State v. Bautista ( 2023 )

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Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
28-FEB-2023
11:39 AM
Dkt. 91 MO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI‘I
STATE OF HAWAI‘I, Plaintiff-Appellee, v.
ROMMEL L. BAUTISTA, Defendant-Appellant.
APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT
(CASE NO. 2CPC-XX-XXXXXXX)
MEMORANDUM OPINION
(By: Leonard, Presiding Judge, Wadsworth and McCullen, JJ.)
Defendant-Appellant Rommel L. Bautista (Bautista)
appeals from the Circuit Court of the Second Circuit's March 10,
2021 Judgment; Conviction and Sentence; Notice of Entry. 1
Following a no-contest plea, Bautista was convicted of
(1) Assault in the Second Degree, in violation of Hawaii Revised
Statutes (HRS) § 707-711(1)(a) (Supp. 2018); (2) Terroristic
Threatening in the First Degree, in violation of HRS § 707-
1 The Honorable Rhonda I.L. Loo presided.
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716(1)(e) (2014); and (3) Felony Abuse of Family or Household
Member, in violation of HRS § 709-906(1) and (9) (Supp. 2019).
The circuit court sentenced Bautista to a five-year
term of imprisonment for each count, to be served consecutively.
On appeal, Bautista challenges the circuit court's jurisdiction,
the lawfulness of the prosecution, and the consecutive nature of
his sentence. For the reasons discussed below, we affirm.
I. Background
A. Complaint And Committal
On July 27, 2020, the State filed a complaint in the
District Court of the Second Circuit, charging Bautista with
seven felony offenses and alleging that all offenses occurred in
the County of Maui, State of Hawai‘i. 2 Finding probable cause,
2 The Honorable Blaine J. Kobayashi, and the Honorable Kirstin M.
Hamman presided over the district court proceedings.
The seven charged counts were as follows:
Count 1: Attempted Murder in the Second Degree, in violation of HRS
§§ 705-500(2) (2014) and 707-701.5 (2014 and Supp. 2018), and
subject to HRS § 706-656 (2014);
Count 2: Assault in the First Degree, in violation of HRS § 707-710(1)
(2014);
Count 3: Assault in the Second Degree, in violation of HRS § 707-
711(1)(a);
Count 4: Terroristic Threatening in the First Degree, in violation of
HRS § 707-716(1)(e);
Count 5: Felony Abuse of Family or Household Member, by strangulation,
in violation of HRS §§ 709-906(1) and/or (8) (Supp. 2019);
Count 6: Felony Abuse of Family or Household Member, by strangulation,
in violation of HRS §§ 709-906(1) and/or (8); and
Count 7: Felony Abuse of Family or Household Member, in the presence of
a minor, in violation of HRS §§ 709-906(1) and/or (9).
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the district court committed the case to the circuit court and a
hearing was scheduled in circuit court for August 12, 2020 at
8:00 a.m. in Courtroom #4. A case was then initiated in circuit
court based on that committal.
B. No-Contest Plea
About five months later, Bautista pled no contest to
Assault in the Second Degree (Count 3), Terroristic Threatening
in the First Degree (Count 4), and Felony Abuse of Family or
Household Member, minor present (Count 7) in exchange for
dismissing the remaining charges of Attempted Murder in the
Second Degree (Count 1), Assault in the First Degree (Count 2),
and Felony Abuse of a Family or Household Member, by
strangulation (Counts 5 and 6). On the no-contest plea form,
Bautista acknowledged that he was giving "up the right to appeal
anything that has happened in this case to date" and that the
circuit court may impose consecutive terms of imprisonment.
During the hearing on Bautista's no-contest plea, the
circuit court reiterated that "the maximum penalty provided by
law for these offenses is fifteen years in prison and a $30,000
fine[,]" and Bautista acknowledged his understanding. The
circuit court again explained, "So when I mentioned fifteen
years earlier, that's if I ran everything consecutively, one
after the other. . . . I got that by adding five plus five plus
five . . . ." Bautista then requested a continuance to speak
with his family, and the circuit court granted the request.
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The next week, the circuit court again reviewed the
no-contest plea with Bautista and explained that "the maximum
penalty provided by law for these offenses is a fifteen-year
prison term and a $30,000 fine[,]" and Bautista acknowledged
that he understood. Later in the hearing, the circuit court
reiterated that it "could sentence [him] to the full fifteen-
year prison term[,]" and Bautista acknowledged his
understanding.
