State v. Kong.

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Electronically Filed
Supreme Court
SCWC-11-0000393
10-DEC-2013
08:54 AM

IN THE SUPREME COURT OF THE STATE OF HAWAI#I

---o0o---

STATE OF HAWAI#I, Respondent/Plaintiff-Appellee,

vs.

STANLEY S.L. KONG, Petitioner/Defendant-Appellant.

SCWC-11-0000393

CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-11-0000393; CR. NO. 09-1-0683(2))

DECEMBER 10, 2013

RECKTENWALD, C.J., NAKAYAMA, J., AND CIRCUIT JUDGE AYABE,
IN PLACE OF POLLACK, J., RECUSED, WITH ACOBA, J.,
DISSENTING SEPARATELY, WITH WHOM MCKENNA, J., JOINS

OPINION OF THE COURT BY RECKTENWALD, C.J.

Stanley S.L. Kong was charged with Promoting a

Dangerous Drug in the Second Degree and Prohibited Acts Related

to Drug Paraphernalia. He was admitted into the Maui Drug Court

program, but subsequently self-terminated from the program. The

Circuit Court of the Second Circuit then found Kong guilty as
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charged, and sentenced him to a ten year indeterminate term of

imprisonment and a five year indeterminate term of imprisonment,

respectively.1 The circuit court ordered that the terms run

consecutively, for a total of 15 years, due to Kong’s history of

“extensive criminality.”

In his application, Kong argues that the circuit

court’s statement regarding his “extensive criminality” was

insufficient to justify his consecutive sentence based on the

requirements set forth in State v. Hussein, 122 Hawai#i 495, 229

P.3d 313 (2010). He also argues that his sentence constitutes

plain error because it was based on crimes he did not commit.

Finally, Kong argues that the colloquy conducted by the circuit

court regarding his self-termination from the Drug Court program

was insufficient to establish that he knowingly, voluntarily, and

intelligently waived his right to a termination hearing.

For the reasons set forth below, we reject each of

Kong’s arguments. We affirm the judgment of the Intermediate

Court of Appeals, which affirmed the circuit court’s judgment of

conviction and sentence.

I. Background

The following factual background is taken from the

record on appeal.

1
The Honorable Shackley F. Raffetto presided.

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A. Circuit Court Proceedings

Kong was charged with Promoting a Dangerous Drug in the

Second Degree in violation of Hawai#i Revised Statutes (HRS)

§ 712-1242,2 and Prohibited Acts Related to Drug Paraphernalia in

violation of HRS § 329-43.5.3

Kong subsequently petitioned for admission into the

Maui Drug Court program. Kong signed a petition for admission,

in which he waived his right to a trial, confirmed his

understanding that the charges against him would be dismissed if

he successfully completed the program, and confirmed his

understanding that he would proceed to a stipulated facts trial

2
HRS § 712-1242 (Supp. 2007) provides, in relevant part:

(1) A person commits the offense of promoting a
dangerous drug in the second degree if the person
knowingly:
. . . .
(b) Possesses one or more preparations,
compounds, mixtures, or substances of an
aggregate weight of:
(i) One-eighth ounce or more, containing
methamphetamine, heroin, morphine, or
cocaine or any of their respective salts,
isomers, and salts of isomers[.]
. . . .
(2) Promoting a dangerous drug in the second degree
is a class B felony.
3
HRS § 329-43.5 (1993) provides, in relevant part:

(a) It is unlawful for any person to use, or to
possess with intent to use, drug paraphernalia to
plant, propagate, cultivate, grow, harvest,
manufacture, compound, convert, produce, process,
prepare, test, analyze, pack, repack, store, contain,
conceal, inject, ingest, inhale, or otherwise
introduce into the human body a controlled substance
in violation of this chapter. Any person who violates
this section is guilty of a class C felony and upon
conviction may be imprisoned pursuant to section
706-660 and, if appropriate as provided in section
706-641, fined pursuant to section 706-640.

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if he was unsuccessful in the program. He also admitted to the

charges against him.

That same day, the circuit court held a hearing, in

which it orally informed Kong of the legal rights that he would

surrender if he chose to enter the Drug Court program. The

circuit court also reviewed the petition with Kong and explained

to Kong that he would be terminated from the program if he

violated any of the rules set forth in the Drug Court Program

Admission Agreement, which Kong also had signed. The circuit

court conducted a detailed colloquy with Kong regarding the

rights he was waiving by agreeing to enter the program, including

his right to a trial on the charges and the rights associated

with a public trial. The circuit court confirmed that Kong

admitted to the charges and wanted to proceed. The circuit court

found that Kong voluntarily, knowingly, and intelligently waived

his rights as indicated in the petition, and admitted Kong into

the program.

Kong subsequently attended numerous status hearings

over a period of approximately six months. However, at a January

26, 2011 status hearing,4 Kong’s counsel, a Deputy Public

Defender (DPD) indicated her understanding that the Drug Court

program was recommending that Kong be terminated from the

program. The DPD stated that Kong instead wanted to self-

4
The Honorable Joseph E. Cardoza presided.

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terminate from the program. Kong’s Drug Court treatment team

confirmed that Kong had failed to appear for a urinalysis,

treatment group, and scheduled status hearing, and recommended

that the court set a termination hearing. The circuit court

addressed Kong:
[Mr. Kong], although the treatment team has
recommended a termination hearing, I’m going to take
you through some questions that . . . are similar to
the questions I asked of someone else who indicated
they wanted to terminate, or that person wanted to
terminate.
You have the right to have a hearing on that.
Just because someone recommends termination, it
doesn’t mean it’s automatic. And at that hearing the
Government would basically have to present an
appropriate basis for terminating you from the drug
court program. If the Court determines that that’s
not the appropriate course, then you can remain in the
program and participate in the program. If, on the
other hand, it is determined that termination is the
appropriate result, then you would be terminated from
the program.
But what I want to emphasize is that what’s
important here is that you understand that you have a
right to have a hearing on that, and you have the
right to have your attorney present and represent you
during that hearing. So in addition to what the
Prosecutor might do at the hearing and the burden that
the Prosecution would carry, you have the right to
have your attorney present whatever you would like
your attorney to present during the termination
hearing and have a fair hearing on that before that
decision is made.

