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State v. Carlton

Supreme Court of Hawaii

November 25, 2019

STATE OF HAWAI'I, Respondent/Plaintiff-Appellee,
BROK CARLTON, Petitioner/Defendant-Appellant.


          Richard D. Gronna (Benjamin E. Lowenthal on the opening brief) for petitioner

          Renee Ishikawa Delizo for respondent



          POLLACK, J.

         This case raises the issue of whether Hawai'i Rules of Penal Procedure (HRPP) Rule 48(b)(3) (2000) applies when the State on remand is given the option of either (a) retrying the defendant on the charges underlying three convictions vacated by the appellate court or (b) dismissing two of those charges and having the circuit court reinstate the conviction on the remaining charge and resentence the defendant. We also consider whether the State's failure to disclose which two of the three charges would be dismissed before the defendant exercised the right of allocution at sentencing rendered the allocution constitutionally inadequate.

         For the reasons discussed below, we hold that HRPP Rule 48(b)(3) is applicable to the circumstances of this case, although the six-month period did not expire because the commencement date of the time period under this rule is the effective date of the judgment on appeal. We further hold that the State's failure to identify which charges would be dismissed prior to the defendant's sentencing allocution violated the due process clause under article I, section 5, of the Constitution of the State of Hawai'i. Lastly, we reaffirm that sound judicial administration instructs that the defendant be given the last word before sentence is imposed.

         I. BACKGROUND

         A. Circuit Court Proceedings

         On February 14, 2014, Brok Carlton was found guilty after a jury trial in the Circuit Court of the Second Circuit (circuit court) of kidnapping as a class A felony, in violation of Hawai'i Revised Statutes (HRS) § 707-720(1) (d) (1993); robbery in the first degree, in violation of HRS § 708-840(1) (a) (1993 & Supp. 2006); assault in the second degree, in violation of HRS § 707-711(1)(d) (1993 & Supp. 2007); and unauthorized control of a propelled vehicle (UCPV), in violation of HRS § 708-836 (1993 & Supp. 2001). On June 6, 2014, the circuit court sentenced Carlton to twenty years imprisonment for the kidnapping and robbery charges and five years imprisonment for the assault and UCPV charges, with all counts to run consecutively for a total of fifty years of imprisonment.[1] Carlton appealed the judgment to the Intermediate Court of Appeals (ICA) on the grounds that the jury was not properly instructed on the law of merger for the kidnapping, robbery, and assault offenses. The ICA agreed that the circuit court erred, pursuant to HRS § 701-109(1)(e), [2]by not instructing the jury regarding the possible merger of these offenses. The ICA affirmed the circuit court's sentence as to the UCPV conviction, but vacated the convictions for kidnapping, robbery, and assault.

         The ICA ordered the State on remand to retry Carlton on the kidnapping, robbery, and assault charges with appropriate merger instructions provided to the jury or to dismiss two of the three counts and have the circuit court reinstate the conviction and resentence Carlton on the non-dismissed count. The Judgment on Appeal was entered on June 27, 2016.

         The State took no action until a hearing was held in the circuit court on January 11, 2017, when the State, for the first time, indicated that it was electing to dismiss two of the three counts and would proceed with resentencing on the remaining count. The State did not inform Carlton or defense counsel which counts would be dismissed and which count would be reinstated. Instead, all of the counts were scheduled for resentencing at a later date.

         On January 17, 2017, Carlton filed a motion to dismiss the three counts on the basis that HRPP Rule 48(b)(3) had been violated because more than six months had elapsed between the entry of the ICA's Judgment on Appeal on June 27, 2016, and the date of the State's election on January 11, 2017.[3] In opposition, the State argued that, by its plain language, HRPP Rule 48(b)(3) did not apply because a new trial was not required by the ICA's decision, which allowed the State to elect between a new trial and resentencing. A hearing on the motion was held on February 1, 2017, in which the circuit court denied the motion, stating that HRPP Rule 48(b)(3) "only applies to cases where such events require a new trial. In this case, a new trial is not going to be the solution. I understand the State's going to go with re-sentencing."

         At the resentencing hearing on April 28, 2017, the circuit court asked defense counsel to proceed first with counsel's sentencing argument. Defense counsel stated that Carlton had maintained good behavior during his years in custody and that the court should consider Carlton's post-conviction conduct as a sentencing factor. After counsel finished, the court asked Carlton if he had anything to say. Carlton apologized for his actions and requested leniency. The State then proceeded with its argument, focusing on the sentencing factors under HRS § 706-606.[4] The State argued that the court should not consider Carlton's conduct while he was in custody and asked the court to impose consecutive sentences because of the planning and premeditation involved. The State argued that because Carlton had to recruit accomplices, gather various tools, and travel over an hour in order to carry out the crime, consecutive terms were necessary.

