State v. Smith.

FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
09-MAR-2021
08:13 AM
Dkt. 129 OP

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

---o0o---

STATE OF HAWAI#I, Plaintiff-Appellee,
v.
SCOTT BRIAN SMITH, Defendant-Appellant

NO. CAAP-XX-XXXXXXX

APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT
(CRIMINAL NUMBER 2PC990000325)

MARCH 9, 2021

LEONARD, PRESIDING JUDGE, HIRAOKA AND WADSWORTH, JJ.

OPINION OF THE COURT BY HIRAOKA, J.
In 2001, a jury convicted Defendant-Appellant Scott
Brian Smith (Smith) of assault, terroristic threatening, sexual
assault, and kidnapping. The Circuit Court of the Second Circuit
sentenced him to concurrent and consecutive prison terms totaling
45 years (Original Sentence).1 He appealed. We affirmed. State
v. Smith, 106 Hawai#i 365, 105 P.3d 242 (App. 2004) (Smith I).

1
The Honorable Shackley F. Raffetto presided over Smith's trial and
original sentencing.
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This appeal arises from two post-conviction motions
filed by Smith in his criminal case, Hawai#i Judiciary Informa-
tion Management System (JIMS) case 2PC990000325 (the Criminal
Case). On December 27, 2017, Smith filed a motion seeking review
of his consecutive sentences under Hawaii Revised Statutes (HRS)
§ 706-668.5(3) (Motion to Review Consecutive Sentence).2 On
November 21, 2018, the circuit court3 entered "Findings of Fact
and Conclusions of Law on Defendant's Motion to Review
Consecutive Sentence Under HRS §[ ]706-668.5" (Order Denying
Motion to Review Consecutive Sentence). The circuit court denied
Smith's motion but found the sentence imposed for the kidnapping
conviction to have been illegal. The circuit court directed
Smith to file a petition for relief under Rule 40 of the Hawai#i
Rules of Penal Procedure (HRPP).
As directed, on January 2, 2019, Smith filed an HRPP
Rule 40 petition. A new JIMS case, 2PR191000001, was opened as a
result of that filing. The circuit court granted the petition
and ordered that Smith be resentenced at a further hearing in the
Criminal Case.

2
At that time HRS § 706-668.5 (Supp. 2016) provided, in relevant
part:
§ 706-668.5 Multiple sentence of imprisonment. . . .

. . . .
(3) For terms of imprisonment imposed prior to
June 18, 2008, the department of public safety shall post
written notice in all inmate housing units and the facility
library at each correctional facility for a period of two
months and send written notice to the defendant no later
than January 1, 2016, that shall include but not be limited
to:
(a) Notice that the department of public safety may
recalculate the multiple terms of imprisonment
imposed on the defendant; and
(b) Notice of the defendant's right to have the
court review the defendant's sentence.
3
The Honorable Peter T. Cahill presided over all subsequent
proceedings at issue in this appeal.

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On May 2, 2019, in the Criminal Case, the circuit court
entered the "Judgment; Conviction and Sentence; Notice of Entry"
(2019 Sentence). The 2019 Sentence increased the sentence for
kidnapping (Count 8) from 10 to 20 years, but ran the kidnapping
sentence concurrently with the 20-year sentences for Smith's
other class A felony offenses (Counts 3-6). The sentence for the
remaining B felony (Count 1) remained consecutive to the
concurrent sentences for the A felonies. The 5-year sentences on
the class C felonies ran concurrently with each other and
concurrently with the consecutive sentences on Counts 1, 3-6, and
8. That resulted in Smith's total sentence being reduced from 45
to 30 years.
On July 1, 2019, in the Criminal Case, Smith filed a
new motion to reduce his sentence based on his medical condition
(Motion to Reduce Sentence). The State opposed the motion.
Smith filed reply and supplemental memoranda. The circuit court
entered the "Order Denying Defendant's Rule 35(b) Motion" on
September 20, 2019 (Order Denying Motion to Reduce Sentence).
In this appeal Smith contends that the circuit court
erred when it: (1) reviewed but failed to alter his consecutive
sentences; (2) recalculated his illegal sentence; (3) failed to
resentence him to concurrent terms; and (4) denied his motion to
reduce his sentence for medical reasons. For the reasons
explained below, we affirm the Order Denying Motion to Review
Consecutive Sentence, vacate the 2019 Sentence, affirm the Order
Denying Motion to Reduce Sentence, and remand for resentencing
consistent with this opinion.

BACKGROUND

On June 26, 1999, from sometime after midnight until
after sunrise, Smith threatened, assaulted, kidnapped, and
repeatedly raped the complaining witness (CW), Smith's former
girlfriend, in the presence of their 2½-year-old child. CW was
taken to a hospital emergency room, where a doctor found that her

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right eye socket and left ring finger were fractured, her eyes
were severely bruised and nearly swollen shut, and she had
contusions on both ears. She also had lacerations on her right
thigh, right arm, chin, and left thumb, all of which appeared to
have been made with a sharp instrument. CW remained hospitalized
for four days.4

PROCEDURAL HISTORY

The Criminal Case

Smith was charged by complaint with attempted murder
(Count 1), terroristic threatening (Count 2), sexual assault
(Counts 3-7), kidnapping (Count 8), use of deadly or dangerous
weapon (Count 9), and unauthorized control of propelled vehicle
(Count 10).5 During trial the State introduced evidence
recovered from CW's residence, including a utility knife found
beneath the child's bed; a woman's pantie that was shredded and
soaked with blood; and a comforter, a cloth towel, and paper
towels, all stained with blood. CW testified that she used paper
towels to wipe herself after Smith's sexual assaults. Photo-
graphs showing blood and slash marks on the walls of the child's
bedroom and blood on a living room couch and the hallway walls
were also admitted into evidence.
The jury found Smith guilty of the following offenses:

Count 1: assault in the first degree under HRS § 707–710 as
an included offense of attempted murder;6

4
A more detailed description of the facts and trial proceedings is
contained in Smith I, 106 Hawai#i at 369-72, 105 P.3d at 246-49.
5
The circuit court granted Smith's oral motion for judgment of
acquittal on Count 10.
6
HRS § 707–710 (1993) provided:
§ 707–710 Assault in the first degree. (1) A person
commits the offense of assault in the first degree if the
person intentionally or knowingly causes serious bodily
injury to another person.

(continued...)

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Count 2: terroristic threatening in the first degree under
HRS § 707–716(1)(d);7

Counts 3, 4, 5, and 6: sexual assault in the first degree
under HRS § 707–730(1)(a);8

Count 8: kidnapping under HRS § 707-720(1)(d);9 and

6
(...continued)
(2) Assault in the first degree is a class B felony.
7
HRS § 707–716 (1993) provided, in relevant part:
§ 707–716 Terroristic threatening in the first degree.
(1) A person commits the offense of terroristic threatening
in the first degree if the person commits terroristic
threatening:

. . . .
(d) With the use of a dangerous instrument.

