State v. Bautista

NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
28-FEB-2023
11:39 AM
Dkt. 91 MO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI‘I

STATE OF HAWAI‘I, Plaintiff-Appellee, v.
ROMMEL L. BAUTISTA, Defendant-Appellant.

APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT
(CASE NO. 2CPC-XX-XXXXXXX)

MEMORANDUM OPINION
(By: Leonard, Presiding Judge, Wadsworth and McCullen, JJ.)

Defendant-Appellant Rommel L. Bautista (Bautista)

appeals from the Circuit Court of the Second Circuit's March 10,

2021 Judgment; Conviction and Sentence; Notice of Entry. 1

Following a no-contest plea, Bautista was convicted of

(1) Assault in the Second Degree, in violation of Hawaii Revised

Statutes (HRS) § 707-711(1)(a) (Supp. 2018); (2) Terroristic

Threatening in the First Degree, in violation of HRS § 707-

1 The Honorable Rhonda I.L. Loo presided.
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716(1)(e) (2014); and (3) Felony Abuse of Family or Household

Member, in violation of HRS § 709-906(1) and (9) (Supp. 2019).

The circuit court sentenced Bautista to a five-year

term of imprisonment for each count, to be served consecutively.

On appeal, Bautista challenges the circuit court's jurisdiction,

the lawfulness of the prosecution, and the consecutive nature of

his sentence. For the reasons discussed below, we affirm.

I. Background

A. Complaint And Committal

On July 27, 2020, the State filed a complaint in the

District Court of the Second Circuit, charging Bautista with

seven felony offenses and alleging that all offenses occurred in

the County of Maui, State of Hawai‘i. 2 Finding probable cause,

2 The Honorable Blaine J. Kobayashi, and the Honorable Kirstin M.
Hamman presided over the district court proceedings.

The seven charged counts were as follows:

Count 1: Attempted Murder in the Second Degree, in violation of HRS
§§ 705-500(2) (2014) and 707-701.5 (2014 and Supp. 2018), and
subject to HRS § 706-656 (2014);

Count 2: Assault in the First Degree, in violation of HRS § 707-710(1)
(2014);

Count 3: Assault in the Second Degree, in violation of HRS § 707-
711(1)(a);

Count 4: Terroristic Threatening in the First Degree, in violation of
HRS § 707-716(1)(e);

Count 5: Felony Abuse of Family or Household Member, by strangulation,
in violation of HRS §§ 709-906(1) and/or (8) (Supp. 2019);

Count 6: Felony Abuse of Family or Household Member, by strangulation,
in violation of HRS §§ 709-906(1) and/or (8); and

Count 7: Felony Abuse of Family or Household Member, in the presence of
a minor, in violation of HRS §§ 709-906(1) and/or (9).

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the district court committed the case to the circuit court and a

hearing was scheduled in circuit court for August 12, 2020 at

8:00 a.m. in Courtroom #4. A case was then initiated in circuit

court based on that committal.

B. No-Contest Plea

About five months later, Bautista pled no contest to

Assault in the Second Degree (Count 3), Terroristic Threatening

in the First Degree (Count 4), and Felony Abuse of Family or

Household Member, minor present (Count 7) in exchange for

dismissing the remaining charges of Attempted Murder in the

Second Degree (Count 1), Assault in the First Degree (Count 2),

and Felony Abuse of a Family or Household Member, by

strangulation (Counts 5 and 6). On the no-contest plea form,

Bautista acknowledged that he was giving "up the right to appeal

anything that has happened in this case to date" and that the

circuit court may impose consecutive terms of imprisonment.

During the hearing on Bautista's no-contest plea, the

circuit court reiterated that "the maximum penalty provided by

law for these offenses is fifteen years in prison and a $30,000

fine[,]" and Bautista acknowledged his understanding. The

circuit court again explained, "So when I mentioned fifteen

years earlier, that's if I ran everything consecutively, one

after the other. . . . I got that by adding five plus five plus

five . . . ." Bautista then requested a continuance to speak

with his family, and the circuit court granted the request.

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The next week, the circuit court again reviewed the

no-contest plea with Bautista and explained that "the maximum

penalty provided by law for these offenses is a fifteen-year

prison term and a $30,000 fine[,]" and Bautista acknowledged

that he understood. Later in the hearing, the circuit court

reiterated that it "could sentence [him] to the full fifteen-

year prison term[,]" and Bautista acknowledged his

understanding.

