State v. Lavoie

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
15-AUG-2024
08:01 AM
Dkt. 96 SO

CAAP-XX-XXXXXXX

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

STATE OF HAWAI#I, Plaintiff-Appellee, v.
MARLIN L. LAVOIE, Defendant-Appellant

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

SUMMARY DISPOSITION ORDER
(By: Leonard, Acting Chief Judge, Nakasone and Guidry, JJ.)

Defendant-Appellant Marlin L. Lavoie (Lavoie) appeals

from the March 7, 2023 Judgment; Conviction and Sentence; Notice

of Entry (Judgment) entered by the Circuit Court of the Second

Circuit (Circuit Court).1 Under a plea agreement with Plaintiff-

Appellee State of Hawai#i (State), Lavoie pleaded guilty to Count

One - Manslaughter, in violation of Hawaii Revised Statutes (HRS)

§ 707-702(2) (2014);2 Count Two - Carrying or Use of Firearm in

1
The Honorable Peter T. Cahill presided.
2
HRS § 707-702 provided, at the time of the offense:
§ 707-702 Manslaughter. (1) A person commits the
offense of manslaughter if:

(a) The person recklessly causes the death of
(continued...)
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the Commission of a Separate Felony, in violation of HRS § 134-

21(a) (2023);3 and Count Three - Ownership or Possession

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(...continued)
another person; or

(b) The person intentionally causes another person
to commit suicide.
(2) In a prosecution for murder or attempted murder
in the first and second degrees it is an affirmative
defense, which reduces the offense to manslaughter or
attempted manslaughter, that the defendant was, at the time
the defendant caused the death of the other person, under
the influence of extreme mental or emotional disturbance for
which there is a reasonable explanation. The reasonableness
of the explanation shall be determined from the viewpoint of
a reasonable person in the circumstances as the defendant
believed them to be.

(3) Manslaughter is a class A felony.
3
HRS § 134-21 provides:

§ 134-21 Carrying or use of firearm in the commission
of a separate felony; penalty. (a) It shall be unlawful for a
person to knowingly carry on the person or have within the
person's immediate control or intentionally use or threaten
to use a firearm while engaged in the commission of a separate
felony, whether the firearm was loaded or not, and whether
operable or not; provided that a person shall not be prosecuted
under this subsection when the separate felony is:
(1) A felony offense otherwise defined by this
chapter;

(2) The felony offense of reckless endangering in
the first degree under section 707-713;
(3) The felony offense of terroristic threatening in
the first degree under section 707-716(1)(a),
707-716(1)(b), or [707-716(1)(e)]; or

(4) The felony offenses of criminal property damage
in the first degree under section 708-820 or
criminal property damage in the second degree
under section 708-821 and the firearm is the
instrument or means by which the property damage
is caused.

(b) A conviction and sentence under this section shall
be in addition to and not in lieu of any conviction and
sentence for the separate felony; provided that the sentence
imposed under this section may run concurrently or
consecutively with the sentence for the separate felony.

(continued...)

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Prohibited of Any Firearm or Firearm Ammunition (Felon-in-

Possession), in violation of HRS § 134-7(b), (h) (2011).4 The

Circuit Court convicted Lavoie and sentenced him to 20 years

imprisonment in Counts One and Two to run consecutive to each

other and 10 years in Count Three to run concurrently with Counts

One and Two, with credit for time served, and ordered Lavoie to

pay restitution and fees.

Lavoie raises two points of error on appeal, contending

that the Circuit Court erred by: (1) in a separate proceeding
that was dismissed without prejudice for charging defects

(2PC131000236), only granting partial funding for Lavoie to

retain an expert psychologist to provide a dangerousness

assessment at sentencing; and (2) in the Circuit Court case

underlying this appeal (in which Lavoie was re-charged by grand

jury indictment (2CPC-XX-XXXXXXX)), imposing a consecutive

3
(...continued)
(c) Any person violating this section shall be guilty
of a class A felony.
4
HRS § 134-7(b)(1), (h) provided at the time of the offense:
§ 134-7 Ownership or possession prohibited, when;
penalty.

. . . .

(b) No person who is under indictment for, or has
waived indictment for, or has been bound over to the circuit
court for, or has been convicted in this State or elsewhere
of having committed a felony, or any crime of violence, or
an illegal sale of any drug shall own, possess, or control
any firearm or ammunition therefor.
. . . .

(h) Any person violating subsection (a) or (b) shall
be guilty of a class C felony; provided that any felon
violating subsection (b) shall be guilty of a class B
felony. Any person violating subsection (c), (d), (e), (f),
or (g) shall be guilty of a misdemeanor.

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sentence without sufficient supporting rationale, which did not

adequately consider Lavoie's mental health issues, and which was

disproportionate to sentences in other cases.

