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Electronically Filed
Supreme Court
SCWC-XX-XXXXXXX
25-NOV-2019
09:36 AM
IN THE SUPREME COURT OF THE STATE OF HAWAIʻI
---o0o---
STATE OF HAWAII, Respondent/Plaintiff-Appellee,
vs.
BROK CARLTON, Petitioner/Defendant-Appellant.
SCWC-XX-XXXXXXX
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-XX-XXXXXXX; CASE NO. 2PC131000254(1))
NOVEMBER 25, 2019
RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.
OPINION OF THE COURT BY POLLACK, J.
This case raises the issue of whether Hawaii Rules of
Penal Procedure (HRPP) Rule 48(b)(3) (2000) applies when the
State on remand is given the option of either (a) retrying the
defendant on the charges underlying three convictions vacated by
the appellate court or (b) dismissing two of those charges and
having the circuit court reinstate the conviction on the
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remaining charge and resentence the defendant. We also consider
whether the State’s failure to disclose which two of the three
charges would be dismissed before the defendant exercised the
right of allocution at sentencing rendered the allocution
constitutionally inadequate.
For the reasons discussed below, we hold that HRPP
Rule 48(b)(3) is applicable to the circumstances of this case,
although the six-month period did not expire because the
commencement date of the time period under this rule is the
effective date of the judgment on appeal. We further hold that
the State’s failure to identify which charges would be dismissed
prior to the defendant’s sentencing allocution violated the due
process clause under article I, section 5, of the Constitution
of the State of Hawaii. Lastly, we reaffirm that sound judicial
administration instructs that the defendant be given the last
word before sentence is imposed.
I. BACKGROUND
A. Circuit Court Proceedings
On February 14, 2014, Brok Carlton was found guilty
after a jury trial in the Circuit Court of the Second Circuit
(circuit court) of kidnapping as a class A felony, in violation
of Hawaii Revised Statutes (HRS) § 707-720(1)(d) (1993); robbery
in the first degree, in violation of HRS § 708-840(1)(a) (1993 &
Supp. 2006); assault in the second degree, in violation of HRS
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§ 707-711(1)(d) (1993 & Supp. 2007); and unauthorized control of
a propelled vehicle (UCPV), in violation of HRS § 708-836 (1993
& Supp. 2001). On June 6, 2014, the circuit court sentenced
Carlton to twenty years imprisonment for the kidnapping and
robbery charges and five years imprisonment for the assault and
UCPV charges, with all counts to run consecutively for a total
of fifty years of imprisonment.1 Carlton appealed the judgment
to the Intermediate Court of Appeals (ICA) on the grounds that
the jury was not properly instructed on the law of merger for
the kidnapping, robbery, and assault offenses. The ICA agreed
that the circuit court erred, pursuant to HRS § 701-109(1)(e),2
by not instructing the jury regarding the possible merger of
these offenses. The ICA affirmed the circuit court’s sentence
as to the UCPV conviction, but vacated the convictions for
kidnapping, robbery, and assault.
The ICA ordered the State on remand to retry Carlton
1
The Honorable Judge Rhonda I. L. Loo presided over the trial and
on the remand proceedings.
2
HRS § 701-109(1)(e) (1993) states as follows:
When the same conduct of a defendant may establish an
element of more than one offense, the defendant may be
prosecuted for each offense of which such conduct is an
element. The defendant may not, however, be convicted of
more than one offense if: . . . . (e) The offense is
defined as a continuing course of conduct and the
defendant’s course of conduct was uninterrupted, unless the
law provides that specific periods of conduct constitute
separate offenses.
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on the kidnapping, robbery, and assault charges with appropriate
merger instructions provided to the jury or to dismiss two of
the three counts and have the circuit court reinstate the
conviction and resentence Carlton on the non-dismissed count.
The Judgment on Appeal was entered on June 27, 2016.
The State took no action until a hearing was held in
the circuit court on January 11, 2017, when the State, for the
first time, indicated that it was electing to dismiss two of the
three counts and would proceed with resentencing on the
remaining count. The State did not inform Carlton or defense
counsel which counts would be dismissed and which count would be
reinstated. Instead, all of the counts were scheduled for
resentencing at a later date.
On January 17, 2017, Carlton filed a motion to dismiss
the three counts on the basis that HRPP Rule 48(b)(3) had been
violated because more than six months had elapsed between the
entry of the ICA’s Judgment on Appeal on June 27, 2016, and the
date of the State’s election on January 11, 2017.3 In
3
HRPP Rule 48(b)(3) states as follows:
Except in the case of traffic offenses that are not
punishable by imprisonment, the court shall, on motion of
the defendant, dismiss the charge, with or without
prejudice in its discretion, if trial is not commenced
within 6 months . . . (3) from the date of mistrial, order
granting a new trial or remand, in cases where such events
require a new trial.