(2) Terroristic threatening in the first degree is a
class C felony.
8
HRS § 707–730 (1993) provided, in relevant part:

§ 707–730 Sexual assault in the first degree. (1) A
person commits the offense of sexual assault in the first
degree if:

(a) The person knowingly subjects another person to
an act of sexual penetration by strong
compulsion[.]

. . . .

(2) Sexual assault in the first degree is a class A
felony.
9
HRS § 707-720 (1993) provided, in relevant part:

§ 707-720 Kidnapping. (1) A person commits the
offense of kidnapping if the person intentionally or
knowingly restrains another person with intent to:
. . . .
(d) Inflict bodily injury upon that person or
subject that person to a sexual offense[.]
. . . .
(2) Except as provided in subsection (3), kidnapping
is a class A felony.

(3) In a prosecution for kidnapping, it is a defense
which reduces the offense to a class B felony that the
defendant voluntarily released the victim, alive and not
(continued...)

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Count 9: use of a deadly or dangerous weapon in commission
of a crime under HRS § 134–51(b).10

The jury found Smith not guilty on Count 7 (sexual assault). A
judgment of acquittal on Count 7 was entered on June 25, 2001.
The jury also answered the following interrogatories:

With regard to Count Eight, Kidnapping, please answer the
following questions:
1. Has the prosecution proven beyond a reasonable doubt
that the Defendant did not release [CW] voluntarily?
X Yes No

2. Has the prosecution proven beyond a reasonable doubt
that the Defendant did not release [CW] alive and not
suffering from serious or substantial bodily injury:
[sic]

X Yes No

3. Has the prosecution proven beyond a reasonable doubt
that the Defendant did not release [CW] in a safe
place prior to trial?

X Yes No

On November 20, 2002, circuit court judge Shackley F.
Raffetto entered the Original Sentence:

TWENTY (20) YEARS, CTS. 3, 4, 5, 6
TERMS TO RUN CONCURRENT TO EACH OTHER
TEN (10) YEARS, CTS. 1, 8
TERMS TO RUN CONSECUTIVE TO EACH OTHER
FIVE (5) YEARS, CTS. 2, 9
TERMS TO RUN CONCURRENT TO EACH OTHER
. . . .

COUNTS 3, 4, 5, AND 6 TO RUN CONSECUTIVE TO COUNTS 1 AND 8
AND COUNTS 2 AND 9, FOR A TOTAL OF FORTY-FIVE (45) YEARS.

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(...continued)
suffering from serious or substantial bodily injury, in a
safe place prior to trial.
10
HRS § 134–51 (1993) provided, in relevant part:
§ 134-51 Deadly weapon; prohibitions; penalty. . . .

(b) Whoever knowingly possesses or intentionally
uses or threatens to use a deadly or dangerous weapon while
engaged in the commission of a crime shall be guilty of a
class C felony.

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Direct Appeal

Smith appealed. He contended, among other things, that
the trial court abused its discretion by sentencing him to
extended terms of imprisonment. Smith I, 106 Hawai#i at 378, 105
P.3d at 255. We noted that Smith was sentenced to consecutive,
not extended, terms of imprisonment pursuant to HRS § 706-
668.5,11 after the trial court considered the sentencing factors
set forth in HRS § 706-606.12 We rejected Smith's other

11
HRS § 706-668.5 (1993) provided:
§ 706-668.5 Multiple sentence of imprisonment.
(1) If multiple terms of imprisonment are imposed on a
defendant at the same time, or if a term of imprisonment is
imposed on a defendant who is already subject to an
unexpired term of imprisonment, the terms may run
concurrently or consecutively. Multiple terms of
imprisonment imposed at the same time run concurrently
unless the court orders or the statute mandates that the
terms run consecutively. . . .
(2) 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.
12
HRS § 706-606 (1993) provided:
HRS § 706-606 Factors to be considered in imposing a
sentence. 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;
(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;
(continued...)

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contentions and affirmed the Original Sentence. Smith's
application for writ of certiorari was denied. State v. Smith,
106 Hawai#i 477, 106 P.3d 1120 (Table) (2005).

First Rule 40 Petition

On July 29, 2013, Smith filed a petition13 under HRPP
Rule 40.14 Smith contended: (1) he was denied the right to an
impartial judge; (2) he received ineffective assistance of
counsel at trial, during sentencing, and in his direct appeal;
(3) he was deprived of discovery and access to evidence; (4) the
jury was tampered with; and (5) the trial court erroneously
instructed the jury about reasonable doubt. The circuit court
denied the petition. Smith appealed. We affirmed, concluding
that all of Smith's claims were either previously raised and
ruled upon or were without merit. Smith v. State, No. CAAP-13-
0005313, 2015 WL 4608127, at *3 (Haw. App. July 31, 2015) (SDO)

12
(...continued)
(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.
13
The petition was docketed in the Second Circuit as S.P.P.
No. 13–1-0008 and is available in JIMS as case 2PR131000008.
14
HRPP Rule 40 provides, in relevant part:

POST-CONVICTION PROCEEDING.
(a) Proceedings and grounds. . . .

(1) FROM JUDGMENT. At any time but not prior to final
judgment, any person may seek relief under the
procedure set forth in this rule from the judgment of
conviction, on the following grounds: (i) that the
judgment was obtained or sentence imposed in violation
of the constitution of the United States or of the
State of Hawai#i; (ii) that the court which rendered
the judgment was without jurisdiction over the person
or the subject matter; (iii) that the sentence is
illegal; (iv) that there is newly discovered evidence;
or (v) any ground which is a basis for collateral
attack on the judgment.

(Reformatted.)

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(Smith II). Smith's application for writ of certiorari was
denied. Smith v. State, No. SCWC-XX-XXXXXXX, 2015 WL 6966318
(Haw. Nov. 10, 2015).

Motion to Recalculate Sentence

On October 27, 2015 (while the application for writ of
certiorari in Smith II was pending), Smith filed a motion to
recalculate his multiple terms of imprisonment under Act 194 of
the 2015 legislative session.15 The motion was filed in the
special prisoner proceeding created when Smith filed the First
Rule 40 Petition, addressed in Smith II. The circuit court noted
that the judgment on appeal in Smith II had been entered, but
stated it was "unable to ascertain whether it has jurisdiction"
because it did not know whether Smith had petitioned for
certiorari. The circuit court denied the motion "without
prejudice to the issue being raised in the proper proceeding."
Smith appealed. We affirmed, holding:

Smith filed his [motion to recalculate sentence] at a time
when [Smith II] was on appeal. Therefore, the Circuit Court
was correct that Smith's, [sic] filing of the Motion to
Recalculate Sentence . . . was not "proper." . . . In any
event, the Circuit Court denied the Motion to Recalculate
Sentence without prejudice to Smith raising his Act 194
claim in another proceeding. Because Smith is free to file
an HRPP Rule 40 petition raising a claim under Act 194, and
given the muddled record relating to his Act 194 claim, we
conclude that the Circuit Court did not err in denying
without prejudice Smith's Motion to Recalculate Sentence.

Smith v. State, No. CAAP-XX-XXXXXXX, 2017 WL 384096, at *3 (Haw.
App. Jan. 27, 2017) (SDO) (Smith III).

