State v. Pali
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Petitioner was sentenced to a five-year term of probation for the offenses of promoting a dangerous drug in the third degree and prohibited acts related to drug paraphernalia. The probationary sentence was granted to Petitioner as a first time drug offender pursuant to Haw. Rev. Stat. 706-622.5. The sentence contained several terms and conditions. After the conclusion of Petitioner's probationary period, Petitioner filed a motion for an order of expungement. The circuit court concluded that Petitioner did not qualify for expungement of her felony convictions because, in committing other crimes during her probationary period, she had violated a term of her probation. The Supreme Court vacated the order denying Petitioner's motion, holding (1) for the purposes of expungement of a drug conviction, the requirement that a defendant sentenced to probation under section 706.622.5 has "complied with other terms and conditions" is satisfied if the defendant has completed her probationary term and has been discharged from probation; and (2) under the circumstances of this case, because Petitioner had completed her probation term, she had, in effect, complied with the terms and conditions of probation for purposes of expungement under section 706-622.5. Remanded for entry of an order granting Petitioner's motion.
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Electronically Filed
Supreme Court
SCWC-11-0000451
21-MAY-2013
01:08 PM
IN THE SUPREME COURT OF THE STATE OF HAWAI#I
---o0o--STATE OF HAWAI#I, Respondent/Plaintiff-Appellee,
vs.
LISA ANN PALI, Petitioner/Defendant-Appellant.
NO. SCWC-11-0000451
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(ICA NO. CAAP-11-0000451; CR. NO. 05-1-0366(2))
May 21, 2013
ACOBA, MCKENNA, and POLLACK JJ., WITH RECKTENWALD, C.J.,
CONCURRING AND DISSENTING, WITH WHOM NAKAYAMA, J., JOINS
OPINION OF THE COURT BY ACOBA, J.
We hold that for the purposes of expungement of a drug
conviction, Hawai#i Revised Statutes (HRS) § 706-622.5(4) (Supp.
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2004),1 the requirement that a defendant sentenced to probation
under HRS § 706-622.5(1)2 has “complied with other terms and
1
HRS § 706-622.5(4) provides in relevant part:
(4) The court, upon written application from a
person sentenced under this part, shall issue a court
order to expunge the record of conviction for that
particular offense; provided that a person has
successfully completed the substance abuse treatment
program and complied with other terms and conditions
of probation. A person sentenced to probation under
this section shall be eligible for one time only for
expungement under this subsection.
(Emphases added.)
2
HRS § 706-622.5(1) states:
(1) Notwithstanding section 706-620(3), a person
convicted for the first or second time for any offense
under section 329-43.5 involving the possession or use
of drug paraphernalia or any felony offense under part
IV of chapter 712 involving the possession or use of
any dangerous drug, detrimental drug, harmful drug,
intoxicating compound, marijuana, or marijuana
concentrate, as defined in section 712-1240, but not
including any offense under part IV of chapter 712
involving the distribution or manufacture of any such
drugs or substances and not including any
methamphetamine trafficking offenses under sections
712-1240.7 and 712-1240.8, is eligible to be sentenced
to probation under subsection (2) if the person meets
the following criteria:
(a) The court has determined that the person is
nonviolent after reviewing the person's criminal
history, the factual circumstances of the
offense for which the person is being sentenced,
and any other relevant information;
(b) The person has been assessed by a certified
substance abuse counselor to be in need of
substance abuse treatment due to dependency or
abuse under the applicable Diagnostic and
Statistical Manual and Addiction Severity Index;
and
(c) Except for those persons directed to
substance abuse treatment under the supervision
of the drug court, the person presents a
proposal to receive substance abuse treatment in
accordance with the treatment plan prepared by a
certified substance abuse counselor through a
substance abuse treatment program that includes
an identified source of payment for the
treatment program.
(continued...)
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conditions” is satisfied if the defendant has completed his or
her probationary term and has been discharged from probation.
Because the Circuit Court of the Second Circuit (the court)3 held
to the contrary, we vacate the July 26, 2012 judgment by the
Intermediate Court of Appeals (ICA)4 affirming the court’s
May 11, 2011 order denying the January 31, 2011 Motion for an
Order of Expungement (Motion) filed by Petitioner/DefendantAppellant Lisa Ann Pali (Petitioner), and also vacate the
aforesaid order.
I.
On December 29, 2005, Petitioner was sentenced to a
five-year term of probation for the offenses of Promoting a
Dangerous Drug in the Third Degree, HRS § 712-1243(1) (1993)5 and
Prohibited Acts Related to Drug Paraphernalia, HRS § 329-43.5(a)
(1993).6
The probationary sentence was granted to Petitioner as
2
(...continued)
(Emphases added.)
3
The Honorable Shackley F. Raffetto presided.
4
The Summary Disposition Order (SDO) was filed on June 29, 2012 by
Chief Judge Craig H. Nakamura and Associate Judges Daniel R. Foley and Alexa
D.M. Fujise.
