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                                                               Electronically Filed
                                                               Supreme Court
                                                               SCWC-15-0000935
                                                               14-FEB-2018
                                                               09:21 AM




             IN THE SUPREME COURT OF THE STATE OF HAWAI#I

                                 ---o0o---


                           STATE OF HAWAI#I,
                    Respondent/Plaintiff-Appellee,

                                     vs.

                          DAWN MARIE ANZALONE,
                    Petitioner/Defendant-Appellant.


                             SCWC-15-0000935

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

                            FEBRUARY 14, 2018

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

                 OPINION OF THE COURT BY 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
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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


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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


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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 court2 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.]



 1
      HRS § 707-726(1)(a) (2014) provides:

             (1) A person commits the offense of custodial
             interference in the first degree if:
                   (a) The person:
                         (i) Intentionally or knowingly violates a
                         court order issued pursuant to chapter
                         586, or intentionally or knowingly takes,
                         entices, conceals, or detains the minor
                         from any other person who has a right to
                         custody pursuant to a court order,
                         judgment, or decree; and
                         (ii) Removes the minor from the State[.]


 2
      The Honorable Richard T. Bissen, Jr. presided.

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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


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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


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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-




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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


3
      HRS § 621-9(b) (1993) provides:

            Whenever the presence of a defendant in a criminal
            case or in a proceeding under chapter 704 or a
            petitioner in a post conviction proceeding who is
            outside the judicial circuit is mandated by court
            order or bench warrant to appear, the cost of airfare,
            ground transportation, any per diem for both the
            defendant or petitioner and sufficient law enforcement
            officers to effect the defendant’s or petitioner’s
            return, shall be borne by the State. All such
            expenses shall be certified by the court or public
            prosecutor or the attorney general. Duly certified
            claims for payment shall be paid upon vouchers
            approved by the state director of finance and warrants
            drawn by the state comptroller. The court may order
            the nonindigent defendant or petitioner who was
            returned to the State of Hawaii to reimburse the State
            for the costs of such extradition or return as
            specifically described above.

(Emphasis added.)

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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


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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



4
      Anzalone also argued that the family court abused its discretion in
requiring her to seek mental health treatment as a condition of probation,
because the family court’s language in its written ruling could be read as
giving “‘medical’ discretion to the probation officer,” and because there were
insufficient facts to support the imposition of such a condition. Moreover,
she asserted that the family court abused its discretion in denying her DANC
Motion because the family court focused on “the nature of the offense and her
disobedience to the Family Court, rather than the characteristics of the
defendant.”
      The ICA held that “there was sufficient factual basis in the record to
justify the Family Court’s imposition of mental health treatment as a
condition of probation,” but acknowledged that “the language of the condition
as set forth in the written Judgment is ambiguous in that it could be read as
giving the probation officer the authority to order medication and tests and
to determine whether clinical discharge is appropriate.” Accordingly, the ICA
remanded the case so that “the Judgment can be clarified . . . to provide that
while Anzalone shall, as directed by her probation officer, obtain and
maintain mental health treatment or other mental health services, the
determination of clinical discharge and the appropriate medication or tests
shall be made by her treating mental health professional.” On her other point
of error, the ICA held that the family court “properly considered the nature
and circumstances of Anzalone’s offense” and did not abuse its discretion in
denying her DANC Motion.
      On certiorari, Anzalone has not presented any questions concerning the
ICA’s holdings on her other points of error. The State’s response also does
not raise any questions on these matters. Accordingly, we do not address
them. See Hawai#i Rules of Appellate Procedure Rule 40.1(d).

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the meaning of HRS § 706-646(1)(c).5         Accordingly, Anzalone

asserted, the family court could not have ordered her to pay

extradition costs as restitution to the State.

            Second, Anzalone contended that the family court lacked

the authority to require her to pay extradition costs because:

(1) pursuant to HRS § 706-600,6 criminal defendants can only be

sentenced pursuant to HRS Chapter 706, and the family court’s

authority to order payment of extradition costs lies outside of

this section; and (2) HRS § 621-9(b) did not apply because its

plain language limits its scope to “situations where extradition

is mandated by court order or bench warrant.”

            The State responded that its request for extradition

costs pursuant to HRS § 621-9(b) was proper because the statute’s

plain language and legislative history supported that the

legislature “intended to allow the State to recover extradition

costs from nonindigent defendants in criminal cases.”

