State v. Canosa.

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Electronically Filed
Supreme Court
SCWC-XX-XXXXXXX
17-JAN-2023
09:59 AM
Dkt. 15 OP

IN THE SUPREME COURT OF THE STATE OF HAWAIʻI

---o0o---
________________________________________________________________

STATE OF HAWAIʻI,
Respondent/Plaintiff-Appellee,

vs.

STANLEY CANOSA,
Petitioner/Defendant-Appellant.

________________________________________________________________

SCWC-XX-XXXXXXX

CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-XX-XXXXXXX, CAAP-XX-XXXXXXX, CAAP-XX-XXXXXXX;
CR. NO. 1PC091001524)

JANUARY 17, 2023

RECKTENWALD, C.J., NAKAYAMA, McKENNA, WILSON, AND EDDINS, JJ.

OPINION OF THE COURT BY WILSON, J.

This case raises the issue of whether a sixteen-month

delay in sentencing deprived the defendant of due process, where

the delay in sentencing precluded the defendant from being

sentenced prior to the expiration of the ordinary maximum term.
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We also consider whether the delay in sentencing

rendered the defendant’s allocution constitutionally

inadequate.

For the reasons discussed below, we hold that in this

specific instance, the State caused an unreasonable delay in

sentencing which deprived the defendant of due process and a

sentencing proceeding that was fundamentally fair, in violation

of article 1, section 5, of the Constitution of the State of

Hawai‘i and the Fourteenth Amendment to the United States

Constitution.

We also hold that the State’s unreasonable delay in

sentencing deprived the defendant of the opportunity for

allocution, in violation of the due process clause under article

1, section 5, of the Constitution of the State of Hawai‘i. As

such, we need not reach the defendant’s additional points of

error.

Therefore, the Intermediate Court of Appeals’ (“ICA”)

judgment on appeal is vacated. The defendant is to be released

forthwith, and this case is remanded to the circuit court to

impose a sentence of time served, nunc pro tunc from the date of

release.

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I. BACKGROUND

A. Circuit Court Proceedings

1. Canosa I: The First Trial and First Appeal

On September 29, 2009, the State of Hawai‘i charged

Petitioner/Defendant-Appellant Stanley Canosa (“Canosa”) with

burglary in the first degree, in violation of Hawaiʻi Revised

Statutes (“HRS”) § 708-810(1)(c) (2014)(Count 1); sexual assault

in the first degree, in violation of HRS § 707-730(1)(a) (Supp.

2013) (Count 2); unauthorized entry in a dwelling, in violation

of HRS § 708-812.6 (Supp 2010) (Count 3); and two counts of

sexual assault in the third degree, in violation of HRS § 707-

732(1)(f) (Supp. 2013) (“Counts 4 and 5”). On May 27, 2011, a

jury in the Circuit Court of the First Circuit (“circuit court”)

found Canosa guilty of Count 1, Count 2, and Count 3, and

acquitted Canosa of Counts 4 and 5.1 On November 29, 2011, the

circuit court sentenced Canosa to extended terms of twenty years

imprisonment for Count 1, life with the possibility of parole

for Count 2, and ten years imprisonment for Count 3. The

circuit court imposed all terms to run concurrently with credit

for time served.

Canosa appealed to the ICA. State v. Canosa, No.

CAAP-XX-XXXXXXX, 2014 WL 503045 (Haw. App. Feb. 7, 2014) (mem.)

1 The Honorable Randal K.O. Lee presided.

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(“Canosa I”). Canosa argued on appeal that the Deputy

Prosecuting Attorney committed prosecutorial misconduct that

deprived Canosa of a fair trial. Id. at *4. The ICA held that

the State committed prosecutorial misconduct during closing

arguments, vacated the judgment, and remanded the case for a new

trial.2 Id. at *5-6.

2. Canosa II: The Second Trial and Second Appeal

Canosa’s second trial began on April 8, 2015.3 The

circuit court declared a mistrial on April 14, 2015 following

Canosa’s request for a new attorney. Trial commenced again on

March 30, 2016.4 The circuit court dismissed the sexual assault

charge (Count 2) after the jury deadlocked on that charge. The

jury found Canosa guilty on Count 1 (burglary in the first

degree) and Count 3 (unauthorized entry in a dwelling).

During the sentencing phase of the trial, the jury

made findings as to both Count 1 and Count 3 that the State had

proven beyond a reasonable doubt that: Canosa was a persistent

offender (in that he had previously been convicted of two or

more felonies committed at different times when he was 18 years

2 The ICA concluded that since a new trial was warranted in light
of the prosecutorial misconduct during closing arguments, it did not need to
reach Canosa’s assertion of other alleged incidents of prosecutorial
misconduct. Id. at *6.

3 The Honorable Dean E. Ochiai presided.

4 The Honorable Karen S.S. Ahn presided.

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of age or older); Canosa was a multiple offender (in that he was

being sentenced for two or more felonies); and extended

sentencing was necessary to protect the public.

The circuit court entered its judgment on June 27,

2016, and sentenced Canosa to extended terms of twenty years

imprisonment for Count 1, and ten years imprisonment for Count

3. The circuit court imposed those terms to run consecutively.

Canosa appealed to the Intermediate Court of Appeals.

State v. Canosa, No. CAAP-XX-XXXXXXX, 2018 WL 1889511 (Haw. App.

Apr. 20, 2018) (SDO) (“Canosa II”). On appeal, Canosa argued,

that the circuit court abused its discretion by imposing a new

sentence that was more severe following retrial in violation of

HRS § 706-609. Id. at *2. The ICA agreed, and found that “due

to the imposition of consecutive terms in Canosa’s second

sentence, the maximum possible imprisonment was increased from

twenty to thirty years. Therefore, Canosa’s second sentence was

more severe and violated HRS § 706-609[.]” Id. at *3.

The ICA vacated the June 27, 2016 judgment and

sentence and remanded for resentencing on April 20, 2018. Id.

at *4. The ICA issued its judgment on appeal on November 15,

2018 ordering the same. Canosa filed an application for writ of

certiorari, which this court rejected on January 18, 2019.

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On remand for resentencing, the circuit court held a

sentencing hearing on June 4, 2020.5 On the morning of June 4,

2020, Canosa filed a written objection to resentencing, and

during the hearing made oral objections on the basis that he did

not agree with the argument his counsel was making.

Canosa argued that he was prejudiced by the delay in

resentencing, both with respect to parole considerations, and

with respect to being deprived of a “fair opportunity to present

mitigation and/or allocution of [his] sentence.” Canosa also

argued that extended terms could not be imposed because the

ordinary maximum ten-year and five-year sentences had already

expired on September 22, 2019 for Count 1, and September 22,

2014 for count 3. In support of this argument, Canosa asserted

that “[t]he time still run. And before you was [sic] able to

sentence me, that time expired, the ordinary terms. And one

extended term is in essence extending the ordinary sentences

beyond the statutory terms. And once that expired, I mean, what

is there to extend?”