After the circuit court's colloquy, Bautista pled no-

contest. The circuit court accepted Bautista's plea and ordered

a presentence report, which was filed with the circuit court.

C. Sentencing

1. State's Argument

During the sentencing hearing, the State requested

consecutive sentencing based on the circumstances of the

incident. The State explained that Bautista attacked his wife

(Wife) because he thought she was having affairs and would not

admit it. Bautista "slapped her face, and then grabbed her

throat, impeding her breathing. He also then kicked her in the

ribs and body and stomped on her chest . . . ." He told her he

was going to kill her, and "grabbed the ceramic toilet tank

cover and made a motion like he was going to hit her." When

Bautista's father banged on the door, Wife seized "the chance to

grab her six-year-old son and leave the house and call a friend

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for help." The friend took them to the police station where she

was checked by medics and transferred to the emergency room.

Wife had redness and abrasions on her nose, left

cheek, ear, chest, and back "as well as a lump on the back of

her head and redness on both sides of her neck." Wife also had

bruises on her scalp behind her left ear, and on her upper arms

and lower legs. She was "also diagnosed with a fracture of her

right second, third, and fourth ribs as well as a collapsed

lung."

The State acknowledged that Bautista's "family appears

to have forgiven him" and "would like to see him return home."

The State, however, noted that Bautista's six-year-old son was

present during the incident, and "told the police he saw his

father punch his mother, [and] grab her neck . . . ." The State

requested that the circuit court sentence Bautista to five years

imprisonment for each offense, to be served consecutively.

2. Defense's Argument

Defense counsel confirmed that they reviewed the

presentence report, and nothing needed to be corrected. Defense

counsel explained that it was Wife that "woke him from a sleep

and was yelling at him, and that's what started it." Defense

counsel asked the court to take into account Wife's plea for

leniency and that he never hit her before. Defense counsel

explained that Bautista "did not intend to end her life[,]" but

"was trying to force a confession out of her as to what he

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believed to be infidelity and threatened her with the intent to

make her believe that he might kill her, do her serious harm in

order to get her to confess."

3. Circuit Court's Decision

After expressing concern for Bautista's son and the

effects this incident may have on him later, the circuit court

stated that "there was no part of your wife's body that was not

untouched." The circuit court recognized that "the doctor at

the hospital did confirm the extent of her injuries with the

facial bruising, the collapsed lung, which could have caused

death, fracture to not one rib but three different ribs . . . ."

"I think the only reason you stopped was perhaps

because your father was pounding on the front door . . . and

this gave an opportunity for your wife to get out of the house

with the six-year-old, your son . . . ."

The circuit court explained that it "had an

opportunity today to review the options of sentencing" and could

possibly give probation or concurrent sentences. The circuit

court confirmed that it heard the arguments and Bautista's

statement, read the letters submitted by his family and Wife,

and considered that Bautista had no previous record.

Nonetheless, the circuit court stated that "this is a

very severe case. . . . And the nature of these -- of these

charges, though it's come off the attempted murder, are

extremely serious . . . ." Additionally, the circuit court

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stated, "your adult daughter talks about how you folks would

argue almost every night, and it was so bad that she didn't even

want to live at home at one point."

Wife "needs to be protected. Your son needs to be

protected. The community needs to be protected from his kind of

behavior." The circuit court sentenced Bautista to a five-year

term of imprisonment for each of the three convicted offenses,

to be served consecutively. Bautista filed an untimely notice

of appeal. 3 See Hawai‘i Rules of Appellate Procedure (HRAP)

Rule 4(b) (providing that in a criminal case "the notice of

appeal shall be filed within 30 days after entry of judgment or

order appealed from").

II. STANDARD OF REVIEW

A. Jurisdiction

"[T]he court's jurisdiction to consider matters

brought before it is a question of law which is subject to de

novo review on appeal applying the 'right/wrong' standard."

State v. Lorenzo, 77 Hawai‘i 219, 220, 883 P.2d 641, 642

(App. 1994) (citations omitted).

3 In criminal cases, this court has made exceptions to the requirement
that the notice of appeal be timely filed where "defense counsel has
inexcusably or ineffectively failed to pursue a defendant's appeal from a
criminal conviction in the first instance[.]" State v. Irvine, 88 Hawai‘i
404, 407, 967 P.2d 236, 239 (1998); State v. Chavira, 120 Hawai‘i 255, 203
P.3d 675, No. 29082, 2009 WL 458772 at *1 (App. Feb. 25, 2009) (SDO). It
appears that Bautista's former counsel failed to file a timely notice of
appeal.

