State v. Anzalone

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
12-MAY-2022
08:05 AM
NO. CAAP-18-0000880Dkt. 56 SO
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
STATE OF HAWAI#I, Plaintiff-Appellee, v.
DAWN ANZALONE, Defendant-Appellant.
APPEAL FROM THE FAMILY COURT OF THE SECOND CIRCUIT
(CASE NO. 2FC151000287(4))
SUMMARY DISPOSITION ORDER
(By: Ginoza, Chief Judge, Nakasone and McCullen, JJ.)
Defendant-Appellant Dawn Anzalone (Anzalone) appeals
from the Family Court of the Second Circuit's1 September 27, 2018
Judgment of Conviction and Probation Sentence.
Upon careful review of the record and the briefs
submitted by the parties and having given due consideration to
the arguments advanced and the issues raised, we resolve
Anzalone's points of error as follows.
(1) Anzalone argues that the family court erred when it
failed to determine if she was nonindigent before ordering her to
reimburse the State for extradition costs.
Hawaii Revised Statutes (HRS) § 621-9(b) "requires that
the court first find that the defendant is nonindigent before
evaluating the facts of the case to determine whether, in its
discretion, the defendant should bear the costs of extradition."
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The Honorable Richard T. Bissen, Jr., presided.
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State v. Anzalone, 141 Hawai#i 445, 454, 412 P.3d 951, 960 (2018)
[hereinafter Anzalone I]. Based on the record on appeal, the
family court did not make a finding that Anzalone was
nonindigent. We, thus, vacate the family court's imposition of
extradition costs on Anzalone and remand for the family court to
follow the requirements set forth in Anzalone I.
(2) Anzalone argues that the State failed to adduce any
evidence that the claims for payments of extradition costs were
made pursuant to HRS § 621-9(b) (2016).
HRS § 621-9(b) provides the conditions under which a
court may order a defendant to reimburse the State as follows:
Whenever the presence of a defendant in a criminal case
. . . who is outside the judicial circuit is mandated by
court order or bench warrant to appear, the cost of airfare,
ground transportation, any per diem for both the defendant
or petitioner and sufficient law enforcement officers to
effect the defendant's or petitioner's return, shall be
borne by the State. All such expenses shall be certified by
the court or public prosecutor or the attorney general.
Duly certified claims for payment shall be paid upon
vouchers approved by the state director of finance and
warrants drawn by the state comptroller. The court may
order the nonindigent defendant or petitioner who was
returned to the State of Hawaii to reimburse the State for
the costs of such extradition or return as specifically
described above.
(Emphases added.)
Based on the plain language of HRS § 621-9(b), the
court may order a nonindigent defendant to reimburse the state
"as specifically described above." The specific description
provides that "[a]ll such expenses shall be certified by the
court or public prosecutor or the attorney general" and that the
certified expenses "shall be paid upon vouchers approved by the
state director of finance and warrants drawn by the state
comptroller."
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The record contains the County of Maui Travel Form from
the law enforcement escorts requesting advance payment and
reimbursement for airfare, transportation, hotel, per diem, and
miscellaneous costs. The record also contains invoices for
airfare, lodging, transportation, and receipts for food.
However, the family court did not make findings on whether these
documents satisfied the conditions of HRS § 621-9(b). Should the
family court find Anzalone nonindigent, it must also determine
whether the conditions set forth in 621-9(b) were met before it
may order Anzalone to reimburse the State.
(3) Anzalone argues that "the effect of the trial
court's sentence is that [she] would be on active probation . . .
[for] a period of about 6 years and 11 months - which is an
impermissible length for a probation term."
In October 2015, Anzalone was convicted of Custodial
Interference in the First Degree, and sentenced to a four-year
term of probation. As a condition of her probation, the family
court ordered Anzalone to repay extradition costs as restitution.
Anzalone appealed the extradition costs.
