CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CAAP-11-0000654; FC-CR NO. 08-1-532)
Robert K. Allen for petitioner
Jefferson R. Malate for respondent
Recktenwald, C.J., Nakayama, and McKenna, JJ., with Pollack, J., dissenting separately, with whom Acoba, J., joins.
ORDER REJECTING APPLICATION FOR WRIT OF CERTIORARI
Petitioner/Defendant-Appellant's application for writ of certiorari filed on May 6, 2013, is hereby rejected.
POLLACK, J., IN WHICH ACOBA, J., JOINS
I respectfully dissent from the denial of petitioner/defendant-appellant Alfred K. Beaver's (Petitioner) application for writ of certiorari. This case arises from the Family Court of the Third Circuit's (family court) revocation of deferral of Petitioner's no contest plea. I would accept the application due to the family court's plain error in ordering Petitioner to pay restitution as a condition of deferral: 1) without undertaking a colloquy with Petitioner regarding restitution at the change of plea hearing; 2) without determining whether Petitioner could afford to pay the ordered monthly installment payments toward restitution; and 3) without entering findings and conclusions that the manner of payment was reasonable and one which Petitioner could afford. As a separate and additional basis for accepting the application, I believe that a remand to the family court is required to determine the court's basis for revoking the deferral and imposing the jail term against Petitioner. For these reasons, I would accept the application.
On January 13, 2010, Petitioner entered a no contest plea to the charge of persistent nonsupport in violation of Hawai'i Revised Statutes (HRS) § 709-903, pursuant to a plea agreement whereby he would be granted a one year deferral. At the change of plea hearing, the prosecutor recited the terms of the plea agreement on the record, which included staying a fourteen-day jail term. Petitioner would also be required to pay restitution in the amount of $40, 711, payable at a rate of $400 per month or a lesser amount if approved by the child support enforcement agency or the family court. The family court then engaged Petitioner in a colloquy regarding his deferred acceptance of no contest (DANC) plea, but did not specifically question Petitioner about the amount of restitution or the manner of payment. The court also did not inquire with Petitioner regarding defense counsel's statement that Petitioner would "forgo" his "right to have some sort of contested restitution hearing." The court nevertheless granted the DANC plea setting forth the terms and conditions of deferral.
On the same day as the plea hearing, the court executed an order granting the DANC plea, with the terms and conditions of deferral attached to the order. Neither the order nor the terms and conditions reflected the $40, 711 restitution amount or the $400 monthly payment. Immediately after the plea hearing, Petitioner met with a probation officer and signed the terms and conditions form.
On May 24, 2010, Petitioner again signed the same terms and conditions form, just below his original signature. The form was not otherwise altered and was filed on May 27, 2010 in the family court.
On July 1, 2010, the court filed an amended DANC order, which provided that Petitioner was required to pay "RESTITUTION of $40, 711.00 payable at $400/month, " and attached a copy of the terms and conditions form that Petitioner had signed on January 13. In September 2010, Petitioner met with a second probation officer, who instructed him to sign the "amended order" in order to show that "he understood and [was] willing to abide with the conditions set forth" in the order. Petitioner refused to sign and indicated that he wanted to return to court.
Subsequently, the State filed a motion to set aside the DANC plea, adjudicate guilt, and resentence Petitioner based on his failure to "comply with the reasonable instructions" of his probation officer as well as his failure to sign the terms and conditions of deferral on September 13, 2010. The attached declaration of counsel also alleged that Petitioner "willfully failed to pay the $400 per month toward restitution that he was orally ...