State v. Kong

295 P.3d 1005, 129 Haw. 135, 2013 WL 376070, 2013 Haw. App. LEXIS 47
CourtHawaii Intermediate Court of Appeals
DecidedJanuary 31, 2013
DocketNo. CAAP-11-0000393
StatusPublished
Cited by4 cases

This text of 295 P.3d 1005 (State v. Kong) is published on Counsel Stack Legal Research, covering Hawaii Intermediate Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Kong, 295 P.3d 1005, 129 Haw. 135, 2013 WL 376070, 2013 Haw. App. LEXIS 47 (hawapp 2013).

Opinion

Opinion of the Court by

LEONARD, J.

Defendant-Appellant Stanley S.L. Kong (Kong) appeals from an April 11, 2011 Circuit Court of the Second Circuit (Circuit Court) Judgment of Conviction and Sentence for promoting a dangerous drug in the second degree and prohibited acts related to drug paraphernalia.1 On November 19, 2009, Plaintiff-Appellee State of Hawai'i (State) charged Kong and co-defendant Sunny Stevens (Stevens) with: (1) Promoting a Dangerous Drug in the Second Degree in violation of Hawaii Revised Statutes (HRS) § 712-1242 (Supp. 2011) (Count One),2 and (2) Prohibited Acts Related to Drug Paraphernalia in violation of HRS § 329-43.5 (2010) (Count Two).3 Kong petitioned for admission into the Maui Drug Court (MDC), and on April 14, 2010, the Circuit Court admitted Kong into the MDC program. However, Kong self-terminated from the program on February 3, 2011, subjecting himself to a stipulated-faets trial. On April 11, 2011, the Circuit Court entered a judgment of conviction against Kong for Counts One and Two and sentenced him to imprisonment for consecutive terms of ten years for Count One and five years for Count Two, for a total of fifteen years.

On appeal, Kong maintains that the judgment of conviction must be vacated and Kong should be allowed to reenter the MDC program, or in the alternative, Kong should be resentenced to a concurrent term or the matter should be remanded for resentencing because the Circuit Court: (1) erred by imposing consecutive terms of imprisonment without adequately articulating its justification; (2) violated Kong’s due process rights by basing its sentence on crimes Kong did not commit; and (3) erred by terminating Kong from the MDC program without ensuring that he understood the rights he was about to relinquish and its consequences. For the reasons stated below, we affirm.

I. BACKGROUND FACTS

A Alleged Offenses and Charges Against Kong

On November 19, 2009, the State filed a joint Felony Information against Kong in Criminal No. 09-1-0683(2) and Kong’s girlfriend, Stevens, in Criminal No. 09-1-0682(2), alleging that each person had committed two offenses on February 27, 2009:(1) promoting a dangerous drug in the second degree; and .(2) prohibited acts related to drug paraphernalia.

The charges stemmed from a search of Kong’s and Stevens’s residence, where police found “one [ ] large clear plastic bag containing fifteen [ ] packets with purported crystal methamphetamine4 and numerous empty packets, and a glass pipe[.]” After being advised of his constitutional rights and agreeing to give a statement, Kong admitted that “he has been using crystal methamphetamine off and on since 1995.” Kong further stated that he has been selling crystal methamphetamine from his residence for the past three months. Kong’s dealer occasionally drops off a “load, often concealed in the inseam of a jacket,” and Kong is later informed about [138]*138who will come and pick it up. Kong “further added that he does not know what type of drag the ‘load’ is but assumes it is about an ounce of ‘Ice’ at a time. Kong added that he also purchases prepackaged packets of ‘Ice’ from [his supplier] to sell. He related that he usually buys an ‘8 ball’ (3.54 grams) worth of ‘Ice’ at a time to sell.”

B. Kong’s Admission to the MDC Program

On April 14, 2010, Kong petitioned for admission to the MDC. The Circuit Court explained that the purpose of the April 14, 2010 hearing was to make sure that Kong understood the legal rights that he would give up and the commitment required to enter the MDC program. The Circuit Court also explained that if Kong broke any of the rales of the MDC program then he could be terminated from the program. After explaining the consequences of successful completion of the MDC program and those if he was terminated from the program, the Circuit Court found that Kong voluntarily, knowingly, and intelligently waived his rights as indicated in the petition for admission to the MDC program, and it admitted Kong into the program.

Kong attended status hearings from April 26, 2010 to November 8, 2010. At the October 25, 2010 status hearing, Kong admitted that he had relapsed and used drags. The Circuit Court ordered Kong to perform 200 hours of community service and to develop a preventative action plan. At the November 8, 2010 status hearing, the Circuit Court informed Kong that it was giving him another chance to stay in the MDC program. However, Kong failed to appear for his next status hearing on November 15, 2010, and the Circuit Court issued a bench warrant with no bail set. On January 6, 2011, Kong was in custody, and a status hearing was set for January 26,2011.

C. Kong’s Termination from MDC Program

At the January 26, 2011 status hearing, Kong indicated that he wanted to self-terminate from the MDC program and have bad set. The MDC also recommended Kong’s termination from the program. The Circuit Court explained to Kong that he has a right to have a termination hearing, with counsel present to represent him, to determine if termination is appropriate. It also explained to Kong the consequences of termination:

And, now, at a termination hearing, if you are terminated, ... your case would proceed to what’s called a stipulated facts trial, in other words, where the facts are agreed on. So if you get past the point of termination, for example, if you self-terminate, for example, or if it’s determined that you should be terminated, then the stipulated facts trial is basically a very short trial. Because essentially what you will have done already is admitted to all of the parts of the charge. So that’s presented and the trial doesn’t even last a minute and you are found guilty as charged.

After Kong indicated that he understood the consequences of self-termination, the Circuit Court further explained that if he self-terminates, he moves “onto a stipulated facts trial where it’s almost virtually certain ... that you will be found guilty as charged.” Kong again indicated that he understood these consequences.

Kong then stated “for the record” that “[u]p until this point the Public Defender’s Office was, to my understanding, was never allowed to represent me in any felony eases because of conflict of interest in the past. They represented people who testified against me.” The Deputy Public Defender stated that she discussed with Kong what appeared to be a prior conflict with the Office of Public Defender (OPD) arising when Kong was a juvenile on Oahu, but that the OPD database did not indicate a conflict. She understood that Kong still wanted to proceed with self-termination, but possibly with a new attorney. The Circuit Court set a hearing on February 3, 2011 for a motion to withdraw counsel and one on March 7, 2011 for a termination hearing.

On February 3, 2011, Kong informed the court, through counsel and directly, that he wanted to proceed with self-termination from the MDC program. After Kong expressed his desire to self-terminate from the MDC program, the Circuit Court found that Kong [139]*139voluntarily, knowingly, and intelligently terminated from the program and it proceeded with a stipulated-faets trial. Upon Kong’s request, the Circuit Court set bail at 100,000 dollars.

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Related

State v. Kong.
315 P.3d 720 (Hawaii Supreme Court, 2013)

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Bluebook (online)
295 P.3d 1005, 129 Haw. 135, 2013 WL 376070, 2013 Haw. App. LEXIS 47, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-kong-hawapp-2013.