NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed Intermediate Court of Appeals CAAP-XX-XXXXXXX 18-APR-2024 07:49 AM Dkt. 84 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
STATE OF HAWAI#I, Plaintiff-Appellee, v. DEWITT LONG, Defendant-Appellant
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT (CR. NO. 1PC121001613)
SUMMARY DISPOSITION ORDER (By: Leonard, Acting Chief Judge, Hiraoka and Nakasone, JJ.)
Defendant-Appellant Dewitt Long (Long) appeals from the
February 14, 2023 Judgment of Conviction and Sentence Notice of
Entry (Judgment) entered by the Circuit Court of the First
Circuit (Circuit Court).1
Plaintiff-Appellee State of Hawai
Long via the October 25, 2012 Indictment (Indictment) with three
counts of Sexual Assault in the First Degree under Hawaii Revised
Statutes (HRS) § 707-730(1)(b) (2014), four counts of Sexual
Assault in the Third Degree under HRS § 707-732(1)(b) (2014), one
count of Kidnapping under HRS § 707-720(1)(d) (2014), one
separate count of Sexual Assault in the First Degree under HRS §
707-730(1)(c), and two separate counts of Sexual Assault in the
1 The Honorable Paul B.K. Wong presided. NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Third Degree under HRS § 707-732(1)(c), for a total of 11 counts.
Long was convicted on December 11, 2015, of one count of Sexual
Assault in the First Degree (Count 1), one count of Sexual
Assault in the Third Degree (Count 3), one count of Kidnapping
(Count 8), a separate count of Sexual Assault in the First Degree
(Count 9), and two separate counts of Sexual Assault in the Third
Degree (Counts 10-11).2
In 2015, Long was sentenced to life imprisonment with a
possibility of parole in Counts 1 and 8, 10 years in Count 3, 20 years in Count 9, and five years in each of Counts 10 and 11,
with credit for time served. The Circuit Court ordered Long to
serve his sentence for Count 8 consecutive to the sentences for
Counts 1, 3, and 9-11.
Long appealed (2016 Appeal). In CAAP-XX-XXXXXXX, this
court affirmed Long's conviction, but with respect to the
consecutive sentencing, we concluded that: [T]he sentencing court "should explain its rationale for each consecutive sentence in order to inform the defendant and appellate courts of the specific factors underlying each sentence." State v. Barrios, 139 Hawai
2 The Honorable Edward H. Kubo, Jr., presided.
2 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
should specify that basis or identify another basis for determining how many consecutive sentences to impose"). . . . . Therefore, we vacate the December 11, 2015 Judgment of Conviction and Sentence in CAAP-XX-XXXXXXX to the extent it imposes consecutive sentences and remand for resentencing before another judge.
State v. Long, CAAP-XX-XXXXXXX, 2018 WL 332982, *4 (Haw. App.
Jan. 9, 2018) (SDO).
On remand, the Circuit Court sentenced Long to
indeterminate life terms of imprisonment in Counts 1 and 8, an
indeterminate term of 10 years in Count 3, an indeterminate term of incarceration of 20 years in Count 9, and indeterminate terms
of five years for Counts 10 and 11. The Circuit Court ordered
Long to serve Counts 1, 3, and 8 concurrently with each other, to
serve Counts 9-11 concurrently with each other, and to serve
Counts 1, 3, and 8 consecutive to Counts 9-11.
Long raises two points of error on appeal, contending
that the Circuit Court erred when it: (1) denied Long's Motion
to Dismiss filed on March 3, 2021; and (2) sentenced Long to
extended terms of imprisonment as to Counts 1, 3, and 83 and
granted the State's Motion for Consecutive Sentencing.
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 Long's points of error as follows:
(1) Long argues that the Circuit Court violated his
rights under Hawai#i Rules of Penal Procedure (HRPP) Rule 48 and
his constitutional right to a speedy trial.
