State v. Abarcar

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
23-FEB-2022
07:38 AM
Dkt. 40 SO

NO. CAAP-XX-XXXXXXX

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

STATE OF HAWAI#I, Plaintiff-Appellee,
v.
NICHOLAS ABARCAR, Defendant-Appellant

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

SUMMARY DISPOSITION ORDER
(By: Ginoza, Chief Judge, Hiraoka and Nakasone, JJ.)

Defendant-Appellant Nicholas Abarcar (Abarcar), appeals
from the Judgment of Conviction and Sentence (Judgment), filed on
May 17, 2021 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), Abarcar pled guilty to
Negligent Homicide in the Second Degree, in violation of Hawaii
Revised Statutes (HRS) § 707-703(1), and three counts of
Negligent Injury in the Second Degree, in violation of HRS § 707-
706(1).2

1
The Honorable Robert D.S. Kim presided.
2
This case arose out of a fatal head-on collision that occurred on
November 10, 2019, on Queen Ka#ahumanu Highway, in Kailua-Kona, Hawai#i Island,
between Abarcar's vehicle and a vehicle driven by the decedent, Cassandra
Ellis (Decedent). Abarcar was charged with manslaughter, first-degree and
second-degree negligent homicide against Decedent; two counts of first-degree
negligent injury, and one count of second-degree negligent injury against
Decedent's two daughters and one of her daughter's friends; and one count of
operating a vehicle under the influence of an intoxicant. Pursuant to the
plea agreement, three of the counts were dismissed with prejudice.
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

On appeal, Abarcar contends the Circuit Court "plainly
and manifestly abused its discretion" by disregarding the
sentencing factors under HRS § 706-606,3 resulting in a sentence
that was "unduly harsh, violating [Abarcar's] substantial right
to be punished appropriately and justly."
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
Abarcar's point of error as follows, and affirm.
Abarcar argues that the Circuit Court disregarded the
HRS § 706-606 factors by "relying upon extraneous experiences and
notions." Abarcar asserts that "there were a variety of
dispositions available" pursuant to HRS §§ 706-6054 and 706-

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HRS § 706-606 (2014), entitled "Factors to be considered in
imposing a sentence," provides:

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;
(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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HRS § 706-605 (2014), entitled "Authorized disposition of
convicted defendants," sets forth the authorized dispositions for criminal
offenses, such as sentences for probation, payment of a fine, imprisonment,
and performance of community service.

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605.1,5 but the Circuit Court's statements at the sentencing
hearing indicated that Arbacar's sentence was "not based solely
on applying HRS Chapter 706." Abarcar also argues that the
punishment imposed upon him was contrary to the Presentence
Diagnosis and Report (PSI Report), and focused on retribution and
deterrence, leading to Abarcar's "disparate treatment at
sentencing."
We review a sentencing court's imposition of sentence
for an abuse of discretion.

A sentencing judge generally has broad discretion in
imposing a sentence. The applicable standard of review for
sentencing or resentencing matters is whether the court
committed plain and manifest abuse of discretion in its
decision. Factors which indicate a plain and manifest abuse
of discretion are arbitrary or capricious action by the
judge and a rigid refusal to consider the defendant's
contentions. And, generally, to constitute an abuse it must
appear that the court clearly exceeded the bounds of reason
or disregarded rules or principles of law or practice to the
substantial detriment of a party litigant.

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)). "The 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." State v. Akana, 10 Haw. App.
381, 386, 876 P.2d 1331, 1334 (1994). A sentencing court "is not
required to articulate and explain its conclusions with respect
to every factor listed in HRS § 706-606. Rather, it is presumed
that a sentencing court will have considered all factors before
imposing concurrent or consecutive terms of imprisonment under
HRS § 706-606." Lewi v. State, 145 Hawai#i 333, 350-51, 452 P.3d
330, 347-48 (2019) (quoting State v. Kong, 131 Hawai#i 94, 102,
315 P.3d 720, 728 (2013) (internal quotation marks and footnote
omitted) (emphasis added)).

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HRS § 706-605.1 (2014 & Supp. 2016), entitled "Intermediate
sanctions; eligibility; criteria and conditions," sets forth alternative,
intermediate sanctions, such as house arrest, drug court programs, residential
programs, and other similar programs.

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Here, the record reflects that at the May 17, 2021
sentencing, the Circuit Court indicated that it had reviewed the
PSI Report, the records and files of the case, and stated that it
considered "all the factors" in its review. The PSI Report
contained the pre-sentence investigator's review of the HRS §
706-606 sentencing factors, and detailed letters from both the
prosecutor and Abarcar's trial counsel addressing all of the
factors. The PSI Report also included victim impact statements,
as well as approximately 50 letters for Abarcar and 14 letters
for the victims, from their respective families, friends, and
community members. The Circuit Court stated that it had
"reviewed every letter from both sides."
At sentencing, the State argued for the maximum
sentence of five years imprisonment on the Negligent Homicide
offense concurrent with the Negligent Injury offenses because of
Abarcar's "decision making process he took that day, along with
his prior DUI." Abarcar's counsel referenced and summarized his
argument "[a]pplying the factors under 706-606" as detailed in
the report, and requested a sentence of probation with community
service, and if the court felt necessary, house arrest,
electronic monitoring or "even intermittent jail if the Court
believes that incarceration is appropriate[.]"
The Circuit Court imposed sentence as follows:

THE COURT: Okay. So the Court has reviewed the
presentence report, I've reviewed all the letters, all the
attachments. I'm not aware of any media stories that said
whatever you're referring to. I did not know of it. I did
not consider it. The Court based my review on the
presentence report and the records and files of this case.
There is a lot of attention to this case by the
respective families. The question when I came into court
this morning as a judge was, what is justice. Cause that's
why we're here. What is justice. On the one side I'm being
asked to send Mr. Abarcar to prison. On the other side I'm
being asked to consider his record and to give him probation
and community service and maybe intermittent jail.
This is my analysis of the case. In the blink of an
eye someone is dead. [Decedent] died horribly in front of
her daughters. Her two-year-old daughter [ ] wonders why
mom is gone. I can only conclude that this tragedy was
senseless. It was negligence. But it was senseless.
There's no –- no rhyme or reason.

