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Electronically Filed
Supreme Court
SCWC-XX-XXXXXXX
28-APR-2020
07:42 AM
IN THE SUPREME COURT OF THE STATE OF HAWAIʻI
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________________________________________________________________
STATE OF HAWAIʻI,
Respondent/Plaintiff-Appellee,
vs.
ALLAN H. ABIHAI,
Petitioner/Defendant-Appellant.
________________________________________________________________
SCWC-XX-XXXXXXX
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-XX-XXXXXXX; CR. NO. 1PC151000405)
APRIL 28, 2020
McKENNA, POLLACK, AND WILSON, JJ.,
WITH NAKAYAMA, J., DISSENTING,
WITH WHOM RECKTENWALD, C.J., JOINS
OPINION OF THE COURT BY McKENNA, J.
I. Introduction
On June 9, 2014, Allan H. Abihai (“Abihai”), who was
serving a life term of imprisonment for multiple felonies
committed in 1984, left the Laumaka Work Furlough Center
(“Laumaka”) in Honolulu and did not return. On June 29, 2014,
Abihai was arrested at a former cellmate’s apartment in
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Honolulu. He was later charged with escape in the second
degree.
In his jury trial on the escape charge, Abihai raised a
choice of evils defense, contending he left Laumaka because he
was threatened he would be hurt if he testified in an upcoming
federal criminal trial involving a prison gang. The jury was
instructed on the choice of evils defense, then convicted Abihai
of escape in the second degree. The Circuit Court of the First
Circuit (“circuit court”) imposed a five-year prison term for
the escape conviction, to run concurrent to his life sentence
for the 1984 felonies, and denied him credit for time served.
Abihai raised two points of error on appeal to the ICA: (1)
that trial counsel was ineffective for substantially impairing
his choice of evils defense by failing to elicit certain
testimony from his witnesses; and (2) that the circuit court
erred when it denied him credit for time served on the sentence
imposed for the escape conviction. The ICA affirmed the circuit
court’s judgment of conviction and sentence.
Abihai raises the same issues on certiorari. For the
reasons below, we resolve Abihai’s points of error as follows:
(1) Because the record on appeal is insufficient to determine
whether there has been ineffective assistance of counsel, we
affirm Abihai’s conviction without prejudice to a subsequent
Hawaiʻi Rules of Penal Procedure (“HRPP”) Rule 40 petition on the
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ineffective assistance of counsel claim; and (2) the ICA erred
in affirming the circuit court’s decision to deny Abihai credit
for time served on his escape conviction. The circuit court’s
June 14, 2017 judgment of conviction and sentence is therefore
affirmed, but the ICA’s September 6, 2018 judgment on appeal is
vacated, and this matter is remanded to the circuit court for
calculation of Abihai’s presentence detention credit consistent
with this opinion.
II. Background
A. Factual Background
On June 9, 2014, Abihai, serving a life sentence for
multiple felony convictions, left Laumaka on a work furlough but
did not return. On June 29, 2014, Abihai was located at the
apartment of a paroled former inmate and arrested for escape by
deputy sheriffs from the Department of Public Safety (“DPS”).1
An investigator in the Department of the Attorney General
requested that DPS release Abihai on the escape charge after
booking and processing. Abihai was then taken to the Sheriff
Receiving Desk in Honolulu for booking and processing. After
midnight, Abihai was transported to the Oahu Community
Correctional Center (“OCCC”); when Abihai complained of pain in
1 DPS Incident Report #SD1404341 clearly states that Abihai was arrested
for Escape in the Second Degree on June 29, 2014.
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his ribs, OCCC declined custody until Abihai was medically
cleared. At some point, Abihai was placed back into custody at
Halawa Correctional Facility (“Halawa”) on his original
sentence.
B. Circuit Court Proceedings
On March 17, 2015, Abihai was charged by felony information
with one count of escape in the second degree in violation of
Hawaiʻi Revised Statutes (“HRS”) § 710-1021 (2014).2 On the same
date, an arrest warrant on the escape charge issued on March 13,
2015, which set bail at $10,000, was executed on Abihai at
Halawa and Abihai remained in custody at Halawa.
A jury trial on the escape charge commenced in the circuit
court on February 6, 2017.3 In opening statements, the State
explained that in June 2014, Abihai was accepted into the Work
Furlough Program at Laumaka, assigned a case manager, and signed
a work furlough agreement. The State further explained that the
evidence would show that on June 9, 2014, Abihai intentionally
escaped from Laumaka.
2 HRS § 710-1021 provides:
Escape in the second degree. (1) A person commits
the offense of escape in the second degree if the person
intentionally escapes from a correctional or detention
facility or from custody.
(2) Escape in the second degree is a class C felony.
3 The Honorable Glenn J. Kim presided. Abihai’s first jury trial ended
in a mistrial on November 28, 2016.
