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Electronically Filed
Supreme Court
SCWC-XX-XXXXXXX
18-OCT-2019
08:10 AM
SCWC-XX-XXXXXXX
IN THE SUPREME COURT OF THE STATE OF HAWAI#I
STATE OF HAWAI#I,
Respondent/Plaintiff-Appellee,
vs.
DAWN A. PHILLIPS,
Petitioner/Defendant-Appellant.
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-XX-XXXXXXX; CASE NO. 3DCW-XX-XXXXXXX)
SUMMARY DISPOSITION ORDER
(By: Recktenwald, C.J., Nakayama, McKenna, Pollack, and Wilson, JJ.)
Petitioner/Defendant-Appellant Dawn A. Phillips
(Phillips) appeals from the Intermediate Court of Appeals’ (ICA)
March 27, 2019 Judgment on Appeal affirming the July 31, 2017
“Judgment and Notice of Entry of Judgment” of the District Court
of the Third Circuit (district court).1
Phillips was charged with one count of open lewdness
and one count of disorderly conduct. Phillips entered a not
1
The Honorable Margaret Masunaga presided.
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guilty plea. At a change of plea hearing, defense counsel stated
that the State and Phillips had reached an agreement where
Phillips would plead no contest to the charges against her, and
the State would not object to any subsequent motion to defer the
acceptance of her no contest plea (motion for DANC). See Hawai#i
Revised Statutes (HRS) § 853-1 (2014).2 After pleading no
contest, Phillips made an oral motion for DANC. The district
court denied her motion for the principal reason that she did not
wish to stay in Hawai#i during the six-month probation period.
On July 31, 2017, the district court accepted Phillips’
no contest pleas and entered a Judgment against her. Phillips
appealed to the ICA, and the ICA affirmed the district court’s
Judgment. See State v. Phillips, No. CAAP-XX-XXXXXXX, 2019 WL
763086 (App. Feb. 15, 2019) (SDO).
We vacate and remand. A denial of a motion for DANC is
2
HRS § 853-1 (2014) provides in relevant part:
Deferred acceptance of guilty plea or nolo contendere
plea; discharge and dismissal, expungement of records .
(a) Upon proper motion as provided by this chapter:
(1) When a defendant voluntarily pleads guilty or
nolo contendere, prior to commencement of trial,
to a felony, misdemeanor, or petty misdemeanor;
(2) It appears to the court that the defendant is
not likely again to engage in a criminal course
of conduct; and
(3) The ends of justice and the welfare of society
do not require that the defendant shall
presently suffer the penalty imposed by law,
the court, without accepting the plea of nolo contendere or
entering a judgment of guilt and with the consent of the
defendant and after considering the recommendations, if any,
of the prosecutor, may defer further proceedings.
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properly within the discretion of a trial judge. State v.
Martin, 56 Haw. 292, 294,
535 P.2d 127, 128 (1985). Therefore,
the trial court’s decision “will not be disturbed on appeal
unless there has been a plain and manifest abuse of such
discretion.”
Id. However, we have also stated that this
discretion must be “properly exercised.”
Id.
In Martin, after a defendant had pleaded guilty to a
charge of theft and made a motion to defer the acceptance of the
guilty plea, the “district court summarily rejected said motion,
emphasizing, as [it] had in the past, that [it] did not and would
not under any circumstances consider any motion for deferred
acceptance of a guilty plea.” Id. at 293,
535 P.2d at 127. On
appeal, we vacated and remanded the case.
Id. at 294,
535 P.2d
at 129. We concluded that when the “sentencing judge,
arbitrarily and capriciously, refuses to entertain at any time a
seasonable and proper motion made by a defendant for [deferred
acceptance of guilty] plea . . . such judicial conduct is
improper.”
Id. at 294,
535 P.2d at 128. We further stated that
the trial court, “[b]y blind adherence to predetermined rigid
conduct . . . precluded any enlightened and just resolve of the
criminal charge placed against defendant.”
Id.
In this case, Phillips and the State had reached an
agreement that if she pleaded no contest to the open lewdness and
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disorderly conduct charges, the State would recommend five days
of jail time, all suspended but one day, with credit for time
served, and would not object to a deferral, provided that Philips
be placed on unsupervised probation for six months.
The district court denied Phillips’ motion for DANC on
the principal basis that she was going to leave Hawai#i and not
return. The district court stated multiple times that in order
to be placed on probation, a condition of the deferred acceptance
plea, Phillips would have to remain in the state. Specifically,
the district court stated, “the concern is that if it’s going to
be on probation, she needs to be here.” When the State offered
that in other situations, defendants were placed on unsupervised
probation, and defense counsel can “basically do like a
stipulation at the expiration of the deferral period,” the
district court responded that “normally [a defendant has] to come
back here because, otherwise, I won’t dismiss the case.” The
district court further stated that in these situations, “the
court will double-check in the future but my understanding is
there’s a resistance to do deferred acceptance of a no contest
plea, and just looking at this case, I don’t think this is a good
case for that.”