5
HRS § 712-1243(1) states that, “[a] person commits the offense of
promoting a dangerous drug in the third degree if the person knowingly
possesses any dangerous drug in any amount.”
6
HRS
§ 329-43.5(a) states:
It is unlawful for any person to use, or to
possess with intent to use, drug paraphernalia to
plan, propagate, cultivate, grow, harvest,
manufacture, compound, convert, produce, process,
(continued...)
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a “first time drug offender” pursuant to HRS § 706-622.5.
The
purpose of HRS § 706-622.5 is “to promote treatment of nonviolent
substance abuse offenders, rather than [imposing] incarceration,
as being in the best interests of the individual and the
community at large[,]” in order to reduce recidivism.
Conf.
Comm. Rep. No. 96-02, in 2002 Senate Journal, at 986, in 2002
House Journal, at 1796.
The Judgment, Conviction and Probation
Sentence, filed by the court on December 29, 2005, included the
following “Terms and Conditions of Probation”:
1.
5.
You must not commit another federal or state crime
during the term of probation;
. . . .
You must notify a probation officer promptly if
arrested or questioned by a law enforcement officer[.]
. . . .
Also, the Judgment, Conviction and Probation Sentence contained a
number of “Special Terms and Conditions,” including that
Petitioner “must not possess, use, or consume any alcohol,
unprescribed or illegal drug nor possess any drug-related
paraphernalia.”
On January 24, 2011, after the conclusion of
Petitioner’s probation period, the Adult Client Services Branch
6
(...continued)
prepare, test, analyze, pack, repack, store, contain,
conceal, inject, ingest, inhale, or otherwise
introduce into the human body a controlled substance
in violation of this chapter. Any person who violates
this section is guilty of a class C felony and upon
conviction may be imprisoned pursuant to section 706660 and, if appropriate as provided in 706-641, fined
pursuant to section 706-640.
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(probation department) filed a Certificate of Discharge
(Certificate), providing in relevant part as follows:
Wherefore, having completed the period of probation on
December 28, 2010, [Petitioner] shall be relieved of any
obligations imposed by the order of the court and shall have
satisfied the disposition of the court except as to any
action to collect unpaid fines, restitution, attorney’s
fees, costs, or interest (HRS [§] 706-630); thereby, is
restored to such rights deprived pursuant to Section 831-2
of the [HRS].
(Emphases added) (original emphasis omitted).
2011, Petitioner filed her Motion.
On January 31,
On February 8, 2011,
Respondent/Plaintiff-Appellee State of Hawai#i (Respondent) filed
its Statement of Opposition to the Motion (Statement of
Opposition).
The Statement of Opposition included a discussion
of Petitioner’s criminal history during the probationary period
and stated that Petitioner was convicted of Theft in the Fourth
Degree on November 8, 2006, Operating a Vehicle Under the
Influence of an Intoxicant (OVUII) on March 7, 2007, Criminal
Contempt of Court on May 3, 2007, and Driving Without a License
on May 29, 2008 and again on December 15, 2009.
The Statement of Opposition also noted that Petitioner
had not presented documentation to aid the court in assessing
Petitioner’s completion of a substance abuse treatment program.
On February 9, 2011, Petitioner filed an Addendum to her Motion
(Addendum).
This Addendum provided certificates indicating
Petitioner’s completion of several substance abuse treatment
programs, but did not address Petitioner’s criminal history.
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The court held an initial hearing on February 10, 2011
with respect to Petitioner’s Motion.
During the hearing, the
court raised the issue of Petitioner’s prior convictions,
stating, “I’m just telling you right now it doesn’t look like
[Petitioner] deserves an expungement because of these convictions
. . . .
I don’t know if she told probation -- even if she told
them.”
Following this statement, the court asked defense counsel
if she wanted more time, apparently to check with Petitioner’s
probation officer and to prepare a response to the judge’s
remarks regarding the prior convictions.
She answered in the
affirmative and the judge granted a continuance.
On April 18, 2011, Petitioner filed a “Memo in Support
of Motion for An Order of Expungement Pursuant to HRS § 706622.5(4)” (Memo in Support).
The Memo in Support stated, inter
alia, that Petitioner had successfully completed three substance
abuse programs, complied with the other terms and conditions of
probation, and her “conviction[] should be expunged.”
[P]er her Probation Officer [], [Petitioner] has in fact
complied with the “other terms and conditions” of her
probation. This despite [Petitioner’s] conviction for Theft
4 (where she was considered an accomplice to her daughter
because they came into the store together), her [OVUII]
(based on a relapse after finishing [a drug abuse treatment
program] at Malama in 2006) when she was starting Family
Court Drug Court after the [OVUII] as well as participating
in The Shelter’s Relapse Prevention Program after the
[OVUII], and because she was getting Dual Diagnosis
treatment based on Mental Health and Drug addiction issues,
[Petitioner’s probation officer] still believes [Petitioner]
has successfully complied with the other terms and
conditions of her probation and thus discharged [Petitioner]
from Probation, with [Petitioner’s probation officer]’s
supervisor’s approval.
