State v. Sanney.

*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER *** Electronically Filed Supreme Court SCWC-15-0000548 20-SEP-2017 09:55 AM IN THE SUPREME COURT OF THE STATE OF HAWAII ---oOo--- ________________________________________________________________ STATE OF HAWAII, Respondent/Plaintiff-Appellee, vs. YOSHIRO SANNEY, Petitioner/Defendant-Appellant. ________________________________________________________________ SCWC-15-0000548 CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CAAP-15-0000548; CR. NO. 10-1-1570) SEPTEMBER 20, 2017 RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ. OPINION OF THE COURT BY McKENNA, J. I. Introduction Yoshiro Sanney (“Sanney”) challenges the Intermediate Court of Appeals’ (“ICA”) affirmance of the Circuit Court of the First Circuit’s (“circuit court”) denial of his Motion to Reconsider Sentence (“motion to reconsider”). Sanney argues the circuit *** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER *** court1 abused its discretion by refusing to vacate his sentence of ten years in prison and $25,000 in fines and resentence him pursuant to the court’s original sentencing inclination of probation with up to eighteen months of imprisonment as a condition of probation. This appeal raises issues regarding appropriate procedures for cases in which a trial court provides a “sentencing inclination.” We hold that here, the circuit court did not abuse its discretion by denying Sanney’s motion to reconsider, because Sanney voluntarily and knowingly entered his plea after acknowledging the non-binding nature of the circuit court’s sentencing inclination, and the circuit court provided sufficient reasons for its deviation from the original sentencing inclination. Therefore, we affirm the ICA’s judgment on appeal affirming the circuit court’s decision to deny Sanney’s motion to reconsider. To provide guidance in future cases, however, we discuss procedures trial judges should follow before providing sentencing inclinations. Furthermore, we prospectively hold that if a defendant pleads guilty or no contest in response to a court’s sentencing inclination, but the court later decides not to follow the inclination, then the court must so advise the 1 The Honorable Karen S.S. Ahn presided. 2 *** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER *** defendant and provide the defendant with the opportunity to affirm or withdraw the plea of guilty or no contest. II. Background A. From offense to sentencing On September 22, 2010, Sanney was indicted on one count of sexual assault in the second degree in violation of Hawaii Revised Statutes (“HRS”) § 707-731(1)(b)(Supp. 2009)2 and one count of attempted sexual assault in the second degree in violation of HRS § 707-731(1)(b) and HRS § 705-5003 (1993). The indictment arose out of an incident that occurred in broad daylight on September 15, 2010 in Kapiolani Park. In front of numerous eyewitnesses, Sanney allegedly cut out the shorts of an unconscious homeless woman and performed cunnilingus, then attempted vaginal intercourse with her. Shortly after, police officers arrived and awoke the unconscious 2 HRS § 707-731(1)(b) provides in relevant part, “(1) A person commits the offense of sexual assault in the second degree if: . . . (b) The person knowingly subjects to sexual penetration another person who is mentally incapacitated or physically helpless. . . .” 3 HRS § 705-500, ...

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