Accordingly, the State argued that because the underlying case

was a criminal case, the family court had issued a warrant for

Anzalone’s arrest, the State certified the extradition costs, and

the family court “was informed that Anzalone had housing and



5
      Pursuant to HRS § 706-646(1)(c) (2014), the term “victim” could be used
to refer to “[a] governmental entity that has reimbursed the victim for losses
arising as a result of the crime or paid for medical care provided to the
victim as a result of the crime[.]”

6
      HRS § 706-600 (2014) states: “No sentence shall be imposed otherwise
than in accordance with this chapter.”

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financial resources to pay,” the “statutory criteria for

imposition of extradition costs was met.”

           Furthermore, the State conceded that both the State and

the family court had “mislabeled” the payment of extradition

costs as “restitution,” but maintained that “taken in context it

is clear that when the trial court granted the amount of

$4,581.93 requested by the State, it was granting extradition

costs.”   Thus, the State concluded that because the family court

could order “other fees” as a discretionary condition of

probation pursuant to HRS §§ 706-624(2)(q)7 and 706-648(2),8 the


7
     HRS § 706-624(2)(q) (2014) provides:

           (2) Discretionary conditions. The court may provide,
           as further conditions of a sentence of probation, to
           the extent that the conditions are reasonably related
           to the factors set forth in section 706-606 and to the
           extent that the conditions involve only deprivations
           of liberty or property as are reasonably necessary for
           the purposes indicated in section 706-606(2), that the
           defendant:

                 . . . .

                 (q) Satisfy other reasonable conditions as the
                 court may impose.

8
     HRS § 706-648(2) (2014) states:

           (2) The entire fee ordered or assessed shall be
           payable forthwith by cash, check, or by a credit card
           approved by the court. When a defendant is also
           ordered to pay a fine, make restitution, pay a crime
           victim compensation fee, or pay other fees in addition
           to the probation services fee under subsection (1),
           payments by the defendant shall be made in the
           following order of priority:
                 (a) Restitution;
                 (b) Crime victim compensation fee;
                 (c) Probation services fee;
                 (d) Other fees; and
                 (e) Fines.


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family court possessed the statutory authority to order Anzalone

to pay extradition costs.

            In a summary disposition order filed on February 24,

2017, the ICA affirmed in large part the family court’s judgment

of conviction and probation sentence, holding that:
                  We agree with the State that while the costs of
            Anzalone’s extradition could not be imposed as
            restitution, the Family Court had the authority to
            impose extradition costs under HRS § 621-9(b).
            Anzalone was a defendant in a criminal case whose
            presence from outside the circuit was mandated by a
            bench warrant. The record shows that the Family Court
            was relying on HRS § 621-9(b) in imposing the
            extradition costs. We therefore affirm the Family
            Court’s imposition of the costs of extradition as a
            condition of probation. However, because extradition
            costs could not be imposed as restitution under HRS §
            706-646 (2014), the Family Court on remand shall
            modify the Judgment to reflect the imposition of
            $4,581.93 in extradition costs pursuant to HRS § 621-
            9(b), and not as restitution.

(Citations omitted.)       On April 5, 2017, the ICA entered its

judgment on appeal.

                          II.    STANDARD OF REVIEW

A.    Statutory Interpretation

            “The proper interpretation of a statute is a question

of law that is reviewed de novo under the right/wrong standard.”

State v. DeMello, 136 Hawai#i 193, 195, 361 P.3d 420, 422 (2015).

                                III.   DISCUSSION

            On certiorari, Anzalone presents one question for our

review:    whether, after determining Anzalone could not be ordered

to pay extradition costs as restitution, the ICA gravely erred by

holding that the family court properly ordered Anzalone to pay


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extradition costs as a condition of probation pursuant to HRS §

621-9(b).     Briefly stated, Anzalone argues that the ICA erred in

affirming the family court’s order requiring her to pay

extradition costs because:        (1) based upon its plain language,

HRS § 621-9(b) does not apply to the present case, and (2) the

statutory requirements in HRS § 621-9(b) were not met.9              We

address each of Anzalone’s arguments in turn below.

A.    HRS § 621-9(b) applies in this case because the arrest
      warrant constituted a “court order” mandating Anzalone’s
      appearance within the meaning of HRS § 621-9(b).

