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Electronically Filed
Supreme Court
SCWC-11-0000393
10-DEC-2013
08:54 AM
IN THE SUPREME COURT OF THE STATE OF HAWAI#I
---o0o---
STATE OF HAWAI#I, Respondent/Plaintiff-Appellee,
vs.
STANLEY S.L. KONG, Petitioner/Defendant-Appellant.
SCWC-11-0000393
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-11-0000393; CR. NO. 09-1-0683(2))
DECEMBER 10, 2013
RECKTENWALD, C.J., NAKAYAMA, J., AND CIRCUIT JUDGE AYABE,
IN PLACE OF POLLACK, J., RECUSED, WITH ACOBA, J.,
DISSENTING SEPARATELY, WITH WHOM MCKENNA, J., JOINS
OPINION OF THE COURT BY RECKTENWALD, C.J.
Stanley S.L. Kong was charged with Promoting a
Dangerous Drug in the Second Degree and Prohibited Acts Related
to Drug Paraphernalia. He was admitted into the Maui Drug Court
program, but subsequently self-terminated from the program. The
Circuit Court of the Second Circuit then found Kong guilty as
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charged, and sentenced him to a ten year indeterminate term of
imprisonment and a five year indeterminate term of imprisonment,
respectively.1 The circuit court ordered that the terms run
consecutively, for a total of 15 years, due to Kong’s history of
“extensive criminality.”
In his application, Kong argues that the circuit
court’s statement regarding his “extensive criminality” was
insufficient to justify his consecutive sentence based on the
requirements set forth in State v. Hussein, 122 Hawai#i 495, 229
P.3d 313 (2010). He also argues that his sentence constitutes
plain error because it was based on crimes he did not commit.
Finally, Kong argues that the colloquy conducted by the circuit
court regarding his self-termination from the Drug Court program
was insufficient to establish that he knowingly, voluntarily, and
intelligently waived his right to a termination hearing.
For the reasons set forth below, we reject each of
Kong’s arguments. We affirm the judgment of the Intermediate
Court of Appeals, which affirmed the circuit court’s judgment of
conviction and sentence.
I. Background
The following factual background is taken from the
record on appeal.
1
The Honorable Shackley F. Raffetto presided.
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A. Circuit Court Proceedings
Kong was charged with Promoting a Dangerous Drug in the
Second Degree in violation of Hawai#i Revised Statutes (HRS)
§ 712-1242,2 and Prohibited Acts Related to Drug Paraphernalia in
violation of HRS § 329-43.5.3
Kong subsequently petitioned for admission into the
Maui Drug Court program. Kong signed a petition for admission,
in which he waived his right to a trial, confirmed his
understanding that the charges against him would be dismissed if
he successfully completed the program, and confirmed his
understanding that he would proceed to a stipulated facts trial
2
HRS § 712-1242 (Supp. 2007) provides, in relevant part:
(1) A person commits the offense of promoting a
dangerous drug in the second degree if the person
knowingly:
. . . .
(b) Possesses one or more preparations,
compounds, mixtures, or substances of an
aggregate weight of:
(i) One-eighth ounce or more, containing
methamphetamine, heroin, morphine, or
cocaine or any of their respective salts,
isomers, and salts of isomers[.]
. . . .
(2) Promoting a dangerous drug in the second degree
is a class B felony.
3
HRS § 329-43.5 (1993) provides, in relevant part:
(a) It is unlawful for any person to use, or to
possess with intent to use, drug paraphernalia to
plant, propagate, cultivate, grow, harvest,
manufacture, compound, convert, produce, process,
prepare, test, analyze, pack, repack, store, contain,
conceal, inject, ingest, inhale, or otherwise
introduce into the human body a controlled substance
in violation of this chapter. Any person who violates
this section is guilty of a class C felony and upon
conviction may be imprisoned pursuant to section
706-660 and, if appropriate as provided in section
706-641, fined pursuant to section 706-640.
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if he was unsuccessful in the program. He also admitted to the
charges against him.
That same day, the circuit court held a hearing, in
which it orally informed Kong of the legal rights that he would
surrender if he chose to enter the Drug Court program. The
circuit court also reviewed the petition with Kong and explained
to Kong that he would be terminated from the program if he
violated any of the rules set forth in the Drug Court Program
Admission Agreement, which Kong also had signed. The circuit
court conducted a detailed colloquy with Kong regarding the
rights he was waiving by agreeing to enter the program, including
his right to a trial on the charges and the rights associated
with a public trial. The circuit court confirmed that Kong
admitted to the charges and wanted to proceed. The circuit court
found that Kong voluntarily, knowingly, and intelligently waived
his rights as indicated in the petition, and admitted Kong into
the program.
Kong subsequently attended numerous status hearings
over a period of approximately six months. However, at a January
26, 2011 status hearing,4 Kong’s counsel, a Deputy Public
Defender (DPD) indicated her understanding that the Drug Court
program was recommending that Kong be terminated from the
program. The DPD stated that Kong instead wanted to self-
4
The Honorable Joseph E. Cardoza presided.
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terminate from the program. Kong’s Drug Court treatment team
confirmed that Kong had failed to appear for a urinalysis,
treatment group, and scheduled status hearing, and recommended
that the court set a termination hearing. The circuit court
addressed Kong:
[Mr. Kong], although the treatment team has
recommended a termination hearing, I’m going to take
you through some questions that . . . are similar to
the questions I asked of someone else who indicated
they wanted to terminate, or that person wanted to
terminate.
You have the right to have a hearing on that.
Just because someone recommends termination, it
doesn’t mean it’s automatic. And at that hearing the
Government would basically have to present an
appropriate basis for terminating you from the drug
court program. If the Court determines that that’s
not the appropriate course, then you can remain in the
program and participate in the program. If, on the
other hand, it is determined that termination is the
appropriate result, then you would be terminated from
the program.
