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                                                               Electronically Filed
                                                               Supreme Court
                                                               SCWC-XX-XXXXXXX
                                                               01-JUN-2020
                                                               01:22 PM




                              SCWC-XX-XXXXXXX

           IN THE SUPREME COURT OF THE STATE OF HAWAIʻI
 ________________________________________________________________

                            STATE OF HAWAIʻI,
                     Respondent/Plaintiff-Appellee,

                                     vs.

                          JAMES THOMPSON,
                  Petitioner/Defendant-Appellant.
 ________________________________________________________________

          CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
                (CAAP-XX-XXXXXXX; CR. NO. 97-0-2401)

                     SUMMARY DISPOSITION ORDER
(By: Nakayama, Acting C.J., McKenna, Pollack, and Wilson, JJ., and
  Circuit Judge Browning, in place of Recktenwald, C.J., recused)

            Petitioner/Appellant-Defendant James Thompson

(“Thompson”) challenges the credit given him at resentencing for

time he served subsequent to his 2001 conviction and sentencing

for seven counts of sexual assault in the first degree (Hawaiʻi

Revised Statutes (“HRS”) § 707-730(1)(a) (1993)); two counts of

attempted sexual assault in the first degree (HRS §§ 705-500

(1993) and 707-730(1)(a)); eight counts of sexual assault in the
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third degree (HRS § 707-732(1)(e)(1993)); two counts of

kidnapping (HRS § 707-720(1)(d)(1993)); and one count of sexual

assault in the fourth degree (HRS § 707-733(1)(a)(1993)).              For

his original sentence in 2001, Thompson received nine terms of

life with the possibility of parole, two twenty-year terms,

eight ten-year terms, and a single one-year term to be served

concurrently for a maximum sentence of life with the possibility

of parole (“2001 sentence”).

            Following a successful habeas corpus petition, the

United States District Court for the District of Hawai‘i (“U.S.

District Court”) vacated Thompson’s 2001 sentence because the

sentences comprising the 2001 sentence were extended beyond the

statutory maximum based on facts found by a judge, not a jury,

in violation of the United States Supreme Court’s holding in

Apprendi v. New Jersey, 530 U.S. 466 (2000).           Thompson v.

Thomas, No. CIV. 08-00218 SOM, 2012 WL 3777143, at *1 (D. Haw.

Aug. 29, 2012).1     At resentencing in 2017, the Circuit Court of

the First Circuit of the State of Hawaiʻi (“circuit court”)

imposed a consecutive sentence comprised of four increments:

three twenty-year terms and a single one-year term to be served

consecutively, for a total sentence of sixty-one years

1
      On March 18, 2014, the order of the U.S. District Court was affirmed by
the Ninth Circuit Court of Appeals. Thompson v. Thomas, 564 Fed. Appx. 316,
2014 WL 1017044 (9th. Cir. 2014) (Mem.).




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imprisonment (“2017 resentence”).         The circuit court indicated

that Thompson’s credit for time served under the 2001 sentence

would be applied only once against the first of his three

consecutive twenty-year terms.

            On appeal, Thompson correctly contends his 2017

resentencing failed to give him full credit for time he served

on his 2001 sentence.      The credit was applied only to the sixty-

one year combined total sentence rather than to each of the

offenses comprising his 2017 resentence.2            At the time of his


2
      The following chart compares Thompson’s 2001 sentence and 2017
resentence:




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resentencing in 2017, Thompson had served seventeen years on all

of his concurrent sentences.3

            Under HRS § 706-671(2), “when a judgment of conviction

or a sentence is vacated and a new sentence is thereafter

imposed upon the defendant for the same crime, the period of

detention and imprisonment theretofore served shall be deducted

from the minimum and maximum terms of the new sentence.”              The

reference in HRS § 706-671(2) to “minimum and maximum terms”

denotes the minimum term set by the Hawaiʻi paroling authority

pursuant to HRS § 706-6694 and the statutory maximum term for

each count.    State v. Martin, 71 Haw. 73, 74, 783 P.2d 292, 293

(1989) (explaining that “[t]hese words ‘minimum and maximum

terms’ refer to the minimum term of imprisonment to be

determined by the paroling authority, see HRS § 706–669 (1985),



3
      Thus, Thompson had fully served his eight (concurrent) ten-year
extended sentences for counts 9-11, 15-17, 20 and 21, as well as his
(concurrent) one year sentence on count 13; he had served seventeen years of
his (concurrent) twenty-year extended sentences for counts 12 and 22; and he
had served seventeen years with respect to his nine (concurrent) terms of
life with the possibility of parole.
4
      HRS § 706-669 provides in relevant part:

            When a person has been sentenced to an indeterminate or an
            extended term of imprisonment, the Hawaiʻi paroling
            authority shall, as soon as practicable but no later than
            six months after commitment to the custody of the director
            of the department of [public safety] hold a hearing, and on
            the basis of the hearing make an order fixing the minimum
            term of imprisonment to be served before the prisoner shall
            become eligible for parole.




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and the maximum length of imprisonment, determined under [the

relevant penal statute] for defendant[’s conviction.]”).

            Although HRS § 706-671(2) does not specify how time

served under concurrent sentences should be credited against

consecutive sentences imposed on resentencing, it is significant

that the statute requires that the defendant be credited with

time served with respect to the “same crime.”           Id.    When the

defendant has accrued time served against multiple crimes, the

wording of HRS § 706-671(2) suggests that on resentencing for

those same crimes, the defendant is entitled to credit against

each of those same crimes, rather than only once against the

aggregate of the consecutive sentences.          See State v. Brant, 72

Haw. 230, 232, 813 P.2d 854, 855 (1991) (noting that “nothing in

the statute allows a court discretion to decide whether to

credit time already served for the same offense.            Section 706-

671 clearly mandates credit for time served in detention or

imprisonment when a sentence is vacated and [a] new sentence is

thereafter imposed.”).5


5
      Subsection (1) of HRS § 706-671 governs credit for time served by the
defendant from the time of arrest until the imposition of the initial
sentence. HRS § 706-671(1) provides in relevant part:

            When a defendant who is sentenced to imprisonment has
            previously been detained in any State or local correctional
            or other institution following the defendant’s arrest for
            the crime for which sentence is imposed, such period of
            detention following the defendant’s arrest shall be

                                                              (continued . . .)


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(continued . . .)

            deducted from the minimum and maximum terms of such
            sentence.

      We interpreted and applied subsection (1) in State v. Tauiliili, where
we held that “credit for presentence imprisonment is properly granted against
only the aggregate of the consecutive sentence terms.” 96 Hawaiʻi 195, 197–
99, 29 P.3d 914, 916–18 (2001)(emphasis added). We have not, however,
previously had occasion to decide whether the statutory mandate contained in
subsection (2) of HRS § 706-671 requires that, on resentencing after the
original sentence has been vacated, credit for time served is properly
granted against only the aggregate of the consecutive sentence terms.

      In Tauiliili, we relied on the Commentary to HRS § 706-671 in reaching
our decision that credit for presentence imprisonment should only be applied
once against the aggregate of the consecutive sentences:

            The commentary to HRS § 706-671 states in relevant part
            that “[t]his section provides for a result which the Code
            deems fair” and “provides for some equalization ... between
            those defendants who obtain pre-sentence release and those
            who do not.” Statutes giving credit for presentence
            confinement were designed to ensure equal treatment of all
            defendants whether or not they are incarcerated prior to
            conviction. [In Re Atiles, 33 Cal.3d 805, 808, 662 P.2d
            910, 911 (Cal. 1983)]. [G]ranting presentence credit,
            therefore, seeks to place an in-custody criminal defendant
            who cannot afford to post bail in the same position as his
            counterpart with bail money. Nissel v. Pearce, 307 Or. 102,
            764 P.2d 224, 226 (1988).

Tauiliili at 198–99, 29 P.3d at 917–18. This rationale – i.e., the need “to
place an in-custody criminal defendant who cannot afford to post bail in the
same position as his counterpart with bail money” – is plainly inapplicable
to subsection (2) of HRS § 706-671. Subsection (2) does not involve credit
for time served in presentence detainment, rather it deals with credit for
time served after the imposition of the vacated sentence, and thus there is
no risk that applying credit for time served against each of the consecutive
sentences rather than only against the aggregate of the consecutive sentences
“would [] defeat the purpose of ‘equalization’ noted in the commentary to HRS
§ 706-671 (1993).” Id. at 199, 29 P.3d at 918.