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opposition, the State argued that, by its plain language, HRPP
Rule 48(b)(3) did not apply because a new trial was not required
by the ICA’s decision, which allowed the State to elect between
a new trial and resentencing. A hearing on the motion was held
on February 1, 2017, in which the circuit court denied the
motion, stating that HRPP Rule 48(b)(3) “only applies to cases
where such events require a new trial. In this case, a new
trial is not going to be the solution. I understand the State’s
going to go with re-sentencing.”
At the resentencing hearing on April 28, 2017, the
circuit court asked defense counsel to proceed first with
counsel’s sentencing argument. Defense counsel stated that
Carlton had maintained good behavior during his years in custody
and that the court should consider Carlton’s post-conviction
conduct as a sentencing factor. After counsel finished, the
court asked Carlton if he had anything to say. Carlton
apologized for his actions and requested leniency. The State
then proceeded with its argument, focusing on the sentencing
factors under HRS § 706-606.4 The State argued that the court
4
HRS § 706-606 (1993) states the following:
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:
(continued. . .)
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should not consider Carlton’s conduct while he was in custody
and asked the court to impose consecutive sentences because of
the planning and premeditation involved. The State argued that
because Carlton had to recruit accomplices, gather various
tools, and travel over an hour in order to carry out the crime,
consecutive terms were necessary.
At the end of its argument, for the first time, the
State disclosed its decision to ask the circuit court to
sentence Carlton on the robbery charge and to dismiss the
kidnapping and assault charges. Carlton’s counsel asked the
court if the defense could respond, and the court allowed
defense counsel to do so. Carlton’s counsel maintained that the
court could consider Carlton’s conduct while in custody and
should particularly consider his completion of all the classes
available to him while he was incarcerated. After Carlton’s
(. . . continued)
(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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counsel responded, the court summarized the facts of the case
and considered the sentencing factors under HRS § 706-606. The
court did not address Carlton after the State’s election, nor
did it afford him an opportunity to address the court once he
had been informed of the conviction on which he would be
resentenced.
The circuit court then sentenced Carlton to twenty
years imprisonment on the robbery offense and ordered that the
twenty-year term for the robbery offense and the five-year term
for the UCPV offense run consecutively for a total of twenty-
five years. The court’s Amended Judgment; Conviction and
Sentence; Notice of Entry was filed on April 28, 2017 (circuit
court judgment). Carlton timely appealed on May 15, 2017.
B. ICA Proceedings
In a Summary Disposition Order,5 the ICA agreed with
the State’s contention, first raised on appeal, that the clock
for HRPP Rule 48 did not begin to run in this case until July
28, 2016, when the judgment on appeal became effective pursuant
to Hawaii Rules of Appellate Procedure (HRAP) Rule 36(c)(1).6
5
The ICA’s summary disposition order can be found at State v.
Carlton, No. CAAP-XX-XXXXXXX, 2019 WL 2462827 (June 13, 2019).
6
HRAP Rule 36(c)(1) (2016) states in relevant part as follows:
“The intermediate court of appeals’ judgment is effective as follows: (1) if
no application for writ of certiorari is filed, (A) upon the thirty-first day
after entry . . . .”
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The ICA concluded that Carlton’s argument failed because the
State made its election before six months had run from when the
judgment on appeal became effective, even assuming that HRPP
Rule 48 applies to a remand that allows the State to elect
between a new trial and resentencing.
The ICA also found that Carlton’s right of allocution
was not violated because Carlton was aware that the State had
not elected the specific counts for dismissal and did not object
at the resentencing hearing. The ICA stated that Carlton’s
counsel could have requested that Carlton be allowed to speak
again, but he did not. On this basis, the ICA found that the
issue was waived.
Despite the finding of waiver, the ICA went on to
conclude that the circuit court did not violate Carlton’s right
of allocution by asking Carlton to make a statement before
knowing for which charge he was to be sentenced. Carlton was
aware of the evidentiary basis of each charge, the ICA stated,
so the fact that he did not know which charges would be
dismissed could not demonstrate a lack of notice as to the
charges themselves or the evidentiary bases for them. “Thus,”
the ICA stated, “Carlton received adequate notice of the facts
at issue in resentencing.” Accordingly, the ICA concluded that
Carlton received notice and the opportunity to be heard, and
therefore his right of allocution as provided by the right to
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due process was not violated.