15
Act 194 amended HRS § 706-668.5 effective July 1, 2015, by adding
subsection (3). 2015 Haw. Sess. Laws Act 194, § 1 at 587, available at
https://www.capitol.hawaii.gov/session2015/bills/GM1295_.pdf.

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Second Rule 40 Petition

On May 31, 2017, Smith filed a second petition for
post-conviction relief.16 Smith contended that: (1) the circuit
court's imposition of consecutive sentences violated his right to
a fair trial, and the court failed to consider all statutory
sentencing factors or state its reason for imposing multiple
consecutive sentences; (2) the court improperly "based the
severity of sentencing on [Smith's] failure to take responsi-
bility and admit guilt"; (3) the court failed to instruct the
jury on the possibility of merger of Count 1 (assault) and Count
8 (kidnapping); and (4) appellate counsel was ineffective for
failing to previously raise issues regarding the omission of a
merger instruction and the circuit court's "penalizing [Smith]
for the court's lack of remorse perception[.]" Smith v. State,
No. CAAP-XX-XXXXXXX, 2020 WL 2790498, at *2 (Haw. App. May 29,
2020) (mem.) (Smith IV) (brackets in original). On December 12,
2017, the circuit court denied the petition without a hearing.
Smith's motion for reconsideration was also denied. Smith
appealed.
In that appeal we took judicial notice of the separate
proceeding pending on Smith's December 27, 2017 Motion to Review
Consecutive Sentence (at issue in this appeal). Smith IV, 2020
WL 2790498, at *5. We held that Smith's argument that his
sentence was illegal was moot because of the pendency of the
Motion to Review Consecutive Sentence. Id. However, we held
that the circuit court's failure to instruct the jury about the
possible merger of Counts 1 (assault) and 8 (kidnapping) was
plain error. We remanded the case for the State to either
"remedy the merger-instruction error by dismissing one of the two
counts that could potentially merge or, if the State chooses, the
State may retry Smith on both counts." Id. at *10. The judgment
on appeal was entered on July 2, 2020. Smith did not petition

16
The second Rule 40 petition was docketed in the Second Circuit as
S.P.P. No. 17-1-0008 and is available in JIMS as case 2PR171000008.

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for certiorari. We take judicial notice that the State has not
yet initiated proceedings on remand. See Rule 201, Hawai#i Rules
of Evidence, Chapter 626, Hawaii Revised Statutes (2016). JIMS
case 2PC990000325.

Motion to Review
Consecutive Sentence

On December 27, 2017, Smith filed the Motion to Review
Consecutive Sentence. He contended that: (1) he had a right to
have his sentence reviewed under HRS § 706-668.5(3);17 and
(2) his consecutive sentences were illegal because the sentencing
court did not adequately explain its rationale for imposing
consecutive sentences, as required by State v. Barrios, 139
Hawai#i 321, 389 P.3d 916 (2016). The Motion to Review
Consecutive Sentence cited neither HRPP Rule 3518 nor HRPP
Rule 40.
On November 21, 2018, the circuit court entered the
Order Denying Motion to Review Consecutive Sentence. Circuit
court judge Peter T. Cahill found, among other things:

11. The Court finds that two separate issues arise,
the first involving a request to review the consecutive
sentencing under the statute [HRS § 706-668.5(3)], and
secondly, a separate issue of HRPP Rule 40 illegality of the
sentence.

17
See note 2.
18
HRPP Rule 35 provides, in relevant part:

(a) Correction of Illegal Sentence. The court may
correct an illegal sentence at any time and may correct a
sentence imposed in an illegal manner within the time
provided herein for the reduction of sentence. A motion
made by a defendant to correct an illegal sentence more than
90 days after the sentence is imposed shall be made pursuant
to Rule 40 of these rules. . . .

(b) Reduction of Sentence. The court may reduce a
sentence within 90 days after the sentence is imposed[.]
. . . 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.

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12. The Court finds that under [an HRS § 706-668.5]
motion to review, the trial court only need go back and look
at the judgment and review whether the sentencing judge
specified consecutive sentences. The court finds that the
sentencing judge intended to impose consecutive sentencing.

13. The Court finds in a motion to review, the legal
reasoning of State v. Barrios, 139 [Hawai#i] 321, 389 P.3d
916 (2016), may not be applied retroactively to evaluate the
sentencing court's considerations.[19]
14. However, the court finds that there are clear
errors in the original sentence imposed and the sentence is
illegal because it was based on something contrary to the
jury's decision.

. . . .
18. The court may correct an illegal sentence at any
time. Under HRPP Rule 35 a defendant must file a motion to
correct an illegal sentence within 90 days of the sentence
being imposed.

19. A motion made by a defendant to correct an
illegal sentence more than 90 days after the sentence is
imposed shall be made pursuant to HRPP Rule 40.

20. A defendant is entitled to have all of the
issues raised in this proceeding reviewed under HRPP
Rule 40.

21. As defendant's court-appointed counsel,
[counsel] is directed to refile his motion as an HRPP rule
[sic] 40 proceeding.

(emphasis added) (underscoring in original). Judge Cahill
concluded:

1. The Court holds that a review under HRS § 706-
668.5 involves the court simply looking at whether the
defendant's judgment specified that the sentences were to
run consecutive [sic].

Judge Cahill held that the consecutive sentences originally
imposed by Judge Raffetto were legal because Judge Raffetto
"intended to impose consecutive sentencing."
However, Judge Cahill found that the Original Sentence
was illegal in part, because Smith's kidnapping conviction should

19
Smith does not challenge this finding, which is actually a
conclusion of law and consistent with State v. Hussein, 122 Hawai#i 495, 510,
229 P.3d 313, 328 (2010) ("Consequently, after the filing date of the judgment
herein, circuit courts must state on the record at the time of sentencing the
reasons for imposing a consecutive sentence.") (underscoring added).

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have been sentenced as a class A felony, not as a class B felony,
based on the jury's answers to interrogatories. Attached to
Smith's Motion to Review Consecutive Sentence was a copy of the
transcript of proceedings on November 20, 2002, Smith's original
sentencing hearing. The transcript stated:

THE COURT: Thank you, counsel. Very well, then, the
Court is doing [sic] to go ahead and impose sentence as
follows.

[Deputy Prosecuting Attorney]: Could I say one thing?
The pre-sentence report -- Page 13 of the pre-sentence
report reflects the kidnapping charge is a Class B felony,
but that is not accurate. The jury found facts for Class A,
so this is a Class A felony kidnapping.

. . . .
THE COURT: I am not sure of that. Okay. I was the
trial judge in the case, so I am very familiar with the
facts that were produced at trial and based upon that[.]

Judge Raffetto erroneously sentenced the kidnapping count as a
class B, not a class A, felony. Judge Cahill directed Smith to
refile the Motion to Review Consecutive Sentence as an HRPP Rule
40 petition.

