State v. Anzalone. , 412 P.3d 951 ( 2018 )

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Electronically Filed
Supreme Court
SCWC-15-0000935
14-FEB-2018
09:21 AM
IN THE SUPREME COURT OF THE STATE OF HAWAI#I
---o0o---
STATE OF HAWAI#I,
Respondent/Plaintiff-Appellee,
vs.
DAWN MARIE ANZALONE,
Petitioner/Defendant-Appellant.
SCWC-15-0000935
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-15-0000935; FC-CR. NO. 15-1-0287)
FEBRUARY 14, 2018
RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.
OPINION OF THE COURT BY NAKAYAMA, J.
Petitioner/Defendant-Appellant Dawn Marie Anzalone
(Anzalone) was charged with one count of custodial interference in
the first degree after she violated a court-ordered custody
visitation schedule and fled the State of Hawai#i with her two-year-
old son. Pursuant to an arrest warrant issued by the Family Court
of the Second Circuit (family court), Anzalone was arrested in
Florida and extradited back to Hawai#i. She did not challenge her
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extradition. Upon her return, she pleaded no contest to the charge
against her in accordance with a plea agreement with
Respondent/Plaintiff-Appellee State of Hawai#i (the State).
At sentencing, the State requested that Anzalone pay
restitution to the State for the costs of her extradition pursuant
to Hawai#i Revised Statutes (HRS) § 621-9(b). Anzalone objected to
the State’s request for extradition costs. Ultimately, the family
court sentenced Anzalone to, inter alia, four years of probation
and ordered her to pay over $4,000 in extradition costs as a
condition of probation and as a free standing order. On appeal,
the Intermediate Court of Appeals (ICA) affirmed the family court’s
imposition of extradition costs as a condition of probation.
However, based upon its determination that extradition costs could
not be imposed as restitution under HRS § 706-646, the ICA ordered
the family court to, on remand, modify the judgment to reflect the
imposition of extradition costs as being pursuant to HRS § 621-
9(b), and not as restitution.
We are presented with one question for review on
certiorari: whether the ICA gravely erred by affirming the family
court’s imposition of extradition costs as a condition of
probation. Based upon our interpretation of HRS § 621-9(b) and its
application to the facts in this case, we conclude that the family
court erroneously ordered Anzalone to reimburse the State for the
costs of her extradition. Accordingly, we hold that the ICA
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gravely erred in affirming the family court’s imposition of
extradition costs. We also hold that the ICA erred by essentially
imposing, on its own and in an appeal, extradition costs as a
discretionary condition of probation. In taking such action to
resolve Anzalone’s appeal, the ICA improperly intruded upon the
family court’s discretionary authority to impose extradition costs
and to determine the conditions of a defendant’s probation.
Therefore, we vacate the ICA’s April 5, 2017 judgment on
appeal filed pursuant to its February 24, 2017 summary disposition
order, vacate Anzalone’s sentence in its entirety, and remand the
case for sentencing anew.
I. BACKGROUND
On October 3, 2014, the family court issued an order that
awarded the father of Anzalone’s son (Father), joint legal and
physical custody of their two-year-old son. The order required
Anzalone and Father to adhere to a visitation schedule that they
had previously agreed upon, and designated a specific Longs Drugs
parking lot as the location for child exchanges.
Pursuant to the visitation schedule, Anzalone was to drop
their son off to Father on December 24, 2014. On that date,
however, Anzalone did not show up to the designated Longs Drugs
parking lot, and did not answer her phone when Father called her.
Subsequently, Anzalone repeatedly failed to appear for child
exchanges that had been scheduled. Father discovered that
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Anzalone’s cellular phone was no longer in service as of December
25, 2014, and was unable to contact Anzalone during this time.
On February 3, 2015, Father filed an ex parte motion for
full legal and physical custody of Son, which was granted on March
20, 2015. Anzalone did not appear for the hearing on the motion.
A. Family Court Proceedings
On June 2, 2015, Anzalone was charged with one count of
custodial interference in the first degree in violation of HRS §
707-726(1)(a).1
The family court2 issued a “Warrant of Arrest” (arrest
warrant) on June 1, 2015. The arrest warrant directed law
enforcement as follows:
This Court HAVING FOUND PROBABLE CAUSE to
believe that the defendant has committed the
offense(s) indicated below,
YOU ARE HEREBY COMMANDED on the INFORMATION of
DETECTIVE RONALD BENNETT, verified by oath or
declaration, to arrest and bring the defendant to the
Circuit Court of the Second Circuit, Hoapili Hale,
2145 Main Street, Wailuku, Maui, Hawaii, for
Arraignment and Plea before the Honorable [Judge
Richard T. Bissen, Jr.]
1
HRS § 707-726(1)(a) (2014) provides:
(1) A person commits the offense of custodial
interference in the first degree if:
(a) The person:
(i) Intentionally or knowingly violates a
court order issued pursuant to chapter
586, or intentionally or knowingly takes,
entices, conceals, or detains the minor
from any other person who has a right to
custody pursuant to a court order,
judgment, or decree; and
(ii) Removes the minor from the State[.]
