State v. Anzalone

• Decision Date: 12 May 2022
• Docket Number: CAAP-18-0000880
• Parties: STATE of Hawai‘i, Plaintiff-Appellee, v. Dawn ANZALONE, Defendant-Appellant.
• Court: Hawaii Court of Appeals

151 Hawai‘i 132

508 P.3d 1218 (Table)

STATE of Hawai‘i, Plaintiff-Appellee,

v.Dawn ANZALONE, Defendant-Appellant.

NO. CAAP-18-0000880

Intermediate Court of Appeals of Hawai‘i.

May 12, 2022

On the briefs:

Damir Kouliev, for Defendant-Appellant.

Gerald K. Enriques, Deputy Prosecuting Attorney, County of Maui, for Plaintiff-Appellee.

(By: Ginoza, Chief Judge, Nakasone and McCullen, JJ.)

SUMMARY DISPOSITION ORDER

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." 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."

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 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...