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Hawai’i Supreme Court Remands for Resentencing Where Circuit Court Considered Defendant’s Refusal to Admit Guilt in Imposing Consecutive Sentences

by Douglas Ankney

The Supreme Court of Hawai’i remanded for resentencing in a case where the circuit court based the sentence, in part, on the defendant’s refusal to admit guilt.

In 2015, Ronald Melvin Barnes was convicted by a jury of four counts of first-degree sexual assault against a minor and another count of first-degree sexual assault against a different minor.

Pursuant to HRS § 706-601, a probation officer (“PO”) filed a presentence investigation and report (“PSI”). The PO stated in the PSI that Barnes would not participate in the PSI because Barnes was planning to file an appeal and that Barnes stated he was innocent of all charges.

At Barnes’ sentencing, the State moved for consecutive sentences because Barnes preyed upon two victims. Defense counsel opposed the motion and informed the court that upon counsel’s advice, Barnes would not be making any statement due to a planned appeal. The circuit court asked Barnes if he wanted to make a statement, and Barnes replied, “Not in this court, Your Honor.”

The circuit court then stated it considered all of the sentencing factors of HRS § 706-606, including the nature of the offense and Barnes’ characteristics. Then the judge said, “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.”

The court sentenced Barnes to 20 years on each count. The sentences for the four counts against one victim were to run concurrently, but the sentence for the one count against the other victim was to run consecutively. Barnes appealed, arguing the circuit court abused its discretion. The Intermediate Court of Appeals (“ICA”) affirmed, and the Supreme Court granted certiorari.

In a somewhat unusual move, the Supreme Court, citing plain error, vacated and remanded on an issue not presented in the appeal. Hawai’i Rules of Penal Procedure Rule 52(b) provides that “[p]lain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court.” The Supreme Court instructs that “[w]here a defendant’s substantial rights have been affected, plain error review is appropriate.” State v. Miller, 223 P.3d 157 (Haw. 2010). 

The Court observed that pursuant to the Fifth Amendment to the U.S. Constitution and Article I, section 10 of the Constitution of Hawai’i, a criminal defendant has the right to remain silent. The “distinction between imposing a harsher sentence upon a defendant based on his or her lack of remorse, on the one hand, and punishing a defendant for his or her refusal to admit guilt,” is “subtle, yet meaningful.” State v. Kamana’o, 82 P.3d 401 (Haw. 2003). A sentencing court “may not impose an enhanced sentence based on a defendant’s refusal to admit guilt with respect to an offense the conviction of which he intends to appeal.” Id. Three factors determine whether a sentencing court relied on a defendant’s refusal to admit guilt when imposing a sentence: (1) the defendant maintained innocence after conviction; (2) the judge attempted to get the defendant to admit guilt; and (3) the appearance that if the defendant affirmatively admitted guilt then his sentence wouldn’t have been as severe. Id. With respect to the second factor, it is satisfied if the sentencing court confirms the defendant is maintaining a claim of innocence. Id.

Barnes maintained his innocence as shown in the PSI. The sentencing court was aware of his statement in the PSI, and Barnes confirmed it when he told the trial judge he had nothing to say. And the sentencing court implied that had Barnes “expressed sadness” regarding the harm the victims had suffered, then the motion for consecutive sentences wouldn’t have been granted. The Court concluded that all three factors were satisfied and that Barnes’ sentence was likely improperly influenced by his insistence in his innocence. 

Accordingly, the Court vacated the judgment of the ICA and remanded to the circuit court for resentencing consistent with the Court’s opinion. See: State v. Barnes, 2019 Haw. LEXIS 135 (Haw. 2019). 

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