HSC Equates "Completion" with Probation with "Compliance"
State v. Pali
(HSC May 21, 2013)
Background. Lisa Ann Pali was sentenced to five years
of probation for promoting a detrimental drug in the third degree and
paraphernalia. She was sentenced as a first-time drug offender pursuant to HRS
§ 706-622.5. After she finished the period of her probation, she received a certificate
of discharge stating that she has been “relieved of any obligations imposed by
the order of the court and . . . satisfied the disposition of the court[.]”
About a week later, she moved to expunge her arrest pursuant to HRS §
706-622.5. The prosecution opposed on the grounds that while she was on
probation, she was convicted of theft in the fourth degree, operating a vehicle
while under the influence of an intoxicant, contempt of court, and driving
without a license. The circuit court denied the motion on the grounds that she
did not comply with the terms of her probation because she had been convicted
of the misdemeanor offenses. Pali appealed. On appeal, the prosecution agreed
that Pali was entitled to expungement of her felony record. Oddly enough, the
ICA disregarded the prosecution’s agreement, and affirmed the denial of the
expungement motion. Pali petitioned for certiorari.
How to Read Act 44? After a person is sentenced to probation
under HRS § 706-622.5, “[t]he 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 a substance abuse treatment program and complied with other terms and
conditions of probation.” HRS § 706-622.5(4). The HSC frame the issue as to how a court must determine if the
defendant “complied with the other terms and conditions of probation.”
Determining Compliance . . . When the statute is “plain and
unambiguous, our sole duty is to give effect to its plain and obvious meaning.”
Dejetley v. Kaho‘ohalahala, 122 Hawaii 251, 262, 226 P.3d 421, 432
(2010). According to the HSC, the court is obligated to issue the order of
expungement upon the condition that (1) the defendant complete a substance
abuse program and (2) the defendant “complied with other terms and conditions
of probation.” The issue here, according to the HSC, is how the circuit court
is to determine compliance with the terms and conditions of probation. The term
“complied” is not defined in HRS § 706-622.5. Thus, the 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
Hawaii 78, 96, 253 P.3d 639, 658 (2011). However, the dictionaries did not get
the HSC any closer to solving the problem.
The
court then read the word “complied” in
pari materia with other provisions in the sentencing statutes that use the
term. Laws “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.” State v. Kamanao,
118 Hawaii 210, 218, 188 P.3d 724, 732 (2008). The HSC reviewed HRS § 706-625
and determined that compliance with the terms and conditions of probation and
enforcement of the terms rests with the court, the probation department, and
the parties. Here, no motions to revoke probation were filed and Pali was
discharged from probation.
Once Probation is Over, it’s Over. Once a probationer’s period of probation
is completed, “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. It also means that the probationer is no longer
subject to a motion to modify or revoke the terms and conditions of probation
and that the circuit court loses its jurisdiction to revoke or modify. State
v. Viloria, 70 Haw. 58, 60, 759 P.2d 1376, 1378 (1988). According to the
HSC, once the probationer satisfies the disposition of the court (i.e., the order imposing probation and
its terms), he or she has also “complied with the terms and conditions” of
probation. Thus, the circuit court erred in denying Pali’s motion for
expungement.
And a Policy Reason. The HSC also added a policy reason
underlying its interpretation. To hold otherwise and allow the court to review
compliance long after the period of probation had ended would “have an
unsettling effect on every probation discharge.” There is no time limitation
for applying for an expungement. It would allow the prosecution to resurrect
long-gone instances during the
probationary period. It would amount to a “pseudo-probation revocation.” It
would also undermine the rehabilitative purposes that underlie Act 44.
Chief Justice Recktenwald’s Dissent. The CJ disagreed with the majority’s
reading of HRS § 706-622.5(4). The CJ read the statute to mean that the court
must issue an expungement order upon condition that the probationer (1)
complete a substance abuse treatment program and (2) comply with the terms and
conditions of probation. According to the CJ, the language is unambiguous and
“we should not look beyond this language for a different meaning.” See State
v. Richie, 88 Hawaii 19, 30, 960 P.2d 1227, 1238 (1998) (“It is a cardinal
rule of statutory interpretation that, where the terms of a statute are plain,
unambiguous and explicit, we are not at liberty to look beyond that language
for a different meaning.”).
For
the CJ, this meant that a person complies when they have abided by the terms
and conditions of probation. It is a distinct and separate inquiry. Here, it
was obvious that Pali did not abide by the terms and conditions of her probation.
Just because that her probation was not revoked and that she completed the period
of probation does not automatically mean that she “complied” with probation for
purposes of HRS § 706-622.5. Justice Nakayama joined.
A Hypothetical. The split in the HSC turned on how to
read the word “complied.” The majority—based on readings of similar statutes
relating to probation, the legislative history, and policy reasons—held that
once a probationer finishes his or her period of probation and receives the
certificate of discharge without incident, it’s over; the probationer has “complied”
and the circuit court then would have an obligation to issue the order of
expungement.
The CJ
and Justice Nakayama took a different approach. For them, the statute is not
ambiguous and it authorized the trial court to determine whether the probationer
actually abided by the terms and conditions of probation even if the period of
probation had ended. The policy concerns raised by the majority were of no consequence
mainly because the statute was unambiguous and that is not the job of the court.
The
difference of opinion can get tricky when a person is re-sentenced to probation
and completes it. What if Pali’s period of probation was revoked and the court
resentenced her to another period of probation? And what if during the second
period of probation, she completes it and a certificate of discharge is issued.
Has she “complied”? It’s easy for the dissenters to address this hypothetical.
It would all depend on the separate and distinct hearing in which the court
would have to assess whether there was compliance—probably not since probation was
initially revoked and she was resentenced. But what about the flawless second
period? Doesn’t that count for something?
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