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B. Sufficiency Of The Charge

"Whether a charge sets forth all the essential

elements of a charged offense is a question of law, which we

review under the de novo, or right/wrong, standard." State v.

Wheeler, 121 Hawai‘i 383, 390, 219 P.3d 1170, 1177 (2009)

(cleaned up).

C. Sentencing

Sentencing matters are reviewed for an abuse of

discretion. State v. Mundon, 121 Hawai‘i 339, 349, 219 P.3d

1126, 1136 (2009) (quoting State v. Kahapea, 111 Hawai‘i 267,

278, 141 P.3d 440, 451 (2006)).

III. Discussion

In his opening brief, Bautista challenged the

consecutive nature of his sentence. But, after being granted

leave to amend his opening brief, Bautista additionally

challenged the circuit court's subject matter jurisdiction.

Bautista then submitted an HRAP Rule 28(j) letter to

this court citing to the Hawai‘i Supreme Court's opinion in State

v. Obrero, 151 Hawai‘i 472, 517 P.3d 755 (2022), and this court

ordered the parties to submit supplemental briefing addressing

the effect Obrero has on this case. In his supplemental brief,

Bautista asserts that his conviction is unlawful in light of

Obrero.

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Bautista applied to have this case transferred to the

Hawai‘i Supreme Court, but that application was rejected. Of the

three points of error he raises throughout these proceedings, we

address Bautista's challenge to the circuit court's jurisdiction

first.

A. The Circuit Court Had Jurisdiction

Bautista contends that the circuit court had no

jurisdiction over his case because the State did not file a

complaint in the circuit court. To support this contention,

Bautista asserts that once the district court committed the case

to circuit court, the State "had to take an active role in

initiating the proceedings in circuit court by filing a charging

document. Its failure to do that means that the circuit court's

subject matter jurisdiction never attached." In his

supplemental brief, Bautista acknowledges Footnote 12 in Obrero,

but reiterates that the State "needed to file a 'cognizable'

charging instrument in the circuit court. Without it, the

circuit court lacked jurisdiction to convict and sentence" him.

"Jurisdiction is defined as 'the power and authority

on the part of the court to hear and judicially determine and

dispose of the cause pending before it.'" Schwartz v. State,

136 Hawai‘i 258, 262, 361 P.3d 1161, 1165 (2015) (quoting

State v. Villados, 55 Haw. 394, 396, 520 P.2d 427, 430 (1974)).

"'[J]urisdiction depends upon the state of affairs existing at

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the time it is invoked; once having attached, it . . . is

retained by a court until fully exhausted by the entry of a

final judgment.' It is not lost by subsequent events, . . .

unless a statute provides otherwise." 136 Hawai‘i at 262, 361

P.3d at 1165 (citation omitted).

1. Obrero, HRS, and HRPP

In Obrero, the Hawai‘i Supreme Court held that the

State's prosecution of the defendant by complaint instead of

indictment violated HRS § 801-1 (2014). Obrero, 151 Hawai‘i at

475, 482, 517 P.3d at 758, 765. Nevertheless, in Footnote 12,

the supreme court explained that "[t]he unlawfulness of the

State's prosecution did not deprive the circuit court of

subject-matter jurisdiction." 151 Hawai‘i at 478 n.12, 517 P.3d

at 761 n.12.

The supreme court explained that the State filed six

separate complaints in the district court. 151 Hawai‘i at 475,

517 P.3d at 758. But after the district court found probable

cause and committed the case to circuit court, the State

consolidated the six complaints into a single complaint, and

filed that complaint in the circuit court. 151 Hawai‘i at 476,

476 n.4, 517 P.3d at 759, 759 n.4.

Quoting HRS § 603-21.5(a)(1) (2016), the supreme court

explained that "the circuit courts have jurisdiction over

'criminal offenses cognizable under the laws of the State,

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committed within their respective circuits or transferred to

them for trial by change of venue from some other circuit

court.'" 151 Hawai‘i at 478 n.12, 517 P.3d at 761 n.12 (citation

and brackets omitted). Cognizable was defined as "capable of

being known or recognized, or capable of being judicially tried

or examined before a designated tribunal; within the court's

jurisdiction." Id. (citation and internal quotation marks

omitted).

