State v. Kong.

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Electronically Filed
Supreme Court
SCWC-15-0000066
15-JUN-2017
08:15 AM

IN THE SUPREME COURT OF THE STATE OF HAWAII

---oOo---
________________________________________________________________

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

vs.

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

SCWC-15-0000066

CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-15-0000066; CR. NO. 09-1-0683(2))

JUNE 15, 2017

RECKTENWALD, C.J., NAKAYAMA, McKENNA, AND WILSON, JJ., WITH
CIRCUIT JUDGE CHANG IN PLACE OF POLLACK, J., RECUSED

OPINION OF THE COURT BY McKENNA, J.

I. Introduction

In this case, the Circuit Court of the Second Circuit1

(“circuit court”) sentenced Stanley S.L. Kong to consecutive

terms of imprisonment, due to his “extensive criminality,” based

on a Presentence Investigation Report (“PSI”) that erroneously

1
The Honorable Shackley F. Raffetto presided.
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included two prior convictions. These prior convictions had

been previously vacated, remanded, and ultimately dismissed, but

Kong’s counsel did not bring this to the circuit court’s

attention. When Kong directly appealed his sentence, this court

affirmed the circuit court. State v. Kong, 131 Hawaii 94, 315

P.3d 720 (2013) (“Kong I”). We first held that the circuit

court adequately articulated the basis for Kong’s consecutive

sentences when it referenced Kong’s “extensive criminality.”

131 Hawaii at 103, 315 P.3d at 729. We then held that the

burden had been upon Kong to challenge, before the circuit

court, the erroneous inclusion of the two prior convictions.

131 Hawaii at 106, 315 P.3d at 732. We further held that the

sentencing court did not plainly err in relying upon the

erroneous PSI, in light of Kong’s many other prior convictions.

131 Hawaii at 107, 315 P.3d at 733.

Three days after this court issued its opinion in Kong I,

Kong filed a motion under Hawaii Rules of Penal Procedure

(“HRPP”) Rule 35(b) (2003)2, to “reconsider or reduce sentence.”

2
HRPP Rule 35 provides the following:
(a) Correction of Illegal Sentence. The court may
correct an illegal sentence at any time and may correct a
sentence imposed in an illegal manner within the time
provided herein for the reduction of sentence. A motion
made by a defendant to correct an illegal sentence more
than 90 days after the sentence is imposed shall be made
pursuant to Rule 40 of these rules. A motion to correct a
sentence that is made within the 90 day time period shall
(continued. . .)

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Before a different judge of the circuit court,3 he challenged the

erroneous inclusion of the two prior convictions in his PSI.

The circuit court denied Kong’s motion. While it acknowledged

that it might have sentenced Kong differently, the circuit court

ultimately expressed its doubts that it could re-evaluate Kong’s

sentence in light of Kong I. The Intermediate Court of Appeals

(“ICA”) affirmed, holding that Kong could not challenge, via a

Rule 35 motion, the erroneous inclusion of the two vacated and

dismissed prior convictions in his PSI in the first place.

On certiorari, Kong presents the following questions:

1. Did the Intermediate Court of Appeals gravely err when
it held that the lower court may abdicate its power to
independently review, reconsider, and reduce an original
sentence thereby undermining the policies and purposes of
HRPP Rule 35?

2. Did the ICA gravely err in holding that Mr. Kong could
not raise a good-faith challenge to the use of invalid and
vacated prior convictions in his Rule 35 motion?

(continued. . .)
empower the court to act on such motion even though the
time period has expired.
(b) Reduction of Sentence. The court may reduce a
sentence within 90 days after the sentence is imposed, or
within 90 days after receipt by the court of a mandate
issued upon affirmance of the judgment or dismissal of the
appeal, or within 90 days after entry of any order or
judgment of the Supreme Court of the United States denying
review of, or having the effect of upholding the judgment
of conviction. A motion to reduce a sentence that is made
within the time prior shall empower the court to act on
such motion even though the time period has expired. The
filing of a notice of appeal shall not deprive the court of
jurisdiction to entertain a timely motion to reduce a
sentence.
3
The Honorable Peter T. Cahill presided.

