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Electronically Filed
Supreme Court
SCWC-XX-XXXXXXX
01-JUN-2020
01:22 PM
SCWC-XX-XXXXXXX
IN THE SUPREME COURT OF THE STATE OF HAWAIʻI
________________________________________________________________
STATE OF HAWAIʻI,
Respondent/Plaintiff-Appellee,
vs.
JAMES THOMPSON,
Petitioner/Defendant-Appellant.
________________________________________________________________
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-XX-XXXXXXX; CR. NO. 97-0-2401)
SUMMARY DISPOSITION ORDER
(By: Nakayama, Acting C.J., McKenna, Pollack, and Wilson, JJ., and
Circuit Judge Browning, in place of Recktenwald, C.J., recused)
Petitioner/Appellant-Defendant James Thompson
(“Thompson”) challenges the credit given him at resentencing for
time he served subsequent to his 2001 conviction and sentencing
for seven counts of sexual assault in the first degree (Hawaiʻi
Revised Statutes (“HRS”) § 707-730(1)(a) (1993)); two counts of
attempted sexual assault in the first degree (HRS §§ 705-500
(1993) and 707-730(1)(a)); eight counts of sexual assault in the
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third degree (HRS § 707-732(1)(e)(1993)); two counts of
kidnapping (HRS § 707-720(1)(d)(1993)); and one count of sexual
assault in the fourth degree (HRS § 707-733(1)(a)(1993)). For
his original sentence in 2001, Thompson received nine terms of
life with the possibility of parole, two twenty-year terms,
eight ten-year terms, and a single one-year term to be served
concurrently for a maximum sentence of life with the possibility
of parole (“2001 sentence”).
Following a successful habeas corpus petition, the
United States District Court for the District of Hawai‘i (“U.S.
District Court”) vacated Thompson’s 2001 sentence because the
sentences comprising the 2001 sentence were extended beyond the
statutory maximum based on facts found by a judge, not a jury,
in violation of the United States Supreme Court’s holding in
Apprendi v. New Jersey, 530 U.S. 466 (2000). Thompson v.
Thomas, No. CIV. 08-00218 SOM, 2012 WL 3777143, at *1 (D. Haw.
Aug. 29, 2012).1 At resentencing in 2017, the Circuit Court of
the First Circuit of the State of Hawaiʻi (“circuit court”)
imposed a consecutive sentence comprised of four increments:
three twenty-year terms and a single one-year term to be served
consecutively, for a total sentence of sixty-one years
1
On March 18, 2014, the order of the U.S. District Court was affirmed by
the Ninth Circuit Court of Appeals. Thompson v. Thomas, 564 Fed. Appx. 316,
2014 WL 1017044 (9th. Cir. 2014) (Mem.).
2
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imprisonment (“2017 resentence”). The circuit court indicated
that Thompson’s credit for time served under the 2001 sentence
would be applied only once against the first of his three
consecutive twenty-year terms.
On appeal, Thompson correctly contends his 2017
resentencing failed to give him full credit for time he served
on his 2001 sentence. The credit was applied only to the sixty-
one year combined total sentence rather than to each of the
offenses comprising his 2017 resentence.2 At the time of his
2
The following chart compares Thompson’s 2001 sentence and 2017
resentence:
3
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resentencing in 2017, Thompson had served seventeen years on all
of his concurrent sentences.3
Under HRS § 706-671(2), “when a judgment of conviction
or a sentence is vacated and a new sentence is thereafter
imposed upon the defendant for the same crime, the period of
detention and imprisonment theretofore served shall be deducted
from the minimum and maximum terms of the new sentence.” The
reference in HRS § 706-671(2) to “minimum and maximum terms”
denotes the minimum term set by the Hawaiʻi paroling authority
pursuant to HRS § 706-6694 and the statutory maximum term for
each count. State v. Martin, 71 Haw. 73, 74, 783 P.2d 292, 293
(1989) (explaining that “[t]hese words ‘minimum and maximum
terms’ refer to the minimum term of imprisonment to be
determined by the paroling authority, see HRS § 706–669 (1985),
3
Thus, Thompson had fully served his eight (concurrent) ten-year
extended sentences for counts 9-11, 15-17, 20 and 21, as well as his
(concurrent) one year sentence on count 13; he had served seventeen years of
his (concurrent) twenty-year extended sentences for counts 12 and 22; and he
had served seventeen years with respect to his nine (concurrent) terms of
life with the possibility of parole.