Further, Canosa argued that when the ICA vacated the

June 27, 2016 judgment and sentence, the ICA vacated the entire

sentence, and not just to the extent it imposed consecutive

terms.

5 The Honorable Karen T. Nakasone presided.

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The circuit court overruled Canosa’s objections as

follows:

THE COURT: Okay. So the Court’s ruling on the objections.
There was an objection. One of the objections defendant
raised is the delay. And there was a delay from the time
that the Supreme Court rejected certiorari from January
2019 to the time the sentencing -- we began to try to
schedule -- try to reschedule this resentencing. So you
know, Mr. Canosa, I can tell you that it’s unfortunate that
the delay occurred. But the fact that there was a delay in
having this resentencing -- and this is my ruling -- does
not mean that in any way that the Court cannot legally
resentence you or that the State -- there's any kind of
waiver by the State. And the Court’s ruling is that the
fact that there was a delay in coming to this resentencing
does not mean that there is an infirmity with the Court
proceeding with sentencing today.

THE DEFENDANT: What do you mean one infirmity?

THE COURT: I’m ruling, sir. Okay?

The Court retains jurisdiction, the power, the authority,
and the duty to resentence defendant in accordance with the
directive of the appellate court. So that is the ruling on
the delay objection.

There was objections made on consecutive sentencing. The
State is not asking for consecutive terms. I’m not going to
impose consecutive terms, so I’m not going to address those
objections. They are moot.

THE DEFENDANT: Your Honor -- (inaudible). Excuse me one
minute. I understand what you’re saying, but he not
arguing, you know, for me. That’s why I gotta speak on my
behalf.

THE COURT: Sir, I’ve read your objections. I let you talk
today briefly. I understand what you’re saying. I'm going
to rule. Okay?

THE DEFENDANT: How can I have one fair opportunity to
argue myself? He not arguing for me.

THE COURT: I will let you speak at resentencing. Okay?
I’m going to address the objections regarding imposition of
extended terms.

Defendant argued today and in his written pleading that the
extended terms cannot be imposed because the ordinary
maximum term already expired. And he argues that it’s
logically impossible to extend a sentence that is already
expired and does not exist.

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This Court interprets the remand as having vacated the
prior sentences and the ICA remanded it back here for
resentencing consistent with the appellate court order.
Defendant’s status is post conviction pending resentencing,
and the Court retains jurisdiction to resentence.

So the ICA’s order vacated the June 27, 26 sentence with an
order to resentence. So this Court -- my conclusion is
that the 2016 sentence is vacated. Defendant’s pending
sentencing. He is being held on existing trial custody
orders. He is receiving all jail credit he’s entitled to
on Counts 1 and 3.

The vacated sentence does not mean that the ordinary
sentence for Counts 1 and 2 was still running. And it
doesn’t mean that the ordinary sentence was running and
expired and can no longer exist. So the Court rejects that
argument that the Court can no longer sentence defendant to
extended term because the ordinary sentence has run.

This argument -- the Court’s ruling is that this argument
made by the defense is premised on the erroneous legal
assumption that the ordinary sentences are still in effect
and are running. And that’s not the case.

So for these reasons, the objections are rejected and
overruled. I’ve made my ruling.

(emphasis added).

The circuit court then sentenced Canosa to ten years

extended to twenty years for Count 1 and five years extended to

ten years for Count 3. The circuit court ruled that the terms

were to run concurrently, with credit for time served.

The circuit court entered its judgment resentencing

Canosa on June 4, 2020, and Canosa filed a timely notice of

appeal on July 6, 2020 initiating case number CAAP-XX-XXXXXXX.

On July 10, 2020, the circuit court entered an amended judgment

(“2020 Amended Judgment”), correcting clerical errors. Canosa

filed a timely notice of appeal to the 2020 Amended Judgment on

August 12, 2020, thus initiating case number CAAP-XX-XXXXXXX.

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3. Canosa III: Motion to Correct Illegal Sentence
and Third Appeal

On August 24, 2020, Canosa filed pro se6 a motion to

correct an illegal sentence pursuant to Hawaiʻi Rules of Penal

Procedure (“HRPP”) Rule 35(a). Canosa argued in his motion that

having completed serving the ordinary terms of imprisonment

statutorily prescribed by HRS § 706-660 (ten years for Count 1,

five years for Count 3) which had expired on September 22, 2019

before the resentencing court could impose extended sentences,

the extended sentences were in violation of Canosa’s right to

due process under article 1, section 5, of the Hawai‘i State

Constitution and the Fourteenth Amendment to the United States

Constitution. Canosa concluded that the court was unauthorized

to impose extended sentences once the ordinary terms of

imprisonment prescribed by HRS § 706-660 had expired, and

requested remedying the illegal sentence by declaring time

served nunc pro tunc with respect to Counts 1 and 3.

The circuit court issued an order denying Canosa’s

HRPP Rule 35(a) motion on October 21, 2020 (“Order Denying

Motion to Correct Illegal Sentence”). Canosa timely filed an

6 Canosa noted that he filed pro se “because after directing my
court-appointed counsel . . . to file a Rule 35(a) motion for correction of
illegal sentence, [counsel] has not kept me informed of whether or not such
motion was filed. Accordingly, I am proceeding pro se only to the extent of
making sure that this motion is filed within the 90 day time period . . . .
subsequently, I expect that [counsel] will assist in representing me at the
hearing on this motion.”

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appeal of the circuit court’s denial of his HRPP Rule 35(a)

motion, initiating case number CAAP-XX-XXXXXXX. The ICA

consolidated Canosa’s three appeals from his June 4, 2020

resentencing (CAAP-XX-XXXXXXX, CAAP-XX-XXXXXXX, and CAAP-20-

0000650) under CAAP-XX-XXXXXXX (“Canosa III”).

B. Intermediate Court of Appeals

1. Canosa’s Opening Brief

On appeal, Canosa presented the following questions:

(1) “Did the trial court abuse its discretion in re-sentencing

[Canosa] to an extended sentence after his underlying maximum

sentence had already expired?”7 and (2) “Did the trial court

abuse its discretion in denying [Canosa]’s Motion for

[C]orrection of Illegal Sentence?”

As to the circuit court’s abuse of discretion in re-

sentencing Canosa to an extended sentence after his underlying

maximum sentence had already expired, Canosa relied on State v.

March, 94 Hawai‘i 250, 255, 11 P.3d 1094, 1098 (2000) and State

v. Kahalewai, 71 Haw. 624, 626, 801 P.2d 558, 560 (1990) in

arguing that in this “case of first impression,” the circuit

court did not have the statutory authority to extend the

ordinary terms of imprisonment prescribed by HRS § 706-660

because they had already expired, constituting an illegal

7 Canosa defines “underlying maximum sentence” in a footnote as
“the maximum penalty prescribed by law for the underlying charged offenses.”

