State v. Lewi ( 2022 )

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
30-SEP-2022
08:05 AM
Dkt. 59 SO
NO. CAAP-XX-XXXXXXX
(Consolidated with NO. CAAP-XX-XXXXXXX)
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
CAAP-XX-XXXXXXX
STATE OF HAWAI#I, Plaintiff-Appellee, v.
DESMOND LEWI, Defendant-Appellant
(CR. NO. 3PC081000483)
and
CAAP-XX-XXXXXXX
DESMOND J. LEWI, Petitioner-Appellant, v.
STATE OF HAWAI#I, Respondent-Appellee
(CASE NO. 3PR151000003)
APPEAL FROM THE CIRCUIT COURT OF THE THIRD CIRCUIT
SUMMARY DISPOSITION ORDER
(By: Hiraoka, Presiding Judge, Nakasone and McCullen, JJ.)
This is a consolidated appeal. Defendant/Petitioner-
Appellant Desmond J. Lewi1 appeals from (1) the "Order of
Resentencing" entered by the Circuit Court of the Third Circuit
on May 26, 2021, in case 3PC081000483 (the Criminal Prosecution);
and (2) the "Order of Dismissal of Petitioner's Amended HRPP
Rule 40 Petition Filed January 22, 2020[,] and Petitioner's
Supplemental Ground to Amended Petition Filed April 13, 2020, and
Denial of Release from Custody" entered by the circuit court on
1
The record indicates that Lewi's name is pronounced "LEV-ee."
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May 27, 2021, in case 3PR151000003 (the Post-Conviction
Proceeding).2 For the reasons explained below, we vacate both
orders and remand both cases for further proceedings.
On May 24, 2010, in the Criminal Prosecution, Lewi was
convicted of Manslaughter (Count 1), Carrying or Possessing a
Loaded Firearm on a Public Highway (Count 3), and Ownership or
Possession [of firearms or ammunition] Prohibited (Count 5). He
was sentenced to serve 20 years on Count 1, 10 years on Count 3,
and 5 years on Count 5. The sentences on Counts 1 and 3 were to
be served concurrently, and consecutively to the sentence on
Count 5, for a total of 25 years. The Hawai#i Paroling Authority
(HPA) determined that Lewi was a Level III offender and fixed his
minimum term of imprisonment at 25 years.
On August 14, 2015, Lewi filed a petition pursuant to
Hawai#i Rules of Penal Procedure (HRPP) Rule 40. He argued
(among other things) that "HPA acted arbitrarily and capriciously
in setting his level of punishment at Level III and in setting
his minimum terms at the same length as his maximum sentences[.]"
Lewi v. State, 145 Hawai#i 333, 339-40, 452 P.3d 330, 336-37
(2019). The circuit court dismissed Lewi's petition. Lewi
appealed. We affirmed. Lewi v. State, No. CAAP-XX-XXXXXXX, 2017
WL 2365286 (Haw. App. May 31, 2017) (SDO). Lewi petitioned for
certiorari. The supreme court accepted the petition. Lewi v.
State, SCWC-XX-XXXXXXX; 2017 WL 4997725, at *1 (Haw. Nov. 2,
2017).
The supreme court held that Lewi raised a colorable
claim that HPA acted arbitrarily and capriciously in maintaining
his level of punishment for the manslaughter count at Level III,
and announced a new rule: "HPA is required to set forth a written
justification or explanation (beyond simply an enumeration of any
or all of the broad criteria [from the HPA "Guidelines for
Establishing Minimum Terms of Imprisonment"] considered) when it
determines that the minimum term of imprisonment for the felony
2
The Honorable Peter K. Kubota entered both orders.
2
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offender is to be set at a Level II or Level III punishment."
Lewi, 145 Hawai#i at 348-49, 452 P.3d at 345-46.
However, the supreme court noted that HPA had held
another minimum term hearing in 2016 (while Lewi's Rule 40
petition was pending) and had set new minimum terms. Id. at 342,
452 P.3d at 339. Lewi remained classified as a Level III
offender. Rather than requiring that Lewi file another Rule 40
petition, the supreme court remanded the case to the circuit
court "for a hearing on whether the HPA acted arbitrarily and
capriciously in continuing to classify Lewi as a Level III
offender on his manslaughter conviction." Id. at 350, 452 P.3d
at 347.