But what I want to emphasize is that what’s
important here is that you understand that you have a
right to have a hearing on that, and you have the
right to have your attorney present and represent you
during that hearing. So in addition to what the
Prosecutor might do at the hearing and the burden that
the Prosecution would carry, you have the right to
have your attorney present whatever you would like
your attorney to present during the termination
hearing and have a fair hearing on that before that
decision is made.
Kong acknowledged that he understood what the circuit
court explained. The circuit court also explained to Kong the
consequences of termination:
And, now, at a termination hearing, if you are
terminated, you are a Track II participant, so what
would happen is your -- your case would proceed to
what’s called a stipulated facts trial, in other
words, where the facts are agreed on. So if you get
past the point of termination, for example, if you
self-terminate, for example, or if it’s determined
that you should be terminated, then the stipulated
facts trial is basically a very short trial. Because
essentially what you will have done already is
admitted to all of the parts of the charge. So that’s
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presented and the trial doesn’t even last a minute and
you are found guilty as charged. You understand that?
Kong again acknowledged that he understood what the
circuit court explained. The circuit court then stated, “And the
reason I’m asking you that question is I want to make sure you
understand . . . what consequences flow from the decision to
self-terminate.” (Emphasis added). The circuit court again
asked Kong if he understood the consequences of a decision to
self-terminate from the Drug Court program, and Kong responded,
“Yeah, I understand in part. Yes, I do.” The circuit court then
explained:
Okay. So, basically there’s no hearing. You
give up the right to a termination hearing, number
one, if you self-terminate; number 2, you move onto a
stipulated facts trial where it’s almost virtually
certain, unless your attorney files any
constitutionally based motions on your behalf, it’s
virtually certain that you will be found guilty as
charged. And if the motions are filed, if there are
any motions that could be filed, then those are heard.
But if those are not successful, then that leads to a
stipulated facts trial and that would . . .
essentially result in a finding of guilty. Do you
understand all of that?
Kong responded, “Yeah. Yeah.” Kong then stated, “I
want to self-terminate,” but indicated that “just for the record”
that “[u]p until this point the Public Defender’s Office was, to
my understanding, was never allowed to represent me in any felony
cases because of conflict of interest in the past. They
represented people who testified against me.” The DPD stated:
I know [] Kong wanted to raise this to the Court
today to preserve the issue, just to have it be on the
record. And we did have this conversation about what
appears to be a prior conflict with the Public
Defender’s Office with [] Kong as a juvenile in First
Circuit on Oahu.
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. . . .
[I]n looking in our data base, closed and opened
files, there was no such conflict, and we were never
told of a conflict. And I did raise the issue, and we
can continue to talk about whether [Kong] wants to
file a motion to withdraw, and that would be fine.
But further discussion can be had, and I do understand
that [] Kong still wanted to proceed with this self-
termination, but possibly maybe with a new attorney.
Kong then stated that he “wanted to state [the possible
conflict] on the record, and then still proceed with the
termination.” The circuit court was hesitant to proceed with
termination in light of Kong’s desire to preserve for appeal the
issue of a possible conflict of interest. Accordingly, the
circuit court set a hearing for a motion to withdraw counsel for
February 3, 2011, and a termination hearing for March 7, 2011.
Kong ultimately did not file a motion for withdrawal
and substitution of counsel pertaining to any alleged conflict of
interest in relation to the circuit court proceedings. At the
February 3, 2011 hearing,5 the issue of withdrawal of counsel was
not addressed. Instead, the following exchange occurred at the
beginning of the hearing:
[DPD]: Good morning, your Honor. [The DPD] on
behalf of [] Kong who is present, ready to
self-terminate from the drug court
program. Although he did benefit from the
program and he would like to continue, he
understands and would like to self-
terminate in order to speed up the
process.
THE COURT: Okay.
[Kong], is that right?
[Kong]: Yes, your Honor.
THE COURT: You want to self-terminate from the
program?
[Kong]: Yes, your Honor.
THE COURT: Is you mind clear today about saying that?
5
The Honorable Shackley F. Raffetto presided.
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[Kong]: Yes, it is.
THE COURT: Are you taking any medicines or drugs?
[Kong]: I’m not.
THE COURT: All right.
The Court finds the defendant
voluntarily, knowingly, and intelligently
terminates from the adult drug court
program.
We can go ahead with the stip facts
trial then[.]
The circuit court determined that Kong was guilty as
charged on all counts.
A sentencing hearing was held approximately two months
later. At the hearing, the DPD indicated, “[W]e are prepared to
proceed with sentencing. We have received the pre-sentence
investigation [(PSI)] report. There are no changes at this
time.” (Emphasis added). The DPD requested that the circuit
court consider sentencing Kong to “probation with long term
treatment[.]” However, sentencing was continued because there
was apparent confusion over whether one of the charges had been
reduced.
At the continued sentencing hearing,6 the DPD indicated
that “Kong does not want to stipulate to the contents of the
[PSI] report in this case[,]” to which the circuit court
responded, “That’s fine.” The State then clarified that the
charges had not been reduced. The DPD requested a sentence of
probation or, alternatively, concurrent sentences.
The State then stated:
6
The Honorable Shackley F. Raffetto presided.
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We will ask the Court to impose the prison term.
[Kong] has previously served five and ten year prison
terms, and his parole was revoked repeatedly in ‘93,
‘99, 2001, 2002. He was given a chance as a high risk
candidate for drug court, and he just skipped out. So
he’s not probation eligible and would just ask that
you impose the prison term at this point.
Kong stated:
. . . I would like to thank the Court for giving me
the opportunity to participate in drug court at that
time. There’s only been two judges who has ever given
me a chance, Judge Marks and yourself, so that much
I’m grateful for. Sorry I wasn’t able to complete it
and maybe waste the taxpayer’s money. But, you know,
hopefully on the path that I take now I can make
better decisions, if the scenario like that presents
itself to me again.
