CourtListener 10666331

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NOT FOR PUBLICATION IN WEST'S HAWAI I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
04-SEP-2025
07:59 AM
Dkt. 51 SO
NOS. CAAP-XX-XXXXXXX and CAAP-XX-XXXXXXX
(consolidated)

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI I

STATE OF HAWAI I, Plaintiff-Appellee, v.
MALIALEI S. JAHAD, Defendant-Appellant

APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT
HONOLULU DIVISION
(CASE NOS. 1DCW-XX-XXXXXXX and 1DCW-XX-XXXXXXX)

SUMMARY DISPOSITION ORDER
(By: Leonard, Presiding Judge, Hiraoka and Guidry, JJ.)
Defendant-Appellant Malialei Jahad (Jahad) appeals from

the District Court of the First Circuit, Honolulu Division's

(District Court),1 April 21, 2023 Notice of Entry of Judgment

and/or Order in 1DCW-XX-XXXXXXX and April 21, 2023 Notice of

Entry of Judgment and/or Order in 1DCW-XX-XXXXXXX (Orders Setting

Aside DANC Plea), entered in favor of Plaintiff-Appellee State of

Hawai i (State).

Jahad raises two points of error on appeal, contending

that the District Court erred when: (1) it found that Jahad had

received notice of the terms and conditions of deferral, and

subsequently granted the State's motion to set aside; and (2) it

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The Honorable Harlan Y. Kimura presided in both cases.
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granted the State's motions to set aside deferral for violations

that were not alleged in writing.

Upon careful review of the record and the briefs

submitted by the parties, and having given due consideration to

the arguments advanced and the issues raised, we resolve Jahad's

points of error as follows:

(1) Jahad argues that "[a] defendant whose motion for

deferral is accepted must be given a written copy of the terms

and conditions of deferral to satisfy notice requirements" and

that "[w]hen formal notice requirements of a deferral are not met

because a defendant is not given a written copy of the terms and

conditions, the setting aside of that deferral constitutes both a

statutory and constitutional violation and, therefore, is

prohibited." This argument has merit.

The Hawai i Supreme Court has held that "under HRS

§ 853–1 (1993 & Supp. 2007), referring to a [deferred acceptance

of guilty plea (DAGP)], and incorporating HRS § 706–624 (1993 &

Supp. 2007), pertaining to probation, the defendant must be given

a written copy of the conditions imposed pursuant to his or her

DAGP." State v. Shannon, 118 Hawai i 15, 17, 185 P.3d 200, 202

(2008) (footnotes omitted). While this case involves a deferred

acceptance of nolo contendere (DANC) plea, the granting of

deferral is authorized by Hawaii Revised Statutes (HRS) § 853-1

(2014),2 which applies to both DAGPs and DANC pleas.

2
HRS 853-1 states:

§ 853-1 Deferred acceptance of guilty plea or nolo
contendere plea; discharge and dismissal, expungement of
records. (a) Upon proper motion as provided by this
chapter:

(continued...)

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Specifically, HRS § 853-1 (b) authorizes deferral supervision

conditions by reference to HRS 706-624 (2014), which governs

conditions of probation. The supreme court has held that "the

tolling provisions under HRS § 706-627 apply to deferral periods

pursuant to a DAG plea," and thus, these statutory sections are

applicable to deferral of a DANC plea. See State v. Kaufman, 92

2
(...continued)
(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.

(b) The proceedings may be deferred upon any of the
conditions specified by section 706-624. As a further
condition, the court shall impose a compensation fee
pursuant to section 351-62.6 and a probation services fee
pursuant to section 706-648 upon every defendant who has
entered a plea of guilty or nolo contendere to a petty
misdemeanor, misdemeanor, or felony; provided that the court
shall waive the imposition of a compensation or probation
services fee, if it finds that the defendant is unable to
pay the compensation or probation services fee. The court
may defer the proceedings for a period of time as the court
shall direct but in no case to exceed the maximum sentence
allowable; provided that, if the defendant has entered a
plea of guilty or nolo contendere to a petty misdemeanor,
the court may defer the proceedings for a period not to
exceed one year. The defendant may be subject to bail or
recognizance at the court's discretion during the period
during which the proceedings are deferred.

(c) Upon the defendant's completion of the period
designated by the court and in compliance with the terms and
conditions established, the court shall discharge the
defendant and dismiss the charge against the defendant.

(d) Discharge of the defendant and dismissal of the
charge against the defendant under this section shall be
without adjudication of guilt, shall eliminate any civil
admission of guilt, and is not a conviction.

