA’s] review on appeal was that the circuit
court erred by extending the ordinary terms of imprisonment
prescribed by HRS [§] 706-660 for both his [b]urglary conviction
(count 1) and his unauthorized entry in a [d]welling conviction
(count 3) without being authorized by statute.”
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Canosa further contends that (1) “there [is] no
tolling period for the ordinary terms of imprisonment prescribed
by HRS [§] 706-660” and (2) “there is no language under HRS [§]
706-662 or any other statute that authorized the resentencing
court on June 4, 2020 to extend the already expired ordinary
terms of imprisonment prescribed under HRS § 706-660[.]”
Canosa also contests the ICA’s agreement with the
circuit court’s reasoning that when Canosa’s sentence was
vacated and remanded for sentencing Canosa’s status reverted to
that of an unsentenced felon. Here, Canosa repeats his
arguments that the ICA “knew and/or should have known” that once
the ordinary terms of imprisonment for counts 1 and 3 expired,
it was “impossible to extend” those terms beyond their
“statutorily prescribed range[s].” Canosa further contends that
the ICA “knew and/or should have known” that “the resentencing
court’s only duty and obligation during resentencing was to
declare time served, nunc pro tunc, because no other sentence
could be imposed in accordance with HRS § 706-600 (2014), which
states, “[n]o sentence shall be imposed otherwise than in
accordance with this chapter.”
Canosa concludes that the ICA therefore should have
reversed the order denying Canosa’s motion to correct illegal
sentence, and subsequently corrected his sentence to reflect
time served, nunc pro tunc, on the expiration dates of the
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ordinary terms of imprisonment prescribed by HRS § 706-660 for
counts 1 and 3, and asks this court “to correct his illegal
sentence”; he requests this court to “order his release from the
unlawful restraint of his liberty.”
The State did not file a response to the application.
Canosa’s application for writ of certiorari was accepted.
III. STANDARDS OF REVIEW
A. Sentencing
A sentencing judge generally has broad discretion in
imposing a sentence. The applicable standard of review for
sentencing or resentencing matters is whether the court
committed plain and manifest abuse of discretion in its
decision. Factors that indicate a plain and manifest abuse
of discretion are arbitrary or capricious actions by the
judge and a rigid refusal to consider the defendant’s
contentions. In general, to constitute an abuse it must
appear that the court clearly exceeded the bounds of reason
or disregarded rules or principles of law or practice to
the substantial detriment of a party litigant.
State v. Tauiliili, 96 Hawaiʻi 195, 198, 29 P.3d 914, 917 (2001)
(internal quotation marks, citations, and brackets omitted).
B. Motion to Correct Sentence
A circuit court's denial based on a conclusion of law,
of a defendant’s HRPP Rule 35 motion to correct illegal sentence
is reviewed de novo, under the right/wrong standard of review.
Questions of constitutional law and statutory interpretation are
reviewed under the same standard. State v. Kido, 109 Hawaiʻi
458, 461, 128 P.3d 340, 343 (2006).
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C. Constitutional Questions
“We review questions of constitutional law by
exercising our own independent constitutional judgment based on
the facts of the case.” State v. Phua, 135 Hawai‘i 504, 511-12,
353 P.3d 1046, 1053-54 (2015). Therefore, we review questions
of constitutional law under the right/wrong standard. Id.IV. DISCUSSION
Canosa argues that he was prejudiced by the State’s
sixteen-month delay in his sentencing after certiorari was
denied on January 18, 2019. The ICA deemed this argument waived
for purposes of this appeal, finding that (1) Canosa never
argued this claim before the circuit court, (2) there was no
factual support for this claim in the record, and (3) the State
had no ability to anticipate this claim being raised at oral
argument before the ICA. The ICA erred in its waiver analysis
and conclusion.
As discussed infra in section IV.A.3, the record
clearly reflects that Canosa raised his prejudice argument
before the circuit court on June 4, 2020, both in writing and
with oral argument. The State and the circuit court thus had
notice of Canosa’s prejudice claim. In addition, the record
does contain factual support for Canosa’s claim, as the Barker
analysis below makes clear. Canosa’s prejudice claim was not
waived. As the ICA erred on these points, the ICA also erred in
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affirming the circuit court’s 2020 Amended Judgment and the
Order Denying Motion to Correct Illegal Sentence.
