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                                                               Electronically Filed
                                                               Supreme Court
                                                               SCWC-XX-XXXXXXX
                                                               06-JUN-2019
                                                               08:02 AM




            IN THE SUPREME COURT OF THE STATE OF HAWAIʻI

                            ---oOo---
________________________________________________________________

          STATE OF HAWAIʻI, Respondent/Plaintiff-Appellee,

                                     vs.

     RONALD MELVIN BARNES, Petitioner/Defendant-Appellant.
________________________________________________________________

                             SCWC-XX-XXXXXXX

          CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
              (CAAP-XX-XXXXXXX; FC-CR. NO. 12-1-0057)

                               JUNE 6, 2019

            McKENNA, POLLACK, AND WILSON, JJ., WITH
  RECKTENWALD, C.J., DISSENTING, WITH WHOM NAKAYAMA, J., JOINS

                 OPINION OF THE COURT BY McKENNA, J.

                             I.   Introduction

    On March 31, 2015, Petitioner/Defendant-Appellant, Ronald

Melvin Barnes (“Barnes”), was convicted by a jury in the Circuit
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Court of the First Circuit (“circuit court”)1 of four counts of

sexual assault in the first degree as to a minor and one count

of sexual assault in the first degree as to another minor.

After a hearing, the circuit court granted the State’s motion

and sentenced Barnes to a term of twenty years for each count,

with terms for four of the counts as to one minor to be served

concurrently, and the term for the remaining count as to the

other minor to be served consecutively to the foregoing terms.

      Barnes asserts on certiorari that the circuit court abused

its discretion in sentencing him to consecutive terms of

imprisonment and that the ICA gravely erred in affirming the

circuit court’s judgment.

      Although the points raised by Barnes on appeal as bases for

challenging the consecutive terms lack merit, based on State v.

Barrios, 139 Hawaiʻi 321, 389 P.3d 916 (2016), and State v.

Kamanaʻo, 103 Hawaiʻi 315, 82 P.3d 401 (2003), we hold the

circuit court plainly erred by considering Barnes’s refusal to

admit guilt in imposing his sentence.           Accordingly, we vacate

the ICA’s October 2, 2017 Judgment on Appeal and the portion of

the circuit court’s October 26, 2015 Judgment of Conviction and

Sentence (“judgment”) sentencing Barnes, and remand to the

circuit court for resentencing.

1
      The Honorable Karen S. S. Ahn presided.



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                                II.   Background

A.     Circuit Court Hearing on the State’s Motion for Consecutive
       Sentencing

       Following Barnes’s trial, on May 28, 2015, the State moved

for consecutive term sentencing.             A presentence investigation

and report (commonly referred to as a “PSI”)2 was filed on June

22, 2015, in which the probation officer stated:

                    On June 3, 2015, an attempt was made to complete the
              presentence investigation (PSI) when this probation officer
              (PO) met the defendant at Oahu Community Correctional
              Center (OCCC) where the defendant was detained. The
              defendant reported that he received the PSI questionnaire
              that was sent to him but related that he would not be
              participating in the PSI. He further stated that, if this
              PO wanted information on him, PO should contact the state
              of Washington as he said he would not be signing any
              documents.


2
      HRS § 706-601 (2014) required that a pre-sentence diagnosis and report
be prepared regarding Barnes. HRS § 706-602 (2014) then provides in relevant
part as follows:

              Pre-sentence diagnosis, notice to victims, and report.
              (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
              [regarding disposal of firearms]; and
              (e) Any other matters that the reporting person or agency
              deems relevant or the court directs to be included.
              . . . .


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                 The defendant was given the opportunity to make a
           verbal statement/comment about the present matters, in
           which he replied that he is planning to file an appeal in
           the instant matters, as well as an appeal in Washington for
           his case there. According to the defendant, he was
           convicted of sexual assault in Washington and started
           serving his term of incarceration there from July 18, 2008
           to October 10, 2013. He reported that he was brought to
           Hawaii/OCCC on January 30, 2013, and was allowed to serve
           the remainder of his jail sentence in Hawaii. He said that
           he is now on probation status on his Washington case, which
           he believes expires in 2016 or 2017.