2
The Honorable Richard T. Bissen, Jr. presided.
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The arrest warrant additionally contained the following
advisement, directed to Anzalone:
DEFENDANT: If you are released from custody by this
Court Order, with or without bail, it is upon
condition that you will subsequently appear in court
for all proceedings in connection with the charge(s)
in this case. FAILURE TO APPEAR MAY SUBJECT YOU TO
PROSECUTION FOR BAIL JUMPING, which can be a felony
with a five-year term of incarceration.
(Emphasis added.)
On June 11, 2015, Anzalone was arrested in Florida and
extradited back to Maui, Hawai#i. Anzalone did not challenge the
extradition. At a hearing held on June 12, 2015, Anzalone
entered a plea of not guilty.
On August 18, 2015, Anzalone filed a change of plea
form, which indicated that she was changing her plea to no
contest and that she was moving to defer the acceptance of her
plea. Attached to her change of plea form was a plea agreement,
which provided, inter alia: “The State reserves the right to
seek restitution for extradition costs to the State, in an amount
to be determined by probation; Defendant shall have the right to
object.”
At a hearing held on the same day, the family court
reviewed Anzalone’s change of plea form with her in its entirety,
ensuring that Anzalone: (1) was pleading of her own free will
and with a clear mind; (2) was aware of the consequences of
pleading no contest, such as the possible sentence she may
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receive; (3) understood the constitutional rights she was waiving
by virtue of pleading no contest; and (4) comprehended the terms
of the plea agreement attached to the change of plea form, and
that the family court was not required to follow the agreement.
As it reviewed Anzalone’s change of plea form, the family court
ensured that Anzalone understood that “the State reserve[d] the
right to seek restitution for extradition costs to the State in
an amount to be determined by Probation” and that “Defendant
shall have the right to object.”
After the family court reviewed Anzalone’s change of
plea form with her on the record, Anzalone pleaded no contest to
the charge against her. The family court found that Anzalone
“voluntarily, knowingly, and intelligently enter[ed] her plea
with a full understanding of the charge against her and the
consequences of her plea.” Subsequently, the family court stated
that it was going to “reserv[e] [making a] finding of guilt until
the motion to defer is heard,” ordered that a presentence
investigation report be prepared, and placed Anzalone on
supervised release pending sentencing.
On October 28, 2015, the State filed a certification of
extradition costs with the family court. The certification was
supported by the prosecutor’s declaration, which stated that
Anzalone was “extradited to Hawaii from Fort Meyers, Florida on
the court’s no bail warrant issued on June 2, 2015, for Custodial
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Interference in the First Degree,” and that “the State incurred
the cost of $4,581.93 to extradite Defendant, breakdown is as
follows: Airfare, $3,650.00, Per Diem $725.00, Car rental
$112.90, hotel $45.90, and other costs $48.13.” Attached to the
prosecutor’s declaration were copies of the invoices that
supported the value of Anzalone’s extradition costs.
That same day, a hearing was held on Anzalone’s
sentencing and her motion to defer the acceptance of her no
contest plea (DANC Motion). At the outset, the prosecutor stated
that he had filed a certification of extradition costs that
morning, and that he had served a copy on Anzalone shortly before
the hearing started. Anzalone “object[ed] to payment of the
extradition costs.”
Anzalone then presented argument on her DANC Motion.
Anzalone contended that her DANC Motion should be granted because
her prior criminal record was minimal, she already spent a
considerable amount of time in custody, she secured a full-time
job and was in the process of securing permanent housing, and she
assembled a community of support. The State did not oppose
Anzalone’s DANC Motion because the presentence investigation
report was “really positive.”
With regard to extradition costs, the State contended
that it was requesting extradition costs pursuant to HRS § 621-
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9(b)3 because despite the positive progress Anzalone was making:
The bottom line is all this should not have
happened, her taking the law into her own hands,
violating the child custody order, taking the child
out of the jurisdiction of Maui, in fact, to the
mainland, eventually relocated in Florida. There was
a lot of time, effort, and money spent in trying to
apprehend her, and she just simply disregarded a Court
order.
It’s a very serious violation in the sense that
it does take the child away from the other parent in
this case. . . .
. . . .
Again, by taking the law into her own hands,
taking the child out of the jurisdiction and
disobeying that Court order, she really caused a lot
of havoc and a lot of time and effort being made in
order to find her and the child.
Anzalone countered that HRS § 621-9(b) did not apply
because the statute was “limited to a defendant in criminal
cases, in 704 proceedings, or a petitioner in a post conviction
proceeding like a Rule 40.” She further argued that she should
not be required to pay extradition costs because “[s]he was
3
HRS § 621-9(b) (1993) provides:
Whenever the presence of a defendant in a criminal
case or in a proceeding under chapter 704 or a
petitioner in a post conviction proceeding who is
outside the judicial circuit is mandated by court
order or bench warrant to appear, the cost of airfare,
ground transportation, any per diem for both the
defendant or petitioner and sufficient law enforcement
officers to effect the defendant’s or petitioner’s
return, shall be borne by the State. All such
expenses shall be certified by the court or public
prosecutor or the attorney general. Duly certified
claims for payment shall be paid upon vouchers
approved by the state director of finance and warrants
drawn by the state comptroller. The court may order
the nonindigent defendant or petitioner who was
returned to the State of Hawaii to reimburse the State
for the costs of such extradition or return as
specifically described above.
