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Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
24-APR-2023
08:01 AM
Dkt. 51 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI‘I
STATE OF HAWAI‘I, Plaintiff-Appellee,
v.
JORDAN VALENTE, Defendant-Appellant
APPEAL FROM THE CIRCUIT COURT OF THE FIFTH CIRCUIT
(CASE NOS. 5PC12-1-000209 AND 5PC15-1-000157)
SUMMARY DISPOSITION ORDER
(By: Ginoza, Chief Judge, Wadsworth and Nakasone, JJ.)
Defendant-Appellant Jordan K. Valente (Valente)
appeals from the March 30, 2022 "Order[s] Granting Motion for
Modification of Terms and Conditions of Probation" in Case Nos.
5PC121000209 and 5PC121000157 (Orders Granting Modification),
filed and entered by the Circuit Court of the Fifth Circuit.1
Valente raises three points of error on appeal,
contending that the Circuit Court erred by: (1) failing to
1 The Honorable Kathleen N.A. Watanabe presided.
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dismiss the motions to modify because the motions were based on
an alleged violation of a probation condition "that was not
specifically included in the court's written copies" provided to
Valente; (2) finding there was sufficient evidence to establish
that Valente violated special condition H (Condition H); and (3)
finding that Valente had inexcusably failed to comply with
Condition H.
Upon careful review of the record and the briefs
submitted by the parties, and having given due consideration to
the arguments advanced and the issues raised, we resolve
Valente's points of error as follows, and reverse.
At the January 25, 2022 resentencing hearing, the
Circuit Court directed Valente to enter the Salvation Army Adult
Rehabilitation Center (Salvation Army ARC), and separately, to
participate in programs of rehabilitation as directed by his
probation officer until clinically discharged, stating that:
THE COURT: . . . You are to attend and complete the
Fifth Circuit HOPE program and comply with all the
requirements of the HOPE probation program, and if you fail
to do that it will be considered a violation of a
substantial condition of probation. As such, your
probation may be revoked and you could be resentenced to
the maximum term, which is, in this case, five years in
prison.
In terms of jail, the Court is ordering that --
you've been in jail now since October; correct? All right.
So I'm going to note that -- in the record we're going to
note that you are to be confined in jail for a period of 60
days -- well, let me just take that back. You're going to
be held in jail until February 4th and released at 6:00
a.m. on that date. You are going to go directly to the
airport, get on the plane, get picked up by the A.R.C.
staff and then be brought over directly to A.R.C. . . .
. . . .
You shall participate in any programs of
rehabilitation as directed by your probation officer. This
should be at your own expense, and includes but is not
limited to a substance abuse evaluation and treatment and
testing, pain management evaluation and treatment, and
individual or family counseling, until clinically
discharged.
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. . . .
Now, as to Criminal No. 5 PC 15-1-157, . . . once
again, you're subject to supervision and you are to follow
all instructions given by your HOPE probation officer.
Once again, the term of probation for this case is five
years. You are to attend and complete the HOPE probation
program.
. . . .
And as far as jail, you will be held until February
4th at 6:00 a.m., at which time you will be released, and
this will be for you to be transported to and to
participate in the A.R.C. program.
On March 10, 2022, the State filed identical
"Motion[s] for Modification or Revocation of the Terms and
Conditions of Probation" (Motions to Modify) in both cases,
which moved for "an order modifying or revoking" Valente's
probation "due to violation(s) of his terms and conditions."
The Motions to Modify attached the Declaration of Probation
Officer Kiana T. Bridgeman (P.O. Bridgeman), who declared that
Valente "violated the terms and conditions . . . in the
following manner: On March 8, 2022 [Valente] was non-clinically
discharged from the [(Salvation Army ARC)] residential substance
abuse treatment program."
On March 24, 2022, Valente filed an opposition to the
Motions to Modify, arguing that the motions "fail[ed] to provide
[Valente] with proper notice of the grounds upon which the
motion is being filed as the motion fail[ed] to allege what
conditions of his probation [Valente] allegedly violated."
Valente denied that he violated probation, and that even if he
had, he had been medically discharged from treatment, and thus,
the violation was excusable. Valente requested the Circuit
Court deny the Motions to Modify.
At the March 30, 2022 hearing on the Motions to
Modify, the State argued that Valente had been provided with
written copies of the Circuit Court's January 25, 2022 "Order[s]
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of Resentencing" in both cases, and that it was clear that
Valente had violated Condition H. Condition H provided:
H. You shall participate in any and all programs of
rehabilitation as directed by your probation officer at
your own expense, including but not limited to substance
abuse evaluation/treatment/testing, pain management
evaluation/treatment, and individual and/or family
counseling until clinically discharged.
The Order of Resentencing in 5PC151000157 imposed "[a]ll
pertinent conditions imposed in Cr. No. 5PC121000209[.]" The
Circuit Court ruled that the condition at issue was Condition H:
THE COURT: Okay. All right. The Court read
the opposition and the Court is in agreement with the
State's position in preparing for this. It's very
apparent to the Court that [Condition] H is sort of that
catch-all regarding any kinds of programs of
rehabilitation. This was attached to the motion filed on
March 10th, 2022. So the Court finds that adequate notice
was given.
The State called P.O. Bridgeman, who testified that
Valente was resentenced to probation in 5PC121000157 and
5PC121000209 on January 25, 2022, and that the Circuit Court
went over the terms of probation with Valente in open court.
P.O. Bridgeman stated that Valente signed off on the terms and
conditions of probation on January 25, 2022, but she was unable
to review the conditions with Valente until March 10, 2022, due
to his incarceration.
P.O. Bridgeman testified on direct and redirect
examination that Valente was directed to complete Salvation Army
ARC, and he was not clinically discharged; but P.O. Bridgeman
did not specifically state who gave Valente this direction.
