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                                                                Electronically Filed
                                                                Supreme Court
                                                                SCWC-XX-XXXXXXX
                                                                13-DEC-2019
                                                                08:14 AM




                              SCWC-XX-XXXXXXX

             IN THE SUPREME COURT OF THE STATE OF HAWAI#I


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

                                      vs.

         SHUAN E. FLEETWOOD, also known as SHAUN FLEETWOOD,
                   Petitioner/Defendant-Appellant.


           CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
                   (CAAP-XX-XXXXXXX; 1PC101001668)

                      SUMMARY DISPOSITION ORDER
(By: Recktenwald, C.J., Nakayama, McKenna, Pollack, and Wilson, JJ.)

            Petitioner/Defendant-Appellant Shuan E. Fleetwood, also

 known as Shaun Fleetwood (Fleetwood) appeals the Intermediate

 Court of Appeals’ (ICA) November 7, 2018 Judgment on Appeal

 affirming the Circuit Court of the First Circuit’s (circuit

 court) order of resentencing and revocation of probation.

            On January 18, 2011, Fleetwood pled guilty to two

 counts of sexual assault in the second degree.           The circuit court

 sentenced Fleetwood to five years of Hawaii’s Opportunity

 Probation with Enforcement (HOPE probation) for each count, to
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run concurrently.     As a condition of probation, the circuit court

sentenced Fleetwood to one year in prison.

            Fleetwood met with his probation officer after he was

released from prison, then left the state of Hawai#i to visit his

ill father in Louisiana.       In Louisiana, Fleetwood was arrested

for an outstanding warrant from a previous sexual assault in

Arkansas.

            Respondent/Plaintiff-Appellee the State of Hawai#i (the

State) filed a Motion for Modification of the Terms and

Conditions of Probation and/or Motion for Revocation of Probation

(motion for revocation of probation) after Fleetwood failed to

report to his probation officer in November 2011.            The circuit

court issued a bench warrant for Fleetwood’s arrest.

            In 2016, Fleetwood’s prison term for the Arkansas

sexual assault ended and he was extradited to Hawai#i.           The

circuit court1 held a hearing on the State’s 2011 motion for

revocation of probation, where Fleetwood’s original probation

officer testified that, in 2011, he explained the terms and

conditions of Fleetwood’s probation to him, and that he did not

give Fleetwood permission to leave the state.            Fleetwood

testified that no one explained the terms and conditions of his

probation to him and that his probation officer told him he could



     1
            The Honorable William M. Domingo presided.

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leave Hawai#i to visit his father.

           The circuit court found that Fleetwood inexcusably

violated a substantial condition of his probation by failing to

report to his probation officer in 2011.

           At the resentencing hearing, Fleetwood testified “I

should have known the law a little bit better.           The only thing I

wish I would have done was known the law a little bit better and

known about the Interstate Compact,[2] sir, which I did not

know.”   Citing Fleetwood’s prior convictions and the fact that

Fleetwood maintained, in direct contradiction with his probation

officer’s testimony, that his probation officer failed to explain

the terms and conditions of his probation and gave him permission

to leave the state, the circuit court resentenced Fleetwood to

ten years’ imprisonment.       The circuit court stated:
                 I find that Mr. Fleetwood is not a good
           candidate for probation. The fact that he took the
           stand and clearly denied everything in contradiction
           of what [Fleetwood’s probation officer] had stated to
           him, which I find that – part of probation is you need
           to be honest, Mr. Fleetwood. And the fact that you
           couldn’t take the stand and tell this Court that you
           did know the terms and conditions and that you were
           told by your probation officer that you could leave.
                 So it will be the judgment of this Court that in
           Count 1, 10-1-1668, 1 and 2, you will serve a period
           of ten years.

(Emphasis added).


     2
            Fleetwood’s probation officer testified that “there’s an
interstate compact that has to go through in order for us to have a client
transfer to another state for supervision.” This statement indicates that a
probation officer is not, on the probation officer’s own authority, able to
permit a probationer to leave the state.

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           The ICA affirmed the circuit court’s order of

resentencing and revocation of probation.

           We vacate the order of resentencing and revocation of

probation.   The circuit court abused its discretion in using

Fleetwood’s maintenance that he did not inexcusably violate the

terms of his probation as a basis for imposing a harsher

sentence, in contravention of the rule adopted by this court in

State v. Kamana#o, 103 Hawai#i 315, 82 P.3d 401 (2003).

