TO THE INTERMEDIATE COURT OF APPEALS (CAAP-15-0000066; CR.
Benjamin E. Lowenthal for petitioner.
A. Hanano for respondent.
RECKTENWALD, C.J., NAKAYAMA, McKENNA, AND WILSON, JJ., WITH
CIRCUIT JUDGE CHANG IN PLACE OF POLLACK, J., RECUSED
case, the Circuit Court of the Second Circuit("circuit
court") sentenced Stanley S.L. Kong to consecutive terms
of imprisonment, due to his "extensive criminality,
" based on a Presentence Investigation Report
("PSI") that erroneously included two prior
convictions. These prior convictions had been previously
vacated, remanded, and ultimately dismissed, but Kong's
counsel did not bring this to the circuit court's
attention. When Kong directly appealed his sentence, this
court affirmed the circuit court. State v. Kong, 131
Hawai'i 94, 315 P.3d 720 (2013) ("Kong
I"). We first held that the circuit court
adequately articulated the basis for Kong's consecutive
sentences when it referenced Kong's "extensive
criminality." 131 Hawai'i at 103, 315 P.3d at 729.
We then held that the burden had been upon Kong to challenge,
before the circuit court, the erroneous inclusion of the two
prior convictions. 131 Hawai'i at 106, 315 P.3d at 732.
We further held that the sentencing court did not plainly err
in relying upon the erroneous PSI, in light of Kong's
many other prior convictions. 131 Hawai'i at 107, 315
P.3d at 733.
days after this court issued its opinion in Kong I,
Kong filed a motion under Hawai'i Rules of Penal
Procedure ("HRPP") Rule 35(b) (2003), to
"reconsider or reduce sentence." Before a different
judge of the circuit court,  he challenged the erroneous
inclusion of the two prior convictions in his PSI. The
circuit court denied Kong's motion. While it acknowledged
that it might have sentenced Kong differently, the circuit
court ultimately expressed its doubts that it could
re-evaluate Kong's sentence in light of Kong I.
The Intermediate Court of Appeals ("ICA") affirmed,
holding that Kong could not challenge, via a Rule 35 motion,
the erroneous inclusion of the two vacated and dismissed
prior convictions in his PSI in the first place.
certiorari, Kong presents the following questions:
1. Did the Intermediate Court of Appeals gravely err when it
held that the lower court may abdicate its power to
independently review, reconsider, and reduce an original
sentence thereby undermining the policies and purposes of
HRPP Rule 35?
2. Did the ICA gravely err in holding that Mr. Kong could not
raise a good-faith challenge to the use of invalid and
vacated prior convictions in his Rule 35 motion?
that the ICA erred in holding that a challenge to the
erroneous inclusion of prior convictions in a PSI cannot be
brought on a Rule 35 motion for post-conviction relief.
Therefore, the circuit court properly entertained the motion.
The circuit court erred, however, by (1) concluding that
Kong I precluded its re-evaluation of Kong's
sentence; and (2) failing to address Kong's challenge to
the inclusion of the two vacated and dismissed prior
convictions in his PSI. Therefore, we vacate the ICA's
December 27, 2016 Judgment on Appeal, and its November 29,
2016 Memorandum Opinion. This case is remanded to the circuit
court for further proceedings consistent with this opinion.
2011 Sentencing and First Appeal
April 2011, Kong was convicted and sentenced to consecutive
sentences for one count of promoting a dangerous drug in the
second degree (ten years), and one count of prohibited acts
relating to drug paraphernalia (five years) . The circuit
court sentenced him to consecutive sentences based on his
"extensive criminality, " as reflected in the
multiple felony convictions contained in his PSI. Kong
I, 131 Hawai'i at 96, 315 P.3d at 722. Two felony
convictions in the PSI, however, had been previously vacated,
remanded, and ultimately dismissed, but Kong's counsel
did not object to their use in sentencing. 131 Hawai'i at
105, 315 P.3d at 731.
first appealed his sentence in May 2011. On appeal, Kong
raised the following points of error regarding his
sentencing: "(1) whether the circuit court erred in
imposing consecutive terms of imprisonment without adequately
articulating a rationale; [and] (2) whether the circuit court
violated Kong's due process rights by basing its sentence
on certain crimes set forth in the PSI report . . . that Kong
alleged were 'vacated, remanded, and ultimately
dismissed. . . .'" 131 Hawai'i at 99, 315 P.3d
at 725. The ICA affirmed his conviction and sentence.
