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Electronically Filed
Supreme Court
SCWC-12-0000654
12-AUG-2014
09:07 AM
SCWC-12-0000654
IN THE SUPREME COURT OF THE STATE OF HAWAI#I
STATE OF HAWAI#I,
Respondent/Plaintiff-Appellee,
vs.
YOSHIRO SANNEY,
Petitioner/Defendant-Appellant.
CERITORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-12-0000654; CR. NO. 10-1-1570)
MEMORANDUM OPINION
(By: Recktenwald, C.J., Nakayama, McKenna, and Pollack, JJ.,
and Circuit Judge Nacino, assigned by reason of vacancy)
This case concerns the Circuit Court of the First
Circuit’s (circuit court) summary denial of Petitioner/Defendant-
Appellant Yoshiro Sanney’s (Sanney) motion to reconsider sentence
filed pursuant to the Hawai#i Rules of Penal Procedure (HRPP)
Rule 35. We hold that the circuit court erred in denying
Sanney’s motion without holding a hearing.
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I. BACKGROUND
On September 22, 2010, Sanney was indicted on one count
of sexual assault in the second degree in violation of HRS § 707-
731(1)(b) (Supp. 2010)1, for “knowingly subject[ing] to sexual
penetration, [Complaining Witness (CW)], who was mentally
incapacitated, or physically helpless, by placing his mouth on
her genitalia.” Sanney was also indicted on one count of sexual
assault in the second degree in violation of HRS §§ 705-500
(1993)2 and 707-731(1)(b), for “intentionally engag[ing] in
1
HRS § 707-731(1)(b) provided then, as it does now, in pertinent
part:
(1) A person commits the offense of sexual assault in the
second degree if:
. . . .
(b) The person knowingly subjects to sexual
penetration another person who is mentally
incapacitated or physically helpless . . . .
2
HRS § 705-500 provided then, as it does now:
(1) A person is guilty of an attempt to commit a crime if
the person:
(a) Intentionally engages in conduct which would
constitute the crime if the attendant circumstances
were as the person believes them to be; or
(b) Intentionally engages in conduct which, under the
circumstances as the person believes them to be,
constitutes a substantial step in a course of conduct
intended to culminate in the person’s commission of
the crime.
(2) When causing a particular result is an element of the
crime, a person is guilty of an attempt to commit the crime
if, acting with the state of mind required to establish
liability with respect to the attendant circumstances
(continued...)
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conduct which, under the circumstances as he believed them to be,
constituted a substantial step in a course of conduct intended to
culminate in his commission of the crime of [s]exual [a]ssault in
the [s]econd [d]egree against [CW].”
Sanney initially pleaded not guilty. On July 13, 2011,
Sanney appeared in the circuit court3 at a change of plea hearing
and entered a plea of no contest to the charges of sexual assault
in the second degree and attempted sexual assault in the second
degree. Prior to the entry of the change of plea, Sanney’s
counsel indicated that the circuit court had given an inclination
of a sentence of probation with up to 18 months in jail. The
circuit court stated that “an inclination is not a promise” and
clarified that its final sentencing determination would be based,
in part, on information provided in the forthcoming presentence
report (PSI). The circuit court informed Sanney that he was
facing a maximum sentence of forty years.
At the sentencing hearing on September 21, 2011, the
circuit court stated that it had “concern[s] about some of the
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(...continued)
specified in the definition of the crime, the person
intentionally engages in conduct which is a substantial step
in a course of conduct intended or known to cause such a
result.
(3) Conduct shall not be considered a substantial step under
this section unless it is strongly corroborative of the
defendant’s criminal intent.
3
The Honorable Karen S.S. Ahn presided.
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representations in that PSI which, to [it, 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.” At the subsequent
sentencing hearing on September 26, 2011, the circuit court
stated that in light of the new information in the PSI, it was
sentencing Sanney to ten years of prison on both counts, with the
terms to run concurrently.
On December 22, 2011, Sanney filed a motion to
reconsider sentence pursuant to Hawai#i Rules of Penal Procedure
(HRPP) Rule 35. The grounds for the motion were stated as:
a. The Defendant was sentenced on September 26, 2011 to
concurrent open ten (10) year terms of incarceration.
Exhibit “A”.
b. Defendant has been incarcerated since September 15,
2010 and is now being held at the Halawa Correctional
Facility.
c. Since Defendant has been sentenced to prison, he has
had a lot of time to reflect about the incidents that
occurred in this case.
d. Defendant would like another opportunity to address
the Court regarding his sentence in this case and is
requesting that the Court reconsider the sentence imposed on
September 26, 2011 and sentence him to probation.
On January 11, 2012, Sanney’s attorney filed a motion
to withdraw as counsel and have substitute counsel appointed; the
motion alleged “a break-down in the attorney-client relationship
between [Sanney] and his defense counsel.”
The circuit court held a hearing on both motions on
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January 23, 2012. After hearing from Sanney and his defense
counsel, the circuit court granted the motion for withdrawal.
The circuit court then allowed Sanney to decide whether to
proceed with a hearing on the motion to reconsider sentence,
represented by his former counsel, or whether to delay that
motion for six months and allow his new counsel to handle it.
Sanney ultimately decided to allow his new counsel to handle the
motion to reconsider sentence and the circuit court scheduled a
hearing for six months in the future, June 25, 2012.