4
HRS § 706-669 provides in relevant part:
When a person has been sentenced to an indeterminate or an
extended term of imprisonment, the Hawaiʻi paroling
authority shall, as soon as practicable but no later than
six months after commitment to the custody of the director
of the department of [public safety] hold a hearing, and on
the basis of the hearing make an order fixing the minimum
term of imprisonment to be served before the prisoner shall
become eligible for parole.
4
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and the maximum length of imprisonment, determined under [the
relevant penal statute] for defendant[’s conviction.]”).
Although HRS § 706-671(2) does not specify how time
served under concurrent sentences should be credited against
consecutive sentences imposed on resentencing, it is significant
that the statute requires that the defendant be credited with
time served with respect to the “same crime.” Id. When the
defendant has accrued time served against multiple crimes, the
wording of HRS § 706-671(2) suggests that on resentencing for
those same crimes, the defendant is entitled to credit against
each of those same crimes, rather than only once against the
aggregate of the consecutive sentences. See State v. Brant, 72
Haw. 230, 232, 813 P.2d 854, 855 (1991) (noting that “nothing in
the statute allows a court discretion to decide whether to
credit time already served for the same offense. Section 706-
671 clearly mandates credit for time served in detention or
imprisonment when a sentence is vacated and [a] new sentence is
thereafter imposed.”).5
5
Subsection (1) of HRS § 706-671 governs credit for time served by the
defendant from the time of arrest until the imposition of the initial
sentence. HRS § 706-671(1) provides in relevant part:
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
(continued . . .)
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(continued . . .)
deducted from the minimum and maximum terms of such
sentence.
We interpreted and applied subsection (1) in State v. Tauiliili, where
we held that “credit for presentence imprisonment is properly granted against
only the aggregate of the consecutive sentence terms.” 96 Hawaiʻi 195, 197–
99, 29 P.3d 914, 916–18 (2001)(emphasis added). We have not, however,
previously had occasion to decide whether the statutory mandate contained in
subsection (2) of HRS § 706-671 requires that, on resentencing after the
original sentence has been vacated, credit for time served is properly
granted against only the aggregate of the consecutive sentence terms.
In Tauiliili, we relied on the Commentary to HRS § 706-671 in reaching
our decision that credit for presentence imprisonment should only be applied
once against the aggregate of the consecutive sentences:
The commentary to HRS § 706-671 states in relevant part
that “[t]his section provides for a result which the Code
deems fair” and “provides for some equalization ... between
those defendants who obtain pre-sentence release and those
who do not.” Statutes giving credit for presentence
confinement were designed to ensure equal treatment of all
defendants whether or not they are incarcerated prior to
conviction. [In Re Atiles, 33 Cal.3d 805, 808, 662 P.2d
910, 911 (Cal. 1983)]. [G]ranting presentence credit,
therefore, seeks to place an in-custody criminal defendant
who cannot afford to post bail in the same position as his
counterpart with bail money. Nissel v. Pearce, 307 Or. 102,
764 P.2d 224, 226 (1988).
Tauiliili at 198–99, 29 P.3d at 917–18. This rationale – i.e., the need “to
place an in-custody criminal defendant who cannot afford to post bail in the
same position as his counterpart with bail money” – is plainly inapplicable
to subsection (2) of HRS § 706-671. Subsection (2) does not involve credit
for time served in presentence detainment, rather it deals with credit for
time served after the imposition of the vacated sentence, and thus there is
no risk that applying credit for time served against each of the consecutive
sentences rather than only against the aggregate of the consecutive sentences
“would [] defeat the purpose of ‘equalization’ noted in the commentary to HRS
§ 706-671 (1993).” Id. at 199, 29 P.3d at 918.
