State v. Carreira ( 2022 )

NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
29-JUN-2022
07:52 AM
Dkt. 90 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
STATE OF HAWAI#I, Plaintiff-Appellee, v.
JACOB JOHN LOKAHI CARREIRA, also known as
Jacob J. Carreira, Defendant-Appellant
APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT
(CASE NO. 2CPC-XX-XXXXXXX)
SUMMARY DISPOSITION ORDER
(By: Leonard, Presiding Judge, and Wadsworth and McCullen, JJ.)
Defendant-Appellant Jacob John Lokahi Carreira, also
known as Jacob J. Carreira (Carreira), appeals from the May 19,
2021 Judgment; Conviction and Sentence; Notice of Entry, and the
May 25, 2021 Amended Judgment; Conviction and Sentence; Notice of
Entry, both entered in the Circuit Court of the Second Circuit
(Circuit Court).1/ For the reasons explained below, we affirm.
On May 21, 2019, Plaintiff-Appellee State of Hawai#i
(State) charged Carreira via Felony Information with one count of
Unauthorized Entry in a Dwelling in the First Degree, in
violation of Hawaii Revised Statutes (HRS) § 708-812.55(1)(a)2/
1/
The Honorable Rhonda I.L. Loo presided.
2/
At the time, HRS § 708-812.55(1)(a) (2014) provided:
Unauthorized entry in a dwelling in the first degree.
(1) A person commits the offense of unauthorized entry in a
dwelling in the first degree if the person intentionally or
knowingly enters unlawfully into a dwelling and another
person was, at the time of the entry, lawfully present in
the dwelling who:
(a) Was sixty-two years of age or older[.]
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER
(Count 1) and one count of Habitual Property Crime, in violation
of HRS § 708-803 (Count 2).
On December 23, 2020, Carreira entered a no contest
plea as to Count 1, pursuant to a plea agreement with the State.
Under the plea agreement, the State agreed to dismiss Count 2.
The plea agreement further provided, among other things, that
Carreira would serve a period of probation for four years, with
credit for time served, and Carreira would enter into and
complete a treatment program at Habilitat. Carreira acknowledged
in his signed no contest plea, "I know that the court is not
required to follow any deal or agreement between the government
and me[,]" and "I understand that the court may impose . . . the
maximum term of imprisonment" for the offense to which he pled.
Following a change of plea colloquy, the Circuit Court
accepted Carreira's no contest plea and found him guilty on Count
1. The Circuit Court set sentencing for April 14, 2021 and
ordered a pre-sentence report and investigation.
On April 8, 2021, the presentence diagnosis and report
(PSI)3/ was filed. On the same date, a notice of electronic
filing of the PSI was sent to the parties, including Carreira's
counsel.
On April 14, 2021, sentencing was continued to
April 23, 2021, so that Carreira could appear in person.
Sentencing was subsequently continued to May 19, 2021.
On April 21, 2021, Carreira, through his trial
counsel, filed a sentencing memorandum asserting that Carreira
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should receive a probation sentence, rather than a prison term.
The memorandum further stated, "[a]pparently the Probation
Department was not aware of the plea deal which had been
negotiated because the [PSI] filed herein recommends a prison
term."
On May 19, 2021, Carreira appeared in person for the
continued sentencing hearing. The Circuit Court provided
3/
"'PSI' is the common acronym for the confidential presentence
diagnosis and report prepared by judiciary probation officers pursuant to HRS
§ 706-602(1) (1993 & Supp. 2012)[.]" State v. Sanney, 141 Hawai #i 14, 17 n.4,
404 P.3d 280, 283 n.4 (2017) .
4/
Carreira is represented by new counsel on appeal.
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Carreira with three separate opportunities to address the court.
He stated, among other things, that he wished to complete the
program at Habilitat. The Circuit Court engaged Carreira
concerning his criminal history and prior involvement with
substance abuse rehabilitation programs - information contained
in the PSI. The Circuit Court ultimately declined to adopt the
plea agreement and instead sentenced Carreira to, inter alia, a
ten-year term of imprisonment, with credit for time served.
On appeal, Carreira raises a single point of error:
"Carreira was not provided a copy of the PSI nor was he advised
by any of his attorneys of the contents of the PSI and his right
to submit corrections to the report before going forward with
sentencing." Carreira does not contend that his trial counsel
was ineffective. Rather, he contends that the Circuit Court "did
nothing to establish that [Carreira's] 'substantial right'" to
review the PSI "had been complied with[,]" and that this alleged
failure "was plain error by the [Circuit] Court." Carreira
further agues that "[a]t a bare minimum, the [Circuit] Court
should have asked [him] if he wished to controvert or add to the
presentence report[,]" and that such an inquiry "would . . .
satisfy the intent of the legislature in enacting HRS § 706-604."
