State ‘i v. Durham
| Decision Date | 14 June 2011 |
| Docket Number | No. SCWC–29923.,SCWC–29923. |
| Citation | 254 P.3d 425,125 Hawai'i 114 |
| Parties | STATE of Hawai‘i, Respondent/Plaintiff–Appelleev.Cornelius Wesley DURHAM, Petitioner/Defendant–Appellant. |
| Court | Hawaii Supreme Court |
OPINION TEXT STARTS HERE
Leslie K. Iczkovitz, (Taryn R. Tomasa, Deputy Public Defender on the briefs), for petitioner/defendant-appellant.Peter A. Hanano, Deputy Prosecuting Attorney, County of Maui (Richard K. Minatoya, Deputy Prosecuting Attorney, County of Maui, on the brief), for respondent/plaintiff-appellee.RECKTENWALD, C.J., NAKAYAMA, ACOBA, and DUFFY, JJ., and Circuit Judge BORDER, Assigned due to a Vacancy.Opinion of the Court by ACOBA, J.
We hold that in a probation revocation proceeding, a defendant must be given notice of all factual information related to probation revocation that is contained in a probation officer's recommendation letter to the court in accordance with State v. Paaaina, 67 Haw. 408, 689 P.2d 754 (1984). The lack of such notice amounts to a violation of due process that requires remand and a new probation revocation hearing to afford the defendant an opportunity to address such information. Inasmuch as such factual information was not disclosed to Petitioner/Defendant–Appellant Cornelius Wesley Durham (Petitioner), the January 11, 2011 judgment of the Intermediate Court of Appeals (ICA) filed pursuant to its November 24, 2010 summary disposition order (SDO) 1 is vacated, and the case is remanded to the circuit court of the second circuit (the court) 2 for a new evidentiary hearing on the motion for revocation filed by Respondent/Plaintiff–Appellee State of Hawai‘i (Respondent). See State v. Durham, No. 29923, 2010 WL 4814111 (App. Nov. 24, 2010) (SDO).
The following essential matters, some verbatim, are from the record and the submissions of the parties.
On April 20, 2007, Petitioner was indicted on two counts of sexual assault in the third
[125 Hawai'i 117 , 254 P.3d 428]
degree, Hawai‘i Revised Statutes (HRS) § 707–732(1)(b) (Supp.2007).3 On August 6, 2007, he entered no contest pleas to amended charges of sexual assault in the third degree, HRS § 707–732(1)(d) (Supp.2007).4 The court sentenced Petitioner to five years' probation on each count, to run concurrently, with standard and special terms and conditions of probation. Special term and condition “J” required Petitioner to participate in sex offender treatment:
[Petitioner] must participate satisfactorily in the Hawai‘i Sex Offender Treatment Program (HSOTP) with the provision that [Petitioner] obtain and maintain sex offender treatment, as approved by [his] probation officer, at [his] own expense until clinically discharged with the concurrence of [his] probation officer.(Emphasis added.) Judgment was entered on September 20, 2007.
In October 2007, Petitioner began to receive sex offender treatment from Catholic Charities (Charities). Petitioner was supervised by therapist Tamra Hayden–Billings (Billings). In May 2008, Billings presented Petitioner with a “Behavioral Lapse Contract” (contract) because, according to Bumanglag and Billings, respectively, Petitioner had had sexual contact with a co-worker and students, making it likely that he would relapse. The contract said that violation of its terms would result in “immediate termination from Sex Offender Treatment[.]”
Petitioner's probation officer in the First Circuit, Tiffany Bumanglag (Bumanglag), testified at the revocation hearing. Bumanglag supervised Petitioner, who was residing on Oahu but had committed the original crimes on Maui, under a “courtesy supervision” for the second circuit. In that regard, she would share information, when she had to, with Lara Nishikawa (Nishikawa), Petitioner's probation officer on Maui. Bumanglag did not speak with Nishikawa on a regular basis. According to Bumanglag, on May 28, 2008, approximately a week after Petitioner received the contract, Petitioner left a voicemail message with Bumanglag stating that he had signed the contract. However, Billings said Petitioner had not signed the contract. At some point, the contract was signed by Petitioner, who wrote “signed under duress” on it. Although the contract was not dated, a handwritten notation on the document states that it was “fax[ed] from Tamra Cath Char” on June 19, 2008. Additionally, Bumanglag stated that she received the signed contract on June 19, 2008.
On June 25, 2008, Petitioner's friend, attorney Leslie Iczkovitz (Iczkovitz), drafted a letter to Bumanglag and Billings, seeking clarification of “verbal and written restrictions” that had been imposed on Petitioner. The letter asked whether Petitioner had been threatened with “terminat[ion] [ ] from the [Sex Offender Treatment Program (SOTP) ] if [Petitioner] d[id] not comply with the terms of his [contract] that he signed under duress on June 4, 2008.”
