State v. Agdinaoay.

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Electronically Filed
Supreme Court
SCWC-XX-XXXXXXX
30-NOV-2021
09:28 AM
Dkt. 17 OP
IN THE SUPREME COURT OF THE STATE OF HAWAIʻI
---o0o---
STATE OF HAWAIʻI,
Respondent/Plaintiff-Appellee,
vs.
ARTEMIO Y. AGDINAOAY,
Petitioner/Defendant-Appellant.
SCWC-XX-XXXXXXX
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-XX-XXXXXXX; CASE NO. 1FFC-XX-XXXXXXX)
NOVEMBER 30, 2021
McKENNA, WILSON, AND EDDINS, JJ., AND RECKTENWALD, C.J.,
DISSENTING, WITH WHOM NAKAYAMA, J., JOINS
OPINION OF THE COURT BY EDDINS, J.
The Family Court of the First Circuit sentenced Artemio
Agdinaoay to 181 days of imprisonment after he pled no contest
to violating a temporary restraining order. It also ordered
Agdinaoay to complete a domestic violence intervention program
(DVI).
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Agdinaoay challenges the court’s sentence, which the
Intermediate Court of Appeals affirmed. He argues the family
court erred by sentencing him to both serve 181 days and
complete DVI. Imposing DVI without probation, Agdinaoay argues,
violates Hawai‘i Revised Statutes (HRS) § 706-624(2)(a) (Supp.
2017).
We hold that courts cannot impose imprisonment exceeding
the statutory threshold for a probationary sentence and also
conditions of probation. Because a misdemeanor defendant
sentenced to imprisonment exceeding 180 days cannot also receive
a probationary sentence - and DVI cannot be imposed except as a
condition of probation - Agdinoay’s sentence was unlawful.
I.
After Agdinaoay pled no contest to Violation of a Temporary
Restraining Order (VTRO), the family court convicted him of
violating HRS § 586-4. That statute requires defendants
convicted of VTRO to “undergo domestic violence intervention at
any available domestic violence program as ordered by the
court.” HRS § 586-4(e). 1
1 In addition to mandating that those convicted of VTRO undergo DVI, HRS
§ 586-4(e) classifies VTRO as a misdemeanor:
(e) When a temporary restraining order is granted and the
respondent or person to be restrained knows of the order, a
knowing or intentional violation of the restraining order
is a misdemeanor. A person convicted under this section
shall undergo domestic violence intervention at any
available domestic violence program as ordered by the
court.
2
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The court sentenced Agdinaoay to DVI. It also sentenced
him to 181 days of imprisonment.
This sentence was illegal. Its illegality emerges from the
confluence of two distinct conclusions. First, that DVI is not
available to sentencing courts as a “standalone” sentencing
option; it must be imposed with probation. And second, that a
court cannot impose both probation and a sentence of greater
than 180 days for a misdemeanor offense.
Agdinaoay’s sentence was unlawful because it combined DVI –
which we conclude is only available as a condition of probation
- and imprisonment exceeding six months. See HRS § 706-
624(2)(a). The trial court could have imposed a 181-day prison
term. Or it could have imposed probation with DVI as a
condition. But it could not mix and match as it did.
II.
Our first conclusion - that DVI is only available as part
of a probation sentence - makes sense for three reasons.
First, the plain language of Chapter 706 shows that DVI is
not available except as a condition of probation.
HRS Chapter 706 guides sentencing. It starts: “No sentence
shall be imposed otherwise than in accordance with this
chapter.” HRS § 706-600 (emphasis added). The command is
clear. Chapter 706 controls all sentencing dispositions, even
those dictated by statutes outside its purview. See HRS § 701-
3
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102(3) (“The provisions of chapters 701 through 706 of the Code
are applicable to offenses defined by other statutes, unless the
Code otherwise provides.”). Other statutes may supplement the
penal code, for example by providing mandatory minimums, but
Chapter 706’s overarching sentencing framework still controls. 2
Under HRS § 706-605, the court may sentence a convicted
defendant to one or more of four dispositions: (1) probation;
(2) payment of a fine; (3) imprisonment; and (4) community
service.