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In Abihai’s opening statement, Abihai’s counsel did not
dispute that Abihai had escaped; rather, he presented a choice
of evils defense and argued that, because Abihai was running for
his life, he could not be guilty of escape.4 Specifically,
Abihai’s counsel stated that Abihai’s
life was in danger because members of a giant prison gang
and a corrupt [adult corrections officer], his former
friend, Feso Malafau believed that he would be testifying
in a federal case that was brought against those gang
members and that prison guard. They though he was going to
be a snitch or a rat.
Abihai’s counsel told the jury that the evidence would
demonstrate that (1) Abihai was threatened; (2) his complaints
to prison officials were not being addressed; (3) he did not
have time to go to the courts to get transferred to a different
location; and (4) he did not use force to escape. Abihai’s
4 The choice of evils defense to an escape charge is set out in
HRS § 703-302(3) (2014):
(3) In a prosecution for escape under section
710-1020 or 710-1021, the defense available under this
section is limited to an affirmative defense consisting of
the following elements:
(a) The actor receives a threat, express or
implied, of death, substantial bodily injury,
or forcible sexual attack;
(b) Complaint to the proper prison authorities is
either impossible under the circumstances or
there exists a history of futile complaints;
(c) Under the circumstances there is no time or
opportunity to resort to the courts;
(d) No force or violence is used against prison
personnel or other innocent persons; and
(e) The actor promptly reports to the proper
authorities when the actor has attained a
position of safety from the immediate threat.
(Emphasis added.)
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counsel conceded, however, that Abihai did not try to turn
himself in:
[Y]ou’re going to hear that he did not turn himself in.
The State is correct. He didn’t call and say, hey, come
get me, pick me up. It was his plan to wait. He believed
he could not be safe until the USO trial, win or lose, was
over and they knew he wasn’t a snitch or a rat and he
failed. But that’s why he didn’t turn himself in.
According to the testimony of the State’s witnesses at
trial, Abihai had escaped when he did not return to Laumaka
after leaving the facility for a job on June 9, 2014. Carolyne
Papaliʻi (“Papaliʻi”), a social worker at Laumaka, testified that
she knew Abihai and was his case manager. Papaliʻi explained
that she reviewed a work furlough agreement with Abihai in March
2014, and that he signed the agreement, which contained several
provisions discussing the consequences should an inmate fail to
return to Laumaka in a timely manner. Papaliʻi testified that on
June 9, 2014, Abihai was supposed to report to Beachside Roofing
for work, and was supposed to return to Laumaka at 8:00 p.m.
Papaliʻi further reported that she was told the following morning
that Abihai did not return to Laumaka.
Adult Corrections Officer Benjamin Morn (“ACO Morn”) also
testified that Abihai failed to return to Laumaka on June 9,
2014. ACO Morn stated that he had reported for duty for the
midnight shift at Laumaka at 10:00 p.m. on June 9, 2014, and
discovered that Abihai had not returned. ACO Morn also
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testified that he did not receive any call from Abihai reporting
where he was or why he was late.
James Mahelona (“Mahelona”), the field representative for
Beachside Roofing, testified that he knew Abihai and that on
June 9, 2014, Abihai was supposed to show up for work. Mahelona
stated that Abihai did not show up to work and did not call to
state that he was not going to show up.
To support his choice of evils defense, Abihai presented
testimony from witnesses regarding his involvement in the
federal criminal trial of the USO Family Gang,5 which began in
September 2014.
Assistant U.S. Attorney Thomas Brady (“AUSA Brady”)
testified that he approached Abihai in September 2014 to ask if
he would testify against the USO Family Gang, specifically as to
his relationship with an adult corrections officer at Halawa
Correctional Facility, Feso Malafau (“ACO Malafau”).6 AUSA Brady
stated that when Abihai expressed an intent to testify in the
trial, the federal government took some precautions to keep him
safe. For example, Abihai was transferred to the Federal
5 The USO Family Gang was a prison gang made up of mostly, but not
exclusively, Samoan inmates in state correctional facilities. “USO stands
for United Samoan Organization . . . but it’s also the Samoan word for
brother.”
6 In other words, AUSA Brady contacted Abihai after he escaped and was
re-arrested in June 2014.
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Detention Center because “[w]e wanted to interview him again for
his safety. We did not want that to occur at Halawa.”
AUSA Brady testified, however, that on September 30, 2014,
he was informed that Abihai had told the U.S. Marshals that he
was unwilling to testify in the trial. AUSA Brady stated that
he then met Abihai for a short discussion. On cross-
examination, AUSA Brady described their conversation:
[The State:] And what was his demeanor?
[AUSA Brady:] His demeanor was –- his demeanor was
that he refused to come into the courtroom. He said he did
not want anyone to see his face. But as he was telling me
that he was smiling.
[The State:] He was smiling?
[AUSA Brady:] Yes.
[The State:] Did the defendant ever ask for federal
protection in exchange for his participation cooperating
with the Feds?
[AUSA Brady:] No.
[The State:] If a potential witness like this
defendant refused to cooperate with the federal government
initially prior to trial are there any negative
ramifications to that?
[AUSA Brady:] No, there’s nothing we could do if
somebody refused to testify.