Third Rule 40 Petition

On January 2, 2019, as directed by the circuit court,
Smith filed another HRPP Rule 40 petition.20 Smith contended
that the Original Sentence was illegal, and asked to be
resentenced.
On March 20, 2019, the circuit court entered findings
of fact, conclusions of law, and an order granting the petition.
Smith did not appeal from that order. The circuit court found,
among other things:

8. After jury trial, Smith was sentenced upon
convictions for: four counts of sexual assault in the first
degree ("A" felony, 20 year term); Assault 1 and
Kidnap[p]ing (each as [sic] "B" felony, 10 year term); and

20
A new JIMS case, 2PR191000001, was opened as a result of the
filing.

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Terroristic Threatening 1 and Use of a Deadly Weapon (each
[a] "C" felony, five year term). There was an issue as to
whether the Kidnapping conviction was an "A" or "B" grade
conviction.
9. The trial court imposed multiple consecutive
sentences. [Smith] would serve all of the "A" felony
charges for sexual assault concurrently for a 20 year
sentence. The "B" felony charges of 10 years would be
served consecutively for 20 years. The trial court ruled
that only the "A" felony charges were concurrent, and all
other charge levels with respect to each other, were
consecutive.

10. On the judgment, it provides the "C" felony
charges would be served concurrent for 5 years. The
kidnapping would be a "B" felony, and the two "B" felonies
would be consecutive to each other. Also, each of the
different grade level terms would be consecutive to each
other such that [Smith} was given a 45 year sentence
(20+10+10+5).
11. The Kidnapping conviction should have been an "A"
felony because the jury answered interrogatories for the
kidnapping verdict answering yes to each question that
[Smith] did not release CW voluntarily; without serious or
substantial bodily injury; or in a safe place.
12. The court finds that there is an inconsistency
between the jury's findings and the trial verdict; the
sentencing transcript and the judgment as to the grade of
the Kidnapping conviction; and application of consecutive
sentencing with regards to the "C" felonies and other
levels, depending upon whether the Kidnapping conviction was
an "A" felony, and/or there was only one "B" felony
conviction and only 10 years consecutive (since there would
be only one grade level charge).

. . . .

15. The court finds that the "B" kidnapping was
erroneous, and then when it was run consecutive to the other
"B" felony, such was a clear illegal sentence because
[Smith] was not found guilty of "B" felony kidnapping and
the sentence was based upon something other than the jury's
finding.
16. The Court finds that another inconsistency is if
Kidnapping was an "A" felony, whether it would be concurrent
like the other "A" felonies, such that it would change the
overall consecutive sentence (with only one "B" felony
providing only "one" 10 year term in that grade of offense).
17. The Court finds that the trial court's sentence
at sentencing hearing, [sic] does not match the judgment
entered following conviction and the Court finds this
sentence illegal.

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The circuit court concluded:

4. When the Court finds something in the record that
is clearly erroneous with regards to how the sentence was
determined (calculated), the trial court must review the
potentially illegal sentence.
5. The Court holds that an inconsistency in the
sentence when based upon something other than the jury's
finding, gives rise to an illegal sentence.

. . . .
7. The jury found that the kidnapping conviction was
an "A" felony, yet the trial court treated it as a "B"
felony. Since "A" felonies were to be sentenced concur-
rently with each other, there is a discrepancy because there
would be only one "B" felony and no consecutive sentencing
between two "B" felonies. Consecutive sentencing between
the different grade levels would be 20 + 10 +[ ]5, which is
different than the 45 imposed by the sentencing court.

8. The Court holds that the trial court sentence at
sentencing is inconsistent and/or does not reconcile with
the judgment entered and the jury's findings, and does not
clearly denote the consecutive sentences.

9. The Court holds that the sentence of [Smith] is
illegal and the Petition is granted.

10. The sentence will be vacated simultaneously with
a re-sentencing with an amended judgment of conviction upon
Defendant defendant shall be resentenced in the underlying
criminal case at a further hearing indicated below.

(original text stricken, and handwriting (shown in bold italics)
added, by circuit court).

Resentencing

On May 2, 2019, the circuit court entered the 2019
Sentence in the Criminal Case. The sentence for kidnapping was
increased from 10 to 20 years because of the jury's finding that
Smith committed a class A felony rather than a class B felony, to
run concurrently with the sentence for the other class A felonies
(Counts 3-6 for sexual assault). The 10-year term for the sole
remaining class B felony (Count 1 for assault in the first
degree) was to run consecutively to the concurrent 20-year terms
for the class A felonies. The 5-year sentences on the class C
felonies (Counts 2 and 9) would run concurrently with each other

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and concurrently with the consecutive sentences on Counts 1, 3-6,
and 8. That resulted in Smith's total sentence being reduced
from 45 to 30 years. Smith filed a notice of appeal on July 1,
2019.

Motion to Reduce Sentence

Also on July 1, 2019, in the Criminal Case, Smith filed
his Motion to Reduce Sentence because of his medical condition,
pursuant to HRPP Rule 35(b). The State opposed the motion.
Smith filed reply and supplemental memoranda. The circuit court
entered the Order Denying Motion to Reduce Sentence on
September 20, 2019. Smith filed an amended notice of appeal the
same day.

APPELLATE JURISDICTION

"An appellate court has an independent obligation to
ensure jurisdiction over each case[.]" State v. Diaz, 128
Hawai#i 215, 222, 286 P.3d 824, 831 (2012) (cleaned up). "The
right of appeal in a criminal case is purely statutory and exists
only when given by some constitutional or statutory provision."
State v. Nicol, 140 Hawai#i 482, 485-86, 403 P.3d 259, 262-63
(2017) (citations omitted).
HRS § 641-11 (2016) provides for appeals from circuit
court criminal proceedings:

Any party aggrieved by the judgment of a circuit court
in a criminal matter may appeal to the intermediate
appellate court, subject to chapter 602, in the manner and
within the time provided by the rules of court. The
sentence of the court in a criminal case shall be the
judgment. All appeals shall be filed with the clerk of the
supreme court and shall be subject to one filing fee.

(Underscoring added.)

In keeping with the identification of the "sentence"
as the "judgment" as relating to issues of timing rather
than scope, appellate courts of this jurisdiction have not
interpreted HRS § 641-11 solely by considering whether or
not the relevant decision contained an order of punishment
or other formal pronouncement of guilt. Rather, . . . in

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determining whether dispositions are subject to appeal under
the statute, our courts have focused the inquiry on whether
the relevant order terminated the proceedings in the case
and left nothing further to be accomplished by the lower
court.

Nicol, 140 Hawai#i at 492, 403 P.3d at 269 (underscoring added)
(citations omitted). Thus, "considerations of finality are the
primary focus in resolving questions of appealability under the
[criminal appeal] statute." Id. at 487, 403 P.3d at 264. In
addition, Rule 4 of the Hawai#i Rules of Appellate Procedure
(HRAP) provides, in relevant part:

(b) Appeals in criminal cases.

(1) TIME FOR FILING. In a criminal case, the notice of
appeal shall be filed within 30 days after entry of the
judgment or order appealed from.

