FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed Intermediate Court of Appeals CAAP-XX-XXXXXXX 29-JUL-2024 08:01 AM Dkt. 134 OP IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
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STATE OF HAWAI#I, Plaintiff-Appellee, v. KAMALEI WILBUR-DELIMA, Defendant-Appellant
CAAP-XX-XXXXXXX
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT (CR. NOS. 1PC151000955, 1PC151001274, 1PC151001978, and 1PC161001506)
JULY 29, 2024
LEONARD, ACTING CHIEF JUDGE, HIRAOKA AND WADSWORTH, JJ.
OPINION OF THE COURT BY LEONARD, ACTING CHIEF JUDGE
Defendant-Appellant Kamalei Wilbur-Delima (Wilbur-
Delima) appeals from the May 26, 2023 Orders Denying Defendant's
Motion to Correct Illegal Sentence (May 26, 2023 Orders),1
entered by the Circuit Court of the First Circuit (Circuit
Court),2 as well as the Circuit Court's April 10, 2023 Findings
of Fact; Conclusions of Law; Order Denying Defendant's Motion to
1 The May 26, 2023 Orders denied Wilbur-Delima's request to correct his sentences in 1PC151000955, 1PC151001978, and 1PC161001506. 2 The Honorable Trish K. Morikawa presided. FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Correct Illegal Sentence (April 10, 2023 Order)3 (together,
Orders Denying Correction of Illegal Sentences). In four
December 13, 2022 Resentencing Orders, the Circuit Court revoked
Wilbur-Delima's probation, and resentenced him to a term of ten
years imprisonment in 1PC151000955, and five years in
1PC151001274, 1PC151001978, and 1PC161001506, all to be served
concurrently.
The fundamental issue in this appeal is whether Hawaii
Revised Statutes (HRS) §§ 706-625(1), (4) (2014) and 706-627(1)
(2014), read in pari materia, exclude "motions to modify"
probation from motions that toll a defendant's probation. For
the reasons stated herein, we hold that a motion to modify
probation that seeks to enlarge a condition of probation is a
tolling motion. Affirmed.
I. BACKGROUND
A. June 15, 2015 - April 26, 2017
On June 16, 2015, the State of Hawai#i (State) charged
Wilbur-Delima via grand jury indictment with one count of Robbery in the Second Degree, in violation of HRS §§ 708-841(1)(a) (2014)
and/or 708-841(1)(b) (2014), in 1PC151000955. On August 17,
2015, the State charged Wilbur-Delima via felony information with
one count of Attempted Escape in the Second Degree, in violation
of HRS §§ 705-500(1)(b) (2014) and 710-1021 (2014), in
3 The April 10, 2023 Order denied Wilbur-Delima's motion to correct his sentence in 1PC151001274. Wilbur-Delima's notice of appeal also purported to appeal from the December 13, 2022 Orders of Resentencing, Revocation of Probation (Resentencing Orders). However, at the June 26, 2024 oral argument on this appeal, Wilbur-Delima's attorney acknowledged that the notice of appeal was untimely as to the Resentencing Orders and stated that Wilbur- Delima was only seeking appellate review of the Orders Denying Correction of Illegal Sentences.
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1PC151001274. Wilbur-Delima pled guilty in 1PC151001274 and
1PC151000955 on December 2, 2015.
On December 16, 2015, the State charged Wilbur-Delima
via felony information with one count of Promoting a Dangerous
Drug in the Third Degree, in violation of HRS § 712-1243 (2014),
in 1PC151001978. Wilbur-Delima pled guilty in 1PC151001978 on
February 3, 2016.
On July 20, 2016, the Circuit Court4 entered a judgment
of conviction, sentencing Wilbur-Delima to concurrent four years
probation in 1PC151001274, 1PC151001978, and 1PC151000955.
On September 14, 2016, the State filed a motion to
revoke Wilbur-Delima's probation in 1PC151001274 and requested
resentencing for Wilbur-Delima's inexcusable violation of
multiple conditions of his probation.
On September 21, 2016, the State charged Wilbur-Delima
via complaint with Habitual Property Crime, in violation of HRS
§ 708-803 (Supp. 2023), in 1PC161001506. Wilbur-Delima pled no
contest in 1PC161001506 on November 29, 2016.
