State v. Long

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
18-APR-2024
07:49 AM
Dkt. 84 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

STATE OF HAWAI#I, Plaintiff-Appellee, v.
DEWITT LONG, Defendant-Appellant

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CR. NO. 1PC121001613)

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

Defendant-Appellant Dewitt Long (Long) appeals from the

February 14, 2023 Judgment of Conviction and Sentence Notice of

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

Circuit (Circuit Court).1

Plaintiff-Appellee State of Hawai<i (State) charged

Long via the October 25, 2012 Indictment (Indictment) with three

counts of Sexual Assault in the First Degree under Hawaii Revised

Statutes (HRS) § 707-730(1)(b) (2014), four counts of Sexual

Assault in the Third Degree under HRS § 707-732(1)(b) (2014), one

count of Kidnapping under HRS § 707-720(1)(d) (2014), one

separate count of Sexual Assault in the First Degree under HRS §

707-730(1)(c), and two separate counts of Sexual Assault in the

1
The Honorable Paul B.K. Wong presided.
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Third Degree under HRS § 707-732(1)(c), for a total of 11 counts.

Long was convicted on December 11, 2015, of one count of Sexual

Assault in the First Degree (Count 1), one count of Sexual

Assault in the Third Degree (Count 3), one count of Kidnapping

(Count 8), a separate count of Sexual Assault in the First Degree

(Count 9), and two separate counts of Sexual Assault in the Third

Degree (Counts 10-11).2

In 2015, Long was sentenced to life imprisonment with a

possibility of parole in Counts 1 and 8, 10 years in Count 3, 20
years in Count 9, and five years in each of Counts 10 and 11,

with credit for time served. The Circuit Court ordered Long to

serve his sentence for Count 8 consecutive to the sentences for

Counts 1, 3, and 9-11.

Long appealed (2016 Appeal). In CAAP-XX-XXXXXXX, this

court affirmed Long's conviction, but with respect to the

consecutive sentencing, we concluded that:
[T]he sentencing court "should explain its rationale for
each consecutive sentence in order to inform the defendant
and appellate courts of the specific factors underlying each
sentence." State v. Barrios, 139 Hawai<i 321, 337, 389 P.3d
916, 932 (2016). While the Circuit Court specifically
stated that it decided upon Long's sentence after
consideration of statutory factors, mitigating factors and
the testimony presented at trial, and identified the
victims' ages, multiple counts, extensive criminal history,
and failure to benefit from previous court supervision, the
Circuit Court also made and emphasized findings relating to
the fact that there were two separate victims in two
separate incidents involved in these offenses. Counts 1, 3,
and 8 related to K.C. Counts 9, 10, and 11 related to N.T.
The Circuit Court, however, denied the State's motion to
make the sentences in Counts 1, 3, and 8 consecutive to
sentences in Counts 9, 10, and 11. Thus, the fact that the
offenses involved two separate victims in two separate
incidents does not appear to support making the sentence in
Count 8 consecutive to the sentences in Counts 1 and 3.
Therefore, there is no clear rationale for the imposition of
consecutive sentences in this case. See, Barrios, 139
Hawai<i at 337, 389 P.3d at 932 ("the sentencing court

2
The Honorable Edward H. Kubo, Jr., presided.

2
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

should specify that basis or identify another basis for
determining how many consecutive sentences to impose").
. . . .
Therefore, we vacate the December 11, 2015 Judgment of
Conviction and Sentence in CAAP-XX-XXXXXXX to the extent it
imposes consecutive sentences and remand for resentencing
before another judge.

State v. Long, CAAP-XX-XXXXXXX, 2018 WL 332982, *4 (Haw. App.

Jan. 9, 2018) (SDO).

