ICA finds error in failing to provide written notice of conditions for DAG plea

State v. Shannon (ICA Sept. 28, 2007)

Background. Shannon pleaded guilty to Criminal Trespass in the Second Degree and made an oral motion for a deferred acceptance of guilty (DAG) plea, which was granted by the district court over the State's objection. The district court then imposed special conditions that he remain arrest-and-conviction free, perform 40 hours of community service, and pay a $25 fee. At a proof-of-compliance hearing, the State asserted that Shannon had violated the conditions of his DAG plea based on incidents occurring at least six months after the DAG plea was granted, and made a motion to set aside the DAG plea. The district court granted the State's motion, and filed judgment.

Failure to receive written copy of DAG plea conditions amounts to reversible error. The DAG statute, HRS §853-1, incorporates the enumerated conditions in HRS § 706-624, which allows the courts to attach certain conditions to probation sentences or the suspension of a sentence. HRS § 706-624(3) states that "[t]he defendant shall be given a written copy of any requirements imposed . . . , stated with sufficient specificity to enable the defendant to guide the defendant's self accordingly."

The ICA majority (Judges Foley and Fujise) found "no evidence in the record that Shannon received a written copy of his conditions [to the DAG plea]. Shannon contends that he did not receive a written copy, and the State does not contend otherwise." Instead, the State argued that an actual, oral notice of the conditions when the district court first accepted his motion for a DAG plea sufficed. The ICA rejected this contention. The ICA reasoned that the circumstances here had no significant difference than those in State v. Lee, 10 Haw. App. 192 (1993). In that case, the ICA interpreted the statutory requirement to have written notice provided as an "assurance that a defendant will know the exact terms and conditions of his [or her] probation before his [or her] probation can be revoked for failure to comply[.]" It can be assumed that the same reasoning applies to revocation of a DAG plea because HRS §853-1 incorporates the statute discussed in Lee.

Judge Nakamura's Dissent. Judge Nakamura's dissented because he believed that noncompliance with the written notice requirements does not warrant automatic reversal when Shannon received actual notice given several months before the revocation of the DAG plea took place. Judge Nakamura disagreed with the ICA here, and with the ICA in Lee. "[A] defendant who has actual notice or knowledge of the condition of a DAG plea should not be allowed to avoid punishment for violating those conditions simply because the defendant was not provided with written notice." Instead of the reasoning in Lee, Judge Nakamura prefers the federal approach--that the failure to provide written copies of probation conditions in violation of 18 USC § 3583(f) and 18 USC § 3603(1) still does not invalidate the subsequent revocation of probation when the defendant receives actual notice.

A sticky situation on remand. The ICA vacated the judgment of the district court and remanded "for further proceedings consistent with this opinion." This presents a problem. What happens once Shannon receives the written conditions of his DAG plea? Can the State then move to set aside the DAG plea based on the same misconduct, which took place before Shannon had received the written conditions? Or does this mean that the State is estopped from moving for setting aside the DAG plea based on misconduct done when Shannon had no written condition in violation of Lee and the statute? Judge Nakamura's concerns suggest the latter, which is why he dissented. Then again, why should the State be permitted to bring the same motion for the same misconduct? At the time of the violations six months after hearing the conditions, Shannon had no written conditions in hand. The question, for now, remains open.

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