The State filed motions to revoke Wilbur-Delima's
probation in 1PC151001978 and 1PC151000955 on December 8, 2016,
asserting that Wilbur-Delima violated multiple conditions of his
probation and requested resentencing to a term of imprisonment.
The Circuit Court5 entered a judgment of conviction on
April 26, 2017, sentencing Wilbur-Delima to four years probation
in 1PC161001506. Simultaneous with the April 26, 2017 judgment,
4 The Honorable Dexter D. Del Rosario presided. 5 The Honorable Glenn J. Kim presided.
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the Circuit Court granted the State's motions to revoke Wilbur-
Delima's probation and resentenced him to four years probation in
1PC151001274, 1PC151001978, and 1PC151000955. The Circuit Court
ordered the four-year probation terms in 1PC151001274,
1PC151001978, 1PC151000955, and 1PC161001506 (collectively,
Subject Cases) to run concurrently.
B. June 30, 2017 - Present
On June 30, 2017, Wilbur-Delima entered Hawaii's
Opportunity Probation with Enforcement (HOPE) Probation Program6
and attended a HOPE Warning hearing with the Circuit Court.7
The court addressed Wilbur-Delima and explained the consequences
of non-compliance with HOPE Probation. Between November 8, 2017,
and February 28, 2020, the State filed ten "Motion[s] for
Modification of the Terms and Conditions of Probation, Deferred
Acceptance of Guilty Plea or Deferred Acceptance of No Contest
Plea" (Motions to Modify) and/or "Motion[s] for Modification
and/or Enlargement of Terms and Conditions of Probation, Deferred
Acceptance of Guilty Plea or Deferred Acceptance of No Contest Plea" (Motion to Enlarge), alleging that Wilbur-Delima violated
one or more conditions of his probation. Wilbur-Delima
6 Hope Probation operates on a zero tolerance basis, where Probationers in the program receive swift, predictable, and immediate sanctions – typically resulting in several days in jail – for each detected violation, such as detected drug use or missed appointments with a probation officer. Inst. for Behav. and Health, Inc., Robert L. DuPont, State of the Art of HOPE Probation, at 1-4 (2015), https://www.courts.state.hi.us/docs/news and reports docs/State of %20the Art of HOPE Probation.pdf. "When HOPE probationers demonstrate repeatedly that they are unable to succeed under community supervision, and are not referred to the Honolulu Drug Court, their probation may be revoked and the probationer sent to prison." Id. at 51. 7 The Honorable William M. Domingo presided.
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stipulated to the violations in every one of the State's ten
motions. The motions, and corresponding orders granting them,
are as follows:
1. Motion to Modify filed November 8, 2017. The State alleged that Wilbur-Delima failed to maintain substance abuse treatment until clinically discharged and failed to report to his probation officer. The Circuit Court issued an "Order Granting [Motion to Modify]" (Order Granting Modification) on December 12, 2017, and ordered Wilbur-Delima to serve jail time (with credit for time served) and to report to his probation officer after release from custody. Wilbur-Delima served approximately 29 days in jail.
2. Motion to Modify filed February 9, 2018. The State alleged that Wilbur-Delima admitted to using methamphetamine and failed to maintain substance abuse treatment until clinically discharged. The Circuit Court issued an Order Granting Modification on February 27, 2018, ordering Wilbur-Delima to serve jail time (with credit for time served) and to report to his probation officer after release from custody.8 Wilbur-Delima served approximately 20 days in jail.
3. Motion to Modify filed April 17, 2019. The State alleged that Wilbur-Delima refused to submit or failed to submit to urinalysis within thirty minutes of instruction on April 16, 2019. The Circuit Court issued an Order Granting Modification on April 30, 2019, ordering Wilbur-Delima to serve one day of incarceration in the court's cellblock, and upon release, report to his probation officer.
4. Motion to Modify filed June 3, 2019. The State alleged that Wilbur-Delima admitted to using alcohol on May 31, and June 1, 2019, and methamphetamine on June 1, 2019. The Circuit Court issued an Order Granting Modification on June 5, 2019, and ordered Wilbur-Delima to serve jail time equal to time served and to report to his probation officer immediately upon release. Wilbur- Delima served approximately 3 days in jail.
