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Electronically Filed
Supreme Court
SCWC-XX-XXXXXXX
22-OCT-2021
11:41 AM
Dkt. 15 OP
IN THE SUPREME COURT OF THE STATE OF HAWAIʻI
---o0o---
STATE OF HAWAIʻI,
Respondent/Plaintiff-Appellee,
vs.
MICHAEL A. CATTANEO,
Petitioner/Defendant-Appellant.
SCWC-XX-XXXXXXX
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-XX-XXXXXXX; CASE NO. 2PC151000023; CASE NO. 2PC151000122)
OCTOBER 22, 2021
RECKTENWALD, C.J., NAKAYAMA, McKENNA, WILSON, AND EDDINS, JJ.
OPINION OF THE COURT BY EDDINS, J.
Michael Cattaneo pled no contest to negligent homicide in
the first degree and two drug-related charges. The Circuit
Court of the Second Circuit accepted his pleas and sentenced
him. 1 It imposed two concurrent five-year terms of imprisonment
1 Cattaneo pled no contest to one count of negligent homicide in the
first degree in 2PC151000023 and to one count of promoting a dangerous drug
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(for the drug crimes), to run consecutively with a ten-year term
for the negligent homicide charge. Cattaneo moved under Hawai‘i
Rules of Penal Procedure (HRPP) Rule 35(b) to reduce this
sentence. He wanted his five-year sentences to run
concurrently, rather than consecutively, with his ten-year term.
Cattaneo supported his Rule 35(b) motion by arguing that
his consecutive sentence was harsher than those of two second
circuit defendants recently convicted of, and sentenced for,
negligent homicide in the first degree. Hawai‘i Revised Statutes
(HRS) § 706-606 (2014) identifies the factors courts must
consider “in imposing a sentence.” Cattaneo argued that one
factor courts must consider “in imposing a sentence” was HRS
§ 706-606(4), “[t]he need to avoid unwarranted sentence
disparities among defendants with similar records who have been
found guilty of similar conduct.” As such, he reasoned that the
trial court, in deciding his Rule 35(b) motion, should have
considered the sentences imposed in “comparable cases.”
The court denied Cattaneo’s motion to reduce his sentence.
And it declined to discuss the “comparable cases” Cattaneo had
identified, explaining: “[I]t’s not the Court’s practice to
review cases that are issued by other Courts, whether in this
in the third degree and one count of prohibited acts related to drug
paraphernalia in 2PC151000122. The Honorable Richard T. Bissen, Jr.
presided.
2
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circuit or others. Because I happen to know that every case is
nuanced, every case has something that may not be obvious to
someone.”
Cattaneo appealed. He claimed the trial court had abused
its discretion by denying his HRPP Rule 35(b) motion without
comparing his sentence to those imposed in the two “comparable
cases.” Underlying Cattaneo’s argument is the postulation that
courts deciding HRPP Rule 35(b) motions must consider each HRS
§ 706-606 sentencing factor.
The Intermediate Court of Appeals (ICA) affirmed the
circuit court’s denial of Cattaneo’s Rule 35(b) motion. It said
that courts had to consider the HRS § 706-606 sentencing factors
in adjudicating Rule 35(b) motions. And it concluded that the
trial court had adequately done so in deciding Cattaneo’s.
Cattaneo asks us to determine whether the ICA erred in
“ruling that the Circuit Court substantively considered
sentencing factor HRS § 706-606(4) despite clear evidence to the
contrary.” 2
2 Cattaneo’s application for writ of certiorari also presents two other
questions. The first is whether the ICA erred in “ruling that the circuit
court adequately articulated its reasons for consecutive term sentencing
pursuant to HRS § 706-668.5(2).” We do not find error in the ICA’s ruling
that the circuit court was not required to articulate “its reasons for
consecutive term sentencing” when denying Cattaneo’s Rule 35(b) motion.
Cattaneo’s application for writ of certiorari also asks us to consider
whether the ICA erred in failing to recognize “plain error” in the trial
court’s sentencing decision. We conclude that the ICA did not gravely err in
failing to recognize “plain error” in the trial court’s sentencing decision.
Cattaneo’s “plain error” argument rehashes his contention that the trial
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The question Cattaneo presents is beside the point. The
ICA did not err in affirming the trial court. But its reasoning
was off. The HRS § 706-606 sentencing factors govern
sentencing. They do not govern motions for reduction of a
sentence under HRPP Rule 35(b). Thus, the trial court had no
obligation to consider “[t]he need to avoid unwarranted sentence
disparities among defendants with similar records who have been
found guilty of similar conduct” – or any other HRS § 706-606
sentencing factor – in deciding Cattaneo’s Rule 35(b) motion.
I.
The ICA rejected Cattaneo’s contention that the trial court
disregarded HRS § 706–606(4) in ruling on Cattaneo’s Rule 35(b)
motion. 3 But it agreed with Cattaneo’s premise that courts
deciding motions under HRPP Rule 35(b) must consider the HRS
§ 706–606 sentencing factors. Citing State v. Sauceda, No.
