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                                                                Electronically Filed
                                                                Supreme Court
                                                                SCWC-15-0000548
                                                                20-SEP-2017
                                                                09:55 AM




             IN THE SUPREME COURT OF THE STATE OF HAWAII

                            ---oOo---
________________________________________________________________

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

                                      vs.

                         YOSHIRO SANNEY,
                Petitioner/Defendant-Appellant.
________________________________________________________________

                               SCWC-15-0000548

           CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
                 (CAAP-15-0000548; CR. NO. 10-1-1570)

                             SEPTEMBER 20, 2017

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

                   OPINION OF THE COURT BY McKENNA, J.


                             I.     Introduction

       Yoshiro Sanney (“Sanney”) challenges the Intermediate Court

of Appeals’ (“ICA”) affirmance of the Circuit Court of the First

Circuit’s (“circuit court”) denial of his Motion to Reconsider

Sentence (“motion to reconsider”).          Sanney argues the circuit
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court1 abused its discretion by refusing to vacate his sentence

of ten years in prison and $25,000 in fines and resentence him

pursuant to the court’s original sentencing inclination of

probation with up to eighteen months of imprisonment as a

condition of probation.

          This appeal raises issues regarding appropriate procedures

for cases in which a trial court provides a “sentencing

inclination.”         We hold that here, the circuit court did not

abuse its discretion by denying Sanney’s motion to reconsider,

because Sanney voluntarily and knowingly entered his plea after

acknowledging the non-binding nature of the circuit court’s

sentencing inclination, and the circuit court provided

sufficient reasons for its deviation from the original

sentencing inclination.           Therefore, we affirm the ICA’s judgment

on appeal affirming the circuit court’s decision to deny

Sanney’s motion to reconsider.

          To provide guidance in future cases, however, we discuss

procedures trial judges should follow before providing

sentencing inclinations.           Furthermore, we prospectively hold

that if a defendant pleads guilty or no contest in response to a

court’s sentencing inclination, but the court later decides not

to follow the inclination, then the court must so advise the



1
          The Honorable Karen S.S. Ahn presided.


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defendant and provide the defendant with the opportunity to

affirm or withdraw the plea of guilty or no contest.

                                   II.   Background

A.         From offense to sentencing

           On September 22, 2010, Sanney was indicted on one count of

sexual assault in the second degree in violation of Hawaii

Revised Statutes (“HRS”) § 707-731(1)(b)(Supp. 2009)2 and one

count of attempted sexual assault in the second degree in

violation of HRS § 707-731(1)(b) and HRS § 705-5003 (1993).

           The indictment arose out of an incident that occurred in

broad daylight on September 15, 2010 in Kapiolani Park.                  In

front of numerous eyewitnesses, Sanney allegedly cut out the

shorts of an unconscious homeless woman and performed

cunnilingus, then attempted vaginal intercourse with her.

Shortly after, police officers arrived and awoke the unconscious


2
      HRS § 707-731(1)(b) provides in relevant part, “(1) A person commits
the offense of sexual assault in the second degree if: . . . (b) The person
knowingly subjects to sexual penetration another person who is mentally
incapacitated or physically helpless. . . .”
3
           HRS § 705-500, titled “Criminal attempt,” provides in relevant part:

                 (1) A person is guilty of an attempt to commit a crime if
                 the person:
                 (a) Intentionally engages in conduct which would
                 constitute the crime if the attendant circumstances were as
                 the person believes them to be; or
                 (b) Intentionally engages in conduct which, under the
                 circumstances as the person believes them to be,
                 constitutes a substantial step in a course of conduct
                 intended to culminate in the person’s commission of the
                 crime. . . .



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female, who indicated she did not know Sanney.             Sanney was

arrested and taken to the Oahu Community Correctional Center.

        At the time of his arrest, Sanney was forty-four years old,

unemployed, and homeless.        Sanney is a veteran with a history of

alcohol and substance abuse issues, and had participated in a

U.S. Veterans substance abuse program starting in September

2009; he was discharged in April 2010 for using marijuana.

Since 1996, Sanney has had one conviction for criminal trespass

in the second degree, four convictions for driving under the

influence, one conviction for theft in the fourth degree, and

was given a deferred acceptance of guilty plea for disorderly

conduct.     Sanney also had an immigration detainer on file, and

an Immigration Enforcement Agent informed state officials that

Sanney would be picked up for deportation if released from state

custody.

        A jury trial was scheduled for Sanney, but was postponed

several times.      The trial week was eventually rescheduled and

Sanney, unable to post bail after his arrest, remained in

custody at the Oahu Community Correctional Center.

        The above information regarding the nature of the charged

offenses and Sanney’s background was contained in Sanney’s file

and available to the circuit court before his change of plea.