2 Nothing in HRS § 701-102(3) or HRS § 706-600 restricts action by
subsequent legislatures. The legislature can amend laws concerning criminal
sentencing. But the legislature has left HRS § 701-102(3) and HRS § 706-600
intact. Because those laws remain intact all sentencing – even that informed
by laws outside the penal code – must occur in accordance with Chapter 706.
Cf. Peer News LLC v. City & County of Honolulu, 138 Hawai‘i 53, 69, 376 P.3d
1, 17 (2016) (“The legislature is presumed to know the law when it enacts
statutes . . . .”).
4
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Criminal sentences other than the four outlined in HRS
§ 706-605 defy Chapter 706. 3,4,5
DVI is not one of the four authorized dispositions under
HRS § 706-605. But there are several subsections of HRS § 706-
624(2) that allow a court to impose DVI as a condition of
probation. Under HRS § 706-624(2), a court imposing probation
may order a defendant to: “[u]ndergo available medical or mental
health assessment and treatment . . . .” HRS § 706-624(2)(j);
“[c]omply with a service plan developed using current assessment
tools” HRS § 706-624(2)(s); and “[s]atisfy other reasonable
3 This proposition is nicely illustrated by the ICA’s holding in State v.
DeMello, 130 Hawai‘i 332, 310 P.3d 1033 (App. 2013), vacated in part, 136
Hawai‘i 193, 361 P.3d 420 (2015). In DeMello, the ICA considered whether the
trial court erred in sentencing a defendant, who had been convicted of a
petty misdemeanor, to the maximum term of imprisonment and anger management
classes. There was no standalone provision in Chapter 706 authorizing
sentencing courts to impose “anger management classes” on defendants. But,
the ICA noted, attendance at anger management classes could be imposed as a
condition of probation. Because DeMello had been sentenced to thirty days of
imprisonment, however, he could not also be sentenced to probation. Id. at
340, 310 P.3d at 1041. Probation, with completion of anger management
classes as one of its conditions, would be a valid sentence. So too would
thirty days of imprisonment. But because of Chapter 706’s limits on the term
of imprisonment that could be imposed alongside probation, DeMello’s sentence
of thirty days of imprisonment plus a probationary condition (anger
management classes) was illegal. Id.
4 Mandatory minimums required by statutes outside the penal code - for
example HRS § 586-4(e)(1)’s requirement that those convicted of VTRO serve at
least forty-eight hours in jail - do not inherently conflict with Chapter 706
since imprisonment is an authorized disposition of a criminal defendant under
both HRS § 706-605(a) and HRS § 706-605(c).
5 The penal code concerns the sentencing of criminal defendants. It is
silent on the permissible scope of court orders concerning civil litigants.
The fact that family court judges may impose DVI as part of a protective
order in a civil court case is thus irrelevant to the question of whether DVI
may be imposed as a standalone criminal sentence: the sentencing judge in a
criminal case operates within the framework provided by Chapter 706, the
civil judge in a family court dispute does not.
5
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conditions as the court may impose.” HRS § 706-624(2)(t). 6 Read
together, the absence of “DVI” as a “standalone” authorized
disposition for convicted defendants under HRS § 706-605 and the
express authorization of “mental health treatment” such as DVI
as a discretionary condition of probation indicate that DVI is
imposable only as a condition of probation.
Second, other sections of the Hawai‘i Penal Code treat DVI
as a sentence that is imposed only alongside probation.
In 1998, the legislature extended the probation period for
the misdemeanor domestic violence crimes 7 from one year to a
6 HRS § 706-624(2) empowers courts to impose an assortment of
discretionary conditions on probationers:
(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:
. . . .
(j) Undergo available medical or mental health
assessment and treatment, including assessment and
treatment for substance abuse dependency, and remain
in a specified facility if required for that purpose;
. . . .
(s) Comply with a service plan developed using
current assessment tools; and
(t) Satisfy other reasonable conditions as the court
may impose.
7 These include: violation of temporary restraining order, HRS § 586-4;
violation of an order for protection, HRS § 586-11; and abuse of family or
household members, HRS § 709-906.
