State v. Torres.

FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
08-APR-2021
07:59 AM
Dkt. 59 OP

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

---o0o---

STATE OF HAWAI#I, Plaintiff-Appellee, v.
RICHARD JOSE TORRES, Defendant-Appellant

NO. CAAP-XX-XXXXXXX

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CRIMINAL NO. 1CPC-XX-XXXXXXX)

APRIL 8, 2021

LEONARD, PRESIDING JUDGE, HIRAOKA AND WADSWORTH, JJ.

OPINION OF THE COURT BY LEONARD, J.

This appeal arises out of a defendant's pretrial

detention and commitment to the custody of the Director of the

State of Hawai#i (State) Department of Health (Director of

Health). As discussed herein, we hold that pursuant to the

applicable statute, a criminal defendant who has been ordered to

be detained pretrial in the custody of the Director of Health, in
FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

an institution for detention, assessment, care, and treatment,

shall receive credit for the time of detention in such

institution, as well as receive any other statutory credit due

for time served in a correctional institution.

Defendant-Appellant Richard Jose Torres (Torres)

appeals from the May 27, 2020 Judgment of Conviction and Sentence

as to Count 1 (Judgment), and challenges the July 9, 2020

Findings of Fact [(FOFs)] and Conclusions of Law [(COLs)] and

Order Denying Defendant's Motion for Correction of Illegal

Sentence, for Reduction of Sentence, for a New Trial, or

Alternatively, to Dismiss Felony Information as De Minimis (Order

Denying Relief) entered against him by the Circuit Court of the

First Circuit (Circuit Court).1

I. BACKGROUND

On January 10, 2018, Defendant-Appellant Torres was

arrested at Kûhiô Beach Park in the City and County of Honolulu

on suspicion of Promoting a Dangerous Drug in the Third Degree

and Park Closure. Torres was held for two days and then released

pending investigation by the Honolulu Police Department.

On September 25, 2018, the State filed a Felony

Information and Non-Felony Complaint (Complaint) charging Torres

with Promoting a Dangerous Drug in the Third Degree, in violation

of Hawaii Revised Statutes (HRS) § 712-1243 (2014), and Park

1
The Honorable Paul B.K. Wong presided.

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Closure, in violation of Revised Ordinances of Honolulu

§ 10-1.2(a)(12) (2017). Upon a finding of probable cause and

issuance of a bench warrant, Torres was arrested on September 27,

2018. Bail was set at $11,000 and Torres never posted bail.

On January 3, 2019, while Torres was detained and

awaiting trial at the Oahu Community Correctional Center (OCCC),

on motion of defense counsel, the Circuit Court ordered an

examination of Torres's fitness to proceed to trial. On March

18, 2019, the Circuit Court found Torres unfit to proceed and

suspended these criminal proceedings until further court order.

The Judicial Determination of Unfitness to Proceed, Suspension of

Proceedings and Order of Commitment to the Custody of the

Director of Health (Unfitness Order), states, inter alia:

A. The proceedings against [Torres] are suspended
until further order of the Court.

B. During suspension of the proceedings:

1) [Torres] is committed to the custody of
the Director of Health to be placed at the Hawaii State
Hospital or an appropriate institution for detention, care,
and treatment for so long as such unfitness shall endure.

2) [Torres's] commitment shall take effect
upon the filing of this Order.

3) The person having present custody of
[Torres], or if [Torres] is not in custody, then counsel for
[Torres], shall forthwith make arrangements for such
commitment. . . .

. . . .

C. [Torres] shall not be authorized to leave the
institution in which he is placed without prior Court order.

(Emphasis added).

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Following a series of fitness hearings and submissions

by the court-appointed examiners, on December 11, 2019, the

Circuit Court found Torres fit to proceed to trial and entered a

Judicial Determination of Fitness to Proceed and Order (Fitness

Order). In the Fitness Order, the court confirmed Torres's

pretrial status of incarceration at OCCC with bail set at

$11,000.

A bench trial was conducted on February 20, 2020. The

Circuit Court found Torres guilty of Promoting a Dangerous Drug

in the Third Degree and not guilty of Park Closure. The court

entered a Judgment of Acquittal as to the Park Closure charge and

requested a pre-sentencing investigation and report (PSI), which

was submitted on May 14, 2020.