                 Furthermore, the defendant reported that he is
           “innocent” of all the sexual assault charges against him.
           He said that one of the victims had a sexually transmitted
           disease that the defendant never had, so he explained that
           it meant that she got the disease from someone else. He
           also indicated that the victim(s) may have been sexually
           assaulted, but that he was not the perpetrator, and said
           that it was someone else that was either dating the
           victim’s mother or living with them at that time. Due to
           the defendant’s unwillingness to participate in the
           presentence investigation interview, only the following
           information is being provided to the court . . . .

(Emphases added).

    The sentencing hearing was held on October 26, 2015.                 At

the hearing, the State explained that four of the five counts of

sexual assault in the first degree related to one child

complainant, and the remaining count of sexual assault in the

first degree related to a second child complainant.            According

to the State, consecutive term sentencing was appropriate and

reasonable, and reflected the seriousness of the crimes

committed against the two minors.         The State emphasized that

Barnes had victimized two different children, and therefore

should not be sentenced in the same manner as if he had only

victimized one.




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      In response, Barnes’s counsel asserted that there was no

justification for a consecutive sentence under State v. Hussein,

122 Hawaiʻi 495, 229 P.3d 313 (2010), as nothing in Barnes’s

personal history suggested that he was a sexual predator.

Defense counsel also noted that based on his advice, Barnes

would not be making a statement as he intended to appeal the

case.     The circuit court then conducted a colloquy with Barnes

before granting the State’s motion:

             [DEFENSE COUNSEL]: . . . So based upon those factors,
             judge, we’re asking that -- we’re submitting that there is
             no justification for consecutive over concurrent sentencing
             in this particular case.
                   And my client will not be making a statement on the
             advice of counsel. He intends to appeal the case.
             . . . .

             THE COURT: Okay, Mr. Barnes, I just need it from your
             mouth. You have every right to say what you wish before
             sentencing. Do you wish to say anything?

             THE DEFENDANT:   Not in this court, Your Honor.

             THE COURT: All right. Okay, the court takes judicial
             notice of the files and records in this case and of trial,
                                                                     3
             and I considered the factors under HRS Section 706-606,[ ]


3
             Factors to be considered in imposing a sentence. 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
                                                               (. . . continued)

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            all of which a sentencing court must consider with respect
            to the motion for consecutive sentencing. These factors
            include the nature and circumstances of the offense, which
            are most serious as they involved the sexual molestation of
            two young children as to whom defendant was in a position
            of trust as the husband of the children’s natural mother.
            The conduct involved a variety of acts to the two children,
            both of whom were under the age of 14 years. The victim
            impact statements and some of what the court observed
            during trial showed that these two children apparently
            suffered harm from the sexual assaults, and that harm
            apparently remains with the children notwithstanding
            counseling.

                  In addition, characteristics of the defendant are
            another factor that the court must consider. The
            defendant’s conduct with regard to these sexual acts
            spanned a substantial period of time and involved acts of
            deception both as to the children and to adults. In
            addition, while the defendant certainly has a right to
            appeal all matters that are appealable, he has been
            uncooperative in the preparation of any aspect of the
            presentence report and does not appear to have expressed
            any sadness that the two children suffered harm of any
            kind.

                  In addition, the sentence is required to reflect the
            seriousness of these offenses to not one but two small
            children and to promote respect for the laws of our state
            and to provide just punishment under the totality of the
            relevant circumstances.

                  Based upon the factors which the court has just
            discussed under 706-606, the sentence is necessary to
            provide adequate deterrence to criminal conduct and to
            protect the public from further crimes of the defendant,
            especially against children. The motion for consecutive
            sentencing is granted to the extent that defendant is
            sentenced to 20 years of imprisonment in Counts 1, 3, 5, 6,
            and [13], and he will serve Count [13] consecutively to the
            other four counts. The first four, 1, 3, 5, and 6, shall be
            served concurrently with one another, and Count [13] will
            be served consecutively to Counts 1, 3, 5, and 6.