II. STANDARDS OF REVIEW
“When interpreting rules promulgated by the court,
principles of statutory construction apply.” State v. Lau, 78
Hawaii 54, 58, 890 P.2d 291, 295 (1995). “Interpretation of a
statute is a question of law which we review de novo.”
Id.
“Therefore, interpretation of HRPP Rule 48 is a question of law
reviewable de novo.”
Id.
“We review questions of constitutional law by
exercising our own independent constitutional judgment based on
the facts of the case.” State v. Phua, 135 Hawaii 504, 511-12,
353 P.3d 1046, 1053-54 (2015). Therefore, we review questions
of constitutional law under the right/wrong standard.
Id.
III. DISCUSSION
A. Interpretation of HRPP Rule 48(b)(3)
1. HRPP Rule 48(b)(3) Applies to Cases On Remand in which the
State May Elect Between a New Trial and Resentencing
“HRPP Rule 48 operates to ‘ensure an accused a speedy
trial’ and to further ‘policy considerations to relieve
congestion in the trial court, to promptly process all cases
reaching the courts, and to advance the efficiency of the
criminal justice process.’” State v. Fukuoka, 141 Hawaii 48,
62-63, 404 P.3d 314, 328-329 (2017) (quoting State v. Estencion,
63 Haw. 264, 268,
625 P.2d 1040, 1043 (1981)). This rule “was
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adopted in part to ensure the speedy, efficient resolution of
cases in which a person is charged with a criminal offense and
is subject to a possible term of imprisonment.” State v. Lau,
78 Hawaii 54, 60, 890 P.2d 291, 297 (1995). HRPP Rule 48’s
purpose is underpinned by the principle that “[u]nreasonable
delay in the determination of criminal action subverts the
public good and disgraces the administration of justice.”
Estencion,
63 Haw. at 268,
625 P.2d at 1043.
At issue in this case is whether HRPP Rule 48(b)(3)
applies when the State is instructed to elect on remand a new
trial on vacated convictions or reinstatement and resentencing
of a vacated count or counts. HRPP Rule 48(b)(3) states in
relevant part as follows:
[T]he court shall, on motion of the defendant, dismiss the
charge, with or without prejudice in its discretion, if
trial is not commenced within 6 months . . . (3) from the
date of mistrial, order granting a new trial or remand, in
cases where such events require a new trial.
The circuit court, in considering HRPP Rule 48(b)(3), stated
that the rule only applies when a new trial is required on
remand. The court found that a new trial was not required in
this case because the State was given the option of seeking
resentencing instead of retrying Carlton on the vacated counts.
Since HRPP Rule 48(b)(3) is a rule promulgated by the
court, principles of statutory construction apply. Lau, 78
Hawaii at 58, 890 P.2d at 295 (employing principles of statutory
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construction to interpret the applicability of HRPP Rule 48).
This court’s construction of statutes is guided by well-settled
principles. See State v. Choy Foo, 142 Hawaii 65, 72, 414 P.3d
117, 124 (2018); State v. Wheeler, 121 Hawaii 383, 390,
219 P.3d
1170, 1177 (2009). We first examine the language of the statute
itself. Choy Foo, 142 Hawaii at 72,
414 P.3d at 124. If the
language is plain and unambiguous, we must give effect to its
plain and obvious meaning.
Id. Also, implicit in statutory
construction is our foremost obligation to ascertain and give
effect to the intention of the legislature, which is obtained
primarily from the language of the statute itself.
Id.
Finally, when there is doubt, doubleness of meaning, or
indistinctiveness or uncertainty of an expression used in a
statute, an ambiguity exists.
Id. When there is ambiguity, the
meaning of ambiguous words may be sought by examining the
context or resorting to extrinsic aids to determine legislative
intent. Citizens Against Reckless Dev. v. Zoning Bd. of
Appeals, 114 Hawaii 184, 194,
159 P.3d 143, 153 (2007).
Applying these statutory principles to our
construction of HRPP Rule 48(b)(3) must therefore begin “with an
examination of the plain language” of the rule. State v. King,
139 Hawaii 249, 253, 386 P.3d 886, 890 (2016). The language of
HRPP Rule 48(b)(3) indicates that it applies “in cases where
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such events require a new trial.” In this case, the ICA held in
the first appeal that the failure of the circuit court to
provide merger instructions required that Carlton be given a new
trial unless the State voluntarily dismissed two of the three
counts. The State counters that no new trial is required
because it is empowered to elect a non-trial option. While this
is correct, it is also true that the ICA required a new trial
unless the State dismissed two of the three counts against
Carlton. Thus, under its plain language, HRPP Rule 48(b)(3)
appears applicable as the ICA’s “order grant[ed] a new trial” in
a situation “where such events require a new trial.” The fact
that the new trial could be avoided by the State if it dismissed
two counts does not substantively change the ICA disposition
that a new trial was required unless the State followed specific
steps to avoid this mandate.