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Looking at the radio to attempt to sink [sic] a phone
while driving, a lot of young people do that. You drive on
the road, you see them. Adults do it too. I drive, I live
in the community, I see people on their phones. I see them
looking down, jamming on their brakes when they don't pay
attention. The overriding thing about this tragedy is that
it was completely avoidable. It was completely avoidable
and it was senseless and it caused such destruction to the
[Decedent's] family as well as the Abarcar family.
And so based upon my review, considering all the
factors, it is the judgment and conviction of the Court as
follows as to the charges to which Defendant pled.
Negligent Homicide in the Second Degree, Count Three. Count
Four, Negligent Injury in the Second Degree, lesser included
offense. Count Five, Negligent Injury in the Second Degree,
lesser included offense. And Count Six, Negligent Injury in
the Second Degree. Defendant is convicted and found guilty
of the charges to which Defendant pled.
It is the judgment and sentence of the Court as
follows. Defendant is committed to the custody of the
Director of the Department of Public Safety for
incarceration for an indeterminate period of five years as
to Count Three. One year as to Counts Four, Five, and Six
with credit for any and all time served. Terms of
incarceration shall run concurrent as to all counts.

. . . .

Defendant entered the pleas indicated, it is adjudged
that the Defendant has been convicted of and is guilty of
the offense stated above, committed in the manner and set
forth in the charge. It is further ordered that bail
conditions are cancelled.

You're going to spend some time in prison. You're
young, you're going to get out, you have promise. But what
you did, you have to pay the price.

And this is a warning to all who get distracted of
what can happen. And it's a message not only to you but to
the community as to –- pay attention, our roads, we all
drive on the roads.
[Decedent] had nothing but happiness followed by
death.

Mittimus forthwith.
[DEFENSE COUNSEL]: Your Honor, would the Court
entertain a motion to stay the sentence pending appeal?
THE COURT: No. Denied.

(Emphases added).
The record reflects that the Circuit Court considered
the "nature and circumstances of the offense[s]" under subsection
(1) of HRS § 706-606, by noting the tragic nature of the case,
the fact that someone died, and how the Decedent "died horribly

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

in front of her daughters." The Circuit Court also considered
the "history and characteristics" of Abarcar under subsection
(1), by noting that it was "being asked to consider his record
and to give him probation . . . ." The Court noted the "kinds of
sentences available" to it under subsection (3), and expressed
that it was weighing two different sentencing options from the
opposing sides: prison or "probation and community service and
maybe intermittent jail." Under HRS § 706-606(2)(a) and (2)(b),
the Circuit Court considered the need for the sentence imposed to
reflect the "seriousness of the offense[s]," to "provide just
punishment," and to afford deterrence, by noting the seriousness
of the inattentive driving conduct, that others in the community
drove in a similarly distracted manner, and stating that the
Court had contemplated "[w]hat is justice" in light of the
"destruction to the [Decedent's] family[.]"
Although the Circuit Court did not expressly articulate
or address every HRS § 706-606 sentencing factor or explain its
conclusions as to every factor, it was "not required" to do so.
Lewi, 145 Hawai#i at 350-51, 452 P.3d at 347-48. The Circuit
Court is presumed to have considered all of the factors before
imposing its sentence. See id. The record reflects that the
Court considered "all the factors," and that it had reviewed the
PSI Report that contained extensive HRS § 706-606 factor-specific
written argument from both sides. We cannot conclude from this
record that the Circuit Court committed "plain and manifest"
abuse of its broad sentencing discretion when it sentenced
Abarcar to concurrent terms of imprisonment, and rejected a
sentence of probation. Mundon, 121 Hawai#i at 349, 219 P.3d at
1136. In deciding in favor of the more severe penalty of
imprisonment for Abarcar, the record does not reflect that the
Court was "arbitrary or capricious" or expressed a "rigid
refusal" to consider Abarcar's mitigating arguments. Id.; see
Kahapea, 111 Hawai#i at 282, 141 P.3d at 455 ("While stern, the
circuit court's sentence furthers the statutory penological goals
of retribution, incapacitation, and deterrence and does not

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

reflect 'arbitrary or capricious action' or 'a rigid refusal to
consider the defendant's contentions.'") (citation omitted)).
For the foregoing reasons, the Judgment of Conviction
and Sentence, filed on May 17, 2021 by the Circuit Court of the
Third Circuit, is affirmed.
DATED: Honolulu, Hawai#i, February 23, 2022.
On the briefs:
/s/ Lisa M. Ginoza
Jason R. Kwiat Chief Judge
(Schlueter, Kwiat & Kennedy)
for Defendant-Appellant /s/ Keith K. Hiraoka
Associate Judge
Stephen L. Frye
Deputy Prosecuting Attorney /s/ Karen T. Nakasone
County of Hawai#i Associate Judge
for Plaintiff-Appellee

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