After the circuit court's colloquy, Bautista pled no-
contest. The circuit court accepted Bautista's plea and ordered
a presentence report, which was filed with the circuit court.
C. Sentencing
1. State's Argument
During the sentencing hearing, the State requested
consecutive sentencing based on the circumstances of the
incident. The State explained that Bautista attacked his wife
(Wife) because he thought she was having affairs and would not
admit it. Bautista "slapped her face, and then grabbed her
throat, impeding her breathing. He also then kicked her in the
ribs and body and stomped on her chest . . . ." He told her he
was going to kill her, and "grabbed the ceramic toilet tank
cover and made a motion like he was going to hit her." When
Bautista's father banged on the door, Wife seized "the chance to
grab her six-year-old son and leave the house and call a friend
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for help." The friend took them to the police station where she
was checked by medics and transferred to the emergency room.
Wife had redness and abrasions on her nose, left
cheek, ear, chest, and back "as well as a lump on the back of
her head and redness on both sides of her neck." Wife also had
bruises on her scalp behind her left ear, and on her upper arms
and lower legs. She was "also diagnosed with a fracture of her
right second, third, and fourth ribs as well as a collapsed
lung."
The State acknowledged that Bautista's "family appears
to have forgiven him" and "would like to see him return home."
The State, however, noted that Bautista's six-year-old son was
present during the incident, and "told the police he saw his
father punch his mother, [and] grab her neck . . . ." The State
requested that the circuit court sentence Bautista to five years
imprisonment for each offense, to be served consecutively.
2. Defense's Argument
Defense counsel confirmed that they reviewed the
presentence report, and nothing needed to be corrected. Defense
counsel explained that it was Wife that "woke him from a sleep
and was yelling at him, and that's what started it." Defense
counsel asked the court to take into account Wife's plea for
leniency and that he never hit her before. Defense counsel
explained that Bautista "did not intend to end her life[,]" but
"was trying to force a confession out of her as to what he
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believed to be infidelity and threatened her with the intent to
make her believe that he might kill her, do her serious harm in
order to get her to confess."
3. Circuit Court's Decision
After expressing concern for Bautista's son and the
effects this incident may have on him later, the circuit court
stated that "there was no part of your wife's body that was not
untouched." The circuit court recognized that "the doctor at
the hospital did confirm the extent of her injuries with the
facial bruising, the collapsed lung, which could have caused
death, fracture to not one rib but three different ribs . . . ."
"I think the only reason you stopped was perhaps
because your father was pounding on the front door . . . and
this gave an opportunity for your wife to get out of the house
with the six-year-old, your son . . . ."
The circuit court explained that it "had an
opportunity today to review the options of sentencing" and could
possibly give probation or concurrent sentences. The circuit
court confirmed that it heard the arguments and Bautista's
statement, read the letters submitted by his family and Wife,
and considered that Bautista had no previous record.
Nonetheless, the circuit court stated that "this is a
very severe case. . . . And the nature of these -- of these
charges, though it's come off the attempted murder, are
extremely serious . . . ." Additionally, the circuit court
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stated, "your adult daughter talks about how you folks would
argue almost every night, and it was so bad that she didn't even
want to live at home at one point."
Wife "needs to be protected. Your son needs to be
protected. The community needs to be protected from his kind of
behavior." The circuit court sentenced Bautista to a five-year
term of imprisonment for each of the three convicted offenses,
to be served consecutively. Bautista filed an untimely notice
of appeal. 3 See Hawai‘i Rules of Appellate Procedure (HRAP)
Rule 4(b) (providing that in a criminal case "the notice of
appeal shall be filed within 30 days after entry of judgment or
order appealed from").
II. STANDARD OF REVIEW
A. Jurisdiction
"[T]he court's jurisdiction to consider matters
brought before it is a question of law which is subject to de
novo review on appeal applying the 'right/wrong' standard."
State v. Lorenzo, 77 Hawai‘i 219, 220, 883 P.2d 641, 642
(App. 1994) (citations omitted).
3 In criminal cases, this court has made exceptions to the requirement
that the notice of appeal be timely filed where "defense counsel has
inexcusably or ineffectively failed to pursue a defendant's appeal from a
criminal conviction in the first instance[.]" State v. Irvine, 88 Hawai‘i
404, 407, 967 P.2d 236, 239 (1998); State v. Chavira, 120 Hawai‘i 255, 203
P.3d 675, No. 29082, 2009 WL 458772 at *1 (App. Feb. 25, 2009) (SDO). It
appears that Bautista's former counsel failed to file a timely notice of
appeal.
