State v. Duong

151 Hawai‘i 232

510 P.3d 1134 (Table)

STATE of Hawai‘i, Plaintiff–Appellee,

v.Derek Dung Hung DUONG, Defendant–Appellant

NO. CAAP-18-0000633

Intermediate Court of Appeals of Hawai‘i.

June 14, 2022

On the briefs:

David A. Sereno, for Defendant–Appellant.

Gerald K. Enriques, Deputy Prosecuting Attorney, County of Maui, for Plaintiff–Appellee.

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

SUMMARY DISPOSITION ORDER

Defendant-Appellant Derek Dung Hung Duong (Duong ) appeals from the August 2, 2018 Judgment; Conviction and Probation Sentence; Terms and Conditions of Probation; Notice of Entry (Judgment ) in the Circuit Court of the Second Circuit (Circuit Court ).¹

On March 2, 2015, Plaintiff-Appellee the State of Hawai‘i (State ) charged Duong by felony information with four counts: (1) Place to Keep Unloaded Firearms Other Than Pistols and Revolvers in violation of Hawaii Revised Statutes (HRS ) § 134-24(a) (2011) ;² (2) Place to Keep Pistol or Revolver in violation of HRS § 134-25(a) (2011);³ (3) Place to Keep Ammunition in violation of HRS § 134-27(a) (2011);⁴ and (4) Criminal Property Damage in the Second Degree in violation of HRS § 708-821(1)(b) (2014).⁵

On May 2, 2018, prior to trial, Duong entered a no contest plea to all four counts pursuant to a plea agreement with the State, and Duong moved to defer acceptance of his no contest plea pursuant to HRS § 853-1(a) (2014)⁶ (DANC ). On August 1, 2018, at a continued sentencing hearing, Duong decided to "take the conviction," instead of accepting a DANC that would have included 90 days of jail time, and the Circuit Court sentenced Duong to terms of probation of four years on each of Counts 1, 2, and 4, and one year on Count 3, with all terms to be served concurrently.

Duong raises a single point of error on appeal, contending that the Circuit Court erred in denying his motion for DANC. Duong acknowledges that the Circuit Court did not in fact deny his motion, but rather that the court indicated that it would grant the motion subject to 90 days in jail. The Circuit Court gave Duong the alternative option of withdrawing his request for a DANC and being sentenced to probation, with no jail time. The latter option included a permanent record of his convictions.

Upon careful review of the record and the briefs submitted by the parties, and having given due consideration to the arguments advanced and the issues raised by the parties, we resolve Duong's point of error as follows:

In essence, Duong contends that the Circuit Court abused its discretion when the court indicated that it was only willing to grant the motion to defer subject to a 90-day jail term.

As set forth in footnote 6 above, HRS § 853-1(b) specifically provides that a deferral "may be deferred upon any of the conditions specified by section 706-624." HRS § 706-624 (2014) includes, in pertinent parts:

§ 706-624 Conditions of probation[.]

....

(2) Discretionary conditions. The court may provide, as further conditions of a sentence of probation, to the extent that the conditions are reasonably related to the factors set forth in section 706-606 and to the extent that the conditions involve only deprivations of liberty or property as are reasonably necessary for the purposes indicated in section 706-606(2), that the defendant:

(a) Serve a term of imprisonment to be determined by the court at sentencing ... not exceeding eighteen months in class B felony cases, not exceeding one year in class C felony cases, not exceeding six months in misdemeanor cases, and not exceeding five days in petty misdemeanor cases[.]

(Emphasis added).

Also relevant here, HRS § 706-606 (2014) provides:

§ 706-606 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

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

The Hawai‘i Supreme Court recently provided guidance concerning a trial court's broad discretion to consider the circumstances of the offense and the defendant in making a DANC determination, explaining:

In general, judges have broad discretion to consider the facts and circumstances of the defendant and the offense in making a DANC determination. ...

[The appellant's] arguments cut against the principle that judges have broad discretion in deciding whether to grant DAG/DANC motions. As noted, HRS § 853-1(a) sets forth the criteria a trial court should examine in its determination, which are: (1) whether the defendant is not likely again to engage in a criminal course of conduct; and (2) whether the ends of justice and the welfare of society require that the defendant presently suffer the penalty imposed by law. In making these determinations, the court may consider sentencing factors discussed in the PSI report, including the "nature and circumstances of the offense and the history and characteristics of the defendant." HRS § 706-606.

