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                                                              Electronically Filed
                                                              Supreme Court
                                                              SCWC-13-0000118
                                                              22-DEC-2016
                                                              09:41 AM




           IN THE SUPREME COURT OF THE STATE OF HAWAI#I

                                ---o0o---


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

                                    vs.

       WILLIAM E. BARRIOS, Petitioner/Defendant-Appellant.


                            SCWC-13-0000118

         CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
             (CAAP-13-0000118; CR. NO. 10-1-0589(1))

                           DECEMBER 22, 2016

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

              OPINION OF THE COURT BY RECKTENWALD, C.J.

          William E. Barrios challenges his convictions and

resulting 100-year prison sentence for numerous sexual assaults

on a minor.   We affirm Barrios’s convictions, but vacate the

sentence since the circuit court did not adequately explain its

reasons for imposing multiple consecutive prison terms on

Barrios, and since the court appeared to use Barrios’s refusal to

accept guilt as an aggravating factor in imposing his sentence.
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Accordingly, we affirm in part and vacate in part the

Intermediate Court of Appeals’ March 13, 2015 judgment on appeal

and the circuit court’s judgment of conviction and sentence, and

remand this matter to the circuit court for resentencing before

another judge.

                               I.   Background

A.    Circuit Court Proceedings
             On November 15, 2010, the State filed an indictment

against Barrios in the Circuit Court of the Second Circuit,1

charging Barrios with 200 felonies relating to Barrios’s alleged

sexual assault of two minors:         Minor Daughter (MD) and Minor Son

(MS).     The charges relating to MD were detailed in counts 1-193,

alleging sexual assault in the first degree in violation of HRS

§ 707-7302, kidnapping in violation of HRS § 707-7203, and sexual


      1
            The Honorable Joel E. August presided over Barrios’s arraignment
and bail hearing; the Honorable Rhonda I.L. Loo presided over all other
circuit court proceedings.
      2
             HRS § 707-730 (Supp. 2009) provides in pertinent part:

             (1) A person commits the offense of sexual assault in
             the first degree if:
                   (a) The person knowingly subjects another person
                   to an act of sexual penetration by strong
                   compulsion;
                   (b) The person knowingly engages in sexual
                   penetration with another person who is less than
                   fourteen years old;
                   . . . .
             (2) Sexual assault in the first degree is a class A
             felony.
      3
             HRS § 707-720 (Supp. 2009) provides in pertinent part:

             (1) A person commits the offense of kidnapping if the
             person intentionally or knowingly restrains another
                                                                 (continued...)

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assault in the third degree in violation of HRS § 707-732.4             The

charges relating to Barrios’s offenses against MS were detailed

in counts 194-200, alleging sexual assault in the first degree,

kidnapping, and attempted sexual assault in the first degree in

violation of HRS §§ 705-5005 and 707-730.         Barrios pleaded not

     3
      (...continued)
           person with intent to:
           . . . .
                 (c) Facilitate the commission of a felony or
                 flight thereafter;
                 (d) Inflict bodily injury upon that person or
                 subject that person to a sexual offense[.]
     4
           HRS § 707-732 (Supp. 2009) provides in pertinent part:

           (1) A person commits the offense of sexual assault in
           the third degree if:
                 (a) The person recklessly subjects another
                 person to an act of sexual penetration by
                 compulsion;
                 (b) The person knowingly subjects to sexual
                 contact another person who is less than fourteen
                 years old or causes such a person to have sexual
                 contact with the person. . . .
           (2) Sexual assault in the third degree is a class C
           felony.
     5
           HRS § 705-500 (1993) provides:

           (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.
           (2) When causing a particular result is an element of
           the crime, a person is guilty of an attempt to commit
           the crime if, acting with the state of mind required
           to establish liability with respect to the attendant
           circumstances specified in the definition of the
           crime, the person intentionally engages in conduct
           which is a substantial step in a course of conduct
           intended or known to cause such a result.
                                                                (continued...)

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guilty and demanded a jury trial.        Barrios’s trial began on

October 3, 2012, and lasted until November 15, 2012, when the

jury returned its verdict.

     1.    Trial

           The State’s testimony at trial established that MD and

MS–-Mother’s children from a prior marriage––were under the age

of fourteen throughout the period of the alleged sexual assaults.
Mother and Barrios began dating, and in 2004, they and the

children moved in together.

           Mother testified that she and Barrios both used crystal

methamphetamine extensively.       Mother testified that during the

drug use, her relationship with Barrios was often violent, once

resulting in two fractured ribs after he punched her.               Mother

also testified that Barrios was often violent with MD.

           Mother testified that she began to observe physical

interactions between Barrios and MD, which worsened as Barrios’s

drug use increased.     Mother stated that she witnessed MD using

her hands to masturbate Barrios “for years.          It happened every

time we used drugs.”     Mother also testified that she witnessed MD

“put[ting] her mouth on [Barrios’s] penis and giv[ing] him oral

sex . . . . eight times a month minimum.”         MD and Mother both

testified that Barrios would often force MD to watch pornography



     5
      (...continued)
           (3) Conduct shall not be considered a substantial step
           under this section unless it is strongly corroborative
           of the defendant’s criminal intent.

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with him.

            MD further testified that beginning in the summer of

2004, Barrios “made me touch his penis with my hand.            And he um,

made me put his penis in my mouth and um, he um, he would um,

touch my breasts and bite my breasts and he would put his mouth

on my vagina too.”    MD testified that between July and December

of 2004, this happened at least once a month, but that at other
times, such as late 2005 through early 2006, it happened far more

frequently, “like once a week at least.”

            MD testified that on some occasions while Barrios

sexually assaulted her, he used physical force on her, such as

holding her down, punching her, and pulling on her hair or her

neck.    Both Mother and MD testified that on at least one

occasion, Barrios forced them both to perform oral sex on him at

the same time.

            On cross-examination, MD testified that she was not

certain of the exact number of times Barrios did certain things

to her, and she was “trying to estimate, but, like,

conservatively estimate because I know it happened a lot.”

            MS also testified to several instances in which Barrios

forced MS to touch or suck on Barrios’s penis.          For example, MS

further testified that Barrios came into MS’s room, threw MS from

his bed, punched MS in the stomach, and then made MS suck his

penis.    MS also testified that if he did not do certain things,

like clean his room or train for football, Barrios would punch


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him.   MS further testified that on one occasion, Barrios hit him

on the head with a screwdriver, and on another occasion, Barrios

made MS kneel on Hawaiian salt “for a long time” after MS had

gotten into trouble.

           After the State completed its case, the defense rested

without calling any witnesses or presenting any evidence.

           In closing, the State highlighted that Barrios’s abuse
of MD occurred when MD was between eight and thirteen years old,

and his abuse of MS occurred while MS was between eight and ten

years old.   The State also highlighted that “[e]ach act of sexual

penetration constitutes a separate offense.”

           Barrios argued that the State’s evidence consisted

solely of “nonsensical, inconsistent stories,” and that the State

had not produced any physical evidence of the alleged assaults.

