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Electronically Filed Intermediate Court of Appeals CAAP-XX-XXXXXXX 15-AUG-2024 08:01 AM Dkt. 96 SO
CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS OF THE STATE OF HAWAI#I
STATE OF HAWAI#I, Plaintiff-Appellee, v. MARLIN L. LAVOIE, Defendant-Appellant
APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT (CASE NO. 2CPC-XX-XXXXXXX(2))
SUMMARY DISPOSITION ORDER (By: Leonard, Acting Chief Judge, Nakasone and Guidry, JJ.)
Defendant-Appellant Marlin L. Lavoie (Lavoie) appeals
from the March 7, 2023 Judgment; Conviction and Sentence; Notice
of Entry (Judgment) entered by the Circuit Court of the Second
Circuit (Circuit Court).1 Under a plea agreement with Plaintiff-
Appellee State of Hawai#i (State), Lavoie pleaded guilty to Count
One - Manslaughter, in violation of Hawaii Revised Statutes (HRS)
§ 707-702(2) (2014);2 Count Two - Carrying or Use of Firearm in
1 The Honorable Peter T. Cahill presided. 2 HRS § 707-702 provided, at the time of the offense: § 707-702 Manslaughter. (1) A person commits the offense of manslaughter if:
(a) The person recklessly causes the death of (continued...) NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
the Commission of a Separate Felony, in violation of HRS § 134-
21(a) (2023);3 and Count Three - Ownership or Possession
2 (...continued) another person; or
(b) The person intentionally causes another person to commit suicide. (2) In a prosecution for murder or attempted murder in the first and second degrees it is an affirmative defense, which reduces the offense to manslaughter or attempted manslaughter, that the defendant was, at the time the defendant caused the death of the other person, under the influence of extreme mental or emotional disturbance for which there is a reasonable explanation. The reasonableness of the explanation shall be determined from the viewpoint of a reasonable person in the circumstances as the defendant believed them to be.
(3) Manslaughter is a class A felony. 3 HRS § 134-21 provides:
§ 134-21 Carrying or use of firearm in the commission of a separate felony; penalty. (a) It shall be unlawful for a person to knowingly carry on the person or have within the person's immediate control or intentionally use or threaten to use a firearm while engaged in the commission of a separate felony, whether the firearm was loaded or not, and whether operable or not; provided that a person shall not be prosecuted under this subsection when the separate felony is: (1) A felony offense otherwise defined by this chapter;
(2) The felony offense of reckless endangering in the first degree under section 707-713; (3) The felony offense of terroristic threatening in the first degree under section 707-716(1)(a), 707-716(1)(b), or [707-716(1)(e)]; or
(4) The felony offenses of criminal property damage in the first degree under section 708-820 or criminal property damage in the second degree under section 708-821 and the firearm is the instrument or means by which the property damage is caused.
(b) A conviction and sentence under this section shall be in addition to and not in lieu of any conviction and sentence for the separate felony; provided that the sentence imposed under this section may run concurrently or consecutively with the sentence for the separate felony.
(continued...)
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Prohibited of Any Firearm or Firearm Ammunition (Felon-in-
Possession), in violation of HRS § 134-7(b), (h) (2011).4 The
Circuit Court convicted Lavoie and sentenced him to 20 years
imprisonment in Counts One and Two to run consecutive to each
other and 10 years in Count Three to run concurrently with Counts
One and Two, with credit for time served, and ordered Lavoie to
pay restitution and fees.
Lavoie raises two points of error on appeal, contending
that the Circuit Court erred by: (1) in a separate proceeding that was dismissed without prejudice for charging defects
(2PC131000236), only granting partial funding for Lavoie to
retain an expert psychologist to provide a dangerousness
assessment at sentencing; and (2) in the Circuit Court case
underlying this appeal (in which Lavoie was re-charged by grand
jury indictment (2CPC-XX-XXXXXXX)), imposing a consecutive
3 (...continued) (c) Any person violating this section shall be guilty of a class A felony. 4 HRS § 134-7(b)(1), (h) provided at the time of the offense: § 134-7 Ownership or possession prohibited, when; penalty.
. . . .
(b) No person who is under indictment for, or has waived indictment for, or has been bound over to the circuit court for, or has been convicted in this State or elsewhere of having committed a felony, or any crime of violence, or an illegal sale of any drug shall own, possess, or control any firearm or ammunition therefor. . . . .
(h) Any person violating subsection (a) or (b) shall be guilty of a class C felony; provided that any felon violating subsection (b) shall be guilty of a class B felony. Any person violating subsection (c), (d), (e), (f), or (g) shall be guilty of a misdemeanor.
