CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CAAP-10-0000109; FC-CR. NO. 08-1-0035(4))
Taryn R. Tomasa, for petitioner
Artemio C. Baxa, for respondent
ACOBA, McKENNA, AND POLLACK, JJ.; WITH NAKAYAMA, J., CONCURRING, WITH WHOM RECKTENWALD, C.J., JOINS
We hold that the Family Court of the Second Circuit (the court) abused its discretion in denying the request for a continuance made by Petitioner/Defendant-Appellee Joseph D. Villiarimo (Villiarimo). The court failed to give reasons for its decision to deny the continuance, making the denial effectively unreviewable on appeal. Moreover, in probation modification or probation revocation hearings, courts should apply a "good cause" standard for determining whether a continuance should be granted, in recognition of the nature of probation hearings. Lastly, for purposes of determining whether a defendant has "inexcusably failed to comply with a substantial requirement imposed as a condition of the [probation] order . . .[, ]" Hawai'i Revised Statutes (HRS) § 706-725(3) (Supp. 2004), courts should consider (1) whether the probationer's actions were intentional, and (2) whether the probationer's actions, if intentional, were a deliberate attempt to circumvent the court's probation order, considering the goals of sentencing the defendant to probation.
Villiarimo applied for a writ of certiorari (Application) from the May 8, 2010 Judgment of the Intermediate Court of Appeals (ICA), filed pursuant to its March 28, 2013 Summary Disposition Order (SDO). This court granted certiorari review of the ICA's affirmation of the order revoking Villiarimo's probation and re-sentencing him.
On January 30, 2009, Villiarimo entered a no contest plea to a charge of sexual assault in the third degree, and the court sentenced him to five years of probation, that included 149 days of incarceration. In May 2009, Villiarimo entered into a three-month stay at the Aloha House residential dual diagnosis treatment program following a mental health or drug-related "episode" that required him to be stabilized. At Aloha House, he was prescribed the medications Wellbutrin and Seroquel. By October 2009, Villiarimo was living in "regular housing" and at some point started using crystal methamphetamine. He testified that "[a]s soon as [he] started using again, [he] didn't take [his] medication anymore."
After Villiarimo tested positive for methamphetamine use, in violation of his probation, Villiarimo's probation officer (the officer), filed a written motion for modification of the terms and conditions of Villiarimo's probation on October 30, 2009 (First Motion). A hearing regarding this First Motion for modification was held on November 2, 2009. That same day, the court filed a mittimus committing Villiarimo to jail, "effective immediately" for a period of eight days. On November 13, 2009, the court entered an order modifying Villiarimo's probation for "inexcusably fail[ing] to refrain from use . . . [of] illegal drug[s] ... as directed by the court or probation officer."
According to Villiarimo's testimony at a later hearing, discussed below, during the time prior to the First Motion, Villiarimo had "detoxed [from meth] on [his] own at [his] house" after he was found "guilty for relapsing" but still did not take his medication. During his eight-day stay in jail, he was not given his prescribed medication. The jail offered Haldol to him, but Villiarimo did not take it because he experienced adverse effects from it in the past. Villiarimo was apparently discharged from jail on November 10, 2009.
On December 7, 2009, the officer filed a second written motion, requesting a modification of the terms and conditions of Villiarimo's probation and for revocation of Villiarimo's probation, pursuant to HRS § 706-625 (Second Motion). She alleged that Villiarimo: (1) failed to report to a probation officer on November 30, 2009, in violation of Condition 2 of the terms and conditions of probation; (2) failed to maintain mental health treatment services on November 19, 2009 by not attending a preliminary interview for a treatment program, in violation of Special Condition J; and (3) failed to participate in the sexual offender treatment program, because he was suspended from the program on November 30, 2009 for excessive absences and failure to accept responsibility, in violation of Special Condition P.
On December 16, 2009, Villiarimo's counsel moved for a mental examination to determine whether Villiarimo was fit to proceed under HRS § 704-404. On December 22, 2009 the court suspended proceedings for an examination of Villiarimo's fitness. After all three of Villiarimo's examiners opined that he was not fit to proceed, the court found Villiarimo unfit to proceed, suspended the proceedings under HRS § 704-406 (l),  and committed him to the custody of the Director of Health on March 11, 2010.