Smith contends that the circuit court erroneously
concluded (in the Order Denying Motion to Review Consecutive
Sentence) that HRS § 706-668.5 requires only that the reviewing
court determine whether consecutive sentencing was specifically
imposed. Judge Cahill found that Judge Raffetto intended to
impose consecutive sentencing. However, Judge Cahill also
determined that the Original Sentence was illegal because Count 8
(kidnapping) had been sentenced as a class B felony, when it
should have been sentenced as a class A felony based on the
jury's answers to interrogatories. Judge Cahill directed Smith
to refile the motion as an HRPP Rule 40 petition.
The Order Denying Motion to Review Consecutive Sentence
did not terminate the proceedings in the Criminal Case because
the illegal sentence issue remained to be determined, albeit in
an HRPP Rule 40 proceeding. The illegal sentence issue was
resolved by entry of the 2019 Sentence on May 2, 2019. Smith
obtained an extension of time until July 2, 2019, to file a
notice of appeal. His notice of appeal was filed on July 1,
2019. The timely appeal from the 2019 Sentence also brought up
for review the Order Denying Motion to Review Consecutive

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Sentence. See State v. Adam, 97 Hawai#i 475, 482, 40 P.3d 877,
884 (2002) (stating the general rule that appeal from final
judgment brings up for review all preceding interlocutory
orders).
Smith also contends that the circuit court abused its
discretion by denying his Motion to Reduce Sentence. The Order
Denying Motion to Reduce Sentence was entered on September 20,
2019. Smith filed an amended notice of appeal the same day. But
"an amended notice of appeal relates back to the notice of appeal
it purports to amend, it does not appeal an order, judgment, or
decree entered subsequent to the notice of appeal it purports to
amend." Enos v. Pac. Transfer & Warehouse, Inc., 80 Hawai#i 345,
355–56, 910 P.2d 116, 126–27 (1996) (citation omitted). The
Order Denying Motion to Reduce Sentence was a separately
appealable post-judgment order. See State v. Kong, No. CAAP-15-
0000066, 2016 WL 6997646, at *2 (Haw. App. Nov. 29, 2016) (mem.),
vacated on other grounds, 140 Hawai#i 103, 398 P.3d 692 (2017)
(holding that post-judgment order denying HRPP Rule 35(b) motion
to reduce sentence is appealable in its own right). Smith should
have filed a new notice of appeal within 30 days from
September 20, 2019. He did not.
However, "[i]n numerous cases, and under varying cir-
cumstances, [the supreme] court and the ICA have heard appeals in
criminal cases despite the fact that the attorney failed to
perfect the appeal, or that the appeal was not timely filed." In
re RGB, 123 Hawai#i 1, 60, 229 P.3d 1066, 1125 (2010) (citing
cases). "The rationale underlying some of the . . . cases was
that the defendant was denied due process due to counsel's
failure to perfect the appeal." Id. Accordingly, we have
jurisdiction to review Smith's appeal from the Order Denying
Motion to Reduce Sentence, notwithstanding his counsel's
imperfect attempt to file an appeal. Cf. (Villados v. State, 148
Hawai#i 386, 477 P.3d 826 (2020) (in HRPP Rule 40 proceeding,
where ineffectiveness of counsel resulted in petitioner-

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defendant's untimely application for writ of certiorari in direct
appeal from conviction, petitioner-defendant should be entitled
to re-petition for certiorari in direct appeal)); (State v.
Uchima, 147 Hawai#i 64, 464 P.3d 852 (2020) (asserting juris-
diction over untimely certiorari application where counsel
admitted ineffective assistance by failing to effectuate timely
filing)).

STANDARDS OF REVIEW

Sentencing
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 com-
mitted 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. Kong, 131 Hawai#i 94, 101, 315 P.3d 720, 727 (2013)
(citations omitted). "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." Id. (citation
omitted).

Findings of Fact

We review findings of fact under the "clearly errone-
ous" standard. Birano v. State, 143 Hawai#i 163, 181, 426 P.3d
387, 405 (2018). A finding of fact is clearly erroneous when the
record lacks substantial evidence to support the finding or when,
despite some evidence to support the finding, we are left with
the definite and firm conviction in reviewing all of the evidence
that a mistake has been committed. Id. "[S]ubstantial evidence"
is "credible evidence which is of sufficient quality and
probative value to enable a person of reasonable caution to

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support a conclusion." In re Grievance Arbitration Between State
of Hawai#i Organization of Police Officers and County of Kaua#i,
135 Hawai#i 456, 462, 353 P.3d 998, 1004 (2015) (citations omit-
ted).

Conclusions of Law

We review conclusions of law under the "right/wrong"
standard. Estate of Klink ex rel. Klink v. State, 113 Hawai#i
332, 351, 152 P.3d 504, 523 (2007). A conclusion of law that is
supported by the trial court's findings of fact and reflects an
application of the correct rule of law will not be overturned.
Id.

DISCUSSION

Smith contends: (1) the circuit court erroneously
concluded that HRS § 706-668.5 requires only that the reviewing
court examine the original judgment to determine whether the
sentencing court specifically imposed consecutive sentences;
(2) the 2019 Sentence erroneously imposed a new sentence for
kidnapping that was more severe than the Original Sentence;
(3) the circuit court "abused its discretion in imposing a
consecutive sentence, and should have entered a concurrent
sentence on all charges" under Barrios; and (4) the circuit court
abused its discretion by denying the Motion to Reduce Sentence.

1. Order Denying Motion to
Review Consecutive Sentence

Smith's first point of error challenges finding of fact
no. 12 and conclusion of law no. 1 in the Order Denying Motion to
Review Consecutive Sentence:

12. The Court finds that under [an HRS § 706-668.5]
motion to review, the trial court only need go back and look
at the judgment and review whether the sentencing judge
specified consecutive sentences. The court finds that the
sentencing judge intended to impose consecutive sentencing.

. . . .

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1. The Court holds that a review under HRS § 706-
668.5 involves the court simply looking at whether the
defendant's judgment specified that the sentences were to
run consecutive [sic].

(Emphasis added.)
This point of error requires that we review the history
of HRS § 706-668.5 ("Multiple sentence of imprisonment"). When
the statute was enacted in 1986, it provided, in relevant part:

(1) If multiple terms of imprisonment are imposed on a
defendant at the same time, or if a term of imprisonment is
imposed on a defendant who is already subject to an
unexpired term of imprisonment, the terms may run concur-
rently or consecutively. Multiple terms of imprisonment
imposed at the same time run concurrently unless the court
orders or the statute mandates that the terms run consecu-
tively. Multiple terms of imprisonment imposed at different
times run consecutively unless the court orders that the
terms run concurrently.

HRS § 706-668.5 (Supp. 1986) (bold italics added.)
The statute was amended in 2008:

(1) If multiple terms of imprisonment are imposed on a
defendant, whether at the same time[,] or at different
times, or if a term of imprisonment is imposed on a
defendant who is already subject to an unexpired term of
imprisonment, the terms may run concurrently or consecu-
tively. Multiple terms of imprisonment [imposed at the same
time] run concurrently unless the court orders or the
statute mandates that the terms run consecutively.
[Multiple terms of imprisonment imposed at different times
run consecutively unless the court orders that the terms run
concurrently.]

