State v. Barrios.

*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
Electronically Filed
Supreme Court
SCWC-13-0000118
22-DEC-2016
09:41 AM
IN THE SUPREME COURT OF THE STATE OF HAWAI#I
---o0o---
STATE OF HAWAI#I, Respondent/Plaintiff-Appellee,
vs.
WILLIAM E. BARRIOS, Petitioner/Defendant-Appellant.
SCWC-13-0000118
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-13-0000118; CR. NO. 10-1-0589(1))
DECEMBER 22, 2016
RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.
OPINION OF THE COURT BY RECKTENWALD, C.J.
William E. Barrios challenges his convictions and
resulting 100-year prison sentence for numerous sexual assaults
on a minor. We affirm Barrios’s convictions, but vacate the
sentence since the circuit court did not adequately explain its
reasons for imposing multiple consecutive prison terms on
Barrios, and since the court appeared to use Barrios’s refusal to
accept guilt as an aggravating factor in imposing his sentence.
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
Accordingly, we affirm in part and vacate in part the
Intermediate Court of Appeals’ March 13, 2015 judgment on appeal
and the circuit court’s judgment of conviction and sentence, and
remand this matter to the circuit court for resentencing before
another judge.
I. Background
A. Circuit Court Proceedings
On November 15, 2010, the State filed an indictment
against Barrios in the Circuit Court of the Second Circuit,1
charging Barrios with 200 felonies relating to Barrios’s alleged
sexual assault of two minors: Minor Daughter (MD) and Minor Son
(MS). The charges relating to MD were detailed in counts 1-193,
alleging sexual assault in the first degree in violation of HRS
§ 707-7302, kidnapping in violation of HRS § 707-7203, and sexual
1
The Honorable Joel E. August presided over Barrios’s arraignment
and bail hearing; the Honorable Rhonda I.L. Loo presided over all other
circuit court proceedings.
2
HRS § 707-730 (Supp. 2009) provides in pertinent part:
(1) A person commits the offense of sexual assault in
the first degree if:
(a) The person knowingly subjects another person
to an act of sexual penetration by strong
compulsion;
(b) The person knowingly engages in sexual
penetration with another person who is less than
fourteen years old;
. . . .
(2) Sexual assault in the first degree is a class A
felony.
3
HRS § 707-720 (Supp. 2009) provides in pertinent part:
(1) A person commits the offense of kidnapping if the
person intentionally or knowingly restrains another
(continued...)
2
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
assault in the third degree in violation of HRS § 707-732.4 The
charges relating to Barrios’s offenses against MS were detailed
in counts 194-200, alleging sexual assault in the first degree,
kidnapping, and attempted sexual assault in the first degree in
violation of HRS §§ 705-5005 and 707-730. Barrios pleaded not
3
(...continued)
person with intent to:
. . . .
(c) Facilitate the commission of a felony or
flight thereafter;
(d) Inflict bodily injury upon that person or
subject that person to a sexual offense[.]
4
HRS § 707-732 (Supp. 2009) provides in pertinent part:
(1) A person commits the offense of sexual assault in
the third degree if:
(a) The person recklessly subjects another
person to an act of sexual penetration by
compulsion;
(b) The person knowingly subjects to sexual
contact another person who is less than fourteen
years old or causes such a person to have sexual
contact with the person. . . .
(2) Sexual assault in the third degree is a class C
felony.
5
HRS § 705-500 (1993) provides:
(1) A person is guilty of an attempt to commit a crime
if the person:
(a) Intentionally engages in conduct which would
constitute the crime if the attendant
circumstances were as the person believes them
to be; or
(b) Intentionally engages in conduct which,
under the circumstances as the person believes
them to be, constitutes a substantial step in a
course of conduct intended to culminate in the
person’s commission of the crime.
(2) When causing a particular result is an element of
the crime, a person is guilty of an attempt to commit
the crime if, acting with the state of mind required
to establish liability with respect to the attendant
circumstances specified in the definition of the
crime, the person intentionally engages in conduct
which is a substantial step in a course of conduct
intended or known to cause such a result.
(continued...)
3
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
guilty and demanded a jury trial. Barrios’s trial began on
October 3, 2012, and lasted until November 15, 2012, when the
jury returned its verdict.
1. Trial
The State’s testimony at trial established that MD and
MS–-Mother’s children from a prior marriage––were under the age
of fourteen throughout the period of the alleged sexual assaults.
Mother and Barrios began dating, and in 2004, they and the
children moved in together.
Mother testified that she and Barrios both used crystal
methamphetamine extensively. Mother testified that during the
drug use, her relationship with Barrios was often violent, once
resulting in two fractured ribs after he punched her. Mother
also testified that Barrios was often violent with MD.
Mother testified that she began to observe physical
interactions between Barrios and MD, which worsened as Barrios’s
drug use increased. Mother stated that she witnessed MD using
her hands to masturbate Barrios “for years. It happened every
time we used drugs.” Mother also testified that she witnessed MD
“put[ting] her mouth on [Barrios’s] penis and giv[ing] him oral
sex . . . . eight times a month minimum.” MD and Mother both
testified that Barrios would often force MD to watch pornography
5
(...continued)
(3) Conduct shall not be considered a substantial step
under this section unless it is strongly corroborative
of the defendant’s criminal intent.
4
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
with him.
MD further testified that beginning in the summer of
2004, Barrios “made me touch his penis with my hand. And he um,
made me put his penis in my mouth and um, he um, he would um,
touch my breasts and bite my breasts and he would put his mouth
on my vagina too.” MD testified that between July and December
of 2004, this happened at least once a month, but that at other
times, such as late 2005 through early 2006, it happened far more
frequently, “like once a week at least.”
MD testified that on some occasions while Barrios
sexually assaulted her, he used physical force on her, such as
holding her down, punching her, and pulling on her hair or her
neck. Both Mother and MD testified that on at least one
occasion, Barrios forced them both to perform oral sex on him at
the same time.
On cross-examination, MD testified that she was not
certain of the exact number of times Barrios did certain things
to her, and she was “trying to estimate, but, like,
conservatively estimate because I know it happened a lot.”
MS also testified to several instances in which Barrios
forced MS to touch or suck on Barrios’s penis. For example, MS
further testified that Barrios came into MS’s room, threw MS from
his bed, punched MS in the stomach, and then made MS suck his
penis. MS also testified that if he did not do certain things,
like clean his room or train for football, Barrios would punch
5
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
him. MS further testified that on one occasion, Barrios hit him
on the head with a screwdriver, and on another occasion, Barrios
made MS kneel on Hawaiian salt “for a long time” after MS had
gotten into trouble.
After the State completed its case, the defense rested
without calling any witnesses or presenting any evidence.