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We hold that the ICA erred in holding that a challenge to the

erroneous inclusion of prior convictions in a PSI cannot be

brought on a Rule 35 motion for post-conviction relief.

Therefore, the circuit court properly entertained the motion.

The circuit court erred, however, by (1) concluding that Kong I

precluded its re-evaluation of Kong’s sentence; and (2) failing

to address Kong’s challenge to the inclusion of the two vacated

and dismissed prior convictions in his PSI. Therefore, we

vacate the ICA’s December 27, 2016 Judgment on Appeal, and its

November 29, 2016 Memorandum Opinion. This case is remanded to

the circuit court for further proceedings consistent with this

opinion.

II. Background

A. 2011 Sentencing and First Appeal

In April 2011, Kong was convicted and sentenced to

consecutive sentences for one count of promoting a dangerous

drug in the second degree (ten years), and one count of

prohibited acts relating to drug paraphernalia (five years).

The circuit court sentenced him to consecutive sentences based

on his “extensive criminality,” as reflected in the multiple

felony convictions contained in his PSI. Kong I, 131 Hawaii at

96, 315 P.3d at 722. Two felony convictions in the PSI,

however, had been previously vacated, remanded, and ultimately

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dismissed, but Kong’s counsel did not object to their use in

sentencing. 131 Hawaii at 105, 315 P.3d at 731.

Kong first appealed his sentence in May 2011. On appeal,

Kong raised the following points of error regarding his

sentencing: “(1) whether the circuit court erred in imposing

consecutive terms of imprisonment without adequately

articulating a rationale; [and] (2) whether the circuit court

violated Kong’s due process rights by basing its sentence on

certain crimes set forth in the PSI report . . . that Kong

alleged were ‘vacated, remanded, and ultimately dismissed. . .

.’” 131 Hawaii at 99, 315 P.3d at 725. The ICA affirmed his

conviction and sentence. State v. Kong, 129 Hawaii 135, 295

P.3d 1005 (App. 2013).

This court affirmed the ICA. Kong I, 131 Hawaii 94, 315

P.3d 720. We answered in the negative Kong’s first question

presented: whether 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 State v. Hussein, 122 Hawaii 495, 229 P.3d 313

(2010). Kong I, 131 Hawaii at 103, 315 P.3d at 729. We noted

that Hussein directed circuit courts to “state on the record at

the time of sentencing the reasons for imposing a consecutive

sentence,” and that the circuit court’s “extensive criminality”

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comment satisfied this requirement. Kong I, 131 Hawaii at 102,

103, 315 P.3d at 728, 729.

This court also found without merit Kong’s second question

presented: whether his sentence constituted plain error because

it was based on crimes he did not commit. Kong I, 131 Hawaii at

104, 315 P.3d at 730. Before this court, Kong had argued that

State v. Sinagoga, 81 Hawaii 421, 918 P.2d 228 (App. 1996)4

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Sinagoga set forth five steps “to be taken by Hawaii courts in cases
where ordinary sentencing procedures are applicable and there is a
possibility that the court may use the defendant’s prior conviction(s) as a
basis for the imposition or enhancement of a prison sentence”:
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 [Hawaii 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.
81 Hawaii at 447, 918 P.2d at 254. This framework was modified in State v.
Veikoso, 102 Hawaii 219, 74 P.3d 575 (2003). The Veikoso court held that “a
(continued. . .)

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should not “extend to cases where convictions did not exist at

the time of sentencing,” or, in the alternative, that Sinagoga

should be overturned. Id. We disagreed with Kong, holding that

the Sinagoga framework applied to his case. 131 Hawaii at 105,

315 P.3d at 731. Under step two of the Sinagoga framework, the

defendant bears the burden of challenging prior convictions in a

PSI that the defendant alleges were “uncounseled” or “not

against the defendant.” Sinagoga, 81 Hawaii at 447, 918 P.2d at

254. We held that the vacated and dismissed prior convictions

were “not against the defendant”; therefore, Kong bore the

burden of challenging the inclusion of these prior convictions

in his PSI. Kong I, 131 Hawaii at 106, 315 P.3d at 732. As

Kong did not challenge the convictions before the circuit court,

we held that the circuit court did not err in relying on the PSI

at sentencing. 131 Hawaii at 105, 315 P.3d at 731.

