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State v. Sanney

Supreme Court of Hawaii

September 20, 2017

STATE OF HAWAI'I, Respondent/Plaintiff-Appellee,
v.
YOSHIRO SANNEY, Petitioner/Defendant-Appellant.

         CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CAAP-15-0000548; CR. NO. 10-1-1570)

          Shawn A. Luiz for petitioner

          Brian R. Vincent for respondent

          RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.

          OPINION

          McKENNA, J.

         I. Introduction

         Yoshiro Sanney ("Sanney") challenges the Intermediate Court of Appeals' ("ICA") affirmance of the Circuit Court of the First Circuit's ("circuit court") denial of his Motion to Reconsider Sentence ("motion to reconsider"). Sanney argues the circuit court[1] abused its discretion by refusing to vacate his sentence of ten years in prison and $25, 000 in fines and resentence him pursuant to the court's original sentencing inclination of probation with up to eighteen months of imprisonment as a condition of probation.

         This appeal raises issues regarding appropriate procedures for cases in which a trial court provides a "sentencing inclination." We hold that here, the circuit court did not abuse its discretion by denying Sanney's motion to reconsider, because Sanney voluntarily and knowingly entered his plea after acknowledging the non-binding nature of the circuit court's sentencing inclination, and the circuit court provided sufficient reasons for its deviation from the original sentencing inclination. Therefore, we affirm the ICA's judgment on appeal affirming the circuit court's decision to deny Sanney's motion to reconsider.

         To provide guidance in future cases, however, we discuss procedures trial judges should follow before providing sentencing inclinations. Furthermore, we prospectively hold that if a defendant pleads guilty or no contest in response to a court's sentencing inclination, but the court later decides not to follow the inclination, then the court must so advise the defendant and provide the defendant with the opportunity to affirm or withdraw the plea of guilty or no contest.

         II. Background

         A. From offense to sentencing

         On September 22, 2010, Sanney was indicted on one count of sexual assault in the second degree in violation of Hawaii Revised Statutes ("HRS") § 707-731(1) (b) (Supp. 2009)[2] and one count of attempted sexual assault in the second degree in violation of HRS § 707-731(1)(b) and HRS § 705-500[3] (1993).

         The indictment arose out of an incident that occurred in broad daylight on September 15, 2010 in Kapiolani Park. In front of numerous eyewitnesses, Sanney allegedly cut out the shorts of an unconscious homeless woman and performed cunnilingus, then attempted vaginal intercourse with her. Shortly after, police officers arrived and awoke the unconscious female, who indicated she did not know Sanney. Sanney was arrested and taken to the Oahu Community Correctional Center.

         At the time of his arrest, Sanney was forty-four years old, unemployed, and homeless. Sanney is a veteran with a history of alcohol and substance abuse issues, and had participated in a U.S. Veterans substance abuse program starting in September 2009; he was discharged in April 2010 for using marijuana. Since 1996, Sanney has had one conviction for criminal trespass in the second degree, four convictions for driving under the influence, one conviction for theft in the fourth degree, and was given a deferred acceptance of guilty plea for disorderly conduct. Sanney also had an immigration detainer on file, and an Immigration Enforcement Agent informed state officials that Sanney would be picked up for deportation if released from state custody.

         A jury trial was scheduled for Sanney, but was postponed several times. The trial week was eventually rescheduled and Sanney, unable to post bail after his arrest, remained in custody at the Oahu Community Correctional Center.

         The above information regarding the nature of the charged offenses and Sanney's background was contained in Sanney's file and available to the circuit court before his change of plea.

         During his rescheduled trial week, Sanney agreed to change his plea after his attorney said the judge was inclined to sentence him to probation with up to eighteen months in jail (of which he had already served about ten months). There was no plea agreement with the State. The circuit court then conducted a change of plea hearing. Before the change of plea colloquy began, Sanney's defense attorney stated:

Your Honor, I guess after several status conferences with the Court and, you know, talking back and forth with Mr. Sanney, this case being set for trial tomorrow morning, it's Mr. Sanney's decision to enter a guilty plea as charged, and I did relay to him that the Court has given us an inclination for probation in this case with up to 18 months in jail, and, you know, based on that inclination he's intending to change his plea.
And I also did inform the Court that there is a federal hold that's been placed, currently he's facing deportation, and he understands that even if given probation, a conviction in this case will lead to automatic deportation.

