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State v. Dunbar

Intermediate Court of Appeals of Hawaii

September 30, 2016

STATE OF HAWAI'I, Plaintiff-Appellant,
v.
JOHN P. DUNBAR, JR., Defendant-Appellee

         APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT (CR. NO. 14-1-0694(4))

          Richard K. Minatoya, Deputy Prosecuting Attorney, for Plaintiff-Appellant.

          John P Dunbar Jr Defendant-Appellee ., pro se.

          NAKAMURA, CHIEF JUDGE, LEONARD and GINOZA, JJ.

          OPINION

          GINOZA, J.

         Defendant-Appellee John P. Dunbar, Jr. (Dunbar) was charged in this case with Failure to Provide Specimen For Forensic Identification, in violation of Hawaii Revised Statutes (HRS) § 844D-31(a) (2014) and § 844D-111(a) (2014).[1] Plaintiff-Appellant State of Hawai'i (State) asserts that Dunbar, having been convicted of a felony offense in 2005, and after having received written notice in 2014 from the collecting agency of his obligation to provide a buccal swab sample, [2] failed in 2014 to provide a buccal swab for the collection of his deoxyribonucleic acid (DNA), as required under HRS Chapter 844D.[3]

         The Circuit Court of the Second Circuit (circuit court)[4] dismissed the charge against Dunbar in this case by way of its Findings of Fact, Conclusions of Law, and Order Granting Defendant's Motion to Dismiss (Order Granting Motion to Dismiss), filed on February 3, 2015. The circuit court ruled that Dunbar had "successfully completed probation and once [Dunbar's] probationary period terminated, [Dunbar] was no longer subject to collection [of his DNA] under HRS Section 844D-35." The circuit court further ruled that, given the provisions within HRS Chapter 844D that describe categories of persons from whom DNA samples could be collected, the Legislature intended to limit collection to the categories of persons described.

         On appeal, the State challenges the circuit court's dismissal of the charge and its ruling that the State could no longer obtain Dunbar's buccal swab sample in 2014, after he had been discharged from probation for his felony conviction. HRS Chapter 844D became effective on July 1, 2005, and the parties do not dispute that relevant provisions within Chapter 844D Part III are retroactive. Thus, Dunbar does not contest that he was subject to collection of his DNA samples while he was on probation for his 2005 felony conviction, even though his conviction was entered on June 29, 2005, prior to the effective date of HRS Chapter 844D. However, the parties dispute whether the State could still collect Dunbar's DNA buccal swab samples in 2014, after he had been discharged from probation for his 2005 felony offense.

         Under the circumstances of this case and the relevant provisions in HRS Chapter 844D Part III, we hold that Dunbar was no longer required to provide a buccal swab sample after he had been discharged from probation for his felony offense.[5] We therefore affirm the circuit court's dismissal of the charge against Dunbar in this case based on the reasons set forth below.

         I. Background

         On June 29, 2005, in a previous case before the circuit court, State v. Dunbar, Criminal No. 04-1-0450(1), a Judgment was entered convicting Dunbar of Attempted Escape in the Second Degree, in violation of HRS § 710-1021 (2014), a class C felony.[6]Dunbar was sentenced to probation for a term of five (5) years.

         A few days later, on July 1, 2005, HRS Chapter 844D became effective. Within HRS Chapter 844D Part III ("Offenders Subject to Collection of Specimens or Samples, or Print Impressions"), [7] HRS § 844D-31(a) provides that:

Any person, except for any juvenile, who is convicted of, or pleads guilty or no contest to, any felony offense, even if the plea is deferred, or is found not guilty by reason of insanity of any felony offense, shall provide buccal swab samples and print impressions of each hand, and, if required by the collecting agency's rules or internal regulations, blood specimens, required for law enforcement identification analysis.

         (Emphasis added.) Further, HRS § 844D-41 (2014) provides for the retroactive application of specified provisions within Part III and identifies the provisions under which collection shall occur, stating in relevant part:

Sections 844D-31, 844D-33, and 844D-34 to 844D-37 shall have retroactive application. Collection shall occur pursuant to sections 844D-34 to 844D-38 regardless of when the crime charged or committed became a qualifying offense pursuant to this chapter, and regardless of when the person was convicted of the qualifying offense described in section 844D-31(a) . . . .

         (Emphasis added.) In turn, HRS § 844D-35 (2014) addresses the collection of, inter alia, buccal swab samples where "[t]he person is on probation or parole[.]" As discussed infra, the interpretation of HRS § 844D-35 is at the core of this case.

         On March 18, 2008, approximately two years and nine months after Dunbar's felony judgment of conviction was entered on June 29, 2005, in Criminal No. 04-1-0450(1), the circuit court in that case granted Dunbar's motion for early termination of probation. It is undisputed that Dunbar was then formally discharged from his probationary sentence by way of an order entered on April 11, 2008.

