State v. Durham. ( 2011 )

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Electronically Filed
Supreme Court
SCWC-29923
27-MAY-2011
09:40 AM
IN THE SUPREME COURT OF THE STATE OF HAWAI#I
---o0o---
STATE OF HAWAI#I, Respondent/Plaintiff-Appellee
vs.
CORNELIUS WESLEY DURHAM, Petitioner/Defendant-Appellant
NO. SCWC-29923
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CR. NO. 07-1-0220(2))
MAY 27, 2011
RECKTENWALD, C.J., NAKAYAMA, ACOBA, AND DUFFY, JJ., AND
CIRCUIT JUDGE BORDER, ASSIGNED DUE TO A VACANCY
OPINION OF THE COURT BY ACOBA, J.
We hold that in a probation revocation proceeding, a
defendant must be given notice of all factual information related
to probation revocation that is contained in a probation
officer’s recommendation letter to the court in accordance with
State v. Paaaina, 67 Haw. 408, 689 P.2d 754 (1984). The lack of
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such notice amounts to a violation of due process that requires
remand and a new probation revocation hearing to afford the
defendant an opportunity to address such information. Inasmuch
as such factual information was not disclosed to
Petitioner/Defendant-Appellant Cornelius Wesley Durham
(Petitioner), the January 11, 2011 judgment of the Intermediate
Court of Appeals (ICA) filed pursuant to its November 24, 1020
summary disposition order (SDO)1 is vacated, and the case is
remanded to the circuit court of the second circuit (the court)2
for a new evidentiary hearing on the motion for revocation filed
by Respondent/Plaintiff-Appellee State of Hawai#i (Respondent).
See State v. Durham, No. 29923, 2010 WL 4814111 (App. Nov. 24,
2010) (SDO).
I.
The following essential matters, some verbatim, are
from the record and the submissions of the parties.
A.
On April 20, 2007, Petitioner was indicted on two
counts of sexual assault in the third degree, Hawai#i Revised
Statutes (HRS) § 707-732(1)(b) (Supp. 2007).3 On August 6, 2007,
he entered no contest pleas to amended charges of sexual assault
1
The SDO was filed by Associate Judges Lawrence M. Reifurth and
Lisa M. Ginoza, with Chief Judge Nakamura dissenting.
2
The Honorable Rhonda I.L. Loo presided over the revocation
hearing.
3
HRS 707-732(1)(b) provides that “[a] person commits the offense of
assault in the third degree if[ t]he person knowingly subjects to sexual
contact another person who is less than fourteen years old or causes such a
person to have sexual contact with the person[.]”
2
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in the third degree, HRS § 707-732(1)(d) (Supp. 2007).4 The
court sentenced Petitioner to five years’ probation on each
count, to run concurrently, with standard and special terms and
conditions of probation. Special term and condition “J” required
Petitioner to participate in sex offender treatment:
[Petitioner] must participate satisfactorily in the Hawai#i
Sex Offender Treatment Program (HSOTP) with the provision
that [Petitioner] obtain and maintain sex offender
treatment, as approved by [his] probation officer, at [his]
own expense until clinically discharged with the concurrence
of [his] probation officer.
(Emphasis added.) Judgment was entered on September 20, 2007.
B.
In October 2007, Petitioner began to receive sex
offender treatment from Catholic Charities (Charities).
Petitioner was supervised by therapist Tamra Hayden-Billings
(Billings). In May 2008, Billings presented Petitioner with a
“Behavioral Lapse Contract” (contract) because, according to
Petitioner, he had had sexual contact with a co-worker and
students, making it likely that he would relapse. The contract
said that violation of its terms would result in “immediate
termination from Sex Offender Treatment[.]”
Petitioner’s probation officer in the First Circuit,
Tiffany Bumanglag (Bumanglag), testified at the revocation
hearing. Bumanglag supervised Petitioner, who was residing on
Oahu but had committed the original crimes on Maui, under a
4
HRS § 707-732(1)(d) provides that “[a] person commits the offense
of assault in the third degree if[ t]he person knowingly subjects to sexual
contact another person who is mentally defective, mentally incapacitated, or
physically helpless, or causes such a person to have sexual contact with the
actor[.]”
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“courtesy supervision” for the second circuit. In that regard,
she would share information, when she had to, with Lara Nishikawa
(Nishikawa), Petitioner’s probation officer on Maui. Bumanglag
did not speak with Nishikawa on a regular basis. According to
Bumanglag, on May 28, 2008, approximately a week after Petitioner
received the contract, Petitioner left a voicemail message with
Bumanglag stating that he had signed the contract. However,
Billings said Petitioner had not signed the contract. At some
point, the contract was signed by Petitioner, who wrote “signed
under duress” on it. Although the contract was not dated, a
handwritten notation on the document states that it was “fax[ed]
from Tamra Cath Char” on June 19, 2008. Additionally, Bumanglag
stated that she received the signed contract on June 19, 2008.
On June 25, 2008, Petitioner’s friend, attorney Leslie
Iczkovitz (Iczkovitz), drafted a letter to Bumanglag and
Billings, seeking clarification of “verbal and written
restrictions” that had been imposed on Petitioner. The letter
asked whether Petitioner had been threatened with “terminat[ion]
[] from the [Sex Offender Treatment Program (SOTP)] if
[Petitioner] d[id] not comply with the terms of his [contract]
that he signed under duress on June 4, 2008.”