However, even assuming an ambiguity in the language of
the rule, “this court’s foremost obligation in [rule]
interpretation is to effectuate the [rule’s] purpose.” State v.
Tsujimura, 140 Hawaii 299, 307, 400 P.3d 500, 508 (2017). Our
interpretation of HRPP Rule 48(b)(3), therefore, must effectuate
the purpose of the rule to ensure an accused a speedy trial,
relieve congestion in the trial court, promptly process all
cases reaching the courts, and advance the efficiency of the
criminal justice process. Fukuoka, 141 Hawaii at 62-63, 404
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P.3d at 328-29. If HRPP Rule 48(b)(3) did not apply in cases
when the State may elect between a new trial and resentencing,
the State would be able to delay retrying the defendant beyond
the six-month period provided by the rule. Indeed, the time
period for the State to delay its election would extend without
limitation and would only be circumscribed when the delay was
deemed to violate the constitutional right to a speedy trial, a
very high hurdle to demonstrate. Thus, to hold that HRPP Rule
48(b)(3) applies only in situations when a new trial is
required, and not when the State may elect between new trial and
resentencing, would undermine the purposes of HRPP Rule 48 to
ensure prompt processing of all cases and advance the efficiency
of the criminal justice process.
Further, “it is well settled that this court may
depart from a plain reading of a [rule] where a literal
interpretation would lead to absurd and/or unjust results.”
Morgan v. Planning Dep’t, 104 Hawaii 173, 185, 86 P.3d 982, 994
(2004) (quoting Iddings v. Mee-Lee, 82 Hawaii 1, 15,
919 P.2d
263, 277 (1986)). To read HRPP Rule 48(b)(3) as applying only
when the appellate disposition requires a new trial as the sole
option would, as discussed above, lead to results that are
illogical and unjust in light of HRPP Rule 48’s purposes of
ensuring a defendant a speedy trial and advancing the efficiency
of the criminal justice process. See Estencion,
63 Haw. at 268,
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625 P.2d at 1043.
Accordingly, we hold that HRPP Rule 48(b)(3) applies
to cases when the State may on remand elect between a new trial
and resentencing.
2. The HRPP Rule 48(b)(3) Clock Begins to Run when the Judgment
of the Appellate Court Becomes Effective
Also at issue in this case is whether the clock for
HRPP Rule 48(b)(3) begins to run once the appellate court files
its judgment on appeal or when the judgment of the appellate
court becomes effective. HRAP Rule 36(c)(1) provides that, when
no application for writ of certiorari is filed, the judgment is
effective “(A) upon the thirty-first day after entry or (B)
where the time for filing an application for a writ of
certiorari is extended in accordance with Rule 40.1(a) of these
Rules, upon the expiration of the extension.” The Commentary to
HRAP Rule 36 states as follows:
See Rule 41 and its commentary (“the intermediate court of
appeals’ judgment cannot be effective and jurisdiction
cannot revert to the court or agency from which appeal was
taken until the time for filing the application has expired
or, if an application is filed, the supreme court has
rejected or dismissed the application or affirmed the
intermediate court of appeals’ judgment in whole.”)
(Emphases added.)7 As explained by the Commentary to HRAP Rule
7
The Commentary to HRAP Rule 41 (2012) states as follows:
Effective for intermediate court of appeals’ judgments on appeal
and orders of dismissal entered on or after January 1, 2012, a
party has 30 days to file an application for a writ of
(continued. . .)
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36, the court from which appeal was taken does not reacquire
jurisdiction over the matter until the judgment becomes
effective.
Thus, until the judgment on appeal becomes effective,
the lower court does not have the power to exercise authority
over a case in order to schedule further proceedings. Since
trial cannot be scheduled until the judgment on appeal becomes
effective, the clock for HRPP Rule 48(b)(3) only begins to run
once the judgment of the appellate court becomes effective.