For reasons set forth below, we find that the
unreasonable delay of Canosa’s sentencing deprived Canosa of due
process, and sentencing proceedings that were fundamentally
fair.
A. The government’s unreasonable delay of Canosa’s sentencing
deprived Canosa of due process and sentencing proceedings
which were fundamentally fair.
Canosa correctly contends that the sentencing in this
case has been delayed to the degree that he has been deprived of
his right to due process pursuant to article 1, section 5 of the
Hawai‘i Constitution and the Fourteenth Amendment to the United
States Constitution.
In Betterman v. Montana, 578 U.S. 437 (2016), the
Supreme Court explicated the due process rights and liberty
interests of convicted individuals with respect to delay in
sentencing proceedings:
[A]t the third phase of the criminal-justice process, i.e.,
between conviction and sentencing, the Constitution's
presumption-of-innocence-protective speedy trial right is
not engaged. That does not mean, however, that defendants
lack any protection against undue delay at this stage. The
primary safeguard comes from statutes and rules. The
federal rule on point directs the court to “impose sentence
without unnecessary delay.” Fed. Rule Crim. Proc. 32(b)(1)
.... Further, as at the prearrest stage, due process serves
as a backstop against exorbitant delay .... After
conviction, a defendant's due process right to liberty,
while diminished, is still present. He retains an interest
in a sentencing proceeding that is fundamentally fair.
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578 U.S. at 447–48 (emphasis added). Further, the court noted
that “[f]or inordinate delay in sentencing, although the Speedy
Trial Clause does not govern, a defendant may have other
recourse, including, in appropriate circumstances, tailored
relief under the Due Process Clauses of the Fifth and Fourteenth
Amendments.” Id. at 439 (emphasis added).
In her concurring opinion, Justice Sotomayor suggested
using the test the Court applies to violations of the Speedy
Trial Clause set out in Barker v. Wingo, 407 U.S. 514 (1972):
[I]t seems to me that the Barker factors capture many of
the concerns posed in the sentencing delay context and that
because the Barker test is flexible, it will allow courts
to take account of any differences between trial and
sentencing delays. The majority of the Circuits in fact
use the Barker test for that purpose. See United States v.
Sanders, 452 F.3d 572, 577 (C.A.6 2006) (collecting cases).
In the appropriate case, I would thus consider the correct
test for a Due Process Clause delayed sentencing challenge.
578 U.S. at 451 (Sotomayor, J., concurring) (internal
citation omitted)(emphasis added).
This court has long relied on the Barker factors for
analyzing violations of speedy trial rights. See State v. Lau,
78 Hawai‘i 54, 62, 890 P.2d 291, 299 (1995). Under
the Barker test, courts consider four factors: (1) the length of
the delay, (2) reasons for the delay, (3) the defendant’s
assertion of his right, and (4) prejudice to the defendant. Id.Justice Sotomayor notes that “[n]one of the four factors is
‘either necessary or sufficient,’ and no one factor has a
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‘talismanic qualit[y].’” Betterman, 578 U.S. at 451 (citing
Barker, 407 U.S. at 533).
We now adopt the Barker factors for analyzing
violations of due process in the delayed sentencing context.
1. Length of the delay
On April 20, 2018, the ICA vacated Canosa’s illegal
sentence and remanded for sentencing. On November 15, 2018, the
ICA issued its judgment on appeal ordering the same. Canosa
applied for a writ of certiorari, which this court rejected on
January 18, 2019. The length of delay from this court’s January
18, 2019 denial of certiorari until Canosa’s June 4, 2020
sentencing is sixteen months and seventeen days. The Betterman
court—faced with a fourteen-month delay in sentencing—found
that “a defendant’s due process right to liberty, while
diminished, is still present” and that “he retains an interest
in a sentencing proceeding that is fundamentally fair.” 578
U.S. at 447–48. In the speedy trial context, this court has
considered a delay of seven months sufficient to trigger an
inquiry into the other Barker factors. See State v. Almeida, 54
Haw. 443, 509 P.2d 549 (1973). Here, Canosa’s sentencing delay
of sixteen months and seventeen days is especially striking in
that it encompassed the expiration of the ordinary statutory
terms on September 22, 2019, thus depriving Canosa of a
proceeding on remand wherein he could present argument and
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allocution asking for an ordinary maximum term. On these facts,
the length of delay in Canosa’s sentencing is sufficient to
warrant an inquiry into the remaining Barker factors.
