State v. Wilbur-Delima.

FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
29-JUL-2024
08:01 AM
Dkt. 134 OP
IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

---o0o---

STATE OF HAWAI#I, Plaintiff-Appellee, v.
KAMALEI WILBUR-DELIMA, Defendant-Appellant

CAAP-XX-XXXXXXX

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CR. NOS. 1PC151000955, 1PC151001274, 1PC151001978, and
1PC161001506)

JULY 29, 2024

LEONARD, ACTING CHIEF JUDGE, HIRAOKA AND WADSWORTH, JJ.

OPINION OF THE COURT BY LEONARD, ACTING CHIEF JUDGE

Defendant-Appellant Kamalei Wilbur-Delima (Wilbur-

Delima) appeals from the May 26, 2023 Orders Denying Defendant's

Motion to Correct Illegal Sentence (May 26, 2023 Orders),1

entered by the Circuit Court of the First Circuit (Circuit

Court),2 as well as the Circuit Court's April 10, 2023 Findings

of Fact; Conclusions of Law; Order Denying Defendant's Motion to

1
The May 26, 2023 Orders denied Wilbur-Delima's request to correct
his sentences in 1PC151000955, 1PC151001978, and 1PC161001506.
2
The Honorable Trish K. Morikawa presided.
FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Correct Illegal Sentence (April 10, 2023 Order)3 (together,

Orders Denying Correction of Illegal Sentences). In four

December 13, 2022 Resentencing Orders, the Circuit Court revoked

Wilbur-Delima's probation, and resentenced him to a term of ten

years imprisonment in 1PC151000955, and five years in

1PC151001274, 1PC151001978, and 1PC161001506, all to be served

concurrently.

The fundamental issue in this appeal is whether Hawaii

Revised Statutes (HRS) §§ 706-625(1), (4) (2014) and 706-627(1)

(2014), read in pari materia, exclude "motions to modify"

probation from motions that toll a defendant's probation. For

the reasons stated herein, we hold that a motion to modify

probation that seeks to enlarge a condition of probation is a

tolling motion. Affirmed.

I. BACKGROUND

A. June 15, 2015 - April 26, 2017

On June 16, 2015, the State of Hawai#i (State) charged

Wilbur-Delima via grand jury indictment with one count of Robbery
in the Second Degree, in violation of HRS §§ 708-841(1)(a) (2014)

and/or 708-841(1)(b) (2014), in 1PC151000955. On August 17,

2015, the State charged Wilbur-Delima via felony information with

one count of Attempted Escape in the Second Degree, in violation

of HRS §§ 705-500(1)(b) (2014) and 710-1021 (2014), in

3
The April 10, 2023 Order denied Wilbur-Delima's motion to correct
his sentence in 1PC151001274. Wilbur-Delima's notice of appeal also purported
to appeal from the December 13, 2022 Orders of Resentencing, Revocation of
Probation (Resentencing Orders). However, at the June 26, 2024 oral argument
on this appeal, Wilbur-Delima's attorney acknowledged that the notice of
appeal was untimely as to the Resentencing Orders and stated that Wilbur-
Delima was only seeking appellate review of the Orders Denying Correction of
Illegal Sentences.

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1PC151001274. Wilbur-Delima pled guilty in 1PC151001274 and

1PC151000955 on December 2, 2015.

On December 16, 2015, the State charged Wilbur-Delima

via felony information with one count of Promoting a Dangerous

Drug in the Third Degree, in violation of HRS § 712-1243 (2014),

in 1PC151001978. Wilbur-Delima pled guilty in 1PC151001978 on

February 3, 2016.

On July 20, 2016, the Circuit Court4 entered a judgment

of conviction, sentencing Wilbur-Delima to concurrent four years

probation in 1PC151001274, 1PC151001978, and 1PC151000955.

On September 14, 2016, the State filed a motion to

revoke Wilbur-Delima's probation in 1PC151001274 and requested

resentencing for Wilbur-Delima's inexcusable violation of

multiple conditions of his probation.

