October, 2020 - Case Summaries - Criminal Law

*Disclaimer* - the below case summaries are not to be construed as legal advice, they are nonexhaustive, and they contain only my own summary/interpretation of the cases so noted.NO. CAAP-18-0000936

Park v Admin

(Memo Opinion)

Subject Matter: Timing Issues in Admin Driver License Revocation Case:

Background:

• Admin Driver License Hrg Held Oct. 1, 2018.

• Notice and Decision Mailed on October 9, 2018

• Two days (Sat. Sun.) were excluded.

• October 8, 2018 was Columbus Day, a Federal Holiday, not a State Holiday.

Issues - When to Mail and is Columbus Day (State Holiday) Excluded:

Park's appeal appears to raise two questions regarding the interpretation of HRS §§ 291E-38(i) and 291E-46:

• (1) whether HRS § 291E-38(i) imposes a deadline on both the acts of rendering in writing and mailing the decision; and

• (2) if so, does HRS § 291E-46 exclude the last day for rendering the decision in writing under HRS § 291E-38(i) if that last day falls on Columbus Day. We conclude we need only answer the first question to resolve this appeal.

Discussion: It is clear from the composition of HRS § 291E-38(i) that the five-day deadline applies to the act of mailing the decision. Therefore, the ultimate question becomes whether the five-day deadline also was intended to apply to the act of rendering the decision in writing for purposes of this case. We conclude the five-day deadline is intended to apply to the mailing of the written decision, which means the decision must be written by the mailing deadline, and that the written decision in this case having been dated and mailed on October 9, 2018 was consistent with HRS §§ 291E-38(i) and 291E-46.

Holding: Given the manner in which the administrative revocation process is structured and the Legislature's clear intent that action by the respondent be triggered by the mailing of the administrative decisions, we conclude that the five-day deadline in HRS § 291E-38(i) applies to the mailing of the written decision, not the date by which the written decision needs to be rendered. Therefore, in this case, the five-day deadline for mailing the written Hearing Decision, under HRS § 291E-38(i), was extended pursuant to HRS § 291E-46 due to the federal Columbus Day holiday, and there was no violation of either provision in this case.

NO. CAAP-18-0000755

SOH v AGDINAOAY

SDO

 Subject Matter: DVI allowed where Defendant Also Sentenced to Imprisonment.

Background: Def. pled no contest and was convicted of Violation of a TRO (VTRO), and sentenced to 181 days imprisonment with credit and to undergo DV intervention (DVI) program.

Issue on Appeal: Did the Family Court erred in concluding that HRS § 586-4(e) required the court to order Def. to undergo DVI in addition to the sentence of 181 days of imprisonment for his VTRO conviction?

Statute: § 586-4(e) states in part: "A person convicted under this section shall undergo domestic violence intervention at any available domestic violence program as ordered by the court." Section 586-4(e) further provides in relevant part: "The court additionally shall sentence a person convicted under this section" to a mandatory minimum jail sentence.

Def Argues: Agdinaoay contends that the Family Court erred in concluding it was required under HRS § 586-4(e) to order DVI in addition to the 181-day sentence of imprisonment.

The crux of Agdinaoay's argument is that:

• (1) DVI is a "standard condition of probation" under HRS § 706-624(2)(j);3/ and

• (2) HRS §§ 706- 605(2) and 706-624(2)(a) prohibit a court from sentencing a defendant to probation and imprisonment in excess of 180 days. Agdinaoay further asserts that the language of HRS § 586-4(e) does not require the court to sentence a convicted defendant to participate in DVI; rather, "in a case where the Family Court deems that it is necessary for the defendant to undergo [DVI], it could impose that requirement as [a] special condition of probation under HRS § 706-624(2)(j)." Agdinaoay also maintains that "under HRS § 586-4(e), where, as here, the Family Court chooses to sentence the defendant to 181 days of imprisonment, and therefore cannot impose probation on the defendant, the Family Court may still order the defendant to undergo [DVI] if it suspends part of the sentence."

