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Electronically Filed Supreme Court SCWC-XX-XXXXXXX 06-JUN-2019 08:02 AM
IN THE SUPREME COURT OF THE STATE OF HAWAIʻI
---oOo--- ________________________________________________________________
STATE OF HAWAIʻI, Respondent/Plaintiff-Appellee,
vs.
RONALD MELVIN BARNES, Petitioner/Defendant-Appellant. ________________________________________________________________
SCWC-XX-XXXXXXX
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CAAP-XX-XXXXXXX; FC-CR. NO. 12-1-0057)
JUNE 6, 2019
McKENNA, POLLACK, AND WILSON, JJ., WITH RECKTENWALD, C.J., DISSENTING, WITH WHOM NAKAYAMA, J., JOINS
OPINION OF THE COURT BY McKENNA, J.
I. Introduction
On March 31, 2015, Petitioner/Defendant-Appellant, Ronald
Melvin Barnes (“Barnes”), was convicted by a jury in the Circuit *** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
Court of the First Circuit (“circuit court”)1 of four counts of
sexual assault in the first degree as to a minor and one count
of sexual assault in the first degree as to another minor.
After a hearing, the circuit court granted the State’s motion
and sentenced Barnes to a term of twenty years for each count,
with terms for four of the counts as to one minor to be served
concurrently, and the term for the remaining count as to the
other minor to be served consecutively to the foregoing terms.
Barnes asserts on certiorari that the circuit court abused
its discretion in sentencing him to consecutive terms of
imprisonment and that the ICA gravely erred in affirming the
circuit court’s judgment.
Although the points raised by Barnes on appeal as bases for
challenging the consecutive terms lack merit, based on State v.
Barrios, 139 Hawaiʻi 321, 389 P.3d 916 (2016), and State v.
Kamanaʻo, 103 Hawaiʻi 315, 82 P.3d 401 (2003), we hold the
circuit court plainly erred by considering Barnes’s refusal to
admit guilt in imposing his sentence. Accordingly, we vacate
the ICA’s October 2, 2017 Judgment on Appeal and the portion of
the circuit court’s October 26, 2015 Judgment of Conviction and
Sentence (“judgment”) sentencing Barnes, and remand to the
circuit court for resentencing.
1 The Honorable Karen S. S. Ahn presided.
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II. Background
A. Circuit Court Hearing on the State’s Motion for Consecutive Sentencing
Following Barnes’s trial, on May 28, 2015, the State moved
for consecutive term sentencing. A presentence investigation
and report (commonly referred to as a “PSI”)2 was filed on June
22, 2015, in which the probation officer stated:
On June 3, 2015, an attempt was made to complete the presentence investigation (PSI) when this probation officer (PO) met the defendant at Oahu Community Correctional Center (OCCC) where the defendant was detained. The defendant reported that he received the PSI questionnaire that was sent to him but related that he would not be participating in the PSI. He further stated that, if this PO wanted information on him, PO should contact the state of Washington as he said he would not be signing any documents.
2 HRS § 706-601 (2014) required that a pre-sentence diagnosis and report be prepared regarding Barnes. HRS § 706-602 (2014) then provides in relevant part as follows:
Pre-sentence diagnosis, notice to victims, and report. (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 [regarding disposal of firearms]; and (e) Any other matters that the reporting person or agency deems relevant or the court directs to be included. . . . .
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The defendant was given the opportunity to make a verbal statement/comment about the present matters, in which he replied that he is planning to file an appeal in the instant matters, as well as an appeal in Washington for his case there. According to the defendant, he was convicted of sexual assault in Washington and started serving his term of incarceration there from July 18, 2008 to October 10, 2013. He reported that he was brought to Hawaii/OCCC on January 30, 2013, and was allowed to serve the remainder of his jail sentence in Hawaii. He said that he is now on probation status on his Washington case, which he believes expires in 2016 or 2017.
Furthermore, the defendant reported that he is “innocent” of all the sexual assault charges against him. He said that one of the victims had a sexually transmitted disease that the defendant never had, so he explained that it meant that she got the disease from someone else. He also indicated that the victim(s) may have been sexually assaulted, but that he was not the perpetrator, and said that it was someone else that was either dating the victim’s mother or living with them at that time. Due to the defendant’s unwillingness to participate in the presentence investigation interview, only the following information is being provided to the court . . . .