(Emphasis added).


(. . . continued)
                  (4) The need to avoid unwarranted sentence
            disparities among defendants with similar records who have
            been found guilty of similar conduct.

HRS § 706-606 (2014).




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       Judgment was entered on October 26, 2015 reflecting the

consecutive terms of imprisonment.

B.     Appeal to the ICA

       Barnes timely appealed his convictions to the ICA on a

single point of error: “[w]hether the trial court abused its

discretion in sentencing [Barnes] to terms of imprisonment in

Counts 1, 3, 5 and 6 for the offense of SEXUAL ASSAULT IN THE

FIRST DEGREE to run consecutively to the term of imprisonment in

Count 13 for the offense of SEXUAL ASSAULT IN THE FIRST DEGREE,

twenty years as to each count.”

       The ICA rejected Barnes’s challenge and affirmed the

circuit court’s October 26, 2015 Judgment.             See State v. Barnes,

No. CAAP-XX-XXXXXXX, at 5 (App. Apr. 13, 2017) (SDO).                The ICA

noted that a sentencing judge has broad discretion to order

multiple terms of imprisonment to run concurrently or

consecutively, and that although a sentencing judge must

consider the factors set forth in HRS § 706-606 and state on the

record at the time of sentencing its reasons for imposing a

consecutive sentence, “[a]bsent clear evidence to the contrary,

it is presumed that a sentencing court will have considered all

factors before imposing concurrent or consecutive terms of

imprisonment under HRS § 706-606.”            Barnes, SDO at 3 (quoting

State v. Kong, 131 Hawaii 94, 102, 315 P.3d 720, 728 (2013)).



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       The ICA concluded the circuit court had appropriately

considered the HRS § 706-606 factors, including the nature and

circumstances of the offenses, the need to provide just

punishment for the crimes committed, the need for the sentence

to promote respect for the law, and to afford deterrence to

criminal conduct and to protect the public from further crimes.

Barnes, SDO at 4-5.      The ICA also noted the circuit court’s

statement that Barnes “‘d[id] not appear to have expressed any

sadness that the two children suffered harm of any kind[,]’” and

that Barnes had been uncooperative in the preparation of the

PSI.    Barnes, SDO at 4.

       The ICA concluded that although Barnes raised the existence

of some mitigating factors, such as cooperation with the police

and lack of a prior criminal history, “the presence of some

mitigating factors does not compel this court to conclude that

the Circuit Court abused its discretion, especially in light of

the Circuit Court’s clear rationale for imposing a consecutive

sentence.”    Barnes, SDO at 5.      The ICA added that it rejected

any other “factors” raised by Barnes as they “in essence,

suggest that he did not sexually assault the minor victims,”

which is inconsistent with the jury’s verdict and did not bear

on the exercise of the circuit court’s discretion in sentencing.

Id.




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C.     Certiorari Proceedings

       On certiorari, Barnes “seeks a remand for resentencing” on

the grounds that the circuit court abused its discretion when it

imposed a consecutive term of imprisonment:

              QUESTION[] PRESENTED

                     Whether this Honorable Court, in the exercise of its
              certiorari jurisdiction, ought to vacate the Summary
              Disposition Order (SDO) . . . of the [ICA], which upheld:
              the October 26, 2015 Judgment of Conviction and Sentence
              (Judgment) filed in the Family Court of the First Circuit
              Court.

                     Barnes seeks a remand for resentencing. Petitioner
              maintained on appeal in the ICA that the Family Court of
              the First Circuit erred by sentencing Petitioner to terms
              of imprisonment in Counts 1, 3, 5 and 6 for the offense of
              SEXUAL ASSAULT IN THE FIRST DEGREE to run consecutively to
              the term of imprisonment in Count 13 for the offense of
              SEXUAL ASSAULT IN THE FIRST DEGREE, twenty years as to each
              count.

