State v. Cattaneo.

497 P.3d 101, 150 Haw. 86

Opinion

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Electronically Filed Supreme Court SCWC-XX-XXXXXXX 22-OCT-2021 11:41 AM Dkt. 15 OP

IN THE SUPREME COURT OF THE STATE OF HAWAIʻI

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STATE OF HAWAIʻI, Respondent/Plaintiff-Appellee,

vs.

MICHAEL A. CATTANEO, Petitioner/Defendant-Appellant.

SCWC-XX-XXXXXXX

CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CAAP-XX-XXXXXXX; CASE NO. 2PC151000023; CASE NO. 2PC151000122)

OCTOBER 22, 2021

RECKTENWALD, C.J., NAKAYAMA, McKENNA, WILSON, AND EDDINS, JJ.

OPINION OF THE COURT BY EDDINS, J.

Michael Cattaneo pled no contest to negligent homicide in

the first degree and two drug-related charges. The Circuit

Court of the Second Circuit accepted his pleas and sentenced

him. 1 It imposed two concurrent five-year terms of imprisonment

1 Cattaneo pled no contest to one count of negligent homicide in the first degree in 2PC151000023 and to one count of promoting a dangerous drug *** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***

(for the drug crimes), to run consecutively with a ten-year term

for the negligent homicide charge. Cattaneo moved under Hawai‘i

Rules of Penal Procedure (HRPP) Rule 35(b) to reduce this

sentence. He wanted his five-year sentences to run

concurrently, rather than consecutively, with his ten-year term.

Cattaneo supported his Rule 35(b) motion by arguing that

his consecutive sentence was harsher than those of two second

circuit defendants recently convicted of, and sentenced for,

negligent homicide in the first degree. Hawai‘i Revised Statutes

(HRS) § 706-606 (2014) identifies the factors courts must

consider “in imposing a sentence.” Cattaneo argued that one

factor courts must consider “in imposing a sentence” was HRS

§ 706-606(4), “[t]he need to avoid unwarranted sentence

disparities among defendants with similar records who have been

found guilty of similar conduct.” As such, he reasoned that the

trial court, in deciding his Rule 35(b) motion, should have

considered the sentences imposed in “comparable cases.”

The court denied Cattaneo’s motion to reduce his sentence.

And it declined to discuss the “comparable cases” Cattaneo had

identified, explaining: “[I]t’s not the Court’s practice to

review cases that are issued by other Courts, whether in this

in the third degree and one count of prohibited acts related to drug paraphernalia in 2PC151000122. The Honorable Richard T. Bissen, Jr. presided.

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circuit or others. Because I happen to know that every case is

nuanced, every case has something that may not be obvious to

someone.”

Cattaneo appealed. He claimed the trial court had abused

its discretion by denying his HRPP Rule 35(b) motion without

comparing his sentence to those imposed in the two “comparable

cases.” Underlying Cattaneo’s argument is the postulation that

courts deciding HRPP Rule 35(b) motions must consider each HRS

§ 706-606 sentencing factor.

The Intermediate Court of Appeals (ICA) affirmed the

circuit court’s denial of Cattaneo’s Rule 35(b) motion. It said

that courts had to consider the HRS § 706-606 sentencing factors

in adjudicating Rule 35(b) motions. And it concluded that the

trial court had adequately done so in deciding Cattaneo’s.

Cattaneo asks us to determine whether the ICA erred in

“ruling that the Circuit Court substantively considered

sentencing factor HRS § 706-606(4) despite clear evidence to the

contrary.” 2

2 Cattaneo’s application for writ of certiorari also presents two other questions. The first is whether the ICA erred in “ruling that the circuit court adequately articulated its reasons for consecutive term sentencing pursuant to HRS § 706-668.5(2).” We do not find error in the ICA’s ruling that the circuit court was not required to articulate “its reasons for consecutive term sentencing” when denying Cattaneo’s Rule 35(b) motion. Cattaneo’s application for writ of certiorari also asks us to consider whether the ICA erred in failing to recognize “plain error” in the trial court’s sentencing decision. We conclude that the ICA did not gravely err in failing to recognize “plain error” in the trial court’s sentencing decision. Cattaneo’s “plain error” argument rehashes his contention that the trial

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The question Cattaneo presents is beside the point. The

ICA did not err in affirming the trial court. But its reasoning

was off. The HRS § 706-606 sentencing factors govern

sentencing. They do not govern motions for reduction of a

sentence under HRPP Rule 35(b). Thus, the trial court had no

obligation to consider “[t]he need to avoid unwarranted sentence

disparities among defendants with similar records who have been

found guilty of similar conduct” – or any other HRS § 706-606

sentencing factor – in deciding Cattaneo’s Rule 35(b) motion.

I.

The ICA rejected Cattaneo’s contention that the trial court

disregarded HRS § 706–606(4) in ruling on Cattaneo’s Rule 35(b)

motion. 3 But it agreed with Cattaneo’s premise that courts

deciding motions under HRPP Rule 35(b) must consider the HRS

§ 706–606 sentencing factors. Citing State v. Sauceda, No.

