State v. Sandoval. ICA mem. op., filed 11/20/2019, 145 Haw. 296. Consolidated with Case Nos. CAAP-18-0000637 and CAAP-18-0000638.

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Electronically Filed
Supreme Court
SCWC-XX-XXXXXXX
27-MAY-2021
08:16 AM
Dkt. 15 OP
IN THE SUPREME COURT OF THE STATE OF HAWAI‘I
---o0o---
STATE OF HAWAI‘I, Respondent/Plaintiff-Appellee,
vs.
MANUEL SANDOVAL, Petitioner/Defendant-Appellant.
SCWC-XX-XXXXXXX
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-XX-XXXXXXX, CAAP-XX-XXXXXXX, and CAAP-XX-XXXXXXX;
CASE NOS. 1PC141001782, 1PC151001156, and 1PC161000563)
MAY 27, 2021
RECKTENWALD, C.J., NAKAYAMA, McKENNA, AND WILSON, JJ., AND
CIRCUIT JUDGE AYABE, ASSIGNED BY REASON OF VACANCY
OPINION OF THE COURT BY RECKTENWALD, C.J.
I. INTRODUCTION
Manuel Sandoval is the defendant in three separate
criminal cases related to repeated violations of an injunction
against harassment. The injunction was put in place against
Sandoval by Complaining Witness 1 (CW1), a woman with whom
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Sandoval used to work. Sandoval pleaded no contest in two cases
to a total of eleven counts of violating an injunction against
harassment; in both cases, he was sentenced to probation.
Two years later, he was convicted after a bench trial
of one count of violating an injunction against harassment, and
one count of second-degree assault of Complaining Witness 2
(CW2). At sentencing, the Circuit Court of the First Circuit
(circuit court) revoked Sandoval’s probation in the two prior
cases based on Sandoval’s stipulation that he had violated the
terms of his probation. Following the revocation of his
probation, the court sentenced Sandoval to consecutive one-year
terms for each of the twelve total counts of violating the
injunction against harassment and five years for the assault
conviction, for a total of seventeen years of imprisonment. The
Intermediate Court of Appeals (ICA) affirmed, and we granted
Sandoval’s application for a writ of certiorari.
We conclude that before accepting a defendant’s
stipulation to a probation violation, the trial court must
ensure that the defendant knowingly, intelligently, and
voluntarily enters into the stipulation. A stipulation to a
violation of the terms of one’s probation can have significant
consequences, including - as was the case here - the potential
for extended incarceration. The record does not reflect that
Sandoval understood the consequences of stipulating to the
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State’s motions to revoke probation, and accordingly, the
stipulation should be vacated. Moreover, at Sandoval’s
resentencing hearing, the circuit court did not sufficiently
justify the imposition of consecutive sentences for each count
while considering the factors in Hawai‘i Revised Statutes (HRS)
§ 706-606 (2014). Thus, we vacate Sandoval’s sentence and
remand for further proceedings related to Sandoval’s probation
revocation and resentencing.
II. BACKGROUND
A. Circuit Court Proceedings
1. Change of Plea Hearing, 1PC-14-1-001782 (Case 1)
On May 18, 2015, the circuit court 1 held a change of
plea hearing in Case 1 at which Sandoval pleaded no contest to
nine counts of violating an injunction against harassment of CW1
pursuant to HRS § 604-10.5(i) (2016), 2 and the State agreed to
nolle prosequi the remaining four counts.
After a colloquy, the court found that Sandoval
“knowingly, voluntarily, and intelligently entered his plea with
an understanding of the nature of the charges against him,”
1 The Honorable Christine E. Kuriyama presided over proceedings in
all three cases.
2 HRS § 604-10.5(i) states, “A knowing or intentional violation of
a restraining order or injunction issued pursuant to this section is a
misdemeanor[.]”
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accepted the change of plea, and adjudged Sandoval guilty as
charged as to all nine counts.
The State and Sandoval’s counsel agreed on a
recommended sentence: 180-day jail term with credit for time
served, one year of probation, a “stay-away order” from CW1 and
the restaurant where she worked (which Sandoval’s mother owned),
and mental health assessment and treatment. The court imposed
this sentence on each count as “a concurrent sentence meaning
everything . . . will run together.”
2. Change of Plea Hearing, 1PC-15-1-001156 (Case 2)
On March 21, 2016, the court heard Sandoval’s change
of plea in Case 2, for two counts of violating the injunction
against harassment of CW1. The court again accepted Sandoval’s
plea of no contest after a colloquy.
Noting that Sandoval had seventeen prior convictions
for violating a restraining order or injunction against
harassment - plus the two counts to which he pleaded that day -
the State requested one year of probation and mental health
assessment and treatment. Sandoval agreed and also requested
credit for time served. The court followed the recommendations
and imposed one year of probation with 100 days imprisonment on
both counts (the amount of time he had already been
incarcerated), to run concurrently.
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3. Trial, 1PC-16-1-0563 (Case 3)
In March 2018, Sandoval was tried on one count of
second-degree assault of CW2 in violation of HRS § 707-711 (2014
& Supp. 2018) 3 and one count of violating an injunction against
harassment of CW1. The bench trial stemmed from the events of
April 8, 2016, where Sandoval twice visited the restaurant where
CW1 worked, once around 8:00 p.m. and again around 10:00 p.m.
Both visits culminated in physical altercations, and Sandoval
was charged with violating the injunction against harassment of
CW1 for the 8:00 p.m. incident and with second-degree assault of
CW2 for the 10:00 p.m. incident. Conflicting versions of the
events of the day emerged at trial. In Sandoval’s version of
the 8:00 p.m. incident, RR, CW1’s coworker, along with CW2,
attacked Sandoval. When Sandoval returned at 10:00 p.m. to
gather belongings he had left at the scene, CW2 approached
3 HRS § 707-711 (2014 & Supp. 2018) states in relevant part:
(1) A person commits the offense of assault in the second
degree if:
(a) The person intentionally, knowingly, or
recklessly causes substantial bodily injury to
another;
(b) The person recklessly causes serious bodily
injury to another;
. . .
(d) The person intentionally or knowingly causes
bodily injury to another with a dangerous
instrument[.]