6
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period “not exceeding two years.” See HRS § 706-623(c). The
legislative history reflects that the law changed because
offenders needed more time to complete DVI as part of their
probation sentences. 8 If the legislature believed courts could
impose DVI without probation, it would have been unnecessary to
extend the length of probation so that offenders could complete
DVI during probation.
The language of HRS § 709-906(5), the misdemeanor abuse of
family or household members offense, also supports the
conclusion that DVI is imposed only as part of a probationary
term. If a person convicted under HRS § 709-906(5) does not
complete DVI within a specified time frame, “[t]he court shall
revoke [that] defendant’s probation” unless good cause excuses
the failure. HRS § 709-906(7) (emphasis added). This language
8 The legislative history to H.B. No. 2666 states, in part:
Finally, your Committee has incorporated into H.B. 2666 the
provisions of H.B. 3190, which also relates to domestic
violence. H.B. 3190 covers the same subject matter as H.B.
2666. The purpose of H.B. 3190 is to allow the court to
extend the period of probation for a defendant convicted of
misdemeanor domestic abuse if the defendant is unable to
complete the ordered treatment or counseling within the
original probation period.
However, your Committee finds that extending a period of
probation after that period has been set by the court may
be unconstitutional. Accordingly, your Committee has
changed the provisions of H.B. 3190 by allowing the court
to sentence a defendant convicted under sections 586-4 or
709-906, Hawaii Revised Statutes, to a probationary period
of up to two years.
H. Stand. Comm. Rep. No. 578-98, in 1998 House Journal, at 1264.
7
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reflects an assumption that only probationers will be ordered to
complete DVI.
Third, several practical considerations also support our
holding that DVI is available to sentencing courts only as a
condition of probation. Chief among them is the court’s
inability to enforce a sentence of DVI without probation: if the
defendant is not on probation and, by extension, subject to
revocation of that probation, then there are no consequences to
not starting, or not finishing, DVI. A contempt charge under
HRS § 710-1077 does not work. See State v. Asuncion, 120 Hawai‘i
312, 327, 205 P.3d 577, 592 (App. 2009) (reversing criminal
contempt conviction of defendant who violated a condition of his
probation and explaining that “[w]hen the defendant fails to
comply with [the conditions of the defendant’s probation], HRS
§ 706–625 9 provides the exclusive remedies for sanctioning the
defendant’s failure”). 10
9 HRS § 706–625 concerns the revocation and modification of probation
conditions. Under HRS § 706–625(3), “[t]he court shall revoke probation if
the defendant has inexcusably failed to comply with a substantial requirement
imposed as a condition of the order . . . .”
10 Accord State v. Jones, 869 N.W.2d 24, 29 (Minn. 2015) (holding that “a
term of probation is not a court mandate, the violation of which subjects the
probationer to a new criminal contempt charge”); State v. Williams, 560 A.2d
100, 104–05 (N.J. Super. Ct. App. Div. 1989) (“We do not believe that when
the Legislature expressly stated . . . that the sanction for a violation of
probation (other than for the inherent criminality of the act) would be a
revocation of probation, it intended that a defendant would be subject to a
new indictment for contempt in addition to the punishment for the original
offense.”); Jones v. United States, 560 A.2d 513, 516 (D.C. 1989) (“When a
probationer violates a condition of his probation, the only appropriate
sanction is a withdrawal of the previously afforded favorable treatment
8
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Even if one accepts for the purpose of argument that DVI
could be imposed without probation, a contempt charge under HRS
§ 710-1077 is not a viable means to punish a defendant who does
not complete DVI. Under HRS § 710-1077(g), a person commits
criminal contempt of court if the person “knowingly disobeys or
resists the process, injunction, or other mandate of a court.”
A sentence is neither a process, nor an injunction, nor a
mandate of the court. Courts do have “inherent equity,
supervisory, and administrative powers as well as inherent power
to control the litigation process before them.” Enos v. Pac.