Abihai also called Federal Bureau of Investigation (“FBI”)
Officer Lawrence Myers (“Officer Myers”). Officer Myers
testified he took precautions to ensure people did not know
Abihai was speaking with federal investigators:
[Abihai’s Counsel:] And did you take precautions to
protect Mr. Abihai from people either knowing about those
interviews or knowing that he would testify?
[Officer Myers:] Yes, I did.
[Abihai’s Counsel:] Are you comfortable telling us
the exact nature of those precautions?
[Officer Myers:] No.
[Abihai’s Counsel:] Why not?
[Officer Myers:] Not in this open court. It would
endanger the lives of those that I took precautions to
ensure their safety currently and those in the future.
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[Abihai’s Counsel:] So, for example, if you have a
technique that hides the fact that someone might be a
snitch or rat, you don’t want to tell the whole world what
that technique is, correct?
[Officer Myers:] That is correct.
[Abihai’s Counsel:] That’s fine, I won’t ask you for
more details.
Abihai also called Wendell Yoda (“Manager Yoda”), a
supervisor at Laumaka, as a witness. Manager Yoda stated that,
before Abihai left Laumaka on June 9, 2014, Abihai never told
him about any threats he had received at Laumaka. Manager Yoda
testified that, if Abihai wanted to contact him, he could do so
by using the phone in the main administration building at
Laumaka. Manager Yoda could not remember whether Abihai had
tried to call him in the days leading up to his escape, but he
also explained that generally, if an inmate has a problem, it
was the case manager’s responsibility to address the problem in
the first instance.
Abihai also testified. Abihai stated that, at some point
after an indictment was filed against the USO Family and ACO
Malafau, Abihai was approached by a USO member who threatened
him should he testify in the trial:
[Abihai:] Someone came up to me said that you going
get one –- Feso Malafau going be going court and that the
Feds going be calling me for one witness because in 2010 I
was investigated when I came back from my violation and
they told me not to testify or say anything or else I going
get rolled up.
[Abihai’s Counsel:] Now, at that point were you
planning to testify or saying anything?
[Abihai:] At that moment, no.
[Abihai’s Counsel:] Did you make any attempts to let
USOs, Mr. Malafau, anybody know that you was going to keep
quiet?
[Abihai:] Yes, I did.
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[Abihai’s Counsel:] What attempts did you make?
[Abihai:] I told that member I not going say nothing.
And he said that if I do they going find out and then I
going get rolled up.
Abihai also testified that security at Laumaka was lax,
that it was easy to smuggle in contraband, and that the cameras
in the facility did not work. Abihai testified that he told
Manager Yoda that it was important that he talk to him, and made
two attempts to see him, but Manager Yoda did not see him.
Abihai also stated that he told Officer Myers that he wanted to
be transferred to Kulani Minimum Security Facility, because it
was safer than Laumaka.
Abihai then explained what happened on June 9, 2014.
Abihai stated that he did not show up to work and instead went
to Rudy Nao’s apartment because he thought he would be safe
there:
[Abihai’s Counsel:] And why did you go to Rudy [Nao]’s
place?
[Abihai:] Because he was in one security apartment and he
was living on the ninth floor.
[Abihai’s Counsel:] Did you trust Mr. [Nao] not to
harm you or turn you over to anybody who would harm you?
[Abihai:] Yeah, I trusted him.
[Abihai’s Counsel:] How long were you living with
Rudy [Nao] before you got caught?
[Abihai:] I was living with him all the way until I
got doubt [sic].
[Abihai’s Counsel:] How come you didn’t just call the
cops after you walked away and said, hey, I took off, but I
going turn myself in, just put me somewhere safe?
[Abihai:] I never trust nobody.
[Abihai’s Counsel:] Why not?
[Abihai:] Because in the past when I was younger they
used to get bust me up.
[Abihai’s Counsel:] You’re talking about cops?
[Abihai:] Yeah.
[Abihai’s Counsel:] And did –- you knew some ACOs who
were involved like Malafau who were dirty right?
[Abihai:] Yeah.
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[Abihai’s Counsel:] Did you know them all?
[Abihai:] Yeah, I knew them all.
. . . .
[Abihai’s Counsel:] . . . [I]f you turn yourself in
did you feel you had guarantees of your safety?
[Abihai:] No.
[Abihai’s Counsel:] What was your plan, why when you
went to Rudy?
[Abihai:] I went to his place because I knew that I
was going be –- be questioned by the Feds and IA again to
testify against Feso Malafau.
[Abihai’s Counsel:] So let’s say they question you
and you say I’m not going to talk, does that take the rat
target off your back? . . . Let’s say you don’t, I mean,
let’s say that what happened happened, they catch you in
three weeks, okay. You’re back in custody. The Feds come
to see you or take you out. If people find out about that
conversation, does it matter whether you said I’ll be a rat
or I’m not going talk, does it matter, or do you always
have the rat target?
[Abihai:] It matters.
[Abihai’s Counsel:] How are you going to tell people
and prove to them I kept my mouth shut?