            Anzalone’s first argument concerns whether HRS § 621-

9(b) applies in this case.        HRS § 621-9(b) (1993) states:
            Whenever the presence of a defendant in a criminal
            case or in a proceeding under chapter 704 or a
            petitioner in a post conviction proceeding who is
            outside the judicial circuit is mandated by court
            order or bench warrant to appear, the cost of airfare,
            ground transportation, any per diem for both the
            defendant or petitioner and sufficient law enforcement
            officers to effect the defendant’s or petitioner’s
            return, shall be borne by the State. All such
            expenses shall be certified by the court or public
            prosecutor or the attorney general. Duly certified
            claims for payment shall be paid upon vouchers
            approved by the state director of finance and warrants
            drawn by the state comptroller. The court may order
            the nonindigent defendant or petitioner who was
            returned to the State of Hawaii to reimburse the State
            for the costs of such extradition or return as
            specifically described above.

(Emphases added.)

9
      In addition to her statutory arguments, Anzalone also contends that her
sentence should be vacated because she was denied her right to procedural due
process. She appears to argue that because the State initially framed its
request for reimbursement of extradition costs as “restitution,” and served
the certification of costs on Anzalone shortly before the sentencing hearing,
she did not receive adequate notice and was not given a meaningful opportunity
to be heard.
      Because we vacate Anzalone’s sentence on statutory grounds, see section
III infra, we do not address her due process arguments.

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           Anzalone argues that HRS § 621-9(b) does not apply to

the present case because “there was no bench warrant or order

mandating Petitioner to appear before the court.”           She contends

that “an arrest warrant is to empower a law enforcement officer

to arrest the identified party,” such that “an arrest warrant is

distinct from the order or bench warrant referenced in HRS § 621-

9(b).”   Anzalone appears to assert that HRS § 621-9(b) only

applies when the defendant has already appeared before the court,

such that “process has attached and the court has authority on a

defendant’s compliance,” has been ordered to return, and has

failed to comply.    The State responds that “[i]n the underlying

case, there was a warrant of arrest issued to arrest and bring

Anzalone to appear in court.”       The State maintains that

“[c]learly the warrant of arrest is a ‘court order to appear’ as

specified in HRS § 621-9(b).”

           We agree with the State that the arrest warrant in this

case qualified as a “court order” mandating Anzalone’s appearance

under HRS § 621-9(b).     The arrest warrant stated, in relevant

part:
                 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.]

(Emphasis added.)

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          Here, the arrest warrant not only authorized law

enforcement officers to arrest Anzalone, but also commanded the

arresting officers to bring Anzalone before the family court to

appear for her arraignment and plea.        Put differently, the arrest

warrant was not just a document that empowered a law enforcement

officer to arrest her, as Anzalone contends.          By contrast, the

arrest warrant, as written in this case, effectively mandated a

law enforcement officer to find Anzalone and bring her to appear

before the family court for specific proceedings.           The arrest

warrant also referred to itself as a “Court Order” when advising

Anzalone of the consequences that could follow if she was

released from custody, and failed to appear for all court

proceedings in connection with the charges against her:
          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.)

          Consequently, despite being labeled a “Warrant of

Arrest,” the arrest warrant in the present case was in form and

in substance a court order that mandated Anzalone’s appearance

before the family court for her arraignment and plea.            As such,

we hold that the arrest warrant in the present case constituted a

“court order” that mandated her appearance before the court under

HRS § 621-9(b), such that HRS § 621-9(b) applies in this case.

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B.    Because the statutory requirements under HRS § 621-9(b)
      were not met in the present case, the family court erred in
      granting the State’s request for extradition costs.

            Second, Anzalone argues that assuming that HRS § 621-

9(b) applies in this case, the State had to demonstrate that

Anzalone was not indigent in connection with its request for

reimbursement of extradition costs, and that the family court was

obligated to find that she was nonindigent prior to ordering

Anzalone to pay extradition costs.          She asserts that because

neither the family court nor the State complied with the

foregoing requirements, the family court erroneously ordered her

to reimburse the State for extradition costs.            The State responds

that Anzalone’s argument fails because the evidence in the record

sufficiently demonstrated that she was not indigent.