2. Reasons for the delay
Canosa contends that the State and/or the circuit
court caused an unreasonable delay in complying with the ICA’s
remand order for sentencing. The State admitted at oral
argument before this court12 that Canosa’s sentencing “slipped
through the cracks.” The State further conceded that it “looked
at the record” and that “there doesn’t seem to be an explanation
for why it happened.” The State went on to explain the process
for sentencing on remand, noting that “when a case is sent down
and remanded for resentencing it is typically the circuit court
that puts it on [the] calendar and sets it, or [The State] will
ask for a status for the case to be set.” During the June 4,
2020 sentencing hearing, the circuit court also acknowledged
that “there was a delay from the time that the Supreme Court
rejected certiorari from January 2019 to the time we began to
try to reschedule this resentencing[,]” and acknowledged to
Canosa “it's unfortunate that the delay occurred.”
This acknowledgement of shared responsibility across
the State and the circuit court for calendaring Canosa’s
12 Oral argument was held on October 18, 2022.
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sentencing on remand leads to the conclusion that unexplained
government inaction caused the delay in the instant case.
State v. Visintin summarizes how this court, in
accordance with the United States Supreme Court's decision
in Barker, analyzes whether the government’s reason(s) for delay
violate a defendant’s constitutional rights. See State v.
Visintin, 143 Hawaiʻi 143, 159, 426 P.3d 367, 383 (2018). When
the government’s delay deliberately attempts to hamper the
defense, that will be weighed heavily against the government.
Id. (internal citations omitted). When the reason behind the
government’s delay is more “neutral” such as “negligence or
overcrowded courts” this factor should be “weighted less heavily
but nevertheless should be considered since the ultimate
responsibility for such circumstances must rest with the
government rather than with the defendant.” Id. (quoting
Barker, 407 U.S. at 531). On that basis, this court has held
that when a government delay results from a more neutral reason,
the second Barker factor weighs in favor of the defendant. Id.See also Lau, 78 Hawai‘i at 63, 890 P.2d at 300 (determining
that the “more neutral” reason of court congestion “still tips
the scales in favor of [the defendants][.]”). Here, the State
concedes that Canosa’s sentencing “slipped through the cracks”
and that the record is devoid of any explanation as to why.
This reason for the government’s delay falls within the more
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neutral “negligence” category. Because the government was
negligent in causing the delay, and because the record reflects
no amount of the delay is attributable to Canosa, this factor
must be weighed against the State and in favor of Canosa.
3. Assertion of the right
Applying the Barker factors in the speedy trial
context, this court has held that the State, not the defendant,
has the duty to bring about the commencement of proceedings:
[A] defendant has no duty to bring himself [or herself] to trial;
the [S]tate has that duty.” State v. Wasson, 76 Hawai‘i 415, 420,
879 P.2d 520, 525 (alterations in original) (quoting Barker, 407
U.S. at 527). “Thus, a defendant does not waive his or her right
to a speedy trial by failing to demand one.” Id. (citing Barker,
407 U.S. at 526). However, the assertion of the right to a
speedy trial “is entitled to strong evidentiary weight in
determining whether the defendant is being deprived of the
right.” Id. (quoting Barker, 407 U.S. at 531-32, 92 S.Ct.
2182).
Visintin, 143 Hawai‘i at 160, 426 P.3d at 384 (internal citations
cleaned up).
We now apply these principals in analyzing Canosa’s
assertion of his rights with respect to his delay in sentencing.
The record reflects that Canosa asserted his right to
be sentenced without unreasonable delay in a written objection
to sentencing filed on the morning of June 4, 2020. Canosa
asserted that the State’s failure and/or unreasonable delay to
sentence him prior to the September 22, 2019 expiration of the
ordinary maximum term deprived him of his due process rights
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under article 1, section 5 of the Hawai‘i Constitution and the
Fourteenth Amendment to the United States Constitution.
Further, Canosa testified at the June 4, 2020
sentencing hearing that he wrote a letter to his attorney before
the September 2019 expiration of the ordinary terms of his
sentence, asking why he wasn’t being sentenced. Canosa offered
the letter to the court, which declined to consider it in the
following exchange:
THE DEFENDANT: And I could have had one chance to persuade
you; right? One fair opportunity to persuade you to give me
that, at least consider it. But now I cannot have one fair
opportunity to do that because that expired.
