State v. Arroyo

149 Hawai‘i 412

491 P.3d 1191 (Table)

STATE of Hawai‘i, Plaintiff-Appellee/Cross-Appellant

v.Rafael ARROYO, Defendant-Appellant/Cross-Appellee

NO. CAAP-19-0000122

Intermediate Court of Appeals of Hawai‘i.

July 30, 2021.

On the briefs:

John F. Parker, (Law Office of John F. Parker, LLC), for Defendant-Appellant/Cross-Appellee.

Renee Ishikawa Delizo, Deputy Prosecuting Attorney, for Plaintiff-Appellee/Cross-Appellant.

(By: Ginoza, Chief Judge, Leonard and Hiraoka, JJ.)

SUMMARY DISPOSITION ORDER

Defendant-Appellant/Cross-Appellee Rafael Arroyo (Arroyo ) appeals from the "Amended Judgment; Conviction and Sentence" (Amended Judgment of Conviction and Sentence ), entered on February 5, 2019, by the Circuit Court of the Second Circuit (Circuit Court ).¹ Plaintiff-Appellee/Cross-Appellant State of Hawai‘i (State ) cross-appeals from the Circuit Court's "Order Granting Defendant's Motion in Limine No. 3," entered on April 17, 2017.

On June 7, 2017, a jury found Arroyo guilty as charged of two counts of Burglary in the First Degree in violation of Hawaii Revised Statutes (HRS ) § 708-810(1)(c) (2014) (Burglary First )² for incidents on May 31, 2015 (Count One ), and on May 29, 2015 (Count Three ).

On July 26, 2018, the Circuit Court entered judgment sentencing Arroyo to ten years on Count One and seven years and six months on Count Three, to run consecutively. The Circuit Court subsequently vacated that sentence as illegal, then reinstated it to amend Count Three to ten years of imprisonment, to run consecutive to Count One.

On appeal, Arroyo contends that: (1) on February 5, 2019, the Circuit Court intentionally and knowingly entered an illegal sentence and abused its judicial authority; and (2) the Circuit Court abused its discretion in denying Motion in Limine (MIL ) No. 2 which sought to preclude admission of State's Exhibit 17, a socket wrench that was found in proximity to Arroyo when he was arrested in the complaining witness's (CW ) home, and in giving a limiting instruction related to the socket wrench.

In its cross-appeal, the State contends the Circuit Court erred as a matter of law in granting Arroyo's MIL No. 3 to exclude bad acts evidence.

Upon careful review of the record in this case, the issues raised and arguments made by the parties and the applicable authority, we resolve Arroyo's points on appeal and affirm. We need not reach the State's cross-appeal.

(1) Arroyo argues in his first point of error that the Circuit Court's intentional reinstatement of the July 26, 2018 illegal sentence is unlawful and the sentence is a nullity ab initio . In the "Court's Sua Sponte Findings of Fact; Conclusions of Law; Order," entered on January 18, 2019, the Circuit Court concluded that the July 26, 2018 Judgment of Conviction and Sentence did not conform to HRS § 706-660 (2014)³ and constituted an illegal sentence. The court vacated the illegal sentence and ordered resentencing pursuant to Hawai‘i Rules of Penal Procedure (HRPP ) Rule 35.⁴ On January 24, 2019, the State filed a motion to amend the (previously vacated) July 26, 2018 Judgment of Conviction and Sentence.

At resentencing, the Circuit Court indicated that it would construe the State's motion to amend judgment as a motion to reconsider the sua sponte vacatur of the July 26, 2018 illegal sentence, reinstate it, and grant the amendment to reflect the ten-year sentence on Count Three, as statutorily mandated. On February 5, 2019, the court entered the Amended Judgment of Conviction and Sentence.

Pursuant to HRS § 706-660(1)(a), the mandatory indeterminate sentence for Burglary First, which is a class B felony under HRS § 708-810(3), is ten years. Hence, the Circuit Court's imposition of seven years and six months on Count Three constituted an illegal sentence, which no party disputes. The court is duty-bound to correct an illegal sentence pursuant to HRPP Rule 35. See State v. Delmondo, 67 Haw. 531, 533, 696 P.2d 344, 345-46 (1985) (holding trial court had duty to impose mandatory minimum sentence upon defendant as a repeat offender when that fact was made evident to the court following initial sentencing); State v. Fry, 61 Haw. 226, 229, 602 P.2d 13, 16 (1979) ("Because both the original oral sentences and the amended sentences did not conform to the statute, they were illegal, and the court had the duty to correct them pursuant to Hawaii Rules of Penal Procedure, Rule 35.") (citations omitted).