[Petitioner’s probation officer] is proud of
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[Petitioner] and related that [Petitioner] continues to
attend AA/NA and is a mentor for other Family Court Drug
Court clients. [Petitioner’s probation officer] also
relates that while on probation to date, [Petitioner] is
trying to adopt her granddaughter and cannot do so if she
has a felony conviction.
As the law under HRS § 706-622.5 speaks to complying
with “other terms and conditions” of probation and as in her
probation officer’s opinion and recommendation that
[Petitioner] has complied with the other terms and
conditions to her satisfaction, [Petitioner’s] felony
convictions should be expunged at this time.
(Emphases added.)
The court continued with the hearing on Petitioner’s
Motion on April 21, 2011.
On that date, Petitioner’s counsel
stated, “I don’t have anything further to add to my [Memo in
Support].”
The court proceeded to deny the Motion:
THE COURT: . . . . Well, after reviewing this
matter, it is quite clear that [Petitioner] was
convicted of one, two, three, four crimes including
driving under the influence of an intoxicant and twice
driving without a license while she was on probation.
[HRS § 706-622.5(4)] requires that she have
completed her substance abuse treatment and complied
with other terms and conditions of her probation, and
not committing another crime is clearly a condition of
the probation. So it’s the [c]ourt’s view that she
hasn’t qualified under the statute for the relief
requested. So I’m going to deny the motion.
(Emphases added.)
The court thus concluded that Petitioner did
not qualify for expungement of her felony convictions because, in
committing other crimes during her probationary period, she had
violated a term of her probation.
II.
A.
Pertinent to the Application, Petitioner argued in her
Opening Brief to the ICA that the court (1) erred in denying her
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Motion because its “hyper-technical” interpretation of HRS § 706622.5(4) disregarded legislative intent and HRS § 706-630 (Supp.
1998),7 a statute that provides the procedure for terminating a
defendant’s probation obligations; (2) violated her due process
rights because it decided that she was in violation of a term and
condition of her probation after she had been discharged from
probation; (3) lacked jurisdiction to modify her original
probation sentence after her discharge, which in effect, it did
when the court concluded that Petitioner had violated a term and
condition of probation; and (4) incorrectly found that she had
been convicted of multiple crimes during her period of probation,
because that finding was not supported by substantial evidence.8
B.
In its Answering Brief to the ICA, Respondent did not
contest expungement.
Rather, Respondent stated (1) that the
court had jurisdiction to hear Petitioner’s Motion because such a
motion can be made before or after the term of probation is
7
HRS § 706-630 states:
Discharge of defendant. Upon the termination of
the period of the probation or the earlier discharge
of the defendant, the defendant shall be relieved of
any obligations imposed by the order of the court and
shall have satisfied the disposition of the court,
except as to any action under this chapter to collect
unpaid fines, restitution, attorney’s fees, costs, or
interest.
(Emphasis added.)
8
In light of our disposition, we need not decide this question.
8
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completed, and (2) that the court did not err in finding that
Petitioner committed another crime while she was on probation,
but (3) agreed with Petitioner that the court erred in denying
the Motion, because Petitioner had “satisfied the disposition of
the court” upon her discharge from probation.
Respondent thus
concurred that Petitioner was entitled to expungement of her
conviction.
C.
With respect to Petitioner’s first argument, the ICA
held that the court’s denial of Petitioner’s Motion was
consistent with the plain language of HRS § 706-622.5(4)
requiring that the movant “comply with other terms and conditions
of probation,” and that HRS § 706-630 is not in conflict with HRS
§ 706-622.5(4) because HRS § 706-630 only “governs the
probationer’s future obligations after the probation sentence has
been completed,” rather than obligations of the court in
expungement proceedings.
State v. Pali, No. CAAP-11-0000451,
2012 WL 2505516, at *1 (App. June 29, 2012) (SDO) (emphasis in
original).
In addressing Petitioner’s second argument that her due
process rights had been violated because she did not have notice
that “her original sentence might be modified,” the ICA stated
that “[Respondent] did not seek revocation of [Petitioner]’s
probation, nor did it seek to modify its terms after
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[Petitioner]’s probation had ended.”
Id.
Further, “Petitioner
presented no authority for the proposition that [Respondent] must
raise any violation of probation for purposes of expungement, in
advance of the filing of the motion to expunge.”
Id. (emphasis
in original).
The ICA also rejected Petitioner’s third argument,
stating that the decision of the court under HRS § 706-622.5 “did
not convert the expungement subsection into a term of her
probation nor make [her probation] subject to revocation or
modification procedures[,]” which would have resulted in a
jurisdictional defect.
Id. at *2.
Finally, the ICA undertook a plain error review9 with
regard to the court’s finding that Petitioner had been convicted
of five offenses during her probationary period.
Id.
