Personal rights and Parsimonious Probation

State v. Schaefer (ICA April 30, 2008)

Background. Steven and April Schaefer were charged with various misdemeanors on Kauai. They came to substantially the same plea agreement with the State. In exchange for deferred acceptance of no contest pleas, the Schaefers would pay restitution and "a [pre-sentence investigation (PSI)] will be completed prior to sentencing." Probation prepared a "partial PSI report," which included the names of the judge and attorneys in the case, the original and final charges, "identifying data" (e.g. name, SSN, DOB), criminal records, statements of the victims, sentencing alternatives, and letters of character. The partial PSIs were submitted to the judge and parties months in advance of the sentencing hearing. At the hearing, the defendants requested the district court to order a full-blown PSI. The request was refused. Just before imposing the sentences, the district court asked the Schaefers' counsels if their clients wanted to make a statement. Both attorneys said that their clients did not. The district court sentenced the Schaefers to one year imprisonment and ordered restitution, pursuant to their agreements.

Have your say in Court . . . "Before imposing or suspending sentence, the court shall address the defendant personally and afford a fair opportunity to the defendant and defendant's counsel, if any, to make a statement and present any information in mitigation of punishment." HRPP Rule 32(a). According to the ICA, the court does not "address the defendant personally" when it asks his or her counsel if the defendant wishes to make a statement. Thus, the district court plainly erred in violation of HRPP Rule 32(a) when it did not address the defendant.

Strict compliance with HRPP Rule 32(a) is supported by a constitutional personal right to allocution, or a right to give a statement, guaranteed under the due process clause in Article I, section 5 of the Hawai'i Constitution. State v. Chow, 77 Hawai'i 241, 247, 883 P.2d 663, 669 (App. 1994). This means the sentencing court needs to ask the defendant, not counsel, if he or she has anything to say before imposing sentence. The remedy for violating the right to allocution is resentencing under a different judge. Schutter v. Soong, 76 Hawai'i 187, 208, 873 P.2d 66, 87 (1994).

. . . Even if There's Nothing to say. The ICA held that the district court plainly erred when it did not ask the Schaefers if they had anything to say. The fact that the Schaefers had nothing to say was not part of the ICA's analysis. It was still plain error. This reveals something about the right to allocution. It seems entirely irrelevant (and not harmless error) when the defendant has nothing to say. The burden falls on the sentencing court to make the inquiry.

The Partial PSI. The Schaefers also challenged the adequacy of the partial PSIs prepared before sentencing. A PSI is required when (1) a defendant is convicted of a felony; or (2) the defendant is less than 22 years old and is convicted of any crime. HRS § 706-601(1). The Schaefers were both older than 22 and were not convicted of felonies. Thus, PSIs were not mandated by statute. But for the plea agreement asking for a PSI, the inquiry might have ended here and anything prepared by probation might have been, well, adequate.

So was a partial PSI enough? The Schaefers pointed out that their partial PSIs did not include their mental histories and history of delinquency. They also failed to include any evaluation of the factors for probation enumerated in HRS § 706-621. The ICA concluded that, at a minimum, a full PSI must include the information required in HRS § 706-602(1). This means that "the practice of probation officers to evaluate factors listed in HRS § 706-621 (pertaining to probation)" is not required by statute. The ICA noted that the Schaefer PSIs complied with HRS §§ 706-602(1)(a),(c)(d), and (e), but failed to include their "mental condition, family situation and background, economic status and capacity to make restitution or to make reparation to the victim or victims of [their] crimes for loss or damage caused thereby, education, occupation, and personal habits[.]" HRS § 706-602(1)(b). According to the ICA, it was unclear if the plea agreements called for a partial PSI or nothing less than a full PSI in compliance with HRS § 706-602(1) and remanded the case back to Kauai to determine the meaning of the plea agreement.

Can Probation Partially Comply with PSI Requirements when not Required by Statute? The ICA held that the Schaefers were not entitled to a full PSI by statute, but because the plea agreement called for a PSI, it remanded to see if a partial PSI materially breached the plea agreements. Given that the missing information included the capacity to make restitution and the fact that the plea agreement included restitution payments and the fact that PSIs are not normally requested in district court, there may be an argument for the Schaefers that this missing information was fatal to the partial PSI and breached the plea agreement. But a bigger question arises.

Does this mean that when a PSI is not required by statute, but is part of an agreement, probation need not fully comply with the PSI requirements? If that's the case, then parties in drafting the agreement should make it clear that they intend on having a full-blown PSI rather than a partial one. Or, to formulate it differently, if the defendant is required by statute for a full-blown PSI, can the State request a partial one pursuant to an agreement? Apparently so.

Striking Back. The ICA rejected the Schaefers' claim that the district court erred in refusing to strike a paragraph in the PSI reports that said they "preyed" upon Kauaians by telling their church followers that they would discharge their debts. The Schaefers wanted police reports backing up this paragraph, but that, according to the ICA, was not required by HRS § 706-602. Additionally, the Schaefers had the PSI report for months and was free to submit rebutting information and arguments to this paragraph. Thus, there was no due process violation either.


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