            The parties’ arguments require this court to resolve

two issues of first impression:         (1) whether a court is required

to make a finding concerning the defendant’s indigency prior to

ruling on a request by the State for reimbursement of extradition

costs brought pursuant to HRS § 621-9(b), and (2) whether the

State or the defendant should bear the burden of proof concerning

whether the defendant is nonindigent for the purposes of HRS §

621-9(b).     We address each issue in turn.

      1.    Requisite Threshold Finding of Nonindigency

            With respect to the first issue, we hold that when

faced with a request for reimbursement of extradition costs made

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pursuant to HRS § 621-9(b), the reviewing court cannot order a

criminal defendant to reimburse the State for the costs of his or

her extradition unless the court has first found that the

defendant is nonindigent.      Our holding is supported by the plain

language of HRS § 621-9(b) and the statute’s legislative history.

          “The plain language of a statute is ‘the fundamental

starting point of statutory interpretation.’”          DeMello, 136

Hawai#i at 195, 361 P.3d at 422 (quoting State v. Wheeler, 121

Hawai#i 383, 390, 219 P.3d 1170, 1177 (2009)).          “Courts are

bound, if rational and practicable, to give effect to all parts

of a statute and no clause, sentence or word shall be construed

as superfluous, void or insignificant if construction can be

legitimately found which will give force to and preserve all

words of the statute.”     Id. (quoting Dawes v. First Ins. Co. of

Haw., Ltd., 77 Hawai#i 117, 135, 883 P.2d 38, 56 (1994)).

          HRS § 621-9(b) states:         “The court may order the

nonindigent defendant or petitioner who was returned to the State

of Hawaii to reimburse the State for the costs of such

extradition or return as specifically described above.”

(Emphases added.)    Through the use of the word “may,” the statute

establishes that courts have the discretion to order a defendant

to repay the State for the costs of his or her extradition.

However, by specifying that such orders can only be issued when a

“nonindigent defendant or petitioner” is extradited, the text of

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HRS § 621-9(b) establishes a statutory prerequisite that must be

met in order for the court to exercise its discretion in the

first place.   Specifically, this language requires that the court

first find that the defendant is nonindigent before evaluating

the facts of the case to determine whether, in its discretion,

the defendant should bear the costs of extradition.

          The foregoing interpretation of HRS § 621-9(b) is also

consistent with the statute’s legislative history.           When section

(b) was first added to HRS § 621-9 in 1980, section (b) did not

permit the State to be reimbursed for the costs of extradition.

Instead, the statute mandated that the State bear the costs of

extradition in all cases without exception.          1980 Haw. Sess. Laws

Act 306, § 1 at 961; HRS § 621-9(b) (1984).

          The legislature first amended HRS § 621-9(b) in 1987,

adding the following sentence at the end of the subsection:             “For

post conviction proceedings only, and at the discretion and order

of the court, the defendant or petitioner returned to the State

of Hawaii shall reimburse the State for the costs of such

extradition as specifically described above.”          1987 Haw. Sess.

Laws Act 85, § 1 at 142.      The legislature clarified that “[t]he

purpose of this bill is to amend Section 621-9, HRS, to provide

that the costs of extradition be borne by the defendant or

petitioner.”   H. Stand. Comm. Rep. No. 913, in 1987 House

Journal, at 1535.    However, the House stated:

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                Your Committee further amended the bill to
          provide for the discretionary authority of the court
          in assessing such costs. This amendment is in accord
          with the testimony presented by the Office of the
          Public Defender which indicated that the bill as
          heard, discriminated against indigent defendants.
          Such defendants, once transferred to the mainland,
          would effectively be prevented from pursuing post
          conviction relief.

H. Stand. Comm. Rep. No. 913, in 1987 House Journal, at 1535-36.

In short, in 1987, the legislature first amended HRS § 621-9(b)

to provide that post-conviction defendants could be required to

reimburse the State for extradition costs.         Concerned with

unfairly imposing a financial burden upon indigent defendants,

the legislature provided courts with discretion in deciding

whether extradition costs ought to be borne by defendants rather

than the State.