        During his rescheduled trial week, Sanney agreed to change

his plea after his attorney said the judge was inclined to

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sentence him to probation with up to eighteen months in jail (of

which he had already served about ten months).             There was no

plea agreement with the State.         The circuit court then conducted

a change of plea hearing.        Before the change of plea colloquy

began, Sanney’s defense attorney stated:

                   Your Honor, I guess after several status conferences
             with the Court and, you know, talking back and forth with
             Mr. Sanney, this case being set for trial tomorrow morning,
             it’s Mr. Sanney’s decision to enter a guilty plea as
             charged, and I did relay to him that the Court has given us
             an inclination for probation in this case with up to 18
             months in jail, and, you know, based on
             that inclination he’s intending to change his plea.

                   And I also did inform the Court that there is a
             federal hold that’s been placed, currently he’s facing
             deportation, and he understands that even if given
             probation, a conviction in this case will lead to automatic
             deportation.

        At the beginning of the change of plea colloquy, the

circuit court informed Sanney:

                   Now, Mr. Sanney, an inclination is not a promise . .
             . [T]here’s going to be a presentence report that’s going
             to be generated if you decide to plead guilty today . . . I
             know what relatively little the lawyers have told me about
             the case and about your background, but it’s that
             [presentence report] that’s very important, because that’s
             going to be a more in-depth explanation of who you are, and
             your history, and your characteristics and the offense.

                   In addition, the Court would always consider what
             happens at the sentencing hearing -- you know the
             arguments; what, if anything, you have to say, and so on.
             So based on all of that, that’s how the Court is going to
             make its decision on what an appropriate sentence would be.
             So I can tell you that’s the inclination based on the
             representations I have. But as you can imagine, an
             inclination is only as good as the representations it is
             based on, so you need to understand that.

Sanney responded, “I do.”        After an extensive change of plea

colloquy, the circuit court found that Sanney voluntarily,



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knowingly, and intelligently entered no contest pleas to the

charges and adjudged Sanney guilty of the charged offenses.

          After the presentence investigation and report (“PSI”)4 was

prepared, a sentencing hearing was held.             At the hearing, the

circuit court expressed concern “about some of the

representations in the PSI which, to [the circuit court], [were]

different from the representations that were made at the time of

the change of plea and based upon which the court did give its

inclination of probation with an uncertain jail term.”                The

circuit court continued the hearing so the probation officer

could be present.




4
      “PSI” is the common acronym for the confidential presentence diagnosis
and report prepared by judiciary probation officers pursuant to HRS § 706-
602(1) (1993 & Supp. 2012), which provides in part:

               (1) The pre-sentence diagnosis and report shall be made by
               personnel assigned to the court or other agency designated by
               the court and shall include:
               (a) An analysis of the circumstances attending the
               commission of the crime;
               (b) The defendant’s history of delinquency or criminality,
               physical and mental condition, family situation and
               background, economic status and capacity to make
               restitution or to make reparation to the victim or victims
               of the defendant’s crimes for loss or damage caused
               thereby, education, occupation, and personal habits;
               . . . .
               (e) Any other matters that the reporting person or agency
               deems relevant or the court directs to be included.
               . . . .
      “In enacting the Code, the legislature changed the Proposed Draft
by substituting the phrase ‘pre-sentence diagnosis’ for the phrase
‘pre-sentence investigation[.]’” HRS § 706-602 supp. Cmt. (2014).
This appears to explain why the acronym is “PSI” instead of “PSD.


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        At the continued sentencing hearing, the circuit court’s

concerns focused on the following statements apparently made by

Sanney to the probation officer:

             The defendant declined to provide a written statement but
             verbally reported that he pled no contest because he had a
             federal hold on him and his plea may change his deportation
             hold status. He said he was drunk and “high” from
             marijuana on the day of the offense and he is “only guilty
             of having sex in public.” The defendant reported he and
             the victim drank alcohol together with other people that
             morning and he consumed 12 shots of vodka and two marijuana
             joints and wanted to sleep. He stated he and the victim
             walked to another area of the park to lay [sic] down and
             the victim eventually passed out. The defendant reported
             he used his scissors to cut the crotch area of her shorts
             so he could put his mouth on her vagina and then “humped”
             the victim with his clothes on. The defendant said he was
             “turned on” due to the fact that he was having sex in
             public, in daylight, and other people saw what he was doing
             to the victim.
             . . . .
             The defendant reported that he attended the Veterans In
             Progress Program, US Vets in Kapolei, Hawaii [sic], from
             September, 2009 [to] April, 2010. He said that he was
             living on the street and felt tricked into going to live at
             the shelter because he only wanted somewhere to live but
             was not willing to participate in the substance abuse
             program. He stated that he was rebellious and he just
             “went through the motions” of the substance program and
             smoked marijuana immediately after his graduation ceremony.