On remand, the Circuit Court sentenced Long to

indeterminate life terms of imprisonment in Counts 1 and 8, an

indeterminate term of 10 years in Count 3, an indeterminate term
of incarceration of 20 years in Count 9, and indeterminate terms

of five years for Counts 10 and 11. The Circuit Court ordered

Long to serve Counts 1, 3, and 8 concurrently with each other, to

serve Counts 9-11 concurrently with each other, and to serve

Counts 1, 3, and 8 consecutive to Counts 9-11.

Long raises two points of error on appeal, contending

that the Circuit Court erred when it: (1) denied Long's Motion

to Dismiss filed on March 3, 2021; and (2) sentenced Long to

extended terms of imprisonment as to Counts 1, 3, and 83 and

granted the State's Motion for Consecutive Sentencing.

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 Long's points of error as follows:

(1) Long argues that the Circuit Court violated his

rights under Hawai#i Rules of Penal Procedure (HRPP) Rule 48 and

his constitutional right to a speedy trial.

3
Long makes no argument in support of a challenge to his extended
sentences.

3
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Long first raised his speedy trial arguments in a 2014

Motion to Dismiss Counts I-VIII for Violation of HRPP Rule 48

(2014 Motion to Dismiss). The Circuit Court denied the motion at

a May 13, 2014 pretrial hearing. However, in the 2016 Appeal,

Long did not argue, or raise as a point of error, that the

Circuit Court erred in denying the 2014 Motion to Dismiss. As

noted above, Long's conviction was affirmed and only the

consecutive sentences were vacated. We conclude that the Circuit

Court did not err in concluding that Long's 2021 motion was
untimely. In light of Long's failure to raise his speedy trial

arguments in the direct appeal from his conviction, we conclude

that the issue is waived. See, e.g., Waikiki v. State, CAAP-19-

0000625, 2022 WL 1015717, *2 (Haw. App. April 5, 2022) (SDO).

(2) Long argues that the Circuit Court erred in

resentencing him to consecutive terms because this court's

decision in the 2016 Appeal "was essentially a remand with

instructions that the remand-judge should resentence [Long] to a

non-consecutive sentence only." This argument is without merit.

As stated in the 2016 Appeal, Counts 1, 3, and 8

related to one minor victim, and Counts 9, 10, and 11 related to

another minor victim in a separate incident. The fact that the

offenses involved two victims in two separate incidents did not

support making the sentence in Count 8 (life) consecutive to the

sentence in Counts 1 (life) and 3 (10 years) because all three of

those counts involved one victim. Thus, this court concluded

that there was no clear rationale for the 2015 consecutive

4
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

sentencing. We did not hold that consecutive sentence could not

be imposed on remand, even if warranted.

Long further argues that it was an "absurdity" for the

Circuit Court to resentence Long to serve his sentences related

to the second victim consecutive to his sentences related to the

first victim, particularly since the original sentencing judge

did not do so. This argument is unsupported by any authority and

is without merit. The Circuit Court specified that the

consecutive sentencing on remand was based on, inter alia, the
nature and characteristics of the defendant and the heinous

individual and collective nature of the sexual assault of two

different children here (making a total of three convictions for

child sexual assault). The court also based the consecutive

sentencing on the need for deterrence of future conduct and the

need to protect the public from a serial child molester. Unlike

in the original sentencing, here there was a clear rationale for

the imposition of consecutive sentences. As noted by the Circuit

Court, the new consecutive sentence did not enlarge the prior

sentence imposed in 2015. We conclude that the Circuit Court did

not abuse its discretion in resentencing Long.

For these reasons, the Circuit Court's February 14,

2023 Judgment is affirmed.

DATED: Honolulu, Hawai#i, April 18, 2024.

On the briefs: /s/ Katherine G. Leonard
Acting Chief Judge
Kai Lawrence,
for Defendant-Appellant. /s/ Keith K. Hiraoka
Associate Judge
Brian Vincent,
Deputy Prosecuting Attorney, /s/ Karen T. Nakasone
for Plaintiff-Appellee. Associate Judge
5