The supreme court then concluded that "the State's

complaint properly invoked the circuit court's subject matter

jurisdiction" because it alleged offenses recognized under our

State laws and these offenses were committed in the City and

County of Honolulu. Id.

HRS chapter 805 governs criminal procedure in the

district courts. "When a complaint is made to any prosecuting

officer of the commission of any offense, the prosecuting

officer shall examine the complaint, shall reduce the substance

of the complaint to writing . . . ." HRS § 805-1 (2014). "In

all cases of arrest for offenses that must be tried in the first

instance before a jury, or that can be tried only on indictment

by a grand jury," the judge, "upon the appearance of the

accused, shall proceed to consider whether there is probable

cause to believe that the accused is guilty of the offense with

which the accused is charged." HRS § 805-7 (2014).

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"[I]f in the judge's opinion there is probable cause

to believe that the accused is guilty of the offense" the

accused is charged with, "the judge shall make out and deliver

to a police officer a mittimus which may be in the form

established by the usage and practice of the issuing court."

HRS § 805-7. "In all criminal cases had before a district judge

where there has been a commitment as provided in section 805-7,

. . . the judge, forthwith, shall send to the county attorney or

prosecuting attorney . . . giving the name of the defendant and

the date the records were sent to the circuit court . . . ."

HRS § 805-8 (2014).

HRS chapter 806 governs criminal procedure in circuit

court, but contains no requirement to refile a complaint

following a commitment from district court. Offering some

guidance, the Hawai‘i Rules of Penal Procedure (HRPP) provide the

procedure for committing a case to the circuit court. 4 "If the

defendant is held to answer in the circuit court, the court

shall transmit to the circuit court all papers and articles

received in evidence at the preliminary hearing and any bail

received by it." HRPP Rule 5(c)(6) (emphasis added). "Within 7

4 In Obrero, the supreme court explained that HRPP Rules 5 and 7
"flatly contradict HRS § 801-1" and "[w]here a court-made rule affecting
litigants' substantive rights contravenes the dictates of a parallel statute,
the rule must give way." Obrero, 151 Hawai‘i at 480, 517 P.3d at 763 (quoting
Cox v. Cox, 138 Hawai‘i 476, 482, 382 P.3d 288, 294 (2016)). The supreme
court did not, however, expressly declare HRPP Rules 5 and 7 invalid in all
respects. See id. Moreover, our reference to HRPP Rules 5 and 7 is in the
context of determining jurisdiction, not the violation of HRS § 801-1.

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days after the district court's oral order of commitment (i) the

district court shall sign its written order of commitment,

(ii) the clerk shall enter the district court's written order,

and (iii) the clerk shall transmit to the circuit court all

documents in the proceeding . . . ." HRPP Rule 5(c)(7)

(emphasis added and formatting altered).

Finally, HRPP Rule 7(h) addresses the court in which a

charge is filed. HRPP Rule 7(h) first states that "[a]n

indictment or information shall be filed in the circuit court."

HRPP Rule 7(h)(1). HRPP Rule 7(h) then states that "[a]

complaint may be filed in either the district or circuit court;

provided that a complaint shall not be filed initially in the

circuit court when it charges (i) a felony, and none of the 3

conditions set forth in Rule 7(b) of these rules has yet

occurred," or "(ii) only an offense or offenses other than a

felony." 5 HRPP Rule 7(h)(2) (formatting altered); See HRPP

5 HRPP Rule 7(b) provides,

A felony may be prosecuted by a complaint under any of the
following 3 conditions:

(1) if with respect to that felony the district judge has
found probable cause at a preliminary hearing and has
committed the defendant to answer in the circuit court
pursuant to Rule 5(c) of these rules;

(2) if, pursuant to 5(c)(2) of these rules, the defendant
has waived in open court the right to a preliminary
hearing; or

(3) if, pursuant to 7(c) of these rules, the defendant has
waived in open court the right to an indictment.

(Formatting altered.)

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Rule 2 (providing that these rules "shall be construed to secure

simplicity in procedure, fairness in administration and the

elimination of unjustifiable expense and delay").

In sum, nothing in HRS chapters 805 and 806, and HRPP

Rules 5 and 7, require the State to refile a complaint in the

circuit court after the district court committed the case to the

circuit court upon a finding of probable cause.

