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State v. Fetuao

Intermediate Court of Appeals of Hawaii

February 28, 2014

STATE OF HAWAI'I, Plaintiff-Appellee,
v.
BARBARA S. FETUAO, Defendant-Appellant

NOT FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT (FC-CR. NO. 11-1-0047)

Phyllis J. Hironaka Chief Judge Deputy Public Defende for Defendant-Appellant

Stephen K. Tsushima Deputy Prosecuting Attorney City and County of Honolulu for Plaintiff-Appellee

Nakamura, Chief Judge, Fujise and Leonard, JJ.

SUMMARY DISPOSITION ORDER

Defendant-Appellant Barbara S. Fetuao (Fetuao) appeals from a November 14, 2012 Judgment of Conviction and Sentence (Judgment), which was entered by the Circuit Court of the First Circuit (Circuit Court) .[1]

After a seven-day jury trial, Fetuao was found guilty of: (1) one count of Assault in the Second Degree, in violation of Hawaii Revised Statutes (HRS) § 707-711(1)(b) (Supp. 2011) (Count I); (2) two counts of Assault in the Second Degree, in violation of HRS § 707-711(1)(d) (Supp. 2011) (Counts II and III); and (3) two counts of Abuse of Family or Household Members, in violation of HRS § 709-906(1) and (5) (Supp. 2011) (Counts IV and V) .

On appeal, Fetuao does not challenge her conviction, but contends that the Circuit Court abused its discretion by sentencing her to consecutive terms of imprisonment on all counts. Fetuao claims that the Circuit Court failed to adequately state on the record the factors to support a consecutive sentence, as required by State v. Hussein, 122 Hawai'i 495, 229 P.3d 313 (2010).

Upon careful review of the record and the briefs submitted by the parties and having given due consideration to the arguments advanced, applicable authorities, and the issues raised by the parties, we resolve Fetuao's point of error as follows:

HRS § 706-668.5 (1993 & Supp. 2013) governs the trial court's exercise of discretion with respect to concurrent and consecutive sentencing:

Multiple sentence of imprisonment. (1) If multiple terms of imprisonment are imposed on a defendant, whether at the same time or at different times, or if a term of imprisonment is imposed on a defendant who is already subject to an unexpired term of imprisonment, the terms may-run concurrently or consecutively. Multiple terms of imprisonment run concurrently unless the court orders or the statute mandates that the terms run consecutively.
(2) The court, in determining whether the terms imposed are to be ordered to run concurrently or consecutively, shall consider the factors set forth in section 706-606.
HRS § 706-606 (1993) provides:
Factors to be considered in imposing a sentence. The court, in determining the particular sentence to ...

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