IN THE INTERMEDIATE COURT OF APPEALS OF THE STATE OF HAWAII
February 21, 2013
STATE OF HAWAII, PLAINTIFF-APPELLEE,
MOHOMIID WICKS, DEFENDANT-APPELLANT
AND STATE OF HAWAII, PLAINTIFF-APPELLEE,
MOHOMIID A. WICKS, DEFENDANT-APPELLANT
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT (CR. NO. 09-1-0847), (CR. NO. 08-1-0988)
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER
(By: Foley, Presiding Judge, Fujise and Reifurth, JJ.)
Defendant-Appellant Mohomiid A. Wicks (Wicks) timely appeals from the Judgments entered by the Circuit Court of the First Circuit (Circuit Court) *fn1 in Cr. Nos. 08-1-0988 (CAAP-11- 0000929, or "the Drug Case") and 09-1-0847 (CAAP-11-0000930, or "the UEMV case"). The two cases were consolidated for disposition pursuant to this court's June 12, 2012 Order. In the Drug Case, Wicks entered no contest pleas to (1) Promoting a Dangerous Drug in the Third Degree (PDD3) in violation of Hawaii Revised Statutes (HRS) § 712-1243 (Supp. 2012); (2) Unlawful Use of Drug Paraphernalia (Paraphernalia) in violation of HRS § 329-43.5(a) (2010); (3) Driving Without a License in violation of HRS § 286-102 (2007 and Supp. 2012); (4) and (6) Duty Upon Striking Unattended Vehicle or Other Property in violation of HRS § 291C-15 (2007); (5) Promoting a Detrimental Drug in the Third Degree in violation of HRS § 712-1249 (1993); (7) Reckless Driving of Vehicle in violation of HRS § 291-2 (2007); and (8) Obedience to Police Officer in violation of HRS § 291C-23 (2007).
In the UEMV case, Wicks pleaded no contest to Unauthorized Entry Into Motor Vehicle in the First Degree (UEMV) in violation of HRS § 708-836.5 (Supp. 2012). Wicks argues four main points of error with regard to the Drug Case: (1) that his no contest pleas were not knowingly, intelligently, and voluntarily entered; (2) that the Circuit Court failed to inquire as to the pre-sentence report; (3) that sentencing was held after he fired his attorney; and (4) that his counsel was ineffective.
With regard to the UEMV case, Wicks argues that his sentence was imposed in derogation of his right to be present at sentencing, his right to allocution, and his right to review and controvert his presentence report.
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, as well as the relevant statutory and case law, we resolve Wicks's points of error as follows:
1. Entry of Plea
We conclude that Wicks's plea to all charges was entered knowingly, voluntarily, and intelligently.*fn2 No motion to withdraw has been filed, so the applicable "standard of review for the withdrawal of a nolo contendere plea after sentencing is based on a showing of necessity to avoid manifest injustice." State v. Cornelio, 68 Haw. 644, 646, 727 P.2d 1125, 1126 (1986). Wicks contends that he did not have the requisite awareness of the circumstances and consequences surrounding his plea because he did not believe that mandatory minimum sentencing applied to him and because he was erroneously told that he could fight his case "from Habilitat". His contentions are belied by the exchange he participated in with the Circuit Court. See Cornelio, 68 Haw. at 646, 727 P.2d at 1127 ("[T]here is no manifest injustice when the trial court has made an affirmative showing by an on-the-record colloquy between the court and the defendant wherein the defendant is shown to have a full understanding of what the plea of guilty connotes and its consequences.") (citation and internal quotation marks omitted).
However, with regard to sentencing, our review of the record reveals that Wicks may not have been present for sentencing on all offenses and was not clearly advised of his opportunity for allocution as to all charges before he was sentenced.