2008 Haw. Sess. Laws Act 193, § 1 at 714 (additions look like
this, [deletions look like this]) (bold italics added); see also
HRS § 706-668.5 (Supp. 2008). The amendment took effect on
June 18, 2008. Id. § 4.
In 2015, the legislature passed Act 194, which added a
new subsection (3) to HRS § 706-668.5:

(3) For terms of imprisonment imposed prior to
June 18, 2008, the department of public safety shall post
written notice in all inmate housing units and the facility
library at each correctional facility for a period of two
months and send written notice to the defendant no later
than January 1, 2016, that shall include but not be limited
to:

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(a) Notice that the department of public safety may
recalculate the multiple terms of imprisonment imposed
on the defendant; and

(b) Notice of the defendant's right to have the court
review the defendant's sentence.

2015 Haw. Sess. Laws Act 194, § 1 at 587, available at
https://www.capitol.hawaii.gov/slh/Years/SLH2015/SLH2015_Act194.pdf.
The legislative committee report states:

The purpose and intent of this measure is to:
(1) Require multiple terms of imprisonment imposed
on a defendant prior to June 18, 2008, to run
concurrently unless the court orders or statute
mandates that the terms run consecutively[.]

. . . .

Your Committees find that from 1986 through 2008,
section 706-668.5, Hawaii Revised Statutes (HRS), provided
multiple terms of imprisonment imposed at different times to
run consecutively unless the court specifically ordered that
the terms run concurrently. On June 18, 2008, Act 193,
Session Laws of Hawaii 2008 (Act 193), was enacted, and
section 706-668.5, HRS, was amended to provide multiple
terms of imprisonment to run concurrently unless the court
orders or the statute mandates that the terms run consecu-
tively. Accordingly, for multiple terms of imprisonment,
the default sentencing changed from the terms running con-
secutively to running concurrently unless the court or
statute specifically mandated otherwise. Due to concerns
regarding inconsistencies in determining whether multiple
imprisonment sentences were to be served concurrently or
consecutively, this measure attempts to treat defendants
sentenced to multiple terms of imprisonment prior to
June 18, 2008, the same as those defendants sentenced on and
after June 18, 2008.

S. Stand. Comm. Rep. No. 281, in 2015 Senate Journal, at 919,
available at
https://www.capitol.hawaii.gov/session2015/CommReports/SB213_SD1_SSCR2
81_.pdf (bold italics added). The conference committee report
similarly states:

This measure attempts to bring parity to the treatment of
defendants sentenced to multiple terms prior to the effec-
tive date of Act 193, which is June 18, 2008, and those
sentenced to multiple terms after that date while providing
defendants with adequate notice regarding the possibility of
their multiple terms of imprisonment being recalculated by
the Department and their rights to have the court review
their sentences.

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Conf. Comm. Rep. No. 158, in 2015 Senate Journal, at 796, 2015
House Journal, at 1399, available at
https://www.capitol.hawaii.gov/session2015/CommReports/SB213_CD1_CCR15
8_.pdf.
Judge Cahill's statements during Smith's resentencing
hearing were consistent with the legislature's stated intent
behind Act 194:

Isn't the whole purpose of [HRS § 706-668.5] . . .
because the DPS [Department of Public Safety] and the
paroling authority does [sic] not have access to the
transcripts unless they're ordered . . . it's the judgment
that controls what the sentence is.
Prior to 2008, if the . . . judgment did not specify
concurrent sentences or was left blank, the default was that
the defendant was sentenced to consecutive sentence [sic].
That's the law, right? That's what was done.

. . . .

. . . But then they changed the law and said that the
default position will now be, is if the judgment does not
specify consecutive or concurrent, the default will be that
it is concurrent sentences.

And when the new statute comes in in 2015, the
legislature says to these folks that are in prison, oh,
you've got to give them notice because your sentence may be
reviewed or recalculated by DPS, but there's no guidance,
there's nothing to indicate what's going to be done. What
are they supposed to look at?
Well, the only thing that DPS could be looking at is
the judgment. And it appears that . . . the legislature
said, look, there might be an area of unfairness here
because someone sentenced . . . on June 17th, 2008, where
the judgment didn't specify what the sentence would be,
would get consecutive sentences, and someone sentenced on
June 19th, the day after the statute went into effect in
2008, and it didn't specify, would get concurrent sentences,
even if the -- even if the crimes were exactly the same. As
a matter of fact, even if it was the same defendant and the
same judge, it would just be automatic.

And I think they said, well, look, that doesn't look
to be too fair, so you can go back and have a Court review.
. . . [I]sn't really the function at this point is to
go back and look at the judgment, which in this case it's
consecutive, but then look at what the sentencing judge did
to determine whether [the judge] specified consecutive
sentences, and if [the judge] did, then that's the only
review [the defendant]'s entitled to under this new law, not
under a Rule 40 illegality of sentence? I think that's a
separate issue.

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(Bold italics added.)
Smith was originally sentenced on November 20, 2002, to
multiple terms of imprisonment. At that time HRS § 706-668.5
stated that the terms were to run concurrently "unless the court
orders . . . that the terms run consecutively." HRS § 706-668.5
(1993). The Original Sentence entered by Judge Raffetto
specified:

COUNTS 3, 4, 5, AND 6 TO RUN CONSECUTIVE TO COUNTS 1 AND 8
AND COUNTS 2 AND 9, FOR A TOTAL OF FORTY-FIVE (45) YEARS.

Judge Cahill reviewed the Original Sentence and correctly found
that Judge Raffetto ordered Smith to serve consecutive sentences.
Finding of fact no. 12 was not clearly erroneous.
We also hold that conclusion of law no. 1 correctly
applied Act 194 to the facts of this case, where the Original
Sentence specified which of the multiple terms of imprisonment
were to run consecutively.21 Smith was not serving consecutive
prison terms by default under the pre-June 18, 2008 version of
HRS § 706-668.5; the Original Sentence specifically ordered the
consecutive terms. The Order Denying Motion to Review
Consecutive Sentence is affirmed.

2. 2019 Sentence

Smith acknowledges that the jury found he did not
voluntarily release CW, not suffering from serious or substantial
bodily injury, in a safe place prior to trial, and that count 8
(kidnapping) should accordingly have been sentenced as a class A
felony (20 years) rather than a class B felony (10 years).22 He

21
We express no opinion about how a court reviewing an Act 194
petition should proceed in a case in which multiple terms of imprisonment were
imposed before June 18, 2008, but the judgment did not specify whether the
terms were to be served consecutively or concurrently with a previously
imposed sentence.
22
The State did not challenge the Original Sentence, possibly
because Judge Raffetto imposed the 10-year class B felony kidnapping sentence
to be served consecutively with the 20-year class A felony sentences and to
(continued...)

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makes several arguments about why Judge Cahill erred by
increasing his kidnapping sentence from 10 years to 20 years.
The one we find dispositive is based upon HRS § 706-609 (2014).
That statute provides:

When a conviction or sentence is set aside on direct or
collateral attack, the court shall not impose a new sentence
for the same offense, or for a different offense based on
the same conduct, which is more severe than the prior
sentence.

