State v. Yamashita

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
11-DEC-2020
07:51 AM
Dkt. 62 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
STATE OF HAWAI#I, Plaintiff-Appellee,
v.
JOSHUA YAMASHITA, Defendant-Appellant
APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT
(CASE NOS. 2CPC-XX-XXXXXXX, 2CPC-XX-XXXXXXX, 2CPC-XX-XXXXXXX,
2CPC-XX-XXXXXXX, 2CPC-XX-XXXXXXX, 2CPC-XX-XXXXXXX,
2CPC-XX-XXXXXXX, and 2CPC-XX-XXXXXXX)
SUMMARY DISPOSITION ORDER
(By: Ginoza, Chief Judge, Leonard and Hiraoka, JJ.)
Defendant-Appellant Joshua Yamashita (Yamashita) was
convicted of various crimes in eight cases filed in the Circuit
Court of the Second Circuit:
2CPC-XX-XXXXXXX
2CPC-XX-XXXXXXX
2CPC-XX-XXXXXXX
2CPC-XX-XXXXXXX
2CPC-XX-XXXXXXX
2CPC-XX-XXXXXXX
2CPC-XX-XXXXXXX
2CPC-XX-XXXXXXX
Yamashita appeals from: (1) the "Order of Resentencing; Revoca-
tion of Probation; Notice of Entry" (Order of Resentencing)
entered in 2CPC-XX-XXXXXXX (the First Case) on May 31, 2019;
(2) the "Judgment; Conviction and Sentence; Notice of Entry"
entered in each of the other seven cases (the Other Cases) on
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
May 31, 2019 (collectively, Judgments); and (3) the "Findings of
Fact and Conclusions of Law; Order Granting in Part and Denying
in Part Defendant's Motion to Reconsider Sentence" entered in all
eight cases on January 15, 2020 (collectively, Reconsideration
Orders).1 For the reasons explained below, we affirm the Order
of Resentencing, the Judgments, and the Reconsideration Orders.
BACKGROUND
In the First Case, Yamashita was charged with Unautho-
rized Control of Propelled Vehicle in violation of Hawaii Revised
Statutes (HRS) § 708-836. He pleaded no contest. On August 23,
2017, he was convicted and sentenced to four years of probation,
with the special condition that he serve 55 days in prison with
credit for time served.2 He was also ordered to pay $1,000 in
punitive restitution to the clerk of the court, $105 in Crime
Victim Compensation (CVC) fees, $150 as a Probation Service Fee,
and $100 as an Internet Crimes Against Children (ICAC) fee.
Between November 20, 2017, and October 30, 2018,
Yamashita was charged with various offenses in the seven Other
Cases. He entered pleas of not guilty in all of the cases except
2CPC-XX-XXXXXXX (the Last Case). On November 2, 2018, before the
arraignment and plea hearing in the Last Case, Yamashita entered
into a global plea agreement with the State. Yamashita pleaded
no contest or admitted to 26 counts in the Other Cases; the
remaining counts were dismissed with prejudice. Under the plea
agreement, Yamashita also admitted to violating the terms and
conditions of probation in the First Case, and agreed to be
resentenced.
On May 31, 2019, the circuit court entered the Order of
Resentencing in the First Case. Yamashita's probation was
revoked; he was resentenced to serve five years of incarceration
with credit for time served, and to pay $1,000 in restitution as
1
The Honorable Rhonda I.L. Loo signed the orders and judgments
being appealed.
2
The Honorable Richard T. Bissen, Jr. signed the judgment.
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a free-standing order, $105 as a CVC fee, and $100 as an ICAC
fee. In the Other Cases, the circuit court entered the
Judgments; Yamashita was sentenced to various periods of
incarceration, the longest of which was five years, all to be
served concurrently with each other and with the sentence in the
First Case. In the Other Cases the circuit court also sentenced
Yamashita to pay a total of $1,710 in fines; $8,767.20 in resti-
tution; $2,075 in CVC fees; $2,500 in ICAC fees; and $100 as a
Drug Demand Reduction (DDR) assessment.
On July 28, 2019, Yamashita filed a motion to recon-
sider his sentence in each of the eight cases. On January 15,
2020, the circuit court entered the Reconsideration Orders. The
circuit court waived payment of the ICAC fees in the Other Cases,
but otherwise denied reconsideration.
This appeal followed.
STANDARDS OF REVIEW
A. Sentencing
A judge has broad discretion in matters related to
sentencing. Accordingly, a trial court's sentencing or re-
sentencing determination will not be disturbed absent a
plain and manifest abuse of discretion in its decision. The
trial court abuses its discretion when it clearly exceeds
the bounds of reason or disregards rules or principles of
law or practice to the substantial detriment of a party
litigant.
