State v. Villiarimo.Â

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Electronically Filed
Supreme Court
SCWC-10-0000109
12-FEB-2014
09:25 AM

IN THE SUPREME COURT OF THE STATE OF HAWAI#I

---o0o---

STATE OF HAWAI#I,
Respondent/Plaintiff-Appellee,

vs.

JOSEPH D. VILLIARIMO,
Petitioner/Defendant-Appellant.

SCWC-10-0000109

CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-10-0000109; FC-CR. NO. 08-1-0035(4))

February 12, 2014

ACOBA, McKENNA, AND POLLACK, JJ.; WITH NAKAYAMA, J.,
CONCURRING, WITH WHOM RECKTENWALD, C.J., JOINS

OPINION OF THE COURT BY ACOBA, J.

We hold that the Family Court of the Second Circuit

(the court)1 abused its discretion in denying the request for a

continuance made by Petitioner/Defendant-Appellee Joseph D.

1
The Honorable Shackley F. Raffetto presided.
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Villiarimo (Villiarimo). The court failed to give reasons for

its decision to deny the continuance, making the denial

effectively unreviewable on appeal. Moreover, in probation

modification or probation revocation hearings, courts should

apply a “good cause” standard for determining whether a

continuance should be granted, in recognition of the nature of

probation hearings. Lastly, for purposes of determining whether

a defendant has “inexcusably failed to comply with a substantial

requirement imposed as a condition of the [probation] order . . .

[,]” Hawai#i Revised Statutes (HRS) § 706-725(3) (Supp. 2004)2,

courts should consider (1) whether the probationer’s actions were

intentional, and (2) whether the probationer’s actions, if

intentional, were a deliberate attempt to circumvent the court’s

probation order, considering the goals of sentencing the

defendant to probation.

I.

Villiarimo applied for a writ of certiorari

(Application) from the May 8, 2010 Judgment of the Intermediate

Court of Appeals (ICA), filed pursuant to its March 28, 2013

2
HRS § 706-625(3) provides:

(3) The court shall revoke 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.

(Emphasis added).

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Summary Disposition Order (SDO). This court granted certiorari

review of the ICA’s affirmation of the order revoking

Villiarimo’s probation and re-sentencing him.

A.

On January 30, 2009, Villiarimo entered a no contest

plea to a charge of sexual assault in the third degree, and the

court sentenced him to five years of probation, that included 149

days of incarceration. In May 2009, Villiarimo entered into a

three-month stay at the Aloha House residential dual diagnosis

treatment program following a mental health or drug-related

“episode” that required him to be stabilized.3 At Aloha House,

he was prescribed the medications Wellbutrin and Seroquel. By

October 2009, Villiarimo was living in “regular housing” and at

some point started using crystal methamphetamine. He testified

that “[a]s soon as [he] started using again, [he] didn’t take

[his] medication anymore.”

After Villiarimo tested positive for methamphetamine

use, in violation of his probation, Villiarimo’s probation

officer (the officer), filed a written motion for modification of

the terms and conditions of Villiarimo’s probation on October 30,

3
Aloha House is a private, nonprofit corporation established in
1977 for the purpose of providing outpatient and residential treatment for
persons addicted to alcohol and/or other drugs. See
http://www.aloha-house.org/about.html.

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2009 (First Motion).4 A hearing regarding this First Motion for

modification was held on November 2, 2009. That same day, the

court filed a mittimus committing Villiarimo to jail, “effective

immediately” for a period of eight days. On November 13, 2009,

the court entered an order modifying Villiarimo’s probation for

“inexcusably fail[ing] to refrain from use . . . [of] illegal

drug[s] . . . as directed by the court or probation officer.”

According to Villiarimo’s testimony at a later hearing,

discussed below, during the time prior to the First Motion,

Villiarimo had “detoxed [from meth] on [his] own at [his] house”

after he was found “guilty for relapsing” but still did not take

his medication. During his eight-day stay in jail, he was not

given his prescribed medication. The jail offered Haldol to him,

but Villiarimo did not take it because he experienced adverse

effects from it in the past.5 Villiarimo was apparently

discharged from jail on November 10, 2009.

B.

On December 7, 2009, the officer filed a second written

motion, requesting a modification of the terms and conditions of

Villiarimo’s probation and for revocation of Villiarimo’s

probation, pursuant to HRS § 706-625 (Second Motion). She

4
There is no transcript of the First Motion proceedings in the
record.

5
The foregoing testimony was given at the evidentiary hearing
concerning the Second Motion.

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alleged that Villiarimo: (1) failed to report to a probation

officer on November 30, 2009, in violation of Condition 2 of the

terms and conditions of probation; (2) failed to maintain mental

health treatment services on November 19, 2009 by not attending a

preliminary interview for a treatment program, in violation of

Special Condition J; and (3) failed to participate in the sexual

offender treatment program, because he was suspended from the

program on November 30, 2009 for excessive absences and failure

to accept responsibility, in violation of Special Condition P.

On December 16, 2009, Villiarimo’s counsel moved for a

mental examination to determine whether Villiarimo was fit to

proceed under HRS § 704-404.6 On December 22, 2009 the court

suspended proceedings for an examination of Villiarimo’s fitness.

After all three of Villiarimo’s examiners opined that he was not

fit to proceed, the court found Villiarimo unfit to proceed,

6
HRS § 704-404 provides in relevant part:

(1) Whenever the defendant has filed a notice of intention
to rely on the defense of physical or mental disease,
disorder, or defect excluding responsibility, or there is
reason to doubt the defendant’s fitness to proceed, or
reason to believe that the physical or mental disease,
disorder, or defect of the defendant will or has become an
issue in the case, the court may immediately suspend all
further proceedings in the prosecution.
. . .
(2) Upon suspension of further proceedings in the
prosecution, the court shall appoint three qualified
examiners in felony cases and one qualified examiner in
nonfelony cases to examine and report upon the physical and
mental condition of the defendant.