Barrios argued that the State was attempting to influence the

jury by appealing to their sense of pity for the complaining

witnesses:   “You know what they teach you in law school:           If you

don’t have the evidence, you show the jury the law.           If you don’t

have the law, you show the jury the evidence.          If you don’t have

either, you focus on emotions, passions and prejudice.”

           In its rebuttal, the State responded that “[w]e’re just

asking you to hold this Defendant responsible based on the

evidence that was presented in this case.”         The State also

argued:   “Now, when a child is physically injured and needs help,

they usually go to a doctor or they go to the hospital.            When a


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child needs spiritual healing, they go to church.           When a child

needs justice, they come before a jury.”         At this point Barrios

objected based on “the inflammatory nature of these comments.”

The circuit court overruled the objection.

          On November 15, 2012, the jury found Barrios guilty of

146 felonies:   72 counts of sexual assault in the first degree,

72 counts of sexual assault in the third degree, and 2 counts of
kidnapping.   All of the charges for which the jury returned a

guilty verdict related to MD; Barrios was acquitted of all of the

charges relating to MS.

     2.   Sentencing

          The State filed a motion for consecutive terms of

imprisonment for certain of Barrios’s convictions, for a total of

eighty years’ imprisonment.

          At the sentencing hearing, Barrios’s counsel noted that

Barrios had not submitted a letter of apology for the presentence

investigation (PSI) report upon the advice of his counsel because

he was planning to appeal his convictions.         Barrios’s counsel

also acknowledged receipt of the PSI report and attached

addendum, which included a letter written by MS and nine letters

written by MS’s and MD’s family members.

          The State then asked the court to allow MD to speak,

MD’s grandmother (Grandmother) to read aloud a letter she had

written, and for a letter written by MS to be read aloud.

Barrios objected to MS’s letter being read because it had already


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been submitted for inclusion in the PSI report and as such was

duplicative and unnecessary.        The court allowed all three of the

State’s requests.     MD spoke of her experiences, saying, “[a]s a

child in school, when we were asked to create little monsters, I

always had the urge to recreate an image of [Barrios].”              She

referred to Barrios repeatedly as a monster and concluded by

saying that she had “rise[n] above the abuse and put away the
monster.”

            Finally, the circuit court addressed Barrios:

            Mr. Barrios, you are the nightmare that came true.
            146 counts. The jury has spoken. A jury of your
            peers convicted you of 72 A felonies, two B felonies,
            72 C felonies; and now we are here for you –- for me
            to pass judgment on you for the crimes you committed
            against your family.

                  Under 706-606, the Court needs to consider what
            kind of sentence is appropriate, and I can think of no
            crime as horrendous as the one that you imposed upon
            this family other than murder. So many A felonies.
            This young child was a child, a baby. I think she was
            eight years old when the abuse started. Eight years
            old, a second grader, and it went on for years and
            years and years. You groomed her. You used threats,
            You used manipulation. You used mind games. You
            molded her to be a victim, and I’m so proud that she’s
            grown into such a wonderful, intelligent, smart, and
            strong young woman, and she will be a smart,
            intelligent, and strong adult when she gets older.

                  The history and circumstances of the crime that
            the Court needs to look upon can be no more serious
            crime than the 72 A felonies that you’re looking at, a
            total of 146 different counts. You have no respect
            for the law.

                  You have never exhibited any kind of remorse or
            responsibility for any of your actions. I believe at
            one point I was hearing about, oh, they made up the
            story to get me out of the house, or something along
            these lines.

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             The Court needs to consider just punishment for
       the amount of felonies that you are facing. The Court
       needs to consider adequate deterrence for your
       criminal conduct. You have convictions out of
       California. Your life of crime started back in ‘85.
       You are a sex offender out of California and never
       bothered to register in the State of Hawaii.

             You put a child through what I can only think is
       the most unspeakable, unthinkable things that a child
       has to go through. You introduced her to pornography,
       to masturbation, to fellatio, cunnilingus, you
       kidnapped her, held her against her will, just deviant
       sexual behavior, and, yes, you will be characterized
       as a child molester, a sexual predator because that’s
       exactly what you are. You are a monster. You are a
       monster.

             The State’s asking for consecutive sentences.
       They’re saying 80 years will be enough to protect the
       public from further crimes of you. [Barrios’s
       counsel] is saying this is basically one big class A
       felony, and I should give you 20 years and let you go
       to prison for 20 years, and that’s just punishment.

             But like I said earlier, the jury has spoken.
       The jury convicted you of crimes of fellatio, of
       cunnilingus, of kidnapping, of sexual penetration, the
       jury convicted you of all of these crimes, all of
       these crimes.

             I think back of the testimony that I heard over
       those weeks of trial, about how you started off with
       handjobs and pornography, oral sex on the poor victim,
       making her do all kinds of things to you, and I think
       what bothered me the most was the tandem sexual acts
       with the mother and the child that you made them
       perform, with one giving you a blowjob and the other
       one manipulating your testicles, and I guess when they
       got tired, they tag teamed and they switched
       positions. That was one of the most deplorable things
       I have ever heard of a man doing to a child and
       mother. A child and a mother at the same time.

             You showed no remorse. You showed no remorse
       then, and you show no remorse now, and I know [defense
       counsel] has suggested that you not say anything. I
       respect that. That is your right. But your behavior
       is that of a twisted, sick person. As sick as I can
       think back in all my years that I’ve been on the bench

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          that I have ever seen. That I have ever seen. The
          trauma that you’ve inflicted will have long-lasting
          effects.

                Not only about you, Mr. Barrios, but about this
          family that you tore apart, and I’m so proud that
          they’re trying to mend and to get themselves back
          together and to move on. And I’m proud that they’re
          moving on and making something of themselves. These
          are wonderful children, and they will grow up to be
          wonderful adults. Wonderful adults.

                It is the hope of this Court for the safety of
          all children that you should never see the outside of
          a prison’s walls.


          The circuit court then imposed a sentence of 100 years’

imprisonment6 and required Barrios to make Crime Victim

Compensation fee payments.


     6
          The details of the sentence were as follows:

     •    Counts 1 - 4 (sex assault in the first degree, penile
          penetration): twenty years;
     •    Count 5 (sex assault in the third degree, lesser included offense,
          penile penetration): five years, to run concurrently;
     •    Counts 21-33 (sex assault in the first degree, fellatio): twenty
          years, these counts to run concurrently but consecutively to the
          other sentences;
     •    Counts 34-40 (sex assault in the third degree, lesser included
          offense, fellatio): five years to run concurrently;
     •    Counts 41-42 (kidnapping): ten years concurrently but
          consecutively to all other sentences;
     •    Counts 46-65 (sex assault in the third degree, making minor touch
          his penis with her hand): five years concurrent and concurrent to
          all other sentences;
     •    Counts 66-89 (sex assault in the first degree, fellatio): twenty
          years concurrent but consecutive to all other sentences;
     •    Counts 90-120 (sex assault in the first degree, cunnilingus):
          twenty years concurrent but consecutive to all other sentences;
     •    Counts 130-153 (sex assault in the third degree, lesser included
          offense, and sex assault in the third degree, causing minor to
          touch his penis with minor’s hand, touching minor’s breasts and
          buttocks): five years concurrent but consecutive to all other
          sentences;
     •    Counts 174-193 (sex assault in the third degree, touching minor’s
          breast with his mouth): five years concurrent but consecutive to
          all other sentences.