        Defense counsel argued at length that the PSI did not

contain anything the court did not know prior to accepting the

change of plea, but did not request that Sanney be given an

opportunity to withdraw his plea if the court did not follow its

sentencing inclination.        At the end of the sentencing hearing,

the circuit court stated:

                   And this is the thing about I felt tricked [sic]. You
             weren’t willing to do the substance abuse but went through
             the motions and smoked marijuana immediately after
             graduation. That’s what this says. Then I look at the
             four DUIs, which your attorney is right, we knew about the
             four DUIs. But, I mean, they do count as opportunities to
             do something about the problem, and, apparently, you know,


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                that wasn’t enough. So the Court looks at that. And, you
                know, it’s a little bit alarming to see a statement that
                the only -- apparently there’s a suggestion -- you said the
                only thing you did wrong was having sex in public and that
                it was a turn-on, which, I don’t know, it conflicts with
                what you’re saying today. But you know, these are -- I
                disagree with [defense counsel].

Instead of sentencing Sanney pursuant to the stated inclination

of probation with eighteen months of imprisonment, the circuit

court sentenced Sanney to ten years of imprisonment on both

counts, with the terms to run concurrently.

B.         Motion to reconsider sentence and the first appeal

       Following the continued sentencing hearing, Sanney filed a

motion to reconsider sentence.            The only relief requested was

for the circuit court to sentence Sanney to probation with

eighteen months of imprisonment pursuant to its original

inclination; there was no request to withdraw the plea.                  A

hearing was scheduled, but it was continued after Sanney’s

attorney withdrew and substitute counsel was appointed.                  Four

days before the continued hearing date, however, the circuit

court summarily denied Sanney’s motion without a hearing on the

grounds that Sanney had not presented new evidence.

           Sanney’s current counsel filed the first appeal in this

case, challenging the circuit court’s summary denial of his

motion to reconsider.           After the ICA affirmed in a summary

disposition order, State v. Sanney, CAAP-12-0000654, 2013 WL

3776162 (App. July 8, 2013) (SDO), we accepted certiorari.                    In a

memorandum opinion, we held that under the facts of this case,

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the circuit court abused its discretion in summarily denying the

motion for reconsideration without a hearing, and remanded the

case for a hearing on Sanney’s motion.              State v. Sanney, SCWC-

XX-XXXXXXX, 2014 WL 3928249 (Haw. Aug. 12, 2014)(mem.).

C.         Hearing on remand regarding Sanney’s motion to
           reconsider sentence

           On remand, the circuit court held a hearing on Sanney’s

motion to reconsider sentence.            Sanney’s attorney argued his

client had changed his plea based on the court’s stated

inclination.         He insisted there was nothing significantly

different between the information available at the change of

plea hearing and the sentencing hearing.              Sanney himself stated

that his former attorney had told him the circuit court

insinuated that if he pled out, the court would “parole[] [him]

to the Feds and [he] was reluctant to do that even then.”                    There

was no request to withdraw the plea.

           The circuit court discussed information it did not have at

the time of the original sentencing, including defendant’s

statements to the probation officer summarized above.                 The

circuit court also provided Sanney with the opportunity to

explain the statements that caused it concern.                Sanney’s

responses, however, did not assuage the circuit court’s

concerns.        The circuit court then ruled that “the sentence was a

justifiable one based on the PSI and everything else that was


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before [the court],” and denied Sanney’s motion to reconsider

sentence.

D.     The current appeal and the ICA’s decision

           Following the hearing, Sanney filed the current appeal.

Before the ICA, Sanney argued the case should be remanded for

resentencing in accordance with the circuit court’s original

inclination.         In the alternative, Sanney requested the

opportunity to withdraw his no contest plea, a request that had

not been made before the circuit court.

           In a summary disposition order, the ICA affirmed the

circuit court’s denial of Sanney’s motion to reconsider,

reasoning that Sanney stated at the change of plea hearing that

he understood that the court’s inclination was not a promise.

State v. Sanney, CAAP-15-0000548, 2016 WL 3548352 (App. June 28,

2016) (SDO) at *2.          The ICA concluded, after consideration of

the reasons iterated by the circuit court at sentencing, that

the circuit court did not commit a plain and manifest abuse of

discretion in denying Sanney’s motion.              The ICA did not address

whether Sanney should have had the opportunity to withdraw his

plea after the court declined to follow the sentencing

inclination.

E.         Application for writ of certiorari and oral argument

           In his application for certiorari, Sanney argues the

circuit court abused its discretion in denying his motion to

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reconsider sentence, and that this court should either order the

circuit court to impose the sentence it had been inclined to

impose before the change of plea, or allow him to withdraw his

plea.        At oral argument, however, Sanney clarified that the only

relief he seeks is for this court to order resentencing pursuant

to the circuit court’s original sentencing inclination, as

requested in the motion to reconsider filed in the circuit

court.        State v. Sanney, SCWC-15-0000548, Oral Argument,

available at http://www.courts.state.hi.us./oral-argument-

before-the-hawaii-supreme-court-scwc-15-548, at 1:05:35.