On January 24, 2012, Sanney was appointed new counsel.
On June 21, 2012, four days before the scheduled hearing, the
circuit court entered an order summarily denying Sanney’s motion
to reconsider sentence. The circuit court stated that “following
a review of the Motion, attached Declaration of Counsel and the
records and files of the instant matter, the Court finds that the
Motion fails to state any new evidence that would warrant the
Court to reconsider its prior ruling.”
Sanney appealed to the ICA arguing that the circuit
court abused its discretion in summarily denying his motion to
reconsider sentence without holding a hearing. In a summary
disposition order, the ICA affirmed the circuit court’s denial of
Sanney’s motion for reconsideration of sentence. State v.
Sanney, No. CAAP-12-0000654, 2013 WL 3776162 (App. July 8, 2013)
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(SDO). The court reasoned:
Sanney cites to no authority that would have entitled him to
a hearing on his motion pursuant to Hawai#i Rules of Penal
Procedure Rule 35(b), and we find none. Sanney argues he
could have brought matters to the attention of the circuit
court if he had a hearing but does not explain why these
matters could not have been brought to the attention of the
court in his motion for reconsideration or by written
submittal in support of his motion.
Id. at *1.
Sanney filed an application for writ of certiorari with
this court arguing that the ICA erred in concluding that the
circuit court did not abuse its discretion in summarily denying
the motion to reconsider sentence without holding a hearing.
II. DISCUSSION
On application for writ of certiorari to this court,
Sanney argues that the circuit court abused its discretion in
summarily denying his motion for reconsideration without a
hearing.4 “‘The authority of a trial court to select and
determine the severity of a penalty is normally undisturbed on
review in the absence of an apparent abuse of discretion or
unless applicable statutory or constitutional commands have not
been observed.’” Barnett v. State, 91 Hawai#i 20, 26, 979 P.2d
1046, 1052 (1999) (quoting State v. Valera, 74 Haw. 424, 439, 848
4
In a tangentially related argument, Sanney claims that the circuit
court erred in denying his motion for reconsideration because there was no
“new information” in the PSI to justify the circuit court’s departure from its
initial inclination. It is unnecessary to address this argument as we resolve
the case on other grounds.
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P.2d 376, 383 (1993)). “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. Kahapea,
111 Hawai#i 267, 278, 141 P.3d 440, 451 (2006).
Motions for a reduction or reconsideration of sentence
are governed by Hawai#i Rules of Penal Procedure (HRPP) Rule
35(b). HRPP Rule 35(b) states:
The court may reduce a sentence within 90 days after the
sentence is imposed, or within 90 days after receipt by the
court of a mandate issued upon affirmance of the judgment or
dismissal of the appeal, or within 90 days after entry of
any order or judgment of the Supreme Court of the United
States denying review of, or having the effect of upholding
the judgment of conviction. A motion to reduce a sentence
that is made within the time prior shall empower the court
to act on such motion even though the time period has
expired. The filing of a notice of appeal shall not deprive
the court of jurisdiction to entertain a timely motion to
reduce a sentence.
HRPP Rule 35(b). The plain language of HRPP Rule 35(b) does not
require the trial court to conduct a hearing before denying a
motion to reconsider or reduce a sentence. This court has yet to
address the issue of whether the trial court must conduct a
hearing prior to denying a motion for reconsideration or
reduction of sentence.5
Regardless of whether an HRPP Rule 35(b) motion always
5
Because HRPP Rule 35(b) contains no requirement of new evidence,
the better practice in motions for reconsideration or reduction of sentence
would be to hold a hearing to allow the defendant to explain the reasons a
reconsideration or reduction of sentence is warranted.
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requires a hearing, the issue at bar may be decided on the narrow
facts of this case. Here, the court granted Sanney’s attorney’s
motion for withdrawal prior to hearing Sanney’s motion to
reconsider sentence. Had Sanney’s attorney not withdrawn as
counsel, on January 23, 2012, Sanney would have had the
opportunity to present arguments in support of his motion to
reconsider sentence. Instead, Sanney chose to allow his new
counsel to handle the motion, and the court postponed the hearing
to June 25, 2012 to allow new counsel to be appointed. Then, on
June 21, 2012, the circuit court entered its order summarily
denying Sanney’s motion to reconsider sentence.
The circuit court abused its discretion in summarily
denying the motion for reconsideration without a hearing after
allowing substitution of counsel and setting the matter for a
hearing. The court provided no justification for rescheduling
the hearing, and then subsequently denying the motion before the
hearing was held. The court’s only stated reason for denying
Sanney’s motion was Sanney’s failure to present new evidence.
However HRPP Rule 35 does not require defendants to present new
evidence when moving for a reconsideration of sentence. Based on
the facts of this case, the circuit court erred when it denied
Sanney’s motion to reconsider sentence without conducting a
hearing and the ICA erred in affirming the circuit court’s
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summary denial.
IV. CONCLUSION
Due to the errors identified above, we vacate the ICA’s
August 21, 2013, judgment on appeal and remand this case to the
circuit court for further proceedings.
DATED: Honolulu, Hawai#i, August 12, 2014.
Shawn A. Luiz /s/ Mark E. Recktenwald
for petitioner
/s/ Paula A. Nakayama
Donn Fudo
for respondent /s/ Sabrina S. McKenna
/s/ Richard W. Pollack
/s/ Edwin C. Nacino
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