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sentence not authorized by statute that violated his right to

due process. Canosa further argued that “by operation of

serving and satisfying the ordinary terms of imprisonment

prescribed by HRS [§] 706-660 . . . before a legal sentence was

ever imposed,” it was “the court’s duty in rendering a legal

disposition of this case . . . to declare time served, [n]unc

pro tunc . . . because no other sentence could be imposed in

accordance with HRS [§] 706-660 and nor could any other sentence

of imprisonment be authorized by statute.”

Canosa next contested the circuit court’s ruling that

a delay does not impair the court’s jurisdiction, authority and

duty to resentence a defendant in accordance with the directive

of the appellate courts. To this point, Canosa asserted that

the court’s jurisdiction and duty to resentence Canosa ended

when the maximum sentences for each conviction were served on

September 22, 2014 and September 22, 2019 respectively.

Canosa then argued that from the time the ICA issued

its November 15, 2018 Judgment on Appeal ordering a remand for

sentencing, the State had a duty to act diligently and prudently

in completing resentencing by September 22, 2019 and failed to

do so. According to Canosa, “the State gave up its right to

pursue extended sentencing as [Canosa] had fully served the

maximum term of imprisonment for the underlying charges prior to

an extended sentence being sought to be imposed.” Canosa

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asserted that since there was no underlying sentence to extend

after September 22, 2019, the June 4, 2020 sentence was “an

egregious violation of Canosa’s right not to be punished twice

for the same offenses [sic] in accordance with the principles of

double jeopardy.”

As to the circuit court’s abuse of discretion in

denying Canosa’s HRPP Rule 35(a) motion for correction of

illegal sentence, Canosa again raised violation of due process

and double jeopardy claims, and relied on Ex parte Lange, 85

U.S. 163 (1873), for the proposition that because Canosa served

the underlying maximum penalty before being resentenced on June

4, 2020, a second judgment on the same verdict is void, and he

therefore must be discharged.

Canosa concluded by requesting that the ICA vacate his

sentence and order him immediately released after having fully

served a ten-year term prior to being resentenced on June 4,

2020.

2. The State’s Answering Brief

In answer, the State asserted that Canosa’s points of

error essentially alleged the same error—that the court abused

its discretion in imposing an extended sentence after his

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underlying maximum sentence as to both charges had expired.8

The State’s rebuttal cited Hussey v. Say and relied on law of

the case doctrine in concluding “[t]hat the circuit court did

not abuse its discretion in imposing an extended term is law of

the case and cannot be re-litigated.” Hussey v. Say, 139 Hawai‘i

181, 185, 384 P.3d 1282, 1286 (2016). The State supported this

finding with the following language from Canosa II: “[g]iven

that the jury made the required factual findings under HRS §

706-662, it was within the Circuit Court’s discretion to

sentence Canosa to extended terms of imprisonment.” Canosa II,

2018 WL 1889511, at *3. On this basis, the State contended that

when the ICA vacated the circuit court’s judgment in Canosa II,

it only did so “to the extent it imposes consecutive sentences

in violation of HRS § 706-609[,]” and that when it “remand[ed]

for resentencing consistent with this summary disposition

order[,]” the only portion of the judgment that was vacated was

the consecutive sentence, and therefore “the only task left for

the circuit court was to enter a judgment of conviction and

sentence without the consecutive sentence.” The State concluded

that “[b]ecause the portion of the judgment relating to Canosa’s

8 The State considers Canosa’s opening brief argument that the
“extended sentence was an abuse of discretion as the State did not prove that
[he] was a danger to the public” to be waived pursuant to Hawai‘i Rules of
Appellate Procedure (“HRAP”) Rule 28(b)(4) insofar as it was not a point of
error raised.

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underlying and extended sentences were not vacated[,]” Canosa’s

argument had no merit. The State requested that the ICA affirm

the 2020 Amended Judgment and Order Denying Motion to Correct

Illegal Sentence. Canosa did not file a reply brief.

3. The ICA’s Memorandum Opinion9

The ICA affirmed the 2020 Amended Judgment and the

Order Denying Motion to Correct Illegal Sentence, finding that

the circuit court properly exercised its authority to resentence

Canosa to extended terms of imprisonment in counts 1 and 3, with

each sentence to run concurrently. First, the ICA concluded

that the circuit court retained authority on remand in 2020 to

resentence Canosa to extended terms “regardless of whether the

time under an ordinary maximum sentence for his convictions

would have expired by the time of resentencing.” According to

the ICA, Canosa was never sentenced to “an ordinary maximum

sentence under HRS § 706-660 for Counts 1 and 3[;]” instead, his

sentences on Counts 1 and 3 “have always been for extended term

sentences, including under the 2016 Judgment.” The ICA, citing

State v. Keck, agreed with the circuit court’s reasoning that

when Canosa’s second sentence under the 2016 judgment was

vacated, “[h]is status, in essence, reverted to that of an

unsentenced felon.” State v. Keck, Nos. 29530, 29531, 2010 WL

9 The ICA held oral argument on April 20, 2022.

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4491240, at *1 (Haw. App. Nov. 10, 2010). The ICA further noted

Canosa’s failure to cite—and the ICA’s failure to find—any

authority supporting the proposition that “a defendant's

sentence automatically defaults to the statutory maximum term

for the convicted crime when the defendant's consecutive

extended sentences have been vacated and the case is remanded

for resentencing.”

Second, the ICA found Canosa’s double jeopardy

argument to be without merit. The ICA distinguished Canosa’s

case from Lange,10 and cited Jones v. Thomas for the proposition

that “the Double Jeopardy Clause prohibits punishment in excess

of that authorized by the legislature[.]". Jones v. Thomas, 491

U.S. 376, 383 (1989) (citing United States v. DiFrancesco, 449

U.S. 117, 139 (1980)). The ICA reasoned that since HRS § 706–

662 authorized extended sentencing for counts 1 and 3, and

because a jury made the necessary findings such that extended

sentences for counts 1 and 3 were proper, the circuit court’s

sentence was not in excess of statutory authority. On that

basis, and pursuant to the law of the case under Canosa II, the

ICA concluded that Canosa was not punished for the same crime

twice.

10 The ICA argued that unlike Canosa’s case, the statute at issue in
Lange authorized the imposition of only one of two alternative sentences, but
that the defendant in Lange was ultimately subjected to both.

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Third, the ICA rejected Canosa’s contention that the

plain language of HRS § 706-600 limited the circuit court’s

resentencing authority. Relying on State v. Haugen,11 the ICA

concluded that “it would be absurd for sentences to default to

the statutory maximum term while defendants await resentencing

upon successfully exercising their right to appeal, especially

when a jury makes the necessary findings that a defendant meets

the criteria for extended terms of imprisonment.” State v.

Haugen, 104 Hawai‘i 71, 77, 85 P.3d 178, 184 (2004).

Having concluded the circuit court did not err in

resentencing Canosa in 2020, the ICA thus concluded (without

further analysis) that there was no error when the circuit court

denied Canosa’s motion to correct his sentence.

