FOR PUBLICATION
IN
THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI`I
---o0o---
NO. 26771
June 29, 2006
BURNS, C.J., FOLEY AND NAKAMURA, JJ.
OPINION OF THE COURT BY FOLEY, J.
Defendant-Appellant Rodney A. Herbert (Herbert) appeals from the Order of Resentencing/Revocation of Probation filed on July 23, 2004 in the Circuit Court of the Second Circuit (circuit court). (1) As points of error, Herbert contends the circuit court erred when it granted on August 11, 2004 the Order Revoking Probation and Resentencing Defendant and denied on August 12, 2004 Herbert's Ex-Parte Motion for an Extension of Time to File a Notice of Appeal.On appeal, Herbert argues the circuit court (1) may not revoke probation for a first violation where the probationer has been sentenced under HRS § 706-625(7) (Supp. 2003), (3) (2) should have held an evidentiary hearing before revoking his probation, and (3) should have granted his motion to extend time for filing the notice of appeal.
We vacate and remand, but for reasons not articulated by Herbert.
By indictment filed on July 16, 2001, the State of Hawai`i (the State) charged Herbert with one count of Promoting a Dangerous Drug in the Third Degree and one count of Prohibited Acts Related to Drug Paraphernalia. On October 16, 2003, Herbert entered no contest pleas to both charges. In exchange for Herbert's no contest pleas, the State agreed that the circuit court should sentence Herbert pursuant to HRS § 706-622.5. After Herbert entered his pleas, the circuit court proceeded to sentencing. The circuit court sentenced Herbert to five years of probation on each count (to run concurrently), subject to seven terms and conditions (conditions 1-7) and additional special terms and conditions (special conditions A - M).
On February 13, 2004, the State filed a Motion for an Order to Show Cause and Issuance of a Warrant of Arrest (Motion for OSC). The State claimed Herbert violated the following conditions of his probation:
2) You must report to a probation officer as directed by the court or the probation officer.
The State also claimed Herbert violated the following Special Conditions:
G) You must submit to drug/alcohol assessments throughout your period of probation as directed by the Adult Client Services Branch and, if deemed necessary, seek and maintain outpatient and/or residential drug/alcohol treatment until clinically discharged with the concurrence of the Adult Client Services Branch.
[THE COURT:] Mr. Herbert, your attorney is indicating that you are intending this morning to give up your right to have a hearing and force the State to prove the truthfulness of certain allegations which were contained in a violation report and an order to show cause that relates to your failure to comply with certain terms and conditions of probation that you were on relating to [this case], which had two counts, promoting a dangerous drug in the third degree and prohibited acts related to drug paraphernalia. Those are Class C felonies. You were originally eligible to be sentenced -- since those are two felonies, you would be eligible for extended sentencing. You could have been sentenced originally to up to 20 years of incarceration in this matter, and instead, you were given probation. Are you aware of all that?
The circuit court then engaged Herbert in an on-the-record colloquy to ensure that he had a full understanding of the admissions and the consequences. Herbert admitted violating conditions 2 and 4 and special conditions G and L. The circuit court concluded:
THE
COURT: Well,
the Court is going to find that the terms and conditions of probation
which were
violated were material terms and
conditions of the probation and that they were violated without any
justification, reasonable justification that the Court can determine.
The Court is going to find
that Mr. Herbert is knowingly, intelligently and voluntarily and with
the advice of counsel
admitting to these violations and that he is doing so without any
coercion of any sort, without any
promises having been made and is going to accept his admissions and
find that the allegations are
true on the basis of that.
As to the ramifications of Herbert's violations, the circuit court and the State initially did not agree as to the application of HRS § 706-625(7) to Herbert's probation violations. The circuit court initially understood HRS § 706-625(7) to mean that "if the violation is somehow related to the use of drugs or possession of drug paraphernalia, things that relate to the substance abuse of the individual which was the justification for sentencing under 161 [HRS § 706-622.5] to begin with," the circuit court was not free to revoke and resentence Herbert. The circuit court stated that Herbert's failure to obtain a drug assessment (Condition 4) related to the use of drugs.