2. Analysis

Here, the State filed a complaint with seven felony

counts in the district court. According to the court minutes,

the district court held a hearing and found probable cause as to

those seven counts. 6 After finding probable cause, the district

court orally committed the case, and each count, to the circuit

court.

That same day, the district court entered a "Committal

to the Circuit Court" and "Amended Order and Notice of Entry of

Order," committing Bautista's case to the circuit court for

further proceedings and ordering Bautista to appear in the

circuit court on August 12, 2020 at 8:00 a.m. Also on that day,

a circuit court case was initiated based on the district court's

commitment with service made to the parties. 7

6 Bautista did not order transcripts of this proceeding and did not
file a notice indicating that he was ordering fewer than all transcripts.
See HRAP Rule 10(b)(4).
7 The "Commitment to Circuit Court" docketed as No. 1 does not contain
a readable pdf.

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That charging instrument filed in the district court

and committed to the circuit court alleged that Bautista

violated HRS §§ 705-500(2) and 707-701.5, 707-710(1), 707-

711(1)(a), 707-716(1)(e), 709-906(1) and/or (8), and 709-906(1)

and/or (9), all of which are recognized offenses under Hawai‘i

law. That same complaint also alleged that the offenses

occurred "in the Division of Wailuku, County of Maui, State of

Hawaii," which is in the Second Circuit. HRS § 603-1 (2016)

("The second judicial circuit includes the islands of Maui,

Molokai, Lanai, Kahoolawe, and Molokini.") Because the

complaint charged Bautista with cognizable offenses within the

second circuit, the requirements of HRS § 603-21.5(a)(1) were

satisfied.

Bautista does not cite to, and we have not found, a

statute or rule that requires the State to refile a complaint in

the circuit court after the district court has committed the

case to circuit court upon a finding of probable cause.

Moreover, we decline to interpret Footnote 12 in Obrero as

requiring as much because the complaint committed to the circuit

court satisfied the requirements of HRS § 603-21.5(a)(1) to

invoke the circuit court's jurisdiction. See 151 Hawai‘i at 478

n.12, 517 P.3d at 761 n.12.

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B. Complaint Presumed Valid

Bautista next contends that the State violated HRS

§ 801-1 by failing to obtain an indictment, and that the

"prosecution against [him] is unlawful and the judgment must be

vacated."

HRS § 801-1 provides, "No person shall be subject to

be tried and sentenced to be punished in any court, for an

alleged offense, unless upon indictment or information, except

for offenses within the jurisdiction of a district court or in

summary proceedings for contempt." As mentioned, the supreme

court in Obrero held that the "State's prosecution of Obrero

[was] unlawful because it [had] not complied with the statute's

indictment requirement." Obrero, 151 Hawai‘i at 478, 517 P.3d at

761.

However, the supreme court noted that

had Obrero challenged the State's failure to comply with
HRS § 801-1 for the first time on appeal, we would presume
the validity of the complaint against him and would not
reverse his conviction absent a showing that the complaint
prejudiced him or could not be construed to charge a crime.

151 Hawai‘i at 478 n.11, 517 P.3d at 761 n.11 (citing Wheeler,

121 Hawai‘i at 399, 219 P.3d at 1186). In Wheeler, the supreme

court explained that

there is a 'presumption of validity,' . . . for charges
challenged subsequent to a conviction. In those
circumstances, this court will 'not reverse a conviction
based upon a defective indictment [or complaint] unless the
defendant can show prejudice or that the indictment [or
complaint] cannot within reason be construed to charge a
crime.'

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Wheeler, 121 Hawai‘i at 399-400, 219 P.3d at 1186-87 (citations

omitted, brackets in original).

Here, Bautista raised the State's violation of HRS

§ 801-1 for the first time on appeal in his supplemental brief.

Thus, as the supreme court explained, we presume the complaint

is valid. See generally, 151 Hawai‘i at 478 n.11, 517 P.3d at

761 n.11. Bautista made no showing that the complaint

prejudiced him. And, as discussed above, the complaint alleged

recognizable offenses under Hawai‘i law. Absent a showing of

prejudice or that the charges could not be construed as a crime,

we cannot vacate Bautista's judgment of conviction and sentence.

C. No Abuse Of Discretion In Consecutive Sentencing

Finally, Bautista contends that the circuit court

"abused its discretion when it imposed consecutive terms of

imprisonment." (Formatting altered.) Bautista argues that the

"circuit court's justification is unsupported in the record and

is not based on a rational and fair decision." Bautista asserts

that the circuit court ignored Wife's pleas for leniency and

"based its sentence on the speculative possibility that [Wife]

could have died and that she had been strangled[,]" and in so

doing, relied on an uncharged crime.