Finally, the ICA determined that Canosa’s assertions

of plain error were raised for the first time at oral argument

and therefore waived pursuant to HRAP Rule 28(b)(4) and (7).

With respect to Canosa’s argument that the circuit court

committed plain error by resentencing him to extended sentences

without requiring the State to prove that he still remained a

danger to the public at the time of resentencing, the ICA

determined that Canosa “failed to raise this issue as a point of

11 The ICA cited to State v. Haugen, 104 Hawai‘i 71, 77, 85 P.3d 178,
184 (2004) which concluded that an absurdity would result if the court
applied a statute on sentencing for first-time drug offenders to a defendant
with a prior drug conviction in another state.

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error or provide any substantive argument, in violation of

[HRAP] Rule 28(b)(4) and (7)[.]”. The ICA then argued that

United States v. Booker, 543 U.S. 220 (2005) was inapposite to

Canosa’s assertions, concluding that Booker does not invalidate

Canosa’s sentence on the basis that four years passed between

the jury’s determinations for extended sentencing and Canosa’s

2020 resentencing.

Canosa's second argument that the ICA deemed waived

was that he was prejudiced by the State’s sixteen month delay in

his resentencing after certiorari was denied on January 18,

2019, which resulted in adverse impacts on parole and his

ability to obtain services while incarcerated (among other

assertions). The ICA deemed this argument waived for purposes

of this appeal, but without prejudice to Canosa raising it in a

HRPP Rule 40 petition, finding that (1) Canosa never argued this

claim before the circuit court, (2) there was no factual support

for this claim in the record, and (3) the State had no ability

to anticipate this claim being raised at oral argument.

The ICA affirmed the 2020 Amended Judgment and the

Order Denying Motion to Correct Illegal Sentence, while noting

that “Canosa may pursue his claim of prejudice due to the delay

in his 2020 resentencing through a HRPP Rule 40 petition.”

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C. Application for Writ of Certiorari

Canosa timely filed an application for writ of

certiorari on August 5, 2022. In his application, Canosa argues

that the ICA gravely erred in this “unique case of first

impression” by:

1. reasoning that because a [j]ury on June 22, 2016, made
the required factual findings under HRS [§] 706-662
(2014) that Petitioner is a persistent and multiple
offender and that extended terms of imprisonment was
necessary for the protection of the public, the
resentencing court was, on June 4, 2020, upon remand for
resentencing from Petitioner, authorized to resentence
him to extended terms of imprisonment and,

2. for using that reasoning to affirm the Amended Judgment
of conviction and sentence filed July 10[,] 2020, and
the Order Denying Defendant’s Motion to Correct Illegal
Sentence pursuant to Rule 35(a) of the Hawaii Rules of
Penal Procedure filed October 21, 2020 by the Circuit
Court of the First Circuit, and thereby constitutes
[sic] grave errors because it resulted in the violation
of Petitioner’s right to be free from the unlawful
restraint of his liberty, in violation of the Fourteenth
Amendment under the United States Constitution as he is
still being held in prison on an illegal sentence.

First, Canosa argues that the ICA erred by affirming

the circuit court’s use of the 2016 jury’s findings under HRS §

706-662 to impose extended terms of imprisonment beyond the

ordinary terms of imprisonment prescribed by HRS § 706-660 for

Counts 1 and 3. He argues that the circuit court no longer had

authority to “use the jury’s findings under HRS § 706-662 to

extend the ordinary terms of imprisonment” because “those

ordinary terms of imprisonment prescribed by HRS § 706-660 for

both his convictions [(ten years for Count 1, five years for

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Count 3)] were already expired before the resentencing court

could extend it beyond its statutorily prescribed range.”

Canosa further argues that “the ICA knew and/or should

have known” the following: (1) “that when a court imposes an

extended term of imprisonment[,] what the court extends from,

and beyond, is the ordinary terms of imprisonment (statutory

maximum penalty) prescribed by HRS [§] 706-660”; (2) “by the

time [Canosa] was resentenced on June 4, 2020, the ordinary

terms of imprisonment prescribed by HRS [§] 706-660 for both his

[b]urglary conviction (count 1) and his unauthorized entry in a

[d]welling conviction (count 3) had already expired on September

22, 2019, and September 22, 2014, respectively”; (3) “the

State’s and/or resentencing court’s unreasonable delay to comply

with the remand order for resentencing . . . had allowed the

ordinary terms of imprisonment prescribed by HRS [§] 706-660 to

expire”; (4) “during [Canosa]’s resentencing on June 4, 2020, he

argued that the extended terms cannot be imposed because the

ordinary maximum terms had already expired”; and (5) “[Canosa]’s

contention for [the ICA’s] review on appeal was that the circuit

court erred by extending the ordinary terms of imprisonment

prescribed by HRS [§] 706-660 for both his [b]urglary conviction

(count 1) and his unauthorized entry in a [d]welling conviction

(count 3) without being authorized by statute.”

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Canosa further contends that (1) “there [is] no

tolling period for the ordinary terms of imprisonment prescribed

by HRS [§] 706-660” and (2) “there is no language under HRS [§]

706-662 or any other statute that authorized the resentencing

court on June 4, 2020 to extend the already expired ordinary

terms of imprisonment prescribed under HRS § 706-660[.]”

Canosa also contests the ICA’s agreement with the

circuit court’s reasoning that when Canosa’s sentence was

vacated and remanded for sentencing Canosa’s status reverted to

that of an unsentenced felon. Here, Canosa repeats his

arguments that the ICA “knew and/or should have known” that once

the ordinary terms of imprisonment for counts 1 and 3 expired,

it was “impossible to extend” those terms beyond their

“statutorily prescribed range[s].” Canosa further contends that

the ICA “knew and/or should have known” that “the resentencing

court’s only duty and obligation during resentencing was to

declare time served, nunc pro tunc, because no other sentence

could be imposed in accordance with HRS § 706-600 (2014), which

states, “[n]o sentence shall be imposed otherwise than in

accordance with this chapter.”

Canosa concludes that the ICA therefore should have

reversed the order denying Canosa’s motion to correct illegal

sentence, and subsequently corrected his sentence to reflect

time served, nunc pro tunc, on the expiration dates of the

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ordinary terms of imprisonment prescribed by HRS § 706-660 for

counts 1 and 3, and asks this court “to correct his illegal

sentence”; he requests this court to “order his release from the

unlawful restraint of his liberty.”

The State did not file a response to the application.

Canosa’s application for writ of certiorari was accepted.

III. STANDARDS OF REVIEW

A. 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
committed plain and manifest abuse of discretion in its
decision. Factors that indicate a plain and manifest abuse
of discretion are arbitrary or capricious actions by the
judge and a rigid refusal to consider the defendant’s
contentions. In general, 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. Tauiliili, 96 Hawaiʻi 195, 198, 29 P.3d 914, 917 (2001)

(internal quotation marks, citations, and brackets omitted).