On September 21, 2016, the State charged Wilbur-Delima

via complaint with Habitual Property Crime, in violation of HRS

§ 708-803 (Supp. 2023), in 1PC161001506. Wilbur-Delima pled no

contest in 1PC161001506 on November 29, 2016.

The State filed motions to revoke Wilbur-Delima's

probation in 1PC151001978 and 1PC151000955 on December 8, 2016,

asserting that Wilbur-Delima violated multiple conditions of his

probation and requested resentencing to a term of imprisonment.

The Circuit Court5 entered a judgment of conviction on

April 26, 2017, sentencing Wilbur-Delima to four years probation

in 1PC161001506. Simultaneous with the April 26, 2017 judgment,

4
The Honorable Dexter D. Del Rosario presided.
5
The Honorable Glenn J. Kim presided.

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the Circuit Court granted the State's motions to revoke Wilbur-

Delima's probation and resentenced him to four years probation in

1PC151001274, 1PC151001978, and 1PC151000955. The Circuit Court

ordered the four-year probation terms in 1PC151001274,

1PC151001978, 1PC151000955, and 1PC161001506 (collectively,

Subject Cases) to run concurrently.

B. June 30, 2017 - Present

On June 30, 2017, Wilbur-Delima entered Hawaii's

Opportunity Probation with Enforcement (HOPE) Probation Program6

and attended a HOPE Warning hearing with the Circuit Court.7

The court addressed Wilbur-Delima and explained the consequences

of non-compliance with HOPE Probation. Between November 8, 2017,

and February 28, 2020, the State filed ten "Motion[s] for

Modification of the Terms and Conditions of Probation, Deferred

Acceptance of Guilty Plea or Deferred Acceptance of No Contest

Plea" (Motions to Modify) and/or "Motion[s] for Modification

and/or Enlargement of Terms and Conditions of Probation, Deferred

Acceptance of Guilty Plea or Deferred Acceptance of No Contest
Plea" (Motion to Enlarge), alleging that Wilbur-Delima violated

one or more conditions of his probation. Wilbur-Delima

6
Hope Probation operates on a zero tolerance basis, where
Probationers in the program receive swift, predictable, and immediate
sanctions – typically resulting in several days in jail – for each detected
violation, such as detected drug use or missed appointments with a probation
officer. Inst. for Behav. and Health, Inc., Robert L. DuPont, State of the
Art of HOPE Probation, at 1-4 (2015),
https://www.courts.state.hi.us/docs/news and reports docs/State of %20the Art
of HOPE Probation.pdf. "When HOPE probationers demonstrate repeatedly that
they are unable to succeed under community supervision, and are not referred
to the Honolulu Drug Court, their probation may be revoked and the probationer
sent to prison." Id. at 51.
7
The Honorable William M. Domingo presided.

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stipulated to the violations in every one of the State's ten

motions. The motions, and corresponding orders granting them,

are as follows:

1. Motion to Modify filed November 8, 2017. The State
alleged that Wilbur-Delima failed to maintain substance
abuse treatment until clinically discharged and failed
to report to his probation officer. The Circuit Court
issued an "Order Granting [Motion to Modify]" (Order
Granting Modification) on December 12, 2017, and
ordered Wilbur-Delima to serve jail time (with credit
for time served) and to report to his probation officer
after release from custody. Wilbur-Delima served
approximately 29 days in jail.

2. Motion to Modify filed February 9, 2018. The State
alleged that Wilbur-Delima admitted to using
methamphetamine and failed to maintain substance abuse
treatment until clinically discharged. The Circuit
Court issued an Order Granting Modification on February
27, 2018, ordering Wilbur-Delima to serve jail time
(with credit for time served) and to report to his
probation officer after release from custody.8
Wilbur-Delima served approximately 20 days in jail.

3. Motion to Modify filed April 17, 2019. The State
alleged that Wilbur-Delima refused to submit or failed
to submit to urinalysis within thirty minutes of
instruction on April 16, 2019. The Circuit Court
issued an Order Granting Modification on April 30,
2019, ordering Wilbur-Delima to serve one day of
incarceration in the court's cellblock, and upon
release, report to his probation officer.

