State v. Pantoja

974 P.2d 1082, 89 Haw. 492, 1999 Haw. App. LEXIS 44

• Court: Hawaii Intermediate Court of Appeals
• Decided: February 26, 1999
• Docket: 21033
• Status: Published

Opinions

Opinion of the Court by

WATANABE, J.

In this appeal, Defendant-Appellant Omi Pantoja (Defendant) contends that the District Court of the First Circuit (the district court) erred when it (1) determined that she was a subsequent prostitution offender for mandatory enhanced sentencing purposes and (2) imposed a mandatory enhanced sentence upon her despite the lack of evidence that she was represented by counsel or knowingly waived representation at the time of her prior prostitution conviction. We disagree with Defendant’s first contention but agree with her second contention. Accordingly, we vacate the sentencing portion of the district court’s September 9, 1997 Judgment and remand for resentencing.

BACKGROUND

Following a bench trial on August 21,1997, Defendant was found guilty of committing the offense of prostitution, in violation of Hawai'i Revised Statutes (HRS) § 712-1200(1) (1993).¹ Defendant testified in her own defense at trial and stated that her full name was “Omi Pantoja.” Her attorney addressed her during the course of the trial as “Miss Pantoja.”

At Defendant’s sentencing hearing, Plaintiff-Appellee State of Hawai'i (the State) sought to have Defendant mandatorily sentenced as a subsequent prostitution offender.² Towards this end, the State introduced into evidence a copy of a two-page “Offender Identification Summary” (abstract) for “Omi Pantoja.” The abstract, dated August 21, 1997, was certified by the Administrator of the Hawaii Criminal Justice Data Center to be “a criminal history record check completed on the State [Offender Based Tracking System/Computerized Criminal History] (OBTS/CCH) system.”

Defense counsel objected to the introduction of the abstract to establish that Defendant had a prior prostitution conviction, stating:

Your Honor, if the Court’s thinking to sentence [Defendant] as a second offender, we’d object. And, basically, the objection is that the State has only introduced into evidence at this point in time what appears to be an abstract indicating an individual with the same name as [Defendant], who was previously convicted for the offense.

However, there’s been no proof that this individual before the Court is the same individual that’s — the abstract’s applicable to.

The district court, however, ruled as follows:

THE COURT: All right. The Court is in receipt of the certified abstract of one, Omi Pantoja [Defendant], social security number 103-56-2260, setting forth the [Defendant's conviction history for this offense in violation of [HRS] Section 712-1200. And, the Court is prepared to sentence the [Defendant in something other than a first conviction.

The sentence is $500.00 (five hundred dollar) fine and 30 (thirty) days [sic] imprisonment. Mittimus to issue forthwith.

This appeal followed.

DISCUSSION

I. Whether There Was Sufficient Evidence to Establish that Defendant Had a Prior Prostitution Conviction.

A.

At the time that Defendant was convicted below, HRS § 712-1200(4)(b) mandated that she receive a stiffer (enhanced) sentence as long as she had previously been convicted of prostitution.

“It is axiomatic that when an enhanced punishment for a particular criminal offense is sought because of a prior conviction, the present defendant must be the same person who was previously convicted. It necessarily follows that proof of such identity is an essential part of the case for the prosecution[.]” Annotation, Evidence of Identity for Purposes of Statute as to Enhanced Punishment in Case of Prior Conviction, 11 A.L.R.2d § 2, at 872 (1950).

In cases involving the applicability of a statute authorizing enhanced punishment upon proof of the defendant’s previous con-vietion, courts in other jurisdictions have taken two distinct approaches in determining whether evidence that the defendant has the identical name as a defendant in a prior prosecution is sufficient proof of a prior conviction. Annotation, 11 A.L.R.2d § 7, at 884. “One line of authorities holds that identity of name of the defendant and the person previously convicted is prima facie evidence of identity of that person, and, in the absence of rebutting testimony, supports a finding of such identity.” Id. The other line of authorities holds that “the identity of the accused and the one against whom the former judgments were entered must be established by affirmative evidence, mere proof of identity of names not being sufficient.” Id. § 9, at 887.