(Emphasis added.)
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unaware of the existence of the warrant” for her arrest, and
averred that had she been aware of the warrant, she would have
returned to Maui voluntarily. Though she conceded that she did
not obey the court-ordered custody visitation schedule, Anzalone
argued that her non-compliance did not illustrate that she would
have also disobeyed a court order requiring her appearance in
Maui, such that extradition was necessary. Anzalone explained
that she did not disobey the custody visitation schedule without
reason, or due to pure insubordination. Rather, she disclosed
that she took her child and fled the state because she believed
that Father has been, and would continue, abusing their son and
subjecting him to neglect.
The family court orally denied Anzalone’s DANC Motion,
explaining that: “I do not think the ends of justice and the
welfare of society dictate that she not suffer this penalty. I
think it’s exactly the opposite of that. This is not conduct we
want to encourage.” Accordingly, the family court sentenced
Anzalone to four years of probation. Further, the family court
ordered that Anzalone, inter alia, “pay restitution to the Clerk
of the Court in the amount [of] $4,581.93 as a condition of
probation and as a free standing order.” The family court
explained that it was ordering Anzalone to reimburse the State
for extradition costs because: “There is no way I think the
taxpayers of this county should be responsible for that bill
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because the only reason it was set in motion was by the actions
of Ms. Anzalone.” As to the schedule of payment, Anzalone stated
that she could pay $50 per month.
The family court filed its final judgment of conviction
and probation sentence on October 28, 2015.
B. ICA Proceedings
On appeal, Anzalone asserted, inter alia,4 that the
family court erred in ordering Anzalone to pay extradition costs
as part of her sentence. Anzalone advanced two arguments in
support of this point of error. First, Anzalone argued that
because the State “did not reimburse anyone for losses arising
from the result of a crime,” the State was not a “victim” within
4
Anzalone also argued that the family court abused its discretion in
requiring her to seek mental health treatment as a condition of probation,
because the family court’s language in its written ruling could be read as
giving “‘medical’ discretion to the probation officer,” and because there were
insufficient facts to support the imposition of such a condition. Moreover,
she asserted that the family court abused its discretion in denying her DANC
Motion because the family court focused on “the nature of the offense and her
disobedience to the Family Court, rather than the characteristics of the
defendant.”
The ICA held that “there was sufficient factual basis in the record to
justify the Family Court’s imposition of mental health treatment as a
condition of probation,” but acknowledged that “the language of the condition
as set forth in the written Judgment is ambiguous in that it could be read as
giving the probation officer the authority to order medication and tests and
to determine whether clinical discharge is appropriate.” Accordingly, the ICA
remanded the case so that “the Judgment can be clarified . . . to provide that
while Anzalone shall, as directed by her probation officer, obtain and
maintain mental health treatment or other mental health services, the
determination of clinical discharge and the appropriate medication or tests
shall be made by her treating mental health professional.” On her other point
of error, the ICA held that the family court “properly considered the nature
and circumstances of Anzalone’s offense” and did not abuse its discretion in
denying her DANC Motion.
On certiorari, Anzalone has not presented any questions concerning the
ICA’s holdings on her other points of error. The State’s response also does
not raise any questions on these matters. Accordingly, we do not address
them. See Hawai#i Rules of Appellate Procedure Rule 40.1(d).
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the meaning of HRS § 706-646(1)(c).5 Accordingly, Anzalone
asserted, the family court could not have ordered her to pay
extradition costs as restitution to the State.
Second, Anzalone contended that the family court lacked
the authority to require her to pay extradition costs because:
(1) pursuant to HRS § 706-600,6 criminal defendants can only be
sentenced pursuant to HRS Chapter 706, and the family court’s
authority to order payment of extradition costs lies outside of
this section; and (2) HRS § 621-9(b) did not apply because its
plain language limits its scope to “situations where extradition
is mandated by court order or bench warrant.”
The State responded that its request for extradition
costs pursuant to HRS § 621-9(b) was proper because the statute’s
plain language and legislative history supported that the
legislature “intended to allow the State to recover extradition
costs from nonindigent defendants in criminal cases.”
Accordingly, the State argued that because the underlying case
was a criminal case, the family court had issued a warrant for
Anzalone’s arrest, the State certified the extradition costs, and
the family court “was informed that Anzalone had housing and
5
Pursuant to HRS § 706-646(1)(c) (2014), the term “victim” could be used
to refer to “[a] governmental entity that has reimbursed the victim for losses
arising as a result of the crime or paid for medical care provided to the
victim as a result of the crime[.]”
6
HRS § 706-600 (2014) states: “No sentence shall be imposed otherwise
than in accordance with this chapter.”