The State argued HRS § 706-625(7) meant that the violation must be one whereby Herbert actually used or possessed drugs during his probation. Since none of the violations pertained to Herbert's actually using or possessing drugs, the State contended HRS § 706-625(7) did not apply and the circuit court was free to revoke Herbert's probation and resentence him under HRS § 706-625(1). Over Herbert's objection, the circuit court granted the State an opportunity to submit a brief addressing this issue and continued Herbert's resentencing to July 23, 2004.On July 20, 2004, the State submitted a Sentencing Memorandum. On July 23, 2004, Herbert appeared before the court to continue the resentencing hearing. After hearing arguments from both Herbert's attorney and the State, the circuit court agreed with the State's interpretation of HRS § 706-625(7):
THE COURT: Based on the State's analysis if, in fact, the violation had been that he had been caught with or found with or had admitted to after testing use of an unprescribed drug or substance or had been found with or admitted to possessing drug paraphernalia, then I think, quite frankly, under the wording as I read it of Section 7 [sic], the Court's hands, at least under the old act, under Act 161, the Court's hands would be tied.
The circuit court revoked Herbert's probation and resentenced him to two concurrent five-year terms of incarceration. The circuit court issued an Order of Resentencing/Revocation of Probation on July 23, 2004. On August 11, 2004 the circuit court filed its Order Revoking Probation and Resentencing Defendant, setting forth the court's reasons for revoking Herbert's probation.On August 12, 2004, the circuit court denied Herbert's Ex-Parte Motion for an Extension of Time to File a Notice of Appeal. On August 23, 2004, Herbert timely filed his Notice of Appeal.
A. Statutory Interpretation
State v. Kelekolio, 94 Hawai`i 354, 356, 14 P.3d 364, 366 (App. 2000) (citations omitted).
The Hawai`i Supreme Court has repeatedly stated that, when interpreting a statute, an appellate court's
foremost obligation is to ascertain and give effect to the intention of the legislature, which is to be obtained primarily from the language contained in the statute itself. And where the language of the statute is plain and unambiguous, [a court's] only duty is to give effect to [the statute's] plain and obvious meaning.
State v. Wells, 78 Hawai`i 373, 376, 894 P.2d 70, 73 (1995) (internal quotation marks, citations, and brackets in original omitted).B. Sentencing
"The authority of a trial court to select and determine the severity of a penalty is normally undisturbed on review in the absence of an apparent abuse of discretion or unless applicable statutory or constitutional commands have not been observed." Barnett v. State, 91 Hawai`i 20, 26, 979 P.2d 1046, 1052 (1999) (quoting State v. Davia, 87 Hawai`i 249, 253, 953 P.2d 1347, 1351 (1998)).
In other words,while a sentence may be authorized by a constitutionally valid statute, its imposition may be reviewed for plain and manifest abuse of discretion.
State v. Kumukau, 71 Haw. 218, 227-28, 787 P.2d 682, 688 (1990).
State v. Gaylord, 78 Hawai` 127, 144, 890 P.2d 1167, 1184 (1995) (brackets omitted); see State v. Rauch, 94 Hawai`i 315, 322, 13 P.3d 324, 331 (2000).III.
Section 1 of Act 161 (which enacted HRS §§ 706-622.5 and 706-625) reads in part as follows:
SECTION 1. The legislature finds that drug abuse is a serious problem in the State of Hawaii, and current policies and practices in the criminal justice system, have not adequately addressed the issue. Hawaii's criminal justice system requires a major shift in philosophy to deal with the needs of drug offenders by requiring nonviolent drug possession offenders to participate in community-based supervision and treatment, instead of incarceration.
Arizona (Proposition 200, 1996) and California (Proposition 36, 2000) have passed initiatives providing for mandatory community supervision of nonviolent drug possession offenders, with substance abuse treatment requirements. These measures change state law so that certain drug offenders who use or possess illegal drugs would receive drug treatment and supervision in the community, rather than being sent to prison or jail or supervision in the community without treatment.