Kong acknowledged that he understood what the circuit

court explained. The circuit court also explained to Kong the

consequences of termination:
And, now, at a termination hearing, if you are
terminated, you are a Track II participant, so what
would happen is your -- your case would proceed to
what’s called a stipulated facts trial, in other
words, where the facts are agreed on. So if you get
past the point of termination, for example, if you
self-terminate, for example, or if it’s determined
that you should be terminated, then the stipulated
facts trial is basically a very short trial. Because
essentially what you will have done already is
admitted to all of the parts of the charge. So that’s

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presented and the trial doesn’t even last a minute and
you are found guilty as charged. You understand that?

Kong again acknowledged that he understood what the

circuit court explained. The circuit court then stated, “And the

reason I’m asking you that question is I want to make sure you

understand . . . what consequences flow from the decision to

self-terminate.” (Emphasis added). The circuit court again

asked Kong if he understood the consequences of a decision to

self-terminate from the Drug Court program, and Kong responded,

“Yeah, I understand in part. Yes, I do.” The circuit court then

explained:
Okay. So, basically there’s no hearing. You
give up the right to a termination hearing, number
one, if you self-terminate; number 2, you move onto a
stipulated facts trial where it’s almost virtually
certain, unless your attorney files any
constitutionally based motions on your behalf, it’s
virtually certain that you will be found guilty as
charged. And if the motions are filed, if there are
any motions that could be filed, then those are heard.
But if those are not successful, then that leads to a
stipulated facts trial and that would . . .
essentially result in a finding of guilty. Do you
understand all of that?

Kong responded, “Yeah. Yeah.” Kong then stated, “I

want to self-terminate,” but indicated that “just for the record”

that “[u]p until this point the Public Defender’s Office was, to

my understanding, was never allowed to represent me in any felony

cases because of conflict of interest in the past. They

represented people who testified against me.” The DPD stated:
I know [] Kong wanted to raise this to the Court
today to preserve the issue, just to have it be on the
record. And we did have this conversation about what
appears to be a prior conflict with the Public
Defender’s Office with [] Kong as a juvenile in First
Circuit on Oahu.

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. . . .
[I]n looking in our data base, closed and opened
files, there was no such conflict, and we were never
told of a conflict. And I did raise the issue, and we
can continue to talk about whether [Kong] wants to
file a motion to withdraw, and that would be fine.
But further discussion can be had, and I do understand
that [] Kong still wanted to proceed with this self-
termination, but possibly maybe with a new attorney.

Kong then stated that he “wanted to state [the possible

conflict] on the record, and then still proceed with the

termination.” The circuit court was hesitant to proceed with

termination in light of Kong’s desire to preserve for appeal the

issue of a possible conflict of interest. Accordingly, the

circuit court set a hearing for a motion to withdraw counsel for

February 3, 2011, and a termination hearing for March 7, 2011.

Kong ultimately did not file a motion for withdrawal

and substitution of counsel pertaining to any alleged conflict of

interest in relation to the circuit court proceedings. At the

February 3, 2011 hearing,5 the issue of withdrawal of counsel was

not addressed. Instead, the following exchange occurred at the

beginning of the hearing:
[DPD]: Good morning, your Honor. [The DPD] on
behalf of [] Kong who is present, ready to
self-terminate from the drug court
program. Although he did benefit from the
program and he would like to continue, he
understands and would like to self-
terminate in order to speed up the
process.
THE COURT: Okay.
[Kong], is that right?
[Kong]: Yes, your Honor.
THE COURT: You want to self-terminate from the
program?
[Kong]: Yes, your Honor.
THE COURT: Is you mind clear today about saying that?

5
The Honorable Shackley F. Raffetto presided.

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[Kong]: Yes, it is.
THE COURT: Are you taking any medicines or drugs?
[Kong]: I’m not.
THE COURT: All right.
The Court finds the defendant
voluntarily, knowingly, and intelligently
terminates from the adult drug court
program.
We can go ahead with the stip facts
trial then[.]

The circuit court determined that Kong was guilty as

charged on all counts.

A sentencing hearing was held approximately two months

later. At the hearing, the DPD indicated, “[W]e are prepared to

proceed with sentencing. We have received the pre-sentence

investigation [(PSI)] report. There are no changes at this

time.” (Emphasis added). The DPD requested that the circuit

court consider sentencing Kong to “probation with long term

treatment[.]” However, sentencing was continued because there

was apparent confusion over whether one of the charges had been

reduced.

At the continued sentencing hearing,6 the DPD indicated

that “Kong does not want to stipulate to the contents of the

[PSI] report in this case[,]” to which the circuit court

responded, “That’s fine.” The State then clarified that the

charges had not been reduced. The DPD requested a sentence of

probation or, alternatively, concurrent sentences.

The State then stated:

6
The Honorable Shackley F. Raffetto presided.

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We will ask the Court to impose the prison term.
[Kong] has previously served five and ten year prison
terms, and his parole was revoked repeatedly in ‘93,
‘99, 2001, 2002. He was given a chance as a high risk
candidate for drug court, and he just skipped out. So
he’s not probation eligible and would just ask that
you impose the prison term at this point.