The ICA
noted that the court’s finding was based on prior convictions
presented by Respondent, which Petitioner failed to contradict
with evidence and effectively admitted during the proceedings.10
Id.
Thus, the ICA held that the court had not committed plain
error in finding that Petitioner had been convicted of crimes
during her probationary period, and affirmed the court’s May 11,
2011 order denying Petitioner’s Motion.
Id.
9
In light of our disposition, we need not discuss whether the ICA’s
so called “plain error” review was proper.
10
See Petitioner’s Memo in Support, quoted in part, supra.
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III.
Petitioner presented three questions in her
Application, namely (1) “[w]hether the ICA gravely erred in
holding that the [] court’s denial of [Petitioner]’s motion for
expungement of conviction was consistent with the plain language
of HRS § 706-622.5(4), where [Petitioner] completed substance
abuse treatment and was successfully discharged from
probation[;]” (2) “[w]hether the ICA gravely erred in rejecting
[Petitioner]’s due process challenge and whether such holding is
obviously inconsistent with the ICA decision in State v. Johnson,
92 Hawai#i 36, 986 P.2d 987 (App. 1999)[;]” and (3) “[w]hether the
ICA gravely erred in rejecting [Petitioner]’s challenge to the []
court's jurisdiction to address probation violations after the
probation period had lapsed and whether such holding is obviously
inconsistent with the ICA decision in State v. Asuncion, 120
Hawai#i 312, 205 P.3d 577 (App. 2009).”
On October 8, 2012,
Respondent filed a Response to Petitioner’s Application
(Response).
IV.
The purpose of Act 161, S.L.H. 2002, which enacted HRS
§ 706-622.5, is “to require first time non-violent drug
offenders, . . . to be sentenced to undergo and complete drug
treatment instead of incarceration.”
161, § 1 at 571.
2002 Haw. Sess. Laws Act
The 2002 Conference Committee Report declares
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that the statute was designed to “approach[] crime as being the
result of addiction that is treatable,” and therefore, “to
promote treatment of nonviolent substance abuse offenders, rather
than incarceration.”
Conf. Comm. Rep. No. 96-02, in 2002 Senate
Journal, at 987, in 2002 House Journal, at 1796.
This objective
is designed to help the individual avoid the negative effects of
incarceration.
See 2002 Haw. Sess. Laws Act 161, § 1 at 569
(“Without proper treatment, an offender is at risk to continue to
be drug dependent and to commit new offenses[.]”).
Initially it may be noted that, with respect to HRS §
706-622.5(4), “expungement of record” means “[t]he removal of a
conviction (esp. for a first offense) from a person’s criminal
record.”
Black’s Law Dictionary 662 (9th ed. 2009).
HRS § 706-
622.5(4) indicates the defendant’s record will be expunged only
for convictions that fall within the purview of HRS § 706-622.5,
specifically drug offenses prescribed by HRS § 706-622.5(1).
Thus, the expungement allowed under the statute is limited to
those felony drug convictions for which the defendant was
sentenced to probation, and will not apply to any other
conviction.
It is plain that the expungement provision of HRS §
706-622.5(4) would enable offenders to avoid the lasting negative
effects of a criminal record stemming from a felony conviction.
For example, Petitioner’s Memo in Support alleged that a record
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of a felony conviction would prevent her from adopting her
granddaughter.
Generally, a felony conviction imposes
substantial disabilities on a defendant.
See, e.g., Haw. Const.
art. 2, § 2 (noting that a convicted felon cannot vote except
upon the person’s final discharge); HRS § 378-2.5 (Supp. 2011)
(indicating that an employer “may inquire about and consider an
individual's criminal conviction record concerning hiring,
termination, or the terms, conditions, or privileges of
employment” without engaging in a discriminatory practice); HRS §
612-4 (Supp. 2011) (noting that a convicted felon may not serve
on a jury); Haw. Admin. Rules (HAR) § 17-663-82 (stating that
felony convictions affect status when an individual or his or her
family is applying for public benefits).
See also State v.
Nguyen, 81 Hawai#i 279, 288, 916 P.2d 689, 698 (1996) (noting that
a criminal conviction can have collateral consequences, including
“loss of the right to vote [Haw. Const. art. 2, § 2] or [to]
travel abroad [see, e.g. 51 C.F.R. § 51.61 (2008)], loss of civil
service employment [see, e.g., HRS § 831-3.1 (Supp. 2003)], loss
of a driver’s license [HRS § 286-240 (Supp. 2006)], loss of the
right to possess firearms [HRS § 134-7(b) (Supp. 2006)] or an
undesirable discharge from the Armed Services [see, e.g., Kalista
v. Sec’y of Navy, 560 F. Supp. 608, 614 (D. Colo. 1983)].”);
David Wolitz, The Stigma of Conviction: Coram Nobis, Civil
Disabilities, and the Right to Clear One’s Name, 2009 B.Y.U. L.
