State v. Lavoie: Supreme Court of Hawaiʻi Restricts Expert-Fee Entitlements at Regular Sentencing and Adopts the “Aggregate” Test for HRS § 706-609 Resentencing Challenges

1. Introduction

In State v. Lavoie, SCWC-23-0000296 (Aug. 13 2025), the Supreme Court of Hawaiʻi confronted two recurring post-conviction disputes:

When—if ever—must trial courts authorize publicly funded expert assistance for indigent defendants at the ordinary sentencing phase?
How should courts determine whether a re-imposed sentence is “more severe” than the original sentence for purposes of the statutory bar in HRS § 706-609?

Marlin L. Lavoie, originally convicted of second-degree murder and firearm offenses, had his conviction vacated in 2019, pled guilty to reduced charges after remand, and sought nearly $9,000 in court funds to update a psychological “dangerousness” evaluation for sentencing. When the circuit court denied most of that request and ultimately imposed consecutive terms totalling forty years (life with parole had been the original sentence), Lavoie appealed. The Supreme Court accepted certiorari to resolve the expert-fee dispute and the claim that the new sentence was impermissibly harsher.

2. Summary of the Judgment

Expert Fees: The Court held that HRS § 802-7 authorizes expert funding primarily for pre-trial, trial, and extended-term sentencing (jury-based) proceedings. Expert fees are “generally” unnecessary for ordinary, non-extended sentencing. Therefore, the circuit court did not abuse its discretion in denying Lavoie’s full request.
Resentencing Severity: Interpreting HRS § 706-609, the Court adopted the “aggregate approach” used in most jurisdictions: compare the total term of imprisonment before and after appeal. Because forty years is shorter than life with the possibility of parole, the resentencing was not “more severe.”
Other Sentencing Challenges: The Court found no abuse of discretion in imposing consecutive sentences, adequately explained on the record, nor in the treatment of extreme mental or emotional disturbance (EMED) as a mitigating factor.
Procedural Holding: Despite docket fragmentation caused by dismissal and re-indictment (post-Obrero), the Court ruled that Lavoie preserved his fee argument; access-to-justice principles favored merits review.

3. Detailed Analysis

3.1 Precedents Cited and Their Influence

HRS § 802-7 & State v. Hoopii (1985) – Recognized trial-court discretion on whether expert services are “necessary for an adequate defense.” Lavoie extends this reasoning to say that, ordinarily, regular sentencing lacks the adversarial fact-finding that would make an expert “necessary.”
Ake v. Oklahoma, 470 U.S. 68 (1985) – Provided the due-process foundation for indigent access to experts when sanity or future dangerousness is a “significant factor” in a capital trial. The Court distinguished Ake: the same level of necessity is rarely present at Hawaiʻi’s non-capital, non-jury sentencing.
State v. Nobriga (1974) – Emphasized the non-adversarial nature of sentencing. Cited to underscore why expert testimony is less critical than at trial.
State v. Keawe (1995) & State v. Samonte (1996) – Earlier Hawaiʻi cases addressing “more severe” sentences. Keawe essentially used an aggregate view, whereas Samonte looked count-by-count. To resolve tension, Lavoie expressly endorses the aggregate test.
North Carolina v. Pearce, 395 U.S. 711 (1969) & Alabama v. Smith, 490 U.S. 794 (1989) – U.S. Supreme Court doctrine on vindictive resentencing provided background but Hawaiʻi’s legislature codified the bar in HRS § 706-609, which the Court interprets today.

3.2 Core Legal Reasoning

3.2.1 Expert Fees and the Scope of HRS § 802-7

The Court read the phrase “necessary for an adequate defense” in light of the constitutional minimal requirements identified in Ake and the practical differences between adversarial trial proceedings and discretionary sentencing. Key logic steps:

“Defense” in § 802-7 refers primarily to the adjudicatory phase (trial or extended-term sentencing with jury fact-finding).
Regular sentencing under HRS chapter 706 involves open-ended judicial discretion guided by statutory factors; it is not a fact-finding contest.
Because the prosecution here did not seek an extended-term sentence (the plea agreement forbade it), the need for an independent danger assessment was weak—particularly where a thorough 2015 evaluation already existed in the PSR.
Thus, denying the additional $8,767 (while still permitting a modest $1,000 expenditure) was within the trial court’s discretion.

3.2.2 “More Severe” Sentencing and the Aggregate Approach

The Court canvassed national approaches: aggregate, remainder-aggregate, and count-by-count. It chose the aggregate approach because it:

Aligns with sentencing’s holistic nature (“integrated whole”).
Preserves trial-court discretion without chilling appeals.
Is simpler to administer and dominant nationwide.

Applied to Lavoie: life with parole (indeterminate) is plainly longer than a determinate forty-year aggregate. Even though one firearm count switched from concurrent to consecutive, the total punishment decreased; therefore, no violation of § 706-609.

3.3 Potential Impact of the Judgment

Indigent Defense Funding: Defense counsel can still seek experts for trial and for extended-term sentencing, but cannot assume automatic funding for ordinary sentencing mitigation. Requests will require a fact-specific showing of “unique, extenuating circumstances.”
Sentencing Practice: Trial judges now have clear appellate guidance that the Court will examine aggregate totals when assessing “more severe” arguments. This encourages flexibility (e.g., changing concurrency/consecutivity) so long as the overall term is not increased.
Appeal Strategy: Defendants will likely focus resentencing challenges on demonstrating an increase in total incarceration; isolated changes in a single count’s length or concurrency will not suffice.
Parole Considerations: The Court noted that effects on parole eligibility do not alone render a sentence “more severe” if the aggregate term is the same or less (Keawe reaffirmed).
Access-to-Justice Doctrine: By allowing record supplementation and reaching the merits, the Court re-emphasized its institutional commitment to substantive, not hyper-technical, review.

4. Complex Concepts Simplified

HRS § 802-7: A Hawaiʻi statute letting courts spend public money on transcripts, investigators, and expert witnesses for indigent defendants if such services are “necessary for an adequate defense.”
Regular vs. Extended-Term Sentencing: “Regular” sentencing is the ordinary judge-only proceeding after conviction. “Extended-term” sentencing (HRS § 706-664) allows the prosecution to seek longer‐than-normal maximums; it triggers additional procedural rights (e.g., jury fact-finding).
Aggregate Approach: When comparing two sentences (original and on resentencing), courts look at the total incarceration exposure. If the new total is equal to or less than the original total, it is not “more severe.”
Extreme Mental or Emotional Disturbance (EMED): A partial defense that can reduce murder to manslaughter by showing the defendant acted under a loss of self-control due to a triggering event. It can also be argued in mitigation at sentencing.

5. Conclusion

State v. Lavoie is a landmark for two reasons. First, it narrows the circumstances under which Hawaiʻi courts must authorize expert funding at public expense, clarifying that routine sentencing mitigation will seldom qualify. Second, it settles an open doctrinal question by embracing the aggregate test for assessing “more severe” sentences under HRS § 706-609. Together, these rulings promote fiscal restraint in indigent-defense expenditures while protecting defendants’ appellate rights through a predictable, objective resentencing standard. Future litigants and judges now have a clearer road map for both funding motions and resentencing reviews in the islands’ criminal courts.