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suspended the proceedings under HRS § 704-406(1),7 and committed

him to the custody of the Director of Health on March 11, 2010.

That same day, Villiarimo was admitted to Hawai#i State

Hospital (HSH). He was started on antipsychotic medication as

well as medication for Attention Deficit Disorder (ADD) in mid-

March. On April 6, 2010, he was transferred from Unit H, the

admission unit, to Unit S for further psychosocial care. Also on

that day, Dr. Joan H. Fukumoto (Dr. Fukumoto) became Villiarimo’s

attending psychiatrist. After the unit transfer, Villiarimo did

not exhibit any overt mood or psychotic symptoms, or any

aggressive behavior.

On April 9, 2010, Villiarimo was evaluated for trial

competence with the use of the Revised Competency Assessment

Instrument (R-CAI). The results suggested that Villiarimo

possessed the capacity to proceed. On April 16, 2010, Dr.

Fukumoto wrote a letter to Ms. Janice Futa, prosecuting attorney,

requesting a three member panel examination of Villiarimo’s

fitness to proceed, reporting the R-CAI results and her own

7
HRS § 704-406(1) provides in relevant part:

(1) If the court determines that the defendant lacks fitness
to proceed, the proceeding against the defendant shall be
suspended, except as provided in section 704-407, and the
court shall commit the defendant to the custody of the
director of health to be placed in an appropriate
institution for detention, care, and treatment . . . . If
the court is satisfied that the defendant may be released on
conditions without danger to the defendant or to the person
or property of others, the court shall order the defendant’s
release, which shall continue at the discretion of the
court . . . .

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findings on Villiarimo’s fitness. After three examiners opined

Villiarimo was fit to proceed, the court resumed proceedings on

August 16, 2010.

C.

On September 30, 2010, the court held an evidentiary

hearing on the officer’s Second Motion. At the hearing,

Respondent/Plaintiff-Appellee State of Hawai#i (the State) called

the officer as its witness. On cross-examination, Villiarimo’s

counsel asked the officer if she had an opinion on whether

Villiarimo was “decompensating” in October 2009.8 However, the

court only allowed the officer to testify to what she saw after

inquiring whether the officer knew the “medical” meaning of

decompensation:
MS. HUDSON [(defense counsel)]: And did you see a
change in his behavior more like decompensation
starting in lake October?

THE COURT: Are you s[ay]ing that in a technical sense?

MS. HUDSON: I’ll say it in the –- yes, in a technical sense.

THE COURT: Decompensation is a medical term. Do you know
what that means from a medical point of view?

[The officer]: Well, not –- if you define it for me.

THE COURT: No, she’s asking whether you have an opinion
about whether he had any decompensation.

[The officer]: Well, he wasn’t --

THE COURT: Listen, you are not a trained medical
professional. Do you know the definition of that term

8
“Decompensation” is a psychiatric term meaning the “failure of
defense mechanisms resulting in progressive personality disintegration.”
Dorland’s Illustrated Medical Dictionary 475 (32d ed. 2012).

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as used by doctors?

[The officer]: Not in that sense.

THE COURT: Well, I don’t think you’re in a position to offer
an opinion about it. You can describe what you saw.

(Emphases added.)

Following the officer’s testimony, Villiarimo’s counsel

requested a continuance for the purpose of calling a physician

from HSH:
MS. HUDSON: Yes, your honor. And actually at this point, I
think it would be helpful to have one of the Hawai#i State
Hospital doctors, and I had not subpoenaed at this point.
Perhaps I could do that via video. But I think it’s
important – or going to be important to present the evidence
(inaudible) on fitness. I think its particularly relevant
about whether he could comply with the terms and conditions.

THE COURT: Well, [we’re] here for the hearing today.

MS. HUDSON: I understand, your Honor.

THE COURT: So if you want to take a break -- I’m just going
to take a short break. You can talk with [] your client,
but we’re going to finish this hearing today.

After the court’s effective denial of the request for a

continuance, Villiarimo testified. He reported that he had not

been able to meet his probation requirements because his

“organization wasn’t there anymore.” He explained that he had

decompensated during his eight-day stay in jail because during

that stay, he was not given Seroquel, his prescribed medication.9

Villiarimo added that when he left jail he did not take his

medication because “at that point . . . [he] was already

9
Villiarimo stated that he knew the meaning of “decompensation” due
to his stay in HSH.

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decompensating[;]” he “wasn’t in [his] right mind” and

“thought . . . that [he] didn’t need the medication when [he]

actually did.” He related that while decompensating, he “felt

completely scattered,” his “thoughts were racing,” he “was

hearing voices,” he was “anxious all the time,” and he “wasn’t

getting any sleep.”

After Villiarimo concluded his testimony, Villiarimo’s

counsel again requested a continuance having Dr. Fukumoto as the

witness to be called:
THE COURT: Does the defense have further evidence or
witnesses?

MS. HUDSON: Well, again, your Honor, I would like to
ask for a continuance because I think if – I’m
actually not sure – let me ask the Court this: There
was a report from the State Hospital from his
treatment team that suggested a plan for him when he
was released from State hospital to come back to Maui.
I’m wondering if the Court got that or --

THE COURT: I don’t have it in front of me.