But you know what else? I wrote to my lawyer. I wrote to
my lawyer before September, before the ordinary terms
expired asking him, eh, how come I not getting sentenced?
I like present this so I can convince you to just give me
the 10 and the 5 and run ‘em concurrent. I get one letter
right here. You want to see it?
THE COURT: No, sir. It's not part of what I can consider
today. Okay?
In addition to this court’s recognition that it is the
State’s duty to bring a defendant to trial, and that a defendant
has no duty to demand one, this court has also recognized that a
defendant’s failure to assert speedy trial rights shall not
weigh against them where “there appears to have been no
conventional forum in which [defendant] could have asserted the
right[.]” Visintin, 143 Hawai‘i at 161, 426 P.3d at 385.
In Visintin, this court recognized that for the period
of seven months during which time the defendant’s status was
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post-arrest and preindictment, there “[did] not appear to have
been any standard legal proceeding in which Visintin could have
demanded a speedy trial.” Id. Here, as in Visintin, there does
not appear to have been any standard legal proceeding in the
record during the sixteen months and seventeen days leading up
to the June 4, 2020 sentencing where Canosa could have asserted
his right to be sentenced without unreasonable delay.
Additionally, it was reasonable for Canosa to presume that there
would be such a proceeding, at least in the form of a sentencing
hearing, prior to the September 22, 2019 expiration of the
ordinary maximum sentence that he was eligible to receive.13 The
State failed to provide one. As such, the June 4, 2020
proceeding was the first conventional forum in which Canosa
could assert his rights since this court’s denial of certiorari
on January 18, 2019. A closer look at Canosa’s remand timeline
proves useful in analyzing Canosa’s opportunity to assert his
rights to be sentenced without undue delay.
HRPP Rule 32(a) provides that “[a]fter adjudication of
guilt, sentence shall be imposed without unreasonable delay.”
Canosa was therefore entitled to the reasonable presumption that
when his illegal sentence was vacated and remanded on April 20,
13 Because we conclude the State’s unreasonable delay in sentencing
deprived Canosa of due process, we need not reach Canosa’s remaining points
of error, including Canosa’s claims with respect to the expiration of the
ordinary terms.
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2018, he would have the opportunity to be sentenced before the
September 22, 2019 expiration of his ordinary maximum term
(approximately seventeen months later). It is also reasonable
that this court’s denial of certiorari on January 18, 2019 would
only strengthen Canosa’s presumption that he would be sentenced
prior to September 22, 2019, and that he would be afforded a
proceeding and an allocution prior to that date, during which
time he could argue for an ordinary maximum term. As a
convicted felon awaiting sentencing who had exhausted his
appeals, no other proceeding would be reasonably foreseeable.
In this respect, Canosa did not have a need to assert his right
to be sentenced without unreasonable delay prior to September
22, 2019. As such, it would be error to weigh Canosa’s failure
to assert his right to be sentenced against him where there was
(a) no conventional forum in which Canosa could do so, and (b)
prior to September 22, 2019, no apparent basis for Canosa to do
so.
On these grounds, and in accordance with Visintin,
Canosa did assert his rights on June 4, 2020, and any failure to
assert his right to be sentenced prior to June 4, 2020 shall not
weigh against him.
We now turn to the State’s argument that Canosa’s
sentencing delay should not be considered by this court as an
actual or appearance of injustice because Canosa’s counsel
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stated before the ICA that counsel did not need to bring
attention to the sentencing delay for strategic reasons. With
respect to counsel’s statement, this alone is not dispositive in
resolving this factor against Canosa. First, it was the State’s
duty, and not Canosa’s, to ensure Canosa was sentenced without
unreasonable delay. Second, Canosa’s testimony regarding his
letter to counsel, along with Canosa’s offering of the letter to
the court, evinces Canosa’s desire to assert his rights with
respect to being sentenced prior to the expiration of the
ordinary maximum terms. Third, the transcript from the June 4,
2020 sentencing hearing makes clear that Canosa was in strong
disagreement with his counsel’s strategy and arguments, and that
Canosa explicitly told the court his counsel was not arguing for
him during that proceeding:
THE DEFENDANT: Your Honor -- (inaudible). Excuse me one
minute. I understand what you're saying, but he not
arguing, you know, for me. That's why I gotta speak on my
behalf.
THE COURT: Sir, I've read your objections. I let you talk
today briefly. I understand what you're saying. I'm going
to rule. Okay?