In closing, the State highlighted that Barrios’s abuse
of MD occurred when MD was between eight and thirteen years old,
and his abuse of MS occurred while MS was between eight and ten
years old. The State also highlighted that “[e]ach act of sexual
penetration constitutes a separate offense.”
Barrios argued that the State’s evidence consisted
solely of “nonsensical, inconsistent stories,” and that the State
had not produced any physical evidence of the alleged assaults.
Barrios argued that the State was attempting to influence the
jury by appealing to their sense of pity for the complaining
witnesses: “You know what they teach you in law school: If you
don’t have the evidence, you show the jury the law. If you don’t
have the law, you show the jury the evidence. If you don’t have
either, you focus on emotions, passions and prejudice.”
In its rebuttal, the State responded that “[w]e’re just
asking you to hold this Defendant responsible based on the
evidence that was presented in this case.” The State also
argued: “Now, when a child is physically injured and needs help,
they usually go to a doctor or they go to the hospital. When a
6
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
child needs spiritual healing, they go to church. When a child
needs justice, they come before a jury.” At this point Barrios
objected based on “the inflammatory nature of these comments.”
The circuit court overruled the objection.
On November 15, 2012, the jury found Barrios guilty of
146 felonies: 72 counts of sexual assault in the first degree,
72 counts of sexual assault in the third degree, and 2 counts of
kidnapping. All of the charges for which the jury returned a
guilty verdict related to MD; Barrios was acquitted of all of the
charges relating to MS.
2. Sentencing
The State filed a motion for consecutive terms of
imprisonment for certain of Barrios’s convictions, for a total of
eighty years’ imprisonment.
At the sentencing hearing, Barrios’s counsel noted that
Barrios had not submitted a letter of apology for the presentence
investigation (PSI) report upon the advice of his counsel because
he was planning to appeal his convictions. Barrios’s counsel
also acknowledged receipt of the PSI report and attached
addendum, which included a letter written by MS and nine letters
written by MS’s and MD’s family members.
The State then asked the court to allow MD to speak,
MD’s grandmother (Grandmother) to read aloud a letter she had
written, and for a letter written by MS to be read aloud.
Barrios objected to MS’s letter being read because it had already
7
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
been submitted for inclusion in the PSI report and as such was
duplicative and unnecessary. The court allowed all three of the
State’s requests. MD spoke of her experiences, saying, “[a]s a
child in school, when we were asked to create little monsters, I
always had the urge to recreate an image of [Barrios].” She
referred to Barrios repeatedly as a monster and concluded by
saying that she had “rise[n] above the abuse and put away the
monster.”
Finally, the circuit court addressed Barrios:
Mr. Barrios, you are the nightmare that came true.
146 counts. The jury has spoken. A jury of your
peers convicted you of 72 A felonies, two B felonies,
72 C felonies; and now we are here for you –- for me
to pass judgment on you for the crimes you committed
against your family.
Under 706-606, the Court needs to consider what
kind of sentence is appropriate, and I can think of no
crime as horrendous as the one that you imposed upon
this family other than murder. So many A felonies.
This young child was a child, a baby. I think she was
eight years old when the abuse started. Eight years
old, a second grader, and it went on for years and
years and years. You groomed her. You used threats,
You used manipulation. You used mind games. You
molded her to be a victim, and I’m so proud that she’s
grown into such a wonderful, intelligent, smart, and
strong young woman, and she will be a smart,
intelligent, and strong adult when she gets older.
The history and circumstances of the crime that
the Court needs to look upon can be no more serious
crime than the 72 A felonies that you’re looking at, a
total of 146 different counts. You have no respect
for the law.
You have never exhibited any kind of remorse or
responsibility for any of your actions. I believe at
one point I was hearing about, oh, they made up the
story to get me out of the house, or something along
these lines.
8
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
The Court needs to consider just punishment for
the amount of felonies that you are facing. The Court
needs to consider adequate deterrence for your
criminal conduct. You have convictions out of
California. Your life of crime started back in ‘85.
You are a sex offender out of California and never
bothered to register in the State of Hawaii.
You put a child through what I can only think is
the most unspeakable, unthinkable things that a child
has to go through. You introduced her to pornography,
to masturbation, to fellatio, cunnilingus, you
kidnapped her, held her against her will, just deviant
sexual behavior, and, yes, you will be characterized
as a child molester, a sexual predator because that’s
exactly what you are. You are a monster. You are a
monster.
The State’s asking for consecutive sentences.
They’re saying 80 years will be enough to protect the
public from further crimes of you. [Barrios’s
counsel] is saying this is basically one big class A
felony, and I should give you 20 years and let you go
to prison for 20 years, and that’s just punishment.
But like I said earlier, the jury has spoken.
The jury convicted you of crimes of fellatio, of
cunnilingus, of kidnapping, of sexual penetration, the
jury convicted you of all of these crimes, all of
these crimes.
I think back of the testimony that I heard over
those weeks of trial, about how you started off with
handjobs and pornography, oral sex on the poor victim,
making her do all kinds of things to you, and I think
what bothered me the most was the tandem sexual acts
with the mother and the child that you made them
perform, with one giving you a blowjob and the other
one manipulating your testicles, and I guess when they
got tired, they tag teamed and they switched
positions. That was one of the most deplorable things
I have ever heard of a man doing to a child and
mother. A child and a mother at the same time.
You showed no remorse. You showed no remorse
then, and you show no remorse now, and I know [defense
counsel] has suggested that you not say anything. I
respect that. That is your right. But your behavior
is that of a twisted, sick person. As sick as I can
think back in all my years that I’ve been on the bench
9
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
that I have ever seen. That I have ever seen. The
trauma that you’ve inflicted will have long-lasting
effects.
Not only about you, Mr. Barrios, but about this
family that you tore apart, and I’m so proud that
they’re trying to mend and to get themselves back
together and to move on. And I’m proud that they’re
moving on and making something of themselves. These
are wonderful children, and they will grow up to be
wonderful adults. Wonderful adults.
It is the hope of this Court for the safety of
all children that you should never see the outside of
a prison’s walls.
The circuit court then imposed a sentence of 100 years’
imprisonment6 and required Barrios to make Crime Victim
Compensation fee payments.
