State v. Carlton.

455 P.3d 356, 146 Haw. 16

Opinion

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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 HAWAII, 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 Hawaii 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 ***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***

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 Hawaii. 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 Hawaii 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 Hawaii 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

Hawaii 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 Hawaii 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 Hawaii 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 Hawaii 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

Hawaii 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 Hawaii 65, 72, 414 P.3d

117, 124 (2018); State v. Wheeler, 121 Hawaii 383, 390, 219 P.3d

1170, 1177 (2009). We first examine the language of the statute

itself. Choy Foo, 142 Hawaii 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 Hawaii 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 Hawaii 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 Hawaii 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 Hawaii 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 Hawaii 173, 185, 86 P.3d 982, 994

(2004) (quoting Iddings v. Mee-Lee, 82 Hawaii 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

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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

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

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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 Hawaii 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 Hawaii 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 Hawaii. Id. (citing State

v. Davia, 87 Hawaii 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 Hawaii at 511, 431 P.3d at 1284

(quoting State v. Carvalho, 90 Hawaii 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 Hawaii 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 Hawaii at 511, 431 P.3d at 1284

(quoting Chow, 77 Hawaii 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 Hawaii

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 Hawaii 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 Hawaii 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 Hawaii Constitution. Hernandez, 143 Hawaii 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 Hawaii 249, 269, 408 P.3d 1,

21 (2017) (quoting Freitas v. Admin. Dir. of Courts, 108 Hawaii

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 Hawaii 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 Hawaii

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 Hawaii 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 Hawaii.

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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 Hawaii 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

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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

Hawaii 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 Hawaii 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

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:

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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.

(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 Hawaii 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 Hawaii

Paroling Authority (HPA)); State v. Garcia, 135 Hawaii 361, 366,

351 P.3d 588, 593 (2015) (discussing how sentencing hearing

transcripts can be presented to the HPA); State v. Fogel, 95

Hawaii 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 Hawaii 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 Hawaii 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 Hawaii

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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 Hawaii 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