3 Long makes no argument in support of a challenge to his extended sentences.
3 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Long first raised his speedy trial arguments in a 2014
Motion to Dismiss Counts I-VIII for Violation of HRPP Rule 48
(2014 Motion to Dismiss). The Circuit Court denied the motion at
a May 13, 2014 pretrial hearing. However, in the 2016 Appeal,
Long did not argue, or raise as a point of error, that the
Circuit Court erred in denying the 2014 Motion to Dismiss. As
noted above, Long's conviction was affirmed and only the
consecutive sentences were vacated. We conclude that the Circuit
Court did not err in concluding that Long's 2021 motion was untimely. In light of Long's failure to raise his speedy trial
arguments in the direct appeal from his conviction, we conclude
that the issue is waived. See, e.g., Waikiki v. State, CAAP-19-
0000625, 2022 WL 1015717, *2 (Haw. App. April 5, 2022) (SDO).
(2) Long argues that the Circuit Court erred in
resentencing him to consecutive terms because this court's
decision in the 2016 Appeal "was essentially a remand with
instructions that the remand-judge should resentence [Long] to a
non-consecutive sentence only." This argument is without merit.
As stated in the 2016 Appeal, Counts 1, 3, and 8
related to one minor victim, and Counts 9, 10, and 11 related to
another minor victim in a separate incident. The fact that the
offenses involved two victims in two separate incidents did not
support making the sentence in Count 8 (life) consecutive to the
sentence in Counts 1 (life) and 3 (10 years) because all three of
those counts involved one victim. Thus, this court concluded
that there was no clear rationale for the 2015 consecutive
4 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
sentencing.
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NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed Intermediate Court of Appeals CAAP-XX-XXXXXXX 18-APR-2024 07:49 AM Dkt. 84 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
STATE OF HAWAI#I, Plaintiff-Appellee, v. DEWITT LONG, Defendant-Appellant
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT (CR. NO. 1PC121001613)
SUMMARY DISPOSITION ORDER (By: Leonard, Acting Chief Judge, Hiraoka and Nakasone, JJ.)
Defendant-Appellant Dewitt Long (Long) appeals from the
February 14, 2023 Judgment of Conviction and Sentence Notice of
Entry (Judgment) entered by the Circuit Court of the First
Circuit (Circuit Court).1
Plaintiff-Appellee State of Hawai
Long via the October 25, 2012 Indictment (Indictment) with three
counts of Sexual Assault in the First Degree under Hawaii Revised
Statutes (HRS) § 707-730(1)(b) (2014), four counts of Sexual
Assault in the Third Degree under HRS § 707-732(1)(b) (2014), one
count of Kidnapping under HRS § 707-720(1)(d) (2014), one
separate count of Sexual Assault in the First Degree under HRS §
707-730(1)(c), and two separate counts of Sexual Assault in the
1 The Honorable Paul B.K. Wong presided. NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Third Degree under HRS § 707-732(1)(c), for a total of 11 counts.
Long was convicted on December 11, 2015, of one count of Sexual
Assault in the First Degree (Count 1), one count of Sexual
Assault in the Third Degree (Count 3), one count of Kidnapping
(Count 8), a separate count of Sexual Assault in the First Degree
(Count 9), and two separate counts of Sexual Assault in the Third
Degree (Counts 10-11).2
In 2015, Long was sentenced to life imprisonment with a
possibility of parole in Counts 1 and 8, 10 years in Count 3, 20 years in Count 9, and five years in each of Counts 10 and 11,
with credit for time served. The Circuit Court ordered Long to
serve his sentence for Count 8 consecutive to the sentences for
Counts 1, 3, and 9-11.
Long appealed (2016 Appeal). In CAAP-XX-XXXXXXX, this
court affirmed Long's conviction, but with respect to the
consecutive sentencing, we concluded that: [T]he sentencing court "should explain its rationale for each consecutive sentence in order to inform the defendant and appellate courts of the specific factors underlying each sentence." State v. Barrios, 139 Hawai
2 The Honorable Edward H. Kubo, Jr., presided.
2 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
should specify that basis or identify another basis for determining how many consecutive sentences to impose"). . . . . Therefore, we vacate the December 11, 2015 Judgment of Conviction and Sentence in CAAP-XX-XXXXXXX to the extent it imposes consecutive sentences and remand for resentencing before another judge.