4. Motion to Modify filed June 3, 2019. The State alleged
that Wilbur-Delima admitted to using alcohol on May 31,
and June 1, 2019, and methamphetamine on June 1, 2019.
The Circuit Court issued an Order Granting Modification
on June 5, 2019, and ordered Wilbur-Delima to serve
jail time equal to time served and to report to his
probation officer immediately upon release. Wilbur-
Delima served approximately 3 days in jail.

5. Motion to Modify filed July 23, 2019. The State
alleged that Wilbur-Delima refused to submit or failed

8
The State filed a motion for revocation of probation and
resentencing on February 21, 2018 (after filing the February 9, 2018 Motion to
Modify) only in criminal number 1PC151001274. The Circuit Court denied the
motion, and treated it as a motion to modify, which as noted, the court
granted.

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to submit to urinalysis within thirty minutes of
instruction on July 22, 2019. The Circuit Court issued
an Order Granting Modification on July 30, 2019,
ordering that Wilbur-Delima be counseled and then
released to his probation officer.

6. Motion to Modify filed August 5, 2019. The State
alleged that Wilbur-Delima refused to submit to
urinalysis or failed to submit to urinalysis within
thirty minutes of instruction on August 2, 2019. The
Circuit Court issued an Order Granting Modification on
August 14, 2019, sentencing Wilbur-Delima to one day
incarceration and to report to his probation officer.

7. Motion to Modify filed August 28, 2019. The State
alleged that Wilbur-Delima refused to submit or failed
to submit to urinalysis within thirty minutes of
instruction on August 28, 2019. The Circuit Court
issued an Order Granting Modification on September 11,
2019, sentencing Wilbur-Delima to three days in jail,
to be served from September 13, 2019, to September 15,
2019, and then report to his probation officer.

8. Motion to Modify filed September 17, 2019. The State
alleged that Wilbur-Delima failed to report to his
probation officer as ordered on September 16, 2019.
The Circuit Court issued an Order Granting
Modification, sentencing Wilbur-Delima to serve three
days in jail from October 4, 2019, to October 6, 2019,
and to then immediately report to his probation officer
upon release.

9. Motion to Modify filed October 7, 2019. The State
alleged that Wilbur-Delima had a positive drug test for
methamphetamine on September 30, 2019, admitted to
using methamphetamine on September 29, 2019, and
submitted an altered urine test on September 30, 2019.
The Circuit Court issued an Order Granting Modification
on November 6, 2019, sentencing Wilbur-Delima to a jail
term equal to time served (approximately 30 days) and
to report to his probation officer upon release.

10. Motion to Enlarge filed February 28, 2020. The State
alleged that Wilbur-Delima refused to submit or failed
to submit to urinalysis within thirty minutes of
instruction on February 27, 2020, and failed to report
to his probation officer as ordered on February 27,
2020. The Circuit Court issued an "Order Granting
[Motion for Enlargement]" (Order Granting Enlargement)
on June 24, 2020, sentencing Wilbur-Delima to serve a
term of incarceration equal to credit for time served,
and to schedule an appointment with his probation

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officer within 24 hours of release from custody.
Wilbur-Delima served approximately 41 days in jail.

On November 23, 2021, in 1PC161001506, 1PC151001978,

1PC151000955, and November 30, 2021, in 1PC151001274, the State

filed the "Motion[s] for Revocation of Probation, Resentencing

and Issuance of Summons" (Motions for Revocation), asserting that

Wilbur-Delima failed to maintain substance abuse treatment until

clinically discharged.

On February 18, 2022, Wilbur-Delima stipulated to the

violations in the State's Motions for Revocation; the Circuit

Court orally granted the State's motions, allowed Wilbur-Delima

another opportunity to complete substance abuse treatment at

Kaiser, and continued resentencing to March 22, 2022. Wilbur-

Delima failed to appear at the continued resentencing hearings

held on March 22, 2022, and April 5, 2022. A bench warrant was

issued for Wilbur-Delima's arrest on April 5, 2022, and Wilbur-

Delima was arrested on April 22, 2022. On May 17, 2022, the

court granted Wilbur-Delima's request for a continuance in order

to reapply to drug court. Wilbur-Delima was denied admission to

drug court on October 12, 2022. On December 6, 2022, the State

convicted Wilbur-Delima of two additional felonies, Habitual

Property Crime in lCPC-XX-XXXXXXX and Unauthorized Entry into

Motor Vehicle in the First Degree in lCPC-XX-XXXXXXX.