At sentencing on May 27, 2020, the Circuit Court heard

arguments from the prosecution, defense, and Torres himself. In

response to the court's inquiry as to whether the defense had any

"additions or corrections" to the PSI, counsel raised the issue

of pretrial credit for time served, noting deficient and/or a

lack of certifications as to Torres's time in the custody of the

Director of Health, as well as Torres's time detained at OCCC

between his arrest and commitment to the Director of Health. The

Circuit Court engaged in the following discussion with defense

counsel regarding the period for which Torres was to receive

credit for time served:

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THE COURT: . . . Mr. Torres was held in custody from
that September 27, 2018 date.

MR. BETTENCOURT: Right.

THE COURT: Bail was set. He obviously was not able
to post bail.

He came in for arraignment on this case on October
4th, 2018. He came into arraignment for both cases at this
time and remained in custody with the Department of Public
Safety until March 18, 2019, at which point the Circuit
Court found Mr. Torres unfit to proceed and committed him to
the custody of the Director of the Department of Health.
And as Mr. Torres indicated, he eventually found himself in
Kahi Mohala.

THE DEFENDANT: Right.

THE COURT: He remained in the custody of the
Department of Health all the way up until December 11th of
2019, when he was found fit to proceed. The cases were
reinstated and he was transferred back into the custody of
the Department of Public Safety.

So Mr. Torres should have received credit from
September 27, 2018 when the bench warrant was served up
until March 18th, 2019 when he was found unfit to proceed.
He should have also began receiving credit when the case was
reinstated on December 11th, 2019, when the case was reset
for trial, all the way up until today. That should be the
proper accounting of credit for Mr. Torres.

. . . .

MR. BETTENCOURT: Well, we object on constitutional
grounds. There's no excuse for excluding the time in which
he was in custody. If he had walked away from Kahi Mohala,
he could have been charged with escape, because he was in
custody.

. . . .

MR: BETTENCOURT: Because if he's in custody for
purposes of escape, he's in purpose -- in custody for
purposes of being in -- confined.

THE COURT: Well, at minimum the dates that the court
has indicated should be calculated for credit.

MR BETTENCOURT: Right.

THE COURT: Subject to any additional finding that the
time that he was in the custody of the Department of Health
may also be included as credit. I'll leave that for smarter
judges to decide. But at the very minimum, by this court's
calculation, Mr. Torres should have at least on the order of
11 to 12 months of credit.

. . . .

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THE COURT: . . . and as Mr. Bettencourt indicated,
depending on the constitutional analysis for the time with
Department of Health, that might even be increased. But at
a very minimum, those are the numbers --

MR. BETTENCOURT: I don't know of any statutory
provision that excludes that time.

THE COURT: I suppose it would be the definition of
custody, right?

But other than the dispute on the actual amount of of
credit, Mr. Bettencourt.

MR. BETTENCOURT: Yeah.

(Emphasis added).

The Circuit Court sentenced Torres to serve an

indeterminate term of three years imprisonment with credit for

time served, referencing "the minimum of which the court has

already outlined at the beginning of this sentencing hearing."2

The following exchange ensued:
THE DEFENDANT: . . . you're gonna give me for 20
months' credit already.

THE COURT: You will get at least the 11 to 12 months.

THE DEFENDANT: What? How come you're not gonna give
-- credit me for the time in Kahi Mohala.

THE COURT: I don't know if the statute allows that.
If the statute allows and you're eligible for that credit,
you will get it. I just don't know -- I'm not saying that
you don't get it.

THE DEFENDANT: Yeah.

THE COURT: I just don't know if you get that credit.

THE DEFENDANT: When do you think I'm gonna find out?

2
The court also ordered Torres to pay a $500 fine and $105 Crime
Victim Compensation (CVC) fee. Although Torres does not challenge the CVC fee
on appeal, it appears that the court plainly erred in imposing the fee despite
its finding that "[a]ll other fees and costs are waived for inability to pay."
See State v. Pulgados, 148 Hawai#i 361, 370, 477 P.3d 155, 164 (App. 2020)
("If it is determined that the defendant is unable to pay the CVC fee, then
the sentencing court must waive the imposition of the CVC fee as stated in HRS
§ 351-62(a), as well as HRS § 706-605(6).").