          HRS § 621-9(b) was further amended in 1988.            The

legislature substantially revised the last sentence in HRS § 621-

9(b) as follows, with deletions indicated in brackets and

additions illustrated with underlines:         “[For post conviction

proceedings only, and at the discretion and order of the] The

court[,] may order the non-indigent defendant or petitioner who

was returned to the State of Hawaii [shall] to reimburse the

State for the costs of such extradition or return as specifically

described above.”    1988 Haw. Sess. Laws Act 280, § 1 at 524.              The

legislature explained that “[t]he purpose of this bill is to

allow the court to order persons extradited to Hawaii to pay the

costs of the extradition unless the court finds that person

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indigent.”   H. Stand. Comm. Rep. 1597-88, in 1988 House Journal,

at 1394 (emphasis added).      The legislature further acknowledged

“that the costs of extraditions are significant.”           H. Stand.

Comm. Rep. 1597-88, in 1988 House Journal, at 1394.

           The 1988 amendments to HRS § 621-9(b) had three

effects.   First, the statute was expanded to permit the State to

recover extradition costs from defendants in all criminal

proceedings, rather than only post-conviction proceedings.

Second, the legislature made clear that courts had discretion in

determining whether to order defendants to bear the cost of their

extradition.   Third, the amendment and the legislature’s

accompanying comments in the House standing committee report

collectively illustrate that the legislature intended to preclude

courts from exercising such discretion upon finding that the

defendant was indigent.     Correspondingly, the legislature

conditioned the court’s ability to exercise its discretion upon

its finding that the defendant is nonindigent.

           In short, the legislative history of HRS § 621-9(b)

illustrates that the legislature initially intended for the

court’s discretion to be the primary means of protecting indigent

defendants from the undue financial burden of having to repay the

State for extradition costs.       Subsequently, the legislature

incorporated an additional procedural safeguard that ensured

indigent defendants would not be required to pay extradition

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costs.   Specifically, the legislature intended that a court find

that the defendant is nonindigent before ordering him or her to

pay the substantial costs of extradition.

          To conclude, the plain language of HRS § 621-9(b) and

the statute’s legislative history suggest that the court’s

ability to discretionarily order a defendant to pay extradition

costs is conditioned upon its finding that the defendant is

nonindigent.   Accordingly, we hold that courts must engage in a

two-step inquiry when evaluating whether to grant the State’s

request for reimbursement of extradition costs by a criminal

defendant under HRS § 621-9(b).       First, the court must ascertain

whether the defendant is nonindigent.        Then, if the court finds

that the defendant is nonindigent, the court must analyze the

facts before it and determine whether, in its discretion, the

defendant should be required to reimburse the State for

extradition costs.

          2.    Burden of Proving Indigency or Nonindigency

          As courts are required to find that the defendant is

nonindigent prior to ordering him or her to pay extradition

costs, HRS § 621-9(b) places the burden of proof on the State to

prove nonindigency in order for extradition costs to be imposed

upon the defendant.

          HRS § 621-9(b) does not define the term “nonindigent.”

However, with respect to analyzing a defendant’s indigency in

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other contexts, this court has held that a trial court should

take into consideration:      (1) the defendant’s income (gross

income minus withholding taxes, where applicable) from all

sources; (2) the defendant’s fixed monthly expenditures,

“especially those which are reasonably necessary to provide him

and his dependents with the necessities of life”; (3) the

defendant’s assets and investments; (4) the nature and extent of

the defendant’s fixed liabilities; (5) the defendant’s borrowing

capacity and the extent to which such borrowing would affect his

or her fixed monthly obligations and his or her future financial

situation; (6) in certain limited circumstances, the defendant’s

real property and personal property; and (7) other factors that

may bear upon the defendant’s indigency.         State v. Mickle, 56

Haw. 23, 26-28, 525 P.2d 1108, 1111-12 (1974); see also State v.

Phomphithack, CAAP-11-0000347 at 1 (App. June 21, 2013) (SDO)

(noting that the Mickle factors are applicable and relevant to,

though not necessarily dispositive of, whether a defendant is

nonindigent under HRS § 621-9(b)).

          In other words, the applicable inquiry governing a

trial court’s evaluation of a defendant’s indigency depends in

large part on the defendant’s personal information.           See Mickle,

56 Haw. at 26-28, 525 P.2d at 1111-12.         Thus, the defendant, as

opposed to the State, will readily have access to the information

and records that the trial court will require to determine

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whether he or she is a nonindigent defendant within the meaning

of HRS § 621-9(b).

