State v. Villiarimo.

320 P.3d 874, 132 Haw. 209, 2014 WL 551577, 2014 Haw. LEXIS 70
CourtHawaii Supreme Court
DecidedFebruary 12, 2014
DocketSCWC-10-0000109
StatusPublished
Cited by8 cases

This text of 320 P.3d 874 (State v. Villiarimo.) is published on Counsel Stack Legal Research, covering Hawaii Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Villiarimo., 320 P.3d 874, 132 Haw. 209, 2014 WL 551577, 2014 Haw. LEXIS 70 (haw 2014).

Opinions

Opinion of the Court by

ACOBA, J.

We hold that the Family Court of the Second Circuit (the court)1 abused its discretion in denying the request for a continuance made by Petitioner/Defendant-Appellee Joseph D. Villiarimo (Villiarimo). The court failed to give reasons for its decision to deny the continuance, making the denial effectively unreviewable on appeal. Moreover, in probation modification or probation revocation hearings, courts should apply a “good cause” standard for determining whether a continuance should be granted, in recognition of the nature of probation hearings. Lastly, for purposes of determining whether a defendant has “inexcusably failed to comply with a substantial requirement imposed as a condition of the [probation] order ... [,] ” Hawai'i Revised Statutes (HRS) § 706-625(3) (Supp. 2004)2, courts should consider (1) whether the probationer’s actions were intentional, and (2) whether the probationer’s actions, if intentional, were a deliberate attempt to circumvent the court’s probation order, considering the goals of sentencing the defendant to probation.

I.

Villiarimo applied for a writ of certiorari (Application) from the May 8, 2010 Judgment of the Intermediate Court of Appeals (ICA), filed pursuant to its March 28, 2013 Summary Disposition Order (SDO). This court granted certiorari review of the ICA’s affirmation of the order revoking Villiarimo’s probation and re-sentencing him.

A

On January 30, 2009, Villiarimo entered a no contest plea to a charge of sexual assault in the third degree, and the court sentenced him to five years of probation, that included 149 days of incarceration. In May 2009, Villiarimo entered into a three-month stay at the Aloha House residential dual diagnosis treatment program following a mental health or drug-related “episode” that required him to be stabilized.3 At Aloha House, he was prescribed the medications Wellbutrin and Seroquel. By October 2009, Villiarimo was living in “regular housing” and at some point started using crystal methamphetamine. He testified that “[a]s soon as [he] started using again, [he] didn’t take [his] medication anymore.”

After Villiarimo tested positive for methamphetamine use, in violation of his probation, Villiarimo’s probation officer (the officer), filed a written motion for modification of the terms and conditions of Villiarimo’s probation on October 30, 2009 (First Motion).4 A hearing regarding this First Motion for modification was held on November 2, 2009. That same day, the court filed a mittimus committing Villiarimo to jail, “effective immediately” for a period of eight days. On November 13, 2009, the court entered an order modifying Villiarimo’s probation for “inexcusably failing] to refrain from use ... [of] illegal drug[s] ... as directed by the court or probation officer.”

According to Villiarimo’s testimony at a later hearing, discussed below, during the time prior to the First Motion, Villiarimo had “detoxed [from meth] on [his] own at [his] house” after he was found “guilty for relapsing” but still did not take his medication. During his eight-day stay in jail, he was not given his prescribed medication. The jail [212]*212offered Haldol to him, but Villiarimo did not take it because he experienced adverse effects from it in the past.5 Villiarimo was apparently discharged from jail on November 10, 2009.

B.

On December 7, 2009, the officer filed a second written motion, requesting a modification of the terms and conditions of Villiari-mo’s probation and for revocation of Villiari-mo’s probation, pursuant to HRS § 706-625 (Second Motion). She alleged that Villiari-mo: (1) failed to report to a probation officer on November 30, 2009, in violation of Condition 2 of the terms and conditions of probation; (2) failed to maintain mental health treatment services on November 19, 2009 by not attending a preliminary interview for a treatment program, in violation of Special Condition J; and (3) failed to participate in the sexual offender treatment program, because he was suspended from the program on November 30, 2009 for excessive absences and failure to accept responsibility, in violation of Special Condition P.

On December 16, 2009, Villiarimo’s counsel moved for a mental examination to determine whether Villiarimo was fit to proceed under HRS § 704-404.6 On December 22, 2009 the court suspended proceedings for an examination of Villiarimo’s fitness. After all three of Villiarimo’s examiners opined that he was not fit to proceed, the court found Villiarimo unfit to proceed, suspended the proceedings under HRS § 704—406(1),'7 and committed him to the custody of the Director of Health on March 11, 2010.

That same day, Villiarimo was admitted to Hawaii State Hospital (HSH). He was started on antipsychotic medication as well as medication for Attention Deficit Disorder (ADD) in mid March. On April 6, 2010, he was transferred from Unit H, the admission unit, to Unit S for further psychosocial care. Also on that day, Dr. Joan H. Fukumoto (Dr. Fukumoto) became Villiarimo’s attending psychiatrist. After the unit transfer, Villiari-mo did not exhibit any overt mood or psychotic symptoms, or any aggressive behavior.

On April 9, 2010, Villiarimo was evaluated for trial competence with the use of the Revised Competency Assessment Instrument (R-CAI). The results suggested that Villiari-mo possessed the capacity to proceed. On April 16, 2010, Dr. Fukumoto wrote a letter to Ms. Janice Futa, prosecuting attorney, requesting a three member panel examination of Villiarimo’s fitness to proceed, reporting the R-CAI results and her own findings on Villiarimo’s fitness. After three examiners opined Villiarimo was fit to proceed, the court resumed proceedings on August 16, 2010.

C.

On September 30, 2010, the court held an evidentiary hearing on the officer’s Second Motion. At the hearing, Respondeni/Plain-tiff-Appellee State of Hawaii (the State) called the officer as its witness. On cross-examination, Villiarimo’s counsel asked the officer if she had an opinion on whether [213]*213Villiarimo was “decompensating” in October 2009.8 However, the court only allowed the officer to testify to what she saw after inquiring whether the officer knew the “medical” meaning of decompensation:

MS. HUDSON [(defense counsel)]: And did you see a change in his behavior more like decompensation starting in lake October?
THE COURT: Are you s[ay]ing that in a technical sense?
MS. HUDSON: I’ll say it in the—yes, in a technical sense.
THE COURT: Decompensation is a medical term. Do you know what that means from a medical point of view?
[The officer]: Well, not—if you define it for me.
THE COURT: No, she’s asking whether you have an opinion about whether he had any decompensation.
[The officer]: Well, he wasn’t—

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Cite This Page — Counsel Stack

Bluebook (online)
320 P.3d 874, 132 Haw. 209, 2014 WL 551577, 2014 Haw. LEXIS 70, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-villiarimo-haw-2014.