On December 13, 2022, the Circuit Court issued the

Resentencing Orders, revoking Wilbur-Delima's probation, and

sentencing him to concurrent sentences in the Subject Cases with

the longest term of ten years levied in 1PC151000955. On

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February 15, 2023, Wilbur-Delima filed his Motions to Correct

Illegal Sentence (Motions to Correct), asserting that the court

did not have jurisdiction to revoke or modify his probation

because the State's Motions to Modify did not toll his probation,

and therefore, as of August 21, 2021, the court's supervision

lapsed.

Thereafter, the Circuit Court issued the Orders Denying

Correction of Illegal Sentences. The Circuit Court found that

eight of the State's Motions to Modify enlarged the terms and

conditions of Wilbur-Delima's probation, thereby tolling his

probation for 257 days, and extending his probation period to

January 8, 2022.

Wilbur-Delima filed a notice of appeal on June 23,

2023.

II. POINTS OF ERROR

Wilbur-Delima raises two points of error on appeal

contending that the Circuit Court erred in: (1) granting the

Motions for Revocation, and ignoring and/or overruling prior

orders modifying Wilbur-Delima's probation that did not extend

his concurrent four-year terms, and sentencing him to

indeterminate prison terms; and (2) denying Wilbur-Delima's

Motions to Correct and finding that Wilbur-Delima was still on

probation and under the court's jurisdiction on November 23,

2021.9

9
Although there was a passing reference to a notice issue in
Wilbur-Delima's opening brief, at oral argument, Wilbur-Delima's attorney
clearly stated that they were proceeding only based on their statutory
(continued...)

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III. APPLICABLE STANDARDS OF REVIEW
A sentencing judge generally has broad discretion in
imposing a sentence. The applicable standard of review for
sentencing or resentencing matters is whether the court
committed plain and manifest abuse of discretion in its
decision. Factors which indicate a plain and manifest abuse
of discretion are arbitrary or capricious action by the
judge and a rigid refusal to consider the defendant's
contentions. And, generally, to constitute an abuse it must
appear that the court clearly exceeded the bounds of reason
or disregarded rules or principles of law or practice to the
substantial detriment of a party litigant.

State v. Mundon, 121 Hawai#i 339, 349, 219 P.3d 1126, 1136 (2009)

(quoting State v. Kahapea, 111 Hawai#i 267, 278, 141 P.3d 440,

451 (2006)).

Statutory interpretation is a question of law

reviewable de novo. In reviewing questions of statutory

interpretation, we are guided by the following principles:
First, the fundamental starting point for
statutory-interpretation is the language of the statute
itself. Second, where the statutory language is plain and
unambiguous, our sole duty is to give effect to its plain
and obvious meaning. Third, implicit in the task of
statutory construction is our foremost obligation to
ascertain and give effect to the intention of the
legislature, which is to be obtained primarily from the
language contained in the statute itself. Fourth, when
there is doubt, doubleness of meaning, or indistinctiveness
or uncertainty of an expression used in a statute, an
ambiguity exists.

State v. Milne, 149 Hawai#i 329, 333, 489 P.3d 433, 437 (2021)

(quoting State v. Castillon, 144 Hawai#i 406, 411, 443 P.3d 98,

103 (2019)).
When there is ambiguity in a statute, the meaning of the
ambiguous words may be sought by examining the context, with
which the ambiguous words, phrases, and sentences may be
compared, in order to ascertain their true meaning.
Moreover, the courts may resort to extrinsic aids in
determining legislative intent, such as legislative history,
or the reason and spirit of the law.

9
(...continued)
interpretation arguments and not based on any alleged lack of notice that his
probation had been extended.

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State v. Abihai, 146 Hawai#i 398, 406, 463 P.3d 1055, 1063 (2020)

(citation omitted).

