The Maui News

WAILUKU — A judge denied an inmate’s request Wednesday to reconsider a prison sentence and place him on probation for punching a man who fell to the ground and died in Paia.

David Homalon Jr., 28, of Makawao was sentenced in March to a five-year prison term after a jury found him guilty of second-degree assault.

“I thought it was clearly the right sentence to impose, and I feel the same way today,” 2nd Circuit Judge Richard Bissen said in denying Homalon’s request.

Homalon was originally charged with manslaughter in the death of 45-year-old Fabian Martinez, who was walking by Mana Foods in Paia when he was confronted by Homalon the evening of July 23, 2015.

After an exchange that lasted a minute or two, Homalon punched Martinez in his lower left jaw, according to testimony at his trial. Martinez stiffened and fell back from the curb onto the asphalt, hitting the back of his head on Baldwin Avenue, according to testimony.

Martinez never regained consciousness and was pronounced brain dead two days later at Maui Memorial Medical Center. An autopsy showed that he died of bleeding in his brain.

Defense attorney Ben Lowenthal said the Hawaii Paroling Authority set a minimum term of three years that Homalon must serve before being eligible for parole. He is incarcerated at Halawa Correctional Facility on Oahu.

“He would be an ideal candidate for probation,” Lowenthal said. “He has a lifelong burden with what happened that day. He’s not going to forget it.”

If he works full time, Homalon could pay restitution and “have a more healing effect for the victim’s family,” Lowenthal said.

Judge Bissen, who presided over Homalon’s trial, said that during an extensive sentencing hearing, he had considered factors raised again by the defense in asking for a reconsideration of the prison sentence.

“I don’t find that there’s anything new that was not already presented at the sentencing,” Bissen said.

He noted that factors to be considered in sentencing someone to probation instead of prison included that the defendant’s conduct neither caused nor threatened serious harm and that the defendant acted under strong provocation.

Referring to Homalon, Bissen said, “He caused the death of an innocent person.”

“There was zero provocation,” Bissen said. “He was the provoker. That’s not even in question.”

The judge also said he couldn’t find substantial grounds tending to excuse or justify the defendant’s criminal conduct.

“His feelings were hurt. His pride was hurt,” Bissen said. “How can that be considered grounds?”

Bissen said he didn’t find that the victim induced or facilitated commission of the crime. “The guy was walking into a store,” Bissen said. “It was one guy. The defendant had four friends with him. He caught the guy by total surprise.”

Lowenthal said Homalon was unlikely to commit another offense.

“I don’t know that,” Bissen said. “You can say he’s not done it before besides this one time. I’m not going to say that he will not do this again. I don’t know that.”