[Abihai:] Like I said, if I went stay long enough to
stay out and the case was over I wouldn’t be able to
testify against them.
Before closing arguments, the circuit court instructed the
jury that Abihai had raised the affirmative defense of “choice
of evils.” It then stated that the defense consisted of five
elements, which “the defendant must prove . . . by a
preponderance of the evidence. This means that the defendant
must prove that it is more likely than not, or more probable
than not, that each element of ‘choice of evils’ occurred.” The
circuit court also instructed the jury that,
[i]f you unanimously find that the defendant has not proven
one or more of the elements of “choice of evils” by a
preponderance of the evidence, then you must find the
defendant guilty of Escape in the Second Degree. [F]or any
element which you decide the defendant has not proven by a
preponderance of the evidence, your vote must be unanimous
on that element.
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If you are unable to reach a unanimous agreement as
to whether “choice of evils” has been proved or not been
proved, then a verdict may not be returned on Escape in the
Second Degree.
In closing arguments, the State argued that Abihai had
failed to provide evidence that he met the fifth element of the
choice of evils defense:7
When you look at element No. 5, did he promptly
report to the proper authorities when he obtained a
position of safety from the immediate threat? He didn’t
call HPD. He didn’t call the sheriffs. He didn’t call
[Papaliʻi]. He didn’t call Laumaka at all as you heard from
Officer Morn . . . . He didn’t call [Manager Yoda]. You
know, he didn’t even call Mr. Mahelona. If by a stretch
you could deem him a proper authority. He didn’t call any
of these authorities let alone promptly.
Abihai’s counsel stated that it was “tough” for them to meet the
fifth element of the choice of evils defense because “he never
turned himself in. They had to catch him.” On February 9,
2017, the jury returned a guilty verdict on Abihai’s escape in
the second degree charge.
The circuit court held a sentencing hearing on June 14,
2017. DPS had submitted a certificate of detention regarding
Abihai’s presentence detention8 indicating 1032 days of credit
7 See note 4, supra.
8 DPS’s Corrections Administration Policy and Procedures Policy No.
Cor.05.01 effective December 2, 2009 concerns “Certificate of Pre-Sentence
Credits,” and states its “Purpose” under section 1.0 as follows:
To implement the statutory requirements set forth in
[HRS §] 706-[671], in a consistent and timely manner. The
statute requires that all time spent in custody in relation
to the charge on which a defendant is sentenced shall be
credited toward that sentence as pre-sentence credit.
Furthermore, the party having custody of the defendant
shall supply a certificate indicating all the pre-sentence
credit, to the court prior to sentencing.
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from Abihai’s June 29, 2014 arrest until April 25, 2017.9
Abihai’s counsel indicated Abihai would be appealing his
conviction and would not be addressing the court, and requested
that Abihai’s prison term be made to run concurrently with the
sentence he was already serving, with credit for time served.
The State requested that Abihai be sentenced to a five-year term
for the escape conviction, to be imposed consecutive to his
existing life sentence.
The circuit court then ordered that Abihai’s five-year
sentence be served concurrent to his life sentence, and that he
receive credit for time served. In response, the State argued
that Abihai was not entitled to be given credit for time served
before his conviction. The circuit court then ordered further
briefing.
Right after the June 14, 2017 hearing, the circuit court
entered a judgment of conviction and sentence, attaching the DPS
certificates of detention along with a mittimus committing
Abihai to the custody of DPS.
The State then filed a memorandum regarding presentence
detention credit on June 19, 2017, and Abihai filed a responsive
memorandum on June 25, 2017. The circuit court then conducted
9 DPS also submitted another certificate for one day of credit for April
8, 2015, but this date is apparently included in the first certificate.
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a further sentencing hearing on June 28, 2017. The circuit
court agreed with the State, ruling that based on the plain
language of HRS § 706-671(3) (2014), Abihai was not entitled to
presentence detention credit. The circuit court ordered that
Abihai be given credit only from the June 14, 2017 sentencing
date.
C. ICA Proceedings
On July 12, 2017, Abihai filed a notice of appeal.
Abihai’s opening brief alleged two points of error: (1) that
trial counsel was ineffective for substantially impairing
Abihai’s choice of evils defense; and (2) that the circuit court
misconstrued HRS § 706-671 when it denied Abihai credit for time
served before sentencing.
The ICA entered a SDO on July 19, 2018 which affirmed the
circuit court’s judgment of conviction and sentence. State v.
Abihai, CAAP-XX-XXXXXXX (App. July 19, 2018) (SDO). Regarding
Abihai’s ineffective assistance of counsel claim, the ICA first
noted that under State v. Wakisaka, 102 Hawaiʻi 504, 513-14, 78
P.3d 317, 326-27 (2003),
[t]he defendant has the burden of establishing ineffective
assistance of counsel and must meet the following two part
test: 1) that there were specific errors or omissions
reflecting counsel’s lack of skill, judgment, or diligence;
and 2) that such errors or omissions resulted in either the
withdrawal or substantial impairment of a potentially
meritorious defense.
