State v. Agdinaoay

NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
26-OCT-2020
07:52 AM
Dkt. 54 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

STATE OF HAWAI#I, Plaintiff-Appellee, v.
ARTEMIO Y. AGDINAOAY, also known as
ARTEMIO YABLAG AGDINAOAY, Defendant-Appellant

APPEAL FROM THE FAMILY COURT OF THE FIRST CIRCUIT
(CASE NO. 1FFC-XX-XXXXXXX)

SUMMARY DISPOSITION ORDER
(By: Leonard, Presiding Judge, and Chan and Wadsworth, JJ.)

Defendant-Appellant Artemio Y. Agdinaoay, also known
as Artemio Yablag Agdinaoay (Agdinaoay), appeals from the
September 4, 2018 Judgment of Conviction and Sentence; Notice of
Entry (Judgment), and the October 2, 2018 Amended Judgment of
Conviction and Sentence; Notice of Entry (Amended Judgment), both
entered in the Family Court of the First Circuit (Family
Court).1/ After pleading no contest, Agdinaoay was convicted of
Violation of a Temporary Restraining Order (VTRO), in
contravention of Hawaii Revised Statutes (HRS) § 586-4(e)(1)
(Supp. 2017).2/ He was sentenced to 181 days of imprisonment,

1/
The Honorable Matthew J. Viola presided.
2/
HRS § 586-4(e) provides, in relevant part:
When a temporary restraining order is granted and the
respondent or person to be restrained knows of the order, a
knowing or intentional violation of the restraining order is
a misdemeanor. A person convicted under this section shall
undergo domestic violence intervention at any available
domestic violence program as ordered by the court. The court
additionally shall sentence a person convicted under this
section as follows:
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER

with credit for time served, and ordered to undergo domestic
violence intervention (DVI) pursuant to HRS § 586-4(e).
On appeal, Agdinaoay contends that the Family Court
erred in concluding that HRS § 586-4(e) required the court to
order Agdinaoay to undergo DVI in addition to the sentence of 181
days of imprisonment for his VTRO conviction.
After reviewing the record on appeal and the relevant
legal authorities, and giving due consideration to the issues
raised and the arguments advanced by the parties, we affirm the
Judgment and the Amended Judgment for the reasons set forth
below.
I. Background
At a hearing on September 4, 2018, Agdinaoay informed
the District Court that he would be pleading no contest to the
VTRO charge pursuant to a plea agreement with the State.
Defense counsel described the agreement as follows:
Pursuant to the agreement with the State, Mr. Agdinaoay is
going to be pleading no contest to case number 1. And in
exchange for the plea, I believe the State will be nolle
prosequing with prejudice case number 3. And this is going
to be for 181 days, Your Honor, no probation. He does have
credit on these days so we're going to ask that credit be
given.

The following exchange with the Family Court then
ensued:
THE COURT: So plead no contest as charged?
[DEFENSE COUNSEL]: As charged.

THE COURT: Does Mr. Agdinaoay know I -- if he enters
a no contest plea which is not based on probation, I'm
required by statute to order domestic violence intervention
class and set a proof of compliance hearing?
[DEFENSE COUNSEL]: Yes, he's aware.

THE COURT: Is that the agreement with the State?
[DEPUTY PROSECUTING ATTORNEY]: Yes, Your Honor.

THE COURT: Mr. Agdinaoay --

(1) Except as provided in paragraph (2), for a first
conviction for a violation of the temporary
restraining order, the person shall serve a mandatory
minimum jail sentence of forty-eight hours and be
fined not less than $150 nor more than $500; provided
that the court shall not sentence a defendant to pay a
fine unless the defendant is or will be able to pay
the fine[.]

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[AGDINAOAY]: Yes, sir.

Based on this exchange and the colloquy that followed,
the Family Court found that Agdinaoay "knowingly, voluntarily and
intelligently . . . entered his no contest plea and waived his
right to a jury trial with a full understanding of the nature of
the charge against him and the consequences of his plea." The
court then adjudicated Agdinaoay guilty of the VTRO charge and
sentenced him pursuant to the parties' agreement as previously
stated.
II. Discussion
We assume without deciding that Agdinaoay's no-contest
plea in these circumstances did not waive his point of error
regarding the imposition of DVI. As to his point of error, we
conclude that the Family Court did not err in ordering Agdinaoay
to undergo DVI in addition to sentencing him to 181 days of
imprisonment.
Agdinaoay's sentencing was governed by HRS § 586-4(e),
as well as the applicable provisions of HRS Chapter 706. HRS
§ 586-4(e) states in part: "A person convicted under this
section shall undergo domestic violence intervention at any
available domestic violence program as ordered by the court."
Section 586-4(e) further provides in relevant part: "The court
additionally shall sentence a person convicted under this
section" to a mandatory minimum jail sentence.
Agdinaoay contends that the Family Court erred in
concluding it was required under HRS § 586-4(e) to order DVI in
addition to the 181-day sentence of imprisonment. The crux of
Agdinaoay's argument is that: (1) DVI is a "standard condition
of probation" under HRS § 706-624(2)(j);3/ and (2) HRS §§ 706-