ICA Discussion:

• No Probation Here: However, as Def. concedes, he was not sentenced to probation. Moreover, nothing in HRS § 586-4(e) or HRS Chapter 706 requires that DVI be ordered only in conjunction with probation.

• Constitutional Limitation on Sentencing: Within constitutional limits, "[t]he question of what constitutes an adequate penalty necessary for the prevention of crime is addressed to the sound judgment of the legislature and courts will not interfere with its exercise, unless the punishment proscribed appears clearly and manifestly to be cruel and unusual. . . ." State v. Kumukau, 71 Haw. 218, 226, 787 P.2d 682, 687 (1990) (quoting State v. Freitas, 61 Haw. 262, 267, 602 P.2d 914, 919 (1979)).

•  No Violation - Affirmed: Here, the Family Court's decision to order DVI in addition to the 181-day sentence of imprisonment falls squarely withing the bounds set by the legislature.

NOS. CAAP-19-0000535 & CAAP-19-0000536

SOH v. FOUMAI

SDO

 Subject Matter: Restitution Hearing Issues; Rules of Evidence Not Applicable.

Background: After Foumai pleaded no contest in Cases 1 and 2, the Circuit Court convicted him in each case of Burglary in the Second Degree.  Foumai was ordered to pay restitution to two victims (TP and DHI).

Def. Contended on Appeal:

• Foumai contends that the Circuit Court abused its discretion in Cases 1 and 2 "when it found that [Plaintiff-Appellee State of Hawaii (State)] offered sufficient evidence that it was more likely than not, that the victim lost the amounts requested."

• Foumai contends that Wong had no personal knowledge of the respective losses of TP and DHI, and instead relied on "what was reported to her," along with police reports, documents and photographs. Foumai further argues that the documentary exhibits received by the trial court through Wong "lacked authentication, were based on hearsay and were unreliable."

Rule - No HRE in Sentencing:

• In general, the Hawaii Rules of Evidence (HRE) do not apply to sentencing proceedings.4/ See HRE Rule 1101(d)(3) ("The rules . . . do not apply in . . . [m]miscellaneous proceedings . . . [including] sentencing[.]"). Because restitution is part of a defendant's sentence, it follows that the trial court may order restitution as part of sentencing proceedings.

• Accordingly, here, where the Circuit Court considered evidence regarding restitution as part of sentencing proceedings, the HRE did not apply.

Rule re Ev Req'd at Restitution Hrg: HRS § 706-646(2) "imposes four requirements before restitution must be awarded; the victim's losses must be (1) 'reasonable,' (2) 'verified,' (3)'suffered . . . as a result of the defendant's conduct,' and (4) 'requested by the victim.'" State v. DeMello, 136 Hawai#i 193, 196, 361 P.3d 420, 423 (2015). Thus, here, where TP and DHI requested restitution, the State was required to demonstrate by a preponderance of the evidence that the respective losses of TP and DHI were reasonable, verified and caused by Foumai. See HRS § 706-646(2); State v. DeMello, 130 Hawai#i 332, 343-44, 310 P.3d 1033, 1044-45 (App. 2013), vacated in part on other grounds, 136 Hawai#i 193, 361 P.3d 420 (2015). The State bore the burden of making a prima facie showing of these losses. See DeMello, 130 Hawai#i at 344, 310 P.3d at 1045. If the State did so, the burden shifted to Foumai to come forward with evidence supporting his challenge to the amounts requested. See id.

Holding - No Error bc Sufficient Evidence:

• In each case, Wong identified the statement of loss received from the company's insurer, Fireman's Fund, reflecting the itemized losses incurred by each company. The supporting documents that Wong identified in her testimony included internal spreadsheets itemizing the company and personal employee losses, as well as invoices documenting the costs for certain repairs. In her testimony, Wong linked each of these documents to the losses that TP and DHI incurred…

• [W]e conclude that the State presented sufficient evidence that TP and DHI incurred reasonable and verified losses, suffered as a result of Foumai's conduct, in the amounts determined by the Circuit Court.

