Hueston v. State ( 2021 )

NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
30-APR-2021
07:56 AM
Dkt. 77 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
LINCOLN HUESTON, Petitioner-Appellant, v.
STATE OF HAWAI#I, Respondent-Appellee
APPEAL FROM THE CIRCUIT COURT OF THE FIFTH CIRCUIT
(CR. NO. 5SPP-17-1-0001)
SUMMARY DISPOSITION ORDER
(By: Leonard, Presiding Judge, and Hiraoka, and Wadsworth, JJ.)
Petitioner-Appellant Lincoln Hueston (Hueston) appeals
from the "Order Denying [Hueston's] Petition for Revocation of
Restitution [(Petition)] Filed on August 24, 2017," entered on
March 21, 2019 (March 21, 2019 Order), in the Circuit Court of
the Fifth Circuit (circuit court).1/ Hueston contends that the
circuit court erred in denying the Petition, because it contained
allegations that if proven would have entitled Hueston to relief.
After reviewing the record on appeal and the relevant
legal authorities, and giving due consideration to the issues
raised and the arguments advanced by the parties, we resolve
Hueston's contention as follows.
I. Background
In 2009, Hueston pleaded guilty to and was convicted of
one count of Theft in the First Degree and forty-nine counts of
1/
The Honorable Randal Valenciano presided.
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER
Forgery in the Second Degree.2/ At a June 3, 2009 sentencing
hearing, the following exchange between the circuit court and
Hueston regarding restitution occurred:
[THE COURT:] And the amount of restitution that the
Court is ordering -- this is through a freestanding order,
as requested by the prosecutors -- is $212,060.10. This is
what has been verified by the probation department. The
Court is, as I said, ordering a freestanding order.
. . . [Y]ou're going to start making the payments on
the restitution, followed by the crime victim compensation
fees, and I'm not going to waive any of that. You're going
to start making payments 60 days after you're released from
prison, and I'm proposing that you pay minimum payments of
$200 a month.
Now, Mr. Hueston, I know looking down the road, you
don't know what you're going to be doing, you don't know
what kind of employment you're going to be doing, but
setting it at $200 a month, Mr. Hueston, do you foresee a
problem with that after you get out of prison and get
employment?
[HUESTON]: No, your Honor.
THE COURT: All right. Very well. Then I'll note
that for the record.
Pursuant to the June 10, 2009 Judgment of Conviction
and Sentence (Judgment), Hueston was sentenced to, inter alia,
ten years imprisonment for Theft in the First Degree and five
years imprisonment for each count of Forgery in the Second
Degree, all sentences to run concurrently. As was discussed at
the sentencing hearing, Hueston's sentence also included the
order to pay restitution in the amount of $212,060.00, as well as
certain other fees, in monthly installments of no less than $200
commencing 60 days after release from incarceration.
On June 10, 2009, the circuit court also entered its
"Findings of Fact, Conclusions of Law and Order Granting
[Respondent-Appellee State of Hawaii's (State)] Oral Motion for
Free-Standing Restitution Order," as well as a separate "Order of
Restitution." The circuit court "conclude[d] that a separate
free-standing restitution order obligating [Hueston] to pay the
outstanding restitution beyond the expiration date of his
2/
The Honorable Kathleen N.A. Watanabe presided.
2
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER
probation3/ term [was] warranted."4/ (Footnote added.)
On August 24, 2017, Hueston filed the Petition.
Hueston alleged that he was sentenced "to make payments of
restitution totaling the amount of $217,400.00"; "[n]o hearing
was held to determine if the amount of restitution was an amount
that [Hueston] could afford to pay"; and "the amount of
restitution imposed by the Court is an amount of which [Hueston]
is unable to pay." He further stated that he was currently
incarcerated; he earned 25 cents an hour in prison, which he
"used for the purchase of basic needs"; and he would remain
incarcerated until the end of his maximum sentence on May 28,
2019. Hueston concluded that "[p]ursuant to [HRS] § 706-645 and
§ 706-644(d) [sic], the Circuit Court may revoke [Hueston's]
restitution" in this case, and requested a hearing on the
Petition.
In its March 21, 2019 Order, the circuit court denied
the Petition without a hearing.
II. Discussion
We treat the Petition as a non-conforming Hawai#i Rules
of Penal Procedure (HRPP) Rule 40 petition. See infra. We
review an order denying an HRPP Rule 40 petition without a
hearing de novo, using the right/wrong standard of review. Dan
v. State, 76 Hawai#i 423, 427, 879 P.2d 528, 532 (1994). "The
3/
It appears that the court meant to reference Hueston's
"imprisonment term," rather than "probation term," as Hueston was not
sentenced to a term of probation in this case.
4/
On January 7, 2014, pursuant to a motion by the State, and
following a December 16, 2013 hearing, the circuit court issued an "Order Re
State's Motion to Amend the Judgment Filed on 6/10/09 to Conform to [Hawaii
Revised Statutes (HRS)] 353-22.6" (January 7, 2014 Order). The January 7,
2014 Order concluded that HRS "§ 353-22.6 is to be applied to Hueston" and
"the original judgment herein is not to interfere with the Department of
Public Safety's, or any other State agency['s], enforcement of HRS § 353-
22.6[.]" The January 7, 2014 Order further provided that "the director of
public safety shall enforce the instant victim restitution order against all
moneys earned by Hueston or deposited or credited to his individual account
while he is incarcerated[,]" by deducting twenty-five percent of the total of
such amounts, to be paid as restitution "to the victim once the amount reaches
$25, or annually, whichever is sooner."
The Petition does not challenge the January 7, 2014 Order, and it is not
mentioned in Hueston's opening brief. We thus deem any such issue waived.