(1)
To divert from
incarceration into community-based substance abuse treatment program
nonviolent
defendants,
probationers, and
parolees charged with simple drug
possession or drug use offenses;
(3)
To enhance
public safety by reducing drug-related crime and preserving jails and
prison cells
for serious and violent
offenders, and to
improve public health by
reducing drug abuse and drug
dependence through proven and effective drug
treatment strategies.
The California legislative analyst provided an overview of Proposition 36 for the voters and included a summary of fiscal effects. The reports [sic] states, "This measure is likely to result in net savings to the state after several years of between $100 and $150,000,000 annually due primarily to lower costs for prison operations. Assuming the inmate population growth would have otherwise continued, the state would also be able to delay the construction of additional prison beds for a one-time cost avoidance of capital outlay costs between $450,000,000 and $550,000,000 in the long term. Counties would probably experience net savings of about $4,000,000 annually due primarily to lower jail population."
2002 Haw. Sess. L. Act 161, § 1 at 568 & 570-71.
Act 161 affords nonviolent substance abusers to continue on probation
HRS § 706-625(7) (Supp. 2003). However, "[i]f the person fails to complete the drug treatment program and if no other suitable treatment is amenable to the offender, the person shall be subject to revocation of probation and return to incarceration." Id.
By the same token, however, Act 161 does not extend the same opportunity to a person on probation who violates the terms and conditions of probation that do not involve possession or use of drugs or drug paraphernalia. The court has discretion to incarcerate that person.
The question before us is whether Herbert's violation of his terms and conditions of probation involved possession or use of drugs as meant under HRS § 706-625(7). Herbert's violations of his terms and conditions of probation consisted of failing to report to his probation officer as directed, failing to notify his probation officer of any change in address, failing to submit to a drug/alcohol assessment as directed, and failing to pay the crime victim compensation and probation service fees. Herbert argues that the phrase "involving possession or use" of drugs refers to the underlying crime for which he was originally sentenced to probation. Conversely, the State argues that the phrase refers to the possession or use of drugs by Herbert while on probation.
In revoking Herbert's probation and sentencing him to prison, the circuit court stated, in part, on July 23, 2004:
[THE COURT:] Now, I don't think here we're dealing with a situation where Mr. Herbert is alleged to have been convicted of a new crime. I think the allegation that he has admitted to, the allegations have to do with, at some point, stopping to report to his probation officer, of not getting an assessment that he was ordered to be assessed, and seek and maintain outpatient or residential treatment that might be recommended as a result of the assessment.
THE COURT: Based on the State's analysis if, in fact, the violation had been that he had been caught with or found with or had admitted to after testing use of an unprescribed drug or substance or had been found with or admitted to possessing drug paraphernalia, then I think, quite frankly, under the wording as I read it of Section 7, the Court's hands, at least under the old act, under Act 161, the Court's hands would be tied.
. . . .
Why the legislature sure has done that, I don't know, because I'm not familiar, quite frankly, with what the legislature exactly was concerned about before. But we're going under the old. We're going under 161. I don't intend to impose on him the requirements of the old law that, you know -- excuse me, of the new law which was not in place at the time that he was found guilty. I think that would raise some significant problems.
In other words, if it's something other than -- if the violation is something other than possession or use, and I think that in terms of looking at the consistency of that position with the intent of the law to the extent that we even get into that, there seems to be an acknowledgment in the act itself that the struggle with drugs is a very difficult one and that people will relapse and you start and continue to use drugs even after they have made an attempt at rehabilitation.
That if we get into the legislative intent talking about 161, I think that that's what they were concerned about and in some sense acknowledging the realities of how difficult it is to kick the drug habit.
THE COURT: . . . Where we left off was the issue about the application -- if the Court -- the Court, I will indicate, is inclined to follow the interpretation which has been of this particular section. By that I'm talking about 706-625, Subsection 7, interpretation has been presented by the State with regard to the limited circumstances under which the Court should not revoke first time violation of terms and conditions of probation in Act 161 cases.
The overall, I think purpose and intent of both Act 161 and Act 44 is to the extent that people come within the benefits of it receive treatment and rehabilitation and, you know, we're dealing with a situation where the individual has not taken advantage of the probationary opportunities which were available to get assessed and get treated.