(Emphases added).
The sentencing hearing was held on October 26, 2015. At
the hearing, the State explained that four of the five counts of
sexual assault in the first degree related to one child
complainant, and the remaining count of sexual assault in the
first degree related to a second child complainant. According
to the State, consecutive term sentencing was appropriate and
reasonable, and reflected the seriousness of the crimes
committed against the two minors. The State emphasized that
Barnes had victimized two different children, and therefore
should not be sentenced in the same manner as if he had only
victimized one.
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In response, Barnes’s counsel asserted that there was no
justification for a consecutive sentence under State v. Hussein,
122 Hawaiʻi 495, 229 P.3d 313 (2010), as nothing in Barnes’s
personal history suggested that he was a sexual predator.
Defense counsel also noted that based on his advice, Barnes
would not be making a statement as he intended to appeal the
case. The circuit court then conducted a colloquy with Barnes
before granting the State’s motion:
[DEFENSE COUNSEL]: . . . So based upon those factors, judge, we’re asking that -- we’re submitting that there is no justification for consecutive over concurrent sentencing in this particular case. And my client will not be making a statement on the advice of counsel. He intends to appeal the case. . . . .
THE COURT: Okay, Mr. Barnes, I just need it from your mouth. You have every right to say what you wish before sentencing. Do you wish to say anything?
THE DEFENDANT: Not in this court, Your Honor.
THE COURT: All right. Okay, the court takes judicial notice of the files and records in this case and of trial, 3 and I considered the factors under HRS Section 706-606,[ ]
3 Factors to be considered in imposing a sentence. 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 (. . . continued)
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all of which a sentencing court must consider with respect to the motion for consecutive sentencing. These factors include the nature and circumstances of the offense, which are most serious as they involved the sexual molestation of two young children as to whom defendant was in a position of trust as the husband of the children’s natural mother. The conduct involved a variety of acts to the two children, both of whom were under the age of 14 years. The victim impact statements and some of what the court observed during trial showed that these two children apparently suffered harm from the sexual assaults, and that harm apparently remains with the children notwithstanding counseling.
In addition, characteristics of the defendant are another factor that the court must consider. The defendant’s conduct with regard to these sexual acts spanned a substantial period of time and involved acts of deception both as to the children and to adults. In addition, while the defendant certainly has a right to appeal all matters that are appealable, he has been uncooperative in the preparation of any aspect of the presentence report and does not appear to have expressed any sadness that the two children suffered harm of any kind.
In addition, the sentence is required to reflect the seriousness of these offenses to not one but two small children and to promote respect for the laws of our state and to provide just punishment under the totality of the relevant circumstances.
Based upon the factors which the court has just discussed under 706-606, the sentence is necessary to provide adequate deterrence to criminal conduct and to protect the public from further crimes of the defendant, especially against children. The motion for consecutive sentencing is granted to the extent that defendant is sentenced to 20 years of imprisonment in Counts 1, 3, 5, 6, and [13], and he will serve Count [13] consecutively to the other four counts. The first four, 1, 3, 5, and 6, shall be served concurrently with one another, and Count [13] will be served consecutively to Counts 1, 3, 5, and 6.
(Emphasis added).
(. . . continued) (4) The need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct.
HRS § 706-606 (2014).
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Judgment was entered on October 26, 2015 reflecting the
consecutive terms of imprisonment.
B. Appeal to the ICA
Barnes timely appealed his convictions to the ICA on a
single point of error: “[w]hether the trial court abused its
discretion in sentencing [Barnes] to terms of imprisonment in
Counts 1, 3, 5 and 6 for the offense of SEXUAL ASSAULT IN THE
FIRST DEGREE to run consecutively to the term of imprisonment in
Count 13 for the offense of SEXUAL ASSAULT IN THE FIRST DEGREE,
twenty years as to each count.”
The ICA rejected Barnes’s challenge and affirmed the
circuit court’s October 26, 2015 Judgment. See State v. Barnes,
No. CAAP-XX-XXXXXXX, at 5 (App. Apr. 13, 2017) (SDO). The ICA
noted that a sentencing judge has broad discretion to order
multiple terms of imprisonment to run concurrently or
consecutively, and that although a sentencing judge must
consider the factors set forth in HRS § 706-606 and state on the
record at the time of sentencing its reasons for imposing a
consecutive sentence, “[a]bsent clear evidence to the contrary,
it is presumed that a sentencing court will have considered all
factors before imposing concurrent or consecutive terms of
imprisonment under HRS § 706-606.” Barnes, SDO at 3 (quoting
State v. Kong, 131 Hawaii 94, 102, 315 P.3d 720, 728 (2013)).