NO. CAAP-19-0000563

SOH v MANION,

Memo Op

 Subject Matter: DUI Suppression of Statements; Custodial Interrogation; Medical Rule-Out Questions as Interrogation.

Background:

• State appeals from order suppressing certain statements….arguing that Manion was not in custody or seized until after he took a Standard Field Sobriety Test (SFST or FST) and was arrested for Operating a Vehicle Under the Influence of an Intoxicant (OVUII)[.]

• Officer responded to vehicle collision, and found Def. in driver seat.

• Prior to administering the SFST, Officer Morgan asked Manion several questions, which are known as medical rule-out questions.

• After SFST, Def. was arrested for OVUII.

• After administering the test, Officer Miyamura showed Manion the Intoxilyzer result and told him "this is your result[.]" According to Officer Miyamura, Manion responded: "[T]hat's impossible, I only had one 40 and two fireball shots in three hours."

• Officer Morgan testified that he believed he had probable cause to arrest Manion for OVUII at the point when he (Officer Morgan) made observations consistent with alcohol impairment, and before asking Manion if he would participate in the SFST. Officer Morgan also stated that Manion was not free to leave at this point.

Lower Court Ruling:

• Officer Morgan did not have probable cause to arrest Manion during their initial exchange when Officer Morgan asked Manion if he was okay and where he was coming from.

• Officer Morgan did have probable cause to arrest Manion for OVUII after their initial exchange, and before Morgan asked Manion to participate in the SFST.

State Argues: The State contends that the District Court erred in suppressing "Manion's agreement to take the SFST, Manion's responses to the 'medical rule-out' questions, Manion's responses to the SFST instructions, Manion's responses to why he had been approached, Manion's performance on the SFST and any statements [he] made after the SFST," on the ground that Miranda warnings had not been read to Manion "immediately when he was stopped."4/ The State argues that Miranda warnings were not required because Manion was not in custody or interrogated until after the SFST was administered and he was arrested for OVUII.

Issue on Appeal: Thus, we must examine whether Manion's statements after he was asked to participate in the SFST stemmed from custodial interrogation. See State v. Uchima, 147 Hawaii 64, 84, 464 P.3d 852, 872 (2020)

Rules re Custodial Interrogation:

• Custodial interrogation is comprised of two components, "interrogation" and "custody." Kazanas, 138 Hawaii at 35, 375 P.3d at 1273.

• Focuses on "the place and time of the interrogation, the length of the interrogation, the nature of the questions asked, the conduct of the police, and any other relevant circumstances." State v. Ah Loo, 94 Hawaii 207, 210, 10 P.3d 728, 731 (2000) (brackets omitted) (quoting State v. Melemai, 64 Haw. 479, 481, 643 P.2d 541, 544 (1982)); see also Kazanas, 138 Hawaii at 35, 375 P.3d at 1273 (reiterating same).

• "the touchstone in analyzing whether 'interrogation' has taken place is whether the police officer 'should have known that his or her words and actions were reasonably likely to elicit an incriminating response from the defendant.'" Id. at 38, 375 P.3d at 1276 (brackets omitted) (quoting State v. Paahana, 66 Haw. 499, 503, 666 P.2d 592, 595- 596 (1983)); see Uchima, 147 Hawaii at 84, 464 P.3d at 872

• We recognize that red and glassy eyes and "imperfect driving," standing alone, are insufficient to establish probable cause to arrest a person for OVUII. Kaleohano, 99 Hawaii at 377-78, 56 P.3d at 145-46.

