State v. Fay

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
31-OCT-2023
08:05 AM
Dkt. 59 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

STATE OF HAWAI#I, Plaintiff-Appellee, v.
MELISSA FAY, Defendant-Appellant

APPEAL FROM THE DISTRICT COURT OF THE SECOND CIRCUIT
(LAHAINA DIVISION)
(CASE NO. 2DTA-21-00637)

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

Defendant-Appellant Melissa Fay (Fay) appeals from the

January 24, 2022 Amended Judgment and Notice of Entry of Amended

Judgment (Amended Judgment), entered by the District Court of the

Second Circuit (District Court).1

On July 26, 2021, the State of Hawai#i (State) filed a

Complaint charging Fay with four offenses stemming from an

incident on July 3, 2021: (1) Storage of an Open Container, in

1
The Honorable Lauren M. Akitake presided.
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

violation of Hawaii Revised Statutes (HRS) § 291-3.3(a) (2020);2

(2) Operating a Vehicle under the Influence of an Intoxicant

(OVUII), in violation of HRS § 291E-61(a)(1) (2020)3 and subject

2
HRS § 291-3.3(a) states:

§ 291-3.3 Storage of opened container containing
intoxicating liquor or consumption at scenic lookout. (a)
No person shall keep in a motor vehicle, or on a moped when
such vehicle or moped is upon any public street, road, or
highway or at any scenic lookout, any bottle, can, or other
receptacle containing any intoxicating liquor which has been
opened, or a seal broken, or the contents of which have been
partially removed or fully removed, unless such container is
kept in the trunk of the vehicle, or kept in some other area
of the vehicle not normally occupied by the driver or
passengers, if the vehicle is not equipped with a trunk. A
utility or glove compartment shall be deemed to be within
the area occupied by the driver and passengers.
3
HRS § 291E-61(a)(1) states:

§ 291E-61 Operating a vehicle under the influence of
an intoxicant. (a) A person commits the offense of
operating a vehicle under the influence of an intoxicant if
the person operates or assumes actual physical control of a
vehicle:
(1) While under the influence of alcohol in an
amount sufficient to impair the person's normal
mental faculties or ability to care for the
person and guard against casualty[.]

2
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

to HRS § 291E-61(b)(1) (Supp. 2022);4 (3) Inattention to Driving,

in violation of HRS § 291-12 (2020);5 and (4) No Motor Vehicle

4
HRS § 291E-61(b)(1) states:

§ 291E-61 Operating a vehicle under the influence of
an intoxicant.
(b) A person committing the offense of operating a
vehicle under the influence of an intoxicant shall be
sentenced without possibility of probation or suspension of
sentence as follows:
(1) Except as provided in paragraph (4), for the
first offense, or any offense not preceded
within a ten-year period by a conviction for an
offense under this section or section 291E-4(a):
(A) A fourteen-hour minimum substance abuse
rehabilitation program, including
education and counseling, or other
comparable programs deemed appropriate by
the court;
(B) Revocation of license to operate a vehicle
for no less than one year and no more than
eighteen months;
(C) Installation during the revocation period
of an ignition interlock device on all
vehicles operated by the person;
(D) Any one or more of the following:
(i) Seventy-two hours of community
service work;
(ii) No less than forty-eight hours and
no more than five days of
imprisonment; or
(iii) A fine of no less than $250 and no
more than $1,000;
(E) A surcharge of $25 to be deposited into
the neurotrauma special fund; and
(F) A surcharge, if the court so orders, or up
to $25 to be deposited into the trauma
system special fund[.]
5
HRS § 291-12 states:

§ 291-12 Inattention to driving. Whoever operates
any vehicle negligently as to cause a collision with, or
injury or damage to, as the case may be, any person, vehicle
or other property shall be fined not more than $500 or
imprisoned not more than thirty days, or both, and may be
subject to a surcharge of up to $100, which shall be
deposited into the trauma system special fund.