MS. HUDSON: It was addressed to the Court. It’s dated
July --

MS. MENDES [(Prosecuting attorney)]: Your Honor, to
the issue of violating, this is not relevant.

THE COURT: I think you’re right.

MS. HUDSON: I’m just asking if the Court --

THE COURT: Do you have further evidence or witnesses?

MS. HUDSON: Yes, I would like to call Dr. Fukumoto
from the State hospital, and obviously I haven’t
(inaudible).

THE COURT: Well, then your motion is denied.
Anything else?

MS. HUDSON: No, your Honor.

(Emphases added.)

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The court again denied the request for a continuance.

The State asked that Villiarimo be sentenced to five years of

incarceration, arguing that he had already been given “a huge

chance the first time by modifying his probation” but Villiarimo

“decided on his own he wanted to go take drugs” and that “he

chooses [sic] not to go [to his appointments] and take [his]

meds” even though “[h]e’s had many people in places that he could

have gone to for help.”

Villiarimo’s counsel responded that while Villiarimo

did not meet the terms and condition of his probation, the

failure was not inexcusable. She emphasized that at the time of

the violations, Villiarimo was decompensating and did not

understand his mental health problems.

However, the court concluded that “[Villiarimo]

inexcusably failed to perform General Condition 2, report to his

probation officer; Special Condition J, failure to follow through

with the co-occurring disorder treatment . . . [a]nd Special

Condition P, failure to follow through with the Hawai#i Sex

Offender Treatment Program . . . .” Villiarimo’s probation was

revoked and he was sentenced to five years in prison. The court

stated that “in this case the defendant was given really very

good opportunities to rehabilitate himself, if that was possible,

at least twice. . . . And yet he apparently chose to stop taking

his medication and go out and use illegal drugs, and then he lost

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it after that . . . . But at some point he has to take

responsibility for his behavior.”

II.

A.

1.

On October 28, 2010, Villiarimo filed a notice of

appeal to the ICA. In his Opening Brief, he argued that the

court abused its discretion in denying his request for a

continuance to obtain the testimony of Dr. Fukumoto and in

revoking his probation where the evidence presented did not

indicate that he willfully and inexcusable failed to comply with

the conditions of his probation. Villiarimo made the arguments

that follow.

First, Villiarimo asserted that he satisfied the test

adopted by the ICA in State v. Lee, 9 Haw. App. 600, 856 P.2d

1279 (1993), to determine whether a continuance should be

granted. The test stated:
In moving for a continuance based on the unavailability of a
witness, the movant must generally show that:

due diligence has been exercised to obtain the attendance of
the witness, that substantial favorable evidence would be
tendered by the witness, that the witness is available and
willing to testify, and that the denial of the continuance
would materially prejudice the defendant.

Lee, 9 Haw. App. at 604, 856 P.2d at 1282 (citing

United States v. Walker, 621 F.2d 163, 168 (5th Cir. 1980));

United States v. Harris, 436 F.2d 775, 776 (9th Cir. 1970)).

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Due diligence in obtaining Dr. Fukumoto was exercised,

according to Villiarimo, because defense counsel requested a

continuance twice during the hearing; the first time immediately

after the officer testified, which was when the issue of

Villiarimo’s mental competence was raised. Villiarimo averred

that Dr. Fukumoto’s testimony would have offered substantial

favorable evidence because she could have explained Villiarimo’s

diagnosis, treatment plan, discharge plan, and prognosis, and

offered her medical opinion on the effect of methamphetamine on

Villiarimo and whether he was able to conform his conduct while

he was on probation. Villiarimo noted that these were all

matters pertinent to whether he inexcusably failed to comply with

the conditions of his probation.

Villiarimo argued that Dr. Fukumoto was available and

willing to testify because in a letter she stated that she was

available if there were “further questions.” Additionally,

Villiarimo asserted that the denial of the continuance materially

prejudiced him, denying him of his constitutional right to

present a defense and right to compulsory process in violation of

the Sixth Amendment of the United States Constitution and article

I, section 14 of the Hawai#i State Constitution.

Second, Villiarimo alleged that the evidence did not

support the finding that the violations were wilful and

inexcusable. According to Villiarimo, he “never stabilized after

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his relapse because the jail failed to give him any medication”

but “had the jail provided [him] with medication, he would have

stabilized and been able to comply with the conditions of [his]

probation.” Thus, Villiarimo maintained that the court erred in

using his relapse as the basis to conclude that he inexcusably

and wilfully failed to comply with the conditions of his

probation.

2.

In its Answering Brief, the State argued, first, that

the court did not abuse its discretion in denying the motion for

a continuance because Villiarimo failed to meet all of the

factors established in Lee. In the State’s view, the defense had

“ample” time to issue a subpeona or arrange for video testimony

because four months before the hearing, Villiarimo’s counsel

received a copy of Dr. Fukumoto’s letter, which included

Villiarimo’s diagnosis.

Second, the State maintained that the court correctly

concluded that Villiarimo wilfully and inexcusably failed to

perform conditions of his probation. According to the State,

Villiarimo did not appear impaired at the hearing in regard to

the First Motion for modification on November 2, 2009, and

Villiarimo did not lack substantial capacity to conform his

conduct to the requirements of his probation. Additionally, the

State asserted, Villiarimo voluntarily chose to take drugs, and

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voluntary intoxication is a “gratuitous” defense, not a

constitutionally protected defense to criminal conduct.

B.