           This court held in Kamana#o that “a sentencing court

may not impose an enhanced sentence based on a defendant’s

refusal to admit guilt with respect to an offense the conviction

of which he intends to appeal.”       Kamana#o, 103 Hawai#i at 316, 82

P.3d at 402.   In Kamana#o, a jury convicted Kamana#o of multiple

counts of sexual assault.      Id.   Kamana#o maintained his innocence

throughout trial and post-conviction.        Id. at 323, 82 P.3d at

409.   At a hearing on extended sentencing, the prosecutor argued

that certain aggravating factors, including Kamana#o’s lack of

remorse and refusal to admit guilt, justified imposing an

extended sentence.     Id. at 317, 82 P.3d at 403.        The circuit

court granted the State’s motion, stating, inter alia,
           In addition to the nature and multiplicity of the
           offenses committed by [Kamana#o], the seriousness, the
           flagrancy of his conduct is aggravated by what has
           been pointed out by [the DPA]: That he refuses to
           acknowledge his culpability for these offenses . . . .
           his refusal to acknowledge this very serious
           behavioral problem, which caused him to terrorize and
           victimize and assault his victims, negates any

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           reasonable expectation of his rehabilitation, whether
           in 20 years or for the duration of his life.

Id. at 318, 82 P.3d at 404 (emphases in original).           This court

vacated Kamana#o’s sentence and remanded for resentencing,

holding that “the circuit court violated Kamanao’s constitutional

privilege against self-incrimination by imposing an enhanced

sentence . . . based solely on Kamanao’s refusal to admit his

guilt with respect to the offenses of which he was convicted by a

jury.”   Id. at 320, 82 P.3d at 406.       This court then adopted the

following three-part test, set forth by the Michigan Supreme

Court in People v. Wesley, 411 N.W.2d 159 (1987), for assessing

whether a sentencing court erroneously relied on a defendant’s

refusal to admit guilt in imposing a sentence:
           (1) the defendant’s maintenance of innocence after the
           conviction, (2) the judge’s attempt to get the
           defendant to admit guilt, and (3) the appearance
           that[,] had the defendant affirmatively admitted
           guilt, his sentence would not have been so severe . .
           . . [I]f there is an indication of the three factors,
           then the sentence was likely to have been improperly
           influenced by the defendant’s persistence in his
           innocence. If, however, the record shows that the
           court did no more than address the factor of
           remorsefulness as it bore upon defendant’s
           rehabilitation, then the court’s reference to a
           defendant’s persistent claims of innocence will not
           amount to error requiring reversal.

Id. at 323, 82 P.3d at 409 (citing Wesley, 411 N.W.2d at 162).

Applying those factors, this court held that “Kamanao’s refusal

to admit guilt ‘improperly influenced’ the circuit court’s

decision to grant the prosecution’s motion for an extended term

of imprisonment.”    Id.

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          As an initial matter, though this court has only

applied the Kamana#o test in the context of initial sentencing,

we hold that the rule applies with equal force at resentencing

because the constitutional issues which gave rise to the Kamana#o

analysis also arise at resentencing.        First, the privilege

against self-incrimination, which exists at initial sentencing,

also exists during a probation revocation hearing and

resentencing.   State v. Villiarimo, 132 Hawai#i 209, 219, 320

P.3d 874, 884 (2014) (“[A] revocation proceeding is akin to the

initial sentencing hearing.”).       Second, a defendant is able to

appeal resentencing or the revocation of probation just as a

defendant may appeal initial sentencing.         The Kamana#o court

sought to protect defendants who refuse to admit guilt, knowing

that they intend to appeal their conviction.          103 Hawai#i at 316,

82 P.3d at 402 (“[A] sentencing court may not impose an enhanced

sentence based on a defendant’s refusal to admit guilt with

respect to an offense the conviction of which he intends to

appeal.”) (emphasis added).      For the purposes of the Kamana#o

analysis, the revocation of probation is equivalent to a

conviction for a charged offense.        The Kamana#o rule therefore

applies whenever a judge issues a sentence, irrespective of when

in the course of the proceedings the sentence is issued.

          The application of the Kamana#o factors indicates that,

in sentencing Fleetwood to ten years’ imprisonment, the circuit

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court improperly relied on Fleetwood’s maintenance that he did

not violate his probation.

