State v. Shannon

• Decision Date: 29 May 2008
• Docket Number: No. 27919.,27919.
• Citation: 185 P.3d 200,118 Haw. 15
• Parties: STATE of Hawai`i, Petitioner/Plaintiff-Appellee v. Eric K. SHANNON, Respondent/Defendant-Appellant.
• Court: Hawaii Supreme Court

185 P.3d 200

118 Haw. 15

STATE of Hawai`i, Petitioner/Plaintiff-Appellee v. Eric K. SHANNON, Respondent/Defendant-Appellant.

No. 27919.

Supreme Court of Hawai'i.

May 29, 2008.

Anne K. Clarkin, Deputy Prosecuting Attorney, City and County of Honolulu, on the application and brief, for petitioner/plaintiff-appellee.

Hayden Aluli, on the brief, Honolulu, for respondent/defendant-appellant.

MOON, C.J., LEVINSON, ACOBA, and DUFFY, JJ.; and NAKAYAMA, J., Dissenting.

Opinion of the Court by ACOBA, J.

Petitioner/Plaintiff-Appellee State of Hawai'i (Petitioner) seeks review of the October 17, 2007 Judgment of the Intermediate Court of Appeals (ICA),¹ entered pursuant to its published opinion² filed on September 28, 2007, see State v. Shannon, 116 Hawai`i 38, 169 P.3d 990 (App.2007), vacating the April 6, 2006 Judgment of the District Court of the First Circuit, Kaneohe Division (the court)³ revoking the Deferred Acceptance of Guilty Plea (DAGP) granted to Respondent/Defendant-Appellant Eric K. Shannon (Respondent) and convicting him of criminal trespass in the second degree, in violation of HRS § 706-814(a)(1) (1993).⁴

We hold that (1) under HRS § 853-1 (1993 & Supp.2007),⁵ referring to a DAGP, and incorporating HRS § 706-624 (1993 & Supp. 2007),⁶ pertaining to probation, the defendant must be given a written copy of the conditions imposed pursuant to his or her DAGP, (2) an "actual notice" rule such as that applied by federal courts cannot be validly substituted for the written notice required by our statutes, (3) Respondent was not given a written copy of his conditions, and, therefore, under State v. Lee, 10 Haw.App. 192, 862 P.2d 295 (1993), his DAGP could not be revoked by the court, (4) further, consistent with the written conditions requirement and HRS § 853-3 (1993) as it is construed with HRS § 706-627(1) (1993), a motion to revoke a DAGP for failure to comply with its conditions must be in writing, (5) Petitioner did not file a written motion to revoke Respondent's DAGP, therefore, (a) Respondents's period of deferral was not tolled, and (b) the deferral period expired before the court ruled on the motion to revoke. Accordingly, Respondent's DAGP could not be revoked and Petitioner's motion to revoke must be dismissed with prejudice. Ultimately, then, the ICA did not gravely err in vacating the court's judgment. See Shannon, 116 Hawai`i at 39, 169 P.3d at 991.

I.

The following matters adduced are from the record and the submissions of the parties. On February 11, 2005, Petitioner charged Respondent with criminal trespass in the second degree via amended complaint,⁷ according to Petitioner. Respondent entered a guilty plea and orally moved for DAGP. The court granted Respondent's motion for DAGP and deferred Respondent's plea for one year, provided that Respondent "[(1)] remain arrest and conviction free for that period, [(2)] ... complete forty hours of community service, and [(3)] ... pay a `CICF'⁸ fee of twenty-five dollars." Respondent's Proof of Compliance hearing was set for January 27, 2006.

At the January 27, 2006 proof of compliance hearing, Petitioner orally moved to have Respondent's DAGP revoked, and the court continued the hearing to March 26, 2006. On March 24, 2006, the court again continued the hearing, until April 6, 2006.

At the April 6, 2006 hearing, Respondent made several motions related to the DAGP. First, Respondent moved to have his forty hours of community service converted to a fine.⁹ The court denied the motion. Next, Respondent requested another continuance "so that he could obtain a transcript of [his] change-of-plea hearing" because defense counsel believed there might be grounds to vacate his plea. The court denied that motion without prejudice, noting that "it [has] taken over a year for that motion to [be] file[d,]" and its "general practice" of allowing the withdrawal of DAGPs only "relucant[ly]."

Having disposed of Respondent's motions, the court considered Petitioner's motion to revoke Respondent's DAGP. Petitioner introduced a probation report indicating that Respondent had been arrested on August 12, 2005.¹⁰ Respondent objected to the introduction of the probation report on the grounds that it was inadmissible hearsay and because it violated Respondent's right to "confront[ ] ... whatever evidence is going to be adduced against him...." Ultimately, the court took judicial notice that Respondent had been arrested subsequent to entering his DAGP.

