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Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
29-NOV-2023
08:04 AM
Dkt. 67 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
STATE OF HAWAI#I, Plaintiff-Appellee, v.
JANDEN JARNESKY, aka JANDEN KAWIKA KAIAMA,
Defendant-Appellant
APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT
(CASE NO. 2CPC-XX-XXXXXXX)
SUMMARY DISPOSITION ORDER
(By: Leonard, Presiding Judge, Hiraoka and McCullen, JJ.)
Defendant-Appellant, Janden K. Jarnesky, aka Janden
Kawika Kaiama (Jarnesky), appeals from the October 13, 2022
Judgment; Conviction and Sentence; Notice of Entry (Judgment)
entered by the Circuit Court of the Second Circuit (Circuit
Court)1 in favor of the Plaintiff-Appellee the State of Hawai#i
(State). On August 10, 2023, upon a temporary remand from this
court, the Circuit Court entered an Amended Judgment; Conviction
and Sentence; Notice of Entry (Amended Judgment).
1
The Honorable Kelsey T. Kawano presided.
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On April 14, 2015, in 2PC151000225, Jarnesky was
charged via felony information with four offenses: Counts 1 and
2, Theft in the Second Degree, in violation of Hawaii Revised
Statutes (HRS) § 708-831(1)(b) (2014);2 Count 3, Promoting a
Dangerous Drug in the Third Degree, in violation of HRS § 712-
1243(1) (2014);3 and Count 4, Prohibited Acts Related to Drug
Paraphernalia, in violation of HRS § 329-43.5(a) (2010).4
Pursuant to a plea agreement, Counts 2 and 4 were dismissed with
prejudice, and Jarnesky pled no contest to Counts 1 and 3.
Jarnesky was sentenced to five years of probation on each of the
two remaining counts, to run concurrently. Probation was revoked
and reinstated multiple times between 2016 and 2021 due to
2
HRS § 708-831(1)(b) states:
§ 708-831 Theft in the second degree. (1) A person
commits the offense of theft in the second degree if the
person commits theft of:
. . . .
(b) Property or services the value of which exceeds
$300[.]
3
HRS § 712-1243(1) states:
§ 712-1243 Promoting a dangerous drug in the third
degree. (1) A person commits the offense of promoting a
dangerous drug in the third degree if the person knowingly
possesses any dangerous drug in any amount.
4
HRS § 329-43.5(a) states:
§ 329-43.5 Prohibited acts related to drug
paraphernalia. (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.
2
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Jarnesky's failures to comply with conditions of probation,
notably, the use of illicit drugs.
Meanwhile, on August 20, 2018, in 2CPC-XX-XXXXXXX,
Jarnesky was charged via Felony Information and Non-Felony
Complaint with eleven new offenses: Count One, Theft of Credit
Card, in violation of HRS § 708-8102(1) (2014);5 Count Two,
Fraudulent Use of a Credit Card, in violation of HRS § 708-
8100(1)(a) (2014);6 Counts Three - Eight, Theft in the Second
Degree, in violation of HRS § 708-831(1)(b), (Supp. 2022)7 and
5
HRS § 708-8102(1) states:
§ 708-8102 Theft, forgery, etc., of credit cards .
(1) A person who takes a credit card from the person,
possession, custody, or control of another without the
cardholder's consent or who, with knowledge that it has been
so taken, receives the credit card with intent to use it or
to sell it, or to transfer it to a person other than the
issuer or the cardholder commits the offense of credit card
theft. If a person has in the person's possession or under
the person's control credit cards issued in the names of two
or more other persons, which have been taken or obtained in
violation of this subsection, it is prima facie evidence
that the person knew that the credit cards had been taken or
obtained without the cardholder's consent.
6
HRS § 708-8100(1)(a) states:
§ 708-8100 Fraudulent use of a credit card . (1) A
person commits the offense of fraudulent use of a credit
card, if with intent to defraud the issuer, or another
person or organization providing money, goods, services, or
anything else of value, or any other person, the person:
(a) Uses or attempts or conspires to use, for the
purpose of obtaining money, goods, services, or
anything else of value a credit card obtained or
retained in violation of section 708-8102 or a
credit card which the person knows is forged,
expired, or revoked[.]
