CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CAAP-11-0000393; CR. NO. 0 9-1-0 683(2))
DISSENT BY ACOBA, J. TO REJECTION OF ORAL ARGUMENT
Simeon R. Acoba, Jr.
I would accept the application for certiorari with oral argument, because respectfully this case presents questions of manifest and substantial errors by the circuit court of the second circuit (the court) and the Intermediate Court of Appeals (ICA). Holding oral argument in this case is necessary for a complete understanding of the ramifications of the issues. For ", [o]ral arguments can assist judges in understanding issues, facts, and arguments of the parties, thereby helping judges decide cases appropriately.'" Blair v. Harris, 98 Hawai'i 176, 186, 45 P.3d 798, 808 (2002) (Acoba, J., concurring and dissenting) (citing R.J. Martineau, The Value of Appellate Oral Argument: A Challenge to the Conventional Wisdom, 72 Iowa L. Rev. 1, 4 (1986)). Therefore, I respectfully dissent from the denial of oral argument in this case.
Petitioner/Defendant-Appellant Stanley S.L. Kong (Kong) was convicted of one count of Promoting a Dangerous Drug in the Second Degree, HRS § 712-1242 (Supp. 2011) (Count I) and Prohibited Acts Related to Drug Paraphernalia, HRS § 329-43.5 (2010) (Count 2), following Kong's self-termination from the Drug Court program. On April 11, 2011 the court conducted a continued sentencing hearing in Kong's case, at the conclusion of which the court sentenced Kong as follows:
Taking into consideration all of the factors set forth in [HRS §] 706-606, including the extensive record of the defendant, which includes six burglary convictions, which really represents - I'm sorry. Yeah, six burglary convictions, ten felonies, which represents a lot of harm in our community.
The [c]ourt is going to impose the following sentence in this matter. The defendant will be committed to the care and custody of the Director of the Department of Public Safety for a period of ten years on Count 1, five years on Count 2 .
In view of his extensive criminality, the Court is going to make these counts run consecutive for a total of fifteen years, mittimus forthwith, full credit for time served.
I will order that he be given an opportunity to participate in the Cash Box drug treatment program at the earliest convenience of the Department of Public Safety.
On the same date, the court entered its Judgment of Conviction and Sentence. In a published opinion, the ICA upheld the court's Judgment of Conviction and Sentence, State v. Kong, 129 Hawai'i 135, 145, 295 P.3d 1005, 1015 (App. 2013), and Kong seeks certiorari from this court.
It is not disputed that, in sentencing Kong, the court relied on two prior convictions that did not exist when it stated that the defendant had "six burglary convictions, . . . ten felonies [that included the six burglaries]." In fact, these were two of the "ten felonies" relied on by the court in arriving at its sentencing decision.
Under these circumstances, plain error would appear to apply, because the court's error in considering two non-existent convictions "affects substantial rights of the defendant, " State v. Staley, 91 Hawai'i 275, 282, 982 P.2d 904, 911 (1999), and we must notice plain error to "correct errors which seriously affect the fairness, integrity, or public reputation of judicial proceedings, to serve the ends of justice, and to prevent the denial of fundamental rights." State v. Miller, 122 Hawai'i 92, 100, 223 P.3d 157, 165 (2010) (internal quotation marks and emphases omitted). It would appear nothing could be more injurious to the fairness and integrity of our judicial system than for any court to sustain a sentence based on convictions that in fact do not exist.
There is nothing to indicate how the court weighed these two dismissed convictions in arriving at its ultimate sentence. For example, the court might have imposed a different sentence if it knew that Kong's total number of convictions was less that what it stated. All that is known is that the court based its sentence on Kong's "extensive criminal record" without further explanation. But, as a matter of fact Kong's record was not as "extensive" as the court believed it to be. As such, there can be no speculation as to what the outcome would have been had the court been aware that the two convictions listed as Cr. No. 92-0138(3) had ...