State v. Alday-Morales
CourtHawaii Intermediate Court of Appeals
Date FiledSeptember 22, 2026
DocketCAAP-25-0000823
StatusPublished
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Full Opinion
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Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
22-SEP-2026
07:51 AM
Dkt. 48 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI‘I
STATE OF HAWAI‘I, Plaintiff-Appellee,
v.
TOMAS ALDAY-MORALES, Defendant-Appellant
APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT
(CASE NO. 2CPC-XX-XXXXXXX)
SUMMARY DISPOSITION ORDER
(By: Nakasone, Chief Judge, Hiraoka, Guidry, JJ.)
Defendant-Appellant Tomas Alday-Morales (Alday-
Morales) challenges the sufficiency of the record justifying the
imposition of a fifteen-year consecutive sentence rather than a
five-year concurrent sentence, for three counts of first-degree
Violation of Privacy offenses under Hawaii Revised Statutes
(HRS) § 711-1110.9(1)(a).1 We vacate and remand for
resentencing.
1 Under HRS § 711-1110.9(1)(a) (2014 & Supp. 2024), Violation of
Privacy in the First Degree (Violation of Privacy First Degree) is committed
when a person "intentionally or knowingly installs or uses, or both, in any
private place, without consent of the person or persons entitled to privacy
therein, any device for observing, recording, amplifying, or broadcasting
another person in a stage of undress or sexual activity in that place[.]"
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Alday-Morales appeals from the October 23, 2025
"Judgment of Conviction and Sentence" (Judgment) entered by the
Circuit Court of the Second Circuit (Circuit Court).2 After
pleading guilty to three counts of Violation of Privacy First
Degree pursuant to a plea agreement, he was sentenced to a five-
year term of imprisonment on each count, with each term to run
consecutively. On appeal, Alday-Morales raises a single point
of error, contending that the Circuit Court erred by "failing to
properly consider and place on record the HRS § 706-606 factors
and rationale for imposing multiple consecutive terms of
imprisonment."
Upon review of the record on appeal and relevant legal
authorities, giving due consideration to the issues raised and
arguments advanced by the parties, we resolve the contention as
follows.
Plaintiff-Appellee State of Hawaiʻi's (State) August
12, 2024 Indictment alleged that between January 1, 2021 and
November 25, 2023, Alday-Morales placed two hidden video cameras
in the bedroom of adult stepdaughter M.W., and one hidden video
camera in the bedroom of adult stepson B.W., recording both
stepchildren nude and engaged in sexual activity with their
respective partners. The State also alleged that K.W., a minor
stepdaughter, sometimes used M.W.'s bedroom, and nude pictures
of K.W. were recorded as well. After being recorded, the videos
and pictures were allegedly "uploaded to [Alday-Morales's]
various other devices." On July 31, 2025, Alday-Morales entered
into a plea agreement with the State in which Alday-Morales
agreed to plead guilty to the three counts of Violation of
Violation of Privacy First Degree is a Class C felony, with a five-year
maximum term of imprisonment. HRS § 711-1110.9(4).
2 The Honorable Peter T. Cahill presided.
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Privacy First Degree in exchange for the dismissal of the two
counts of first-degree Promotion of Child Abuse and two counts
of third-degree Promotion of Child Abuse.
At the sentencing hearing on October 23, 2025, the
Circuit Court explained why it was rejecting a probation
sentence in favor of imprisonment, as follows:
[THE COURT]: I did review the presentence report.
I don't always put a lot of stock into these reports. But
these reports were pretty traumatic in this case. Mainly because
they're just documenting what's on the videos.[3] You know,
there's really nothing to discuss here.
. . . .
The sentencing factors do, as [Defense Counsel]
describe[s], say that [Alday-Morales] is likely to respond
affirmatively. I (Inaudible ) disagreeing with that. But what he
did is just legally indefensible. In my judgment, inexcusable.
. . . .
But I read the victims' letters. And they just speak so
loudly. And they were very well written, including the
minor['s].
. . . .
And in considering the sentencing factors of 706-606, this
is an extraordinarily serious offense. It was done deliberately,
intent --
. . . .
There's got to be a message sent that in order to -- it's
not promoting respect just for the law. It's promoting respect
for human beings. For your own family.
. . . .
In this case, probation is not an option to protect the
public from further crimes of [Alday-Morales]. This is
notoriously a type of activity that is subject to reoccurrence.
3 The Circuit Court appears to reference the videos and photos that
Alday-Morales allegedly recorded, descriptions of which were included in the
Presentence Diagnosis and Report.
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I can't say that that would occur. I don't know. I can't
predict it. But if that's a factor -- and I think it could be --
it's something that has to militate in favor of a severe
sentence.
One of the things that almost never comes up in my mind in
sentencing is educational or vocational training, medical care or
other correctional treatment. Because I don't believe that jail
is -- or prison is necessarily a place to provide effective
treatment.
It typically is not, with the exception of sexual offenses.
. . . .
But the statute says I must consider that and is it
available in a prison sentence.
Well, it is. Because until [Alday-Morales] does that
treatment, he will not be getting paroled. It's quite different
in sexual offenses. They don't parole you until you've actually
completed the treatment.
. . . .
In this particular case –- [HRS § 706-606] says to avoid
unwarranted sentencing disparities.
. . . .
[B]ut there are cases where a warranted sentencing
disparity is appropriate.
And this is one of those cases. It just is. The facts are
horrific.
I'm not going to go into the details, which I normally do.
