No. SCWC-15-0000548, Thursday, January 5, 2017, 8:45 a.m.

STATE OF HAWAI`I, Respondent/Plaintiff-Appellee, vs. YOSHIRO SANNEY, Petitioner/Defendant-Appellant.

The above-captioned case has been set for argument on the merits at:

Supreme Court Courtroom
Ali`iolani Hale, 2nd Floor
417 South King Street
Honolulu, HI 96813

Attorney for Petitioner:

Shawn A. Luiz

Attorney for Respondent:

Brian R. Vincent, Deputy Prosecuting Attorney

NOTE: Order accepting Application for Writ of Certiorari, filed 10/19/16.

COURT: MER, CJ; PAN, SSM, RWP, and MDW, JJ.

[ Listen to the entire audio recording in mp3 format ]

Brief Description:

Petitioner/Defendant-Appellant Yoshiro Sanney was charged with one count of sexual assault in the second degree in violation of HRS § 707-731(1)(b)(2014 Repl.) and one count of attempted sexual assault in the second degree in violation of HRS § 707-731(1)(b) and HRS § 705-500 (2014 Repl.).

The charges arose from an incident that took place on September 15, 2010 in Kapiolani Park. At the time of the incident, Sanney allegedly subjected the complaining witness to unwanted sexual contact by placing his mouth on her genitalia, and also attempted penile penetration before his arrest.

Sanney initially pleaded not guilty, but withdrew his not guilty plea and entered a plea of no contest “based on [the] inclination” that “the Court [had] given . . . for probation . . . with up to 18 months in jail[.]” At the sentencing hearing, the circuit court determined Sanney’s statements in the PSI implied an unwillingness to seek treatment for his substance abuse problems, which affected the circuit court’s understanding of the facts of the case upon which its inclination had been given. The circuit court then sentenced Sanney to ten years of prison on both counts, with the terms to run concurrently.

Sanney filed a Motion to Reconsider Sentence. The circuit court denied Sanney’s motion without holding a hearing. Sanney appealed to the ICA.

The ICA affirmed, determining no authority supported Sanney’s right to a hearing on his motion. Sanney appealed to the supreme court, which held the circuit court abused its discretion by failing to hold a hearing, and vacated the ICA’s judgment on appeal and remanded the case to the circuit court.

On remand, the circuit court determined Sanney’s sentence was justifiable based on the PSI. The ICA affirmed after determining the circuit court did not commit a plain and manifest abuse of discretion in denying Sanney’s motion.

Sanney’s application for writ of certiorari contends the ICA gravely erred in holding the circuit court did not abuse its discretion in denying his motion. Sanney argues the circuit court had the same facts available at the change of plea hearing as at the sentencing hearing, so the circuit court abused its discretion by failing to vacate its original sentence and impose its inclination following the motion hearing.