Can we get that in writing!?
State v. Shannon (HSC May 29, 2008)
Background. Shannon pleaded guilty to criminal trespass in the second degree and moved for a deferred acceptance of a guilty plea on February 11, 2005. The district court granted the motion and deferred for a period of one year. After entering the DAG, Shannon was arrested in an unrelated incident in violation of one of the many conditions imposed during the deferral period. The State orally moved to revoke the acceptance of the DAG plea on January 27, 2006. After continuing the hearing twice, the district court rejected all of Shannon's arguments--including the argument that he successfully completed the deferral period as of February 11, 2006 because the State failed to toll the period by filing a written motion to revoke--and revoked Shannon's motion to defer.
The ICA reversed because the State was required to give Shannon written notice of the terms and conditions of the DAG. Judge Nakamura dissented and would have adopted the federal courts' application of actual notice. The State appealed to the HSC.
Probation's Kissing Cousin--the DAG plea. As with probation, the State's motion to set aside a DAG plea tolls the deferral period and the sentencing court may grant the motion even after the deferral period ended. State v. Kaufman, 92 Hawai'i 222, 323, 991 P.2d 832, 833 (2000). This is because a DAG plea is "closely analogous" to probation. Id. at 328, 991 P.2d at 838. The HSC observed that a probationer must "be given a written copy of any requirements imposed . . . to enable the [probationer] to guide [himself or herself] accordingly." HRS § 706-624(3). Another reason for the written copy is to ensure that the probationer does not forget the terms and conditions. Commentary to HRS § 706-624(3). This rationale for probation, according to the HSC, is equally applicable to the DAG plea. The HSC thus held that the defendant under a DAG plea must be given a written copy of the terms and conditions of the deferral period as would any probationer.
Written Notice Leaves no room for "Actual Notice." The HSC moved on to reject the State's claim that "actual notice" of the terms and conditions without receiving written notice sufficed. "Actual notice" is permitted by federal courts regardless of the statutory requirement that a defendant be afforded written notice. U.S. v. Arbizu, 431 F.3d 169 (5th Cir. 2005). The probationer "shall be given a written copy" of the terms and conditions of the probation. HRS § 706-624(3). The HSC noted that generally, "shall" indicates the legislature's intention to make a provision mandatory rather than discretionary. Gray v. Admin. Dir. of the Court, 84 Hawai'i 130, 150 n. 17, 931 P.2d 580, 592 n. 17 (1997). Thus, the adoption of the "actual notice" rule runs afoul with the clear and unambiguous statute requiring a written copy.
When does "Shall" mean Shall? But "shall" does not always mean must. It may be considered discretionary if (1) the statute's purpose confutes the probability of a compulsory statutory design; (2) "unjust consequences" result if the statute is mandatory; and (3) no advantage is lost, no right destroyed, nor benefit sacrificed. Leslie v. Bd. of Appeals of County of Hawaii, 109 Hawai'i 384, 394, 126 P.3d 1071, 1081 (2006) (citing Perry v. Planning Com'n of Hawaii County, 62 Haw. 666, 619 P.2d 95 (1980)). The HSC applied the Perry test to determine if the "shall" in HRS § 706-624(3) was indeed mandatory. First, nothing in HRS chapter 706 part II and HRS chapter 853 disputes the conclusion that HRS § 706-624(3) is compulsory. In fact, according to the HSC, because the purpose is rehabilitation while remaining conviction-free, "shall" appears to be mandatory duty upon the court. Second, "unjust consequences" would result if some defendants are given written conditions while others may only be apprised orally. This disparate enforcement would be unfair. It is important to note that the "unjust consequences" are viewed in the abstract rather than to the underlying facts. Finally, the HSC held that leaving written copies to the discretion of the court would deprive individual defendants and society as a whole the benefits of the DAG plea.
Motions to Revoke must be in Writing too. The HSC further noted that HRS § 706-627(1) tolls the probation period when the motion to revoke is filed. Thus, according to the HSC, a motion to revoke must "be filed," which means that it must be in writing. Oral motions simply won't do because due process protections require the defendant to be apprised of the State's intention to revoke and allow time to contest that revocation. Because probation is "closely analogous" to the DAG plea, the State's motion to set aside a DAG plea must also be in writing. The State here failed to do that so that too was in error.