Kong stated:
. . . I would like to thank the Court for giving me
the opportunity to participate in drug court at that
time. There’s only been two judges who has ever given
me a chance, Judge Marks and yourself, so that much
I’m grateful for. Sorry I wasn’t able to complete it
and maybe waste the taxpayer’s money. But, you know,
hopefully on the path that I take now I can make
better decisions, if the scenario like that presents
itself to me again.

The circuit court then sentenced Kong:
Taking into consideration all of the factors set
forth in [HRS §] 706-606, including the extensive
record of the defendant, which includes six burglary
convictions, . . . ten felonies, which represents a
lot of harm in our community.
The Court is going to impose the following
sentence in this matter. The defendant will be
committed to the care and custody of the Director of
the Department of Public Safety for a period of ten
years on Count 1, five years on Count 2.
. . . .
In view of his extensive criminality, the Court
is going to make these counts run consecutive for a
total of fifteen years, mittimus forthwith, full
credit for time served.
I will order that he be given an opportunity to
participate in the Cash Box drug treatment program at
the earliest convenience of the Department of Public
Safety.

Thereafter, the circuit court entered its Judgment of

Conviction and Sentence, and Kong timely filed a notice of

appeal.

B. Appeal

On appeal, Kong raised three points of error: (1)

whether the circuit court erred in imposing consecutive terms of

imprisonment without adequately articulating a rationale; (2)

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whether the circuit court violated Kong’s due process rights by

basing its sentence on certain crimes set forth in the PSI

report, specifically crimes in Cr. No. 92-0138 that Kong alleged

were “vacated, remanded, and ultimately dismissed”; and (3)

whether the circuit court erred by terminating Kong from the Drug

Court program without conducting an on-the-record colloquy

advising Kong of the rights he would relinquish by self-

terminating.

In its answering brief, the State argued that the

circuit court “clearly stated the specific fact of Kong’s

extensive criminal record was the reason for its imposition of

consecutive sentencing for the protection of the community.” The

State then argued that the circuit court properly considered the

information contained in the PSI report. Specifically, the State

argued that Kong did not challenge the information in the PSI

report in the circuit court and, in any event, the circuit court

did not plainly err in sentencing Kong based on his “extensive

criminal record in general, and not specifically” the alleged

inaccurate convictions. Finally, the State argued that the

circuit court properly terminated Kong from the Drug Court

program.

In a published opinion, the ICA held that the circuit

court did not abuse its discretion in sentencing Kong to

consecutive terms of imprisonment. State v. Kong, 129 Hawai#i

135, 295 P.3d 1005 (App. 2013). The ICA determined:

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Here, the Circuit Court did not abuse its
discretion by sentencing Kong to consecutive terms of
imprisonment pursuant to HRS § 706-668.5 because it
considered the factors set forth in HRS § 706-606.
The Circuit Court explained its reasoning before
imposing its sentence, stating, “Taking into
consideration all of the factors set forth in [HRS]
Section 706-606, including the extensive record of the
defendant, which includes six burglary convictions
. . . ten felonies, which represents a lot of harm in
our community.” The Circuit Court further stated, “In
view of [Kong’s] extensive criminality, the Court is
going to make these counts run consecutive for a total
of fifteen years[.]”
Kong’s “extensive record” and the fact that he
caused “a lot of harm in our community” are specific
circumstances that led the Circuit Court to conclude
that a consecutive sentence was appropriate in this
case. Given these circumstances, the Circuit Court
likely concluded that Kong was “dangerous to the
safety of the public, or poses an unacceptable risk of
re-offending[.]” Hussein, 122 Hawai#i at 509, 229
P.3d at 327. In fact, Kong had re-offended, admitting
that he had used drugs while participating in the MDC
program. Kong had been given a second chance when he
was allowed to continue in the [Drug Court] program
after relapsing. Yet, Kong decided to self-terminate
from the program, suggesting that “rehabilitation
appears unlikely due to his [] lack of motivation and
a failure to demonstrate any interest in treatment[.]”
Hussein, 122 Hawai#i at 509, 229 P.3d at 327. These
specific circumstances support the conclusion that the
Circuit Court’s “decision to impose consecutive
sentences was deliberate, rational, and fair.”
Hussein, 122 Hawai#i at 510, 229 P.3d at 328.

Id. at 141, 295 P.3d at 1011 (footnotes omitted).

The ICA also held that the circuit court properly

considered Kong’s PSI report. Id. at 141-43, 295 P.3d at 1011-

13. Citing this court’s opinion in State v. Heggland, 118

Hawai#i 425, 439-40, 193 P.3d 341, 355-56 (2008), the ICA

determined that Kong “conceded his prior convictions” because

“each conviction listed may be used against defendant except

those as to which the defendant timely responds with a good faith

challenge on the record that the prior criminal conviction was

. . . not against the defendant.” Kong, 129 Hawai#i at 143, 295

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P.3d at 1013. The ICA further held that these circumstances “do

not rise to the level of plain error” inasmuch as the circuit

court based its sentence on Kong’s “extensive criminality” and

not specifically on the convictions in Cr. No. 92-0138. Id.

Finally, the ICA held that the circuit court properly

terminated Kong from the Drug Court program because, under the

totality of the circumstances, Kong voluntarily and intelligently

self-terminated from the Drug Court program, and waived his right

to a terminating hearing. Id. at 143-45, 295 P.3d at 1013-15.

Kong timely filed an application for writ of

certiorari. The State did not file a response.

II. Standards of Review

A. Sentencing

This court has stated,
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 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. Rivera, 106 Hawai#i 146, 154-55, 102 P.3d 1044, 1052-53

(2004) (format altered) (quotation marks, brackets, and citations

omitted), overruled on other grounds by State v. Maugaotega, 115

Hawai#i 432, 442-43, 168 P.3d 562, 572-73 (2007); State v.

Aplaca, 96 Hawai#i 17, 25, 25 P.3d 792, 800 (2001).

