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State v. Zimmerman

Intermediate Court of Appeals of Hawaii

December 11, 2013

STATE OF HAWAI'I Plaintiff-Appellee
v.
PHILIP HOWARD ZIMMERMAN, also known as Howard Philip Zimmerman, Defendant-Appellant

NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER

APPEAL FROM THE CIRCUIT COURT OF THE THIRD CIRCUIT (CR. NO. 11-1-172K)

William H. Jameson, Jr., Deputy Public Defender, for Defendant-Appellant.

Linda L. Walton, Deputy Prosecuting Attorney, County of Hawai'i, for Plaintiff-Appellee

Foley, Presiding Judge, Fujise and Ginoza, JJ.

SUMMARY DISPOSITION ORDER

Defendant-Appellant Philip Howard Zimmerman (Zimmerman) pleaded guilty to one count of Murder in the Second Degree in violation of Hawaii Revised Statutes (HRS) § 707-701.5(1) (1993), one count of Kidnapping in violation of HRS § 707-720(1) (d) and (e) (Supp. 2012), and one count of Criminal Property Damage in the Second Degree in violation of HRS § 708-821(1)(b) (Supp. 2012) .[1] On December 11, 2012, the Circuit Court of the Third Circuit (Circuit Court)[2] sentenced Zimmerman to make restitution, pay court fees, and serve the following terms of incarceration: Life with the possibility of parole for Murder in the Second Degree, twenty years for Kidnapping, and five years for Criminal Property Damage, with the sentence for Kidnapping to be served consecutively to the Murder and Criminal Property Damage sentences.

On appeal, Zimmerman argues a single main point: that the Circuit Court "abused its discretion in sentencing [him] to consecutive terms of imprisonment when it relied on the uncharged crimes contained in [his] e-mails to [the victim]." After a careful review of the record, the issues raised and arguments made by the parties as well as the applicable legal authorities, we resolve Zimmerman's point on appeal as follows and affirm.

The sentence imposed by the trial court is reviewed for plain and manifest abuse of its broad discretion. State v. Pecpec, 127 Hawai'i 20, 32, 276 P.3d 589, 601 (2012). HRS § 706-606 (1993)[3] lists factors that "[t]he court, in determining the particular sentence to be imposed, shall consider[.]" The Hawai'i Supreme Court has held that "the legislative sentencing philosophy permeating HRS ch. 706 in general and HRS § 706-606 in particular dictates that consecutive prison sentences, pursuant to HRS § 706-668.5 [(1993 and Supp. 2012)], [4] may properly be imposed only to achieve retributive, incapacitative, and deterrent objectives." State v. Gaylord, 78 Hawai'i 127, 154, 890 P.2d 1167, 1194 (1995). It is also well-settled that "a sentencing court may consider any and all accurate information that reasonably might bear on the proper sentence for the particular defendant, given the crime committed." Keawe v. State, 79 Hawai'i 281, 286, 901 P.2d 481, 486 (1995). Furthermore, "the scope of a sentencing judge's inquiry into a defendant's background is very broad and limitations on the kind and/or source of information the court may consider are not lightly imposed." Id. (citation and emphasis omitted). We conclude that Zimmerman has failed to demonstrate that the Circuit Court abused its discretion in imposing consecutive sentences.

Zimmerman specifically objects to the consideration of a November 17, 2010 email to the victim and others.[5] In that email, which he sent to nineteen other email addresses, he demeans and threatens to kill the victim ("I will rip your throat out") and also attached explicit photographs of the victim to humiliate her. It is undisputed that the Circuit Court considered the email in making its sentencing decision.[6] At the same time, taking the Circuit Court's remarks in context, it is clear that the email was considered in determining "[t]he nature and circumstances of the offense and the history and characteristics of the defendant" under HRS § 706-606(1) and the need "[t]o protect the public from further crimes of the defendant" under HRS § 706-606(2)(c). The Circuit Court noted that the email reflected on the relationship between Zimmerman and the victim, that the situation between them seemed to be escalating, and that the threats and other content of the email showed Zimmerman's lack of respect for the law. These topics were relevant to the factors the Circuit Court was required to consider under HRS § 707-606 and therefore were properly considered during sentencing.

We also note that the Circuit Court identified a number of other factors justifying the consecutive sentences, including that Zimmerman's conduct was "especially heinous, cold-hearted, especially when [Zimmerman] continued to beat the victim to death while the victim was pleading for help and that others outside were knocking on the door[;]" and that Zimmerman tried to blame others and his medication for his conduct.

Zimmerman argues that the acts reflected in the email constituted an "uncharged crime" and analogizes to State v. Nunes, 72 Haw. 521, 525, 824 P.2d 837, 840 (1992).[7] Zimmerman's contention is that because he "was never charged with those crimes, the trial court abused its discretion when it relied on those crimes in fashioning its sentence."

Zimmerman's argument is without merit. Zimmerman does not dispute that he wrote and sent the email to the victim and others, distinguishing this case from those where the uncharged misconduct was in question. See State v. Vellina, 106 Hawai'i 441, 449-50, 106 P.3d 364, 372-73 (2005) (imposition of consecutive terms of imprisonment based on an unsubstantiated allegation that the defendant sold the stolen firearm to a drug dealer for drugs was error); State v. Koch, 107 Hawai'i 215, 225, 112 P.3d 69, 79 (2005) (mandatory minimum sentence based on the circuit court's assumption that defendant had engaged in unlawful conduct of which he had been expressly acquitted was error).

More importantly, the Circuit Court's comments make clear that it was not the criminality of Zimmerman's conduct that it focused on, but how his conduct illuminated the abusive nature of the relationship between Zimmerman and his victim well before the murder was committed.

Therefore, the Judgment of the Circuit Court of the Third Circuit entered on December 26, 2012, is affirmed.


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