Izckovitz requested that Billings and Bumanglag
“respond to this letter, in writing, with [their] current
positions regarding the conditions and restrictions discussed [in
the letter].” According to the letter, Iczkovitz would “fil[e] a
motion . . . to amend [Petitioner’s] terms of probation to
prohibit . . . [a] continuing . . . violat[ion] of [Petitioner’s]
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fundamental rights[]” if resolution of the issue could not be
achieved.
On June 27, 2008, Petitioner was involuntarily
terminated from Charities. The “Termination of Treatment” Report
filed June 30, 2008, submitted by Billings, cited four reasons
for termination, being that (1) Petitioner’s “threat of legal
action” interfered with the therapeutic relationship; (2) the
threat of litigation demonstrated resistance to treatment;
(3) signing the contract “under duress” indicated resistance to
treatment; and (4) failure to discuss the letter Iczkovitz sent
Billings and Bumanglag during group therapy suggested that
Petitioner wanted to keep secrets from the group.
Petitioner reported that “[s]ix days after” his
termination, he began private treatment with Gregory Turnbull, a
licensed psychologist who treats sex offenders. Petitioner
declared that he applied, and was accepted, into another SOTP run
by Gerald Reardon on July 18, 2008, with the approval of his
probation officer.
II.
A.
On July 15, 2008, Respondent filed a motion for an
order to show cause (OSC) as to “why the terms and conditions of
probation imposed . . . on September 20, 2007, should not be
revoked and [Petitioner] be resentenced by the [c]ourt[,]” and
for issuance of an arrest warrant. The motion was based upon the
recommendation of “[] Nishikawa, Senior Probation Officer, . . .
and Chapter 706 of the [HRS].” Respondent attached an affidavit
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in which Nishikawa attested that Petitioner violated the terms
and conditions of probation because he “ha[d] been terminated
from the [HSOTP].”
B.
1.
The hearing on the revocation motion was eventually
scheduled for June 4, 2009.5 A “Confidential Violation Report of
Probation Officer in the Matter of the Motion For Revocation of
Probation” (Report) was submitted by Nishikawa to the court and
to the parties, at some point before the hearing.6 The Report
“apprise[d] the court and [Petitioner] of the pertinent facts of
the case as well as the facts and circumstances of the alleged
violation.”
The Report recounted that Petitioner was accepted for
courtesy supervision and started sex offender treatment with
Charities in October 2007. According to the Report, Petitioner
initially had a “satisfactory” adjustment to the program, but in
May 2008, he was “suspended” because he was “unable to be
responsible and accountable for his actions.” On May 21, 2008,
he was presented with the contract, but Petitioner “held on to
[it] for about a month” before signing it “under duress.” After
5
The hearing was initially scheduled for September 17, 2008, but
for various reasons, it was continued to June 4, 2009. On December 9, 2008,
Petitioner’s counsel, a deputy public defender, moved to withdraw as counsel.
On April 14, 2009, the parties stipulated to continue the “evidentiary hearing
[on the OSC]” to June 4, 2009.
6
The record does not reflect when the parties received the Report.
However, they referred to it throughout the revocation hearing. Respondent
stated that the contract was “under attachment A of the [Report.]” The court
asked if it was a “two-page document[,]” to which Respondent replied that it
was.
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Iczkovitz’s letter was received by Bumanglag and Billings,
Petitioner was terminated from the program.
2.
Nishikawa had also written a letter dated September 10,
2008, addressed to Judge Shackley Raffetto, indicating that
Petitioner was a high risk to commit another assault because a
polygraph examination indicated he had assaulted four other
victims, and recommending that Petitioner’s probationary period
be extended for an additional five years with the condition that
Petitioner serve one year of imprisonment (recommendation
letter).
According to progress reports received from
[Charities], during the period of October thru March,
[Petitioner’s] attitude/behavior were considered to be
either “Good Attitude/Behavior” or “Very Good
Attitude/Behavior.” This attitude/behavior deteriorated
once [Petitioner] was suspended from treatment (May 2008),
as evidenced by his deliberate procrastination to signing
his [] contract, as well as the letter that was written on
his behalf by his roommate, [Iczkovitz].
In May 2008, after being in [treatment] for nearly
[eight] months, [Petitioner] put himself in a “high risk”
situation[.] This incident caused [Petitioner] to be
suspended from treatment as well as be placed on a []
contract with [Charities]. The [] contract appears to have
instigated a letter written by [Petitioner’s]
friend/roommate [Iczkovitz].
. . . .
A few things that were learned from [Petitioner’s]
polygraph are of an immense concern. First of all,
[Petitioner] has had four (4) other sexual assault victims,
which does not include the victim in his current case.
Secondly, [Petitioner] has used his prominent stature, as a
former instructor and counselor, for sexual gratification as
he has previously slept with students and clients. As
mentioned in the termination letter from [Charities],
[Petitioner] does seem to understand how his past behaviors
need to be changed before engaging in further relationships
with women. Without this understanding, it is felt that
[Petitioner] is at a high risk to once again commit another
assault. Perhaps jail time would give [Petitioner] an
opportunity to internalize his actions and to understand
that he is not a victim, he is a predator.
[Petitioner] did not receive any jail time at the time
of sentencing, however, a lengthy jail time would seem
appropriate at this time.
It is, therefore, respectfully recommended that . . .
[Petitioner’s] probation be revoked and that he be
resentenced to another Five (5) year term of probation with
the following special conditions:
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1. Serve a term of imprisonment of one (1) year, mittimus
to issue forthwith, credit for time served on this OSC
only[.]”
(Formatting altered.) (Emphases added.)
C.