Consistent with Chief Judge Nakamura's concurring and
dissenting opinion, Lewi, 2017 WL 2365286, at *3, the supreme
court stated that the partial transcript of Lewi's sentencing
hearing included in the record on appeal "raises a question as to
whether the circuit court adequately distinguished between the
need for a 25-year consecutive sentence versus the 20-year
sentence Lewi would have received under the presumption of
concurrent sentencing." Lewi, 145 Hawai#i at 351, 452 P.3d at
348. The supreme court instructed that on remand, Lewi could
"amend his Rule 40 petition to include the claim that the circuit
court did not adequately explain its decision to impose a
consecutive sentence" as required under State v. Hussein, 122
Hawai#i 495, 509-10, 229 P.3d 313, 327-28 (2010). Id.On remand, Lewi amended his Rule 40 petition as
permitted. The circuit court held three hearings. On
December 9, 2020, HPA's counsel informed the court that HPA "has
agreed to set aside the 2016 minimums and have a new hearing
. . . in February of [2021]." Lewi's counsel acknowledged the
new HPA hearing. The circuit court then stated, "Okay. And then
so that should take care of that first issue."
3
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On the consecutive sentencing issue, Lewi's counsel was
to order the full transcript of the original sentencing hearing.
The circuit court set a further hearing date of February 23,
2021.
On February 23, 2021, HPA's counsel informed the
circuit court that "because of COVID outbreaks at [Hālawa] and
OCCC [HPA] pushed back Mr. Lewi's minimum hearing. It's at this
time unscheduled. Sometime in the future." Lewi's counsel
stated: "I applaud the Department of Public Safety for on its own
giving Mr. Lewi a new minimum hearing." The circuit court
stated:
[A]t this point my understanding is [Lewi] will have another
[minimum] term hearing soon, as soon as the COVID issues get
cleared up. And at this point it is premature for the Court
to look at this, and outside the Court's jurisdiction.
Regarding the question whether or not the sentencing
Judge provided significant justification on the record for
imposing the consecutive sentences . . . there was no
specific findings that I could find to indicate the
rationale in finding a 25[-]year consecutive sentence term
versus a twenty[-]year concurrent term, which is what is the
presumption. In other words, there was no distinction why
25 versus 20.
And for that reason what I'm going to do, I'm going to
grant in part the [petition] and set this matter for
resentencing before the trial judge. And as -- I don't know
if all of you know, but [the trial judge in the Criminal
Prosecution] has retired so I'll set this before Judge
Kubota.[3]
(Emphasis added.) The record does not reflect entry of a written
order granting in part Lewi's amended Rule 40 petition.
The resentencing hearing took place on April 20, 2021.4
On May 26, 2021, the circuit court entered the Order of
Resentencing. Lewi was again sentenced to serve 20 years on
Count 1, 10 years on Count 3, and 5 years on Count 5; the
3
The Honorable Henry T. Nakamoto presided on December 9, 2020, and
on February 23, 2021.
4
The Honorable Peter K. Kubota presided over the resentencing
hearing.
4
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sentences on Counts 1 and 3 were to be served concurrently, and
consecutively to the sentence on Count 5.
The Order of Dismissal of the Post-Conviction
Proceeding was entered by the circuit court on May 27, 2021.
Although the circuit court noted that Lewi had been resentenced
(pursuant to the court's oral order), the Order of Dismissal did
not grant in part Lewi's request that he be resentenced. The
Order of Dismissal deemed the amended Rule 40 petition to be
moot. These appeals followed.
Lewi raises two points on appeal: (1) he was denied his
constitutional right to allocution during his resentencing
hearing; and (2) the circuit court erred by concluding that the
challenge to his minimum term was moot, and should have ruled
that he was a Level I or II offender.
(1) The resentencing hearing took place, and the Order
of Resentencing was entered in the Criminal Prosecution, after
the circuit court orally granted a portion of Lewi's amended
Rule 40 petition but before entry of an appropriate written order
in the Post-Conviction Proceeding. HRPP Rule 40 provides, in
relevant part:
(g) Disposition.