6
The details of the sentence were as follows:
• Counts 1 - 4 (sex assault in the first degree, penile
penetration): twenty years;
• Count 5 (sex assault in the third degree, lesser included offense,
penile penetration): five years, to run concurrently;
• Counts 21-33 (sex assault in the first degree, fellatio): twenty
years, these counts to run concurrently but consecutively to the
other sentences;
• Counts 34-40 (sex assault in the third degree, lesser included
offense, fellatio): five years to run concurrently;
• Counts 41-42 (kidnapping): ten years concurrently but
consecutively to all other sentences;
• Counts 46-65 (sex assault in the third degree, making minor touch
his penis with her hand): five years concurrent and concurrent to
all other sentences;
• Counts 66-89 (sex assault in the first degree, fellatio): twenty
years concurrent but consecutive to all other sentences;
• Counts 90-120 (sex assault in the first degree, cunnilingus):
twenty years concurrent but consecutive to all other sentences;
• Counts 130-153 (sex assault in the third degree, lesser included
offense, and sex assault in the third degree, causing minor to
touch his penis with minor’s hand, touching minor’s breasts and
buttocks): five years concurrent but consecutive to all other
sentences;
• Counts 174-193 (sex assault in the third degree, touching minor’s
breast with his mouth): five years concurrent but consecutive to
all other sentences.
10
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
B. ICA Appeal
Barrios appealed and argued, inter alia, that (1) “The
Prosecutor’s comment that a child in need of justice goes to a
jury was inflammatory and arose to egregious prosecutorial
misconduct warranting a new trial[;]” (2) “The circuit court
erred in allowing people other than [MD] to be heard and
recommend Mr. Barrios’ disposition at the sentencing hearing[;]”
and (3) “The circuit court abused its discretion in sentencing
Mr. Barrios to prison for 100 years.” (Capitalization omitted).
The ICA held that the prosecutor’s remark during
closing did not constitute prosecutorial misconduct when viewed
in the context of the whole closing argument and that the
prosecutor’s comment was “a proper appeal to the jury to do
‘justice’ based on the evidence that was introduced during the
trial.”
Next, the ICA concluded that Barrios waived any
objection to Grandmother reading her letter at the sentencing
hearing because he had failed to object when it was requested by
the State. Even if Barrios had not waived this objection, the
ICA reasoned that nothing in HRS § 706-604 precludes people other
than the defendant and the victim from being heard at a
sentencing hearing.
Finally, the ICA determined that the circuit court did
not abuse its discretion by imposing its sentence and by calling
Barrios a “monster” and “sick” and “twisted.” The ICA further
11
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
concluded that the circuit court sufficiently articulated a
“meaningful rationale” for the sentence in light of the factors
enumerated in HRS § 706-606.
The ICA therefore affirmed Barrios’s conviction and
sentence. On March 13, 2015, the ICA entered its judgment on
appeal. On May 7, 2015, Barrios timely filed his application for
writ of certiorari.
II. Standards of Review
A. Prosecutorial Misconduct
Allegations of prosecutorial misconduct are reviewed
under the harmless beyond a reasonable doubt standard,
which requires an examination of the record and a
determination of whether there is a reasonable
possibility that the error complained of might have
contributed to the conviction. Misconduct of a
prosecutor may provide grounds for a new trial if the
prosecutor’s actions denied the defendant a fair
trial.
State v. Mainaaupo, 117 Hawai#i 235, 247-48, 178 P.3d 1, 13-14
(2008) (quotation marks and citations 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
or 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 to the litigant.
State v. Kong, 131 Hawai#i 94, 101, 315 P.3d 720, 727 (2013).
Further, “[t]he weight to be given the factors set
12
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
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. (quoting
State v. Akana, 10 Haw. App. 381, 386, 876 P.2d 1331, 1334
(1994)).
III. Discussion
Barrios’s application for certiorari presents three
questions:
Did the ICA gravely err when it ignored nearly thirty
years of precedent and allowed the prosecutor to
compare jurors to doctors and priests who care for and
comfort children, and ask them to give the child
witnesses “justice” by finding Mr. Barrios guilty?
Did the ICA gravely err in upholding the [sic] Judge
Loo’s use of non-victim statements at the sentencing
hearing?
Was the imposition of 100 years of imprisonment with
the hope that Mr. Barrios dies in prison an abuse of
discretion that the ICA should have readily identified
and remedied?
We find that the prosecutor’s remark in closing
argument was improper, but harmless, and that the circuit court
did not err in allowing the letters to be read during the
sentencing hearing. However, we conclude that the circuit court
abused its discretion in imposing consecutive sentences totaling
100 years in prison.
A. The Prosecutor’s Remark that “When a Child Needs Justice,
They Come Before a Jury” During Closing Argument was
Improper, but Harmless.
In his application, Barrios argues that the following
remark by the prosecutor at the end of the State’s rebuttal
13
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
closing argument was improper: “Now, when a child is physically
injured and needs help, they usually go to a doctor or they go to
the hospital. When a child needs spiritual healing, they go to
church. When a child needs justice, they come before a jury.”
Specifically, Barrios argues that this was an appeal to the
jurors’ “abstract sense of justice” and diverted the jury from
its duty to decide the case on the evidence presented.
When addressing allegations of prosecutorial
misconduct, we first determine whether the statements were
improper and, if so, determine whether the misconduct was
harmless. See State v. Tuua, 125 Hawai#i 10, 14, 250 P.3d 273,
277 (2011). “During closing argument, a prosecutor ‘is permitted
to draw reasonable inferences from the evidence and wide latitude
is allowed in discussing the evidence.’” Id. (quoting State v.
Clark, 83 Hawai#i 289, 304, 926 P.2d 194, 209 (1996)). “Although
a prosecutor has wide latitude in commenting on the evidence
during closing argument, it is not enough that . . . his comments
are based on testimony ‘in evidence’; his comments must also be
‘legitimate.’ A prosecutor’s comments are legitimate when they
draw ‘reasonable’ inferences from the evidence.” Tuua, 125
Hawai#i at 14, 250 P.3d at 277 (quoting Mainaaupo, 117 Hawai#i at
253-54, 178 P.3d at 19-20) (internal citations omitted).
Finally, “it is ‘generally recognized under Hawai#i case law that
prosecutors are bound to refrain from expressing their personal
views as to a defendant’s guilt or the credibility of
14
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
witnesses.’” Tuua, 125 Hawai#i at 14, 250 P.3d at 277 (quoting
State v. Cordeiro, 99 Hawai#i 390, 424–25, 56 P.3d 692, 726–27
(2002)).
We conclude that the prosecutor’s remark improperly
appealed to the jury’s emotions. See U.S. v. Aviles-Colon, 537
F.3d 1, 24 (1st Cir. 2008) (“[I]t is improper to appeal to the
jury’s emotions and role as the conscience of the community.”)
(internal quotation marks and citation omitted). The remark, by
comparing the jury to hospitals and churches, “appeared to invite
the jury to base its verdict on considerations other than the
evidence in the case.” State v. Mars, 116 Hawai#i 125, 143, 170
P.3d 861, 879 (App. 2007) (finding that the prosecutor’s comment
that “[t]his community is measured by how we treat its weakest
members” was improper).