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Sandoval, and Sandoval defended himself with his fists, thinking
CW2 intended to attack him again. Sandoval acknowledged that he
“str[uck] [CW2] first” during the 10:00 p.m. incident. But
according to several witnesses, CW2 did not hit Sandoval during
the 8:00 p.m. incident, and Sandoval attacked CW2 with a knife
when Sandoval returned to the scene at 10:00 p.m. The State
introduced photos of two cuts on CW2’s face: one on his left
cheek and one on the right side of his face in the space between
his nose and mouth. CW2 went to Wahiawā General Hospital, where
he got stitches.
The circuit court found Sandoval guilty on both
counts.
4. Motions for Revocation of Probation and Resentencing,
Cases 1 and 2, and Sentencing, Case 3
The State moved to revoke Sandoval’s probation on
various grounds in Cases 1 and 2. At the hearing on the State’s
motion, Sandoval’s counsel began by stating that Sandoval would
stipulate that the convictions in Case 3 violated the terms and
conditions of his probation. The parties and the court had the
following exchange:
[DEFENSE COUNSEL]: Judge, I’ve had a chance to speak to Mr.
Sandoval about the two motions for revocation of probation.
At this point in time, although he knows he has the right
to have a contested hearing to have [his probation officer]
come in and testify to the Court about violations, he would
not be doing that. And he would be stipulating that the
convictions here violated the terms and conditions of his
probation.
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THE COURT: Thank you.
[THE STATE]: You need to get that from the defendant
directly.
THE COURT: Mr. Sandoval; is that correct?
THE DEFENDANT: Yes, Your Honor. At the times of probation
I did check in, but I’m not going to deny that I did not
pick up a new charge, or I’m not saying –
THE COURT: There are other reasons as to why the motions
were filed.
THE DEFENDANT: Oh and I did have it appointed, I just –
‘cause I got rearrested, I was not able to make an
appointment. So I did not –
[DEFENSE COUNSEL]: For the substance abuse assessment.
THE DEFENDANT: - I wasn’t able to comply.
THE COURT: [Defense counsel], would you like to take a few
minutes and go over -
[THE STATE]: Actually, I think to make it easier I would
orally supplement both motions to indicate that he has been
convicted of a felony which requires the Court to revoke
the probation if he will stipulate that he did receive the
terms and conditions that were included in each motion, and
he is the same person and he understood everything.
The circuit court recessed so that Sandoval could
review this information with his counsel. After the recess, the
following exchange occurred:
THE COURT: Is he still stipulating to both motions?
[DEFENSE COUNSEL]: Yes, Judge, with an explanation, if you
would bear with us.
THE COURT: Alright.
THE DEFENDANT: Yeah. My explanation, I was out for three
weeks, Your Honor. And I did see my probation officer.
And I did get a full-time job . . . even though some of
supervise[d] release the prosecutor said that, oh, they
couldn’t confirm that[.]
[DEFENSE COUNSEL]: But – but, Judge, Mr. Sandoval, even
though he was working, he did not provide the information
to his probation officer ‘cause he was arrested shortly
thereafter.
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. . . .
[DEFENSE COUNSEL]: And, of course, we’re also agreeing
that he did get arrested for violating the restraining
order.
. . . .
THE COURT: Mr. Sandoval, the motions then will be granted
and you will be resentenced in those two misdemeanor cases;
do you understand?
THE DEFENDANT: Yes, ma’am.
THE COURT: In addition to the felony case today.
During the sentencing portion of the hearing, the
State first discussed whether probation would be appropriate,
addressing every factor listed in HRS § 706-621 (2014), 4 the
4 HRS § 706-621 states:
The court, in determining whether to impose a term of
probation, shall consider:
(1) The factors set forth in section 706-606 to the extent
that they are applicable;
(2) The following factors, to be accorded weight in favor
of withholding a sentence of imprisonment:
(a) The defendant’s criminal conduct neither caused
nor threatened serious harm;
(b) The defendant acted under a strong provocation;
(c) There were substantial grounds tending to excuse
or justify the defendant’s criminal conduct, though
failing to establish a defense;
(d) The victim of the defendant’s criminal conduct
induced or facilitated its commission;
(e) The defendant has no history of prior delinquency
or criminal activity or has led a law-abiding life
for a substantial period of time before the
commission of the present crime;
(continued . . .)
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statute governing probation. Since the circuit court
subsequently adopted the State’s analysis, we quote it at length
here:
2-A. The defendant’s criminal conduct neither caused nor
threatened serious harm. The Court has found that it did
cause a substantial bodily injury. Also, with this being
the nineteenth conviction for either violation of TRO or
injunction against harassment taken out by the same
petitioner, [CW1]. Although each violation may not seem
like so much, it most certainly adds up, especially to the
mental well-being of the petitioner. That factor goes
against the defendant.
B. The defendant acted under a strong provocation. Though
he testified to that effect, the Court found the other
witnesses to be credible and, thus, consistently would not
find that his claims of provocation are true. That factor
goes against the defendant.
[C.] There was substantial grounds tending to excuse or
justify the defendant’s criminal conduct, though failing to
establish a defense. Same thing again. He was in the
midst of a fight. He tried to claim that a ring of his cut
the cheek of [CW2]. The Court did not find that credible.
And there’s really nothing else that would otherwise
constitute an excuse not enough to be a defense.
[D.] The victim of defendant’s conduct induce[d] or
facilitate[d] its commission. It goes against the
defendant again. The defendant has no history of prior
delinquency. I mentioned [nineteenth] conviction for
violation of injunction against harassment.
(f) The defendant’s criminal conduct was the result
of circumstances unlikely to recur;
(g) The character and attitudes of the defendant
indicate that the defendant is unlikely to commit
another crime;
(h) The defendant is particularly likely to respond
affirmatively to a program of restitution or a
probationary program or both;
(i) The imprisonment of the defendant would entail
excessive hardship to the defendant or the
defendant’s dependents; and
(j) The expedited sentencing program set forth in
section 706-606.3, if the defendant has qualified for
that sentencing program.
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[E.] Although we do acknowledge that this is his first
felony, which is something to consider. Usually, given the
history and when this came up, this is also clearly an
escalation, which I will be getting into further.