State v. Pulgados, ___ Hawai#i ___, ___ P.3d ___, No. CAAP-19-
0000577, 2020 WL 6375183, at *3 (App. Oct. 30, 2020) (cleaned
up).
B. Findings of Fact
We review the circuit court's findings of fact under
the clearly erroneous standard. A finding of fact is clearly
erroneous when the record lacks substantial evidence to support
the finding, or despite the evidence to support the finding, we
are left with a definite and firm conviction that a mistake has
been committed. Pulgados, 2020 WL 6375183, at *3.
"[U]nchallenged findings of fact are binding upon this court."
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State v. Rodrigues, 145 Hawai#i 487, 494, 454 P.3d 428, 435
(2019) (cleaned up) (citation omitted).
C. Conclusions of Law
A [conclusion of law] is not binding upon an
appellate court and is freely reviewable for its
correctness. This court ordinarily reviews
[conclusions of law] under the right/wrong standard.
Thus, a [conclusion of law] that is supported by the
trial court's findings of fact and that reflects an
application of the correct rule of law will not be
overturned. However, a [conclusion of law] that
presents mixed questions of fact and law is reviewed
under the clearly erroneous standard because the
court's conclusions are dependent upon the facts and
circumstances of each individual case.
State v. Reis, 115 Hawai#i 79, 84, 165 P.3d 980, 985 (2007)
(cleaned up) (citations omitted).
D. Constitutionality of Statutes
The constitutionality of a statute is a question of
law which is reviewable under the right/wrong standard.
Additionally, where it is alleged that the legislature has
acted unconstitutionally, this court has consistently held
that every enactment of the legislature is presumptively
constitutional, and a party challenging the statute has the
burden of showing unconstitutionality beyond a reasonable
doubt. The infraction should be plain, clear, manifest, and
unmistakable.
State v. Adcock, 148 Hawai#i 308, 315, 473 P.3d 769, 776 (App.
2020) (cleaned up) (citing State v. Calaycay, 145 Hawai#i 186,
197, 449 P.3d 1184, 1195 (2019)).
DISCUSSION
Yamashita contends that the circuit court erred by:
(1) concluding that he will be able to pay the CVC fees and DDR
assessment; and (2) imposing the CVC fees and DDR assessment
pursuant to an unconstitutional delegation of the legislature's
taxation power.
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1. Ability to Pay
A. CVC fees
CVC fees are assessed under HRS §§ 706-605(6) (Supp.
2018) and 351-62.6 (2015):
§706-605 Authorized disposition of convicted defendants.
. . . .
(6) The court shall impose a compensation fee
upon every person convicted of a criminal offense
pursuant to section 351-62.6; provided that the court
shall waive the imposition of a compensation fee if it
finds that the defendant is unable to pay the
compensation fee. When a defendant is ordered to make
payments in addition to the compensation fee, payments
by the defendant shall be made in the order of
priority established in section 706-651.[3]
§351-62.6 Compensation Fee. (a) The court shall impose a
compensation fee upon every defendant who has been convicted
or who has entered a plea under section 853-1 and who is or
will be able to pay the compensation fee. The amount of the
compensation fee shall be commensurate with the seriousness
of the offense as follows:
(1) Not less than $105 nor more than $505 for a
felony;
(2) $55 for a misdemeanor; and
(3) $30 for a petty misdemeanor.
The compensation fee shall be separate from any fine that
may be imposed under section 706-640 and shall be in
3
HRS § 706-651 (Supp. 2018) provides:
Payments by defendant; order of priority. When a defendant
is ordered to make payments pursuant to chapters 351, 706,
846F, and 853, or as otherwise provided by law, payments
shall be made in the following order of priority:
(1) Restitution;
(2) Crime victims compensation fee;
(3) Probation services fee;
(4) Human trafficking victim services fee;
(5) Other fees, including but not limited to
internet crimes against children fee and drug
demand reduction assessment fee;
(6) DNA analysis monetary assessment; and
(7) Fines.
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addition to any other disposition under this chapter;
provided that the court shall waive the imposition of a
compensation fee if the defendant is unable to pay the
compensation fee. Moneys from the compensation fees shall
be deposited into the crime victim compensation special fund
under section 351-62.5.
(b) The criteria of section 706-641 may apply to
this section. In setting the amount of the compensation fee
to be imposed, the court shall consider all relevant
factors, including but not limited to:
(1) The seriousness of the offense;
(2) The circumstances of the commission of the
offense;
(3) The economic gain, if any, realized by the
defendant;
(4) The number of victims; and
(5) The defendant's earning capacity, including
future earning capacity.
