Monday, May 27, 2013

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?

The majority’s approach is even more problematic. If Pali gets revoked and resentenced and on that second try gets the certificate of discharge, is the result the same? Does the certificate automatically mean compliance that second time around? If not, then how limited is the circuit court’s inquiry upon her motion for an order of expungement?

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