The circuit court then sentenced Kong:
Taking into consideration all of the factors set
forth in [HRS §] 706-606, including the extensive
record of the defendant, which includes six burglary
convictions, . . . ten felonies, which represents a
lot of harm in our community.
The Court is going to impose the following
sentence in this matter. The defendant will be
committed to the care and custody of the Director of
the Department of Public Safety for a period of ten
years on Count 1, five years on Count 2.
. . . .
In view of his extensive criminality, the Court
is going to make these counts run consecutive for a
total of fifteen years, mittimus forthwith, full
credit for time served.
I will order that he be given an opportunity to
participate in the Cash Box drug treatment program at
the earliest convenience of the Department of Public
Safety.
Thereafter, the circuit court entered its Judgment of
Conviction and Sentence, and Kong timely filed a notice of
appeal.
B. Appeal
On appeal, Kong raised three points of error: (1)
whether the circuit court erred in imposing consecutive terms of
imprisonment without adequately articulating a rationale; (2)
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whether the circuit court violated Kong’s due process rights by
basing its sentence on certain crimes set forth in the PSI
report, specifically crimes in Cr. No. 92-0138 that Kong alleged
were “vacated, remanded, and ultimately dismissed”; and (3)
whether the circuit court erred by terminating Kong from the Drug
Court program without conducting an on-the-record colloquy
advising Kong of the rights he would relinquish by self-
terminating.
In its answering brief, the State argued that the
circuit court “clearly stated the specific fact of Kong’s
extensive criminal record was the reason for its imposition of
consecutive sentencing for the protection of the community.” The
State then argued that the circuit court properly considered the
information contained in the PSI report. Specifically, the State
argued that Kong did not challenge the information in the PSI
report in the circuit court and, in any event, the circuit court
did not plainly err in sentencing Kong based on his “extensive
criminal record in general, and not specifically” the alleged
inaccurate convictions. Finally, the State argued that the
circuit court properly terminated Kong from the Drug Court
program.
In a published opinion, the ICA held that the circuit
court did not abuse its discretion in sentencing Kong to
consecutive terms of imprisonment. State v. Kong, 129 Hawai#i
135, 295 P.3d 1005 (App. 2013). The ICA determined:
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Here, the Circuit Court did not abuse its
discretion by sentencing Kong to consecutive terms of
imprisonment pursuant to HRS § 706-668.5 because it
considered the factors set forth in HRS § 706-606.
The Circuit Court explained its reasoning before
imposing its sentence, stating, “Taking into
consideration all of the factors set forth in [HRS]
Section 706-606, including the extensive record of the
defendant, which includes six burglary convictions
. . . ten felonies, which represents a lot of harm in
our community.” The Circuit Court further stated, “In
view of [Kong’s] extensive criminality, the Court is
going to make these counts run consecutive for a total
of fifteen years[.]”
Kong’s “extensive record” and the fact that he
caused “a lot of harm in our community” are specific
circumstances that led the Circuit Court to conclude
that a consecutive sentence was appropriate in this
case. Given these circumstances, the Circuit Court
likely concluded that Kong was “dangerous to the
safety of the public, or poses an unacceptable risk of
re-offending[.]” Hussein, 122 Hawai#i at 509, 229
P.3d at 327. In fact, Kong had re-offended, admitting
that he had used drugs while participating in the MDC
program. Kong had been given a second chance when he
was allowed to continue in the [Drug Court] program
after relapsing. Yet, Kong decided to self-terminate
from the program, suggesting that “rehabilitation
appears unlikely due to his [] lack of motivation and
a failure to demonstrate any interest in treatment[.]”
Hussein, 122 Hawai#i at 509, 229 P.3d at 327. These
specific circumstances support the conclusion that the
Circuit Court’s “decision to impose consecutive
sentences was deliberate, rational, and fair.”
Hussein, 122 Hawai#i at 510, 229 P.3d at 328.
Id. at 141, 295 P.3d at 1011 (footnotes omitted).
The ICA also held that the circuit court properly
considered Kong’s PSI report. Id. at 141-43, 295 P.3d at 1011-
13. Citing this court’s opinion in State v. Heggland, 118
Hawai#i 425, 439-40, 193 P.3d 341, 355-56 (2008), the ICA
determined that Kong “conceded his prior convictions” because
“each conviction listed may be used against defendant except
those as to which the defendant timely responds with a good faith
challenge on the record that the prior criminal conviction was
. . . not against the defendant.” Kong, 129 Hawai#i at 143, 295
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P.3d at 1013. The ICA further held that these circumstances “do
not rise to the level of plain error” inasmuch as the circuit
court based its sentence on Kong’s “extensive criminality” and
not specifically on the convictions in Cr. No. 92-0138. Id.
Finally, the ICA held that the circuit court properly
terminated Kong from the Drug Court program because, under the
totality of the circumstances, Kong voluntarily and intelligently
self-terminated from the Drug Court program, and waived his right
to a terminating hearing. Id. at 143-45, 295 P.3d at 1013-15.
Kong timely filed an application for writ of
certiorari. The State did not file a response.
II. Standards of Review
A. Sentencing
This court has stated,
A sentencing judge generally has broad
discretion in imposing a sentence. The applicable
standard of review for sentencing or resentencing
matters is whether the court committed plain and
manifest abuse of discretion in its decision.
Factors which indicate a plain and manifest abuse of
discretion are arbitrary or capricious action by the
judge and a rigid refusal to consider the defendant’s
contentions. And, generally, to constitute an abuse
it must appear that the court clearly exceeded the
bounds of reason or disregarded rules or principles of
law or practice to the substantial detriment of a
party litigant.
State v. Rivera, 106 Hawai#i 146, 154-55, 102 P.3d 1044, 1052-53
(2004) (format altered) (quotation marks, brackets, and citations
omitted), overruled on other grounds by State v. Maugaotega, 115
Hawai#i 432, 442-43, 168 P.3d 562, 572-73 (2007); State v.
Aplaca, 96 Hawai#i 17, 25, 25 P.3d 792, 800 (2001).