          There is an “indication of” the first factor because

Fleetwood maintained his innocence after conviction.            At the

circuit court’s hearing on the State’s motion for revocation of

probation, the “conviction” occurred when the circuit court found

that Fleetwood had inexcusably violated a substantial condition

of his probation.    Therefore, any statement made “after

conviction” pursuant to the Kamana#o analysis occurred after the

circuit court made this finding.         Before Fleetwood was

“convicted,” Fleetwood testified that he did not inexcusably

violate his probation because his probation officer gave him

permission to leave the state and because he did not understand

the terms and conditions of his probation.         After “conviction,”

but before the imposition of sentence, Fleetwood testified, “I

should have known the law a little bit better.          The only thing I

wish I would have done was known the law a little bit better and

known about the Interstate Compact, sir, which I did not know.”

Fleetwood thus maintained that his probation officer gave him

permission to leave Hawai#i, by testifying that he should have

known that his probation officer lacked authority to give him

such permission without complying with the Interstate Compact.

By so testifying, Fleetwood maintains that he did not inexcusably


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violate the terms of his probation, which is equivalent to

maintaining his innocence.

          There is no indication of the second factor, that the

court attempted to get the defendant to admit guilt, but case law

indicates that absence of the second factor is not fatal to the

Kamana#o analysis.    See, e.g., State v. Barrios, 139 Hawai#i 321,

338, 389 P.3d 916, 933 (2016) (holding that the circuit court

improperly inferred that the defendant lacked remorse, despite no

indication of the second Kamana#o factor); State v. Bailey, No.

CAAP-XX-XXXXXXX, 2015 WL 405742 at *3-4 (App. Jan. 30, 2015)

(SDO) (holding that the circuit court was improperly influenced

by the defendant’s maintenance of his innocence, despite no

indication of the second Kamana#o factor).         Because the first and

third factors are present here, the absence of the second factor

is insufficient to indicate that the circuit court was not

improperly influenced by Fleetwood’s maintenance of innocence.

          There is an indication of the third factor because it

appears that the circuit court gave Fleetwood a harsher sentence

because he maintained that he did not inexcusably violate his

probation.   Although the circuit court listed several bases for

sentencing Fleetwood to ten years’ imprisonment, it appears that

the circuit court would have imposed a less severe sentence had

Fleetwood admitted his guilt.       The circuit court first observed


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that Fleetwood had several prior convictions.           However, the

circuit court seemed to focus on Fleetwood’s refusal to admit

that he had inexcusably violated the terms of his probation.

The circuit court stated,
                  I find that Mr. Fleetwood is not a good
            candidate for probation. The fact that he took the
            stand and clearly denied everything in contradiction
            of what [Fleetwood’s probation officer] had stated to
            him, which I find that – part of probation is you need
            to be honest, Mr. Fleetwood. And the fact that you
            couldn’t take the stand and tell this Court that you
            did know the terms and conditions and that you were
            told by your probation officer that you could leave.
                  So it will be the judgment of this Court that in
            Count 1, 10-1-1668, 1 and 2, you will serve a period
            of ten years.

(Emphasis added).

            The circuit court explicitly cited Fleetwood’s

invocation of his right to maintain his innocence as a basis for

sentencing Fleetwood to prison time as opposed to probation.

The circuit court implied that, if Fleetwood had conceded that he

inexcusably violated his probation by admitting that his

probation officer did not give him permission to leave the state

and did explain the terms and conditions of his probation, he

would have been a good candidate for probation.            HOPE probation

would have been a significantly lighter sentence than ten years’

incarceration.3    Therefore, there is an indication of the third


      3
            This case involves the revocation of Fleetwood's probation and his
resentencing to a term of imprisonment. Modifications of probation that are
accompanied by brief terms of confinement, which are a hallmark of HOPE,
involve different considerations and are not affected by this decision.

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factor.

          Because there is a strong indication of factors one and

three, the circuit court was likely improperly influenced by

Fleetwood’s maintenance of innocence.        Pursuant to Kamana#o, this

improper influence violated Fleetwood’s privilege against self-

incrimination.    Therefore, the circuit court abused its

discretion in sentencing Fleetwood to a ten-year term of

imprisonment.

          As such, the ICA gravely erred in affirming the circuit

court’s order of resentencing and revocation of probation.

          We therefore vacate the ICA’s November 7, 2018 judgment

on appeal to the extent that it affirmed the circuit court’s

order of resentencing and revocation of probation.           We remand to

the circuit court for resentencing.

          DATED: Honolulu, Hawai#i, December 13, 2019.

Phyllis J. Hironaka                      /s/ Mark E. Recktenwald
for petitioner/defendant-
appellant                                /s/ Paula A. Nakayama

Stephen K. Tsushima                      /s/ Sabrina S. McKenna
for respondent/plaintiff-
appellee                                 /s/ Richard W. Pollack

                                         /s/ Michael D. Wilson




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