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B.    ICA Appeal

            Barrios appealed and argued, inter alia, that (1) “The

Prosecutor’s comment that a child in need of justice goes to a

jury was inflammatory and arose to egregious prosecutorial

misconduct warranting a new trial[;]” (2) “The circuit court

erred in allowing people other than [MD] to be heard and

recommend Mr. Barrios’ disposition at the sentencing hearing[;]”
and (3) “The circuit court abused its discretion in sentencing

Mr. Barrios to prison for 100 years.”          (Capitalization omitted).

            The ICA held that the prosecutor’s remark during

closing did not constitute prosecutorial misconduct when viewed

in the context of the whole closing argument and that the

prosecutor’s comment was “a proper appeal to the jury to do

‘justice’ based on the evidence that was introduced during the

trial.”

            Next, the ICA concluded that Barrios waived any

objection to Grandmother reading her letter at the sentencing

hearing because he had failed to object when it was requested by

the State.     Even if Barrios had not waived this objection, the

ICA reasoned that nothing in HRS § 706-604 precludes people other

than the defendant and the victim from being heard at a

sentencing hearing.

            Finally, the ICA determined that the circuit court did

not abuse its discretion by imposing its sentence and by calling

Barrios a “monster” and “sick” and “twisted.”            The ICA further


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concluded that the circuit court sufficiently articulated a

“meaningful rationale” for the sentence in light of the factors

enumerated in HRS § 706-606.

            The ICA therefore affirmed Barrios’s conviction and

sentence.     On March 13, 2015, the ICA entered its judgment on

appeal.    On May 7, 2015, Barrios timely filed his application for

writ of certiorari.
                         II.   Standards of Review

A.    Prosecutorial Misconduct

            Allegations of prosecutorial misconduct are reviewed
            under the harmless beyond a reasonable doubt standard,
            which requires an examination of the record and a
            determination of whether there is a reasonable
            possibility that the error complained of might have
            contributed to the conviction. Misconduct of a
            prosecutor may provide grounds for a new trial if the
            prosecutor’s actions denied the defendant a fair
            trial.

State v. Mainaaupo, 117 Hawai#i 235, 247-48, 178 P.3d 1, 13-14

(2008) (quotation marks and citations omitted).

B.    Sentencing

            A sentencing judge generally has broad discretion in
            imposing a sentence. The applicable standard of
            review for sentencing or resentencing matters is
            whether the court committed plain and manifest abuse
            of discretion in its decision. Factors which indicate
            a plain and manifest abuse of discretion are arbitrary
            or capricious action by the judge and a rigid refusal
            to consider the defendant’s contentions. And,
            generally, to constitute an abuse it must appear that
            the court clearly exceeded the bounds of reason or
            disregarded rules or principles of law or practice to
            the substantial detriment to the litigant.

State v. Kong, 131 Hawai#i 94, 101, 315 P.3d 720, 727 (2013).

            Further, “[t]he weight to be given the factors set

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forth in HRS § 706-606 in imposing sentence is a matter generally

left to the discretion of the sentencing court, taking into

consideration the circumstances of each case.”            Id. (quoting

State v. Akana, 10 Haw. App. 381, 386, 876 P.2d 1331, 1334

(1994)).

                              III.   Discussion

            Barrios’s application for certiorari presents three
questions:

            Did the ICA gravely err when it ignored nearly thirty
            years of precedent and allowed the prosecutor to
            compare jurors to doctors and priests who care for and
            comfort children, and ask them to give the child
            witnesses “justice” by finding Mr. Barrios guilty?

            Did the ICA gravely err in upholding the [sic] Judge
            Loo’s use of non-victim statements at the sentencing
            hearing?

            Was the imposition of 100 years of imprisonment with
            the hope that Mr. Barrios dies in prison an abuse of
            discretion that the ICA should have readily identified
            and remedied?

            We find that the prosecutor’s remark in closing

argument was improper, but harmless, and that the circuit court

did not err in allowing the letters to be read during the

sentencing hearing.       However, we conclude that the circuit court

abused its discretion in imposing consecutive sentences totaling

100 years in prison.

A.    The Prosecutor’s Remark that “When a Child Needs Justice,
      They Come Before a Jury” During Closing Argument was
      Improper, but Harmless.

            In his application, Barrios argues that the following

remark by the prosecutor at the end of the State’s rebuttal

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closing argument was improper:       “Now, when a child is physically

injured and needs help, they usually go to a doctor or they go to

the hospital.    When a child needs spiritual healing, they go to

church.   When a child needs justice, they come before a jury.”

Specifically, Barrios argues that this was an appeal to the

jurors’ “abstract sense of justice” and diverted the jury from

its duty to decide the case on the evidence presented.
            When addressing allegations of prosecutorial

misconduct, we first determine whether the statements were

improper and, if so, determine whether the misconduct was

harmless.    See State v. Tuua, 125 Hawai#i 10, 14, 250 P.3d 273,

277 (2011).    “During closing argument, a prosecutor ‘is permitted

to draw reasonable inferences from the evidence and wide latitude

is allowed in discussing the evidence.’”         Id. (quoting State v.

Clark, 83 Hawai#i 289, 304, 926 P.2d 194, 209 (1996)).           “Although

a prosecutor has wide latitude in commenting on the evidence

during closing argument, it is not enough that . . . his comments

are based on testimony ‘in evidence’; his comments must also be

‘legitimate.’    A prosecutor’s comments are legitimate when they

draw ‘reasonable’ inferences from the evidence.”           Tuua, 125

Hawai#i at 14, 250 P.3d at 277 (quoting Mainaaupo, 117 Hawai#i at

253-54, 178 P.3d at 19-20) (internal citations omitted).

Finally, “it is ‘generally recognized under Hawai#i case law that

prosecutors are bound to refrain from expressing their personal

views as to a defendant’s guilt or the credibility of


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witnesses.’”   Tuua, 125 Hawai#i at 14, 250 P.3d at 277 (quoting

State v. Cordeiro, 99 Hawai#i 390, 424–25, 56 P.3d 692, 726–27

(2002)).

           We conclude that the prosecutor’s remark improperly

appealed to the jury’s emotions.         See U.S. v. Aviles-Colon, 537

F.3d 1, 24 (1st Cir. 2008) (“[I]t is improper to appeal to the

jury’s emotions and role as the conscience of the community.”)
(internal quotation marks and citation omitted).           The remark, by

comparing the jury to hospitals and churches, “appeared to invite

the jury to base its verdict on considerations other than the

evidence in the case.”     State v. Mars, 116 Hawai#i 125, 143, 170

P.3d 861, 879 (App. 2007) (finding that the prosecutor’s comment

that “[t]his community is measured by how we treat its weakest

members” was improper).