Justice Nakayama's Dissent. Justice Nakayama took issue with the incorporation of HRS § 706-624(3) as a "condition" for a DAG plea. She noted that under the DAG statute, "proceedings may be deferred upon any of the conditions specified by section 706-624." HRS § 853-1(b). That a probationer must receive written terms and conditions of probation is not in itself a "condition" and thus, according to Justice Nakayama, HRS § 853-1(b) as it applies here is ambiguous. Because it is ambiguous, Justice Nakayama examined the legislative history and concluded that the DAG plea is not a right or privilege, but rather an "act of legislative grace." Furthermore, because HRS § 706-624(3) is not a "condition" the DAG statute is silent on the issue of whether a person moving for a DAG plea must receive written terms and conditions of the deferral period. In answering this silence, Justice Nakayama finds the federal precedent persuasive and would have adopted the "actual notice" in this case. Justice Nakayama also believed that HRS § 706-627(1) does not expressly require the State to file a written motion to revoke and thus that too was in error. Justice Nakayama also examined the other issues raised by the Shannon and found none of them persuasive. She would have reversed the ICA.
Conditional Discharge--the new Hybrid model. So if probation is "closely analogous" to the DAG or DANC plea, then what about a conditional discharge? When a person pleads or is found guilty to promoting a certain drugs, "the court, without entering a judgment of guilt and with the consent of the accused, may defer further proceedings and place the accused on probation upon terms and conditions. Upon violation of a term or condition, the court may enter an adjudication of guilt and proceed as otherwise provided." HRS § 712-1255. A conditional discharge appears to be a hybrid of the DAG plea and probation. In some ways, it's like a DAG because the court defers the acceptance of a guilty plea for a period of time. However, unlike the DAG plea, the court definitively places the person on probation rather than incorporates the probation statute. So is a conditional discharge just as "closely analogous" to probation? Better yet, is a conditional discharge really probation without a conviction?
For the majority, there is no need to answer this question. Be it probation or a DAG plea, the court still has to provide written terms and conditions of the conditional discharge and the State would still have to file a motion to revoke or set aside the conditional discharge. But the distinction may be relevant to Justice Nakayama. If the incorporating clause under the DAG statute is ambiguous for her, then what about HRS § 712-1255? It allows the court to "place the accused on probation upon terms and conditions" rather than incorporating the mere "conditions" of the probation statute. Does a statute directing the court to place a person on probation mean more than the conditions of probation but the procedural requirements of probation too? If this case is any indicator, then perhaps a majority would agree and Justice Nakayama would concur. It is, however, unknown for now.
Background. Shannon pleaded guilty to criminal trespass in the second degree and moved for a deferred acceptance of a guilty plea on February 11, 2005. The district court granted the motion and deferred for a period of one year. After entering the DAG, Shannon was arrested in an unrelated incident in violation of one of the many conditions imposed during the deferral period. The State orally moved to revoke the acceptance of the DAG plea on January 27, 2006. After continuing the hearing twice, the district court rejected all of Shannon's arguments--including the argument that he successfully completed the deferral period as of February 11, 2006 because the State failed to toll the period by filing a written motion to revoke--and revoked Shannon's motion to defer.
The ICA reversed because the State was required to give Shannon written notice of the terms and conditions of the DAG. Judge Nakamura dissented and would have adopted the federal courts' application of actual notice. The State appealed to the HSC.
Probation's Kissing Cousin--the DAG plea. As with probation, the State's motion to set aside a DAG plea tolls the deferral period and the sentencing court may grant the motion even after the deferral period ended. State v. Kaufman, 92 Hawai'i 222, 323, 991 P.2d 832, 833 (2000). This is because a DAG plea is "closely analogous" to probation. Id. at 328, 991 P.2d at 838. The HSC observed that a probationer must "be given a written copy of any requirements imposed . . . to enable the [probationer] to guide [himself or herself] accordingly." HRS § 706-624(3). Another reason for the written copy is to ensure that the probationer does not forget the terms and conditions. Commentary to HRS § 706-624(3). This rationale for probation, according to the HSC, is equally applicable to the DAG plea. The HSC thus held that the defendant under a DAG plea must be given a written copy of the terms and conditions of the deferral period as would any probationer.
Written Notice Leaves no room for "Actual Notice." The HSC moved on to reject the State's claim that "actual notice" of the terms and conditions without receiving written notice sufficed. "Actual notice" is permitted by federal courts regardless of the statutory requirement that a defendant be afforded written notice. U.S. v. Arbizu, 431 F.3d 169 (5th Cir. 2005). The probationer "shall be given a written copy" of the terms and conditions of the probation. HRS § 706-624(3). The HSC noted that generally, "shall" indicates the legislature's intention to make a provision mandatory rather than discretionary. Gray v. Admin. Dir. of the Court, 84 Hawai'i 130, 150 n. 17, 931 P.2d 580, 592 n. 17 (1997). Thus, the adoption of the "actual notice" rule runs afoul with the clear and unambiguous statute requiring a written copy.