                             III.   Standard of Review

           Sentencing decisions are reviewed under the abuse of

discretion standard.          A sentencing judge generally has broad

discretion in imposing a sentence.             Generally, to constitute an

abuse of discretion, it must appear that the court clearly

exceeded the bounds of reason or disregarded rule of principles

of law or practice to the substantial detriment of a party

litigant.        State v. Hussein, 122 Hawaii 495, 503, 229 P.3d 313,

321 (2010).

                                    IV. Discussion

A.         Sentencing Inclinations

           California refers to sentencing inclinations as “indicated

sentences.”        In People v. Clancey, 56 Cal. 4th 562, 155 Cal.

Rptr. 3d 485, 299 P.3d 131 (2013), the California Supreme Court

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explained the differences between a plea bargain and a

sentencing inclination:

                     The process of plea bargaining which has received
               statutory and judicial authorization as an appropriate
               method of disposing of criminal prosecutions contemplates
               an agreement negotiated by the [State] and the defendant
               and approved by the court. Pursuant to this procedure the
               defendant agrees to plead guilty in order to obtain a
               reciprocal benefit, generally consisting of a less severe
               punishment than that which could result if he were
               convicted of all offenses charged. Judicial approval is an
               essential condition precedent to the effectiveness of the
               bargain worked out by the defense and the prosecution.
               Because the charging function is entrusted to the
               executive, the court has no authority to substitute itself
               as the representative of the [State] in the negotiation
               process and under the guise of plea bargaining to agree to
               a disposition of the case over prosecutorial objection.

                     On the other hand, where the defendant pleads guilty
               to all charges so all that remains is the pronouncement of
               judgment and sentencing, there is no requirement that the
               [State] consent to a guilty plea. In that circumstance,
               the court may indicate what sentence it will impose if a
               given set of facts is confirmed, irrespective of whether
               guilt is adjudicated at trial or admitted by plea.

56 Cal. 4th at 569-70, 155 Cal. Rptr. 3d at 490, 299 P.3d at 135

(internal punctuation and citations removed).

          Thus, a plea bargain is an agreement between the executive

branch5 and the defendant, which can include the reduction or

dismissal of charges and/or agreements regarding sentencing.

See Hawaii Rules of Penal Procedure (“HRPP”) Rule 11(f)(1)

(2014).       Pursuant to this rule, a judge is able to participate




5
      In Hawai‘i, the executive branch is represented by the Attorney General
or county Prosecuting Attorney offices.



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in negotiations leading to a plea agreement, and may agree to be

bound.6       Id.

          In Clancey, the California Supreme Court explained the role

of the executive versus the court in sentencing proceedings:

                The charging function is the sole province of the
          executive. The executive also decides whether to engage in
          negotiations with the defense by which a more lenient disposition
          of the charges can be secured without trial-- a bargain that must
          ultimately be approved by a court.
                . . . .
                The imposition of sentence within the legislatively
          determined limits, on the other hand, is exclusively a judicial
          function. The refusal of prosecutors to consider plea bargaining
          as a viable alternative to a lengthy trial may militate against
          the efficient administration of justice, impose unnecessary costs
          upon taxpayers, and subject defendants to the harassment and
          trauma of avoidable trials. A court may alleviate this burden
          upon our criminal justice system if this can be accomplished by
          means of a permissible exercise of judicial sentencing discretion
          in an appropriate case.

Clancey, 56 Cal. 4th at 574, 155 Cal. Rptr. 3d at 493, 299 P.3d

at 138 (internal citations and quotation marks removed).

          The Clancey court also laid out appropriate procedures for

trial judges regarding sentencing inclinations or “indicated

sentences”:

                      First, in order to preserve the executive’s
                prerogative to conduct plea negotiations, a trial court

6
          HRPP Rule 11(f)(1) provides:

                IN GENERAL. The prosecutor and counsel for the defendant, or
                the defendant when acting pro se, may enter into plea
                agreements that, upon the entering of a plea of guilty or
                no contest to a charged offense or to an included or
                related offense, the prosecutor will take certain actions
                or adopt certain positions, including the dismissal of
                other charges and the recommending or not opposing of
                specific sentences or dispositions on the charge to which a
                plea was entered. The court may participate in discussions
                leading to such plea agreements and may agree to be bound
                thereby.



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             generally should refrain from announcing an indicated
             sentence while the parties are still negotiating a
             potential plea bargain. . . .

                   Second, a trial court should consider whether the
             existing record concerning the defendant and the
             defendant’s offense or offenses is adequate to make a
             reasoned and informed judgment as to the appropriate
             penalty. The utility of an indicated sentence necessarily
             depends on the quality of the information available to the
             court at an early stage concerning the offense and the
             defendant’s criminal history.