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financial resources to pay,” the “statutory criteria for
imposition of extradition costs was met.”
Furthermore, the State conceded that both the State and
the family court had “mislabeled” the payment of extradition
costs as “restitution,” but maintained that “taken in context it
is clear that when the trial court granted the amount of
$4,581.93 requested by the State, it was granting extradition
costs.” Thus, the State concluded that because the family court
could order “other fees” as a discretionary condition of
probation pursuant to HRS §§ 706-624(2)(q)7 and 706-648(2),8 the
7
HRS § 706-624(2)(q) (2014) provides:
(2) Discretionary conditions. The court may provide,
as further conditions of a sentence of probation, to
the extent that the conditions are reasonably related
to the factors set forth in section 706-606 and to the
extent that the conditions involve only deprivations
of liberty or property as are reasonably necessary for
the purposes indicated in section 706-606(2), that the
defendant:
. . . .
(q) Satisfy other reasonable conditions as the
court may impose.
8
HRS § 706-648(2) (2014) states:
(2) The entire fee ordered or assessed shall be
payable forthwith by cash, check, or by a credit card
approved by the court. When a defendant is also
ordered to pay a fine, make restitution, pay a crime
victim compensation fee, or pay other fees in addition
to the probation services fee under subsection (1),
payments by the defendant shall be made in the
following order of priority:
(a) Restitution;
(b) Crime victim compensation fee;
(c) Probation services fee;
(d) Other fees; and
(e) Fines.
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family court possessed the statutory authority to order Anzalone
to pay extradition costs.
In a summary disposition order filed on February 24,
2017, the ICA affirmed in large part the family court’s judgment
of conviction and probation sentence, holding that:
We agree with the State that while the costs of
Anzalone’s extradition could not be imposed as
restitution, the Family Court had the authority to
impose extradition costs under HRS § 621-9(b).
Anzalone was a defendant in a criminal case whose
presence from outside the circuit was mandated by a
bench warrant. The record shows that the Family Court
was relying on HRS § 621-9(b) in imposing the
extradition costs. We therefore affirm the Family
Court’s imposition of the costs of extradition as a
condition of probation. However, because extradition
costs could not be imposed as restitution under HRS §
706-646 (2014), the Family Court on remand shall
modify the Judgment to reflect the imposition of
$4,581.93 in extradition costs pursuant to HRS § 621-
9(b), and not as restitution.
(Citations omitted.) On April 5, 2017, the ICA entered its
judgment on appeal.
II. STANDARD OF REVIEW
A. Statutory Interpretation
“The proper interpretation of a statute is a question
of law that is reviewed de novo under the right/wrong standard.”
State v. DeMello, 136 Hawai#i 193, 195, 361 P.3d 420, 422 (2015).
III. DISCUSSION
On certiorari, Anzalone presents one question for our
review: whether, after determining Anzalone could not be ordered
to pay extradition costs as restitution, the ICA gravely erred by
holding that the family court properly ordered Anzalone to pay
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extradition costs as a condition of probation pursuant to HRS §
621-9(b). Briefly stated, Anzalone argues that the ICA erred in
affirming the family court’s order requiring her to pay
extradition costs because: (1) based upon its plain language,
HRS § 621-9(b) does not apply to the present case, and (2) the
statutory requirements in HRS § 621-9(b) were not met.9 We
address each of Anzalone’s arguments in turn below.
A. HRS § 621-9(b) applies in this case because the arrest
warrant constituted a “court order” mandating Anzalone’s
appearance within the meaning of HRS § 621-9(b).
Anzalone’s first argument concerns whether HRS § 621-
9(b) applies in this case. HRS § 621-9(b) (1993) states:
Whenever the presence of a defendant in a criminal
case or in a proceeding under chapter 704 or a
petitioner in a post conviction proceeding who is
outside the judicial circuit is mandated by court
order or bench warrant to appear, the cost of airfare,
ground transportation, any per diem for both the
defendant or petitioner and sufficient law enforcement
officers to effect the defendant’s or petitioner’s
return, shall be borne by the State. All such
expenses shall be certified by the court or public
prosecutor or the attorney general. Duly certified
claims for payment shall be paid upon vouchers
approved by the state director of finance and warrants
drawn by the state comptroller. The court may order
the nonindigent defendant or petitioner who was
returned to the State of Hawaii to reimburse the State
for the costs of such extradition or return as
specifically described above.
(Emphases added.)
9
In addition to her statutory arguments, Anzalone also contends that her
sentence should be vacated because she was denied her right to procedural due
process. She appears to argue that because the State initially framed its
request for reimbursement of extradition costs as “restitution,” and served
the certification of costs on Anzalone shortly before the sentencing hearing,
she did not receive adequate notice and was not given a meaningful opportunity
to be heard.
Because we vacate Anzalone’s sentence on statutory grounds, see section
III infra, we do not address her due process arguments.