Transfer & Warehouse, Inc., 79 Hawai‘i 452, 457, 903 P.2d 1273,
1278 (1995) (cleaned up). But these inherent powers to
administer and manage the litigation process are not the source
of courts’ sentencing authority. Chapter 706 is. As such,
sentences are not processes, injunctions, or other mandates of a
court. And, by extension, failure to complete a sentence is not
criminal contempt.
Relying on the specter of a contempt charge to motivate
defendants’ DVI completion also presents profound fairness and
separation-of-powers problems.
rather than the imposition of an additional penalty. Punishment for contempt
is an additional and separate penalty.”); Williams v. State, 528 A.2d 507,
510 (Md. Ct. Spec. App. 1987) (“[A] condition of probation may be enforced
only through the power to revoke the probation, not through contempt
proceedings.”).
9
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Regarding the fairness problem: if failure to complete
court-ordered DVI may give rise to a contempt charge punishable
by up to one year in prison, defendants could receive combined
terms of imprisonment far in excess of the maximum term for
their underlying misdemeanor crime. 11
Punishing failure to complete DVI with criminal contempt
also presents a separation-of-powers problem. Under HRS § 710-
1077(1)(g), a person commits criminal contempt of court if
“[t]he person knowingly disobeys or resists the process,
injunction, or other mandate of a court.” The commentary to
section 710-1077 makes clear that the purpose of the criminal
contempt statute is safeguarding the court’s authority. It
defines criminal contempt as “conduct which brings the court
into disrespect or which interferes with the administration of
justice” (emphasis added). But if every knowing failure to
timely complete a DVI sentence generates a criminal contempt
charge under HRS § 710-1077(1)(g), the government could charge a
defendant with contempt even “in the face of the . . . court’s
11 For example, if Agdinaoay served his 181-day prison term (or if he were
initially sentenced to, and served, the one-year maximum) and then received
another one-year jail term based on a contempt charge for failing to complete
DVI, he would have to serve a one-and-one-half or two-year term of
imprisonment. Even though the VTRO crime that originally subjected him to
the family court’s jurisdiction capped incarceration at one year! If the
family court again required Agdinaoay to complete DVI, and he again did not
do it, he could face yet another year in jail for contempt. Apocalyptically,
the pattern could repeat, subjecting Agdinaoay to years of incarceration all
because of a single misdemeanor charge that carried a maximum one-year term.
10
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determination that the [defendant] had not demonstrated any
disrespect [to the court].” Jones, 12 869 N.W.2d at 29. Cf. id.
at 29 (noting that allowing criminal contempt charges for
probation violations would “impinge on the district court’s
obligation and authority to sentence”). Construing Chapter 706
to allow for DVI only as a condition of probation avoids a
separation-of-powers problem. 13 It ensures that the government
cannot use contempt charges to intrude on courts’ sentencing
powers anytime a defendant sentenced to DVI fails to complete
that sentence.
A second consideration which suggests that the Hawai‘i Penal
Code allows for the imposition of DVI only as a condition of
probation is the significant support available to probationers,
but not other offenders. Only probationers can receive services
from the Adult Client Services Branch (ACSB). ACSB’s probation
officers help ensure defendants’ success in complying with
probation terms like DVI. A probation officer is “a helper, a
12 In Jones, the defendant violated the terms of her probation when she
was cited for consumption of alcohol by a minor and disorderly conduct. The
court revoked her probation. But it did not cite her for contempt or refer
her for prosecution under Minnesota’s criminal contempt statute.
Nevertheless, the State charged the defendant with criminal contempt. 869
N.W.2d at 30.
13 Constitutional doubt is a “well-settled canon of statutory
construction.” In re Doe, 96 Hawai‘i 73, 81, 26 P.3d 562, 570 (2001). It
counsels that “where a statute is susceptible of two constructions, by one of
which grave and doubtful constitutional questions arise and by the other of
which such questions are avoided, our duty is [to] adopt the latter.” Id.(quoting Jones v. United States, 529 U.S. 848, 857 (2000)).
11
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monitor, and an enforcer.” State v. Fields, 67 Haw. 268, 280,
686 P.2d 1379, 1388 (1984). Probation officers are required to
“aid and guide” probationers and “to evaluate and report on
[probationers’] progress toward integration into the
community . . . .” Id. Cf. HRS § 806-73 (providing that a
probation officer “shall use all suitable methods to aid the
defendant and bring about an improvement in the defendant’s
conduct and condition”).