IV. DISCUSSION

A. Timeliness of Appeals

The State challenges this court's jurisdiction over

Wilbur-Delima's appeal from the Resentencing Orders and the April

10, 2023 Order based on the untimeliness of the filing of the

notice of appeal. As noted above, at oral argument, Wilbur-

Delima declined to argue that this court should grant relief

directly from the Resentencing Orders, instead urging us to

"relax the deadline" in the appeal from the April 10, 2023 Order.

Hawai#i appellate courts often reach the merits of a

criminal defendant's appeal, notwithstanding a failure to meet

the deadline for filing a notice of appeal, "where justice so

warrants." State v. Caraballo, 62 Haw. 309, 315, 615 P.2d 91, 96

(1980) (permitting appeal filed after the deadline where

defendant had withdrawn his initial appeal based upon counsel's

erroneous advice); State v. Cardenas, 150 Hawai#i 307, 317, 500

P.3d 492, 502 (App. 2021) (allowing an appeal to proceed, despite

an untimely filing of a notice of appeal, when defense counsel

has inexcusably or ineffectively failed to perfect an appeal).

In addition, even if we were to dismiss or deny relief from

Wilbur-Delima's challenge to the April 10, 2023 Order, an illegal

sentence can be challenged at any time. See Stanley v. State,

148 Hawai#i 489, 501, 479 P.3d 107, 119 (2021). For these

reasons, it is in the interest of justice, as well as judicial

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economy, to address it here, along with Wilbur-Delima's timely

challenge to the May 26, 2023 Orders.

B. Disregard of Prior Modification Orders

In Wilbur-Delima's first point of error, he argues that

the Circuit Court abused its discretion in the Resentencing

Orders by failing to properly consider the prior modification

orders. As Wilbur-Delima no longer seeks relief directly from

the Resentencing Orders, and this argument was not raised in

Wilbur-Delima's challenge to the Orders Denying Correction of

Illegal Sentences, no relief may be granted on this ground.

C. Motions to Modify and the Tolling of Probation

Wilbur-Delima argues that HRS §§ 706-625(1), (4) (2014)

and 706-627(1) (2014), read in pari materia, exclude "motions to

modify" from motions that toll a defendant's probation. 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

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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.

The Circuit Court determined that when reading HRS

§ 706-625, the term "modify" can mean to either "enlarge" or

"reduce" a sentence, as the plain meaning of "modify" encompasses
both, and that even though the nine motions were titled "motions

to modify," they substantively sought to enlarge the conditions

of Wilbur-Delima's probation in light of Wilbur-Delima's

violations of the conditions of probation, and his sentence was

in fact enlarged with the eight orders that he serve various

additional periods of jail time. Thus, the court concluded,

eight of the nine Motions to Modify tolled Wilbur-Delima's

probation.

Wilbur-Delima argues that the Circuit Court erred in

concluding that his probation was tolled pursuant to HRS § 706-
727(1) because the definition of modify does not equate with

enlarging a condition of probation under that provision.

We conclude that this argument is without merit. Under

the plain language of HRS § 707-625, a motion to modify the

conditions of probation can either seek to reduce or enlarge

them. The common understanding of a modification, as well as the

legal dictionary definition, is simply to change something. See

Black's Law Dictionary, 11th ed., 1203 (2019) (defining

"modification" as a "change to something; an alteration or
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amendment," and defining "modify" as "[t]o make somewhat

different; to make small changes to (something)"). If an HRS

§ 707-625(1) "motion to modify" seeks to enlarge a condition of

probation, then under the plain language of HRS § 706-627,

probation is tolled. Wilbur-Delima's argument, in essence, is

that courts should ignore the substance of an HRS § 707-625(1)

motion to modify seeking to enlarge a condition of probation, and

in his case, strictly construe the title "motion to modify" to

exclude the undisputed fact that an enlarged probation condition,

i.e., more jail time, was being sought in each of these nine

motions. Wilbur-Delima offers no support for this construction,

which appears to be contrary to case law admonitions against

raising form over substance. See Coon v. City & Cnty. of

Honolulu, 98 Hawai#i 233, 254, 47 P.3d 348, 369 (2002) (stating

that "elevat[ing] form over substance" is an "approach we have

repeatedly eschewed"); State v. Poohina, 97 Hawai#i 505, 509, 40

P.3d 907, 911 (2002); see also State v. Wong, 47 Haw. 361, 367,

389 P.2d 439, 444 (1964) ("In determining whether the order of

dismissal was 'an order or judgment, sustaining a special plea in

bar' we are guided by substance, not form.").