In State v. Nishi, 9 Haw.App. 516, 528, 852 P.2d 476, 482 (1993), reconsideration granted, 9 Haw.App. 660, 853 P.2d 543 (1993), this court held that a person’s certified traffic abstract issued by the traffic violations bureau, which included “not only the person’s name, but also the person’s driver’s license number, which is identical to the person’s social security number, and the person’s date of birth ... is adequate to connect a defendant with a prior conviction.” Id. at 527, 852 P.2d 476. However, we also concluded that the defendant had been erroneously sentenced as a second-time offender because the prosecution had failed to submit any evidence to show that the defendant was the same person who had been previously convicted, as shown on the certified copy of a traffic abstract submitted to the court. In so holding, we stated:

Unless conceded by the defendant, the State is required to show, by evidence satisfactory to the court, the fact of the defendant’s prior conviction. Thus, the State must satisfactorily identify the defendant being sentenced to be the same person who was previously convicted.

Although we have stated above that a certified copy of a traffic abstract is satisfactory evidence to establish a prior No No-Fault Insurance conviction, the record discloses no evidence to tie Defendant with the Michael Nishi of the traffic abstract. The State presented no evidence of Defendant’s driver’s license number or social security number or birth date that could be compared with information appearing on the traffic abstract.

Id. at 528, 852 P.2d at 482 (internal quotation marks, brackets, ellipsis, and citation omitted). In other words, we joined the second line of authorities in holding that the fact that the defendant had the identical name with an individual who had been previously convicted was insufficient, in and of itself, to authorize application of the enhanced punishment statute. Other evidence tying the defendant to the previously convicted individual is required.

B.

In this ease, we conclude that the evidence in the record was sufficient to establish, beyond a reasonable doubt, that De- • fendant had a prior prostitution conviction.

At trial, Honolulu Police Officer Daniel Bean (Officer Bean) testified on direct examination that he was assigned to special undercover duty on June 16, 1997 and arrested an “Omi Pantoja” on that date. He identified Defendant in court as the “Omi Pantoja” he had arrested. On cross-examination, Officer Bean confirmed that “Miss Pantoja” was the individual he arrested on June 16,1997:

[DEFENSE COUNSEL] That night when you arrested Miss Pantoja, didn’t you ask her about an individual named Martin?

[OFFICER BEAN] First of all, I think it’s an afternoon case, if I’m not mistaken, around one o’clock.

[DEFENSE COUNSEL] Afternoon. I stand corrected, an afternoon ease.

⅝ ⅜ ⅝ ⅜ ⅝ ⅜

[DEFENSE COUNSEL] Now, when you arrested her, did Officer Lau — Acting Sgt. Lau appear during the course of the arrest?

[OFFICER BEAN] Yes, sir.

Defendant testified that her name was Omi Pantoja, the same name as the person identified on the abstract introduced into evidence. Defense counsel addressed Defendant as “Miss Pantoja” throughout his questioning of her. Furthermore, Defendant admitted that she was arrested by Officer Bean on June 16, 1997.

According to the abstract, the Omi Pantoja who had a prigr conviction for the same offense of prostitution was female, her date of birth was “8/31/75,” she was born in New York, and her race was “0” (presumably, “other”). Additionally, she weighed 135 pounds, her height was “506” (presumably, 5’6”), and her social security number was 103-56-2260. In other words, the abstract, unlike the traffic abstract in Nishi, contained physical identifying information about the individual referred to in the abstract. Because Defendant was in the courtroom, the district court had the opportunity to evaluate whether Defendant met the physical description of the Omi Pantoja referred to in the abstract.³

In addition, the abstract set forth the details of four offenses for which “Omi Pantoja” had been arrested,⁴ as well as the disposition or current status of those offenses. Included among the four .offenses was the June 16, 1997 prostitution offense which Defendant had just been convicted of violating. According to the official OBTS/CCH system records,⁵ therefore, Defendant was the same “Omi Pantoja” who had committed the prior offenses.

