State v. Fleetwood

• Decision Date: 08 October 2018
• Docket Number: NO. CAAP-16-0000692,CAAP-16-0000692
• Parties: STATE of Hawai'i, Plaintiff-Appellee, v. Shuan E. FLEETWOOD, also known as Shaun Fleetwood, Defendant-Appellant
• Court: Hawaii Court of Appeals

428 P.3d 792 (Table)

STATE of Hawai'i, Plaintiff-Appellee,

v.Shuan E. FLEETWOOD, also known as Shaun Fleetwood, Defendant-Appellant

NO. CAAP-16-0000692

Intermediate Court of Appeals of Hawai'i.

October 8, 2018

On the briefs:

Phyllis J. Hironaka, Deputy Public Defender, for Defendant-Appellant.

Stephen K. Tsushima, Deputy Prosecuting Attorney, for Plaintiff-Appellee.

(By: Ginoza, Chief Judge, Leonard and Chan, JJ.)

SUMMARY DISPOSITION ORDER

Defendant-Appellant Shuan E. Fleetwood, also known as Shaun Fleetwood (Fleetwood) , appeals from the "Order of Resentencing, Revocation of Probation" (Order of Resentencing), filed on September 19, 2016 in the Circuit Court of the First Circuit (Circuit Court).¹

On appeal, Fleetwood contends that the Circuit Court: (1) wrongly concluded that he inexcusably failed to comply with a substantial requirement imposed as a condition of his probation because the evidence showed that his violations occurred as a result of his reasonable understanding of what his probation officer had permitted him to do; and (2) abused its discretion in resentencing Fleetwood to the indeterminate term of imprisonment of ten years rather than a second chance at probation.

Upon careful review of the record and the briefs submitted and having given due consideration to the arguments advanced and the issues raised by the parties, as well as the relevant statutory and case law, we resolve Fleetwood's points of error as follows, and affirm.

On October 13, 2010, Plaintiff-Appellee State of Hawai'i (State) charged Fleetwood via Grand Jury Indictment in Criminal No. 10-1-1668 with two counts of Sexual Assault in the First Degree in violation of Hawaii Revised Statutes (HRS) § 707-730(1)(c) (2014). On January 18, 2011, Fleetwood entered guilty pleas on both counts to the lesser offense of Sexual Assault in the Second Degree in violation of HRS § 707-731(1)(a) (2014) pursuant to a plea agreement with the State. On April 15, 2011, the Circuit Court² entered a Judgment of Conviction and Probation Sentence (Judgment) , which sentenced Fleetwood to a five-year term of probation under the Hawai'i's Opportunity Probation with Enforcement (HOPE) Program on each count to run concurrently. The Circuit Court also ordered specified terms and conditions of probation, including that Fleetwood serve a one-year term of incarceration, with credit for time served. The record contains a "Terms and Conditions of Probation" form which appears to be signed by Fleetwood and dated July 26, 2011 (7/26/11 Terms and Conditions Form), acknowledging both Fleetwood's receipt of the terms and conditions of probation and that the terms and conditions of probation had been explained to him.

On November 8, 2011, Adult Client Services Branch Senior Probation Officer Ty Tamasaka (Probation Officer Tamasaka) filed a Motion for Revocation of Probation³ (Motion for Revocation) , alleging that Fleetwood violated his terms and conditions of probation by: (1) failing to report to his probation officer as ordered on November 7, 2011; (2) failing to obtain and maintain mental health treatment or services; (3) failing to abide by curfew, travel, or leisure time restrictions imposed by his probation officer; and (4) failing to obtain and maintain a residence as approved by his probation officer. The Circuit Court issued a bench warrant for Fleetwood's arrest the same day.

On March 11, 2016, the bench warrant was executed on Fleetwood in Dermott, Arkansas. Fleetwood had been incarcerated in Arkansas on a prior offense, and was extradited back to Hawai'i in March 2016.

Following a number of other proceedings before the Circuit Court, the State's Motion for Revocation of Probation came on for hearing before the Circuit Court on September 16, 2016. At the revocation hearing, Fleetwood argued that his violations of the terms and conditions of probation were due to his belief that Probation Officer Tamasaka had given him permission to leave Hawai'i to visit his father in Louisiana, who had been in failing health. Fleetwood also argued that his absence from Hawai'i was involuntary, and thus excusable, because when he went to a police station in Louisiana to report as a sex offender, he was arrested on an outstanding warrant in Arkansas and subsequently sentenced to a four-year term of incarceration in Arkansas, making it impossible to return to Hawai'i.⁴

Upon consideration of the evidence and testimony presented by both parties at the Revocation Hearing, the Circuit Court concluded that Fleetwood had inexcusably violated a substantial term and condition of his probation, and revoked his probation. The Circuit Court proceeded to resentence Fleetwood to an indeterminate term of imprisonment of ten years for each count, to run concurrently. This appeal follows.

The Circuit Court's authority to revoke a criminal defendant's probation is governed by HRS § 706-625 (2014).⁵ 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[.]" HRS § 706-625(3). As set forth in State v. Villiarimo, a probationer's failure to comply is "inexcusable" as contemplated under HRS § 706-625(3), when it is "a willful and deliberate attempt to circumvent the order of the court." 132 Hawai'i 209, 222, 320 P.3d 874, 887 (2014) (ellipsis omitted). "This standard requires both an intentional act on the part of the defendant ('willful'), and a deliberate attempt by him or her to circumvent the probation order, taking into consideration the significance of the defendant's action with respect to the court's order and goals of probation ('to circumvent the order of the court')." Id. Here, the Circuit Court concluded that Fleetwood's failure to comply with the terms of his probation was inexcusable as contemplated under HRS § 706-625(3).

The decision that a probationer's failure was inexcusable is a conclusion of law that is reviewed de novo under the right/wrong standard. State v. Reves, 93 Hawai'i 321, 327, 2 P.3d 725, 731 (Haw. App. 2000). Accordingly, a trial court's determination that a probationer inexcusably failed to comply with a substantial requirement of probation will not be overturned, so long as it is supported by the trial court's findings of fact, and reflects an application of the correct rule of law. Id.

Here, Fleetwood does not challenge the Circuit Court's finding of fact that he had failed to comply with a substantial requirement imposed as a condition of probation by leaving the jurisdiction. Instead, Fleetwood argues that the Circuit Court erred in determining that his failure was inexcusable. In support of his argument, Fleetwood enumerates eight "mitigating circumstances"⁶ that he asserts compels this court to vacate the Circuit Court's conclusion that his absence from Hawai'i was inexcusable.

In its ruling, the Circuit Court considered the evidence and argument presented by both the State and Fleetwood at the revocation hearing, including the mitigating circumstances that Fleetwood alleges on appeal, and found that Fleetwood's failure to remain in the Circuit Court's jurisdiction was inexcusable. At the revocation hearing, Probation Officer Tamasaka testified that he had reviewed the terms and conditions of probation with Fleetwood and that Fleetwood's signature was at the bottom of the 7/26/11 Terms and Conditions Form. Fleetwood testified to the contrary, that Probation Officer Tamasaka did not go over all the terms and conditions of probation with him and that the signature at the bottom of the 7/26/11 Terms and Conditions Form was not his. However, Fleetwood admitted that his signature did appear on a Waiver of Extradition form, which was also admitted into evidence. It is apparent from the record that the Circuit Court did not believe Fleetwood's...