While the district court entertained Phillips’ motion
for DANC, its reason for denying her motion appeared to be based
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on a “blanket policy” that it did not grant motions for DANC when
the defendant does not wish to return to Hawai#i after the
probation period. See Martin, 56 Haw. at 294,
535 P.2d at 128.
This court has cautioned that discretionary action “must be
exercised on a case-by-case basis, not by any inflexible
[blanket] policy of denial.”
Id. See also State v. Chun, No.
26357,
2005 WL 256340, at *9 (Haw. Feb. 2, 2005) (mem.) (“[T]he
existence of discretion requires its exercise, and by definition
contemplates an individualized assessment of the facts and
circumstances pertinent to the case at hand.”) (internal citation
and quotation omitted).3
Moreover, while the district court spent considerable
time discussing how Phillips’ absence from Hawai#i would affect
whether it would grant or deny her motion for DANC, the district
court did not explicitly consider any of the factors actually
listed as factors to consider in denying or granting a motion for
deferred acceptance pursuant to HRS § 853-1. HRS § 853-1
provides that a court may defer further proceedings without
3
Additionally, Phillips’ counsel stated that Phillips “would be
willing to try to come back at the end of the six-month period[.]” In
response, the district court stated that it would place Phillips on
unsupervised probation so she could return to the mainland. Operating under
the assumption that the district court was going to grant the deferral, the
State then asked the district court for a “proof of compliance date . . . and
if she is in compliance with everything, [defense counsel] and I can do a
stipulation for dismissal of the case[.]”
However, the district court then stated that it “was going to allow
unsupervised probation and let her leave the state of Hawaii but not do the
deferral.” This prompted confusion from the State and from defense counsel.
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accepting a plea of no contest if (1) “[i]t appears to the court
that the defendant is not likely again to engage in a criminal
course of conduct;” and (2) “[t]he ends of justice and the
welfare of society do not require that the defendant shall
presently suffer the penalty imposed by law[.]” HRS § 853-1(a).
The State noted that Phillips did not have a prior
criminal record and “since it sounds like her object is to obtain
treatment [for substance abuse], we don’t have an objection [to
the deferred acceptance] in this case.” Phillips herself stated
that she had “every intention of taking care of [her substance
abuse problem],” that she had never been arrested, and that she
never had issues with the law. Her primary goal “has always been
to go back to the mainland, get my degree and come back and work
with the indigent population.”
However, there is no evidence in the record to suggest
that the district court considered these claims when it denied
Phillips’ motion for DANC. Therefore, there is similarly no
evidence in the record that the district court considered whether
Phillips was “not likely again to engage in a criminal course of
conduct” or whether “[t]he ends of justice and the welfare of
society” required that Phillips suffer the penalty imposed by law
pursuant to HRS § 853-1. Instead, the record indicates only that
the denial of Phillips’ motion for DANC was prompted by Phillips’
stated desire to leave the state.
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The record indicates that the district court denied
Phillips’ motion for DANC primarily because she did not wish to
serve her six-month probation in Hawai#i, that it had a “blanket
policy” of denying deferrals unless defendants return to Hawai#i,
that it denied Phillips’ specific motion even when defense
counsel stated that Phillips would be willing to return to
Hawai#i, and did not specifically consider the factors described
in HRS § 853-1. We conclude the district court abused its
discretion in denying Phillips’ motion for DANC.4
We therefore vacate the ICA’s March 27, 2019 Judgment
on Appeal and remand to the district court for a new hearing on
Phillips’ motion for DANC.
DATED: Honolulu, Hawai#i, October 18, 2019.
Susan L. Arnett /s/ Mark E. Recktenwald
for petitioner/defendant-appellant /s/ Paula A. Nakayama
Linda L. Walton for /s/ Sabrina S. McKenna
respondent/plaintiff-appellee /s/ Richard W. Pollack
/s/ Michael D. Wilson
4
Because we conclude that the district court abused its discretion
in denying Phillips’ motion for DANC, it is unnecessary to address Phillips’
argument that the denial of her motion was unconstitutional. See DW Aina Le #a
Dev., LLC v. Bridge Aina Le#a, LLC., 134 Hawai#i 187, 217-18, 339 P.3d 685,
715-16 (2014) (“If a case can be decided on either of two grounds, one
involving a constitutional question, the other a question of statutory
construction or general law, . . . [this court] will decide only the latter.”
(alterations in original)).
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