         In February of 2014, almost six years after Dunbar had been discharged from probation in Criminal No. 04-1-0450(1), the State, through the Department of the Attorney General, initiated contact with Dunbar to obtain his buccal swab sample. Due to Dunbar's failure to provide the requested sample, the State filed its initial Complaint in this case on August 22, 2014, in the District Court of the Second Circuit. Dunbar requested a jury trial and thus the State filed a Complaint in circuit court on September 26, 2014. The State filed an Amended Complaint on November 12, 2014, to make a technical amendment. The Amended Complaint asserts, in relevant part, that "on or about the period of February 15, 2014, through and including March 21, 2014, " Dunbar "having been convicted of any felony offense" intentionally or knowingly failed to provide, inter alia, buccal swab samples "after receiving written notice by the collecting agency[.]"

         On November 17, 2014, Dunbar filed a Motion to Dismiss claiming the State had not requested his DNA sample while he was on probation and that he was no longer required to provide a DNA sample because he had completed his probation. On February 3, 2015, the circuit court filed the Order Granting Motion to Dismiss.

         On February 4, 2015, the State timely filed its Notice of Appeal.

         II. Standards of Review

         Our review in this case is de novo, based on interpreting provisions in HRS Chapter 844D Part III.

The interpretation of a statute is a question of law that we review de novo. Similarly, a trial court's conclusions of law are reviewable de novo under the right/wrong standard. Under the de novo standard, this court must examine the facts and answer the pertinent question of law without being required to give any weight or deference to the trial court's answer to the question.

State v. Kelekolio, 94 Hawai'i 354, 356, 14 P.3d 364, 366 (App. 2000) (citations omitted).

         III. Discussion

         The State contends that the circuit court erred when it entered Conclusions of Law (COLs) 9, 10, 11, 13, and 14, upon which it based its ruling that Dunbar was not required to provide a buccal swab sample under the circumstances of this case.

         The circuit court's COLs 9-14 state:

9. Pursuant to HRS Sections 844D-35 and 844D-41, Defendant was no longer subject to collection under HRS Section 844D-35.
10. Defendant successfully completed probation and once Defendant's probationary period terminated, Defendant was no longer subject to collection under HRS Section 844D-35.
11. The creation and description of the various categories of persons from whom DNA samples [sic] in HRS Sections 844D-34 to 844D-37 suggests the Hawai'i State Legislature intended to limit collection to the categories of persons described. If such limits were not intended, there would have been no reason for the Hawai'i State Legislature to have created and described the various categories.
12. As evidenced in drafts of the bill that was to become HRS Chapter 844D, the Hawai'i State Legislature contemplated a category of collection from persons such as the Defendant, i.e., convicted felons who were no longer incarcerated, and who were no longer on probation, parole or other release.[8]
13. Omission of such a category from the enacted HRS Chapter 844D suggests that the Hawai'i State Legislature did not intend to collect DNA samples from convicted felons who were no longer incarcerated, and who were no longer on probation, parole or other release.
14. Therefore, since Defendant was no longer on probation, not incarcerated, not on parole, not on other release, not a parole violator, and had not been returned to custody, the law does not provide for the collection of Defendant's DNA sample.

         The precise issue before this court is whether Dunbar, who had been subject to collection of his DNA sample as a felony offender under the retroactive provisions in HRS Chapter 844D Part III, was still required to provide a DNA sample when the State did not seek to obtain a sample until after his probation for the felony offense had been discharged by the court.[9] In resolving this issue, we must interpret and apply provisions within HRS Chapter 844D Part III.

         First, the fundamental starting point for statutory

interpretation is the language of the statute itself. Second, where the statutory language is plain and unambiguous, our sole duty is to give effect to its plain and obvious meaning. Third, implicit in the task of statutory construction is our foremost obligation to ascertain and give effect to the intention of the legislature, which is to be obtained primarily from the language contained in the statute itself. Fourth, when there is doubt, doubleness of meaning, or indistinctiveness or uncertainty of an expression used in a statute, an ambiguity exists. And fifth, in construing an ambiguous statute, the meaning of the ambiguous words may be sought by examining the context, with which the ambiguous words, phrases, and sentences may be compared, in order to ascertain their true meaning. Moreover, the courts may resort to extrinsic aids in determining the legislative intent. One avenue is the use of legislative history as an interpretive tool.

Kelekolio, 94 Hawai'i at 356-57, 14 P.3d at 366-67 (citation omitted, block format altered). Furthermore,

It is fundamental in statutory construction that each part or section of a statute should be construed in connection with every other part or section so as to produce a harmonious whole. In re Castro, 44 Haw. 455, 458, 355 P.2d 46, 48 (1960). Statutes should be interpreted according to the intent and meaning, and not always according to the letter, and every part thereof must be viewed in connection with the whole ...

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