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                                                                Electronically Filed
                                                                Supreme Court
                                                                SCWC-XX-XXXXXXX
                                                                18-OCT-2019
                                                                08:10 AM




                              SCWC-XX-XXXXXXX

             IN THE SUPREME COURT OF THE STATE OF HAWAI#I


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

                                      vs.

                            DAWN A. PHILLIPS,
                     Petitioner/Defendant-Appellant.


           CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
             (CAAP-XX-XXXXXXX; CASE NO. 3DCW-XX-XXXXXXX)

                      SUMMARY DISPOSITION ORDER
(By: Recktenwald, C.J., Nakayama, McKenna, Pollack, and Wilson, JJ.)

            Petitioner/Defendant-Appellant Dawn A. Phillips

 (Phillips) appeals from the Intermediate Court of Appeals’ (ICA)

 March 27, 2019 Judgment on Appeal affirming the July 31, 2017

 “Judgment and Notice of Entry of Judgment” of the District Court

 of the Third Circuit (district court).1

            Phillips was charged with one count of open lewdness

 and one count of disorderly conduct.         Phillips entered a not



      1
            The Honorable Margaret Masunaga presided.
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guilty plea.    At a change of plea hearing, defense counsel stated

that the State and Phillips had reached an agreement where

Phillips would plead no contest to the charges against her, and

the State would not object to any subsequent motion to defer the

acceptance of her no contest plea (motion for DANC).             See Hawai#i

Revised Statutes (HRS) § 853-1 (2014).2         After pleading no

contest, Phillips made an oral motion for DANC.             The district

court denied her motion for the principal reason that she did not

wish to stay in Hawai#i during the six-month probation period.

            On July 31, 2017, the district court accepted Phillips’

no contest pleas and entered a Judgment against her.             Phillips

appealed to the ICA, and the ICA affirmed the district court’s

Judgment.    See State v. Phillips, No. CAAP-XX-XXXXXXX, 2019 WL

763086 (App. Feb. 15, 2019) (SDO).

            We vacate and remand.      A denial of a motion for DANC is

     2
            HRS § 853-1 (2014) provides in relevant part:

                  Deferred acceptance of guilty plea or nolo contendere
            plea; discharge and dismissal, expungement of records .
            (a) Upon proper motion as provided by this chapter:
                  (1)   When a defendant voluntarily pleads guilty or
                        nolo contendere, prior to commencement of trial,
                        to a felony, misdemeanor, or petty misdemeanor;
                  (2)   It appears to the court that the defendant is
                        not likely again to engage in a criminal course
                        of conduct; and
                  (3)   The ends of justice and the welfare of society
                        do not require that the defendant shall
                        presently suffer the penalty imposed by law,
            the court, without accepting the plea of nolo contendere or
            entering a judgment of guilt and with the consent of the
            defendant and after considering the recommendations, if any,
            of the prosecutor, may defer further proceedings.

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properly within the discretion of a trial judge.           State v.

Martin, 56 Haw. 292, 294, 535 P.2d 127, 128 (1985).           Therefore,

the trial court’s decision “will not be disturbed on appeal

unless there has been a plain and manifest abuse of such

discretion.”   Id.   However, we have also stated that this

discretion must be “properly exercised.”         Id.

           In Martin, after a defendant had pleaded guilty to a

charge of theft and made a motion to defer the acceptance of the

guilty plea, the “district court summarily rejected said motion,

emphasizing, as [it] had in the past, that [it] did not and would

not under any circumstances consider any motion for deferred

acceptance of a guilty plea.”       Id. at 293, 535 P.2d at 127.        On

appeal, we vacated and remanded the case.         Id. at 294, 535 P.2d

at 129.   We concluded that when the “sentencing judge,

arbitrarily and capriciously, refuses to entertain at any time a

seasonable and proper motion made by a defendant for [deferred

acceptance of guilty] plea . . . such judicial conduct is

improper.”   Id. at 294, 535 P.2d at 128.        We further stated that

the trial court, “[b]y blind adherence to predetermined rigid

conduct . . . precluded any enlightened and just resolve of the

criminal charge placed against defendant.”         Id.

           In this case, Phillips and the State had reached an

agreement that if she pleaded no contest to the open lewdness and


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disorderly conduct charges, the State would recommend five days

of jail time, all suspended but one day, with credit for time

served, and would not object to a deferral, provided that Philips

be placed on unsupervised probation for six months.

           The district court denied Phillips’ motion for DANC on

the principal basis that she was going to leave Hawai#i and not

return.   The district court stated multiple times that in order

to be placed on probation, a condition of the deferred acceptance

plea, Phillips would have to remain in the state.           Specifically,

the district court stated, “the concern is that if it’s going to

be on probation, she needs to be here.”         When the State offered

that in other situations, defendants were placed on unsupervised

probation, and defense counsel can “basically do like a

stipulation at the expiration of the deferral period,” the

district court responded that “normally [a defendant has] to come

back here because, otherwise, I won’t dismiss the case.”            The

district court further stated that in these situations, “the

court will double-check in the future but my understanding is

there’s a resistance to do deferred acceptance of a no contest

plea, and just looking at this case, I don’t think this is a good

case for that.”

