State v. Lavoie

1

STATE OF HAWAI'I, Plaintiff-Appellee, v. MARLIN L. LAVOIE, Defendant-Appellant

No. CAAP-23-0000296

Intermediate Court of Appeals of Hawaii

August 15, 2024

NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER

APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT (CASE NO 2CPC-22-0000737(2))

On the briefs:

Matthew S. Kohm, for Defendant-Appellant.

Chad Kumagai, Deputy Prosecuting Attorney, County of Maui, for Plaintiff-Appellee.

Leonard, Acting Chief Judge, Nakasone and Guidry, JJ.

SUMMARY DISPOSITION ORDER

Katherine G. Leonard, Acting Chief Judge

Defendant-Appellant Marlin L. Lavoie (Lavoie) appeals from the March 7, 2023 Judgment; Conviction and Sentence; Notice of Entry (Judgment) entered by the Circuit Court of the Second Circuit (Circuit Court).^[1] Under a plea agreement with Plaintiff- Appellee State of Hawai'i (State), Lavoie pleaded guilty to Count One - Manslaughter, in violation of Hawaii Revised Statutes (HRS) § 707-702(2) (2014);^[2] Count Two - Carrying or Use of Firearm in the Commission of a Separate Felony, in violation of HRS § 134-21(a) (2023);^[3] and Count Three - Ownership or Possession Prohibited of Any Firearm or Firearm Ammunition (Felon-in-Possession), in violation of HRS § 134-7(b), (h) (2011).^[4] The Circuit Court convicted Lavoie and sentenced him to 20 years imprisonment in Counts One and Two to run consecutive to each other and 10 years in Count Three to run concurrently with Counts One and Two, with credit for time served, and ordered Lavoie to pay restitution and fees.

Lavoie raises two points of error on appeal, contending that the Circuit Court erred by: (1) in a separate proceeding that was dismissed without prejudice for charging defects (2PC131000236), only granting partial funding for Lavoie to retain an expert psychologist to provide a dangerousness assessment at sentencing; and (2) in the Circuit Court case underlying this appeal (in which Lavoie was re-charged by grand jury indictment (2CPC-22-0000737)), imposing a consecutive sentence without sufficient supporting rationale, which did not adequately consider Lavoie's mental health issues, and which was disproportionate to sentences in other cases.

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 Lavoie's points of error as follows:

(1) Lavoie argues that because "the parties had agreed that there was a factual record of an extreme mental or emotional disturbance surrounding Lavoie's actions to permit a change of plea [to] manslaughter[,]" and given that Lavoie "had been incarcerated for 9 years," his "mental or emotional disturbance is highly relevant to dangerousness," along with consecutive sentencing and "his ability at rehabilitation." Lavoie further contends that the Circuit Court's prior ruling "limit[ing] requested funds to $1000.00" was "law of the case," and "Lavoie was unable to have needed assistance for his mitigating factors and sentencing."

The State makes several arguments in response, most notably that after Lavoie was recharged in 2CPC-22-0000737, he did not renew his request for funds to engage Dr. Acklin to provide further expert assistance in conjunction with sentencing in this case.

"As a general rule, if a party does not raise an argument at trial, that argument will be deemed to have been waived on appeal; this rule applies in both criminal and civil cases." State v. Moses, 102 Hawai'i 449, 456, 77 P.3d 940, 947 (2003); Hawai'i Rules of Appellate Procedure Rule 28(b)(7) ("Points not argued may be deemed waived.").

"A criminal case is formally initiated by an indictment, complaint, or oral charge. See Hawai'i Rules of Penal Procedure [(HRCP)] Rule 7(a). When the indictment, complaint, or oral charge is dismissed, proceedings in the trial court are terminated." State v. Kalani, 87 Hawai'i 260, 262, 953 P.2d 1358, 1360 (1998). "If the dismissal is without prejudice, the prosecution is permitted to recharge the defendant later. However, even if the prosecution is allowed to recharge the defendant, recharging him/her does not revive the original case. Rather, recharging the defendant initiates a new case." Id. (citation omitted); see also State v. Michaeledes, 152 Hawai'i 217, 222, 524 P.3d 1241, 1246 (2023) ("The second charging document alleging the same three counts initiated a second case, separate from the first case arising from the first charging document.").