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 by the parties, we

resolve Lavoie's points of error as follows:

(1) Lavoie argues that because "the parties had agreed

that there was a factual record of an extreme mental or emotional
disturbance surrounding Lavoie's actions to permit a change of

plea [to] manslaughter[,]" and given that Lavoie "had been

incarcerated for 9 years," his "mental or emotional disturbance

is highly relevant to dangerousness," along with consecutive

sentencing and "his ability at rehabilitation." Lavoie further

contends that the Circuit Court's prior ruling "limit[ing]

requested funds to $1000.00" was "law of the case," and "Lavoie

was unable to have needed assistance for his mitigating factors

and sentencing."

The State makes several arguments in response, most

notably that after Lavoie was recharged in 2CPC-XX-XXXXXXX, he

did not renew his request for funds to engage Dr. Acklin to

provide further expert assistance in conjunction with sentencing

in this case.

"As a general rule, if a party does not raise an

argument at trial, that argument will be deemed to have been

waived on appeal; this rule applies in both criminal and civil

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cases." State v. Moses, 102 Hawai#i 449, 456, 77 P.3d 940, 947

(2003); Hawai#i Rules of Appellate Procedure Rule 28(b)(7)

("Points not argued may be deemed waived.").

"A criminal case is formally initiated by an

indictment, complaint, or oral charge. See Hawai#i Rules of

Penal Procedure [(HRCP)] Rule 7(a). When the indictment,

complaint, or oral charge is dismissed, proceedings in the trial

court are terminated." State v. Kalani, 87 Hawai#i 260, 262, 953

P.2d 1358, 1360 (1998). "If the dismissal is without prejudice,
the prosecution is permitted to recharge the defendant later.

However, even if the prosecution is allowed to recharge the

defendant, recharging him/her does not revive the original case.

Rather, recharging the defendant initiates a new case." Id.

(citation omitted); see also State v. Michaeledes, 152 Hawai#i

217, 222, 524 P.3d 1241, 1246 (2023) ("The second charging

document alleging the same three counts initiated a second case,

separate from the first case arising from the first charging

document.").

HRPP "Rule 12(g) creates a limited exception to the

procedure that a dismissal completely terminates the original

case." Deangelo v. Souza, 152 Hawai#i 55, 59, 520 P.3d 253, 257

(2022). "If the court grants a dismissal based on 'a defect in

the institution of the prosecution or in the charge,' the rule

allows the judge to hold the defendant in custody (or continue

bail) while the State re-charges." Id. "In effect, dismissal

paired with a 12(g) grant resets the proceedings to where they

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were before the defective charge or indictment was made. In

[defendant's] case, that means after a preliminary hearing at

which the court found probable cause." Id.

In this case, Lavoie waived any argument on appeal for

funds to retain an expert psychologist for his sentencing.

Lavoie's Motion for Costs was filed in 2PC131000236; any alleged

error in the oral ruling on the Motion for Costs occurred in that

proceeding, which was dismissed without prejudice. No party

filed an appeal from 2PC131000236.
Lavoie's motion to dismiss 2PC131000236 argued that

under State v. Obrero, 151 Hawai#i 472, 517, P.3d 755 (2022),

Lavoie was incorrectly charged by complaint versus grand-jury

indictment. The Circuit Court dismissed 2PC131000236 without

prejudice, and ordered that Lavoie be held in custody without

bail under HRPP Rule 12(g). Lavoie was indicted on October 17,

2022, in 2CPC-XX-XXXXXXX -- the case underlying this appeal – but

this did "not revive the original case" insofar as "recharging

the defendant initiates a new case." See Kalani, 87 Hawai#i at

262, 953 P.2d at 1360.

Thereafter, Lavoie did not file a request for funds to

retain Dr. Acklin or another expert to conduct a dangerousness

assessment for his sentencing. The plea agreement stated that

the parties requested that the August 4, 2022 Presentence Report,

which was originally prepared in the dismissed proceeding

(2PC131000236), be adopted in this case. At the time of his

guilty plea on February 23, 2023, Lavoie and his counsel had

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approximately six months to review the August 4, 2022 Presentence

Report. The August 4, 2022 Presentence Report included the

written reports of the three-panel fitness examiners in Lavoie's

2015 trial (Dr. George C. Choi, Dr. Martin Blinder, and Dr. Tom

Cunningham), along with the defense's 2015 expert reports of Drs.