5. Motion to Modify filed July 23, 2019. The State alleged that Wilbur-Delima refused to submit or failed
8 The State filed a motion for revocation of probation and resentencing on February 21, 2018 (after filing the February 9, 2018 Motion to Modify) only in criminal number 1PC151001274. The Circuit Court denied the motion, and treated it as a motion to modify, which as noted, the court granted.
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to submit to urinalysis within thirty minutes of instruction on July 22, 2019. The Circuit Court issued an Order Granting Modification on July 30, 2019, ordering that Wilbur-Delima be counseled and then released to his probation officer.
6. Motion to Modify filed August 5, 2019. The State alleged that Wilbur-Delima refused to submit to urinalysis or failed to submit to urinalysis within thirty minutes of instruction on August 2, 2019. The Circuit Court issued an Order Granting Modification on August 14, 2019, sentencing Wilbur-Delima to one day incarceration and to report to his probation officer.
7. Motion to Modify filed August 28, 2019. The State alleged that Wilbur-Delima refused to submit or failed to submit to urinalysis within thirty minutes of instruction on August 28, 2019. The Circuit Court issued an Order Granting Modification on September 11, 2019, sentencing Wilbur-Delima to three days in jail, to be served from September 13, 2019, to September 15, 2019, and then report to his probation officer.
8. Motion to Modify filed September 17, 2019. The State alleged that Wilbur-Delima failed to report to his probation officer as ordered on September 16, 2019. The Circuit Court issued an Order Granting Modification, sentencing Wilbur-Delima to serve three days in jail from October 4, 2019, to October 6, 2019, and to then immediately report to his probation officer upon release.
9. Motion to Modify filed October 7, 2019. The State alleged that Wilbur-Delima had a positive drug test for methamphetamine on September 30, 2019, admitted to using methamphetamine on September 29, 2019, and submitted an altered urine test on September 30, 2019. The Circuit Court issued an Order Granting Modification on November 6, 2019, sentencing Wilbur-Delima to a jail term equal to time served (approximately 30 days) and to report to his probation officer upon release.
10. Motion to Enlarge filed February 28, 2020. The State alleged that Wilbur-Delima refused to submit or failed to submit to urinalysis within thirty minutes of instruction on February 27, 2020, and failed to report to his probation officer as ordered on February 27, 2020. The Circuit Court issued an "Order Granting [Motion for Enlargement]" (Order Granting Enlargement) on June 24, 2020, sentencing Wilbur-Delima to serve a term of incarceration equal to credit for time served, and to schedule an appointment with his probation
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officer within 24 hours of release from custody. Wilbur-Delima served approximately 41 days in jail.
On November 23, 2021, in 1PC161001506, 1PC151001978,
1PC151000955, and November 30, 2021, in 1PC151001274, the State
filed the "Motion[s] for Revocation of Probation, Resentencing
and Issuance of Summons" (Motions for Revocation), asserting that
Wilbur-Delima failed to maintain substance abuse treatment until
clinically discharged.
On February 18, 2022, Wilbur-Delima stipulated to the
violations in the State's Motions for Revocation; the Circuit
Court orally granted the State's motions, allowed Wilbur-Delima
another opportunity to complete substance abuse treatment at
Kaiser, and continued resentencing to March 22, 2022. Wilbur-
Delima failed to appear at the continued resentencing hearings
held on March 22, 2022, and April 5, 2022. A bench warrant was
issued for Wilbur-Delima's arrest on April 5, 2022, and Wilbur-
Delima was arrested on April 22, 2022. On May 17, 2022, the
court granted Wilbur-Delima's request for a continuance in order
to reapply to drug court. Wilbur-Delima was denied admission to
drug court on October 12, 2022. On December 6, 2022, the State
convicted Wilbur-Delima of two additional felonies, Habitual
Property Crime in lCPC-XX-XXXXXXX and Unauthorized Entry into
Motor Vehicle in the First Degree in lCPC-XX-XXXXXXX.
On December 13, 2022, the Circuit Court issued the
Resentencing Orders, revoking Wilbur-Delima's probation, and
sentencing him to concurrent sentences in the Subject Cases with
the longest term of ten years levied in 1PC151000955. On
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February 15, 2023, Wilbur-Delima filed his Motions to Correct
Illegal Sentence (Motions to Correct), asserting that the court
did not have jurisdiction to revoke or modify his probation
because the State's Motions to Modify did not toll his probation,
and therefore, as of August 21, 2021, the court's supervision
lapsed.
