State v. Kaluna

NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
15-FEB-2024
07:49 AM
Dkt. 49 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI‘I

STATE OF HAWAI‘I, Plaintiff-Appellee,
v.
DUTCHIE L. KALUNA, Defendant-Appellant,
and
ALIKA A. AGUSTIN, Defendant-Appellee

APPEAL FROM THE CIRCUIT COURT OF THE THIRD CIRCUIT
(CASE NO. 3CPC-XX-XXXXXXX)

SUMMARY DISPOSITION ORDER
(By: Hiraoka, Presiding Judge, Nakasone and Guidry, JJ.)

Defendant-Appellant Dutchie L. Kaluna (Kaluna) appeals
from the February 1, 2023 Judgment of Conviction and Sentence
entered by the Circuit Court of the Third Circuit (Circuit
Court).1 In accordance with a plea agreement with Plaintiff-
Appellee State of Hawai‘i (State), Kaluna and a co-defendant each

1 The Honorable Robert D.S. Kim presided.
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pled no contest to Kidnapping in violation of Hawaii Revised
Statutes (HRS) § 707-720(1)(e).2 Following a February 1, 2023
sentencing hearing, Kaluna was sentenced to a ten-year term of
imprisonment for Kidnapping, to run consecutive to the sentences
imposed in 1CPC-XX-XXXXXXX, 1CPC-XX-XXXXXXX, 1CPC-XX-XXXXXXX,
1CPC-XX-XXXXXXX, 1CPC-XX-XXXXXXX, and 1CPC-XX-XXXXXXX.3
On appeal, Kaluna challenges the imposition of
consecutive sentencing, contending that the Circuit Court
improperly "infer[red] a lack of remorse" by Kaluna, who "ha[d]
pled no contest to an offense and ha[d] not spoken about the
offense conduct [sic] to either the presentence investigator or
the court, and use[d] this as a negative factor for
sentencing[.]" Kaluna argues that the Circuit Court sentenced
Kaluna to the "harsher" consecutive sentence and "commented
twice that [Kaluna]'s lack of remorse was a factor in this
sentencing decision."

2 The underlying case arose out of a December 7, 2013 sexual
assault allegation. Along with a co-defendant, Kaluna was charged with three
counts of Sexual Assault in the First Degree, one count of Attempted Sexual
Assault in the First Degree, one count of Sexual Assault in the Third Degree,
and one count of Kidnapping. The record reflects that a jury-waived trial
was commenced on September 6, 2022 but not completed, and the parties entered
into a plea agreement on September 7, 2022. Pursuant to the plea agreement,
the sexual assault counts in the Indictment were "removed" from a "Complaint
Superseding Indictment" filed September 7, 2022, which only contained a
single Kidnapping charge.
3 The Presentence Investigation Report (PSI Report) reflects that
at the time of the February 1, 2023 sentencing hearing, Kaluna was serving
concurrent terms of imprisonment for numerous felony offenses in six
different criminal cases: 1CPC-XX-XXXXXXX, 1CPC-XX-XXXXXXX, 1CPC-XX-XXXXXXX,
1CPC-XX-XXXXXXX, 1CPC-XX-XXXXXXX, 1CPC-XX-XXXXXXX. These offenses included
Fraudulent Use of a Credit Card, Theft in the First Degree, Unauthorized
Possession of Confidential Personal Information (two counts), Identity Theft
in the Third Degree (two counts), Attempted Theft in the Third Degree,
Habitual Property Crime, Burglary in the First Degree, Unauthorized Entry
Into a Motor Vehicle in the First Degree, Unauthorized Control of a Propelled
Vehicle, and Criminal Property Damage in the First, Second (three counts),
and Third Degrees (two counts).
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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, we resolve
Kaluna's point of error as follows, and affirm.
We review a sentencing court's imposition of sentence
for an abuse of discretion. See State v. Hussein, 122 Hawai‘i
495, 503, 229 P.3d 313, 321 (2010). A sentencing court has
discretion to impose consecutive prison sentences. HRS
§ 706-668.5(1); State v. Kong, 131 Hawai‘i 94, 101, 315 P.3d 720,
727 (2013).
At sentencing, the Circuit Court indicated that it had
reviewed the PSI Report and the records and files of this case.
The State argued for a consecutive ten-year prison term for this
Kidnapping offense. Kaluna's counsel requested that the
sentence run concurrent with Kaluna's current terms of
imprisonment, disagreeing with the State's claim that a
concurrent sentence "would amount to no punishment." Kaluna
addressed the Circuit Court, stating that he had "been
incarcerated for the last three years [and] three months"; that
"[he had] been in there long enough to realize that [he did not]
wanna [sic] be in there any longer"; and that he was "totally
over all that crime . . . over the drugs."
The Circuit Court explained its reasoning as follows:
What strikes me the most is none of these gentlemen
care about the victim. They talked about themselves. They
talked about their families. It's like it never happened.
It happened.