The Court's inclination at this point is to sentence him to two five year terms of incarceration, to run concurrently with credit for time served, and to not set a mandatory minimum and strongly recommend to the Paroling Authority that this defendant be programmed such that he is required to take advantage of the opportunity of the Cash Box program or any other program which the Department of Public Safety may have in place in its facilities to permit him to participate in a program which will allow him to and require him to address his substance abuse problems.
(Footnote added.)Act 161 on its face does not define the phrase "involving possession or use" of drugs. HRS § 706-625(7). This language was adopted in the final version of S.B. No. 1188, S.D.2, H.D.2, C.D.1 (which became Act 161), Section 5. Prior drafts had used the language "drug related probation condition" adopted from the language of the California statute cited in Section 1 of Act 161, as quoted previously.
The change of language from "drug related probation condition" to "terms and conditions of probation involving possession or use" of drugs does not appear to have intended any substantive change. The conference committee report stated this phrase required "[t]he court not to revoke probation for the first violation of a nonviolent drug-related probation condition." Sen. Conf. Comm. Rep. No. 96, in 2002 Senate Journal, at 986.
Because the language of HRS § 706-625(7) was modeled after the California Act cited in Act 161, we look to the California statute and case law for guidance. State v. Ontai, 84 Hawai`i 56, 61, 929 P.2d 69, 74 (1996). The California statute defines the term "drug-related condition of probation" to "include a probationer's specific drug treatment regimen, employment, vocational training, educational programs, psychological counseling, and family counseling." Cal. Penal Code § 1210.01(f) (West 2001).
In People v. Dagostino, 117 Cal. App. 4th 974, 12 Cal. Rptr. 3d 223 (2004), the California Court of Appeal, Fifth District, held the failure to report to a mental health "gatekeeper" was a violation of a drug-related condition of probation. Id. at 993, 12 Cal. Rptr. at 236. The court wrote:
Appellant could not be placed in the appropriate drug treatment program until he was evaluated by the mental health "gatekeeper." Since a person cannot be placed in the appropriate drug treatment program without being evaluated, it follows that a drug treatment regimen includes the initial evaluation, and appearing or failing to appear for that evaluation "thus satisfies the definition of a drug-related condition of probation."
In In re Taylor, 105 Cal. App. 4th 1394, 130 Cal. Rptr. 2d 554 (2003), the California Court of Appeal, Second District, held that failure to report to one's probation officer involved "a drug-related condition of probation" and, thus, the trial court could not impose jail time. Id. at 1398, 130 Cal. Rptr. 2d at 556. The court opined that although reporting to a probation officer "may be a condition of probation for any number of reasons, none of which is necessarily drug-related," Taylor was different in that his primary and perhaps only reason for reporting was for drug testing. Id. at 1398-99, 130 Cal. Rptr. 2d at 557.It involves no linguistic or logical stretch to deem a probationer's obligation to take drug tests a part of his treatment regimen, because tests permit authorities to monitor a probationer's compliance with the program by ensuring he is abstaining from illegal drugs. Because one cannot be tested unless one shows up for the test, it follows that a drug treatment regimen includes appearing for tests. Appearing (or failing to appear) for a drug test thus satisfies the definition of a drug-related condition of probation.
Id. at 1398, 130 Cal. Rptr. 2d at 557 (citations omitted).The California Court of Appeal, Third District, held that a general condition requiring a defendant to report to his probation officer is not a drug-related condition of probation when the reporting is done by mail. People v. Dixon, 113 Cal. App. 4th 146, 148, 5 Cal. Rptr. 3d 917, 918 (2003). The court explained that "[t]his method of reporting could not have involved a drug test, nor was there anything else about reporting by mail that was peculiar to defendant's drug problems or drug treatment." Id. at 152, 5 Cal. Rptr. 3d at 920.
