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State v. Anzalone

Supreme Court of Hawaii

February 14, 2018

STATE OF HAWAI'I, Respondent/Plaintiff-Appellee,
v.
DAWN MARIE ANZALONE, Petitioner/Defendant-Appellant.

         CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CAAP-15-0000935; FC-CR. NO. 15-1-0287)

          Matthew S. Kohm for petitioner.

          Annalisa M. Bernard and Renee Ishikawa Delizo for respondent.

          RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.

          OPINION

          NAKAYAMA, J.

         Petitioner/Defendant-Appellant Dawn Marie Anzalone (Anzalone) was charged with one count of custodial interference in the first degree after she violated a court-ordered custody visitation schedule and fled the State of Hawai'i with her two-year-old son. Pursuant to an arrest warrant issued by the Family Court of the Second Circuit (family court), Anzalone was arrested in Florida and extradited back to Hawai'i. She did not challenge her extradition. Upon her return, she pleaded no contest to the charge against her in accordance with a plea agreement with Respondent/Plaintiff-Appellee State of Hawai'i (the State).

         At sentencing, the State requested that Anzalone pay restitution to the State for the costs of her extradition pursuant to Hawai'i Revised Statutes (HRS) § 621-9 (b) . Anzalone objected to the State's request for extradition costs. Ultimately, the family court sentenced Anzalone to, inter alia, four years of probation and ordered her to pay over $4, 000 in extradition costs as a condition of probation and as a free standing order. On appeal, the Intermediate Court of Appeals (ICA) affirmed the family court's imposition of extradition costs as a condition of probation. However, based upon its determination that extradition costs could not be imposed as restitution under HRS § 706-646, the ICA ordered the family court to, on remand, modify the judgment to reflect the imposition of extradition costs as being pursuant to HRS § 621-9(b), and not as restitution.

         We are presented with one question for review on certiorari: whether the ICA gravely erred by affirming the family court's imposition of extradition costs as a condition of probation. Based upon our interpretation of HRS § 621-9 (b) and its application to the facts in this case, we conclude that the family court erroneously ordered Anzalone to reimburse the State for the costs of her extradition. Accordingly, we hold that the ICA gravely erred in affirming the family court's imposition of extradition costs. We also hold that the ICA erred by essentially imposing, on its own and in an appeal, extradition costs as a discretionary condition of probation. In taking such action to resolve Anzalone's appeal, the ICA improperly intruded upon the family court's discretionary authority to impose extradition costs and to determine the conditions of a defendant's probation.

         Therefore, we vacate the ICA's April 5, 2017 judgment on appeal filed pursuant to its February 24, 2017 summary disposition order, vacate Anzalone's sentence in its entirety, and remand the case for sentencing anew.

         I. BACKGROUND

         On October 3, 2014, the family court issued an order that awarded the father of Anzalone's son (Father), joint legal and physical custody of their two-year-old son. The order required Anzalone and Father to adhere to a visitation schedule that they had previously agreed upon, and designated a specific Longs Drugs parking lot as the location for child exchanges.

         Pursuant to the visitation schedule, Anzalone was to drop their son off to Father on December 24, 2014. On that date, however, Anzalone did not show up to the designated Longs Drugs parking lot, and did not answer her phone when Father called her. Subsequently, Anzalone repeatedly failed to appear for child exchanges that had been scheduled. Father discovered that Anzalone's cellular phone was no longer in service as of December 25, 2014, and was unable to contact Anzalone during this time.

         On February 3, 2015, Father filed an ex parte motion for full legal and physical custody of Son, which was granted on March 20, 2015. Anzalone did not appear for the hearing on the motion.

         A. Family Court Proceedings

         On June 2, 2015, Anzalone was charged with one count of custodial interference in the first degree in violation of HRS § 707-726(1) (a), [1]

         The family court[2] issued a "Warrant of Arrest" (arrest warrant) on June 1, 2015. The arrest warrant directed law enforcement as follows:

This Court HAVING FOUND PROBABLE CAUSE to believe that the defendant has committed the offense(s) indicated below,
YOU ARE HEREBY COMMANDED on the INFORMATION of DETECTIVE RONALD BENNETT, verified by oath or declaration, to arrest and bring the defendant to the Circuit Court of the Second Circuit, Hoapili Hale, 2145 Main Street, Wailuku, Maui, Hawaii, for Arraignment and Plea before the Honorable [Judge Richard T. Bissen, Jr.]

         The arrest warrant additionally contained the following advisement, directed to Anzalone:

DEFENDANT: If you are released from custody by this Court Order, with or without bail, it is upon condition that you will subsequently appear in court for all proceedings in connection with the charge (s) in this case. FAILURE TO APPEAR MAY SUBJECT YOU TO PROSECUTION FOR BAIL JUMPING, which can be a felony with a five-year term of incarceration.

(Emphasis added.)

         On June 11, 2015, Anzalone was arrested in Florida and extradited back to Maui, Hawai'i. Anzalone did not challenge the extradition. At a hearing held on June 12, 2015, Anzalone entered a plea of not guilty.

         On August 18, 2015, Anzalone filed a change of plea form, which indicated that she was changing her plea to no contest and that she was moving to defer the acceptance of her plea. Attached to her change of plea form was a plea agreement, which provided, inter alia: "The State reserves the right to seek restitution for extradition costs to the State, in an amount to be determined by probation; Defendant shall have the right to object."