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Abihai, SDO at 2. The ICA concluded Abihai could not
demonstrate that any alleged errors or omissions of his trial
counsel resulted in the withdrawal or substantial impairment of
a potentially meritorious defense. Abihai, SDO at 3-4. The ICA
noted that in a choice of evils defense involving escape, five
elements must be proven.10 Abihai, SDO at 4. The ICA stated
that because there was no evidence in the record regarding one
of the elements, that Abihai promptly reported to the proper
authorities when he had attained a position of safety from the
immediate threat after escaping Laumaka, Abihai could not prove
the requisite fifth element of the choice of evils defense. Id.
Therefore, the ICA concluded that Abihai failed to establish
that his trial counsel was ineffective. Id.
Regarding credit for time served, the ICA concluded that
under the plain language of HRS § 706-671(3), because Abihai had
been serving a life term of imprisonment for his unrelated
felony conviction prior to escaping Laumaka, “[a]fter being
taken back into custody on June 29, 2014, Abihai continued to
serve time on his life imprisonment sentence for his prior
felony convictions unrelated to his escape conviction.” Abihai,
SDO at 5. Therefore, the ICA determined that the circuit court
did not err in denying credit for Abihai’s time served from June
10 See note 4, supra.
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29, 2014 (the date he was returned to custody) to June 14, 2017
(the date he was sentenced for the escape conviction) for his
subsequent escape conviction. Id.
The ICA entered its judgment on appeal on September 6,
2018.
III. Standards of Review
A. Ineffective Assistance of Counsel
The burden of establishing ineffective assistance of
counsel rests upon the appellant. His burden is twofold:
First, the appellant must establish specific errors or
omissions of defense counsel reflecting counsel’s lack of
skill, judgment or diligence. Second, the appellant must
establish that these errors or omissions resulted in either
the withdrawal or substantial impairment of a potentially
meritorious defense.
State v. Antone, 62 Haw. 346, 348-49, 615 P.2d 101, 104 (1980)
(citations and footnote omitted).
In evaluating whether defense counsel’s omission deprived a
defendant of a potentially meritorious defense, this court
considers “the possible, rather than the probable, effect” of
the error. Maddox v. State, 141 Hawaiʻi 196, 205, 407 P.3d 152,
161 (2017) (quoting Wilton v. State, 116 Hawaiʻi 106, 119, 170
P.3d 357, 370 (2007)).
B. Statutory Interpretation
Statutory interpretation is a question of law reviewable de
novo. When construing statutes, the court is governed by the
following rules:
First, the fundamental starting point for statutory
interpretation is the language of the statute itself.
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Second, where the statutory language is plain and
unambiguous, our sole duty is to give effect to its plain
and obvious meaning. Third, implicit in the task of
statutory construction is our foremost obligation to
ascertain and give effect to the intention of the
legislature, which is to be obtained primarily from the
language contained in the statute itself. Fourth, when
there is doubt, doubleness of meaning, or indistinctiveness
or uncertainty of an expression used in a statute, an
ambiguity exists.
When there is ambiguity in a statute, the meaning of
the ambiguous words may be sought by examining the context,
with which the ambiguous words, phrases, and sentences may
be compared, in order to ascertain their true meaning.
Moreover, the courts may resort to extrinsic aids in
determining legislative intent, such as legislative
history, or the reason and spirit of the law.
See Citizens Against Reckless Dev. v. Zoning Bd. of Appeals, 114
Hawaiʻi 184, 193-94, 159 P.3d 143, 152-53 (2007) (internal
citations omitted).
IV. Discussion
Abihai presents two questions on certiorari: (1) whether
the ICA erred in finding that his trial counsel was not
ineffective; and (2) whether the ICA erred when it concluded
that HRS § 706-671 did not require the circuit court to give him
pretrial detention credit from his June 29, 2014 arrest to June
14, 2017. The two questions are discussed in turn.
A. We affirm Abihai’s conviction without prejudice to a
subsequent Hawaiʻi Rules of Penal Procedure Rule 40 petition
with respect to his ineffective assistance of counsel claim
With respect to the first question on certiorari, Abihai
argues that his trial counsel was ineffective. He alleges trial
counsel failed to do three specific things that led to a
substantial impairment of Abihai’s choice of evils defense: (1)
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question the federal officers about Abihai’s request to be
transferred; (2) question Officer Myers about the safety
procedures and precautions he took to protect Abihai; and (3)
point out that it was Abihai’s potential testimony against an
adult corrections officer, not against the USO family gang, that
posed a significant danger to Abihai.
The ICA rejected Abihai’s ineffective assistance claim on
the grounds that there was no evidence regarding the fifth
element of the choice of evils defense, which required that he
“promptly report[] to the proper authorities when [he] ha[d]
attained a position of safety from the [alleged] immediate
threat.” HRS § 703-302(3) sets out the choice of evils defense
to a prosecution for escape under HRS § 710-1021, and provides;
Choice of evils.
. . . .