However, on cross-examination, she agreed that the terms and
conditions of probation did not "specifically reference the
Salvation Army A.R.C. program[.]" Per a March 8, 2022 letter
from Salvation Army ARC, Valente was discharged due to medical
reasons.
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At the conclusion of the hearing, the Circuit Court
granted the Motions to Modify, based on the testimony, exhibits,
and arguments presented, "the fact that Mr. Valente is before
the Court on a 14th violation of HOPE probation," and that
Valente was "in non-compliance with a substantial term or
condition of his HOPE probation[.]" The Circuit Court stated:
"I'll treat this as a modification of both of the cases," and
issued the modification of a 242-day jail term with credit for
time served, but provided, inter alia, that after serving 30
days, Valente "may be released" to an inpatient substance abuse
treatment program approved by his probation officer.
(1) Valente argues that the Circuit Court
erred by "failing to dismiss" the Motions to Modify "based on
the alleged violation of a condition of probation that was not
specifically included in the [Circuit] Court's written copies of
the terms and conditions of probation that was provided to
Valente."
This first point of error does not state where in the
record the alleged error of the Circuit Court "failing to
dismiss" the Motions to Modify occurred, or where a request for
dismissal was "brought to the attention" of the Circuit Court.
See Hawai‘i Rules of Appellate Procedure (HRAP) Rule 28(b)(4)(ii)
and (iii) (requiring points of error to state "where in the
record the alleged error occurred" and where the alleged error
"was brought to the attention of the court . . . ."). The
record reflects an opposition to the Motions to Modify was
filed, but Valente does not identify where and how a request for
dismissal was made. We do not address this point of error. See
HRAP Rule 28(b)(4) ("Points not presented in accordance with
this section will be disregarded . . . .").
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(2) Valente argues that the Circuit Court
"erred in finding that there was sufficient evidence" that
Valente violated Condition H because "the evidence established
that [P.O. Bridgeman] admitted that she never directed Valente
to enter into any substance abuse treatment program until
clinically discharged." In its Answering Brief, the State
acknowledges that "the court, rather than [Valente's] probation
officer, directed him to enroll in the Salvation Army [A.R.C.]
program until clinically discharged," and noted that
"[Valente]'s probation officer, [P.O.] Bridgeman, testified at
the March 30, 2022 hearing that she probably did not instruct
him to enroll in residential treatment." Valente's argument has
merit.
A finding of fact "is clearly erroneous when (1) the
record lacks substantial evidence to support the finding, or (2)
despite substantial evidence in support of the finding, the
appellate court is nonetheless left with a definite and firm
conviction that a mistake has been made." In the Interest of
DM, SCWC-XX-XXXXXXX, 2023 WL 2520508, at *5 (Haw. Mar. 15, 2023)
(citation omitted).
Here, the Circuit Court's finding that Valente was "in
non-compliance" with probation, was not supported by substantial
evidence. Instead, the record supports the State's
acknowledgment on appeal that the Circuit Court, rather than
P.O. Bridgeman, directed Valente to enter the Salvation Army ARC
program. P.O. Bridgeman testified that she did not review the
probation conditions with Valente until March 10, 2022, which is
the date she filed the Motions to Modify:
Q [(BY STATE)] . . . So did the Court then go
over the conditions with the defendant?
A [(BY P.O. BRIDGEMAN] Yes.
Q And at some point did you go over the
conditions with the defendant?
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A Yes.
Q And when was that?
A That was on March 10, 2022.
P.O. Bridgeman never testified that she directed Valente to
complete the program, but only that Valente was directed to
complete the program, and that he was not clinically discharged.2
We note that during the January 25, 2022 hearing, the Circuit
Court advised Valente that he was to enter the Salvation Army
ARC program, but there was no stated requirement about
completing the program until clinically discharged. Further,
P.O. Bridgeman admitted that the terms and conditions of
probation did not reference Salvation Army ARC:
Q [(DEFENSE COUNSEL)] I want to focus, I guess,
back on the terms and conditions. Nowhere in the terms and
conditions of his probation does it specifically reference
the Salvation Army A.R.C. program; correct?
A [(BY P.O. BRIDGEMAN] Correct.
Nothing in P.O. Bridgeman's testimony indicates that P.O.
Bridgeman herself directed Valente to specifically participate
in the Salvation Army ARC program, as Condition H requires.
The record does not contain substantial evidence to
support the Circuit Court's factual finding that Condition H was
2 The transcript reflects the following direct examination:
Q [(BY STATE)] And was the defendant directed to complete
Salvation Army A.R.C.?
A [(BY P.O. BRIDGEMAN] Yes.
Q Was he clinically discharged?
A No.
On redirect examination, P.O. Bridgeman again testified, as follows:
Q [(BY STATE)] I just want to make sure that the defendant
was directed to do a rehabilitation program; correct?
A [(BY P.O. BRIDGEMAN)] Yes.
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violated, and thus, this finding was clearly erroneous. See DM,
2023 WL 2520508, at *5.
(3) Based on the above, it is not necessary to
address Valente's third point of error.
For the foregoing reasons, we reverse the March 30,
2022 "Order[s] Granting Motion for Modification of Terms and
Conditions of Probation" in Case Nos. 5PC121000209 and
5PC121000157, filed and entered by the Circuit Court of the
Fifth Circuit.
DATED: Honolulu, Hawai‘i, April 24, 2023.
On the briefs: /s/ Lisa M. Ginoza
Chief Judge
Tracy Murakami,
Deputy Prosecuting Attorney /s/ Clyde J. Wadsworth
for Plaintiff-Appellee. Associate Judge
William H. Jameson, Jr., /s/ Karen T. Nakasone
Public Defender for Associate Judge
Defendant-Appellant.
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