State v. Penque ( 2021 )

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
23-NOV-2021
07:50 AM
Dkt. 84 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
STATE OF HAWAI#I, Plaintiff-Appellee,
v.
ANGELO DAVID PENQUE ALSO KNOWN AS JUSTIN DWAYNE SHEPERD,
Defendant-Appellant
APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT
(CASE NOS. 2CPC-XX-XXXXXXX(2), 2CPC-XX-XXXXXXX(2) and
2CPC-XX-XXXXXXX(2))
SUMMARY DISPOSITION ORDER
(By: Leonard, Presiding Judge, Wadsworth and Nakasone, JJ.)
Defendant-Appellant Angelo David Penque aka Justin
Wayne Sheperd (Penque) appeals from the June 5, 2020 Amended
Judgment; Conviction and Sentence; Notice of Entry (Amended
Judgment) filed by the Circuit Court of the Second Circuit
(Circuit Court).1 Penque pleaded no contest in accordance with a
plea agreement (Plea Agreement) with Plaintiff-Appellee State of
Hawai#i (State), and the Circuit Court convicted him in 2CPC-18-
0000877 of Ownership or Possession Prohibited (Possession
Prohibited) (Count 1), in violation of Hawaii Revised Statutes
(HRS) § 134-7(b), and Reckless Endangering in the First Degree
(Reckless Endangering First) (Count 5), in violation of HRS §
1
The Honorable Peter T. Cahill presided
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707-713(1); and in 2CPC-XX-XXXXXXX of Bail Jumping in the First
Degree (Bail Jumping First)(Count 1), in violation of HRS § 710-
1024.
On appeal, Penque contends that: (1) the Circuit Court
abused its discretion in sentencing Penque to open terms of
imprisonment rather than to terms of probation; and (2) Penque is
entitled to withdraw his no contest plea because the State
breached the Plea Agreement.
Upon careful review of the record and the briefs
submitted by the parties, and having given due consideration to
the arguments advanced and the issues raised, we resolve Penque's
points of error as follows, and vacate and remand.
We address Penque's second contention as it is
dispositive. Penque contends the Plea Agreement required him
only to plead no contest, and that despite fulfilling his end of
the bargain, the State breached the agreement by recommending
open terms at sentencing. The State argues, inter alia, that
Penque breached the Plea Agreement by failing to report for his
pre-sentence interview appointment, failing to appear at
sentencing, and allegedly testing "dirty" for illegal substances
while on supervised release; thus, Penque could have reasonably
expected the State to argue for open terms of imprisonment as a
consequence of his breach.
Although Penque failed to raise his claim of a breached
plea agreement before the Circuit Court, a failure to raise the
issue at sentencing does not preclude appellate review under the
plain error doctrine. State v. Miller, 122 Hawai#i 92, 101, 223
P.3d 157, 166 (2010). "[B]reaches of plea agreements provide
appropriate bases for appellate review under the plain error
standard, inasmuch as a breach implicates due process and the
interests of justice." Id. (internal quotation marks and
citations omitted).
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Here, it is undisputed that the terms of the Plea
Agreement were initially reduced to writing in paragraph 8 of the
No Contest Plea form, which provides as follows:
8. I have not been promised any kind of deal or favor or
leniency by anyone for my plea, except that I have
been told that the government has agreed as follows:
In Case # 2CPC-XX-XXXXXXX(2) [sic], Defendant will
plead no contest to the single count of [Bail Jumping
First] Defendant [sic]. In Case # 2CPC-19-000877(2)
[sic], Defendant will plead no contest to Count One
[Possession Prohibited] and Count Five [Reckless
Endangering First.] State agrees to dismiss Counts
Two thru [sic] Four and Counts Six thru [sic] Nine.
The State will also dismiss Case Nos., 2CPC-19-000744
[sic] and 2CPC-19-000745 [sic]. The State will
recommend probation of four years with 18 months jail
as a special term of probation[,] all terms to run
concurrently. Defendant is free to argue for credit
for time served. Defendant shall be placed on
supervised release at the Change of Plea Hearing until
a sentencing hearing is held.
(Bolding and italics in original).