(1) IN FAVOR OF THE PETITIONER. If the court finds in
favor of the petitioner, it shall enter an appropriate order
with respect to the judgment or sentence in the former
proceeding . . . and such supplementary orders as to . . .
other matters as may be necessary or proper.
Conducting the resentencing hearing and entering the
Order of Resentencing was premature because the circuit court
never entered an HRPP Rule 40(g)(1) order despite finding that
the sentencing court did not adequately explain its decision to
impose a consecutive sentence as required under Hussein.
Moreover, the record indicates that Lewi was denied his
constitutional right to allocution during his resentencing
hearing. "Allocution is the defendant's right to speak before
sentence is imposed. The right of presentence allocution is an
important constitutional right guaranteed under the due process
5
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clause, article I, section 5, of the Constitution of the State of
Hawai#i." State v. Carlton, 146 Hawai#i 16, 24, 455 P.3d 356, 364
(2019) (cleaned up). Questions of constitutional law are
reviewed under the right/wrong standard. Id. at 22, 455 P.3d at
362.
Lewi argues that the circuit court "never informed or
asked Lewi about his right to allocution during the entire
resentencing hearing. Lewi was never provided the opportunity to
argue for a mitigation of his sentence, or to support or dispute
any of the factual bases for the sentencing arguments by
counsel." The transcript of the April 20, 2021 resentencing
hearing bears this out. The remedy is a remand for resentencing
before a different judge. Carlton, 146 Hawai#i at 28, 455 P.3d
at 368.
The State does not deny that Lewi was not afforded
allocution. The State argues that the resentencing hearing was
conducted under HRPP Rule 35 and that "a defendant in a motion to
reduce sentence proceeding brought pursuant to Rule 35, HRPP, has
no constitutional right of allocution[,]" citing State v.
Cattaneo, 150 Hawai#i 86, 497 P.3d 101 (2021). The State's
argument is without merit. Cattaneo concerned a motion for
reduction of sentence under HRPP Rule 35(b). The supreme court
held that "a motion under HRPP Rule 35(b) is neither a sentencing
nor a resentencing. It asks the court to change its mind; it is
essentially a plea for leniency." Id. at 90, 497 P.3d at 105
(cleaned up). It was in that context that the supreme court
stated:
The distinction between sentencing and a hearing on a
Rule 35(b) motion is also shown by their procedural
differences. Defendants don't need to be present at
hearings on motions to reduce a sentence. See HRPP
43(c)(3).[5] And, unlike at sentencing, they have no
constitutional right to allocute at those hearings.
5
HRPP Rule 43(c) provides, in relevant part:
Presence not required. A defendant need no be present
either physically or by video conference if: . . . (3) the
proceeding is a reduction of sentence under Rule 35.
6
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Id. (emphasis added).
By contrast, in this case the supreme court instructed
the circuit court to determine whether the sentencing court
explained its decision to impose a consecutive sentence as
required by Hussein. Lewi, 145 Hawai#i at 350-51, 452 P.3d at
347-48. On remand, after reviewing the transcript of the
sentencing hearing, the circuit court held that the sentencing
court had not explained its decision to impose a consecutive
sentence. Thus, Lewi's resentencing was conducted pursuant to
HRPP Rule 40, as provided for by HRPP Rule 35(a) ("A motion made
by a defendant to correct an illegal sentence more than 90 days
after the sentence is imposed shall be made pursuant to Rule 40
of these rules.") (emphasis added). Nowhere in Cattaneo did the
supreme court hold that a defendant need not be present at an
HRPP Rule 35(a) motion to correct an illegal sentence, or that a
defendant does not have a right of allocution during a
resentencing hearing conducted under HRPP Rule 35(a) or
Rule 40(a)(1)(iii).
We conclude that Lewi was deprived of his
constitutional right of allocution during his resentencing
hearing, which was conducted to correct an illegal sentence.6
(2) The circuit court held that the minimum term
setting issue was "outside the Court's jurisdiction" because HPA
was going to conduct another minimum term hearing; the circuit
court concluded that the minimum term setting issue was moot.
"Mootness is an issue of subject matter jurisdiction, and
therefore, is a question of law reviewed de novo." For Our Rts.
v. Ige, 151 Hawai#i 1, 5, 507 P.3d 531, 535 (App. 2022) (citation
omitted, cert. rejected, SCWC-XX-XXXXXXX, 2022 WL 2196755 (Haw.
