CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-17-0000055; CR. NO. 16-1-0432)
A. Luiz for petitioner.
R. Mow for respondent.
McKenna, Pollack, and Wilson, JJ., with Nakayama, J.,
dissenting, with whom Recktenwald, C.J., joins.
SUMMARY DISPOSITION ORDER
accepted Petitioner/Defendant-Appellant Steven E. Young's
("Young") application for a writ of certiorari from
the Intermediate Court of Appeals' ("ICA")
September 11, 2018 Judgment on Appeal pursuant to its May 31,
2018 Summary Disposition Order ("SDO"). The ICA
affirmed the Circuit Court of the First Circuit's
("circuit court") December 1, 2016 Judgment of
Conviction and Probation Sentence in favor of
Respondent/Plaintiff-Appellee the State of Hawai'i
in 2000, Young was convicted and sentenced for 1999 charges
of Sex Assault in the Second Degree and Sex Assault in the
Third Degree of his ex-girlfriend. Young was initially
sentenced to five years of probation with one year of
confinement, and he was also ordered to complete a sex
offender treatment program. Based on his conviction on sex
assault offenses, Young was also required to register as a
sex offender, which comes with various reporting requirements
under Hawai'i Revised Statutes ("HRS") Chapter
846E (2014). In 2001, Young's probation was revoked due
to non-compliance with sex offender treatment program
requirements, and he was re-sentenced to ten years'
confinement. Young was paroled in 2007. His sentence for the
sex assault convictions expired on November 5, 2010.
expiration of this sentence, Young was notified of continued
reporting requirements based on his sex assault convictions.
He failed to report in person as required by law within the
thirty-day period following his date of birth in both 2014
and 2015. Additionally, Young's lack of a home address
triggered a requirement that he report quarterly, and he
failed to report from October 2014 to January 2016.
March 30, 2016 traffic stop, Young was charged with two
counts of Failure to Comply with Covered Offender
Registration Requirements in violation of HRS §§
846E-9(a)(2) & (c) (2014), and HRS §§
846E-9(a)(12) & (c) (2014). On July 21, 2016, Young pled
no contest and the circuit court adjudicated him guilty on
both counts. The circuit court ordered a presentence
investigation and report ("PSI").
told the probation officer preparing the PSI he had completed
the sex offender treatment program while in custody, a
statement he also repeated at the December 1, 2016
sentencing. The probation officer who prepared the PSI
indicated Young's claim that he completed the treatment
program "was not verified as Hawaii Paroling Authority
records were unavailable for review."
Deputy Attorney General representing the State requested that
if the circuit court was inclined to grant probation, it also
order Young to complete sex offender treatment. Young's
defense counsel requested credit for time served and four
years of Hawai'i's Opportunity Probation with
Enforcement ("HOPE probation") for both counts. No
determination was made before sentencing as to whether Young
had previously completed sex offender treatment.
circuit court sentenced Young to a four year term of HOPE
probation with special conditions, including one year of
imprisonment with credit for time already served. The circuit
court also ordered, as another special condition of
Young's probation, that he "participate
satisfactorily in the Hawai[']i sex offender treatment
program as approved by [his] probation officer. . . ."
filed a notice of appeal on February 2, 2017, raising two
points on appeal: (1) the circuit court's adjudication of
Young's guilt under HRS § 846E-9 violated
Young's right to equal protection, and (2) the circuit
court abused its discretion in sentencing Young to probation
with special conditions of one year incarceration and the
completion of sex offender treatment, because Young was not
convicted of a new sex crime but of failing to report for
previous sex crimes.
affirmed the circuit court's judgment and sentence on May
31, 2018. State v. Young, CAAP-17-0000055 at 7 (App.
May 31, 2018) (SDO). First, the ICA held that "Young
waived his constitutional challenge to his conviction when he
entered his no-contest plea." Young, SDO at 4.
Second, the ICA held that the circuit court's sentence of
one year of incarceration as a special condition of his
probation was in accord with the guidelines set forth in
State v. Sumera, 97 Hawai'i 430, 39 P.3d 557
(2002), and was not an abuse of discretion. Young,
SDO at 6. The ICA also stated:
Here, although Young was not convicted of a new sex offense,
the Circuit Court had information before it indicating that
Young had a history of improper sexual behavior, including
prior convictions for sexual assault in the second degree and
sexual assault in the third degree. Furthermore, it appears
that Young never completed the sex offender treatment
stemming from his previous sexual assault convictions.
Therefore, we conclude ...