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Electronically Filed
Supreme Court
SCWC-XX-XXXXXXX
13-DEC-2019
08:14 AM
SCWC-XX-XXXXXXX
IN THE SUPREME COURT OF THE STATE OF HAWAI#I
STATE OF HAWAI#I,
Respondent/Plaintiff-Appellee,
vs.
SHUAN E. FLEETWOOD, also known as SHAUN FLEETWOOD,
Petitioner/Defendant-Appellant.
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-XX-XXXXXXX; 1PC101001668)
SUMMARY DISPOSITION ORDER
(By: Recktenwald, C.J., Nakayama, McKenna, Pollack, and Wilson, JJ.)
Petitioner/Defendant-Appellant Shuan E. Fleetwood, also
known as Shaun Fleetwood (Fleetwood) appeals the Intermediate
Court of Appeals’ (ICA) November 7, 2018 Judgment on Appeal
affirming the Circuit Court of the First Circuit’s (circuit
court) order of resentencing and revocation of probation.
On January 18, 2011, Fleetwood pled guilty to two
counts of sexual assault in the second degree. The circuit court
sentenced Fleetwood to five years of Hawaii’s Opportunity
Probation with Enforcement (HOPE probation) for each count, to
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run concurrently. As a condition of probation, the circuit court
sentenced Fleetwood to one year in prison.
Fleetwood met with his probation officer after he was
released from prison, then left the state of Hawai#i to visit his
ill father in Louisiana. In Louisiana, Fleetwood was arrested
for an outstanding warrant from a previous sexual assault in
Arkansas.
Respondent/Plaintiff-Appellee the State of Hawai#i (the
State) filed a Motion for Modification of the Terms and
Conditions of Probation and/or Motion for Revocation of Probation
(motion for revocation of probation) after Fleetwood failed to
report to his probation officer in November 2011. The circuit
court issued a bench warrant for Fleetwood’s arrest.
In 2016, Fleetwood’s prison term for the Arkansas
sexual assault ended and he was extradited to Hawai#i. The
circuit court1 held a hearing on the State’s 2011 motion for
revocation of probation, where Fleetwood’s original probation
officer testified that, in 2011, he explained the terms and
conditions of Fleetwood’s probation to him, and that he did not
give Fleetwood permission to leave the state. Fleetwood
testified that no one explained the terms and conditions of his
probation to him and that his probation officer told him he could
1
The Honorable William M. Domingo presided.
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leave Hawai#i to visit his father.
The circuit court found that Fleetwood inexcusably
violated a substantial condition of his probation by failing to
report to his probation officer in 2011.
At the resentencing hearing, Fleetwood testified “I
should have known the law a little bit better. The only thing I
wish I would have done was known the law a little bit better and
known about the Interstate Compact,[2] sir, which I did not
know.” Citing Fleetwood’s prior convictions and the fact that
Fleetwood maintained, in direct contradiction with his probation
officer’s testimony, that his probation officer failed to explain
the terms and conditions of his probation and gave him permission
to leave the state, the circuit court resentenced Fleetwood to
ten years’ imprisonment. The circuit court stated:
I find that Mr. Fleetwood is not a good
candidate for probation. The fact that he took the
stand and clearly denied everything in contradiction
of what [Fleetwood’s probation officer] had stated to
him, which I find that – part of probation is you need
to be honest, Mr. Fleetwood. And the fact that you
couldn’t take the stand and tell this Court that you
did know the terms and conditions and that you were
told by your probation officer that you could leave.
So it will be the judgment of this Court that in
Count 1, 10-1-1668, 1 and 2, you will serve a period
of ten years.
(Emphasis added).
2
Fleetwood’s probation officer testified that “there’s an
interstate compact that has to go through in order for us to have a client
transfer to another state for supervision.” This statement indicates that a
probation officer is not, on the probation officer’s own authority, able to
permit a probationer to leave the state.
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The ICA affirmed the circuit court’s order of
resentencing and revocation of probation.
We vacate the order of resentencing and revocation of
probation. The circuit court abused its discretion in using
Fleetwood’s maintenance that he did not inexcusably violate the
terms of his probation as a basis for imposing a harsher
sentence, in contravention of the rule adopted by this court in
State v. Kamana#o, 103 Hawai#i 315, 82 P.3d 401 (2003).