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B. Sufficiency Of The Charge
"Whether a charge sets forth all the essential
elements of a charged offense is a question of law, which we
review under the de novo, or right/wrong, standard." State v.
Wheeler, 121 Hawai‘i 383, 390, 219 P.3d 1170, 1177 (2009)
(cleaned up).
C. Sentencing
Sentencing matters are reviewed for an abuse of
discretion. State v. Mundon, 121 Hawai‘i 339, 349, 219 P.3d
1126, 1136 (2009) (quoting State v. Kahapea, 111 Hawai‘i 267,
278, 141 P.3d 440, 451 (2006)).
III. Discussion
In his opening brief, Bautista challenged the
consecutive nature of his sentence. But, after being granted
leave to amend his opening brief, Bautista additionally
challenged the circuit court's subject matter jurisdiction.
Bautista then submitted an HRAP Rule 28(j) letter to
this court citing to the Hawai‘i Supreme Court's opinion in State
v. Obrero, 151 Hawai‘i 472, 517 P.3d 755 (2022), and this court
ordered the parties to submit supplemental briefing addressing
the effect Obrero has on this case. In his supplemental brief,
Bautista asserts that his conviction is unlawful in light of
Obrero.
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Bautista applied to have this case transferred to the
Hawai‘i Supreme Court, but that application was rejected. Of the
three points of error he raises throughout these proceedings, we
address Bautista's challenge to the circuit court's jurisdiction
first.
A. The Circuit Court Had Jurisdiction
Bautista contends that the circuit court had no
jurisdiction over his case because the State did not file a
complaint in the circuit court. To support this contention,
Bautista asserts that once the district court committed the case
to circuit court, the State "had to take an active role in
initiating the proceedings in circuit court by filing a charging
document. Its failure to do that means that the circuit court's
subject matter jurisdiction never attached." In his
supplemental brief, Bautista acknowledges Footnote 12 in Obrero,
but reiterates that the State "needed to file a 'cognizable'
charging instrument in the circuit court. Without it, the
circuit court lacked jurisdiction to convict and sentence" him.
"Jurisdiction is defined as 'the power and authority
on the part of the court to hear and judicially determine and
dispose of the cause pending before it.'" Schwartz v. State,
136 Hawai‘i 258, 262, 361 P.3d 1161, 1165 (2015) (quoting
State v. Villados, 55 Haw. 394, 396, 520 P.2d 427, 430 (1974)).
"'[J]urisdiction depends upon the state of affairs existing at
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the time it is invoked; once having attached, it . . . is
retained by a court until fully exhausted by the entry of a
final judgment.' It is not lost by subsequent events, . . .
unless a statute provides otherwise." 136 Hawai‘i at 262, 361
P.3d at 1165 (citation omitted).
1. Obrero, HRS, and HRPP
In Obrero, the Hawai‘i Supreme Court held that the
State's prosecution of the defendant by complaint instead of
indictment violated HRS § 801-1 (2014). Obrero, 151 Hawai‘i at
475, 482, 517 P.3d at 758, 765. Nevertheless, in Footnote 12,
the supreme court explained that "[t]he unlawfulness of the
State's prosecution did not deprive the circuit court of
subject-matter jurisdiction." 151 Hawai‘i at 478 n.12, 517 P.3d
at 761 n.12.
The supreme court explained that the State filed six
separate complaints in the district court. 151 Hawai‘i at 475,
517 P.3d at 758. But after the district court found probable
cause and committed the case to circuit court, the State
consolidated the six complaints into a single complaint, and
filed that complaint in the circuit court. 151 Hawai‘i at 476,
476 n.4, 517 P.3d at 759, 759 n.4.
Quoting HRS § 603-21.5(a)(1) (2016), the supreme court
explained that "the circuit courts have jurisdiction over
'criminal offenses cognizable under the laws of the State,
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committed within their respective circuits or transferred to
them for trial by change of venue from some other circuit
court.'" 151 Hawai‘i at 478 n.12, 517 P.3d at 761 n.12 (citation
and brackets omitted). Cognizable was defined as "capable of
being known or recognized, or capable of being judicially tried
or examined before a designated tribunal; within the court's
jurisdiction." Id. (citation and internal quotation marks
omitted).
The supreme court then concluded that "the State's
complaint properly invoked the circuit court's subject matter
jurisdiction" because it alleged offenses recognized under our
State laws and these offenses were committed in the City and
County of Honolulu. Id.