The issue presented by the instant case therefore is readily
distinguishable from the issue we decided in Tauiliili. Id. Thompson’s case
deals with “credit for imprisonment under [an] earlier sentence for same
crime[,]” while Tauiliili dealt with “[c]redit for time of detention prior to
sentence” (“presentence credit”). Compare HRS § 706-671(1), with HRS § 706-
671(2).
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Moreover, an interpretation of subsection (2) of HRS §
706-671 that applied credit for time served only once against
the aggregate of consecutive sentences imposed on resentencing
would raise very serious double jeopardy issues. The double
jeopardy clause in article I, section 10 of the Hawai‘i
Constitution6 affords the same protections as does the United
States Constitution’s Fifth Amendment guarantee7 that no person
“be subject for the same offence to be twice put in jeopardy of
life or limb[.]” State v. Taparra, 82 Hawai‘i 83, 89, 919 P.2d
995, 1001 (Ct. App. 1996). The United States Supreme Court held
in North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072,
2076 (1969), that “[t]he Constitution was designed as much to
prevent the criminal from being twice punished for the same
6
Article I, section 10, of the Hawaiʻi Constitution provides in relevant
part:
No person shall be held to answer for a capital or
otherwise infamous crime, unless on a presentment or
indictment of a grand jury or upon a finding of probable
cause after a preliminary hearing held as provided by law,
except in cases arising in the armed forces when in actual
service in time of war or public danger; nor shall any
person be subject for the same offense to be twice put in
jeopardy[.]
7
The Fifth Amendment to the United States Constitution provides in
relevant part:
No person shall be held to answer for a capital or
otherwise infamous crime, unless on a presentment or
indictment of a Grand Jury, except in cases arising in the
land or naval forces, or in the Militia, when in actual
service in time of War or public danger; nor shall any
person be subject for the same offence to be twice put in
jeopardy of life or limb[.]
7
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offence as from being twice tried for it” and the guarantee
against double jeopardy “is violated when [imprisonment] already
exacted for an offense is not fully ‘credited’ in imposing
sentence upon a new conviction for the same offense.” Taparra
at 89, 919 P.2d at 1001 (quoting Pearce, 395 U.S. at 718). As
such “[t]he time already served in prison by a defendant must be
credited ‘by subtracting [it] from whatever new sentence is
imposed.’” Id. (quoting Pearce, 395 U.S. at 719).
Absent credit for time already served on each count of
his 2001 sentence, Thompson would be subjected to
unconstitutional “multiple punishments” for the same offense.
Taparra at 89, 919 P.2d at 1001. As the United States Supreme
Court observed in Pearce, “the constitutional guarantee against
multiple punishments for the same offense absolutely requires
that punishment already exacted must be fully ‘credited’ in
imposing sentence . . . for the same offense.” Pearce, 395 U.S.
at 718-19. Accordingly, Thompson must “absolutely” receive full
credit for the time that he served on each count of the 2001
sentence. Specifically, the time Thompson served under his 2001
sentence (approximately seventeen years) must be credited
against the statutory maximum term for each count under which he
was resentenced in 2017. HRS § 706-671(2). Anything less would
be a violation of Thompson’s constitutional rights under the
double jeopardy clause of article I, section 10 of the Hawaiʻi
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Constitution and the Fifth Amendment to the United States
Constitution.
Following the setting aside of Thompson’s 2001
sentence by the U.S. District Court, the circuit court at
resentencing in 2017 imposed new sentences for counts Thompson
had fully served under the 2001 sentence. With respect to count
13 of the 2001 sentence (one-year imprisonment for misdemeanor
sex assault 4, served concurrently with all other counts),
Thompson had completed the sentence by the time of his
resentencing in 2017. However, at resentencing in 2017,
Thompson was again sentenced to one-year incarceration on count
13, with the sentence to be served consecutively to the three
twenty-year consecutive terms. Similarly, the circuit court at
resentencing in 2017 reimposed sentences for eight class C
felony counts stemming from his 2001 convictions.8 The statutory
maximum sentence of five years’ incarceration was imposed for
each of the eight counts;9 per the 2001 extended sentence, he had
received ten years of incarceration for each count—all eight to
8
Sex assault 3 (HRS § 707-732(1)(e)(1993)) in counts 9-11, 15-17, and
20-21.