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“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.” State v. Akana, 10 Haw. App. 381,

386, 876 P.2d 1331, 1334 (1994).

B. Plain Error

Hawai#i Rules of Penal Procedure (HRPP) Rule 52(b)

(2012) states that “[p]lain errors or defects affecting

substantial rights may be noticed although they were not brought

to the attention of the court.” Therefore, an appellate court

“may recognize plain error when the error committed affects

substantial rights of the defendant.” State v. Staley, 91

Hawai#i 275, 282, 982 P.2d 904, 911 (1999) (citation omitted).

The appellate court “will apply the plain error

standard of review to correct errors which seriously affect the

fairness, integrity, or public reputation of judicial

proceedings, to serve the ends of justice, and to prevent the

denial of fundamental rights.” State v. Nichols, 111 Hawai#i

327, 334, 141 P.3d 974, 980 (2006) (quoting State v. Sawyer, 88

Hawai#i 325, 330, 966 P.2d 637, 642 (1998)). An appellate

court’s “power to deal with plain error is one to be exercised

sparingly and with caution because the plain error rule

represents a departure from a presupposition of the adversary

system –- that a party must look to his or her counsel for

protection and bear the cost of counsel’s mistakes.” Nichols,

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111 Hawai#i at 335, 141 P.3d at 982 (quoting State v. Kelekolio,

74 Haw. 479, 515, 849 P.2d 58, 74-75 (1993)).

III. Discussion

A. The circuit court did not abuse its discretion in sentencing
Kong to consecutive terms of imprisonment

Kong argues that the circuit court’s statement

regarding his “extensive criminality” was insufficient to justify

the imposition of consecutive sentences and did not meet the

requirements of Hussein. As explained below, the circuit court

did not abuse its discretion in sentencing Kong to consecutive

terms based on Kong’s “extensive criminality.”

A sentencing court has discretion to order multiple

terms of imprisonment to run concurrently or consecutively. HRS

§ 706-668.5(1) (Supp. 2008) (“If multiple terms of imprisonment

are imposed on a defendant . . . the terms may run concurrently

or consecutively.”). “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.” HRS § 706-668.5(2) (1993). HRS § 706-606 (1993)

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;

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(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.

“[A]bsent clear evidence to the contrary, it is

presumed that a sentencing court will have considered all factors

before imposing concurrent or consecutive terms of imprisonment

under HRS § 706-606.” Hussein, 122 Hawai#i at 503, 229 P.3d at

321 (citations and brackets omitted). Nevertheless, in Hussein,

this court determined that “circuit courts must state on the

record at the time of sentencing the reasons for imposing a

consecutive sentence.” Id. at 510, 229 P.3d at 328 (emphasis

added). This court explained:
Such a requirement serves dual purposes. First,
reasons identify the facts or circumstances within the
range of statutory factors that a court considers
important in determining that a consecutive sentence
is appropriate. An express statement, which evinces
not merely consideration of the factors, but recites
the specific circumstances that led the court to
impose sentences consecutively in a particular case,
provides a meaningful rationale to the defendant, the
victim, and the public.
Second, reasons provide the conclusions drawn by
the court from consideration of all the facts that
pertain to the statutory factors. It is vital, for
example, for the defendant to be specifically informed
that the court has concluded that he or she is
dangerous to the safety of the public, or poses an
unacceptable risk of re-offending, or that
rehabilitation appears unlikely due to his or her lack
of motivation and a failure to demonstrate any
interest in treatment, or that the multiplicity of
offenses and victims and the impact upon the victims’
lives warrant imposition of a consecutive term.
Hence, reasons confirm for the defendant, the victim,
the public, and the appellate court, that the decision
to impose consecutive sentences was deliberate,
rational, and fair.

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Id. at 509-10, 229 P.3d at 327-28.

In this case, the circuit court explained its reasoning

for imposing its sentence:
Taking into consideration all of the factors set
forth in [HRS §] 706-606, including the extensive
record of the defendant, which includes six burglary
convictions, . . . ten felonies, which represents a
lot of harm in our community.
The Court is going to impose the following
sentence in this matter. The defendant will be
committed to the care and custody of the Director of
the Department of Public Safety for a period of ten
years on Count 1, five years on Count 2.
. . . .
In view of his extensive criminality, the Court
is going to make these counts run consecutive for a
total of fifteen years, mittimus forthwith, full
credit for time served.
I will order that he be given an opportunity to
participate in the Cash Box drug treatment program at
the earliest convenience of the Department of Public
Safety.

(Emphasis added).

Kong characterizes the circuit court’s justification

for imposing consecutive terms of imprisonment as “terse,

conclusory, and last[ing] two words.” However, the sentencing

court is not required to articulate and explain its conclusions

with respect to every factor listed in HRS § 706-606. Id. at

518-19, 229 P.3d at 337-38. 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.” Id. at 503, 229 P.3d at 321 (citations omitted). Thus,

the sentencing court is required to articulate its reasoning only

with respect to those factors it relies on in imposing

consecutive sentences. Id. at 509-10, 229 P.3d at 327-28.

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Hussein set forth two purposes served by requiring the

court to state on the record the reasons for imposing a

consecutive sentence: (1) identifying the facts or circumstances

within the range of statutory factors that the court considered,

and (2) confirming for the defendant, the victim, the public, and

the appellate court that the decision was deliberate, rational,

and fair. Id. Here, the circuit court’s rationale satisfied the

dual purposes set forth in Hussein.

First, the circuit court’s statement regarding Kong’s

“extensive criminality” identified the specific facts or

circumstances within the range of statutory factors that the

court considered in imposing a consecutive sentence. See id. at

509, 229 P.3d at 327 (requiring that the sentencing court state

“the specific circumstances that led the court to impose

sentences consecutively in a particular case”). Indeed, the

circuit court’s statement regarding Kong’s “extensive

criminality” relates directly to the first of the relevant

statutory factors listed in HRS § 706-606(1): “the history and

characteristics of the defendant[.]”