           An improper statement warrants a new trial if “there is

a reasonable possibility that the error complained of might have

contributed to the conviction.”       Tuua, 125 Hawai#i at 16, 250

P.3d at 279 (quoting State v. Hauge, 103 Hawai#i 38, 47, 79 P.3d

131, 140 (2003)).    To assess whether a prosecutor’s improper

statement was harmless, we evaluate three factors:           “(1) the

nature of the conduct; (2) the promptness of a curative

instruction; and (3) the strength or weakness of the evidence

against the defendant.”     Tuua, 125 Hawai#i at 16, 250 P.3d at 279

(internal quotation marks and citation omitted).

           We find that there was no reasonable possibility that


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the prosecutor’s remark contributed to Barrios’s conviction.

          First, while we have held that improper comments in

closing argument can constitute prosecutorial misconduct, the

remark here does not rise to the level of misconduct found in

those cases.   See, e.g., State v. Marsh, 68 Haw. 659, 660-61, 728

P.2d 1301, 1302-03 (1986) (finding prosecutorial misconduct and

remanding for a new trial based on prosecutor’s statement “I’m
sure [the defendant] committed the crime”).          Further, the remark

was made as part of an otherwise appropriate argument, asking the

jury “to hold [Barrios] responsible based on the evidence that

was presented in this case.”

          Second, the circuit court overruled defense counsel’s

objection after the remark was made, and therefore no curative

instruction was given regarding the prosecutor’s remark.

However, immediately prior to the parties’ closing arguments, the

court instructed the jury as follows:

          Ladies and gentlemen, at this time the attorneys will
          be making their closing arguments. Neither what they
          will say or any visual aids they may use are in
          evidence. The only evidence which you must consider
          in deliberations comes from the witness’s testimony,
          and from the exhibits which are in evidence.

Thus, the court informed the jury that it should not consider the

prosecutor’s closing argument as evidence.

          Finally, there was strong evidence to support Barrios’s

convictions.   MD testified in detail to numerous instances of

sexual and physical abuse by Barrios from 2004 to 2009.            Mother

corroborated much of MD’s testimony, testifying that she either

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witnessed the abuse or was forced to participate.             The

prosecutor’s remark “taken in this context does not reach the

level of reversible error.”        State v. Klinge, 92 Hawai#i 577,

593, 994 P.2d 509, 525 (2000) (finding the prosecutor’s comment

“[t]he people’s safety is the highest law” was harmless “in light

of the strength of the evidence against [the defendant]”).

            Therefore, although the prosecutor’s comment was an
improper appeal to emotions, the comment was harmless beyond a

reasonable doubt and does not warrant a new trial.

B.    The Circuit Court did Not Err in Allowing Grandmother to
      Read her Letter and in Allowing MS’s Letter to be Read
      During the Sentencing Hearing.

            Barrios argues that the circuit court abused its

discretion in allowing MS’s letter to be read aloud during the

sentencing hearing because, after Barrios was acquitted of all of

the charges pertaining to MS, MS cannot be considered a “victim,”

and the circuit court “cannot punish Mr. Barrios for acquitted

charges.”     Barrios also argues that the circuit abused its

discretion by allowing Grandmother to read her letter at the

hearing.    According to Barrios, HRS § 706-6047 protects

      7
            HRS § 706-604 (1993 & Supp. 2009) provides:

            (1) Before imposing sentence, the court shall afford a
            fair opportunity to the defendant to be heard on the
            issue of the defendant’s disposition.
            (2) The court shall furnish to the defendant or the
            defendant’s counsel and to the prosecuting attorney a
            copy of the report of any pre-sentence diagnosis or
            psychological, psychiatric, or other medical
            examination and afford fair opportunity, if the
            defendant or the prosecuting attorney so requests, to
                                                              (continued...)

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defendants by precluding the sentencing court from considering

any unfounded or inaccurate facts, and Grandmother “offered no

accurate or new information to assist the sentencing court[,]”

instead “launch[ing] a needless attack on Mr. Barrios that

clearly influenced the sentencing court.”

          We find that the circuit court did not abuse its

discretion in allowing Grandmother to read her letter.
          HRS § 706-604 requires the circuit court to afford an

opportunity to the defendant and the victim to be heard at

sentencing, and where the crime is a homicide or the victim is

otherwise unavailable, the circuit court must permit the victim’s

family to be heard.     See HRS § 706-604(1), (3).




(...continued)
          controvert or supplement them. The court shall amend
          or order the amendment of the 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 or other
          amendments, including additions, are made.
          (3) In all circuit court cases, the court shall afford
          a fair opportunity to the victim to be heard on the
          issue of the defendant’s disposition, before imposing
          sentence. The court, service center, or agency
          personnel who prepare the pre-sentence diagnosis and
          report shall inform the victim of the sentencing date
          and of the victim’s opportunity to be heard. In the
          case of a homicide or where the victim is otherwise
          unable to appear at the sentencing hearing, the
          victim’s family shall be afforded the fair opportunity
          to be heard.
          (4) If the defendant is sentenced to imprisonment, a
          copy of the report of any pre-sentence diagnosis or
          psychological, psychiatric, or other medical
          examination, which shall incorporate any amendments
          ordered by the court, shall be transmitted immediately
          to the department of public safety.

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          HRS § 706-6028 provides information to be included in a

PSI report, and its commentary provides that “[a] defendant is

protected against the inclusion of unfounded facts, derogatory

information, statements and conclusions by the provision of §

706-604 providing for notice and opportunity to controvert.”                HRS

§ 706-604(2) (Supp. 2009) provides for notice and an opportunity

to controvert:
          The court shall furnish to the defendant or the
          defendant’s counsel and to the prosecuting attorney a
          copy of the report of any pre-sentence diagnosis or
          psychological, psychiatric, or other medical
          examination and afford fair opportunity, if the



     8
          HRS § 706-602 (1993) provides:

          (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;
                (c) Information made available by the victim or
                other source concerning the effect that the
                crime committed by the defendant has had upon
                said victim, including but not limited to, any
                physical or psychological harm or financial loss
                suffered;
                (d) Information concerning defendant’s
                compliance or non-compliance with any order
                issued under section 806-11; and
                (e) Any other matters that the reporting person
                or agency deems relevant or the court directs to
                be included.
          (2) The court personnel or agency shall give notice of
          the Crime Victim Compensation Act, the application for
          compensation procedure, and the possibility of
          restitution by the defendant to all victims of the
          convicted defendant's criminal acts.

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           defendant or the prosecuting attorney so requests, to
           controvert or supplement them. The court shall amend
           or order the amendment of the 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 or other
           amendments, including additions, are made.

           Thus, HRS §§ 706-602 and -604 protect defendants from

unfounded facts and derogatory information by requiring notice

and an opportunity to controvert the information “if the
defendant or the prosecuting attorney so requests.”           HRS § 706-

604(2).