We also held that the circuit court’s use of the vacated

and dismissed convictions in sentencing did not amount to plain

error, as “the record indicate[d] that the circuit court based

its imposition of a consecutive sentence on Kong’s ‘extensive’

(continued. . .)
defendant may not collaterally attack prior counseled DUI convictions on the
basis that they were obtained as the result of allegedly invalid guilty
pleas.” 102 Hawaii at 226, 74 P.3d at 582 (footnote omitted). In a
footnote, this court stated, “Because the ‘otherwise invalidly entered’
language in [step two of the] Sinagoga [framework] 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.” 102 Hawaii at 226 n.8, 74 P.3d at 582 n.8.

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criminal record as a whole and not solely on the specific

convictions that Kong allege[d were] invalid.” 131 Hawaii at

107, 315 P.3d at 733. In light of the many other prior

convictions referenced in the PSI, we held, “[I]t cannot be said

that Kong’s substantial rights were affected by the circuit

court’s use of the PSI report.” Id. (footnote omitted).

B. Kong’s Rule 35 Motion

Three days after Kong I was issued, Kong filed an HRPP Rule

35(b) Motion to “reconsider or reduce sentence.” Kong asked the

circuit court to re-sentence him to a concurrent 10-year prison

term instead of the 15 consecutive years Judge Raffetto had

originally sentenced him on the two drug convictions. At this

time, Kong raised his Sinagoga challenge to the PSI’s erroneous

inclusion of the two vacated and dismissed convictions. Kong

also attached a prison progress report reflecting the completion

of a number of required and voluntary programs. “Substance

Abuse-RDAP III (IOP)” was the only required program marked

“Incomplete.”

The State opposed Kong’s motion. The State argued that

Kong’s motion essentially requested concurrent, rather than

consecutive, sentencing. The State defended the consecutive

sentence as appropriate.

The circuit court held a hearing on Kong’s motion. At the

hearing, the circuit court stated that “it wouldn’t be a wise

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thing to do” to reduce Kong’s drug and paraphernalia sentences

in light of the fact that Kong had not completed the required

substance abuse program. Kong’s counsel explained that the

erroneous addition of the two vacated and dismissed convictions

resulted in Kong’s classification at a different level for

programming purposes; were Kong to be classified accurately,

Kong’s counsel contended that Kong’s substance abuse program

would be considered completed.

The circuit court suggested to Kong’s counsel that he file

a motion to correct the PSI so that the State would have an

opportunity to respond. With regard to any potential

reconsideration or reduction of sentence, the circuit court

stated, “I’m not suggesting to you [defense counsel] that I’m

going to do anything different than what’s already been done.

Because it’s already gone up on appeal.” The circuit court

continued the motion to reconsider or reduce sentence.

Kong’s counsel filed a supplemental memorandum in support

of his motion for reconsideration or reduction of sentence.

Attached was a 1994 “Notice and Judgment on Appeal,” in which

the ICA vacated Kong’s convictions for Burglary in the Second

Degree and Unauthorized Control of a Propelled Vehicle, and

remanded the case for further proceedings. Also attached was a

1995 “Motion to Dismiss with Prejudice,” in which the

prosecutor’s office, upon remand from the ICA, moved for an

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order dismissing the case with prejudice. The motion was

“approved and so ordered,” as indicated by a judge’s signature

on the bottom left of the motion.

Kong’s counsel also filed a “Written Notice of Objection to

the Pre-Sentence Report and Other Materials Contained in the

Court File.” The written notice asked, inter alia, that all

references to the vacated and dismissed prior convictions be

removed from Kong’s PSI. The State did not file a response to

the written notice. There is nothing in the record indicating

that the circuit court acted upon the written notice.

At the continued hearing on the motion to reconsider or

reduce sentence, the State argued that this court’s Kong I

opinion had “held that there was no abuse of discretion and the

Court made a proper finding in sentencing [Kong].” The State

argued that Kong’s sentence had been “reviewed by the appellate

process twice,” and that Kong’s motion for reconsideration or

reduction of sentence was without merit.

