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.
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