                   Third, a court may not offer any inducement in return
             for a plea of guilty or nolo contendere. It may not treat
             a defendant more leniently because he foregoes his right to
             trial or more harshly because he exercises that right.
             Because an indicated sentence is merely an instance of
             sentencing discretion wisely and properly exercised, the
             indicated sentence must be the same punishment the court
             would be prepared to impose if the defendant were convicted
             at trial. An indicated sentence, properly understood, is
             not an attempt to induce a plea by offering the defendant a
             more lenient sentence than what could be obtained through
             plea negotiations with the prosecuting authority. When a
             trial court properly indicates a sentence, it has made no
             promise that the sentence will be imposed. Rather, the
             court has merely disclosed to the parties at an early stage
             -- and to the extent possible -- what the court views, on
             the record then available, as the appropriate sentence so
             that each party may make an informed decision. . . .

                   Fourth, a trial court may not bargain with a
             defendant over the sentence to be imposed.

56 Cal. 4th at 574-75, 155 Cal. Rptr. 3d at 494, 299 P.3d at

138-39 (internal citations and quotation marks omitted; emphasis

in original).

        We agree with the California Supreme Court’s well-reasoned

approach to sentencing inclinations.           First, absent unusual

circumstances, a trial court should not provide a sentencing

inclination unless plea negotiations have concluded or did not

occur.    Second, before giving a sentencing inclination, a trial

court should consider whether the existing record concerning the


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defendant and the defendant’s offense(s) is adequate to make a

reasoned and informed judgment as to the appropriate penalty.

Third, a trial court must follow the established “principle

forbidding a trial court from improperly considering the

defendant’s exercise of his constitutional right to a . . .

trial as an influential factor in determining the appropriate

sentence.”        State v. Kamanao, 103 Hawaii 315, 321 n.8, 82 P.3d

401, 407 n.8 (2003) (citations omitted).              In other words, the

sentencing inclination must be the same punishment the court

would be prepared to impose if the defendant were convicted

after trial.         Finally, a trial court may not bargain with the

defendant over the sentence to be imposed, as a trial court’s

sentencing inclination must be the same punishment the court

would impose if the defendant were convicted following a trial.

Bargaining over the sentence would contravene this requirement.

B.         The circuit court did not abuse its discretion by denying
           Sanney’s motion to reconsider pursuant to the original
           sentencing inclination, because a sentencing inclination is
           not binding, and certain facts became available after the
           court issued its sentencing inclination.

           The guidance discussed above was not part of our law at the

time of Sanney’s change of plea, sentencing, or reconsideration

of sentence, so we analyze this appeal based on governing law at

the times of the trial court’s decisions.               Sanney argues he

should have been resentenced pursuant to the circuit court’s

original inclination of probation with eighteen months of

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imprisonment instead of the ten years of imprisonment actually

imposed, because the court’s stated sentencing inclination

influenced his decision to change his plea to no contest.                 As

noted, this was Sanney’s only request to the circuit court -- he

did not request the opportunity to withdraw his plea.

Therefore, the only issue before us is whether the circuit court

abused its discretion when it denied Sanney’s motion to

reconsider sentence and refused to resentence him pursuant to

its original sentencing inclination.

        To constitute an abuse of discretion, “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.”          Hussein, 122 Hawaii at 503, 229

P.3d at 321.      A sentencing inclination is not binding; it is

merely a trial court’s statement of the sentence it would be

inclined to impose for the offense(s) charged, should the

defendant be convicted after trial.          Sanney argues that the

information available at the pre-sentencing hearing and the

sentencing hearing was virtually identical.            As discussed above,

however, the record clearly reflects that the circuit court

changed its sentencing inclination based on Sanney’s statements

to the probation officer who was preparing the PSI.              These

statements occurred after the change of plea, and comprise

information not available to the circuit court at the time it

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gave its sentencing inclination.            The circuit court’s

postponement of the sentencing hearing so the probation officer

could be present to clarify the PSI evidences the importance of

these statements to the circuit court’s sentencing decision.

        At the hearing on the motion to reconsider sentence, the

circuit court provided Sanney with the opportunity to explain

his statements.      Sanney’s responses, however, did not assuage

the circuit court’s concerns.         The circuit explained how

information not available at the time it gave its original

inclination caused it to change its sentencing inclination and

to deny the motion to reconsider sentence.

        At the change of plea hearing, Sanney unequivocally stated

that he understood the circuit court’s sentencing inclination

was not binding.      The circuit court conducted a thorough change

of plea colloquy before finding that Sanney had voluntarily and

knowingly entered into the change of plea.            At the hearing on

the motion to reconsider sentence, the circuit court explained

that it had changed its sentencing inclination based on

information in the PSI that was not available at the time of its

original sentencing inclination.            Therefore, the circuit court

did not abuse its discretion by refusing to resentence Sanney

pursuant to its original sentencing inclination, and the ICA did

not err in affirming the circuit court.