Kong’s counsel disagreed that this court’s opinion in Kong

I foreclosed reconsideration or reduction of Kong’s sentence.

He stated that the appeal was not about the sentence itself;

rather, the appeal concerned whether the initial sentencing

court had sufficiently articulated the basis for the sentence,

and whether it was plain error for the sentence to be based on a

PSI that included the two vacated and dismissed convictions.

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Kong’s counsel also pleaded for leniency, asking the circuit

court to re-evaluate Judge Raffetto’s sentence.

The circuit court also heard from Kong, who asked to be

sentenced based on only his valid convictions. The circuit

court stated, “Well, I don’t disagree with you there, and I

appreciate what you are saying.”

The circuit court ultimately sided with the State. The

circuit court suggested that it would have sentenced Kong

differently had it been the initial sentencing court, but

doubted that the initial sentence was “inherently unjust or

unfair,” in light of the fact that the Kong I court did not

remand Kong’s case for resentencing:

This has already been –- this sentence was appealed,
and the Supreme Court reviewed it, and if the Supreme Court
felt -- I understand the grounds when they look at these
things. But the appellate court –- the appellate court has
really scrutinized a lot of these cases, especially with
the composition of our present court. Even if it wasn’t
raised, if they feel this was inherently unjust or unfair,
they would have sent it back, and they didn’t.
And so –- and I understand that disparity, but I
don’t know what Judge Raffetto’s reasoning was, but that’s
what he did, and I just don’t see the grounds to reconsider
or reduce it.
I’m not saying that’s what I would have done, but
that’s not the standard to decide it.

The circuit court denied Kong’s motion to reconsider or

reduce sentence. Although the circuit court seemed to accept

that the PSI contained vacated and dismissed convictions, the

record does not reflect that the circuit court disposed of

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Kong’s “Written Notice of Objection to the Pre-Sentence Report

and Other Materials Contained in the Court File.”5

C. ICA Appeal

On appeal, Kong raised the following points of error, which

he continues to pursue on certiorari:

[1]. The circuit court failed to independently
consider the merits of Mr. Kong’s motion and wrongly
deferred to the appellate courts and the original
sentencing judge.
[2]. The circuit court failed to comply with the
framework in State v. Sinagoga and address the challenged
prior convictions contained in the pre-sentence
investigation report.6

In a memorandum opinion, the ICA affirmed the circuit

court’s order denying Kong’s motion to reconsider or reduce

sentence. State v. Kong, CAAP-15-0000066 (App. Nov. 29, 2016)

(mem.) at 11. As to the first point of error (whether the

circuit court failed to independently consider the merits of

Kong’s motion and wrongly deferred to the appellate courts and

the original sentencing judge), the ICA held that “the circuit

court sufficiently considered the merits of Kong’s motion,”

supporting its conclusion solely with a recapitulation of Kong’s

5
We note that HRS § 706-604(2) (2014) provides, in pertinent part, “The
court shall amend or order the amendment of the [pre-sentence] report upon
finding that any correction, modification, or addition is needed and, where
appropriate, shall require the prompt preparation of an amended report in
which material required to be deleted is completely removed. . . .”
6
Kong also raised a third point of error: “The prosecution’s objection
to a reduction in the sentence to concurrent terms of imprisonment violates
an agreement reached with Mr. Kong.” As this point of error is not pursued
on certiorari, this opinion does not address it. As this court is vacating
the ICA’s judgment on appeal and remanding this case to the circuit court for
further proceedings, defense counsel may raise this issue with the circuit
court on remand.

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filings in support of his motion and the arguments made in those

filings and at the hearings on the motion. Kong, mem. op. at 4.

Next, the ICA “presume[d] that the circuit court considered all

of the factors listed in HRS § 706-6067 when it denied Kong’s

Motion to Reconsider or Reduce.” Kong, mem. op. at 6. The ICA,

however, did not address Kong’s arguments that (1) the circuit

court wrongly believed that this court had already ruled that

Kong’s sentence was fair and just and simply deferred to this

court’s Kong I opinion; and (2) the circuit court wrongly

deferred to Judge Raffetto’s initial sentencing decision.