Finally, we observe that the name “Omi Pantoja” is rather unusual, at least in Hawaii Courts in other jurisdictions have recognized that the fact that a defendant has a name that is uncommon or unusual for a particular locality can be cogent evidence that the defendant is the same individual as one with the same name who has a prior conviction. See, e.g., Hefferman v. United States, 50 F.2d 554 (3d Cir.1931); State v. Bizer, 113 Kan. 731, 216 P. 303 (1923); Hollander v. State, 82 Nev. 345, 418 P.2d 802 (1966); State v. Aime, 62 Utah 476, 220 P. 704 (Utah 1923).

II. Whether the Absence of Evidence that Defendant Was Represented by Counsel or Knowingly Waived Representation at the Time of Her Prior Prostitution Conviction Precluded the District Court From Sentencing Defendant as a Subsequent Prostitution Offender.

The record in this case is silent as to whether Defendant was represented by counsel or waived her right to counsel at the time of her prior conviction. In light of this deficiency, we conclude that the district court improperly sentenced Defendant as a subsequent prostitution offender.

In State v. Afong, 61 Haw. 281, 602 P.2d 927 (1979), the Hawai'i Supreme Court held that where a statute subjects a defendant to increased punishment by virtue of a prior conviction,⁶ “[i]t is essential ... that evidence upon which the sentencing court is asked to rely to determine ... the fact of legal representation or the waiver thereof is properly presented to the court for its consideration.” Id. at 284, 602 P.2d at 929. The supreme court also instructed: “Unless conceded by the defendant, the state is required to show, by evidence satisfactory to the court, ... the fact of the defendant’s ... representation by counsel, or the waiver thereof, at the time of his [or her] prior conviction.” Id. at 282-83, 602 P.2d at 929. In accord State v. Freitas, 61 Haw. 262, 602 P.2d 914 (1979); State v. Caldeira, 61 Haw. 285, 602 P.2d 930 (1979).

The State argues that it was not required to establish that Defendant was represented by counsel or had waived such representation at the time of her prior conviction because at trial, Defendant never raised a challenge as to the uncounseled nature of her prior conviction.

In State v. Sinagoga, 81 Hawai'i 421, 444-45, 918 P.2d 228, 251-52 (App.1996), the majority held that in ordinary sentencing situations, a defendant who is provided with a pre-sentence report of his or her prior conviction upon which an enhanced prison sentence may be based is required, prior to sentencing, to raise a good-faith challenge to any prior conviction that the defendant believes was “uncounseled” and thus unreliable for sentence enhancement purposes. Otherwise, it will be presumed that the defendant was represented by counsel or waived such representation at the time the prior conviction was entered and that the conviction is reliable. Id. (Majority Opinion with respect to Part TV.B.4) at 447, 918 P.2d at 254.

In ordinary sentencing situations,⁷ the sentencing court is given a great deal of discretion to fashion an “individualized” sentence, “fitted to the personal characteristics of the defendant,” State v. Huelsman, 60 Haw. 71, 85, 588 P.2d 394, 403 (1978), reh’g denied, 60 Haw. 308, 588 P.2d 394 (1979), and “the particular circumstances of [the] defendant’s case.” Keawe v. State, 79 Hawai'i 281, , 901 P.2d 481, 485 (1995) (quoting State v. Valera, 74 Haw. 424, 848 P.2d 376, reconsideration denied, 74 Haw. 650, 853 P.2d 542 (1993)). Therefore, “[i]n evaluating the defendant’s character and scope of criminality and in predicting his [or her] future conduct, the sentencing court ... may appropriately conduct an inquiry broad in scope, largely unlimited either as to the kind of information he [or .she] may consider, or the source from which it may come.” State v. Alexander, 62 Haw. 112, 118, 612 P.2d 110, 114 (1980) (internal quotation marks and citation omitted) (quoting United States v. Grayson, 438 U.S. 41, 50, 98 S.Ct. 2610, 57 L.Ed.2d 582 (1978)). A court may consider, for example, arrest reports relating to a defendant’s prior arrests, State v. Murphy, 59 Haw. 1, 21, 575 P.2d 448, 461 (1978), a defendant’s juvenile record as set forth in a presentence report, State v. Nobriga, 56 Haw. 75, 527 P.2d 1269 (1974), and other hearsay “information furnished to [the court] in a presentence diagnosis and report.” State v. Kamae, 56 Haw. 628, 637, 548 P.2d 632, 638 (1976).