THE DEFENDANT: How can I have one fair opportunity to
argue myself? He not arguing for me.
Canosa’s repeated on-the-record rejection of and
departure from his counsel’s arguments and strategy has
relevance when determining to what extent counsel’s strategy
remark should weigh against Canosa in resolving this factor. In
this regard, the weight to be given counsel’s strategy statement
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is less than perhaps it otherwise would be, though it does place
a thumb on the scale for the government.
We now turn to the balancing of this factor, and begin
with summarizing the issues that favor each party.
The issues that favor Canosa are: (1) Canosa asserted
his due process rights to be sentenced without unreasonable
delay in his written objection to sentencing filed on June 4,
2020, which was the first standard legal proceeding afforded to
Canosa since this court’s January 18, 2019 denial of certiorari;
(2) Canosa’s time on remand awaiting sentencing appears to have
lacked any other standard legal proceeding through which Canosa
could have asserted his right to be sentenced without
unreasonable delay; (3) Canosa had no duty to demand he be
sentenced; (4) the State did have a duty to sentence Canosa
without unreasonable delay; and (5) Canosa’s testimony about his
letter to counsel, which he offered to the court for
consideration, evinces his intent to be sentenced prior to
September 22, 2019.
For all the above reasons, the third Barker factor
would tip squarely in Canosa’s favor if not for counsel’s
strategy comment. This court finds that counsel’s strategy
comment cannot be imputed to Canosa, who demonstratively
distanced himself from counsel’s arguments during the June 4,
2020 sentencing hearing and pleaded with the court to consider
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his prior correspondence with counsel seeking a timely
sentencing. Compare Barker, 407 U.S. at 535 (finding that the
record strongly suggested the defendant “hoped to take advantage
of the delay [in trial] in which he had acquiesced and thereby
obtain a dismissal of the charges” but that the defendant
“definitely did not want to be tried”). Because Canosa’s
assertion of his rights on June 4, 2020 is entitled to strong
evidentiary weight, and in view of all the other issues weighing
in Canosa’s favor, the third Barker factor—the timeliness of
Canosa’s assertion of undue delay—weighs in favor of Canosa.
4. Prejudice to the defendant
We now turn to the fourth Barker factor to determine
whether the delay in sentencing prejudiced Canosa. In Barker,
the United States Supreme Court analyzed prejudice by placing a
premium on whether the delay impaired the defense:
Prejudice, of course, should be assessed in the light of
the interests of defendants which the speedy trial right
was designed to protect. This Court has identified three
such interests: (i) to prevent oppressive pretrial
incarceration; (ii) to minimize anxiety and concern of the
accused; and (iii) to limit the possibility that the
defense will be impaired. Of these, the most serious is the
last, because the inability of a defendant adequately to
prepare his case skews the fairness of the entire system.
Barker, 407 U.S. at 532 (footnote omitted)(emphasis added).
Given the seriousness of Canosa’s liberty interest at
stake, we begin with analysis of the third interest enumerated
in Barker.
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Canosa contends that the government’s undue delay in
sentencing prejudiced him with respect to parole considerations,
and deprived him of his constitutional right to allocution.
With respect to parole considerations, Canosa argues that the
unreasonable delay in sentencing prejudiced him by delaying his
ability to commence mandatory minimum term proceedings with the
Hawaiʻi Paroling Authority (“HPA”), which in turn impaired his
ability to access rehabilitative programming, and extended the
time he would be ineligible for rehabilitative services.
Canosa’s argument has merit. It is axiomatic that an undue
delay in sentencing necessitates a corresponding undue delay in
commencing proceedings with the HPA. This court agrees that the
State’s delay in sentencing Canosa effected a corresponding
delay in Canosa’s proceedings with the HPA, which substantially
prejudiced Canosa by impairing his ability to obtain a mandatory
minimum term and commence rehabilitative services.
With respect to allocution, a convicted defendant is
guaranteed the right of allocution pursuant to the due process
clause, article 1, section 5, of the Constitution of the State
of Hawai‘i, and as enshrined in HRPP Rule 32(a) and HRS § 706-
604(1).14 See State v. Carlton, 146 Hawai‘i, 16, 25, 455 P.3d
14 See Carlton, 146 Hawai‘i at 25, 455 P.3d at 365 (“It is the duty
of the trial court to directly address the defendant and ensure the
(continued . . .)