HRS § 706-606 (2014) delineates the factors the

circuit court must consider in imposing a sentence:

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(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.

(Formatting altered.)

"A sentencing judge generally has broad discretion in

imposing a sentence." State v. Barrios, 139 Hawai‘i 321, 328,

389 P.3d 916, 923 (2016) (citation omitted). "Further, '[t]he

weight to be given the factors set forth in HRS § 706–606 in

imposing sentence is a matter generally left to the discretion

of the sentencing court, taking into consideration the

circumstances of each case.'" Id. (citations omitted).

"[A] sentencing court is additionally required to

explain on the record its reasoning based on the HRS § 706–

606 factors to ensure that its 'decision to impose consecutive

sentences was deliberate, rational, and fair.'" 139 Hawai‘i at

335, 389 P.3d at 930 (quoting State v. Hussein, 122 Hawai‘i 495,

510, 229 P.3d 313, 328 (2010)). However, "the sentencing court

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is not required to articulate and explain its conclusions with

respect to every factor listed in HRS § 706-606, but rather must

articulate its reasoning only with respect to those factors it

relies on in imposing consecutive sentences." See Barrios, 139

Hawai‘i at 336, 389 P.3d at 931 (cleaned up).

Here, the circuit court considered the nature and

circumstances of the offense. The circuit court stated that

"there was no part of your wife's body that was not untouched."

The circuit court recognized that "the doctor at the hospital

did confirm the extent of her injuries with the facial bruising,

the collapsed lung, which could have caused death, [and]

fracture to not one rib but three different ribs . . . ."

The circuit court noted concern for Bautista's six-

year-old son, and further noted that it thought "the only reason

you stopped was perhaps because your father was pounding on the

front door . . . and this gave an opportunity for your wife to

get out of the house with the six-year-old, your son . . . ."

The circuit court also considered the possible

sentences available. The circuit court explained that it "had

an opportunity today to review the options of sentencing" and

could possibly give probation or concurrent sentences. The

court confirmed that it heard the arguments and Bautista's

statement, read the letters submitted by his family and Wife,

and considered that Bautista had no previous record.

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The circuit court then went on to consider the need

for the sentence imposed. The circuit court stated that "this

is a very severe case. . . . [Y]our adult daughter talks about

how you folks would argue almost every night, and it was so bad

that she didn't even want to live at home at one point." The

circuit court explained that Wife "needs to be protected. Your

son needs to be protected. The community needs to be protected

from his kind of behavior."

Turning to Bautista's assertion that the circuit court

relied on uncharged crimes of attempted murder and felony abuse

by strangulation, we must consider the circuit court's

statements in context. The circuit court stated, "[s]o these

offenses are so serious you could have killed your wife. She

had a collapsed lung, and you broke at least three of her ribs,

not to mention all the bruising from head to toe." The circuit

court also stated,

[s]o if something so silly as accusing her of an affair can
set you off to the point where you break her ribs, strangle
her, and knock her to the ground, threaten to kill her -- I
think she did say at one point, on a scale of one to ten,
she rated her fear as a ten.

These statements reflect the seriousness of Bautista's conduct

and the need "to protect the public," which are permissible

considerations when imposing consecutive sentencing.

Based on the record before us, we cannot say that the

circuit court's sentence was arbitrary or capricious, or that

the circuit court refused to consider Bautista's contentions.

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

See Barrios, 139 Hawai‘i at 328, 389 P.3d at 923. Nor can we say

that the circuit court "clearly exceeded the bounds of reason or

disregarded rules or principles of law or practice." Id.

IV. Conclusion

For the foregoing reasons, we affirm the circuit

court's March 10, 2021 Judgment; Conviction and Sentence; Notice

of Entry.

DATED: Honolulu, Hawai‘i, February 28, 2023.

On the briefs: /s/ Katherine G. Leonard
Presiding Judge
Benjamin E. Lowenthal,
Deputy Public Defender, /s/ Clyde J. Wadsworth
for Defendant-Appellant. Associate Judge

Gerald K. Enriques, /s/ Sonja M.P. McCullen
Deputy Prosecuting Attorney, Associate Judge
County of Maui,
for Plaintiff-Appellee.

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