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Rev 1277, 1315 (2009) (“The reputational consequences of
conviction are already substantial, but the ongoing explosion of
information available over the Internet[] . . . greatly
exacerbates the reputational damage of conviction.”).
V.
In her Application, Petitioner first argues that the
ICA erred when it upheld the court’s denial of the Motion
“because it appeared that [Petitioner] was convicted multiple
times for criminal offenses during her probationary period, [and
this] was consistent with the plain language of [HRS § 706622.5(4)].”
Pali, 2012 WL 2505516, at *1.
She maintains that
use of the term “shall” in the statute mandates that her Motion
be granted, because she had successfully completed drug treatment
and her probation term had been satisfied.
In its Response to this court, Respondent acknowledges
that it took the same position as Petitioner with respect to
statutory interpretation in its Answering Brief to the ICA.
As
noted supra, before the ICA, Respondent acknowledged that
Petitioner had “satisfied the disposition of the court” upon her
discharge from probation and was therefore entitled to an
expungement of her conviction.
However, in its Response to the
Application, Respondent contends that HRS § 706-622.5(4) requires
that both conditions, the treatment program and the terms and
conditions of probation, must be complied with.
14
Further,
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Respondent reiterates the ICA’s statement that “HRS § 706-630
does not address the expungement of the defendant’s probation
sentence or whether the probationer complied with conditions of
probation, but instead governs the probationer’s future
obligations . . . .” (Quoting id.) (Emphasis in original.)
A.
It is well-established that the starting point for
statutory interpretation is the language of the statute, and
where such language is “plain and unambiguous, our sole duty is
to give effect to its plain and obvious meaning.”
Dejetley v.
Kaho#ohalahala, 122 Hawai#i 251, 262, 226 P.3d 421, 432 (2010)
(quoting Rees v. Carlisle, 113 Hawai#i 446, 452, 153 P.3d 1131,
1137 (2007)).
Petitioner is correct that the word “shall” in the
statute is ordinarily used to denote mandatory action.11
However,
the words “provided that” contemplate that the individual meet
the two conditions described in the statute, namely, (1)
successful completion of the substance abuse treatment and (2)
compliance with other terms and conditions of probation.
The
pivotal question presented in this case is how the court is to
determine whether the movant has “complied with other terms and
conditions of probation.”
This issue arises because although
several convictions occurred during Petitioner’s probationary
11
See, e.g., State v. Tierney, 127 Hawai#i 157, 169, 277 P.3d 215,
263 (2012) (“shall” characterized as mandatory language in a statute).
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period, probation was not revoked and Petitioner completed her
probationary period and was formally discharged.
B.
“Complied” in HRS § 706-622.5(4) is not a term expressly
defined in the statute, and, thus, this court “may ‘resort to legal
or other well accepted dictionaries as one way to determine the
ordinary meaning of certain terms not statutorily defined.’”
State
v. Kikuta, 125 Hawai#i 78, 96, 253 P.3d 639, 658 (2011) (quoting
State v. Kalama, 94 Hawai#i 60, 63 n.6, 8 P.3d 1224, 1227 n.6 (2000))
(citation omitted) (brackets and internal quotation marks omitted).
There are multiple dictionary definitions of “comply.”
definitions is “to complete, perform what is due[.]”
One of the
Merriam
Webster’s Collegiate Dictionary 236 (10th ed. 1993) (emphasis
added).12
It is not clear in the context of the statutory provisions
governing probation whether the term “complied” in HRS § 706-622.5 is
satisfied by the “discharge” from probation, which signifies that the
probationer has completed probation and “satisfied the disposition of
the court” under HRS § 706-630 and as reflected in the Certificate of
Discharge.
Here, criminal violations existed and probation could have
been revoked under HRS § 706-625 (Supp. 2011), but was not.
Instead,
the defendant completed her probation period, and was released from
12
“Comply” can also mean “to be ceremoniously courteous[,]” or “to
conform or adapt ones’ actions to another’s wishes, to a rule, or to
necessity[.]” Merriam Webster’s Collegiate Dictionary 236.
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all further court obligations under HRS § 706-630 (except incidental
matters not relevant here).
Plainly, this situation was not
contemplated in HRS § 706-622.5(4) with respect to compliance with
“other terms and conditions of probation.”
Because probation is involved, “compliance,” in HRS § 706622.5(4) should be construed in pari materia with other relevant
statutory provisions regarding probation.
Statutes on the same
subject matter should be construed in pari materia in order to
clarify the meaning of a term.
See State v. Kamana#o, 118 Hawai#i
210, 218, 188 P.3d 724, 732 (2008) (“[L]aws in pari materia, or upon
the same subject matter, shall be construed with reference to each
other.
What is clear in one statute may be called upon in aid to
explain what is doubtful in another.”) (internal quotation marks and
citation omitted).