           Here, Grandmother’s and MS’s letters were attached in

an addendum to the PSI report the day before the sentencing

hearing.   At the beginning of the sentencing hearing, Barrios had

the opportunity to note any errors or controvert information

included in the PSI report:

           I’ll acknowledge for the record receipt of a
           Presentence Report, acknowledge the contents thereof.
           I have a couple of corrections, clarifications to make
           on that. I’ll acknowledge receiving an addendum to
           that Presentence Report, as well as a number of
           letters this morning. We are prepared to proceed.
           . . . .
           Relative to the corrections in the PSI, your Honor, I
           would just like to make a correction regarding a
           notation but the –- or the restraining order that’s
           against my client, it was actually dissolved a while
           back. Essentially, the Presentence Report notes that
           there’s still one in existence. The other correction
           that I would make on the Presentence Report is that I
           do not believe [Barrios] is subject to a repeat
           offender status, which was put in the Presentence
           Report.

(Emphasis added).    Barrios acknowledged receipt of the PSI and

its addendum and that, having reviewed this information, he

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indicated that he was prepared to proceed.

            Barrios is incorrect that HRS §§ 706-602 and -604

preclude family members of the victim from testifying at

sentencing.    The plain language of HRS § 706-604 requires that

the sentencing court allow an opportunity for the defendant and

the victim to testify or, in the case of homicide, allow the

victim’s family to testify.       It does not, however, preclude the
sentencing court from allowing other family members of the victim

to speak.    Indeed, HRS § 706-602(1)(c) specifically allows PSI

reports to include “[i]nformation made available by the victim or

other source concerning the effect that the crime committed by

the defendant has had upon said victim, including but not limited

to, any physical or psychological harm or financial loss

suffered.”    (emphasis added).     It also allows “[a]ny other

matters that the reporting person or agency deems relevant or the

court directs to be included.”       HRS § 706-602(1)(e).

            Thus, HRS §§ 706-602 and -604 indicate that the court

may consider information given by family members of the victim

concerning the effect of the defendant’s crime.          Moreover, we

have stated that:

            A sentencing judge generally has broad discretion in
            imposing a sentence, and the sentence thus imposed
            should be tailored to the particular circumstances of
            a defendant’s case. To achieve this end, there is a
            legitimate need to provide a sentencing judge with
            complete information about the defendant. Indeed, a
            sentencing judge is required to consider specific
            statutory factors in determining the sentence to be
            imposed. Therefore, the scope of a sentencing judge’s
            inquiry into a defendant’s background is very broad

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          and limitations on the kind and/or source of
          information the court may consider are not lightly
          imposed.

Keawe v. State, 79 Hawai#i 281, 285-86, 901 P.2d 481, 485-86

(1995) (quotation marks and citations omitted; emphasis added).

          Therefore, there was no error in Grandmother’s letter

being included in the PSI, and in the circuit court considering

the letter in sentencing Barrios.        Nor was it error for the
circuit court to allow Grandmother to read her letter during the

sentencing hearing.

          With regard to MS’s letter, Barrios argues that the

circuit court impermissibly punished him for acquitted charges.

Although MS’s letter makes an oblique reference to the accuracy

of the verdict, most of MS’s comments focused on the impact of

Barrios’s conduct on MD.

          Though a sentencing judge has broad discretion in

imposing a sentence, “a judge cannot punish a defendant for an

uncharged crime in the belief that it too deserves punishment.”

State v. Nunes, 72 Haw. 521, 526, 824 P.2d 837, 840 (1992).             “[A]

palpable claim of error arises when a sentencing court cites an

uncharged crime as a factor in its sentencing decision.”            State

v. Mikasa, 111 Hawai#i 1, 8, 135 P.3d 1044, 1051 (2006).            Thus,

where the remarks of the sentencing court “clearly indicated that

an improper ground was an aggravating factor in the sentencing

decision[,]” the sentence must be vacated.         Id. at 9, 135 P.3d at

1052 (internal quotations, brackets, and citation omitted).


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            An examination of the circuit court’s language in

delivering Barrios’s sentence indicates that the court did not

consider the acquitted charges related to MS, but considered only

the charges relating to MD, of which Barrios was convicted:

            This young child was a child, a baby. I think she was
            eight years old when the abuse started. . . . You
            groomed her. . . . You molded her to be a victim, and
            I’m so proud that she’s growing into such a wonderful,
            intelligent, smart, and strong young woman, and she
            will be a smart, intelligent, and strong adult when
            she gets older.
            . . . .
            You put a child through what I can only think is the
            most unspeakable, unthinkable things . . . . You
            introduced her to pornography, to masturbation[.]

(Emphases added).

            Moreover, when delivering its sentence, at no point did

the circuit court explicitly refer to any acquitted charges

pertaining to MS.      The circuit court did refer to other members

of MD’s family, but only in the context of how Barrios’s crimes

against MD “tore apart” the family.          Indeed, there is nothing to

indicate that the circuit court based its decision to impose

consecutive sentences on any charges pertaining to MS for which

Barrios was acquitted, and thus the court did not err with regard

to allowing the letter to be read.9

C.    The Circuit Court Abused its Discretion in Imposing
      Consecutive Sentences that Resulted in a Total 100-year
      Prison Sentence.



      9
            In situations in which a sentencing court receives information
referencing non-adjudicated conduct or conduct for which there has been an
acquittal, we note that the court may wish to state on the record that it did
not consider the conduct when reaching its decision.

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           Barrios argues that the circuit court abused its

discretion in imposing consecutive sentences because the circuit

court did not adequately address the factors under HRS § 706-606,

imposed the sentence out of “anger and vehemence shared by the

prosecution’s non-victims,” and because the 100-year sentence

creates a disparity between Barrios and other defendants who were

charged with only single felonies under the continuous sexual
assault of a minor statute, and who received much shorter

sentences for similar conduct.

           A court must consider the factors set forth in HRS

§ 706-606 “in determining whether the terms imposed are ordered

to run concurrently or consecutively[.]”         HRS § 706-668.5(2)

(1993).   HRS § 706-606 (1993) provides:

           The court, in determining the particular sentence to
           be imposed, shall consider:
           (1) The nature and circumstances of the offense and
           the history and characteristics of the defendant;
           (2) The need for the sentence imposed:
                 (a) To reflect the seriousness of the offense,
                 to promote respect for law, and to provide just
                 punishment for the offense;
                 (b) To afford adequate deterrence to criminal
                 conduct;
                 (c) To protect the public from further crimes of
                 the defendant; and
                 (d) To provide the defendant with needed
                 educational or vocational training, medical
                 care, or other correctional treatment in the
                 most effective manner;
           (3) The kinds of sentences available; and
           (4) The need to avoid unwarranted sentence disparities
           among defendants with similar records who have been
           found guilty of similar conduct.

           “Absent clear evidence to the contrary, it is presumed

that a sentencing court will have considered all factors before

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imposing concurrent or consecutive terms of imprisonment under

HRS § 706–606.”    Kong, 131 Hawai#i at 102, 315 P.3d at 728

(internal brackets, quotation marks, and citation omitted).

However, “circuit courts must state on the record at the time of

sentencing the reasons for imposing a consecutive sentence.”                Id.

(internal quotation marks and citation omitted; emphasis in

original).   Even if the sentencing court addresses the HRS § 706-
606 factors, and states its reasons on the record, the sentence

must be vacated if the court relies upon any improper factors.