The ICA affirmed the court’s decision in an SDO on

March 28, 2013. State v. Villiarimo, No. CAAP-10-0000109, 2013

WL 1284875, at *1 (App. Mar. 28, 2013) (SDO). Citing the Lee

test, the ICA concluded that there was no abuse of discretion by

the court in denying the continuance. Id. at *1-2. The ICA did

not elaborate on its reasoning. Id. The ICA further concluded

that the court did not abuse its discretion in deciding that

Villiarimo inexcusably failed to comply with the conditions of

his probation. Id. at *2. According to the ICA, in light of the

principles of voluntary intoxication that “‘a mental disability

excusing criminal responsibility must be the product of

circumstances beyond the control of the defendant,’” id. (quoting

State v. Freitas, 62 Haw. 17, 20, 608 P.2d 408, 410 (1980)), and

that voluntary intoxication is not a defense to criminal conduct,

id. (citing State v. Souza, 72 Haw. 246, 249, 813 P.2d 1384, 1386

(1991)), the ICA stated that “Villiarimo’s voluntary

intoxication . . . and the psychosis[,] . . . which was a direct

consequence of the voluntary intoxication[,] . . . cannot be a

defense to his willfulness, as an indicator of his culpability,

in violating the conditions of probation[.]” Id. Additionally,

the ICA noted that “where the relapse ultimately was the admitted

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cause of [Villiarimo’s] psychotic disorder under which [he] took

the actions that violated his conditions of probation, that

relapse was properly considered by the [court] in the [hearing].”

Id. at *1.

III.

Villiarimo raises three points of error in his

Application to this court:
1. The ICA gravely erred in holding that the court
did not abuse its discretion in denying Villiarimo’s
request for a continuance to obtain the testimony of
Dr. Fukumoto, Villiarimo’s treating psychiatrist from
Hawai#i State Hospital, because: (1) during the
hearing, the State introduced evidence that Villiarimo
was experiencing psychiatric issues while on
probation; (2) when Villiarimo was taken into custody
for the [Second M]otion, the proceedings were
suspended because Villiarimo had been found unfit to
proceed, and (3) Dr. Fukumoto would have been
available to testify via video at a later date.

2. The ICA gravely erred in holding that the court did
not clearly err in “consider[ing]” Villiarmimo’s prior
use of illicit drugs to revoke his probation
“notwithstanding that the same taking of illicit drugs
was also the basis for a previous revocation
proceeding” in violation of the double jeopardy and
due process clauses of the United States and Hawai#i
State Constitutions.[ 10]

3. There was insufficient evidence to support that
Villiarimo willfully and inexcusably failed to comply
with probation conditions.

(Emphases added.)

IV.

In his Application, Villiarimo cites State v. Mara, 98

Hawai#i 1, 41 P.3d 157 (2002), in support of his position that

10
In light of the disposition set forth herein, this question need
not be reached.

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the court erred in denying his request for a continuance. In

Mara, this court held that the circuit court did not abuse its

discretion in denying the defendant’s request for a continuance

because according to the circuit court the defendant failed to

show that “the witness sought was available and willing to

testify or that the denial of a continuance would materially

prejudice [him].” Mara, 98 Hawai#i at 9, 14-15, 41 P.3d at 165,

170-71. Villiarimo alleges that, as in Mara, his request for a

continuance to obtain a witness arose in the midst of the

hearing; unlike in Mara, however, Villiarimo’s witness was

available and willing to testify and the denial of his request

for a continuance did in fact result in material prejudice

against him.

Villiarimo explains that Dr. Fukumoto was available and

willing to testify because the case records and files that the

court took judicial notice of included a letter by Dr. Fukumoto

in which she stated that she was available for “further

questions.” From this statement and the fact that as an employee

of HSH, Dr. Fukumoto routinely testifies in court proceedings,

Villiarimo contends that the doctor expressed her availability

and willingness to testify.

Villiarimo also relates that denying the request for a

continuance materially prejudiced him because it deprived him of

his fundamental rights to present a defense, to compulsory

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process, to effective assistance of counsel, and to due process

of law.11 He asserts that the testimony of Dr. Fukumoto was

necessary to present his defense because the court prohibited the

officer from testifying on Villiarimo’s decompensation, and

Villiarimo’s testimony alone could not substantiate medically

when he became mentally incompetent or what caused his

incompetence.

He maintains that Dr. Fukumoto would have been able to

testify on Villiarimo’s treatment plan, his prognosis, and the

effect of methamphetamine on him and the duration of those

effects. Her testimony would have provided “substantial and

favorable evidence” directly related to “whether [Villiarimo] was

legally responsible for his conduct and whether involuntary

intoxication was an issue.”

Using the Lee test, the State asserts that there was no

abuse of discretion because Villiarimo failed to show material

prejudice. Specifically, the State explained that since

voluntary intoxication is not a defense, “[Villiarimo] did not

suffer manifest injustice or material prejudice because his

defense [was] based on alleged mental illness [ ] caused by his

voluntary taking of . . . methamphetamine.”

11
In light of the proposed disposition, these constitutional issues
need not be reached.

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V.

The grant or denial of a continuance is in the

discretion of the trial court, and the court’s ruling “will not

be disturbed on appeal absent showing of abuse of that

discretion.” State v. Pulse, 83 Hawai#i 229, 239, 925 P.2d 797,

807 (1996) (internal quotation marks and citations omitted). “An

abuse of discretion occurs if the trial court has clearly

exceeded the bounds of reason or disregarded rules or principles

of law or practice to the substantial detriment of a

party-litigant.” Keahole Def. Coalition, Inc. v. Bd. of Land and

Natural Res., 110 Hawai#i 419, 436, 134 P.3d 585, 602 (2006)

(internal quotation marks omitted).