       Barnes argues the circuit court abused its discretion

because Barnes had “no unrelated prior criminal cases and no

prior opportunities for rehabilitation,” which contrasts with

the defendants in various other cases who were sentenced to

consecutive sentences.         Further, Barnes argues the record shows:

(1) there was “no reporting by the complaining witnesses until

years later”; (2) there was evidence at trial that “the police

detectives coached the complaining witnesses during interviews”;

and (3) interrogations of Barnes by police detectives went

unrecorded.       The State did not file a response to Barnes’s

application for certiorari.




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                          III.    Standards of Review

A.     Consecutive Sentencing

       In general, the applicable standard of review in sentencing

matters is whether the court committed a plain and manifest

abuse of discretion in its decision.”            Kamanaʻo, 118 Hawaiʻi at

221, 188 P.3d at 735 (citations omitted).

       A court must, however, state its reasons as to why a

consecutive sentence rather than a concurrent sentence was

required.       See Hussein, 122 Hawaiʻi at 509, 229 P.3d at 327.

B.     Plain Error

       When necessary to serve the ends of justice, this court

will consider issues that have not been preserved below or

raised on appeal.        See Hawaiʻi Rules of Penal Procedure (“HRPP”)

Rule 52(b) (2016) (allowing plain error to be noticed although

not brought to attention of trial court); Hawaiʻi Rules of

Appellate Procedure (“HRAP”) Rule 28(b)(4) (2010) (permitting

point of error not presented on appeal to be noticed as plain

error); HRAP Rule 40.1(d)(1) (2015) (allowing question not

raised to be noticed as plain error).            It is “firmly

established” that the relevant inquiry when evaluating whether a

trial court’s plain error may be noticed is whether the error

affected substantial rights. See HRPP Rule 52(b) (“Plain error.

Plain errors or defects affecting substantial rights may be

noticed although they were not brought to the attention of the

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court.”).       Thus, a reviewing court has discretion to correct

plain error when the error is “not harmless beyond a reasonable

doubt.”      HRPP Rule 52(a) (2016) (“Harmless error.           Any error,

defect, irregularity or variance which does not affect

substantial rights shall be disregarded.”); see also State v. Uʻi,

142 Hawaiʻi 287, 297, 418 P.3d 628, 638 (2018) (citations and

footnotes omitted).

                                IV.   Discussion

A.     The Circuit Court Did Not Commit a Clear and Manifest Abuse
       of Discretion by Imposing a Consecutive Sentence

       On certiorari, Barnes essentially raises the same arguments

as he did before the ICA, arguing that the circuit court abused

its discretion by imposing a consecutive sentence.               A trial

court’s sentence is reviewed for a plain and manifest abuse of

discretion, but when imposing a consecutive sentence, a court

must state its reasons as to why a consecutive rather than a

concurrent sentence was required.            See Hussein, 122 Hawaiʻi at

509, 229 P.3d at 327.         This requirement serves the purposes of

(1) identifying the facts or circumstances within the range of

statutory factors the court considered important in imposing a

consecutive sentence, which provides a meaningful rationale to

the defendant, the victim, and the public, and (2) confirming

for the defendant, the victim, the public, and the appellate

court, that the decision to impose a consecutive sentence was


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deliberate, rational, and fair.        See Hussein, 122 Hawaiʻi at 509-

10, 229 P.3d at 327-28.

     The ICA did not err in concluding that the circuit court

provided sufficient reasoning for its decision to impose a

consecutive sentence.      Although the circuit court did not

specifically address the statutory factor that Barnes had “no

unrelated prior criminal cases and no prior opportunities for

rehabilitation,” a “sentencing court is not required to

articulate and explain its conclusions with respect to every

factor listed in HRS § 706-606. . . .         [T]he sentencing court is

required to articulate its reasoning only with respect to those

factors it relies on in imposing consecutive sentences.”             Kong,

131 Hawaii at 102, 315 P.3d at 728 (citations omitted).             The

circuit court’s failure to specifically address mitigating

factors argued by the defense when it imposed a consecutive

sentence did not amount to a clear and manifest abuse of

discretion under the circumstances of this case.