The ICA did directly address Kong’s second point of error

(whether the circuit court failed to comply with the Sinagoga

framework and address the challenged prior convictions contained

in the PSI). Kong, mem. op. at 7-10. The ICA held that

Sinagoga did not apply to Kong’s motion to reduce his sentence

in the first place. Kong, mem. op. at 9. The ICA reasoned only

that “[t]here is nothing in Sinagoga to suggest that it applies

7
HRS § 706-606 (2014) is titled, “Factors to be considered in imposing a
sentence,” and it includes (1) the nature and circumstances of the offense
and the history and characteristics of the defendant; (2) the need for the
sentence imposed to reflect the seriousness of the offense, to promote
respect for law, and to provide just punishment for the offense; to afford
adequate deterrence to criminal conduct; to protect the public from further
crimes of the defendant; and 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.

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to Kong’s motion to reduce his sentence.” Id. The ICA cited no

other authority for its holding.

Regardless of its holding, the ICA went on to state, “[W]e

do not suggest that the circuit court should consider

convictions improperly entered on a PSI report.” Id. The ICA

then stated that it did not appear that the circuit court relied

on the vacated and dismissed convictions when it denied Kong’s

motion to reconsider or reduce sentence. Id. The ICA noted

that the circuit court asked Kong’s counsel to file a separate

motion to request a correction to the PSI. Id. Next, the

circuit court asked Kong whether he had any other convictions

besides the overturned ones, and when Kong answered

affirmatively but asked to be sentenced with regard only to

valid convictions, the circuit court stated, “I don’t disagree

with you there.” Id. Thus, the ICA concluded, “[I]t appears

that the circuit court recognized that some of Kong’s

convictions had been vacated and that the court did not rely on

those vacated convictions when it denied Kong’s Motion to

Reconsider or Reduce.” Kong, mem. op. at 10.

III. Standard of Review

“A trial court has the discretion to, within the time

limits set forth by HRPP Rule 35, reduce a sentence.” State v.

Williams, 70 Haw. 566, 569, 777 P.2d 1192, 1194 (1989).

Therefore, orders on HRPP Rule 35 motions for reduction of

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sentence are reviewed for an abuse of discretion. “[F]actors

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.” State v. Kahapea, 111

Hawaii 267, 278, 141 P.3d 440, 451 (2006). “[G]enerally, 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.” Id.

IV. Discussion

A. A defendant may raise a Sinagoga challenge to a PSI in
connection with a Rule 35 motion to reduce sentence.

On certiorari, Kong asks, “Did the ICA gravely err in

holding that Mr. Kong could not raise a good-faith challenge to

the use of invalid and vacated prior convictions in his Rule 35

motion?” Kong argues that it was appropriate for him, after

Kong I held that Sinagoga applied, to raise a good-faith

challenge to the inclusion of the vacated and dismissed

convictions in his PSI in his Rule 35 motion, and, once the

challenge was raised, the State and the circuit court should

have addressed it.

As it raises a threshold issue, we start with Kong’s

challenge to the ICA’s holding that the Sinagoga framework does

not apply on a Rule 35 motion to reduce sentence. The ICA

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incorrectly held that Sinagoga did not apply to Kong’s Rule 35

motion to reconsider or reduce sentence. Kong, mem. op. at 9.

The ICA reasoned only that “[t]here is nothing in Sinagoga to

suggest that it applies to Kong’s motion to reduce his

sentence.” Id. The ICA cited no other authority for its

holding.

To the contrary, while there is no Hawaii appellate case

affirmatively holding that a Sinagoga challenge can be raised in

a Rule 35 proceeding, there is authority suggesting the same.

State v. Kido, 109 Hawaii 458, 128 P.3d 340 (2006), is analogous

to the instant case. In that case, a defendant was charged and

convicted with promoting a dangerous drug in the third degree

and unlawful use of drug paraphernalia. 109 Hawaii at 459, 128

P.3d at 341. As part of his sentence, he was ordered not to

enter the Chinatown Weed and Seed geographical area. Id. While

that case was on appeal, the defendant was found in the

Chinatown Weed and Seed geographical area and arrested. Id.