30622, 2011 WL 1909112 (App. May 18, 2011) (SDO), the ICA
stated:
This court has also concluded that a circuit court must
consider the factors set forth in HRS § 706–606 in ruling
court should have considered the need to avoid unwarranted sentencing
disparities in deciding Cattaneo’s Rule 35(b) motion.
3 The ICA concluded that while the circuit court may have foregrounded
the penological goals of retribution and deterrence in adjudicating
Cattaneo’s Rule 35(b) motion, it had adequately considered HRS § 706–606(4).
The court’s consideration of HRS § 706–606(4) was sufficient, the ICA
explained, because contrary to Cattaneo’s contentions, the circuit court
didn’t have to justify its denial of Cattaneo’s Rule 35(b) motion with a
discussion of “comparable cases.” The trial court’s reference to, and
rejection of, Cattaneo’s disparate sentencing argument showed it had
adequately considered HRS § 706–606(4) in deciding Cattaneo’s motion.
4
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on an HRPP Rule 35(b) motion to reduce sentence. See,
e.g., State v. Sauceda, No. 30622, 2011 WL 1909112, *1
(Haw. App. May 18, 2011) (SDO) (citing Kahapea, 111 Hawai‘i
at 278, 280–82, 141 P.3d at 451, 453–55) . . . .
A solitary pincite to our decision in State v. Kahapea, 111
Hawai‘i 267, 141 P.3d 440 (2006), is Sauceda’s only support for
its conclusion that the HRS § 706–606 sentencing factors control
the disposition of Rule 35(b) motions.
II.
Kahapea does not support the conclusion that courts
deciding Rule 35(b) motions must consider the HRS § 706-606
factors.
Kahapea and several co-defendants were convicted of crimes
linked to a bid-rigging scheme that bilked Honolulu taxpayers
out of millions of dollars. Kahapea’s sentence – five
consecutive ten-year terms of imprisonment - was much harsher
than those of his co-defendants and the defendants in two other
cases involving the theft of public funds.
Kahapea moved to reduce and correct his sentence. He said
his sentence was “extremely harsh” compared to those of his co-
defendants and other allegedly-similar defendants; he wanted one
or more of his prison terms to run concurrently, rather than
consecutively. Kahapea, 111 Hawai‘i at 275, 141 P.3d at 448.
The circuit court denied Kahapea’s motion. It explained that
Kahapea’s comparatively harsh sentence was justified because,
among other reasons, Kahapea had “mastermind[ed]” a theft of
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public funds, used the booty to bankroll his lavish lifestyle,
and abused a position of trust. Id. at 276-77, 141 P.3d at 449-
450.
This court evaluated Kahapea’s argument by re-reviewing the
original sentence. We concluded that the circuit court did not
abuse its discretion by giving Kahapea a comparatively harsh
sentence. We affirmed the denial of Kahapea’s Rule 35 motion, 4
explaining that “while stern, the circuit court’s sentence
furthers the statutory penological goals of retribution,
incapacitation, and deterrence and does not reflect arbitrary or
capricious action or a rigid refusal to consider the defendant’s
contentions.” Id. at 282, 141 P.3d at 455 (cleaned up).
Implicit in Kahapea’s holding is the determination that
because the court did not abuse its discretion in imposing
Kahapea’s sentence, it also did not abuse its discretion by
denying Kahapea’s motion.
This conclusion does not require that courts presented with
Rule 35(b) motions must reconsider the HRS § 706–606 sentencing
factors. Kahapea summarized the trial court’s consideration of
HRS § 706–606(4) at sentencing. But it did not hold that trial
4 Our opinion suggests that Kahapea moved for both a correction of an
illegal sentence under Rule 35(a) and a reduction of sentence under Rule
35(b). The opinion does not make clear which portions of its analysis
concern Rule 35(a) versus Rule 35(b).
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courts must reprise their consideration of HRS § 706–606(4)
every time a defendant moves the court to reduce a sentence.
There is also no statutory support for that proposition.
Nothing in HRPP Rule 35(b) or HRS § 706–606 indicates courts
considering Rule 35(b) motions must weigh the HRS § 706–606
sentencing factors.
Rule 35(b) provides courts discretion to reduce, or not
reduce, a sentence within specified timeframes:
(b) Reduction of Sentence. The court may reduce a sentence
within 90 days after the sentence is imposed, or within 90
days after receipt by the court of a mandate issued upon
affirmance of the judgment or dismissal of the appeal, or
within 90 days after entry of any order or judgment of the
Supreme Court of the United States denying review of, or
having the effect of upholding the judgment of conviction.
A motion to reduce a sentence that is made within the time
prior shall empower the court to act on such motion even
though the time period has expired. The filing of a notice
of appeal shall not deprive the court of jurisdiction to
entertain a timely motion to reduce a sentence.