On June 4, 2009, Judge Loo held the hearing on
Respondent’s motion for an OSC, apparently pursuant to HRS § 706-
625 (Supp. 2007).7 At the hearing, Bumanglag, Reardon, and
Iczkovitz testified. Additionally, letters from Petitioner’s
treatment providers, co-workers, and his girlfriend, were
submitted as exhibits. Respondent did not feel the need to call
“Nishikawa since her report’s in there[,]” and because “she did
not directly supervise [Petitioner.]”
In argument, Petitioner’s deputy public defender
contended that Petitioner was terminated from the program because
of Iczkovitz’s letter. On the other hand, Respondent urged the
court to focus on the “four important reasons” for termination
listed by Billings. Respondent “strongly urge[d] th[e c]ourt to
follow the recommendation of the probation officer, . . . [t]o
revoke probation.” Respondent stated that it deferred “to the
7
HRS § 706-625, entitled “Revocation, modification of probation
conditions,” provides in relevant part:
(1) The court, on application of a probation officer,
the prosecuting attorney, the defendant, or on its own
motion, after a hearing, may revoke probation . . . , reduce
or enlarge the conditions of a sentence of probation,
pursuant to the provisions applicable to the initial setting
of the conditions and the provisions of section 706-627.
. . . .
(3) The court shall revoke probation if the defendant
has inexcusably failed to comply with a substantial
requirement imposed as a condition of the order or has been
convicted of a felony. The court may revoke the suspension
of sentence or probation if the defendant has been convicted
of another crime other than a felony.
(Emphases added.)
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[jail] time that is requested by the probation officer in this
case.”
Judge Loo concluded that there were “several reasons”
for Petitioner’s termination, including the fact that he
“interfered” with his therapeutic relationship, showed a lack of
desire to participate in treatment, did not complete the program,
was deceptive when signing the contract, and kept secrets from
his therapy group. The court revoked probation, concluding that
Petitioner “inexcusably failed to participate satisfactorily in
the [HSOTP] and was terminated[.]”
The court sentenced Petitioner to “another five-year
term of probation”8 with the special condition that he serve one
year imprisonment “with mittimus to issue forthwith with credit
for time served on this OSC only.” The mittimus indicated that
Judge Loo was the “judge issuing sentence.” The Order Revoking
Probation and Resentencing Petitioner was filed on June 26, 2009.
It appears to have been signed by Judge Raffetto.
D.
On July 2, 2009, Petitioner filed a notice of appeal.
On September 9, 2009, Petitioner filed a motion seeking
reconsideration of the sentence. Petitioner, among other
arguments, contended that a year in jail was too harsh for “a
8
A court can properly revoke probation and resentence a defendant
to another term of probation. Upon determining that a defendant “inexcusably
failed to comply with a substantial requirement of probation or has been
convicted of a felony[,]” “[t]he court may (1) modify the terms of probation;
(2) revoke probation and sentence him to imprisonment; or (3) revoke probation
and resentence him to another term of probation.” State v. Viloria, 70 Haw.
58, 61, 759 P.2d 1376, 1378 (1988); see also HRS § 706-625(5) (“When the court
revokes probation, it may impose on the defendant any sentence that might have
been imposed originally for the crime of which the defendant was convicted.”).
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probationer who made no wilful and deliberate attempt on his part
to circumvent the order of the court[.]” Respondent opposed the
motion for reconsideration, arguing that the court appropriately
revoked probation and resentenced Petitioner. On September 24,
2009, the court denied the motion.
III.
A.
Petitioner filed his Opening Brief on February 18,
2010, arguing, inter alia, that the court abused its discretion
in revoking Petitioner’s probation because the court’s findings
of fact were not supported by the evidence and did not indicate a
wilful and inexcusable failure to comply with probation. In
Petitioner’s view, his probation was revoked, “not because of
what he had done, but because Billings overreacted to Iczkovitz’s
letter.” On May 4, 2010, Respondent filed an Answering Brief,
countering, inter alia, that the court looked to “other factors,”
in addition to Iczkovitz’s letter, when determining the reasons
for termination. Thus, according to Respondent, the evidence
supported the court’s decision. In Reply, Petitioner argued,
inter alia, that the evidence clearly established that
Iczkovitz’s letter caused Petitioner’s termination.
B.
On October 29, 2010, the ICA issued an order seeking
supplementation of the record with the Report and attachments,
stating,
At the June 4, 2009[] evidentiary hearing on
[Respondent’s OSC], the circuit court appears to have relied
on documents that were not made a part of the record on
appeal: a probation violation report and attachments,
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including a letter from [Billings] entitled “Termination of
Treatment, Child Sexual Abuse Treatment Program[.]”
These documents were not made part of the record on
appeal. . . . IT IS HEREBY ORDERED that:
1. To the extent the documents were admitted or
considered at the evidentiary hearing on June 4, 2009,
[Petitioner] shall take all necessary action to request that
the probation violation report and attachments[] . . . be
made part of the Record on Appeal. . . .
2. . . . If the requested documents contain
confidential information or were filed under seal, they
should be submitted to the appellate court under seal.
(Emphases added.)
The record was supplemented with additional documents,
filed under seal, on November 18, 2010.
On November 24, 2010, a majority of the three-judge ICA
panel affirmed the court. The ICA majority concluded that the
“court's finding that [Petitioner] ‘failed to comply with a
substantial requirement imposed as a condition of [probation]’
. . . was not clearly erroneous, as there is substantial evidence
in the record to support this finding.” 2010 WL 4814111, at *1.