Upon being searched in preparation for incarceration, police

found rock cocaine on the defendant. 109 Hawaii at 459-60, 128

P.3d at 341-42. The defendant pled no contest to a charge of

promoting a dangerous drug in the third degree and was sentenced

to five years in prison, with a mandatory minimum of one year in

prison as a repeat offender, due to the prior drug and

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paraphernalia convictions (that he had appealed). 109 Hawaii at

460, 128 P.3d at 342.

A year after his sentencing as a repeat offender, the ICA

vacated and remanded for a new trial the drug and paraphernalia

convictions that had provided a basis for his repeat offender

sentence. Id. The defendant then moved, under HRPP Rule 35(a),

to correct an illegal sentence. Id. The circuit court denied

the motion, and the defendant appealed. Id. (The defendant was

later convicted of the drug and paraphernalia charges at his new

trial. 109 Hawaii at 461, 128 P.3d at 343.)

This court held that the circuit court erred in denying the

defendant’s Rule 35 motion (although the error was moot, as the

defendant had been convicted of both charges at his new trial).

109 Hawaii at 463, 128 P.3d at 345. This court held, “[A]

defendant is entitled, by timely HRPP Rule 35 motion to correct

sentence . . . once the defendant has successfully attacked a

prior conviction on which the sentence was based in whole or

part because that conviction no longer constitutes a proper

basis for increased punishment for a subsequent offense under

HRS § 706-606.5,” Hawaii’s repeat offender sentencing statute.

109 Hawaii at 467, 128 P.3d at 349 (footnote omitted).

The facts in Kido differ in three respects. First, the

defendant in Kido moved under subsection (a) of HRPP Rule 35 to

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correct an illegal sentence, while Kong moved under subsection

(b) of the rule to reduce his sentence. Second, the defendant

in Kido challenged the imposition of a mandatory minimum

sentence as a repeat offender, while Kong challenged the

erroneous inclusion of vacated and dismissed convictions in the

PSI as a basis for his consecutive sentence. Third, the

defendant in Kido did not expressly bring a Sinagoga challenge

in his Rule 35 motion, while Kong did in his.

Kido is, however, still analogous to this case. The holding

quoted above clearly applies to Kong. In addition, the relief

sought under subsections (a) and (b) under HRPP Rule 35 differ

only in degree; while subsection (a) allows correction of a

sentence in violation of the law, subsection (b) allows

reduction of a sentence that, while lawful, may nevertheless be

too harsh. See HRPP Rule 35 (a) and (b); United States v.

Maynard, 485 F.2d 247, 248 (9th Cir. 1973) (“If a lawful

sentence was lawfully imposed in the first instance, then the

function of Rule 35 is simply to allow the [sentencing] court to

decide if, on further reflection, the original sentence now

seems unduly harsh.”).

Second, it does not matter that the defendants in Kido and

Kong challenged different types of sentencing (i.e., repeat

offender sentencing in Kido, and consecutive sentencing in

Kong). The Sinagoga rule applies to ordinary sentencing.

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Sinagoga, 81 Hawaii at 440, 918 P.2d at 247. Sinagoga itself

noted that repeat offender sentencing and consecutive sentencing

are both subject to “ordinary sentencing procedures.” Id.

Therefore, a Sinagoga challenge may be brought in either

sentencing context.

Third, although Kido did not involve an express Sinagoga

challenge, the functional similarities between the Kido

defendant’s challenge and Kong’s challenge to the use of invalid

convictions in sentencing override differences in form. Both

Kido and Kong had two convictions vacated by the ICA, yet both

defendants were subsequently sentenced as though those two prior

convictions remained valid. Both defendants brought Rule 35

motions seeking re-evaluation of their sentences. This court in

Kido held that a Rule 35(a) challenge should have been allowed

to correct the illegal mandatory minimum sentence. Therefore,

we now similarly hold that a defendant may bring a Sinagoga

challenge in a Rule 35(b) motion seeking to reduce a sentence.