This court held in Kamana#o that “a sentencing court
may not impose an enhanced sentence based on a defendant’s
refusal to admit guilt with respect to an offense the conviction
of which he intends to appeal.” Kamana#o, 103 Hawai#i at 316, 82
P.3d at 402. In Kamana#o, a jury convicted Kamana#o of multiple
counts of sexual assault. Id. Kamana#o maintained his innocence
throughout trial and post-conviction. Id. at 323, 82 P.3d at
409. At a hearing on extended sentencing, the prosecutor argued
that certain aggravating factors, including Kamana#o’s lack of
remorse and refusal to admit guilt, justified imposing an
extended sentence. Id. at 317, 82 P.3d at 403. The circuit
court granted the State’s motion, stating, inter alia,
In addition to the nature and multiplicity of the
offenses committed by [Kamana#o], the seriousness, the
flagrancy of his conduct is aggravated by what has
been pointed out by [the DPA]: That he refuses to
acknowledge his culpability for these offenses . . . .
his refusal to acknowledge this very serious
behavioral problem, which caused him to terrorize and
victimize and assault his victims, negates any
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reasonable expectation of his rehabilitation, whether
in 20 years or for the duration of his life.
Id. at 318, 82 P.3d at 404 (emphases in original). This court
vacated Kamana#o’s sentence and remanded for resentencing,
holding that “the circuit court violated Kamanao’s constitutional
privilege against self-incrimination by imposing an enhanced
sentence . . . based solely on Kamanao’s refusal to admit his
guilt with respect to the offenses of which he was convicted by a
jury.” Id. at 320, 82 P.3d at 406. This court then adopted the
following three-part test, set forth by the Michigan Supreme
Court in People v. Wesley, 411 N.W.2d 159 (1987), for assessing
whether a sentencing court erroneously relied on a defendant’s
refusal to admit guilt in imposing a sentence:
(1) the defendant’s maintenance of innocence after the
conviction, (2) the judge’s attempt to get the
defendant to admit guilt, and (3) the appearance
that[,] had the defendant affirmatively admitted
guilt, his sentence would not have been so severe . .
. . [I]f there is an indication of the three factors,
then the sentence was likely to have been improperly
influenced by the defendant’s persistence in his
innocence. If, however, the record shows that the
court did no more than address the factor of
remorsefulness as it bore upon defendant’s
rehabilitation, then the court’s reference to a
defendant’s persistent claims of innocence will not
amount to error requiring reversal.
Id. at 323, 82 P.3d at 409 (citing Wesley, 411 N.W.2d at 162).
Applying those factors, this court held that “Kamanao’s refusal
to admit guilt ‘improperly influenced’ the circuit court’s
decision to grant the prosecution’s motion for an extended term
of imprisonment.” Id.
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As an initial matter, though this court has only
applied the Kamana#o test in the context of initial sentencing,
we hold that the rule applies with equal force at resentencing
because the constitutional issues which gave rise to the Kamana#o
analysis also arise at resentencing. First, the privilege
against self-incrimination, which exists at initial sentencing,
also exists during a probation revocation hearing and
resentencing. State v. Villiarimo, 132 Hawai#i 209, 219, 320
P.3d 874, 884 (2014) (“[A] revocation proceeding is akin to the
initial sentencing hearing.”). Second, a defendant is able to
appeal resentencing or the revocation of probation just as a
defendant may appeal initial sentencing. The Kamana#o court
sought to protect defendants who refuse to admit guilt, knowing
that they intend to appeal their conviction. 103 Hawai#i at 316,
82 P.3d at 402 (“[A] sentencing court may not impose an enhanced
sentence based on a defendant’s refusal to admit guilt with
respect to an offense the conviction of which he intends to
appeal.”) (emphasis added). For the purposes of the Kamana#o
analysis, the revocation of probation is equivalent to a
conviction for a charged offense. The Kamana#o rule therefore
applies whenever a judge issues a sentence, irrespective of when
in the course of the proceedings the sentence is issued.
The application of the Kamana#o factors indicates that,
in sentencing Fleetwood to ten years’ imprisonment, the circuit
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court improperly relied on Fleetwood’s maintenance that he did
not violate his probation.