9
HRS § 706-660 provides that the term of imprisonment for a class C
felony is five years. HRS § 706-660(1)(b).
9
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be served concurrently.10 Likewise, for the class B felonies in
counts 12 and 22, Thompson received extended terms of twenty
years for each count in 2001 and the statutory maximum of ten
years’ incarceration at resentencing in 2017. Thus, by the time
Thompson was resentenced in 2017 he had fully served the maximum
one-year statutory sentence for the misdemeanor in count 13, the
five-year statutory maximum sentences for class C felonies in
counts 9-11, 15-17, and 20-21, and the two statutory maximum
sentences of ten years for the class B felonies in counts 12 and
22.
As explained above, Thompson was resentenced in 2017
for nine class A felony offenses (counts 1-4, 6-8, 14, and 19).
The statutory maximum sentence for a class A felony is “an
indeterminate term of imprisonment of twenty years” and the
“minimum length of imprisonment shall be determined by the
Hawai‘i paroling authority in accordance with section 706-669.”
HRS § 706-659.11 Thus, under the 2001 sentence, Thompson had
10
HRS § 706-661 provides that an extended term of imprisonment for a
class C felony is ten years. HRS § 706-661(4).
11
Thompson’s approximately seventeen years credit also must be deducted
from his minimum sentence as calculated by the Hawaiʻi paroling authority
pursuant to HRS § 706-669. It appears that Thompson’s appeal was filed prior
to the Hawaiʻi paroling authority completing its calculation of Thompson’s
minimum sentence and the calculation is therefore not in the record.
Although the record does not reflect the Hawaiʻi paroling authority’s
calculations for the minimum sentence Thompson must serve under his 2017
resentence, Thompson is correct that the credit he accrued on each count of
(continued . . .)
10
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served seventeen years of the twenty-year statutory maximum in
counts 1-8, 14, and 19.
Accordingly, at the time of resentencing, Thompson had
fully served the statutory maximum sentences for all but his
class A felony sentences, for which he had three years remaining
on the total indeterminate term of each sentence. See HRS §
706-671(2). Thus, in his 2017 resentence, Thompson had three
years of incarceration remaining on counts 1-4 and 6-8 (ordered
to run concurrently); three years’ incarceration remaining on
count 14 to be served consecutively; and three years remaining
on count 19 to be served consecutively. In total, after
correctly calculating the credit for time served under HRS §
706-671(2), Thompson had an aggregate maximum remaining sentence
of approximately nine years at the time of resentencing on April
28, 2017. Because the sentences under counts 1-4 and 6-8 run
consecutive to count 14 and consecutive to count 19, the
approximately three years that have elapsed since Thompson’s
resentencing are counted only once against the aggregate of his
consecutive sentences. As such, Thompson has approximately six
(continued . . .)
his 2001 concurrent sentences must be applied to the minimum term set by the
Hawai‘i paroling authority for each count.
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years remaining on his aggregate maximum term of imprisonment on
the date this disposition was issued.
Inasmuch as the ICA’s September 26, 2018 memorandum
opinion implicitly affirmed the circuit court’s calculation of
Thompson’s credit for time served under his 2001 sentence
without accurately applying HRS § 706-671(2), we vacate the
ICA’s judgment on appeal and remand the case to the circuit
court for an accurate calculation of his credit for time served.
DATED: Honolulu, Hawaiʻi, June 1, 2020.
Jon N. Ikenaga /s/ Paula A. Nakayama
for petitioner/defendant-
appellant /s/ Sabrina S. McKenna
Loren J. Thomas /s/ Richard W. Pollack
for respondent/plaintiff-
appellee /s/ Michael D. Wilson
/s/ R. Mark Browning
12