         At the end of its argument, for the first time, the State disclosed its decision to ask the circuit court to sentence Carlton on the robbery charge and to dismiss the kidnapping and assault charges. Carlton's counsel asked the court if the defense could respond, and the court allowed defense counsel to do so. Carlton's counsel maintained that the court could consider Carlton's conduct while in custody and should particularly consider his completion of all the classes available to him while he was incarcerated. After Carlton's counsel responded, the court summarized the facts of the case and considered the sentencing factors under HRS § 706-606. The court did not address Carlton after the State's election, nor did it afford him an opportunity to address the court once he had been informed of the conviction on which he would be resentenced.

         The circuit court then sentenced Carlton to twenty years imprisonment on the robbery offense and ordered that the twenty-year term for the robbery offense and the five-year term for the UCPV offense run consecutively for a total of twenty-five years. The court's Amended Judgment; Conviction and Sentence; Notice of Entry was filed on April 28, 2017 (circuit court judgment). Carlton timely appealed on May 15, 2017.

         B. ICA Proceedings

         In a Summary Disposition Order, [5] the ICA agreed with the State's contention, first raised on appeal, that the clock for HRPP Rule 48 did not begin to run in this case until July 28, 2016, when the judgment on appeal became effective pursuant to Hawai'i Rules of Appellate Procedure (HRAP) Rule 36(c) (1).[6] The ICA concluded that Carlton's argument failed because the State made its election before six months had run from when the judgment on appeal became effective, even assuming that HRPP Rule 48 applies to a remand that allows the State to elect between a new trial and resentencing.

         The ICA also found that Carlton's right of allocution was not violated because Carlton was aware that the State had not elected the specific counts for dismissal and did not object at the resentencing hearing. The ICA stated that Carlton's counsel could have requested that Carlton be allowed to speak again, but he did not. On this basis, the ICA found that the issue was waived.

         Despite the finding of waiver, the ICA went on to conclude that the circuit court did not violate Carlton's right of allocution by asking Carlton to make a statement before knowing for which charge he was to be sentenced. Carlton was aware of the evidentiary basis of each charge, the ICA stated, so the fact that he did not know which charges would be dismissed could not demonstrate a lack of notice as to the charges themselves or the evidentiary bases for them. "Thus," the ICA stated, "Carlton received adequate notice of the facts at issue in resentencing." Accordingly, the ICA concluded that Carlton received notice and the opportunity to be heard, and therefore his right of allocution as provided by the right to due process was not violated.


         "When interpreting rules promulgated by the court, principles of statutory construction apply." State v. Lau, 78 Hawai'i 54, 58, 890 P.2d 291, 295 (1995). "Interpretation of a statute is a question of law which we review de novo." Id. "Therefore, interpretation of HRPP Rule 48 is a question of law reviewable de novo." Id.

         "We review questions of constitutional law by exercising our own independent constitutional judgment based on the facts of the case." State v. Phua, 135 Hawai'i 504, 511-12, 353 P.3d 1046, 1053-54 (2015). Therefore, we review questions of constitutional law under the right/wrong standard. Id.


         A. Interpretation of HRPP Rule 48(b)(3)

         1. HRPP Rule 48(b)(3) Applies to Cases On Remand in which the State May Elect Between a New Trial and Resentencing

         "HRPP Rule 48 operates to 'ensure an accused a speedy trial' and to further 'policy considerations to relieve congestion in the trial court, to promptly process all cases reaching the courts, and to advance the efficiency of the criminal justice process.'" State v. Fukuoka, 141 Hawai'i 48, 62-63, 404 P.3d 314, 328-329 (2017) (quoting State v. Estencion, 63 Haw. 264, 268, 625 P.2d 1040, 1043 (1981)). This rule "was adopted in part to ensure the speedy, efficient resolution of cases in which a person is charged with a criminal offense and is subject to a possible term of imprisonment." State v. Lau, 78 Hawai'i 54, 60, 890 P.2d 291, 297 (1995). HRPP Rule 48's purpose is underpinned by the principle that "[u]nreasonable delay in the determination of criminal action subverts the public good and disgraces the administration of justice." Estencion, 63 Haw. at 268, 625 P.2d at 1043.

         At issue in this case is whether HRPP Rule 48(b) (3) applies when the State is instructed to elect on remand a new trial on vacated convictions or reinstatement and resentencing of a vacated count or counts. HRPP Rule 48(b)(3) states in relevant part as follows:

[T]he court shall, on motion of the defendant, dismiss the charge, with or without prejudice in its discretion, if trial is not commenced within 6 months . . . (3) from the date of mistrial, order granting a new trial or remand, in cases where such events require a new trial.

         The circuit court, in considering HRPP Rule 48(b)(3), stated that the rule only applies when a new trial is required on remand. The court found that a new trial was not required in this case because the State was given the option of ...

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