HSC strikes down proof-of-compliance hearings for defendants who aren’t on probation and haven’t defaulted

By Benjamin Lowenthal -

 State v. Fay (HSC June 17, 2024)

Background. Melissa Fay crashed her car into a tree and was charged with traffic offenses in the district court. She pleaded no contest to driving under the influence of an intoxicant, driving without insurance, and the amended charge of criminal property damage in the fourth degree. She also agreed to pay restitution. Kahului Auto Sales, Inc., owned the car and made a restitution claim. The Judiciary’s Monetary Restitution Program recommended that Fay pay $6,504. The parties agreed to the amount and the district court issued an order for restitution in that amount at a rate of $50.00 per month.

 

The district court with the Hon. Judge Lauren Akitake presiding ordered Fay to return to court in six months if the amount was not paid off. The court told Fay that the hearings would be ongoing until it was paid off. Fay objected, but the hearing was set. Fay appealed. The ICA affirmed. Fay petitioned for further review.

 

The statutory procedure in enforcing restitution orders (and court fees and fines). If the defendant is sentenced to probation, it is a condition of probation. HRS § 706-644. See State v. Feliciano, 103 Hawai'i 269, 273, 81 P.3d 1184, 1188 (2003). Fay was not sentenced to probation and a free-standing order of restitution was issued.

 

In those cases, there are two ways to enforce the order. The restitution claimant can file a separate petition as a civil proceeding to enforce the order akin to a judgment creditor. HRS § 706-644(5).

 

The other method is a contumacious default for nonpayment. HRS § 706-644(1). The HSC described these consequences as “harsh.” If the defendant is ordered to pay restitution, a fine, or a fee and does not pay as ordered, the court “upon motion” filed by the prosecution or sua sponte may issue an order to show cause why the default should not be treated as contumacious and issue a summons or warrant. Id. The burden is on the defendant to show a good faith effort to pay the debt otherwise the court will find the defendant’s default contumacious. Id. That finding empowers the court to commit the defendant until the debt is either paid or converted to community service. Id.

 

The district court’s error was ordering the proof-of-compliance hearing at sentencing in derogation to HRS § 706-644(1). The HSC held that rolling compliance hearings at sentencing violated the statute. HRS § 706-644(1) authorizes supervision in the criminal case only when there has been a default. According to the HSC, this is meant to ensure that financial obligations do not “prolong[] criminal justice oversight, creating a type of shadow control that surpasses the original sentence.” Especially in cases for misdemeanants in the district court. Ultimately, the HSC ruled that “from-the-outset court monitoring of freestanding restitution orders unnecessarily burdens defendants and wastes judicial resources.”

 

Moreover, the HSC disagreed with the ICA’s analysis that the generalized power to enforce judgments authorized proof-0f-compliance hearings. While the district court may enforce judgments pursuant to HRS § 604-7(4), specific statutes like HRS § 706-644(1) control. See Ho‘omana Found. V. Land Use Comm’n, 152 Hawai'i 337, 344, 526 P.3d 314, 321 (2023). Nor did the civil enforcement provision enlarge post-conviction criminal jurisdiction. HRS § 706-644(5) empowers crime victims to collect restitution “in the same manner as a judgment in a civil action.”

 

Expansive proof-of-compliance hearings lead to absurd and illogical results. The HSC ruled that the ICA’s reading of the statutes allowing the ongoing proof-of-compliance hearings leads to an unsound, incongruous, or irrational result. See State v. Haugen, 104 Hawai'i 71, 76, 85 P.3d 178, 183 (2004). The HSC noted that if Fay paid restitution as ordered that would come to 130 payments and up to 11 years to complete restitution, which surpasses the ten-year period of probation for a class A felony. See HRS § 706-623(1)(a). That would mean she would have to come back to the Lahaina District Court 21 times without ever being placed on probation; and the longest length of probation for the petty misdemeanor of criminal property damage in the fourth degree is six months. This is the absurd result that must be avoided.

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