APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT (CR NO. 12-1-0166)
James M. Anderson Deputy Prosecuting Attorney City and County of Honolulu for Plaintiff-Appellant
Phyllis J. Hironaka Deputy Public Defender for Defendant-Appellee
NAKAMURA, CHIEF JUDGE, AND FOLEY AND LEONARD, JJ.
After pleading guilty to a felony drug offense, Defendant-Appellee Michael Frazer (Frazer) was granted a conditional discharge pursuant to Hawaii Revised Statutes (HRS) § 712-1255 (2014) and placed on probation subject to conditions for five years. While still within the five-year probationary period, Frazer allegedly possessed a semi-automatic firearm and used it to threaten another person. Plaintiff-Appellant State of Hawai'i (State) charged Frazer with first-degree terroristic threatening with the use of a dangerous weapon, namely, a semiautomatic firearm (Count 1); and possession of a firearm while "under indictment" for a felony (Count 2).
Count 2 charged a violation of HRS § 134-7(b) (2011), which provides:
No person who is under indictment for, or has waived indictment for, or has been bound over to the circuit court for, or has been convicted in this State or elsewhere of having committed a felony, or any crime of violence, or an illegal sale of any drug shall own, possess, or control any firearm or ammunition therefor.
Frazer was not charged with being a convicted felon in possession of a firearm, but only with possessing a firearm while "under indictment for a felony[.]" Thus, the question presented in this appeal is whether a person, like Frazer, who is indicted on a felony and is still serving the probationary term imposed on a conditional discharge is "under indictment" within the meaning of HRS § 134-7 (b) .
The Circuit Court of the First Circuit (Circuit Court)ruled that Frazer was not "under indictment" when he was serving the probationary term of his conditional discharge, and it therefore dismissed Count 2. We conclude that the Circuit Court erred, and we vacate its dismissal of Count 2.
As explained in greater detail below, the language and legislative history of HRS § 134-7(b) make clear that for a person, like Frazer, who is indicted on a felony, HRS § 134-7(b) prohibits such person from possessing a firearm for the full continuum of time that begins with the indictment and continues until the charge is resolved by conviction, acquittal, or dismissal. If the person is convicted, the prohibition against possessing a firearm continues based on the person's status as a convicted felon. Only if the person's felony charge is resolved by acquittal or dismissal does the prohibition against possessing a firearm, which arose from the person's felony indictment, come to an end.
Under our interpretation of HRS § 134-7(b), the statute clearly prohibits a person who is indicted on a felony and is still serving the probationary term of a conditional discharge from possessing a firearm because the person's felony charge has not been resolved -- there is no acquittal and the charge has not yet been dismissed. There is a question of whether such person should be considered a convicted felon rather than under indictment while serving the probationary term of the conditional discharge. However, in State v. Ritte, 68 Haw. 253, 710 P.2d 1197 (1985), the Hawai'i Supreme Court held that a person who was serving a probationary term on a deferred acceptance of guilty plea under HRS § 853-1 was not a "convicted" person for purposes of HRS § 134-7(b). Given the similar purpose and effect of HRS § 853-1 and HRS § 712-1255, we conclude, based on Ritte, that a person who is serving a probationary term on a conditional discharge is likewise not a "convicted" person for purposes of HRS § 134-7 (b) .
The charge against a defendant who is granted a conditional discharge (or deferred acceptance of guilty or nolo contendere plea) is not dismissed and remains pending until the defendant successfully completes the probationary term imposed. See HRS § 712-1255(2), HRS § 853-1(c). Frazer's felony drug charge, on which he had been indicted, was still not resolved while he was serving the probationary term on his conditional discharge. We hold that Frazer was "under indictment" for purposes of HRS § 134-7(b) after he was granted a conditional discharge and while he was serving the probationary term imposed. Accordingly, we vacate the Circuit Court's decision to dismiss Count 2 and remand the case for further proceedings.
In 2008, Frazer was indicted in Cr. No. 08-1-0354 on one count of promoting a dangerous drug in the third degree, which is a felony, and one count of violating an order for protection. On December 2, 2008, Frazer pleaded guilty to both counts. On March 18, 2009, Frazer was granted a conditional discharge pursuant to HRS § 712-1255 on the count for promoting a dangerous drug in the third degree, and the Circuit Court deferred the proceedings and imposed a five-year term of probation subject to conditions on that count. The Circuit Court sentenced Frazer to a two-year term of probation on the count for violating an order for protection.
On February 1, 2012, Frazer was indicted in this case and charged in Count 1 with first-degree terroristic threatening with the use of a dangerous weapon, to wit, a semiautomatic firearm, and in Count 2 with possession of a firearm while "under indictment for a felony[.]" On the date that he allegedly committed the offenses charged in Counts 1 and 2, Frazer was still serving the five-year probationary term on his conditional discharge for promoting a dangerous drug in the third degree. Count 2 charged, in relevant part, that
MICHAEL FRAZER, a person who is under indictment for a felony, with knowledge or reckless disregard of the substantial and unjustifiable risk that he is under said indictment, did intentionally or knowingly own, possess, or control an object, with intent, knowledge, or reckless disregard of the substantial and unjustifiable risk that the object was a firearm, thereby committing the offense of Ownership or Possession Prohibited of Any Firearm or Ammunition by a Person Indicted for Certain Crimes, in violation of Section 134-7(b) and (h) of the Hawaii Revised Statutes.
Prior to trial, Frazer moved to dismiss Count 2. The Circuit Court granted the motion, and on April 22, 2013, it issued its "Findings of Fact, Conclusions of Law and Order Granting Defendant's Motion to Dismiss Count II of Indictment" (Dismissal Order). In its Dismissal Order, the Circuit Court referred to the grant of a conditional discharge, deferral of the proceedings, and placement on probation under HRS § 712-1255 as being "sentenced" to a "conditional discharge" under HRS § 712-1255. It ruled that a person who has been granted a conditional discharge and "sentenced" to a period of probation under HRS § 712-1255 is neither a convicted felon nor under indictment. The Circuit Court interpreted the phrase "under indictment" as used in HRS § 134-7(b) to refer to the pre-trial status of a defendant pending trial. The Circuit Court noted that in order for a court to grant a conditional discharge and place a defendant on probation under HRS § 712-1255, the defendant must already have pleaded guilty or been found guilty at trial. The Circuit Court concluded that because a defendant, like Frazer, who is granted a conditional discharge and is serving a probationary term is no longer pending trial, such defendant is not "under indictment" and cannot be charged with possessing a firearm while under indictment.
The Circuit Court's pertinent findings of fact and conclusions of law were as follows:
FINDINGS OF FACT
6. The term "under indictment" as used in HRS 134-7 (b) refers to the pre-trial status of a Defendant who is pending trial.
7. "Under Indictment" does not extend to individuals who have been sentenced to a Conditional Discharge.
8. The Defendant, Michael Frazer, was still on Conditional Discharge status at the time of the indictment, and therefore he had already been sentenced and was no longer ...