Monday, March 30, 2009

Revocation Proceedings are Exclusive Means for Enforcing Probation Conditions

State v. Asuncion (ICA March 30, 2009)

Background.  Asuncion was convicted of custodial interference in the second degree (HRS § 707-727).  In 2004, the district court sentenced Asuncion to one year probation.  One of the conditions of probation was not to contact the complaintant.  Later that year, Asuncion was arrested on two separate occasions for custodial interference.  When he appeared for trial in 2006, he was charged with two counts of contempt of court.  The contempt of court charge was based on having contact with the complaintant again.  At the close of the State's evidence, Asuncion moved for an acquittal on the grounds that the State merely proved a probation violation.  The motion was denied and Asuncion was found guilty.  Asuncion appealed.

A Primer on Probation.  The ICA began with sentencing under HRS chapter 706.  "No sentence shall be imposed otherwise than in accordance with this chapter."  HRS § 706-600.  The sentencing court is authorized, in most cases, to place a person on probation.  A person on probation is obligated to follow certain mandatory conditions and discretionary ones imposed by the sentencing court.  HRS § 706-624.  When a probationer fails to follow any of the conditions imposed, the court, upon motion, may revoke probation.  HRS § 706-625.  When a court revokes probation, the court may impose any sentence that might have been imposed originally for the crime of which the defendant was convicted.  Id.  However, once the period of probation is finished, "the defendant shall be relieved of any obligations imposed by the order of the court and shall have satisfied the disposition of the court[.]"  HRS § 706-630.  The ICA pointed to the commentary under HRS § 760-630 and observed that "no formal discharge is required upon termination."

New Prosecutions Cannot Enforce Conditions of Probation.  In this case, no one moved for an order revoking Asuncion's probation.  Instead, it brought fresh charges of contempt of court.  The ICA characterized this issue as one of first impression: whether the court could convict a defendant of criminal contempt for violating "a discretionary condition of" probation.  After examining the variety of approaches in different states, the ICA agreed with "the majority of jurisdictions and [held] that criminal contempt is not available as a sanction for a violation of a condition of probation."

A Statutory Analysis.  Although the ICA surveyed approaches in other states, its holding essentially came from a statutory analysis.  According to the ICA, nothing in HRS chapter 706 authorizes a criminal-contempt prosecution to sanction violations of probation.  When a defendant fails to comply with the conditions of probation, the exclusive sanctions are in HRS § 706-625--the court is free to re-sentence a probationer to anything in the underlying offense.

Revocation Proceedings are the Exclusive Remedy to a Probation Violation.  The ICA also strictly construed the contempt statute.  "A person commits the offense of criminal contempt of court if . . . [t]he person knowingly disobeys or resists the process, injunction, or other mandate of a court[.]" HRS § 710-1077(g).  The ICA examined the commonly understood definitions of "process," "mandate," and "injunction," HRS § 1-14, and held that the no-contact condition of probation was not a "process, injunction, or other mandate of a court" which would trigger a criminal contempt prosecution.  The ICA explained that the statutory scheme for probation simply had no place for a new prosecution.

Distinguishing Doe.  In arriving to that conclusion, the ICA distinguished In re Doe, 96 Hawai'i 73, 26 P.3d 562 (2001), where the Hawai'i Supreme Court held that a juvenile may be adjudicated for criminal contempt based on violations of a court-ordered protective supervision.  The ICA explained that a family court's order for protective supervision is an independent mandate to comply with terms set forth in the order.  Here, according to the ICA, the district court's order with conditions were not independent.  They were imposed as a condition of his probationary status that could be withdrawn if a condition was not met.

The Coupe de Grace?  The ICA also observed that when Asuncion was charged with contempt, his probationary period had already ended.  Thus, the no-contact order was no longer hanging over his head.  This meant that but for the probation condition, Asuncion's conduct in contacting the complaintant would have been perfectly legal.  No one moved to revoke probation and he was a free man.  The ICA reversed the conviction.

So Prosecutors and P.O.s Speak Now . . .  The ICA has made it clear that the sole means of enforcing probation conditions comes from the revocation process.  A prosecutor or probation officer cannot circumvent the revocation proceedings by bringing a new prosecution.  This also means that a motion for revocation of probation can only be brought while the defendant is on probation.  (Once filed, the period of probation tolls.  HRS § 706-627.)

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