An improper statement warrants a new trial if “there is
a reasonable possibility that the error complained of might have
contributed to the conviction.” Tuua, 125 Hawai#i at 16, 250
P.3d at 279 (quoting State v. Hauge, 103 Hawai#i 38, 47, 79 P.3d
131, 140 (2003)). To assess whether a prosecutor’s improper
statement was harmless, we evaluate three factors: “(1) the
nature of the conduct; (2) the promptness of a curative
instruction; and (3) the strength or weakness of the evidence
against the defendant.” Tuua, 125 Hawai#i at 16, 250 P.3d at 279
(internal quotation marks and citation omitted).
We find that there was no reasonable possibility that
15
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
the prosecutor’s remark contributed to Barrios’s conviction.
First, while we have held that improper comments in
closing argument can constitute prosecutorial misconduct, the
remark here does not rise to the level of misconduct found in
those cases. See, e.g., State v. Marsh, 68 Haw. 659, 660-61, 728
P.2d 1301, 1302-03 (1986) (finding prosecutorial misconduct and
remanding for a new trial based on prosecutor’s statement “I’m
sure [the defendant] committed the crime”). Further, the remark
was made as part of an otherwise appropriate argument, asking the
jury “to hold [Barrios] responsible based on the evidence that
was presented in this case.”
Second, the circuit court overruled defense counsel’s
objection after the remark was made, and therefore no curative
instruction was given regarding the prosecutor’s remark.
However, immediately prior to the parties’ closing arguments, the
court instructed the jury as follows:
Ladies and gentlemen, at this time the attorneys will
be making their closing arguments. Neither what they
will say or any visual aids they may use are in
evidence. The only evidence which you must consider
in deliberations comes from the witness’s testimony,
and from the exhibits which are in evidence.
Thus, the court informed the jury that it should not consider the
prosecutor’s closing argument as evidence.
Finally, there was strong evidence to support Barrios’s
convictions. MD testified in detail to numerous instances of
sexual and physical abuse by Barrios from 2004 to 2009. Mother
corroborated much of MD’s testimony, testifying that she either
16
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
witnessed the abuse or was forced to participate. The
prosecutor’s remark “taken in this context does not reach the
level of reversible error.” State v. Klinge, 92 Hawai#i 577,
593, 994 P.2d 509, 525 (2000) (finding the prosecutor’s comment
“[t]he people’s safety is the highest law” was harmless “in light
of the strength of the evidence against [the defendant]”).
Therefore, although the prosecutor’s comment was an
improper appeal to emotions, the comment was harmless beyond a
reasonable doubt and does not warrant a new trial.
B. The Circuit Court did Not Err in Allowing Grandmother to
Read her Letter and in Allowing MS’s Letter to be Read
During the Sentencing Hearing.
Barrios argues that the circuit court abused its
discretion in allowing MS’s letter to be read aloud during the
sentencing hearing because, after Barrios was acquitted of all of
the charges pertaining to MS, MS cannot be considered a “victim,”
and the circuit court “cannot punish Mr. Barrios for acquitted
charges.” Barrios also argues that the circuit abused its
discretion by allowing Grandmother to read her letter at the
hearing. According to Barrios, HRS § 706-6047 protects
7
HRS § 706-604 (1993 & Supp. 2009) provides:
(1) Before imposing sentence, the court shall afford a
fair opportunity to the defendant to be heard on the
issue of the defendant’s disposition.
(2) 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
psychological, psychiatric, or other medical
examination and afford fair opportunity, if the
defendant or the prosecuting attorney so requests, to
(continued...)
17
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
defendants by precluding the sentencing court from considering
any unfounded or inaccurate facts, and Grandmother “offered no
accurate or new information to assist the sentencing court[,]”
instead “launch[ing] a needless attack on Mr. Barrios that
clearly influenced the sentencing court.”
We find that the circuit court did not abuse its
discretion in allowing Grandmother to read her letter.
HRS § 706-604 requires the circuit court to afford an
opportunity to the defendant and the victim to be heard at
sentencing, and where the crime is a homicide or the victim is
otherwise unavailable, the circuit court must permit the victim’s
family to be heard. See HRS § 706-604(1), (3).
(...continued)
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.
(3) In all circuit court cases, the court shall afford
a fair opportunity to the victim to be heard on the
issue of the defendant’s disposition, before imposing
sentence. The court, service center, or agency
personnel who prepare the pre-sentence diagnosis and
report shall inform the victim of the sentencing date
and of the victim’s opportunity to be heard. In the
case of a homicide or where the victim is otherwise
unable to appear at the sentencing hearing, the
victim’s family shall be afforded the fair opportunity
to be heard.
(4) If the defendant is sentenced to imprisonment, a
copy of the report of any pre-sentence diagnosis or
psychological, psychiatric, or other medical
examination, which shall incorporate any amendments
ordered by the court, shall be transmitted immediately
to the department of public safety.
18
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
HRS § 706-6028 provides information to be included in a
PSI report, and its commentary provides that “[a] defendant is
protected against the inclusion of unfounded facts, derogatory
information, statements and conclusions by the provision of §
706-604 providing for notice and opportunity to controvert.” HRS
§ 706-604(2) (Supp. 2009) provides for notice and an opportunity
to controvert:
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
psychological, psychiatric, or other medical
examination and afford fair opportunity, if the
8
HRS § 706-602 (1993) provides:
(1) The pre-sentence diagnosis and report shall be
made by personnel assigned to the court or other
agency designated by the court and shall include:
(a) An analysis of the circumstances attending
the commission of the crime;
(b) The defendant’s history of delinquency or
criminality, physical and mental condition,
family situation and background, economic status
and capacity to make restitution or to make
reparation to the victim or victims of the
defendant’s crimes for loss or damage caused
thereby, education, occupation, and personal
habits;
(c) Information made available by the victim or
other source concerning the effect that the
crime committed by the defendant has had upon
said victim, including but not limited to, any
physical or psychological harm or financial loss
suffered;
(d) Information concerning defendant’s
compliance or non-compliance with any order
issued under section 806-11; and
(e) Any other matters that the reporting person
or agency deems relevant or the court directs to
be included.
(2) The court personnel or agency shall give notice of
the Crime Victim Compensation Act, the application for
compensation procedure, and the possibility of
restitution by the defendant to all victims of the
convicted defendant's criminal acts.
19
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
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.
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.” HRS § 706-
604(2).
Here, Grandmother’s and MS’s letters were attached in
an addendum to the PSI report the day before the sentencing
hearing. At the beginning of the sentencing hearing, Barrios had
the opportunity to note any errors or controvert information
included in the PSI report:
I’ll acknowledge for the record receipt of a
Presentence Report, acknowledge the contents thereof.