2-F. Defendant’s criminal conduct was the result of
circumstances unlikely to reoccur. Briefly on this point.
The Court has heard the defendant’s testimony in court.
Has had him appear multiple times. But I will focus on his
testimony and his statement in the [presentence report
(PSR)].
He is fixated on [CW1]. And what was long ago recognized
to be a[n] unhealthy way, he maintains that fixation. He
went up on the stand and made several claims that [CW1]
tells him that she loves him. And the State had to bring
her back on and other people he said come up to him and
tell him that [CW1] loves him. And they all had to make it
clear that, no, I never said that sort of thing.
But this is not a fixation that rises to the level of 704,
lack of penal responsibility. That was something that was
considered. The defendant, having been found fit, decided
to withdraw[] consideration of that. But it is this
fixation which shows that this is just going to continue.
And I will get back to the e[s]calation that’s occurred
while it’s continued at least [nineteen] times that he’s
been convicted for.
[G.] The character and attitude of the defendant indicate
that the defendant is unlikely to commit another crime.
Nineteenth conviction on the violation of the injunction
against harassment. And it will be counting if he’s
released.
[H.] The defendant’s particularly likely to respond
affirmatively to program of restitution or probationary
program or both. And this is probably one of the most
important parts for criteria for probation.
This defendant is now - has just been revoked on [twelve]
of the prior [eighteen] counts. The other ones lapsed, I
guess, at this point. But he has been consistently
violating a court order which simply tells him to remain
away from [CW1], have no contact with her, and not go to
her business, which everyone knows is his family’s
restaurant. He knows not to go there. Even in his
testimony he proffers no basis for why he should be in
there.
Since he can’t follow [the] simpl[e]st of court orders, an
affirmative court order against him, there’s no basis to
find that probationary terms will work. This is in
addition to the PSR - well, I’m just covering over lightly
the PSR goes into some detail of correction on his prior
probations. They haven’t worked. And it’s not for lack of
services, it’s not for lack of the court, it is lack of the
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defendant’s willingness to follow court orders. And that
does not look like it’s going to change.
I. The imprisonment of the defendant would be - would
entail excessive hardship to the defendant or the
defendant’s dependents. There’s no dependents involved
here. Jail is a hardship. It’s meant to be a hardship.
That’s part of the point. There’s nothing to indicate that
this would be excessively a hardship. And it’s going to
have to be weighed to the factors in 706-606, which I’ll be
getting to momentarily.
J. The expedited sentencing program set forth in 706-606.3
if the defendant is qualified, which he hasn’t. Basically,
every factor goes against probation.
The State next addressed each of the factors to be
considered in imposing a sentence, set forth in HRS § 706-606: 5
I wanted to set [the probation statute] aside first because
then we go to 706-606. And we most certainly can cross out
2-D, to provide the defendant with needed education or
vocational training, or, I’m sorry, medical care or other
5 HRS § 706-606 provides:
The court, in determining the particular sentence to be
imposed, shall consider:
(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.
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correctional treatment in the most effective manner. He’s
not amenable to probation. He’s not amenable to these
treatments. To the degree that he is, they are separate
and apart from him following simple court orders and
respecting the wishes of [CW1], let alone not physically
hurting members of his own family [CW2], granted by
marriage, not by blood.
The nature and circumstances of the offense and the history
of the characteristics of the defendant, I will get to
that.
The need for the sentence imposed. 2-A, to reflect the
seriousness of the offense. To promote respect for law and
provide for just punishment of the offense [B]. And, C, to
protect the public from further crimes of the defendant.
And the State does point out that in this case public
includes just any member of the public. [CW1] should not
have to [] continually suffer the intentions of this
defendant simply because she is one person, one member of
the public.
C is highly applicable here. I still want to touch on A
and C, but I want to touch very briefly on B, to afford
adequate deterrence to the defendant’s criminal conduct.
Nothing is going to do that. Absolutely nothing is going
to do that at this point, Your Honor[.]
It might be curbed for a time. Particularly the level of
violence that might be used at any particular point, but
not enough. And of all the defendants I’ve had, this is
the defendant that I’m worried is going to kill someone.
He may not mean to going in, I acknowledge that. He may
try to be a good person, I acknowledg[e] that. But this is
where I’m getting to with the escalation.
The State further argued that the Court should impose
consecutive sentences based on the same factors, stating:
But [if] the Court does not make these consecutive. The
defendant already having served about two years of the
five. Three years he’s out and then what? I would much
rather have a rehabilitative program, but I don’t know of
anything given the history at this point. If it comes up,
even if this is consecutive terms, again, the parole board
can consider that.
In response, Sandoval’s counsel stated that the Hawai‘i
Paroling Authority does not deal with misdemeanor cases; thus,
the suggestion that Sandoval would be released on parole even if
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the court imposed a long sentence was incorrect. Counsel asked
for probation.
When Sandoval himself had a chance to speak, he stated
that some of the injunction violations arose from his family
getting CW1 to report falsely that he had committed a violation.
He told the court that he “would never hurt [CW1], never,
because [he] love[d] her with all of [his] heart.” He also
stated that CW1 lied when she testified at trial - although she
said that Sandoval was merely a coworker, on cross-examination
she admitted that they sometimes ate ice cream together.
Further, Sandoval asserted that they also went on breakfast and
lunch dates. Sandoval continued at length, pointing out
inconsistencies in the State’s case, describing his relationship
with CW1, CW2, and family members, and asserting that many
people involved in the case (including CW1) were lying about his
conduct. He stated, however, that he continued to believe that
CW1 loved him and was his girlfriend.
After Sandoval finished his statement, the court
stated:
I’ve looked at the sentencing factors set forth in Section
706-606 of the Hawai‘i Revised Statutes and the factors to
be considered in imposing a term of probation under Section
706-621. [The State] discussed each of these factors and I
agree with his assessment.
I believe that the factors to be considered in imposing a
term of probation in each of these cases, they all weigh
against you for the reasons stated, for the reasons which
are reflected in the record. The factors to be considered
in imposing a sentence. I’m very concerned about the
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manner in which you are thinking, the manner in which you
are expressing yourself. . . . And I agree with [the
State]’s assessment as to the factors in 706-606.
