State v. Vaden

150 Hawai‘i 156

497 P.3d 1104 (Table)

STATE of Hawai‘i, Plaintiff-Appellee,

v.Jonathan S. VADEN, Defendant-Appellant

NO. CAAP-20-0000481

Intermediate Court of Appeals of Hawai‘i.

October 29, 2021

On the briefs:

Benjamin E. Lowenthal, Office of the Public Defender, for Appellant-Defendant.

Richard B. Rost, Deputy Prosecuting Attorney, for Plaintiff-Appellee.

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

MEMORANDUM OPINION

Defendant-Appellant Jonathan S. Vaden (Vaden) appeals from the Order of Resentencing Revocation of Probation entered on February 28, 2020 (Order of Resentencing) and the Findings of Fact, Conclusions of Law and Order Denying Motion to Correct and Clarify Order of Resentencing (FOF/COL/Order) entered on June 26, 2020 in the Circuit Court of the Second Circuit (circuit court ).¹

On appeal, Vaden raises a single point of error, contending the circuit court erred in refusing to credit him the full amount of time he had already served.

Based on our careful review of the record and for the reasons discussed below, we affirm.

I. Background

On November 5, 2018 Plaintiff-Appellee State of Hawai‘i (State) indicted Vaden on Count I, Attempted Promoting a Dangerous Drug in the First Degree under Hawaii Revised Statutes (HRS) §§ 705-500 (2014) and 712-1241 (1) (b) (ii) (A) (Supp. 2019); Count II, Promoting a Dangerous Drug in the Second Degree, under HRS § 712-1241(1) (b) (i) (Supp. 2019); Count III, Promoting a Dangerous Drug in the Third Degree, under HRS § 712-1243(1) (2014); Count IV, Promoting a Harmful Drug in the Third Degree, under HRS § 712-1246(1) (2014); Count V, Promoting a Detrimental Drug in the Second Degree, under HRS 712-1248 (1) (c) (2014); and Count VI, Prohibited Acts Related to Drug Paraphernalia, under HRS § 329-43.5(a) (Supp. 2019).

On May 13, 2019, Vaden entered a no contest plea involving this case and four other criminal cases. With regard to the charges in this case, 2CPC-18-0000844, Vaden pleaded no contest to Counts II-VI, and Count I was dismissed. Vaden also pleaded no contest in the four other criminal cases: 2CPC-18-0000413; 2CPC-18-0000457; 2CPC-18-0000348; and 2CPC-18-0000315. As part of the plea agreement, Vaden agreed that if he did not successfully complete the Maui Drug Court Program, his sentence in this case would run consecutively to his sentences in the four other cases.

On May 13, 2019, the circuit court also entered a "Judgment and Sentence of the Court: Probation" in which it sentenced Vaden in all five cases. With respect to the counts in this case, the circuit court sentenced Vaden to pay a fine as to Count VI and to serve terms of probation, including specified terms of imprisonment, as to the remaining Counts II, III, IV and V.

On June 5, 2019, Vaden petitioned the circuit court for admittance into the Maui Drug Court Program as a probationer. The circuit court granted Vaden's petition, allowing him to enter the Maui Drug Court Program.

On July 22, 2019, Vaden was released from Maui Community Correctional Center, but he was taken back into custody on December 5, 2019. On January 21, 2020, Vaden was terminated from the Maui Drug Court Program.

On February 28, 2020, the circuit court issued the Order of Resentencing, which revoked Vaden's probation and resentenced him in all five cases. Given that Vaden did not successfully complete the Maui Drug Court Program, he was sentenced consistent with the terms of his plea agreement in that: his sentences in the other four cases (2CPC-18-0000413; 2CPC-18-0000457; 2CPC-18-0000348; and 2CPC-18-0000315) were concurrent with each other; and his sentences for the counts in this case (2CPC-18-0000844) were concurrent with each other, but consecutive to the terms imposed in the other four cases. The order also provided that credit would be given for time served.

On May 1, 2020, Vaden filed a motion to reconsider his sentence, in which he argued he was entitled to receive a 340 day credit in this case, but that the Department of Public Safety (DPS) had given him only one day of jail credit. Vaden acknowledged he had received 340 days credit of time served in the other four cases.

The circuit court heard the motion on May 15, 2020, but continued the hearing to obtain DPS's reasoning in calculating Vaden's time served. In a supplemental memorandum, Vaden attached an exhibit containing an email from DPS stating in relevant part:

VADEN was sentenced to a consecutive sentence, and after calculating all of his credits the longest running case # is 2CPC-18-457 sent. 2/28/20 to 5 years with a max out date of 11/14/2023. Due to case# 2CPC-18-844 being a consecutive case that sentence start date is 11/15/2023 to 10 years with 1 day credit. The consecutive sentence will not receive pre sentenced credit for the same period of time more than once. VADEN received 1 day credit due to his initial arrest and was in custody a separate time that don't [sic] overlap credits in other cases. This is to avoid "double dipping".