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MR. BETTENCOURT: We may have to file a motion on that
and raise it that way.

THE COURT: But for all the time that you were in at
O.C.C.C., you get credit. There's no doubt about that in my
mind.

THE DEFENDANT: Uh-huh.

THE COURT: I'm not sure about the time in Kahi
Mohala.
. . . .
THE DEFENDANT: . . . So I still might have about --
about a year and a half more to go.

THE COURT: Something like -- it might -- it depends
on what the Parole Board sets.

THE DEFENDANT: Yeah, but, you know, I -- yeah, I did
the nine months. I did all the programs there.

THE COURT: Well, they may have you do it again. And
I don't know exactly what the Paroling Board is gonna
require.

(Emphasis added).

The Judgment reflects the three-year term and that

Torres was "to receive credit for time served," but it does not

specify whether that credit was to include Torres's commitment to

the custody of the Director of Health.

On June 15, 2020, pursuant to Hawai#i Rules of Penal

Procedure (HRPP) Rule 35(a), Torres filed a Motion for Correction

of Illegal Sentence, for Reduction of Sentence, for a New Trial,

or Alternatively, to Dismiss Felony Information as De Minimis

(HRPP Rule 35 Motion), arguing, inter alia, that the court failed

to properly apply the statutes governing credit for time served.

The HRPP Rule 35 Motion requested, inter alia:

1. An Order of Resentencing, after requiring the
Department of Public Safety to comply with H.R.S.
§ 706-671(1) by providing this Court with a
documentation of all of time that Defendant TORRES was

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detained prior to sentencing in a "State or local
correctional or other institution" prior to
sentencing;

2. An Order of Resentencing pursuant to H.R.P.P. Rule
35(a), after performing its judicial function of
interpreting and applying the statutory provisions of
H.R.S. § 706-671(1) as statutorily including the
Hawai#i State Hospital and Kahi Mohala under the
phrase "State or local correctional or other
institution", and such legal application is both
required and authorized by this Court's inherent
judicial power that cannot be delegated to any
executive agency[.]

Torres argued that "the complete absence of any statute

or legislative history authorizing a limitation of the expansive

and differential language requires this Court to grant the

presentence credit sought, despite the failure of the Director

[of] DPS to perform his statutory duty." Torres maintained that

his sentence was "statutorily and constitutionally deficient due

to the failure of [the Circuit Court] to interpret and effectuate

the legislative intent behind [HRS §§] 704-406 and 706-671."

On June 23, 2020, the court heard arguments on the HRPP

Rule 35 Motion and determined that time spent in the custody of

the Director of Health is ineligible for credit. The Order

Denying Relief, entered on July 9, 2020, includes the following

COLs concerning Torres's pretrial detention credit:
2. Under [HRS] § 706-671(1), the phrase "When a Defendant
who is sentenced to imprisonment has previously been
detained in any State or local correctional or other
institution...." does not include an institution under
the authority of the Director of Health. Therefore, a
Defendant should not receive credit for time served
while in the Custody of the Director of Health.

3. The commentary to HRS § 706-671 clearly specifies that
time spent in incarceration before sentence be
credited; as previously mentioned, incarceration does
not include time spent with the Director of Health.

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4. As a result, the interpretation of the term
incarceration is also at issue.

5. The supplemental commentary is even clearer stating
that a convicted person shall receive credit for any
time served in any state or local correctional
facility. Here, given the language of the statute and
the commentary, it is this Court's interpretation that
any time spent with the Director of Health is not
included as time in a local correctional facility.
See HRS § 706-671 cmt.

Torres timely filed a notice of appeal.

II. POINTS OF ERROR

Torres raises two points of error on appeal, contending

that: (1) the Circuit Court failed to properly construe the

statutory language concerning pretrial detention credit, and

imposed non-statutory constraints on the provisions of HRS § 706-

671(1) that conflict with the remedial intent of the Hawai#i

Penal Code and violates Torres's constitutional rights to due

process, equal protection, and freedom from double punishment;

and (2) there is no evidence in the record to support the Circuit

Court's FOFs and/or COLs that Torres's involuntary detention by

the Director of Health pursuant to the Unfitness Order, at the

secured facilities of Kahi Mohala, was not substantially the same

custody as pretrial detention in the custody of the Department of

Public Safety (DPS).