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356, 365 (2019). This court has held that in order for the
right of allocution to be meaningful, a defendant must be
afforded an opportunity to exercise the right at a meaningful
time and in a meaningful manner, as follows:
As stated, the right of presentence allocution is an
important constitutional right guaranteed under the due
process clause of the Hawai‘i Constitution. State v.
Hernandez, 143 Hawai‘i 501, 509, 431 P.3d 1274, 1282 (2018).
We have observed that “procedural due process requires that
a person have an ‘opportunity to be heard at a meaningful
time and in a meaningful manner.’” In re Application of
Maui Elec. Co., 141 Hawai‘i 249, 269, 408 P.3d 1, 21 (2017)
(quoting Freitas v. Admin. Dir. of Courts, 108 Hawai‘i 31,
44, 116 P.3d 673, 686 (2005)). As a due process right, a
defendant's right of allocution is violated if the court
fails to afford the defendant an opportunity to exercise
the right at a meaningful time and in a meaningful
manner. See, e.g., State v. Carvalho, 90 Hawai‘i 280, 286,
978 P.2d 718, 724 (1999) (a sentencing court must afford a
defendant the right of presentence allocution
“before ruling on the applicability of the young adult
defendants statute”). In order to be meaningful, the
opportunity for allocution must be reasonably calculated to
achieve its purposes of providing the defendant with an
opportunity to plead for mitigation, contest the factual
bases for sentencing, and acknowledge wrongdoing. See State
v. Chow, 77 Hawai‘i 241, 250, 883 P.2d 663, 672 (App. 1994).
Carlton, 146 Hawai‘i at 25–26, 455 P.3d at 365–66. (internal
citations cleaned up).
(. . . continued)
defendant's right of allocution is upheld. See State v. Schaefer, 117 Hawai‘i
490, 498, 184 P.3d 805, 813 (App. 2008) (“We know of no effective or adequate
manner in which a defendant's right of presentence allocution may be
constitutionally realized than to affirmatively require that the trial court
make direct inquiry of the defendant's wish to address the court before
sentence is imposed.” (quoting Chow, 77 Hawai‘i at 247, 883 P.2d at 669)).
This duty is also imposed on the trial court by the language of HRS § 706-
604(1), which, as noted above, provides that “the court shall afford a fair
opportunity to the defendant to be heard on the issue of the defendant's
disposition.” (Emphasis added.) HRPP Rule 32(a) uses similar mandatory
language, instructing that “before suspending or imposing sentence, the court
shall address the defendant personally.”)(emphasis in original).
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Here, a review of the record in the instant case makes
clear that Canosa was deprived of his constitutional right to
allocution at a meaningful time and in a meaningful manner by
the State’s failure to sentence Canosa prior to the expiration
of the ordinary terms.
As discussed herein under the third Barker factor,
Canosa was entitled to the reasonable presumption that when his
illegal sentence was vacated and remanded on April 20, 2018, he
would be resentenced before the September 22, 2019 expiration of
his ordinary maximum term (approximately seventeen months
later). The alternative scenario makes the reasonability of
this presumption plainly evident: should the State fail to
impose sentence by that time, it would create the unusual
situation whereby a sentencing court, empowered to use its
discretion to impose an ordinary maximum term, would find that
the defendant had already been materially detained beyond it.
Such a circumstance may deprive the defendant’s sentencing
proceedings of the appearance of justice, where a sentencing
court faced with such a dilemma may be perceived as having been
constrained by these facts to impose extended terms, or—even
more unjust—actually doing so. Such circumstances may also
suggest that the only way to preserve the appearance of justice
under these facts would be to impose the ordinary maximum term
and acknowledge the State’s error of over-detention. This too
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is inadequate, as the court may also feel constrained in so
doing, and desire to impose extended terms but dare not for
concern with respect to the optics of injustice.
For these reasons and more, the instant case raises
this court’s concern that Canosa has not received the appearance
of justice, and was deprived of sentencing proceedings that were
fundamentally fair.
The State had nine months from the denial of
certiorari, and seventeen months from the ICA’s judgment on
appeal, to sentence Canosa prior to the expiration of his
ordinary terms. That the government failed to do so because of
neglect brings the unreasonable nature of Canosa’s delay in
sentencing into sharp relief.
This unreasonable delay in sentencing Canosa
prejudiced Canosa and deprived him of his right to allocution
and argument for receiving an ordinary term before it expired.