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“The weight to be given the factors set forth in HRS
§ 706-606 in imposing sentence is a matter generally left to the
discretion of the sentencing court, taking into consideration the
circumstances of each case.” State v. Akana, 10 Haw. App. 381,
386, 876 P.2d 1331, 1334 (1994).
B. Plain Error
Hawai#i Rules of Penal Procedure (HRPP) Rule 52(b)
(2012) states that “[p]lain errors or defects affecting
substantial rights may be noticed although they were not brought
to the attention of the court.” Therefore, an appellate court
“may recognize plain error when the error committed affects
substantial rights of the defendant.” State v. Staley, 91
Hawai#i 275, 282, 982 P.2d 904, 911 (1999) (citation omitted).
The appellate court “will apply the plain error
standard of review to correct errors which seriously affect the
fairness, integrity, or public reputation of judicial
proceedings, to serve the ends of justice, and to prevent the
denial of fundamental rights.” State v. Nichols, 111 Hawai#i
327, 334, 141 P.3d 974, 980 (2006) (quoting State v. Sawyer, 88
Hawai#i 325, 330, 966 P.2d 637, 642 (1998)). An appellate
court’s “power to deal with plain error is one to be exercised
sparingly and with caution because the plain error rule
represents a departure from a presupposition of the adversary
system –- that a party must look to his or her counsel for
protection and bear the cost of counsel’s mistakes.” Nichols,
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111 Hawai#i at 335, 141 P.3d at 982 (quoting State v. Kelekolio,
74 Haw. 479, 515, 849 P.2d 58, 74-75 (1993)).
III. Discussion
A. The circuit court did not abuse its discretion in sentencing
Kong to consecutive terms of imprisonment
Kong argues that 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 Hussein. As explained below, the circuit court
did not abuse its discretion in sentencing Kong to consecutive
terms based on Kong’s “extensive criminality.”
A sentencing court has discretion to order multiple
terms of imprisonment to run concurrently or consecutively. HRS
§ 706-668.5(1) (Supp. 2008) (“If multiple terms of imprisonment
are imposed on a defendant . . . the terms may run concurrently
or consecutively.”). “The court, in determining whether the
terms imposed are to be ordered to run concurrently or
consecutively, shall consider the factors set forth in section
706-606.” HRS § 706-668.5(2) (1993). HRS § 706-606 (1993)
provides:
The court, in determining the particular sentence to
be imposed, shall consider:
(1) The nature and circumstances of the offense and
the history and characteristics of the
defendant;
(2) The need for the sentence imposed:
(a) To reflect the seriousness of the offense,
to promote respect for law, and to provide
just punishment for the offense;
(b) To afford adequate deterrence to criminal
conduct;
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(c) To protect the public from further crimes
of the defendant; and
(d) To provide the defendant with needed
educational or vocational training,
medical care, or other correctional
treatment in the most effective manner;
(3) The kinds of sentences available; and
(4) The need to avoid unwarranted sentence
disparities among defendants with similar
records who have been found guilty of similar
conduct.
“[A]bsent clear evidence to the contrary, it is
presumed that a sentencing court will have considered all factors
before imposing concurrent or consecutive terms of imprisonment
under HRS § 706-606.” Hussein, 122 Hawai#i at 503, 229 P.3d at
321 (citations and brackets omitted). Nevertheless, in Hussein,
this court determined that “circuit courts must state on the
record at the time of sentencing the reasons for imposing a
consecutive sentence.” Id. at 510, 229 P.3d at 328 (emphasis
added). This court explained:
Such a requirement serves dual purposes. First,
reasons identify the facts or circumstances within the
range of statutory factors that a court considers
important in determining that a consecutive sentence
is appropriate. An express statement, which evinces
not merely consideration of the factors, but recites
the specific circumstances that led the court to
impose sentences consecutively in a particular case,
provides a meaningful rationale to the defendant, the
victim, and the public.
Second, reasons provide the conclusions drawn by
the court from consideration of all the facts that
pertain to the statutory factors. It is vital, for
example, for the defendant to be specifically informed
that the court has concluded that he or she is
dangerous to the safety of the public, or poses an
unacceptable risk of re-offending, or that
rehabilitation appears unlikely due to his or her lack
of motivation and a failure to demonstrate any
interest in treatment, or that the multiplicity of
offenses and victims and the impact upon the victims’
lives warrant imposition of a consecutive term.
Hence, reasons confirm for the defendant, the victim,
the public, and the appellate court, that the decision
to impose consecutive sentences was deliberate,
rational, and fair.
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Id. at 509-10, 229 P.3d at 327-28.
In this case, the circuit court explained its reasoning
for imposing its sentence:
Taking into consideration all of the factors set
forth in [HRS §] 706-606, including the extensive
record of the defendant, which includes six burglary
convictions, . . . ten felonies, which represents a
lot of harm in our community.
The Court is going to impose the following
sentence in this matter. The defendant will be
committed to the care and custody of the Director of
the Department of Public Safety for a period of ten
years on Count 1, five years on Count 2.
. . . .
In view of his extensive criminality, the Court
is going to make these counts run consecutive for a
total of fifteen years, mittimus forthwith, full
credit for time served.
I will order that he be given an opportunity to
participate in the Cash Box drug treatment program at
the earliest convenience of the Department of Public
Safety.
(Emphasis added).
Kong characterizes the circuit court’s justification
for imposing consecutive terms of imprisonment as “terse,
conclusory, and last[ing] two words.” However, the sentencing
court is not required to articulate and explain its conclusions
with respect to every factor listed in HRS § 706-606. Id. at
518-19, 229 P.3d at 337-38. Rather, “it is presumed that a
sentencing court will have considered all factors before imposing
concurrent or consecutive terms of imprisonment under HRS § 706-
606.” Id. at 503, 229 P.3d at 321 (citations omitted). Thus,
the sentencing court is required to articulate its reasoning only
with respect to those factors it relies on in imposing
consecutive sentences. Id. at 509-10, 229 P.3d at 327-28.