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Anzalone argues that HRS § 621-9(b) does not apply to
the present case because “there was no bench warrant or order
mandating Petitioner to appear before the court.” She contends
that “an arrest warrant is to empower a law enforcement officer
to arrest the identified party,” such that “an arrest warrant is
distinct from the order or bench warrant referenced in HRS § 621-
9(b).” Anzalone appears to assert that HRS § 621-9(b) only
applies when the defendant has already appeared before the court,
such that “process has attached and the court has authority on a
defendant’s compliance,” has been ordered to return, and has
failed to comply. The State responds that “[i]n the underlying
case, there was a warrant of arrest issued to arrest and bring
Anzalone to appear in court.” The State maintains that
“[c]learly the warrant of arrest is a ‘court order to appear’ as
specified in HRS § 621-9(b).”
We agree with the State that the arrest warrant in this
case qualified as a “court order” mandating Anzalone’s appearance
under HRS § 621-9(b). The arrest warrant stated, in relevant
part:
This Court HAVING FOUND PROBABLE CAUSE to
believe that the defendant has committed the
offense(s) indicated below,
YOU ARE HEREBY COMMANDED on the INFORMATION of
DETECTIVE RONALD BENNETT, verified by oath or
declaration, to arrest and bring the defendant to the
Circuit Court of the Second Circuit, Hoapili Hale,
2145 Main Street, Wailuku, Maui, Hawaii, for
Arraignment and Plea before the Honorable [Judge
Richard T. Bissen, Jr.]
(Emphasis added.)
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Here, the arrest warrant not only authorized law
enforcement officers to arrest Anzalone, but also commanded the
arresting officers to bring Anzalone before the family court to
appear for her arraignment and plea. Put differently, the arrest
warrant was not just a document that empowered a law enforcement
officer to arrest her, as Anzalone contends. By contrast, the
arrest warrant, as written in this case, effectively mandated a
law enforcement officer to find Anzalone and bring her to appear
before the family court for specific proceedings. The arrest
warrant also referred to itself as a “Court Order” when advising
Anzalone of the consequences that could follow if she was
released from custody, and failed to appear for all court
proceedings in connection with the charges against her:
DEFENDANT: If you are released from custody by this
Court Order, with or without bail, it is upon
condition that you will subsequently appear in court
for all proceedings in connection with the charge(s)
in this case. FAILURE TO APPEAR MAY SUBJECT YOU TO
PROSECUTION FOR BAIL JUMPING, which can be a felony
with a five-year term of incarceration.
(Emphasis added.)
Consequently, despite being labeled a “Warrant of
Arrest,” the arrest warrant in the present case was in form and
in substance a court order that mandated Anzalone’s appearance
before the family court for her arraignment and plea. As such,
we hold that the arrest warrant in the present case constituted a
“court order” that mandated her appearance before the court under
HRS § 621-9(b), such that HRS § 621-9(b) applies in this case.
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B. Because the statutory requirements under HRS § 621-9(b)
were not met in the present case, the family court erred in
granting the State’s request for extradition costs.
Second, Anzalone argues that assuming that HRS § 621-
9(b) applies in this case, the State had to demonstrate that
Anzalone was not indigent in connection with its request for
reimbursement of extradition costs, and that the family court was
obligated to find that she was nonindigent prior to ordering
Anzalone to pay extradition costs. She asserts that because
neither the family court nor the State complied with the
foregoing requirements, the family court erroneously ordered her
to reimburse the State for extradition costs. The State responds
that Anzalone’s argument fails because the evidence in the record
sufficiently demonstrated that she was not indigent.
The parties’ arguments require this court to resolve
two issues of first impression: (1) whether a court is required
to make a finding concerning the defendant’s indigency prior to
ruling on a request by the State for reimbursement of extradition
costs brought pursuant to HRS § 621-9(b), and (2) whether the
State or the defendant should bear the burden of proof concerning
whether the defendant is nonindigent for the purposes of HRS §
621-9(b). We address each issue in turn.
1. Requisite Threshold Finding of Nonindigency
With respect to the first issue, we hold that when
faced with a request for reimbursement of extradition costs made
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pursuant to HRS § 621-9(b), the reviewing court cannot order a
criminal defendant to reimburse the State for the costs of his or
her extradition unless the court has first found that the
defendant is nonindigent. Our holding is supported by the plain
language of HRS § 621-9(b) and the statute’s legislative history.
“The plain language of a statute is ‘the fundamental
starting point of statutory interpretation.’” DeMello, 136
Hawai#i at 195, 361 P.3d at 422 (quoting State v. Wheeler, 121
Hawai#i 383, 390, 219 P.3d 1170, 1177 (2009)). “Courts are
bound, if rational and practicable, to give effect to all parts
of a statute and no clause, sentence or word shall be construed
as superfluous, void or insignificant if construction can be
legitimately found which will give force to and preserve all
words of the statute.” Id. (quoting Dawes v. First Ins. Co. of
Haw., Ltd., 77 Hawai#i 117, 135, 883 P.2d 38, 56 (1994)).
HRS § 621-9(b) states: “The court may order the
nonindigent defendant or petitioner who was returned to the State
of Hawaii to reimburse the State for the costs of such
extradition or return as specifically described above.”