The majority decided that Petitioner’s “premature termination”
from Charities, “prior to being clinically discharged and without
the concurrence of his probation officer, constituted a failure
to comply with a substantial requirement of his probation.” Id.
The four reasons for Petitioner’s termination, adduced from the
revocation hearing, according to the majority, provided evidence
that Petitioner’s failure to comply with his terms of probation
was inexcusable.
Chief Judge Nakamura dissented. In his view, the
evidence “reflect[ed] that [Charities] terminated [Petitioner]
basically because an attorney friend wrote a letter complaining
about certain restrictions imposed on [Petitioner] as part of his
treatment.” Id. at *3 (Nakamura, C.J., dissenting). Thus,
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Respondent “did not demonstrate that [Petitioner’s] termination
from the [Charities’] program was justified.” Id.
C.
1.
On November 24, 2010, Iczkovitz discovered the
recommendation letter upon review of the supplemental documents
filed on November 18, 2010.
On December 5, 2010, Iczkovitz became Petitioner’s
counsel pursuant to a notice of withdrawal and substitution of
counsel.
On December 6, 2010, Petitioner filed a motion for
reconsideration with the ICA on the grounds that Petitioner had
recently discovered the recommendation letter, the letter recited
false information about Petitioner that the court had received,
and likely relied on, when issuing its order, and the ICA
misapplied the law. The motion alleged that the September 10,
2008 recommendation letter from Nishikawa to Judge Raffetto
included “false, inflammatory and highly prejudicial statements
that, if believed, established [Petitioner] as a high risk
predator.”9
The declaration of Petitioner’s deputy public defender,
and the recommendation letter itself, were filed in connection
with the motion for reconsideration. The deputy public defender
declared that she had never seen “a copy of a letter dated
September 10, 2008 from [] Nishikawa, [Petitioner’s] Probation
9
Petitioner quoted verbatim parts of the September 10, 2008
confidential recommendation letter from Nishikawa to Judge Raffetto in his
public filings of December 6, 2010, and February 2, 2011, with the court.
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Officer at the time, addressed to Judge Shackley Raffetto,” and
that, upon review of her case file, she did not see a
recommendation letter.
In the reconsideration motion, Petitioner quoted the
following as the “false information” contained in the
recommendation letter:
A few things that we learned from polygraph are of immense
concern. [Petitioner] has had [four] other sexual assault
victims which does not include the victim in his current
case.
Petitioner also quoted the language that alleged he “is at high
risk to once again commit another assault.” According to
Petitioner, the recommendation letter was “available for review
by Judge [] Loo prior to her verbally issuing her [o]rder
[r]evoking [p]robation and [r]esentencing [Petitioner.]”
Petitioner indicated that the content of the letter “makes
apparent the likely basis for the [court] revoking [Petitioner’s]
probation, ordering him to prison for one year and extending his
probation for an additional five years.”
Petitioner conceded that a sentencing recommendation is
confidential and need not be disclosed to a defendant. However,
he contended it was improper to submit new factual information to
a court and for a court to receive or review that information,
without disclosing it to a defendant. (Citing Paaaina, 67 Haw.
408, 689 P.2d 754.) Petitioner also maintained that “it is
customary and proper for a sentencing recommendation to be
reviewed by a court only after the defendant has been found
guilty of a probation violation.” Otherwise, “the court’s
judgment will likely be negatively affected by a probation
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officer’s opinions of a person’s risk status and descriptions of
a person’s past offenses.”
2.
On December 30, 2010, the ICA majority denied the
motion for reconsideration as follows:
In the instant appeal, the points of error raised by
[Petitioner] focused on: (a) the facts and circumstances of
[Petitioner] being terminated from a [SOTP] and whether that
constituted an inexcusable failure on his part to comply
with a substantial condition of his probation; and (b)
whether he had ineffective assistance of counsel. With
regard to these points of error, the circuit court did not
abuse its discretion in revoking [Petitioner’s] probation.
The stated basis for the circuit court's revocation order
was that [Petitioner] failed to comply with Special
Condition J of his probation because he was terminated from
the sex offender treatment program without being clinically
discharged. In addressing [Petitioner] during the
revocation hearing, the circuit court stated: “You were
deceptive; you weren't open to treatment; you didn't follow
through with treatment; you were supposed to complete -
you're supposed to complete satisfactorily the [HSOTP] with
the . . . concurrence of your probation officer, and you
didn’t do that.” Nowhere in the record does the circuit
court mention or allude to other factors in revoking
[Petitioner’s] probation. [10]
State v. Durham, No. 29923, 2010 WL 5497543, at *1 (App. Dec. 30,
2010) (Order Denying Motion for Reconsideration) (ellipsis in
original) (brackets omitted). The ICA majority maintained that
“[a]lthough [Petitioner’s] current allegations of false
information in the [recommendation l]etter raise a potentially
significant issue, the record is not sufficiently developed in
that regard.” Id. (footnote omitted).
10
Although Judge Nakamura agreed “with the majority’s conclusion
that [Petitioner’s] arguments regarding newly-discovered evidence do not
warrant granting his motion for reconsideration,” he would have granted the
motion “to the extent it challenges the substantive basis for the [SDO].”