3
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Insurance (NMVI), in violation of HRS § 431:10C-104(a)(2019),6

and subject to HRS § 431:10C-117(a)(2) and (3) (Supp. 2022).7

6
HRS § 431:10C-104(a) states:

§ 431:10C-104 Conditions of operation and
registration of motor vehicles. (a) Except as provided in
section 431:10C-105, no person shall operate or use a motor
vehicle upon any public street, road, or highway of this
State at any time unless such motor vehicle is insured at
all times under a motor vehicle insurance policy.
7
HRS § 431:10C-117 states, in pertinent part (format altered):

§ 431:10C-117 Penalties.
(a) . . . (2) Notwithstanding any provision of the Hawaii
Penal Code:
(A) Each violation shall be deemed a separate
offense and shall be subject to a fine of no
less than $100 nor more than $5,000 which shall
not be suspended except as provided in
subparagraph (B); and
(B) If the person is convicted of not having had a
motor vehicle insurance policy in effect at the
time the citation was issued, the fine shall be
$500 for the first offense . . . provided that
the court:
(i) Shall have the discretion to suspend all
or any portion of the fine if the
defendant provides proof of having a
current motor vehicle insurance policy;
provided further that upon the defendant's
request, the court may grant community
service in lieu of the fine, of no less
than seventy-five hours and no more than
one hundred hours for the first offense,
and no less than two hundred hours nor
more than two hundred seventy-five hours
for the second offense; and
(3) In addition to the fine in paragraph (2), the
court shall either:
(A) Suspend the driver's license of the driver or of
the registered owner for:

(continued...)

4
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

On August 23, 2021, Fay entered into a plea agreement

with the State. Under the plea agreement, Count 1 was dismissed

with prejudice; Fay pled no contest to Count 2, OVUII, and the

State recommended $250 in fines plus the statutory penalties and

fees as a first time OVUII offender; Count 3 was amended to

Criminal Property Damage in the Fourth Degree under HRS § 708-823

(2014),8 with a recommended fine of $100, a payment of

restitution, and a signature of a freestanding order; and Fay

pled no contest to Count 4, NMVI, and the State recommended a

$500 fine plus the statutory penalties and fees.

On January 24, 2022, Fay signed and the District Court

entered an Order Imposing a Free Standing Order of Restitution

(Restitution Order), which required her to pay $6,504 at $50 per

month. The District Court further ordered proof of compliance

hearings (Compliance Hearings) be held to periodically monitor

the restitution payments. Fay objected to the Compliance

Hearings, arguing that once a freestanding order is signed, a

district court no longer has jurisdiction over restitution. The

7
(...continued)
(i) Three months for the first conviction; and
(ii) One year for any subsequent offense within a
five-year period from a previous offense[.]
8
HRS § 708-823 states:

§ 708-823 Criminal property damage in the fourth
degree. (1) A person commits the offense of criminal
property damage in the fourth degree if by means other than
fire, the person intentionally or knowingly damages the
property of another without the other's consent.
(2) Criminal property damage in the fourth degree is a
petty misdemeanor.

5
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Court denied Fay's oral motion objecting to the order for

Compliance Hearings and included its rulings in the Amended

Judgment. On February 15, 2022, Fay filed a notice of appeal

from the Amended Judgment.

Fay raises a single point of error on appeal, asserting

that the District Court erred in denying Fay's motion to not set

Compliance Hearings to monitor Fay's payments on the Restitution

Order because: (1) the District Court lacks jurisdiction; and

(2) the practice of setting unending Compliance Hearings to

enforce restitution constitutes an abuse of discretion and a

waste of judicial resources, needlessly duplicates the

established civil judgment mechanism, and criminalizes

individuals who lack the capacity to pay restitution.

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 by the parties, we

resolve Fay's point of error as follows:

(1) Fay contends since the enactment of Act 269,

Session Laws of 1998, which created HRS § 706-646 (2014) and HRS

§ 706-647 (2014), a free standing order of restitution is civil

in nature, and therefore, the criminal courts lack jurisdiction

to enforce such an order. Fay submits that because the

Legislature intended to allow victims to use civil collection

remedies, criminal courts, including the District Court in this

6
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

case, lack jurisdiction. We conclude that this argument is

without merit.