(Emphases added.) Through the use of the word “may,” the statute
establishes that courts have the discretion to order a defendant
to repay the State for the costs of his or her extradition.
However, by specifying that such orders can only be issued when a
“nonindigent defendant or petitioner” is extradited, the text of
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HRS § 621-9(b) establishes a statutory prerequisite that must be
met in order for the court to exercise its discretion in the
first place. Specifically, this language requires that the court
first find that the defendant is nonindigent before evaluating
the facts of the case to determine whether, in its discretion,
the defendant should bear the costs of extradition.
The foregoing interpretation of HRS § 621-9(b) is also
consistent with the statute’s legislative history. When section
(b) was first added to HRS § 621-9 in 1980, section (b) did not
permit the State to be reimbursed for the costs of extradition.
Instead, the statute mandated that the State bear the costs of
extradition in all cases without exception. 1980 Haw. Sess. Laws
Act 306, § 1 at 961; HRS § 621-9(b) (1984).
The legislature first amended HRS § 621-9(b) in 1987,
adding the following sentence at the end of the subsection: “For
post conviction proceedings only, and at the discretion and order
of the court, the defendant or petitioner returned to the State
of Hawaii shall reimburse the State for the costs of such
extradition as specifically described above.” 1987 Haw. Sess.
Laws Act 85, § 1 at 142. The legislature clarified that “[t]he
purpose of this bill is to amend Section 621-9, HRS, to provide
that the costs of extradition be borne by the defendant or
petitioner.” H. Stand. Comm. Rep. No. 913, in 1987 House
Journal, at 1535. However, the House stated:
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Your Committee further amended the bill to
provide for the discretionary authority of the court
in assessing such costs. This amendment is in accord
with the testimony presented by the Office of the
Public Defender which indicated that the bill as
heard, discriminated against indigent defendants.
Such defendants, once transferred to the mainland,
would effectively be prevented from pursuing post
conviction relief.
H. Stand. Comm. Rep. No. 913, in 1987 House Journal, at 1535-36.
In short, in 1987, the legislature first amended HRS § 621-9(b)
to provide that post-conviction defendants could be required to
reimburse the State for extradition costs. Concerned with
unfairly imposing a financial burden upon indigent defendants,
the legislature provided courts with discretion in deciding
whether extradition costs ought to be borne by defendants rather
than the State.
HRS § 621-9(b) was further amended in 1988. The
legislature substantially revised the last sentence in HRS § 621-
9(b) as follows, with deletions indicated in brackets and
additions illustrated with underlines: “[For post conviction
proceedings only, and at the discretion and order of the] The
court[,] may order the non-indigent defendant or petitioner who
was returned to the State of Hawaii [shall] to reimburse the
State for the costs of such extradition or return as specifically
described above.” 1988 Haw. Sess. Laws Act 280, § 1 at 524. The
legislature explained that “[t]he purpose of this bill is to
allow the court to order persons extradited to Hawaii to pay the
costs of the extradition unless the court finds that person
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indigent.” H. Stand. Comm. Rep. 1597-88, in 1988 House Journal,
at 1394 (emphasis added). The legislature further acknowledged
“that the costs of extraditions are significant.” H. Stand.
Comm. Rep. 1597-88, in 1988 House Journal, at 1394.
The 1988 amendments to HRS § 621-9(b) had three
effects. First, the statute was expanded to permit the State to
recover extradition costs from defendants in all criminal
proceedings, rather than only post-conviction proceedings.
Second, the legislature made clear that courts had discretion in
determining whether to order defendants to bear the cost of their
extradition. Third, the amendment and the legislature’s
accompanying comments in the House standing committee report
collectively illustrate that the legislature intended to preclude
courts from exercising such discretion upon finding that the
defendant was indigent. Correspondingly, the legislature
conditioned the court’s ability to exercise its discretion upon
its finding that the defendant is nonindigent.
In short, the legislative history of HRS § 621-9(b)
illustrates that the legislature initially intended for the
court’s discretion to be the primary means of protecting indigent
defendants from the undue financial burden of having to repay the
State for extradition costs. Subsequently, the legislature
incorporated an additional procedural safeguard that ensured
indigent defendants would not be required to pay extradition
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costs. Specifically, the legislature intended that a court find
that the defendant is nonindigent before ordering him or her to
pay the substantial costs of extradition.
To conclude, the plain language of HRS § 621-9(b) and
the statute’s legislative history suggest that the court’s
ability to discretionarily order a defendant to pay extradition
costs is conditioned upon its finding that the defendant is
nonindigent. Accordingly, we hold that courts must engage in a
two-step inquiry when evaluating whether to grant the State’s
request for reimbursement of extradition costs by a criminal
defendant under HRS § 621-9(b). First, the court must ascertain
whether the defendant is nonindigent. Then, if the court finds
that the defendant is nonindigent, the court must analyze the
facts before it and determine whether, in its discretion, the
defendant should be required to reimburse the State for
extradition costs.