That same day, Villiarimo was admitted to Hawai'i State Hospital (HSH). He was started on antipsychotic medication as well as medication for Attention Deficit Disorder (ADD) in mid-March. On April 6, 2010, he was transferred from Unit H, the admission unit, to Unit S for further psychosocial care. Also on that day, Dr. Joan H. Fukumoto (Dr. Fukumoto) became Villiarimo's attending psychiatrist. After the unit transfer, Villiarimo did not exhibit any overt mood or psychotic symptoms, or any aggressive behavior.
On April 9, 2010, Villiarimo was evaluated for trial competence with the use of the Revised Competency Assessment Instrument (R-CAI). The results suggested that Villiarimo possessed the capacity to proceed. On April 16, 2010, Dr. Fukumoto wrote a letter to Ms. Janice Futa, prosecuting attorney, requesting a three member panel examination of Villiarimo's fitness to proceed, reporting the R-CAI results and her own findings on Villiarimo's fitness. After three examiners opined Villiarimo was fit to proceed, the court resumed proceedings on August 16, 2010.
On September 30, 2010, the court held an evidentiary hearing on the officer's Second Motion. At the hearing, Respondent/Plaintiff-Appellee State of Hawai'i (the State) called the officer as its witness. On cross-examination, Villiarimo's counsel asked the officer if she had an opinion on whether Villiarimo was "decompensating" in October 2009. However, the court only allowed the officer to testify to what she saw after inquiring whether the officer knew the "medical" meaning of decompensation:
MS. HUDSON [(defense counsel)]: And did you see a change in his behavior more like decompensation starting in lake October?
THE COURT: Are you s[ay]ing that in a technical sense?
MS. HUDSON: I'll say it in the - yes, in a technical sense.
THE COURT: Decompensation is a medical term. Do you know what that means from a medical point of view?
[The officer]: Well, not - if you define it for me.
THE COURT: No, she's asking whether you have an opinion about whether he had any decompensation.
[The officer]: Well, he wasn't -
THE COURT: Listen, you are not a trained medical professional. Do you know the definition of that term as used by doctors?
[The officer]: Not in that sense.
THE COURT: Well, I don't think you're in a position to offer an opinion about it. You can describe what you saw.
Following the officer's testimony, Villiarimo's counsel requested a continuance for the purpose of calling a physician from HSH:
MS. HUDSON: Yes, your honor. And actually at this point, I think it would be helpful to have one of the Hawai'i State Hospital doctors, and I had not subpoenaed at this point. Perhaps I could do that via video. But I think it's important - or going to be important to present the evidence (inaudible) on fitness. I think its particularly relevant about whether he could comply with the terms and conditions.
THE COURT: Well, [we're] here for the hearing today.
MS. HUDSON: I understand, your Honor.
THE COURT: So if you want to take a break - I'm just going to take a short break. You can talk with  your client, but we're going to finish this hearing today.
After the court's effective denial of the request for a continuance, Villiarimo testified. He reported that he had not been able to meet his probation requirements because his "organization wasn't there anymore." He explained that he had decompensated during his eight-day stay in jail because during that stay, he was not given Seroquel, his prescribed medication.Villiarimo added that when he left jail he did not take his medication because "at that point . . . [he] was already decompensating[;]" he "wasn't in [his] right mind" and "thought . . . that [he] didn't need the medication when [he] actually did." He related that while decompensating, he "felt completely scattered, " his "thoughts were racing, " he "was hearing voices, " he was "anxious all the time, " and he "wasn't getting any sleep."
After Villiarimo concluded his testimony, Villiarimo's counsel again requested a continuance having Dr. Fukumoto as the witness to be called:
THE COURT: Does the defense have further evidence or witnesses ?
MS. HUDSON: Well, again, your Honor, I would like to ask for a continuance because I think if - I'm actually not sure - let me ask the Court this: There was a report from the State Hospital from his treatment team that suggested a plan for him when he was released from State ...