See Hawai#i Rules of Appellate Procedure Rule 28(b)(4), (7).
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NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER
question on appeal of a denial of a Rule 40 petition without a
hearing is whether the trial record indicates that Petitioner's
application for relief made such a showing of a colorable claim
as to require a hearing before the lower court." Lewi v. State,
145 Hawai#i 333, 345, 452 P.3d 330, 342 (2019) (quoting Dan, 76
Hawai#i at 427, 879 P.2d at 532). To establish a colorable claim
of illegal sentence, the allegations of the petition must show
that if taken as true the facts alleged would change the
petitioner's sentence; however, a petitioner's conclusions need
not be regarded as true. See id. (quoting Dan, 76 Hawai#i at
427, 879 P.2d at 532).
Hueston argues that the Petition established a
colorable claim for relief under HRS § 706-645 by "assert[ing]
[Hueston's] inability to pay restitution due to the length of his
incarceration and the high amount of the restitution."5/ Hueston
further argues that these allegations "if taken as true, could
have potentially changed the restitution amount to which
[Hueston] was sentenced."
HRS § 706-645 (2014) provides:
(1) A defendant who has been sentenced to pay a fine
or restitution and who is not in contumacious default in the
payment thereof may at any time petition the court which
sentenced the defendant for a revocation of the fine or
restitution or of any unpaid portion thereof.
(2) If it appears to the satisfaction of the court
that the circumstances which warranted the imposition of the
fine or restitution have changed, or that it would otherwise
be unjust to require payment, the court may revoke the fine
or restitution or the unpaid portion thereof in whole or in
part. Prior to revocation, the court shall afford the
prosecuting attorney an opportunity to be heard.
(Emphasis added.) The statute thus authorizes the sentencing
court "to alter, amend, or revoke restitution orders on the basis
of unforeseen or changed circumstances[.]" State v. Gaylord, 78
Hawai#i 127, 153 n.50, 890 P.2d 1167, 1193 n.50 (1995). A
petition under HRPP Rule 40 is the appropriate way to seek relief
5/
The Petition also cited HRS § 706-644(d) as authorizing the
circuit court to revoke Hueston's restitution. To the extent that Hueston may
have intended to cite HRS § 706-644(4), which applies where "the defendant's
default in the payment of a fee, fine, or restitution is not contumacious,"
that section did not apply here, where Hueston presented no evidence that he
was in default of the payment of restitution. Hueston does not rely on HRS
§ 706-644 in the opening brief.
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NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER
under HRS § 706-645. See State v. Kealoha, 142 Hawai#i 46, 63,
414 P.3d 98, 115 (2018).
Here, the Petition did not establish a colorable claim
for revocation of restitution under HRS § 706-645. Hueston
alleged in the Petition that "the amount of restitution imposed
by the Court is an amount of which [Hueston] is unable to pay."
However, Hueston's asserted inability to pay the amount of
restitution was not, as a matter of law, an unforeseen or changed
circumstance or other injustice authorizing a revocation of
restitution. Specifically, HRS § 706-646(3) provides that "[i]n
ordering restitution, the court shall not consider the
defendant's financial ability to make restitution in determining
the amount of restitution to order." HRS § 706-646(3) (Supp.
2016) (emphases added); see Commentary on HRS § 706-646 (2014)
(noting that "Act 230, Session Laws 2006, amended this section
to, among other things, require that when restitution is ordered,
the amount ordered is not based on the defendant's financial
ability to make restitution[.]"). Thus, a defendant's financial
inability to make restitution was a foreseen circumstance, and
the legislature determined that the amount of restitution ordered
must not be based on the defendant's ability to make payment.6/
In contrast, "[t]he court . . . shall consider the
defendant's financial ability to make restitution for the purpose
of establishing the time and manner of payment." HRS § 706-
646(3). Here, at the June 3, 2009 sentencing hearing, Hueston
stated that he did not "foresee a problem" in making minimum
payments of $200 per month toward his restitution obligation
after his release from prison. When Hueston filed the Petition
in 2017, he stated that he was currently incarcerated and would
remain incarcerated until the end of his maximum sentence on
May 28, 2019. He did not allege unforeseen or changed
circumstances or other injustice regarding the time or manner of
payment of his restitution obligation after his release. Indeed,
rather than seeking an alteration of the payment terms, i.e.,
6/
Accordingly, when the circuit court ordered restitution in 2009,
it was not required to hold a hearing "to determine if the amount of
restitution was an amount that [Hueston] could afford to pay."
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NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER
monthly installments of $200 commencing 60 days after his release
from prison, Hueston sought revocation of restitution based on
his asserted inability to pay the amount of $212,060.00.
We conclude that Hueston's asserted inability to pay
the amount of restitution did not constitute an unforeseen or
changed circumstance or other injustice authorizing a revocation
of restitution under HRS § 706-645. Because Hueston failed to
establish a colorable claim for relief under HRS § 706-645, the
circuit court did not err in denying the Petition without a
hearing.
III. Conclusion
For the reasons discussed above, the "Order Denying
[Hueston's] Petition for Revocation of Restitution Filed on
August 24, 2017," entered on March 21, 2019, in the Circuit Court
of the Fifth Circuit, is affirmed.
DATED: Honolulu, Hawai#i, April 30, 2021.
On the briefs:
/S/ Katherine G. Leonard
Rosa Flores Presiding Judge
(Greg Ryan and Associates)
for Petitioner-Appellant.
/s/ Keith K. Hiraoka
Tracy Murakami, Associate Judge
Deputy Prosecuting Attorney,
County of Kauai,
for Respondent-Appellee. /s/ Clyde J. Wadsworth
Associate Judge
6