You pled no contest to Kidnapping. I was here. I
read everything. I read the DNA. I read all the reports.
And yes, there's discrepancies. I agree with that, and
perhaps the better course of valor was to plead to the
Kidnapping. You don't have to register as a sexual
offender, and who knows what would have happened. I was
gonna [sic] make the decision. I didn't hear all the
evidence. Right?

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So sometimes in life when you do something you gotta
[sic] pay for it. Sometimes when you cause a person to be
harmed, not necessarily physically but psychologically for
the rest of their lives, you gotta [sic] pay for it.

I saw the victim. I never talked to her, just heard
testimony. I read the reports. . . .

. . . .

[(The Circuit Court first sentences the co-defendant,
then addresses Kaluna's sentence.)]

The Court also finds no remorse or acknowledgment of
the effect of any wrongful actions or any possible harm to
the defendant--to the victim.

The Court finds that he is currently under a term of
imprisonment. Under 706-668(5), multiple sentence of
imprisonment,

"If multiple terms of imprisonment are imposed
on a defendant, or if a term of imprisonment is
imposed upon a defendant who is already subject to an
unexpired term of imprisonment, the terms of--the
terms may run concurrently or consecutively."

I find in this case that Mr. Kaluna is currently
imprisoned on an unexpired term of imprisonment. He
currently is I believe imprisoned on 1CPC-20-1376, 1CPC-20-
1300, 1CPC-20-1130, 1CPC-20-567, 1CPC-19-1727, 1CPC-19-
1664.

In determining the factors for imposing consecutive
sentencing the Court must consider whether the terms
imposed are ordered to be run concurrently or consecutively
and must consider the factors set forth in Section 706-606.

(Emphases added.) The Circuit Court applied HRS § 706-668.54
because Kaluna was already serving terms of imprisonment, and

4 HRS § 706-668.5 (2014), entitled "Multiple sentence of
imprisonment," provides:

(1) If multiple terms of imprisonment are imposed on a
defendant, whether at the same time or at different times,
or if a term of imprisonment is imposed on a defendant who
is already subject to an unexpired term of imprisonment,
the terms may run concurrently or consecutively. . . .

(2) The court, in determining whether the terms imposed are to
be ordered to run concurrently or consecutively, shall
consider the factors set forth in section 706-606.
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HRS § 706-668.5 requires the sentencing court to consider the
HRS § 706-6065 sentencing factors in determining whether to order
concurrent or consecutive sentencing. The Circuit Court then
applied the HRS § 706-606 factors as follows:
In this particular case the circumstances of the
offense are egregious and serve no purpose and also were
harmful to the victim. That the history involving Mr.
Kaluna currently on unexpired terms of prison indicate the
characteristics involving this defendant.

The Court considers the need for the sentence to be
imposed, and the Court finds that this is proper to protect
the public from harm, threatened harm or any activities.

Because [sic] the nature of the charges and the pleas
the Court must reflect the seriousness of the offense to
the defendant for -- to promote the respect of law and to
provide just punishment for the offense. The Court finds
that the seriousness of the offense must be taken into

(Emphasis added.)
5 HRS § 706-606 (2014) requires a sentencing court to consider the
following "[f]actors to be considered in imposing a sentence":

(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.

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consideration in determining whether it should be
consecutive or concurrent.

The Court also considers the adequate deterrence to
criminal conduct. Although this took place many years ago
there's no indication from his current history that he
intends to change. I give him credit for not -- not having
write-ups, but I find that to be de minimus.

The Court also must consider [sic] to protect the
public from further crimes of the defendant. I think the
record speak [sic] for itself that he is a career
individual who has so many cases that it's difficult to
keep track of them.

The Court also needs to provide the defendant -- the
Court also needs to consider and avoid unwarranted sentence
disparities among defendants with similar records who have
been found guilty of similar conduct.