2010 WL 5497543, at *1 (Nakamura, C.J., concurring and dissenting).
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The ICA confirmed that a defendant should “‘have access
to all factual information used in sentencing.’” Id. at *1 n.2
(quoting Paaaina, 67 Haw. at 411, 689 P.2d at 757). However,
according to the ICA, Petitioner’s “allegations regarding the
false information and also whether the information had any role
in the [] court’s revocation decision will need to be addressed
by way of a petition pursuant to Rule 40 of the Hawai#i Rules of
Penal Procedure (HRPP).”11 Id. at *1. On February 7, 2011,
Petitioner filed an Application for Writ of Certiorari, seeking
review of the January 11, 2011 judgment of the ICA.
IV.
Petitioner lists the following questions in his
Application:
A. Did the [court] abuse its discretion in revoking
[Petitioner’s] probation where the court’s findings were
unsupported by the evidence presented and nothing in the
record indicated that [Petitioner] had wilfully, inexcusably
failed to comply with a substantial condition of his
probation?
B. Did the [court] abuse its discretion in revoking
[Petitioner’s] probation while he was fully compliant with
all conditions of his probation?
C. Does the newly discovered ex-parte letter to the [court]
from [Petitioner’s] probation officer containing extremely
prejudicial false facts never disclosed to [Petitioner]
require reversal of the order revoking [Petitioner’s]
probation based on [Paaaina]?
Respondent did not file a Response. We accepted
certiorari primarily to resolve the third question.
11
HRPP Rule 40 provides a post-conviction means for defendants to
seek relief from a judgment of conviction or from custody. A defendant may
challenge the judgment of conviction on the grounds that “the judgment was
obtained or sentence imposed in violation of the Constitution of the United
States or of the State of Hawai#i[,]” “the court which rendered the judgment
was without jurisdiction[,]” “the sentence is illegal[,]” “there is newly
discovered evidence[,]” or on “any ground which is a basis for collateral
attack[.]” HRPP Rule 40(a)(1)(i)-(v). A defendant can challenge his custody
on the grounds that the “sentence was fully served[,]” the “parole or
probation was unlawfully revoked[,]” or “any other ground making the custody,
though not the judgment, illegal.” HRPP Rule 40(a)(2)(i)-(iii).
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V.
The recommendation letter was submitted to the court
for its consideration and the court did make reference to the
probation officer’s recommendation, as did Respondent, during the
hearing. It is reasonable to assume that in the ordinary course,
the court would review the probation officer’s recommendation.
The letter contained alleged facts “learned from the
[Petitioner’s] polygraph” regarding “four (4) other sexual
assault victims.” Inasmuch as those facts were not disclosed on
the record, the basis for the court’s decision cannot be reviewed
in their absence. Thus, an evaluation of whether the court erred
or abused its discretion as presented in questions A and B of the
Application, cannot be performed appropriately. Correlatively,
Petitioner was entitled to an opportunity to respond to the
alleged other assaults. Accordingly, the crux of the Application
is a resolution of question C.
VI.
In connection with question C, Petitioner argues that
(1) the recommendation letter contained false information
undisclosed to Petitioner, (2) Petitioner was deprived of his
right to refute the “new factual information” in violation of
Paaaina, (3) it was “highly probable” that a court would rely on
such information from a probation officer, and the recommendation
letter explains why the court was so “unforgiving” to Petitioner,
and (4) this court should consider a new rule requiring a court
to review a probation officer’s recommendations only after
determining that a defendant violated probation.
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VII.
We initially address Petitioner’s first two arguments.
A.
The alleged facts concerning four other victims was not
disclosed before or at the revocation hearing. Petitioner had
the right, as set forth in Paaaina, to be notified of allegations
regarding other victims so that he could have challenged their
accuracy. In Paaaina, this court noted that, “[i]f the judge
finds new factual information in the recommendation letter, it is
incumbent upon the judge to make it available to the defendant.”
67 Haw. at 410, 689 P.2d at 757. In that case, the court
received a pre-sentence diagnosis and report (pre-sentence
report) and a confidential letter from the probation officer
containing the officer’s sentencing recommendation before the
sentencing hearing. Id. at 408-09, 689 P.2d at 755. The pre-
sentence report, but not the letter, was made available to the
defendant. Id. The defendant requested that the probation
officer’s recommendation be revealed to the parties, but the
circuit court denied the request and sentenced the defendant.
Although this court held that the defendant had no constitutional
or statutory12 right to examine the confidential recommendation
letter, it was concluded that the defendant had a right to all
factual information used in sentencing, even if that included
facts contained in the recommendation letter:
12
As to any statutory right, the court noted that the statutes at
issue, §§ 706-601 to -604 (1976), did not “mention that the probation
officer’s recommendation must be made available to defendants.” 67 Haw. at
409, 689 P.2d at 756. Those statutes currently do not provide that the
probation officer’s recommendation must be made available to the parties.
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HRS §§ 706-602[ 13] and 706-604[ 14] clearly contemplate that a
defendant will have access to all factual information used
in sentencing. Therefore, it is incumbent upon the
probation officer to carefully draft the recommendation
letter and it should be based only on facts contained in the
pre-sentence report. If the judge finds new factual
information in the recommendation letter, it is incumbent
upon the judge to make it available to the defendant.
13
HRS § 706-602 (1993) currently provides, in relevant part:
(1) The pre-sentence diagnosis and report shall be
made by personnel assigned to the court, intake service
center or other agency designated by the court and shall
include:
(a) An analysis of the circumstances attending the
commission of the crime;
(b) The defendant’s history of delinquency or
criminality, physical and mental condition,
family situation and background, economic status
and capacity to make restitution or to make
reparation to the victim or victims of the
defendant’s crimes for loss or damage caused
thereby, education, occupation, and personal
habits;
(c) Information made available by the victim or
other source concerning the effect that the
crime committed by the defendant has had upon
said victim, including but not limited to, any
physical or psychological harm or financial loss
suffered;
(d) Information concerning defendant’s compliance or
non-compliance with any order issued under
section 806-11; and
(e) Any other matters that the reporting person or
agency deems relevant or the court directs to be
included.