The court further stated, “It concerns me greatly that
you’re saying, I want to get out and get my girl back. Which
indicates to the Court that if you are released from custody
you’re going to be violating the restraining order [CW1] may
have in place at this time.” After further statements from
Sandoval, the court then said:
Mr. Sandoval, I am concerned about the Assault 2 incident.
I’m very concerned about the TRO violations. And I’m very
concerned about [CW1]’s safety and well-being. There are a
number of factors which I feel weigh against you in terms
of placing you on probation. Among them are that you have
significant mental health issues that you are denying. The
records indicate at times that you had a serious substance
abuse issue. You still believe that [CW1] is your
girlfriend and loves you. And you believe that your family
and others are conspiring against you.
After Sandoval made further statements and a
brief recess, the court continued, at times with
interjection from Sandoval:
You appear to lack insight into the personal issues you’re
facing in your life and that you are dealing with. You
blame others for your circumstances and not yourself. Your
behavior reflects that you have acted violently and
aggressively in the past. And that you at times have posed
a danger to others.
. . . .
The record also reflects, as the State has pointed out,
that your conduct, your behavior has been escalating. You
have all of these TRO violation charges. You have the
Assault [2] felony charge now.
The Court, “looking at everything, [and] taking into
consideration the totality of the circumstances,” sentenced
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Sandoval to five years for the second-degree assault conviction
and one year for each of the twelve TRO violations, to be served
consecutively (seventeen years total) with credit for time
served.
B. ICA Proceedings
1. Sandoval’s Points of Error
Sandoval raised five points of error in the ICA,
rephrased for clarity as follows: (1) whether the circuit court
erred when it concluded that Sandoval’s no-contest pleas in
Cases 1 and 2 were entered into voluntarily, intelligently, and
knowingly; (2) whether the circuit court abused its discretion
when it imposed consecutive sentences because it failed to
advise Sandoval of the potential for consecutive sentences when
it accepted Sandoval’s stipulation to revoke probation; (3)
whether the circuit court erred by failing to state the specific
factors it considered when imposing consecutive sentences; (4)
whether the circuit court erred by relying on Sandoval’s refusal
to admit guilt when imposing consecutive sentences; and (5)
whether there was substantial evidence to support Sandoval’s
conviction of second-degree assault in Case 3.
As to his first point of error, Sandoval specifically
challenged four aspects of his no-contest plea: (1) “the trial
court failed to advise [him] of the maximum penalty provided by
law for the adjudicated offenses”; (2) “the trial court failed
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to advise [him] of the impact a consecutive sentence would
have”; (3) “the trial court failed to advise [him] that he had
the right to a jury trial,” and (4) “the trial court failed to
inquire whether [his] ‘willingness to plead guilty was a result
from a plea agreement as required by [Hawaiʻi Rules of Penal
Procedure (HRPP)] Rule 11(d).’” 6 (Quoting State v. Solomon, 107
6 HRPP Rule 11 provides in relevant part:
(b) No contest. A defendant may plead no contest only with
the consent of the court. Such a plea shall be accepted by
the court only after due consideration of the views of the
parties and the interest of the public in the effective
administration of justice.
(c) Advice to defendant. The court shall not accept a plea
of guilty or no contest without first addressing the
defendant personally in open court and determining that the
defendant understands the following:
(1) the nature of the charge to which the plea is
offered; and
(2) the maximum penalty provided by law, and the
maximum sentence of extended term of imprisonment,
which may be imposed for the offense to which the
plea is offered; and
(3) that the defendant has the right to plead not
guilty, or to persist in that plea if it has already
been made; and
(4) that if the defendant pleads guilty or no contest
there will not be a further trial of any kind, so
that by pleading guilty or no contest the right to a
trial is waived.
(d) Advisement concerning alien status. Prior to entry of
a plea of guilty or no contest, or admission of guilt of
sufficient facts to any offense punishable as a crime under
state law, except those offenses designated as infractions,
the court shall read the advisement in [§ 802E-2], Hawaiʻi
Revised Statutes, on the record to the defendant.
(continued . . .)
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Hawaiʻi 117, 127, 111 P.3d 12, 22 (2005)).
2. The ICA’s Memorandum Opinion
The ICA held that it lacked jurisdiction to consider
Sandoval’s challenge to the voluntariness of his no-contest
pleas because he only appealed from the circuit court’s post-
judgment orders of resentencing. Because Sandoval did not
appeal the underlying judgments of conviction in Cases 1 and 2,
and the underlying judgments were not “preliminary rulings upon
which the [post-judgment resentencing orders were] predicated,”
the ICA said it could not review those underlying judgments for
the voluntariness of Sandoval’s no-contest pleas. (Quoting Cook
v. Surety Life Ins. Co., 79 Hawai‘i 403, 409, 903 P.2d 708, 714
(App. 1995)).
The ICA further rejected Sandoval’s contention that
the circuit court should have advised him of the maximum penalty
he could face by stipulating to the motions to revoke probation.
Noting that Sandoval waived this point of error by failing to
make a supporting argument, the ICA also rejected the contention
on its merits. The ICA quoted HRS § 706-625(5) (2014), which
(e) [E]nsuring that the plea is voluntary. The court shall
not accept a plea of guilty or no contest without first
addressing the defendant personally in open court and
determining that the plea is voluntary and not the result
of force or threats or of promises apart from a plea
agreement. The court shall also inquire as to whether the
defendant’s willingness to plead guilty or no contest
results from any plea agreement.
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states, “When the court revokes probation, it may impose on the
defendant any sentence that might have been imposed originally
for the crime of which the defendant was convicted.” Based on
this language, the ICA concluded that there was no legal basis
for the argument that the circuit court was required to notify
him of the consequence of probation revocation before he
stipulated to the motions to revoke probation. Additionally,
the ICA pointed out that “the record reveals that when Sandoval
stipulated to the motions to revoke probation, he had notice
that consecutive sentences could be imposed” based on his
signatures on the no-contest plea form and the form stating the
terms and conditions of his probation, and his attorney’s
statements at the change of plea hearing.