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C.         Prospectively, a trial court must advise the defendant of a
           change in its sentencing inclination before imposing a
           sentence and provide the defendant with the choice of
           affirming or withdrawing the guilty or no contest plea.

           Although we find no error in this case, we take this

opportunity to further address the sentencing inclination

process to provide a new rule for application to future cases.

           The American Bar Association’s Criminal Justice Section

historically provides guidance in the form of Standards Relating

to Pleas of Guilty (“ABA Standards”).              ABA Standard 14-2.1

relates to “Plea withdrawal and specific performance,” and

provides, in relevant part:

                (a)   After entry of a plea of guilty or nolo contendere
                and before sentence, the court should allow the defendant
                to withdraw the plea for any fair and just reason. In
                determining whether a fair and just reason exists, the
                court should also weigh any prejudice to the prosecution
                caused by reliance on the defendant’s plea.
                (b)   After a defendant has been sentenced pursuant to a
                plea of guilty or nolo contendere, the court should allow
                the defendant to withdraw the plea whenever the defendant,
                upon a timely motion for withdrawal, proves that withdrawal
                is necessary to correct a manifest injustice. A timely
                motion for withdrawal is one made with due diligence,
                considering the nature of the allegations therein.

                (i)   Withdrawal may be necessary to correct a manifest
                injustice when the defendant proves, for example, that:
                . . . .
                (E) the defendant did not receive the charge or sentence
                concessions contemplated by the plea agreement, which was
                either tentatively or fully concurred in by the court, and
                the defendant did not affirm the plea after being advised
                that the court no longer concurred and after being called
                upon to either affirm or withdraw the plea[.]

(Emphases added.)          On its face, ABA Standard 14-2.1(b)(i)(E)

applies to plea bargain agreements and not to judge-only

sentencing inclinations.           The ABA Standard applies, however,


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even when a court has not agreed to be bound, but has merely

indicated a tentative inclination to follow a plea agreement,

including sentencing recommendations.           Stating a tentative

inclination to follow the sentencing recommendations of a plea

agreement is analogous to giving a sentencing inclination

without a plea agreement.        Thus, the ABA Standard can be

analogized to situations where a court changes its sentencing

inclination.

        Various states, including Hawaii, have adopted procedures

identical to, or consistent with, the ABA Standard.              Relevant

cases involve circumstances where a judge is no longer inclined

to follow its original sentencing inclination, a defendant

cannot as a matter of law be sentenced pursuant to a trial

court’s originally stated sentencing inclination, or the law has

changed to allow for a more lenient sentence.             In 1967,

Wisconsin adopted the ABA Standard while it was still in the

tentative draft stage.        See State v. Washington, 176 Wis. 2d

205, 214, 500 N.W.2d 331, 335 (Wis. Ct. App. 1993) (noting that

the Wisconsin Supreme Court “accepted the 1967 tentative draft

of what is now the plea withdrawal standard, sec. 14-2.1 of the

American Bar Association’s (ABA) Standards for Criminal Justice

(2d Ed. Supp. 1986)”).        In 1930, the Supreme Court of Illinois

held that where defendants changed their plea based on a judge’s

stated inclination offering a more lenient sentence than that

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required by law, they should have been granted leave to withdraw

their pleas.     People v. Moore, 342 Ill. 316, 320, 174 N.E. 386,

387 (1930).    In Ex parte Otinger, 493 So.2d 1362 (Ala. 1986),

the Supreme Court of Alabama held that where a trial judge

cannot follow its initial indicated sentence, the defendant

should be afforded the opportunity to withdraw his pleas.                493

So.2d at 1364.     In Cripps v. State, 122 Nev. 764, 137 P.3d 1187

(2006), the Nevada Supreme Court held that “when a judge does

express an inclination to follow the parties’ sentencing

recommendation, the defendant must be given an opportunity to

withdraw the plea if the judge later reconsiders and concludes

that a harsher sentence is warranted.”          122 Nev. at 771, 137

P.3d at 1191-92.     The Supreme Court, Appellate Division, Second

Department of New York held that “[w]here the court determines

that it cannot sentence the defendant as indicated prior to

acceptance of the plea, the proper procedure is to allow

defendant the choice of either withdrawing his guilty plea or

accepting a proper sentence[.]”         People v. Grant, 471 N.Y.S. 2d

325, 327 (1984) (internal citation omitted).           Finally, where a

trial court granted defendant’s motion to withdraw his guilty

pleas to greater charges due to there being an inadequate

factual basis for the pleas but denied the motion as to a lesser

charge, a New Jersey appellate court held that a plea withdrawal

is mandated “whenever the defendant’s exposure to prison time is

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dramatically reduced from what it was when a defendant entered

the plea.”      State v. Ashley, 443 N.J. Super. 10, 23, 126 A.3d

1234, 1243 (N.J. Super. Ct. App. Div. 2015), certif. denied, 224

N.J. 526 (2016).