            Accordingly, we hold that when the State makes a

request for reimbursement of extradition costs pursuant to HRS §

621-9(b), the defendant bears the initial burden of producing

evidence showing the existence of fact(s) that he or she is

indigent.    Such facts may be evident in the record, for example,

because the defendant has appointed counsel or by circumstances

presented in the presentence report.        Once the trial court

determines that the defendant produced evidence of indigency, the

burden of persuasion rests upon the State to demonstrate that the

defendant is, in fact, nonindigent.        If the State satisfies its

burden of persuasion, the trial court may discretionarily order

the defendant to reimburse the State for the costs of his or her

extradition.

     3.     Application of the Aforementioned Principles to the
            Facts in the Present Case

            Applying the foregoing principles to the present case,

we conclude that the family court erred in ordering Anzalone to

pay extradition costs under HRS § 621-9(b) for two reasons.

            First, the family court did not ascertain whether

Anzalone was nonindigent prior to ordering her to reimburse the

State for extradition costs.       Here, the family court ordered

Anzalone to pay extradition costs having determined that it would


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be unfair for “the taxpayers of [the County of Maui to] be

responsible for that bill because the only reason it was set in

motion was by the actions of Ms. Anzalone.”          Prior to issuing

this order, however, the family court did not enter any findings

with regard to whether Anzalone was nonindigent.           In doing so,

the family court improperly skipped the first step of the two-

step analytical framework that governs the evaluation of a

request by the State for reimbursement of extradition costs from

a criminal defendant.     Consequently, the family court erred in

ordering Anzalone to reimburse the State for extradition costs.

          Second, Anzalone should not have been ordered to

reimburse the State for extradition costs because the evidence in

the record does not adequately support that Anzalone was a

nonindigent defendant within the meaning of HRS § 621-9(b).

Though neither she nor the State proffered any evidence at the

sentencing hearing to explicitly address whether she was

nonindigent, the State contends that there was sufficient

evidence in the record to support that Anzalone was nonindigent

because she indicated that, as of sentencing, she “had a full-

time job and housing” and that “[s]he could pay $50.00 a month

toward the financial obligations of her probation.”

          The State’s argument is unpersuasive.           Anzalone’s

assertions at the sentencing hearing alone are not sufficient to

demonstrate that, at the time she was being sentenced, she was


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nonindigent.    Indeed, Anzalone indicated that she “has a full-

time job now at a hat store,” that she was “still looking for

. . . more permanent housing,” and that she could afford to pay

$50 per month to the monetary conditions of her probation as

sentenced.     However, without more information concerning

Anzalone’s financial circumstances, such as the amount of income

she earned from her job, her other sources of income and

financial support (if any), and her requisite expenses (e.g.

housing and child-care), it is still substantially uncertain

whether, at the time of sentencing, Anzalone was nonindigent

under HRS § 621-9(b).

          Furthermore, the State’s argument is unavailing because

there is evidence in the record indicating that, notwithstanding

the fact that Anzalone may have secured a job at a hat store,

Anzalone could still have been considered indigent at the time of

sentencing.    At all stages of the proceedings, Anzalone was

represented by court-appointed counsel.         Moreover, at the

sentencing hearing, Anzalone indicated that she had yet to secure

permanent housing, and was still living at a shelter.            While

these facts are not dispositive of her indigency, they are

nonetheless supportive thereof.

          To conclude, when determining whether to impose

extradition costs upon a criminal defendant pursuant to HRS §

621-9(b), the trial court must first analyze whether the


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defendant is nonindigent.        The defendant bears the burden of

showing facts that support that he or she is indigent.              Upon

satisfaction of this initial burden, the burden of persuasion

rests upon the State to demonstrate that the defendant is in fact

nonindigent.     Ultimately, if the court finds that the defendant

is nonindigent, then the court must ascertain whether, in its

discretion, the defendant should be ordered to bear the costs of

his or her extradition.

            In this case, the family court did not determine

whether Anzalone was nonindigent prior to imposing extradition

costs upon her.      Additionally, the evidence in the record did not

sufficiently demonstrate that Anzalone was nonindigent at the

time of sentencing.       Therefore, the family court improperly

ordered Anzalone to pay extradition costs under HRS § 621-9(b).