Third, the ICA addressed Sandoval’s contention that
the circuit court improperly imposed consecutive sentences. The
circuit court had discretion to order that Sandoval serve
consecutive terms of imprisonment, and was required to consider
the factors set forth in HRS § 706-606. 7 HRS § 706-668.5 (Supp.
2015) (giving sentencing courts discretion to impose consecutive
sentences after considering the § 706-606 factors). The ICA
identified the portions of the record in which the circuit court
considered the statutory sentencing factors and stated reasons
7 For the text of HRS § 706-606, see supra, note 5.
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for the sentence that related to those factors. For example,
[t]he [c]ircuit [c]ourt also identified several concerns
that related to the sentencing factors, including that
Sandoval had repeatedly failed to comply with the terms of
his probation (HRS § 706-606(2)(a)-(d)); showed escalating
behavior (HRS § 706-606(1) and (2)(c)); made statements
suggesting he would continue violating the [i]njunction
(HRS § 706-606(1) and (2)(a)-(d)); and lacked insight into
personal issues, blamed others for his circumstances, and
posed a danger to others (HRS § 706-606(1) and (2)(c)).
The ICA further concluded that the circuit court
satisfied the requirement set forth in State v. Hussein, 122
Hawai‘i 495, 509-10, 229 P.3d 313, 327-28 (2010), that a
sentencing court state its reasons for imposing consecutive
sentences. In the ICA’s view, the circuit court “identified the
specific facts or circumstances within the range of statutory
factors that the court considered,” and stated that it was
imposing consecutive sentences based on the totality of the
circumstances identified.
The ICA also rejected Sandoval’s contention that the
circuit court at sentencing improperly relied upon his refusal
to admit guilt. In reviewing the transcript of the sentencing
hearing, the ICA could not identify any statements of the
circuit court that supported Sandoval’s assertion.
Finally, the ICA disagreed with Sandoval’s argument
that there was insufficient evidence to support his conviction
for second-degree assault. As the ICA noted, at the time
Sandoval was charged, the statute defined the offense as, in
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relevant part, “intentionally or knowingly caus[ing] substantial
bodily injury to another,” “recklessly caus[ing] serious or
substantial bodily injury to another,” or “intentionally or
knowingly caus[ing] bodily injury to another with a dangerous
instrument[.]” The ICA concluded that, taking the evidence in
the light most favorable to the State, there was substantial
evidence to support Sandoval’s conviction.
In his application for writ of certiorari, Sandoval
presents the same points of error he presented to the ICA.
III. STANDARDS OF REVIEW
A. Acceptance of No-Contest Plea
The trial court is vested with wide discretion to
accept or refuse a nolo contendere plea, and the acceptance
or refusal of a no contest plea is therefore reviewed for
abuse of that discretion. . . . An abuse of discretion
occurs if the trial court has clearly exceeded the bounds
of reason or has disregarded rules or principles of law or
practice to the substantial detriment of a party litigant.
State v. Merino, 81 Hawai‘i 198, 211, 915 P.2d 672, 685 (1996)
(quotation marks, citations, brackets, and footnote omitted).
B. 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 which indicate a plain and manifest abuse of
discretion are arbitrary and capricious action by the judge
and a rigid refusal to consider the defendant’s
contentions. And, generally, 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. Rivera, 106 Hawai‘i 146, 154-55, 102 P.3d 1044, 1052-53
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(2004) (block quotation format altered) (quotation marks,
brackets, and citations omitted) (overruled on other grounds by
Flubacher v. State, 142 Hawai‘i 109, 414 P.3d 161 (2018)).
In order to facilitate appellate review for abuse of
a trial court’s sentencing discretion, and whenever a
defendant is qualified for sentencing alternatives and the
sentence imposed is unsatisfactory to the defendant, we
strongly encourage and recommend that . . . the sentencing
court . . . state its reasons for imposing the particular
sentence.
State v. Gaylord, 78 Hawai‘i 127, 144, 890 P.2d 1167, 1184 (1995)
(quotation marks, brackets, and citations omitted).
In addition, “[t]he weight to be given the factors set
forth in HRS § 706-606 in imposing [a] sentence is a matter
generally left to the discretion of the sentencing court, taking
into consideration the circumstances of each case.” State v.
Akana, 10 Haw. App. 381, 386, 876 P.2d 1331, 1334 (1994).
C. Substantial Evidence
Substantial evidence as to every material element of
the offense charged is credible evidence which is of
sufficient quality and probative value to enable a person
of reasonable caution to support a conclusion. And as
trier of fact, the trial judge is free to make all
reasonable and rational inferences under the facts in
evidence, including circumstantial evidence.
State v. Eastman, 81 Hawai‘i 131, 135, 913 P.2d 57, 61 (1996)
(quotation marks and brackets omitted) (quoting State v. Pone,
78 Hawai‘i 262, 265, 892 P.2d 455, 458 (1995)).
“Further, in reviewing whether substantial evidence
exists to support a conviction, due deference must be given to
the right of the trier of fact to determine credibility, weigh
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the evidence, and draw justifiable inferences of fact from the
evidence adduced.” State v. Taliferro, 77 Hawaiʻi 196, 201, 881
P.2d 1264, 1269 (App. 1994) (citing State v. Naeole, 62 Haw.
563, 565, 617 P.2d 820, 823 (1980)).
D. Acceptance of a Stipulation
The validity of a defendant’s waiver of their due
process rights “presents a question of state and federal
constitutional law. We answer questions of constitutional law
by exercising our own independent constitutional judgment based
on the facts of the case. Thus, we review questions of
constitutional law under the right/wrong standard.” State v.
Gomez-Lobato, 130 Hawai‘i 465, 468-69, 312 P.3d 897, 900-01
(2013) (quotation marks and ellipses omitted) (quoting State v.
Friedman, 93 Hawai‘i 63, 67, 996 P.2d 268, 272 (2000)).
IV. DISCUSSION
A. The ICA Properly Rejected Sandoval’s Challenge to His No-
Contest Pleas in Cases 1 and 2
Sandoval failed to timely challenge the judgments of
conviction in Cases 1 and 2. We therefore do not have
jurisdiction to review the voluntariness of Sandoval’s no-
contest pleas. Pursuant to HRS § 641-11 (2016) and Hawai‘i Rules
of Appellate Procedure (HRAP) Rule 4(b)(1), a defendant in a
criminal case has 30 days to appeal a judgment of the circuit
court. An untimely appeal generally deprives the reviewing
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court of jurisdiction to consider it. 8 Cabral v. State, 127
Hawai‘i 175, 184, 277 P.3d 269, 278 (2012).