        This court has held that a motion to withdraw plea should

be granted where a defendant entered a plea based on a

sentencing inclination that is legally impossible.              See State v.

Fogel, 95 Hawai‘i 398, 405, 23 P.3d 733, 740 (2001).              (“[W]e hold

that to correct manifest injustice, a defendant must be

permitted . . . to withdraw a plea entered in reliance on a

court’s representation or promise, which is statutorily

incapable of being effectuated.”).

        States have also applied the concept of plea withdrawal in

situations where a court has changed its mind after a defendant

enters a plea in reliance on a court’s stated sentencing

inclination.      For example, in People v. Cobbs, 443 Mich. 276,

505 N.W. 2d 208 (1993), the Supreme Court of Michigan allowed

the defendant the right to withdraw his plea after the court

determined a harsher sentence was appropriate:

              The judge’s preliminary evaluation of the case does not
        bind the judge’s sentencing discretion, since additional facts
        may emerge during later proceedings, in the presentence report,
        through the allocution afforded to the prosecutor and the victim,
        or from other sources. However, a defendant who pleads guilty or
        nolo contendere in reliance upon a judge’s preliminary evaluation
        with regard to an appropriate sentence has an absolute right to
        withdraw the plea if the judge later determines that the sentence
        must exceed the preliminary evaluation.

443 Mich. at 283, 505 N.W.2d at 212 (emphasis added).

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        The District Court of Appeal of Florida, First District,

iterated a similar standard:

             Where[,] as here[,] a nolo contendere or guilty plea is
             tendered in reliance on the court’s expression of
             sentencing intentions, and the plea is accepted, the
             sentencing judge must grant the defendant a clear
             opportunity to withdraw the plea if the judge cannot in
             conscience impose the sentence indicated; but that is the
             limit of the trial court’s obligation.

State ex rel. Wilhoit v. Wells, 356 So.2d 817, 824 (Fla. Dist.

Ct. App. 1978) (internal citations and quotation marks omitted;

brackets added).      The court reached this conclusion in part by

considering the 1968 version of the ABA Standard, Pleas of

Guilty.     Id.

        New Jersey has, by rule, adopted a similar plea withdrawal

standard.     New Jersey Rules of Court Rule 3:9-3 titled “Plea

Discussions; Agreements; Withdrawals” provides in part:

             The court may then indicate . . . the maximum sentence it
             would impose in the event the defendant enters a plea of
             guilty, assuming, however, . . . that the information in
             the presentence report at the time of sentence is as has
             been represented to the court at the time of the disclosure
             and supports its determination that the interests of
             justice would be served thereby . . . If at the time of
             sentencing the court determines that the interests of
             justice would not be served . . . by imposing sentence in
             accordance with the court’s previous indications of
             sentence, the court may vacate the plea or the defendant
             shall be permitted to withdraw the plea.

N.J. Ct. R. 3:9-3 (emphasis added).

        Finally, in Clancey, the Supreme Court of California

contemplated defendant’s request to adopt a rule “that when a

trial court offers an indicated sentence, it must advise the

defendant of the opportunity to withdraw the plea if the court


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later decides not to impose the indicated sentence.”              Clancey,

56 Cal. 4th at 583-84, 155 Cal. Rptr. 3d at 501, 299 P.3d at

144-45.     The court ultimately declined “to resolve here which

standard should govern the withdrawal of a plea after a trial

court declines to impose the indicated sentence” because the

trial court did not decline to follow its original inclination

and the defendant did not seek to withdraw his plea.              56 Cal.

4th at 584, 155 Cal. Rptr. 3d at 501-02, 299 P.3d at 145.                 The

State of California acknowledged, however, the existence of

California law permitting a guilty plea to be withdrawn for

“good cause shown” would be given “a liberal construction . . .

in the interest of promoting justice.”           Id.

        Hawaii law regarding plea withdrawals is governed by HRPP

Rule 32(d) (2012) and case law construing the rule.              The

language in HRPP Rule 32(d) is similar to that in ABA Standard

14-2.1 and provides:

             (d) Withdrawal of Plea. A motion to withdraw a plea of
             guilty or of nolo contendere may be made before sentence is
             imposed or imposition of sentence is suspended; provided
             that, to correct manifest injustice the court, upon a
             party’s motion submitted no later than ten (10) days after
             imposition of sentence, shall set aside the judgment of
             conviction and permit the defendant to withdraw the plea.
             At any later time, a defendant seeking to withdraw a plea
             of guilty or nolo contendere may do so only by petition
             pursuant to Rule 40 of these rules and the court shall not
             set aside such a plea unless doing so is necessary to
             correct manifest injustice.

