NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER
APPEAL FROM THE CIRCUIT COURT OF THE THIRD CIRCUIT (CR. NO. 94-189K)
Reginald P. Minn for Defendant-Appellant.
Linda L. Walton, Deputy Prosecuting Attorney, County of Hawai'i for Plaintiff-Appellee.
Foley, Presiding Judge, Leonard and Reifurth, JJ.
Defendant-Appellant Daniel Joseph Johnson ("Johnson") appeals from (1) the Findings of Fact, Conclusions of Law and Order Revoking Probation, and (2) the Second Amended Order of Resentencing; Revocation of Probation, both filed on November 17, 2011 in the Circuit Court of the Third Circuit ("Circuit Court") Johnson was resentenced to a five year prison term with credit for time served.
On November 3, 1994, an indictment was issued charging Johnson, and another defendant, Benjamin Michael Johnson, with (1) promoting a detrimental drug in the third degree, in violation of Hawaii Revised Statutes ("HRS") § 712-1249(1), and (2) promoting a dangerous drug in the third degree, in violation of HRS § 712-1243(1) ("Count Two"). On June 26, 1995, Johnson pleaded guilty to Count Two.
On September 13, 1995, Johnson was granted a deferred acceptance of guilty plea ("DAG") and placed on probation for five years. On June 5, 1996, the State of Hawai'i ("State") filed a Motion to Set Aside Deferred Acceptance of Guilty Plea, requesting that the DAG be set aside and that Johnson be resentenced because, the State alleged, Johnson had violated the terms of his probation. On June 5, 1998, the Circuit Court set aside the DAG and entered a Judgment; Guilty Conviction and Probation Sentence ("Judgment")- Johnson was resentenced to five years of probation.
On May 16, 2000, the Circuit Court entered an Order of Discharge and Dismissal. The order stated that Johnson was granted a deferral of plea, his deferral period ended on March 30, 2000, and no motion to set aside the deferred acceptance of plea had been filed. The Circuit Court ordered that Johnson be discharged from supervision of the court and that the charge against Johnson be dismissed.
Despite that order, over the next nine years, the State filed three motions for revocation of probation and resentencing on the grounds that Johnson had violated the terms of his probation. Each motion was granted. Several mittimuses were issued and Johnson served time in prison. Over that same period, and interspersed between the State's motions for revocation of probation, Johnson filed one motion to reduce his sentence and, later, another motion to vacate the Circuit Court's order revoking his probation. Throughout those years, neither party raised the issue of the Order of Discharge and Dismissal, nor did they appeal from any of the orders.
On September 25, 2009, the issue of the Order of Discharge and Dismissal was finally raised, albeit not to the Circuit Court, when Johnson appealed from the September 3, 2009 Order Granting Motion for Revocation and to Resentence. Johnson specified one point of error, asserting that the Circuit Court committed plain error when it revoked his probation and resentenced him to five years of imprisonment where the record in the case contained the Order of Discharge and Dismissal, which purportedly terminated the prosecution against Johnson.
Despite the pending appeal, on November 18, 2009, the State's Motion to Correct Clerical Mistake on Order Filed May 16, 2000 ("Motion to Correct Clerical Mistake") was filed in the Circuit Court. The State explained that the Order of Discharge and Dismissal had erroneously specified Johnson instead of his co-defendant, Benjamin Michael Johnson, and that it was Benjamin Michael Johnson who should have been discharged pursuant to his own deferred acceptance of plea entered on March 30, 1995.
On March 30, 2011, this court issued a Summary Disposition Order relating to Johnson's consolidated appeals in Cr. Nos. 94-189K and 01-1-00104K. We held that it was plain error for the Circuit Court to resentence Johnson in Cr. No. 94-189K because the Order of Discharge and Dismissal was in the record. State v. Johnson, Nos. 30044 and 30084, 2011 WL 1144855, *1 (Haw. Ct. App. March 29, 2011) (SDO). Therefore, we vacated the Order of Resentencing and Revocation of Probation and ...