The support provided by ACSB’s probation officers is a
vital lifeline for many defendants sentenced to DVI. DVI lasts
months and is often time intensive. Many defendants are
indigent and lack the resources to pay for DVI. Some do not
speak English. Others may not have the executive functioning
necessary to identify and enroll in court-approved DVI. It
would be absurd and impracticable to construe HRS § 586-4(e) as
requiring these defendants to locate, enroll in, pay for, and
complete court-approved DVI without any support or guidance from
the probation office. 14 We decline to do so. See Frank v. Haw.
14 After sentencing, Agdinaoay filed an ex parte motion for
reconsideration of his sentence. At the hearing on that motion, Agdinaoay’s
counsel explained some of the practical difficulties Agdinaoay would face if
he had to complete DVI without support from the ACSB:
Mr. Agdinaoay, I mean, he’s of limited means, he is a
houseless individual . . . I don’t know if he’s got the
resources to even pay for [DVI], let alone know who to ask
about those classes. When you’re under supervised -- if
you’re under supervision with the court, with probation,
they at least will inform you, look, here is the classes,
12
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Planing Mill Found., 88 Hawai‘i 140, 144, 963 P.2d 349, 353
(1998) (“This court is bound to construe statutes so as to avoid
absurd results. A rational, sensible and practicable
interpretation of a statute is preferred to one which is
unreasonable, impracticable . . . inconsistent, contradictory,
and illogical.” (cleaned up)).
Collectively, the plain language of Chapter 706, the penal
code’s consistent treatment of DVI as a condition of probation,
and the impracticability of enforcing or requiring DVI outside
the probation context all support our holding that DVI may only
be imposed as a condition of probation.
III.
The second legal conclusion underpinning our determination
concerning the illegality of Agdinaoay’s sentence is the black-
letter law – inspired by the Model Penal Code 15 - that sentencing
courts may not impose probation and also terms of imprisonment
in excess of certain statutorily-defined limits. See HRS § 706-
624(2)(a) (stating that defendants may not be sentenced to
probation and a term of imprisonment exceeding: two years in a
class A felony; eighteen months in a class B felony; one year in
this is how many you can take, this is where you can go.
But he has nobody to tell him what to do or who to do that.
15 “The Hawai‘i Penal Code is substantially derived from the Model Penal
Code.” State v. Aiwohi, 109 Hawai‘i 115, 126, 123 P.3d 1210, 1221 (2005).
13
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a class C felony; six months in a misdemeanor; and five days in
a petty misdemeanor); Model Penal Code § 6.02(3)(b) (stating
that persons convicted of a felony or misdemeanor and placed on
probation may be sentenced to a term of imprisonment not
exceeding thirty days (!) as a condition of probation).
We recognized this principle in State v. Sumera, 97 Hawai‘i
430, 39 P.3d 557 (2002). In Sumera, we held that “where the
sentencing court decides to combine probation and imprisonment
in a sentence, it may do so if imprisonment is made
a condition of the sentence of probation rather than a separate
sentence, and only up to a maximum period of six months in the
case of a misdemeanor.” Id. at 435, 39 P.3d at 562.
IV.
Synthesizing our determination that DVI is only available
as a condition of probation and the black-letter law that, in a
misdemeanor case, probation may not be imposed alongside a
prison term exceeding 180 days, we hold that a court may not
impose both DVI and prison time in excess of that allowed by HRS
§ 706-624(2)(a). Agdinaoay’s sentence was thus illegal.
What sentences could the court legally have imposed on
Agdinaoay? It could have imposed either a sentence of between
181 days and one year or probation with DVI as a condition of
that probation and no more than 180 days of imprisonment.
14
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Though HRS § 586-4(e) apparently requires courts to
sentence those convicted of VTRO to DVI, and by extension,
probation, it also provides that “[n]othing in this section
shall be construed as limiting the discretion of the judge to
impose additional sanctions authorized in sentencing for a
misdemeanor.”