13
HRS § 706-62513 concerns violations of probation
HRS § 706-625 states, in relevant part:
(1) The court, on application of a probation officer,
the prosecuting attorney, the defendant, or on its own
motion, after a hearing, may revoke probation except as
provided in subsection (7), reduce or enlarge the conditions
of a sentence of probation, pursuant to the provisions
applicable to the initial setting of the conditions and the
provisions of section 706-627.
(2) The prosecuting attorney, the defendant’s
probation officer, and the defendant may appear in the
hearing to oppose or support the application, and may submit
evidence for the court’s consideration.
(3) The court shall revoke probation if the defendant
has inexcusably failed to comply with a substantial
requirement imposed as a condition of the order or has been
convicted of a felony. The court may revoke the suspension
of sentence or probation if the defendant has been convicted
of another crime other than a felony.
(4) The court may modify the requirements imposed on the
defendant or impose further requirements, if it finds that such an
action will assist the defendant in leading a law-abiding life.
(continued...)
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and vests discretion in the court to decide what constitutes a
violation and what remedy should apply.
HRS § 706-625(1) indicates
that “[a] court, on application of a probation officer, the
prosecuting attorney, the defendant, or on its own motion, after a
hearing, may revoke probation . . . , [or] reduce or enlarge the
conditions of a sentence of probation.”
(Emphases added.)
“A court
shall revoke probation if the defendant has inexcusably failed to
comply with a substantial requirement imposed as a condition of the
order or has been convicted of a felony.”
HRS § 706-625(3).
A court
may revoke the suspension of a sentence or probation if the defendant
has been convicted of another crime other than a felony.
Id.
A
court may also “modify the requirements imposed on the defendant or
impose further requirements.”
HRS § 706-625(4).
Thus, a court has
the authority to determine, at any time during a defendant’s
probation period, whether that defendant is in compliance with the
terms and conditions of probation.
If a “court revokes probation[,]”
it “may impose on the defendant any sentence that might have been
imposed originally . . . .”
HRS § 706-625(5).
In the instant case, the probation department was charged
with the supervision of Petitioner and determined, as indicated in
the Certificate issued pursuant to HRS § 706-630, that Petitioner
“satisfied the disposition of the court.”
13
See HRS § 806-73(a) (Supp.
(...continued)
(5) When the court revokes probation, it may impose on the
defendant any sentence that might have been imposed originally for
the crime of which the defendant was convicted. (Emphasis added).
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2001) (“A probation officer shall keep informed concerning the
conduct and condition of the defendant and report thereon to the
court, and shall use all suitable methods to aid the defendant and
bring about an improvement in the defendant’s conduct and
condition.”).
The probation officer or the prosecuting attorney
could have timely moved for revocation of probation before the
completion of her probationary term, see HRS § 706-625(1), but did
not.
Review of compliance with terms of probation under HRS § 706-
625, and enforcement of such terms prior to completion of probation,
then, is largely committed to the probation department, the parties,
and the court.14
As is clear in this case, neither the probation
department, the parties, nor the court objected to Petitioner’s
release from the court’s probation order, before she was discharged
from probation.
C.
Petitioner’s discharge from probation relieved her of any
further obligations to the court.
The Certificate confirmed this,
and pursuant to HRS § 706-630, it was deemed that Petitioner had
“completed the period of probation.”
Thus, she was no longer subject
to modification or revocation orders under HRS § 706-625.
Once the
probation term is completed, a court no longer has jurisdiction to
modify or revoke the defendant’s probation.
14
State v. Viloria, 70
Here, the convictions were not felonies, but instead misdemeanor
convictions for fourth degree theft, OVUII, and driving without a license, and
apparently were not viewed by the probation department or the prosecutor as
necessitating modification or revocation of probation.
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Haw. 58, 60, 759 P.2d 1376, 1378 (1988).
By the time of discharge,
Petitioner had already overcome a variety of hurdles, including
meeting the eligibility requirements for sentencing under HRS § 706622.5, completing drug treatment, and finishing her probation period.
Thus, pursuant to HRS § 706-630, as confirmed by the discharge
certificate, Petitioner had satisfied the “disposition” of the
court’s probation order, in other words, legally “complied” with the
terms and conditions of probation.
Accordingly, a court was not
authorized after probation discharge to redetermine whether
Petitioner should not have “be[en] relieved of any obligations” or
failed to “satisf[y] the disposition of the court[.]”15
630.
HRS § 706-
Upon completion of the probation term and discharge, then,
Petitioner must be deemed to have “complied with the terms and
conditions of probation” because she had “satisfied the disposition
of the court.”
The “disposition of the court[,]” includes the terms of the
probation, which would be satisfied at the time of discharge.
706-630.
HRS §
Having “satisfied the disposition of the court,” therefore,
a defendant is deemed to have “complied with the terms and conditions
of probation.”
This interpretation is supported by the language of
15
As indicated supra, a subsequent determination of non-compliance
with probation terms and conditions after discharge would necessarily conflict
with HRS § 706-630 and the Certificate.
Relatedly, as noted, the ICA had
rejected Petitioner’s argument that the court’s order denying expungement
rendered HRS § 706-630 meaningless. Pali, 2012 WL 2505516, at *1.