B. Motion to Correct Sentence

A circuit court's denial based on a conclusion of law,

of a defendant’s HRPP Rule 35 motion to correct illegal sentence

is reviewed de novo, under the right/wrong standard of review.

Questions of constitutional law and statutory interpretation are

reviewed under the same standard. State v. Kido, 109 Hawaiʻi

458, 461, 128 P.3d 340, 343 (2006).

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C. Constitutional Questions

“We review questions of constitutional law by

exercising our own independent constitutional judgment based on

the facts of the case.” State v. Phua, 135 Hawai‘i 504, 511-12,

353 P.3d 1046, 1053-54 (2015). Therefore, we review questions

of constitutional law under the right/wrong standard. Id.

IV. DISCUSSION

Canosa argues that he was prejudiced by the State’s

sixteen-month delay in his sentencing after certiorari was

denied on January 18, 2019. The ICA deemed this argument waived

for purposes of this appeal, finding that (1) Canosa never

argued this claim before the circuit court, (2) there was no

factual support for this claim in the record, and (3) the State

had no ability to anticipate this claim being raised at oral

argument before the ICA. The ICA erred in its waiver analysis

and conclusion.

As discussed infra in section IV.A.3, the record

clearly reflects that Canosa raised his prejudice argument

before the circuit court on June 4, 2020, both in writing and

with oral argument. The State and the circuit court thus had

notice of Canosa’s prejudice claim. In addition, the record

does contain factual support for Canosa’s claim, as the Barker

analysis below makes clear. Canosa’s prejudice claim was not

waived. As the ICA erred on these points, the ICA also erred in

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affirming the circuit court’s 2020 Amended Judgment and the

Order Denying Motion to Correct Illegal Sentence.

For reasons set forth below, we find that the

unreasonable delay of Canosa’s sentencing deprived Canosa of due

process, and sentencing proceedings that were fundamentally

fair.

A. The government’s unreasonable delay of Canosa’s sentencing
deprived Canosa of due process and sentencing proceedings
which were fundamentally fair.

Canosa correctly contends that the sentencing in this

case has been delayed to the degree that he has been deprived of

his right to due process pursuant to article 1, section 5 of the

Hawai‘i Constitution and the Fourteenth Amendment to the United

States Constitution.

In Betterman v. Montana, 578 U.S. 437 (2016), the

Supreme Court explicated the due process rights and liberty

interests of convicted individuals with respect to delay in

sentencing proceedings:

[A]t the third phase of the criminal-justice process, i.e.,
between conviction and sentencing, the Constitution's
presumption-of-innocence-protective speedy trial right is
not engaged. That does not mean, however, that defendants
lack any protection against undue delay at this stage. The
primary safeguard comes from statutes and rules. The
federal rule on point directs the court to “impose sentence
without unnecessary delay.” Fed. Rule Crim. Proc. 32(b)(1)
.... Further, as at the prearrest stage, due process serves
as a backstop against exorbitant delay .... After
conviction, a defendant's due process right to liberty,
while diminished, is still present. He retains an interest
in a sentencing proceeding that is fundamentally fair.

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578 U.S. at 447–48 (emphasis added). Further, the court noted

that “[f]or inordinate delay in sentencing, although the Speedy

Trial Clause does not govern, a defendant may have other

recourse, including, in appropriate circumstances, tailored

relief under the Due Process Clauses of the Fifth and Fourteenth

Amendments.” Id. at 439 (emphasis added).

In her concurring opinion, Justice Sotomayor suggested

using the test the Court applies to violations of the Speedy

Trial Clause set out in Barker v. Wingo, 407 U.S. 514 (1972):

[I]t seems to me that the Barker factors capture many of
the concerns posed in the sentencing delay context and that
because the Barker test is flexible, it will allow courts
to take account of any differences between trial and
sentencing delays. The majority of the Circuits in fact
use the Barker test for that purpose. See United States v.
Sanders, 452 F.3d 572, 577 (C.A.6 2006) (collecting cases).
In the appropriate case, I would thus consider the correct
test for a Due Process Clause delayed sentencing challenge.

578 U.S. at 451 (Sotomayor, J., concurring) (internal

citation omitted)(emphasis added).

This court has long relied on the Barker factors for

analyzing violations of speedy trial rights. See State v. Lau,

78 Hawai‘i 54, 62, 890 P.2d 291, 299 (1995). Under

the Barker test, courts consider four factors: (1) the length of

the delay, (2) reasons for the delay, (3) the defendant’s

assertion of his right, and (4) prejudice to the defendant. Id.

Justice Sotomayor notes that “[n]one of the four factors is

‘either necessary or sufficient,’ and no one factor has a

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‘talismanic qualit[y].’” Betterman, 578 U.S. at 451 (citing

Barker, 407 U.S. at 533).

We now adopt the Barker factors for analyzing

violations of due process in the delayed sentencing context.

1. Length of the delay

On April 20, 2018, the ICA vacated Canosa’s illegal

sentence and remanded for sentencing. On November 15, 2018, the

ICA issued its judgment on appeal ordering the same. Canosa

applied for a writ of certiorari, which this court rejected on

January 18, 2019. The length of delay from this court’s January

18, 2019 denial of certiorari until Canosa’s June 4, 2020

sentencing is sixteen months and seventeen days. The Betterman

court—faced with a fourteen-month delay in sentencing—found

that “a defendant’s due process right to liberty, while

diminished, is still present” and that “he retains an interest

in a sentencing proceeding that is fundamentally fair.” 578

U.S. at 447–48. In the speedy trial context, this court has

considered a delay of seven months sufficient to trigger an

inquiry into the other Barker factors. See State v. Almeida, 54

Haw. 443, 509 P.2d 549 (1973). Here, Canosa’s sentencing delay

of sixteen months and seventeen days is especially striking in

that it encompassed the expiration of the ordinary statutory

terms on September 22, 2019, thus depriving Canosa of a

proceeding on remand wherein he could present argument and

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allocution asking for an ordinary maximum term. On these facts,

the length of delay in Canosa’s sentencing is sufficient to

warrant an inquiry into the remaining Barker factors.

2. Reasons for the delay

Canosa contends that the State and/or the circuit

court caused an unreasonable delay in complying with the ICA’s

remand order for sentencing. The State admitted at oral

argument before this court12 that Canosa’s sentencing “slipped

through the cracks.” The State further conceded that it “looked

at the record” and that “there doesn’t seem to be an explanation

for why it happened.” The State went on to explain the process

for sentencing on remand, noting that “when a case is sent down

and remanded for resentencing it is typically the circuit court

that puts it on [the] calendar and sets it, or [The State] will

ask for a status for the case to be set.” During the June 4,

2020 sentencing hearing, the circuit court also acknowledged

that “there was a delay from the time that the Supreme Court

rejected certiorari from January 2019 to the time we began to

try to reschedule this resentencing[,]” and acknowledged to

Canosa “it's unfortunate that the delay occurred.”