Additionally, Sandoval’s timely appeal of his
resentencing orders does not confer jurisdiction upon the
reviewing court to examine his underlying conviction. This
comports with the approaches taken by the federal courts. See,
Ee.g., United States v. Cate, 971 F.3d 1054, 1057-58 (9th Cir.
2020) (concluding that a supervised release hearing was not the
proper proceeding for a defendant to challenge his underlying
federal conviction); United States v. Wallace, 335 F.3d 76, 78
(2d Cir. 2003) (holding that a defendant could not, at a
supervised release revocation proceeding, collaterally attack
the conviction or sentence which resulted in his supervised
release); United States v. Torres-Flores, 624 F.2d 776, 780 (7th
Cir. 1980) (“However meritorious this defendant’s . . . claim
may be, an appeal from a probation revocation is not the proper
avenue for a collateral attack on the underlying conviction.”);
United States v. Francischine, 512 F.2d 827, 828-29 (5th Cir.
1975) (holding that the underlying validity of a conviction
8 One exception is when “defense counsel has inexcusably or
ineffectively failed to pursue a defendant’s appeal from a criminal
conviction in the first instance.” State v. Knight, 80 Hawai‘i 318, 323, 909
P.2d 1133, 1138 (1996) (quoting Grattafiori v. State, 79 Hawai‘i 10, 13-14,
897 P.2d 937, 940-41 (1995)). Since Sandoval does not allege ineffective
assistance of counsel prevented him from challenging his no-contest pleas in
Cases 1 and 2, that exception is not applicable here.
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cannot be asserted as a defense in a probation revocation
proceeding).
This is also consistent with the approach we have
taken in civil cases: “[W]hen an order is properly certified
pursuant to [Hawaiʻi Rules of Civil Procedure (HRCP)] Rule 54(b),
the certification necessarily renders every preliminary ruling
upon which it was predicated final and appealable as well.”
Weinberg v. Mauch, 78 Hawai‘i 40, 46, 890 P.2d 277, 283 (1995)
(quotation marks and citation omitted). The Weinberg language
implies that prior rulings leading up to an appealable order are
only reviewable where the appealed order is predicated on those
prior rulings. The ICA adopted this interpretation in Cook v.
Surety Life Insurance Co., 79 Hawai‘i 403, 903 P.2d 708 (App.
1995), when it considered whether it could review orders
granting summary judgment in addition to the Rule 54(b)-
certified order enforcing a settlement agreement, stating:
[W]e agree with [Appellee’s] assertion that this court has
no jurisdiction to consider Appellants’ appeal of the
orders granting summary judgment in favor of Appellees.
Irrespective of whether the Order was a collateral order or
an order certified pursuant to HRCP Rule 54(b), this court
will only consider other orders which were preliminary
rulings upon which the subject Order was predicated or were
part of the series of orders which collectively led to that
Order. Weinberg, 78 Hawai‘i at 46, 890 P.2d at 283 (on Rule
54(b) certified order)[;] [s]ee Security Pac. Mortgage
Corp. v. Miller, 71 Haw. 65, 71, 783 P.2d 855, 858 (1989)
(review is limited to parameters of orders appealed from).
The summary judgment orders concern the merits of the case,
and the settlement order in issue has no bearing on the
merits. While the outcome of the summary judgment motions
may have affected the parties’ supposed willingness to
negotiate as a practical matter, the summary judgment
orders were not a prerequisite necessary to the Order.
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Id. at 409, 903 P.2d at 714.
Thus, after an order revoking probation and
resentencing, a defendant may appeal that order to challenge the
revocation or the imposition of the new sentence. See, e.g.,
State v. Delima, 78 Hawai‘i 343, 346, 893 P.2d 194, 197 (1995)
(reviewing the defendant’s sentence imposed upon resentencing
from revocation of probation). But the merits of a person’s
original conviction cannot be challenged on appeal from a
subsequent probation revocation or resentencing. For that
reason, the ICA was correct to determine that it lacked
jurisdiction to consider the voluntariness of Sandoval’s no-
contest pleas in Cases 1 and 2. If Sandoval wishes to challenge
these convictions, the proper vehicle is a HRPP Rule 40
petition.
B. Due Process Requires that a Defendant Knowingly,
Voluntarily, and Intelligently Stipulate to a Probation
Violation
Sandoval argues that he was not properly informed of
the consequences of stipulating to the State’s motion to revoke
probation. Specifically, he argues that he was unaware of the
possibility that such a stipulation could result in him being
resentenced to consecutive sentences in Cases 1 and 2. We
agree.
The rights a defendant gives up when stipulating to a
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probation violation – particularly the right to have the State
prove the probation violation – are similar in kind to those
that accompany a guilty plea. The consequences are alike, too:
revocation of probation may result, as it did here, in
incarceration. In part for these reasons, the United States
Supreme Court has held that due process protections apply when a
defendant stipulates to revoke parole. See Gagnon v. Scarpelli,
411 U.S. 778, 781-82 (1973) (“Even though the revocation of
parole is not a part of the criminal prosecution, . . . the loss
of liberty entailed is a serious deprivation requiring that the
parolee be accorded due process”).
Indeed, many jurisdictions recognize that a
probationer’s due process rights includes the requirement that
entering into a stipulation of a probation violation be done
knowingly, voluntarily, and intelligently. For instance, the
Georgia Supreme Court has held that a reviewing court may vacate
a probation revocation when “there is independent evidence in
the record suggesting that admission of probation violations was
not knowing and voluntary.” Meadows v. Settles, 561 S.E.2d 105,
108-09 (Ga. 2002) (quotation marks and ellipses omitted) (citing
United States v. Pelensky, 129 F.3d 63, 68 (2d Cir. 1997)).
