Facts not Found in PSI Report must be Disclosed Prior to Sentencing

State v. Durham (HSC May 27, 2011)

Background. Cornelius Wesley Durham was indicted for two counts of sex assault in the third degree. HRS § 707-723(1)(b). He was sentenced to five years probation. One of the terms of probation required him to "participate satisfactorily in the Hawai'i Sex Offender Treatment Program . . . as approved by [his] probation officer, at [his] own expense until clinically discharged with the concurrence of [his] probation officer." Durham underwent treatment from Catholic Charities on Oahu. He was informed that he was not in compliance with the terms of treatment at Catholic Charities. Durham's friend and attorney, Leslie Iczkovitz, wrote a letter to the probation office seeking clarification on Durham's terms and conditions of probation. Catholic Charities involuntarily terminated Durham based in part on a threat of legal action inferred from Iczkovitz's letter. Six days after termination, Durham sought private treatment from a psychologist. He applied for another treatment program and was accepted with the approval of his probation officer.

The State filed a motion to show cause why probation should not be terminated. Attached to the motion was an affidavit from Durham's Maui probation officer, Lara Nishikawa. Nishikawa cited Durham's termination from Catholic Charities. Prior to the hearing on the revocation motion, Nishikawa submitted to the court a confidential report. The report recited much of the facts regarding Catholic Charities. Nishikawa also submitted a letter to the court, which stated that there was a high risk that Durham would re-offend based on a polygraph examination in which Durham stated that he assaulted four other people. In her letter, Nishikawa recommended five more years of probation and one year jail. At the revocation hearing, the judge revoked probation and resentenced him to five years probation and one year of jail. Durham appealed. The ICA affirmed. Shortly thereafter, Iczkowitz--now Durham's counsel--discovered Nishikawa's letter. Durham filed a motion for reconsideration based on the new evidence. The ICA denied the motion.

Confidential Recommendation Letters Remain Confidential, but must Stick to the Facts in the PSI Report. Before imposing a sentence, court personnel shall make a "pre-sentence diagnosis and report[.]" HRS § 706-602. The court shall then provide the parties with copies of the diagnosis and report "and afford fair opportunity, if the defendant or the prosecuting attorney so requests, to controvert or supplement them." HRS § 706-604(2). Probation officers typically write pre-sentence reports. They also have submitted confidential recommendation letters to the sentencing court. In State v. Paaaina, 67 Haw. 408, 689 P.2d 754 (1984), the HSC held that the defense has no right to examine the confidential recommendation. However, "[i]f the judge finds new factual information in the recommendation letter, it is incumbent on the judge to make it available to the defendant." Id. at 410, 689 P.2d at 757.

In Paaaina, the HSC held that the confidential recommendation letter did not allege new facts or any facts that were not in the PSI report. Thus, there was no error. Here, however, the HSC noted that it was "incumbent" on Nishikawa to draft her recommendation based on the facts in the PSI report. She didn't. Thus, it was "incumbent" on the sentencing court to disclose the facts contained in the recommendation letter. It didn't.

Due Process Requires Disclosure of Facts not Found in the PSI Report for Sentencing AND Probation Revocation. A defendant has the statutory right to controvert or supplement facts that will be used at sentencing. "[T]he legislature was not unmindful of the dangers posed to the defendant in terms of those portions of the report which might be misleading, incomplete, or inaccurate." State v. Lessary, 83 Hawai'i 280, 284-85, 925 P.2d 1104, 1108-09 (App. 1996). Here, however, there was no chance for Durham to controvert or supplement the allegation that he had assaulted four others. The HSC also noted that due process requires the defendant to receive the factual information upon which the revocation is being sought. See State v. Shannon, 118 Hawai'i 15, 32, 185 P.3d 200, 217 (2008). The HSC held that Durham's due process rights had been violated because the factual assertions in Nishikawa's letter were not disclosed to him prior to the revocation hearing.

The Remedy: New Judge. The sentencing court had Nishikawa's letter at the time of the resentencing, but did not disclose the factual assertions in it to Durham. Thus, the HSC vacated the resentencing order and remanded for a new hearing on the motion for revocation. The HSC further held that a judge other than the judges that heard the motion and resentencing. Remanding to the judges that had already passed sentence, according to the HSC, would be an "inadequate remedy." Schutter v. Soong, 76 Hawai'i 187, 208 n. 6, 873 P.2d 66, 87 n. 6 (1994); State v. Chow, 77 Hawai'i 241, 251 n. 13, 883 P.2d 663, 673 n. 13 (App. 1994) (remanded to new judge for sentencing because "the district court judge who originally sentenced [the d]efendant ha[d] already made a sentencing determination.").

Not Quite Overturning Paaaina . . . The HSC did not overturn Paaaina, which authorizes the probation officer to submit to the sentencing court an ex parte communication recommending an appropriate sentence. Instead, when the confidential letter contains factual assertions that are not found in the pre-sentencing materials that were disclosed to the defendant, it is "incumbent" on the sentencing court to make those facts known. So what is a practitioner to do? How is a defense attorney supposed to know what that letter says?

Perhaps it means that at every sentencing hearing, there should be a finding by the sentencing court that all of the facts used by the court in determining a sentence have been disclosed. Does it mean that defense counsel should inquire at a sentencing hearing to ensure compliance with this case and Paaaina? Maybe so. Does it mean that defense should urge the sentencing court to disclose the ex parte letter? Maybe that too.

On the other hand, how is it different from a court's in camera review during discovery? Is it different from a counsel's reliance on the court's determination as to what is relevant and should be disclosed to the parties and what is not and should be left under seal? Maybe it's not different at all. But that issue has yet to come to court.


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