7
HRS § 708-831(1)(b) states:
§ 708-831 Theft in the second degree. (1) A person
commits the offense of theft in the second degree if the
person commits theft of:
....
(continued...)
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potentially subject to sentencing in accordance with HRS § 706-
606.5 (Supp. 2022) to a mandatory minimum period of imprisonment
without the possibility of parole; Count Nine, Theft in the Third
Degree, in violation of HRS § 708-832(1)(a) (Supp. 2022);8 and
Counts Ten - Eleven, Theft in the Fourth Degree, in violation of
HRS § 708-833(1) (Supp. 2022).9 Jarnesky petitioned and was
granted admission to the Maui Drug Court Program, pursuant to
certain admissions, waivers, and an agreement to pay restitution.
After missed contacts with the drug court supervisor, missed
counseling sessions, relapsed drug use, and Jarnesky's absenting
himself from Aloha House without authorization, and after further
proceedings including a stipulated facts trial, the Circuit Court
found an adequate factual basis existed to find Jarnesky guilty
on the charges in 2CPC-XX-XXXXXXX.
Jarnesky was then sentenced to five years imprisonment
in 2CPC-XX-XXXXXXX, and resentenced in 2PC151000225 to five years
7
(...continued)
(b) Property or services the value of which exceeds
$750[.]
8
HRS § 708-832(1)(a) states:
§ 708-832 Theft in the third degree. (1) A person
commits the offense of theft in the third degree if the
person commits theft:
(a) Of property or services the value of which
exceeds $250[.]
9
HRS § 708-833(1) states, in pertinent part:
§ 708-833 Theft in the fourth degree. (1) A person
commits the offense of theft in the fourth degree if the
person commits theft of property or services of any value
not in excess of $250.
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imprisonment, with the terms to be served consecutively.
Jarnesky timely appealed.
Jarnesky raises a single point of error on appeal,
contending that the Circuit Court abused its discretion in
sentencing Jarnesky to consecutive five-year terms in the two
criminal cases, for a total of ten years.
Upon careful review of the record and the briefs
submitted by the parties, and having given due consideration to
the arguments advanced and the issues raised by the parties, we
resolve Jarnesky's point of error as follows:
Jarnesky argues that the Circuit Court abused its
discretion by: (1) ordering consecutive sentences when Jarnesky
was simply trying to care for his dying father; and (2) not
articulating its own reasoning during sentencing, but simply
adopting the State's argument, citing State v. Hussein, 122
Hawai#i 495, 509, 229 P.3d 313, 327 (2010), for the proposition
that a court must state its reasons as to why a consecutive, not
concurrent, sentence was required.
A sentencing court is afforded wide latitude in the
selection of penalties from those prescribed and in the
determination of their severity. Rapozo v. State, 150 Hawai#i
66, 81, 497 P.3d 81, 96 (2021). Sentencing courts must consider
the factors in HRS § 706-606. However, the weight given to the
factors in HRS § 706-606 in imposing a sentence is generally left
to the discretion of the sentencing court, taking into
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consideration the circumstances of each case. See State v. Kong,
131 Hawai#i 94, 101, 315 P.3d 720, 727 (2013). Hussein requires
a court to state on the record the reasons for why it sentenced a
defendant to consecutive, and not concurrent, terms of
imprisonment. Hussein, 122 Hawai#i at 509, 229 P.3d at 327.
First, we conclude that the Circuit Court did not abuse
its discretion by not giving greater weight to Jarnesky's
explanation for why he left the Maui Drug Court Program, that he
needed to take care of his terminally-ill father. The court
pointed out that Jarnesky left the rehabilitation program for
seven months with no contact to the Maui Drug Court, and that if
he was interested in coming back to the program, he should have
come back or contacted the Maui Drug Court, which he did not. In
State v. Kahapea, the Hawai#i Supreme Court stated that medical
circumstances are not compulsory mitigators for sentencing. 111
Hawai#i 267, 281, 141 P.3d 440, 454 (2006). In State v.