I have a couple of corrections, clarifications to make
on that. I’ll acknowledge receiving an addendum to
that Presentence Report, as well as a number of
letters this morning. We are prepared to proceed.
. . . .
Relative to the corrections in the PSI, your Honor, I
would just like to make a correction regarding a
notation but the –- or the restraining order that’s
against my client, it was actually dissolved a while
back. Essentially, the Presentence Report notes that
there’s still one in existence. The other correction
that I would make on the Presentence Report is that I
do not believe [Barrios] is subject to a repeat
offender status, which was put in the Presentence
Report.
(Emphasis added). Barrios acknowledged receipt of the PSI and
its addendum and that, having reviewed this information, he
20
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
indicated that he was prepared to proceed.
Barrios is incorrect that HRS §§ 706-602 and -604
preclude family members of the victim from testifying at
sentencing. The plain language of HRS § 706-604 requires that
the sentencing court allow an opportunity for the defendant and
the victim to testify or, in the case of homicide, allow the
victim’s family to testify. It does not, however, preclude the
sentencing court from allowing other family members of the victim
to speak. Indeed, HRS § 706-602(1)(c) specifically allows PSI
reports to include “[i]nformation made available by the victim or
other source concerning the effect that the crime committed by
the defendant has had upon said victim, including but not limited
to, any physical or psychological harm or financial loss
suffered.” (emphasis added). It also allows “[a]ny other
matters that the reporting person or agency deems relevant or the
court directs to be included.” HRS § 706-602(1)(e).
Thus, HRS §§ 706-602 and -604 indicate that the court
may consider information given by family members of the victim
concerning the effect of the defendant’s crime. Moreover, we
have stated that:
A sentencing judge generally has broad discretion in
imposing a sentence, and the sentence thus imposed
should be tailored to the particular circumstances of
a defendant’s case. To achieve this end, there is a
legitimate need to provide a sentencing judge with
complete information about the defendant. Indeed, a
sentencing judge is required to consider specific
statutory factors in determining the sentence to be
imposed. Therefore, the scope of a sentencing judge’s
inquiry into a defendant’s background is very broad
21
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
and limitations on the kind and/or source of
information the court may consider are not lightly
imposed.
Keawe v. State, 79 Hawai#i 281, 285-86, 901 P.2d 481, 485-86
(1995) (quotation marks and citations omitted; emphasis added).
Therefore, there was no error in Grandmother’s letter
being included in the PSI, and in the circuit court considering
the letter in sentencing Barrios. Nor was it error for the
circuit court to allow Grandmother to read her letter during the
sentencing hearing.
With regard to MS’s letter, Barrios argues that the
circuit court impermissibly punished him for acquitted charges.
Although MS’s letter makes an oblique reference to the accuracy
of the verdict, most of MS’s comments focused on the impact of
Barrios’s conduct on MD.
Though a sentencing judge has broad discretion in
imposing a sentence, “a judge cannot punish a defendant for an
uncharged crime in the belief that it too deserves punishment.”
State v. Nunes, 72 Haw. 521, 526, 824 P.2d 837, 840 (1992). “[A]
palpable claim of error arises when a sentencing court cites an
uncharged crime as a factor in its sentencing decision.” State
v. Mikasa, 111 Hawai#i 1, 8, 135 P.3d 1044, 1051 (2006). Thus,
where the remarks of the sentencing court “clearly indicated that
an improper ground was an aggravating factor in the sentencing
decision[,]” the sentence must be vacated. Id. at 9, 135 P.3d at
1052 (internal quotations, brackets, and citation omitted).
22
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
An examination of the circuit court’s language in
delivering Barrios’s sentence indicates that the court did not
consider the acquitted charges related to MS, but considered only
the charges relating to MD, of which Barrios was convicted:
This young child was a child, a baby. I think she was
eight years old when the abuse started. . . . You
groomed her. . . . You molded her to be a victim, and
I’m so proud that she’s growing into such a wonderful,
intelligent, smart, and strong young woman, and she
will be a smart, intelligent, and strong adult when
she gets older.
. . . .
You put a child through what I can only think is the
most unspeakable, unthinkable things . . . . You
introduced her to pornography, to masturbation[.]
(Emphases added).
Moreover, when delivering its sentence, at no point did
the circuit court explicitly refer to any acquitted charges
pertaining to MS. The circuit court did refer to other members
of MD’s family, but only in the context of how Barrios’s crimes
against MD “tore apart” the family. Indeed, there is nothing to
indicate that the circuit court based its decision to impose
consecutive sentences on any charges pertaining to MS for which
Barrios was acquitted, and thus the court did not err with regard
to allowing the letter to be read.9
C. The Circuit Court Abused its Discretion in Imposing
Consecutive Sentences that Resulted in a Total 100-year
Prison Sentence.
9
In situations in which a sentencing court receives information
referencing non-adjudicated conduct or conduct for which there has been an
acquittal, we note that the court may wish to state on the record that it did
not consider the conduct when reaching its decision.
23
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
Barrios argues that the circuit court abused its
discretion in imposing consecutive sentences because the circuit
court did not adequately address the factors under HRS § 706-606,
imposed the sentence out of “anger and vehemence shared by the
prosecution’s non-victims,” and because the 100-year sentence
creates a disparity between Barrios and other defendants who were
charged with only single felonies under the continuous sexual
assault of a minor statute, and who received much shorter
sentences for similar conduct.
A court must consider the factors set forth in HRS
§ 706-606 “in determining whether the terms imposed are ordered
to run concurrently or consecutively[.]” HRS § 706-668.5(2)
(1993). HRS § 706-606 (1993) 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.
“Absent clear evidence to the contrary, it is presumed
that a sentencing court will have considered all factors before
24
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
imposing concurrent or consecutive terms of imprisonment under
HRS § 706–606.” Kong, 131 Hawai#i at 102, 315 P.3d at 728
(internal brackets, quotation marks, and citation omitted).
However, “circuit courts must state on the record at the time of
sentencing the reasons for imposing a consecutive sentence.” Id.
(internal quotation marks and citation omitted; emphasis in
original). Even if the sentencing court addresses the HRS § 706-
606 factors, and states its reasons on the record, the sentence
must be vacated if the court relies upon any improper factors.
See Mikasa, 111 Hawai#i at 9, 135 P.3d at 1052.
Although the circuit court addressed several of the
required HRS § 706-606 factors in deciding to impose consecutive
sentences, we conclude that the court abused its discretion by
(1) not adequately explaining its decision to impose multiple
consecutive sentences totaling 100 years of imprisonment and (2)
improperly relying upon Barrios’s refusal to admit guilt given
his desire to appeal his convictions. Barrios’s sentence must be
vacated on these bases, and we remand the case to the circuit
court for resentencing.