     Additionally, the ICA did not err by concluding that the

“mitigating” facts Barnes asserted in his ICA brief — such as

that police interrogations of Barnes went unrecorded, or that

the children did not come forth with their allegations

immediately — do not mean that the sentencing court abused its

discretion.    Rather, as stated by the ICA, Barnes appears to



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suggest that the jury erred in its verdict, but that issue is

not the subject of this appeal.

B.     The Circuit Court Plainly Erred When It Considered Barnes’s
       Refusal to Admit Guilt in Imposing His Sentence

       Pursuant to the Fifth Amendment to the United States

Constitution and Article I, section 10 of the Constitution of

the State of Hawaiʻi, a criminal defendant has the right to

remain silent, which is a privilege against self-incrimination;

this right “provides us with some of our most treasured

protections — preservation of our autonomy, privacy, and dignity

against the threat of state [coercion].”             Kamanaʻo, 103 Hawaiʻi

at 320, 82 P.3d at 406 (citation omitted).             “Time has not shown

that protection from the evils against which this safeguard was

directed is needless or unwarranted.”            Ullmann v. United States,

350 U.S. 422, 426 (1956).

       In sentencing Barnes, the circuit court stated the

following: “In addition, while the defendant certainly has a

right to appeal all matters that are appealable, he has been

uncooperative in the preparation of any aspect of the

presentence report and does not appear to have expressed any

sadness that the two children suffered harm of any kind.”

Accordingly, we address this aspect of the circuit court’s

reasoning, which was quoted by the ICA, based on a plain error

review.      See Barnes, SDO at 4.


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     Where a defendant’s substantial rights have been affected,

plain error review is appropriate.         See State v. Miller, 122

Hawaiʻi 92, 100, 223 P.3d 157, 165 (2010); see also HRPP Rule

52(b) (“Plain errors or defects affecting substantial rights may

be noticed although they were not brought to the attention of

the court.”).

     The “distinction between imposing a harsher sentence upon a

defendant based on his or her lack of remorse, on the one hand,

and punishing a defendant for his or her refusal to admit

guilt,” is “subtle, yet meaningful.”         Kamanaʻo, 103 Hawaiʻi at

321–22, 82 P.3d at 407–08 (citation omitted).           Although a

sentencing court “has broad discretion in imposing a sentence,

and can consider the candor, conduct, remorse[,] and background

of the defendant,” State v. Mikasa, 111 Hawaiʻi 1, 8, 135 P.3d

1044, 1051 (2006) (quoting State v. Nunes, 72 Haw. 521, 526, 824

P.2d 837, 840 (1992)), it “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.”             Barrios,

139 Hawaiʻi at 338, 389 P.3d at 933 (quoting Kamanaʻo, 103 Hawaiʻi

at 320, 82 P.3d at 406).       Based on the circuit court’s quoted

language above, the circuit court improperly based its sentence,

in part, on Barnes’s refusal to admit guilt.

     In Kamanaʻo, this court adopted the Michigan Supreme Court’s

three-factor analysis set out in People v. Wesley, 428 Mich.

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708, 411 N.W.2d 159 (1987), to ascertain whether a sentencing

court erroneously relied on a defendant’s refusal to admit guilt

in imposing a sentence.        See Kamanaʻo, 103 Hawaiʻi at 323, 82

P.3d at 409 (citation omitted).          We quoted the following passage

from Wesley regarding the three-factor analysis:

             (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. . . . [I]f there is an indication
             of the three factors, then the sentence was likely to have
             been improperly influenced by the defendant’s persistence
                               4
             in his innocence.[ ] If, however, the record shows that the
             court did no more than address the factor of remorsefulness
             as it bore upon defendant’s rehabilitation, then the
             court’s reference to a defendant’s persistent claim of
             innocence will not amount to error requiring reversal.