Wilbur-Delima also points to the legislative history of

HRS §§ 706-625 and 706-627. We conclude, however, that this line

of argument is of no avail.

These statutes were enacted in 1972 and read as

follows:
Sec. 625 Modification of conditions.
During a period of probation or suspension of
sentence, the court, on application of a probation officer
or of the defendant, or on its own motion, may modify the

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requirements imposed on the defendant or add further
requirements authorized by section 624.

Sec. 627 Notice and hearing on revocation of
suspension of sentence or probation, or increasing the
conditions thereof.
The court shall not revoke a probation or suspension
of sentence or increase the requirements imposed thereby on
the defendant except after a hearing upon written notice to
the defendant of the grounds on which such action is
proposed. The defendant shall have the right to hear and
controvert the evidence against him, to offer evidence in
his defense, and to be represented by counsel.

1972 Haw. Sess. Laws Act 9, § 1 at 76.

Wilbur-Delima argues that because Section 625 states

that suspended sentences may be "modified" or "further

requirements" may be added, modifications and

increases/enlargements are distinct, with the former meaning

small changes, not enlarging or adding further requirements.

However, this is essentially the same argument he makes with

respect to the current form of the statutes. As discussed above,

"modified" simply means somewhat changed or altered, and does not

preclude a modification in a manner that enlarges an existing

condition.

In 1977, HRS § 706-627 was amended to read as follows:
Sec. 706-627 Notice and hearing on revocation of
suspension of sentence or probation, or increasing the
conditions thereof; tolling of suspension of sentence or
probation. (1) The court shall not revoke a probation or
suspension of sentence or increase the requirements imposed
thereby on the defendant except after a hearing upon written
notice to the defendant of the grounds on which such action
is proposed. The defendant shall have the right to hear and
controvert the evidence against him, to offer evidence in
his defense, and to be represented by counsel.

(2) Upon the filing of a motion to revoke a probation
or suspension of sentence or a motion to increase the
requirements imposed thereby, the period of probation or
suspension of sentence 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 or
suspension, if any. In the event the court fails to file a

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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 or suspension, the defendant shall
remain subject to all terms and conditions of the probation
or suspension except as otherwise provided by this chapter.

(3) In the event the court, following hearing, refuses
to revoke the probation or suspension or grant the requested
increases in requirements thereof, the defendant shall be
granted the period of tolling of the probation or suspension
for purposes on computation of the remaining probation or
suspension, if any.

1977 Haw. Sess. Laws Act 106, § 1 at 189.

The Senate Standing Committee Report explained that the

purpose of the legislation was to provide for tolling of
probation whenever a motion to revoke probation or increase the

requirements imposed is filed. S. Stand. Comm. Rep. No. 1105, in

1977 Senate Journal, at 1295. The committee found that under the

law at the time, it was possible for a person's probation to run

out pending a revocation hearing, making the person free even

though they may have committed acts justifying revocation of

probation. Id. Wilbur-Delima asserts that this statutory

language shows that tolling is intended to apply to motions to

revoke or increase the requirements of probation, not motions to

modify.
However, we conclude that the Legislature clearly

indicated that the amendments were designed to prevent a person's

probation from lapsing pending a revocation hearing, even though

they may have committed acts justifying revoking probation. Id.

It appears that Wilbur-Delima is the exact type of probationer

the Legislature wanted to remain on probation pending a decision

on resentencing. Wilbur-Delima stipulated to violating the terms

and conditions of his probation numerous times, but a hallmark of

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HOPE probation allowed the court to repeatedly modify his

probation and impose short jail stints in lieu of simply

resentencing him to the open term earlier in his probation. The

legislative history confirms that the intent of the tolling

statute is to prevent a noncompliant probationer from taking

advantage of the time it takes for the courts to decide motions

that seek to enlarge or revoke their probation.