           While the district court entertained Phillips’ motion

for DANC, its reason for denying her motion appeared to be based


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on a “blanket policy” that it did not grant motions for DANC when

the defendant does not wish to return to Hawai#i after the

probation period.     See Martin, 56 Haw. at 294, 535 P.2d at 128.

This court has cautioned that discretionary action “must be

exercised on a case-by-case basis, not by any inflexible

[blanket] policy of denial.”        Id.   See also State v. Chun, No.

26357, 2005 WL 256340, at *9 (Haw. Feb. 2, 2005) (mem.) (“[T]he

existence of discretion requires its exercise, and by definition

contemplates an individualized assessment of the facts and

circumstances pertinent to the case at hand.”) (internal citation

and quotation omitted).3

            Moreover, while the district court spent considerable

time discussing how Phillips’ absence from Hawai#i would affect

whether it would grant or deny her motion for DANC, the district

court did not explicitly consider any of the factors actually

listed as factors to consider in denying or granting a motion for

deferred acceptance pursuant to HRS § 853-1.           HRS § 853-1

provides that a court may defer further proceedings without


      3
            Additionally, Phillips’ counsel stated that Phillips “would be
willing to try to come back at the end of the six-month period[.]” In
response, the district court stated that it would place Phillips on
unsupervised probation so she could return to the mainland. Operating under
the assumption that the district court was going to grant the deferral, the
State then asked the district court for a “proof of compliance date . . . and
if she is in compliance with everything, [defense counsel] and I can do a
stipulation for dismissal of the case[.]”
      However, the district court then stated that it “was going to allow
unsupervised probation and let her leave the state of Hawaii but not do the
deferral.” This prompted confusion from the State and from defense counsel.

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accepting a plea of no contest if (1) “[i]t appears to the court

that the defendant is not likely again to engage in a criminal

course of conduct;” and (2) “[t]he ends of justice and the

welfare of society do not require that the defendant shall

presently suffer the penalty imposed by law[.]”           HRS § 853-1(a).

          The State noted that Phillips did not have a prior

criminal record and “since it sounds like her object is to obtain

treatment [for substance abuse], we don’t have an objection [to

the deferred acceptance] in this case.”         Phillips herself stated

that she had “every intention of taking care of [her substance

abuse problem],” that she had never been arrested, and that she

never had issues with the law.       Her primary goal “has always been

to go back to the mainland, get my degree and come back and work

with the indigent population.”

          However, there is no evidence in the record to suggest

that the district court considered these claims when it denied

Phillips’ motion for DANC.      Therefore, there is similarly no

evidence in the record that the district court considered whether

Phillips was “not likely again to engage in a criminal course of

conduct” or whether “[t]he ends of justice and the welfare of

society” required that Phillips suffer the penalty imposed by law

pursuant to HRS § 853-1.      Instead, the record indicates only that

the denial of Phillips’ motion for DANC was prompted by Phillips’

stated desire to leave the state.

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            The record indicates that the district court denied

Phillips’ motion for DANC primarily because she did not wish to

serve her six-month probation in Hawai#i, that it had a “blanket

policy” of denying deferrals unless defendants return to Hawai#i,

that it denied Phillips’ specific motion even when defense

counsel stated that Phillips would be willing to return to

Hawai#i, and did not specifically consider the factors described

in HRS § 853-1.     We conclude the district court abused its

discretion in denying Phillips’ motion for DANC.4

            We therefore vacate the ICA’s March 27, 2019 Judgment

on Appeal and remand to the district court for a new hearing on

Phillips’ motion for DANC.

            DATED: Honolulu, Hawai#i, October 18, 2019.

Susan L. Arnett                           /s/ Mark E. Recktenwald
for petitioner/defendant-
appellant                                 /s/ Paula A. Nakayama

Linda L. Walton for                       /s/ Sabrina S. McKenna
respondent/plaintiff-
appellee                                  /s/ Richard W. Pollack

                                          /s/ Michael D. Wilson




      4
            Because we conclude that the district court abused its discretion
in denying Phillips’ motion for DANC, it is unnecessary to address Phillips’
argument that the denial of her motion was unconstitutional. See DW Aina Le #a
Dev., LLC v. Bridge Aina Le#a, LLC., 134 Hawai#i 187, 217-18, 339 P.3d 685,
715-16 (2014) (“If a case can be decided on either of two grounds, one
involving a constitutional question, the other a question of statutory
construction or general law, . . . [this court] will decide only the latter.”
(alterations in original)).

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