CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-15-0000909; FC-CR. NO. 12-1-0057)
A. Luiz, for petitioner.
J. Thomas, DPA, for respondent.
McKENNA, POLLACK, AND WILSON, JJ., WITH RECKTENWALD, C.J.,
DISSENTING, WITH WHOM NAKAYAMA, J., JOINS.
March 31, 2015, Petitioner/Defendant-Appellant, Ronald Melvin
Barnes ("Barnes"), was convicted by a jury in the
Circuit Court of the First Circuit ("circuit
court") of four counts of sexual assault in the
first degree as to a minor and one count of sexual assault in
the first degree as to another minor. After a hearing, the
circuit court granted the State's motion and sentenced
Barnes to a term of twenty years for each count, with terms
for four of the counts as to one minor to be served
concurrently, and the term for the remaining count as to the
other minor to be served consecutively to the foregoing
asserts on certiorari that the circuit court abused its
discretion in sentencing him to consecutive terms of
imprisonment and that the ICA gravely erred in affirming the
circuit court's judgment.
the points raised by Barnes on appeal as bases for
challenging the consecutive terms lack merit, based on
State v. Barrios, 139 Hawai'i 321, 389 P.3d 916
(2016), and State v. Kamana'o, 103 Hawai'i
315, 82 P.3d 401 (2003), we hold the circuit court plainly
erred by considering Barnes's refusal to admit guilt in
imposing his sentence. Accordingly, we vacate the ICA's
October 2, 2017 Judgment on Appeal and the portion of the
circuit court's October 26, 2015 Judgment of Conviction
and Sentence ("judgment") sentencing Barnes, and
remand to the circuit court for resentencing.
Circuit Court Hearing on the State's Motion for
Barnes's trial, on May 28, 2015, the State moved for
consecutive term sentencing. A presentence investigation and
report (commonly referred to as a
"PSI") was filed on June 22, 2015, in which the
probation officer stated:
On June 3, 2015, an attempt was made to complete the
presentence investigation (PSI) when this probation officer
(PO) met the defendant at Oahu Community Correctional Center
(OCCC) where the defendant was detained. The defendant
reported that he received the PSI questionnaire that was sent
to him but related that he would not be participating in the
PSI. He further stated that, if this PO wanted information on
him, PO should contact the state of Washington as he said he
would not be signing any documents.
The defendant was given the opportunity to make a
verbal statement/comment about the present matters, in which
he replied that he is planning to file an appeal in the
instant matters, as well as an appeal in Washington
for his case there. According to the defendant, he was
convicted of sexual assault in Washington and started serving
his term of incarceration there from July 18, 2008 to October
10, 2013. He reported that he was brought to Hawaii/OCCC on
January 30, 2013, and was allowed to serve the remainder of
his jail sentence in Hawaii. He said that he is now on
probation status on his Washington case, which he believes
expires in 2016 or 2017.
Furthermore, the defendant reported that he is
"innocent" of all the sexual assault charges
against him. He said that one of the victims had a
sexually transmitted disease that the defendant never had, so
he explained that it meant that she got the disease from
someone else. He also indicated that the victim(s) may have
been sexually assaulted, but that he was not the perpetrator,
and said that it was someone else that was either dating the
victim's mother or living with them at that time. Due to
the defendant's unwillingness to participate in the
presentence investigation interview, only the following
information is being provided to the court ....
sentencing hearing was held on October 26, 2015. At the
hearing, the State explained that four of the five counts of
sexual assault in the first degree related to one child
complainant, and the remaining count of sexual assault in the
first degree related to a second child complainant. According
to the State, consecutive term sentencing was appropriate and
reasonable, and reflected the seriousness of the crimes
committed against the two minors. The State emphasized that
Barnes had victimized two different children, and therefore
should not be sentenced in the same manner as if he had only
response, Barnes's counsel asserted that there was no
justification for a consecutive sentence under State v.
Hussein, 122 Hawai'i 495, 229 P.3d 313 (2010), as
nothing in Barnes's personal history suggested that he
was a sexual predator. Defense counsel also noted that based
on his advice, Barnes would not be making a statement as he
intended to appeal the case. The circuit court then conducted
a colloquy with Barnes before granting the State's
[DEFENSE COUNSEL]: ... So based upon those factors, judge,
we're asking that -- we're submitting that there is
no justification for consecutive over concurrent sentencing
in this particular case.
And my client will not be making a statement on the advice of
counsel. He intends to appeal the case.
THE COURT: Okay, Mr. Barnes, I just need it from your mouth.
You have every right to say what you wish before sentencing.
Do you wish to say anything?
THE DEFENDANT: Not in this court, Your Honor.
THE COURT: All right. Okay, the court takes judicial notice
of the files and records in this case and of trial, and I
considered the factors under HRS Section 706-606,
of which a sentencing court must consider with respect to the
motion for consecutive sentencing. These factors include the
nature and circumstances of the offense, which are most
serious as they involved the sexual molestation of two young
children as to whom defendant was in a position of trust as
the husband of the children's natural mother. The conduct
involved a variety of acts to the two children, both of whom
were under the age of 14 years. The victim impact statements
and some of what the court observed during trial showed that
these two children apparently suffered harm from the sexual
assaults, and that harm apparently remains with the children
In addition, characteristics of the defendant are another
factor that the court must consider. The defendant's
conduct with regard to these sexual acts spanned a
substantial period of time and involved acts of deception
both as to the children and to adults. In addition,
while the defendant certainly has a right to appeal all
matters that are appealable, he has been uncooperative in the
preparation of any aspect of the presentence report and does
not appear to have expressed any sadness that the two
children suffered harm of any kind.
In addition, the sentence is required to reflect the
seriousness of these offenses to not one but two small
children and to promote respect for the laws of our state and
to provide just punishment under the totality of the relevant
Based upon the factors which the court has just discussed
under 706-606, the sentence is necessary to provide adequate
deterrence to criminal conduct and to protect the public from
further crimes of the defendant, especially against children.
The motion for consecutive sentencing is granted to the
extent that defendant is sentenced to 20 years of
imprisonment in Counts 1, 3, 5, 6, and , and he will
serve Count  consecutively to the other four counts. The
first four, 1, 3, 5, and 6, shall be served concurrently with
one another, and Count  will be served consecutively to
Counts 1, 3, 5, and 6.
was entered on October 26, 2015 reflecting the consecutive
terms of imprisonment.