The role of the PSI report illuminates the importance of judges taking the facts and circumstances into account. These reports focus the judge's attention on matters including "the circumstances attending the commission of the crime" and "[t]he defendant's history of delinquency or criminality," see HRS § 706-602 (2014), which are also relevant to the HRS § 853-1(a) factors.

In the DAG/DANC context, a court cannot intelligently decide whether a defendant is likely to reoffend nor whether their crimes merit immediate punishment without understanding the nature of the offense and the defendant's character and circumstances. Thus, judges not only may but must consider the defendant's particular situation in DANC proceedings as well as in sentencing. Cf.[State v.] Martin, 56 Haw. [292,] 294, 535 P.2d [127,] 128 [(1975)] (holding, in the DAG context, that "[d]iscretionary action must be exercised on a case-by-case basis").

State v. Satoafaiga, 150 Hawai‘i 406, 421-22, 504 P.3d 324, 339-40 (2022).

Here, the charges that Duong had pled no contest to included, in pertinent parts:

§ 134-24 Place to keep unloaded firearms other than pistols and revolvers; penalty[.]

....

(b) Any person violating this section by carrying or possessing an unloaded firearm other than a pistol or revolver shall be guilty of a class C felony.

§ 134-25 Place to keep pistol or revolver; penalty[.]

....

(b) Any person violating this section by carrying or possessing a loaded or unloaded pistol or revolver shall be guilty of a class B felony.

§ 134-27 Place to keep ammunition; penalty[.]

....

(b) Any person violating this section shall be guilty of a misdemeanor.

§ 708-821 Criminal property damage in the second degree[.]

....

(2) Criminal property damage in the second degree is a class C felony.

Thus, the offenses included one class B felony, two class C felonies, and one misdemeanor. Under the statutory framework set forth above, in conjunction with a DANC the Circuit Court had discretion -- upon considering the parameters of HRS § 853-1 and the factors set forth in HRS § 706-606 -- to impose a term of imprisonment for the class B felony of up to eighteen months, for the class C felonies of up to one year, and for the misdemeanor of up to six months. The 90-day condition of imprisonment indicated by the Circuit Court, while undisputedly a significant burden on Duong, was well within the terms allowed for the offenses.

The transcript of the July 25, 2018 sentencing hearing clearly indicates that the Circuit Court's condition of imprisonment for the DANC stems from the court's focus on the circumstances attending the commission of the crime. The court did not directly comment on Duong's likelihood to again engage in a criminal course of conduct, but expressed concern that Duong's conduct reflected "deep rooted anger problems." The Circuit Court's comments on the circumstances included:

THE COURT: Okay. So your workers, whoever's working on the house, called you that [trespasser] was back at your house once again. And so you came rushing home, um, with your firearm in your vehicle and at least -- and I understand that you, first of all, asked her to basically leave. And then she wouldn't leave. And I guess you -- I guess when you kept asking her to leave and she wouldn't leave, then that's -- that's when it kinda escalated here.

And, um, apparently you retrieved the gun from your vehicle. I understand it was loaded. That you loaded it. Um, put it in your pocket. And that's when she kind of ran off to the side.

And then you proceeded to grab a pick axe. Yes?

[Dispute on when and how the trespasser left]

THE COURT: Right. That's what I was thinking. She left. So she ran off on foot or whatever, she ran off on.

[Duong's counsel]: Right.

The court then considered Duong's specific actions:

THE COURT: Okay. So the problem I'm having now is you grab this pick axe and you start to smash her vehicle. You smash her rear window. You smash her front headlights. You go ahead dent the front hood. You damage the front bum -- bumper.

And to me it's one of those riot videos that you see on T.V. when these people rioting in the streets. And then people just walking down the streets throwing fireballs and getting bats and getting sticks and they start bashing people's property.

That's what came into my mind, Mr. Duong. This is your behavior. And I heard you say it was the, or else. And you just reached your limit. This is the, or else.

So you

...