Thereafter, the Circuit Court issued the Orders Denying
Correction of Illegal Sentences. The Circuit Court found that
eight of the State's Motions to Modify enlarged the terms and
conditions of Wilbur-Delima's probation, thereby tolling his
probation for 257 days, and extending his probation period to
January 8, 2022.
Wilbur-Delima filed a notice of appeal on June 23,
2023.
II. POINTS OF ERROR
Wilbur-Delima raises two points of error on appeal
contending that the Circuit Court erred in: (1) granting the
Motions for Revocation, and ignoring and/or overruling prior
orders modifying Wilbur-Delima's probation that did not extend
his concurrent four-year terms, and sentencing him to
indeterminate prison terms; and (2) denying Wilbur-Delima's
Motions to Correct and finding that Wilbur-Delima was still on
probation and under the court's jurisdiction on November 23,
2021.9
9 Although there was a passing reference to a notice issue in Wilbur-Delima's opening brief, at oral argument, Wilbur-Delima's attorney clearly stated that they were proceeding only based on their statutory (continued...)
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III. APPLICABLE STANDARDS OF REVIEW A sentencing judge generally has broad discretion in imposing a sentence. The applicable standard of review for sentencing or resentencing matters is whether the court committed plain and manifest abuse of discretion in its decision. Factors which indicate a plain and manifest abuse of discretion are arbitrary or capricious action by the judge and a rigid refusal to consider the defendant's contentions. And, 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 a party litigant.
State v. Mundon, 121 Hawai#i 339, 349, 219 P.3d 1126, 1136 (2009)
(quoting State v. Kahapea, 111 Hawai#i 267, 278, 141 P.3d 440,
451 (2006)).
Statutory interpretation is a question of law
reviewable de novo. In reviewing questions of statutory
interpretation, we are guided by the following principles: First, the fundamental starting point for statutory-interpretation is the language of the statute itself. Second, where the statutory language is plain and unambiguous, our sole duty is to give effect to its plain and obvious meaning. Third, implicit in the task of statutory construction is our foremost obligation to ascertain and give effect to the intention of the legislature, which is to be obtained primarily from the language contained in the statute itself. Fourth, when there is doubt, doubleness of meaning, or indistinctiveness or uncertainty of an expression used in a statute, an ambiguity exists.
State v. Milne, 149 Hawai#i 329, 333, 489 P.3d 433, 437 (2021)
(quoting State v. Castillon, 144 Hawai#i 406, 411, 443 P.3d 98,
103 (2019)). When there is ambiguity in a statute, the meaning of the ambiguous words may be sought by examining the context, with which the ambiguous words, phrases, and sentences may be compared, in order to ascertain their true meaning. Moreover, the courts may resort to extrinsic aids in determining legislative intent, such as legislative history, or the reason and spirit of the law.
9 (...continued) interpretation arguments and not based on any alleged lack of notice that his probation had been extended.
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State v. Abihai, 146 Hawai#i 398, 406, 463 P.3d 1055, 1063 (2020)
(citation omitted).
IV. DISCUSSION
A. Timeliness of Appeals
The State challenges this court's jurisdiction over
Wilbur-Delima's appeal from the Resentencing Orders and the April
10, 2023 Order based on the untimeliness of the filing of the
notice of appeal. As noted above, at oral argument, Wilbur-
Delima declined to argue that this court should grant relief
directly from the Resentencing Orders, instead urging us to
"relax the deadline" in the appeal from the April 10, 2023 Order.
Hawai#i appellate courts often reach the merits of a
criminal defendant's appeal, notwithstanding a failure to meet
the deadline for filing a notice of appeal, "where justice so
warrants." State v. Caraballo, 62 Haw. 309, 315, 615 P.2d 91, 96
(1980) (permitting appeal filed after the deadline where
defendant had withdrawn his initial appeal based upon counsel's
erroneous advice); State v. Cardenas, 150 Hawai#i 307, 317, 500
P.3d 492, 502 (App. 2021) (allowing an appeal to proceed, despite
an untimely filing of a notice of appeal, when defense counsel
has inexcusably or ineffectively failed to perfect an appeal).