This interpretation is also necessitated by the fact that, in
cases when this court accepts the application for certiorari and
then affirms the judgment of the ICA in whole under HRAP
Rule 36(c)(2)(B),8 the ICA’s judgment on appeal does not become
(. . . continued)
certiorari, which can be extended for no more than an additional
30 days upon the filing of a written request for extension in
accordance with HRAP Rule 40.1(a). The time for filing the
application is measured from the date the intermediate court of
appeals’ judgment on appeal or order of dismissal was filed.
Thus, the intermediate court of appeals’ judgment cannot be
effective and jurisdiction cannot revert to the court or agency
from which appeal was taken until the time for filing the
application has expired or, if an application is filed, the
supreme court has rejected or dismissed the application or
affirmed the intermediate court of appeals’ judgment in whole.
The supreme court’s judgment on appeal is not subject to further
state review and is effective upon entry.
8
HRAP Rule 36(c)(2)(B) (2016) states as follows: “The intermediate
court of appeals’ judgment is effective as follows: . . . (2) if an
application for writ of certiorari is filed, . . . (B) upon entry of the
(continued. . .)
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effective until entry of an order or other disposition by this
court. See HRAP Rule 36(c)(2)(B). Under these circumstances,
the effective date of the judgment would generally be more than
six months from the date the judgment was filed by the ICA, and
thus under Carlton’s interpretation the clock for HRPP Rule
48(b)(3) would expire while the ICA decision is pending review
in this court.
Based on the plain meaning of HRPP Rule 48(b)(3), as
well as the rule’s purposes of ensuring an accused a speedy
trial, relieving congestion in the trial court, promptly
processing all cases reaching the courts, and advancing the
efficiency of the criminal justice process, we hold that the
clock for HRPP Rule 48(b)(3) begins to run when the judgment of
the ICA becomes effective.
Applying this holding to this case, the judgment on
appeal in the first appeal was entered on June 27, 2016, and no
application for writ of certiorari or request for extension of
time for filing an application was filed. Therefore, under HRAP
Rule 36(c)(1)(A), the judgment on appeal was effective upon the
thirty-first day after entry, or July 28, 2016. This made the
HRPP Rule 48 deadline January 24, 2017. See State v. Jackson,
(. . . continued)
supreme court’s order or other disposition affirming in whole the judgment of
the intermediate court of appeals.”
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81 Hawaii 39, 50, 912 P.2d 71, 82 (1996) (stating that six
months is construed as one hundred eighty days). The State
elected not to seek retrial on January 11, 2017. Since this
date was before the deadline of January 24, 2017, the ICA was
correct when it concluded that the circuit court did not err by
denying Carlton’s January 17, 2017 motion to dismiss this case
for violation of HRPP Rule 48(b)(3).
B. Carlton’s Right of Allocution
Carlton also contends that the circuit court’s
sentencing procedure violated his due process right of
allocution by not affording him an opportunity to address the
court after the State elected which charges would be dismissed
and which charge Carlton would be resentenced on. “Allocution
is the defendant’s right to speak before sentence is imposed.”
State v. Hernandez, 143 Hawaii 501, 509, 431 P.3d 1274, 1282
(2018) (internal quotations and alterations omitted). The right
of presentence allocution is an important constitutional right
guaranteed under the due process clause, article I, section 5,
of the Constitution of the State of Hawaii.
Id. (citing State
v. Davia, 87 Hawaii 249, 255,
953 P.2d 1347, 1353 (1998)). The
right is also protected by HRS § 706-604(1) (1993), which
provides in full that, “Before imposing sentence, the court
shall afford a fair opportunity to the defendant to be heard on
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the issue of the defendant’s disposition.” HRPP Rule 32(a)
similarly provides that the court, prior to imposing sentence,
“shall address the defendant personally and afford a fair
opportunity to the defendant and defendant’s counsel, if any, to
make a statement and present any information in mitigation of
punishment.”9 The multiple layers of protection afforded to the
defendant’s right of allocution reflect the multiple important
purposes it serves.
One “prime reason” for allocution is to provide the
defendant an opportunity to plead for mitigation of the
sentence. Hernandez, 143 Hawaii at 511, 431 P.3d at 1284
(quoting State v. Carvalho, 90 Hawaii 280, 286,
978 P.2d 718,
724 (1999)). Allocution also provides the defendant the
opportunity to dispute the factual bases for sentencing and to
meaningfully participate in the sentencing process. State v.