This acknowledgement of shared responsibility across

the State and the circuit court for calendaring Canosa’s

12 Oral argument was held on October 18, 2022.

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sentencing on remand leads to the conclusion that unexplained

government inaction caused the delay in the instant case.

State v. Visintin summarizes how this court, in

accordance with the United States Supreme Court's decision

in Barker, analyzes whether the government’s reason(s) for delay

violate a defendant’s constitutional rights. See State v.

Visintin, 143 Hawaiʻi 143, 159, 426 P.3d 367, 383 (2018). When

the government’s delay deliberately attempts to hamper the

defense, that will be weighed heavily against the government.

Id. (internal citations omitted). When the reason behind the

government’s delay is more “neutral” such as “negligence or

overcrowded courts” this factor should be “weighted less heavily

but nevertheless should be considered since the ultimate

responsibility for such circumstances must rest with the

government rather than with the defendant.” Id. (quoting

Barker, 407 U.S. at 531). On that basis, this court has held

that when a government delay results from a more neutral reason,

the second Barker factor weighs in favor of the defendant. Id.

See also Lau, 78 Hawai‘i at 63, 890 P.2d at 300 (determining

that the “more neutral” reason of court congestion “still tips

the scales in favor of [the defendants][.]”). Here, the State

concedes that Canosa’s sentencing “slipped through the cracks”

and that the record is devoid of any explanation as to why.

This reason for the government’s delay falls within the more

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neutral “negligence” category. Because the government was

negligent in causing the delay, and because the record reflects

no amount of the delay is attributable to Canosa, this factor

must be weighed against the State and in favor of Canosa.

3. Assertion of the right

Applying the Barker factors in the speedy trial

context, this court has held that the State, not the defendant,

has the duty to bring about the commencement of proceedings:

[A] defendant has no duty to bring himself [or herself] to trial;
the [S]tate has that duty.” State v. Wasson, 76 Hawai‘i 415, 420,
879 P.2d 520, 525 (alterations in original) (quoting Barker, 407
U.S. at 527). “Thus, a defendant does not waive his or her right
to a speedy trial by failing to demand one.” Id. (citing Barker,
407 U.S. at 526). However, the assertion of the right to a
speedy trial “is entitled to strong evidentiary weight in
determining whether the defendant is being deprived of the
right.” Id. (quoting Barker, 407 U.S. at 531-32, 92 S.Ct.
2182).

Visintin, 143 Hawai‘i at 160, 426 P.3d at 384 (internal citations

cleaned up).

We now apply these principals in analyzing Canosa’s

assertion of his rights with respect to his delay in sentencing.

The record reflects that Canosa asserted his right to

be sentenced without unreasonable delay in a written objection

to sentencing filed on the morning of June 4, 2020. Canosa

asserted that the State’s failure and/or unreasonable delay to

sentence him prior to the September 22, 2019 expiration of the

ordinary maximum term deprived him of his due process rights

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under article 1, section 5 of the Hawai‘i Constitution and the

Fourteenth Amendment to the United States Constitution.

Further, Canosa testified at the June 4, 2020

sentencing hearing that he wrote a letter to his attorney before

the September 2019 expiration of the ordinary terms of his

sentence, asking why he wasn’t being sentenced. Canosa offered

the letter to the court, which declined to consider it in the

following exchange:

THE DEFENDANT: And I could have had one chance to persuade
you; right? One fair opportunity to persuade you to give me
that, at least consider it. But now I cannot have one fair
opportunity to do that because that expired.

But you know what else? I wrote to my lawyer. I wrote to
my lawyer before September, before the ordinary terms
expired asking him, eh, how come I not getting sentenced?
I like present this so I can convince you to just give me
the 10 and the 5 and run ‘em concurrent. I get one letter
right here. You want to see it?

THE COURT: No, sir. It's not part of what I can consider
today. Okay?

In addition to this court’s recognition that it is the

State’s duty to bring a defendant to trial, and that a defendant

has no duty to demand one, this court has also recognized that a

defendant’s failure to assert speedy trial rights shall not

weigh against them where “there appears to have been no

conventional forum in which [defendant] could have asserted the

right[.]” Visintin, 143 Hawai‘i at 161, 426 P.3d at 385.

In Visintin, this court recognized that for the period

of seven months during which time the defendant’s status was

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post-arrest and preindictment, there “[did] not appear to have

been any standard legal proceeding in which Visintin could have

demanded a speedy trial.” Id. Here, as in Visintin, there does

not appear to have been any standard legal proceeding in the

record during the sixteen months and seventeen days leading up

to the June 4, 2020 sentencing where Canosa could have asserted

his right to be sentenced without unreasonable delay.

Additionally, it was reasonable for Canosa to presume that there

would be such a proceeding, at least in the form of a sentencing

hearing, prior to the September 22, 2019 expiration of the

ordinary maximum sentence that he was eligible to receive.13 The

State failed to provide one. As such, the June 4, 2020

proceeding was the first conventional forum in which Canosa

could assert his rights since this court’s denial of certiorari

on January 18, 2019. A closer look at Canosa’s remand timeline

proves useful in analyzing Canosa’s opportunity to assert his

rights to be sentenced without undue delay.

HRPP Rule 32(a) provides that “[a]fter adjudication of

guilt, sentence shall be imposed without unreasonable delay.”

Canosa was therefore entitled to the reasonable presumption that

when his illegal sentence was vacated and remanded on April 20,

13 Because we conclude the State’s unreasonable delay in sentencing
deprived Canosa of due process, we need not reach Canosa’s remaining points
of error, including Canosa’s claims with respect to the expiration of the
ordinary terms.

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2018, he would have the opportunity to be sentenced before the

September 22, 2019 expiration of his ordinary maximum term

(approximately seventeen months later). It is also reasonable

that this court’s denial of certiorari on January 18, 2019 would

only strengthen Canosa’s presumption that he would be sentenced

prior to September 22, 2019, and that he would be afforded a

proceeding and an allocution prior to that date, during which

time he could argue for an ordinary maximum term. As a

convicted felon awaiting sentencing who had exhausted his

appeals, no other proceeding would be reasonably foreseeable.

In this respect, Canosa did not have a need to assert his right

to be sentenced without unreasonable delay prior to September

22, 2019. As such, it would be error to weigh Canosa’s failure

to assert his right to be sentenced against him where there was

(a) no conventional forum in which Canosa could do so, and (b)

prior to September 22, 2019, no apparent basis for Canosa to do

so.

On these grounds, and in accordance with Visintin,

Canosa did assert his rights on June 4, 2020, and any failure to

assert his right to be sentenced prior to June 4, 2020 shall not

weigh against him.