Izckovitz requested that Billings and Bumanglag “respond to this letter, in writing, with [their] current positions regarding the conditions and restrictions discussed [in the letter].” According to the letter, Iczkovitz would “fil[e] a motion ... to amend [Petitioner's] terms of probation to prohibit ... [a] continuing ... violat[ion] of [Petitioner's] fundamental rights[ ]” if resolution of the issue could not be achieved.
On June 27, 2008, Petitioner was involuntarily terminated from Charities. The “Termination of Treatment” Report filed June 30, 2008, submitted by Billings, cited four reasons for termination, being that (1) Petitioner's “threat of legal action” interfered with the therapeutic relationship; (2) the threat of
[125 Hawai'i 118 , 254 P.3d 429]
litigation demonstrated resistance to treatment; (3) signing the contract “under duress” indicated resistance to treatment; and (4) failure to discuss the letter Iczkovitz sent Billings and Bumanglag during group therapy suggested that Petitioner wanted to keep secrets from the group.
Petitioner reported that “[s]ix days after” his termination, he began private treatment with Gregory Turnbull, a licensed psychologist who treats sex offenders. Petitioner declared that he applied, and was accepted, into another SOTP run by Gerald Reardon on July 18, 2008, with the approval of his probation officer.
On July 15, 2008, Respondent filed a motion for an order to show cause (OSC) as to “why the terms and conditions of probation imposed ... on September 20, 2007, should not be revoked and [Petitioner] be resentenced by the [c]ourt [,]” and for issuance of an arrest warrant. The motion was based upon the recommendation of “[ ] Nishikawa, Senior Probation Officer, ... and Chapter 706 of the [HRS].” Respondent attached an affidavit in which Nishikawa attested that Petitioner violated the terms and conditions of probation because he “ha [d] been terminated from the [HSOTP].”
The hearing on the revocation motion was eventually scheduled for June 4, 2009.5 A “Confidential Violation Report of Probation Officer in the Matter of the Motion For Revocation of Probation” (Report) was submitted by Nishikawa to the court and to the parties, at some point before the hearing. 6 The Report “apprise[d] the court and [Petitioner] of the pertinent facts of the case as well as the facts and circumstances of the alleged violation.”
The Report recounted that Petitioner was accepted for courtesy supervision and started sex offender treatment with Charities in October 2007. According to the Report, Petitioner initially had a “satisfactory” adjustment to the program, but in May 2008, he was “suspended” because he was “unable to be responsible and accountable for his actions.” On May 21, 2008, he was presented with the contract, but Petitioner “held on to [it] for about a month” before signing it “under duress.” After Iczkovitz's letter was received by Bumanglag and Billings, Petitioner was terminated from the program.
Nishikawa had also written a letter dated September 10, 2008, addressed to Judge Shackley Raffetto, indicating that Petitioner was a high risk to commit another assault because a polygraph examination indicated he had assaulted four other victims, and recommending that Petitioner's probationary period be extended for an additional five years with the condition that Petitioner serve one year of imprisonment (recommendation letter).
According to progress reports received from [Charities], during the period of October thru March, [Petitioner's] attitude/behavior were considered to be either “Good Attitude/Behavior” or “Very Good Attitude/Behavior.” This attitude/behavior deteriorated once [Petitioner] was suspended from treatment (May 2008), as evidenced by his deliberate procrastination to signing his [ ] contract, as well as the letter that was written on his behalf by his roommate, [Iczkovitz].
In May 2008, after being in [treatment] for nearly [eight] months, [Petitioner] put
[125 Hawai'i 119 , 254 P.3d 430]
himself in a “high risk” situation[.] This incident caused [Petitioner] to be suspended from treatment as well as be placed on a [ ] contract with [Charities]. The [ ] contract appears to have instigated a letter written by [Petitioner's] friend/roommate [Iczkovitz].
....
A few things that were learned from [Petitioner's] polygraph are of an immense concern. First of all, [Petitioner] has had four (4) other sexual assault victims, which does not include the victim in his current case. Secondly, [Petitioner] ... has previously slept with students and clients. As mentioned in the termination letter from [Charities], [Petitioner] does seem to understand how his past behaviors need to be changed before engaging in further relationships with women. Without this understanding, it is felt that [Petitioner] is at a high risk to once again commit another assault. Perhaps jail time would give [Petitioner] an opportunity to internalize his actions and to understand that he is not a victim ....
[Petitioner] did not receive any jail time at the time of sentencing, however, a...
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