VI.

In reviewing whether a trial court has abused its

discretion in denying a request for continuance, we have recently

emphasized the importance for trial courts to consider the

circumstances of the case and to explain their reasoning. In

State v. Cramer, 129 Hawai#i 296, 299 P.3d 756 (2013), this court

concluded that the circuit court abused its discretion in denying

the petitioner’s motion for substitution of counsel and a

continuance of petitioner’s sentencing hearing. 129 Hawai#i at

304, 299 P.3d at 764. There, the circuit court cited only

“untimeliness” as the reason for denying the request and did not

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offer any additional explanation for its decision. Id. at 302,

299 P.3d at 762. The record also disclosed that neither the

circuit court nor the witnesses at the initial hearing would be

inconvenienced by the request. Id. Additionally, the State did

not take a position on the motion, and there was no apparent

prejudice to the State. Id. Lastly, there had been only one

prior continuance in the proceeding. Id. Under these

circumstances, the majority concluded that the circuit court

abused its discretion, because in denying the motion, the court

should have balanced the petitioner’s rights against

countervailing governmental interests. Id.

Similarly, in the instant case, as set forth supra, the

court’s responses to each of Villiarimo’s requests for a

continuance were seemingly perfunctory. The court simply

indicated that it wanted to complete the hearing in one day, and

reiterated its denial after Villiarimo’s testimony was complete.

Where the court does not provide any justification for its

decision, an appellate court cannot properly review whether the

court “clearly exceeded the bounds of reason or disregarded rules

or principles of law or practice . . . .” Keahole Def.

Coalition, 110 Hawai#i at 436, 134 P.3d at 602. Thus, on

appellate review, it is impossible to determine whether the court

considered the various interests involved.

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VII.

A.

The appropriate standard for determining whether to

grant a continuance in a probation revocation or modification

proceeding should be the “good cause” standard. Pursuant to this

test, a defendant must demonstrate that he or she has “good

cause” for requesting the continuance. Wright & Miller, 3B Fed.

Prac. & Proc. Crim. § 832 (4th ed.). Such a standard takes into

account both “the request or consent of the prosecution or

defense . . . [and] the public interest in [the] prompt

disposition of the case.” Id.

Moreover, the Rules of the Circuit Courts of the State

of Hawai#i (RCCSH) requires a showing of good cause in motions

for a continuance.12 Court rules are analogous to statutes, and

therefore “have the force and effect of the law.” See, e.g.,

State v. Arceo, 84 Haw. 1, 29, 928 P.2d 843, 871 (1996). This

court has not had the occasion to review RCCSH Rule 7(e), but has

reviewed the standard of good cause in regard to the denial of

continuances in other respects.

12
RCCSH Rule 7(e) states, in relevant part:

A motion for continuance of any assigned trial date, whether
or not stipulated to by respective counsel, shall be granted
only upon a showing of good cause, which shall include a
showing that the client-party has consented to the
continuance.

(Emphasis added).

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Hawai#i appellate courts have considered the scope of

the term “good cause” in a variety of contexts. See, e.g., Doe

v. Doe, 98 Hawai#i 144, 154, 44 P.3d 1085, 1094 (2002) (applying

a “good cause” standard to a motion for a new family court

trial). In construing the “good cause” standard, this court has

stated “[a]s a general rule, ‘good cause’ means a substantial

reason; one that affords a legal excuse.” See State v. Senteno,

69 Haw. 363, 368, 742 P.2d 369, 373 (1987) (citing State v.

Estencion, 63 Haw. 264, 267, 625 P.2d 1040, 1042 (1981)). In

State v. Diaz, for example, this court considered good cause in

the context of a bail forfeiture statute. 128 Hawai#i 215, 225-

27, 286 P.3d 824, 834-36 (2012). The court forfeited the

petitioner’s bail after he failed to appear at his arraignment.

Id. at 219, 286 P.3d at 828. Diaz noted that under HRS § 804-51,

“‘“good cause” why execution should not be issued upon the

judgment of forfeiture “may be satisfied by the defendant . . .

by . . . providing a satisfactory reason for his or her failure

to appear when required . . . .’” Id. (quoting HRS § 804-51).

Because at the time of the arraignment, the petitioner was in

custody in California for an unrelated criminal matter, id. at

226, 286 P.3d at 835, this court believed there was “no

indication that the petitioner broke his recognizance

intentionally, with the design of evading justice or without a

sufficient cause of reasonable excuse.” Id. at 226-27, 286 P.3d

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at 835-36. Considering the purposes of bail and “the

circumstances of [the] case[,]” this court concluded that “good

cause was established for setting aside the forfeiture judgment.”

Id.

A showing of good cause is also required to obtain a

continuance in motor vehicle administrative hearings, as

established by HRS § 291E-38(j),13 the successor to HRS § 286-

259(j) (repealed 2000).14 In Farmer v. Administrative Director

of Courts, 94 Hawai#i 232, 11 P.3d 457 (2000), this court applied

the HRS § 291E-38(j) “good cause” standard with respect to denial

of a continuance of a driver’s license revocation hearing before

the Administrative Driver’s License Revocation Office. 94

Hawai#i at 237, 11 P.3d at 462. In that context, this court held

that “‘good cause’ is defined as ‘a substantial reason amounting

in law to a legal excuse for failing to perform an act required

by law.’” Id. (quoting Robison v. Administrative Director of the

13
HRS § 291E-38 states in relevant part:

For good cause shown, the director may grant a continuance
either of the commencement of the hearing or of a hearing
that has already commenced.

(Emphasis added).