We now turn to the State’s argument that Canosa’s

sentencing delay should not be considered by this court as an

actual or appearance of injustice because Canosa’s counsel

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stated before the ICA that counsel did not need to bring

attention to the sentencing delay for strategic reasons. With

respect to counsel’s statement, this alone is not dispositive in

resolving this factor against Canosa. First, it was the State’s

duty, and not Canosa’s, to ensure Canosa was sentenced without

unreasonable delay. Second, Canosa’s testimony regarding his

letter to counsel, along with Canosa’s offering of the letter to

the court, evinces Canosa’s desire to assert his rights with

respect to being sentenced prior to the expiration of the

ordinary maximum terms. Third, the transcript from the June 4,

2020 sentencing hearing makes clear that Canosa was in strong

disagreement with his counsel’s strategy and arguments, and that

Canosa explicitly told the court his counsel was not arguing for

him during that proceeding:

THE DEFENDANT: Your Honor -- (inaudible). Excuse me one
minute. I understand what you're saying, but he not
arguing, you know, for me. That's why I gotta speak on my
behalf.

THE COURT: Sir, I've read your objections. I let you talk
today briefly. I understand what you're saying. I'm going
to rule. Okay?

THE DEFENDANT: How can I have one fair opportunity to
argue myself? He not arguing for me.

Canosa’s repeated on-the-record rejection of and

departure from his counsel’s arguments and strategy has

relevance when determining to what extent counsel’s strategy

remark should weigh against Canosa in resolving this factor. In

this regard, the weight to be given counsel’s strategy statement

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is less than perhaps it otherwise would be, though it does place

a thumb on the scale for the government.

We now turn to the balancing of this factor, and begin

with summarizing the issues that favor each party.

The issues that favor Canosa are: (1) Canosa asserted

his due process rights to be sentenced without unreasonable

delay in his written objection to sentencing filed on June 4,

2020, which was the first standard legal proceeding afforded to

Canosa since this court’s January 18, 2019 denial of certiorari;

(2) Canosa’s time on remand awaiting sentencing appears to have

lacked any other standard legal proceeding through which Canosa

could have asserted his right to be sentenced without

unreasonable delay; (3) Canosa had no duty to demand he be

sentenced; (4) the State did have a duty to sentence Canosa

without unreasonable delay; and (5) Canosa’s testimony about his

letter to counsel, which he offered to the court for

consideration, evinces his intent to be sentenced prior to

September 22, 2019.

For all the above reasons, the third Barker factor

would tip squarely in Canosa’s favor if not for counsel’s

strategy comment. This court finds that counsel’s strategy

comment cannot be imputed to Canosa, who demonstratively

distanced himself from counsel’s arguments during the June 4,

2020 sentencing hearing and pleaded with the court to consider

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his prior correspondence with counsel seeking a timely

sentencing. Compare Barker, 407 U.S. at 535 (finding that the

record strongly suggested the defendant “hoped to take advantage

of the delay [in trial] in which he had acquiesced and thereby

obtain a dismissal of the charges” but that the defendant

“definitely did not want to be tried”). Because Canosa’s

assertion of his rights on June 4, 2020 is entitled to strong

evidentiary weight, and in view of all the other issues weighing

in Canosa’s favor, the third Barker factor—the timeliness of

Canosa’s assertion of undue delay—weighs in favor of Canosa.

4. Prejudice to the defendant

We now turn to the fourth Barker factor to determine

whether the delay in sentencing prejudiced Canosa. In Barker,

the United States Supreme Court analyzed prejudice by placing a

premium on whether the delay impaired the defense:

Prejudice, of course, should be assessed in the light of
the interests of defendants which the speedy trial right
was designed to protect. This Court has identified three
such interests: (i) to prevent oppressive pretrial
incarceration; (ii) to minimize anxiety and concern of the
accused; and (iii) to limit the possibility that the
defense will be impaired. Of these, the most serious is the
last, because the inability of a defendant adequately to
prepare his case skews the fairness of the entire system.

Barker, 407 U.S. at 532 (footnote omitted)(emphasis added).

Given the seriousness of Canosa’s liberty interest at

stake, we begin with analysis of the third interest enumerated

in Barker.

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Canosa contends that the government’s undue delay in

sentencing prejudiced him with respect to parole considerations,

and deprived him of his constitutional right to allocution.

With respect to parole considerations, Canosa argues that the

unreasonable delay in sentencing prejudiced him by delaying his

ability to commence mandatory minimum term proceedings with the

Hawaiʻi Paroling Authority (“HPA”), which in turn impaired his

ability to access rehabilitative programming, and extended the

time he would be ineligible for rehabilitative services.

Canosa’s argument has merit. It is axiomatic that an undue

delay in sentencing necessitates a corresponding undue delay in

commencing proceedings with the HPA. This court agrees that the

State’s delay in sentencing Canosa effected a corresponding

delay in Canosa’s proceedings with the HPA, which substantially

prejudiced Canosa by impairing his ability to obtain a mandatory

minimum term and commence rehabilitative services.

With respect to allocution, a convicted defendant is

guaranteed the right of allocution pursuant to the due process

clause, article 1, section 5, of the Constitution of the State

of Hawai‘i, and as enshrined in HRPP Rule 32(a) and HRS § 706-

604(1).14 See State v. Carlton, 146 Hawai‘i, 16, 25, 455 P.3d

14 See Carlton, 146 Hawai‘i at 25, 455 P.3d at 365 (“It is the duty
of the trial court to directly address the defendant and ensure the

(continued . . .)

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356, 365 (2019). This court has held that in order for the

right of allocution to be meaningful, a defendant must be

afforded an opportunity to exercise the right at a meaningful

time and in a meaningful manner, as follows:

As stated, the right of presentence allocution is an
important constitutional right guaranteed under the due
process clause of the Hawai‘i Constitution. State v.
Hernandez, 143 Hawai‘i 501, 509, 431 P.3d 1274, 1282 (2018).
We have observed that “procedural due process requires that
a person have an ‘opportunity to be heard at a meaningful
time and in a meaningful manner.’” In re Application of
Maui Elec. Co., 141 Hawai‘i 249, 269, 408 P.3d 1, 21 (2017)
(quoting Freitas v. Admin. Dir. of Courts, 108 Hawai‘i 31,
44, 116 P.3d 673, 686 (2005)). As a due process right, a
defendant's right of allocution is violated if the court
fails to afford the defendant an opportunity to exercise
the right at a meaningful time and in a meaningful
manner. See, e.g., State v. Carvalho, 90 Hawai‘i 280, 286,
978 P.2d 718, 724 (1999) (a sentencing court must afford a
defendant the right of presentence allocution
“before ruling on the applicability of the young adult
defendants statute”). In order to be meaningful, the
opportunity for allocution must be reasonably calculated to
achieve its purposes of providing the defendant with an
opportunity to plead for mitigation, contest the factual
bases for sentencing, and acknowledge wrongdoing. See State
v. Chow, 77 Hawai‘i 241, 250, 883 P.2d 663, 672 (App. 1994).

Carlton, 146 Hawai‘i at 25–26, 455 P.3d at 365–66. (internal

citations cleaned up).

