WAILUKU - Although a man had a plea deal recommending probation and no jail, a judge said that the defendant violated the agreement when he didn't show up for his sentencing earlier this month.
"You just turned this no-jail deal into a prison deal," 2nd Circuit Judge Rhonda Loo told Rodney Herbert.
She sentenced the 40-year-old Wednesday to a five-year prison term for stealing from a Habitat for Humanity recycling container earlier this year.
Herbert had pleaded no contest to second-degree theft and a reduced charge of second-degree criminal trespassing in connection with a March 4 theft from the nonprofit organization's e-cycling container on East Main Street in Wailuku.
According to court records, police responding to a burglary report at the location found electronics next to a bag of tools and a bag containing Herbert's medication. Herbert,wearing black utility gloves, was found hiding in the recycling container, police reported.
Herbert also pleaded no contest to third-degree promotion of a detrimental drug for his arrest April 18 when police found a marijuana plant on the passenger floorboard of his vehicle, court records show. Officers had been looking for him because an all-points bulletin had been issued for him.
The marijuana plant was 2 inches tall, said Deputy Public Defender William "Pili" McGrath.
Loo said she didn't believe Herbert's contention that he had been tending to a friend's sick marijuana plant.
McGrath said that when the theft from the container occurred, Herbert had been living in a field with goats and was "surviving by scrounging."
Herbert and his wife have since moved into an apartment, McGrath said.
"I don't think he's a dangerous or wicked person," McGrath said. "He's just a person who's trying to get by with limited resources."
Herbert said he now asks permission "everywhere I go for recycling purposes."
After not showing up on his original sentencing date of Oct. 10, Herbert showed up in court and at the public defender's office the next day, McGrath said. "He was a day late and a dollar short, but he wasn't trying to hide out," McGrath said.
Loo said Herbert previously had been on probation and had been imprisoned and paroled. She said his criminal history includes 35 arrests and six convictions.
According to the Hawaii Criminal Justice Data Center, Herbert has convictions in Hawaii for third-degree promotion of a dangerous drug and possessing drug paraphernalia, as well as parole and probation revocations. He is a registered sex offender with a California conviction for lewd and lascivious acts with a child in 1994, according to the data center.
"I think you knew the drill," Loo told Herbert. "I think you knew you were supposed to come to court. The fastest way to turn a no-jail deal to a prison deal is not to come to court on your sentencing date."
Herbert was ordered to pay $51 in restitution for a broken lock.
In other cases:
* A 25-year-old Wailea man was sentenced to a one-year jail term as part of five years' probation for shoplifting from two stores at the Shops at Wailea last year.
Justin Boughan was ordered to pay $433 in restitution and $10,296 in fines as part of his sentence imposed Wednesday.
"You go into two very expensive stores and you steal expensive items," Loo said. "When you go out and steal from high-class stores, you get hit with high-class fines."
Boughan asked to be released from jail Wednesday, in accordance with a plea agreement recommending no additional jail.
But Deputy Prosecutor Kenton Werk argued for the one-year jail term, saying Boughan hadn't complied with the plea agreement by committing another crime.
Boughan had pleaded no contest to two counts of second-degree theft.
On June 14, 2011, Boughan was captured on video surveillance at the Louis Vuitton store, where two wallets valued at more than $1,000 were stolen, Werk said.
Boughan was again seen on video surveillance Oct. 4 when three pairs of sunglasses valued at more than $1,000 were stolen from the ILORI store, Werk said.
On June 9, while Boughan was awaiting sentencing in the shoplifting cases, he was arrested for allegedly stealing a visitor's backpack containing a cellphone, cameras, cash and credit cards from the beach fronting the Grand Wailea, Werk said.
He said Boughan has no reason to steal because his parents provide for all his needs. "His actions show a callous disregard for the anguish he's causing them in particular," Werk said.
Referring to the latest arrest, Deputy Public Defender Greg Ball said Boughan couldn't be punished for a crime he hasn't been convicted of.
Loo said she wasn't considering the later case, which is pending in another courtroom.
The judge denied Boughan's request for a chance to keep the convictions off his record. He was ordered not to consume alcohol or illegal drugs and not to return to the Shops at Wailea.
* A 45-year-old Kihei woman, arrested in an investigation involving thefts from the Sears warehouse, was ordered to pay a $1,000 fine and was given a chance to keep a theft conviction off her record if she complies with court requirements for one year.
Maria Oasay had pleaded no contest to a reduced charge of third-degree theft.
She was among employees charged with participating in an ongoing series of thefts from the Sears warehouse from May 2009 to May 2010, said Deputy Prosecutor Jeffery Temas.
He said Oasay admitted to stealing a Kenmore refrigerator, two Kenmore top-loading washing machines and a Kenmore electric range, with a total value of nearly $3,000.
Defense attorney David Sereno said Oasay didn't work at the warehouse, but others brought her the appliances and said they weren't working. She was told that if she could fix the appliances, she could take them home and if she couldn't, she could throw them away, Sereno said.
"She didn't realize that was theft," he said. "When she was confronted by Sears investigators, she gave a full apology and confession."
Second Circuit Judge Joseph Cardoza imposed the sentence Tuesday.
* Lila Fujimoto can be reached at lfujimoto@mauinews.com.
