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State of Hawaii v. Lynn Marie Dionise

IN THE INTERMEDIATE COURT OF APPEALS OF THE STATE OF HAWAII


October 19, 2012

STATE OF HAWAII,
PLAINTIFF-APPELLEE,
v.
LYNN MARIE DIONISE, DEFENDANT-APPELLANT

APPEAL FROM THE CIRCUIT COURT OF THE THIRD CIRCUIT (CR. NO. 08-1-0293)

NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER

SUMMARY DISPOSITION ORDER

(By: Nakamura, Chief Judge, Leonard and Ginoza, JJ.)

Defendant-Appellant Lynn Marie Dionise (Dionise) appeals from the Judgment of Conviction and Sentence entered on August 12, 2010, by the Circuit Court of the Third Circuit (Circuit Court), *fn1 after Dionise entered a guilty plea on the charge of Promoting a Dangerous Drug in the Second Degree in violation of Hawaii Revised Statutes (HRS) § 712-1242(1)(b).

Dionise was sentenced to ten (10) years of incarceration to be served "consecutively to any other sentence that defendant may be serving."

On appeal, Dionise contends that: (1) the Circuit Court failed to comply with State v. Hussein, 122 Hawaii 495, 229 P.3d 313 (2010), and (2) Dionise's consecutive sentence was excessive under the circumstances.

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 Dionise's points of error as follows:

In Hussein, the Hawaii Supreme Court unequivocally mandated that "after the filing date of the judgment herein, circuit courts must state on the record at the time of sentencing the reasons for imposing a consecutive sentence." Id. at 510, 229 P.3d at 328 (emphasis added). The State acknowledges that Dionise was sentenced after the judgment became effective in Hussein, but the Circuit Court did not comply with the supreme court's directive at the time of Dionise's sentencing. Instead, the State argues that the Circuit Court's later statement of reasons, at the time that Dionise's motion for reconsideration of sentence was denied, was sufficient to "ultimately comply" with the supreme court's mandate.

Under the circumstances of this case, we decline to, in effect, modify the supreme court's ruling to excuse the timing requirement, i.e., that reasons for imposing a consecutive sentence be stated at the time of sentencing. Therefore, we vacate the consecutive portion of Dionise's sentence and remand for resentencing before another judge. Accordingly, we need not reach the other issue raised by Dionise.

Chief Judge

Associate Judge

Associate Judge


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