Moreover, disallowing a Sinagoga challenge on a Rule 35

motion to reconsider would not seem consistent with HRPP Rule 2

(1977), which provides that the Hawaii Rules of Penal Procedure

“are intended to provide for the just determination of every

penal proceeding. They shall be construed to secure simplicity

in procedure, fairness in administration and the elimination of

unjustifiable expense and delay.” Disallowing a Sinagoga

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challenge in a Rule 35 motion to reconsider sentence --

effectively requiring a criminal defendant to file a Rule 40

post-conviction petition alleging ineffective assistance of his

original counsel in not bringing the erroneous convictions in

the PSI to the attention of the original sentencing judge,

assuming a defendant would even be aware of such a possibility

-- would not further simplicity in procedure, fairness in

administration, and the elimination of unjustifiable expense and

delay. In short, a defendant may bring a Sinagoga challenge in

connection with a Rule 35 motion.

B. The circuit court erred in abandoning Kong’s Sinagoga
challenge due to its mistaken belief that Kong I precluded
its re-evaluation of Kong’s sentence.

Having held that the circuit court had the power to

entertain Kong’s Sinagoga challenge in connection with his Rule

35 motion, we now examine the circuit court’s handling of the

matter. On certiorari, Kong’s remaining question presented is,

“Did the Intermediate Court of Appeals gravely err when it held

that the lower court may abdicate its power to independently

review, reconsider, and reduce an original sentence thereby

undermining the policies and purposes of HRPP Rule 35?” He

argues that the circuit court possessed the independent

discretion to re-evaluate Kong’s sentence and reduce it if it

was unduly harsh. Kong points out that the circuit court itself

expressed that it did not understand why Judge Raffetto imposed

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consecutive sentences; nevertheless, the circuit court still

declined to reconsider Kong’s sentence. Kong also contends that

the circuit court erroneously concluded that this court would

have sua sponte evaluated Kong’s sentence and remanded it if it

was unjust. Kong argues that the refusal to exercise discretion

is itself an abuse of discretion, citing to cases from other

jurisdictions in support of that proposition.

To the extent Kong’s first argument implies that the

circuit court had full discretion to reconsider Judge Raffetto’s

sentence without any additional facts, he is incorrect. With

respect to the effect of having a different judge reconsider a

ruling by a prior judge in a criminal case, State v. Oughterson,

99 Hawaii 244, 253, 54 P.3d 415, 424 (2002), states, “Unless

cogent reasons support the second court’s action, any

modification of a prior ruling of another court of equal and

concurrent jurisdiction will be deemed an abuse of discretion. .

. .” This criminal rule is not, however, an absolute rule. A

“change in the factual underpinning [in] a particular ruling may

rise to the level of a ‘cogent reason’ that would justify a

court in overturning the ruling of another court of equal and

concurrent jurisdiction.” 99 Hawaii at 254, 54 P.3d at 425.

Thus, contrary to Kong’s assertion, the circuit court could

not change the prior judge’s sentence without cogent reasons.

It appears, however, that the erroneous inclusion of two felony

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convictions in the PSI would constitute a “cogent reason” for

the circuit court to reconsider Kong’s sentence. We need not

decide this issue at this time, however, because the circuit

court also based its refusal to reconsider on an erroneous

interpretation of the effect of this court’s ruling in Kong I.

On remand, the circuit court should first address whether cogent

reasons exist to reconsider Judge Raffetto’s sentence.

Kong’s alternative argument, that the circuit court

erroneously considered this court’s Kong I opinion to preclude

his independent re-evaluation of Kong’s sentence, however, has

merit. At an initial hearing on Kong’s motion to reconsider or

reduce sentence, the circuit court stated, “I’m not suggesting

to you [defense counsel] that I’m going to do anything different

[regarding sentencing] than what’s already been done. Because

it’s already gone up on appeal.” (Emphasis added.) At a later

hearing, the circuit court elaborated its reasoning as follows:

This has already been –- this sentence was appealed, and
the Supreme Court reviewed it, and if the Supreme Court
felt -- I understand the grounds when they look at these
things. But the appellate court –- the appellate court has
really scrutinized a lot of these cases, especially with
the composition of our present court. Even if it wasn’t
raised, if they feel this was inherently unjust or unfair,
they would have sent it back, and they didn’t.