Pursuant to HRS § 604-7(4) (2016),9 a district court

has the power to enforce judgments. Pursuant to HRS § 706-605(7)

(2014),10 a court has jurisdiction to order a defendant to make

restitution payments for losses as provided in § 706-646. The

Legislature explained its rationale for adding HRS §§ 706-646 and

706-647 as follows:
The purpose of this bill is to allow victims of crime
to enforce a criminal restitution order in the same manner
as a civil judgment. This section also includes within the
definition of "victim" a governmental entity which has
reimbursed the victim for losses arising as a result of the
crime, and allows the court to order restitution to be paid
to the criminal injuries compensation commission [( CICC)] if
the victim has been given an award for compensation by the
commission.
Under current law, a defendant may be required by the
court to pay restitution for losses caused to the victim.
Collection of this restitution is left to governmental
entities such as the Judiciary, Public Safety, and Paroling
Authority, which often are able to collect only a small
fraction of the amount.
There are few other options. Although the CICC helps
victims by providing some compensation, victims of property
crimes and some violent crimes are not eligible for any

9
HRS § 604-7(4) (2016), states:

§ 604-7 Powers; venue. (a) The district courts may:
. . . .
(4) Enforce judgments; and punish contempts
according to law[.]
10
HRS § 706-605(7) (2014) states:

§ 706-605 Authorized disposition of convicted
defendants.
. . . .
(7) The court shall order the defendant to make
restitution for losses as provided in section 706-646. In
ordering restitution, the court shall not consider the
defendant's financial ability to make restitution in
determining the amount of restitution to order. The court,
however, shall consider the defendant's financial ability to
make restitution for the purpose of establishing the time
and manner of payment.

7
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

compensation from the CICC. And although a victim may bring
civil action against the defendant, this process is costly
and time consuming.
Therefore, your Committee on Conference believes that
victims should have a "fast track" ability to be compensated
for their losses by allowing them to enforce the criminal
restitution order as a civil judgment, using all of the
civil collection remedies.

Conf. Comm. Rep. No. 89, in 1998 House Journal, at 986, 1998

Senate Journal, at 780. HRS § 706-644(4) (2014) provides for

criminal court enforcement and modification of a restitution

order until the restitution is paid.11 The supplemental

11
HRS § 706-644(1) provides that a sentencing court may enforce the
payment of restitution imposed "as a part of a judgment and sentence" under
HRS § 706-605(7). HRS § 706-644(1) permits the sentencing court to impose
consequences for nonpayment of restitution "upon the motion of the prosecuting
attorney or upon its own motion[.]" The statute sets forth various
consequences in the event of such default, depending on whether default was
"contumacious" under subsection (1), or "not contumacious" under subsection
(4). Subsection (5) provides an additional avenue for summary collection,
where a restitution order imposed "as a part of a judgment and sentence . . .
may be collected in the same manner as a judgment in a civil action."

HRS § 706-644 states, in part:

§ 706-644 Consequences of nonpayment; imprisonment
for contumacious nonpayment; summary collection.
(1) When a defendant is sentenced pursuant to section
706-605, . . . and the defendant is ordered to pay a fee,
fine, or restitution, whether as an independent order, as
part of a judgment and sentence, or as a condition of
probation or deferred plea, and the defendant defaults in
the payment thereof or of any installment, the court, upon
the motion of the prosecuting attorney or upon its own
motion, may require the defendant to show cause why the
defendant's default should not be treated as contumacious
and may issue a summons or a warrant of arrest for the
defendant's appearance. Unless the defendant shows that the
defendant's default was not attributable to an intentional
refusal to obey the order of the court, or to a failure on
the defendant's part to make a good faith effort to obtain
the funds required for the payment, the court shall find
that the defendant's default was contumacious and may order
the defendant committed until the fee, fine, restitution, or
a specified part thereof is paid.
. . . .
(4) If it appears that the defendant's default in the
payment of a fee, fine, or restitution is not contumacious,
the court may make an order allowing the defendant
additional time for payment, reducing the amount of each
installment, or revoking the fee, fine, or the unpaid
(continued...)