Chow, 77 Hawaii 241, 250,
883 P.2d 663, 672 (App. 1994). Beyond
sentence mitigation, allocution is important because it allows
the defendant to “acknowledge wrongful conduct, which is ‘the
9
HRPP Rule 32(a) (2012) states as follows:
After adjudication of guilt, sentence shall be imposed
without unreasonable delay. Pending sentence, the court
may commit the defendant or continue or alter bail, subject
to applicable provisions of law. Before suspending or
imposing sentence, the court shall address the defendant
personally and afford a fair opportunity to the defendant
and defendant’s counsel, if any, to make a statement and
present any information in mitigation of punishment.
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first step towards satisfying the sentencing objective of
rehabilitation,’” and it may have a therapeutic effect on the
defendant. Hernandez, 143 Hawaii at 511, 431 P.3d at 1284
(quoting Chow, 77 Hawaii at 250,
883 P.2d at 672). The
defendant’s public acknowledgement of wrongdoing may also have
collateral benefits by deterring others from similar conduct and
“purging . . . any felt need for retribution in a victim, a
victim’s family, or the community as a whole.” Chow, 77 Hawaii
at 250,
883 P.2d at 672.
1. Due Process Requires the Court to Afford the Defendant an
Opportunity to be Heard Prior to Sentencing at a Meaningful
Time and in a Meaningful Manner
It is the duty of the trial court to directly address
the defendant and ensure the defendant’s right of allocution is
upheld. See State v. Schaefer, 117 Hawaii 490, 498, 184 P.3d
805, 813 (App. 2008) (“We know of no effective or adequate
manner in which a defendant’s right of presentence allocution
may be constitutionally realized than to affirmatively require
that the trial court make direct inquiry of the defendant’s wish
to address the court before sentence is imposed.” (quoting Chow,
77 Hawaii at 247,
883 P.2d at 669)). This duty is also imposed
on the trial court by the language of HRS § 706-604(1), which,
as noted above, provides that “the court shall afford a fair
opportunity to the defendant to be heard on the issue of the
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defendant’s disposition.” (Emphasis added.) HRPP Rule 32(a)
uses similar mandatory language, instructing that “before
suspending or imposing sentence, the court shall address the
defendant personally.” (Emphasis added.)
As stated, the right of presentence allocution is an
important constitutional right guaranteed under the due process
clause of the Hawaii Constitution. Hernandez, 143 Hawaii at
509, 431 P.3d at 1282. We have observed that “procedural due
process requires that a person have an ‘opportunity to be heard
at a meaningful time and in a meaningful manner.’” In re
Application of Maui Elec. Co., 141 Hawaii 249, 269,
408 P.3d 1,
21 (2017) (quoting Freitas v. Admin. Dir. of Courts, 108 Hawaii
31, 44,
116 P.3d 673, 686 (2005)). As a due process right, a
defendant’s right of allocution is violated if the court fails
to afford the defendant an opportunity to exercise the right at
a meaningful time and in a meaningful manner. See, e.g.,
Carvalho, 90 Hawaii at 286,
978 P.2d at 724 (a sentencing court
must afford a defendant the right of presentence
allocution “before ruling on the applicability of the young
adult defendants statute”). In order to be meaningful, the
opportunity for allocution must be reasonably calculated to
achieve its purposes of providing the defendant with an
opportunity to plead for mitigation, contest the factual bases
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for sentencing, and acknowledge wrongdoing. See Chow, 77 Hawaii
at 250, 883 P.2d at 672.
In this case, the court provided Carlton the
opportunity for allocution before the State specified which
charges would be dismissed and which charge would be reinstated.
Each of the potential charges, kidnapping, robbery, and assault,
are predicated on different conduct and the elements of the
offenses are not the same. The robbery charge in particular
involved conduct that was not encompassed by the kidnapping and
assault charges. Since Carlton did not know the offense he was
to be sentenced on, he did not know which of his actions he
needed to address and possibly provide explanation, mitigation,
or take responsibility for. Carlton was thus not afforded a
meaningful opportunity to address the circumstances of the
robbery offense because, at the time of his allocution, he did
not know that this offense would provide the basis for the
resentencing. In essence, the court and the State put Carlton
in the position of having to address three offenses although
only one of them was to underlie the conviction in this case.
The ICA found that Carlton waived any objection to the
court’s violation of his due process right of allocution
because, at the time of sentencing, Carlton was aware that the
State had not elected the specific counts for dismissal and did
not object at that time. Although it is true that Carlton’s
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counsel could have requested that Carlton be allowed to speak
again, it was the duty of the court, not Carlton’s counsel, to
afford Carlton a fair opportunity to be heard. See Grindling v.