Likewise, the Court of Appeals of Massachusetts held that “a
defendant’s agreement to waive a probation revocation hearing –
such as by stipulating to violations – must be knowing and
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voluntary and that such waiver can be assessed under the
totality of the circumstances[.]” Commonwealth v. Sayyid, 17
N.E.3d 469, 470 (Mass. App. Ct. 2014); see also State v. Lavoy,
614 A.2d 1077, 1079 (N.J. Sup. Ct. App. Div. 1992) (“The
requirement that the court personally address the defendant
before accepting a guilty plea [to a probation violation] is
designed to assure that the defendant understand the charges,
that a factual basis for the plea exists and that the plea is
voluntary.”); Hersch v. State, 562 A.2d 1254, 1256-57 (Md. 1989)
(recognizing that “[a] probation revocation proceeding can, and
often does, result in immediate deprivation of liberty,” and
that “certain fundamental rights [ ] can be waived only where
the record affirmatively discloses a voluntary, knowing, and
intelligent relinquishment of the right by the defendant
himself.”); Commonwealth v. Bell, 410 A.3d 843, 844 (Pa. Super.
Ct. 1979) (requiring that some on-the-record showing be made to
determine whether a probationer’s waiver of a hearing is
voluntary); People v. Hardin, 245 N.W.2d 566, 568 (Mich. Ct.
App. 1976) (recognizing that “in order to insure that a
defendant’s admission of [a] probation violation is ‘knowing and
voluntary’ prior to the court’s acceptance of the plea, it is
necessary that the defendant be at least advised of his due
process rights to a hearing”); In re Jankowski, 157 A.3d 573,
581 (Vt. 2016) (“Whether or not an on-the-record colloquy is
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required [before accepting a defendant’s stipulation to waive a
hearing on probation revocation], the totality of the
circumstances must nonetheless demonstrate that the waiver was
knowing and voluntary[.]”).
Stipulating to revocation is both an admission of
culpability for the violation and, in effect, a waiver of the
defendant’s right to constitutionally protected procedures.
Thus, many jurisdictions agree that the record must demonstrate
that a stipulation to revoke probation is made knowingly,
voluntarily, and intelligently. And indeed, such a requirement
is consistent with our law protecting several critical choices a
defendant may make over the course of a criminal proceeding to
ensure no defendant is wrongly denied the rights the
constitution guarantees. See State v. Casey, 51 Haw. 99, 100,
451 P.2d 806, 808 (1969) (waiver of right of confrontation);
State v. Dickson, 4 Haw. App. 614, 619, 673 P.2d 1036, 1041
(1983) (waiver of right to counsel); State v. Ibuos, 75 Hawai‘i
118, 121, 857 P.2d 576, 578 (1993) (waiver of right to trial by
jury); Wong v. Among, 52 Haw. 420, 425, 477 P.2d 630, 634 (1970)
(guilty plea); State v. Hernandez, 143 Hawai‘i 501, 515, 431 P.3d
1274, 1288 (2018) (no contest plea). For these reasons, we hold
that before accepting a stipulation to revoke probation and
resentence a defendant, courts must consider whether the
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defendant knowingly, voluntarily and intelligently entered into
the agreement.
Although jurisdictions agree that the record must
demonstrate a stipulation to revoke probation was made
knowingly, voluntarily, and intelligently, only a few
jurisdictions require that the trial court engage in a colloquy
with the defendant to ensure that a defendant’s rights are
adequately protected. See, e.g., Lavoy, 614 A.2d at 1081(recognizing that a colloquy between the court and the defendant
is necessary “to obtain a factual basis for the plea [to a
probation violation] and to establish that the defendant is
pleading voluntarily and knowingly”); Hersch, 562 A.2d at 1258
(recognizing that an on-the-record colloquy “goes a long way
toward ensuring essential fairness in an important proceeding
while imposing only a small additional burden upon the trial
judge”). A majority of courts, including the federal courts,
have rejected requiring a colloquy. Settles, 561 S.E.2d at 107(“[T]he Federal courts that have addressed the issue have
concluded that ‘due process of law does not require a court to
elicit a formal waiver from a defendant who has admitted to
violating the terms of probation.’” (citation omitted)); United
States v. Pelensky, 129 F.3d 63, 68 (2d Cir. 1997) (declining to
adopt a colloquy requirement as a matter of federal law).
Following the majority of courts, we decline to adopt a formal,
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full colloquy requirement. Although trial courts have
discretion to decide how best to ensure that a defendant’s
rights are adequately protected, 9 the trial courts must ensure
that the record demonstrates that the court “canvas[es] the
matter with the accused to make sure he has a full understanding
of what the plea connotes and of its consequences,” including,
most importantly, the defendant’s knowledge of the maximum
sentence that he may face when stipulating to a probation
violation. Settles, 561 S.E.2d at 109 (citation, quotation
marks, and brackets omitted).
Because the record before us does not reflect that
Sandoval’s stipulation was knowing, intelligent, and voluntary,
vacatur is the appropriate remedy. The exchange between the
parties and the court does not reflect that Sandoval knew he was
agreeing that he had violated his probation by being convicted
of a crime; rather, Sandoval addressed other, more minor
probation violations when addressed by the court, which might
not sufficiently justify revoking probation. See State v.
9 We note that, in the interest of sound judicial administration,
an on-the-record colloquy is an effective way to ensure that a defendant’s
rights are adequately protected. However, we find the Michigan Court of
Appeals’ reasoning in declining to adopt a formal, full colloquy requirement
persuasive. Hardin, 245 N.W.2d at 568-69 (“In holding today that a defendant
who desires to admit a probation violation must first be informed, on the
record, of his right to have a hearing, it is not our intent to lock the
trial judge into any ‘checklist’ type of situation.”)).
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Nakamura, 59 Haw. 378, 380, 581 P.2d 759, 762 (1978) (“The court
may revoke a defendant’s probation only where it is satisfied
‘that the defendant has inexcusably failed to comply with a
substantial requirement imposed as a condition of [probation.]’”
(emphasis added)). 10
Nor does the record confirm that Sandoval was informed
of the potential penalty at the time he purportedly stipulated
to his violations. See Wong, 52 Haw. at 425, 477 P.2d at 634(“[A waiver of one’s trial rights via entry of a guilty plea] is
not constitutionally acceptable unless made voluntarily and with
full understanding of the consequences.”). Most notably, it
does not appear that Sandoval was aware that he could be
sentenced consecutively on all counts.
