CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (ICA NO. CAAP-11-0000451; CR. NO. 05-1-0366(2))
Summer M.M. Kupau, for petitioner
Artemio C. Baxa, for respondent
ACOBA, MCKENNA, and POLLACK JJ., WITH RECKTENWALD, C.J., CONCURRING AND DISSENTING, WITH WHOM NAKAYAMA, J., JOINS
We hold that for the purposes of expungement of a drug conviction, Hawai'i Revised Statutes (HRS) § 706-622.5(4) (Supp. 2004),  the requirement that a defendant sentenced to probation under HRS § 706-622.5 (1) has "complied with other terms and conditions" is satisfied if the defendant has completed his or her probationary term and has been discharged from probation. Because the Circuit Court of the Second Circuit (the court) held to the contrary, we vacate the July 26, 2012 judgment by the Intermediate Court of Appeals (ICA) affirming the court's May 11, 2011 order denying the January 31, 2011 Motion for an Order of Expungement (Motion) filed by Petitioner/Defendant-Appellant Lisa Ann Pali (Petitioner), and also vacate the aforesaid order.
On December 29, 2005, Petitioner was sentenced to a five-year term of probation for the offenses of Promoting a Dangerous Drug in the Third Degree, HRS § 712-1243(1) (1993) and Prohibited Acts Related to Drug Paraphernalia, HRS § 329-43.5(a) (1993). The probationary sentence was granted to Petitioner as a "first time drug offender" pursuant to HRS § 706-622.5. The purpose of HRS § 706-622.5 is "to promote treatment of nonviolent substance abuse offenders, rather than [imposing] incarceration, as being in the best interests of the individual and the community at large[, ]" in order to reduce recidivism. Conf. Comm. Rep. No. 96-02, in 2002 Senate Journal, at 986, in 2002 House Journal, at 1796. The Judgment, Conviction and Probation Sentence, filed by the court on December 29, 2005, included the following "Terms and Conditions of Probation":
1. You must not commit another federal or state crime during the term of probation;
5. You must notify a probation officer promptly if arrested or questioned by a law enforcement officer [ . ]
Also, the Judgment, Conviction and Probation Sentence contained a number of "Special Terms and Conditions, " including that Petitioner "must not possess, use, or consume any alcohol, unprescribed or illegal drug nor possess any drug-related paraphernalia."
On January 24, 2011, after the conclusion of Petitioner's probation period, the Adult Client Services Branch (probation department) filed a Certificate of Discharge (Certificate), providing in relevant part as follows:
Wherefore, having completed the period of probation on December 28, 2010, [Petitioner] shall be relieved of any obligations imposed by the order of the court and shall have satisfied the disposition of the court except as to any action to collect unpaid fines, restitution, attorney's fees, costs, or interest (HRS [§] 706-630); thereby, is restored to such rights deprived pursuant to Section 831-2 of the [HRS].
(Emphases added) (original emphasis omitted). On January 31, 2011, Petitioner filed her Motion. On February 8, 2011, Respondent/Plaintiff-Appellee State of Hawai'i (Respondent) filed its Statement of Opposition to the Motion (Statement of Opposition). The Statement of Opposition included a discussion of Petitioner's criminal history during the probationary period and stated that Petitioner was convicted of Theft in the Fourth Degree on November 8, 2006, Operating a Vehicle Under the Influence of an Intoxicant (OVUII) on March 7, 2007, Criminal Contempt of Court on May 3, 2007, and Driving Without a License on May 29, 2008 and again on December 15, 2009.
The Statement of Opposition also noted that Petitioner had not presented documentation to aid the court in assessing Petitioner's completion of a substance abuse treatment program. On February 9, 2011, Petitioner filed an Addendum to her Motion (Addendum). This Addendum provided certificates indicating Petitioner's completion of several substance abuse treatment programs, but did not address Petitioner's criminal history.
The court held an initial hearing on February 10, 2011 with respect to Petitioner's Motion. During the hearing, the court raised the issue of Petitioner's prior convictions, stating, "I'm just telling you right now it doesn't look like [Petitioner] deserves an expungement because of these convictions . . . . I don't know if she told probation -- even if she told them." Following this statement, the court asked defense counsel if she wanted more time, apparently to check with Petitioner's probation officer and to prepare a response to the judge's remarks regarding the prior convictions. She answered in the affirmative and the judge granted a continuance.
On April 18, 2011, Petitioner filed a "Memo in Support of Motion for An Order of Expungement Pursuant to HRS § 706-622.5(4)" (Memo in Support). The Memo in Support stated, inter alia, that Petitioner had successfully completed three substance abuse programs, complied with the other terms and conditions of probation, and her "conviction should be expunged."
[P]er her Probation Officer , [Petitioner] has in fact complied with the "other terms and conditions" of her probation. This despite [Petitioner's] conviction for Theft 4 (where she was considered an accomplice to her daughter because they came into the store together), her [OVUII] (based on a relapse after finishing [a drug abuse treatment program] at Malama in 2006) when she was starting Family Court Drug Court after the [OVUII] as well as participating in The Shelter's Relapse Prevention Program after the [OVUII], and because she was getting Dual Diagnosis treatment based on Mental Health and Drug addiction issues, [Petitioner's probation officer] still believes [Petitioner] has successfully complied with the other terms and conditions of her probation and thus discharged [Petitioner] from Probation, with [Petitioner's probation officer]'s supervisor's approval.
[Petitioner's probation officer] is proud of [Petitioner] and related that [Petitioner] continues to attend AA/NA and is a mentor for other Family Court Drug Court clients. [Petitioner's probation officer] also relates that while on probation to date, [Petitioner] is trying to adopt her granddaughter and cannot do so if she has a felony conviction.
As the law under HRS § 706-622.5 speaks to complying with "other terms and conditions" of probation and as in her probation officer's opinion and recommendation that [Petitioner] has complied with the other terms and conditions to her satisfaction, ...