The State argues, inter alia, that Penque also
"acquiesced to the [additional] terms . . . as put on the record
by the Court at his change of plea hearing[.]"2 Penque counters
2
At the January 30, 2020 change of plea (COP) hearing, the Circuit
Court advised Penque as follows:
THE COURT: Okay. Now, you do have this plea
deal. I'm not going to make any promises or
commitments to you. I want to see that you return
here. I want to go through the PSI and consider
everything that's on the table at that point. But the
deal you do have with the State is you're going to
plead to these charges. They will dismiss any other
charges after sentencing. That's the way that goes.
For purposes of sentencing, the State will agree
that you should be placed on probation. However, the
State's free to argue for the maximum jail time, so
that would be 18 months on the B [felony] and 12
months on each of the C [felonies]. Obviously, you're
going to be asking for no more jail time at
sentencing.
The Court may impose other terms and conditions.
So that's the essential portions of the plea deal. Do
you understand that?
(continued...)
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that his discussion with the Circuit Court did not amend the Plea
Agreement because the Circuit Court was not a party to the
agreement.
A plea agreement is essentially a contract
entered into between the State and the defendant, in
which the defendant agrees to plead guilty or no
contest to a charge and to forego certain
constitutional rights (including the right to trial)
in exchange for which the State promises some form of
leniency or cooperation in prosecution. Indeed,
courts have often looked to contract law analogies in
determining the rights and obligations of the parties
to a plea agreement. However, because the plea
negotiation process implicates constitutional
considerations—including the fairness and
voluntariness of the plea—we have recognized that
resort to contract principles cannot solely be
determinative of the rights and duties comprising the
plea bargain.
2
(...continued)
THE DEFENDANT: Yes, I do.
THE COURT: Okay. Now, very important part:
The State is agreeing and I am also going to allow you
to have supervised release through sentencing. So,
Mr. Penque, you will have to report to Maui Intake
Service Center.
THE DEFENDANT: Yeah.
THE COURT: Okay. You are going to have to also
go to Adult Client Services to make sure you get the
information to them about the PSI.
THE DEFENDANT: Okay.
THE COURT: So two separate places. Just
understand, if you violate the supervised release
terms, the State's probably going to move to revoke
you.
THE DEFENDANT: Yeah, [the State] will have me
right back here in a heartbeat. I get it.
THE COURT: You get it and jeopardize the plea
deal.
THE DEFENDANT: I understand that as well.
The January 30, 2020 minutes provide in relevant part: "Sentencing set for
04/23/20 . . . . Pursuant to plea agreement, defendant released on supervised
release."
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Miller, 122 Hawai#i at 104, 223 P.3d at 169 (Italics and citation
omitted).
Here, the Circuit Court was not a party to the Plea
Agreement. The Circuit Court also did not agree to be bound by
it, as the Plea Form contains the following acknowledgment: "I
know that the court is not required to follow any deal or
agreement between the Government and me." The Circuit Court
informed Penque that it would place Penque on supervised release
until sentencing, which the State had agreed to, under the Plea
Agreement. The Circuit Court's discussion with Penque concerned
the terms and conditions of granting his supervised release, not
the terms of the Plea Agreement. The Circuit Court's statement,
that Penque would "jeopardize the plea deal" if he violated the
supervised release terms, was a warning that the Circuit Court
would be disinclined to accept the State's recommended sentence
pursuant to the Plea Agreement if Penque violated the supervised
release conditions.
Thus, Penque's sole obligation under the Plea Agreement
was to plead no contest to the enumerated charges, and he did so.
The State, however, breached the agreement when it argued for
open terms of incarceration at sentencing, instead of
"recommend[ing] probation of four years with 18 months jail as a
special term of probation[,] all terms to run concurrently" in
accordance with the agreement.
"It is well settled that the terms of a plea agreement,
which serve as the inducement for entering a plea, must be
fulfilled." State v. Adams, 76 Hawai#i 408, 414, 879 P.2d 513,
519 (1994) (citations omitted). "Where a defendant is denied due
process because the prosecution violates a plea agreement, there
is manifest injustice as a matter of law." Miller, 122 Hawai#i
at 100, 223 P.3d at 165 (brackets, italics and citation omitted).