As to revocation of the DAGP, Respondent argued that [the court] lacked jurisdiction to set aside the DAG[P] because the deferral period had already expired. In other words, the prosecutor's oral motion to set aside the DAG[P] did not toll the deferral period as a matter of law because [Petitioner] did not file a motion as required pursuant to [HRS] § 706-626 [sic, presumably HRS § 706-627¹¹].

(Emphasis added.) Alternatively, relying on Lee, Respondent argued that his DAGP could not be revoked for failure to comply with conditions because Petitioner had not "show[n] proof that [Respondent] had received written notification" of those conditions. Finally, Respondent argued that the condition that he remain "arrest and conviction free" during the deferral period was improper because "[t]here is no condition ... under [HRS §] 706-624 that permits any type of prohibition to be arrest free."

Ultimately, the court revoked Respondent's DAGP,

[b]ased on the report from the probation office, based on the [c]ourt's judicial notice that certain charges have been filed against [Respondent], ... and the [c]ourt's finding that of the [forty] hours of community service that [Respondent] was ordered to ... complete, [Respondent] has not completed any of those hours of community service.

Thus, the court accepted Respondent's guilty plea, adjudged him guilty and imposed fines totaling $225.

II.

On appeal to the ICA, Respondent alleged that "[the court] committed reversible error" (1) in finding "that the period of deferral had been tolled by [Petitioner's] oral motion on January 27, 2006, to set aside [Respondent's] DAG[P]," (2) in "reviewing a hearsay probation report without making a finding that the probation officer was unavailable to testify in violation of the due process and the confrontation clauses[,]" (3) in "set[ting] aside the DAG[P] without any evidence that [Respondent] had signed in writing the conditions of the deferral[,]" (4) because the court "lacked statutory authority to impose a DAG[P] condition that [Respondent] remain arrest free[,]" (5) in "refus[ing] to convert [Respondent's] community service to a fine[,]" and (6) in "den[ying Respondent's] motion to continue the matter to permit him to obtain a transcript of the change-of-plea hearing in order to determine whether grounds exist, in addition to a native tenant rights defense, to vacate" the DAGP.

III.

The ICA found Respondent's third issue on appeal to be dispositive and held that the court "erred in setting aside [Respondent's] DAG[P] because [Respondent] did not receive a written copy of the conditions of his DAG[P]." Shannon, 116 Hawai`i at 39, 169 P.3d at 991 (boldfaced font omitted). The ICA stated that HRS § 853-1(b) (Supp. 2007)<sup>12</sup> "incorporates and permits courts accepting DAG[Ps] to impose any conditions enumerated in HRS § 706-624." Id. at 40, 169 P.3d at 992 (citing State v. Kaufman, 92 Hawai`i 322, 329, 991 P.2d 832, 839 (2000); State v. Dannenberg, 74 Haw. 75, 82, 837 P.2d 776, 779 (1992)).

The ICA rejected Petitioner's argument that Respondent's "receipt of actual, oral notice [of the conditions of his DAGP] at the February 11, 2005 hearing was sufficient." Id. The ICA reasoned that Petitioner's position was incorrect under Lee. It explained that the legislative intent underlying HRS § 706-624 precluded reliance on actual notice in lieu of written notice of conditions. It declared that

[t]he intent of HRS § 706-624 is to provide the defendant with notice of what is expected of him in a form which will not escape his memory.

....

The requirement of HRS § 706-624(3) that a defendant be provided with a written statement of the conditions of his probation also provides assurance that a defendant will know the exact terms and conditions of his probation before his probation can be revoked for failure to comply with the terms and conditions.

Id. (quoting Lee, 10 Haw.App. at 198, 862 P.2d at 298) (ellipsis points in original). Although the ICA acknowledged that the court's calendar indicated that on February 11, 2005, the court orally advised Respondent of the conditions of his DAGP, it was observed that "there is no evidence in the record that [Respondent] received a written copy of his conditions. [Respondent] contends that he did not receive a written copy, and [Petitioner] does not contend otherwise." Id. Accordingly, the ICA vacated the court's April 6, 2006 decision to revoke Respondent's DAGP and "remanded for further proceedings consistent with this opinion." Id.

IV.

In its application for certiorari, Petitioner presents a single question, "whether the ICA gravely erred in vacating the trial court's decision to set aside [Respondent's] DAG[P], notwithstanding his actual notice of the terms and conditions thereof."

V.

The revocation of a DAGP is reviewed for an abuse of discretion. See Kaufman, 92 Hawai`i at 326-27, 991 P.2d at 836-37 (stating that, like "[t]he grant or denial of a DAG[P]," the "setting aside, or revoking a DAG[P] is properly within the discretion of the trial court. Generally, to constitute an abuse, it must appear that the court clearly exceeded the bounds of reason or disregarded rules or principles of law or practice to the substantial detriment of the party litigant.") Similarly, sentencing decisions are also reviewed under the abuse of discretion standard. See State v. Davia, 87 Hawai`i 249, 253, 953 P.2d 1347, 1351-52 (1998) ("The authority of a trial court to select and determine the severity of a penalty...