By CHELSEA JENSEN
Stephens Media Hawaii
A former Hawaii County Councilman has yet to serve a five-day jail sentence handed down in 2010 following his no contest plea to resisting arrest after a traffic stop in North Kona.
Robert Kelshaw “Kelly” Greenwell’s case remains on appeal before the Intermediate Court of Appeals — more than three years after his attorney, Eric Seitz, filed a notice of appeal on Nov. 10, 2010, contesting Greenwell’s sentence to serve five days in jail following his no contest plea on Nov. 1, 2010, to resisting arrest. The jail term was a condition of probation handed down with the acceptance of a deferred acceptance of his plea. Greenwell was also ordered to perform 40 hours of community service and pay $130 in fines and fees.
The appeal claims 3rd Circuit Court Chief Judge Ronald Ibarra abused his discretion in ordering jail time, which was not included in a plea agreement meted out between Greenwell and prosecutors, as a condition of deferring Greenwell’s plea. Ibarra stayed the sentence pending appeal on Nov. 1, 2010.
While opening, answering and reply briefs have all been filed and an ICA merit panel was assigned to the case on July 5, 2011, oral arguments, if requested, have yet to be scheduled and the three-judge panel had yet to issue a decision as of Friday afternoon.
Hawaii State Judiciary Spokeswoman Marsha Kitagawa, when asked about the case’s status and delay, said there was little information the judiciary could provide on the case because it is pending.
“The court can either set oral argument or issue an order that the case will be decided without argument. Certain kinds of cases receive priority, such as criminal cases in which the defendant is in custody, family court cases where child custody is in issue, and other cases in which priority is established by statute,” she said.
Prosecutor Mitch Roth said the case remains pending, awaiting further action on behalf of the Intermediate Court of Appeals.
Greenwell’s attorney, Seitz, said Friday only that the case remains under consideration.
Greenwell Thursday afternoon confirmed the case was still on appeal. He said while the sentence has yet to be imposed, he has already paid the fines assessed and completed the 40 hours of community service by taking part in landscaping and planting of trees at the West Hawaii Emergency Shelter on Pawai Place. He said he opted for that service with the hope that the shelter’s clients would have something to take care of while getting back on their feet.
The jail time was not part of the plea agreement between prosecutors and Greenwell, according to an opening brief filed by Seitz and an answering brief by prosecutors. However, the court was not bound by the agreement, according to the prosecutor’s answering brief. Seitz, in Greenwell’s appeal, claims Ibarra’s handing down of the jail sentence was an abuse of his discretion.
“By agreeing to defer the Defendant’s plea and simply place him under supervision the trial court acknowledged that neither a conviction nor any significant punishment was warranted under the circumstances of this case. However, in adjudging a period of incarceration the court then stated, somewhat inconsistently, that the punishment was compelled by a concern to deter others from acting similarly,” Seitz’s opening brief filed March 24, 2011, reads. “The trial judge’s rationale of deterrence was founded on an expectation that punishment by way incarceration will cause others to refrain from similar conduct.”
The brief later continues: “The trial court abused its discretion because all of the factors the trial court is statutorily obligated to consider favored withholding a sentence of imprisonment, the State never recommended a term of imprisonment, and entry of a no contest plea with a suspended sentence under probation supervision all being placed on the public record surely provides substantial deterrence to others who might be similarly inclined.”
Prosecutors, in their answering brief, said Greenwell, when he addressed the court during sentencing, still tried to justify his actions, and criticized police as being responsible for his conduct despite reading a letter of apology.
“The judge emphasized to defendant that any person including a councilman such as the defendant, or other government official should not resist arrest as defendant did on this occasion. As the judge stated the sentence was necessary to serve the aim of deterrence. The minimal time to be served by the defendant gave sufficient consideration of the defendant’s age,” the brief reads.
Greenwell was arrested July 17, 2010, after police using a handheld laser clocked Greenwell going 51 mph in a 35 mph zone on Queen Kaahumanu Highway near the Kealakehe Police Station. Police said Greenwell first refused to stop, then after stopping, became confrontational. He was then arrested and charged with resisting an order to stop, resisting arrest and refusing to produce documentation. He was also cited for speeding, a decriminalized offense.
Greenwell, then age 70, pleaded no contest Nov. 1, 2010, to the resisting arrest charge, in a plea deal that dropped other charges. Ibarra accepted Greenwell’s request for a deferred acceptance of the plea — sentencing Greenwell to one year of probation and 30 days in jail, with all but five days suspended, fines and fees and community service.
A misdemeanor, under which the resisting arrest offense falls, carries a maximum sentence of one year in jail, according to Hawaii Revised Statutes.