1. The circuit court was not limited to the available
sentence under HRS § 707-733.6
Barrios argues that the circuit court abused its
discretion in imposing his sentence because it did not adequately
consider the “nature and circumstances” of Barrios’s offense
under HRS § 706-606(1), and “[t]he need to avoid unwarranted
sentence disparities among defendants with similar records who
25
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
have been found guilty of similar conduct” under HRS § 706-
606(4). Essentially, Barrios argues that because the State could
have charged him with a single felony for the same conduct under
HRS § 707-733.610 (Continuous sexual assault of a minor under the
age of fourteen years), his sentence should have been limited to
the available sentence under that statute, i.e., twenty years.
According to Barrios, his 100-year sentence was thus “wildly
disproportionate.”
Barrios’s reliance on HRS § 707-733.6 is misplaced.
First, Barrios highlights only the portion of HRS § 706-606(4)
10
HRS § 707-733.6 (Supp. 2009) provides:
(1) A person commits the offense of continuous sexual
assault of a minor under the age of fourteen years if
the person:
(a) Either resides in the same home with a minor
under the age of fourteen years or has recurring
access to the minor; and
(b) Engages in three or more acts of sexual
penetration or sexual contact with the minor
over a period of time, while the minor is under
the age of fourteen years.
(2) To convict under this section, the trier of fact,
if a jury, need unanimously agree only that the
requisite number of acts have occurred; the jury need
not agree on which acts constitute the requisite
number.
(3) No other felony sex offense involving the same
victim may be charged in the same proceeding with a
charge under this section, unless the other charged
offense occurred outside the period of the offense
charged under this section, or the other offense is
charged in the alternative. A defendant may be
charged with only one count under this section, unless
more than one victim is involved, in which case a
separate count may be charged for each victim.
(4) Continuous sexual assault of a minor under the age
of fourteen years is a class A felony.
26
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
that states courts should avoid disparate sentences among
defendants found guilty of “similar conduct,” but fails to
acknowledge that the provision also states the need is to avoid
disparities among defendants “with similar records who have been
found guilty of similar conduct.” HRS § 706-606(4) (emphasis
added). Although Barrios argues that defendants convicted under
HRS § 707-733.6 would only receive a maximum of twenty years’
imprisonment, he does not discuss any convictions under that
statute where the defendant had “similar records” to Barrios.
Specifically, there were thirty-three different factors listed in
Barrios’s PSI report recommending a prison term, and Barrios had
numerous prior convictions, including convictions for battery,
possession of controlled substances, and at least two convictions
for indecent exposure in California.
Moreover, Barrios cites to no authority, nor does there
appear to be any, that requires the State to charge defendants
with a single felony under HRS § 707-733.6 rather than individual
felonies of sexual assault, if the State believes it has
sufficient evidence to get convictions under the individual
counts. Indeed, the legislative history of HRS § 707-733.6
indicates that the statute was intended to make it easier for the
State to obtain convictions in cases where there may not be
enough evidence to prove with specificity individual counts of
sexual assault.
Although the legislative history of HRS § 707-733.6 is
27
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
limited, the statute was enacted in 2006 to replace HRS § 707-
733.5. The relevant portions of HRS §§ 707-733.5 and -733.6 are
substantively identical,11 and therefore the legislative history
of HRS § 707-733.5 is instructive. HRS § 707-733.5 was enacted
in 1997 pursuant to Act 379, which stated:
The legislature finds that sexual assault in the
first, second, third, and fourth degrees, in the
manner prohibited under the Hawai#i penal code, are
not “continuing offenses” in that they represent
distinct acts and, therefore, separate offenses. The
legislature finds, however, that many young children
who have been sexually abused over an extended period
of time may be unable to specifically recall or
identify dates, instances, or circumstances
11
HRS § 707-733.5, which was repealed in 2006, provided (with
differences between this statute and HRS § 707-733.6 emphasized):
(1) Any person who:
(a) Either resides in the same home with a minor
under the age of fourteen years or has recurring
access to the minor; and
(b) Engages in three or more acts of sexual
penetration or sexual contact with the minor
over a period of time, while the minor is under
the age of fourteen years.
is guilty of the offense of continuous sexual assault
of a minor under the age of fourteen years.
(2) To convict under this section, the trier of fact,
if a jury, need unanimously agree only that the
requisite number of acts have occurred; the jury need
not agree on which acts constitute the requisite
number.
(3) No other felony sex offense involving the same
victim may be charged in the same proceeding with a
charge under this section, unless the other charged
offense occurred outside the time frame of the offense
charged under this section, or the other offense is
charged in the alternative. A defendant may be
charged with only one count under this section, unless
more than one victim is involved, in which case a
separate count may be charged for each victim.
(4) Continuous sexual assault of a minor under the age
of fourteen years is a class A felony.
28
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
surrounding the abuse.
As discussed by Justice Nakayama in a dissenting
opinion to the Hawai#i Supreme Court’s recent decision
in State v. Arceo, [84 Hawai#i 1, 928 P.2d 843
(1996)], the prosecution’s key witness in cases
involving the sexual assault of a minor is usually a
child with limited ability to recall alleged facts
with specificity. Justice Nakayama argued that “this
is particularly problematical and evident in cases
involving sexual assault by a parent, where the minor
may be of tender years, under the exclusive control of
the parent or guardian, and when the abuse has
occurred on a number of occasions over a period of
time.”
. . . .
Justice Nakayama urged the legislature to enact
a “continuous sexual abuse of a minor” statute,
similar to the one enacted by the State of California,
to address the problems inherent in the criminal
prosecution of sexual abuse cases involving young
children who are unable to specify the time, places,
or circumstances of each act. The legislature agrees
that there is a need for such a statute[.]
1997 Haw. Sess. Laws, Act 379, § 1 at 1191-92 (emphases added).
Thus, the intent behind the continuous sexual assault
of a minor statute is not, as Barrios contends, to limit the
available sentence in cases where the State is able to prove
beyond a reasonable doubt specific counts of sexual assault of a
minor. Instead, the intent is to ensure that offenders can be
convicted even when the complaining witness is unable to testify
with specificity regarding the time, place, and circumstances of
each and every specific event.
Here, the State believed it was able to obtain
convictions in individual counts of sexual assault, and charged
Barrios accordingly. The State was able to do so in 146 of the
29
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
200 counts, and Barrios has not raised any issues regarding the
sufficiency of the evidence by which the jury convicted him of
those 146 counts.
As such, it was within the circuit court’s discretion
to sentence Barrios according to the number of felonies for which
he was convicted instead of following the required sentence for a
single conviction of continuous sexual assault.