      The issue presented by the instant case therefore is readily
distinguishable from the issue we decided in Tauiliili. Id. Thompson’s case
deals with “credit for imprisonment under [an] earlier sentence for same
crime[,]” while Tauiliili dealt with “[c]redit for time of detention prior to
sentence” (“presentence credit”). Compare HRS § 706-671(1), with HRS § 706-
671(2).




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              Moreover, an interpretation of subsection (2) of HRS §

706-671 that applied credit for time served only once against

the aggregate of consecutive sentences imposed on resentencing

would raise very serious double jeopardy issues.              The double

jeopardy clause in article I, section 10 of the Hawai‘i

Constitution6 affords the same protections as does the United

States Constitution’s Fifth Amendment guarantee7 that no person

“be subject for the same offence to be twice put in jeopardy of

life or limb[.]”       State v. Taparra, 82 Hawai‘i 83, 89, 919 P.2d

995, 1001 (Ct. App. 1996).         The United States Supreme Court held

in North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072,

2076 (1969), that “[t]he Constitution was designed as much to

prevent the criminal from being twice punished for the same

6
        Article I, section 10, of the Hawaiʻi Constitution provides in relevant
part:

              No person shall be held to answer for a capital or
              otherwise infamous crime, unless on a presentment or
              indictment of a grand jury or upon a finding of probable
              cause after a preliminary hearing held as provided by law,
              except in cases arising in the armed forces when in actual
              service in time of war or public danger; nor shall any
              person be subject for the same offense to be twice put in
              jeopardy[.]
7
      The Fifth Amendment to the United States Constitution provides in
relevant part:

              No person shall be held to answer for a capital or
              otherwise infamous crime, unless on a presentment or
              indictment of a Grand Jury, except in cases arising in the
              land or naval forces, or in the Militia, when in actual
              service in time of War or public danger; nor shall any
              person be subject for the same offence to be twice put in
              jeopardy of life or limb[.]




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offence as from being twice tried for it” and the guarantee

against double jeopardy “is violated when [imprisonment] already

exacted for an offense is not fully ‘credited’ in imposing

sentence upon a new conviction for the same offense.”             Taparra

at 89, 919 P.2d at 1001 (quoting Pearce, 395 U.S. at 718).              As

such “[t]he time already served in prison by a defendant must be

credited ‘by subtracting [it] from whatever new sentence is

imposed.’”     Id. (quoting Pearce, 395 U.S. at 719).

             Absent credit for time already served on each count of

his 2001 sentence, Thompson would be subjected to

unconstitutional “multiple punishments” for the same offense.

Taparra at 89, 919 P.2d at 1001.          As the United States Supreme

Court observed in Pearce, “the constitutional guarantee against

multiple punishments for the same offense absolutely requires

that punishment already exacted must be fully ‘credited’ in

imposing sentence . . . for the same offense.”           Pearce, 395 U.S.

at 718-19.    Accordingly, Thompson must “absolutely” receive full

credit for the time that he served on each count of the 2001

sentence.    Specifically, the time Thompson served under his 2001

sentence (approximately seventeen years) must be credited

against the statutory maximum term for each count under which he

was resentenced in 2017.       HRS § 706-671(2).      Anything less would

be a violation of Thompson’s constitutional rights under the

double jeopardy clause of article I, section 10 of the Hawaiʻi

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Constitution and the Fifth Amendment to the United States

Constitution.

              Following the setting aside of Thompson’s 2001

sentence by the U.S. District Court, the circuit court at

resentencing in 2017 imposed new sentences for counts Thompson

had fully served under the 2001 sentence.             With respect to count

13 of the 2001 sentence (one-year imprisonment for misdemeanor

sex assault 4, served concurrently with all other counts),

Thompson had completed the sentence by the time of his

resentencing in 2017.         However, at resentencing in 2017,

Thompson was again sentenced to one-year incarceration on count

13, with the sentence to be served consecutively to the three

twenty-year consecutive terms.           Similarly, the circuit court at

resentencing in 2017 reimposed sentences for eight class C

felony counts stemming from his 2001 convictions.8               The statutory

maximum sentence of five years’ incarceration was imposed for

each of the eight counts;9 per the 2001 extended sentence, he had

received ten years of incarceration for each count—all eight to




8
         Sex assault 3 (HRS § 707-732(1)(e)(1993)) in counts 9-11, 15-17, and
20-21.
9
      HRS § 706-660 provides that the term of imprisonment for a class C
felony is five years. HRS § 706-660(1)(b).