June 20, 2022).
A case is moot if it has lost its character as a present,
live controversy of the kind that must exist if courts are
to avoid advisory opinions on abstract propositions of law.
The rule is one of the prudential rules of judicial
6
Allocution is also provided for by Hawaii Revised Statutes § 706-
604(1) (2014) and HRPP Rule 32(a).
7
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self-governance founded in concern about the proper — and
properly limited — role of the courts in a democratic
society. We have said the suit must remain alive throughout
the course of litigation to the moment of final appellate
disposition to escape the mootness bar.
Id. at 12, 507 P.3d at 542 (citation omitted).
The record in this case does not indicate that HPA
issued a minimum term order superseding the 2016 minimum term
order. Unless and until HPA conducts another minimum term
hearing and issues another minimum term order, the 2016 minimum
term order remains in effect. Thus, when the circuit court held
the February 23, 2021 hearing in the Post-Conviction Proceeding,
the minimum term setting issue was not moot.7 The circuit court
erred by failing to address "whether the HPA acted arbitrarily
and capriciously in continuing to classify Lewi as a Level III
offender on his manslaughter conviction" in the 2016 minimum term
order.8 Lewi, 145 Hawai#i at 350, 452 P.3d at 347.
Lewi also argues that the circuit court, rather than
HPA, should have set his level of punishment at I or II. He
offers no authority in support of his argument; it is contrary to
Hawaii Revised Statutes (HRS) § 353-62 (2015), which gives HPA
exclusive original jurisdiction over parole.
For the foregoing reasons:
(1) the Order of Resentencing entered by the circuit
court on May 26, 2021, is vacated, and the Criminal Prosecution
is remanded for resentencing before a different judge after the
circuit court has entered an order in the Post-Conviction
7
We need not consider Lewi's arguments concerning exceptions to the
mootness doctrine.
8
It appears that HPA conceded the issue by undertaking to set
another minimum term hearing; under those circumstances, the circuit court
should have complied with the mandate by entering an order requiring that HPA
conduct a new minimum term hearing. See Chun v. Bd. of Trs. of the Emps. Ret.
Sys. of Haw., 106 Hawai#i 416, 439, 106 P.3d 339, 362 (2005) ("[I]t is the
duty of the trial court, on remand, to comply strictly with the mandate of the
appellate court according to its true intent and meaning, as determined by the
directions given by the reviewing court, and . . . when acting under an
appellate court's mandate, an inferior court cannot vary it, or examine it for
any other purpose than execution; or give any other or further relief; or
intermeddle with it, further than to settle so much as has been remanded.")
(cleaned up).
8
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Proceeding granting that part of Lewi's amended Rule 40 petition;
and
(2) the Order of Dismissal entered by the circuit
court on May 27, 2021, is vacated and the Post-Conviction
Proceeding is remanded; on remand the circuit court should
(a) enter an order granting in part Lewi's amended Rule 40
petition so that a resentencing hearing can then be conducted in
the Criminal Prosecution by a different judge, and (b) order that
HPA conduct another minimum term hearing after Lewi is
resentenced, as required by HRS § 706-669.9
DATED: Honolulu, Hawai#i, September 30, 2022.
On the briefs:
/s/ Keith K. Hiraoka
Dwight C.H. Lum, Presiding Judge
for Defendant/Petitioner-
Appellant. /s/ Karen T. Nakasone
Associate Judge
Suzanna L. Tiapula,
Deputy Prosecuting Attorney, /s/ Sonja M.P. McCullen
for Plaintiff-Appellee State Associate Judge
of Hawai#i.
Lisa M. Itomura,
Deputy Attorney General,
for Respondent-Appellee State
of Hawai#i.
9
HRS § 706-669 (2014) provides, in relevant part:
(1) When a person has been sentenced to an indeterminate or
an extended term of imprisonment, the Hawaii paroling
authority shall, as soon as practicable but no later than
six months after commitment to the custody of the director
of the department of [public safety] hold a hearing, and on
the basis of the hearing make an order fixing the minimum
term of imprisonment to be served before the prisoner shall
become eligible for parole.
9