Second, the circuit court’s statement regarding Kong’s

extensive criminality also “provide[d] the conclusions drawn by

the court from consideration of all the facts that pertain to the

statutory factors[,]” and confirms for Kong, the public, and this

court that the decision to impose consecutive sentences was

deliberate, rational, and fair. Hussein, 122 Hawai#i at 509-10,

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229 P.3d at 327-28. Put simply, Kong’s “extensive criminality”

provided a rational and fair basis within the range of statutory

factors for the imposition of consecutive sentences.

However, Kong also asserts that the ICA erred in

providing a “post hoc justification” for the circuit court’s

rationale when it speculated as to what the circuit court “likely

concluded[.]” Kong specifically refers to the following

paragraph of the ICA’s opinion:
Given these circumstances, the Circuit Court likely
concluded that Kong was “dangerous to the safety of
the public, or poses an unacceptable risk of
re-offending[.]” In fact, Kong had re-offended,
admitting that he had used drugs while participating
in the [Drug Court] program. Kong had been given a
second chance when he was allowed to continue in the
[Drug Court] program after relapsing. Yet, Kong
decided to self-terminate from the program, suggesting
that “rehabilitation appears unlikely due to his []
lack of motivation and a failure to demonstrate any
interest in treatment[.]” These specific
circumstances support the conclusion that the Circuit
Court’s “decision to impose consecutive sentences was
deliberate, rational, and fair.”

Kong, 129 Hawai#i at 141, 295 P.3d at 1011 (citations omitted)

(emphasis added).

In this paragraph, it appears that the ICA attempted to

relate the circuit court’s factual considerations to the examples

given in Hussein that would justify the circuit court’s

imposition of a consecutive sentence:
It is vital, for example, for the defendant to be
specifically informed that the court has concluded
that he or she is dangerous to the safety of the
public, or poses an unacceptable risk of re-offending,
or that rehabilitation appears unlikely due to his or
her lack of motivation and a failure to demonstrate
any interest in treatment, or that the multiplicity of
offenses and victims and the impact upon the victims’
lives warrant imposition of a consecutive term.

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Hussein, 122 Hawai#i at 509, 229 P.3d at 327.

The ICA’s determination that “the [c]ircuit [c]ourt

likely concluded that Kong was ‘dangerous to the safety of the

public, or poses an unacceptable risk of re-offending’” and that

rehabilitation appeared unlikely arguably could be read as

speculating as to the circuit court’s reasoning. Such

speculation would be contrary to the holding in Hussein that the

circuit court justify its decision “on the record at the time of

sentencing.” However, when read in context, it appears the ICA

was not speculating regarding the circuit court’s reasoning, but

rather attempting to link the circuit court’s express reasoning

to the examples given in Hussein.

To the extent doing so constituted error by the ICA,

such error does not warrant vacating Kong’s conviction.

Hussein does not require the circuit court to address the

specific “example[s]” discussed in the opinion. Indeed,

requiring the sentencing court to address these “example[s]”

would introduce sentencing factors in excess of the statutory

factors set out by the legislature. Compare id. with HRS § 706-

606. Although Hussein required that the court articulate its

reasons for imposing a consecutive sentence on the record at the

time of sentencing, the examples it provided were illustrative.

Id. at 509, 229 P.3d at 327. The critical question remains

whether the circuit court articulated a “meaningful rationale”

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for the sentence in light of the factors set forth in HRS § 706-

606. In this case, the circuit court’s reason, i.e., Kong’s

“extensive criminality[,]” sufficiently justified the imposition

of a consecutive sentence under HRS § 706-606.7

Accordingly, the circuit court did not abuse its

discretion in imposing a consecutive sentence in this case.

B. The circuit court properly considered Kong’s PSI report

Kong contends that “[t]he circuit court based its

sentence . . . on crimes that were vacated almost fifteen years

earlier. The ICA affirmed the sentence by extending the

presumption of validity to those non-existent convictions. The

ICA gravely erred by upholding a consecutive prison sentence

based on crimes that [] Kong did not commit.” Kong specifically

argues that the procedure set out in State v. Sinagoga, 81

Hawai#i 421, 918 P.2d 228 (App. 1996), for challenging

convictions contained in a PSI report should not “extend to cases

where convictions did not exist at the time of sentencing,” and

alternatively, that Sinagoga should be overturned. As explained

below, Kong’s arguments are without merit.

In Sinagoga, the ICA considered whether a defendant

bears the burden of challenging prior criminal convictions listed

7
To be clear, we are neither overruling nor “upend[ing]” this
court’s opinion in Hussein. See dissenting opinion at 20. Hussein clearly
stands for the proposition that a sentencing court must provide a “meaningful
rationale” on the record to justify its imposition of a sentence. 122 Hawai#i
at 509-10, 229 P.3d at 327-28. We expressly reaffirm this holding. Here, we
merely hold that, under the circumstances of this case, the circuit court did
not abuse its discretion in determining that Kong’s “extensive criminality”
justified the imposition of a consecutive sentence.

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in the PSI report that the defendant contends are invalid. Id.

at 444, 918 P.2d at 251. The ICA concluded that a defendant does

bear such a burden in “ordinary sentencing situations.”8 Id.