State v. Long, CAAP-XX-XXXXXXX, 2018 WL 332982, *4 (Haw. App.
Jan. 9, 2018) (SDO).
On remand, the Circuit Court sentenced Long to
indeterminate life terms of imprisonment in Counts 1 and 8, an
indeterminate term of 10 years in Count 3, an indeterminate term of incarceration of 20 years in Count 9, and indeterminate terms
of five years for Counts 10 and 11. The Circuit Court ordered
Long to serve Counts 1, 3, and 8 concurrently with each other, to
serve Counts 9-11 concurrently with each other, and to serve
Counts 1, 3, and 8 consecutive to Counts 9-11.
Long raises two points of error on appeal, contending
that the Circuit Court erred when it: (1) denied Long's Motion
to Dismiss filed on March 3, 2021; and (2) sentenced Long to
extended terms of imprisonment as to Counts 1, 3, and 83 and
granted the State's Motion for Consecutive Sentencing.
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 Long's points of error as follows:
(1) Long argues that the Circuit Court violated his
rights under Hawai#i Rules of Penal Procedure (HRPP) Rule 48 and
his constitutional right to a speedy trial.
3 Long makes no argument in support of a challenge to his extended sentences.
3 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Long first raised his speedy trial arguments in a 2014
Motion to Dismiss Counts I-VIII for Violation of HRPP Rule 48
(2014 Motion to Dismiss). The Circuit Court denied the motion at
a May 13, 2014 pretrial hearing. However, in the 2016 Appeal,
Long did not argue, or raise as a point of error, that the
Circuit Court erred in denying the 2014 Motion to Dismiss. As
noted above, Long's conviction was affirmed and only the
consecutive sentences were vacated. We conclude that the Circuit
Court did not err in concluding that Long's 2021 motion was untimely. In light of Long's failure to raise his speedy trial
arguments in the direct appeal from his conviction, we conclude
that the issue is waived. See, e.g., Waikiki v. State, CAAP-19-
0000625, 2022 WL 1015717, *2 (Haw. App. April 5, 2022) (SDO).
(2) Long argues that the Circuit Court erred in
resentencing him to consecutive terms because this court's
decision in the 2016 Appeal "was essentially a remand with
instructions that the remand-judge should resentence [Long] to a
non-consecutive sentence only." This argument is without merit.
As stated in the 2016 Appeal, Counts 1, 3, and 8
related to one minor victim, and Counts 9, 10, and 11 related to
another minor victim in a separate incident. The fact that the
offenses involved two victims in two separate incidents did not
support making the sentence in Count 8 (life) consecutive to the
sentence in Counts 1 (life) and 3 (10 years) because all three of
those counts involved one victim. Thus, this court concluded
that there was no clear rationale for the 2015 consecutive
4 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
sentencing. We did not hold that consecutive sentence could not
be imposed on remand, even if warranted.
Long further argues that it was an "absurdity" for the
Circuit Court to resentence Long to serve his sentences related
to the second victim consecutive to his sentences related to the
first victim, particularly since the original sentencing judge
did not do so. This argument is unsupported by any authority and
is without merit. The Circuit Court specified that the
consecutive sentencing on remand was based on, inter alia, the nature and characteristics of the defendant and the heinous
individual and collective nature of the sexual assault of two
different children here (making a total of three convictions for
child sexual assault). The court also based the consecutive
sentencing on the need for deterrence of future conduct and the
need to protect the public from a serial child molester. Unlike
in the original sentencing, here there was a clear rationale for
the imposition of consecutive sentences. As noted by the Circuit
Court, the new consecutive sentence did not enlarge the prior
sentence imposed in 2015. We conclude that the Circuit Court did
not abuse its discretion in resentencing Long.
For these reasons, the Circuit Court's February 14,
2023 Judgment is affirmed.
DATED: Honolulu, Hawai#i, April 18, 2024.
On the briefs: /s/ Katherine G. Leonard Acting Chief Judge Kai Lawrence, for Defendant-Appellant. /s/ Keith K. Hiraoka Associate Judge Brian Vincent, Deputy Prosecuting Attorney, /s/ Karen T. Nakasone for Plaintiff-Appellee. Associate Judge 5