See Mikasa, 111 Hawai#i at 9, 135 P.3d at 1052.

          Although the circuit court addressed several of the

required HRS § 706-606 factors in deciding to impose consecutive

sentences, we conclude that the court abused its discretion by

(1) not adequately explaining its decision to impose multiple

consecutive sentences totaling 100 years of imprisonment and (2)

improperly relying upon Barrios’s refusal to admit guilt given

his desire to appeal his convictions.        Barrios’s sentence must be

vacated on these bases, and we remand the case to the circuit

court for resentencing.

     1.   The circuit court was not limited to the available
          sentence under HRS § 707-733.6

          Barrios argues that the circuit court abused its

discretion in imposing his sentence because it did not adequately

consider the “nature and circumstances” of Barrios’s offense

under HRS § 706-606(1), and “[t]he need to avoid unwarranted

sentence disparities among defendants with similar records who

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have been found guilty of similar conduct” under HRS § 706-

606(4).   Essentially, Barrios argues that because the State could

have charged him with a single felony for the same conduct under

HRS § 707-733.610 (Continuous sexual assault of a minor under the

age of fourteen years), his sentence should have been limited to

the available sentence under that statute, i.e., twenty years.

According to Barrios, his 100-year sentence was thus “wildly
disproportionate.”

          Barrios’s reliance on HRS § 707-733.6 is misplaced.

First, Barrios highlights only the portion of HRS § 706-606(4)


     10
          HRS § 707-733.6 (Supp. 2009) provides:

          (1) A person commits the offense of continuous sexual
          assault of a minor under the age of fourteen years if
          the person:
                (a) Either resides in the same home with a minor
                under the age of fourteen years or has recurring
                access to the minor; and
                (b) Engages in three or more acts of sexual
                penetration or sexual contact with the minor
                over a period of time, while the minor is under
                the age of fourteen years.

          (2) To convict under this section, the trier of fact,
          if a jury, need unanimously agree only that the
          requisite number of acts have occurred; the jury need
          not agree on which acts constitute the requisite
          number.

          (3) No other felony sex offense involving the same
          victim may be charged in the same proceeding with a
          charge under this section, unless the other charged
          offense occurred outside the period of the offense
          charged under this section, or the other offense is
          charged in the alternative. A defendant may be
          charged with only one count under this section, unless
          more than one victim is involved, in which case a
          separate count may be charged for each victim.

          (4) Continuous sexual assault of a minor under the age
          of fourteen years is a class A felony.

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that states courts should avoid disparate sentences among

defendants found guilty of “similar conduct,” but fails to

acknowledge that the provision also states the need is to avoid

disparities among defendants “with similar records who have been

found guilty of similar conduct.”        HRS § 706-606(4) (emphasis

added).   Although Barrios argues that defendants convicted under

HRS § 707-733.6 would only receive a maximum of twenty years’
imprisonment, he does not discuss any convictions under that

statute where the defendant had “similar records” to Barrios.

Specifically, there were thirty-three different factors listed in

Barrios’s PSI report recommending a prison term, and Barrios had

numerous prior convictions, including convictions for battery,

possession of controlled substances, and at least two convictions

for indecent exposure in California.

           Moreover, Barrios cites to no authority, nor does there

appear to be any, that requires the State to charge defendants

with a single felony under HRS § 707-733.6 rather than individual

felonies of sexual assault, if the State believes it has

sufficient evidence to get convictions under the individual

counts.   Indeed, the legislative history of HRS § 707-733.6

indicates that the statute was intended to make it easier for the

State to obtain convictions in cases where there may not be

enough evidence to prove with specificity individual counts of

sexual assault.

           Although the legislative history of HRS § 707-733.6 is

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limited, the statute was enacted in 2006 to replace HRS § 707-

733.5.   The relevant portions of HRS §§ 707-733.5 and -733.6 are

substantively identical,11 and therefore the legislative history

of HRS § 707-733.5 is instructive.         HRS § 707-733.5 was enacted

in 1997 pursuant to Act 379, which stated:

            The legislature finds that sexual assault in the
            first, second, third, and fourth degrees, in the
            manner prohibited under the Hawai#i penal code, are
            not “continuing offenses” in that they represent
            distinct acts and, therefore, separate offenses. The
            legislature finds, however, that many young children
            who have been sexually abused over an extended period
            of time may be unable to specifically recall or
            identify dates, instances, or circumstances


      11
            HRS § 707-733.5, which was repealed in 2006, provided (with
differences between this statute and HRS § 707-733.6 emphasized):

            (1) Any person who:
                  (a) Either resides in the same home with a minor
                  under the age of fourteen years or has recurring
                  access to the minor; and
                  (b) Engages in three or more acts of sexual
                  penetration or sexual contact with the minor
                  over a period of time, while the minor is under
                  the age of fourteen years.
            is guilty of the offense of continuous sexual assault
            of a minor under the age of fourteen years.

            (2) To convict under this section, the trier of fact,
            if a jury, need unanimously agree only that the
            requisite number of acts have occurred; the jury need
            not agree on which acts constitute the requisite
            number.

            (3) No other felony sex offense involving the same
            victim may be charged in the same proceeding with a
            charge under this section, unless the other charged
            offense occurred outside the time frame of the offense
            charged under this section, or the other offense is
            charged in the alternative. A defendant may be
            charged with only one count under this section, unless
            more than one victim is involved, in which case a
            separate count may be charged for each victim.

            (4) Continuous sexual assault of a minor under the age
            of fourteen years is a class A felony.

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           surrounding the abuse.

                  As discussed by Justice Nakayama in a dissenting
           opinion to the Hawai#i Supreme Court’s recent decision
           in State v. Arceo, [84 Hawai#i 1, 928 P.2d 843
           (1996)], the prosecution’s key witness in cases
           involving the sexual assault of a minor is usually a
           child with limited ability to recall alleged facts
           with specificity. Justice Nakayama argued that “this
           is particularly problematical and evident in cases
           involving sexual assault by a parent, where the minor
           may be of tender years, under the exclusive control of
           the parent or guardian, and when the abuse has
           occurred on a number of occasions over a period of
           time.”
           . . . .
                  Justice Nakayama urged the legislature to enact
           a “continuous sexual abuse of a minor” statute,
           similar to the one enacted by the State of California,
           to address the problems inherent in the criminal
           prosecution of sexual abuse cases involving young
           children who are unable to specify the time, places,
           or circumstances of each act. The legislature agrees
           that there is a need for such a statute[.]

1997 Haw. Sess. Laws, Act 379, § 1 at 1191-92 (emphases added).

           Thus, the intent behind the continuous sexual assault

of a minor statute is not, as Barrios contends, to limit the

available sentence in cases where the State is able to prove

beyond a reasonable doubt specific counts of sexual assault of a

minor.   Instead, the intent is to ensure that offenders can be

convicted even when the complaining witness is unable to testify

with specificity regarding the time, place, and circumstances of

each and every specific event.

           Here, the State believed it was able to obtain

convictions in individual counts of sexual assault, and charged

Barrios accordingly.     The State was able to do so in 146 of the


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200 counts, and Barrios has not raised any issues regarding the

sufficiency of the evidence by which the jury convicted him of

those 146 counts.