HRS § 706–609 "prevents a sentencing court from issuing
a more severe sentence after the initial sentence has been set
aside upon review." State v. Samonte, 83 Hawai#i 507, 542, 928
P.2d 1, 36 (1996) (citing Keawe v. State, 79 Hawai#i 281, 289,
901 P.2d 481, 489 (1995)). The statute "reflects a strong policy
in favor of protecting a defendant's exercise of the right to
challenge [their] conviction or sentence by restricting the
sentencing court's discretion so as to guard against deterring or
chilling a defendant's exercise of the right to mount such a
challenge." Fukusaku v. State, 126 Hawai#i 555, 563, 273 P.3d
1241, 1249 (App. 2012). In Fukusaku we noted that:

The commentary to HRS § 706–609 explains that there
are three reasons for adopting this rule:

First, the only argument which can justify an increase
following a re-trial is that the original sentence was too
light, either because the first judge was too lenient or
because new facts have been presented. However, the only
class of persons who are vulnerable to this argument
consists of those who have exercised the right to challenge
their convictions. There is no basis for believing that
there exists any rational correspondence between this group
and those offenders who may indeed deserve an increase.
Second, the risk of a greater sentence as the result of the
assertion of the right of review necessarily acts as a
deterrent to the exercise of the right.

Third, a contrary position would require the difficult
inquiry into the motivation of the judge who imposed the new
sentence. Although it is clear that greater punishment
should not be inflicted on the defendant because [they have]
asserted [their] right to appeal, some judges have imposed

22
(...continued)
the other class B felony sentence (for assault).

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harsher sentences because of lack of sympathy with the
constitutional rights asserted by some defendants, and in a
frank attempt to minimize the numbers who will assert such
rights in the future. Therefore adopting a contrary
position would necessitate in every case a factual inquiry
to determine the motivation of the judge who imposed the new
sentence.

Id. at 562–63, 273 P.3d at 1248–49 (cleaned up and reformatted).
Here, Smith collaterally attacked the Original Sentence
based upon HRS § 706-668.5(3). Judge Cahill correctly found that
Judge Raffetto ordered Smith to serve consecutive sentences. In
so doing, however, Judge Cahill reviewed the transcript of
Smith's original sentencing hearing and concluded that Judge
Raffetto erroneously sentenced Smith to 10 years on the
kidnapping charge, rather than the 20 years that the jury's
interrogatory answers mandated. At the continued hearing on
Smith's Motion to Review Consecutive Sentence, Judge Cahill
stated:

Deputy Prosecuting Attorney Tengan, who tried this case, was
very diligent, pointed out to the judge that the jury
answered the question that the State had proved beyond a
reasonable doubt the three elements to make this an A kidnap
-- an A felony, not a B felony.
During the sentence, the judge said, well, I'm giving
[Smith] ten years on the kidnapping. [DPA] Tengan then says,
well, Judge, wait, the jury found this. And he said, well,
I sat through the trial and that's not what I remember.

Recollections fade and it was erroneous.

Judge Cahill correctly concluded that the erroneous sentence was
illegal. (State v. Delmondo, 67 Haw. 531, 533, 696 P.2d 344, 346
(1985) (noting when a sentence imposed does not comply with
statutory requirements, the sentence is illegal)); (State v. Fry,
61 Haw. 226, 229, 602 P.2d 13, 16 (1979) (holding that sentence
not conforming to statute was illegal)).
Under HRPP Rule 35(a), "[t]he court may correct an
illegal sentence at any time[.]" Judge Cahill's correction to
Smith's illegal sentence, however, conflicted with the plain
language of HRS § 706–609. Under HRS § 706-609, it was error for

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Judge Cahill to increase Smith's kidnapping sentence from 10 to
20 years after Smith collaterally attacked the Original Sentence.
We vacate the 2019 Sentence and remand for resentencing
consistent with this opinion.

3. Consecutive Sentences

"A sentencing court has discretion to order multiple
terms of imprisonment to run concurrently or consecutively.
Kong, 131 Hawai#i at 101, 315 P.3d at 727 (citing HRS § 706-668.5
(Supp. 2008)). Smith contends that Judge Cahill did not
"adequately explain [his] rationale for imposing consecutive
sentences." The supreme court has held that "a [sentencing]
court must state its reasons as to why a consecutive sentence
rather than a concurrent one was required." State v. Hussein,
122 Hawai#i 495, 509, 229 P.3d 313, 327 (2010). "[A] sentencing
court should explain its rationale for each consecutive sentence
in order to inform the defendant and appellate courts of the
specific factors underlying each sentence." Barrios, 139 Hawai#i
at 337, 389 P.3d at 932.
HRS § 706-606 (2014) 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;

(c) To protect the public from further
crimes of the defendant; and

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(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.

With respect to HRS § 706-606, the supreme court has also held:

[T]he sentencing court is not required to articulate and
explain its conclusions with respect to every factor listed
in HRS § 706-606. 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. Thus, the sentencing court is required to
articulate its reasoning only with respect to those factors
it relies on in imposing consecutive sentences.

Kong, 131 Hawai#i at 102, 315 P.3d at 728 (cleaned up).
When resentencing Smith, Judge Cahill explained:

This was a trial before a jury. I read the entire
transcript that [Smith's counsel] uploaded for his appeal.
I read the first day, I read the jury selection, the
testimony of every witness, the closing arguments. . . .

. . . .
This was a horrific crime. And the jury convicted
him. And I realize Mr. Smith has stood steadfast on some of
the matters that the jury convicted him of. But nonethe-
less, the conviction is there. It stood the test of an
appeal. And more importantly, it stood the test of time.
The child in this case was the child of the defendant
and the victim, [CW]. What as [sic] horrible circumstance.
In the PSI [presentence investigation], [CW] wrote an
original letter. And in the original letter, she asked for
the maximum. So this change of heart may be as a result of
time, but it's somewhat questionable at this point.
I have some concerns that the victim is being asked to
be the person who is put on the spot to determine the
sentence. In other words, it's your fault he's serving the
consecutive sentence because that's what you asked for. I
realize that wasn't the intent. And let's just say, I won't
take it as that, but I do have some concerns about that.
In the original PSI, [CW] wrote a letter. I think she
appeared at sentencing as well. I don't recall off the top
of my head, but she said in there that she had her child

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under some psychological care, that [the child] was
suffering from post-traumatic stress disorder.
. . . .
On the morning of this crime when [CW] fled the house
to go seek help at the neighbors, it struck me as absolutely
incredible. She was so frightened, she left her three-year-
old [child] in the house with Mr. Smith, ran next door, the
neighbor wasn't there, then ran across the street screaming
for help. The lady responded, got her husband to help. And
the next thing that happened to [CW] was she looks and she
sees her three-year-old exit the house [alone], and she ran
to get [her child]. That's an extraordinary circumstance.
. . . .

Judge Raffetto imposed consecutive sentences. And
consecutive sentences are appropriate in this case.