(e) Upon discharge of the defendant and dismissal of
the charge against the defendant under this section, the
defendant may apply for expungement not less than one year
following discharge, pursuant to section 831-3.2.

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Hawai i 322, 329-30, 991 P.2d 832, 839-40 (2000). Finally, HRS

§ 706-624 (3) states, in pertinent part,
(3) Written statement of conditions. The court
shall order the defendant at the time of sentencing to sign
a written acknowledgment of receipt of conditions of
probation. The defendant shall be given a written copy of
any requirements imposed pursuant to this section, stated
with sufficient specificity to enable the defendant to
comply with the conditions accordingly.

(Emphasis added).

Here, nothing in the record establishes that Jahad

received a written copy of the terms and conditions of probation.

In fact, it was explicitly established via the probation

officer's testimony that, because Jahad's sentencing occurred

when COVID restrictions were in place, she could not and did not

visit Jahad to "review all the forms, the special and mandatory

conditions of probation," and she could not and did not receive a

signature from Jahad that showed that Jahad acknowledged said

terms. In 1DCW-XX-XXXXXXX, proposed terms and conditions were

eventually filed on January 29, 2021, and the signed order,

including terms and conditions, was filed on February 3, 2021.

However, while the order was filed, there is no evidence in the

record that written copies of the terms and conditions were given

to Jahad; in 1DCW-XX-XXXXXXX, there is also nothing in the record

to show that Jahad received the written copies of the terms and

conditions.

Based on the record, and as acknowledged by the State,

the District Court clearly erred in finding that Jahad had

received notice of the terms and conditions of deferral.

(2) Jahad argues that "[t]he revocation of Jahad's

deferral violated her due process and statutory rights because it

was based on conduct that was not alleged in the motions to set

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aside deferral." Additionally, Jahad argues that the motions to

set aside deferral filed in 1DCW-XX-XXXXXXX and 1DCW-XX-XXXXXXX

alleged the same single violation: that "Defendant failed to

obtain a substance abuse assessment and/or treatment until

clinically discharged." Jahad submits that because the District

Court assigned no fault for Jahad's inability to obtain a

substance abuse assessment and/or treatment, the District Court

abused its discretion by granting the State's motions on other

grounds not raised in the motions - namely, that "Jahad was to

have reported to the probation office as soon as she was released

from custody," and also that Jahad left the jurisdiction of O ahu

even though she was prohibited from doing so. This point of

error also has merit.

The supreme court has held that "[d]ue process mandates

that factual information upon which revocation is sought be

provided to the defendant, inasmuch as '[t]he question of whether

the defendant should be sentenced to imprisonment or to probation

is no less significant than the question of guilt[.]' A

defendant, threatened with the loss or change of probation

status, must be given the same procedural protections afforded at

the time of original disposition [,i.e., sentencing]." State v.

Durham, 125 Hawai i 114, 125-26, 254 P.3d 425, 436-37, amended on

reconsideration in part, 125 Hawai i 249, 258 P.3d 946 (2011)

(cleaned up); see also State v. Wong, 73 Haw. 81, 829 P.2d 1325,

opinion amended on reconsideration, 73 Haw. 625, 831 P.2d 935

(1992).

Here, like in Durham and Wong, Jahad was given notice

via two motions to set aside DANC plea, both containing a single

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ground for revocation: that "Defendant failed to obtain a

substance abuse assessment and/or treatment until clinically

discharged." However, the District Court relied on additional

findings to support the granting of the State's motions, stating

that "[Jahad] was to have reported to the probation office as

soon as she was released from custody [and that she did not],"

and also that Jahad was "prohibited from leaving the jurisdiction

of Oahu," and thus "for all those reasons, there is a

preponderance of the evidence that the allegations in the motion

to set aside [DANC plea] has been proved."

Jahad did not receive notice of the additional grounds

for the granting of the State's motions. Therefore, the District

Court abused its discretion in granting the State's motion to set

aside the DANC plea.

For these reasons, the District Court's April 21, 2023

Orders Setting Aside DANC Plea are vacated and this case is

remanded to the District Court for further proceedings consistent

with this Summary Disposition Order.

DATED: Honolulu, Hawai i, September 4, 2025.

On the briefs: /s/ Katherine G. Leonard
Presiding Judge
Seth Patek,
Deputy Public Defender, /s/ Keith K. Hiraoka
for Defendant-Appellant. Associate Judge

Loren J. Thomas, /s/ Kimberly T. Guidry
Deputy Prosecuting Attorney, Associate Judge
City & County of Honolulu,
for Plaintiff-Appellee.