HRPP Rule 35(b) (emphasis added). This rule imposes some limits
on when a court may reduce a sentence. But nothing in it
suggests a relationship between the HRS § 706–606 sentencing
factors and Rule 35(b) motions.
Likewise, by its terms, HRS § 706–606 5 concerns imposing
5 HRS § 706-606 is entitled “Factors to be considered in imposing a
sentence” (emphasis added). It 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:
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sentences, not reducing them. It begins: “The court, in
determining the particular sentence to be imposed, shall
consider . . . .” And then lists the specific factors to be
considered.
Thus, neither Kahapea, nor HRPP Rule 35(b), nor HRS § 706-
606 demands that courts considering motions for sentence
reduction look to the HRS § 706-606 sentencing factors. 6
For sure, courts must consider the HRS § 706-606 factors
when imposing a sentence. See HRS § 706-606. Defendants who
believe a trial court has abused its discretion by ignoring HRS
§ 706-606’s sentencing factors may appeal their sentences and
make that case or bring motions under HRPP Rule 35(a). See HRPP
Rule 35(a) (stating in part that, within specified timeframes,
the court “may correct a sentence imposed in an illegal
(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;
(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.
HRS § 706-606 (emphasis added).
6 Similarly, nothing in our caselaw, HRPP Rule 35(b), or HRS § 706-621
(2014) suggests that courts adjudicating Rule 35(b) motions must consider the
HRS § 706-621 factors (“Factors to be considered in imposing a term of
probation”).
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manner”).
But a motion under HRPP Rule 35(b) is neither a sentencing
nor a resentencing. It asks the court to change its mind; it is
“essentially a plea for leniency.” Cf. State v. Brigham, 666
A.2d 405, 406 (R.I. 1995) (describing a motion to reduce a
sentence under Rhode Island’s equivalent of HRPP Rule 35 as
“essentially a plea for leniency”). HRPP Rule 35(b) motions
give courts occasions to ponder clemency without obliging a re-
review of the statutory factors. See State v. Kong, 140 Hawai‘i
103, 110, 398 P.3d 692, 699 (2017) (quoting United States v.
Maynard, 485 F.2d 247, 248 (9th Cir. 1973), for the proposition
that “[i]f a lawful sentence was lawfully imposed in the first
instance, then the function of Rule 35 is simply to allow the
[sentencing] court to decide if, on further reflection, the
original sentence now seems unduly harsh”). 7
The distinction between sentencing and a hearing on a Rule
35(b) motion is also shown by their procedural differences.
Defendants don’t need to be present at hearings on motions to
reduce a sentence. See HRPP 43(c)(3). And, unlike at
7 Accord State v. Hernandez, 849 P.2d 967, 968 (Idaho Ct. App. 1993)
(discussing motions under Idaho Criminal Rules, Rule 35 and noting that
“[t]he court is under no obligation to amend or modify a sentence that has
been legally imposed”); State v. Tinsley, 928 P.2d 1220, 1223 (Alaska Ct.
App. 1996) (stating that timely motion for reduction of sentence under then-
existing Alaska Rules of Criminal Procedure, Rule 35(a) could be granted
based on judge’s desire to “show mercy”); State v. Remedio, 108 A.3d 326, 331
(Del. Super. Ct. 2014) (“The reason for [Delaware’s Superior Court Criminal
Rules, Rule 35(b)] is to give a sentencing judge a second chance to consider
whether the initial sentence is appropriate.”).
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sentencing, they have no constitutional right to allocute at
those hearings.
Treating HRPP Rule 35(b) motions as pleas for leniency that
do not require reconsidering the HRS § 706–606 sentencing
factors also makes sense from a practical standpoint. Consider
the defendant who argues their sentence should be reduced
because, since sentencing, they have transformed from a violent
person into a peaceful person (implicating HRS § 706-606(1),
which concerns “the history and characteristics of the
defendant”). Under the Sauceda approach, the court would have
to revisit every HRS § 706–606 sentencing factor to determine
whether the lawfully-imposed sentence is still appropriate given
the defendant’s new peaceable disposition. This obligation –
which, to repeat, has no basis in either HRPP Rule 35(b) or HRS
§ 706-606 – would create an unwarranted imposition on courts’
broad discretion in sentencing matters.
Cattaneo’s argument fails not because the court adequately
considered HRS § 706–606(4), but rather because the court was
not required to consider any HRS § 706–606 sentencing factor in
deciding his Rule 35(b) motion.
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III.
We hold that courts deciding HRPP Rule 35(b) motions are
not required to consider the HRS § 706–606 sentencing factors.
Although relying on different grounds than the ICA, we affirm
the circuit court’s denial of Cattaneo’s HRPP Rule 35(b) motion.
Pamela I. Lundquist, /s/ Mark E. Recktenwald
for petitioner
/s/ Paula A. Nakayama
Renee Ishikawa Delizo, /s/ Sabrina S. McKenna
for respondent
/s/ Michael D. Wilson
/s/ Todd W. Eddins
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