When does "Shall" mean Shall? But "shall" does not always mean must. It may be considered discretionary if (1) the statute's purpose confutes the probability of a compulsory statutory design; (2) "unjust consequences" result if the statute is mandatory; and (3) no advantage is lost, no right destroyed, nor benefit sacrificed. Leslie v. Bd. of Appeals of County of Hawaii, 109 Hawai'i 384, 394, 126 P.3d 1071, 1081 (2006) (citing Perry v. Planning Com'n of Hawaii County, 62 Haw. 666, 619 P.2d 95 (1980)). The HSC applied the Perry test to determine if the "shall" in HRS § 706-624(3) was indeed mandatory. First, nothing in HRS chapter 706 part II and HRS chapter 853 disputes the conclusion that HRS § 706-624(3) is compulsory. In fact, according to the HSC, because the purpose is rehabilitation while remaining conviction-free, "shall" appears to be mandatory duty upon the court. Second, "unjust consequences" would result if some defendants are given written conditions while others may only be apprised orally. This disparate enforcement would be unfair. It is important to note that the "unjust consequences" are viewed in the abstract rather than to the underlying facts. Finally, the HSC held that leaving written copies to the discretion of the court would deprive individual defendants and society as a whole the benefits of the DAG plea.
Motions to Revoke must be in Writing too. The HSC further noted that HRS § 706-627(1) tolls the probation period when the motion to revoke is filed. Thus, according to the HSC, a motion to revoke must "be filed," which means that it must be in writing. Oral motions simply won't do because due process protections require the defendant to be apprised of the State's intention to revoke and allow time to contest that revocation. Because probation is "closely analogous" to the DAG plea, the State's motion to set aside a DAG plea must also be in writing. The State here failed to do that so that too was in error.
Justice Nakayama's Dissent. Justice Nakayama took issue with the incorporation of HRS § 706-624(3) as a "condition" for a DAG plea. She noted that under the DAG statute, "proceedings may be deferred upon any of the conditions specified by section 706-624." HRS § 853-1(b). That a probationer must receive written terms and conditions of probation is not in itself a "condition" and thus, according to Justice Nakayama, HRS § 853-1(b) as it applies here is ambiguous. Because it is ambiguous, Justice Nakayama examined the legislative history and concluded that the DAG plea is not a right or privilege, but rather an "act of legislative grace." Furthermore, because HRS § 706-624(3) is not a "condition" the DAG statute is silent on the issue of whether a person moving for a DAG plea must receive written terms and conditions of the deferral period. In answering this silence, Justice Nakayama finds the federal precedent persuasive and would have adopted the "actual notice" in this case. Justice Nakayama also believed that HRS § 706-627(1) does not expressly require the State to file a written motion to revoke and thus that too was in error. Justice Nakayama also examined the other issues raised by the Shannon and found none of them persuasive. She would have reversed the ICA.
Conditional Discharge--the new Hybrid model. So if probation is "closely analogous" to the DAG or DANC plea, then what about a conditional discharge? When a person pleads or is found guilty to promoting a certain drugs, "the court, without entering a judgment of guilt and with the consent of the accused, may defer further proceedings and place the accused on probation upon terms and conditions. Upon violation of a term or condition, the court may enter an adjudication of guilt and proceed as otherwise provided." HRS § 712-1255. A conditional discharge appears to be a hybrid of the DAG plea and probation. In some ways, it's like a DAG because the court defers the acceptance of a guilty plea for a period of time. However, unlike the DAG plea, the court definitively places the person on probation rather than incorporates the probation statute. So is a conditional discharge just as "closely analogous" to probation? Better yet, is a conditional discharge really probation without a conviction?
For the majority, there is no need to answer this question. Be it probation or a DAG plea, the court still has to provide written terms and conditions of the conditional discharge and the State would still have to file a motion to revoke or set aside the conditional discharge. But the distinction may be relevant to Justice Nakayama. If the incorporating clause under the DAG statute is ambiguous for her, then what about HRS § 712-1255? It allows the court to "place the accused on probation upon terms and conditions" rather than incorporating the mere "conditions" of the probation statute. Does a statute directing the court to place a person on probation mean more than the conditions of probation but the procedural requirements of probation too? If this case is any indicator, then perhaps a majority would agree and Justice Nakayama would concur. It is, however, unknown for now.
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