HRS chapter 805 governs criminal procedure in the
district courts. "When a complaint is made to any prosecuting
officer of the commission of any offense, the prosecuting
officer shall examine the complaint, shall reduce the substance
of the complaint to writing . . . ." HRS § 805-1 (2014). "In
all cases of arrest for offenses that must be tried in the first
instance before a jury, or that can be tried only on indictment
by a grand jury," the judge, "upon the appearance of the
accused, shall proceed to consider whether there is probable
cause to believe that the accused is guilty of the offense with
which the accused is charged." HRS § 805-7 (2014).
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"[I]f in the judge's opinion there is probable cause
to believe that the accused is guilty of the offense" the
accused is charged with, "the judge shall make out and deliver
to a police officer a mittimus which may be in the form
established by the usage and practice of the issuing court."
HRS § 805-7. "In all criminal cases had before a district judge
where there has been a commitment as provided in section 805-7,
. . . the judge, forthwith, shall send to the county attorney or
prosecuting attorney . . . giving the name of the defendant and
the date the records were sent to the circuit court . . . ."
HRS § 805-8 (2014).
HRS chapter 806 governs criminal procedure in circuit
court, but contains no requirement to refile a complaint
following a commitment from district court. Offering some
guidance, the Hawai‘i Rules of Penal Procedure (HRPP) provide the
procedure for committing a case to the circuit court. 4 "If the
defendant is held to answer in the circuit court, the court
shall transmit to the circuit court all papers and articles
received in evidence at the preliminary hearing and any bail
received by it." HRPP Rule 5(c)(6) (emphasis added). "Within 7
4 In Obrero, the supreme court explained that HRPP Rules 5 and 7
"flatly contradict HRS § 801-1" and "[w]here a court-made rule affecting
litigants' substantive rights contravenes the dictates of a parallel statute,
the rule must give way." Obrero, 151 Hawai‘i at 480, 517 P.3d at 763 (quoting
Cox v. Cox, 138 Hawai‘i 476, 482, 382 P.3d 288, 294 (2016)). The supreme
court did not, however, expressly declare HRPP Rules 5 and 7 invalid in all
respects. See id. Moreover, our reference to HRPP Rules 5 and 7 is in the
context of determining jurisdiction, not the violation of HRS § 801-1.
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days after the district court's oral order of commitment (i) the
district court shall sign its written order of commitment,
(ii) the clerk shall enter the district court's written order,
and (iii) the clerk shall transmit to the circuit court all
documents in the proceeding . . . ." HRPP Rule 5(c)(7)
(emphasis added and formatting altered).
Finally, HRPP Rule 7(h) addresses the court in which a
charge is filed. HRPP Rule 7(h) first states that "[a]n
indictment or information shall be filed in the circuit court."
HRPP Rule 7(h)(1). HRPP Rule 7(h) then states that "[a]
complaint may be filed in either the district or circuit court;
provided that a complaint shall not be filed initially in the
circuit court when it charges (i) a felony, and none of the 3
conditions set forth in Rule 7(b) of these rules has yet
occurred," or "(ii) only an offense or offenses other than a
felony." 5 HRPP Rule 7(h)(2) (formatting altered); See HRPP
5 HRPP Rule 7(b) provides,
A felony may be prosecuted by a complaint under any of the
following 3 conditions:
(1) if with respect to that felony the district judge has
found probable cause at a preliminary hearing and has
committed the defendant to answer in the circuit court
pursuant to Rule 5(c) of these rules;
(2) if, pursuant to 5(c)(2) of these rules, the defendant
has waived in open court the right to a preliminary
hearing; or
(3) if, pursuant to 7(c) of these rules, the defendant has
waived in open court the right to an indictment.
(Formatting altered.)
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Rule 2 (providing that these rules "shall be construed to secure
simplicity in procedure, fairness in administration and the
elimination of unjustifiable expense and delay").
In sum, nothing in HRS chapters 805 and 806, and HRPP
Rules 5 and 7, require the State to refile a complaint in the
circuit court after the district court committed the case to the
circuit court upon a finding of probable cause.
2. Analysis
Here, the State filed a complaint with seven felony
counts in the district court. According to the court minutes,
the district court held a hearing and found probable cause as to
those seven counts. 6 After finding probable cause, the district
court orally committed the case, and each count, to the circuit
court.
