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                                                                   Electronically Filed
                                                                   Supreme Court
                                                                   SCWC-XX-XXXXXXX
                                                                   03-JUL-2019
                                                                   09:25 AM

                                  SCWC-XX-XXXXXXX

                IN THE SUPREME COURT OF THE STATE OF HAWAII


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

                                         vs.

                                STEVEN E. YOUNG,
                        Petitioner/Defendant-Appellant.



              CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
                    (CAAP-XX-XXXXXXX; CR. NO. 16-1-0432)

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

          We 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”)1 December 1, 2016



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          The Honorable Shirley M. Kawamura presided.
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Judgment of Conviction and Probation Sentence in favor of

Respondent/Plaintiff-Appellee the State of Hawaiʻi (“State”).

       Previously, 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 Hawaiʻi

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probation was revoked due to non-compliance with sex offender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.

       After 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.

       After a March 30, 2016 traffic stop, Young was charged with

two counts of Failure to Comply with Covered Offender

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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 pre-

sentence investigation and report (“PSI”).

       Young 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.”

       The 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.

       The 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

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probation, that he “participate satisfactorily in the Hawai[‘]i

sex offender treatment program as approved by [his] probation

officer. . . .”

       Young 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.

       The ICA affirmed the circuit court’s judgment and sentence

on May 31, 2018.       State v. Young, CAAP-XX-XXXXXXX 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 Hawaiʻi 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

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            the sex offender treatment stemming from his previous
            sexual assault convictions. Therefore, we conclude that the
            Circuit Court did not abuse its discretion in
            ordering Young to undergo sex offender treatment.

Young, SDO at 7.

       In his certiorari application, Young again raises two

points.    First, he argues the ICA erred in affirming the circuit

court’s judgment of guilt, because his conviction under HRS

Chapter 846E violates his right to equal protection.             Second, he

argues the ICA gravely erred in failing to hold the circuit

court abused its discretion in sentencing him.            We address these

points as follows.

       With respect to Young’s first point on certiorari, the ICA

erred in ruling that Young’s assertion of non-jurisdictional

claims was barred by his no contest plea.           See State v.

Hernandez, 143 Hawaiʻi 501, 509, 431 P.3d 1274, 1282 (2018).                On

the merits, however, Young’s constitutional equal protection

claims were addressed and rejected by this court in State v.

Guidry, 105 Hawaiʻi 222, 238-41, 96 P.3d 242, 258-61 (2004).

       With respect to Young’s second point on certiorari, a

sentencing court has broad discretion in imposing a sentence.

State v. Solomon, 107 Hawaiʻi 117, 126, 111 P.3d 12, 21 (2005).

The imposition of sex offender treatment requires a factual

basis in the record indicating that such a condition is

reasonably related to the factors set forth in HRS § 706-606 and

is reasonably necessary for the purposes indicated in HRS § 706-

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606(2).       State v. Kahawai, 103 Hawaiʻi 462, 466-67, 83 P.3d 725,

729-30 (2004). With respect to the special condition of

participation in the sex offender treatment program, the ICA’s

affirmance was based, in part, on its unsubstantiated

understanding that Young did not previously complete the

program, as ordered.          Young twice stated he had completed the

program while in custody and the probation officer who prepared

the PSI was unable to verify or refute this information.2

2
        Pursuant to HRS § 806-73(b) (2014), all adult probation records,
including PSIs, and “the contents of the records” are confidential, to be
divulged to specified individuals or entities only as set forth therein. In
State v. Hussein, 122 Hawaiʻi 495, 299 P.3d 313 (2010), we held that HRS §
806-73 incorporates the PSI uses permitted by HRS § 706-604(2) and therefore
permits the divulgement of information contained in the PSI for sentencing
purposes. Hussein, 122 Hawaiʻi at 524, 527, 299 P.3d at 342, 345. As stated
in Hussein, “[O]ur courts have sanctioned the use of information contained in
the [pre-sentence report] in open court in determining the proper sentence to
be imposed[.]” Hussein, 122 Hawaiʻi at 525, 299 P.3d at 343. We have
indicated that PSIs “should not [be] employed for purposes not contemplated
by HRS § 806-73.” State v. Greyson, 70 Haw. 227, 234, 768 P.2d 759, 763
(1989) (vacating conviction for State’s improper use of PSI to impeach
defendant during trial).
      We note that State v. Heggland, 118 Hawaiʻi 425, 443, 193 P.3d 341, 359
(2008) merely confirmed two other pieces of publicly available information
with regard to defendant’s prior Colorado conviction; thus, no confidential
information was revealed. In addition, as noted in Hussein, 122 Hawaiʻi at
525-26, 229 P.3d at 343-44, the PSI information quoted by the ICA in State v.
Chavira, No. 29082, 2009 WL 458772 (App. Feb. 25, 2009)(SDO) was “Chavira’s
Sentencing Statement, . . . [which] was made a part of the [PSI] upon his
request[.]” The Sentencing Statement had been filed as a public document on
December 13, 2006, before it was incorporated into the PSI, see State v.
Chavira, Criminal No. 04-1-269 in the Circuit Court of the Second Circuit,
and the ICA therefore did not quote any confidential information. Thus,
Heggland and Chavira do not authorize divulgement of confidential information
in a PSI other than as authorized by HRS § 806-73. See Hussein, 122 Hawaiʻi
at 525-26, 229 P.3d at 343-44.
      The Dissent cites to the following passage from Hussein: “What HRS §§
806-73(b) and 706-605 prohibit is not such use of the report, but public
disclosure and access to the [pre-sentence report] itself.” Hussein, 122
Hawaiʻi at 529, 229 P.3d at 347 (emphasis added). This quotation refers to
and allows “such use.” The phrase “such use” refers back to the “use”
discussed in the previous sentence, which is that “the statutes presume that
a defendant’s personal information may be disclosed on the record and in open
                                                              (continued. . .)

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       We therefore vacate the ICA’s September 11, 2018 Judgment

on Appeal and the circuit court’s December 1, 2016 Judgment of

Conviction and Probation Sentence, and remand this matter to the

circuit court for resentencing. The circuit court shall address

whether Young previously completed the sex offender treatment

program while in custody and, if deemed relevant, the effect

this fact has on Young’s sentence for failing to comply with sex

offender reporting requirements.

       DATED:     Honolulu, Hawaiʻi, July 3, 2019.

Shawn A. Luiz                 /s/ Sabrina S. McKenna
for petitioner
                              /s/ Richard W. Pollack
Paul R. Mow
for respondent                /s/ Michael D. Wilson




(continued. . .)
court at sentencing hearings to the extent the parties and the court find it
necessary to refer to it.” Id. Thus, Hussein only allows divulgement of PSI
information as necessary for sentencing. And although we disagree with the
Dissent as to whether additional information from the PSI discussed by the
Dissent is material to the sentencing issue we discuss, we agree with the
Dissent that appellate courts are not prohibited from referring to
information in a PSI not referenced during the sentencing proceeding when it
is relevant to a sentencing issue discussed on appeal.


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