Discussion: State conceded "that Officer Morgan had probable cause to arrest Manion for OVUII after their initial exchange and before Officer Morgan asked Manion if he would participate in the SFST. Relatedly, the State did not dispute that Manion was in custody when Officer Morgan asked him whether he would participate in the SFST. These issues are therefore waived on appeal. See, e.g., State v. Skapinok, No. CAAP-19-0000476, 2020 WL 2991783, at *5 (Haw. App. June 4, 2020) (Mem. Op.) "

Holding - Custody Attached: the evidence showed that after Officer Morgan's initial exchange with Manion, Officer Morgan knew that Manion: (1) had hit a parked vehicle; (2) was exhibiting red and watery eyes and an odor of alcohol; and (3) had said that he was coming from Sandy's and had drunk a "40." On this record, we cannot conclude that the District Court was wrong in ruling that Officer Morgan had probable cause to arrest Manion for OVUII after their initial exchange, as set forth in COL No. 8. Given the additional testimony by Officer Morgan that Manion was not free to leave the scene at that point, and based on the totality of the circumstances, we also cannot conclude that the District Court was wrong in ruling that legal custody had attached.

Next Issue: the remaining issue is whether the subsequent questions by police that resulted in the suppressed statements and SFST performance constitute interrogation. Melemai, 64 Haw. at 481, 643 P.2d at 543-44

Other Holdings:

• SFST Was Not Interrogation: Manion's performance on the SFST did not constitute incriminating statements in response to an interrogation requiring Miranda warnings. Thus, we conclude that the District Court erred in COL Nos. 10 through 15 and 17 by suppressing Manion's responses to whether he would participate in the SFST, whether he understood the instructions and had any questions regarding the SFST, and the officer's observations of Manion's performance on the SFST. Accordingly, COL Nos. 10 through 15 and 17 are wrong in relevant part.

Holding re Medical Rule Out Was Interrogation:

• An incriminating response is any response, either inculpatory or exculpatory. Innis, 446 U.S. at 301 n.5.

• Manion was in custody when the medical rule-out questions were asked. He had not been given Miranda warnings. The medical rule-out questions constituted interrogation. Thus, we conclude that Manion's responses to those questions should have been suppressed and the District Court did not err to the extent it so concluded in COL Nos. 10 through 15.

NO. CAAP-18-0000751

SOH v Lee

Memo. Op.

 Subject Matter: SFSTs and Medical Rule-Out Questions; OVUII; New Trial Appropriate Following Appeal

Background - OVUII Arrest and Conviction.

 Issues on Appeal: Def. contends error where by the court in

• "(1) denying his motion to suppress evidence;

• (2) failing to conduct a proper Tachibana colloquy;

• (3) convicting him based on insufficient evidence; and

• (4) failing to engage him in a colloquy before accepting the parties' stipulation to a witness's qualifications to administer the standard field sobriety test (SFST).

• We hold that the district court should have suppressed Lee's responses to the SFST medical rule-out questions. Accordingly, we vacate the Judgment. Because we also hold that substantial evidence supported Lee's conviction, we remand for a new trial."

First Issue - Silence Suppressable?

• Tsujimura Case - Silence Can Be Suppressable Statement - But SFST Performance is Not: The supreme court held that Tsujimura's silence — not saying he had a knee injury while getting out of his car — was improperly admitted into evidence and was used as substantive proof of guilt. Id. at 316-17, 400 P.3d at 517-18.

• But - Tsujimura does not support the proposition that a defendant's physical performance on the SFST is a "non-verbal communicative response." Rather, the supreme court has held that a defendant's performance on the SFST "does not constitute incriminating statements[ because] when conducting an [S]FST the State does not seek 'communications' or 'testimony,' but rather, 'an exhibition of physical characteristics of coordination.'" State v. Uchima, 147 Hawaii 64, 84, 464 P.3d 852, 872 (2020) (citing State v. Wyatt, 67 Haw. 293, 303, 687 P.2d 544, 551 (1984) (cleaned up)). Lee's reliance on Tsujimura is misplaced.

Next Issue - Pre SFST Medical Questions Suppressable?

• Officer's Observations (the usual): bad driving, red eyes, smell of alcohol.

• Custody: Lee contends that he was in custody when he was first stopped because Officer Carr had probable cause to arrest him for reckless driving.7 We agree.

