Friday, May 31, 2013

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.

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?

Monday, May 6, 2013

Putting Teeth in the Right to (Retained) Counsel


State v. Cramer (HSC April 29, 2013)
Background. Stephen Cramer was charged with up to seven drug-related offenses and entered the Maui Drug Court Program. He participated in the program for about 18 months before the prosecution filed a motion to terminate him. The circuit court granted the motion and terminated Cramer from the program. At a “stipulated-facts” trial, the prosecution presented an admission to the offenses from Cramer’s petition into the program. Cramer was found guilty.

At the sentencing hearing, Hayden Aluli appeared for Cramer on the condition that he be “given the opportunity to effectively prepare.” Aluli asked for a three-week continuance. The prosecutor was ready for sentencing. The motion for continuance was denied because the requests were untimely. Aluli did not enter his appearance and Cramer remained with the public defender. The public defender asked the circuit court if it had received a substance abuse assessment. The court had not and wanted to review it to determine if he was eligible for sentencing under HRS § 706-622.5. The prosecution requested a continuance and the circuit court agreed thereby continuing the hearing.

At the next hearing, the court sentenced Cramer to five years prison. Aluli appeared as appellate counsel and the ICA affirmed. Cramer petitioned to the HSC.

The Right to Counsel (of Choice). “In all criminal prosecutions, the accused shall enjoy the right . . . to have the assistance of counsel for the accused’s defense.” Haw. Const. Art. I, Sec. 14. U. S. Const. Am. VI. Under the state constitutional provision, this encompasses “a right to privately retained counsel of choice.” State v. Maddagan, 95 Hawaii 177, 180, 19 P.3d 1289, 1292 (2001). This right, however, “is qualified and can be outweighed by countervailing governmental interests.” Id.

The HSC examined for the first time those government interests. The HSC noted that in other jurisdictions, the decision to allow substitute counsel and a continuance turns on several factors. People v. Butcher, 79 Cal. Rptr. 618, 621 (Cal. Ct. App. 1969) (seven factors must be balanced to determine motions for substitute counsel and continuance on day of trial); see also State v. Prineas, 766 N.W.2d 206, 215 (Wisc. Ct. App. 2009) (trial court considered factors in determining defendant’s request for new counsel against “the public interests in the prompt and efficient administration of justice.”).

Here, the circuit court failed to consider any factors other than timeliness. There was no consideration of the length of the delay requested, the impact the delay would have on the prosecution, witnesses, or the court, or whether the delay was for a dilatory purpose. The prosecution did not object to the initial request for substitute counsel and there was no evidence in the record of any prejudice for a substitution and continuance. Nor was there any evidence that any witnesses, parties, or the court would be inconvenienced by the continuance. Thus, the HSC held that the denial of the continuance was an abuse of discretion. The HSC vacated the judgment and remanded for resentencing.

Justice Acoba’s Concurrence. Justice Acoba wrote separately to discuss in great detail that some constitutional violations are so fundamental that they can never be considered harmless. This is one of those cases. Justice Acoba wrote that once the right to retained counsel has been “wrongfully denied, a defendant need not show prejudice or prove the underlying value of such a choice.” Thus, the vacating and remanding of the judgment should have been automatic and the harmless-error analysis was unnecessary. Justice Pollack joined.

A Harmless-Error Analysis? The majority did not apply a harmless-error analysis. In United States v. Gonzalez-Lopez, 548 U.S. 140 (2006), the SCOTUS held that denial of the right to counsel of choice is one of those errors that is not subject to the harmless-error analysis. “It is impossible to know what different choices the rejected counsel would have made, and then to quantify the impact of those different choices on the outcome of the proceedings.” Id. This was a similar situation for Cramer. In a footnote, the majority declined to review and take on the problems associated with the application of the harmless-error analysis. Curiously, Justice Pollack joined the majority opinion too.