State v. Barnes

450 P.3d 743

STATE of Hawai‘i, Respondent/Plaintiff-Appellee,

v.Ronald Melvin BARNES, Petitioner/Defendant-Appellant.

SCWC-15-0000909

Supreme Court of Hawai‘i.

JUNE 6, 2019

I. Introduction

On March 31, 2015, Petitioner/Defendant-Appellant, Ronald Melvin Barnes ("Barnes"), was convicted by a jury in the Circuit 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 Hawai‘i 321, 389 P.3d 916 (2016), and State v. Kamana‘o, 103 Hawai‘i 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.

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.

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.

In response, Barnes’s counsel asserted that there was no justification for a consecutive sentence under State v. Hussein, 122 Hawai‘i 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, and I considered the factors under HRS Section 706-606,^[3] 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).

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, CAAP-15-0000909, at 5, 139 Hawai‘i 432, 2017 WL 1378211 (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) ).

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...