14
HRS § 286-259(j) stated in relevant part:

For good cause shown, the director may grant a continuance
either of the commencement of the hearing or of a hearing
that has already commenced.

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Court, 93 Hawai#i 337, 342, 3 P.3d 505, 508 (App. 2000) (other

citations omitted)).

B.

The “good cause” standard for granting continuances is

far more apropos in the probation modification or revocation

hearing context than the Lee test applied by the ICA. In support

of the Lee test, the ICA cited to a number of propositions

indicating that continuances that delay trial are disfavored,

including a quote from a federal case stating that
“An attorney cannot reasonably expect a court to alter its
calendar, and disrupt a scheduled trial to which witnesses
have been subpoenaed and to which the adverse party is
ready, simply by the filing by counsel of a last minute
motion for continuance. All weight of authority is contrary
to such wishful speculations.”

Id. at 603, 856 P.2d at 1282 (emphasis added) (quoting United

States v. Chapel, 480 F.Supp. 591, 594 (D. Puerto Rico 1979)).15

In Lee, the defendant had moved for a continuance on the day of

trial, and “witnesses, summoned to appear at trial, had been

waiting all morning to testify . . . .” Id. at 604, 856 P.2d at

1282. Thus, it was in the interest of avoiding undue delay and

inconvenience at trial that the ICA applied the Lee test. This

court has affirmed these concerns, stating that “[i]n deciding

15
Walker and Harris, the other federal court cases cited by Lee, did
not involve probation proceedings. The test is now also used by the Sixth and
Seventh circuits. See, e.g., United States ex rel. Searcy v. Greer, 768 F.2d
906, 913 (7th cir. 1985); United States v. Phillips, 630 F. 2d 1138, 1144 (6th
Cir. 1980). A similar test has been adopted by the Fourth and Tenth Circuits.
See, e.g., United States v. Dowlin, 408 D.3d 647, 663 (10th Cir. 2005); United
States v. Clinger, 681 F.2d 221, 223 (4th Cir. 1982).

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whether to order a continuance following a change in

court-appointed counsel for an indigent defendant, the court may

consider, as a factor, the need to adhere to an orderly court

calendar.” State v. Torres, 54 Haw. 502, 506, 510 P.2d 494, 497

(1973).

A probation modification or revocation hearing is a

substantially different type of proceeding, where the concerns

prompting the ICA to adopt the Lee test are not present. HRS §

706-625(1) provides that the court may “reduce or enlarge the

conditions of probation,” after a hearing, upon “application of a

probation officer, the prosecuting attorney, the defendant, or

its own motion[.]” HRS § 706-625(2) sets out the procedures for

such a hearing, wherein:
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 Hawai#i rules of
evidence, except for the rules pertaining to privileges.

(Emphases added.)

The procedures for modification or revocation of the

terms and conditions of probation is intended to afford

flexibility to the court. The Commentary to HRS § 706-625

provides that “[t]his section . . . allows the court to relax or

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increase the conditions of probation. Such power is essential if

the disposition is to remain flexible.” (Emphasis added.) See

also, State v. Pali, 129 Hawai#i 363, 370, 300 P.3d 1022, 1030

(2013) (“HRS § 706-625 concerns violations of probation and vests

discretion in the court to decide what constitutes a violation

and what remedy should apply.”); State v. Sumera, 97 Hawai#i 430,

439, 97 P.3d 557, 566 (2002) (“[P]robation allows the court the

flexibility to modify probationary conditions or to revoke

probation altogether and sentence a defendant to the maximum

indeterminate prison term if the defendant does not comply with

the terms of probation.”).

With this discretion comes a certain degree of

procedural flexibility, evidenced by, among other things, the

fact that the court is not bound by the Hawai#i Rules of Evidence

(HRE) in a modification or revocation proceeding.16 HRS § 706-

625(2). Thus, such a proceeding is distinguishable from the

rigors of a trial, where the court may need to consider the

exigencies created by the presence of a jury. It is apparent

that in articulating its test for continuances, Lee did not

contemplate probation hearings, where no jury will ever be

waiting to start or to complete the trial.

16
The court would still be bound by the HRE rules pertaining to
privileges. HRS § 706-625(2).

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A “good cause” standard would be consistent with the

concept of flexibility underlying the court’s discretion to

modify or revoke probation. That standard maintains procedural

fairness during such hearings, by requiring that the defendant

have a “substantial reason” or a “legal excuse” for requesting a

continuance. This would prevent undue delay due to the whims of

the defendant, while still preserving the perogatives of a court

in managing its calendar.

As this case illustrates, the stakes are often high

during probation revocation or modification hearings. “When the

court revokes probation, it may impose on the defendant any

sentence that might have been imposed originally for the crime of

which the defendant was convicted.” See HRS § 706-625(5). Thus,

a revocation proceeding is akin to the initial sentencing

hearing. See State v. Durham, 125 Hawai#i 114, 125, 254 P.3d 425

(2011) (“‘[T]he question of whether the defendant should be

sentenced to imprisonment or to probation is no less significant

than the question of guilt.’”) (quoting Commentary on HRS § 706-

604(2) (Supp. 2006)). Consequently, the same procedural

protections should be afforded as in any sentencing, including

ensuring that the defendant is able to convey sufficient

information to the court so that a fair and just decision may be

made. HRS § 706-625(2) (“The prosecuting attorney, the

defendant’s probation officer, and the defendant may appear in

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the hearing to oppose or support the application, and may submit

evidence for the court’s consideration.” (emphasis added)); see

also Durham, 125 Hawai#i at 123, 254 P.3d at 434 (holding in the

context of a probation revocation hearing that “‘[i]n any system

which vests discretion in the sentencing authority, it is

necessary that the authority have sufficient and accurate

information so that it may rationally exercise its discretion.’”