State, 144 Hawaii 444, 452, 445 P.3d 25, 33 (2019) (“[A] trial
court’s constitutional duty to engage the defendant in a
colloquy . . . does not devolve upon defense counsel when the
court does not fulfill its responsibility.”); HRS § 706-604(1);
HRPP Rule 32(a). Therefore, Carlton’s failure to object at his
resentencing hearing did not constitute a waiver of his due
process right of allocation.
As stated, in order to have a meaningful opportunity
to exercise his right of allocution, Carlton needed to know the
offense for which he would be sentenced before he made his
statement to the court. It is the duty of the sentencing court
to ensure a defendant’s right of allocution can be exercised in
an informed and knowing manner at the time the defendant
addresses the court. We hold that by failing to afford Carlton
an opportunity to make a statement after he was apprised of the
offense for which he would be sentenced, the circuit court
violated Carlton’s right of allocution as guaranteed by the due
process clause, article I, section 5, of the Constitution of the
State of Hawaii.
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2. Allowing the Defendant the Last Word Before Sentence Is
Imposed Is an Element of Sound Judicial Administration
In addition to being unable to address the offense of
conviction, Carlton had no opportunity to controvert the State’s
sentencing argument or supplement the statements of defense
counsel regarding his conduct while incarcerated.
The timing of the court’s invitation to the defendant
to speak regarding all factual matters presented to the court is
unquestionably significant to the meaningfulness of the right of
allocution. See, e.g., Carvalho, 90 Hawaii at 286, 978 P.2d at
724. In Carvalho, the sentencing court did not afford Carvalho
an opportunity to be heard before denying his request for
sentencing as a young adult defendant.
Id. We held that, by
not providing Carvalho an opportunity to be heard before ruling
on the applicability of the young adult sentencing statute, the
sentencing court had denied Carvalho his right of allocution.
We stated that the “right of allocution is designed to provide
an opportunity to affect the totality of the trial court’s
sentencing determination.” Id. at 286,
978 P.2d at 724.
Manifestly, the statements of counsel at a sentencing
hearing that contain factual assertions can significantly impact
the court’s application of the sentencing factors set forth in
HRS § 706-606. In this case, after Carlton addressed the court,
both counsel made arguments about whether and to what extent the
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court should consider Carlton’s conduct while incarcerated, what
level of premeditation was involved in the offense, and whether
consecutive or concurrent sentences should be imposed. The
court did not speak directly to Carlton after the arguments were
completed. This omission denied Carlton an opportunity to
affect the totality of the court’s sentencing determination as
Carlton was not able to controvert the statements made by the
State about his asserted premeditation in the offense of
conviction or supplement the statements of defense counsel
regarding his conduct while incarcerated--matters on which
Carlton may have been able to provide additional information to
the court.
This ability to controvert, correct, or supplement
factual representations made by counsel is similar to a
defendant’s right to controvert or supplement the presentence
investigation report (PSI), as provided by HRS § 706-604(2)
(Supp. 2006).10 The statute requires the court to furnish the
10
HRS § 706-604(2) states the following:
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 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
(continued. . .)
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parties with a copy of the PSI and afford fair opportunity for
the parties to controvert or supplement it. State v. Phua, 135
Hawaii 504, 517 n.21, 353 P.3d 1046, 1059 n.21 (2015). This
provision is designed to protect defendants from unfounded facts
and derogatory information by requiring notice and an
opportunity to controvert the information. State v. Barrios,
139 Hawaii 321, 331,
389 P.3d 916, 926 (2016). This ensures
that the court or other entity making a decision about a
defendant’s sentence be given, and relies upon, the most
accurate information available. The ability to controvert or
supplement the PSI is particularly critical because of its many
uses in the criminal justice process. See generally, HRS § 806-
73(b)(3) (Supp. 2005);11 HRS § 706-604(4) (Supp. 2006).12
(. . . continued)
to be deleted is completely removed or other amendments,
including additions, are made.
11
HRS § 806-73(b)(3) provides as follows:
(3) A copy of a presentence report or investigative report
shall be provided only to:
(A) The persons or entities named in section 706-604;
(B) The Hawaii paroling authority;
(C) Any psychiatrist, psychologist, or other treatment
practitioner who is treating the defendant pursuant to a
court order or parole order for that treatment;
(D) The intake service centers;
(E) In accordance with applicable law, persons or entities
doing research; and
(F) Any Hawaii state adult probation officer or adult
probation officer of another state or federal jurisdiction
who:
(continued. . .)