Specifically, the ICA held that any convictions contained in a

PSI report “may be used against the defendant except those as to

which the defendant timely responds with a good faith challenge

on the record that the prior criminal conviction was (1)

uncounseled, (2) otherwise invalidly entered, and/or (3) not

against the defendant.” Id. at 444-45, 918 P.2d at 251-52. The

ICA’s conclusion was based on the rationale that “the defendant,

more than anyone else, knows whether or not his or her prior

criminal conviction was uncounseled, otherwise invalid, or

irrelevant.” Id. at 445, 918 P.2d at 252. Accordingly, “if the

presentence report states that the defendant has a prior criminal

conviction, and the defendant does not respond to that report

with a good faith challenge on the record . . . that prior

criminal conviction is reliable for all sentencing purposes.”

Id.

The ICA set forth the following procedure for trial

courts to follow in cases “where ordinary sentencing procedures

are applicable and there is a possibility that the court may use

8
“Ordinary sentencing situations” include mandatory minimums,
eligibility for probation, and consecutive sentences, but exclude extended
term sentencing. Id. at 444, 918 P.2d 251.

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the defendant’s prior conviction(s) as a basis for the imposition

or enhancement of a prison sentence”9:
Step one, the court shall furnish to the defendant or
defendant’s counsel and to the prosecuting attorney a
copy of the presentence report, HRS § 706–604, and any
other report of defendant’s prior criminal
conviction(s). Step two, if the defendant contends
that one or more of the reported prior criminal
convictions was (1) uncounseled, (2) otherwise
invalidly entered, and/or (3) not against the
defendant, the defendant shall, prior to the
sentencing, respond with a good faith challenge on the
record stating, as to each challenged conviction, the
basis or bases for the challenge. Step three, prior
to imposing the sentence, the court shall inform the
defendant that (a) each reported criminal conviction
that is not validly challenged by the defendant is
defendant’s prior, counseled, validly entered,
criminal conviction, and (b) a challenge to any
reported prior criminal conviction not made by
defendant before sentence is imposed may not
thereafter, absent good cause, be raised to attack the
court’s sentence. Step four, with respect to each
reported prior criminal conviction that the defendant
challenges, the HRE [(Hawaii Rules of Evidence)] shall
apply, and the court shall expressly decide before the
sentencing whether the State satisfied its burden of
proving to the reasonable satisfaction of the court
that the opposite of the defendant’s challenge is
true. Step five, if the court is aware of the
defendant’s prior uncounseled or otherwise invalid
criminal conviction(s), it shall not impose or enhance
a prison sentence prior to expressly stating on the
record that it did not consider it or them as a basis
for the imposition or enhancement of a prison
sentence.

Id. at 447, 918 P.2d at 254 (emphasis added).

The Sinagoga framework is applicable to this case

because this is a case where “ordinary sentencing procedures are

applicable and there [was] a possibility that the court may use

[Kong’s] prior conviction(s) as a basis for the imposition or

enhancement of a prison sentence.” Id. at 447, 918 P.2d at 254.

9
This court adopted and applied the Sinagoga test in Heggland, with
one modification, discussed infra. 118 Hawai#i at 439-41, 193 P.3d at 355-57.

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Here, step one of the Sinagoga framework was satisfied because

Kong was provided with a copy of the PSI report, which contained

a list of his prior convictions. Kong was then required to

“respond with a good faith challenge on the record stating, as to

each challenged conviction, the basis or bases for the

challenge.” Id.

However, Kong did not avail himself of the opportunity

to controvert the PSI report, which he now argues listed

convictions that were allegedly dismissed. At the April 7, 2011

sentencing hearing, Kong’s counsel stated, “We have received the

[PSI] report. There are no changes at this time.” At the

continued sentencing hearing on April 11, 2011, Kong’s counsel

simply indicated that Kong did not want to stipulate to the

contents of the PSI report. However, neither Kong nor his

counsel objected to any of the convictions listed in the PSI

report. See Heggland, 118 Hawai#i at 432 n.4, 193 P.3d at 348

n.4 (noting that the defendant must “respond with a good faith

challenge on the record stating, as to each challenged

conviction, the basis or bases for the challenge.” (emphasis

added)); cf. State v. Fox, 70 Haw. 46, 55, 760 P.2d 670, 675

(1988) (“Fairness to the trial court impels a recitation in full

of the grounds supporting an objection to the introduction of

inadmissible matters. Otherwise, the court would be denied the

opportunity to give the objection adequate consideration and rule

correctly.”). Because Kong failed to raise a good faith

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challenge to his convictions in the circuit court, the circuit

court did not err in relying on the PSI report.10 Sinagoga, 81

Hawai#i at 445, 918 P.2d at 252 (“[I]f the presentence report

states that the defendant has a prior criminal conviction, and

the defendant does not respond to that report with a good faith

challenge on the record . . . that prior criminal conviction is

reliable for all sentencing purposes.”).

Nevertheless, Kong argues that Sinagoga is inapplicable

because this court limited the applicability of the Sinagoga

framework in State v. Veikoso, 102 Hawai#i 219, 74 P.3d 575

(2003), and Heggland. In Veikoso, this court considered whether

a defendant may, in trial proceedings on a subsequent offense,

collaterally attack a prior conviction that is the result of an

allegedly invalid plea. 102 Hawai#i at 224-27, 74 P.3d at 581-

83. There, the defendant was convicted of habitually driving

under the influence (DUI) of intoxicating liquor, an offense

which requires that the defendant be convicted of three or more

prior DUI offenses within a specific period. Id. at 220, 219

P.3d at 576. The defendant sought to dismiss the habitual DUI

charge on the ground that his prior, predicate DUI convictions

were invalid because he had not received a proper colloquy prior

10
In this case, the Sinagoga analysis ceased at step two because the
defendant failed to raise a challenge to the convictions listed in the PSI
report. Because Kong failed to challenge the PSI report, the circuit court
had no reason to proceed with the next steps in the Sinagoga analysis. See,
e.g., Heggland, 118 Hawai#i at 439-41, 193 P.3d at 355-57 (not reaching steps
three through five after concluding that defendant failed to raise a good-
faith challenge to his prior conviction under Sinagoga).