. . . .
. . . [I]n this particular case, I have reviewed the
sentencing factors under [HRS § ]706-606. And I have looked
very carefully at this record. And the sentence must
reflect the seriousness of the offense to promote respect
for law and to provide just punishment for the offense.
[Smith] was convicted of multiple sexual assaults in
the first degree upon the victim. He slashed her with a
knife. And I understand she may have been released from the
hospital, but I was taken truly with Dr. Pedro Giron's
testimony. . . .

He described where he had to pry open the victim's
eyes, the eyelids because they were so swollen that -- in
order to see whether there was any damage to the eye.
That's how bad it was. She had slashes to her lower torso
and limbs. And then there were the threats that she
testified to.
. . . .

So in considering sentencing to reflect the
seriousness of the crime, this was a horrific attack of
assault, and the victim was traumatized.

. . . .
So there must be adequate deterrence in a 20-year
sentence where there were repeated sexual assaults. But
he's only going to be sentenced concurrent, as well as the
actual assault, which was separate and distinct, the
slashing and the kidnapping, which is the A Felony.

But for the fact that there was a mistake that it was
considered as a B and not an A, I think the original
sentencing judge, if he had looked at the verdict form,
would have given him multiple consecutives, including on the
As. Because he gave him consecutive on the B. And there
would have been no mistake at all.

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So to protect the public from further crimes of the
defendant, I realize the defendant's medical condition
debilitates [sic] against that. But nonetheless, there is
and remains a potential threat to the victim. She, even in
her affidavit, says I don't want my address disclosed.
What other way could I take that is she still has a
fear? She still has a concern. And with that, that
militates in favor of a consecutive sentence.
. . . .
So in this particular case, on Counts Three, Four,
Five, and Six, for the crimes of Sexual Assault in the First
Degree, it is a mandatory sentence. There are no options
available to the Court for a probation.

The defendant is sentenced to 20 years on each count.
And they are to all run concurrent with one another.

In the Count Eight, Kidnapping, which is an A Felony,
the defendant is sentenced to 20 years in prison. And it is
to run concurrent with Counts Three, Four, Five, and Six.

On Count One, Assault in the First Degree, the
defendant is sentenced to a term of imprisonment of ten
years. Count One will run consecutively to Counts Three,
Four, Five, Six and Eight. I view that as a separate and
distinct, and the sheer magnitude of the assault and
slashing that occurred warrants the consecutive sentence.

The defendant was also convicted of Use of a Deadly or
Dangerous Weapon in the Commission of a Crime -- is that an
A or is that a C Felony?

[Defense counsel]: Which count?

THE COURT: Nine.

[Defense counsel]: Count Nine is a C Felony.
THE COURT: Okay. The defendant will be sentenced to
five years in prison, to run concurrently with all other
sentences.

In Count Two, Terroristic Threatening in the First
Degree, the defendant is sentenced to a five-year term of
imprisonment. And although I do think there might be
grounds to consider that as separate and apart because it
did take place separately, it did occur as the other events
were happening, the threats, death to the victim. That
sentence will run five years open and concurrent with all
other sentences.
So the record is clear, the defendant is sentenced to
20 years on the A Felonies; on the C Felonies, five years.
All of those to run concurrent. But the Count One, Assault
in the First Degree is a ten-year sentence to run
consecutive to all other sentences.

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We reject Smith's argument that Judge Cahill did not
adequately explain his rationale for imposing consecutive
sentences. Smith's third point of error is without merit.

4. Order Denying Motion to Reduce Sentence

Smith contends that the circuit court abused its dis-
cretion by denying his Motion to Reduce Sentence23 based upon his
medical condition. The motion was based upon Smith's diagnosis
of throat cancer, for which he underwent a laryngopharyngectomy
(removal of the vocal cords and pharynx) and a tracheostomy (an
incision made in the windpipe). He is unable to speak and must
breath through a hole in his throat. His doctor opined that he
has stage 3 cancer and that his five-year survival rate is 25%.
A defendant's "medical circumstances . . . are [not]
compulsory mitigators." State v. Kahapea, 111 Hawai#i 267, 281,
141 P.3d 440, 454 (2006). When Judge Raffetto imposed the
Original Sentence he stated:

As I mentioned, I presided over trial, so I heard all
of the testimony, and it is true I don't think it can be
disputed that defendant acted with a real high level of
cruelty toward the victim here.

. . . .

Until today he has shown no remorse, whatsoever, or
more importantly any insight into the wrongfulness of his
behavior, and still seems to blame the victim for much of
what happened, and he accepted responsibility today which is
a good sign, but he hasn't before today, and then he
contacted defendant [sic] in violation of the court order
after the time he was convicted.
The Court believes and finds, therefore, that the
defendant does, in fact, present a clear and present danger
to the victim in this case and to the community, and that
his likelihood of rehabilitation at least at the present
time is very low.
Taking into consideration all of the factors set forth
in Hawaii Revised Statutes Section 706-606, particularly the
need for the sentence to reflect the very seriousness of the
offenses committed here, it is another human being and to

23
Smith's HRPP Rule 35 Motion to Reduce Sentence was timely filed
within 90 days after entry of the 2019 Sentence.

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protect the community the Court is going to impose sentence
as follows:
The defendant will be placed in the custody of the
director of the Department of Public Safety for a . . .
total period of forty-five years.

During the hearing on the motion for reduction of
sentence, Judge Cahill stated:

[T]here's no legal basis that the medical condition of the
defendant at this point should cause a reconsideration of
the sentence. . . .

. . . .
. . . [T]hese are mandatory prison sentences that were
imposed. He was convicted of the A Felony. So then the
only issue was the consecutives. And I made my findings on
that. And I see no reason to change it.

. . . .

So respectfully, the motion for reconsideration [sic]
is denied for the reasons placed on the record. But the
record should reflect, I did consider all of the medical
evidence as well. I just don't feel that the medical
evidence warrants reconsideration [sic] of the sentence.

We cannot say, based on the record, that the circuit court abused
its discretion by denying Smith's motion for reduction of his
sentence based on his medical condition.

CONCLUSION

Based upon the foregoing: the Order Denying Motion to
Review Consecutive Sentence entered on November 21, 2018, is
affirmed; the 2019 Sentence entered on May 2, 2019, is vacated;
the Order Denying Motion to Reduce Sentence, entered on

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September 20, 2019, is affirmed; and this matter is remanded for
resentencing consistent with this opinion.24

On the briefs: /s/ Katherine G. Leonard
Presiding Judge
Renee Ishikawa Delizo,
Deputy Prosecuting Attorney, /s/ Keith K. Hiraoka
County of Maui, Associate Judge
for Plaintiff-Appellee.
/s/ Clyde J. Wadsworth
Matthew S. Kohm, Associate Judge
Alen M. Kaneshiro,
for Defendant-Appellant.

24
We remind the parties and the circuit court about the disposition
of Smith IV, which remanded the case for the State to either "remedy the
merger-instruction error by dismissing one of the two counts that could
potentially merge [(Counts 1 (assault) and 8 (kidnapping))] or, if the State
chooses, the State may retry Smith on both counts." Smith IV, 2020 WL
2790498, at *10 (citation omitted).

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