Saturday, December 1, 2007

HPA Likes The Cure, HSC Prefers New Order.

Coulter v. State (HSC November 30, 3007)

Background. Coulter was sentenced to 10 years for two counts of a criminal offense running concurrently. The Hawaii Paroling Authority (HPA) sent Coulter proper notice of a hearing to determine the minimum term of imprisonment and Coulter submitted materials showing mitigating circumstances such as letters of support and a biography. A hearing was held in March 2003 and the HPA issued its decision soon afterwards. The HPA imposed a min. term of seven years for each count, but never specified the level of punishment and the specific criteria upon which the decision was rendered, as required by Section III of the HPA 1989 Guidelines. Coulter filed a petition under HRPP Rule 40 arguing, inter alia, that the HPA failed to follow its own guidelines. On December 31, 2003, the HPA issued a Notice and Order of Fixing Minimum Term(s). This order set the same min. term of seven years, but included the level of punishment and the criteria. None of the people on the HPA that signed off the December order were on those who signed off on the first order in March. Coulter appealed his way to the HSC.

Same Standard of Review? The HSC reiterated the standard of review used by the ICA in Williamson v. Hawaii Paroling Authority, 97 Hawai’i 156, 34 P.3d 1055 (App. 2000), rev’d on other grounds, 97 Hawai’i 183, 34 P.3d 210 (2001). First, HRPP Rule 40 petitions are “an appropriate means to challenge a minimum term of imprisonment set by the HPA.” Second, b/c the disposition of an HRPP Rule 40 petition are based on findings of fact and conclusions of law, they will be reviewed for clear error and de novo respectively. Third, as for challenges to min. terms by the HPA, the HSC, in Williamson, stated that “judicial intervention is appropriate where the HPA failed to exercise any discretion at all, acted arbitrarily and capriciously so as to give rise to a due process violation, or otherwise violated the prisoner’s constitutional rights.” Williamson, 97 Hawai’i at 195, 34 P.3d at 222.

The HSC then added a fourth component: “With respect to claims of procedural violations, the court will assess whether the HPA conformed with the procedural protections of HRS § 706-669 and complied with its own guidelines, which the HPA was required to establish by statute. HRS § 706-669(8).” Looks like HRPP Rule 40 petitioners can argue the failure to follow mere statutes and rules that do not affect constitutional rights are subject to the Williamson standard.

Unexplained Failure to Follow the Rules is Arbitrary/Capricious. The HSC first held that the HPA order in March violated the HPA Guidelines. HRS § 706-669(8) requires the HPA to establish guidelines to ensure a “uniform determination of minimum sentences.” Pursuant to the statute, the HPA adopted the Guidelines requiring it to specify the criteria on which its decision its based as well as the severity level of the punishment. The HSC held that “[d]eviation from such rules, without explanation, constitutes arbitrary and capricious action that violates a prisoner’s right to uniform determination of his or her min. sentence.”

New Order or The Cure? The State argued that the December order “cured” the earlier one that violated the Guidelines, and that the amended order was all Coulter to which he was legally entitled. The HSC disagreed on the grounds that, b/c the December order was issued by completely different members, “it is unclear whether the Amended Order reflected the same level of punishment and significant criteria upon which the original decision was based.” The HSC also noted that the amended order came on the heels of the HRPP Rule 40 petition. Under these circumstances, this is not a cure for the defective decision.

Coulter argued that the December order was a new order that also failed to follow the notice proceedings. The HSC appears to have dodged this question, but it does cause pause. Was the amended order really an extension of the older one or a new order calling for procedural requisites like notice and submission of briefs and even a hearing? The circumstances and analysis by the HSC suggest the latter.

Who Needs Prejudice? The HSC also rejected the State’s contention that Coulter had to demonstrate how the amended order prejudiced him. The State bases its contention on State v. Monalim, 89 Hawai’i 474, 974 P.3d 1064 (App. 1998), where the ICA required actual prejudice to show a due process violation stemming from a delay in a parole revocation. The HSC distinguished this case from Monalim on the grounds that Monalim speaks only to parole revocations and that the HPA’s violation for Coulter was very different from a mere time delay. Mere delay is one thing, but in this case there was a possibility that a new hearing could have led to a different minimum term. Again, this conclusion suggests that the amended order was a new order and not an amendment to the March decision.

Play It Again, Sam. The HSC rejected the State's assertions that there was no actionable remedy and remanded the case for another min.-sentence hearing. This is a peculiar remedy. It makes sense to reject the State's claims that the amended order was a cure and that Coulter need not show prejudice. At first it may seem odd that the HSC's remedy is remanding for another hearing. It is highly likely that Coulter's gonna get a seven-year min. term for each count. But by making the HPA do it all over again, perhaps it will become clear that these amended orders in an attempt to retroactively fix past decisions and orders simply won't do. The big question is whether this Coulter remedy extends to other tribunals like, say, the family court where a judgment is parced up into a chain of orders, or even the circuit court. Can a lawyer argue that an amended order attempting to fix a prior order that veers from procedural rules and statutes is woefully inadquate and a whole new hearing, with notice and evidence is the only remedy? Wow.

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