State v. Gaylord ( 1995 )

NAEAYAMA, Justice,

concurring and dissenting.

I concur in the majority opinion except as to part II.B.2.b. Because I believe that a sentencing court does not have the “exclusive responsibility” of determining the manner of payment of restitution, I respectfully dissent from part II.B.2.b.

Although I agree that, pursuant to Hawaii Revised Statutes (HRS) § 706-605(l)(d) (Supp.1992), the sentencing court has the exclusive responsibility and function of determining the amount of restitution, I believe the manner of payment is not a determination that is expressly reserved for the sentencing court.¹

While the majority requires “express legislative authority” before allowing a sentencing court to delegate the responsibility of determining the “manner of payment,” it points to no “express legislative authority” mandating that the responsibility of determining the manner of payment rests exclusively with the sentencing court. Indeed, HRS § 706-605(l)(d) makes no mention of “manner of payment,” and for good reason. Once the amount of restitution is set by the sentencing court, the “manner of payment” is nothing more than a ministerial function better left to the Adult Probation Division or the Paroling Authority. At the time restitution is paid or due, the Adult Probation Division or the Paroling Authority is in the best position to schedule payments, collect payments, and forward the amounts collected to the appropriate party. Surely the statute does not mandate the court’s involvement in the process beyond imposing a fair and just amount of restitution. Once the court properly sentences the defendant to pay restitution, determining the “manner of payment” does not necessarily implicate a judicial function.²

The majority opinion relies on two cases from this jurisdiction for the proposition that a sentencing court has the exclusive responsibility for determining the amount of restitution as well as the manner of payment. However, nothing in the majority opinion convinces me that these cases were correct.

The first case, State v. Murray, states that “[a] defendant must be apprised of “what is required of him, and when it is required, so that he will know when he is in default.’ ” 63 Haw. 12, 25, 621 P.2d 334, 343 (1980) (quoting State v. Calderilla, 34 Or.App. 1007, 1010, 580 P.2d 578, 579 (1978)). The Calderilla case this court relied on in Murray, however, involved the situation where the sentencing court failed to determine the manner of payment and failed to have a subsequent administrative agency determine the manner of payment. The deficiency in the sentence, then, was that the manner of payment had not been determined at any time.

This court in Murray also cited Mason v. State, 46 Md.App. 1, 9, 415 A.2d 315, 319 (1980), and Kroenke v. State, 366 So.2d 46 (Fla.Dist.Ct.App.1979) as examples for the proposition that “[t]he requisite specificity should be provided by the sentencing court and ought not be left to subsequent administrative determination.” Murray, 63 Haw. at 25, 621 P.2d at 343. However, this court’s reliance on those two cases was misplaced. In Mason, the court issued an open-ended order for the defendant to make additional restitution to a wide variety of “victims” to be determined by the probation department and in amounts to be determined by the probation department. In Kroenke, the court delegated to the defendant’s probation supervisor the authority to determine the amount of restitution. This violated state law that mandated notice and an opportunity to be heard as to the amount of restitution. Therefore, the requisite specificity lacking in Mason and Kroenke was not the manner of payment, but rather the amount of payment. Because the Mason and Kroenke decisions did not specifically preclude a subsequent administrative determination as to manner of payment, I interpret the holding of those two cases as consistent with HRS § 706-605(l)(d) in that a sentencing court must determine the amount of restitution and cannot delegate this determination to a subsequent administrative agency.

The other case relied on by the majority, State v. Johnson, 68 Haw. 292, 711 P.2d 1295 (1985), is similarly unpersuasive. The Johnson court’s reference to “manner of payment” is nothing more than a judicial gloss imposed on an otherwise clear statute.

In my view, the sentencing court discharges its obligation to impose a sentence by establishing the amount of restitution, taking into consideration the defendant’s circumstances known to the court at the time the sentence is imposed. Once the sentencing court has properly determined the amount of restitution that the defendant can “afford to pay,” it has imposed a sentence with the “requisite specificity.” In many cases, the defendant will actually begin payment of the restitution at the end of a term of imprisonment. To require a sentencing court to predict the precise financial capabilities of a defendant five, ten, or even twenty years in the future ignores the practical realities facing a sentencing court. While it is possible for the sentencing court to predict a defendant’s general financial circumstances and thereby determine how much a defendant can afford to pay, the payment schedule and terms of payment are difficult, if not impossible, for a sentencing court to properly determine at the time of sentencing. Therefore, the manner of payment is often times better left to a subsequent administrative determination.

To the extent that Johnson and Murray prevent the sentencing court from delegating the determination of the manner of payment to the Adult Probation Division or the Paroling Authority, I would overrule them. There is no doubt that a defendant must be apprised of how much restitution he or she must pay, and when he or she must pay it. However, because: (1) I believe that the Adult Probation Division or the Paroling Authority is in a better position to determine the manner of payment; and (2) our case law establishing that the sentencing court has the exclusive responsibility of determining the manner of payment was wrongly decided, I would hold that a sentencing court, while required to determine the amount of restitution, may authorize a subsequent administrative agency to determine the manner of payment. In my view, allowing this practice does not violate the mandates of HRS § 706-605(l)(d) and provides a more practical and efficient approach to a sentence of restitution.

1 . The Ninth Circuit is in accord with this view. See, e.g., United States v. Signori, 844 F.2d 635 (9th Cir.1988) (holding that the district court was entitled to permit probation department to determine timing and manner of restitution payments); United States v. Barany, 884 F.2d 1255 (9th Cir.1989) (“|Tlhe court may delegate questions concerning the defendant's ability to pay and the timing and manner of payment to the probation offlcer[.]”).

2 . The majority notes that HRS § 706-644 and § 706-645 are “consistent with the sentencing function of making the initial determinations of restitutionary amounts and their maimer of payment[.]” Majority at 55 n. 54. I agree. My contention, however, is not that the sentencing court lacks the authority to determine the manner of payment, but rather, that HRS § 706-605(l)(d) does not prohibit the sentencing court from delegating this authority. Citation to HRS § 706-644 and § 706-645, then, does little to demonstrate that the sentencing court is precluded from exercising this option. Indeed, these two statutes make no mention of the fact that delegation of the authority to determine the manner of payment will divest the sentencing court of supervisory jurisdiction over defendants subject to restitution. As such, allowing the Adult Probation Division or the Paroling Authority to determine the manner of payment is not inconsistent with the sentencing court having concurrent supervisory jurisdiction.