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HRS § 706-630 itself, which provides that upon termination of the
probation period or discharge, the defendant “shall have satisfied
the disposition of the court, except as to any action under this
chapter to collect unpaid fines, restitution, attorney’s fees, costs,
or interest.”
Id. (emphasis added).
These exceptions evince the
legislature’s intent that all other probation conditions, excepting
the monetary terms specifically referenced, are satisfied upon
discharge.
In Asuncion, the ICA employed this interpretation of HRS
§ 706-630, when it stated that “Asuncion’s term of probation ended
without any motion being filed to revoke Asuncion’s probation or
modify or enlarge the conditions of Asuncion’s probation,” and
therefore, “[p]ursuant to HRS § 706-630, . . . Asuncion was deemed to
have satisfied his probation sentence and was relieved of any further
obligation imposed by the terms of his probation.”
120 Hawai#i at
319, 205 P.3d at 585 (emphasis added).
A contrary approach would have an unsettling effect on
every probation discharge.
Under Respondent’s and the ICA’s
approach, an expungement hearing would resurrect questions of
compliance that were required to be presented before and not after
discharge.
Such issues may arise years after probation discharge
inasmuch as no time limits apply to expungement proceedings.
time limits did apply, such questions would undermine the past
Even if
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discretion exercised by probation officers, defense attorneys,
prosecutors, and judges in allowing probation discharges, and invite
conflicting judicial determinations as to past discharges.
Re-
examination of the probation proceedings, after discharge, for
redetermination of compliance with the terms and conditions of
probation would result in intractable conflict in the law and in the
penal proceedings governing probation.
Thus, HRS § 706-622.5(4)
cannot be viewed as divorced from HRS § 706-630 or construed in
isolation, but must, under accepted statutory canons, be construed
with HRS § 706-630.
In sum, were HRS § 706-622.5(4) read to require something
other than that the defendant had “satisfied the disposition of the
court,” an expungement hearing could potentially become a pseudoprobation revocation hearing in which the parties could contest, and
the expungement court would determine anew, whether the defendant had
met the terms and conditions of his or her probation after discharge
had already taken place.
Consequently, a subsequent determination of
non-compliance in an HRS § 706-622.5(4) expungement hearing after
discharge would necessarily conflict with the procedures set forth in
HRS § 706-625 regarding revocation of probation, HRS § 706-630
regarding discharge, and a certificate of discharge.
D.
Treating discharge as satisfaction of the terms and
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conditions of probation is not inconsistent with the apparent impetus
behind the rehabilitative approach of HRS § 706-622.5.
The House
Committee Report with respect to Act 44, which amended HRS § 706622.5 to its current form, stated that Act 44 “[m]odif[ied] the
expungement provision that permits a first-time nonviolent drug
offender to have the conviction expunged on a one-time-only basis
upon successful completion of substance abuse treatment.”
H. Stand.
Comm. Rep. No. 495-04, in 2004 House Journal, at 1605 (emphasis
added).
By expressly specifying substance abuse treatment, see also
HRS § 706-622.5(1)-(4), as a prerequisite for expungement under HRS §
706-622.5(4), the legislature placed emphasis on this factor.
In
contrast, although probation compliance is included in the statute,
the legislative history does not mention the phrase “complied with
other terms and conditions of probation.”
An interpretation of HRS §
706-622.5 that mandates the court to grant expungement upon
successful completion of substance abuse treatment and discharge from
probation recognizes the primary objectives of the statute, as
expressed in the Committee Report.
Under the circumstances of this case and within the
framework of the penal code provisions relating to probation, we
conclude that, consistent with HRS § 706-625(1), because Petitioner
had completed her probation term and thus “satisfied the disposition
of the court,” as provided by HRS § 706-630, she had, in effect,
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complied with the terms and conditions of probation for purposes of
expungement under HRS § 706-622.5(4).16
VI.
With respect to other issues raised herein, we observe that
expungement is not “automatic” pursuant to HRS § 706-622.5, as
Petitioner contends, because the court must still determine whether a
defendant successfully completed a substance abuse treatment program
and whether the defendant completed his or her probation term.
If
the defendant is discharged from probation, then the defendant has
statutorily complied with the terms and conditions of the probation
sentence.
As noted previously, Respondent argued that both
conditions, the treatment program and the terms and conditions of
probation, must be satisfied.
However, our interpretation of HRS §
706-622.5(4) does give “legal effect” to the full text, inasmuch as
16
Petitioner’s second question concerns a potential violation of
Petitioner’s due process rights resulting from the court’s “modification” of
her probation terms and conditions when it denied her expungement motion on
the basis of her prior convictions. She argues that she was not provided with
notice that her original sentence would be modified at the expungement
hearing, Respondent had a statutory burden under HRS § 706-625(3) to prove
that her convictions amounted to “inexcusable” noncompliance with a
“substantial” term and condition of probation, and she did not have the
opportunity to submit evidence with respect to her past convictions.