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Hussein set forth two purposes served by requiring the
court to state on the record the reasons for imposing a
consecutive sentence: (1) identifying the facts or circumstances
within the range of statutory factors that the court considered,
and (2) confirming for the defendant, the victim, the public, and
the appellate court that the decision was deliberate, rational,
and fair. Id. Here, the circuit court’s rationale satisfied the
dual purposes set forth in Hussein.
First, the circuit court’s statement regarding Kong’s
“extensive criminality” identified the specific facts or
circumstances within the range of statutory factors that the
court considered in imposing a consecutive sentence. See id. at
509, 229 P.3d at 327 (requiring that the sentencing court state
“the specific circumstances that led the court to impose
sentences consecutively in a particular case”). Indeed, the
circuit court’s statement regarding Kong’s “extensive
criminality” relates directly to the first of the relevant
statutory factors listed in HRS § 706-606(1): “the history and
characteristics of the defendant[.]”
Second, the circuit court’s statement regarding Kong’s
extensive criminality also “provide[d] the conclusions drawn by
the court from consideration of all the facts that pertain to the
statutory factors[,]” and confirms for Kong, the public, and this
court that the decision to impose consecutive sentences was
deliberate, rational, and fair. Hussein, 122 Hawai#i at 509-10,
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229 P.3d at 327-28. Put simply, Kong’s “extensive criminality”
provided a rational and fair basis within the range of statutory
factors for the imposition of consecutive sentences.
However, Kong also asserts that the ICA erred in
providing a “post hoc justification” for the circuit court’s
rationale when it speculated as to what the circuit court “likely
concluded[.]” Kong specifically refers to the following
paragraph of the ICA’s opinion:
Given these circumstances, the Circuit Court likely
concluded that Kong was “dangerous to the safety of
the public, or poses an unacceptable risk of
re-offending[.]” In fact, Kong had re-offended,
admitting that he had used drugs while participating
in the [Drug Court] program. Kong had been given a
second chance when he was allowed to continue in the
[Drug Court] program after relapsing. Yet, Kong
decided to self-terminate from the program, suggesting
that “rehabilitation appears unlikely due to his []
lack of motivation and a failure to demonstrate any
interest in treatment[.]” These specific
circumstances support the conclusion that the Circuit
Court’s “decision to impose consecutive sentences was
deliberate, rational, and fair.”
Kong, 129 Hawai#i at 141, 295 P.3d at 1011 (citations omitted)
(emphasis added).
In this paragraph, it appears that the ICA attempted to
relate the circuit court’s factual considerations to the examples
given in Hussein that would justify the circuit court’s
imposition of a consecutive sentence:
It is vital, for example, for the defendant to be
specifically informed that the court has concluded
that he or she is dangerous to the safety of the
public, or poses an unacceptable risk of re-offending,
or that rehabilitation appears unlikely due to his or
her lack of motivation and a failure to demonstrate
any interest in treatment, or that the multiplicity of
offenses and victims and the impact upon the victims’
lives warrant imposition of a consecutive term.
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Hussein, 122 Hawai#i at 509, 229 P.3d at 327.
The ICA’s determination that “the [c]ircuit [c]ourt
likely concluded that Kong was ‘dangerous to the safety of the
public, or poses an unacceptable risk of re-offending’” and that
rehabilitation appeared unlikely arguably could be read as
speculating as to the circuit court’s reasoning. Such
speculation would be contrary to the holding in Hussein that the
circuit court justify its decision “on the record at the time of
sentencing.” However, when read in context, it appears the ICA
was not speculating regarding the circuit court’s reasoning, but
rather attempting to link the circuit court’s express reasoning
to the examples given in Hussein.
To the extent doing so constituted error by the ICA,
such error does not warrant vacating Kong’s conviction.
Hussein does not require the circuit court to address the
specific “example[s]” discussed in the opinion. Indeed,
requiring the sentencing court to address these “example[s]”
would introduce sentencing factors in excess of the statutory
factors set out by the legislature. Compare id. with HRS § 706-
606. Although Hussein required that the court articulate its
reasons for imposing a consecutive sentence on the record at the
time of sentencing, the examples it provided were illustrative.
Id. at 509, 229 P.3d at 327. The critical question remains
whether the circuit court articulated a “meaningful rationale”
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for the sentence in light of the factors set forth in HRS § 706-
606. In this case, the circuit court’s reason, i.e., Kong’s
“extensive criminality[,]” sufficiently justified the imposition
of a consecutive sentence under HRS § 706-606.7
Accordingly, the circuit court did not abuse its
discretion in imposing a consecutive sentence in this case.
B. The circuit court properly considered Kong’s PSI report
Kong contends that “[t]he circuit court based its
sentence . . . on crimes that were vacated almost fifteen years
earlier. The ICA affirmed the sentence by extending the
presumption of validity to those non-existent convictions. The
ICA gravely erred by upholding a consecutive prison sentence
based on crimes that [] Kong did not commit.” Kong specifically
argues that the procedure set out in State v. Sinagoga, 81
Hawai#i 421, 918 P.2d 228 (App. 1996), for challenging
convictions contained in a PSI report should not “extend to cases
where convictions did not exist at the time of sentencing,” and
alternatively, that Sinagoga should be overturned. As explained
below, Kong’s arguments are without merit.
In Sinagoga, the ICA considered whether a defendant
bears the burden of challenging prior criminal convictions listed
7
To be clear, we are neither overruling nor “upend[ing]” this
court’s opinion in Hussein. See dissenting opinion at 20. Hussein clearly
stands for the proposition that a sentencing court must provide a “meaningful
rationale” on the record to justify its imposition of a sentence. 122 Hawai#i
at 509-10, 229 P.3d at 327-28. We expressly reaffirm this holding. Here, we
merely hold that, under the circumstances of this case, the circuit court did
not abuse its discretion in determining that Kong’s “extensive criminality”
justified the imposition of a consecutive sentence.