14
HRS § 706-604 (1993 & Supp. 2010) currently provides, in pertinent
part:
(1) Before imposing sentence, the court shall afford a
fair opportunity to the defendant to be heard on the issue
of the defendant’s disposition.
(2) The court shall furnish to the defendant or the
defendant’s counsel and to the prosecuting attorney a copy
of the report of any pre-sentence diagnosis or
psychological, psychiatric, or other medical examination and
afford fair opportunity, if the defendant or the prosecuting
attorney so requests, to controvert or supplement them. The
court shall amend or order the amendment of the report upon
finding that any correction, modification, or addition is
needed and, where appropriate, shall require the prompt
preparation of an amended report in which material required
to be deleted is completely removed or other amendments,
including additions, are made.
(Emphases added.) The 1976 version cited in Paaaina was substantially the
same, stating that, “[t]he court shall furnish to the defendant or his counsel
and to the prosecuting attorney a copy of the report of any pre-sentence
diagnosis or psychiatric or other medical examination and afford fair
opportunity, if the defendant or the prosecuting attorney so requests, to
controvert or supplement them.” Paaaina, 67 Haw. at 409, 689 P.2d at 756
(quoting HRS § 706-604(2) (1976)).
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Id. at 410, 689 P.2d at 757 (first emphasis in original, other
emphases added). However, because the “recommendation was made
based only on facts contained in the pre-sentence report[,]” this
court concluded that no disclosure was required. Id.
Analogously, in the instant case, it was “incumbent” on
Nishikawa to draft her recommendation “based only on facts,” id.,
contained in her probation violation report. However, that four
additional individuals were allegedly assaulted by Petitioner are
factual allegations not contained in the Report. Thus, it became
“incumbent upon the judge,” id., to disclose the alleged facts of
other assaults to Petitioner. The court, however, did not
disclose that fact.
B.
The disclosure of facts to the parties is based on the
proposition that the court must have correct information to
render a just sentence. “In any system which vests discretion in
the sentencing authority, it is necessary that the authority have
sufficient and accurate information so that it may rationally
exercise its discretion.” State v. Lau, 73 Haw. 259, 262, 831
P.2d 523, 525 (1992) (internal quotation marks and citation
omitted). Hence, at sentencing, a defendant is afforded the
opportunity to controvert or supplement facts that the probation
officer relied upon to correct errors:
[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. Thus, [in
HRS § 706-604,] the legislature afforded the defendant an
opportunity to respond to the presentence report, and more
importantly, an opportunity to rebut those sections in
question.
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State v. Lessary, 83 Hawai#i 280, 284-85, 925 P.2d 1104, 1108-09
(App. 1996) (quoting State v. Nobriga, 56 Haw. 75, 80, 527 P.2d
1269, 1273 (1974) (indicating that precluding a defendant from
ascertaining the probation officer’s reasons for omitting certain
factors in a presentence report weighing against imprisonment
would hinder the defendant’s ability to adequately present a
basis for amending the report)). Analogously, here, Petitioner
should have been afforded the opportunity to controvert the
assault allegations because they were not contained in the
Report.
C.
A defendant is also entitled to notice of the grounds
upon which probation is sought to be revoked:
The prosecuting attorney, the defendant’s probation officer,
and the defendant shall be notified by the movant in writing
of the time, place, and date of any such hearing, and of the
grounds upon which action under this section is proposed.
The prosecuting attorney, the defendant’s probation officer,
and the defendant may appear in [sic] the hearing to oppose
or support the application, and may submit evidence for the
court’s consideration. The defendant shall have the right
to be represented by counsel. For purposes of this section
the court shall not be bound by the Hawaii rules of
evidence, except for the rules pertaining to privileges.
HRS § 706-625(2) (emphasis added). In State v. Wong, 73 Haw. 81,
82, 829 P.2d 1325, 1326-27 (1992), the State had filed a motion
for revocation of probation, “alleging as the sole basis, that
[the defendant] had failed to maintain treatment at [the Hawai#i
Addiction Center] until clinically discharged[.]” However, at
the hearing, the circuit court heard testimony that the defendant
“was dangerous because he was very likely to repeat his sexual
offense and that the only appropriate treatment was through the
Department of Corrections and required a year of
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incarceration[.]” Id. at 83, 829 P.2d at 1326. The circuit
court, “based on [the defendant’s] dangerousness to the
community,” revoked the defendant’s probation and resentenced him
to concurrent terms of incarceration. Id. at 82, 829 P.2d at
1326.
This court, in vacating the order revoking probation
and remanding the case for a rehearing, stated that the defendant
was required to “be informed of the grounds for revocation in
addition to the mere fact of his discharge from the drug
treatment program that supported the State’s motion for
revocation.” Id. at 87, 829 P.2d at 1329. Because he was not
notified that his danger to society was a ground for revoking
probation, the defendant was not informed properly of the grounds
for revocation.