2. The circuit court did not adequately explain its
rationale for imposing consecutive sentences
In affirming Barrios’s sentence, the ICA relied upon
the fact that the circuit court had adequately addressed the
factors under HRS § 706-606. However, 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.” Hussein, 122 Hawai#i at 510, 229 P.3d at 328. We find
that, here, the circuit court did not adequately explain its
rationale for imposing consecutive sentences.
In Hussein, this court explained the “dual purposes”
served by requiring that circuit courts “state on the record at
the time of sentencing the reasons for imposing a consecutive
sentence”:
First, reasons identify the facts or circumstances
within the range of statutory factors that a court
considers important in determining that a consecutive
sentence is appropriate. An express statement, which
evinces not merely consideration of the factors, but
recites the specific circumstances that led the court
30
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
to impose sentences consecutively in a particular
case, provides a meaningful rationale to the
defendant, the victim, and the public.
Second, reasons provide the conclusions drawn by the
court from consideration of all the facts that pertain
to the statutory factors. It is vital, for example,
for the defendant to be specifically informed that the
court has concluded that he or she is dangerous to the
safety of the public, or poses an unacceptable risk of
re-offending, or that rehabilitation appears unlikely
due to his or her lack of motivation and a failure to
demonstrate any interest in treatment, or that the
multiplicity of offenses and victims and the impact
upon the victims’ lives warrant imposition of a
consecutive term. Hence, reasons confirm for the
defendant, the victim, the public, and the appellate
court, that the decision to impose consecutive
sentences was deliberate, rational, and fair.
122 Hawai#i at 509-10, 229 P.3d at 327-28.
In Kong, this court applied these principles to
determine whether the circuit court adequately explained its
reasoning in sentencing the defendant. The circuit court imposed
two sentences to run consecutively, stating:
Taking into consideration all of the factors set forth
in [HRS §] 706–606, including the extensive record of
the defendant, which includes six burglary
convictions, . . . ten felonies, which represents a
lot of harm in our community.
The Court is going to impose the following sentence in
this matter. The defendant will be committed to the
care and custody of the Director of the Department of
Public Safety for a period of ten years on Count 1,
five years on Count 2. . . .
In view of his extensive criminality, the Court is
going to make these counts run consecutive for a total
of fifteen years, mittimus forthwith, full credit for
time served.
131 Hawai#i at 99, 315 P.3d at 725.
31
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
The defendant argued that the circuit court did not
adequately address the HRS § 706-606 factors to warrant imposing
consecutive sentences. Id. at 102, 315 P.3d at 728.
This court held that “the sentencing court 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.” Id. at 102, 315
P.3d at 728. We noted that the circuit court’s discussion of the
defendant’s “extensive criminality” related directly to the
statutory factors in HRS § 706-606(1). Id. at 103, 315 P.3d at
729. We then concluded that the court’s “extensive criminality”
statement satisfied the dual purposes set forth in Hussein
because it “identified the specific facts or circumstances within
the range of statutory factors that the court considered” and
“provided a rational and fair basis within the range of statutory
factors for the imposition of consecutive sentences.” Id. Thus,
the sentencing court did not abuse its discretion in imposing a
consecutive sentence. Id. at 104, 315 P.3d at 730.
Unlike in Kong, we find that the circuit court in the
present case did not adequately establish the basis for Barrios’s
sentence, which totaled 100 years of imprisonment, because it did
not explain its reasoning for each consecutive sentence.
In sentencing Barrios, the circuit court considered
several of the factors in HRS § 706-606. Before imposing the
32
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
consecutive sentence, the circuit court stated: “Under 706-606,
the Court needs to consider what kind of sentence is appropriate,
and I can think of no other crime as horrendous as the one that
you imposed upon this family other than murder.” The court then
stated:
This young child was a child, a baby. I think
she was eight years old when the abuse started. Eight
years old, a second grader, and it went on for years
and years and years. You groomed her. You used
threats. You used manipulation. You used mind games.
You molded her to be a victim . . . .
The history and circumstances of the crime that
the Court needs to look upon can be no more serious
crime than the 72 A felonies that you’re looking at, a
total of 146 different counts. You have no respect
for the law.
This demonstrates that the court examined the nature and
circumstances of Barrios’s crime under HRS § 706-606(1) and the
need for the sentence “[t]o reflect the seriousness of the
offense, [and] to promote respect for the law” under HRS § 706-
606(2)(a).
The court also appeared to rely upon the need for the
sentence “[t]o afford adequate deterrence to your criminal
conduct” under HRS § 706-606(2)(b):
The Court needs to consider just punishment for
the amount of felonies that you are facing. The Court
needs to consider adequate deterrence for your
criminal conduct. You have convictions out of
California. Your life of crime started back in ‘85.
You are a sex offender out of California and never
bothered to register in the State of Hawai#i.
(Emphasis added).
33
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
Finally, the circuit court considered the need for the
sentence “[t]o protect the public from further crimes of the
defendant” pursuant to HRS § 706-606(2)(c) when it stated: “It
is the hope of this Court for the safety of all children that you
should never see the outside of a prison’s walls.”
Despite the circuit court addressing these statutory
factors on the record, the circuit court did not sufficiently
explain its decision to impose multiple consecutive sentences as
required by Hussein and Kong. For example, the circuit court
offered no explanation as to why it decided to impose consecutive
sentences for Counts 41 and 42 (kidnapping) and Counts 130-153
and 174-193 (sexual assault in the third degree), when the State
had recommended the sentences for these convictions to run
concurrently with the other sentences. Moreover, while the
circuit court’s explanation offered a rational basis for some of
the consecutive sentences, such as pointing out that that the
acts of fellatio with Mother present were particularly
reprehensible, the court did not articulate a rational basis for
each consecutive sentence that it imposed.
In State v. Williams, the Supreme Court of Minnesota
articulated the importance of stating specific reasons when
imposing multiple consecutive sentences. 608 N.W.2d 837 (Minn.
2000). In Williams, the trial court sentenced the defendant to
three consecutive sentences for convictions of criminal sexual
conduct, attempted first-degree murder, and first-degree
34
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
burglary, which all involved the same victim. See id. at 839-40.
The trial court had identified 15 aggravating circumstances to
justify the consecutive sentences, all of which were “upward
departures” from the Minnesota Sentencing Guidelines. Id. at
840. However, the Minnesota Supreme Court held that the trial
court “erred in not separately identifying the aggravating
factors supporting each sentencing departure.” Id. at 841.
The Supreme Court of Minnesota explained that “a
separate analysis of the reasons for departure as to each
sentence may have led to a different sentencing result, would
have informed the appellant as to the rationale for each
sentence, and of course would have provided a clear record for
review.” Id. The court stated that “[a] further concern is that
factors supporting departure on one sentence may not justify a
departure on another sentence.” Id. “For example, the victim’s
vulnerability due to the fact she was asleep when appellant
entered her apartment supports a departure on the criminal sexual
conduct sentence but does not justify a departure on the
attempted murder sentence because the victim was awake at the
time of that offense.” Id.