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The ICA concluded the circuit court had appropriately
considered the HRS § 706-606 factors, including the nature and
circumstances of the offenses, the need to provide just
punishment for the crimes committed, the need for the sentence
to promote respect for the law, and to afford deterrence to
criminal conduct and to protect the public from further crimes.
Barnes, SDO at 4-5. The ICA also noted the circuit court’s
statement that Barnes “‘d[id] not appear to have expressed any
sadness that the two children suffered harm of any kind[,]’” and
that Barnes had been uncooperative in the preparation of the
PSI. Barnes, SDO at 4.
The ICA concluded that although Barnes raised the existence
of some mitigating factors, such as cooperation with the police
and lack of a prior criminal history, “the presence of some
mitigating factors does not compel this court to conclude that
the Circuit Court abused its discretion, especially in light of
the Circuit Court’s clear rationale for imposing a consecutive
sentence.” Barnes, SDO at 5. The ICA added that it rejected
any other “factors” raised by Barnes as they “in essence,
suggest that he did not sexually assault the minor victims,”
which is inconsistent with the jury’s verdict and did not bear
on the exercise of the circuit court’s discretion in sentencing.
Id.
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C. Certiorari Proceedings
On certiorari, Barnes “seeks a remand for resentencing” on
the grounds that the circuit court abused its discretion when it
imposed a consecutive term of imprisonment:
QUESTION[] PRESENTED
Whether this Honorable Court, in the exercise of its certiorari jurisdiction, ought to vacate the Summary Disposition Order (SDO) . . . of the [ICA], which upheld: the October 26, 2015 Judgment of Conviction and Sentence (Judgment) filed in the Family Court of the First Circuit Court.
Barnes seeks a remand for resentencing. Petitioner maintained on appeal in the ICA that the Family Court of the First Circuit erred by sentencing Petitioner to terms of imprisonment in Counts 1, 3, 5 and 6 for the offense of SEXUAL ASSAULT IN THE FIRST DEGREE to run consecutively to the term of imprisonment in Count 13 for the offense of SEXUAL ASSAULT IN THE FIRST DEGREE, twenty years as to each count.
Barnes argues the circuit court abused its discretion
because Barnes had “no unrelated prior criminal cases and no
prior opportunities for rehabilitation,” which contrasts with
the defendants in various other cases who were sentenced to
consecutive sentences. Further, Barnes argues the record shows:
(1) there was “no reporting by the complaining witnesses until
years later”; (2) there was evidence at trial that “the police
detectives coached the complaining witnesses during interviews”;
and (3) interrogations of Barnes by police detectives went
unrecorded. The State did not file a response to Barnes’s
application for certiorari.
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III. Standards of Review
A. Consecutive Sentencing
In general, the applicable standard of review in sentencing
matters is whether the court committed a plain and manifest
abuse of discretion in its decision.” Kamanaʻo, 118 Hawaiʻi at
221, 188 P.3d at 735 (citations omitted).
A court must, however, state its reasons as to why a
consecutive sentence rather than a concurrent sentence was
required. See Hussein, 122 Hawaiʻi at 509, 229 P.3d at 327.
B. Plain Error
When necessary to serve the ends of justice, this court
will consider issues that have not been preserved below or
raised on appeal. See Hawaiʻi Rules of Penal Procedure (“HRPP”)
Rule 52(b) (2016) (allowing plain error to be noticed although
not brought to attention of trial court); Hawaiʻi Rules of
Appellate Procedure (“HRAP”) Rule 28(b)(4) (2010) (permitting
point of error not presented on appeal to be noticed as plain
error); HRAP Rule 40.1(d)(1) (2015) (allowing question not
raised to be noticed as plain error). It is “firmly
established” that the relevant inquiry when evaluating whether a
trial court’s plain error may be noticed is whether the error
affected substantial rights. See HRPP Rule 52(b) (“Plain error.