Although Carreira failed to raise this issue in the
Circuit Court (e.g., at the sentencing hearing), we may notice a
trial court's plain error affecting substantial rights. See
State v. Miller, 122 Hawai#i 92, 100, 223 P.3d 157, 165 (2010)
(quoting State v. Sanchez, 82 Hawai#i 517, 524-25, 923 P.2d 934,
941-42 (App. 1996)); see also Hawai#i Rules of Penal Procedure
(HRPP) Rule 52(b) ("Plain errors or defects affecting substantial
rights may be noticed although they were not brought to the
attention of the court."). We have discretion to correct plain
error when the error is not harmless beyond a reasonable doubt.
State v. Ui, 142 Hawai#i 287, 297, 418 P.3d 628, 638 (2018)
(citing State v. Nichols, 111 Hawai#i 327, 335, 141 P.3d 974, 982
(2006)).
HRS § 706-604(2) (2014) states:
The court shall furnish to the defendant or the
defendant's counsel and to the prosecuting attorney a copy
of the report of any pre-sentence diagnosis or
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psychological, psychiatric, or other medical examination and
afford fair opportunity, if the defendant or the prosecuting
attorney so requests, to controvert or supplement them. The
court shall amend or order the amendment of the report upon
finding that any correction, modification, or addition is
needed and, where appropriate, shall require the prompt
preparation of an amended report in which material required
to be deleted is completely removed or other amendments,
including additions, are made.
The plain language of HRS § 706-604(2) requires the
court to furnish a copy of the PSI "to the defendant or the
defendant's counsel[.]" (Emphasis added.) Carreira does not
dispute that his trial counsel received a copy of the PSI when it
was filed, and, indeed, prior to the sentencing hearing, Carreira
filed a sentencing memorandum indicating that at least his
counsel had reviewed the PSI. Carreira asserts that the Circuit
Court failed to establish that Carreira himself was given an
opportunity by his counsel to review the PSI, but he cites no
authority requiring the court to take such an action in these
circumstances. We have found none. Cf. State v. Phua, 135
Hawai#i 504, 517 n.21, 353 P.3d 1046, 1059 n.21 (2015) ("When a
defendant appears pro se at sentencing, the trial court should
confirm the defendant received a copy of the PSI and had an
opportunity to review it." (emphasis added)). Accordingly, we
conclude that the Circuit Court did not plainly err during
sentencing by not confirming that Carreira himself had been given
an opportunity to review the PSI.
We further conclude that the Circuit Court did not
plainly err by not asking Carreira during sentencing "if he
wished to controvert or add to the [PSI]." Under HRS
§ 706–604(2), the court must "afford fair opportunity, if the
defendant or the prosecuting attorney so requests, to controvert
or supplement [the PSI]." See State v. Hussein, 122 Hawai#i 495,
523, 229 P.3d 313, 341 (2010) (quoting HRS § 706-604(2)); see
also State v. Barrios, 139 Hawai#i 321, 331, 389 P.3d 916, 926
(2016) ("Thus, HRS §§ 706–602 and -604 protect defendants from
unfounded facts and derogatory information by requiring notice
and an opportunity to controvert the information 'if the
defendant or the prosecuting attorney so requests.'" (quoting HRS
§ 706–604(2)) (emphasis added)). Carreira has cited no authority
imposing a duty on the sentencing court to ask a defendant who is
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represented by counsel if the defendant wishes to controvert or
supplement a PSI, and we have found none.
Here, there is no dispute that Carreira's trial counsel
received the PSI and that Carreira's sentencing memorandum (see
supra) did not contest or seek to supplement any of the
information contained in the PSI. Further, the record shows that
during the sentencing hearing, the Circuit Court discussed the
information contained in the PSI, i.e., Carreira's criminal
history and prior involvement with substance abuse rehabilitation
programs, and provided Carreira with multiple opportunities to
address the court. Neither Carreira nor his counsel raised any
objection to the information that was discussed or indicated any
desire to controvert or supplement that information or the PSI
itself. As a result, there is no indication in the record and no
argument made on appeal of what, if any, part of the PSI Carreira
wished to controvert or supplement. On this record, the Circuit
Court did not plainly err as asserted. See State v. Kong, 131
Hawai#i 94, 107, 315 P.3d 720, 733 (2013) (declining to exercise
plain error review where the defendant or his counsel failed to
"provide a good faith challenge on the record stating the bases
for challenging the convictions listed in the PSI report").
For these reasons, we affirm the May 19, 2021 Judgment;
Conviction and Sentence; Notice of Entry and the May 25, 2021
Amended Judgment; Conviction and Sentence; Notice of Entry, both
entered in the Circuit Court of the Second Circuit.
DATED: Honolulu, Hawai#i, June 29, 2022.
On the briefs:
John F. Parker /s/ Katherine G. Leonard
(Law office of John F. Parker, Presiding Judge
LLC)
for Defendant-Appellant.
/s/ Clyde J. Wadsworth
Joanne S.C. Hicks, Associate Judge
Deputy Prosecuting Attorney,
County of Maui,
for Plaintiff-Appellee. /s/ Sonja M.P. McCullen
Associate Judge
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