This decision is published in table format in the Pacific and Hawai'i reporter.
APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT. (CR. NO. 12-1-0690.(3)).
On the briefs: Benjamin E. Lowenthal, (Law Office of Philip H. Lowenthal), for Defendant-Appellant.
Artemio C. Baxa, Deputy Prosecuting Attorney, County of Maui, for Plaintiff-Appellee.
By: Leonard, Presiding Judge, Reifurth and Ginoza, JJ.
SUMMARY DISPOSITION ORDER
Defendant-Appellant Jayson Auld (Auld) appeals from a " Judgment Conviction and Sentence" (Judgment) filed on August 1, 2013, in the Circuit Court of Second Circuit (circuit court). Judgment was entered against Auld for Robbery in the Second Degree in violation of Hawaii Revised Statutes (HRS) § 708-841(1) (a) (2014). Auld was sentenced to ten (10) years imprisonment, and, pursuant to the circuit court's order granting Plaintiff-Appellee State of Hawaii's (State) motion for imposition of a mandatory minimum period of imprisonment, Auld must serve a minimum of six (6) years and eight (8) months under HRS § 706-606.5 (1) (b) (iii) (2014) as a repeat offender.
Auld contends the circuit court (1) violated his constitutional rights by granting the State's motion for a mandatory minimum term of imprisonment, (2) improperly admitted hearsay, and (3) failed to admonish the State for making an argument during its opening statement.
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 by the parties, as well as the relevant statutory and case law, we resolve Auld's points of error as follows and affirm.
Auld did not raise his constitutional argument before the circuit court and did not object to the other alleged errors during trial. His arguments on appeal are thus based on alleged plain error by the circuit court. See HRS § 641-2 (Supp. 2014); HRS § 641-16 (1993); State v. Nichols, 111 Haw. 327, 334, 141 P.3d 974, 981 (2006).
Hawai'i Rules of Penal Procedure Rule 52(b) states that " [p]lain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court." Therefore, an appellate court " may recognize plain error when the error committed affects substantial rights of the defendant." State v. Staley, 91 Hawai'i 275, 282, 982 P.2d 904, 911 (1999) (citation and internal quotation mark omitted).
The appellate court " will apply the plain error standard of review 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[.]"
Nichols, 111 Hawai'i at 334, 141 P.3d at 981 (quoting State v. Sawyer, 88 Hawai'i 325, 330, 966 P.2d 637, 642 (1998)) (block quote format omitted). An appellate court's " power to deal with plain error is one to be exercised sparingly and with caution because the plain error rule represents a departure from a presupposition of the adversary system--that a party must look to his or her counsel for protection and bear the cost of counsel's mistakes."
Nichols, 111 Hawai'i at 335, 141 P.3d at 982 (quoting State v. Kelekolio, 74 Haw. 479, 515, 849 P.2d 58, 74-75 (1993)) (block quote format omitted).
The circuit court did not err in its imposition of a mandatory minimum sentence. Auld contends his federal and state constitutional rights to a ...