(quoting State v. Lau, 73 Haw. 259, 262, 831 P.2d 523, 525

(1992))).

A defendant then should be allowed a fair opportunity

to supplement or controvert the State’s evidence at the

revocation hearing. Cf. HRS 706-604(2) (“The court shall furnish

to the defendant or the defendant’s counsel and to the

prosecuting attorney a copy of the report of any pre-sentence

diagnosis or psychological, psychiatric, or other medical

examination and afford fair opportunity, if the defendant or the

prosecuting attorney so requests, to controvert or supplement

them.” (emphases added)). Thus, it is critical to recognize

situations where a substantial reason exists for the defendant’s

continuance request and to consider the request accordingly.

VIII.

Applying the good cause standard to the instant case,

it is evident that Villiarimo provided a “substantial reason” or

“legal excuse”, see Senteno, 69 Haw. at 368, 742 P.2d at 373, for

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the proceedings to be temporarily suspended to obtain Dr.

Fukumoto’s testimony. The issue of Villiarimo’s mental health

was raised in the testimony of the officer; however, as she was

not a “trained medical professional” the court prohibited her

from testifying as to whether Villiarimo was decompensating

during the time of the probation violations at issue and thus did

not intentionally violate the terms of his probation.

Villiarimo’s testimony was the only testimony on decompensation

at the proceeding, but he could not medically substantiate the

cause of the decompensation and its likely effect on his

behavior.

Dr. Fukumoto’s testimony could have informed the court

of whether Villiarimo’s condition affected his conduct during the

time of the violations, and if not, the reason why it did not.

This testimony would have been directly relevant to Villiarimo’s

defense that there was insufficient evidence to demonstrate that

he wilfully and inexcusably failed to comply with the terms and

conditions of his probation. See State v. Quelnan, 70 Haw. 194,

767 P.2d 243 (1989) (holding that a defendant has the right to

“present a potentially meritorious defense” at a probation

hearing). Therefore, Villiarimo had “good cause” for requesting

a continuance to obtain Dr. Fukumoto’s testimony. Because this

testimony was at the heart of Villiarimo’s defense to the

probation violations, the court’s error in failing to grant a

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continuance for Villiarimo to obtain Dr. Fukumoto’s testimony was

not harmless. Consequently, the court abused its discretion in

denying Villiarimo’s request for a continuance.

IX.

For purposes of remand, the court’s ultimate decision

to revoke Villiarimo’s probation is briefly discussed. HRS §

706-625(3) specifies that “[t]he court shall revoke probation if

the defendant has inexcusably failed to comply with a substantial

requirement imposed as a condition of the [order setting forth

the terms and conditions of probation.]”

A.

As noted, Villiarimo had alleged at the probation

hearing that his failure to satisfy the probation terms and

conditions occurred as a result of his mental health issues, and

were therefore excusable. The court did not accept this defense,

and the ICA upheld the court’s decision on the basis that

“Villiarimo’s voluntary intoxication . . . and the psychosis

. . . cannot be a defense to his wilfulness, as an indicator of

culpability, in violating [] the conditions of his probation.”

Villiarimo, 2013 WL 1284875, at *2.

“Inexcusable” has not been defined in the statute, but

the plain meaning of “inexcusable” is “being without excuse or

justification.” Merriam Webster’s Collegiate Dictionary 597

(10th ed. 1993) (emphasis added). This court has considered the

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significance of the term “inexcusably” in HRS § 706-625 on

several occasions. For example, in State v. Nakamura, 59 Haw.

378, 581 P.2d 759 (1978), this court characterized “inexcusably”

as a “wilful and deliberate attempt . . . to circumvent the

order of the court.” 59 Haw. at 381, 581 P.2d at 762. The

defendant was sentenced to five years probation, with the

condition that he remain at a drug rehabilitation program until

he was clinically discharged. 59 Haw. at 378, 581 P.2d at 761.

Upon release from the correctional facility, the defendant went

home to visit his mother prior to entering the rehabilitation

program. Id. at 379, 581 P.2d at 761. The drug rehabilitation

program rejected him on this basis, and this court determined

that the program’s rejection was arbitrary. Id. at 380, 581 P.2d

at 762. In considering whether the defendant had “inexcusably

failed to comply” with the condition of probation, Nakamura held

that “[t]he defendant’s enrollment at [the program], following

this brief visit [to his mother], was made impossible by [the

program’s] arbitrary rejection.” Id. As such, Nakamura

concluded that “[t]here was no wilful and deliberate attempt on

his part to circumvent the order of the court.” Id. at 381, 581

P.2d at 762.

In State v. Wong, 73 Haw. 81, 829 P.2d 1325 (1992), the

defendant argued that a willful or intentional failure to comply

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with a term of probation was required before a defendant’s

probation could be revoked. 73 Haw. at 82, 829 P.2d at 1326. In

that case, the defendant was convicted of sexual abuse and

sentenced to fifteen consecutive weekends of incarceration and

five years probation, and as a condition of his probation he was

to submit to treatment in a residential or outpatient mental

health program until clinically discharged. Id. at 82-83, 829

P.2d at 1326. While on probation, the defendant was arrested for

the offense of Abuse of Household Member and was convicted of

Driving Under the Influence. Id.

