ICA determines when a “modification” to probation terms is also an “enlargement” invoking the tolling statute

 State v. Wilbur-Delima (ICA July 29, 2024)

Background. Kamalei Wilbur-Delima was charged with multiple offenses in three different felony cases. He was sentenced to probation but it was revoked. He also picked up another felony case. He eventually pleaded guilty and was sentenced and resentenced to probation. The judgment of conviction and the resentencing orders with conditions was entered on April 26, 2017. Two months later, Wilbur-Delima entered the Hawai'i’s Opportunity Probation with Enforcement (HOPE) Probation Program, a program on Oahu designed to give “swift, predictable, and immediate sanctions” for violations.

 

From 2017 through 2020, the prosecution filed motions when Wilbur-Delima violated the terms of his probation. The prosecution called these motions for “Modification” of the terms and conditions. Wilbur-Delima did not contest the violations and was sanctioned with a jail ranging from 3 to 41 days jail. It later changed the title to a motion to modify “and/or enlarge” the terms and conditions. In November 2021, the prosecution filed a motion to revoke probation. Wilbur-Delima did not contest the basis for the revocation and was resentenced to prison. He then moved to correct the illegal sentence on the grounds that the court did not have jurisdiction to revoke and resentence him because the motions to modify did not toll probation imposed in 2017. The motion was denied and Wilbur-Delima appealed.

 

Motions to enlarge the terms and conditions of probation tolls the probation time. Once a defendant is sentenced to probation, the court “may revoke probation . . ., reduce or enlarge the conditions of probation[.]” HRS § 706-625(1). The court “may modify the requirements imposed on the defendant or impose further requirements, if it finds that such action will assist the defendant in leading a law-abiding life.” HRS § 706-625(5).

 

But not every post-conviction motion tolls. The tolling statute applies to motions to revoke and motions to “enlarge” conditions:

 

Upon the filing of a motion to revoke a probation or a motion to enlarge the conditions imposed thereby, the period of probation shall be tolled pending the hearing upon the motion and the decision of the court.

 

HRS § 706-627(1). A motion to reduce is not contemplated. Wilbur-Delima argued that the motions to modify the already-existing terms of probation were not motions to “enlarge the conditions” and the tolling statute did not apply. The ICA disagreed.

 

Adding jail to an existing condition is an “enlargement” regardless of the title of the motion. “[W]here the statutory language is plain and unambiguous, our sole duty is to give effect to its plain and obvious meaning.” State v. Milne, 149 Hawai'i 329, 333, 489 P.3d 433, 437 (2021). According to the ICA, a motion to modify the conditions of probation either seeks to reduce or enlarge them. A modification is “simply to change something.” See Black’s Law Dictionary, 11th ed., 1203 (2019) (“modification” as “change to something; an alteration or amendment” or “to make small changes”). The ICA noted that when a motion to modify seeks to enlarge a condition of probation, then the plain language of the tolling provision in HRS § 706-627(1) applies. According to the ICA, it was undisputed that the motions during the HOPE program were indeed called a “motion to modify” but they requested “an enlarged probation condition, i.e., more jail time.” To hold otherwise would elevate form over substance, which has been “repeatedly eschewed[.]” Coon v. City & Cnty. of Honolulu, 98 Hawai'i 233, 254, 47 P.3d 348, 369 (2002). See also State v. Wong, 47 Haw. 361, 367, 389 P.2d 439, 444 (1964) (“we are guided by substance, not form.”).

 

The ICA also looked to legislative history to support this reading of HRS § 706-627. Reviewing the many forms of these statutes over the years led the ICA to conclude that “the Legislature clearly indicated that the amendments were designed to prevent a person’s probation from lapsing peindg a revocation hearing, even though they may have committed acts justifying revoking probation.” And Wilbur-Delima, according to the ICA, was “the exact type of probationer” the Legislature meant to keep on probation.

 

The use of the word “modify” in HRS § 706-625, but not in the tolling statute, made sense. The ICA noted that a “modification can encompass enlargements and reductions. However, only motions to modify seeking enlargements in probation conditions are tolling provisions[.]”

 

Despite its reliance on legislative history—something that is examined when a statute is ambiguous, State v. Abihai, 146 Hawai'i 398, 406, 463 P.3d 1055, 1063 (2020)—the ICA held that the statutes were plain and unambiguous and, thus, the rule of lenity did not apply. See State v. Woodfall, 120 Hawai'i 387, 396, 206 P.3d 841, 850 (2009).

 

The unaddressed argument. HRS § 706-625 regulates post-sentencing motions. Courts are empowered to “modify” terms and conditions. They can be reduced and enlarged. Wilbur-Delima argued that when the court changes an already-existing condition of probation, it does not “enlarge the conditions.” It merely changes something that was imposed at sentencing. It is neither a reduction nor an “enlargement.” It is simply a modification.

 

The ICA disagreed and appears to have held that there are only two, not three, possibilities: a reduction of the terms or an “enlargement,” which invokes the tolling statute. The ICA’s justification seems to come from the “common understanding” of the word “modification,” which includes small changes. But this does not really address Wilbur-Delima’s argument. Indeed, a change to an existing condition is a modification, but it may not be an “enlargement of the conditions” that had been imposed.