In addition, even if we were to dismiss or deny relief from
Wilbur-Delima's challenge to the April 10, 2023 Order, an illegal
sentence can be challenged at any time. See Stanley v. State,
148 Hawai#i 489, 501, 479 P.3d 107, 119 (2021). For these
reasons, it is in the interest of justice, as well as judicial
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economy, to address it here, along with Wilbur-Delima's timely
challenge to the May 26, 2023 Orders.
B. Disregard of Prior Modification Orders
In Wilbur-Delima's first point of error, he argues that
the Circuit Court abused its discretion in the Resentencing
Orders by failing to properly consider the prior modification
orders. As Wilbur-Delima no longer seeks relief directly from
the Resentencing Orders, and this argument was not raised in
Wilbur-Delima's challenge to the Orders Denying Correction of
Illegal Sentences, no relief may be granted on this ground.
C. Motions to Modify and the Tolling of Probation
Wilbur-Delima argues that HRS §§ 706-625(1), (4) (2014)
and 706-627(1) (2014), read in pari materia, exclude "motions to
modify" from motions that toll a defendant's probation. HRS
§ 706-625 provides, in pertinent part: § 706-625 Revocation, modification of probation conditions. (1) The court, on application of a probation officer, the prosecuting attorney, the defendant, or on its own motion, after a hearing, may revoke probation except as provided in subsection (7), reduce or enlarge the conditions of a sentence of probation, pursuant to the provisions applicable to the initial setting of the conditions and the provisions of section 706-627.
. . . . (4) The court may modify the requirements imposed on the defendant or impose further requirements, if it finds that such action will assist the defendant in leading a law-abiding life.
HRS § 706-627 provides: § 706-627 Tolling of probation. (1) Upon the filing of a motion to revoke a probation or a motion to enlarge the conditions imposed thereby, the period of probation shall be tolled pending the hearing upon the motion and the decision of the court. The period of tolling shall be computed from the filing date of the motion through and including the filing date of the written decision of the court concerning the motion for purposes of computation of the remaining period of probation, if any. In the event the court fails to file a written decision upon the motion, the period shall
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be computed by reference to the date the court makes a decision upon the motion in open court. During the period of tolling of the probation, the defendant shall remain subject to all terms and conditions of the probation except as otherwise provided by this chapter.
(2) In the event the court, following hearing, refuses to revoke the probation or grant the requested enlargement of conditions thereof because the defendant's failure to comply therewith was excusable, the defendant may be granted the period of tolling of the probation for purposes of computation of the remaining probation, if any.
The Circuit Court determined that when reading HRS
§ 706-625, the term "modify" can mean to either "enlarge" or
"reduce" a sentence, as the plain meaning of "modify" encompasses both, and that even though the nine motions were titled "motions
to modify," they substantively sought to enlarge the conditions
of Wilbur-Delima's probation in light of Wilbur-Delima's
violations of the conditions of probation, and his sentence was
in fact enlarged with the eight orders that he serve various
additional periods of jail time. Thus, the court concluded,
eight of the nine Motions to Modify tolled Wilbur-Delima's
probation.
Wilbur-Delima argues that the Circuit Court erred in
concluding that his probation was tolled pursuant to HRS § 706- 727(1) because the definition of modify does not equate with
enlarging a condition of probation under that provision.
We conclude that this argument is without merit. Under
the plain language of HRS § 707-625, a motion to modify the
conditions of probation can either seek to reduce or enlarge
them. The common understanding of a modification, as well as the
legal dictionary definition, is simply to change something. See
Black's Law Dictionary, 11th ed., 1203 (2019) (defining
"modification" as a "change to something; an alteration or 12 FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
amendment," and defining "modify" as "[t]o make somewhat
different; to make small changes to (something)"). If an HRS
§ 707-625(1) "motion to modify" seeks to enlarge a condition of
probation, then under the plain language of HRS § 706-627,
probation is tolled. Wilbur-Delima's argument, in essence, is
that courts should ignore the substance of an HRS § 707-625(1)
motion to modify seeking to enlarge a condition of probation, and
in his case, strictly construe the title "motion to modify" to
exclude the undisputed fact that an enlarged probation condition,
i.e., more jail time, was being sought in each of these nine
motions. Wilbur-Delima offers no support for this construction,
which appears to be contrary to case law admonitions against
raising form over substance. See Coon v. City & Cnty. of
Honolulu, 98 Hawai#i 233, 254, 47 P.3d 348, 369 (2002) (stating
that "elevat[ing] form over substance" is an "approach we have
repeatedly eschewed"); State v. Poohina, 97 Hawai#i 505, 509, 40
P.3d 907, 911 (2002); see also State v. Wong, 47 Haw. 361, 367,
389 P.2d 439, 444 (1964) ("In determining whether the order of
dismissal was 'an order or judgment, sustaining a special plea in
bar' we are guided by substance, not form.").