This case, however, does not involve an ordinary sentencing situation. HRS § 712-1200(4)(b) mandated the district court to sentence Defendant to pay .“a fine of $500” and serve “a term of imprisonment of thirty days, without possibility of deferral of further proceedings ... [or] suspension of sentence of probation[,]” as long as Defendant was a subsequent prostitution offender. The court below therefore had no option but to impose a stiffer sentence on Defendant if she qualified as a “subsequent prostitution offender.” In other words, the sentence to which Defendant was subject was “purely retributive” in that “all consideration of rehabilitation has been rejected.” Huelsman, 60 Haw. at 86, 588 P.2d at 404. Because the district court had no discretion in imposing the stiffer sentence on Defendant once it was established that she was a subsequent prostitution offender, the strictures of Afong apply to this case. Consequently, Defendant was not required to raise a good-faith challenge to the prior conviction in order to trigger the State’s burden to prove that Defendant was represented by counsel or waived such representation at the time of Defendant’s prior conviction. That burden was upon the State in the first instance.

CONCLUSION

In summary, there was substantial evidence in the record that Defendant was a subsequent prostitution offender. However, because the record is silent as to whether Defendant was represented by counsel or waived such representation at the time of her prior prostitution conviction, Defendant was improperly sentenced as a subsequent prostitution offender.

Accordingly, we vacate the sentence portion of the September 9, 1997 Judgment and remand for resentencing.

1 . Hawaii Revised Statutes (HRS) § 712-1200(1) (1993) states: "A person commits the offense of prostitution if the person engages in, or agrees or offers to engage in, sexual conduct with another person for a fee.”

2 . At the time that Defendant-Appellant Omi Pan-toja (Defendant) was convicted of and sentenced for the offense of prostitution in this case, HRS § 712-1200(4)(a) (1993) set forth the following sentence for a first-time prostitution offender:

[W]hen the court has not deferred further proceedings pursuant to chapter 853, a mandatory fine of $500 and the person may be sentenced to a term of imprisonment of not more than thirty days; provided, in the event the convicted person defaults in payment of the $500 fine, and the default was not contumacious, the court may sentence the person to perform services for the community as authorized by section 706-605(1).

HRS § 712-1200(4)(b) (1993) further provided that a person convicted of committing prostitution shall be sentenced for “any subsequent offense" as follows:

For any subsequent offense, a fine of $500 and a term of imprisonment of thirty days, without possibility of deferral of further proceedings pursuant to chapter 853 and without possibility of suspension of sentence or probation.

The foregoing provisions were subsequently amended in 1998.

3 . It would have been preferable if the District Court of the First Circuit had stated, on the record, that Defendant matched the physical description of the "Omi Pantoja” referenced in the abstract.

4 . The abstract stated that on October 5, 1995, Defendant had been arrested for prostitution, a petty misdemeanor, and Defendant’s "DANC plea was dismissed.” Additionally, Defendant was arrested for prostitution on April 2, 1996 and found guilty and sentenced to pay a $500 fine on July 11, 1996. Also, Defendant was arrested for disorderly conduct on November 26, 1996, but on January 30, 1997, Defendant "was discharged.” Finally, the abstract indicated that on June 16, 1997, Defendant was arrested for prostitution, a petty misdemeanor, and this case was continued.