• Holding - Yes Custody: Because Lee was in custody, Officer Carr should have given him Miranda warnings before any interrogation. See State v. Sagapolutele-Silva, 147 Hawaii 92, 100, 464 P.3d 880, 888 (App. 2020), cert. granted, No. SCWC-19-0000491 (Haw. Sept. 16, 2020). Because the Miranda warnings were not given, Lee's responses to the medical rule-out questions should have been suppressed. Id. at 102-03, 464 P.3d at 890-91; cf. Uchima, 147 Hawaii at 84, 464 P.3d at 872

Final Issue - New Trial Appropriate:

• Rule: "The double jeopardy clause of article I, section 10 of the Hawaii Constitution requires a[n] appellate court to address a defendant's express claim of insufficiency of the evidence prior to remanding for a new trial based on trial error." State v. Sheffield, 146 Hawaii 49, 61, 456 P.3d 122, 134 (2020) (citation omitted).

• Holding - Yes New Trial: We hold that the admissible testimony from Officer Carr, when viewed in the light most favorable to the State, was sufficient to support Lee's OVUII conviction.

NO. CAAP-19-0000594

SOH v MILNE

Memo. Op.

 Subjects Include: Abuse of Fam - Who is “Family”?

Background:

• SOH appeals from lwr court's order granting Def. motion to dismiss count II on basis that Crt Lacked Sbj Jx over Ct II.

• Count I was Abuse of Fam on CW1

• Count II was assault on CW2

• Holding: We hold the Family Court has jurisdiction with regard to Count 2, and therefore, we vacate the Dismissal Order and remand for further proceedings.

Issue: did fam court have jx over CW2 where CW2 was the father of CW1, CW1 is Milne's girlfriend, but CW2 and Def. did not live or reside in the same household?

Statute:

• HRS § 571-14 Jurisdiction; adults: (b) The court shall have concurrent jurisdiction with the district court over violations of sections 707-712, 707-717, 707-722, 708-822, 708-823, 710-1010.5, 711-1106, and 711-1106.5 when multiple offenses are charged through complaint or indictment and at least one offense is a violation of an order issued pursuant to chapter 586 or a violation of section 709-906. HRS § 571-14(b) (2014) (emphases added).

• Def. argued: that said statue is limited where the offenses are alleged as to different persons, one of whom is not a family/household member.

Holding - Crt Had Jx:Even assuming there is an ambiguity as to whether HRS § 571-14(b) limits charges of multiple offenses to the same complaining witness, as Milne argued below, the legislative history reflects otherwise.

NO. CAAP-19-0000020

SOH V CLOWE

SDO

 Subject Matter: Confidential Informants; Affidavit/Evidence Supporting a Search Warrant; Duty to Disclose CI’s Crim History.

Background:

• SOH Appealing Grant of Motion to Suppress.

• Def. Charged With: Attempted Promoting a Dangerous Drug in the First Degree, in violation of Hawaii Revised Statutes (HRS) §§ 705-500 (2014) and 712-1241(1)(b)(ii) (Supp. 2017); Promoting a Dangerous Drug in the Second Degree, in violation of HRS § 712-1242(1)(b) (Supp. 2017); Promoting a Harmful Drug in the Fourth Degree, in violation of HRS § 712-1246.5(1) (2014); and Prohibited Acts Related to Drug Paraphernalia.

Testimony: Officer Affidavit in Support of Search Warrant Included Info from Confidential Informant: The affidavit states that Kekona (confidential informant) provided the following information to Officer McDaniel:

• (1) on March 14, 2018, Kekona observed, while in the presence of Ilae and Clowe, approximately half a pound of methamphetamine at the subject residential unit;

• (2) Kekona was told that Ilae and Clowe both went to Oahu two days before his contact with them on March 14, 2018, to pick up one pound of methamphetamine and returned to Kona with the methamphetamine; and

• (3) Kekona has visited Clowe at the subject residential unit multiple times.

• The affidavit further states that Officer Marco Segobia (Officer Segobia) spoke with the community manager of the residential community, Tammy Ichokwan (Ichokwan).

