Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

State v. Kong

Supreme Court of Hawaii

June 15, 2017

STATE OF HAWAI'I, Respondent/Plaintiff-Appellee,
v.
STANLEY S.L. KONG, Petitioner/Defendant-Appellant.

         CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CAAP-15-0000066; CR. NO. 09-1-0683(2))

          Benjamin E. Lowenthal for petitioner

          Peter A. Hanano for respondent

          RECKTENWALD, C.J., NAKAYAMA, McKENNA, AND WILSON, JJ., WITH CIRCUIT JUDGE CHANG IN PLACE OF POLLACK, J., RECUSED

          OPINION

          McKENNA, J.

         I. Introduction

         In this case, the Circuit Court of the Second Circuit[1]("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.

         Three 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)[2], to "reconsider or reduce sentence." Before a different judge of the circuit court, [3] 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.

         On 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?

         We hold 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.

         II. Background

         A. 2011 Sentencing and First Appeal

         In 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.

         Kong 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) .

         This 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.

         This 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)[4] 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.

         We also 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).

         B. Kong's Rule 35 Motion

         Three 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."

         The 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.

         The 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.

         The 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.

         Kong's 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.