Similar to the defendant in Wong, in the instant case,
Petitioner was notified that revocation was sought solely because
he was terminated from his treatment program. However, based on
the recommendation letter, revocation was also apparently
initiated on the basis that Petitioner was dangerous. Nishikawa
was “immense[ly] concern[ed]” about Petitioner’s behavior
regarding additional victims, and advised the court that
“[Petitioner] is at a high risk to once again commit another
assault[,]” and emphasized that “jail time would give
[Petitioner] an opportunity to internalize his actions[.]” Thus,
revocation was suggested because Petitioner, like Wong, allegedly
“was very likely to repeat his sexual offense[.]” Wong, 73 Haw.
at 83, 829 P.2d at 1326. Similar to the defendant in Wong,
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Petitioner was entitled to notice prior to the hearing of the
grounds, i.e., the other alleged assaults, upon which the
probation officer recommended revocation.15 See Morrissey v.
Brewer, 408 U.S. 471, 489 (1972) (requiring that a probationer be
given written notice of the claimed violations of probation).
While evidence supporting the charge that Wong was
dangerous was introduced at the hearing, in the instant case
alleged evidence that Petitioner had victimized others or was
likely to commit another sexual assault was not elicited at the
revocation hearing. Petitioner was never informed of such a
ground for revocation. Thus, he had no opportunity to object,
rebut, or otherwise dispute the factual allegations.
D.
Due process mandates that factual information upon
which revocation is sought be provided to the defendant, inasmuch
as “[t]he question of whether the defendant should be sentenced
to imprisonment or to probation is no less significant than the
question of guilt[.]” Commentary on HRS § 706-604(2).
“[M]otions to revoke are weighty matters deserving proportional
solemnity in their resolution.” State v. Shannon, 118 Hawai#i 15,
32, 185 P.3d 200, 217 (2008). A “defendant, ‘threatened with
loss or change of . . . probation status[, must be given] the
same procedural protection afforded . . . at the time of original
disposition[, i.e., sentencing].” Id. (quoting Commentary on HRS
15
Petitioner also argues that Nishikawa’s statement that Petitioner
was at a “high risk” to society lacked any basis in the record. It appears
that Nishikawa’s statement that Petitioner is a high risk would be a “ground[]
for revocation,” Wong, 73 Haw. at 87, 829 P.2d at 1326, for which Petitioner
should have received notification.
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§ 706-627). Thus, “[a]s a matter of due process a motion to
revoke probation . . . is like a presentence report in that the
defendant must be notified beforehand in order to allow him to
contest it, if he wishes.” Id. at 31, 185 P.3d at 216. Indeed,
“the minimum requirements of due process[,]” Morrissey, 408 U.S.
at 489, initially provided to parolees but extended to
probationers in Gagnon v. Scarpelli, 411 U.S. 778, 782 (1973),
require in relevant part that a probationer be given “written
notice of the claimed violations” of probation, “disclosure . . .
of evidence against him[,]” and “a written statement by the
factfinder as to the evidence relied on and the reasons for
revoking probation[,]” Morrissey, 408 U.S. at 489. Here,
Petitioner’s due process rights were violated to the extent that
he lacked “written notice” that revocation was sought because he
was a high risk to commit another offense, and he was not
notified of the “evidence” of other sexual assaults that was used
“against” him in seeking revocation.
VIII.
We address Petitioner’s remaining arguments.
The court appears to have had the recommendation letter
in its possession before and during the revocation hearing.16
Respondent referenced the “recommendation of the probation
officer” and “jail time.” The court, after revoking probation,
acknowledged Respondent’s “suggestion to follow along with the
probation officer’s recommendation.” Indeed, the court followed
16
Although the recommendation letter and Report were addressed to
Judge Raffetto, it appears from the transcript that Judge Loo had the Report
and recommendation letter.
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every recommendation made by the probation officer in the
recommendation letter17 and incorporated every recommendation into
the order revoking probation and resentencing Petitioner.
Similar to the presumption that a court has read a pre-
sentence report before a sentencing hearing, a court may be
presumed to have read a recommendation letter. A court is
required to “accord due consideration to a written [pre-sentence]
report of the diagnosis before imposing [a] sentence[.]” HRS
§ 706-601(1). See State v. Hussein, 122 Hawai#i 495, 532, 229
P.3d 313, 350 (2010) (noting that a court is presumed to have
read a pre-sentence report); see also State v. Heggland, 118
Hawai#i 425, 443, 193 P.3d 341, 359 (2008) (noting that the report
is meant to aid the court in the exercise of its discretionary
sentencing authority); Lau, 73 Haw. at 263, 831 P.2d at 525
(presuming that the sentencing court complied with the statutory
requirement of according due consideration to the pre-sentence
report when it had the document at the hearing).
The probation officer was dutibound to “keep informed
concerning the conduct and condition of the defendant and report
thereon to the court, and . . . use all suitable methods to aid
the defendant and bring about an improvement in the defendant’s
conduct and condition.” HRS § 806-73(a) (Supp. 2007). It is
reasonable to conclude, then, that a court would give due
consideration to the probation officer’s recommendation letter.
Inasmuch as the court should have disclosed the alleged factual
matters to the parties and Petitioner was not given any
17
The Report did not indicate or recommend any sentence.
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opportunity to address those matters, a new revocation hearing is
necessary.18
IX.
A.
As confirmed by counsel at oral argument on April 21,
2011, Petitioner has served the special probation condition of a
one-year term of imprisonment. Because Petitioner has served his
one-year term, it may be considered whether the court’s error, in
failing to disclose facts contained in the recommendation letter,
is moot. This court has explained that “[a] case is moot where
the question to be determined is abstract and does not rest on
existing facts or rights.” State v. Rogan, 91 Hawai#i 405, 424
n.13, 984 P.2d 1231, 1250 n.13 (1999). Hence, “the mootness
doctrine is properly invoked where events have so affected
relations between the parties that the two conditions for
justiciability relevant on appeal--adverse interest and effective
remedy--have been compromised.” Id.
