NOT FOR PUBLICATION
IN THE INTERMEDIATE COURT OF APPEALS
PAULINO
EVANGELISTA, JR., Defendant-Appellant, V.
STATE OF HAWAI`I, Plaintiff-Appellee
APPEAL
FROM THE CIRCUIT COURT OF THE THIRD CIRCUIT
(CR. NOS. 02-1-0357, 02-1-0124, AND 02-1-0187)
SUMMARY DISPOSITION ORDER
(By Burns, C.J., Foley and Fujise, JJ.)
After diligently reviewing the record and the briefs submitted and carefully considering the arguments advanced and the issues raised, we resolve Defendant's points of error as follows:
1. The sentencing court (1) did not abuse its discretion when it ordered that Defendant's sentence, consisting of ten years' incarceration for each of ten counts of Burglary in the First Degree and five years' incarceration for each of four counts of Burglary in the Second Degree and one count of Theft in the Second Degree, be served consecutively. Where the issue has not been raised below, it is reviewed for plain error. State v. Jenkins, 93 Hawai`i 87, 114, 997 P.2d 13, 40 (2000). As required by Hawai`i Revised Statutes (HRS) § 706-668.5 (1993), the sentencing court explicitly based its decision on the nature of Defendant's crimes and lack of remorse, factors contained in HRS § 706-606 (1993). It is presumed that the sentencing court properly considered and applied these factors in imposing the consecutive sentence. State v. Sinagoga, 81 Hawai`i 421, 428, 918 P.2d 228, 235 (App. 1996) overruled on other grounds by State v. Veikoso, 102 Hawai`i 219, 227, 74 P.3d 575, 583 (2003).
3. Finally, there was no
misconduct coloring the sentencing court's view against him. Once
again, this issue is reviewed
for plain error. Jenkins, supra.
Defendant claims that the deputy prosecutor committed misconduct
by making arguments
at sentencing "calculated to inflame the passions of the trial court
judge." On the record before us, it is far from clear that
the deputy intended the implications Defendant ascribes. Moreover, the
sentencing court was well aware of the factual
basis for the matters argued and had indicated an inclination to
sentence Defendant as it did even before the deputy
presented his argument. In any event, a judge is presumed not to be
influenced by incompetent evidence, State
v. Vliet, 91
Hawai`i 288, 983 P.2d 189 (1999), let alone argument.
Therefore,
IT IS HEREBY ORDERED that the February 19, 2003 Judgments filed in Cr. Nos. 02-1-0357, 02-1-0124, and 02-1-0187 from the Circuit Court of the Third Circuit are affirmed.
DATED: Honolulu, Hawai`i, July 21, 2004
On the briefs:2. Defendant does not specify the
legal basis for his claims.