30622, 2011 WL 1909112 (App. May 18, 2011) (SDO), the ICA

stated:

This court has also concluded that a circuit court must consider the factors set forth in HRS § 706–606 in ruling

court should have considered the need to avoid unwarranted sentencing disparities in deciding Cattaneo’s Rule 35(b) motion.

3 The ICA concluded that while the circuit court may have foregrounded the penological goals of retribution and deterrence in adjudicating Cattaneo’s Rule 35(b) motion, it had adequately considered HRS § 706–606(4). The court’s consideration of HRS § 706–606(4) was sufficient, the ICA explained, because contrary to Cattaneo’s contentions, the circuit court didn’t have to justify its denial of Cattaneo’s Rule 35(b) motion with a discussion of “comparable cases.” The trial court’s reference to, and rejection of, Cattaneo’s disparate sentencing argument showed it had adequately considered HRS § 706–606(4) in deciding Cattaneo’s motion.

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on an HRPP Rule 35(b) motion to reduce sentence. See, e.g., State v. Sauceda, No. 30622, 2011 WL 1909112, *1 (Haw. App. May 18, 2011) (SDO) (citing Kahapea, 111 Hawai‘i at 278, 280–82, 141 P.3d at 451, 453–55) . . . .

A solitary pincite to our decision in State v. Kahapea, 111

Hawai‘i 267, 141 P.3d 440 (2006), is Sauceda’s only support for

its conclusion that the HRS § 706–606 sentencing factors control

the disposition of Rule 35(b) motions.

II.

Kahapea does not support the conclusion that courts

deciding Rule 35(b) motions must consider the HRS § 706-606

factors.

Kahapea and several co-defendants were convicted of crimes

linked to a bid-rigging scheme that bilked Honolulu taxpayers

out of millions of dollars. Kahapea’s sentence – five

consecutive ten-year terms of imprisonment - was much harsher

than those of his co-defendants and the defendants in two other

cases involving the theft of public funds.

Kahapea moved to reduce and correct his sentence. He said

his sentence was “extremely harsh” compared to those of his co-

defendants and other allegedly-similar defendants; he wanted one

or more of his prison terms to run concurrently, rather than

consecutively. Kahapea, 111 Hawai‘i at 275, 141 P.3d at 448.

The circuit court denied Kahapea’s motion. It explained that

Kahapea’s comparatively harsh sentence was justified because,

among other reasons, Kahapea had “mastermind[ed]” a theft of 5 *** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***

public funds, used the booty to bankroll his lavish lifestyle,

and abused a position of trust. Id. at 276-77, 141 P.3d at 449-

450.

This court evaluated Kahapea’s argument by re-reviewing the

original sentence. We concluded that the circuit court did not

abuse its discretion by giving Kahapea a comparatively harsh

sentence. We affirmed the denial of Kahapea’s Rule 35 motion, 4

explaining that “while stern, the circuit court’s sentence

furthers the statutory penological goals of retribution,

incapacitation, and deterrence and does not reflect arbitrary or

capricious action or a rigid refusal to consider the defendant’s

contentions.” Id. at 282, 141 P.3d at 455 (cleaned up).

Implicit in Kahapea’s holding is the determination that

because the court did not abuse its discretion in imposing

Kahapea’s sentence, it also did not abuse its discretion by

denying Kahapea’s motion.

This conclusion does not require that courts presented with

Rule 35(b) motions must reconsider the HRS § 706–606 sentencing

factors. Kahapea summarized the trial court’s consideration of

HRS § 706–606(4) at sentencing. But it did not hold that trial

4 Our opinion suggests that Kahapea moved for both a correction of an illegal sentence under Rule 35(a) and a reduction of sentence under Rule 35(b). The opinion does not make clear which portions of its analysis concern Rule 35(a) versus Rule 35(b).

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courts must reprise their consideration of HRS § 706–606(4)

every time a defendant moves the court to reduce a sentence.

There is also no statutory support for that proposition.

Nothing in HRPP Rule 35(b) or HRS § 706–606 indicates courts

considering Rule 35(b) motions must weigh the HRS § 706–606

sentencing factors.

Rule 35(b) provides courts discretion to reduce, or not

reduce, a sentence within specified timeframes:

(b) Reduction of Sentence. The court may reduce a sentence within 90 days after the sentence is imposed, or within 90 days after receipt by the court of a mandate issued upon affirmance of the judgment or dismissal of the appeal, or within 90 days after entry of any order or judgment of the Supreme Court of the United States denying review of, or having the effect of upholding the judgment of conviction. A motion to reduce a sentence that is made within the time prior shall empower the court to act on such motion even though the time period has expired. The filing of a notice of appeal shall not deprive the court of jurisdiction to entertain a timely motion to reduce a sentence.

HRPP Rule 35(b) (emphasis added). This rule imposes some limits

on when a court may reduce a sentence. But nothing in it

suggests a relationship between the HRS § 706–606 sentencing

factors and Rule 35(b) motions.