III. APPLICABLE STANDARD OF REVIEW

The Circuit Court's COLs, including with regard to

questions of statutory interpretation and constitutional law, are

reviewed de novo, under the right/wrong standard. See Haw. Nat'l

Bank v. Cook, 100 Hawai#i 2, 7, 58 P.3d 60, 65 (2002); State v.

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Rauch, 94 Hawai#i 315, 323, 13 P.3d 324, 332 (2000). "[T]he

right/wrong standard . . . allows the appellate court to examine

the facts and answer the question without being required to give

any weight to the trial court's answer to it." State v. Russo,

141 Hawai#i 181, 189, 407 P.3d 137, 145 (2017) (citation and

internal quotation marks omitted). "A conclusion of law that is

supported by the trial court's findings of fact and that reflects

an application of the correct rule of law will not be

overturned." Dan v. State, 76 Hawai#i 423, 428, 879 P.2d 528,

533 (1994) (citation and internal quotation marks omitted).

IV. DISCUSSION

Torres contends, and the State agrees, that the Circuit

Court erred in (1) failing to give Torres credit for the time he

was detained in the custody of the Director of Health, and (2)

failing to obtain a complete certification of the length of

Torres's detention(s), prior to sentence, from the officer(s)

that had custody of Torres.

HRS § 706-671(1) (2014) provides, in relevant part:

§ 706-671 Credit for time of detention to sentence;
credit for imprisonment under earlier sentence for same
crime. (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

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be annexed to the official records of the defendant's
commitment.

(Emphasis added).

HRS § 704-406 (Supp. 2019) provides, in relevant part:

§ 704-406 Effect of finding of unfitness to proceed
and regained fitness to proceed. (1) If the court
determines that the defendant lacks fitness to proceed, the
proceeding against the defendant shall be suspended . . .
and the court shall commit the defendant to the custody of
the director of health to be placed in an appropriate
institution for detention, assessment, care, and
treatment[.]

(Emphasis added).

"When construing a statute, our foremost obligation is

to ascertain and give effect to the intention of the legislature,

which is to be obtained primarily from the language from the

statute itself." State v. Camara, 81 Hawai#i 324, 329, 916 P.2d

1225, 1230 (1996).
Where there is no ambiguity in the language of a statute,
and the literal application of the language would not
produce an absurd or unjust result, clearly inconsistent
with the purposes and policies of the statute, there is no
room for judicial construction and interpretation, and the
statute must be given effect according to its plain and
obvious meaning.

Tax Found. of Haw. v. State, 144 Hawai#i 175, 203, 439 P.3d 127,

155 (2019) (citation and brackets omitted).

Here, the plain language of HRS § 706-671(1) is

unambiguous. When this statute refers to being detained in any

state or local "correctional or other institution," it is plainly

not limited to correctional institutions. (Emphasis added). The

directive of HRS § 704-406 is equally clear in that, upon a

determination of unfitness to proceed, a trial court shall, inter

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alia, commit a defendant to the custody of the Director of Health

to be placed in "an appropriate institution for detention,

assessment, care, and treatment." (Emphasis added).3

"'It is a cardinal rule of statutory construction that

courts are bound, if rational and practicable, to give effect to

all parts of a statute, and that no clause, sentence, or word

shall be construed as superfluous, void, or insignificant if a

construction can be legitimately found which will give force to

and preserve all the words of the statute.'" Cty. of Kaua#i v.

Hanalei River Holdings Ltd., 139 Hawai#i 511, 526, 394 P.3d 741,

756 (2017) (quoting Camara v. Agslud, 67 Haw. 212, 215-16, 685

P.2d 794, 797 (1984)). Although courts may look to a statute's

commentaries as interpretive aids, we may not use them to

supplant clear statutory language and introduce ambiguity where

none clearly appears. See State v. Maelega, 80 Hawai#i 172, 178-

79, 907 P.2d 758, 764-65 (1995).