Issue on Appeal: In sum, the circuit court characterized Kekona as a confidential informant and concluded that the search warrant failed to establish the veracity of the information stated in the affidavit to the search warrant, specifically Kekona's credibility. The State argues that the circuit court erroneously evaluated Kekona's credibility under the standard applicable to confidential informants, which Kekona was not. In particular, the State argues that the circuit court erred in granting the motion to suppress based on its conclusions that the State did not meet its burden of demonstrating that Kekona had a history of providing the government with reliable tips in the past and that the State also failed to disclose Kekona's criminal history to the judge who approved the search warrant.

Relevant Conclusions:

• 17. The failure of [McCarron] to disclose this highly relevant information to the magistrate judge before the judge signed off on the warrant prevented the judge from making a fully informed decision about the propriety of issuing the search warrant at issue in this case. This error or omission on the part of [McCarron] cannot be said to be harmless beyond a doubt because the credibility of the CI is always relevant to and material to the Court's probable cause determination.

•  18. [McCarron] was required to make this disclosure to the issuing court - which he did not. For this reason and for the other reasons cited to above, the evidence seized in this case is suppressed.

ICA Discussion:

• Issue: Although Kekona was not a confidential informant, the information he provided served as the basis for the affidavit for the search warrant and constituted hearsay. We must therefore determine whether this hearsay information was sufficiently reliable to support probable cause for the issuance of the search warrant.

• Rule: the affidavit must set forth: (1) some of the underlying circumstances from which the informant drew the conclusion regarding criminal activity; and (2) some of the reasons which led the affiant to believe that the informant was credible or the informant's information was reliable. State v. Decano, 60 Haw. 205, 210, 588 P.2d 909, 913-14 (1978).

Analysis:

• First Prong: Here, the affidavit states that Kekona saw approximately half a pound of methamphetamine at the subject residential unit while he was in the presence of Clowe and Ilae. Because the affidavit relates that Kekona provided this information based on his personal observations, the first prong of the Aguilar test was satisfied. See State v. Davenport, 55 Haw. 90, 95-96, 516 P.2d 65, 69 (1973)

• Second Prong:

  • Rule: As for Kekona's credibility or the reliability of the information he provided, Kekona's identification in the affidavit is significant. "[A]n identified informer would generally be entitled to greater credibility than a 'faceless' informer would

  • Analysis: Combined with the statements that Kekona personally observed the methamphetamine at a residence which he frequently visited and from which he was leaving when arrested himself, and that Kekona was familiar with Clowe and Ilae, the affidavit therefore contained sufficient information to support Officer McCarron's conclusion that Kekona was credible or that the information Kekona provided was reliable and the second prong of the Aguilar test was satisfied.

  • Substantial Ev in the Record? No: the circuit court adopted the reasoning, that Kekona's criminal history indicated a lack of credibility on Kekona's part. The record contains no details of the circumstances under which Kekona committed theft in the second degree, let alone any details relating to the convictions that would support a finding that Kekona was unreliable. There being no evidence in the record to support the circuit court's finding that Kekona's reliability was suspect because he was convicted of crimes of dishonesty, that portion of FOF H was clearly erroneous.

• Other - No Duty to Disclose "Criminality": we conclude that the circuit court erred in COLs 16-18 when it concluded that Officer McCarron was required to disclose information regarding Kekona's criminal history and that the omission of such information rendered the affidavit insufficient to establish probable cause.

NO. CAAP-19-0000577

SOH v PULGADOS

Memo Op.

 Subject Matter: Crime Victim Compensation Fee vs Indigency

Background:

• Fees: Convicted Def's by law are ordered to pay a crime victim fee (CVC) and a internet crimes fee (ICAC).  The may be waived if Def. unable to pay them.

• Issue: We analyze the language of these statutes and their application to the appellant, in light of the evidence in the record as to his financial circumstances, and we conclude that the trial court erred in imposing CVC fees and ICAC fees in this case.