Our plain reading of the purpose of the tolling statute

is reinforced by the 1980 amendments to HRS § 706-627, where the

Legislature amended HRS § 706-627(3) to read:
(3) In the event the court, following hearing,
refuses to revoke the probation or suspension or grant the
requested increases in requirements thereof because the
defendant's failure to comply therewith was excusable, the
defendant [shall] may be granted the period of tolling of
the probation or suspension for purposes [on] of computation
of the remaining probation or suspension, if any.

1980 Haw. Sess. Laws Act 156, § 1 at 235 (additions underlined,

deletions bracketed).

The Standing Committee Reports on Act 156 reiterated

the Legislature's intent from the 1977 amendments, and sought to

further amend the law due to concerns that it "[gave] defendants
an unfair advantage by allowing them, in essence, to be given

'credit' toward their sentence for a period of time when they are

not abiding by the terms of such sentence." H. Stand. Comm. Rep.

No. 434-80, in 1980 House Journal, at 1466, S. Stand. Comm. Rep.

No. 753-80, in 1980 Senate Journal, at 1364.

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In 1985, HRS §§ 706-625 and 706-62710 were again

amended. The 1985 amendments to § 706-625 added subsections (b)-

(e), now (2)-(5), and made minor changes to the first subsection:
§ 706-625 [Modification of conditions.] Revocation
of suspension of sentence or probation, modification of
conditions or imposition of further requirements. (a) During
a period of probation or suspension of sentence, the court,
on application of a probation officer, the prosecuting
attorney, [or of] the defendant, or on its own motion, after
a hearing, may revoke the suspension of sentence or
probation, modify the requirements imposed on the defendant,
or [add] impose further requirements authorized by section
706-624.
(b) The prosecuting attorney, the defendant's
probation officer, and the defendant shall be notified by
the movant in writing of the time, place, and date of any
such hearing, and of the grounds upon which action under
this section is proposed. The prosecuting attorney, the
defendant's probation officer, and the defendant may appear
in the hearing to oppose or support the application, and may
submit evidence for the court's consideration. The
defendant shall have the right to be represented by counsel.
For purposes of this section the court shall not be bound by
the Hawaii Rules of Evidence, except for the rules
pertaining to privileges.

(c) The court shall revoke the suspension of sentence
or probation if the defendant has inexcusably failed to
comply with a substantial requirement imposed as a condition
of the order or has been convicted of a felony. The court
may revoke the suspension of sentence or probation if the
defendant has been convicted of another crime other than a
felony.
(d) 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.

(e) When the court revokes a suspension of sentence
or probation, it may impose on the defendant any sentence
that might have been imposed originally for the crime of
which he was convicted.

1985 Haw. Sess. Laws Act 192, § 1 at 327-28 (additions

underlined, deletions bracketed). Wilbur-Delima argues that

because subsection (a) kept the distinction between motions to

10
The only relevant change to HRS § 706-627 was that the title
changed from "Notice and hearing on revocation of suspension of sentence
or probation, or increasing the conditions thereof; tolling" to "Tolling of
suspension of sentence or probation." 1985 Haw. Sess. Laws Act 192, § 1 at
328.

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revoke, modify, and add further requirements, and subsection (d)

also makes a distinction between motions to modify and motions to

impose further requirements, the legislature intended these

motions to be distinct. Any ambiguity created by the 1985

amendments was resolved by the 1986 amendments.

In 1986, HRS § 706-625 was amended to read:
§ 706-625 Revocation [of suspension of sentence or
probation], modification of probation conditions [or
imposition or further requirements]. (a) [During a period of
probation or suspension of sentence, the] The court, on
application of a probation officer, the prosecuting
attorney, the defendant, or on its own motion, after a
hearing, may revoke [the suspension of sentence or]
probation, [modify the requirements imposed on the
defendant, or impose further requirements authorized by
section 706-624.] 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.

