Deployment may
delay prison term
for soldier
The isle Guardsman
awaits sentencing for
burglary and robbery
Shaun C. Rodrigues was found guilty more than two years ago of a home invasion in which he tied up two Manoa women and robbed them at gunpoint.
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That's because even though he was convicted in March 2002, Rodrigues has yet to be sentenced.
His attorneys notified Circuit Judge Virginia Crandall last week that Rodrigues was ordered to active duty effective Aug. 16 with the 29th Infantry Brigade. Rodrigues, 24, a specialist in the Hawaii Army National Guard, has been out on $75,000 bail since his conviction.
Crandall found Rodrigues guilty of first-degree burglary, two counts of first-degree robbery and two counts of kidnapping after a jury-waived trial.
Rodrigues, a former alarm systems installer, faces a 20-year term on each of the burglary and robbery convictions. Prosecutors are asking that he be ordered to serve extended terms.
Rodrigues was identified as the person who tied up Dianne Sugihara and daughter Dawn and robbed them at gunpoint on July 8, 2000. The victims said he threatened to cut off Dianne Sugihara's finger when she balked at giving up her wedding ring. The Sugiharas had been burglarized previously and the ring was all she had left of her jewelry.
Deputy Prosecutor Russell Uehara said he objects to any further delay and wants Rodrigues to be sentenced right away. While the Sugiharas understand why Rodrigues hasn't been sentenced yet, "they're disappointed," Uehara said.
"They want closure and this alleged Army National Guard activation for Shaun Rodrigues is just another source of pain for the victims."
Defense attorney William Harrison said Rodrigues has been an exemplary soldier and his commanders want him to go.
"If it was anybody else, they would hold them back, but they're saying they want him," Harrison said.
The Hawaii National Guard has said it is waiting until Rodrigues is sentenced and a judgment of conviction is filed before taking any action against him, Uehara said.
Under state law, a conviction is not entered until a defendant is sentenced, Harrison said. "There's been a finding of guilt, but no conviction."
Uehara, who has been researching the issue, said he has uncovered a 19-year-old Hawaii Supreme Court decision that says a finding of guilt, even though a person hasn't been sentenced yet, is a conviction under Hawaii law.
"We were all under the misimpression that he has to be sentenced first and then, as a result of judgment being filed, then that's a conviction," Uehara said.
He said he is continuing to research military codes and will discuss with the judge advocate general whether, under this specific case law alone, a guilty finding by Judge Crandall is sufficient basis for the National Guard to find that Rodrigues is undeployable so sentencing can proceed.
The parties are expected to meet with Crandall tomorrow to decide what to do next. If the court finds the order activating Rodrigues and the 29th Brigade supersedes any state action, all pending motions and proceedings in the case, including sentencing, will be delayed until Rodrigues returns. His maximum term of deployment is 545 days.
Defense attorney Earle Partington, who has represented military defendants on active duty, said because Rodrigues faces mandatory prison time, he is not deployable.
"In view of the seriousness of these offenses, he should be held back and the military will put him out because of that," he said. "He can't serve because he can't participate -- he's gonna be locked up."
But because the military is so short on manpower, a number of people facing sentencing have been deployed, including one of his clients, Partington said. "In the case of my client, the unit really needed him, they knew about (his case) and didn't care because the felony wasn't a violent one."
Maj. Charles Anthony, spokesman for the Hawaii National Guard, said he could not discuss Rodrigues' case because of privacy rules. However, once a Guardsman has been convicted of a crime, the National Guard will normally conduct a review and, based on the severity of the crime, determine whether to discharge him or her from the ranks, he said. Ordinarily, a felony conviction would result in discharge, he added.
Uehara acknowledges that it's partly his fault that Rodrigues was not sentenced sooner, but he said the defense also contributed to the delay.
The defense has filed motions seeking to hold off sentencing based on newly discovered evidence allegedly implicating another man in the home invasion. The defense has said it needs time to gather more evidence and reopen the trial, or hold a new trial.
Rodrigues, who did not testify at trial, has maintained his innocence. His mother and brother testified that Rodrigues was at their Kailua home sleeping at the time the Sugiharas were robbed.
Harrison said Rodrigues has no prior criminal record and is loved by his employer and the National Guard but, according to prosecutors, "he's graduated into some kind of home invader burglar."
"You don't go from doing nothing to invading people's homes," said Harrison, noting that this is the most frustrating case he's had in 23 years of practice. "I've never dealt with a case like this with no evidence to suggest he committed the crime except an identification by the victims who initially claimed they couldn't identify him, but later did."
Dianne and Dawn Sugihara are intelligent, well-educated, honest people, Uehara said. "Any hesitation they made in initially recognizing and identifying Shaun Rodrigues is because both of them felt, 'I don't want to convict the wrong man -- I want to be absolutely certain in my mind because I have to live with it the rest of my life,'" he quoted them as saying.
After the robbery, Dianne Sugihara wanted to forget everything and try to move on, but Uehara advised her not to forget anything until after the trial.
"Now she tells me even if she wants to forget, she cannot because that face is seared in her memory," Uehara said. "She thinks about what happened every day of her life. Every time she comes home, she thinks, 'Is there somebody in my house?' Every time she comes home, she thinks that."