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in the PSI report that the defendant contends are invalid. Id.
at 444, 918 P.2d at 251. The ICA concluded that a defendant does
bear such a burden in “ordinary sentencing situations.”8 Id.
Specifically, the ICA held that any convictions contained in a
PSI report “may be used against the defendant except those as to
which the defendant timely responds with a good faith challenge
on the record that the prior criminal conviction was (1)
uncounseled, (2) otherwise invalidly entered, and/or (3) not
against the defendant.” Id. at 444-45, 918 P.2d at 251-52. The
ICA’s conclusion was based on the rationale that “the defendant,
more than anyone else, knows whether or not his or her prior
criminal conviction was uncounseled, otherwise invalid, or
irrelevant.” Id. at 445, 918 P.2d at 252. Accordingly, “if the
presentence report states that the defendant has a prior criminal
conviction, and the defendant does not respond to that report
with a good faith challenge on the record . . . that prior
criminal conviction is reliable for all sentencing purposes.”
Id.
The ICA set forth the following procedure for trial
courts to follow in cases “where ordinary sentencing procedures
are applicable and there is a possibility that the court may use
8
“Ordinary sentencing situations” include mandatory minimums,
eligibility for probation, and consecutive sentences, but exclude extended
term sentencing. Id. at 444, 918 P.2d 251.
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the defendant’s prior conviction(s) as a basis for the imposition
or enhancement of a prison sentence”9:
Step one, the court shall furnish to the defendant or
defendant’s counsel and to the prosecuting attorney a
copy of the presentence report, HRS § 706–604, and any
other report of defendant’s prior criminal
conviction(s). Step two, if the defendant contends
that one or more of the reported prior criminal
convictions was (1) uncounseled, (2) otherwise
invalidly entered, and/or (3) not against the
defendant, the defendant shall, prior to the
sentencing, respond with a good faith challenge on the
record stating, as to each challenged conviction, the
basis or bases for the challenge. Step three, prior
to imposing the sentence, the court shall inform the
defendant that (a) each reported criminal conviction
that is not validly challenged by the defendant is
defendant’s prior, counseled, validly entered,
criminal conviction, and (b) a challenge to any
reported prior criminal conviction not made by
defendant before sentence is imposed may not
thereafter, absent good cause, be raised to attack the
court’s sentence. Step four, with respect to each
reported prior criminal conviction that the defendant
challenges, the HRE [(Hawaii Rules of Evidence)] shall
apply, and the court shall expressly decide before the
sentencing whether the State satisfied its burden of
proving to the reasonable satisfaction of the court
that the opposite of the defendant’s challenge is
true. Step five, if the court is aware of the
defendant’s prior uncounseled or otherwise invalid
criminal conviction(s), it shall not impose or enhance
a prison sentence prior to expressly stating on the
record that it did not consider it or them as a basis
for the imposition or enhancement of a prison
sentence.
Id. at 447, 918 P.2d at 254 (emphasis added).
The Sinagoga framework is applicable to this case
because this is a case where “ordinary sentencing procedures are
applicable and there [was] a possibility that the court may use
[Kong’s] prior conviction(s) as a basis for the imposition or
enhancement of a prison sentence.” Id. at 447, 918 P.2d at 254.
9
This court adopted and applied the Sinagoga test in Heggland, with
one modification, discussed infra. 118 Hawai#i at 439-41, 193 P.3d at 355-57.
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Here, step one of the Sinagoga framework was satisfied because
Kong was provided with a copy of the PSI report, which contained
a list of his prior convictions. Kong was then required to
“respond with a good faith challenge on the record stating, as to
each challenged conviction, the basis or bases for the
challenge.” Id.
However, Kong did not avail himself of the opportunity
to controvert the PSI report, which he now argues listed
convictions that were allegedly dismissed. At the April 7, 2011
sentencing hearing, Kong’s counsel stated, “We have received the
[PSI] report. There are no changes at this time.” At the
continued sentencing hearing on April 11, 2011, Kong’s counsel
simply indicated that Kong did not want to stipulate to the
contents of the PSI report. However, neither Kong nor his
counsel objected to any of the convictions listed in the PSI
report. See Heggland, 118 Hawai#i at 432 n.4, 193 P.3d at 348
n.4 (noting that the defendant must “respond with a good faith
challenge on the record stating, as to each challenged
conviction, the basis or bases for the challenge.” (emphasis
added)); cf. State v. Fox, 70 Haw. 46, 55, 760 P.2d 670, 675
(1988) (“Fairness to the trial court impels a recitation in full
of the grounds supporting an objection to the introduction of
inadmissible matters. Otherwise, the court would be denied the
opportunity to give the objection adequate consideration and rule
correctly.”). Because Kong failed to raise a good faith
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challenge to his convictions in the circuit court, the circuit
court did not err in relying on the PSI report.10 Sinagoga, 81
Hawai#i at 445, 918 P.2d at 252 (“[I]f the presentence report
states that the defendant has a prior criminal conviction, and
the defendant does not respond to that report with a good faith
challenge on the record . . . that prior criminal conviction is
reliable for all sentencing purposes.”).
Nevertheless, Kong argues that Sinagoga is inapplicable
because this court limited the applicability of the Sinagoga
framework in State v. Veikoso, 102 Hawai#i 219, 74 P.3d 575
(2003), and Heggland. In Veikoso, this court considered whether
a defendant may, in trial proceedings on a subsequent offense,
collaterally attack a prior conviction that is the result of an
allegedly invalid plea. 102 Hawai#i at 224-27, 74 P.3d at 581-
83. There, the defendant was convicted of habitually driving
under the influence (DUI) of intoxicating liquor, an offense
which requires that the defendant be convicted of three or more
prior DUI offenses within a specific period. Id. at 220, 219
P.3d at 576. The defendant sought to dismiss the habitual DUI
charge on the ground that his prior, predicate DUI convictions
were invalid because he had not received a proper colloquy prior
10
In this case, the Sinagoga analysis ceased at step two because the
defendant failed to raise a challenge to the convictions listed in the PSI
report. Because Kong failed to challenge the PSI report, the circuit court
had no reason to proceed with the next steps in the Sinagoga analysis. See,
e.g., Heggland, 118 Hawai#i at 439-41, 193 P.3d at 355-57 (not reaching steps
three through five after concluding that defendant failed to raise a good-
faith challenge to his prior conviction under Sinagoga).