Kamanaʻo, 103 Hawaiʻi at 323, 82 P.3d at 409 (citation omitted)

(emphasis added); see also Barrios, 139 Hawaiʻi at 338, 389 P.3d

at 933 (quoting id.).        As noted above, the analysis we adopted

includes the manner in which the three factors are examined: we

stated “if there is an indication” of the three factors, “then

the sentence was likely to have been improperly influenced by

the defendant’s persistence in his innocence.”             Kamanaʻo, 103

Hawaiʻi at 323, 82 P.3d at 409 (citation omitted) (emphasis



4
      The Dissent erroneously asserts that this opinion “reformulates” the
Kamanaʻo analysis into a rigid “if-then” test, which is satisfied if there is
an ‘indication’ of the factors.” Dissent, Part I. However, we clearly
stated in Kamanaʻo that “if there is an indication of the three factors, then
the sentence was likely to have been improperly influenced by the defendant’s
persistence of his innocence.” Kamanaʻo, 103 Hawaiʻi at 323, 82 P.3d at 409
(citation omitted) (emphasis added).



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added).5     Because of the “subtle” difference between permissible

and impermissible considerations at sentencing, the test is

structured to safeguard the defendant’s constitutional right

against self-incrimination.

      In this case, there is clearly an indication of the first

factor, the defendant’s maintenance of innocence after

conviction, as Barnes maintained his innocence after conviction.

      There is also an indication of the second factor, the

judge’s attempt to get the defendant to admit guilt, based on

this court’s modified interpretation of that factor to include

when a sentencing court confirms the defendant is maintaining a

claim of innocence.        See Kamanaʻo, 103 Hawaiʻi at 323-24, 82 P.3d

at 409-10 (“Regarding the second factor, although the circuit

court did not coerce Kamanaʻo into admitting culpability for his

convictions, . . . in ruling on the prosecution’s motion, the

circuit court did confirm with Kamanaʻo his persistence in

maintaining his claim of innocence . . . .” (emphasis added));

see also Barrios, 139 Hawaiʻi at 338, 389 P.3d at 933.              This

confirmation may come from the PSI, statements of defense

5
      We also cited to this language in State v. Nakamitsu, 140 Hawaiʻi 157,
166, 398 P.3d 746, 755 (2017) (citing Kamanaʻo, 103 Hawaiʻi at 323, 82 P.3d at
409).
      The Dissent asserts that in Kamanaʻo, we “analyzed each of the factors
separately and then weighed them as a whole[.]” Dissent, Part III.A.1. We
disagree. We analyzed if there was an indication of the three factors, then
stated that the third factor “weigh[ed] heavily in favor of vacating
Kamanao’s sentence.” Kamanaʻo, 103 Hawaiʻi at 323-24, 82 P.3d at 409-10.



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counsel, or the defendant.         In Barnes’s case, confirmations came

from all three methods.

      Before the sentencing hearing, as noted above, a judiciary

probation officer had prepared a PSI, which is an integral

component of almost all sentencing decisions in our circuit

courts.6     PSIs must be prepared and be considered by the

sentencing judge for almost all felony convictions before

sentencing can occur.        See HRS § 706-601(1)(a) (2014) (“Except

as provided in subsections (3) and (4), the court shall order a

pre-sentence correctional diagnosis of the defendant and accord

due consideration to a written report of the diagnosis before

imposing sentence where . . . [t]he defendant has been convicted

of a felony[.]”).

      Barnes’s PSI reflected that Barnes had told the probation

officer “he [was] planning to file an appeal” in the instant

matters, and that he was “innocent of all the sexual assault

charges against him.”        PSIs must be provided to the parties, and

the parties must be given an opportunity to request corrections

before sentencing can occur.         See HRS § 706-604(2) (2014) (“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 . . . and afford fair opportunity, if the

defendant or the prosecuting attorney so requests, to controvert
6
      See supra n.2.