As decided herein, Petitioner is not subject to modification or
revocation of her probation terms pursuant to HRS § 706-625 after completion
of the probation term. Accordingly, during the expungement hearing, the court
cannot, in effect, “modify” her probation terms by deciding anew whether
compliance with terms and conditions had been met. Therefore, the expungement
proceedings are not subject to the statutory requirements of HRS § 706-625.
As a result, Petitioner’s due process rights would not be violated, because,
as held herein, the court does not apply the burden of proof or procedural
requirements set forth in HRS § 706-625 in expungement proceedings.
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“complied with other terms and conditions” indicates that a defendant
may file a motion for expungement after his or her probation period
has been completed and he or she has been discharged.
Respondent also contended that the phrase, “[t]he court may
require other terms and conditions of probation,” in the “first-time
drug offender” statute, at HRS § 706-622.5(2), indicates that the
court should conduct an independent review of whether the defendant
complied with those terms and conditions, following discharge.
However, this statutory phrase does not support Respondent’s
position.
HRS § 706-622.5(2) states in its entirety,
(2) A person eligible under subsection (1) may be
sentenced to probation to undergo and complete a substance
abuse treatment program if the court determines that the
person can benefit from substance abuse treatment and,
notwithstanding that the person would be subject to
sentencing as a repeat offender under section 706-606.5,
the person should not be incarcerated to protect the
public. If the person fails to complete the substance
abuse treatment program and the court determines that the
person cannot benefit from any other suitable substance
abuse treatment program, the person shall be subject to
sentencing under the applicable section under this part.
As a condition of probation under this subsection, the
court may direct the person to undergo and complete
substance abuse treatment under the supervision of the drug
court if the person has a history of relapse in treatment
programs. The court may require other terms and conditions
of probation, including requiring that the person
contribute to the cost of the substance abuse treatment
program, comply with deadlines for entering into the
substance abuse treatment program, and reside in a secure
drug treatment facility.
(Emphases added.)
Thus, HRS 706-622.5(2) merely describes the options,
including drug court, that may be considered by the court in
sentencing a first or second time offender to probation, in addition
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to the requirement of completing a drug treatment program.
“[O]ther
terms and conditions of probation” may be imposed, as they were
imposed in the instant case.
HRS § 706-622.5(2).
But, as noted
supra, once probation is completed and the defendant discharged, the
defendant “shall be relieved of any obligations imposed by the
[probationary] order of the court and shall have satisfied the
disposition of the court[,]” HRS § 706-630, and this determination
cannot be undermined by a subsequent post-probation hearing on
expungement.
Finally, the ICA’s construction of HRS § 706-630 as
governing only post probation obligations is incorrect insofar as it
de-emphasizes the central tenet of the statute.
That tenet is that
upon discharge, the defendant is deemed to have satisfied the
disposition of the court order of probation, and except for
incidental obligations, is no longer under any obligation that was
“imposed” by the court.17
HRS § 706-630.
17
Petitioner’s third question concerning the court’s lack of
jurisdiction is based on Asuncion, 120 Hawai#i at 329, 205 P.3d at 594, in
which the ICA held that the circuit court “no longer had jurisdiction to
revoke [the defendant’s] probation or modify or enlarge its terms,” because
the State failed to take any action to modify the terms of the defendant’s
probation before she completed the probation period. Likewise, in Johnson, a
court incorrectly sought to modify the defendant’s original sentence in the
form of a free-standing restitution order that imposed additional monetary
obligations on the defendant. 92 Hawai#i at 43, 986 P.2d at 987.
However, because under our view, completion of and discharge from
probation cannot be subsequently reexamined, Petitioner is not adversely
affected in the expungement proceeding. Petitioner would be in the same
position as she was in before she filed the Motion.
Our holding is consistent with Asuncion, on the principle that once the
defendant has completed his or her probation, the court no longer has
(continued...)
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VII.
Based on the foregoing, we vacate the ICA’s July 26, 2012
judgment and the court’s May 11, 2011 order denying Petitioner’s
Motion, and remand the case to the court with instructions to enter
an order granting the Motion.
Summer M.M. Kupau,
for petitioner
/s/ Simeon R. Acoba, Jr.
/s/ Sabrina S. McKenna
Artemio C. Baxa,
for respondent
/s/ Richard W. Pollack
17
(...continued)
jurisdiction to, in effect, modify the probation terms or revoke the
defendant’s probation sentence. 120 Hawai#i at 329, 205 P.3d at 594.
Asuncion pointed out that “the State failed to take any steps during
Asuncion’s probation” (emphasis added), but instead initiated proceedings to
punish the defendant for a probation violation after the completion of his
probation term. Id. In this case, on the other hand, Petitioner requested
the court for an order of expungement, and the court was vested with
jurisdiction to decide the Motion, because, as we hold herein, a modification
or revocation of Petitioner’s probation is not involved.
27
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