Acklin and Kohn that Lavoie's counsel submitted to the probation

officers.5 Prior to the sentencing hearing on March 7, 2023,

Lavoie did not seek to "controvert or supplement" the contents of

the August 4, 2022 Presentence Report under HRS § 706-604(2)
(2014).6

In the absence of a request for further funds to engage

an expert in conjunction with sentencing in 2CPC-XX-XXXXXXX, and

based on the entirety of the record before us, we conclude that

Lavoie's argument that relief should be granted in this case

because the Circuit Court erred in limiting the funding for

further expert engagement in 2PC131000236 is without merit.

5
Drs. Kohn, Acklin, and Blinder testified for the defense at
Lavoie's 2015 trial. State v. Lavoie, 145 Hawai #i 409, 416-18, 453 P.3d 229,
236-38.
6
HRS § 706-604(2) provides:
§ Opportunity to be heard with respect to sentence;
notice of pre-sentence report; opportunity to controvert or
or supplement; transmission of report to department.
. . . .
(2) The Court shall furnish to the defendant or the defendant's
counsel and to the prosecuting attorney a copy of the report of any
pre-sentence diagnosis or psychological, psychiatric, or other medical
examination and afford fair opportunity, if the defendant or the
prosecuting attorney so requests, to controvert or supplement them. The
court shall amend or order the amendment of the report upon finding that
any correction, modification, or addition is needed and, where
appropriate, shall require the prompt preparation of an amended report
in which material required to be deleted is completely removed or other
amendments, including additions, are made.

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(2) Lavoie argues that the Circuit Court abused its

discretion in sentencing him because it failed to provide a

sufficient rationale for imposing a consecutive sentence, and it

failed to avoid the sentencing disparities outlined and argued by

defense counsel.

"Multiple terms of imprisonment run concurrently unless

the court orders or the statute mandates that the terms run

consecutively." HRS § 706-668.5(1) (2014 & Supp. 2023).

"Pursuant to HRS § 706-668.5, a sentencing court may use its
discretion to order that a person convicted of more than one

offense serve terms of imprisonment concurrently or

consecutively. That statute requires that the sentencing court

consider the factors set forth in HRS § 706-606 to make this

determination." State v. Sandoval, 149 Hawai#i 221, 236, 487

P.3d 308, 323 (2021) (footnote omitted).

HRS § 706-606 (2014) states:
§ 706-606 Factors to be considered in imposing a
sentence. The court, in determining the particular sentence
to be imposed, shall consider:
(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;

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(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.

"Discretionary use of consecutive sentences is properly

imposed in order to deter future criminal behavior of the

defendant, to insure public safety, and to assure just punishment

for the crimes committed." State v. Tauiliili, 96 Hawai#i 195,

199, 29 P.3d 914, 918 (2001).

"[A] court must state its reasons as to why a

consecutive sentence rather than a concurrent one was required."

State v. Hussein, 122 Hawai#i 495, 509, 229 P.3d 313, 327 (2010).

"[T]he sentencing court is not required to articulate and explain

its conclusions with respect to every factor listed in HRS §

706–606." State v. Kong, 131 Hawai#i 94, 102, 315 P.3d 720, 728

(2013). "[T]he sentencing court is required to articulate its

reasoning only with respect to those factors it relies on in

imposing consecutive sentences." Id.
Such a requirement serves dual purposes. First,
reasons identify the facts or circumstances within the range
of statutory factors that a court considers important in
determining that a consecutive sentence is appropriate. An
express statement, which evinces not merely consideration of
the factors, but recites the specific circumstances that led
the court to impose sentences consecutively in a particular
case, provides a meaningful rationale to the defendant, the
victim, and the public.
Second, reasons provide the conclusions drawn by the
court from consideration of all the facts that pertain to
the statutory factors. It is vital, for example, for the
defendant to be specifically informed that the court has
concluded that he or she is dangerous to the safety of the
public, or poses an unacceptable risk of re-offending, or
that rehabilitation appears unlikely due to his or her lack
of motivation and a failure to demonstrate any interest in
treatment, or that the multiplicity of offenses and victims
and the impact upon the victims' lives warrant imposition of
a consecutive term. Hence, reasons confirm for the
defendant, the victim, the public, and the appellate court,

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that the decision to impose consecutive sentences was
deliberate, rational, and fair.

Hussein, 122 Hawai#i at 509–10, 229 P.3d at 327–28.

"The 'nature and circumstances' of same event, same

victim cases are different from multiple event cases with

multiple victims. Stacking sentences after merely reciting a

case's circumstances is an abuse of discretion." State v.

Bautista, 153 Hawai#i 284, 291, 535 P.3d 1029, 1036 (2023)

(citations omitted). "Courts must give substantial and pointed

reasons to justify a consecutive sentence. Reciting sentencing

factors and offense circumstances may sometimes work for a

concurrent sentencing disposition. However, it does not justify

running a sentence consecutively." Id.