Wilbur-Delima also points to the legislative history of
HRS §§ 706-625 and 706-627. We conclude, however, that this line
of argument is of no avail.
These statutes were enacted in 1972 and read as
follows: Sec. 625 Modification of conditions. During a period of probation or suspension of sentence, the court, on application of a probation officer or of the defendant, or on its own motion, may modify the
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requirements imposed on the defendant or add further requirements authorized by section 624.
Sec. 627 Notice and hearing on revocation of suspension of sentence or probation, or increasing the conditions thereof. The court shall not revoke a probation or suspension of sentence or increase the requirements imposed thereby on the defendant except after a hearing upon written notice to the defendant of the grounds on which such action is proposed. The defendant shall have the right to hear and controvert the evidence against him, to offer evidence in his defense, and to be represented by counsel.
1972 Haw. Sess. Laws Act 9, § 1 at 76.
Wilbur-Delima argues that because Section 625 states
that suspended sentences may be "modified" or "further
requirements" may be added, modifications and
increases/enlargements are distinct, with the former meaning
small changes, not enlarging or adding further requirements.
However, this is essentially the same argument he makes with
respect to the current form of the statutes. As discussed above,
"modified" simply means somewhat changed or altered, and does not
preclude a modification in a manner that enlarges an existing
condition.
In 1977, HRS § 706-627 was amended to read as follows: Sec. 706-627 Notice and hearing on revocation of suspension of sentence or probation, or increasing the conditions thereof; tolling of suspension of sentence or probation. (1) The court shall not revoke a probation or suspension of sentence or increase the requirements imposed thereby on the defendant except after a hearing upon written notice to the defendant of the grounds on which such action is proposed. The defendant shall have the right to hear and controvert the evidence against him, to offer evidence in his defense, and to be represented by counsel.
(2) Upon the filing of a motion to revoke a probation or suspension of sentence or a motion to increase the requirements imposed thereby, the period of probation or suspension of sentence shall be tolled pending the hearing upon the motion and the decision of the court. The period of tolling shall be computed from the filing date of the motion through and including the filing date of the written decision of the court concerning the motion for purposes of computation of the remaining period of probation or suspension, if any. In the event the court fails to file a
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written decision upon the motion, the period shall be computed by reference to the date the court makes a decision upon the motion in open court. During the period of tolling of the probation or suspension, the defendant shall remain subject to all terms and conditions of the probation or suspension except as otherwise provided by this chapter.
(3) In the event the court, following hearing, refuses to revoke the probation or suspension or grant the requested increases in requirements thereof, the defendant shall be granted the period of tolling of the probation or suspension for purposes on computation of the remaining probation or suspension, if any.
1977 Haw. Sess. Laws Act 106, § 1 at 189.
The Senate Standing Committee Report explained that the
purpose of the legislation was to provide for tolling of probation whenever a motion to revoke probation or increase the
requirements imposed is filed. S. Stand. Comm. Rep. No. 1105, in
1977 Senate Journal, at 1295. The committee found that under the
law at the time, it was possible for a person's probation to run
out pending a revocation hearing, making the person free even
though they may have committed acts justifying revocation of
probation. Id. Wilbur-Delima asserts that this statutory
language shows that tolling is intended to apply to motions to
revoke or increase the requirements of probation, not motions to
modify. However, we conclude that the Legislature clearly
indicated that the amendments were designed to prevent a person's
probation from lapsing pending a revocation hearing, even though
they may have committed acts justifying revoking probation. Id.
It appears that Wilbur-Delima is the exact type of probationer
the Legislature wanted to remain on probation pending a decision
on resentencing. Wilbur-Delima stipulated to violating the terms
and conditions of his probation numerous times, but a hallmark of
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HOPE probation allowed the court to repeatedly modify his
probation and impose short jail stints in lieu of simply
resentencing him to the open term earlier in his probation. The
legislative history confirms that the intent of the tolling
statute is to prevent a noncompliant probationer from taking
advantage of the time it takes for the courts to decide motions
that seek to enlarge or revoke their probation.
