CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-17-0000419; CASE NO. 2PC131000254(1))
Richard D. Gronna (Benjamin E. Lowenthal on the opening
brief) for petitioner
Ishikawa Delizo for respondent
RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON,
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.
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.
Circuit Court Proceedings
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. 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), 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.
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.
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.
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. 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."
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. 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
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.
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.
Summary Disposition Order,  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). 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.
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.
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
STANDARDS OF REVIEW
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.
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
Interpretation of HRPP Rule 48(b)(3)
HRPP Rule 48(b)(3) Applies to Cases On Remand in which the
State May Elect Between a New Trial and Resentencing
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.
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.
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 ...