• Sentencing: Def. was ordered to pay the above fees and restitution.  "At the sentencing hearing, the Circuit Court denied Pulgados's request that he be found indigent and that any fees be waived, but granted his request to hold a hearing to further examine whether a waiver was warranted.4 The court ordered payment of at least 25 percent of Pulgados's gross earnings while incarcerated, with payment thereafter at the rate of at least $30 per month, and with the $906.99 in restitution payable first."

• Def. Argued: He is indigent, and even if not, "[t]hey are not fees at all, but taxes unconstitutionally delegated to the Judiciary."

• Court Ordered the Fees: the Circuit Court entered the Order Denying Motion to Waive. The court found and concluded that "though Defendant has some medical issues, he is otherwise healthy, young, able-bodied, educated, and willing and able to find employment after release from custody." In addition, the court found that Pulgados "has the ability to become employed in the future; and, when he becomes employed, the minimum payment of $30.00 per month would be feasible." The Circuit Court therefore concluded that Pulgados "is willing and will eventually be able to pay the fees pursuant to HRS § 706-605(6)."

Relevant Standard of Review: "A judge has broad discretion in matters related to sentencing." State v. Phillips, 138 Hawaii 321, 357, 382 P.3d 133, 169 (2016) (citation omitted). Accordingly, a trial court's sentencing or resentencing determination will not be disturbed absent a "plain and manifest abuse of discretion in its decision." Rauch, 94 Hawaii at 322, 13 P.3d at 331 (citations omitted).

ICA Discussion:

Statue:

• HRS § 846F-3(a) plainly and unambiguously states that "no fee shall be ordered when the court determines that the defendant is unable to pay the fee." The statute is written in the present tense, using mandatory language, and does not contain any language suggesting that a sentencing court has the discretion to order payment of ICAC fees even when a defendant is found to be unable to pay the fee at the time of sentencing.

• [W]e conclude that a sentencing court must impose CVC fees upon the satisfaction of two conditions:

  • (1) that the defendant has been convicted of a criminal offense, including a conviction upon a plea; and

  • (2) a determination that the defendant is or will be able to pay the CVC fee. If it is determined that the defendant is unable to pay the CVC fee, then the sentencing court must waive the imposition of the CVC fee as stated in HRS § 351-62(a), as well as HRS § 706-605(6).

Rule re Indigency: Although HRS § 846F-3(a) itself does not define "unable to pay," it is well-established that indigency is the condition of being unable to pay. See generally Gideon v. Wainwright, 372 U.S. 335 (1963) (using indigency interchangeably with terms such as in forma pauperis, without funds, poor); Arnold v. Higa, 61 Haw. 203, 600 P.2d 1383 (1979) (using indigent and unable to pay interchangeably).

Analysis - Error:

• We conclude that, with respect to the ICAC fees levied pursuant to HRS § 846F-3(a), the Circuit Court erred for two reasons.

  • First, the Circuit Court did not make a ruling on whether Pulgados was unable to pay the ICAC fees at the time of sentencing, the determination that is plainly required pursuant to this statute. There is virtually no evidence in the record that Pulgados was able to pay the ICAC fees at the time of sentencing; there is overwhelming evidence in the record that Pulgados was unable to pay the ICAC fees at the time of sentencing.

  • Second, even if the Circuit Court could have properly considered evidence of Pulgados's future earnings in its imposition of ICAC fees pursuant to HRS § 846F-3(a), the evidence as to Pulgados's age, his attainment of a GED, and his physical 14 FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER ability to engage in some form of work at some point in the future was insufficient to demonstrate that he would not remain indigent and unable to pay the ICAC fees.

Holding: For these reasons, we conclude that the Circuit Court erred in failing to determine that Pulgados was unable to pay the CVC fees imposed on him pursuant to HRS §§ 706-605(6) & 351-62.6. Accordingly, the Circuit Court erred in imposing the CVC fees and denying Pulgados's request to waive the CVC fees.