(3) In a prosecution for escape under section 710-1020 or
710-1021, the defense available under this section is
limited to an affirmative defense consisting of the
following elements:
(a) The actor receives a threat, express or
implied, of death, substantial bodily injury,
or forcible sexual attack;
(b) Complaint to the proper prison authorities is
either impossible under the circumstances or
there exists a history of futile complaints;
(c) Under the circumstances there is no time or
opportunity to resort to the courts;
(d) No force or violence is used against prison
personnel or other innocent persons; and
(e) The actor promptly reports to the proper
authorities when the actor has attained a
position of safety from the immediate threat.
HRS § 703-302(3) (emphasis added). Pursuant to HRS § 701-115(2)
(2014), “[n]o defense may be considered by the trier of fact
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unless evidence of the specified fact or facts has been
presented . . . .”
The ICA erred in ruling that there was no evidence of the
fifth element. Abihai did not testify that when he arrived at
the paroled inmate’s apartment, he believed it to be safe.
Rather, when asked whether he felt he “had guarantees of . . .
safety” after arriving at the apartment, he responded in the
negative. He also testified that he thought he needed to “stay
[there] long enough . . . and the case [would be] over [and] I
wouldn’t be able to testify against them.” The circuit court
would have had no basis for instructing the jury on the choice
of evils defense if there had been no evidence of the fifth
element. Thus, the ICA erred in ruling on Abihai’s ineffective
assistance of counsel claim on the basis that there was no
evidence of the fifth element.
With respect to a defendant’s assertion of ineffective
assistance of counsel on a direct appeal, we have held:
[No]t every trial record is sufficiently developed to
determine whether there has been ineffective assistance of
counsel; indeed, a defendant is often only able to allege
facts that, if proved, would entitle [them]11 to relief.
Therefore, we hold that where the record on appeal is
insufficient to demonstrate ineffective assistance of
counsel, but where: (1) the defendant alleges facts that if
proven would entitle [them] to relief, and (2) the claim is
not patently frivolous and without trace of support in the
record, the appellate court may affirm defendant’s
conviction without prejudice to a subsequent Rule 40
petition on the ineffective assistance of counsel claim.
11 “They, them, and their” are used as singular pronouns when (1) the
gender identity of a person referred to is unknown or immaterial; or (2)
those are the pronouns of a specific person.
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State v. Silva, 75 Hawaiʻi 419, 439, 864 P.2d 583, 592-93
(1993) (footnote omitted).
In this case, the record on appeal is insufficient to
determine whether there has been ineffective assistance of
counsel. We therefore affirm Abihai’s conviction, but
without prejudice to a subsequent Rule 40 petition on the
ineffective assistance of counsel claim.
B. The circuit court erred in denying Abihai credit for time
served on his subsequent escape conviction, not from
June 14, 2017, but from March 17, 2015, when bail was set
on the escape charge
Abihai’s second question on certiorari requires us to
interpret HRS § 706-671 subsections (1) and (3) (2014), which
provide as follows:
Credit for time of detention prior to sentence; credit for
imprisonment under earlier sentence for same
crime. (1) When a defendant who is sentenced to
imprisonment has previously been detained in any State or
local correctional or other institution following the
defendant’s arrest for the crime for which sentence is
imposed, such period of detention following the defendant’s
arrest shall be deducted from the minimum and maximum terms
of such sentence. The officer having custody of the
defendant shall furnish a certificate to the court at the
time of sentence, showing the length of such detention of
the defendant prior to sentence in any State or local
correctional or other institution, and the certificate
shall be annexed to the official records of the defendant’s
commitment.
. . . .
(3) Notwithstanding any other law to the contrary, when a
defendant is convicted for a crime committed while serving
a sentence of imprisonment on a separate unrelated felony
conviction, credit for time being served for the term of
imprisonment imposed on the defendant for the separate
unrelated felony conviction shall not be deducted from the
term of imprisonment imposed on the defendant for the
subsequent conviction.
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Abihai argues that credit for time served is mandatory
under HRS § 706-671(1). Abihai argues that, pursuant to
subsection (1), he is entitled to presentence detention credit
for 1082 days for the time period from June 29, 2014, when he
was initially arrested for escape, until June 14, 2017, his
sentencing date.12 The State asserts Abihai is not entitled to
any presentence detention credit based on HRS § 706-671(3),
which was added by the legislature in 2012. The circuit court
and ICA agreed with the State.
We apply the rules of statutory interpretation to the
parties’ competing arguments. First, the fundamental starting
point for statutory interpretation is the language of the
statute itself. Second, where the statutory language is plain
and unambiguous, our sole duty is to give effect to its plain
and obvious meaning.
1. Application of the plain language of HRS § 706-671(1)
to Abihai’s case
We first address HRS § 706-671(1). Based on its plain
language, a person is entitled to presentence detention credit
if (1) the person is a defendant (2) sentenced to imprisonment
(3) who had previously been detained in a State institution (4)
following the person’s arrest (5) for the crime for which
sentence was imposed.