Court finds that based on the following factors, the
Court having considered all of them, Court will issue the
following judgment.

. . . .

Defendant is committed to the custody of the
Department of Public Safety for incarceration for an
indeterminate period of 10 years with credit for any and
all jail time served. Said terms of incarceration shall
run consecutive to the sentences imposed in 1CPC-20-1376,
1CPC-20-1130, 1CPC-20-567, 1CPC-19-1727, 1CPC-19-1664 and
1CPC-18-1065. Mittimus forthwith.

A sentencing court may consider a defendant's lack of
remorse. See HRS § 706-606(1) (consideration of defendant's
characteristics). "[W]hile lack of remorse legitimately may be
considered as a factor in sentencing, a court may never cross
the line into attempting 'to compel an admission of guilt or
punish the defendant for maintaining his innocence.'" State v.
Nakamitsu, 140 Hawai‘i 157, 166, 398 P.3d 746, 755 (2017)
(quoting State v. Kamana‘o, 103 Hawai‘i 315, 321, 82 P.3d 401,
407 (2003)).
Kaluna argues that a "no contest plea is not an
indication of lack of remorse"; and that the Circuit Court
"abused [its] discretion by inferring [a lack of] remorse" from
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his "failure to state an apology and take responsibility for the
alleged crimes in his allocution statement"; and "[i]n taking
remorse into account and allowing it to play the primary role in
the final sentencing decision . . . ."
Here, the Circuit Court's observation that Kaluna
lacked remorse for the psychological harm to the victim of the
Kidnapping was a "characteristic[ ] of the defendant" that could
properly be considered. HRS § 706-606(1). The record does not
support Kaluna's claim that the lack of remorse was "the
primary" factor in the Circuit Court's sentencing decision,
where the Circuit Court made multiple references to the "career"
nature of Kaluna's numerous criminal cases that he was already
imprisoned for. Nor did the Circuit Court run afoul of
Nakamitsu by attempting to compel an admission of guilt or
punish Kaluna for pleading no contest. See Nakamitsu, 140
Hawai‘i at 166, 398 P.3d at 755.
Relying on State v. Satoafaiga, 150 Hawai‘i 406, 504
P.3d 324 (2022),6 Kaluna argues that "the sentencing court
committed an error in [sic] respect to the factors it
considered" and "the sentencing judge gave [weight] to [an]
improperly applied factor." Kaluna does not provide further
explanation of his Satoafaiga-based argument. See Hawai‘i Rules
of Appellate Procedure Rule 28(b)(7) ("Points not argued may be
deemed waived."). Assuming arguendo it is not waived,
Satoafaiga does not apply. The record does not reflect the
Circuit Court improperly considered the multiple sexual assault
charges with which Kaluna had been charged, rather than the

6 In Satoafaiga, the supreme court held it was improper for the
circuit court to consider a sexual penetration allegation where the sexual
assault charge the defendant pled no contest to did not include sexual
penetration. 150 Hawai‘i at 418-19, 504 P.3d at 336-37.
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single Kidnapping offense for which he was convicted. The
Circuit Court referred to the need for Kaluna to be accountable
for causing "a person to be harmed not necessarily physically
but psychologically," and did not refer to the harm as both
physical and psychological in nature, as would be expected for
sexual assault offenses. (Emphasis added.) The Circuit Court
found that "the circumstances of the offense are egregious,"
referring to the subject offense in the singular, rather than
using the plural "offenses." (Emphasis added.) Thus, the
record is consistent with the Circuit Court properly confining
its consideration to a single Kidnapping conviction and not
multiple counts of sexual assault, and we find no abuse of
discretion. See Hussein, 122 Hawai‘i at 503, 229 P.3d at 321.
For the foregoing reasons, the February 1, 2023
Judgment of Conviction and Sentence by the Circuit Court of the
Third Circuit, is affirmed.
DATED: Honolulu, Hawai‘i, February 15, 2024.
On the briefs:
/s/ Keith K. Hiraoka
Andrew M. Kennedy,
Presiding Judge
for Defendant-Appellant.
/s/ Karen T. Nakasone
Stephen L. Frye,
Associate Judge
Deputy Prosecuting Attorney,
County of Hawai‘i /s/ Kimberly T. Guidry
for Plaintiff-Appellee. Associate Judge

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