5 . We note that pursuant to HRS chapter 846, the Hawai'i Criminal Justice Data Center (the data center) is "responsible for the collection, storage, and dissemination of criminal history record information by criminal justice agencies!.]” HRS § 846-2.5(a) (Supp.1998). Additionally, the attorney general, to whom the data center reports, "shall select and enforce systems of identification, including fingerprinting, without the necessity of a court order, of all adults arrested for a criminal offense ... and who have been convicted!.]” HRS § 846-2.5(b) (Supp.1998). Also, HRS § 846-3 (1993) requires “[t]he chiefs of police of the counties of the State and agencies of state and county governments having powers of arrest” to "furnish the data center with descriptions of all such persons who are arrested by them for any felony or misdemeanor ... to be reported for the proper administration of criminal justice.”

6 .The statute in question in State v. Afong, 61 Haw. 281, 602 P.2d 927 (1979), was Act 181, Haw. Sess. Laws 1976, codified as HRS § 706-606.5, which required that persons convicted of certain offenses be sentenced to mandatory minimum prison terms:

Sentencing of repeat offenders. Notwithstanding section 706-669 and any other law to the contrary, any person convicted under sections 707-701 relating to murder, 707-710 relating to assault in the first degree, 707-720 relating to kidnapping, 707-730 relating to rape in the first degree, 707-733 relating to sodomy in the first degree, 708-810 relating to burglary in the first degree, 708-840 relating to robbery in the first degree, 712-1241 relating to the promoting of a dangerous drug in the first degree, 712-1242 relating to the promoting of a dangerous drug in the second degree, or 712-1244 relating to the promoting of a harmful drug in the first degree, who has a prior conviction for the same offense in this or another jurisdiction, shall be sentenced for each conviction after the first conviction to a mandatory minimum period of imprisonment without possibility of parole during such period as follows:

(1) Second conviction for the same offense— 5 years;

(2) Third conviction for same offense — 10 years.

The sentencing court may impose the above sentences consecutive to any other sentence then or previously imposed on the defendant.

61 Haw. at 282, 602 P.2d at 928 (emphasis in original omitted).

7 . In Part IV.B.4 of the opinion in State v. Sinago-ga, 81 Hawai'i 421, 918 P.2d 228 (App.1996), the majority identified three enhanced sentencing situations in which the Hawai'i Supreme Court has applied ordinary sentencing principles: (1) sentences under HRS § 706-606.5 (1993) pertaining to mandatory minimum terms of imprisonment; (2) sentences under HRS § 706-660.1 (1993) pertaining to mandatory minimum terms of imprisonment in cases involving firearms; and (3) sentences under HRS § 706-668.5 pertaining to consecutive sentences of imprisonment.

In each of the foregoing situations, however, the relevant statute vested discretion in the sentencing judge as to whether to impose the enhanced sentence. See, e.g., HRS § 706-606.5(4) ("The court may impose a lesser mandatory minimum period of imprisonment without possibility of parole than that mandated by this section where the court finds that strong mitigating circumstances warrant such action.” (Emphasis added.)); HRS § 706-660.1(1) ("A person convicted of a felony, where the person had a firearm in the person's possession or threatened its use or used the firearm while engaged in the commission of the felony, whether the firearm was loaded or not, and whether operable or not, may in addition to the indeterminate term of imprisonment provided for the grade of offense be sentenced to a mandatory minimum term of imprisonment without possibility of parole or probation....” (Emphasis added.)); HRS § 706-668.5(1) ("If multiple terms of imprisonment are imposed on a defendant at the same time, or if a term of imprisonment is imposed on a defendant who is already subject to an unexpired term of imprisonment, the terms may run concurrently or consecutively.” (Emphasis added.)).

In contrast, the sentencing judge in this case did not have any discretion as to whether to impose an enhanced sentence, provided the requisite prior prostitution conviction was established.