(b) The prosecuting attorney, the defendant's
probation officer, and the defendant shall be notified by
the movant in writing of the time, place, and date of any
such hearing, and of the grounds upon which action under
this section is proposed. The prosecuting attorney, the
defendant’s probation officer, and the defendant may appear
in the hearing to oppose or support the application, and may
submit evidence for the court's consideration. The
defendant shall have the right to be represented by counsel.
For purposes of this section the court shall not be bound by
the Hawaii Rules of Evidence, except for the rules
pertaining to
privileges.

(c) The court shall revoke [the suspension of
sentence or] probation if the defendant has inexcusably
failed to comply with a substantial requirement imposed as a
condition of the order or has been convicted of a felony.
The court may revoke the suspension of sentence or probation
if the defendant has been convicted of another crime other
than a felony.

(d) 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.
(e) When the court revokes [a suspension of sentence
or] probation, it may impose on the defendant any sentence
that might have been imposed originally for the crime of
which he was convicted.

1986 Haw. Sess. Laws Act 314, § 27 at 607 (additions underlined,

deletions bracketed).

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Clarity was improved with the heading of the statute

replacing "imposition of further requirements" with

"modification" to read "Revocation, modification of probation

conditions," indicating that modification can encompass an

imposition of further requirements. Additionally, "modify the

requirements imposed" and "impose further requirements" in

subsection (a) were replaced with "reduce or enlarge conditions

of probation," again more clearly indicating that modifications

encompass reductions and enlargements of probation conditions.

Id. In the amendments to HRS § 706-627, the phrases "increase

the requirements" in subsections (1) and (2) were replaced with

"enlarge the conditions imposed." Id.

The Legislature's use of the word modify in HRS § 706-

625 and not in HRS § 706-627 is clear, logical, and consistent

with the statutory scheme and legislative history. As discussed,

modification can encompass enlargements and reductions. However,

only motions to modify seeking enlargements in probation

conditions are tolling motions, and probationers subject to such

enlargements are the ones that the Legislature wanted to

potentially hold accountable for acts justifying the revocation

of probation. See H. Stand. Comm. Rep. No. 450, in 1977 House

Journal, at 1495 (emphases added); S. Stand. Comm. Rep. No. 1105,

in 1977 Senate Journal, at 1295 (stating that the purpose of the

1977 amendments were to prevent a "person's period of probation

. . . [from running] out pending a revocation hearing, thus

making him a free man, even though he may have committed acts

justifying revocation of probation or suspended sentence.")

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In sum, we conclude that the legislative history

underscores the plain meaning of HRS § 706-625 and HRS § 706-627.

D. Rule of Lenity

Finally, Wilbur-Delima requests, if this court rejects

his argument that the tolling provisions in HRS § 706-627 are

inapplicable to motions to modify, that we apply the Rule of

Lenity in his favor here. Under the Rule of Lenity:
When a statute is ambiguous, and the legislative
history does not provide sufficient guidance, we follow the
rule of lenity. This "means that the court will not
interpret a state criminal statute so as to increase the
penalty that it places on an individual when such an
interpretation can be based on no more than a guess as to
what the legislature intended." Accordingly, "[u]nder the
rule of lenity, the statute must be strictly construed
against the government and in favor of the accused."

State v. Woodfall, 120 Hawai#i 387, 396, 206 P.3d 841, 850 (2009)

(citations omitted).

We follow this rule if we have to guess as to the

meaning of a criminal statute. That is not the case here. The

statute is clear and the legislative history is instructive.

Accordingly, the Rule of Lenity is not applicable here.

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V. CONCLUSION

For these reasons, the Circuit Court's April 10, 2023,

and May 26, 2023 Orders Denying Correction of Illegal Sentences

are affirmed.

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

Robert T. Nakatsuji, /s/ Clyde J. Wadsworth
Deputy Prosecuting Attorney, Associate Judge
City and County of Honolulu,
for Plaintiff-Appellee regarding
underlying Case Nos. 1PC151000955,
1PC151001978 and 1PC161001506.

Michelle M.L. Puu,
Deputy Attorney General,
State of Hawai#i
for Plaintiff-Appellee regarding
Case No. 1PC151001274.

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