(. . . continued)

defendant's right of allocution is upheld. See State v. Schaefer, 117 Hawai‘i
490, 498, 184 P.3d 805, 813 (App. 2008) (“We know of no effective or adequate
manner in which a defendant's right of presentence allocution may be
constitutionally realized than to affirmatively require that the trial court
make direct inquiry of the defendant's wish to address the court before
sentence is imposed.” (quoting Chow, 77 Hawai‘i at 247, 883 P.2d at 669)).
This duty is also imposed on the trial court by the language of HRS § 706-
604(1), which, as noted above, provides that “the court shall afford a fair
opportunity to the defendant to be heard on the issue of the defendant's
disposition.” (Emphasis added.) HRPP Rule 32(a) uses similar mandatory
language, instructing that “before suspending or imposing sentence, the court
shall address the defendant personally.”)(emphasis in original).

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Here, a review of the record in the instant case makes

clear that Canosa was deprived of his constitutional right to

allocution at a meaningful time and in a meaningful manner by

the State’s failure to sentence Canosa prior to the expiration

of the ordinary terms.

As discussed herein under the third Barker factor,

Canosa was entitled to the reasonable presumption that when his

illegal sentence was vacated and remanded on April 20, 2018, he

would be resentenced before the September 22, 2019 expiration of

his ordinary maximum term (approximately seventeen months

later). The alternative scenario makes the reasonability of

this presumption plainly evident: should the State fail to

impose sentence by that time, it would create the unusual

situation whereby a sentencing court, empowered to use its

discretion to impose an ordinary maximum term, would find that

the defendant had already been materially detained beyond it.

Such a circumstance may deprive the defendant’s sentencing

proceedings of the appearance of justice, where a sentencing

court faced with such a dilemma may be perceived as having been

constrained by these facts to impose extended terms, or—even

more unjust—actually doing so. Such circumstances may also

suggest that the only way to preserve the appearance of justice

under these facts would be to impose the ordinary maximum term

and acknowledge the State’s error of over-detention. This too

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is inadequate, as the court may also feel constrained in so

doing, and desire to impose extended terms but dare not for

concern with respect to the optics of injustice.

For these reasons and more, the instant case raises

this court’s concern that Canosa has not received the appearance

of justice, and was deprived of sentencing proceedings that were

fundamentally fair.

The State had nine months from the denial of

certiorari, and seventeen months from the ICA’s judgment on

appeal, to sentence Canosa prior to the expiration of his

ordinary terms. That the government failed to do so because of

neglect brings the unreasonable nature of Canosa’s delay in

sentencing into sharp relief.

This unreasonable delay in sentencing Canosa

prejudiced Canosa and deprived him of his right to allocution

and argument for receiving an ordinary term before it expired.

Canosa (1) had served nearly ten years of imprisonment; (2) was

on remand awaiting sentencing following the vacatur of his

illegal sentence, with a new opportunity to be sentenced to an

ordinary maximum term; and (3) faced the prospect of an

additional decade of imprisonment should he be unable to

persuade the resentencing court to impose the ordinary term.

His right of allocution was an opportunity to marshal resources

to prepare for an effective allocution aimed at protecting his

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serious liberty interest in the decade that hung in the balance.

Without any notice, and without any justification, the State

impaired Canosa’s defense by allowing the expiration of Canosa’s

ordinary maximum term to elapse prior to sentencing.

Thus, the State’s failure to provide Canosa the

opportunity for allocution prior to the expiration of the

ordinary term is evidence of the State’s failure to provide

allocution in a “meaningful time” and a “meaningful manner.”

Canosa’s right to allocution was constitutionally impaired,

satisfying the third and most critical prong of this prejudice

factor. The weight of this finding renders analysis of the

other two prongs, oppressive incarceration and anxiety,

unnecessary.

The record plainly demonstrates that the State’s undue

delay in sentencing prejudiced Canosa with respect to parole

considerations, and deprived him of his constitutional right to

allocution.

5. Balance of the factors

Canosa has been subject to a sentencing delay of

sixteen months and seventeen days that deprived him of his right

to allocution and a sentencing proceeding that was fundamentally

fair. The government was negligent in allowing Canosa’s

sentencing to “slip through the cracks,” and while this is a

more neutral reason than an intentional delay, it still weighs

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in Canosa’s favor. Canosa asserted his rights to be sentenced

without unreasonable delay, and even if we were to find that

Canosa bears some responsibility for the situation in that his

counsel stayed silent and failed to request a timely sentencing

prior to June 4, 2020, the facts remain that (1) Canosa has no

obligation to ask to be sentenced, and (2) the State failed to

fulfill its duty to sentence Canosa in a timely manner.

Further, the prejudice here is truly significant and materially

impaired Canosa’s defense, as Canosa (1) was unable to commence

proceedings with the HPA and remained ineligible for

rehabilitative services, and (2) was not afforded the

opportunity for allocution in a meaningful time, and in a

meaningful manner, where an additional decade of imprisonment

was at stake.

We conclude that in light of the reasons for the delay

and the prejudice established by Canosa, and considering all the

circumstances, the delay in Canosa’s resentencing violated the

due process clause under article 1, section 5 of the Hawai‘i

Constitution and the Fourteenth Amendment to the United States

Constitution. In so finding, we do not need to reach Canosa’s

remaining points of error.

We highlight the narrowness of this holding. This is

an unusual case where the chronology and facts compel the

conclusion that Canosa’s rights were violated for the reasons

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set forth herein. This court’s finding that Canosa’s due

process rights were violated by the unreasonable delay in

sentencing constitutes the third instance of government error in

the Canosa trilogy: Canosa I was vacated and remanded for

retrial on prosecutorial misconduct grounds; Canosa II vacated

an illegally severe sentence and remanded for sentencing; and

Canosa III finds Canosa was deprived of due process with respect

to unreasonable delay in sentencing, as well as with respect to

allocution rights.

6. Remedy for the violation

There being a clear due process violation with respect

to defendant’s sentencing, pursuant to this court’s authority

under Hawai‘i Revised Statutes § 602-5(a)(6)(2016) to “take such

other steps as may be necessary . . . for the promotion of

justice in matters pending before it,” the Petitioner is to be

released from State custody forthwith, and the remainder of his

sentence is vacated.

V. CONCLUSION

For the foregoing reasons, the ICA’s June 6, 2022

Judgment on Appeal is vacated. Petitioner is to be released

from State custody forthwith. The case is remanded to the

circuit court to enter an order (1) vacating its Order Denying

Defendant’s HRPP Rule 35(a) Motion to Correct Illegal Sentence

and (2) amending its July 10, 2020 Amended Judgment of

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Conviction and Sentence to reflect time served, nunc pro tunc

from the date of Petitioner’s release.

Shawn A. Luiz, /s/ Mark E. Recktenwald
for Petitioner
/s/ Paula A. Nakayama
Stephen K. Tsushima,
for Respondent /s/ Sabrina S. McKenna

/s/ Michael D. Wilson

/s/ Todd W. Eddins

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