One "prime reason" for allocution is to provide the defendant an opportunity to plead for mitigation of the sentence. Hernandez, 143 Hawai‘i at 511, 431 P.3d at 1284 (quoting State v. Carvalho, 90 Hawai‘i 280, 286, 978 P.2d 718, 724 (1999) ). Allocution also provides the defendant the opportunity to dispute the factual bases for sentencing and to meaningfully participate in the sentencing process.
We have stated that the right of allocution is guaranteed under the due process clause of the Hawai‘i Constitution. Davia, 87 Hawai‘i at 255, 953 P.2d at 1353 (citing Chow, 77 Hawai‘i at 246-47, 883 P.2d at 668-69 ). That is, a trial court is constitutionally required to accord a defendant the right to be heard prior to imposing sentence. Id.; State v. Carvalho, 90 Hawai‘i 280, 286, 978 P.2d 718, 724 (1999) ; Schutter v. Soong, 76 Hawai‘i 187, 208, 873 P.2d 66, 87 (1994). The importance of allocution is underscored by the multiple purposes it serves.
Do you wish to say anything?," the circuit court provided Barnes with an opportunity for allocution - the defendant’s right to speak before sentence is imposed. State v. Carvalho, 90 Hawai‘i 280, 285, 978 P.2d 718, 724 (1999). HRS § 706-604 (1993) provides that, "[b]efore imposing [a] sentence, the court shall afford a fair opportunity to the defendant to be heard on the issue of the defendant’s disposition."
Allocution has been defined as “the defendant’s right to speak before sentence is imposed,” and “ ‘has been recognized as a due process right under the Hawai'i Constitution.’ ” State v. Carvalho, 90 Hawai'i 280, 285, 978 P.2d 718, 723 (1999) (quoting State v. Davia, 87 Hawai'i 249, 255, 953 P.2d 1347, *5231353 (1998)).
"The authority of a trial court to select and determine the severity of a penalty is normally undisturbed on review in the absence of an apparent abuse of discretion or unless applicable statutory or constitutional commands have not been observed." State v. Carvalho, 90 Haw. 280, 284, 978 P.2d 718, 722 (1999) (quoting Davia, 87 Hawai`i at 253-54, 953 P.2d at 1351-52 (quoting State v. Cornelio, 84 Haw. 476, 483, 935 P.2d 1021, 1028 (1997) (quoting State v. Gaylord, 78 Haw. 127, 143-44, 890 P.2d 1167, 1183-84 (1995) (citation omitted)))). E. Constitutional Law
See State v. Toyomura, 80 Haw. 8, 15, 904 P.2d 893, 900 (1995) (citing State v. Higa, 79 Haw. 1, 3, 897 P.2d 928, 930 (1995), and State v. Gaylord, 78 Haw. 127, 137, 890 P.2d 1167, 1177 (1995)); State v. Baranco, 77 Haw. 351, 355, 884 P.2d 729, 733 (1994) (issue whether defendant's constitutional right against double jeopardy would be violated unless indictment dismissed is question of law, reviewed under right/wrong standard); In re [John] Doe, Born on January 5, 1976, 76 Haw. 85, 93, 869 P.2d 1304, 1312 (1994) (whether speech is protected by first amendment to United States Constitution is applied to states through fourteenth amendment and by article I, section 4 of Hawai`i Constitution are questions freely reviewable on appeal).State v. Carvalho, 90 Haw. 280, 285, 978 P.2d 718, 723 (1999) (quoting State v. Quitog, 85 Haw. 128, 139, 938 P.2d 559, 570 (1997) (quoting Arceo, 84 Hawai`i at 11, 928 P.2d at 853)). III. DISCUSSION
As a due process right, a defendant's right of allocution is violated if the court fails to afford the defendant an opportunity to exercise the right at a meaningful time and in a meaningful manner. See, e.g., State v. Carvalho, 90 Hawai‘i 280, 286, 978 P.2d 718, 724 (1999) (a sentencing court must afford a defendant the right of presentence allocution "before ruling on the applicability of the young adult defendants statute"). In order to be meaningful, the opportunity for allocution must be reasonably calculated to achieve its purposes of providing the defendant with an opportunity to plead for mitigation, contest the factual bases for sentencing, and acknowledge wrongdoing.
Accordingly, we affirm the portion of the ICA’s March 13, 2015 judgment on appeal pertaining to Barrios’s convictions, and we vacate the portion of the ICA’s Judgment on Appeal pertaining to Barrios’s sentence.13 We vacate the portion of circuit court’s February 1, 2013 Judgment of Conviction and Sentence sentencing Barrios, and remand to the circuit court for resen-tencing before a different judge, consistent with this opinion. See State v. Carvalho, 90 Hawai’i 280, 288, 978 P.2d 718, 726 (1999) (remanding to a different judge after the trial court used an improper sentencing procedure). 1
The ICA erred in summarily affirming the circuit court's dismissal, with prejudice, of Blaisdell's complaint. We vacate the Judgment and remand this case to the circuit court for proceedings before a different judge, see State v. Carvalho, 90 Hawai'i 280, 288 n. 8, 978 P.2d 718, 726 n. 8 (1999) ("It should be noted that we are remanding for resentencing by a different judge because, inasmuch as [the circuit court judge] previously determined the appropriate length of sentence, remanding the matter to [the circuit court judge] would constitute an inadequate remedy.") (citations omitted), with instructions to dismiss Blaisdell's complaint without prejudice.
We review alleged constitutional errors of the circuit court under the "right/wrong" standard by exercising our "own independent judgment based on the facts of the case." State v. Carvalho, 90 Haw. 280, 285, 978 P.2d 718, 723 (1999) (citations and internal quotation marks omitted). B. Jury Instructions