C.    The ICA erred in effectively imposing, on its own and in an
      appeal, extradition costs as a condition of probation.

            Because the family court erred in ordering Anzalone to

reimburse the State for the costs of her extradition, section

III.B, supra, it follows that the ICA erred in “affirm[ing] the

Family Court’s imposition of the costs of extradition as a

condition of probation.”

            Moreover, we hold that the ICA further erred by

mandating the family court to, on remand, “modify the Judgment to

reflect the imposition of $4,581.93 in extradition costs pursuant



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to HRS § 621-9(b), and not as restitution.”          Although the ICA

acknowledged that the family court may have erred in imposing

extradition costs as restitution, the ICA determined that the

family court had the authority to impose such costs pursuant to

HRS § 621-9(b).    Then, the ICA ordered the family court to

sentence Anzalone to pay extradition costs as a condition of

probation pursuant to HRS §§ 621-9(b) and 706-624(q) (2014).                In

our view, the ICA erred in taking this action, as it improperly

intruded on the province of the family court to order a defendant

to pay extradition costs, and to determine the conditions of a

convicted defendant’s probation.

          This court has consistently recognized that trial

courts, as sentencing courts, have “wide discretion, based on

[their] assessment of the character and circumstances of a

convicted defendant, in deciding whether to grant probation and

in imposing conditions to probation.”        State v. Martinez, 59 Haw.

366, 372, 580 P.2d 1282, 1286 (1978); State v. Solomon, 107

Hawai#i 117, 129, 111 P.3d 12, 24 (2005) (recognizing that in

addition to the mandatory conditions of probation set forth in

HRS § 706-624, sentencing courts may also, in their discretion,

impose additional conditions that are reasonable).           When a

defendant challenges a sentencing court’s decision regarding the

terms and conditions of his or her probation on appeal, the

appellate court’s inquiry is limited to reviewing the sentencing


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court’s decision for an abuse of discretion.          State v. Sacoco, 45

Haw. 288, 292, 367 P.2d 11, 13 (1961) (“It is a universally

accepted aphorism in appellate jurisprudence that a discretion

vested in a trial court and exercised by it will not be disturbed

unless it affirmatively appears that there has been a plain abuse

of such discretion.”); see also, State v. Huggett, 55 Haw. 632,

635, 525 P.2d 1119, 1122 (1974) (cautioning that “[t]he only

question before this court on review” of whether the sentencing

court properly granted, revoked, or modified a convicted

defendant’s probation sentence “is whether or not there has been

an abuse of that judicial discretion”).

           Here, the ICA apparently concluded that the family

court abused its discretion by imposing extradition costs as

restitution because the ICA “agree[d] with the State that . . .

the costs of Anzalone’s extradition could not be imposed as

restitution[.]”    But, the ICA then took its holding a step

further.   Acknowledging that the family court could have imposed

extradition costs under HRS § 621-9(b), the ICA ordered the

family court to “modify the Judgment to reflect the imposition of

$4,581.93 in extradition costs pursuant to HRS § 621-9(b), and

not as restitution.”     In so holding, the ICA effectively acted as

a sentencing court.     Acting through the family court on remand,

the ICA itself sentenced Anzalone to pay extradition costs as a

condition of probation pursuant to HRS §§ 621-9(b) and 706-


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624(2)(q) (2014).    However, the discretionary authority to

require a criminal defendant to pay extradition costs under HRS §

621-9(b), and the discretionary authority to impose additional

conditions of probation pursuant to HRS § 706-624(2)(q) (2014),

both lie with the trial court, not an appellate court.

Therefore, the ICA erred to the extent that rather than reviewing

the family court’s sentencing decisions for an abuse of

discretion, the ICA mandated the family court to exercise its

discretionary sentencing authority in a specific manner on

remand.

                            IV.    CONCLUSION

          For the reasons stated above, we vacate the ICA’s

April 5, 2017 judgment on appeal, vacate Anzalone’s sentence in

its entirety, and remand the case for sentencing anew.

                                         /s/ Mark E. Recktenwald
Matthew S. Kohm
for petitioner                           /s/ Paula A. Nakayama

Annalisa M. Bernard and                  /s/ Sabrina S. McKenna
Renee Ishikawa Delizo
for respondent                           /s/ Richard W. Pollack

                                         /s/ Michael D. Wilson




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