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or supplement them.”).      In addition, at the beginning of

Barnes’s sentencing hearing, the circuit court confirmed that

neither the State nor the defense was requesting any changes to

the PSI.   Thus, defense counsel also confirmed to the circuit

court that Barnes was continuing to maintain his innocence, as

he had to the probation officer preparing the PSI.            Furthermore,

after defense counsel had stated at the sentencing hearing that

Barnes “w[ould] not be making a statement on the advice of

counsel [as] [h]e intends to appeal the case,” the circuit court

asked Barnes for confirmation, stating, “Okay, Mr. Barnes, I

just need it from your mouth.        You have every right to say what

you wish before sentencing.       Do you wish to say anything?”

Barnes responded in the negative, thereby reconfirming his

intent to maintain his innocence.

    As to the third factor, “the appearance that[,] had the

defendant affirmatively admitted guilt, his sentence would not

have been so severe,” the circuit court stated before imposing

the consecutive sentence that Barnes was “uncooperative in the

preparation of any aspect of the presentence report” and “d[id]

not appear to have expressed any sadness that the two children

suffered harm of any kind.”       The record is therefore clear that

the circuit court considered Barnes’s failure to “express[] any

sadness that the two children suffered harm of any kind” when

sentencing him, even though Barnes could not have “expressed”

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such specific “sadness” without abrogating his right to remain

silent at trial and at the sentencing hearing.7             Thus, Barnes

cannot be penalized for failing to “express” himself or

communicate, even if, as the Dissent suggests, it is possible to

“express[] sadness . . . without admitting . . . guilt.”8

Dissent, Part III.B.2.

      As stated above, Barnes’s “uncooperative” nature with

respect to the PSI was based on his continued professed

innocence.      In other words, Barnes’s maintenance of his

innocence is inextricably linked to the manner in which he

responded to the presentence investigation and his silence (and

hence failure to “express sadness”) at the sentencing hearing.

Thus, when discussing the HRS § 706-606 factors, the sentencing

7
      Further illustrating this point is the Dissent’s strained distinction
between Barnes’s failure to “express[] sadness that the two children suffered
harm of any kind” — as admonished by the circuit court — and a failure to
show remorse. According to the Dissent, the sentencing judge’s comment that
Barnes did not “express sadness” does not amount to commenting on a lack of
remorse because “one can convey ‘sadness’ . . . without any admission of
wrongdoing.” Dissent, Part III.B.2. Even if this were possible, and even if
this were the sentencing court’s aim, the Kamanaʻo test requires only an
“appearance” of the third factor; here, there nevertheless is an appearance
that, had Barnes “affirmatively admitted guilt, his sentence would not have
been so severe.”
8
      Further, the Dissent conflates situations in which a “defendant [has]
admit[ted] certain facts which, while insufficient to convict, indicate
wrongful action” and “lack of remorse regarding the admitted facts,” with a
negative inference drawn from a defendant’s silence by a sentencing judge.
Wesley, 411 N.W.2d at 167 (Brickley, J., concurring) (footnote omitted)
(emphasis added). In the former situation, “[i]t would seem appropriate to
consider a defendant’s callousness or indifference to the plight of the
victim, even if he continues to maintain his innocence.” Id. However, it is
not appropriate in the latter situation, when a defendant’s indifference to
the “plight of the victim” actually relates to the defendant’s right to
remain silent.



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court faulted Barnes’s persistence in his innocence.

Accordingly, although the primary justification raised by the

State’s Motion was that there were two, not one, child victims

in this matter, and the circuit court repeatedly emphasized that

two children, not one, were harmed based on the circuit court’s

foregoing comments, there is clearly an “appearance” that had

the defendant affirmatively admitted guilt, his sentence would

not have been so severe,9 and the third factor of the Kamanaʻo

test is satisfied.

