State v. Wong

829 P.2d 1325, 73 Haw. 81
CourtHawaii Supreme Court
DecidedMarch 24, 1992
DocketNO. 15129
StatusPublished
Cited by6 cases

This text of 829 P.2d 1325 (State v. Wong) 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. Wong, 829 P.2d 1325, 73 Haw. 81 (haw 1992).

Opinion

OPINION OF THE COURT BY

LUM, C.J.

I.

Defendant-appellant Robert Wong (appellant) appeals the decision of the Circuit Court of the First Circuit revoking his [82]*82probation and resentencing him to a term of incarceration. The court revoked appellant’s probation on account of his dangerousness after appellant failed to comply with a term of probation requiring he maintain residential treatment with the Hawaii Addiction Center (HAC) until clinically discharged. Appellant argues that under our decision in State v. Nakamura, 59 Haw. 378, 581 P.2d 759 (1978), Hawaii Revised Statutes (HRS) § 706-625(c) (Supp. 1991) requires willful or intentional failure to comply with a term of probation before revocation can take place. He therefore asserts that the court could not revoke his probation because the State stipulated that his expulsion from HAC was not caused by any willful or intentional acts on his part. Appellant also maintains that in making the decision to revoke, the court should not have considered his prior arrest for Abuse of Family and Household Member where that arrest had already formed the basis of an earlier resentencing decision. Finally, appellant objects to the State’s failure to provide notice that there were grounds for revocation in addition to his failure to maintain residence at HAC.

We find that the circuit court had the discretion to consider appellant’s dangerousness, as well as his arrest for Abuse of Household Member in determining whether appellant’s failure to comply with a condition of probation was inexcusable within the meaning of Hawaii Revised Statutes (HRS) § 706-625(c). However, we remand the case for rehearing with the requirement that, pursuant to HRS § 706-625(b) (1985), appellant be afforded proper notice of the grounds for revocation.

H.

On December 21, 1988, appellant was indicted and charged with sexually assaulting a friend’s 10-year-old daughter. He was found guilty and sentenced to 15 consecutive weekends of incarceration and five years probation. Among the conditions of [83]*83appellant’s probation were that he remain arrest and drug-free, and that he submit to treatment in a residential or outpatient mental health program until clinically discharged.

In May of 1990 appellant was arrested for the offense of Abuse of Household Member in violation of HRS § 709-906, and in June 1990, was convicted of Driving Under the Influence in violation of HRS § 291-4. The State subsequently filed a motion to revoke probation. At the hearing, appellant notified the court that he had been accepted by the Hawaii Addiction Center, a residential drug and alcohol treatment program. The court did not revoke his probation; instead, he was resentenced to a new term of probation under the same conditions as his previous sentence, with the additional condition that he maintain residential treatment in HAC until clinically discharged.

When the HAC discovered his sexual offense conviction appellant was terminated from the program. The State filed a second motion for revocation, alleging as the sole basis, that appellant had failed to maintain treatment at HAC until clinically discharged. At the hearing the State stipulated that appellant had not been terminated from the program through any willful or intentional actions of his own. The court heard testimony that appellant was dangerous because he was very likely to repeat his sexual offense and that the only appropriate treatment was through the Department of Corrections and required a year of incarceration. The State also introduced evidence that there had been a family court termination of appellant’s parental rights. In addition, the court on its own motion considered appellant’s arrest for Abuse of Household Member that had served as a basis for the prior revocation of appellant’s probation. The circuit court, based on appellant’s dangerousness to the community, found that appellant had inexcusably failed to comply with a substantial term of probation. The court revoked appellant’s probation and resentenced him to concurrent terms of. five and ten years of incarceration.

[84]*84III.

Appellant urges that under our decision in Nakamura, a court may revoke probation under HRS § 706-625(c) for inexcusable failure to comply with the terms of probation only where the failure is caused by the defendant’s intentional or willful actions.1

Appellant reads our decision in Nakamura too narrowly. The defendant in Nakamura was unable to comply with the requirement that he enroll in Habilitat when the program rejected his application because he had visited his mother for a few hours after his release from jail contrary to a directive that he proceed directly to the program. In that case, we reversed the revocation, finding that in light of Habilitat’s arbitrary rejection of defendant’s application there was “a serious question as to whether the defendant inexcusably failed to comply” with the terms of his probation. Nakamura, 59 Haw. at 381, 581 P.2d at 762 (emphasis in original).

Contrary to appellant’s reading of the case, the willfulness of thé defendant in Nakamura was only one of the factors we considered in determining whether his failure to enroll in Habilitat was inexcusable within the terms of HRS § 706-628(1). In arriving at our decision we also looked to evidence showing that, aside from the failure to enroll in Habilitat, defendant’s conduct was exem[85]*85plary and “entirely consistent with the rehabilitative objectives of probation.” Moreover, we considered a counselor’s opinion that defendant had reevaluated his direction in life, another counselor’s recommendation that probation continue, and the opinion of defendant’s probation officer that the defendant could function satisfactorily in the community without participating in Habilitat. Id. at 381, 581 P.2d at 762. Thus, in addition to defendant’s willfulness, Nakamura also considered the rehabilitative and protective objectives of probation relevant to determine whether defen2 dant’s failure to enroll in Habilitat was inexcusable.2

We believe Nakamura is entirely consistent with legislative intent in enacting HRS § 706-625. The section provides in pertinent part:

(a) The court. . . may revoke probation, 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.
(c) The court shall revoke 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 [86]

Free access — add to your briefcase to read the full text and ask questions with AI

Related

State v. Jahad
Hawaii Intermediate Court of Appeals, 2025
State v. Villiarimo.
320 P.3d 874 (Hawaii Supreme Court, 2014)
De La Garza v. State.
302 P.3d 697 (Hawaii Supreme Court, 2013)
State v. Durham
254 P.3d 425 (Hawaii Supreme Court, 2011)

Cite This Page — Counsel Stack

Bluebook (online)
829 P.2d 1325, 73 Haw. 81, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-wong-haw-1992.