There is an “indication of” the first factor because
Fleetwood maintained his innocence after conviction. At the
circuit court’s hearing on the State’s motion for revocation of
probation, the “conviction” occurred when the circuit court found
that Fleetwood had inexcusably violated a substantial condition
of his probation. Therefore, any statement made “after
conviction” pursuant to the Kamana#o analysis occurred after the
circuit court made this finding. Before Fleetwood was
“convicted,” Fleetwood testified that he did not inexcusably
violate his probation because his probation officer gave him
permission to leave the state and because he did not understand
the terms and conditions of his probation. After “conviction,”
but before the imposition of sentence, Fleetwood testified, “I
should have known the law a little bit better. The only thing I
wish I would have done was known the law a little bit better and
known about the Interstate Compact, sir, which I did not know.”
Fleetwood thus maintained that his probation officer gave him
permission to leave Hawai#i, by testifying that he should have
known that his probation officer lacked authority to give him
such permission without complying with the Interstate Compact.
By so testifying, Fleetwood maintains that he did not inexcusably
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violate the terms of his probation, which is equivalent to
maintaining his innocence.
There is no indication of the second factor, that the
court attempted to get the defendant to admit guilt, but case law
indicates that absence of the second factor is not fatal to the
Kamana#o analysis. See, e.g., State v. Barrios, 139 Hawai#i 321,
338, 389 P.3d 916, 933 (2016) (holding that the circuit court
improperly inferred that the defendant lacked remorse, despite no
indication of the second Kamana#o factor); State v. Bailey, No.
CAAP-XX-XXXXXXX, 2015 WL 405742 at *3-4 (App. Jan. 30, 2015)
(SDO) (holding that the circuit court was improperly influenced
by the defendant’s maintenance of his innocence, despite no
indication of the second Kamana#o factor). Because the first and
third factors are present here, the absence of the second factor
is insufficient to indicate that the circuit court was not
improperly influenced by Fleetwood’s maintenance of innocence.
There is an indication of the third factor because it
appears that the circuit court gave Fleetwood a harsher sentence
because he maintained that he did not inexcusably violate his
probation. Although the circuit court listed several bases for
sentencing Fleetwood to ten years’ imprisonment, it appears that
the circuit court would have imposed a less severe sentence had
Fleetwood admitted his guilt. The circuit court first observed
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that Fleetwood had several prior convictions. However, the
circuit court seemed to focus on Fleetwood’s refusal to admit
that he had inexcusably violated the terms of his probation.
The circuit court stated,
I find that Mr. Fleetwood is not a good
candidate for probation. The fact that he took the
stand and clearly denied everything in contradiction
of what [Fleetwood’s probation officer] had stated to
him, which I find that – part of probation is you need
to be honest, Mr. Fleetwood. And the fact that you
couldn’t take the stand and tell this Court that you
did know the terms and conditions and that you were
told by your probation officer that you could leave.
So it will be the judgment of this Court that in
Count 1, 10-1-1668, 1 and 2, you will serve a period
of ten years.
(Emphasis added).
The circuit court explicitly cited Fleetwood’s
invocation of his right to maintain his innocence as a basis for
sentencing Fleetwood to prison time as opposed to probation.
The circuit court implied that, if Fleetwood had conceded that he
inexcusably violated his probation by admitting that his
probation officer did not give him permission to leave the state
and did explain the terms and conditions of his probation, he
would have been a good candidate for probation. HOPE probation
would have been a significantly lighter sentence than ten years’
incarceration.3 Therefore, there is an indication of the third
3
This case involves the revocation of Fleetwood's probation and his
resentencing to a term of imprisonment. Modifications of probation that are
accompanied by brief terms of confinement, which are a hallmark of HOPE,
involve different considerations and are not affected by this decision.
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factor.
Because there is a strong indication of factors one and
three, the circuit court was likely improperly influenced by
Fleetwood’s maintenance of innocence. Pursuant to Kamana#o, this
improper influence violated Fleetwood’s privilege against self-
incrimination. Therefore, the circuit court abused its
discretion in sentencing Fleetwood to a ten-year term of
imprisonment.
As such, the ICA gravely erred in affirming the circuit
court’s order of resentencing and revocation of probation.
We therefore vacate the ICA’s November 7, 2018 judgment
on appeal to the extent that it affirmed the circuit court’s
order of resentencing and revocation of probation. We remand to
the circuit court for resentencing.
DATED: Honolulu, Hawai#i, December 13, 2019.
Phyllis J. Hironaka /s/ Mark E. Recktenwald
for petitioner/defendant-
appellant /s/ Paula A. Nakayama
Stephen K. Tsushima /s/ Sabrina S. McKenna
for respondent/plaintiff-
appellee /s/ Richard W. Pollack
/s/ Michael D. Wilson
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