Likewise, by its terms, HRS § 706–606 5 concerns imposing

5 HRS § 706-606 is entitled “Factors to be considered in imposing a sentence” (emphasis added). It provides:

The court, in determining the particular sentence to be imposed, shall consider:

(1) The nature and circumstances of the offense and the history and characteristics of the defendant; (2) The need for the sentence imposed:

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sentences, not reducing them. It begins: “The court, in

determining the particular sentence to be imposed, shall

consider . . . .” And then lists the specific factors to be

considered.

Thus, neither Kahapea, nor HRPP Rule 35(b), nor HRS § 706-

606 demands that courts considering motions for sentence

reduction look to the HRS § 706-606 sentencing factors. 6

For sure, courts must consider the HRS § 706-606 factors

when imposing a sentence. See HRS § 706-606. Defendants who

believe a trial court has abused its discretion by ignoring HRS

§ 706-606’s sentencing factors may appeal their sentences and

make that case or bring motions under HRPP Rule 35(a). See HRPP

Rule 35(a) (stating in part that, within specified timeframes,

the court “may correct a sentence imposed in an illegal

(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.

HRS § 706-606 (emphasis added).

6 Similarly, nothing in our caselaw, HRPP Rule 35(b), or HRS § 706-621 (2014) suggests that courts adjudicating Rule 35(b) motions must consider the HRS § 706-621 factors (“Factors to be considered in imposing a term of probation”).

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manner”).

But a motion under HRPP Rule 35(b) is neither a sentencing

nor a resentencing. It asks the court to change its mind; it is

“essentially a plea for leniency.” Cf. State v. Brigham, 666

A.2d 405, 406 (R.I. 1995) (describing a motion to reduce a

sentence under Rhode Island’s equivalent of HRPP Rule 35 as

“essentially a plea for leniency”). HRPP Rule 35(b) motions

give courts occasions to ponder clemency without obliging a re-

review of the statutory factors. See State v. Kong, 140 Hawai‘i

103, 110, 398 P.3d 692, 699 (2017) (quoting United States v.

Maynard, 485 F.2d 247, 248 (9th Cir. 1973), for the proposition

that “[i]f a lawful sentence was lawfully imposed in the first

instance, then the function of Rule 35 is simply to allow the

[sentencing] court to decide if, on further reflection, the

original sentence now seems unduly harsh”). 7

The distinction between sentencing and a hearing on a Rule

35(b) motion is also shown by their procedural differences.

Defendants don’t need to be present at hearings on motions to

reduce a sentence. See HRPP 43(c)(3). And, unlike at

7 Accord State v. Hernandez, 849 P.2d 967, 968 (Idaho Ct. App. 1993) (discussing motions under Idaho Criminal Rules, Rule 35 and noting that “[t]he court is under no obligation to amend or modify a sentence that has been legally imposed”); State v. Tinsley, 928 P.2d 1220, 1223 (Alaska Ct. App. 1996) (stating that timely motion for reduction of sentence under then- existing Alaska Rules of Criminal Procedure, Rule 35(a) could be granted based on judge’s desire to “show mercy”); State v. Remedio, 108 A.3d 326, 331 (Del. Super. Ct. 2014) (“The reason for [Delaware’s Superior Court Criminal Rules, Rule 35(b)] is to give a sentencing judge a second chance to consider whether the initial sentence is appropriate.”).

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sentencing, they have no constitutional right to allocute at

those hearings.

Treating HRPP Rule 35(b) motions as pleas for leniency that

do not require reconsidering the HRS § 706–606 sentencing

factors also makes sense from a practical standpoint. Consider

the defendant who argues their sentence should be reduced

because, since sentencing, they have transformed from a violent

person into a peaceful person (implicating HRS § 706-606(1),

which concerns “the history and characteristics of the

defendant”). Under the Sauceda approach, the court would have

to revisit every HRS § 706–606 sentencing factor to determine

whether the lawfully-imposed sentence is still appropriate given

the defendant’s new peaceable disposition. This obligation –

which, to repeat, has no basis in either HRPP Rule 35(b) or HRS

§ 706-606 – would create an unwarranted imposition on courts’

broad discretion in sentencing matters.

Cattaneo’s argument fails not because the court adequately

considered HRS § 706–606(4), but rather because the court was

not required to consider any HRS § 706–606 sentencing factor in

deciding his Rule 35(b) motion.

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III.

We hold that courts deciding HRPP Rule 35(b) motions are

not required to consider the HRS § 706–606 sentencing factors.

Although relying on different grounds than the ICA, we affirm

the circuit court’s denial of Cattaneo’s HRPP Rule 35(b) motion.

Pamela I. Lundquist, /s/ Mark E. Recktenwald for petitioner /s/ Paula A. Nakayama Renee Ishikawa Delizo, /s/ Sabrina S. McKenna for respondent /s/ Michael D. Wilson /s/ Todd W. Eddins