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                                                              Electronically Filed
                                                              Supreme Court
                                                              SCWC-12-0000654
                                                              12-AUG-2014
                                                              09:07 AM




                            SCWC-12-0000654

            IN THE SUPREME COURT OF THE STATE OF HAWAI#I


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

                                    vs.

                           YOSHIRO SANNEY,
                  Petitioner/Defendant-Appellant.


           CERITORARI TO THE INTERMEDIATE COURT OF APPEALS
                 (CAAP-12-0000654; CR. NO. 10-1-1570)

                       MEMORANDUM OPINION
  (By: Recktenwald, C.J., Nakayama, McKenna, and Pollack, JJ.,
    and Circuit Judge Nacino, assigned by reason of vacancy)

            This case concerns the Circuit Court of the First

Circuit’s (circuit court) summary denial of Petitioner/Defendant-

Appellant Yoshiro Sanney’s (Sanney) motion to reconsider sentence

filed pursuant to the Hawai#i Rules of Penal Procedure (HRPP)

Rule 35.    We hold that the circuit court erred in denying

Sanney’s motion without holding a hearing.
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                              I.   BACKGROUND

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

of sexual assault in the second degree in violation of HRS § 707-

731(1)(b) (Supp. 2010)1, for “knowingly subject[ing] to sexual

penetration, [Complaining Witness (CW)], who was mentally

incapacitated, or physically helpless, by placing his mouth on

her genitalia.”       Sanney was also indicted on one count of sexual

assault in the second degree in violation of HRS §§ 705-500

(1993)2 and 707-731(1)(b), for “intentionally engag[ing] in


        1
            HRS § 707-731(1)(b) provided then, as it does now, in pertinent
part:

            (1) A person commits the offense of sexual assault in the
            second degree if:

            . . . .

                  (b) The person knowingly subjects to sexual
                  penetration another person who is mentally
                  incapacitated or physically helpless . . . .
        2
            HRS § 705-500 provided then, as it does now:

            (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
                                                                (continued...)

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conduct which, under the circumstances as he believed them to be,

constituted a substantial step in a course of conduct intended to

culminate in his commission of the crime of [s]exual [a]ssault in

the [s]econd [d]egree against [CW].”

           Sanney initially pleaded not guilty.         On July 13, 2011,

Sanney appeared in the circuit court3 at a change of plea hearing

and entered a plea of no contest to the charges of sexual assault

in the second degree and attempted sexual assault in the second

degree.   Prior to the entry of the change of plea, Sanney’s

counsel indicated that the circuit court had given an inclination

of a sentence of probation with up to 18 months in jail.            The

circuit court stated that “an inclination is not a promise” and

clarified that its final sentencing determination would be based,

in part, on information provided in the forthcoming presentence

report (PSI).    The circuit court informed Sanney that he was

facing a maximum sentence of forty years.

           At the sentencing hearing on September 21, 2011, the

circuit court stated that it had “concern[s] about some of the

     2
      (...continued)
           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.

           (3) Conduct shall not be considered a substantial step under
           this section unless it is strongly corroborative of the
           defendant’s criminal intent.
     3
           The Honorable Karen S.S. Ahn presided.

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representations in that PSI which, to [it, were] different from

the representations that were made at the time of the change of

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

probation with an uncertain jail term.”         At the subsequent

sentencing hearing on September 26, 2011, the circuit court

stated that in light of the new information in the PSI, it was

sentencing Sanney to ten years of prison on both counts, with the

terms to run concurrently.

          On December 22, 2011, Sanney filed a motion to

reconsider sentence pursuant to Hawai#i Rules of Penal Procedure

(HRPP) Rule 35.    The grounds for the motion were stated as:
          a.    The Defendant was sentenced on September 26, 2011 to
          concurrent open ten (10) year terms of incarceration.
          Exhibit “A”.

          b.    Defendant has been incarcerated since September 15,
          2010 and is now being held at the Halawa Correctional
          Facility.

          c.    Since Defendant has been sentenced to prison, he has
          had a lot of time to reflect about the incidents that
          occurred in this case.

          d.    Defendant would like another opportunity to address
          the Court regarding his sentence in this case and is
          requesting that the Court reconsider the sentence imposed on
          September 26, 2011 and sentence him to probation.

          On January 11, 2012, Sanney’s attorney filed a motion

to withdraw as counsel and have substitute counsel appointed; the

motion alleged “a break-down in the attorney-client relationship

between [Sanney] and his defense counsel.”

          The circuit court held a hearing on both motions on


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January 23, 2012.    After hearing from Sanney and his defense

counsel, the circuit court granted the motion for withdrawal.

The circuit court then allowed Sanney to decide whether to

proceed with a hearing on the motion to reconsider sentence,

represented by his former counsel, or whether to delay that

motion for six months and allow his new counsel to handle it.

Sanney ultimately decided to allow his new counsel to handle the

motion to reconsider sentence and the circuit court scheduled a

hearing for six months in the future, June 25, 2012.

          On January 24, 2012, Sanney was appointed new counsel.

On June 21, 2012, four days before the scheduled hearing, the

circuit court entered an order summarily denying Sanney’s motion

to reconsider sentence.     The circuit court stated that “following

a review of the Motion, attached Declaration of Counsel and the

records and files of the instant matter, the Court finds that the

Motion fails to state any new evidence that would warrant the

Court to reconsider its prior ruling.”