The State's failure to recommend the probation sentence it
expressly agreed to under the plea agreement constitutes
"manifest injustice as a matter of law[.]" Id.
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Upon the prosecution's breach of a plea agreement, a
case must be vacated and remanded in the interests of justice,
regardless of whether the breach prejudiced the defendant. Id.
at 101, 223 P.3d at 166 (citing Santobello v. New York, 404 U.S.
257, 262 (1971)). In light of our conclusion that the State
breached the plea agreement, we vacate the Judgment and Penque's
sentence, and we do not address Penque's remaining contention
that the Circuit Court abused its discretion in the particular
sentence it imposed.
Either resentencing or withdrawal of a plea may be the
appropriate remedy depending on the defendant's particular
circumstances. Adams, 76 Hawai#i at 414, 879 P.2d at 519.
Courts should give considerable weight to the choice of the
defendant. Id.; see State v. Abbott, 79 Hawai#i 317, 321, 901
P.2d 1296, 1300 (App. 1995) (remanding for resentencing before a
different judge "[b]ecause Defendant has not sought to withdraw
his no-contest plea and instead requests resentencing before a
new judge, and because Defendant's choice of remedies is entitled
to great weight . . . .") (internal citation omitted). Penque
requests two alternative forms of relief from this court, to
either: (1) vacate and remand this case for resentencing "and
order that the Circuit Court resentence Penque to terms of
probation in 2CPC-XX-XXXXXXX and 2CPC-XX-XXXXXXX, as the court's
sentences to the open terms constitued an abuse of discretion,"
or (2) allow Penque to "withdraw his no-contest pleas in 2CPC-18-
0000877 and 2CPC-XX-XXXXXXX due to the State's breach of the plea
agreement which constituted manifest injustice to support
withdrawal of his pleas."
As noted supra, because the Circuit Court was not a
party to the Plea Agreement and has sentencing discretion under
HRS §§ 706-606 (2014) and 706-621 (2014),3 there is no basis for
3
HRS § 706-606 sets forth factors to be considered in imposing a
sentence, and HRS § 706-621 provides factors to be considered in imposing a
(continued...)
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Penque's first alternative requested relief. As to Penque's
second alternative requested relief, Penque shall be entitled to
withdraw his no-contest pleas in 2CPC-XX-XXXXXXX and 2CPC-19-
0000156 due to the State's breach of the plea agreement.4
Therefore, IT IS HEREBY ORDERED that the Amended
Judgment; Conviction and Sentence; Notice of Entry, filed on June
5, 2020, in the Circuit Court of the Second Circuit, is vacated
with respect to the sentence, and we remand this case for further
proceedings consistent with this Summary Disposition Order.
DATED: Honolulu, Hawaii, November 23, 2021.
On the briefs:
/s/ Katherine G. Leonard
Alen M. Kaneshiro Presiding Judge
for Defendant-Appellant
/s/ Clyde J. Wadsworth
Mark R. Simonds Associate Judge
Deputy Prosecuting Attorney
County of Maui /s/ Karen T. Nakasone
for Plaintiff-Appellee Associate Judge
3
(...continued)
term of probation in lieu of imprisonment.
4
In State v. Nakano, 131 Hawai#i 1, 8 n.8, 313 P.3d 690, 697 n.8
(2013), the Hawai#i Supreme Court recognized that "ordinarily, a defendant who
sucessfully rescinds a plea agreement is returned to their status prior to
their plea agreement, meaning the defendant must again face all of the charges
in the original complaint." (citing Adams, 76 Hawai#i at 414 n.5, 879 P.2d at
519 n.5 (noting that "a defendant who elects to have a violated plea agreement
rescinded must plead again to all charges in the original indictment")). If
Penque selects the remedy of rescission of the Plea Agreement due to the
breach, Penque is "returned to [his] status prior to [his] plea agreement,"
meaning that Penque "must again face all of the charges" in all four cases
that were included in the Plea Agreement: 2CPC-XX-XXXXXXX(2), 2CPC-19-
0000156(2), 2CPC-XX-XXXXXXX, 2CPC-XX-XXXXXXX. Id.
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