         At a hearing held on the same day, the family court reviewed Anzalone's change of plea form with her in its entirety, ensuring that Anzalone: (1) was pleading of her own free will and with a clear mind; (2) was aware of the consequences of pleading no contest, such as the possible sentence she may receive; (3) understood the constitutional rights she was waiving by virtue of pleading no contest; and (4) comprehended the terms of the plea agreement attached to the change of plea form, and that the family court was not required to follow the agreement. As it reviewed Anzalone's change of plea form, the family court ensured that Anzalone understood that "the State reserve[d] the right to seek restitution for extradition costs to the State in an amount to be determined by Probation" and that "Defendant shall have the right to object."

         After the family court reviewed Anzalone's change of plea form with her on the record, Anzalone pleaded no contest to the charge against her. The family court found that Anzalone "voluntarily, knowingly, and intelligently enter[ed] her plea with a full understanding of the charge against her and the consequences of her plea." Subsequently, the family court stated that it was going to "reserv[e] [making a] finding of guilt until the motion to defer is heard, " ordered that a presentence investigation report be prepared, and placed Anzalone on supervised release pending sentencing.

         On October 28, 2015, the State filed a certification of extradition costs with the family court. The certification was supported by the prosecutor's declaration, which stated that Anzalone was "extradited to Hawaii from Fort Meyers, Florida on the court's no bail warrant issued on June 2, 2015, for Custodial Interference in the First Degree, " and that "the State incurred the cost of $4, 581.93 to extradite Defendant, breakdown is as follows: Airfare, $3, 650.00, Per Diem $725.00, Car rental $112.90, hotel $45.90, and other costs $48.13." Attached to the prosecutor's declaration were copies of the invoices that supported the value of Anzalone's extradition costs.

         That same day, a hearing was held on Anzalone's sentencing and her motion to defer the acceptance of her no contest plea (DANC Motion). At the outset, the prosecutor stated that he had filed a certification of extradition costs that morning, and that he had served a copy on Anzalone shortly before the hearing started. Anzalone "object[ed] to payment of the extradition costs."

         Anzalone then presented argument on her DANC Motion. Anzalone contended that her DANC Motion should be granted because her prior criminal record was minimal, she already spent a considerable amount of time in custody, she secured a full-time job and was in the process of securing permanent housing, and she assembled a community of support. The State did not oppose Anzalone's DANC Motion because the presentence investigation report was "really positive."

         With regard to extradition costs, the State contended that it was requesting extradition costs pursuant to HRS § 621-9(b)[3] because despite the positive progress Anzalone was making:

The bottom line is all this should not have happened, her taking the law into her own hands, violating the child custody order, taking the child out of the jurisdiction of Maui, in fact, to the mainland, eventually relocated in Florida. There was a lot of time, effort, and money spent in trying to apprehend her, and she just simply disregarded a Court order.
It's a very serious violation in the sense that it does take the child away from the other parent in this case .
Again, by taking the law into her own hands, taking the child out of the jurisdiction and disobeying that Court order, she really caused a lot of havoc and a lot of time and effort being made in order to find her and the child.

         Anzalone countered that HRS § 621-9 (b) did not apply because the statute was "limited to a defendant in criminal cases, in 704 proceedings, or a petitioner in a post conviction proceeding like a Rule 40." She further argued that she should not be required to pay extradition costs because "[s]he was unaware of the existence of the warrant" for her arrest, and averred that had she been aware of the warrant, she would have returned to Maui voluntarily. Though she conceded that she did not obey the court-ordered custody visitation schedule, Anzalone argued that her non-compliance did not illustrate that she would have also disobeyed a court order requiring her appearance in Maui, such that extradition was necessary. Anzalone explained that she did not disobey the custody visitation schedule without reason, or due to pure insubordination. Rather, she disclosed that she took her child and fled the state because she believed that Father has been, and would continue, abusing their son and subjecting him to neglect.

         The family court orally denied Anzalone's DANC Motion, explaining that: "I do not think the ends of justice and the welfare of society dictate that she not suffer this penalty. I think it's exactly the opposite of that. This is not conduct we want to encourage." Accordingly, the family court sentenced Anzalone to four years of probation. Further, the family court ordered that Anzalone, inter alia, "pay restitution to the Clerk of the Court in the amount [of] $4, 581.93 as a condition of probation and as a free standing order." The family court explained that it was ordering Anzalone to reimburse the State for extradition costs because: "There is no way I think the taxpayers of this county should be responsible for that bill because the only reason it was set in motion was by the actions of Ms. Anzalone." As to the schedule of payment, Anzalone stated that she could pay $50 per month.

         The family court filed its final judgment of conviction and probation sentence on October 28, 2015.

         B. ICA Proceedings

         On appeal, Anzalone asserted, inter alia, [4] that the family court erred in ordering Anzalone to pay extradition costs as part of her sentence. Anzalone advanced two arguments in support of this point of error. First, Anzalone argued that because the State "did not reimburse anyone for losses arising from the result of a crime, " the State was not a "victim" within the meaning of HRS § 706-646(1) (c) .[5] Accordingly, ...


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