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to entering his plea. Id. The defendant’s motion to dismiss was

denied, and he subsequently pled guilty to habitual DUI.

On appeal, this court noted that none of the

defendant’s prior DUI convictions had been vacated at the time he

pled guilty to habitual DUI. Id. at 223, 74 P.3d at 579. This

court concluded that constitutional challenges to the validity of

prior convictions must be raised either in a direct appeal or

collaterally through a HRPP Rule 40 proceeding, rather than in

proceedings on a subsequent offense. Id. at 226, 74 P.3d at 583.

In a footnote, this court “recognize[d] the tension” between its

holding and Sinagoga. Id. at 227 n.8, 74 P.3d at 583 n.8. This

court acknowledged that Sinagoga allowed a defendant to challenge

three types of convictions in a PSI report, i.e., those that are

“(1) uncounseled, (2) otherwise invalidly entered, and/or (3) not

against the defendant.” Id. (emphasis in original) (brackets

omitted). This court stated, “Because the ‘otherwise invalidly

entered’ language in Sinagoga may be construed as permitting

collateral attacks whenever the validity of a conviction is

challenged, we emphasize, in light of our holding today, that

this language should be disregarded.” Id. at 227 n.8, 74 P.3d at

583 n.8.

Subsequently, in Heggland, this court adopted and

applied the Sinagoga test to determine whether the defendant had

raised a good-faith challenge to his prior conviction out of

state on the ground the conviction was uncounseled. 118 Hawai#i

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at 439-41, 193 P.3d at 355-57. This court acknowledged the bases

for challenging a prior conviction recognized by Sinagoga and

modified by Veikoso (i.e., the conviction being uncounseled or

not against the defendant). Id. at 440-42, 193 P.3d at 356-58.

However, this court concluded that the defendant had not, in the

trial court, raised a good faith challenge on either of these

bases, and instead affirmatively stipulated to his prior

conviction. Id. Accordingly, this court concluded that the

defendant’s arguments were without merit. Id. In a footnote,

this court also quoted the ICA opinion in Heggland for the

proposition that Veikoso had modified Sinagoga to “limit a

defendant’s ability to collaterally attack a prior conviction[.]”

Id. at 440, 193 P.3d at 356 (quoting State v. Heggland, 116

Hawai#i 376, 383 n.7, 173 P.3d 523, 530 n.7 (App. 2007)).

Neither Veikoso nor Heggland supports Kong’s assertion

that Sinagoga is inapplicable in the instant case. First, claims

that a conviction has been vacated would appear to fall within

the provision allowing challenges for convictions that are “not

against the defendant,” rather than those that are “otherwise

invalidly entered.” Indeed, a conviction that has been vacated

is void, see Black’s Law Dictionary 1688 (9th ed. 2009) (defining

“vacate”), and thus is not a conviction “against the defendant.”

Although Kong appears to argue that convictions “not

against the defendant” are only those in which identity is

challenged, he cites no authority for this proposition.

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Moreover, there is no logical reason for requiring a defendant to

raise an identity challenge pursuant to the Sinagoga framework,

but relieving a defendant of this burden for convictions that are

vacated. Indeed, in both instances, “the defendant, more than

anyone else, knows whether or not his or her prior criminal

conviction was . . . irrelevant.” Sinagoga, 81 Hawai#i at 445,

918 P.2d at 252.

Second, the sole purpose behind the limitation on

Sinagoga set forth in Veikoso is not implicated in the instant

case. That purpose was to prohibit collateral attacks on the

validity of a prior conviction in proceedings for a subsequent

offense. Veikoso, 102 Hawai#i at 227 n.8, 74 P.3d at 583 n.8.

Here, Kong claims that his convictions in Cr. No. 92-0138 have

already been “vacated, remanded, and dismissed[.]” Accordingly,

this court’s concerns regarding collateral attacks are not

pertinent in the instant case.

Moreover, nothing in Veikoso or Heggland indicates that

this court intended to relieve a defendant of the burden of

challenging prior convictions in these circumstances. See id.;

see also Heggland, 118 Hawai#i at 440, 193 P.3d at 356. Indeed,

doing so would have the effect of requiring the State to prove

the validity of each of the defendant’s prior convictions at the

time of sentencing or run the risk of having the sentence vacated

on appeal, a proposition which this court has already rejected.

Heggland, 118 Hawai#i at 441, 193 P.3d at 357 (“[T]he circuit

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court misinterpreted the five-step procedure outlined in Sinagoga

by requiring the prosecution to prove the validity of Heggland’s

prior conviction in the absence of a good-faith challenge by

Heggland.”).

Accordingly, Kong was required to raise “a good faith

challenge on the record stating, as to each challenged

conviction, the basis or bases for the challenge.” Heggland, 118

Hawai#i at 432 n.4, 193 P.3d at 348 n.4. Because he did not do

so, the circuit court did not err in relying on the PSI report.11

Nor should this court utilize plain error review to

address this issue despite Kong’s failure to raise it in the

circuit court. Although this court “may recognize plain error

when the error committed affects substantial rights of the

defendant,” Staley, 91 Hawai#i at 282, 982 P.2d at 911 (citation

omitted); see HRPP Rule 52(b), the alleged inaccuracy in the PSI

report does not rise to the level of plain error because the

record indicates that the circuit court based its imposition of a

consecutive sentence on Kong’s “extensive” criminal record as a

whole and not solely on the specific convictions that Kong

alleges are invalid (Cr. No. 92-0138). In addition, the PSI

report, which the circuit court considered in imposing its

11
The dissent argues that the State and probation office would be
“absolve[d]” of accountability and the defendant would “exclusively” bear the
responsibility of ascertaining the accuracy of his or her criminal record.
Dissenting opinion at 28. However, under the holding of Sinagoga, 81 Hawai#i
at 446, 918 P.2d at 253, once the defendant raises a good faith argument
before the sentencing court, the prosecution still has the ultimate burden of
“proving to the reasonable satisfaction of the court that the opposite of the
defendant’s challenge is true.”