            As such, it was within the circuit court’s discretion

to sentence Barrios according to the number of felonies for which

he was convicted instead of following the required sentence for a

single conviction of continuous sexual assault.
     2.     The circuit court did not adequately explain its
            rationale for imposing consecutive sentences

            In affirming Barrios’s sentence, the ICA relied upon

the fact that the circuit court had adequately addressed the

factors under HRS § 706-606.        However, a sentencing court is

additionally required to explain on the record its reasoning

based on the HRS § 706-606 factors to ensure that its “decision

to impose consecutive sentences was deliberate, rational, and

fair.”    Hussein, 122 Hawai#i at 510, 229 P.3d at 328.             We find

that, here, the circuit court did not adequately explain its

rationale for imposing consecutive sentences.

            In Hussein, this court explained the “dual purposes”

served by requiring that circuit courts “state on the record at

the time of sentencing the reasons for imposing a consecutive

sentence”:

            First, reasons identify the facts or circumstances
            within the range of statutory factors that a court
            considers important in determining that a consecutive
            sentence is appropriate. An express statement, which
            evinces not merely consideration of the factors, but
            recites the specific circumstances that led the court

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          to impose sentences consecutively in a particular
          case, provides a meaningful rationale to the
          defendant, the victim, and the public.

          Second, reasons provide the conclusions drawn by the
          court from consideration of all the facts that pertain
          to the statutory factors. It is vital, for example,
          for the defendant to be specifically informed that the
          court has concluded that he or she is dangerous to the
          safety of the public, or poses an unacceptable risk of
          re-offending, or that rehabilitation appears unlikely
          due to his or her lack of motivation and a failure to
          demonstrate any interest in treatment, or that the
          multiplicity of offenses and victims and the impact
          upon the victims’ lives warrant imposition of a
          consecutive term. Hence, reasons confirm for the
          defendant, the victim, the public, and the appellate
          court, that the decision to impose consecutive
          sentences was deliberate, rational, and fair.

122 Hawai#i at 509-10, 229 P.3d at 327-28.

          In Kong, this court applied these principles to

determine whether the circuit court adequately explained its

reasoning in sentencing the defendant.         The circuit court imposed

two sentences to run consecutively, stating:

          Taking into consideration all of the factors set forth
          in [HRS §] 706–606, including the extensive record of
          the defendant, which includes six burglary
          convictions, . . . ten felonies, which represents a
          lot of harm in our community.

          The Court is going to impose the following sentence in
          this matter. The defendant will be committed to the
          care and custody of the Director of the Department of
          Public Safety for a period of ten years on Count 1,
          five years on Count 2. . . .

          In view of his extensive criminality, the Court is
          going to make these counts run consecutive for a total
          of fifteen years, mittimus forthwith, full credit for
          time served.

131 Hawai#i at 99, 315 P.3d at 725.


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           The defendant argued that the circuit court did not

adequately address the HRS § 706-606 factors to warrant imposing

consecutive sentences.     Id. at 102, 315 P.3d at 728.

           This court held that “the sentencing court is not

required to articulate and explain its conclusions with respect

to every factor listed in HRS § 706-606[,]” but rather must

“articulate its reasoning only with respect to those factors it
relies on in imposing consecutive sentences.”          Id. at 102, 315

P.3d at 728.   We noted that the circuit court’s discussion of the

defendant’s “extensive criminality” related directly to the

statutory factors in HRS § 706-606(1).         Id. at 103, 315 P.3d at

729.   We then concluded that the court’s “extensive criminality”

statement satisfied the dual purposes set forth in Hussein

because it “identified the specific facts or circumstances within

the range of statutory factors that the court considered” and

“provided a rational and fair basis within the range of statutory

factors for the imposition of consecutive sentences.”            Id.   Thus,

the sentencing court did not abuse its discretion in imposing a

consecutive sentence.     Id. at 104, 315 P.3d at 730.

           Unlike in Kong, we find that the circuit court in the

present case did not adequately establish the basis for Barrios’s

sentence, which totaled 100 years of imprisonment, because it did

not explain its reasoning for each consecutive sentence.

           In sentencing Barrios, the circuit court considered

several of the factors in HRS § 706-606.         Before imposing the

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consecutive sentence, the circuit court stated:          “Under 706-606,

the Court needs to consider what kind of sentence is appropriate,

and I can think of no other crime as horrendous as the one that

you imposed upon this family other than murder.”           The court then

stated:

                This young child was a child, a baby. I think
          she was eight years old when the abuse started. Eight
          years old, a second grader, and it went on for years
          and years and years. You groomed her. You used
          threats. You used manipulation. You used mind games.
          You molded her to be a victim . . . .

                The history and circumstances of the crime that
          the Court needs to look upon can be no more serious
          crime than the 72 A felonies that you’re looking at, a
          total of 146 different counts. You have no respect
          for the law.

This demonstrates that the court examined the nature and

circumstances of Barrios’s crime under HRS § 706-606(1) and the

need for the sentence “[t]o reflect the seriousness of the

offense, [and] to promote respect for the law” under HRS § 706-

606(2)(a).

          The court also appeared to rely upon the need for the

sentence “[t]o afford adequate deterrence to your criminal

conduct” under HRS § 706-606(2)(b):

                The Court needs to consider just punishment for
          the amount of felonies that you are facing. The Court
          needs to consider adequate deterrence for your
          criminal conduct. You have convictions out of
          California. Your life of crime started back in ‘85.
          You are a sex offender out of California and never
          bothered to register in the State of Hawai#i.

(Emphasis added).


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           Finally, the circuit court considered the need for the

sentence “[t]o protect the public from further crimes of the

defendant” pursuant to HRS § 706-606(2)(c) when it stated:             “It

is the hope of this Court for the safety of all children that you

should never see the outside of a prison’s walls.”

           Despite the circuit court addressing these statutory

factors on the record, the circuit court did not sufficiently
explain its decision to impose multiple consecutive sentences as

required by Hussein and Kong.       For example, the circuit court

offered no explanation as to why it decided to impose consecutive

sentences for Counts 41 and 42 (kidnapping) and Counts 130-153

and 174-193 (sexual assault in the third degree), when the State

had recommended the sentences for these convictions to run

concurrently with the other sentences.         Moreover, while the

circuit court’s explanation offered a rational basis for some of

the consecutive sentences, such as pointing out that that the

acts of fellatio with Mother present were particularly

reprehensible, the court did not articulate a rational basis for

each consecutive sentence that it imposed.

           In State v. Williams, the Supreme Court of Minnesota

articulated the importance of stating specific reasons when

imposing multiple consecutive sentences.         608 N.W.2d 837 (Minn.

2000).   In Williams, the trial court sentenced the defendant to

three consecutive sentences for convictions of criminal sexual

conduct, attempted first-degree murder, and first-degree

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burglary, which all involved the same victim.          See id. at 839-40.