HRPP "Rule 12(g) creates a limited exception to the procedure that a dismissal completely terminates the original case." Deangelo v. Souza, 152 Hawai'i 55, 59, 520 P.3d 253, 257 (2022). "If the court grants a dismissal based on 'a defect in the institution of the prosecution or in the charge,' the rule allows the judge to hold the defendant in custody (or continue bail) while the State re-charges." Id. "In effect, dismissal paired with a 12(g) grant resets the proceedings to where they were before the defective charge or indictment was made. In [defendant's] case, that means after a preliminary hearing at which the court found probable cause." Id.

In this case, Lavoie waived any argument on appeal for funds to retain an expert psychologist for his sentencing. Lavoie's Motion for Costs was filed in 2PC131000236; any alleged error in the oral ruling on the Motion for Costs occurred in that proceeding, which was dismissed without prejudice. No party filed an appeal from 2PC131000236.

Lavoie's motion to dismiss 2PC131000236 argued that under State v. Obrero, 151 Hawai'i 472, 517, P.3d 755 (2022), Lavoie was incorrectly charged by complaint versus grand-jury indictment. The Circuit Court dismissed 2PC131000236 without prejudice, and ordered that Lavoie be held in custody without bail under HRPP Rule 12(g). Lavoie was indicted on October 17, 2022, in 2CPC-22-0000737 -- the case underlying this appeal - but this did "not revive the original case" insofar as "recharging the defendant initiates a new case." See Kalani, 87 Hawai'i at 262, 953 P.2d at 1360.

Thereafter, Lavoie did not file a request for funds to retain Dr. Acklin or another expert to conduct a dangerousness assessment for his sentencing. The plea agreement stated that the parties requested that the August 4, 2022 Presentence Report, which was originally prepared in the dismissed proceeding (2PC131000236), be adopted in this case. At the time of his guilty plea on February 23, 2023, Lavoie and his counsel had approximately six months to review the August 4, 2022 Presentence Report. The August 4, 2022 Presentence Report included the written reports of the three-panel fitness examiners in Lavoie's 2015 trial (Dr. George C. Choi, Dr. Martin Blinder, and Dr. Tom Cunningham), along with the defense's 2015 expert reports of Drs. Acklin and Kohn that Lavoie's counsel submitted to the probation officers.^[5] Prior to the sentencing hearing on March 7, 2023, Lavoie did not seek to "controvert or supplement" the contents of the August 4, 2022 Presentence Report under HRS § 706-604(2) (2014).^[6]

In the absence of a request for further funds to engage an expert in conjunction with sentencing in 2CPC-22-0000737, and based on the entirety of the record before us, we conclude that Lavoie's argument that relief should be granted in this case because the Circuit Court erred in limiting the funding for further expert engagement in 2PC131000236 is without merit.

(2) Lavoie argues that the Circuit Court abused its discretion in sentencing him because it failed to provide a sufficient rationale for imposing a consecutive sentence, and it failed to avoid the sentencing disparities outlined and argued by defense counsel.

"Multiple terms of imprisonment run concurrently unless the court orders or the statute mandates that the terms run consecutively." HRS § 706-668.5(1) (2014 & Supp. 2023). "Pursuant to HRS § 706-668.5, a sentencing court may use its discretion to order that a person convicted of more than one offense serve terms of imprisonment concurrently or consecutively. That statute requires that the sentencing court consider the factors set forth in HRS § 706-606 to make this determination." State v. Sandoval, 149 Hawai'i 221, 236, 487 P.3d 308, 323 (2021) (footnote omitted).

HRS § 706-606 (2014) states:

§ 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.

"Discretionary use of consecutive sentences is properly imposed in order to deter future criminal behavior of the defendant, to insure public safety, and to assure just punishment for the crimes committed." State v. Tauiliili, 96 Hawai'i 195, 199, 29 P.3d 914, 918 (2001).

"[A] court must state its reasons as to why a consecutive sentence rather than a concurrent one was required." State v Hussein, 122 Hawai'i 495, 509, 229 P.3d 313, 327 (2010). "[T]he sentencing court is not required to articulate and explain its conclusions with respect to every factor listed in HRS §...