In other words, consistent with the Hussein principles,
a sentencing court should explain its rationale for each
consecutive sentence in order to inform the defendant and
appellate courts of the specific factors underlying each
sentence. This helps to ensure that a sentencing judge takes
35
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
into account the differences among convictions prior to imposing
multiple consecutive sentences. Thus, in order to provide a
rational basis for imposing consecutive sentences as required by
Kong, sentencing courts must state on the record the HRS § 706-
606 factors that support each consecutive sentence. While the
same factors could be sufficiently aggravated to justify imposing
more than one consecutive sentence, the sentencing court should
specify that basis or identify another basis for determining how
many consecutive sentences to impose.
This requirement is particularly important in cases
such as this one, where the circuit court expressly stated its
intent to ensure that Barrios would never be released from
prison, in contrast to the maximum twenty-year term applicable to
the Class A felonies for which he was convicted. While such a
sentence can be imposed in an appropriate case, a clearly
articulated rationale is necessary when there is a large
disparity between the maximum statutory sentence for each offense
and the aggregate consecutive sentence imposed by the court.
In sum, we find that the circuit court abused its
discretion in failing to adequately explain its rationale for
imposing multiple consecutive sentences, and therefore Barrios’s
sentence must be vacated. See Kong, 131 Hawai#i at 102, 315 P.3d
at 728.
We further note that the circuit court’s comments
suggest that it relied on Barrios’s refusal to admit guilt as a
36
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
factor in imposing his sentence. See State v. Kamana#o, 103
Hawai#i 315, 320, 82 P.3d 401, 406 (2003) (holding that the
circuit court impermissibly inferred that the defendant lacked
remorse based on his “refusal to admit his culpability for the
offenses of which he was convicted”).
In Kamana#o, this court held that “a sentencing court
may not impose an enhanced sentence based on a defendant’s
refusal to admit guilt with respect to an offense the conviction
of which he intends to appeal.” Id. at 316, 82 P.3d at 402.
This court reasoned, in part, that doing so would “place the
defendant in the dilemma of either abandoning his fifth amendment
rights or risking a harsher sentence.” Id. at 322, 82 P.3d at
408 (quoting Harden v. Florida, 428 So. 2d 316, 317 (Fla. Dist.
Ct. App. 1983)).
This court then applied a three-factor analysis to
determine whether the sentencing court erroneously relied upon
the defendant’s refusal to admit guilt: “(1) the defendant’s
maintenance of innocence after conviction, (2) the judge’s
attempt to get the defendant to admit guilt, and (3) the
appearance that, had the defendant affirmatively admitted guilt,
his sentence would not have been so severe[.]” Kamana#o, 103
Hawai#i at 323, 82 P.3d at 409 (quoting People v. Wesley, 411
N.W.2d 159, 162 (Mich. 1987)) (internal brackets omitted). This
court concluded that “Kamanao’s refusal to admit guilt
‘improperly influenced’ the circuit court’s decision to grant the
37
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
prosecution’s motion for an extended term of imprisonment.” 103
Hawai#i at 323.
Here, application of the three-part Kamana#o analysis
weighs in favor of vacating Barrios’s sentence. Under the first
factor, Barrios maintained his innocence throughout trial–-
indeed, that was Barrios’s sole defense–-and, after his
conviction, chose to remain silent during sentencing. Moreover,
defense counsel indicated to the court in sentencing that Barrios
had not submitted a letter of apology because he was intending to
appeal his convictions. This factor thus weighs in favor of
vacating the sentence. See Kamana#o, 103 Hawai#i at 320, 323, 82
P.3d at 406, 409 (explaining that first factor weighed in favor
of vacating the sentence because the defendant “intended at all
times to appeal his convictions, thus making it unwise and
legally imprudent to admit his guilt in the circuit court during
the sentencing hearing”).
Under the second factor, the circuit court did not ask
Barrios to admit his guilt at sentencing. However, the court in
Kamanao also did not make such a request, other than confirming
that the defendant continued to maintain his innocence. Id. at
323-24.
Under the third factor, the circuit court stated: “You
have never exhibited any kind of remorse or responsibility for
your actions. I believe at one point I was hearing about, oh,
they made up the story to get me out of the house, or something
38
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
along these lines.” The court also stated: “You showed no
remorse. You showed no remorse then, you show no remorse now,
and I know [defense counsel] has suggested that you not say
anything. I respect that. That is your right. But your
behavior is that of a twisted, sick person.” (emphasis added)
The court thus appeared to draw an inference from Barrios’s
decision to remain silent at sentencing that Barrios lacked any
remorse, and implied that it was an “aggravating factor” it
considered in imposing the extended sentence. Mikasa, 111
Hawai#i at 9, 135 P.3d at 1052. This provides further support as
to why Barrios’s sentence should be vacated.12 See id.
IV. Conclusion
For the foregoing reasons, the circuit court abused its
discretion in imposing Barrios’s sentence because it did not
adequately explain its decision to impose multiple consecutive
sentences and improperly inferred that he lacked any remorse.
Accordingly, we affirm the portion of the ICA’s March 13, 2015
judgment on appeal pertaining to Barrios’s convictions, and we
vacate the portion of the ICA’s Judgment on Appeal pertaining to
12
Barrios also argues that “the sentencing court resorted to name-
calling and joined in the ad hominem attacks of the prosecution’s witnesses.”
According to Barrios, this “offensive and discourteous conduct” is an
additional ground for vacating the sentence. Because we vacate Barrios’
conviction on other grounds, we do not address this argument. We note that
the Principles of Professionalism for Hawai#i Judges (PPHJ) state that “[a]
judge should be courteous, respectful and civil to lawyers, parties,
witnesses, court personnel, and all other participants in the legal process.”
PPHJ Principle 1.
39
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
Barrios’s sentence.13 We vacate the portion of circuit court’s
February 1, 2013 Judgment of Conviction and Sentence sentencing
Barrios, and remand to the circuit court for resentencing before
a different judge, consistent with this opinion. See State v.
Carvalho, 90 Hawai#i 280, 288, 978 P.2d 718, 726 (1999)
(remanding to a different judge after the trial court used an
improper sentencing procedure).
Benjamin E. Lowenthal /s/ Mark E. Recktenwald
for petitioner
/s/ Paula A. Nakayama
Artemio C. Baxa
for respondent /s/ Sabrina S. McKenna
/s/ Richard W. Pollack
/s/ Michael D. Wilson
13
We affirm the ICA’s judgment with regard to Barrios’s request for
fees and costs.
40