         At the beginning of the change of plea colloquy, the circuit court informed Sanney:

Now, Mr. Sanney, an inclination is not a promise . . [T]here's going to be a presentence report that's going to be generated if you decide to plead guilty today ... I know what relatively little the lawyers have told me about the case and about your background, but it's that [presentence report] that's very important, because that's going to be a more in-depth explanation of who you are, and your history, and your characteristics and the offense.
In addition, the Court would always consider what happens at the sentencing hearing -- you know the arguments; what, if anything, you have to say, and so on. So based on all of that, that's how the Court is going to make its decision on what an appropriate sentence would be. So I can tell you that's the inclination based on the representations I have. But as you can imagine, an inclination is only as good as the representations it is based on, so you need to understand that.

         Sanney responded, "I do." After an extensive change of plea colloquy, the circuit court found that Sanney voluntarily, knowingly, and intelligently entered no contest pleas to the charges and adjudged Sanney guilty of the charged offenses.

         After the presentence investigation and report ("PSI")[4] was prepared, a sentencing hearing was held. At the hearing, the circuit court expressed concern "about some of the representations in the PSI which, to [the circuit court], [were] different from the representations that were made at the time of the change of plea and based upon which the court did give its inclination of probation with an uncertain jail term." The circuit court continued the hearing so the probation officer could be present.

          At the continued sentencing hearing, the circuit court's concerns focused on the following statements apparently made by Sanney to the probation officer:

The defendant declined to provide a written statement but verbally reported that he pled no contest because he had a federal hold on him and his plea may change his deportation hold status. He said he was drunk and "high" from marijuana on the day of the offense and he is "only guilty of having sex in public." The defendant reported he and the victim drank alcohol together with other people that morning and he consumed 12 shots of vodka and two marijuana joints and wanted to sleep. He stated he and the victim walked to another area of the park to lay [sic] down and the victim eventually passed out. The defendant reported he used his scissors to cut the crotch area of her shorts so he could put his mouth on her vagina and then "humped" the victim with his clothes on. The defendant said he was "turned on" due to the fact that he was having sex in public, in daylight, and other people saw what he was doing to the victim.
The defendant reported that he attended the Veterans In Progress Program, U.S. Vets in Kapolei, Hawaii [sic], from September, 2009 [to] April, 2010. He said that he was living on the street and felt tricked into going to live at the shelter because he only wanted somewhere to live but was not willing to participate in the substance abuse program. He stated that he was rebellious and he just "went through the motions" of the substance program and smoked marijuana immediately after his graduation ceremony.

         Defense counsel argued at length that the PSI did not contain anything the court did not know prior to accepting the change of plea, but did not request that Sanney be given an opportunity to withdraw his plea if the court did not follow its sentencing inclination. At the end of the sentencing hearing, the circuit court stated:

And this is the thing about I felt tricked [sic]. You weren't willing to do the substance abuse but went through the motions and smoked marijuana immediately after graduation. That's what this says. Then I look at the four DUIs, which your attorney is right, we knew about the four DUIs. But, I mean, they do count as opportunities to do something about the problem, and, apparently, you know, that wasn't enough. So the Court looks at that. And, you know, it's a little bit alarming to see a statement that the only -- apparently there's a suggestion -- you said the only thing you did wrong was having sex in public and that it was a turn-on, which, I don't know, it conflicts with what you're saying today. But you know, these are -- I disagree with [defense counsel].

         Instead of sentencing Sanney pursuant to the stated inclination of probation with eighteen months of imprisonment, the circuit court sentenced Sanney to ten years of imprisonment on both counts, with the terms to run concurrently.

         B. Motion to reconsider sentence and the first appeal

         Following the continued sentencing hearing, Sanney filed a motion to reconsider sentence. The only relief requested was for the circuit court to sentence Sanney to probation with eighteen months of imprisonment pursuant to its original inclination; there was no request to withdraw the plea. A hearing was scheduled, but it was continued after Sanney's attorney withdrew and substitute counsel was appointed. Four days before the continued hearing date, however, the circuit court summarily denied Sanney's motion without a hearing on the grounds that Sanney had not presented new evidence.

         Sanney's current counsel filed the first appeal in this case, challenging the circuit court's summary denial of his motion to reconsider. After the ICA affirmed in a summary disposition order, State v. Sanney, CAAP-12-0000654, 2013 WL 3776162 (App. July 8, 2013) (SDO), we accepted certiorari. In a memorandum opinion, we held that under the facts of this case, the circuit court abused its discretion in summarily denying the motion for reconsideration without a hearing, and remanded the case for a hearing on Sanney's motion. State v. Sanney, SCWC- 12-0000654, 2014 WL 3928249 (Haw. Aug. 12, 2014)(mem.).

         C. Hearing on remand regarding Sanney's motion to ...


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