One sanction authorized in sentencing for a misdemeanor is
a term of imprisonment of up to one year. The State insists
that DVI must be imposed, without exception, on those convicted
of VTRO. But DVI is only available as a condition of probation,
and probation is not available in conjunction with a sentence of
more than 180 days. So taken to its logical conclusion, the
State’s interpretation of HRS § 586-4 would limit the court’s
discretion to impose a sentence of more than 180 days on those
convicted of VTRO. This outcome is absurd and expressly
foreclosed by HRS § 586-4(e).
If a court sentences a defendant to probation and, as a
condition of that probation, a term of imprisonment of no more
than 180 days, then it must also, under HRS § 586-4(e), sentence
the defendant to DVI.
But if a court exercises its discretion to impose a
sentence of between 181 days and one year, then it may not
impose probation. And, because DVI is only available as a
condition of probation, it may not impose DVI.
15
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This outcome is akin to the situation that arises when the
State charges a defendant with felony crimes and also a
misdemeanor domestic violence crime like abuse of family or
household members or VTRO. 16 In such cases, the indeterminate
term of incarceration controls and the defendant – despite the
misdemeanor domestic violence conviction – is not sentenced to
probation or DVI. This is because under HRS §§ 706-605(2) and
706-629(1)(a), 17 if a defendant receives a five, ten, or twenty-
year sentence, the court cannot also sentence the defendant to
DVI for the misdemeanor domestic violence crime.
This holding is also required notwithstanding HRS § 586-
4(e)’s unqualified and “specific” command that DVI be imposed on
any defendants convicted of VTRO. It is generally true that
“where there is a ‘plainly irreconcilable’ conflict between a
general and a specific statute concerning the same subject
matter, the specific will be favored.” Mahiai v. Suwa, 69 Haw.
349, 356, 742 P.2d 359, 366 (1987). But this principle is a
mere tool of statutory interpretation designed for use where
legislative intent is unclear. It does not override or
16 The situation also crops up in felony probation revocation cases.
Consider the felony probationer who receives an indeterminate term of
incarceration for violating probation conditions and has a pending
misdemeanor domestic violence crime. Later, the misdemeanor offense cannot
be resolved by imposing DVI or anything other than straight imprisonment.
17 Under HRS § 706-629(1)(a), when the disposition of a defendant involves
more than one crime, “[t]he court shall not impose a sentence of probation
and a sentence of imprisonment except as authorized by section 706-
624(2)(a) . . . .”
16
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undermine otherwise clear legislative intent. See Cal. State
Emps. Ass’n v. Regents of Univ. of Cal., 267 Cal. App. 2d 667,
670 (Cal. Ct. App. 1968) (noting that the rule that specific
governs the general should not be “applied so as to defeat
legislative intent otherwise determined”); D.B. v. Cardall, 826
F.3d 721, 736 (4th Cir. 2016) (“The general-specific rule of
statutory construction, like other interpretive canons, can be
overcome by sufficient indications of a contrary legislative
intent.”).
Here, HRS § 706-600 is clear: “[n]o sentence shall be
imposed otherwise than in accordance with this chapter.” And
HRS § 701-102(3) explicitly states that Chapter 706’s provisions
“are applicable to offenses defined by other statutes, unless
the Code otherwise provides.” These statutes direct that all
sentencing in our state happen in accordance with Chapter 706.
HRS § 586-4’s DVI directive may be “specific,” but that
specificity does not supersede Chapter 706’s comprehensive
sentencing framework.
V.
We hold that courts cannot impose imprisonment exceeding
the statutory threshold for a probationary sentence and also
impose conditions of probation. The family court unlawfully
sentenced Agdinaoay to 181 days of imprisonment and a domestic
violence intervention program. It could have sentenced him to
17
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one or the other, but not both. The family court’s sentence is
vacated. We remand the case to the family court for re-
sentencing consistent with this opinion.
William H. Jameson Jr., /s/ Sabrina S. McKenna
for petitioner
/s/ Michael D. Wilson
Donn Fudo, /s/ Todd W. Eddins
for respondent
18