Our plain reading of the purpose of the tolling statute
is reinforced by the 1980 amendments to HRS § 706-627, where the
Legislature amended HRS § 706-627(3) to read: (3) In the event the court, following hearing, refuses to revoke the probation or suspension or grant the requested increases in requirements thereof because the defendant's failure to comply therewith was excusable, the defendant [shall] may be granted the period of tolling of the probation or suspension for purposes [on] of computation of the remaining probation or suspension, if any.
1980 Haw. Sess. Laws Act 156, § 1 at 235 (additions underlined,
deletions bracketed).
The Standing Committee Reports on Act 156 reiterated
the Legislature's intent from the 1977 amendments, and sought to
further amend the law due to concerns that it "[gave] defendants an unfair advantage by allowing them, in essence, to be given
'credit' toward their sentence for a period of time when they are
not abiding by the terms of such sentence." H. Stand. Comm. Rep.
No. 434-80, in 1980 House Journal, at 1466, S. Stand. Comm. Rep.
No. 753-80, in 1980 Senate Journal, at 1364.
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In 1985, HRS §§ 706-625 and 706-62710 were again
amended. The 1985 amendments to § 706-625 added subsections (b)-
(e), now (2)-(5), and made minor changes to the first subsection: § 706-625 [Modification of conditions.] Revocation of suspension of sentence or probation, modification of conditions or imposition of further requirements. (a) During a period of probation or suspension of sentence, the court, on application of a probation officer, the prosecuting attorney, [or of] the defendant, or on its own motion, after a hearing, may revoke the suspension of sentence or probation, modify the requirements imposed on the defendant, or [add] impose further requirements authorized by section 706-624. (b) The prosecuting attorney, the defendant's probation officer, and the defendant shall be notified by the movant in writing of the time, place, and date of any such hearing, and of the grounds upon which action under this section is proposed. The prosecuting attorney, the defendant's probation officer, and the defendant may appear in the hearing to oppose or support the application, and may submit evidence for the court's consideration. The defendant shall have the right to be represented by counsel. For purposes of this section the court shall not be bound by the Hawaii Rules of Evidence, except for the rules pertaining to privileges.
(c) The court shall revoke the suspension of sentence or probation if the defendant has inexcusably failed to comply with a substantial requirement imposed as a condition of the order or has been convicted of a felony. The court may revoke the suspension of sentence or probation if the defendant has been convicted of another crime other than a felony. (d) The court may modify the requirements imposed on the defendant or impose further requirements, if it finds that such action will assist the defendant in leading a law-abiding life.
(e) When the court revokes a suspension of sentence or probation, it may impose on the defendant any sentence that might have been imposed originally for the crime of which he was convicted.
1985 Haw. Sess. Laws Act 192, § 1 at 327-28 (additions
underlined, deletions bracketed). Wilbur-Delima argues that
because subsection (a) kept the distinction between motions to
10 The only relevant change to HRS § 706-627 was that the title changed from "Notice and hearing on revocation of suspension of sentence or probation, or increasing the conditions thereof; tolling" to "Tolling of suspension of sentence or probation." 1985 Haw. Sess. Laws Act 192, § 1 at 328.
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revoke, modify, and add further requirements, and subsection (d)
also makes a distinction between motions to modify and motions to
impose further requirements, the legislature intended these
motions to be distinct. Any ambiguity created by the 1985
amendments was resolved by the 1986 amendments.
In 1986, HRS § 706-625 was amended to read: § 706-625 Revocation [of suspension of sentence or probation], modification of probation conditions [or imposition or further requirements]. (a) [During a period of probation or suspension of sentence, the] The court, on application of a probation officer, the prosecuting attorney, the defendant, or on its own motion, after a hearing, may revoke [the suspension of sentence or] probation, [modify the requirements imposed on the defendant, or impose further requirements authorized by section 706-624.] reduce or enlarge the conditions of a sentence of probation, pursuant to the provisions applicable to the initial setting of the conditions and the provisions of section 706-627.
