State v. Kahawai

83 P.3d 744, 103 Haw. 481, 2003 Haw. App. LEXIS 374
CourtHawaii Intermediate Court of Appeals
DecidedDecember 17, 2003
DocketNo. 25101
StatusPublished
Cited by2 cases

This text of 83 P.3d 744 (State v. Kahawai) is published on Counsel Stack Legal Research, covering Hawaii Intermediate Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Kahawai, 83 P.3d 744, 103 Haw. 481, 2003 Haw. App. LEXIS 374 (hawapp 2003).

Opinions

Opinion of the Court by

BURNS, C.J.

Defendant-Appellant Margaret H. Kaha-wai (Margaret) appeals from the family court’s April 16, 2002 Judgment convicting her of three counts of Violation of an Order for Protection, Hawaii Revised Statutes (HRS) § 586-11 (2002). We affirm in part, vacate in part, and remand with instructions.

The family court’s Order for Protection, entered on July 3, 2001, ordered that Margaret “not enter or remain within 300 yards of any home or shelter where the other party is staying on a temporary basis.” “[T]he other party” was Margaret’s ex-husband, Chanley Kahawai (Chanley).

On April 12, 2002, a bench trial was held. Judge Terence T. Yoshioka decided that Margaret knowingly violated the July 3, 2001 Order for Protection by visiting Chanley’s home twice on October 11, 2001 and once on October 12, 2001. The Judgment sentenced Margaret to probation for two years, subject to the following special terms and conditions:

1. To attend a domestic violence intervention program as recommended by her Probation Officer and approved by the court and to pay the fees and costs for it.

2. To pay a Criminal Injuries Compensation fee of $150.00 and a probation fee of $150.00.

3. That Margaret “shall obtain a substance abuse assessment from a qualified evaluator selected by [her] Probation Officer and to faithfully and regularly undertake the course of treatment, if any, recommended by the assessment until [she is] clinically discharged within 14 days.”

4. That Margaret “shall submit [herself] to random testing for drugs and/or for alcohol within three (3) hours after [her] Probation Officer has requested such testing. [She] will be considered to have tested positive for the substance which the Probation Officer referred [her] for testing if [she] fail[s] to the take the test. [She] shall always have with [her] sufficient monies to pay for the testing.”

5. That Margaret “shall not use any narcotic drugs or controlled substances without first obtaining a prescription for such drugs or substance.”

6. To comply with the reasonable instructions of her probation officer. .

7. To comply with all existing court orders.

POINT ON APPEAL

Margaret contends that the court erred in imposing special conditions “3,” “4,” and “5” quoted above. Margaret argues that the court was not authorized to impose these special conditions because they were not, as required by HRS § 706-624(2) (1993), reasonably related to the factors set forth in HRS § 707-606 (1993).

RELEVANT STATUTES

HRS § 706-601 (Supp.2002) states, in relevant part, as follows:

Pre-sentence diagnosis and report. (1) Except as provided in subsections (3) and (4), the court shall order a pre-sentence correctional diagnosis of the defendant and accord due consideration to a written report of the diagnosis before imposing sentence where:
(a) The defendant has been convicted of a felony; or
[483]*483(b)The defendant is less than twenty-two years of age and has been convicted of a crime.
(2)' The court may order a pre-sentence diagnosis in any other case.
(3) With the consent of the court, the requirement of a pre-sentence diagnosis may be waived by agreement of both the defendant and the prosecuting attorney.

HRS § 706-604 (1993) states, in relevant part, as follows:

Opportunity to be heard with respect to sentence; notice of pre-sentence report; opportunity to controvert or supplement; transmission of report to department. (1) Before imposing sentence, the court shall afford a fair opportunity to the defendant to be heard on the issue of the defendant’s disposition.
(2) The court shall furnish to the defendant or the defendant’s counsel and to the prosecuting attorney a copy of the report of any pre-sentence diagnosis or psychological, psychiatric, or other medical examination and afford fair opportunity, if the defendant or the prosecuting attorney so requests, to controvert or supplement them.
(3) In all circuit court cases, the court shall afford a fair opportunity to the victim to be heard on the issue of the defendant’s disposition, before imposing sentence. The court, service center, or agency personnel who prepare the pre-sentence diagnosis and report shall inform the victim of the sentencing date and of the victim’s opportunity to be heard.

HRS § 706-606 states, in relevant part, as follows:

Factors to be considered in imposing a sentence. The court, in determining the particular sentence to be imposed, shall consider:
(1) The nature and the circumstances of the offense and the history and characteristics of the defendant;
(2) The need for the sentence imposed: (a) To reflect the seriousness of the offense, to promote respect for law, and to provide just punishment for the offense;
(b) To afford adequate deterrence to criminal conduct;
(c) To protect the public from further crimes of the defendant; and
(d) To provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner[.]

HRS § 706-624(2) states, in relevant part, as follows:

(2) Discretionary conditions. The court may provide, as further conditions of a sentence of probation, to the extent that the conditions are reasonably related to the factors set forth in section 706-606 and to the extent that the conditions involve only deprivations of liberty or property as are reasonably necessary for the purposes indicated in section 706-606(2), that the defendant:
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(i) Refrain from use of alcohol or any use of narcotic drugs or controlled substances without a prescription;
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(k) Undergo available medical, psychiatric, or psychological treatment, including treatment for drug or alcohol dependency, and remain in a specified institution if required for that purpose;
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(m) Submit to periodic urinalysis or other similar testing procedure!.]

STANDARD OF REVIEW

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Related

State v. Kahawai
83 P.3d 725 (Hawaii Supreme Court, 2004)

Cite This Page — Counsel Stack

Bluebook (online)
83 P.3d 744, 103 Haw. 481, 2003 Haw. App. LEXIS 374, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-kahawai-hawapp-2003.