Here, the Circuit Court relied on the Commentary to HRS

§ 706-671 to limit the statute's application to a defendant's

time detained in a correctional facility, disregarding the

3
The terms "detained" or "detention" are equally unambiguous.
Black's Law Dictionary defines "detention" as "[t]he act or an instance of
holding a person in custody; confinement or compulsory delay." Black's Law
Dictionary 563 (11th ed. 2019). It is clear that an order of commitment
pursuant to HRS § 704-406 includes custodial detention and that the committed
defendant is not free to leave the subject institution. Indeed, here, the
Circuit Court's Unfitness Order included that Torres "shall not be authorized
to leave the institution in which he is placed without prior Court order."

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statute's distinct reference to "other" institutions.4 This is

clearly wrong.

Accordingly, we hold that pursuant to HRS § 706-671(1),

a criminal defendant who has been detained pretrial in the

custody of the Director of Health, in an institution for

detention, assessment, care, and treatment pursuant to HRS § 704-

406, shall receive credit for the time of detention in such

institution, as well as receive any credit due under HRS § 706-

671(1) for time served in a correctional institution. In this

case, the Circuit Court erred in concluding, in the Order Denying

Relief, that Torres shall not receive credit for time he was

detained in the custody of the Director of Health pursuant to the

Unfitness Order.

In addition, with respect to the process for

determination of credit for time served, HRS § 706-671(1)

requires that:

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

4
While the Commentary relied on by the Circuit Court speaks in
terms of "time spent in incarceration before sentence," it does so in order to
point out that the statute is intended to provide "some equalization" between
defendants who obtain pre-sentence release and those who do not. HRS § 706-
671 cmt. (2014). It does not address the issue at bar.

Similarly, the guidance provided by the Supplemental Commentary
relied on by the Circuit Court is that (a) the statutory credit applies to
both minimum and maximum terms, and (b) the 2012 amendment to the statute was
intended to clarify that a defendant is not entitled to credit for time served
for a subsequent crime. HRS § 706-671 supp. cmt. (2014). Although the
Supplemental Commentary uses the (incomplete) phrase "in any state or local
correctional facility" in stating the guidance concerning minimum and maximum
terms, it does so while addressing a different issue than the one at bar and
not as guidance on whether the statute should be interpreted as limiting its
application to detention in correctional facilities. See id.

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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.

(Emphasis added).

Here, it does not appear that either DPS or the

Director of Health provided this mandatory certification to the

Circuit Court at or prior to sentencing. In addition, in State

v. Mason, 79 Hawai#i 175, 184, 900 P.2d 172, 181 (App. 1995),

this court held that "it is the duty of the sentencing court to

determine the amount of credit to be awarded the defendant when

presented with a claim for uncredited time." Therefore, on

remand, both DPS and the Director of Health must comply with HRS

§ 706-671(1) forthwith, and provide the Circuit Court with a

certificate showing the length of Torres's detention, prior to

the sentence imposed in this case for his conviction of Promoting

a Dangerous Drug in the Third Degree, in their respective "State

or local correctional or other institution[s]" in which Torres

was detained. Thereafter, the Circuit Court shall determine the

amount of credit to be awarded Torres in conjunction with an

amended judgment of conviction and sentence as to Count 1 (or

other order of resentencing).5

In light of the above, we need not address Torres's

other arguments.

5
In addition, in the interests of justice and efficiency, the
Circuit Court may reconsider its ruling that Torres must pay a CVC fee of $105
notwithstanding its determination that Torres is unable to pay other fees and
making no determination that Torres is or will be able to pay the CVC fee.
See supra n.2.

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V. CONCLUSION

For these reasons, we vacate in part the May 27, 2020

Judgment, with respect to sentencing only, and vacate the July 9,

2020 Order Denying Relief. This case is remanded to the Circuit

Court for resentencing in accordance with this Opinion.

On the briefs:
/s/ Katherine G. Leonard
David Glenn Bettencourt, Presiding Judge
for Defendant-Appellant.
/s/ Keith K. Hiraoka
Brian R. Vincent, Associate Judge
Deputy Prosecuting Attorney,
City and County of Honolulu, /s/ Clyde J. Wadsworth
for Plaintiff-Appellee. Associate Judge

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