2. Burden of Proving Indigency or Nonindigency
As courts are required to find that the defendant is
nonindigent prior to ordering him or her to pay extradition
costs, HRS § 621-9(b) places the burden of proof on the State to
prove nonindigency in order for extradition costs to be imposed
upon the defendant.
HRS § 621-9(b) does not define the term “nonindigent.”
However, with respect to analyzing a defendant’s indigency in
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other contexts, this court has held that a trial court should
take into consideration: (1) the defendant’s income (gross
income minus withholding taxes, where applicable) from all
sources; (2) the defendant’s fixed monthly expenditures,
“especially those which are reasonably necessary to provide him
and his dependents with the necessities of life”; (3) the
defendant’s assets and investments; (4) the nature and extent of
the defendant’s fixed liabilities; (5) the defendant’s borrowing
capacity and the extent to which such borrowing would affect his
or her fixed monthly obligations and his or her future financial
situation; (6) in certain limited circumstances, the defendant’s
real property and personal property; and (7) other factors that
may bear upon the defendant’s indigency. State v. Mickle, 56
Haw. 23, 26-28, 525 P.2d 1108, 1111-12 (1974); see also State v.
Phomphithack, CAAP-11-0000347 at 1 (App. June 21, 2013) (SDO)
(noting that the Mickle factors are applicable and relevant to,
though not necessarily dispositive of, whether a defendant is
nonindigent under HRS § 621-9(b)).
In other words, the applicable inquiry governing a
trial court’s evaluation of a defendant’s indigency depends in
large part on the defendant’s personal information. See Mickle,
56 Haw. at 26-28, 525 P.2d at 1111-12. Thus, the defendant, as
opposed to the State, will readily have access to the information
and records that the trial court will require to determine
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whether he or she is a nonindigent defendant within the meaning
of HRS § 621-9(b).
Accordingly, we hold that when the State makes a
request for reimbursement of extradition costs pursuant to HRS §
621-9(b), the defendant bears the initial burden of producing
evidence showing the existence of fact(s) that he or she is
indigent. Such facts may be evident in the record, for example,
because the defendant has appointed counsel or by circumstances
presented in the presentence report. Once the trial court
determines that the defendant produced evidence of indigency, the
burden of persuasion rests upon the State to demonstrate that the
defendant is, in fact, nonindigent. If the State satisfies its
burden of persuasion, the trial court may discretionarily order
the defendant to reimburse the State for the costs of his or her
extradition.
3. Application of the Aforementioned Principles to the
Facts in the Present Case
Applying the foregoing principles to the present case,
we conclude that the family court erred in ordering Anzalone to
pay extradition costs under HRS § 621-9(b) for two reasons.
First, the family court did not ascertain whether
Anzalone was nonindigent prior to ordering her to reimburse the
State for extradition costs. Here, the family court ordered
Anzalone to pay extradition costs having determined that it would
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be unfair for “the taxpayers of [the County of Maui to] be
responsible for that bill because the only reason it was set in
motion was by the actions of Ms. Anzalone.” Prior to issuing
this order, however, the family court did not enter any findings
with regard to whether Anzalone was nonindigent. In doing so,
the family court improperly skipped the first step of the two-
step analytical framework that governs the evaluation of a
request by the State for reimbursement of extradition costs from
a criminal defendant. Consequently, the family court erred in
ordering Anzalone to reimburse the State for extradition costs.
Second, Anzalone should not have been ordered to
reimburse the State for extradition costs because the evidence in
the record does not adequately support that Anzalone was a
nonindigent defendant within the meaning of HRS § 621-9(b).
Though neither she nor the State proffered any evidence at the
sentencing hearing to explicitly address whether she was
nonindigent, the State contends that there was sufficient
evidence in the record to support that Anzalone was nonindigent
because she indicated that, as of sentencing, she “had a full-
time job and housing” and that “[s]he could pay $50.00 a month
toward the financial obligations of her probation.”
The State’s argument is unpersuasive. Anzalone’s
assertions at the sentencing hearing alone are not sufficient to
demonstrate that, at the time she was being sentenced, she was
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nonindigent. Indeed, Anzalone indicated that she “has a full-
time job now at a hat store,” that she was “still looking for
. . . more permanent housing,” and that she could afford to pay
$50 per month to the monetary conditions of her probation as
sentenced. However, without more information concerning
Anzalone’s financial circumstances, such as the amount of income
she earned from her job, her other sources of income and
financial support (if any), and her requisite expenses (e.g.
housing and child-care), it is still substantially uncertain
whether, at the time of sentencing, Anzalone was nonindigent
under HRS § 621-9(b).
Furthermore, the State’s argument is unavailing because
there is evidence in the record indicating that, notwithstanding
the fact that Anzalone may have secured a job at a hat store,
Anzalone could still have been considered indigent at the time of
sentencing. At all stages of the proceedings, Anzalone was
represented by court-appointed counsel. Moreover, at the
sentencing hearing, Anzalone indicated that she had yet to secure
permanent housing, and was still living at a shelter. While
these facts are not dispositive of her indigency, they are
nonetheless supportive thereof.