The trial court had identified 15 aggravating circumstances to

justify the consecutive sentences, all of which were “upward

departures” from the Minnesota Sentencing Guidelines.            Id. at

840.   However, the Minnesota Supreme Court held that the trial

court “erred in not separately identifying the aggravating

factors supporting each sentencing departure.”          Id. at 841.
            The Supreme Court of Minnesota explained that “a

separate analysis of the reasons for departure as to each

sentence may have led to a different sentencing result, would

have informed the appellant as to the rationale for each

sentence, and of course would have provided a clear record for

review.”    Id.   The court stated that “[a] further concern is that

factors supporting departure on one sentence may not justify a

departure on another sentence.”       Id.   “For example, the victim’s

vulnerability due to the fact she was asleep when appellant

entered her apartment supports a departure on the criminal sexual

conduct sentence but does not justify a departure on the

attempted murder sentence because the victim was awake at the

time of that offense.”     Id.

            In other words, consistent with the Hussein principles,

a sentencing court should explain its rationale for each

consecutive sentence in order to inform the defendant and

appellate courts of the specific factors underlying each

sentence.    This helps to ensure that a sentencing judge takes

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into account the differences among convictions prior to imposing

multiple consecutive sentences.       Thus, in order to provide a

rational basis for imposing consecutive sentences as required by

Kong, sentencing courts must state on the record the HRS § 706-

606 factors that support each consecutive sentence.           While the

same factors could be sufficiently aggravated to justify imposing

more than one consecutive sentence, the sentencing court should
specify that basis or identify another basis for determining how

many consecutive sentences to impose.

          This requirement is particularly important in cases

such as this one, where the circuit court expressly stated its

intent to ensure that Barrios would never be released from

prison, in contrast to the maximum twenty-year term applicable to

the Class A felonies for which he was convicted.           While such a

sentence can be imposed in an appropriate case, a clearly

articulated rationale is necessary when there is a large

disparity between the maximum statutory sentence for each offense

and the aggregate consecutive sentence imposed by the court.

          In sum, we find that the circuit court abused its

discretion in failing to adequately explain its rationale for

imposing multiple consecutive sentences, and therefore Barrios’s

sentence must be vacated.      See Kong, 131 Hawai#i at 102, 315 P.3d

at 728.

          We further note that the circuit court’s comments

suggest that it relied on Barrios’s refusal to admit guilt as a

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factor in imposing his sentence.         See State v. Kamana#o, 103

Hawai#i 315, 320, 82 P.3d 401, 406 (2003) (holding that the

circuit court impermissibly inferred that the defendant lacked

remorse based on his “refusal to admit his culpability for the

offenses of which he was convicted”).

          In Kamana#o, this court held 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.”       Id. at 316, 82 P.3d at 402.

This court reasoned, in part, that doing so would “place the

defendant in the dilemma of either abandoning his fifth amendment

rights or risking a harsher sentence.”         Id. at 322, 82 P.3d at

408 (quoting Harden v. Florida, 428 So.2d 316, 317 (Fla. Dist.

Ct. App. 1983)).

          This court then applied a three-factor analysis to

determine whether the sentencing court erroneously relied upon

the defendant’s refusal to admit guilt:         “(1) the defendant’s

maintenance of innocence after 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[.]”          Kamana#o, 103

Hawai#i at 323, 82 P.3d at 409 (quoting People v. Wesley, 411

N.W.2d 159, 162 (Mich. 1987)) (internal brackets omitted).             This

court concluded that “Kamanao’s refusal to admit guilt

‘improperly influenced’ the circuit court’s decision to grant the

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prosecution’s motion for an extended term of imprisonment.”             103

Hawai#i at 323.

          Here, application of the three-part Kamana#o analysis

weighs in favor of vacating Barrios’s sentence.          Under the first

factor, Barrios maintained his innocence throughout trial–-

indeed, that was Barrios’s sole defense–-and, after his

conviction, chose to remain silent during sentencing.            Moreover,
defense counsel indicated to the court in sentencing that Barrios

had not submitted a letter of apology because he was intending to

appeal his convictions.     This factor thus weighs in favor of

vacating the sentence.     See Kamana#o, 103 Hawai#i at 320, 323, 82

P.3d at 406, 409 (explaining that first factor weighed in favor

of vacating the sentence because the defendant “intended at all

times to appeal his convictions, thus making it unwise and

legally imprudent to admit his guilt in the circuit court during

the sentencing hearing”).

          Under the second factor, the circuit court did not ask

Barrios to admit his guilt at sentencing.         However, the court in

Kamanao also did not make such a request, other than confirming

that the defendant continued to maintain his innocence.            Id. at

323-24.

          Under the third factor, the circuit court stated:             “You

have never exhibited any kind of remorse or responsibility for

your actions.     I believe at one point I was hearing about, oh,

they made up the story to get me out of the house, or something

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along these lines.”      The court also stated:       “You showed no

remorse.    You showed no remorse then, you show no remorse now,

and I know [defense counsel] has suggested that you not say

anything.    I respect that.     That is your right.      But your

behavior is that of a twisted, sick person.” (emphasis added)

The court thus appeared to draw an inference from Barrios’s

decision to remain silent at sentencing that Barrios lacked any
remorse, and implied that it was an “aggravating factor” it

considered in imposing the extended sentence.           Mikasa, 111

Hawai#i at 9, 135 P.3d at 1052.       This provides further support as

to why Barrios’s sentence should be vacated.12          See id.

                              IV.   Conclusion

            For the foregoing reasons, the circuit court abused its

discretion in imposing Barrios’s sentence because it did not

adequately explain its decision to impose multiple consecutive

sentences and improperly inferred that he lacked any remorse.

Accordingly, we affirm the portion of the ICA’s March 13, 2015

judgment on appeal pertaining to Barrios’s convictions, and we

vacate the portion of the ICA’s Judgment on Appeal pertaining to




      12
            Barrios also argues that “the sentencing court resorted to name-
calling and joined in the ad hominem attacks of the prosecution’s witnesses.”
According to Barrios, this “offensive and discourteous conduct” is an
additional ground for vacating the sentence. Because we vacate Barrios’
conviction on other grounds, we do not address this argument. We note that
the Principles of Professionalism for Hawai#i Judges (PPHJ) state that “[a]
judge should be courteous, respectful and civil to lawyers, parties,
witnesses, court personnel, and all other participants in the legal process.”
PPHJ Principle 1.

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Barrios’s sentence.13     We vacate the portion of circuit court’s

February 1, 2013 Judgment of Conviction and Sentence sentencing

Barrios, and remand to the circuit court for resentencing before

a different judge, consistent with this opinion.            See State v.

Carvalho, 90 Hawai#i 280, 288, 978 P.2d 718, 726 (1999)

(remanding to a different judge after the trial court used an

improper sentencing procedure).
Benjamin E. Lowenthal                /s/ Mark E. Recktenwald
for petitioner
                                     /s/ Paula A. Nakayama
Artemio C. Baxa
for respondent                       /s/ Sabrina S. McKenna

                                     /s/ Richard W. Pollack

                                     /s/ Michael D. Wilson




      13
            We affirm the ICA’s judgment with regard to Barrios’s request for
fees and costs.

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