Plain errors or defects affecting substantial rights may be
noticed although they were not brought to the attention of the
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court.”). Thus, a reviewing court has discretion to correct
plain error when the error is “not harmless beyond a reasonable
doubt.” HRPP Rule 52(a) (2016) (“Harmless error. Any error,
defect, irregularity or variance which does not affect
substantial rights shall be disregarded.”); see also State v. Uʻi,
142 Hawaiʻi 287, 297, 418 P.3d 628, 638 (2018) (citations and
footnotes omitted).
IV. Discussion
A. The Circuit Court Did Not Commit a Clear and Manifest Abuse of Discretion by Imposing a Consecutive Sentence
On certiorari, Barnes essentially raises the same arguments
as he did before the ICA, arguing that the circuit court abused
its discretion by imposing a consecutive sentence. A trial
court’s sentence is reviewed for a plain and manifest abuse of
discretion, but when imposing a consecutive sentence, a court
must state its reasons as to why a consecutive rather than a
concurrent sentence was required. See Hussein, 122 Hawaiʻi at
509, 229 P.3d at 327. This requirement serves the purposes of
(1) identifying the facts or circumstances within the range of
statutory factors the court considered important in imposing a
consecutive sentence, which provides a meaningful rationale to
the defendant, the victim, and the public, and (2) confirming
for the defendant, the victim, the public, and the appellate
court, that the decision to impose a consecutive sentence was
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deliberate, rational, and fair. See Hussein, 122 Hawaiʻi at 509-
10, 229 P.3d at 327-28.
The ICA did not err in concluding that the circuit court
provided sufficient reasoning for its decision to impose a
consecutive sentence. Although the circuit court did not
specifically address the statutory factor that Barnes had “no
unrelated prior criminal cases and no prior opportunities for
rehabilitation,” a “sentencing court is not required to
articulate and explain its conclusions with respect to every
factor listed in HRS § 706-606. . . . [T]he sentencing court is
required to articulate its reasoning only with respect to those
factors it relies on in imposing consecutive sentences.” Kong,
131 Hawaii at 102, 315 P.3d at 728 (citations omitted). The
circuit court’s failure to specifically address mitigating
factors argued by the defense when it imposed a consecutive
sentence did not amount to a clear and manifest abuse of
discretion under the circumstances of this case.
Additionally, the ICA did not err by concluding that the
“mitigating” facts Barnes asserted in his ICA brief — such as
that police interrogations of Barnes went unrecorded, or that
the children did not come forth with their allegations
immediately — do not mean that the sentencing court abused its
discretion. Rather, as stated by the ICA, Barnes appears to
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suggest that the jury erred in its verdict, but that issue is
not the subject of this appeal.
B. The Circuit Court Plainly Erred When It Considered Barnes’s Refusal to Admit Guilt in Imposing His Sentence
Pursuant to the Fifth Amendment to the United States
Constitution and Article I, section 10 of the Constitution of
the State of Hawaiʻi, a criminal defendant has the right to
remain silent, which is a privilege against self-incrimination;
this right “provides us with some of our most treasured
protections — preservation of our autonomy, privacy, and dignity
against the threat of state [coercion].” Kamanaʻo, 103 Hawaiʻi
at 320, 82 P.3d at 406 (citation omitted). “Time has not shown
that protection from the evils against which this safeguard was
directed is needless or unwarranted.” Ullmann v. United States,
350 U.S. 422, 426 (1956).
In sentencing Barnes, the circuit court stated the
following: “In addition, while the defendant certainly has a
right to appeal all matters that are appealable, he has been
uncooperative in the preparation of any aspect of the
presentence report and does not appear to have expressed any
sadness that the two children suffered harm of any kind.”
Accordingly, we address this aspect of the circuit court’s
reasoning, which was quoted by the ICA, based on a plain error
review. See Barnes, SDO at 4.
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Where a defendant’s substantial rights have been affected,
plain error review is appropriate. See State v. Miller, 122
Hawaiʻi 92, 100, 223 P.3d 157, 165 (2010); see also HRPP Rule
52(b) (“Plain errors or defects affecting substantial rights may
be noticed although they were not brought to the attention of
the court.”).
