State v. Frederico

NOT FOR PUBLICATION IN WEST'S HAWAI I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
27-FEB-2025
08:18 AM
Dkt. 41 SO
CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI I

STATE OF HAWAI I, Plaintiff-Appellee, v.
JASON M. FREDERICO, Defendant-Appellant

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CR. NO. 1PC131000713)

SUMMARY DISPOSITION ORDER
(By: Leonard, Acting Chief Judge, Hiraoka and Guidry, JJ.)
Defendant-Appellant Jason M. Frederico (Frederico)
appeals from the July 18, 2022 Order of Resentencing; Revocation
of Probation, Notice of Entry (Order of Resentencing), entered by
the Circuit Court of the First Circuit (Circuit Court)1 in favor
of Plaintiff-Appellee the State of Hawai i (State). Frederico
also challenges the Circuit Court's October 19, 2022 Findings of
Fact, Conclusions of Law, and Order Denying [Frederico's] Motion
to Terminate Probation (Motion to Terminate) (FOFs/COLs/Order).
Frederico raises a single point of error on appeal,
contending that the Circuit Court erred in denying the Motion to
Terminate.
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
Frederico's point of error as follows:
Frederico was granted a four-year period of deferral of
his no-contest plea (DANC) pursuant to Hawaii Revised Statutes

1
The Honorable Trish K. Morikawa presided.
NOT FOR PUBLICATION IN WEST'S HAWAI I REPORTS AND PACIFIC REPORTER

(HRS) § 853-1(b) (2014).2 The parties agree that the Circuit
Court correctly concluded that HRS §§ 706-625 (2014) and 706-627
(2014) apply to a period of deferral imposed pursuant to HRS
chapter 853. See State v. Kaufman, 92 Hawai i 322, 329, 991 P.2d

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:

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NOT FOR PUBLICATION IN WEST'S HAWAI I REPORTS AND PACIFIC REPORTER

832, 839 (2000) (holding that the tolling provisions in HRS
§ 706–627 apply to deferral periods pursuant to a deferred plea).
Frederico argues that HRS §§ 706-625(1), (4) and 706-
627(1), read in pari materia, exclude "motions to modify" from
motions that toll a defendant's deferral period. HRS § 706-625
provides, in pertinent part:
§ 706-625 Revocation, modification of probation
conditions. (1) The court, on application of a probation
officer, the prosecuting attorney, the defendant, or on its
own motion, after a hearing, may revoke probation except as
provided in subsection (7), reduce or enlarge the conditions
of a sentence of probation, pursuant to the provisions
applicable to the initial setting of the conditions and the
provisions of section 706-627.

. . . .

(4) The court may modify the requirements imposed on
the defendant or impose further requirements, if it finds
that such action will assist the defendant in leading a
law-abiding life.
HRS § 706-627 provides:
§ 706-627 Tolling of probation. (1) Upon the filing
of a motion to revoke a probation or a motion to enlarge the
conditions imposed thereby, the period of probation shall be
tolled pending the hearing upon the motion and the decision
of the court. The period of tolling shall be computed from
the filing date of the motion through and including the
filing date of the written decision of the court concerning
the motion for purposes of computation of the remaining
period of probation, if any. In the event the court fails
to file a written decision upon the motion, the period shall
be computed by reference to the date the court makes a
decision upon the motion in open court. During the period
of tolling of the probation, the defendant shall remain
subject to all terms and conditions of the probation except
as otherwise provided by this chapter.

(2) In the event the court, following hearing,
refuses to revoke the probation or grant the requested
enlargement of conditions thereof because the defendant's
failure to comply therewith was excusable, the defendant may
be granted the period of tolling of the probation for
purposes of computation of the remaining probation, if any.
This court rejected a nearly identical argument
(concerning the tolling of probation) in State v. Wilbur-Delima,
154 Hawai i 496, 502, 555 P.3d 660, 666 (App. 2024); see also
State v. Holland-Dornath, CAAP-XX-XXXXXXX, 2024 WL 3936732, *2
(App. Aug. 26, 2024) (SDO) (following Wilbur-Delima).3 Based on
the reasoning set forth in Wilbur-Delima, we conclude that a

3
Frederico notes that the arguments on the tolling issue raised in
this case were previously made by his counsel (the Office of the Public
Defender) in Holland-Dornath.

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

motion to modify the terms of a DANC that seeks to enlarge a
condition of the DANC is a tolling motion.
Like the appellants in Wilbur-Delima and Holland-
Dornath, Frederico had entered the HOPE Probation Program.
Although the subject motions to modify were not entitled as
motions to enlarge sentence, in each instance, the State moved
for an enlarged DANC condition, i.e., more jail time was sought;
Frederico stipulated to the violations of one or more conditions
of probation, the motions were granted, and Frederico was ordered
to serve additional jail time. Accordingly, the Circuit Court
did not err in treating the State's motions to modify as tolling
motions.
Based on the foregoing, and this court's Opinion in
Wilbur-Delima, the Circuit Court's July 18, 2022 Order of
Resentencing and October 19, 2022 FOFs/COLs/Order are affirmed.
DATED: Honolulu, Hawai i, February 27, 2025.

On the briefs: /s/ Katherine G. Leonard
Acting Chief Judge
Jon N. Ikenaga,
Deputy Public Defender, /s/ Keith K. Hiraoka
for Defendant-Appellant. Associate Judge

Donn Fudo, /s/ Kimberly T. Guidry
Deputy Prosecuting Attorney, Associate Judge
for Plaintiff-Appellee.

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