In February 2018, the Hawai#i Supreme Court held that
"when faced with a request for reimbursement of extradition costs
made pursuant to HRS § 621-9(b), the reviewing court cannot order
a criminal defendant to reimburse the State for the costs of his
or her extradition unless the court has first found that the
defendant is nonindigent." Anzalone, 141 Hawai#i at 454, 412
P.3d at 960. Although Anzalone only appealed, and the supreme
court only decided, the issue of extradition costs, the supreme
court vacated "Anzalone's sentence in its entirety, and
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remand[ed] the case for sentencing anew." Id. at 458, 412 P.3d
at 964.
In the meantime, Anzalone was serving her probation
sentence. As the deputy prosecuting attorney reported to the
family court, "in speaking with the . . . probation officer,
. . . I believe to her credit defendant has been reporting."
Defense counsel also represented to the family court that
Anzalone "has continued to check in and be monitored by
probation. She is set to expire probation at the end of October
2019. She's done everything she's -- was supposed to do while on
probation." And the family court found, "I will also commend
you, as the prosecutor has, for maintaining your probation
contact and reporting. Apparently you have not been in any
violation of your probation."
Despite complying with the terms of her probation
between her original sentence in October 2015 and her resentence
in December 2018, the family court sentenced Anzalone to a new
four-year term of probation, concluding "it's a new term because
it's a resentence." Pending an appeal, the family court noted
that it "can't tell if probation continues to run during that
time" and invited defense counsel to brief whether "probation
should be terminated from the original date of sentence if the
period wasn't tolled." Anzalone instead appealed.
HRS § 706-623 provides that "[w]hen the court has
sentenced a defendant to be placed on probation, the period of
probation shall be as follows, unless the court enters the reason
therefor on the record and sentences the defendant to a shorter
period of probation: . . . four years upon conviction of any
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other class B or C felony[.]" HRS § 706-623(1)(b) (2014)
(emphasis added). It is true that the family court's resentence
of a four-year term of probation was not greater than the
original sentence of a four-year term of probation, but it would
be fundamentally unfair to ignore the fact that Anzalone was
satisfactorily serving her probation sentence while her appeal
was pending. Fukusaku v. State, 126 Hawai#i 555, 560, 273 P.3d
1241, 1246 (App. 2012) (quoting that "[a] defendant's exercise of
a right of appeal must be free and unfettered") (citation
omitted).
And fault cannot be placed with Anzalone. There was no
reason for her to request a stay of her probation sentence
pending the appeal because she did not appeal her probation
sentence, she appealed the extradition costs. Moreover,
Anzalone's case did not involve a motion to revoke probation
implicating a tolling of probation pursuant to HRS § 706-627
(2014).
We, thus, interpret HRS § 706-623 as providing the
family court with discretion to account for Anzalone's situation
by placing on the record reasons for a shorter period of
probation. See HRS § 603-21.9 (2016) (providing that the circuit
courts have power to "make and award such judgments . . . and do
such other acts and take such other steps as may be necessary to
carry into full effect the powers which are or shall be given to
them by law or for the promotion of justice in matters pending
before them").
Under the circumstances of this case, and to the extent
the family court imposed a sentence that would result in Anzalone
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actually serving over six years of probation instead of the
statutory maximum of four years of probation, the family court
"clearly exceeded the bounds of reason or disregarded rules or
principles of law" to Anzalone's substantial detriment. State v.
Hussein, 122 Hawai#i 495, 503, 229 P.3d 313, 321 (2010).
For the foregoing reasons, we vacate Family Court of
the Second Circuit's September 27, 2018 Judgment of Conviction
and Probation Sentence, and remand this case for resentencing
consistent with this Summary Disposition Order.
DATED: Honolulu, Hawai#i, May 12, 2022.
On the briefs: /s/ Lisa M. Ginoza
Chief Judge
Damir Kouliev,
for Defendant-Appellant. /s/ Karen T. Nakasone
Associate Judge
Gerald K. Enriques,
Deputy Prosecuting Attorney, /s/ Sonja M.P. McCullen
County of Maui, Associate Judge
for Plaintiff-Appellee.
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