The “distinction between imposing a harsher sentence upon a
defendant based on his or her lack of remorse, on the one hand,
and punishing a defendant for his or her refusal to admit
guilt,” is “subtle, yet meaningful.” Kamanaʻo, 103 Hawaiʻi at
321–22, 82 P.3d at 407–08 (citation omitted). Although a
sentencing court “has broad discretion in imposing a sentence,
and can consider the candor, conduct, remorse[,] and background
of the defendant,” State v. Mikasa, 111 Hawaiʻi 1, 8, 135 P.3d
1044, 1051 (2006) (quoting State v. Nunes, 72 Haw. 521, 526, 824
P.2d 837, 840 (1992)), it “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.” Barrios,
139 Hawaiʻi at 338, 389 P.3d at 933 (quoting Kamanaʻo, 103 Hawaiʻi
at 320, 82 P.3d at 406). Based on the circuit court’s quoted
language above, the circuit court improperly based its sentence,
in part, on Barnes’s refusal to admit guilt.
In Kamanaʻo, this court adopted the Michigan Supreme Court’s
three-factor analysis set out in People v. Wesley, 428 Mich.
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708, 411 N.W.2d 159 (1987), to ascertain whether a sentencing
court erroneously relied on a defendant’s refusal to admit guilt
in imposing a sentence. See Kamanaʻo, 103 Hawaiʻi at 323, 82
P.3d at 409 (citation omitted). We quoted the following passage
from Wesley regarding the three-factor analysis:
(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. . . . [I]f there is an indication of the three factors, then the sentence was likely to have been improperly influenced by the defendant’s persistence 4 in his innocence.[ ] If, however, the record shows that the court did no more than address the factor of remorsefulness as it bore upon defendant’s rehabilitation, then the court’s reference to a defendant’s persistent claim of innocence will not amount to error requiring reversal.
Kamanaʻo, 103 Hawaiʻi at 323, 82 P.3d at 409 (citation omitted)
(emphasis added); see also Barrios, 139 Hawaiʻi at 338, 389 P.3d
at 933 (quoting id.). As noted above, the analysis we adopted
includes the manner in which the three factors are examined: we
stated “if there is an indication” of the three factors, “then
the sentence was likely to have been improperly influenced by
the defendant’s persistence in his innocence.” Kamanaʻo, 103
Hawaiʻi at 323, 82 P.3d at 409 (citation omitted) (emphasis
4 The Dissent erroneously asserts that this opinion “reformulates” the Kamanaʻo analysis into a rigid “if-then” test, which is satisfied if there is an ‘indication’ of the factors.” Dissent, Part I. However, we clearly stated in Kamanaʻo that “if there is an indication of the three factors, then the sentence was likely to have been improperly influenced by the defendant’s persistence of his innocence.” Kamanaʻo, 103 Hawaiʻi at 323, 82 P.3d at 409 (citation omitted) (emphasis added).
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added).5 Because of the “subtle” difference between permissible
and impermissible considerations at sentencing, the test is
structured to safeguard the defendant’s constitutional right
against self-incrimination.
In this case, there is clearly an indication of the first
factor, the defendant’s maintenance of innocence after
conviction, as Barnes maintained his innocence after conviction.
There is also an indication of the second factor, the
judge’s attempt to get the defendant to admit guilt, based on
this court’s modified interpretation of that factor to include
when a sentencing court confirms the defendant is maintaining a
claim of innocence. See Kamanaʻo, 103 Hawaiʻi at 323-24, 82 P.3d
at 409-10 (“Regarding the second factor, although the circuit
court did not coerce Kamanaʻo into admitting culpability for his
convictions, . . . in ruling on the prosecution’s motion, the
circuit court did confirm with Kamanaʻo his persistence in
maintaining his claim of innocence . . . .” (emphasis added));
see also Barrios, 139 Hawaiʻi at 338, 389 P.3d at 933. This
confirmation may come from the PSI, statements of defense
5 We also cited to this language in State v. Nakamitsu, 140 Hawaiʻi 157, 166, 398 P.3d 746, 755 (2017) (citing Kamanaʻo, 103 Hawaiʻi at 323, 82 P.3d at 409). The Dissent asserts that in Kamanaʻo, we “analyzed each of the factors separately and then weighed them as a whole[.]” Dissent, Part III.A.1. We disagree. We analyzed if there was an indication of the three factors, then stated that the third factor “weigh[ed] heavily in favor of vacating Kamanao’s sentence.” Kamanaʻo, 103 Hawaiʻi at 323-24, 82 P.3d at 409-10.
