HPA has to Disclose Adverse Info. and Notify Inmate Before Min. Term Hearing

De la Garza v. State (HSC May 10, 2013)
Background. Cheyne de la Garza pleaded no contest to a single count of assault in the first degree (HRS § 707-710(1)) and kidnapping as a class B felony (HRS § 707-720(3)). The complainant was a person with whom De la Garza had a romantic relationship. The circuit court sentenced De la Garza to ten years prison with both counts running concurrently.

The Hawaii Paroling Authority held a hearing to determine De la Garza’s minimum term of imprisonment before he would be eligible for parole. Before the hearing, the HPA obtained the pre-sentence investigation report and a letter from the prosecutor’s office that recommended a minimum term. No one—not the prosecutor, the defense counsel, or even De la Garza—attended the hearing. Afterwards, the HPA ordered a minimum term of 18 months for each count. The level of punishment, according to the HPA guidelines (click here for the guidelines), was set at Level II.

One month later, the HPA received a letter from the prosecutor’s office stating that even though the minimum term had been set, there had been a mishap in communication and the complainant and her family would like to appear before the HPA and “submit oral and written statements addressing” De la Garza.

Later on, a letter from the complainant’s aunt went to the HPA that requested the HPA to reconsider its decision. There was no indication that the aunt’s letter was sent to De la Garza. The HPA wrote back to the aunt stating that it would consider it and encouraged the complainant to write a letter. Again, there was no cc to De la Garza. The aunt followed up with a second letter that was single-spaced and five pages long. It also included photographs of the complainant’s injuries. Again, no cc to De la Garza or to the prosecution.

The HPA held a second minimum term hearing. This time, the prosecutor, the complainant, the auntie, and a victim witness counselor attended. De la Garza was there and defense counsel appeared by telephone. At the start of the hearing, the HPA chair said that the second hearing was held because “we did not give the family the opportunity to be heard[.]” Defense counsel said, “I understand. We went through all of their statements and all the reports and everything else, but, I mean, I’m sure they have a right to talk.” The chair responded: “Yeah. So we’re giving them the right to talk.”

The prosecutor addressed the HPA that he was there to “assist” the complainant and answer the HPA’s questions. The defense said that he or she “was a little uncomfortable with that.” The hearing proceeded. The complainant read a letter she prepared and the aunt also spoke. When the prosecution started to make a statement, De la Garza objected. De la Garza and his attorney made statements. In the end, the HPA chair stated “if we need to reset the minimum, then that’s what we’ll do.” At no point, was De la Garza permitted to speak privately with his lawyer.

The HPA issued a new minimum: five years for both counts and a finding of a Level III offender. De la Garza wrote a letter arguing that the HPA exceeded its statutory authority in extending his minimum after issuing the first one. He requested the reinstatement of the original minimum term and that he have a parole hearing immediately. The request was denied. De la Garza filed a petition pursuant to HRPP Rule 40. The circuit court denied the petition and dismissed it without an evidentiary hearing, and the ICA affirmed the dismissal. De la Garza petitioned for cert.

The HPA’s Withholding of Evidence Violated Due Process Rights. De la Garza argued that his due process rights were violated when the HPA failed to disclose to him the correspondence with the auntie. “No person shall be deprived of life, liberty or property without due process of law[.]” Haw. Const. Art. I, Sec. 5. The HSC noted that, obviously, the Due Process Clause applies to proceedings before the HPA in determining a person’s minimum term of imprisonment. D’Ambrosio v. State, 112 Hawaii 446, 464-66, 146 P.3d 606, 624-26 (App. 2006); Williamson v. Hawaii Paroling Auth., 97 Hawaii 183, 195, 35 P.3d 210, 222 (2001).

“At its core, procedural due process of law requires notice and an opportunity to be heard in a meaningful manner before governmental deprivation of a significant liberty interest.” State v. Bani, 97 Hawaii X, 293, 36 P.3d X, 1263 (DATE). The HSC turned to other states to determine what process is due when it comes to setting minimum terms and the use of evidence. Labrum v. Utah State Bd. of Pardons, 870 P.2d 902, 909 (Utah 1993) (board’s failure to disclose adverse materials used to consider his request for a parole violated due process); In re Sinka, 599 P.2d 1275, 1281-82 (Wash. 1979) (inmate must have access to information used by the board to determine the inmate’s minimum term). The HSC also looked at its own cases that have required an opportunity to review, object, and supplement information and evidence used by the sentencing court before a sentence is imposed. State v. Durham, 125 Hawaii 114, 126, 254 P.3d 425, 437 (2011); State v. Wong, 73 Haw. 81, 829 P.2d 1325 (1992); State v. Paaaina, 67 Haw. 408, 689 P.2d 754 (1984).

HPA’s Duty to Disclose “Adverse Information” in a Timely Matter. Based on that authority, the HSC held that due process “requires that the prisoner have timely access to all of the adverse information contained in the HPA file.” Moreover, the disclosure must be given “soon enough in advance” that the inmate “has a reasonable opportunity to prepare responses and rebuttal of inaccuracies.” If the information is sensitive or confidential, the HPA may issue summaries of the information instead. Here, the HSC held that the HPA failed to provide De la Garza the auntie’s correspondence, statements, and photographs.

Rule 40 Petitions and the Rebuttable Presumption of Waiver. The HSC also addressed a perennial issue surrounding Rule 40 petitions. “Rule 40 proceedings shall not be available and relief thereunder shall not be granted where the issues sought to be raised . . . were waived.” HRPP Rule 40(a)(3).

Except for a claim of illegal sentence, an issue is waived if the petitioner knowingly and understandingly failed to raise it and it could have been raised before the trial, at the trial, on appeal, in a habeas corpus proceeding or any other proceeding actually conducted, or in a prior proceeding actually initiated under this rule, and the petitioner is unable to prove the existence of extraordinary circumstances to justify the petitioner’s failure to raise the issue.

Id. Finally, “[t]here is a reasonable presumption that a failure to appeal a ruling or to raise an issue is a knowing and understanding failure.” Id.

The HSC rejected the ICA’s conclusion that De la Garza waived this disclosure issue. When there is no meaningful way to raise the issue, it cannot be considered waived. Briones v. State, 74 Haw. 442, 459, 848 P.2d 966, 975 (1993); Friagio v. State, 95 Hawaii 9, 16, 18 P.3d 871, 878 (2001). Here, there was no way for De la Garza to raise this issue. Accordingly, the HSC remanded the case back to the circuit court to conduct an evidentiary hearing to determine if a due process violation took place.

HPA’s Duty to Notify. The HSC also took on the issue of the HPA’s duty to notify De la Garza about the 2d hearing. An inmate has the right to “reasonable notice” of the minimum term hearing. HRS § 706-669. According to the HSC, the record is ambiguous as to whether the 2d hearing was nothing more than an opportunity for the complainant to be heard. It did, however, morph into a second hearing with an amended minimum term. By turning it into a second hearing, the HSC noted that it violated the notice requirement under HRS § 706-669. These ambiguities must be resolved so the HSC ordered that on remand, the circuit court must also address the adequacy of the notice in the second hearing.

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