Accordingly, we cannot conclude that Sandoval
stipulated to the probation violations knowingly, intelligently,
and voluntarily, and thus, the stipulation must be vacated.
10 The Nakamura court quoted a now-repealed statute governing
probation revocation, but the current scheme requires the same. HRS § 706-
625(c) (2014) provides:
The court shall revoke probation if the defendant has
inexcusably failed to comply with a substantial requirement
imposed as a condition of the order or has been convicted
of a felony. The court may revoke the suspension of
sentence or probation if the defendant has been convicted
of another crime other than a felony.
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C. The Circuit Court Did Not Sufficiently Justify its
Imposition of Consecutive Sentences
Pursuant to HRS § 706-668.5, 11 a sentencing court may
use its discretion to order that a person convicted of more than
one offense serve terms of imprisonment concurrently or
consecutively. That statute requires that the sentencing court
consider the factors set forth in HRS § 706-606 to make this
determination. 12
We held in State v. Barrios, 139 Hawai‘i 321, 389 P.3d
916 (2016), that when imposing multiple consecutive sentences,
the circuit court must “explain its rationale for each
consecutive sentence in order to inform the defendant and
appellate courts of the specific factors underlying each
sentence.” Id. at 337, 389 P.3d at 932 (emphasis added). We
further explained, “While the same factors could be sufficiently
aggravated to justify imposing more than one consecutive
11 HRS § 706-668.5 states in relevant part:
(1) If multiple terms of imprisonment are imposed on a
defendant, whether at the same time or at different times,
or if a term of imprisonment is imposed on a defendant who
is already subject to an unexpired term of imprisonment,
the terms may run concurrently or consecutively. Multiple
terms of imprisonment run concurrently unless the court
orders or the statute mandates that the terms run
consecutively.
(2) The court, in determining whether the terms imposed are
to be ordered to run concurrently or consecutively, shall
consider the factors set forth in section 706-606.
12 For the factors set forth in HRS § 706-606, see supra, note 5.
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sentence, the sentencing court should specify that basis or
identify another basis for determining how many consecutive
sentences to impose.” Id. Indeed, the instant case illustrates
why our law requires a rationale for each and every consecutive
sentence: thirteen consecutive sentences on each of Sandoval’s
convictions for violation of an injunction exposed him to a term
of imprisonment thirteen times the maximum sentence that could
have been imposed for each individually. Such “a large
disparity between the maximum statutory sentence for each
offense and the aggregate consecutive sentence imposed by the
court” requires that the court provide “a clearly articulated
rationale.” Id. at 338, 389 P.3d at 933.
The rationale on the record here is not sufficient to
meet that standard. At sentencing, the State specified the
facts relevant to each subsection of § 706-606; the circuit
court indicated that it agreed with the State’s analysis. The
circuit court also stated that it was concerned about Sandoval’s
repeated violation of the TRO, and that his statements about CW1
suggested he would continue to violate the TRO. Additionally,
the circuit court noted Sandoval’s apparent lack of self-
reflection into his personal issues and lack of respect for
CW1’s wishes. But while this may suffice to justify the
imposition of a consecutive sentence, it is not sufficient to
justify consecutive sentences for each of Sandoval’s thirteen
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convictions. The record does not sufficiently reflect that the
sentencing court considered whether each of those consecutive
sentences was necessary to further the ends of HRS § 706-606.
Accordingly, the circuit court’s observations did not explain
the reasoning behind imposing all of Sandoval’s sentences to run
consecutively, as Barrios requires.
Based on this record, the circuit court erred in imposing
consecutive sentences because it failed to specify why it
imposed each of the thirteen sentences consecutively. 13
D. There was Substantial Evidence to Support Sandoval’s
Conviction for Second-Degree Assault
Taking the evidence adduced in the light most
favorable to the State, substantial evidence supports Sandoval’s
conviction for second-degree assault. In his testimony,
Sandoval maintained that he was acting in self-defense because
he thought that CW2 was about to punch him. Self-defense to a
criminal charge contains both a subjective and an objective
prong: the defendant must believe that force is necessary, and
that belief must be reasonable. State v. Augustin, 101 Hawai‘i
127, 128, 63 P.3d 1097, 1098 (2002) (citing HRS §§ 703-304, 703-
305).
13 In light of our disposition on this issue, we need not consider
whether the sentencing court improperly relied upon Sandoval’s alleged
unwillingness to admit guilt.
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The question is therefore whether the State presented
substantial evidence to disprove that Sandoval acted in self-
defense. Upon review of the record, we conclude that it did.
Both CW2 and Sandoval testified that Sandoval threw the first
punch during the 10:00 p.m. incident, which was confirmed by
another witness at the scene. Sandoval also testified that he
voluntarily returned to the restaurant around 10:00 p.m.,
calling into doubt his testimony that he was afraid CW2 would
attack him. Two bystanders testified that they saw a knife in
Sandoval’s hand during the fight with CW2. And the photos of
CW2’s face show deep cuts. Thus, taking the evidence adduced in
the light most favorable to the State, substantial evidence
supported Sandoval’s conviction for second-degree assault.
V. CONCLUSION
For the foregoing reasons, we vacate the ICA’s
December 20, 2019 judgment on appeal and the circuit court’s
July 17, 2018 orders of resentencing and revocation of probation
in 1PC-14-1-001782 and 1PC-15-1-001156. We otherwise affirm the
circuit court’s May 18, 2015 and March 21, 2016 acceptance of
Sandoval’s no contest pleas in 1PC-14-1-001782 and 1PC-15-1-
001156, and the circuit court’s July 17, 2018 judgment of
conviction for second-degree assault and violation of an
injunction against harassment in 1PC-16-1-0563. We thus remand
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the case to the circuit court for further proceedings consistent
with this opinion.
Walter J. Rodby /s/ Mark E. Recktenwald
for petitioner
/s/ Paula A. Nakayama
Chad M. Kumagai
for respondent /s/ Sabrina S. McKenna
/s/ Michael D. Wilson
/s/ Bert I. Ayabe
36