          Although a sentencing court’s reference to a defendant’s

claim of innocence will not amount to error requiring vacatur

and resentencing “[i]f . . . the record shows that the court did

no more than address the factor of remorsefulness as it bore

upon defendant’s rehabilitation,” that is not the case here as

the record does not demonstrate that Barnes’s lack of

cooperation and remorse or empathy were considered by the


9
      The Dissent suggests that the circuit court’s reference to Barnes’s
lack of cooperation in the preparation of the presentence report does not
amount to commenting on Barnes’s refusal to admit guilt. See Dissent, Part
III.B.3. This suggestion does not adequately consider, however, the circuit
court’s preface to its statement: “In addition, while the defendant certainly
has a right to appeal all matters that are appealable, he has been
uncooperative in the preparation of any aspect of the presentence report . .
. .” (Emphasis added). The circuit court thus juxtaposed Barnes’s lack of
cooperation with his right to appeal his conviction, i.e., his claim of
innocence. Accordingly, when the sentencing judge’s full comments regarding
the HRS § 706-606 factors are considered, as urged by the Dissent, there is
clearly “an appearance” of the third factor. The Dissent concludes, “there
is no appearance that, had Barnes affirmatively admitted guilt, his sentence
would not have been so severe.” Dissent, Part III.B.3. This is not the
applicable test, and even if it were, this is plainly not the case.



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circuit court only as it pertained to his rehabilitation.

Kamanaʻo, 103 Hawaiʻi at 323, 82 P.3d at 409.

       The Kamanaʻo test is not one where the three factors are

first individually weighed before being balanced against the

sentencing court’s other stated considerations, as described by

the Dissent.       See Dissent, Part III.A.1.        Rather, the test is an

“if-then” test that follows from the basic tenet that “a

sentencing court cannot, in whole or in part, base its sentence

on a defendant’s refusal to admit guilt.”             Wesley, 411 N.W.2d at

161 (citing People v. Yennior, 282 N.W.2d 920 (Mich. 1977))

(emphasis added).        Specifically, this court held that “if there

is an indication of the three factors, then the sentence was

likely to have been improperly influenced by the defendant’s

persistence in his innocence.”           Kamanaʻo, 103 Hawaiʻi at 323, 89

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

added).10      In structuring the Kamanaʻo test in this manner, this

court recognized the need for safeguards for “some of our most

treasured protections – preservation of our autonomy, privacy,

and dignity against the threat of state action.”               Kamanaʻo, 103

Hawaiʻi at 320, 82 P.3d at 406.

10
      Indeed, that the Dissent interprets the sentencing court’s statement
that Barnes was “uncooperative in the preparation of any aspect of the
presentence report” differently from the Majority illustrates why an
“indication” of the three factors is sufficient to show that “the sentence
was likely to have been improperly influenced by the defendant’s persistence
in his innocence.” See Dissent, Part III.B.3.



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     In the light that all three factors are satisfied, there is

clearly an “indication” that Barnes’s “sentence was likely to

have been improperly influenced” by his persistence in his

innocence.    Kamanaʻo, 103 Hawaiʻi at 323, 82 P. 3d at 409

(citation omitted).      For these reasons, Barnes’s sentence must

be vacated so that he may be resentenced.          See Barrios, 139

Hawaiʻi at 339, 389 P.3d at 934 (remanding to the circuit court

for resentencing) (citation omitted).

                               V. Conclusion

     For the foregoing reasons, we vacate the ICA’s October 2,

2017 Judgment on Appeal.       We also vacate the portion of the

circuit court’s October 26, 2015 Judgment of Conviction and

Sentence sentencing Barnes, and remand to the circuit court for

resentencing, consistent with this opinion.

Shawn A. Luiz,                            /s/   Sabrina S. McKenna
for petitioner
                                          /s/   Richard W. Pollack
Loren J. Thomas, DPA,
for respondent                            /s/   Michael D. Wilson




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