(c) The compensation fee shall be considered a civil
judgment.
(Underscoring added.)
Yamashita argues that the circuit court should not have
imposed CVC fees upon him because he "is impoverished" and
"indigent." But he has not challenged the following findings of
fact, which are binding on him and upon us:
15. On October 28, 2019, [Yamashita] testified that
he was twenty-nine (29) years old and incarcerated at Halawa
Correctional Facility (hereinafter referred to as "Halawa"),
where he had been for the past year.
16. [Yamashita] further testified that he was single
with two daughters, had the equivalent of a high school
diploma (hereinafter referred to as "GED"), and that his
last paying job outside of prison was with a roofing company
in 2015.
17. According to [Yamashita]'s Application for Legal
Services (Defense's A received into evidence at the
hearing), [Yamashita] currently received approximately $100
per month from his mother into his income account at Halawa.
He also earned approximately $15-$20 per month from working
for 25 cents per hour for approximately 35 hours per week in
a plumbing job at the facility. In sum, his monthly income
at the time of his testimony was between $115 and $120.
18. Also provided by [Yamashita] in his testimony
and as part of Defense's A was his liabilities. [Yamashita]
testified to paying $100 per month for child support
payments and $30 per month for restitution, fines, and fees
related to the cases for which he is serving the five (5)
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year prison term. He testified that other than these debts,
he had no other expenses.
19. [Yamashita] testified that his account at Halawa
does not have money left over in it after the withdrawals
for child support payments, restitution, fines, and fees in
his criminal cases. He testified that he had no other
assets than his income.
20. [Yamashita] testified that he voluntarily
applied for his plumbing job at Halawa because he wanted to
work.
21. [Yamashita] testified that he was in good health
and faced no kind of medical issue that would prevent him
from working. He further testified that if he should be
released from prison or placed on parole it would be his
intent and within his capacity to work full time and support
his two daughters and pay his Court ordered restitution,
fines, and fees.
Yamashita also does not challenge conclusion of law (COL) no. 14,
which is actually a finding of fact:
14. The Court finds that [Yamashita]'s plumbing job
at Halawa will provide him with training and a skillset that
will allow him to become gainfully employed outside of
prison.
In Pulgados we held: "[A] sentencing court must impose
CVC fees upon the satisfaction of two conditions: (1) that the
defendant has been convicted of a criminal offense, including a
conviction upon a plea; and (2) a determination that the
defendant is or will be able to pay the CVC fee." 2020 WL
6375183, at *7 (underscoring added). We concluded that the
record "was insufficient to demonstrate that [the defendant]
would not remain indigent, and unable to pay the CVC fees." Id.By contrast, in this case the circuit court's unchal-
lenged findings of fact established that: Yamashita voluntarily
applied for his plumbing job at Halawa because he wanted to work;
the plumbing job will provide him with training and a skillset
that will allow him to become gainfully employed outside of
prison; he was in good health and faced no kind of medical issue
that would prevent him from working; and he intended to work
full-time once released from prison or placed on parole to
support his two daughters and pay his court-ordered restitution,
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fines, and fees. The circuit court's imposition of CVC fees on
Yamashita is supported by the unchallenged findings of fact and
reflect an application of the correct rule of law. The circuit
court did not err by concluding that Yamashita will be able to
pay the CVC fees.
B. The DDR Assessment
The DDR assessment is imposed under HRS § 706-650
(Supp. 2018). The statute provides, in relevant part:
§706-650 Drug demand reduction assessments; special
fund. (1) In addition to any disposition authorized by
chapter 706 or 853, any person who is:
(a) Convicted of an offense under part IV of chapter
712, except sections 712-1250.5 and 712-1257;
. . . .
shall be ordered to pay a monetary assessment under
subsection (2), except as provided under subsection (5).
(2) Monetary assessments for individuals subject to
subsection (1) shall not exceed the following:
. . . .
(c) $1,000 when the offense is a class C felony;
. . . .
Notwithstanding sections 706-640 and 706-641 and any other
law to the contrary, the assessments provided by this
section shall be in addition to and not in lieu of, and
shall not be used to offset or reduce, any fine authorized
or required by law and shall be paid pursuant to section
706-651.[4]
(3) There is established a special fund to be known as
the "drug demand reduction assessments special fund" to be
administered by the department of health. The disbursement
of money from the drug demand reduction assessments special
fund shall be used to supplement substance abuse treatment
and other substance abuse demand reduction programs.
(4) All monetary assessments paid and interest
accrued on funds collected pursuant to this section shall be
deposited into the drug demand reduction assessments special
fund.