To conclude, when determining whether to impose
extradition costs upon a criminal defendant pursuant to HRS §
621-9(b), the trial court must first analyze whether the
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defendant is nonindigent. The defendant bears the burden of
showing facts that support that he or she is indigent. Upon
satisfaction of this initial burden, the burden of persuasion
rests upon the State to demonstrate that the defendant is in fact
nonindigent. Ultimately, if the court finds that the defendant
is nonindigent, then the court must ascertain whether, in its
discretion, the defendant should be ordered to bear the costs of
his or her extradition.
In this case, the family court did not determine
whether Anzalone was nonindigent prior to imposing extradition
costs upon her. Additionally, the evidence in the record did not
sufficiently demonstrate that Anzalone was nonindigent at the
time of sentencing. Therefore, the family court improperly
ordered Anzalone to pay extradition costs under HRS § 621-9(b).
C. The ICA erred in effectively imposing, on its own and in an
appeal, extradition costs as a condition of probation.
Because the family court erred in ordering Anzalone to
reimburse the State for the costs of her extradition, section
III.B, supra, it follows that the ICA erred in “affirm[ing] the
Family Court’s imposition of the costs of extradition as a
condition of probation.”
Moreover, we hold that the ICA further erred by
mandating the family court to, on remand, “modify the Judgment to
reflect the imposition of $4,581.93 in extradition costs pursuant
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to HRS § 621-9(b), and not as restitution.” Although the ICA
acknowledged that the family court may have erred in imposing
extradition costs as restitution, the ICA determined that the
family court had the authority to impose such costs pursuant to
HRS § 621-9(b). Then, the ICA ordered the family court to
sentence Anzalone to pay extradition costs as a condition of
probation pursuant to HRS §§ 621-9(b) and 706-624(q) (2014). In
our view, the ICA erred in taking this action, as it improperly
intruded on the province of the family court to order a defendant
to pay extradition costs, and to determine the conditions of a
convicted defendant’s probation.
This court has consistently recognized that trial
courts, as sentencing courts, have “wide discretion, based on
[their] assessment of the character and circumstances of a
convicted defendant, in deciding whether to grant probation and
in imposing conditions to probation.” State v. Martinez, 59 Haw.
366, 372, 580 P.2d 1282, 1286 (1978); State v. Solomon, 107
Hawai#i 117, 129, 111 P.3d 12, 24 (2005) (recognizing that in
addition to the mandatory conditions of probation set forth in
HRS § 706-624, sentencing courts may also, in their discretion,
impose additional conditions that are reasonable). When a
defendant challenges a sentencing court’s decision regarding the
terms and conditions of his or her probation on appeal, the
appellate court’s inquiry is limited to reviewing the sentencing
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court’s decision for an abuse of discretion. State v. Sacoco, 45
Haw. 288, 292, 367 P.2d 11, 13 (1961) (“It is a universally
accepted aphorism in appellate jurisprudence that a discretion
vested in a trial court and exercised by it will not be disturbed
unless it affirmatively appears that there has been a plain abuse
of such discretion.”); see also, State v. Huggett, 55 Haw. 632,
635, 525 P.2d 1119, 1122 (1974) (cautioning that “[t]he only
question before this court on review” of whether the sentencing
court properly granted, revoked, or modified a convicted
defendant’s probation sentence “is whether or not there has been
an abuse of that judicial discretion”).
Here, the ICA apparently concluded that the family
court abused its discretion by imposing extradition costs as
restitution because the ICA “agree[d] with the State that . . .
the costs of Anzalone’s extradition could not be imposed as
restitution[.]” But, the ICA then took its holding a step
further. Acknowledging that the family court could have imposed
extradition costs under HRS § 621-9(b), the ICA ordered the
family court to “modify the Judgment to reflect the imposition of
$4,581.93 in extradition costs pursuant to HRS § 621-9(b), and
not as restitution.” In so holding, the ICA effectively acted as
a sentencing court. Acting through the family court on remand,
the ICA itself sentenced Anzalone to pay extradition costs as a
condition of probation pursuant to HRS §§ 621-9(b) and 706-
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624(2)(q) (2014). However, the discretionary authority to
require a criminal defendant to pay extradition costs under HRS §
621-9(b), and the discretionary authority to impose additional
conditions of probation pursuant to HRS § 706-624(2)(q) (2014),
both lie with the trial court, not an appellate court.
Therefore, the ICA erred to the extent that rather than reviewing
the family court’s sentencing decisions for an abuse of
discretion, the ICA mandated the family court to exercise its
discretionary sentencing authority in a specific manner on
remand.
IV. CONCLUSION
For the reasons stated above, we vacate the ICA’s
April 5, 2017 judgment on appeal, vacate Anzalone’s sentence in
its entirety, and remand the case for sentencing anew.
/s/ Mark E. Recktenwald
Matthew S. Kohm
for petitioner /s/ Paula A. Nakayama
Annalisa M. Bernard and /s/ Sabrina S. McKenna
Renee Ishikawa Delizo
for respondent /s/ Richard W. Pollack
/s/ Michael D. Wilson
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