3/
HRS § 706-624(2) (Supp. 2017) authorizes the court to impose
certain conditions of a sentence of probation. HRS § 706-624(2)(j) states:

(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:

. . . .

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605(2) and 706-624(2)(a) prohibit a court from sentencing a
defendant to probation and imprisonment in excess of 180 days.4/
Agdinaoay further asserts that the language of HRS § 586-4(e)
does not require the court to sentence a convicted defendant to
participate in DVI; rather, "in a case where the Family Court
deems that it is necessary for the defendant to undergo [DVI], it
could impose that requirement as [a] special condition of
probation under HRS § 706-624(2)(j)." Agdinaoay also maintains
that "under HRS § 586-4(e), where, as here, the Family Court
chooses to sentence the defendant to 181 days of imprisonment,
and therefore cannot impose probation on the defendant, the
Family Court may still order the defendant to undergo [DVI] if it
suspends part of the sentence."
Agdinaoay is correct that under HRS §§ 706-605(2) and
706-624(2)(a), the Family Court was not permitted to sentence him
to probation and a 181-day term of imprisonment. However, as
Agdinaoay concedes, he was not sentenced to probation. Moreover,
nothing in HRS § 586-4(e) or HRS Chapter 706 requires that DVI be
ordered only in conjunction with probation. Indeed, HRS § 586-
4(e), which provides that a defendant convicted under this
section "shall undergo [DVI]" as ordered by the court, makes no
mention of probation. Rather, the section's next sentence states
that "[t]he court additionally shall sentence" the defendant to
the mandatory minimum jail sentence, i.e., additionally to DVI as
ordered by the court. HRS § 586-4(e) (emphasis added). The
plain and unambiguous language of HRS § 586-4(e) thus, at the

(j) Undergo available medical or mental health
assessment and treatment, including assessment
and treatment for substance abuse dependency,
and remain in a specified facility if required
for that purpose[.]

4/
HRS § 706-605(2) (2014) provides: "The court shall not sentence a
defendant to probation and imprisonment except as authorized by part II."
HRS § 706-624(2)(a) states, in relevant part:

(2) . . . The court may provide, as further conditions
of a sentence of probation, . . . that the defendant:

(a) Serve a term of imprisonment to be determined by
the court . . . not exceeding six months in
misdemeanor cases . . . .

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very least, authorizes the court to order DVI in conjunction with
a jail sentence that does not include probation.5/
Agdinaoay contends that "although the Family Court did
not impose probation, the portion of its sentence that requires
the defendant to undergo [DVI] is a form of mental health
treatment" under HRS § 706-624(j), i.e., a discretionary
condition of probation that cannot be imposed in addition to the
181-day jail sentence. In support of his argument, Agdinaoay
relies on this court's decision State v. DeMello, 130 Hawai#i
332, 339-40, 310 P.3d 1033, 1040-41 (App. 2013), vacated in part,

5/
Whether DVI is mandatory for persons convicted of violating HRS
§ 586-4(e) is not determinative of the legality of Agdinaoay's sentence. We
note, however, that the plain language of HRS § 586-4(e) supports the Family
Court's conclusion that it was required to impose DVI in these circumstances.
See Malahoff v. Saito, 111 Hawai#i 168, 191, 140 P.3d 401, 424 (2006) ("It is
well-established that, where a statute contains the word 'shall,' the
provision generally will be construed as mandatory." (citing Leslie v. Bd. of
Appeals of Cty. of Hawai#i, 109 Hawai#i 384, 393-94, 126 P.3d 1071, 1080-81
(2006); Coon v. City and Cty. of Honolulu, 98 Hawai #I 233, 256, 47 P.3d 348,
371 (2002)).
Even if we were to conclude that HRS § 586-4(e) is ambiguous on
this point, the statute's legislative history indicates that DVI was intended
to be mandatory. In 1998, the legislature amended the state's domestic
violence laws by, among other things, substituting the phrase "domestic
violence intervention" for "treatment or counseling." 1998 Haw. Sess. Laws
Act 172, § 2 at 643; H. Stand. Comm. Rep. No. 578-98, in 1998 House Journal,
at 1264. The Senate Committee on Judiciary ( Committee) reported the purpose
of the amendments as follows:
The purpose of this bill, as received by your
Committee, is to amend the domestic violence laws by:
requiring persons convicted of violations of temporary
restraining orders to undergo domestic violence
intervention; allowing the extension of a protective
order not to exceed three years from the date of
issuance; allowing the court to sentence a misdemeanor
defendant to a term of probation up to two years; and
changing the term "cooling off" to "period of
separation.