8
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

commentary to § 706-644 also explains that Act 269, Session Laws

1998, amended § 706-644 to "allow victims of a crime to enforce a

criminal restitution order in the same manner as a civil

judgment." HRS § 706-644 supp. cmt. (2014). The commentary to

§ 706-644 indicates that the intent of the 1998 amendment was to

supplement the existing process of collecting restitution by

allowing victims additional methods of enforcement. There is no

language anywhere in the statutes or the commentary indicating

that the Legislature intended to divest the district courts

presiding over criminal cases from jurisdiction over enforcement

of restitution orders. In fact, the legislative history quoted

above clearly demonstrates the intent to offer additional ways

for crime victims to be compensated for their losses. Therefore,

we reject Fay's argument that the District Court lacked post-

judgment jurisdiction to enforce its order that Fay pay

restitution.

(2) Fay argues that the ordering of Compliance

Hearings constitutes an abuse of discretion, citing State v.

Gaylord, 78 Hawai#i 127, 890 P.2d 1167 (1995), and Bearden v.

Georgia, 461 U.S. 660 (1983).

11
(...continued)
portion thereof in whole or in part, or converting the
unpaid portion of the fee or fine to community service. A
defendant shall not be discharged from an order to pay
restitution until the full amount of the restitution has
actually been collected or accounted for.

9
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

In Gaylord, the Hawai#i Supreme Court held that

imposing consecutive terms of imprisonment, merely to ensure

restitution payment, constituted an abuse of discretion. 78

Hawai#i at 154, 890 P.2d at 1194. Fay acknowledges that she "was

neither sentenced to imprisonment nor probation on the OVUII,

CPD4, and [NMVI] charges." Fay nevertheless asserts that were

she to miss a Compliance Hearing, a bench warrant would be

issued, therefore she could be imprisoned, and thus the principle

in Gaylord is triggered. We decline to address such speculation,

except to note that this hypothetical bench warrant would be

issued because of failure to comply with a court-ordered

appearance at a hearing, not because of a failure to pay

restitution.

Fay's reliance on Bearden is equally misplaced. In

Bearden, the defendant was placed on probation and ordered to pay

a fine and restitution that totaled $750. 461 U.S. at 662. Soon

after, defendant lost his job and notified the probation officer

that his payment would be late. Id. at 662-63. The state then

filed a motion to revoke probation and the trial court sentenced

him to prison. Id. at 663. In reversing this sentence, the

United States Supreme Court explained that if the state

determines a fine or restitution is the appropriate and adequate

penalty for the crime, it may not thereafter imprison the person

solely because he lacked the resources to pay it. Id. at 667-69.

10
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Here, the State has not sought to revoke probation, and Fay has

not been sentenced to prison. Bearden does not apply.

Lastly, Fay argues that Compliance Hearings are a waste

of judicial resources, criminalize individuals who lack the

capacity to pay restitution, and needlessly duplicate the civil

judgment mechanism. However, as discussed above, the District

Court has statutory authority to enforce the Free Standing Order,

and we cannot conclude that it is a waste of judicial resources

or needlessly duplicative for the court to exercise its authority

in this manner. Fay offers nothing in support of her contention

that Compliance Hearings needlessly criminalize individuals who

lack the capacity to pay restitution. We conclude that the

District Court did not abuse its discretion in ordering Fay to

appear at Compliance Hearings.12

For these reasons, the District Court's January 24,

2022 Amended Judgment is affirmed.

DATED: Honolulu, Hawai#i, October 31, 2023.

On the briefs: /s/ Katherine G. Leonard
Presiding Judge
Phyllis J. Hironaka,
Deputy Public Defender, /s/ Clyde J. Wadsworth
for Defendant-Appellant. Associate Judge

Renee Ishikawa Delizo, /s/ Karen T. Nakasone
Deputy Prosecuting Attorney, Associate Judge
County of Maui,
for Plaintiff-Appellee.

12
We note that in its Answering Brief, the State submits that the
District Court's change-of-plea colloquy was deficient. However, as clearly
stated in Fay's Reply Brief, Fay is not seeking relief from the Amended
Judgment on this ground. Therefore, we decline to address it.

11