They're all part of the PSI. But it's -- they're just so
horrible that -- and with the family here.
Bottom line is it's all documented.
(Footnote added.) The Circuit Court then sentenced Alday-
Morales to five-year terms of imprisonment for each count, to
run consecutively, as follows:
On the sentence, the Court finds that [Alday-Morales] must
serve five years -- and you're remanded to the custody to [sic]
the Department of Corrections and Rehabilitation -- on Count One,
Two and Three, for five years on each term.
. . . .
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Based upon my review of the sentencing factors -- which I
reviewed in detail, not only on the record, but in consideration
of this sentence and the sentencing -- presentence report in its
entirety, listening to the victims, and considering [Alday-
Morales's] own statements and statements of counsel, [Alday-
Morales's] sentences are to run consecutive to one another, for a
total of 15 years.
Alday-Morales argues the Circuit Court "failed to
recite the specific circumstances leading it [to] impose
consecutive sentences." While Alday-Morales concedes the
Circuit Court conducted "some" analysis of the HRS § 706-606
factors, he claims the Circuit Court never "articulate[d] any
reason why a concurrent sentence was insufficient or that a
consecutive sentence was required." Alday-Morales further
argues that "[t]he [C]ircuit [C]ourt did not 'articulate a
rational basis' to distinguish the consecutive sentence for
Count 1 and Count 2 from the consecutive sentence for Count 2
and Count 3[.]" Finally, Alday-Morales requests that this court
"vacate the judgment and sentence imposed, and remand the case
for resentencing before a different judge."
The State counters that the Circuit Court's "rationale
of the significant harm, intentional conduct, need for
deterrence and severe punishment was sufficient . . .
justification" for the consecutive sentence. The State argues
that if remanded, a different judge is not required.
"Absent clear evidence to the contrary, it is presumed
that a sentencing court will have considered all factors before
imposing concurrent or consecutive terms of imprisonment under
HRS § 706-606." State v. Kong, 131 Hawaiʻi 94, 102, 315 P.3d
720, 728 (2013) (citation and brackets omitted). Nonetheless,
the Hawaiʻi Supreme Court recently held that this presumption
"does not excuse the court from articulating its reasoning,
especially for consecutive sentencing. . . . The focus must be
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on how the factors support a sentence beyond the concurrent
default." State v. Bunag, 158 Hawaiʻi 122, 128, 587 P.3d 697,
703 (2026). To impose a consecutive sentence, a sentencing
court "must consider the HRS § 706-606 factors" and "adequately
distinguish between the need for consecutive sentences and the
sentence a defendant would have received under the presumption
of concurrent sentencing." Id. at 127, 587 P.3d at 702 (citing
State v. Bautista, 153 Hawaiʻi 284, 290, 535 P.3d 1029, 1035
(2023) (internal quotation marks omitted)). "[A] sentencing
court should explain its rationale for each consecutive sentence
in order to inform the defendant and appellate courts of the
specific factors underlying each sentence." State v. Barrios,
139 Hawaiʻi 321, 337, 389 P.3d 916, 932 (2016) (emphasis added).
Here, the Circuit Court did not specifically explain
its rationale for imposing multiple consecutive sentences for
three Class C felonies, totaling fifteen years. Though the
Circuit Court analyzed pertinent HRS § 706-606(1) factors, it
did not "articulat[e] a clear and comprehensive rationale for
each consecutive sentence" and treated the three felonies "as
one offense." See Bautista, 153 Hawaiʻi at 290-91, 535 P.3d at
1035-36. The record does not reflect the requisite "substantial
and pointed reasons to justify" each consecutive sentence. See
id. at 291, 535 P.3d at 1036. The Circuit Court's
characterization of the facts as "horrific" and declaration that
a sentencing disparity "just is" appropriate does not meet the
supreme court's exhortation that sentencing courts "should
explain [their] rationale for each consecutive sentence." See
Barrios, 139 Hawaiʻi at 337, 389 P.3d at 932. The Circuit Court
was required to "specify [the] basis . . . for determining how
many consecutive sentences to impose," which it must do "[e]ven
if a court uses identical factors to support multiple
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consecutive sentences[.]" See Bautista, 153 Hawaiʻi at 290, 535
P.3d at 1035 (internal quotation marks omitted).
On this record, we conclude that the Circuit Court did
not adequately justify its imposition of multiple consecutive
sentences on Alday-Morales, as Hawaiʻi precedent requires, and
accordingly, the sentence was outside the scope of its
discretion. See Kong, 131 Hawaiʻi at 101, 315 P.3d at 727
(reviewing sentencing matters for abuse of discretion).
Finally, Alday-Morales's requested "resentencing
before a different judge" is not supported by any argument or
authority, and we do not address it. See Hawaiʻi Rules of
Appellate Procedure Rule 28(b)(7).
For the foregoing reasons, the October 23, 2025
Judgment of Conviction and Sentence entered by the Circuit Court
of the Second Circuit is vacated with respect to the sentence
imposed, and we remand for resentencing.
DATED: Honolulu, Hawai‘i, September 22, 2026.
On the briefs:
/s/ Karen T. Nakasone
Paige Medinger,
Chief Judge
Deputy Public Defender
for Defendant-Appellant.
/s/ Keith K. Hiraoka
Associate Judge
Arlene Y. Watanabe,
Deputy Prosecuting Attorney
/s/ Kimberly T. Guidry
County of Maui
Associate Judge
for Plaintiff-Appellee.
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