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be served concurrently.10      Likewise, for the class B felonies in

counts 12 and 22, Thompson received extended terms of twenty

years for each count in 2001 and the statutory maximum of ten

years’ incarceration at resentencing in 2017.           Thus, by the time

Thompson was resentenced in 2017 he had fully served the maximum

one-year statutory sentence for the misdemeanor in count 13, the

five-year statutory maximum sentences for class C felonies in

counts 9-11, 15-17, and 20-21, and the two statutory maximum

sentences of ten years for the class B felonies in counts 12 and

22.

            As explained above, Thompson was resentenced in 2017

for nine class A felony offenses (counts 1-4, 6-8, 14, and 19).

The statutory maximum sentence for a class A felony is “an

indeterminate term of imprisonment of twenty years” and the

“minimum length of imprisonment shall be determined by the

Hawai‘i paroling authority in accordance with section 706-669.”

HRS § 706-659.11    Thus, under the 2001 sentence, Thompson had


10
      HRS § 706-661 provides that an extended term of imprisonment for a
class C felony is ten years. HRS § 706-661(4).
11
      Thompson’s approximately seventeen years credit also must be deducted
from his minimum sentence as calculated by the Hawaiʻi paroling authority
pursuant to HRS § 706-669. It appears that Thompson’s appeal was filed prior
to the Hawaiʻi paroling authority completing its calculation of Thompson’s
minimum sentence and the calculation is therefore not in the record.
Although the record does not reflect the Hawaiʻi paroling authority’s
calculations for the minimum sentence Thompson must serve under his 2017
resentence, Thompson is correct that the credit he accrued on each count of

                                                             (continued . . .)


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served seventeen years of the twenty-year statutory maximum in

counts 1-8, 14, and 19.

            Accordingly, at the time of resentencing, Thompson had

fully served the statutory maximum sentences for all but his

class A felony sentences, for which he had three years remaining

on the total indeterminate term of each sentence.            See HRS §

706-671(2).    Thus, in his 2017 resentence, Thompson had three

years of incarceration remaining on counts 1-4 and 6-8 (ordered

to run concurrently); three years’ incarceration remaining on

count 14 to be served consecutively; and three years remaining

on count 19 to be served consecutively.          In total, after

correctly calculating the credit for time served under HRS §

706-671(2), Thompson had an aggregate maximum remaining sentence

of approximately nine years at the time of resentencing on April

28, 2017.     Because the sentences under counts 1-4 and 6-8 run

consecutive to count 14 and consecutive to count 19, the

approximately three years that have elapsed since Thompson’s

resentencing are counted only once against the aggregate of his

consecutive sentences.      As such, Thompson has approximately six




(continued . . .)

his 2001 concurrent sentences must be applied to the minimum term set by the
Hawai‘i paroling authority for each count.




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years remaining on his aggregate maximum term of imprisonment on

the date this disposition was issued.

            Inasmuch as the ICA’s September 26, 2018 memorandum

opinion implicitly affirmed the circuit court’s calculation of

Thompson’s credit for time served under his 2001 sentence

without accurately applying HRS § 706-671(2), we vacate the

ICA’s judgment on appeal and remand the case to the circuit

court for an accurate calculation of his credit for time served.

            DATED:   Honolulu, Hawaiʻi, June 1, 2020.

Jon N. Ikenaga                      /s/ Paula A. Nakayama
for petitioner/defendant-
appellant                           /s/ Sabrina S. McKenna

Loren J. Thomas                     /s/ Richard W. Pollack
for respondent/plaintiff-
appellee                            /s/ Michael D. Wilson

                                    /s/ R. Mark Browning




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