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sentence without sufficient supporting rationale, which did not
adequately consider Lavoie's mental health issues, and which was
disproportionate to sentences in other cases.
Upon careful review of the record and the briefs
submitted by the parties, and having given due consideration to
the arguments advanced and the issues raised by the parties, we
resolve Lavoie's points of error as follows:
(1) Lavoie argues that because "the parties had agreed
that there was a factual record of an extreme mental or emotional disturbance surrounding Lavoie's actions to permit a change of
plea [to] manslaughter[,]" and given that Lavoie "had been
incarcerated for 9 years," his "mental or emotional disturbance
is highly relevant to dangerousness," along with consecutive
sentencing and "his ability at rehabilitation." Lavoie further
contends that the Circuit Court's prior ruling "limit[ing]
requested funds to $1000.00" was "law of the case," and "Lavoie
was unable to have needed assistance for his mitigating factors
and sentencing."
The State makes several arguments in response, most
notably that after Lavoie was recharged in 2CPC-XX-XXXXXXX, he
did not renew his request for funds to engage Dr. Acklin to
provide further expert assistance in conjunction with sentencing
in this case.
"As a general rule, if a party does not raise an
argument at trial, that argument will be deemed to have been
waived on appeal; this rule applies in both criminal and civil
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cases." State v. Moses, 102 Hawai#i 449, 456, 77 P.3d 940, 947
(2003); Hawai#i Rules of Appellate Procedure Rule 28(b)(7)
("Points not argued may be deemed waived.").
"A criminal case is formally initiated by an
indictment, complaint, or oral charge. See Hawai#i Rules of
Penal Procedure [(HRCP)] Rule 7(a). When the indictment,
complaint, or oral charge is dismissed, proceedings in the trial
court are terminated." State v. Kalani, 87 Hawai#i 260, 262, 953
P.2d 1358, 1360 (1998). "If the dismissal is without prejudice, the prosecution is permitted to recharge the defendant later.
However, even if the prosecution is allowed to recharge the
defendant, recharging him/her does not revive the original case.
Rather, recharging the defendant initiates a new case." Id.
(citation omitted); see also State v. Michaeledes, 152 Hawai#i
217, 222, 524 P.3d 1241, 1246 (2023) ("The second charging
document alleging the same three counts initiated a second case,
separate from the first case arising from the first charging
document.").
HRPP "Rule 12(g) creates a limited exception to the
procedure that a dismissal completely terminates the original
case." Deangelo v. Souza, 152 Hawai#i 55, 59, 520 P.3d 253, 257
(2022). "If the court grants a dismissal based on 'a defect in
the institution of the prosecution or in the charge,' the rule
allows the judge to hold the defendant in custody (or continue
bail) while the State re-charges." Id. "In effect, dismissal
paired with a 12(g) grant resets the proceedings to where they
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were before the defective charge or indictment was made. In
[defendant's] case, that means after a preliminary hearing at
which the court found probable cause." Id.
In this case, Lavoie waived any argument on appeal for
funds to retain an expert psychologist for his sentencing.
Lavoie's Motion for Costs was filed in 2PC131000236; any alleged
error in the oral ruling on the Motion for Costs occurred in that
proceeding, which was dismissed without prejudice. No party
filed an appeal from 2PC131000236. Lavoie's motion to dismiss 2PC131000236 argued that
under State v. Obrero, 151 Hawai#i 472, 517, P.3d 755 (2022),
Lavoie was incorrectly charged by complaint versus grand-jury
indictment. The Circuit Court dismissed 2PC131000236 without
prejudice, and ordered that Lavoie be held in custody without
bail under HRPP Rule 12(g). Lavoie was indicted on October 17,
2022, in 2CPC-XX-XXXXXXX -- the case underlying this appeal – but
this did "not revive the original case" insofar as "recharging
the defendant initiates a new case." See Kalani, 87 Hawai#i at
262, 953 P.2d at 1360.
Thereafter, Lavoie did not file a request for funds to
retain Dr. Acklin or another expert to conduct a dangerousness
assessment for his sentencing. The plea agreement stated that
the parties requested that the August 4, 2022 Presentence Report,
which was originally prepared in the dismissed proceeding
(2PC131000236), be adopted in this case. At the time of his
guilty plea on February 23, 2023, Lavoie and his counsel had
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approximately six months to review the August 4, 2022 Presentence
Report. The August 4, 2022 Presentence Report included the
written reports of the three-panel fitness examiners in Lavoie's
2015 trial (Dr. George C. Choi, Dr. Martin Blinder, and Dr. Tom
Cunningham), along with the defense's 2015 expert reports of Drs.