(5) . . . Upon a showing by the person that the
person lacks the financial ability to pay all or part of the
4
See note 3.
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monetary assessment, the court may waive or reduce the
amount of the monetary assessment.
(Underscoring added.)
In 2CPC-XX-XXXXXXX, Yamashita was convicted of
Promoting a Dangerous Drug in the Third Degree in violation of
HRS § 712-1243(1) (2014), a class C felony. The plain language
of HRS § 706-650(5) gave the circuit court the discretion, upon a
showing that Yamashita lacked the financial ability to pay the
DDR assessment, to "waive or reduce the amount" of the DDR
assessment. See State v. Kahawai, 103 Hawai#i 462, 465, 83 P.3d
725, 728 (2004) (noting that use of the term "may" in a statute
denotes discretion). HRS § 706-651 (Supp. 2018) establishes the
following priority of payments:
When a defendant is ordered to make payments pursuant to
chapters 351, 706, 846F, and 853, or as otherwise provided
by law, payments shall be made in the following order of
priority:
(1) Restitution;
(2) Crime victims compensation [CVC] fee;
(3) Probation services fee;
(4) Human trafficking victim services fee;
(5) Other fees, including but not limited to internet
crimes against children fee and drug demand reduction
assessment [DDR] fee;
(6) DNA analysis monetary assessment; and
(7) Fines.
(Underscoring added.) Although Yamashita lacked the financial
ability to pay the DDR assessment while incarcerated, the circuit
court found that he will be able to pay the CVC fees after his
release, and the DDR assessment is not payable until after the
CVC fees are paid. The circuit court did not abuse its discre-
tion when it did not waive Yamashita's DDR assessment, but
reduced it from $1,000 to $100.5
5
Yamashita contends that the circuit court did not in fact exercise
discretion, citing State v. Hussein, 122 Hawai#i 495, 229 P.3d 313 (2010) for
(continued...)
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2. Constitutionality
Yamashita argues that the CVC fees and DDR assessment
are taxes imposed pursuant to an unconstitutional delegation of
the legislature's power of taxation. Recently, in Adcock, we
held that the CVC fee is a fine, not a tax, because it is a
penalty imposed after a criminal conviction, it is to be paid
into a special fund in the state treasury that does not reimburse
payments related to the defendant's prosecution, and it makes the
severity of the crime a criterion to be considered when the court
orders the payment. 148 Hawai#i at 320-21, 473 P.3d at 781-82.
The same analysis applies to the DDR assessment, which we hold is
a permissible fine, not an unconstitutional tax.
CONCLUSION
For the foregoing reasons: (1) the "Order of
Resentencing; Revocation of Probation; Notice of Entry" entered
in 2CPC-XX-XXXXXXX on May 31, 2019; (2) the "Judgment; Conviction
and Sentence; Notice of Entry" entered in 2CPC-XX-XXXXXXX,
2CPC-XX-XXXXXXX, 2CPC-XX-XXXXXXX, 2CPC-XX-XXXXXXX, 2CPC-18-
0000632, 2CPC-XX-XXXXXXX, and 2CPC-XX-XXXXXXX on May 31, 2019;
and (3) the "Findings of Fact and Conclusions of Law; Order
Granting in Part and Denying in Part Defendant's Motion to
Reconsider Sentence" entered in all eight cases on January 15,
2020, are affirmed.
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(...continued)
the proposition that "[t]here should be evidence in the record that discretion
was in fact exercised and the basis of that exercise of discretion should be
set forth." Id. at 506 n.16, 229 P.3d at 324 n.16. Hussein established the
prospective rule that "circuit courts must state on the record at the time of
sentencing the reasons for imposing a consecutive sentence" under HRS §§ 706-
668.5(2) and 706-606. Id. at 510, 229 P.3d at 328 (underscoring added).
Hussein does not apply to a circuit court's discretionary decision to waive or
reduce the DDR assessment under HRS § 706-650(5). Moreover, the circuit
court's unchallenged findings of fact about Yamashita's employment prospects
after his release from prison provide ample explanation for the circuit
court's decision to reduce, rather than waive, the DDR assessment.
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DATED: Honolulu, Hawai#i, December 11, 2020.
On the briefs:
Richard B. Rost, /s/ Lisa M. Ginoza
for Plaintiff-Appellee. Chief Judge
Benjamin E. Lowenthal, /s/ Katherine G. Leonard
for Defendant-Appellant. Associate Judge
Kaliko#onalani D. Fernandes, /s/ Keith K. Hiraoka
for Amicus Curiae, Attorney Associate Judge
General, State of Hawai#i.
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