          Sanney appealed to the ICA arguing that the circuit

court abused its discretion in summarily denying his motion to

reconsider sentence without holding a hearing.          In a summary

disposition order, the ICA affirmed the circuit court’s denial of

Sanney’s motion for reconsideration of sentence.           State v.

Sanney, No. CAAP-12-0000654, 2013 WL 3776162 (App. July 8, 2013)


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(SDO).    The court reasoned:

            Sanney cites to no authority that would have entitled him to
            a hearing on his motion pursuant to Hawai#i Rules of Penal
            Procedure Rule 35(b), and we find none. Sanney argues he
            could have brought matters to the attention of the circuit
            court if he had a hearing but does not explain why these
            matters could not have been brought to the attention of the
            court in his motion for reconsideration or by written
            submittal in support of his motion.

Id. at *1.

            Sanney filed an application for writ of certiorari with

this court arguing that the ICA erred in concluding that the

circuit court did not abuse its discretion in summarily denying

the motion to reconsider sentence without holding a hearing.

                              II.   DISCUSSION

            On application for writ of certiorari to this court,

Sanney argues that the circuit court abused its discretion in

summarily denying his motion for reconsideration without a

hearing.4    “‘The authority of a trial court to select and

determine the severity of a penalty is normally undisturbed on

review in the absence of an apparent abuse of discretion or

unless applicable statutory or constitutional commands have not

been observed.’”     Barnett v. State, 91 Hawai#i 20, 26, 979 P.2d

1046, 1052 (1999) (quoting State v. Valera, 74 Haw. 424, 439, 848


      4
            In a tangentially related argument, Sanney claims that the circuit
court erred in denying his motion for reconsideration because there was no
“new information” in the PSI to justify the circuit court’s departure from its
initial inclination. It is unnecessary to address this argument as we resolve
the case on other grounds.

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P.2d 376, 383 (1993)).      “To constitute an abuse it must appear

that the court clearly exceeded the bounds of reason or

disregarded rules or principles of law or practice to the

substantial detriment of a party litigant.”           State v. Kahapea,

111 Hawai#i 267, 278, 141 P.3d 440, 451 (2006).

            Motions for a reduction or reconsideration of sentence

are governed by Hawai#i Rules of Penal Procedure (HRPP) Rule

35(b).   HRPP Rule 35(b) states:
            The court may reduce a sentence within 90 days after the
            sentence is imposed, or within 90 days after receipt by the
            court of a mandate issued upon affirmance of the judgment or
            dismissal of the appeal, or within 90 days after entry of
            any order or judgment of the Supreme Court of the United
            States denying review of, or having the effect of upholding
            the judgment of conviction. A motion to reduce a sentence
            that is made within the time prior shall empower the court
            to act on such motion even though the time period has
            expired. The filing of a notice of appeal shall not deprive
            the court of jurisdiction to entertain a timely motion to
            reduce a sentence.

HRPP Rule 35(b).     The plain language of HRPP Rule 35(b) does not

require the trial court to conduct a hearing before denying a

motion to reconsider or reduce a sentence.          This court has yet to

address the issue of whether the trial court must conduct a

hearing prior to denying a motion for reconsideration or

reduction of sentence.5

            Regardless of whether an HRPP Rule 35(b) motion always


      5
            Because HRPP Rule 35(b) contains no requirement of new evidence,
the better practice in motions for reconsideration or reduction of sentence
would be to hold a hearing to allow the defendant to explain the reasons a
reconsideration or reduction of sentence is warranted.

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requires a hearing, the issue at bar may be decided on the narrow

facts of this case.     Here, the court granted Sanney’s attorney’s

motion for withdrawal prior to hearing Sanney’s motion to

reconsider sentence.     Had Sanney’s attorney not withdrawn as

counsel, on January 23, 2012, Sanney would have had the

opportunity to present arguments in support of his motion to

reconsider sentence.     Instead, Sanney chose to allow his new

counsel to handle the motion, and the court postponed the hearing

to June 25, 2012 to allow new counsel to be appointed.            Then, on

June 21, 2012, the circuit court entered its order summarily

denying Sanney’s motion to reconsider sentence.

           The circuit court abused its discretion in summarily

denying the motion for reconsideration without a hearing after

allowing substitution of counsel and setting the matter for a

hearing.   The court provided no justification for rescheduling

the hearing, and then subsequently denying the motion before the

hearing was held.    The court’s only stated reason for denying

Sanney’s motion was Sanney’s failure to present new evidence.

However HRPP Rule 35 does not require defendants to present new

evidence when moving for a reconsideration of sentence.            Based on

the facts of this case, the circuit court erred when it denied

Sanney’s motion to reconsider sentence without conducting a

hearing and the ICA erred in affirming the circuit court’s


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summary denial.

                            IV.   CONCLUSION

          Due to the errors identified above, we vacate the ICA’s

August 21, 2013, judgment on appeal and remand this case to the

circuit court for further proceedings.

          DATED:    Honolulu, Hawai#i, August 12, 2014.

Shawn A. Luiz                            /s/ Mark E. Recktenwald
for petitioner
                                         /s/ Paula A. Nakayama
Donn Fudo
for respondent                           /s/ Sabrina S. McKenna

                                         /s/ Richard W. Pollack

                                         /s/ Edwin C. Nacino




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