In People v. Johnson, 114 Cal. App. 4th 284, 7 Cal. Rptr. 3d 492 (2004), the California Court of Appeal, Fourth District, opined that
not every appointment with a probation officer is drug-related. Probation officers may require defendants on probation for drug-related offenses to meet with them for non-drug-related purposes. For example, such appointments might be related to a probationer's obligation to maintain a residence or employment approved by the probation officer, participate in other types of counseling programs, and satisfactorily comply with probation generally[.]
Id. at 297, 7 Cal. Rptr. 3d at 500 (internal quotation marks and citation omitted). The court further stated that "[i]n light of her prior conviction of a violent felony, it was important that Johnson report to the probation officer for reasons other than assessing whether she was complying with the drug-related conditions of her probation." Id. at 299, 7 Cal. Rptr. 3d at 501.In People v. Atwood, 110 Cal. App. 4th 805, 807-08, 2 Cal. Rptr. 3d 67, 68-69 (2003), the California Court of Appeal, Third District, held that the state must adduce evidence that Atwood's failure to report to her probation officer did not involve a drug-related condition of probation.
In In re Mehdizadeh, 105 Cal. App. 4th 995, 130 Cal. Rptr. 2d 98 (2003), the California Court of Appeal, Second District, held that nonpayment of court-ordered restitution was a drug-related violation of probation. Id. at 1000-01, 130 Cal. Rptr. 2d at 103. The payments included the cost of probation services in monitoring Mehdizadeh's compliance with the drug treatment conditions of probation; therefore, the Court of Appeal considered the payments to be "drug-related." Id. at 1000 n.12, 130 Cal. Rptr. 2d at 103 n.12.
Herbert's failure to submit to drug/alcohol assessments clearly involved drug-related conditions of probation under California precedent. Herbert's failure to report to his probation officer may have involved a drug-related condition of probation under California precedent. Herbert's failure to notify his probation officer of a change of address did not appear to involve a drug-related condition of probation.
Finally, Herbert's failure to pay the crime victim compensation and probation service fees did not involve a drug-related condition of probation, notwithstanding In re Mehdizadeh. In In re Mehdizadeh, payments were in the form of "restitution" that included the cost of probation services in monitoring petitioner's compliance with the drug treatment conditions of probation. 105 Cal. App. at 1000 n.12, 130 Cal. Rptr. 2d at 103 n.12. Herbert's required payments were not restitution that included the cost of probation services in monitoring Herbert's compliance with his drug treatment conditions of probation. (5)
The circuit court erred in its interpretation and application of HRS § 706-625(7). The circuit court should conduct a new resentencing hearing in light of this opinion.
IV.
The Order of Resentencing/Revocation of Probation filed on July 23, 2004 in the Circuit Court of the Second Circuit is vacated, and this case is remanded for further proceedings consistent with this opinion. Because we vacate and remand, Herbert's other points on appeal are moot.
1. The Honorable Joel E. August presided.
2. In 2003, Hawaii Revised Statutes (HRS) § 706-622.5 (Supp. 2003) provided in relevant part:
(a)
Criminal
history of the defendant;
(b) Factual circumstances of the offense for which the defendant is being sentenced; and
shall be sentenced in accordance with subsection (2); provided that the person does not have a conviction for any violent felony for five years immediately preceding the date of commission of the offense for which the defendant is being sentenced.
3. In 2003, HRS § 706-625 (Supp. 2003) provided in relevant part:
. . . .
4. Act 44, §§ 11 and 12, of the 2004 Hawai`i Legislature amended HRS §§ 706-622.5(1) and (2) and 706-625(7) to read as follows:
. . . .
(a) Be assessed
by a certified
substance abuse counselor for substance abuse dependency or abuse under
the applicable
Diagnostic and
Statistical Manual and Addiction Severity Index;
(d) Comply with any other terms and conditions of probation.
Nothing in this subsection shall be construed to give rise to a cause of action against the State, a state employee, or a treatment provider.
Act 44 did "not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun, before its effective date" of July 1, 2004. 2004 Haw. Sess. L. Act 44, § 29 at 227.
5. The crime victim compensation
fee was imposed
pursuant to HRS § 351-62.6 (Supp. 2004) based on the "seriousness
of
the offense." None of that fee went to monitoring Herbert's compliance
with conditions of probation.