The State filed a motion to revoke probation, and at

the hearing the defendant told the court that he had been

accepted into a residential drug and alcohol treatment program at

the Hawai#i Addiction Center (HAC). Id. The court decided not

to revoke his probation, but instead resentenced him to a new

term of probation with the additional condition that he maintain

residential treatment in HAC until clinically discharged. Id.

HAC then terminated the defendant from the program when it found

out about his original sexual abuse conviction, and the State

filed another motion for revocation, alleging that the defendant

had failed to maintain treatment at HAC, although apparently not

through any willful or intentional act of his own. Id.

Wong then construed Nakamura, and held that in addition

to the defendant’s wilfulness, Nakamura had also considered the

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rehabilitative and protective objectives of probation when making

its decision as to whether the defendant’s violation was

“inexcusable.” Id. at 85, 829 P.2d at 1327. In so concluding,

Wong read HRS § 706-625 in conjunction with HRS § 706-606 (Supp.

1991), which provides the sentencing objectives that a court

should consider when deciding whether to impose probation. Id.

at 86, 829 P.2d at 1328 (citing HRS § 1-16 (1985)) (providing

that “[l]aws in pari materia, or upon the same subject matter,

shall be construed with reference to each other.”). As a result,

Wong held that while a defendant’s wilfulness is an indicator of

culpability, the court should also consider the legislature’s

protective and rehabilitative purposes, as set forth in HRS §

706-606, in considering whether a defendant’s violation of

probation was “inexcusabl[e].” Id. at 86-87, 829 P.2d at 1328.

Under this standard, Wong held that the court could

consider the defendant’s dangerousness in considering whether his

probation violation was inexcusable. Id. at 87, 829 P.2d at

1328. Underlying Wong’s holding was the notion that a

construction of “inexcusable” to mean only “wilful” would “mak[e]

it impossible for the court to revoke probation where there

exists no appropriate rehabilitative programs in the community or

where the defendant poses an unreasonable threat of harm to the

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community, so long as the defendant has not intentionally

violated any terms of probation.” Id.

In Quelnan, this court based its decision to revoke the

defendant’s probation on two grounds, one of which was that the

defendant had misrepresented his employment status and source of

income to his probation officer. 70 Haw. at 198, 767 P.2d at

246. The officer testified at the probation hearing that the

defendant had reported that he was employed as a driver at Sida

Taxi, but had not worked there for a number of months. Id. The

officer further testified that the defendant’s taxi driver’s

license had expired, he had been denied a reissuance, and that he

continued as a taxi driver by picking up some fares

independently. Id. at 201, 767 P.2d at 247.

Quelnan held that “there [was] serious doubt as to

whether [the d]efendant inexcusably failed to comply with the

change in employment status condition of probation.” Id.

(citation omitted). This court observed that “[a]rguably, but

for [the d]efendant’s failure to gain reissuance of his taxi

driver’s license, [the d]efendant would still be gainfully

employed with Sida as a taxi driver. Based on the record, the

sole reason [the d]efendant was denied reissuance was due to his

then pending gambling indictment, which was later dismissed.”

Id.

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Quelnan went on to note that “[the d]efendant’s

employment status during his probationary period did not evidence

conduct wilfully and deliberately subversive of exemplary

probationary behavior[,]” and that “[i]n essence, [the

d]efendant’s overall whereabouts was readily ascertainable, and

known to the probation department.” Id. at 201, 767 P.2d at 247-

48. Thus, the defendant’s failure to report his change in

employment status was found to be excusable. Id.

B.

Based on this court’s prior case law, it appears that

the most appropriate definition of “inexcusably” in HRS § 706-

625(3) is a “willful and deliberate attempt . . . to circumvent

the order of the court.” Nakamura, 59 Haw. at 381, 581 P.2d at

762. This standard requires both an intentional act on the part

of the defendant (“willful”17), and a deliberate attempt by him

or her to circumvent the probation order, taking into

consideration the significance of the defendant’s action with

respect to the court’s order and goals of probation (“to

circumvent the order of the court”). See id.; see also State v.

Huggett, 55 Haw. 632, 639, 525 P.2d 1119, 1124 (1974) (remanding

17
Black’s Law Dictionary defines “willful” as “[v]oluntary and
intentional, but not necessarily malicious.” Black’s Law Dictionary 1737 (9th
ed. 2009) (emphasis added).

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for a rehearing to enable the court to determine whether

“considering the totality of the circumstances, [the defendant’s]

post-sentencing conduct was wilfully and deliberately subversive

of exemplary probationary behavior.”). The cases described above

appear to generally consider these two factors when determining

whether a defendant’s probation should be modified or revoked.

Thus, in this case, on remand, the court should consider, with

respect to each violation, whether (1) Villiarimo’s actions were

intentional, and (2) whether his actions, if intentional, were a

deliberate attempt to circumvent the court’s probation order,

considering the goals of sentencing the defendant to probation.

X.

In light of the foregoing, for purposes of continuance

requests at probation modification and revocation hearings, the

“good cause” standard applies. Inasmuch as Villiarimo satisfied

the “good cause” standard in his request for a continuance, the

court abused its discretion in denying his request. Further, in

determining whether, pursuant to HRS § 706-625(3), Villiarimo

“inexcusably failed to comply with a substantial requirement

imposed” by the probation order, the court must apply the test

articulated herein. Therefore the ICA’s May 8, 2013 judgment on

appeal affirming the court’s September 30, 2010 order of

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revocation of probation and resentencing is vacated, and the case

remanded for further proceedings.

Taryn R. Tomasa, /s/ Simeon R. Acoba, Jr.
for petitioner
/s/ Sabrina S. McKenna
Artemio C. Baxa,
for respondent /s/ Richard W. Pollack

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