12 We have not determined if this calculation is correct.
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Abihai claims credit from his June 29, 2014 arrest until
his June 14, 2017 sentencing based on HRS § 706-671(1). Abihai
clearly meets factors (1), (2), (3), and (4). With respect to
factor (5), however, the record reveals that Abihai was released
on his own recognizance on the escape charge after his June 29,
2014 arrest until March 17, 2015, when he was charged for escape
and rearrested on the escape charge, with bail set at $10,000.
In other words, after his June 29, 2014 arrest, and until his
March 17, 2015 rearrest on the escape charge with bail set at
$10,000, Abihai was held in custody in Halawa only on his
previous sentence for the other unrelated felony convictions.
Thus, from June 29, 2014 until March 17, 2015, Abihai was not
being detained “for the crime for which [the escape] sentence
[was] imposed.” Therefore, HRS § 706-671(1) does not entitle
Abihai to presentence detention credit for the entire time he
claims.
From March 17, 2015 until the June 14, 2017 sentencing
date, however, Abihai was held to answer on the escape charge,
with bail set at $10,000. See State v. Visintin, 143 Hawaiʻi
143, 146, 426 P.3d 367, 370 (2018). Thus, according to
HRS § 706-671(1), Abihai is entitled to presentence detention
credit.13
13 It is unclear how long Abihai was held, after his June 29, 2014 arrest
until he was released on his own recognizance pending investigation, until he
was charged with escape on March 17, 2015.
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The issue we must address is, however, whether, as
concluded by the circuit court and ICA, the plain and
unambiguous language of HRS § 706-671(3) eliminated Abihai’s
entitlement to presentence detention credit under
HRS § 706-671(3).
2. Application of the plain language of HRS § 706-671(3)
to Abihai’s case
According to the plain language of the third subsection of
HRS § 706-671, (1) notwithstanding any other law to the
contrary, (2) when a defendant (3) is convicted for a crime
committed (4) while serving a sentence of imprisonment on a
separate unrelated felony conviction, (5) credit for time being
served for the separate unrelated felony conviction (6) shall
not be deducted from the term of imprisonment imposed on the
defendant for the subsequent conviction.
In applying HRS § 706-671(3) to Abihai, it is necessary to
first determine whether factors (2) through (6) would eliminate
Abihai’s entitlement to presentence detention credit under
HRS § 706-671(1). If so, then HRS § 706-671(1) would be an
“other law to the contrary” to HRS § 706-671(3) under factor
(1), nullifying Abihai’s entitlement to credit for time served
under HRS § 706-671(1).
The circuit court and ICA reached the conclusion that
Abihai is not entitled to presentence detention credit based on
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the plain language of HRS § 706-671(3). We disagree. The plain
language of HRS § 706-671(3) does not eliminate Abihai’s
entitlement to presentence detention credit pursuant to
HRS § 706-671(1).
Although factors (2) through (4) of HRS § 706-671(3) are
met because (2) Abihai (3) was convicted for a crime committed
(4) while serving a sentence of imprisonment on a separate
unrelated felony conviction, the critical factor is factor (5),
and whether the presentence detention credit time Abihai
requests is “time being served for the separate unrelated felony
conviction.” The answer is no. The time Abihai was serving
from March 17, 2015 to June 14, 2017 was not just “time being
served for the separate unrelated felony conviction” but was
also “time being served for the escape.” Thus, Abihai was not
requesting that factor (5) “time being served for the separate
unrelated felony conviction” “be deducted from the term of
imprisonment imposed on [him] for the subsequent [escape]
conviction.”
Therefore, neither factors (5) nor (6) were triggered.
Accordingly, in this specific situation, HRS § 706-671(1) is not
an “other law to the contrary” to HRS § 706-671(3) under factor
(1).14
14 If bail had not been set and Abihai had been released on his own
recognizance pending trial and sentencing, then HRS § 706-671(3) would have
been triggered, because Abihai would not have been entitled to presentence
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As noted, the fundamental starting point for statutory
interpretation is the language of the statute itself and, where
the statutory language is plain and unambiguous, our sole duty
is to give effect to its plain and obvious meaning. Based on
its plain and unambiguous language, HRS § 706-671(3) was not
triggered in this situation. Further, due to the plain and
unambiguous language of HRS § 706-671 subsections (1) and (3),
it is not necessary or appropriate to resort to principles of
statutory interpretation applicable to ambiguous statutes.
The dissent misstates our analysis by asserting that our
“interpretation that [HRS] § 706-671(1) entitles Abihai to pre-
sentence detention credit creates a new rule [and] disregards
our precedent . . . .” It is actually the dissent that would
overrule precedent by ignoring this jurisdiction’s consistent
holdings that a defendant is entitled to credit for time served
in connection with the offense for which he is being sentenced.
The dissent cites to State v. Miller, 79 Hawaiʻi 194, 197, 900
P.2d 770, 773 (1995), State v. Kami, 71 Haw. 612, 801 P.2d 1206
(1990), and State v. Yamasaki, 91 Hawaiʻi 163, 164, 981 P.2d 720,
721 (App. 1999), as supportive of its position. None of these
cases, however, eliminated the fundamental requirement under
detention credit for the escape conviction pursuant to HRS § 706-671(1). We
also note that the circuit court sentenced Abihai to serve his five-year term
for escape concurrently with his life sentence for his previous felonies.
