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State of Hawaii v. Gerald L. Austin

March 6, 2013

STATE OF HAWAII, PLAINTIFF-APPELLEE,
v.
GERALD L. AUSTIN, DEFENDANT-APPELLANT AND
JOSEPH K. AUSTIN,
DEFENDANT



APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT (CRIMINAL NO. 07-1-1652)

NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER

MEMORANDUM OPINION

(By: Foley, Presiding Judge, Leonard and Reifurth, JJ.)

Defendant-Appellant Gerald L. Austin (Austin) appeals from the Circuit Court of the First Circuit's (Circuit Court's) March 3, 2010 order denying Austin's motion for reduction of sentence.*fn1

On July 2, 2008, the Circuit Court entered a judgment of conviction and probation sentence against Austin for robbery in the second degree in violation of Hawaii Revised Statutes (HRS) § 708-841 (1993 & Supp. 2011)*fn2 and sentenced Austin to a five-year term of probation that included certain mandatory special terms and conditions including imprisonment for eighteen months.

Within approximately two months of his release from an eighteen month imprisonment, on June 18, 2009, Plaintiff-Appellee State of Hawaii (State) moved to revoke Austin's probation due to his violation of certain terms and conditions of his probation. On October 28, 2009, the Circuit Court granted the State's motion, resentencing Austin to imprisonment for ten years. Austin did not appeal the resentencing order. On January 26, 2010, Austin filed a Hawaii Rules of Penal Procedure (HRPP) Rule 35 motion to reduce the sentence.*fn3 The Circuit Court entered an order denying his motion on March 3, 2010. On March 18, 2010, Austin timely filed a notice of appeal. On appeal, Austin raises a single point of error, contending that the Circuit Court abused its discretion in denying his motion to reduce the sentence under the circumstances here, principally because his probation violations were nonviolent and drug-related and that he should have been allowed to enter a drug treatment program rather than being sent (back) to prison.

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 by the parties, we resolve Austin's point of error as follows:

On June 18, 2009, the State moved to revoke Austin's probation because he had failed to: (1) report to his probation officer as instructed on June 3, 2009; (2) refrain from the possession and use of alcohol and illegal drugs as ordered by the Circuit Court; (3) obtain and maintain substance abuse treatment until clinically discharged as ordered by the Circuit Court; and (4) report for a review hearing on June 3, 2009.

At an August 19, 2009 hearing, the Circuit Court found that Austin had "inexcusably failed to comply with substantial conditions of his probation[.]" After Austin pleaded for a second chance, the Circuit Court continued the hearing until it could be determined whether Hawaii's Opportunity Probation with Enforcement (HOPE) program *fn4 would accept Austin, explaining its reasoning:

The Court: . . . You know, you've never made it under court supervision or parole supervision. Right. And, you know, I have serious doubts that you're going to make it here. I think the only way you're going to make anything is in something like the HOPE program. I try to run a review hearing kind of situation with you, but you don't even show up for the review hearing. Within two months --

The Defendant: I'm sorry.

The Court: -- of getting out of jail and you . . . you haven't committed a crime in a while because you have been in jail for 18 months. But within two months of getting out, you -- you quit reporting and you admit to doing drugs every day, drinking and doing drugs every day. Whenever you can find them, wherever you can find them, you'll do this. All right.

And, you know, at this point you're asking me to give you another chance. This is not a minor offense. This is robbery in the second degree. It's a ten-year felony. Without something like the HOPE program, I don't think you have any chance to comply. I don't think you're serious about complying. If you ...


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