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counsel, or the defendant. In Barnes’s case, confirmations came
from all three methods.
Before the sentencing hearing, as noted above, a judiciary
probation officer had prepared a PSI, which is an integral
component of almost all sentencing decisions in our circuit
courts.6 PSIs must be prepared and be considered by the
sentencing judge for almost all felony convictions before
sentencing can occur. See HRS § 706-601(1)(a) (2014) (“Except
as provided in subsections (3) and (4), the court shall order a
pre-sentence correctional diagnosis of the defendant and accord
due consideration to a written report of the diagnosis before
imposing sentence where . . . [t]he defendant has been convicted
of a felony[.]”).
Barnes’s PSI reflected that Barnes had told the probation
officer “he [was] planning to file an appeal” in the instant
matters, and that he was “innocent of all the sexual assault
charges against him.” PSIs must be provided to the parties, and
the parties must be given an opportunity to request corrections
before sentencing can occur. See HRS § 706-604(2) (2014) (“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 . . . and afford fair opportunity, if the
defendant or the prosecuting attorney so requests, to controvert 6 See supra n.2.
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or supplement them.”). In addition, at the beginning of
Barnes’s sentencing hearing, the circuit court confirmed that
neither the State nor the defense was requesting any changes to
the PSI. Thus, defense counsel also confirmed to the circuit
court that Barnes was continuing to maintain his innocence, as
he had to the probation officer preparing the PSI. Furthermore,
after defense counsel had stated at the sentencing hearing that
Barnes “w[ould] not be making a statement on the advice of
counsel [as] [h]e intends to appeal the case,” the circuit court
asked Barnes for confirmation, stating, “Okay, Mr. Barnes, I
just need it from your mouth. You have every right to say what
you wish before sentencing. Do you wish to say anything?”
Barnes responded in the negative, thereby reconfirming his
intent to maintain his innocence.
As to the third factor, “the appearance that[,] had the
defendant affirmatively admitted guilt, his sentence would not
have been so severe,” the circuit court stated before imposing
the consecutive sentence that Barnes was “uncooperative in the
preparation of any aspect of the presentence report” and “d[id]
not appear to have expressed any sadness that the two children
suffered harm of any kind.” The record is therefore clear that
the circuit court considered Barnes’s failure to “express[] any
sadness that the two children suffered harm of any kind” when
sentencing him, even though Barnes could not have “expressed”
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such specific “sadness” without abrogating his right to remain
silent at trial and at the sentencing hearing.7 Thus, Barnes
cannot be penalized for failing to “express” himself or
communicate, even if, as the Dissent suggests, it is possible to
“express[] sadness . . . without admitting . . . guilt.”8
Dissent, Part III.B.2.
As stated above, Barnes’s “uncooperative” nature with
respect to the PSI was based on his continued professed
innocence. In other words, Barnes’s maintenance of his
innocence is inextricably linked to the manner in which he
responded to the presentence investigation and his silence (and
hence failure to “express sadness”) at the sentencing hearing.
Thus, when discussing the HRS § 706-606 factors, the sentencing
7 Further illustrating this point is the Dissent’s strained distinction between Barnes’s failure to “express[] sadness that the two children suffered harm of any kind” — as admonished by the circuit court — and a failure to show remorse. According to the Dissent, the sentencing judge’s comment that Barnes did not “express sadness” does not amount to commenting on a lack of remorse because “one can convey ‘sadness’ . . . without any admission of wrongdoing.” Dissent, Part III.B.2. Even if this were possible, and even if this were the sentencing court’s aim, the Kamanaʻo test requires only an “appearance” of the third factor; here, there nevertheless is an appearance that, had Barnes “affirmatively admitted guilt, his sentence would not have been so severe.” 8 Further, the Dissent conflates situations in which a “defendant [has] admit[ted] certain facts which, while insufficient to convict, indicate wrongful action” and “lack of remorse regarding the admitted facts,” with a negative inference drawn from a defendant’s silence by a sentencing judge. Wesley, 411 N.W.2d at 167 (Brickley, J., concurring) (footnote omitted) (emphasis added). In the former situation, “[i]t would seem appropriate to consider a defendant’s callousness or indifference to the plight of the victim, even if he continues to maintain his innocence.” Id. However, it is not appropriate in the latter situation, when a defendant’s indifference to the “plight of the victim” actually relates to the defendant’s right to remain silent.
