LIHU‘E — Harold Spear III, M.D., learned in Fifth Circuit Court on Wednesday that he will be waiting until federal sentencing is completed before any state sentencing.
Spear operated a clinic out of Hanapepe and was arrested in 2006 for distributing and dispensing Schedule II controlled substances without an examination or consultation and not for a legitimate medical purpose in Hawai‘i. He pleaded guilty in a plea agreement filed in U.S. District Court of Hawai‘i on June 14, 2007.
Hawai‘i Deputy Attorney General Gary Senaga spoke by phone from Honolulu during the session in Judge Kathleen Watanabe’s courtroom. Stephanie Sato of the Public Defender’s Office was present with Spear. His federal case attorney, Alvin Nishimura, was absent.
Senaga said Assistant U.S. Attorney William Shipley Jr. would update him soon on the sentencing phase after District Court Judge David Alan Ezra on Aug. 24 denied Spear’s motion to withdraw a guilty plea on federal charges. Two evidentiary hearings were held in June and July to consider the motion to withdraw the plea in order to accept a plea on two state charges.
Ezra had ruled that Spear offered no explanation for his decision to withdraw and plead guilty to state charges other than to claim they were “separate and distinct” and was essentially a change of heart.
Spear was represented by at least five different attorneys in the state case, and the federal court could find no indication that he attempted to reconcile inconsistencies as the basis for withdrawing his federal plea to plead guilty to related state charges.
Sato on Wednesday said the state would need to coordinate the timing of its sentencing phase to follow the federal phase by about six weeks. This is about the time that Spear would have available to appear were he to receive federal prison time and placed in either a Hawai‘i or Mainland facility.
Watanabe agreed to another calendar call on Nov. 23, with a tentative status of sentencing hearing set for Dec. 14.
The federal charges present up to 20 years in prison and a fine of up to $1 million, with supervised release for three years to life. Spear was also indicted on two counts of illegally dispensing Schedule III drugs in federal court for the Northern District of Alabama in February 2008. Those charges carry up to five years prison and a $250,000 fine.
The case was transferred to the District of Hawai‘i and in July 2009 Spear pleaded guilty to two felony cases in a plea agreement before former U.S. Magistrate Judge (now U.S. District Judge) Leslie Kobayashi. The plea dropped all but three counts on issuing prescriptions outside the usual course of professional medical practice and not for a legitimate medical purpose.
Sentencing was scheduled for October 2009, but was continued on two more occasions, before Spear motioned to withdraw his plea on Jan. 5, 2010. Spear then withdrew his motion to withdraw the guilty plea in March 2010 and U.S. Magistrate Judge Kevin Chang scheduled sentencing for April 2010.