indication of the three factors in Hawaii

2019Specifically, this court held that “if there is an indication of the three factors, then the sentence was likely to have been improperly influenced by the defendant’s persistence in his innocence.” Kamanaʻo, 103 Hawaiʻi at 323, 89 P.3d at 409 (citing Wesley, 411 N.W.2d at 162 ) (emphasis added).10 In structuring the Kamanaʻo test in this manner, this court recognized the need for safeguards for “some of our most treasured protections – preservation of our autonomy, privacy, and dignity against the threat of state action.” Kamanaʻo, 103 Hawaiʻi at 320, 82 P.3d at 406. 10 Indeed, that the Dissen

2019This court then adopted the following three-part test, set forth by the Michigan Supreme Court in People v. Wesley, 411 N.W.2d 159 (1987), for assessing whether a sentencing court erroneously relied on a defendant’s refusal to admit guilt in imposing a sentence: (1) the defendant’s maintenance of innocence after the conviction, (2) the judge’s attempt to get the defendant to admit guilt, and (3) the appearance that[,] had the defendant affirmatively admitted guilt, his sentence would not have been so severe . . . . [I]f there is an indication of the three factors, then the sentence was likely

2021Id. [W]hether a sentencing court had erroneously relied on a defendant’s refusal to admit guilt in imposing a sentence: (1) the defendant's maintenance of innocence after conviction, (2) the judge's attempt to get the defendant to admit guilt, and (3) the appearance that[,] had the defendant affirmatively admitted guilt, his sentence would not have been so severe. . . . [I]f there is an indication of the three factors, then the sentence was likely to have been improperly influenced by the defendant's persistence in his innocence.

2019However, we clearly stated in Kamanaʻo that “if there is an indication of the three factors, then the sentence was likely to have been improperly influenced by the defendant’s persistence of his innocence.” Kamanaʻo, 103 Hawaiʻi at 323, 82 P.3d at 409 (citation omitted) (emphasis added). 15 *** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER *** added).5 Because of the “subtle” difference between permissible and impermissible considerations at sentencing, the test is structured to safeguard the defendant’s constitutional right against self-incrimination.

2019Kamanaʻo, 103 Hawaiʻi at 323, 82 P.3d at 409 (citation omitted) (emphasis added); see also Barrios, 139 Hawaiʻi at 338, 389 P.3d at 933 (quoting id.).