"[A] clearly articulated rationale is necessary when

there is a large disparity between the maximum statutory sentence

for each offense and the aggregate consecutive sentence imposed

by the court." State v. Barrios, 139 Hawai#i 321, 338, 389 P.3d

916, 933 (2016). "The sentencing court must adequately

distinguish between the need for consecutive sentences and the

sentence a defendant 'would have received under the presumption

of concurrent sentencing.'" Bautista, 153 Hawai#i at 290, 535

P.3d at 1035 (quoting Lewi v. State, 145 Hawai#i 333, 350, 452

P.3d 330, 347 (2019).

Here, the Circuit Court imposed a single consecutive

sentence, running Lavoie's term for Count Two consecutive to his

term to Count One, while running the term for Count Three

concurrently. We note that HRS § 134-21(b) (2011), part of the

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statute at issue in Count Two, specifically provides that a

conviction and sentence for "[c]arrying or use of firearm in the

commission of a separate felony" "shall be in addition to and not

in lieu of any conviction and sentence for the separate felony"

and the sentence imposed "may run concurrently or consecutively

with the sentence for the separate felony."

At sentencing, the Circuit Court noted that it had read

all of the transcripts and expert reports that had been filed in

the prior case, and acknowledged Lavoie's mental health issues.
The Circuit Court nevertheless expressed doubts about whether

experts could predict future behavior and suggested that

"[s]ometimes the best indicator of future conduct is past

conduct[,]" noting that Lavoie had a prior felony conviction, he

took a rifle that he wasn't supposed to have, and "he blew her

away."

The Circuit Court explained its consideration of the

HRS § 706-606 sentencing factors noting, inter alia, that: (1)

the circumstances of the offense were "quite dramatic," i.e.,

that Lavoie shot and killed the mother of his four children at

close range while she was sitting on a small porch with multiple

other people nearby including a child sitting on her mother's

lap; ten years after the shooting, two of the people who were on

that porch gave statements at sentencing about the number of

people, (including children), that were still traumatized by the

event; (2) Lavoie had a prior "history" of being a "convicted

felon having entered into somebody's house or dwelling or

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whatever it was and there was a violent crime;" (3) the

"seriousness of the offense" and the need to "promote respect for

the law and provide just punishment" in that "[w]e have a dead

person" and "a firearm that the defendant was prohibited legally

from having in his possession or control was used to commit that

offense[;]" (4) "a long sentence of imprisonment will certainly

deter this defendant from criminal conduct" and "protect the

public from further crimes of the defendant" because Lavoie

"posed a danger in the past and based upon what I have here, I'm
concerned that he can pose a danger in the future" and the

"impulsiveness that Mr. Lavoie exhibited in committing this crime

and taking -- getting the gun out of the car and then going over

and blowing Malia [Kahalewai] (Malia) away. "It's that

impulsiveness that causes me concern that it can happen again[;]"

and (5) the certainty that Lavoie "will receive vocational and

other medical care and treatment including mental health care."

The Circuit Court explained why this is a "different

circumstance" "where a sentencing disparity from other similar

cases are warranted" because the "victim is the spouse[,]" Lavoie

"was a convicted felon" who "used a firearm which is a separate

crime[,]" he "had an opportunity to avoid doing what he did[,]"

another person holding a child was sitting next to Malia at the

time of the shooting, and "[t]his is a crime that took your

children's mother away and took your children's father away at

the same time." The Circuit Court expressed concern over the

impulsiveness demonstrated by Lavoie when he went to the car, got

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the gun, and then went back and shot Malia in the chest;

specifically noting that it could happen again, and it was

unpredictable. The Circuit Court noted the detail provided by

defense counsel regarding sentences in other cases that might be

considered sentencing disparities, but explained that the

legislative charge was to avoid unwarranted sentencing

disparities and that this case warranted the consecutive

sentence.

On this record, the Circuit Court's stated reasons set
forth a "meaningful rationale" and "the specific circumstances

that led the court to impose sentences consecutively in a

particular case," which "confirm for the defendant, the victim,

the public, and the appellate court, that the decision to impose

consecutive sentences was deliberate, rational, and fair." See

Hussein, 122 Hawai#i at 509–10, 229 P.3d at 327–28.

For these reasons, the Circuit Court's March 7, 2023

Judgment is affirmed.

DATED: Honolulu, Hawai#i, August 15, 2024.

On the briefs: /s/ Katherine G. Leonard
Acting Chief Judge
Matthew S. Kohm,
for Defendant-Appellant. /s/ Karen T. Nakasone
Associate Judge
Chad Kumagai,
Deputy Prosecuting Attorney, /s/ Kimberly T. Guidry
County of Maui, Associate Judge
for Plaintiff-Appellee.

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