S. Stand. Comm. Rep. No. 3252, in 1998 Senate Journal, at 1314 (emphasis
added). The Committee also stated:
Your Committee believes that a comprehensive approach
towards domestic violence is needed. Therefore, your
Committee has inserted provisions which reflect Senate
bills that passed your Committee and include:
. . . .
(2) Making it mandatory for a person convicted of a
temporary restraining order violation to undergo
domestic violence intervention[.]
Id. at 1315 (emphasis added).

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136 Hawai#i 193, 361 P.3d 420 (2015). There, we ruled that a
sentence for harassment, a petty misdemeanor, was illegal, where
the trial court sentenced the defendant to the maximum thirty-day
jail term, as well as anger management classes. Id. In reaching
this conclusion, we reasoned:
Sentencing options are governed by HRS § 706–605(1)
(Supp. 2012). 6/ Harassment is a petty misdemeanor for which
the maximum term of imprisonment is thirty days. HRS
§§ 711–1106(2) and 706–663 (1993). There is no provision in
HRS § 706-605 for the imposition of anger management or
other treatment programs. Id. However, HRS § 706-624(2)(j)
does authorize the imposition of, inter alia, mental health
treatment, as a discretionary term of probation. Therefore,
[the defendant] could have been sentenced to a thirty-day
term of incarceration or a six-month term of probation, but
not both. HRS § 706-605(2). Therefore, [the defendant's]
sentence was illegal.

Id. (footnote and numbering altered; some footnotes omitted).
Here, as in DeMello, the trial court did not order
probation. However, unlike the harassment statute in DeMello,
which did not provide for the imposition of anger management
classes, HRS § 586-4(e) expressly provides for the imposition of
DVI, and does not require that it be ordered in conjunction with
probation. See supra. Accordingly, even if DVI can be
characterized as a form of "mental health treatment," the Family
Court was not required to invoke or otherwise rely on HRS § 706-
624(2)(j) in ordering Agdinaoay to undergo DVI. In short, this
court's reasoning in DeMello does not apply here, and does not
render Agdinaoay's sentence illegal.
Within constitutional limits, "[t]he question of what
constitutes an adequate penalty necessary for the prevention of
crime is addressed to the sound judgment of the legislature and
courts will not interfere with its exercise, unless the
punishment proscribed appears clearly and manifestly to be cruel
and unusual. . . ." State v. Kumukau, 71 Haw. 218, 226, 787 P.2d
682, 687 (1990) (quoting State v. Freitas, 61 Haw. 262, 267, 602
P.2d 914, 919 (1979)). Here, the Family Court's decision to
order DVI in addition to the 181-day sentence of imprisonment
falls squarely withing the bounds set by the legislature in HRS

6/
HRS § 706-605 (2014 & Supp. 2017) states the various sentencing
alternatives that are available to the court upon conviction of a defendant
for an offense.

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§ 586-4(e) and the applicable provisions of HRS Chapter 706. On
this record, we conclude that the Family Court did not err in
imposing that sentence.
III. Conclusion
For these reasons, we affirm the September 4, 2018
Judgment of Conviction and Sentence; Notice of Entry, and the
October 2, 2018 Amended Judgment of Conviction and Sentence;
Notice of Entry, both entered in the Family Court of the First
Circuit.

DATED: Honolulu, Hawai#i, October 26, 2020.

On the briefs:
/s/ Katherine G. Leonard
William H. Jameson, Jr., Presiding Judge
Deputy Public Defender,
for Defendant-Appellant.
/s/ Derrick H.M. Chan
Donn Fudo, Associate Judge
Deputy Prosecuting Attorney,
City & County of Honolulu,
for Plaintiff-Appellee. /s/ Clyde J. Wadsworth
Associate Judge

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