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sentence, contained all of Kong’s prior charges and convictions

and not just those in Cr. No. 92-0138.12 Under these

circumstances –- particularly where Kong was given ample time to

review the PSI report, where he or his counsel failed to provide

a good faith challenge on the record stating the bases for

challenging the convictions listed in the PSI report, and where

there was sufficient evidence to support the circuit court’s

determination that Kong had an “extensive” record of criminality

-- it cannot be said that Kong’s substantial rights were affected

by the circuit court’s use of the PSI report.13

C. Kong voluntarily and intelligently self-terminated from the
Drug Court program, and waived his right to a termination
hearing

Finally, Kong asserts that he did not voluntarily and

intelligently waive his right to a termination hearing.

Specifically, Kong asserts that the circuit court’s colloquy

12
The PSI report also indicates that Kong was convicted of seven
felony burglaries. Thus, even excluding the burglary conviction in Cr. No.
92-0138, the circuit court would have been correct in noting that Kong’s
“extensive record” included “six burglary convictions.” Although the vacated
convictions in Cr. No. 92-0138 would mean that Kong was convicted of 8 total
felonies, as opposed to the ten noted by the circuit court, the PSI report
nonetheless contained sufficient information for the circuit court to
reasonably conclude that Kong had a history of “extensive criminality.”
13
The dissent argues that Kong’s due process rights were violated
when the circuit court sentenced him using the convictions in Cr. No. 92-0138.
Dissenting opinion at 34. Kong, however, never asserted in his application
that his due process rights were violated by the circuit court’s use of the
convictions listed in the PSI report. See Hawai#i Rules of Appellate
Procedure Rule 40.1(d)(1) (“Questions not presented according to this
paragraph will be disregarded.”). Nevertheless, and as explained supra, the
circuit court based its imposition of a consecutive sentence on Kong’s
“extensive” criminal record as a whole and not on the specific convictions
that Kong alleges are invalid. Thus, on the record before us, it cannot be
said that Kong’s due process rights were violated.

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prior to his self-termination at the February 3, 2011 hearing was

not sufficient. Contrary to Kong’s argument, and as set forth

below, under the totality of the circumstances Kong voluntarily

and intelligently self-terminated from the Drug Court program.

In State v. Friedman, this court concluded that “[a]

waiver is the knowing, intelligent, and voluntary relinquishment

of a known right.” 93 Hawai#i 63, 68, 996 P.2d 268, 273 (2000)

(citation omitted). Generally, the court will conduct a colloquy

to ensure that the defendant’s waiver of his or her rights is

knowingly, voluntarily, and intelligently made. State v. Kaulia,

128 Hawai#i 479, 495-96, 291 P.3d 377, 393-94 (2013). To

determine whether a waiver is voluntary and intelligent, “this

court will look to the totality of facts and circumstances of

each particular case.”14 Friedman, 93 Hawai#i at 68-69, 996 P.2d

at 273-74.

In this case, Kong was advised of his right to a

termination hearing, confirmed his understanding of that right,

and repeatedly stated his decision to self-terminate from the

Drug Court program. Specifically, at the January 26, 2011

hearing, the circuit court informed Kong that he had a right to a

termination hearing, at which the State would be required to

present “an appropriate basis for terminating [him] from the drug

14
This court has not previously determined that a personal on-the-
record colloquy is required when a defendant decides to self-terminate from
the Drug Court program. We assume, without deciding, that such a colloquy is
required.

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court program.” Kong was advised that he had a right to have his

attorney present at a termination hearing and to contradict the

facts presented by the State. He also was advised that,

following the hearing, the circuit court would determine whether

he would remain in the program or would be terminated.

Kong also was advised of the result of self-terminating

from the Drug Court program, or of being terminated following a

termination hearing. Specifically, Kong was advised that his

case would proceed to a stipulated facts trial “where it’s almost

virtually certain, unless your attorney filed any

constitutionally based motions on your behalf, it’s virtually

certain that you will be found guilty as charged.”15 During the

colloquy, Kong indicated several times that he understood that he

had a right to a termination hearing and understood the

consequences of self-termination.

Approximately one week later, on February 3, 2011, Kong

again indicated that he wanted to self-terminate from the

program. Following a brief colloquy in which Kong confirmed that

his mind was clear and that he was not taking any drugs or

medication, the circuit court accepted Kong’s self-termination

from the program.

15
The circuit court previously found that Kong knowingly,
voluntarily and intelligently waived various trial rights upon his admission
to the Drug Court program, and Kong does not raise any arguments with respect
to these rights. The only issue on appeal is whether Kong validly waived his
right to a termination hearing.

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Although the extensive advisements regarding the right

to a termination hearing did not occur at the February 3, 2011

hearing, the fact remains that Kong was advised of his rights,

acknowledged he understood those rights, and repeatedly, in two

hearings over the course of eight days, reaffirmed his desire to

self-terminate. Under these circumstances, Kong voluntarily and

intelligently self-terminated from the Drug Court program.

Accordingly, Kong’s self-termination was valid.

IV. Conclusion

For the foregoing reasons, we affirm the March 1, 2013

judgment of the ICA, which affirmed the circuit court’s April 11,

2011 Judgment of Conviction and Sentence.

Samuel G. MacRoberts /s/ Mark E. Recktenwald
for petitioner
/s/ Paula A. Nakayama
Renee Ishikawa Delizo
for respondent /s/ Bert I. Ayabe

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