Canosa (1) had served nearly ten years of imprisonment; (2) was
on remand awaiting sentencing following the vacatur of his
illegal sentence, with a new opportunity to be sentenced to an
ordinary maximum term; and (3) faced the prospect of an
additional decade of imprisonment should he be unable to
persuade the resentencing court to impose the ordinary term.
His right of allocution was an opportunity to marshal resources
to prepare for an effective allocution aimed at protecting his
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serious liberty interest in the decade that hung in the balance.
Without any notice, and without any justification, the State
impaired Canosa’s defense by allowing the expiration of Canosa’s
ordinary maximum term to elapse prior to sentencing.
Thus, the State’s failure to provide Canosa the
opportunity for allocution prior to the expiration of the
ordinary term is evidence of the State’s failure to provide
allocution in a “meaningful time” and a “meaningful manner.”
Canosa’s right to allocution was constitutionally impaired,
satisfying the third and most critical prong of this prejudice
factor. The weight of this finding renders analysis of the
other two prongs, oppressive incarceration and anxiety,
unnecessary.
The record plainly demonstrates that the State’s undue
delay in sentencing prejudiced Canosa with respect to parole
considerations, and deprived him of his constitutional right to
allocution.
5. Balance of the factors
Canosa has been subject to a sentencing delay of
sixteen months and seventeen days that deprived him of his right
to allocution and a sentencing proceeding that was fundamentally
fair. The government was negligent in allowing Canosa’s
sentencing to “slip through the cracks,” and while this is a
more neutral reason than an intentional delay, it still weighs
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in Canosa’s favor. Canosa asserted his rights to be sentenced
without unreasonable delay, and even if we were to find that
Canosa bears some responsibility for the situation in that his
counsel stayed silent and failed to request a timely sentencing
prior to June 4, 2020, the facts remain that (1) Canosa has no
obligation to ask to be sentenced, and (2) the State failed to
fulfill its duty to sentence Canosa in a timely manner.
Further, the prejudice here is truly significant and materially
impaired Canosa’s defense, as Canosa (1) was unable to commence
proceedings with the HPA and remained ineligible for
rehabilitative services, and (2) was not afforded the
opportunity for allocution in a meaningful time, and in a
meaningful manner, where an additional decade of imprisonment
was at stake.
We conclude that in light of the reasons for the delay
and the prejudice established by Canosa, and considering all the
circumstances, the delay in Canosa’s resentencing violated the
due process clause under article 1, section 5 of the Hawai‘i
Constitution and the Fourteenth Amendment to the United States
Constitution. In so finding, we do not need to reach Canosa’s
remaining points of error.
We highlight the narrowness of this holding. This is
an unusual case where the chronology and facts compel the
conclusion that Canosa’s rights were violated for the reasons
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set forth herein. This court’s finding that Canosa’s due
process rights were violated by the unreasonable delay in
sentencing constitutes the third instance of government error in
the Canosa trilogy: Canosa I was vacated and remanded for
retrial on prosecutorial misconduct grounds; Canosa II vacated
an illegally severe sentence and remanded for sentencing; and
Canosa III finds Canosa was deprived of due process with respect
to unreasonable delay in sentencing, as well as with respect to
allocution rights.
6. Remedy for the violation
There being a clear due process violation with respect
to defendant’s sentencing, pursuant to this court’s authority
under Hawai‘i Revised Statutes § 602-5(a)(6)(2016) to “take such
other steps as may be necessary . . . for the promotion of
justice in matters pending before it,” the Petitioner is to be
released from State custody forthwith, and the remainder of his
sentence is vacated.
V. CONCLUSION
For the foregoing reasons, the ICA’s June 6, 2022
Judgment on Appeal is vacated. Petitioner is to be released
from State custody forthwith. The case is remanded to the
circuit court to enter an order (1) vacating its Order Denying
Defendant’s HRPP Rule 35(a) Motion to Correct Illegal Sentence
and (2) amending its July 10, 2020 Amended Judgment of
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Conviction and Sentence to reflect time served, nunc pro tunc
from the date of Petitioner’s release.
Shawn A. Luiz, /s/ Mark E. Recktenwald
for Petitioner
/s/ Paula A. Nakayama
Stephen K. Tsushima,
for Respondent /s/ Sabrina S. McKenna
/s/ Michael D. Wilson
/s/ Todd W. Eddins
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