In the instant case, the court restarted Petitioner’s
five-year probation period commencing as of June 4, 2009, and,
therefore, Petitioner is on probation until June 4, 2014. As to
whether the parties continue to have an adverse interest, the
parties are in adversarial positions inasmuch as Petitioner
remains on probation as a result of the allegedly improper
18
As noted before, Petitioner urges this court to consider issuing a
new rule requiring that a court review a sentencing recommendation only after
determining that a defendant violated a term and condition of probation.
Inasmuch as Petitioner was unable to rebut the evidence against him that was
proffered in the recommendation letter, the proper remedy is to give
Petitioner the opportunity to challenge the information at a new hearing,
without the necessity of adopting a new rule.
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revocation of his probation. As to whether there is still an
effective remedy for Petitioner’s claim, setting aside the
revocation order and resentencing Petitioner and remanding to the
court for another revocation hearing may result in Petitioner’s
original terms of probation being reinstated. Inasmuch as he was
originally sentenced in 2007 to two concurrent five-year terms of
probation, as Petitioner’s counsel confirmed at oral argument,
Petitioner’s original probation would end at some point in 2012.
Based on the foregoing, Petitioner’s claim is not barred by the
mootness doctrine.
B.
As previously indicated, the ICA determined that, in
light of Paaaina, Petitioner’s “allegations . . . raise a
potentially significant issue” that “[would] need to be addressed
by way of a petition pursuant to Rule 40 of the [HRPP.]” Durham,
2010 WL 5497543, at *1. However, the record on appeal is
“sufficiently developed” to allow for a new evidentiary hearing
on the probation revocation motion on remand. Cf. State v.
Silva, 75 Haw. 419, 439, 865 P.2d 583, 592 (1993) (noting that
ineffective assistance of counsel claims can be entertained for
the first time on appeal where the “record is sufficiently
developed to determine whether there has been ineffective
assistance of counsel[]”). Here, the Report, recommendation
letter, transcript of the probation revocation hearing, and all
evidence from that hearing are in the record on appeal.
Petitioner’s deputy public defender submitted a declaration that
she had never seen the recommendation letter. Inasmuch as there
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are no matters to be developed to ascertain whether the alleged
factual matters in the recommendation letter were disclosed to
Petitioner, the record was “sufficiently developed.” Id.
X.
Petitioner seeks reversal of the court’s order revoking
probation. However, as stated supra, whether the court erred
when issuing that order cannot be evaluated appropriately without
knowledge of the bases for the court’s decision. The bases for
the court’s decision cannot be ascertained because the court,
before making its decision, had factual information weighing in
favor of revocation, but failed to disclose it and afford the
parties the opportunity to respond to such information. Inasmuch
as this court cannot appropriately decide whether the court erred
in revoking probation without knowledge of the bases for the
court’s decision, reversal, without more, is not warranted.
Instead, we vacate the revocation order and remand for
a rehearing on whether Petitioner inexcusably failed to comply
with a substantial condition of probation. At the hearing, the
parties will have the opportunity to address the matters
previously raised and the factual information contained in the
recommendation letter. The court, after considering all the
evidence, can then decide whether Petitioner failed to comply
with a term of probation, whether that condition was substantial,
and whether Petitioner’s failure to comply was inexcusable. See
State v. Huggett, 55 Haw. 632, 639, 525 P.2d 1119, 1124 (1974)
(vacating the order requiring imprisonment as a special condition
of probation and affording the defendant a “rehearing to enable
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the court to determine whether, considering the totality of the
circumstances, his post-sentencing conduct was wilfully and
deliberately subversive of exemplary probationary behavior”).
Based on the evidence, the court may reinstate the
original September 20, 2007 sentence of probation or reinstate
the June 26, 2009 order revoking probation and resentencing
Petitioner. On remand, the new evidentiary hearing shall be held
before a different judge.19
XI.
Based on the foregoing, the ICA’s judgment of
January 11, 2011 is vacated, and the case is remanded for
proceedings consistent with this opinion.
Leslie K. Iczkovitz /s/ Mark E. Recktenwald
(Taryn R. Tomasa, Deputy
Public Defender on the /s/ Paula A. Nakayama
briefs) for petitioner/
defendant-appellant. /s/ Simeon R. Acoba, Jr.
Peter A. Hanano, Deputy /s/ James E. Duffy, Jr.
Prosecuting Attorney,
County of Maui (Richard K. /s/ Patrick W. Border
Minatoya, Deputy Prosecuting
Attorney, County of Maui,
on the brief) for
respondent/plaintiff-
appellee.
19
Remanding the matter to Judge Loo or Judge Raffetto would be an
inadequate remedy, as they had previously determined, after having possession
of the recommendation letter, that Petitioner’s probation should be revoked.
See Schutter v. Soong, 76 Hawai#i 187, 208, n.6, 873 P.2d 66, 87 n.6 (1994)
(remanding the re-sentencing to a new judge because the judge who originally
sentenced the defendant had already determined the sentence); see also State
v. Chow, 77 Hawai#i 241, 251 n.13, 883 P.2d 663, 673 n.13 (App. 1994)
(remanding case to a different judge, not because the appellate court
“question[ed] the impartiality of the district court judge who originally
sentenced [the d]efendant,” but because “the district court judge who
originally sentenced [the d]efendant ha[d] already made a sentencing
determination”) (citation omitted).
28