Acklin and Kohn that Lavoie's counsel submitted to the probation
officers.5 Prior to the sentencing hearing on March 7, 2023,
Lavoie did not seek to "controvert or supplement" the contents of
the August 4, 2022 Presentence Report under HRS § 706-604(2) (2014).6
In the absence of a request for further funds to engage
an expert in conjunction with sentencing in 2CPC-XX-XXXXXXX, and
based on the entirety of the record before us, we conclude that
Lavoie's argument that relief should be granted in this case
because the Circuit Court erred in limiting the funding for
further expert engagement in 2PC131000236 is without merit.
5 Drs. Kohn, Acklin, and Blinder testified for the defense at Lavoie's 2015 trial. State v. Lavoie, 145 Hawai #i 409, 416-18, 453 P.3d 229, 236-38. 6 HRS § 706-604(2) provides: § Opportunity to be heard with respect to sentence; notice of pre-sentence report; opportunity to controvert or or supplement; transmission of report to department. . . . . (2) 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 to be deleted is completely removed or other amendments, including additions, are made.
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(2) Lavoie argues that the Circuit Court abused its
discretion in sentencing him because it failed to provide a
sufficient rationale for imposing a consecutive sentence, and it
failed to avoid the sentencing disparities outlined and argued by
defense counsel.
"Multiple terms of imprisonment run concurrently unless
the court orders or the statute mandates that the terms run
consecutively." HRS § 706-668.5(1) (2014 & Supp. 2023).
"Pursuant to HRS § 706-668.5, a sentencing court may use its discretion to order that a person convicted of more than one
offense serve terms of imprisonment concurrently or
consecutively. That statute requires that the sentencing court
consider the factors set forth in HRS § 706-606 to make this
determination." State v. Sandoval, 149 Hawai#i 221, 236, 487
P.3d 308, 323 (2021) (footnote omitted).
HRS § 706-606 (2014) states: § 706-606 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;
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(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.
"Discretionary use of consecutive sentences is properly
imposed in order to deter future criminal behavior of the
defendant, to insure public safety, and to assure just punishment
for the crimes committed." State v. Tauiliili, 96 Hawai#i 195,
199, 29 P.3d 914, 918 (2001).
"[A] court must state its reasons as to why a
consecutive sentence rather than a concurrent one was required."
State v. Hussein, 122 Hawai#i 495, 509, 229 P.3d 313, 327 (2010).
"[T]he sentencing court is not required to articulate and explain
its conclusions with respect to every factor listed in HRS §
706–606." State v. Kong, 131 Hawai#i 94, 102, 315 P.3d 720, 728
(2013). "[T]he sentencing court is required to articulate its
reasoning only with respect to those factors it relies on in
imposing consecutive sentences." Id. Such a requirement serves dual purposes. First, reasons identify the facts or circumstances within the range of statutory factors that a court considers important in determining that a consecutive sentence is appropriate. An express statement, which evinces not merely consideration of the factors, but recites the specific circumstances that led the court to impose sentences consecutively in a particular case, provides a meaningful rationale to the defendant, the victim, and the public. Second, reasons provide the conclusions drawn by the court from consideration of all the facts that pertain to the statutory factors. It is vital, for example, for the defendant to be specifically informed that the court has concluded that he or she is dangerous to the safety of the public, or poses an unacceptable risk of re-offending, or that rehabilitation appears unlikely due to his or her lack of motivation and a failure to demonstrate any interest in treatment, or that the multiplicity of offenses and victims and the impact upon the victims' lives warrant imposition of a consecutive term. Hence, reasons confirm for the defendant, the victim, the public, and the appellate court,
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that the decision to impose consecutive sentences was deliberate, rational, and fair.
Hussein, 122 Hawai#i at 509–10, 229 P.3d at 327–28.
"The 'nature and circumstances' of same event, same
victim cases are different from multiple event cases with
multiple victims. Stacking sentences after merely reciting a
case's circumstances is an abuse of discretion." State v.
Bautista, 153 Hawai#i 284, 291, 535 P.3d 1029, 1036 (2023)
(citations omitted). "Courts must give substantial and pointed
reasons to justify a consecutive sentence. Reciting sentencing
factors and offense circumstances may sometimes work for a
concurrent sentencing disposition. However, it does not justify
running a sentence consecutively." Id.