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Like the PSI, the statements of counsel at the
sentencing hearing may influence the court’s sentencing
determination. In order to ensure the defendant is afforded a
meaningful opportunity to address all information before the
court and to affect the totality of the trial court’s sentencing
determination, the defendant should be given the opportunity to
make a statement to the court after both counsel have completed
their sentencing arguments.13 Failing to afford the defendant
this opportunity undermines the defendant’s ability to
controvert or supplement factual assertions made during the
proceeding. Additionally, the statements of counsel at the
sentencing hearing have relevance beyond the initial sentencing
determination because transcripts of sentencing hearings may be
used in subsequent proceedings. See, e.g., De La Garza v.
(. . . continued)
(i) Is engaged in the supervision of a defendant or
offender convicted and sentenced in the courts of Hawaii;
or
(ii) Is engaged in the preparation of a report for a court
regarding a defendant or offender convicted and sentenced
in the courts of Hawaii[.]
12
HRS § 706-604(4) provides as follows: “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.”
13
If other persons aside from counsel address the court at
sentencing, this should occur prior to the defendant’s allocution. See,
e.g., HRS § 706-604(3) (2014 & Supp. 2016) (“[T]he court shall afford a fair
opportunity to the victim to be heard on the issue of the defendant’s
disposition, before imposing sentence.”).
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State, 129 Hawaii 429, 433, 302 P.3d 697, 701 (2013) (noting
that the prosecutor referenced statements made at defendant’s
sentencing hearing at a minimum term hearing before the Hawaii
Paroling Authority (HPA)); State v. Garcia, 135 Hawaii 361, 366,
351 P.3d 588, 593 (2015) (discussing how sentencing hearing
transcripts can be presented to the HPA); State v. Fogel, 95
Hawaii 398, 403,
23 P.3d 733, 738 (2001) (stating that the
circuit court reviewed the transcript of the sentencing hearing
when ruling upon defendant’s motion to reconsider sentence).
We have stated that courts should, “as a matter of
good judicial administration, unambiguously address themselves
to the defendant providing a personal invitation to speak prior
to sentencing.” Phua, 135 Hawaii at 517, 353 P.3d at 1059
(internal quotations omitted). This court, as well as the ICA,
has indicated that the sentencing court should give the
defendant an opportunity to speak just before sentence is
imposed by stating that “[t]he right is one easily administered
. . . by the following inquiry: ‘Do you, . . . [(defendant’s
name)], have anything to say before I pass sentence?’”
Id.
(some alterations in original) (quoting Chow, 77 Hawaii at 248,
883 P.2d at 670). It is noted, however, that due process does
not necessarily demand that a defendant be given the last word
in all circumstances. See, e.g., State v. Nicholson, 120 Hawaii
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480, 486, 210 P.3d 3, 9 (App. 2009) (affirming circuit court’s
refusal to allow defendant a second allocution after the court
expressed disbelief in response to defendant’s statement when
imposing sentence). Nevertheless, prudential judicial
administration instructs that the defendant be given the last
word before sentencing is imposed in order to avoid eroding the
meaningfulness of the defendant’s right of allocution. Under
the circumstances presented in this case, the failure to provide
Carlton an opportunity to speak after counsel completed their
arguments clearly impaired Carlton’s ability to controvert or
supplement the statements of counsel.
Given our holding that Carlton’s due process right of
allocution was violated by the court’s failure to require timely
disclosure of the offense for which he would be sentenced, it is
unnecessary to determine whether the court’s failure to provide
Carlton the opportunity to controvert or supplement the
statements of counsel also rose to the level of a due process,
statutory, or rule violation that requires resentencing.
However, we reiterate that sound judicial administration
requires that the sentencing court afford the defendant an
opportunity for allocution after the arguments of counsel are
complete and before sentence is imposed. Phua, 135 Hawaii at
517, 353 P.3d at 1059.
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IV. CONCLUSION
Based on the foregoing, we vacate in part and affirm
in part the ICA’s Judgment on Appeal entered on July 11, 2019
(ICA judgment) and the circuit court judgment. The sentence set
forth in the circuit court judgment and affirmed by the ICA
judgment are vacated, and the case is remanded to the circuit
court for resentencing before a different judge. We otherwise
affirm the ICA judgment and the circuit court judgment for the
reasons stated herein.
Richard D. Gronna /s/ Mark E. Recktenwald
(Benjamin E. Lowenthal on the
opening brief) /s/ Paula A. Nakayama
for petitioner
/s/ Sabrina S. McKenna
Renee Ishikawa Delizo
for respondent /s/ Richard W. Pollack
/s/ Michael D. Wilson
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