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NO. CAAP-21-0000339

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-20-0000734)

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 PlaintiffAppellee 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.

Electronically Filed

Intermediate Court of Appeals

CAAP-21-0000339

23-FEB-2022

07:38 AM

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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-

3 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.

4 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)).

5 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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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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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:

Jason R. Kwiat

(Schlueter, Kwiat & Kennedy)

for Defendant-Appellant

Stephen L. Frye

Deputy Prosecuting Attorney

County of Hawai#i 

for Plaintiff-Appellee

/s/ Lisa M. Ginoza

Chief Judge

/s/ Keith K. Hiraoka

Associate Judge

/s/ Karen T. Nakasone

Associate Judge

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