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HRS § 706-671(1) that a defendant be given presentence detention
credit when “detained in any State or local correctional or
other institution following the defendant’s arrest for the crime
for which sentence is imposed[.]” The defendants in these cases
cited by dissent were not entitled to presentence detention
credit because they were not so detained.15
Moreover, State v. Tauiliili, 96 Hawaiʻi 195, 29 P.3d 914
(2001), also cited to by the dissent, with State v. Garcia, 125
Hawaiʻi 429, 263 P.3d 709 (2010), in accord, actually supports
Abihai’s position. Tauiliili held that a defendant is entitled
to presentence detention credit on each of the cases for which a
defendant is sentenced to concurrent sentences. 96 Hawaiʻi at
199, 29 P.3d at 918. As noted, the circuit court sentenced
Abihai to serve his five-year sentence for the escape conviction
15 In Miller, this court held the defendant was not entitled to credit for
time served on a new charge because his “probation [on the previous burglary
conviction] had not been revoked when he was incarcerated on the separate
charge of second degree robbery that ultimately led to his conviction[,]” and
that “[t]hus, with respect to [his] newly imposed sentence for his earlier
burglary conviction, the circuit court properly denied him credit for time
served after his arrest for the subsequent offense.” 79 Hawaiʻi at 197, 900
P.2d at 773. Likewise, Kami held that “because probation was not revoked nor
a new sentence imposed . . . , no new sentence existed for which Defendant
could receive credit for the time he had served . . . .” 71 Haw. at 615, 801
P.2d at 1208. In Yamasaki, the ICA “conclude[d] that [HRS] § 706-671(1)
. . . does not afford a defendant the right to credit against the sentence
imposed . . . for a criminal conviction the time that the defendant spent in
prison, post-arrest and pre-sentence, as a consequence of a different
criminal charge and/or conviction.” 91 Hawaiʻi at 164, 981 P.2d at 721.
Thus, these cases are clearly distinguishable on their facts, and do not
affect Abihai’s entitlement to presentence detention credit pursuant to
HRS § 706-671 from March 17, 2015, when he was arrested and held on the
escape charge.
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concurrently with his life sentence for his previous
convictions.
The Model Penal Code and Commentaries § 7.09 at 306-07
(Official Draft and Revised Comments 1985)(“MPC”), cited to by
the dissent, which the ICA noted was the model for HRS § 706-671
in Yamasaki, 91 Hawaiʻi at 165, 981 P.2d at 722, also supports
Abihai’s position. As the dissent notes, the Explanatory Note
to MPC § 7.09(1) states, “[s]ubsection (1) establishes the
defendant’s right to credit against his ultimate sentence for
time served prior to the imposition of the sentence as a result
of the same criminal charge.”
Abihai was charged with and arrested for the escape charge
on March 17, 2015 with bail set at $10,000 on the same date,
which remained unposted. We have made it clear that Abihai is
not entitled to credit for time served from June 29, 2014, when
he was taken into custody on the original sentence on the
unrelated charges until his March 17, 2015 charge, arrest, and
setting of bail on the escape charge. Abihai remained in
custody on the escape charge, however, from March 17, 2015 until
he was sentenced on the same escape charge on June 14, 2017.
Pursuant to the plain language of HRS § 706-671, our case law,
and the MPC’s Explanatory Note, Abihai is entitled to credit to
time served from March 17, 2015 until June 14, 2017, as
presentence time served in connection with the offense for which
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the defendant is being sentenced and as “credit against his
ultimate sentence for time served prior to the imposition of the
sentence as a result of the same criminal charge.”
Finally, although we conclude there is no ambiguity in the
statutory language, even if an ambiguity existed, the rule of
lenity would require this court to construe HRS § 706-671
strictly, and in favor of the defendant. See State v. Bayly,
118 Hawaiʻi 1, 15, 185 P.3d 186, 200 (2008) (“[W]here a criminal
statute is ambiguous, it is to be interpreted according to the
rule of lenity. Under the rule of lenity, the statute must be
strictly construed against the government and in favor of the
accused.”) (citation omitted).16
V. Conclusion
Based on the foregoing, the circuit court’s June 14, 2017
judgment of conviction and sentence is affirmed, but the ICA’s
September 6, 2018 judgment on appeal is vacated, and this matter
is remanded to the circuit court for calculation of Abihai’s
presentence detention credit consistent with this opinion.17
Harrison L. Kiehm /s/ Sabrina S. McKenna
for petitioner
/s/ Richard W. Pollack
David L. Williams
for respondent /s/ Michael D. Wilson
16 We also note that, in this case, denial of presentence detention credit
would in effect have punished Abihai for exercising his constitutional right
to a jury trial of his peers, as his first trial ended in a mistrial on
November 28, 2016, extending the time of his pretrial detention.
17 See notes 12 and 13, supra.
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