"[A] clearly articulated rationale is necessary when
there is a large disparity between the maximum statutory sentence
for each offense and the aggregate consecutive sentence imposed
by the court." State v. Barrios, 139 Hawai#i 321, 338, 389 P.3d
916, 933 (2016). "The sentencing court must adequately
distinguish between the need for consecutive sentences and the
sentence a defendant 'would have received under the presumption
of concurrent sentencing.'" Bautista, 153 Hawai#i at 290, 535
P.3d at 1035 (quoting Lewi v. State, 145 Hawai#i 333, 350, 452
P.3d 330, 347 (2019).
Here, the Circuit Court imposed a single consecutive
sentence, running Lavoie's term for Count Two consecutive to his
term to Count One, while running the term for Count Three
concurrently. We note that HRS § 134-21(b) (2011), part of the
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statute at issue in Count Two, specifically provides that a
conviction and sentence for "[c]arrying or use of firearm in the
commission of a separate felony" "shall be in addition to and not
in lieu of any conviction and sentence for the separate felony"
and the sentence imposed "may run concurrently or consecutively
with the sentence for the separate felony."
At sentencing, the Circuit Court noted that it had read
all of the transcripts and expert reports that had been filed in
the prior case, and acknowledged Lavoie's mental health issues. The Circuit Court nevertheless expressed doubts about whether
experts could predict future behavior and suggested that
"[s]ometimes the best indicator of future conduct is past
conduct[,]" noting that Lavoie had a prior felony conviction, he
took a rifle that he wasn't supposed to have, and "he blew her
away."
The Circuit Court explained its consideration of the
HRS § 706-606 sentencing factors noting, inter alia, that: (1)
the circumstances of the offense were "quite dramatic," i.e.,
that Lavoie shot and killed the mother of his four children at
close range while she was sitting on a small porch with multiple
other people nearby including a child sitting on her mother's
lap; ten years after the shooting, two of the people who were on
that porch gave statements at sentencing about the number of
people, (including children), that were still traumatized by the
event; (2) Lavoie had a prior "history" of being a "convicted
felon having entered into somebody's house or dwelling or
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whatever it was and there was a violent crime;" (3) the
"seriousness of the offense" and the need to "promote respect for
the law and provide just punishment" in that "[w]e have a dead
person" and "a firearm that the defendant was prohibited legally
from having in his possession or control was used to commit that
offense[;]" (4) "a long sentence of imprisonment will certainly
deter this defendant from criminal conduct" and "protect the
public from further crimes of the defendant" because Lavoie
"posed a danger in the past and based upon what I have here, I'm concerned that he can pose a danger in the future" and the
"impulsiveness that Mr. Lavoie exhibited in committing this crime
and taking -- getting the gun out of the car and then going over
and blowing Malia [Kahalewai] (Malia) away. "It's that
impulsiveness that causes me concern that it can happen again[;]"
and (5) the certainty that Lavoie "will receive vocational and
other medical care and treatment including mental health care."
The Circuit Court explained why this is a "different
circumstance" "where a sentencing disparity from other similar
cases are warranted" because the "victim is the spouse[,]" Lavoie
"was a convicted felon" who "used a firearm which is a separate
crime[,]" he "had an opportunity to avoid doing what he did[,]"
another person holding a child was sitting next to Malia at the
time of the shooting, and "[t]his is a crime that took your
children's mother away and took your children's father away at
the same time." The Circuit Court expressed concern over the
impulsiveness demonstrated by Lavoie when he went to the car, got
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the gun, and then went back and shot Malia in the chest;
specifically noting that it could happen again, and it was
unpredictable. The Circuit Court noted the detail provided by
defense counsel regarding sentences in other cases that might be
considered sentencing disparities, but explained that the
legislative charge was to avoid unwarranted sentencing
disparities and that this case warranted the consecutive
sentence.
On this record, the Circuit Court's stated reasons set forth a "meaningful rationale" and "the specific circumstances
that led the court to impose sentences consecutively in a
particular case," which "confirm for the defendant, the victim,
the public, and the appellate court, that the decision to impose
consecutive sentences was deliberate, rational, and fair." See
For these reasons, the Circuit Court's March 7, 2023
Judgment is affirmed.
DATED: Honolulu, Hawai#i, August 15, 2024.
On the briefs: /s/ Katherine G. Leonard Acting Chief Judge Matthew S. Kohm, for Defendant-Appellant. /s/ Karen T. Nakasone Associate Judge Chad Kumagai, Deputy Prosecuting Attorney, /s/ Kimberly T. Guidry County of Maui, Associate Judge for Plaintiff-Appellee.