State v. KongAnnotate this Case
The intermediate court of appeals (ICA) erred in concluding that a challenge to the erroneous inclusion of prior convictions in a PSI cannot be brought on a Hawai'i Rules of Penal Procedure Rule 35 motion for post-conviction relief;
The circuit court sentenced Stanley Kong to consecutive terms of imprisonment based on a presentence investigation report (PSI) that erroneously included two prior convictions that had been previously vacated and dismissed. Kong’s counsel did not, however, bring this fact to the circuit court’s attention. The Supreme Court affirmed the sentence in Kong I. Thereafter, Kong filed a motion under Rule 35(b) to reconsider or reduce sentence challenging the erroneous inclusion of the two prior convictions in his PSI. The circuit court denied the motion. The ICA affirmed. The Supreme Court vacated the ICA’s judgment on appeal and remanded, holding (1) the ICA erred in concluding that Defendant could not challenge, via a Rule 35 motion, the erroneous inclusion of the two prior convictions in his PSI; and (2) the circuit court erred by concluding that Kong I precluded its reevaluation of Kong’s sentence and by failing to address Kong’s challenge to the inclusion of the two vacated and dismissed prior convictions in his PSI.