A defendant's right to pre-sentence allocution is described in HRS § 706-604(1) (1993). It provides that "[b]efore imposing sentence, the court shall afford a fair opportunity to the defendant to be heard on the issue of the defendant's disposition." Hawaii Rules of Penal Procedure (HRPP) Rule 32(a) also requires that "[b]efore suspending or imposing sentence, the court shall address the defendant personally and afford a fair opportunity to the defendant and defendant's counsel, if any, to make a statement and present any information in mitigation of punishment."
At the September 28, 2011 first sentencing hearing, both cases were called. The Circuit Court first entertained the State's motion for repeat offender sentencing and a vigorous discussion ensued. After ruling on the motion, the Circuit Court addressed Wicks, informed him that "this is sentencing" and that before the court imposed sentence, Wicks was entitled to "make any statement you want." The Circuit Court did not specify which case or charge it was intending to impose sentence on. The entire hearing, up until that point, had been on the State's motion for repeat offender sentencing, which applied only to the PDD3 charge.
Wicks made his statement, which began discussing the merits of the State's motion and the Circuit Court cut short this discussion on the basis that Wicks was making a legal argument. Wicks then spoke on how he conducted his life after the 2008 Drug Case, but did not speak specifically to any particular charge or charges or mention the UEMV incident. Our review of the record reveals that this was the only statement Wicks made before the Circuit Court imposed sentence on the UEMV and Drug Cases. Based on this record, we cannot conclude that Wicks understood which case, let alone which charges he would be speaking to when he was given this opportunity for allocution. Therefore, we conclude that he was not afforded a full opportunity for allocution on all the charges for which he was to be sentenced.
In Hawaii, it is established that "[t]he remedy for denial of Defendant's right of allocution is resentencing."
State v. Chow, 77 Hawaii 241, 248, 883 P.2d 663, 670 (App. 1994). A showing of prejudice is not required in order to obtain remand for resentencing. See id., at 249, 883 P.2d at 671; Schutter v. Soong, 76 Hawaii 187, 208, 873 P.2d 66, 87 (1994). On remand, the resentencing is to be had before another judge. State v. Schaefer, 117 Hawaii 490, 498, 184 P.3d 805, 813 (App. 2008); Schutter v. Soong at 208, n.6, 873 P.2d at 87, n.6 (even though the trial court judge conducted himself with the utmost judicial decorum and impartiality, remanding the matter to the same judge would be inadequate because that judge previously determined the appropriate length of the sentence).
3. Presence at sentencing
HRPP Rule 43(a) *fn3 requires the presence of the defendant at every stage of the proceeding, from the arraignment to the imposition of the sentence. It is well-settled that there is a "fundamental right to be present at each critical stage of the criminal proceeding." State v. Walsh, 125 Hawaii 271, 285, 260 P.3d 350, 364 (2011) (quoting Onaka v. Onaka, 112 Hawaii 374, 380, 146 P.3d 89, 95 (2006)) (internal quotation marks omitted).
Here, Wicks was present at the September 28, 2011 first sentencing hearing, but the transcript does not reflect that the sentence for the UEMV charge and the sentence for the Paraphernalia charge were pronounced at that proceeding. Furthermore, at the October 26, 2011 hearing, when the Circuit Court sentenced Wicks on Counts 3-8 and clarified that an indeterminate five-year term was to be imposed on all three felony charges, it is unclear from the transcript whether Wicks was present. Under these circumstances, we conclude that a new sentencing hearing should be held. See U.S. v. Rodriguez, 23 F.3d 919, 920 (5th Cir. 1994) (quoting U.S. v. Velasquez, 748 F.2d 972, 974 (5th Cir. 1984) ("Once it is found that the district court failed to comply with a procedural rule of sentencing, a new sentencing hearing should be ordered.")) (internal quotation marks omitted).
Based on our resolution of these issues, it is unnecessary to address Wicks's other points on appeal.
Accordingly, the October 26, 2011 Judgment entered by the Circuit Court of the First Circuit in CAAP-11-0000929 and the September 30, 2011 Second Amended Judgment of Conviction and Sentence in CAAP-11-0000930 are vacated and both cases are remanded for resentencing before a different judge.