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court faulted Barnes’s persistence in his innocence.
Accordingly, although the primary justification raised by the
State’s Motion was that there were two, not one, child victims
in this matter, and the circuit court repeatedly emphasized that
two children, not one, were harmed based on the circuit court’s
foregoing comments, there is clearly an “appearance” that had
the defendant affirmatively admitted guilt, his sentence would
not have been so severe,9 and the third factor of the Kamanaʻo
test is satisfied.
Although a sentencing court’s reference to a defendant’s
claim of innocence will not amount to error requiring vacatur
and resentencing “[i]f . . . the record shows that the court did
no more than address the factor of remorsefulness as it bore
upon defendant’s rehabilitation,” that is not the case here as
the record does not demonstrate that Barnes’s lack of
cooperation and remorse or empathy were considered by the
9 The Dissent suggests that the circuit court’s reference to Barnes’s lack of cooperation in the preparation of the presentence report does not amount to commenting on Barnes’s refusal to admit guilt. See Dissent, Part III.B.3. This suggestion does not adequately consider, however, the circuit court’s preface to its statement: “In addition, while the defendant certainly has a right to appeal all matters that are appealable, he has been uncooperative in the preparation of any aspect of the presentence report . . . .” (Emphasis added). The circuit court thus juxtaposed Barnes’s lack of cooperation with his right to appeal his conviction, i.e., his claim of innocence. Accordingly, when the sentencing judge’s full comments regarding the HRS § 706-606 factors are considered, as urged by the Dissent, there is clearly “an appearance” of the third factor. The Dissent concludes, “there is no appearance that, had Barnes affirmatively admitted guilt, his sentence would not have been so severe.” Dissent, Part III.B.3. This is not the applicable test, and even if it were, this is plainly not the case.
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circuit court only as it pertained to his rehabilitation.
Kamanaʻo, 103 Hawaiʻi at 323, 82 P.3d at 409.
The Kamanaʻo test is not one where the three factors are
first individually weighed before being balanced against the
sentencing court’s other stated considerations, as described by
the Dissent. See Dissent, Part III.A.1. Rather, the test is an
“if-then” test that follows from the basic tenet that “a
sentencing court cannot, in whole or in part, base its sentence
on a defendant’s refusal to admit guilt.” Wesley, 411 N.W.2d at
161 (citing People v. Yennior, 282 N.W.2d 920 (Mich. 1977))
(emphasis added). Specifically, this court held that “if there
is an indication of the three factors, then the sentence was
likely to have been improperly influenced by the defendant’s
persistence in his innocence.” Kamanaʻo, 103 Hawaiʻi at 323, 89
P.3d at 409 (citing Wesley, 411 N.W.2d at 162) (emphasis
added).10 In structuring the Kamanaʻo test in this manner, this
court recognized the need for safeguards for “some of our most
treasured protections – preservation of our autonomy, privacy,
and dignity against the threat of state action.” Kamanaʻo, 103
Hawaiʻi at 320, 82 P.3d at 406.
10 Indeed, that the Dissent interprets the sentencing court’s statement that Barnes was “uncooperative in the preparation of any aspect of the presentence report” differently from the Majority illustrates why an “indication” of the three factors is sufficient to show that “the sentence was likely to have been improperly influenced by the defendant’s persistence in his innocence.” See Dissent, Part III.B.3.
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In the light that all three factors are satisfied, there is
clearly an “indication” that Barnes’s “sentence was likely to
have been improperly influenced” by his persistence in his
innocence. Kamanaʻo, 103 Hawaiʻi at 323, 82 P. 3d at 409
(citation omitted). For these reasons, Barnes’s sentence must
be vacated so that he may be resentenced. See Barrios, 139
Hawaiʻi at 339, 389 P.3d at 934 (remanding to the circuit court
for resentencing) (citation omitted).
V. Conclusion
For the foregoing reasons, we vacate the ICA’s October 2,
2017 Judgment on Appeal. We also vacate the portion of the
circuit court’s October 26, 2015 Judgment of Conviction and
Sentence sentencing Barnes, and remand to the circuit court for
resentencing, consistent with this opinion.
Shawn A. Luiz, /s/ Sabrina S. McKenna for petitioner /s/ Richard W. Pollack Loren J. Thomas, DPA, for respondent /s/ Michael D. Wilson