That same day, the district court entered a "Committal
to the Circuit Court" and "Amended Order and Notice of Entry of
Order," committing Bautista's case to the circuit court for
further proceedings and ordering Bautista to appear in the
circuit court on August 12, 2020 at 8:00 a.m. Also on that day,
a circuit court case was initiated based on the district court's
commitment with service made to the parties. 7
6 Bautista did not order transcripts of this proceeding and did not
file a notice indicating that he was ordering fewer than all transcripts.
See HRAP Rule 10(b)(4).
7 The "Commitment to Circuit Court" docketed as No. 1 does not contain
a readable pdf.
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That charging instrument filed in the district court
and committed to the circuit court alleged that Bautista
violated HRS §§ 705-500(2) and 707-701.5, 707-710(1), 707-
711(1)(a), 707-716(1)(e), 709-906(1) and/or (8), and 709-906(1)
and/or (9), all of which are recognized offenses under Hawai‘i
law. That same complaint also alleged that the offenses
occurred "in the Division of Wailuku, County of Maui, State of
Hawaii," which is in the Second Circuit. HRS § 603-1 (2016)
("The second judicial circuit includes the islands of Maui,
Molokai, Lanai, Kahoolawe, and Molokini.") Because the
complaint charged Bautista with cognizable offenses within the
second circuit, the requirements of HRS § 603-21.5(a)(1) were
satisfied.
Bautista does not cite to, and we have not found, a
statute or rule that requires the State to refile a complaint in
the circuit court after the district court has committed the
case to circuit court upon a finding of probable cause.
Moreover, we decline to interpret Footnote 12 in Obrero as
requiring as much because the complaint committed to the circuit
court satisfied the requirements of HRS § 603-21.5(a)(1) to
invoke the circuit court's jurisdiction. See 151 Hawai‘i at 478
n.12, 517 P.3d at 761 n.12.
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B. Complaint Presumed Valid
Bautista next contends that the State violated HRS
§ 801-1 by failing to obtain an indictment, and that the
"prosecution against [him] is unlawful and the judgment must be
vacated."
HRS § 801-1 provides, "No person shall be subject to
be tried and sentenced to be punished in any court, for an
alleged offense, unless upon indictment or information, except
for offenses within the jurisdiction of a district court or in
summary proceedings for contempt." As mentioned, the supreme
court in Obrero held that the "State's prosecution of Obrero
[was] unlawful because it [had] not complied with the statute's
indictment requirement." Obrero, 151 Hawai‘i at 478, 517 P.3d at
761.
However, the supreme court noted that
had Obrero challenged the State's failure to comply with
HRS § 801-1 for the first time on appeal, we would presume
the validity of the complaint against him and would not
reverse his conviction absent a showing that the complaint
prejudiced him or could not be construed to charge a crime.
151 Hawai‘i at 478 n.11, 517 P.3d at 761 n.11 (citing Wheeler,
121 Hawai‘i at 399, 219 P.3d at 1186). In Wheeler, the supreme
court explained that
there is a 'presumption of validity,' . . . for charges
challenged subsequent to a conviction. In those
circumstances, this court will 'not reverse a conviction
based upon a defective indictment [or complaint] unless the
defendant can show prejudice or that the indictment [or
complaint] cannot within reason be construed to charge a
crime.'
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Wheeler, 121 Hawai‘i at 399-400, 219 P.3d at 1186-87 (citations
omitted, brackets in original).
Here, Bautista raised the State's violation of HRS
§ 801-1 for the first time on appeal in his supplemental brief.
Thus, as the supreme court explained, we presume the complaint
is valid. See generally, 151 Hawai‘i at 478 n.11, 517 P.3d at
761 n.11. Bautista made no showing that the complaint
prejudiced him. And, as discussed above, the complaint alleged
recognizable offenses under Hawai‘i law. Absent a showing of
prejudice or that the charges could not be construed as a crime,
we cannot vacate Bautista's judgment of conviction and sentence.
C. No Abuse Of Discretion In Consecutive Sentencing
Finally, Bautista contends that the circuit court
"abused its discretion when it imposed consecutive terms of
imprisonment." (Formatting altered.) Bautista argues that the
"circuit court's justification is unsupported in the record and
is not based on a rational and fair decision." Bautista asserts
that the circuit court ignored Wife's pleas for leniency and
"based its sentence on the speculative possibility that [Wife]
could have died and that she had been strangled[,]" and in so
doing, relied on an uncharged crime.