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to entering his plea. Id. The defendant’s motion to dismiss was
denied, and he subsequently pled guilty to habitual DUI.
On appeal, this court noted that none of the
defendant’s prior DUI convictions had been vacated at the time he
pled guilty to habitual DUI. Id. at 223, 74 P.3d at 579. This
court concluded that constitutional challenges to the validity of
prior convictions must be raised either in a direct appeal or
collaterally through a HRPP Rule 40 proceeding, rather than in
proceedings on a subsequent offense. Id. at 226, 74 P.3d at 583.
In a footnote, this court “recognize[d] the tension” between its
holding and Sinagoga. Id. at 227 n.8, 74 P.3d at 583 n.8. This
court acknowledged that Sinagoga allowed a defendant to challenge
three types of convictions in a PSI report, i.e., those that are
“(1) uncounseled, (2) otherwise invalidly entered, and/or (3) not
against the defendant.” Id. (emphasis in original) (brackets
omitted). This court stated, “Because the ‘otherwise invalidly
entered’ language in Sinagoga may be construed as permitting
collateral attacks whenever the validity of a conviction is
challenged, we emphasize, in light of our holding today, that
this language should be disregarded.” Id. at 227 n.8, 74 P.3d at
583 n.8.
Subsequently, in Heggland, this court adopted and
applied the Sinagoga test to determine whether the defendant had
raised a good-faith challenge to his prior conviction out of
state on the ground the conviction was uncounseled. 118 Hawai#i
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at 439-41, 193 P.3d at 355-57. This court acknowledged the bases
for challenging a prior conviction recognized by Sinagoga and
modified by Veikoso (i.e., the conviction being uncounseled or
not against the defendant). Id. at 440-42, 193 P.3d at 356-58.
However, this court concluded that the defendant had not, in the
trial court, raised a good faith challenge on either of these
bases, and instead affirmatively stipulated to his prior
conviction. Id. Accordingly, this court concluded that the
defendant’s arguments were without merit. Id. In a footnote,
this court also quoted the ICA opinion in Heggland for the
proposition that Veikoso had modified Sinagoga to “limit a
defendant’s ability to collaterally attack a prior conviction[.]”
Id. at 440, 193 P.3d at 356 (quoting State v. Heggland, 116
Hawai#i 376, 383 n.7, 173 P.3d 523, 530 n.7 (App. 2007)).
Neither Veikoso nor Heggland supports Kong’s assertion
that Sinagoga is inapplicable in the instant case. First, claims
that a conviction has been vacated would appear to fall within
the provision allowing challenges for convictions that are “not
against the defendant,” rather than those that are “otherwise
invalidly entered.” Indeed, a conviction that has been vacated
is void, see Black’s Law Dictionary 1688 (9th ed. 2009) (defining
“vacate”), and thus is not a conviction “against the defendant.”
Although Kong appears to argue that convictions “not
against the defendant” are only those in which identity is
challenged, he cites no authority for this proposition.
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Moreover, there is no logical reason for requiring a defendant to
raise an identity challenge pursuant to the Sinagoga framework,
but relieving a defendant of this burden for convictions that are
vacated. Indeed, in both instances, “the defendant, more than
anyone else, knows whether or not his or her prior criminal
conviction was . . . irrelevant.” Sinagoga, 81 Hawai#i at 445,
918 P.2d at 252.
Second, the sole purpose behind the limitation on
Sinagoga set forth in Veikoso is not implicated in the instant
case. That purpose was to prohibit collateral attacks on the
validity of a prior conviction in proceedings for a subsequent
offense. Veikoso, 102 Hawai#i at 227 n.8, 74 P.3d at 583 n.8.
Here, Kong claims that his convictions in Cr. No. 92-0138 have
already been “vacated, remanded, and dismissed[.]” Accordingly,
this court’s concerns regarding collateral attacks are not
pertinent in the instant case.
Moreover, nothing in Veikoso or Heggland indicates that
this court intended to relieve a defendant of the burden of
challenging prior convictions in these circumstances. See id.;
see also Heggland, 118 Hawai#i at 440, 193 P.3d at 356. Indeed,
doing so would have the effect of requiring the State to prove
the validity of each of the defendant’s prior convictions at the
time of sentencing or run the risk of having the sentence vacated
on appeal, a proposition which this court has already rejected.
Heggland, 118 Hawai#i at 441, 193 P.3d at 357 (“[T]he circuit
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court misinterpreted the five-step procedure outlined in Sinagoga
by requiring the prosecution to prove the validity of Heggland’s
prior conviction in the absence of a good-faith challenge by
Heggland.”).
Accordingly, Kong was required to raise “a good faith
challenge on the record stating, as to each challenged
conviction, the basis or bases for the challenge.” Heggland, 118
Hawai#i at 432 n.4, 193 P.3d at 348 n.4. Because he did not do
so, the circuit court did not err in relying on the PSI report.11
Nor should this court utilize plain error review to
address this issue despite Kong’s failure to raise it in the
circuit court. Although this court “may recognize plain error
when the error committed affects substantial rights of the
defendant,” Staley, 91 Hawai#i at 282, 982 P.2d at 911 (citation
omitted); see HRPP Rule 52(b), the alleged inaccuracy in the PSI
report does not rise to the level of plain error because the
record indicates 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
alleges are invalid (Cr. No. 92-0138). In addition, the PSI
report, which the circuit court considered in imposing its
11
The dissent argues that the State and probation office would be
“absolve[d]” of accountability and the defendant would “exclusively” bear the
responsibility of ascertaining the accuracy of his or her criminal record.