"As Rule 35 provides for the correction of an illegal sentence ‘at any time,’ it is expressly not limited as to the time when a motion to correct may be brought. The court can always reform an illegal sentence. This is true even after the defendant has begun to serve the void sentence." Fry, 61 Haw. at 230-31, 602 P.2d at 16 (citation omitted). Moreover, both the United States Supreme Court and Hawai‘i Supreme Court have declared that there is no double jeopardy when an illegal sentence is altered, even though severity of the sentence is increased. Delmondo, 67 Haw. at 532, 696 P.2d at 345 (citing Bozza v. United States, 330 U.S. 160, 166 (1947) ; Fry, 61 Haw. at 230, 602 P.2d at 16 ).

Here, no party filed an HRPP Rule 35 motion but the Circuit Court sua sponte concluded as a matter of law that the July 26, 2018 sentence was illegal and vacated it. However, without an illegal sentence to correct, the Circuit Court subsequently reinstated the original July 26, 2018 judgment and then corrected the portion that was illegal, i.e. , the sentence of seven-and-a-half-years on Count Three. This was not an abuse of discretion and there is no reason to render the entire illegal sentence a nullity ab initio . See Bozza, 330 U.S. at 166–67 (rejecting the "doctrine that a prisoner, whose guilt is established by a regular verdict, is to escape punishment altogether because the court committed an error in passing the sentence." (citations omitted)).

The Circuit Court did not err or abuse its authority, but rather fulfilled a duty to correct the July 26, 2018 illegal sentence. Therefore, we do not disturb Arroyo's sentence as corrected by the Circuit Court.

(2) Arroyo asserts in his second point of error that a reasonable trier of fact could not possibly infer proof beyond a reasonable doubt of an intent to commit a crime "against a person" from the mere presence of the socket wrench within Arroyo's proximity and, without some other circumstantial evidence of Arroyo's intent, the socket wrench has insufficient probative value to establish his state of mind.

In MIL No. 2, Arroyo sought to exclude evidence of a socket wrench, which was found in proximity to Arroyo upon his arrest on May 31, 2015, when he was found in the CW's home and in her bed. Arroyo argued the socket wrench is irrelevant to the issue of his intent to commit burglary, and that even if it were relevant, it must be excluded because its probative value is substantially outweighed by the danger of unfair prejudice. The State argued that admission of the socket wrench would show that Arroyo was armed when he entered the CW's home, permitting an inference that Arroyo intended to use the weapon against the CW, and thus entered the CW's home with intent to commit a crime therein against her. The Circuit Court denied MIL No. 2, but prohibited any reference to and receipt of the socket wrench into evidence before a foundation was laid.

Prior to the start of trial on June 6, 2017, the Circuit Court advised the parties that proximity of the socket wrench to Arroyo would be a factor for the jury to decide and that a limiting instruction would confine the jury's consideration of the socket wrench to Arroyo's intent to commit a crime against a person on May 31, 2015, only.

For the offense of burglary, the evidence must show unlawful entry in a building with the intent to commit therein a crime against a person or property rights, not that a crime was actually committed in the building. "Based on the plain language of the statute and the historical development of the offense of burglary, ... in order to sustain a burglary conviction, the evidence must show that the unlawful entry was effected for the purpose of committing an offense against a person or property rights." State v. Mahoe, 89 Hawai‘i 284, 288, 972 P.2d 287, 291 (1998). "The intent to commit the offense must have existed at the time the unlawful entry was made." Id. "[T]he crime intended to be committed on the premises does not have to be committed in order to make the act of entering or remaining the crime of burglary, only the intent must be formed." State v. Robins, 66 Haw. 312, 314, 660 P.2d 39, 41 (1983). Nonetheless,

[t]he law recognizes the difficulty by which intent is proved in criminal cases. We have consistently held that since intent can rarely be proved by direct evidence, proof of circumstantial evidence and reasonable inferences arising from circumstances surrounding the act is sufficient to establish the requisite intent. Thus, the mind of an alleged offender may be read from his acts, conduct, and inferences fairly drawn from all of the circumstances.

State v. Calaycay, 145 Hawai‘i 186, 200, 449 P.3d 1184, 1198 (2019) (quoting State v. Kiese, 126 Hawai‘i 494, 502-03, 273 P.3d 1180, 1188-89 (2012) ).

A reasonable mind might fairly conclude beyond a reasonable doubt from all the circumstantial evidence, not just the "mere presence" of the socket wrench within Arroyo's proximity, that Arroyo unlawfully entered the CW's house on May 31, 2015, with the intent to commit an offense against her. The foundation for the socket wrench's existence had been laid and the evidence received was in the context that two days prior, on May 29, 2015, Arroyo (the CW's ex-boyfriend) had pushed his way into the CW's house and later opened the CW's locked bedroom door and punched her unconscious. Further, the CW testified that the socket wrench did not belong to her. Hence, the evidence of the socket wrench was relevant to whether Arroyo had unlawfully entered and remained in the CW's...