HRS § 706-606 (2014) delineates the factors the
circuit court must consider in imposing a sentence:
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(1) The nature and circumstances of the offense and the
history and characteristics of the defendant;
(2) The need for the sentence imposed:
(a) To reflect the seriousness of the offense, to
promote respect for law, and to provide just
punishment for the offense;
(b) To afford adequate deterrence to criminal conduct;
(c) To protect the public from further crimes of the
defendant; and
(d) To provide the defendant with needed educational or
vocational training, medical care, or other
correctional treatment in the most effective
manner;
(3) The kinds of sentences available; and
(4) The need to avoid unwarranted sentence disparities
among defendants with similar records who have been found
guilty of similar conduct.
(Formatting altered.)
"A sentencing judge generally has broad discretion in
imposing a sentence." State v. Barrios, 139 Hawai‘i 321, 328,
389 P.3d 916, 923 (2016) (citation omitted). "Further, '[t]he
weight to be given the factors set forth in HRS § 706–606 in
imposing sentence is a matter generally left to the discretion
of the sentencing court, taking into consideration the
circumstances of each case.'" Id. (citations omitted).
"[A] sentencing court is additionally required to
explain on the record its reasoning based on the HRS § 706–
606 factors to ensure that its 'decision to impose consecutive
sentences was deliberate, rational, and fair.'" 139 Hawai‘i at
335, 389 P.3d at 930 (quoting State v. Hussein, 122 Hawai‘i 495,
510, 229 P.3d 313, 328 (2010)). However, "the sentencing court
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is not required to articulate and explain its conclusions with
respect to every factor listed in HRS § 706-606, but rather must
articulate its reasoning only with respect to those factors it
relies on in imposing consecutive sentences." See Barrios, 139
Hawai‘i at 336, 389 P.3d at 931 (cleaned up).
Here, the circuit court considered the nature and
circumstances of the offense. The circuit court stated that
"there was no part of your wife's body that was not untouched."
The circuit court recognized that "the doctor at the hospital
did confirm the extent of her injuries with the facial bruising,
the collapsed lung, which could have caused death, [and]
fracture to not one rib but three different ribs . . . ."
The circuit court noted concern for Bautista's six-
year-old son, and further noted that it thought "the only reason
you stopped was perhaps because your father was pounding on the
front door . . . and this gave an opportunity for your wife to
get out of the house with the six-year-old, your son . . . ."
The circuit court also considered the possible
sentences available. The circuit court explained that it "had
an opportunity today to review the options of sentencing" and
could possibly give probation or concurrent sentences. The
court confirmed that it heard the arguments and Bautista's
statement, read the letters submitted by his family and Wife,
and considered that Bautista had no previous record.
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The circuit court then went on to consider the need
for the sentence imposed. The circuit court stated that "this
is a very severe case. . . . [Y]our adult daughter talks about
how you folks would argue almost every night, and it was so bad
that she didn't even want to live at home at one point." The
circuit court explained that Wife "needs to be protected. Your
son needs to be protected. The community needs to be protected
from his kind of behavior."
Turning to Bautista's assertion that the circuit court
relied on uncharged crimes of attempted murder and felony abuse
by strangulation, we must consider the circuit court's
statements in context. The circuit court stated, "[s]o these
offenses are so serious you could have killed your wife. She
had a collapsed lung, and you broke at least three of her ribs,
not to mention all the bruising from head to toe." The circuit
court also stated,
[s]o if something so silly as accusing her of an affair can
set you off to the point where you break her ribs, strangle
her, and knock her to the ground, threaten to kill her -- I
think she did say at one point, on a scale of one to ten,
she rated her fear as a ten.
These statements reflect the seriousness of Bautista's conduct
and the need "to protect the public," which are permissible
considerations when imposing consecutive sentencing.
Based on the record before us, we cannot say that the
circuit court's sentence was arbitrary or capricious, or that
the circuit court refused to consider Bautista's contentions.
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See Barrios, 139 Hawai‘i at 328, 389 P.3d at 923. Nor can we say
that the circuit court "clearly exceeded the bounds of reason or
disregarded rules or principles of law or practice." Id.IV. Conclusion
For the foregoing reasons, we affirm the circuit
court's March 10, 2021 Judgment; Conviction and Sentence; Notice
of Entry.
DATED: Honolulu, Hawai‘i, February 28, 2023.
On the briefs: /s/ Katherine G. Leonard
Presiding Judge
Benjamin E. Lowenthal,
Deputy Public Defender, /s/ Clyde J. Wadsworth
for Defendant-Appellant. Associate Judge
Gerald K. Enriques, /s/ Sonja M.P. McCullen
Deputy Prosecuting Attorney, Associate Judge
County of Maui,
for Plaintiff-Appellee.
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