(b) The prosecuting attorney, the defendant's probation officer, and the defendant shall be notified by the movant in writing of the time, place, and date of any such hearing, and of the grounds upon which action under this section is proposed. The prosecuting attorney, the defendant’s probation officer, and the defendant may appear in the hearing to oppose or support the application, and may submit evidence for the court's consideration. The defendant shall have the right to be represented by counsel. For purposes of this section the court shall not be bound by the Hawaii Rules of Evidence, except for the rules pertaining to privileges.
(c) The court shall revoke [the suspension of sentence or] probation if the defendant has inexcusably failed to comply with a substantial requirement imposed as a condition of the order or has been convicted of a felony. The court may revoke the suspension of sentence or probation if the defendant has been convicted of another crime other than a felony.
(d) The court may modify the requirements imposed on the defendant or impose further requirements, if it finds that such action will assist the defendant in leading a law-abiding life. (e) When the court revokes [a suspension of sentence or] probation, it may impose on the defendant any sentence that might have been imposed originally for the crime of which he was convicted.
1986 Haw. Sess. Laws Act 314, § 27 at 607 (additions underlined,
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Clarity was improved with the heading of the statute
replacing "imposition of further requirements" with
"modification" to read "Revocation, modification of probation
conditions," indicating that modification can encompass an
imposition of further requirements. Additionally, "modify the
requirements imposed" and "impose further requirements" in
subsection (a) were replaced with "reduce or enlarge conditions
of probation," again more clearly indicating that modifications
encompass reductions and enlargements of probation conditions.
Id. In the amendments to HRS § 706-627, the phrases "increase
the requirements" in subsections (1) and (2) were replaced with
"enlarge the conditions imposed." Id.
The Legislature's use of the word modify in HRS § 706-
625 and not in HRS § 706-627 is clear, logical, and consistent
with the statutory scheme and legislative history. As discussed,
modification can encompass enlargements and reductions. However,
only motions to modify seeking enlargements in probation
conditions are tolling motions, and probationers subject to such
enlargements are the ones that the Legislature wanted to
potentially hold accountable for acts justifying the revocation
of probation. See H. Stand. Comm. Rep. No. 450, in 1977 House
Journal, at 1495 (emphases added); S. Stand. Comm. Rep. No. 1105,
in 1977 Senate Journal, at 1295 (stating that the purpose of the
1977 amendments were to prevent a "person's period of probation
. . . [from running] out pending a revocation hearing, thus
making him a free man, even though he may have committed acts
justifying revocation of probation or suspended sentence.")
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In sum, we conclude that the legislative history
underscores the plain meaning of HRS § 706-625 and HRS § 706-627.
D. Rule of Lenity
Finally, Wilbur-Delima requests, if this court rejects
his argument that the tolling provisions in HRS § 706-627 are
inapplicable to motions to modify, that we apply the Rule of
Lenity in his favor here. Under the Rule of Lenity: When a statute is ambiguous, and the legislative history does not provide sufficient guidance, we follow the rule of lenity. This "means that the court will not interpret a state criminal statute so as to increase the penalty that it places on an individual when such an interpretation can be based on no more than a guess as to what the legislature intended." Accordingly, "[u]nder the rule of lenity, the statute must be strictly construed against the government and in favor of the accused."
State v. Woodfall, 120 Hawai#i 387, 396, 206 P.3d 841, 850 (2009)
(citations omitted).
We follow this rule if we have to guess as to the
meaning of a criminal statute. That is not the case here. The
statute is clear and the legislative history is instructive.
Accordingly, the Rule of Lenity is not applicable here.
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V. CONCLUSION
For these reasons, the Circuit Court's April 10, 2023,
and May 26, 2023 Orders Denying Correction of Illegal Sentences
are affirmed.
On the briefs: /s/ Katherine G. Leonard Acting Chief Judge Jason M. Kramberg, Deputy Public Defender, /s/ Keith K. Hiraoka for Defendant-Appellant. Associate Judge
Robert T. Nakatsuji, /s/ Clyde J. Wadsworth Deputy Prosecuting Attorney, Associate Judge City and County of Honolulu, for Plaintiff-Appellee regarding underlying Case Nos. 1PC151000955, 1PC151001978 and 1PC161001506.
Michelle M.L. Puu, Deputy Attorney General, State of Hawai#i for Plaintiff-Appellee regarding Case No. 1PC151001274.