Williams, the defendant moved for reconsideration of his sentence
and requested he be released on probation so he could return to
New York to care for his seriously ill mother. 70 Haw. 566, 567,
777 P.2d 1192, 1193 (1989). The supreme court rejected
defendant's request for early release, stating:
[A]lthough Williams's presence in New York might benefit his
ailing mother, he may be a good candidate for probation, and
probation might best rehabilitate him, Williams has offered
no substantial grounds for not reimposing the original
sentence.
Id. at 571, 777 P.2d at 1195.
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Jarnesky offers no authority supporting his contention
that the court must "show mercy" by reinstating his probation.
Under the circumstances of this case, we cannot conclude that the
Circuit Court abused its discretion by failing to be persuaded by
this argument.
Here, the Circuit Court viewed Jarnesky's violation of
the Maui Drug Court Program as egregious, noting "you absconded
from the program for months with no contact to the Drug
Court . . . . [I]f you were interested in coming back you should
come back, and you did not. No contact. Seven months. Seven
months out of contact." The court stated its reasons for
imposing a consecutive prison term as follows:
For all the reasons that the prosecutor set out, and
considering all of the considerations and factors set out in
HRS Sec -- Section 706-606, including nature and
circumstances of the offense, your history, your
characteristics.
These are serious offenses, and when the Court
reimposed sentences of probation, as you are asking, that
being a slap in the face of this Court of its efforts to try
and rehabilitate you, to provide you services in the
community, it would not promote respect for the law. It
would not provide just punishment for the offenses that
you've committed.
It would not afford adequate deterrence to further
criminal conduct. There's a need to impose jail time to
protect the public from your further offenses.
And at this time we've, frankly, exhausted all efforts
to provide you rehabilitative services in the community.
In Kong, the supreme court held the following
statements by a sentencing judge sufficient to satisfy the
requirement set in Hussein:
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.
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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.
131 Hawai#i at 99, 315 P.3d at 725. In upholding the lower
court's sentencing order, the supreme court explained:
[T]he sentencing court is not required to articulate
and explain its conclusions with respect to every factor
listed in HRS § 706–606. Rather, 'it is presumed that a
sentencing court will have considered all factors before
imposing concurrent or consecutive terms of imprisonment
under HRS § 706–606.' Thus, the sentencing court is
required to articulate its reasoning only with respect to
those factors it relies on in imposing consecutive
sentences.
Id. at 102, 315 P.3d at 728 (citations omitted). The supreme
court continued, stating that although Hussein required that a
court articulate its reasons for imposing a consecutive sentence
on the record during sentencing, the examples Hussein provided
were illustrative, and that the critical question is whether the
circuit court articulated a "meaningful rationale" for the
sentence in light of the factors set forth in HRS § 706–606. See
id. at 103-04, 315 P.3d at 729-30. In Kong, the supreme court
concluded that the circuit court's reasoning of "'extensive
criminality', sufficiently justified the imposition of a
consecutive sentence", and satisfied Hussein. Id. at 104, 315
P.3d at 730 (brackets omitted).
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In this case, the Circuit Court made extensive
statements at an October 6, 2022 sentencing hearing explaining
its reasons for imposing consecutive sentences on Jarnesky. The
court noted its prior attempts to rehabilitate Jarnesky and to
provide him services in the community and the times the court
reimposed probation after it was breached. The court considered
the HRS § 706-606 factors and weighed them, including Jarnesky's
history, characteristics, and the nature of the offenses.
Further, the court noted that further probation would not be
adequate deterrent to further criminal conduct, nor would it
protect the public from Jarnesky's further offenses. The
explanation given by the court here regarding the reasons for
imposing consecutive terms of imprisonment is consistent with the
explanation the supreme court found satisfied Hussein in Kong.
Thus, we conclude that the court did not abuse its discretion in
sentencing Jarnesky to two consecutive five-year terms of
imprisonment.
For these reasons, the Circuit Court's August 10, 2023
Amended Judgment is affirmed.
DATED: Honolulu, Hawai#i, November 29, 2023.
On the briefs: /s/ Katherine G. Leonard
Presiding Judge
Gerald T. Johnson,
for Defendant-Appellant. /s/ Keith K. Hiraoka
Associate Judge
Renee Ishikawa Delizo,
Deputy Prosecuting Attorney, /s/ Sonja M.P. McCullen
County of Maui, Associate Judge
for Plaintiff-Appellee.
9