The continued hearing was held on June 5, 2020. Relying on State v. Tauiliili, 96 Hawai'i 199, 29 P.3d 914 (2001), the circuit court denied the motion, stating:

THE COURT: I want to first have the record reflect that the defendant is receiving his full credit in this Court's mind, and is my finding that he is receiving his full credit for pretrial confinement as determined by the Department of Public Safety.

He is not getting it twice. He's receiving it once in cases 18-315, 348, 413 and 457.

He is not receiving it in Case 844, the subject of this motion, because he was already credited it in those other cases.

The Department of Public Safety decided to take the longest of the sentence he had served up until then, given credit for it. And again, he's receiving it, in the language of Tauiliili, in the aggregate.

Um, I agree with the finding of Public Safety that for him to be granted in [this case] would be a double credit, which was not the intent of the plea agreement of the parties anyway. That he serve a consecutive, ah, ten year sentence to the other five year sentences he had received.

(Emphasis added). On June 26, 2020 the circuit court issued its FOF/COL/Order denying Vaden's motion.²

Vaden timely filed a notice of appeal.

II. Discussion

Vaden contends the circuit court erred by not granting him 340 days of incarceration credit with respect to his sentences in this case, in addition to the 340 days of credit he already received with respect to his sentences in the other four cases. Specifically, he argues: (1) that "[t]he circuit court's failure to deduct [340 days of incarceration credit] from the maximum term of imprisonment is a glaring violation of the Double Jeopardy Clauses and HRS § 706-671" and (2) the circuit court erred in concluding that "Vaden cannot be credited with time served because the sentence in this case runs consecutively to four unrelated cases."

"The question whether a proceeding violates the constitutional prohibitions against double jeopardy is reviewed de novo ." State v. Lee, 91 Hawai‘i 206, 209, 982 P.2d 340, 343 (1999). "Statutory interpretation is a question of law reviewable de novo ." State v. Abihai, 146 Hawai‘i 398, 406, 463 P.3d 1055, 1063 (2020) (original emphasis omitted).

HRS § 706-671 (2014) provides in relevant part:

(1) When a defendant who is sentenced to imprisonment has previously been detained in any State or local correctional or other institution following the defendant's arrest for the crime for which sentence is imposed, such period of detention following the defendant's arrest shall be deducted from the minimum and maximum terms of such sentence. The officer having custody of the defendant shall furnish a certificate to the court at the time of sentence, showing the length of such detention of the defendant prior to sentence in any State or local correctional or other institution, and the certificate shall be annexed to the official records of the defendant's commitment.

(2) When a judgment of conviction or a sentence is vacated and a new sentence is thereafter imposed upon the defendant for the same crime, the period of detention and imprisonment theretofore served shall be deducted from the minimum and maximum terms of the new sentence. The officer having custody of the defendant shall furnish a certificate to the court at the time of sentence, showing the period of imprisonment served under the original sentence, and the certificate shall be annexed to the official records of the defendant's new commitment.

(emphases added).

As an initial matter, we note that neither Vaden nor the State makes a clear distinction between presentence credit under HRS § 706-671(1) and probation incarceration credit under HRS § 706-671(2) in the calculation of the asserted 340 days for time served.³ On appeal, Vaden asserts that HRS § 706-671(2) controls and requires that he receive credit for the full 340 days.⁴ However, HRS § 706-671(2) applies only to the time served while Vaden was incarcerated as a condition of his probation and not to any presentence incarceration. In essence, Vaden's contention that HRS § 706-671(2) controls results in his waiving any argument that he is entitled to presentence credit under HRS § 706-671(1). However, if Vaden's contentions in his Motion to Reconsider Sentencing are correct, see footnote 3, a significant part of the 340 credit days he seeks is based on presentence credit. It also appears that at least part of the 340 days consists of days Vaden was incarcerated after the probation sentence was entered on May 13, 2019. In short, it appears that: both HRS §§ 706-671(1) and (2) are implicated in this case; Vaden asserted both provisions in the circuit court; but Vaden asserts only HRS § 706-671(2) controls in his reply brief. Ultimately, we conclude the record is unclear as to what portion of the 340 days constitutes presentence days and probation sentence days, but with respect to either type of credit due, Vaden is not entitled to a double credit for those days...