        State v. Jim, 58 Haw. 574, 574 P.2d 521 (1978), outlines

the standards that govern based on whether a motion to withdraw


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plea is made before or after sentencing.           These standards are

similar to those reflected in the ABA Standard:

                   A defendant does not have an absolute right to
             withdraw his guilty plea, and a motion for withdrawal of a
             guilty plea under [HRCP Rule 32(d)] . . . must therefore be
             determined under either of two established principles.
             Where the request is made after sentence has been imposed,
             the “manifest injustice” standard is to be applied.
             H.R.Cr.P. Rule 32(d) (now H.R.P.P. Rule 32(d)). . . But
             where the motion is presented to the trial court before the
             imposition of sentence, a more liberal approach is to be
             taken, and the motion should be granted if the defendant
             has presented a fair and just reason for his request and
             the State has not relied upon the guilty plea to its
             substantial prejudice. What the manifest injustice rule
             seeks to avoid is an opportunity for the defendant to test
             the severity of sentence before finally committing himself
             to a guilty plea. But the risk of prejudice to the State
             and to the efficient administration of criminal justice is
             much less apparent where the withdrawal is requested before
             final judicial action is taken on the defendant’s plea.

Jim, 58 Haw. at 575-76, 574 P.2d at 522-23 (internal citations,

quotation marks, and footnote omitted) (emphasis added).

Regarding post-sentencing plea withdrawal, when the higher

“manifest injustice” standard governs, this court has held that

a motion to withdraw plea should be granted when a court’s

stated intention to allow a deferral for which he was not

eligible induced the defendant to change his plea.              Fogel, 95

Hawai‘i at 405, 23 P.3d at 740.         As iterated in Jim, a more

liberal standard applies to pre-sentencing plea withdrawal.

Jim, 58 Haw. at 575-76, 574 P.2d at 522-23.

        Based on the principles contained within ABA Standard 14-

2.1, persuasive law from other jurisdictions that have addressed

the issue, HRPP Rule 32(d), and our case law, we now adopt a new



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rule in the sentencing inclination context, which will have

prospective effect only.          See State v. Cabagbag, 127 Hawaii 302,

315, 277 P.3d 1027, 1040 (2012) (holding that a new rule

requiring eyewitness identification in certain circumstances

would have a prospective effect only).

          The new rule is as follows:         if a defendant pleads guilty

or no contest in response to a court’s sentencing inclination,

but the court later decides not to follow the inclination, then

the court must so advise the defendant and provide the defendant

with the opportunity to affirm or withdraw the plea of guilty or

no contest.7

          Applying the first Jim requirement for pre-sentence plea

withdrawal motions, “fair and just reasons” clearly exist when a

defendant makes a pre-sentence request to withdraw plea, as the

defendant’s change of plea was made in reliance on the court’s

stated sentencing inclination.           Applying the second Jim

requirement that “the State has not relied upon the guilty plea

to its substantial prejudice,” a defendant’s guilty plea made in

response to a court’s stated sentencing inclination would

usually not affect the State.           In any event, the new rule will
7
      A defendant should be allowed to affirm and persist in the plea despite
knowing the court will no longer impose the sentencing inclination upon which
the defendant relied. If the defendant chooses this alternative, however,
the court should conduct a colloquy on the record establishing the
defendant’s knowing and voluntary decision to affirm his or her guilty or no-
contest plea despite the change in the court’s sentencing inclination.




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encourage trial judges to consider whether the existing record

concerning the defendant and the defendant’s offense(s) is

adequate to make a reasoned and informed judgment as to the

appropriate penalty.         It will also curtail hearings on motions

and appeals to address whether a trial court abused its

discretion by not following its originally stated sentencing

inclination.        This includes hearings regarding whether adequate

reasons existed for the change in a trial court’s sentencing

inclination.8       The new rule will also eliminate hearings and

questions regarding whether a defendant truly understood the

non-binding nature of a court’s sentencing inclination.

Finally, the new rule will foster public confidence in the

judicial system, as defendants will no longer question whether

they were somehow misled into entering into a change of plea

based on a judge’s stated sentencing inclination.

                                  V. Conclusion

          The above-described procedures and new rule will provide

guidance for future cases involving changes of plea based on a

judge’s stated sentencing inclination.             In this case, however,




8
      Many discussions regarding the offenses charged and the defendant’s
history occur off the record, in a judge’s chambers. This makes it difficult
to ascertain the information on which a court relied when determining a
sentencing inclination. This problem is compounded if the sentencing judge
is not the same judge who gave the sentencing inclination and the information
on which the inclination is based is not included in the record.


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we affirm the ICA’s judgment on appeal affirming the decision of

the circuit court denying Sanney’s motion to reconsider.

Shawn A. Luiz                       /s/ Mark E. Recktenwald
for petitioner
                                    /s/ Paula A. Nakayama
Brian R. Vincent
for respondent                      /s/ Sabrina S. McKenna

                                    /s/ Richard W. Pollack

                                    /s/ Michael D. Wilson




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