State v. Kong, 129 Hawai'i 135, 295 P.3d 1005
(App. 2013) .
court affirmed the ICA. Kong I, 131 Hawai'i 94,
315 P.3d 720. We answered in the negative Kong's first
question presented: whether the circuit court's statement
regarding his "extensive criminality" was
insufficient to justify the imposition of consecutive
sentences and did not meet the requirements of State v.
Hussein, 122 Hawai'i 495, 229 P.3d 313 (2010).
Kong I, 131 Hawai'i at 103, 315 P.3d at 729. We
noted that Hussein directed circuit courts to
"state on the record at the time of sentencing the
reasons for imposing a consecutive sentence, " and that
the circuit court's "extensive criminality"
comment satisfied this requirement. Kong I, 131
Hawai'i at 102, 103, 315 P.3d at 728, 729.
court also found without merit Kong's second question
presented: whether his sentence constituted plain error
because it was based on crimes he did not commit. Kong
I, 131 Hawai'i at 104, 315 P.3d at 730. Before this
court, Kong had argued that State v. Sinagoga, 81
Hawai'i 421, 918 P.2d 228 (App. 1996) should not
"extend to cases where convictions did not exist at the
time of sentencing, " or, in the alternative, that
Sinagoga should be overturned. Id. We
disagreed with Kong, holding that the Sinagoga
framework applied to his case. 131 Hawai'i at 105, 315
P.3d at 731. Under step two of the Sinagoga
framework, the defendant bears the burden of challenging
prior convictions in a PSI that the defendant alleges were
"uncounseled" or "not against the
defendant." Sinagoga, 81 Hawai'i at 447,
918 P.2d at 254. We held that the vacated and dismissed prior
convictions were "not against the defendant";
therefore, Kong bore the burden of challenging the inclusion
of these prior convictions in his PSI. Kong I, 131
Hawai'i at 106, 315 P.3d at 732. As Kong did not
challenge the convictions before the circuit court, we held
that the circuit court did not err in relying on the PSI at
sentencing. 131 Hawai'i at 105, 315 P.3d at 731.
held that the circuit court's use of the vacated and
dismissed convictions in sentencing did not amount to plain
error, as "the record indicate[d] that the circuit court
based its imposition of a consecutive sentence on Kong's
'extensive' criminal record as a whole and not solely
on the specific convictions that Kong allege[d were]
invalid." 131 Hawai'i at 107, 315 P.3d at 733. In
light of the many other prior convictions referenced in the
PSI, we held, "[I]t cannot be said that Kong's
substantial rights were affected by the circuit court's
use of the PSI report." Id. (footnote omitted).
Kong's Rule 35 Motion
days after Kong I was issued, Kong filed an HRPP
Rule 35(b) Motion to "reconsider or reduce
sentence." Kong asked the circuit court to re-sentence
him to a concurrent 10-year prison term instead of the 15
consecutive years Judge Raffetto had originally sentenced him
on the two drug convictions. At this time, Kong raised his
Sinagoga challenge to the PSI's erroneous
inclusion of the two vacated and dismissed convictions. Kong
also attached a prison progress report reflecting the
completion of a number of required and voluntary programs.
"Substance Abuse-RDAP III (IOP)" was the only
required program marked "Incomplete."
State opposed Kong's motion. The State argued that
Kong's motion essentially requested concurrent, rather
than consecutive, sentencing. The State defended the
consecutive sentence as appropriate.
circuit court held a hearing on Kong's motion. At the
hearing, the circuit court stated that "it wouldn't
be a wise thing to do" to reduce Kong's drug and
paraphernalia sentences in light of the fact that Kong had
not completed the required substance abuse program.
Kong's counsel explained that the erroneous addition of
the two vacated and dismissed convictions resulted in
Kong's classification at a different level for
programming purposes; were Kong to be classified accurately,
Kong's counsel contended that Kong's substance abuse
program would be considered completed.
circuit court suggested to Kong's counsel that he file a
motion to correct the PSI so that the State would have an
opportunity to respond. With regard to any potential
reconsideration or reduction of sentence, the circuit court
stated, "I'm not suggesting to you [defense counsel]
that I'm going to do anything different than what's
already been done. Because it's already gone up on
appeal." The circuit court continued the motion to
reconsider or reduce sentence.
counsel filed a supplemental memorandum in support of his
motion for reconsideration or reduction of sentence. Attached
was a 1994 "Notice and Judgment on Appeal, " in
which the ICA vacated Kong's convictions for Burglary in
the Second Degree and Unauthorized Control of a Propelled
Vehicle, and remanded the case for further proceedings. Also
attached was a 1995 "Motion to Dismiss with Prejudice,
" in which the prosecutor's office, upon remand from
the ICA, moved for an order dismissing the case with