Dissenting opinion at 28. However, under the holding of Sinagoga, 81 Hawai#i
at 446, 918 P.2d at 253, once the defendant raises a good faith argument
before the sentencing court, the prosecution still has the ultimate burden of
“proving to the reasonable satisfaction of the court that the opposite of the
defendant’s challenge is true.”
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sentence, contained all of Kong’s prior charges and convictions
and not just those in Cr. No. 92-0138.12 Under these
circumstances –- particularly where Kong was given ample time to
review the PSI report, where he or his counsel failed to provide
a good faith challenge on the record stating the bases for
challenging the convictions listed in the PSI report, and where
there was sufficient evidence to support the circuit court’s
determination that Kong had an “extensive” record of criminality
-- it cannot be said that Kong’s substantial rights were affected
by the circuit court’s use of the PSI report.13
C. Kong voluntarily and intelligently self-terminated from the
Drug Court program, and waived his right to a termination
hearing
Finally, Kong asserts that he did not voluntarily and
intelligently waive his right to a termination hearing.
Specifically, Kong asserts that the circuit court’s colloquy
12
The PSI report also indicates that Kong was convicted of seven
felony burglaries. Thus, even excluding the burglary conviction in Cr. No.
92-0138, the circuit court would have been correct in noting that Kong’s
“extensive record” included “six burglary convictions.” Although the vacated
convictions in Cr. No. 92-0138 would mean that Kong was convicted of 8 total
felonies, as opposed to the ten noted by the circuit court, the PSI report
nonetheless contained sufficient information for the circuit court to
reasonably conclude that Kong had a history of “extensive criminality.”
13
The dissent argues that Kong’s due process rights were violated
when the circuit court sentenced him using the convictions in Cr. No. 92-0138.
Dissenting opinion at 34. Kong, however, never asserted in his application
that his due process rights were violated by the circuit court’s use of the
convictions listed in the PSI report. See Hawai#i Rules of Appellate
Procedure Rule 40.1(d)(1) (“Questions not presented according to this
paragraph will be disregarded.”). Nevertheless, and as explained supra, the
circuit court based its imposition of a consecutive sentence on Kong’s
“extensive” criminal record as a whole and not on the specific convictions
that Kong alleges are invalid. Thus, on the record before us, it cannot be
said that Kong’s due process rights were violated.
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prior to his self-termination at the February 3, 2011 hearing was
not sufficient. Contrary to Kong’s argument, and as set forth
below, under the totality of the circumstances Kong voluntarily
and intelligently self-terminated from the Drug Court program.
In State v. Friedman, this court concluded that “[a]
waiver is the knowing, intelligent, and voluntary relinquishment
of a known right.” 93 Hawai#i 63, 68, 996 P.2d 268, 273 (2000)
(citation omitted). Generally, the court will conduct a colloquy
to ensure that the defendant’s waiver of his or her rights is
knowingly, voluntarily, and intelligently made. State v. Kaulia,
128 Hawai#i 479, 495-96, 291 P.3d 377, 393-94 (2013). To
determine whether a waiver is voluntary and intelligent, “this
court will look to the totality of facts and circumstances of
each particular case.”14 Friedman, 93 Hawai#i at 68-69, 996 P.2d
at 273-74.
In this case, Kong was advised of his right to a
termination hearing, confirmed his understanding of that right,
and repeatedly stated his decision to self-terminate from the
Drug Court program. Specifically, at the January 26, 2011
hearing, the circuit court informed Kong that he had a right to a
termination hearing, at which the State would be required to
present “an appropriate basis for terminating [him] from the drug
14
This court has not previously determined that a personal on-the-
record colloquy is required when a defendant decides to self-terminate from
the Drug Court program. We assume, without deciding, that such a colloquy is
required.
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court program.” Kong was advised that he had a right to have his
attorney present at a termination hearing and to contradict the
facts presented by the State. He also was advised that,
following the hearing, the circuit court would determine whether
he would remain in the program or would be terminated.
Kong also was advised of the result of self-terminating
from the Drug Court program, or of being terminated following a
termination hearing. Specifically, Kong was advised that his
case would proceed to a stipulated facts trial “where it’s almost
virtually certain, unless your attorney filed any
constitutionally based motions on your behalf, it’s virtually
certain that you will be found guilty as charged.”15 During the
colloquy, Kong indicated several times that he understood that he
had a right to a termination hearing and understood the
consequences of self-termination.
Approximately one week later, on February 3, 2011, Kong
again indicated that he wanted to self-terminate from the
program. Following a brief colloquy in which Kong confirmed that
his mind was clear and that he was not taking any drugs or
medication, the circuit court accepted Kong’s self-termination
from the program.
15
The circuit court previously found that Kong knowingly,
voluntarily and intelligently waived various trial rights upon his admission
to the Drug Court program, and Kong does not raise any arguments with respect
to these rights. The only issue on appeal is whether Kong validly waived his
right to a termination hearing.
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Although the extensive advisements regarding the right
to a termination hearing did not occur at the February 3, 2011
hearing, the fact remains that Kong was advised of his rights,
acknowledged he understood those rights, and repeatedly, in two
hearings over the course of eight days, reaffirmed his desire to
self-terminate. Under these circumstances, Kong voluntarily and
intelligently self-terminated from the Drug Court program.
Accordingly, Kong’s self-termination was valid.
IV. Conclusion
For the foregoing reasons, we affirm the March 1, 2013
judgment of the ICA, which affirmed the circuit court’s April 11,
2011 Judgment of Conviction and Sentence.
Samuel G. MacRoberts /s/ Mark E. Recktenwald
for petitioner
/s/ Paula A. Nakayama
Renee Ishikawa Delizo
for respondent /s/ Bert I. Ayabe
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