These statements indicate the circuit court thought it was

unable to reconsider the prior judge’s sentence not because of

“comity” reasons, but because it thought this court had already

passed judgment on the justness and fairness of Kong’s sentence.

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The circuit court’s interpretation of the effect of this court’s

opinion in Kong I was incorrect.

In this regard, the circuit court seemed to reference the

Kong I majority’s holding that the circuit court did not plainly

err in relying on the inaccurate PSI in imposing consecutive

sentences. 131 Hawaii at 107, 315 P.3d at 733. To the circuit

court, had this court held that Kong’s sentence amounted to

plain error and remanded the case for re-sentencing, then it

would be appropriate to revisit Kong’s sentence. This reasoning

is erroneous, as it conflates the result of a direct appeal with

what may be possible in a motion for post-conviction relief.

Even though a plain error review on direct appeal may result in

affirmance of a sentence because the high plain error standard

of “affecting substantial rights” was not met, Kong’s sentence

can be reconsidered by a different sentencing judge under HRPP

Rule 35 at the judge’s discretion (a lower standard), as long as

cogent reasons exist. Therefore, in this case, the circuit

court was not precluded, by this court’s affirmance of Kong’s

sentence in Kong I, from re-evaluating Kong’s sentence on a Rule

35 motion.

In connection with his Rule 35 motion, Kong presented the

circuit court with evidence that two vacated and dismissed prior

convictions were erroneously included in his PSI, and that his

consecutive sentence should be re-evaluated in light of this

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mistake. In other words, Kong brought a Sinagoga challenge to

his PSI as part of his Rule 35 motion. In response to his

challenge, however, Kong notes, “Nothing happened here.”

Neither the State nor the circuit court addressed whether the

prior convictions were indeed invalid. As Kong argues, the

State and the circuit court simply abandoned compliance with the

Sinagoga framework.

Kong’s argument is persuasive. Again, the five steps in

the Sinagoga framework are

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,
. . . and/or ([2]) 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 [Hawaii 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.

Sinagoga, 81 Hawaii at 447, 918 P.2d at 254 (as modified by

Veikoso, 102 Hawaii 219, 74 P.3d 575).

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In this case, through a “Written Notice of Objection to the

Pre-Sentence Report and Other Materials Contained in the Court

File,” made in connection with his Rule 35 motion to reconsider

or reduce sentence, Kong complied with the second step in the

Sinagoga framework by challenging the inclusion of the two

vacated and dismissed convictions in the PSI. The State did not

respond. There is nothing in the record to reflect that the

circuit court took any action on the written notice.8 Further,

the circuit court did not expressly state on the record that it

did not consider the two convictions in denying Kong’s motion to

reconsider or reduce sentence.9

Having decided that Sinagoga applies in Rule 35 motion

proceedings, and that the circuit court was not precluded by

Kong I from re-evaluating Kong’s sentence, we hold that it was

error for the circuit court to abandon Kong’s Sinagoga challenge

to the erroneous inclusion of two vacated and dismissed prior

convictions in his PSI.

8
See supra, n.5.
9
It is true that the circuit court told Kong, “I don’t disagree with you
there,” in response to Kong’s statement that his sentence should be based
only on valid, not invalid, convictions. This statement, however, falls
short of “expressly stating on the record that [the circuit court] did not
consider [invalid convictions] as a basis for the imposition or enhancement
of a prison sentence,” or, in this case, the denial of a motion to reduce
sentence, as Sinagoga would require. See Sinagoga, 81 Hawaii at 447, 918
P.2d at 254.

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V. Conclusion

For the foregoing reasons, the ICA’s December 27, 2016

Judgment on Appeal, and its November 29, 2016 Memorandum

Opinion, are vacated, and this case is remanded to the circuit

court for further proceedings consistent with this opinion.

Benjamin E. Lowenthal /s/ Mark E. Recktenwald
for petitioner
/s/ Paula A. Nakayama
Peter A. Hanano
for respondent /s/ Sabrina S. McKenna

/s/ Michael D. Wilson

/s/ Gary W.B. Chang

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