NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
04-JUN-2021
07:53 AM
Dkt. 50 MO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
STATE OF HAWAI#I, Plaintiff-Appellee,
v.
LISA MEADOR, aka LISA MEADOR-ABADELLA,
Defendant-Appellant
APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT
(CASE NO. 2PC161000098)
MEMORANDUM OPINION
(By: Leonard, Presiding Judge, Hiraoka and Nakasone, JJ.)
Defendant-Appellant Lisa Meador, also known as Lisa
Meador-Abadella, appeals from the "Judgment; Conviction and
Probation Sentence" entered by the Circuit Court of the Second
Circuit on May 23, 2019.1 For the reasons explained below, we
vacate Meador's sentence and remand for resentencing.
On February 3, 2016, Meador was charged by felony
information with insurance fraud in violation of Hawaii Revised
Statutes (HRS) §§ 431:2-403(a)(1)(B) and 431:2-403(b)(2)
(Count 1), and attempted theft in the second degree in violation
of HRS §§ 705-500, 708-830(2), and 708-831(1)(b) (Count 2). She
pleaded not guilty.
On February 28, 2019, pursuant to a plea agreement,
Meador moved to change her plea to no contest (COP) and requested
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The Honorable Richard T. Bissen, Jr. presided.
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
a deferred acceptance of her no contest plea (DANCP).2 A copy of
the plea agreement was attached to the COP. The plea agreement
stated, among other things:
The Defendant may move for a deferral of her plea and the
the [sic] State will agree to stand silent regarding the
deferral provided that Defendant accepts responsibility for
her conduct throughout the proceeding.
Sentencing was set for May 23, 2019.
The circuit court's Adult Client Services Branch
prepared a pre-sentence diagnosis and report (PSI). The PSI
reported: "The defendant declined to comment on juvenile arrest
history at the direction of her counsel." At the sentencing
hearing the circuit court and defense counsel engaged in a
lengthy dialog about whether Meador was eligible for a DANCP in
light of HRS § 853-4.3
THE COURT: One of the -- is one of the requirements
of the deferral, um, or her eligibility, is whether or not
she's had any prior record?
[DEFENSE COUNSEL]: Um --
THE COURT: Is that one of the conditions?
[DEFENSE COUNSEL]: I can't say that, your Honor.
2
HRS § 853-1 (2014) provides, in relevant part:
Deferred acceptance of guilty plea or nolo contendere plea;
discharge and dismissal, expungement of records. (a) Upon
proper motion as provided by this chapter:
(1) When a defendant voluntarily pleads guilty or
nolo contendere, prior to commencement of trial,
to a felony, misdemeanor, or petty misdemeanor;
(2) It appears to the court that the defendant is
not likely again to engage in a criminal course
of conduct; and
(3) The ends of justice and the welfare of society
do not require that the defendant shall
presently suffer the penalty imposed by law,
the court, without accepting the plea of nolo contendere or
entering a judgment of guilt and with the consent of the
defendant and after considering the recommendations, if any,
of the prosecutor, may defer further proceedings.
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HRS § 853-4(a) (2014 & Supp. 2018) sets forth 15 circumstances
under which a defendant may not be granted a deferred acceptance of a guilty
or no contest plea.
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Um --
THE COURT: Well, it's in the statute; right?
[DEFENSE COUNSEL]: Yes.
THE COURT: So her prior record does affect whether or
not she's eligible? That people with certain convictions
are not eligible, in other words.
[DEFENSE COUNSEL]: I would say so. Yes, your Honor.
THE COURT: Because, um, one of the things that were
[sic] disturbing in this [PSI] report is that she refused to
comment on any prior record at your direction at the
probation officer's, ah, position. Which -- which is okay,
unless you're asking for a deferral.
[DEFENSE COUNSEL]: Well, your Honor, the government
has (inaudible) resources, you know, National Data Base that
they utilize in every case, your Honor. And there are
certain situations --
THE COURT: I'm familiar with that.
[DEFENSE COUNSEL]: -- such as in juvenile court, um,
some of those adjudications are basically not accessible.
So to the point that I believe, Judge, the government
has its resources --
THE COURT: No, that's all true, except if you ask for
a deferral. When you ask for a deferral, you have to show
that you're eligible.
[DEFENSE COUNSEL]: I think she's eligible. The
government has not disproven that her --
THE COURT: Well, you just said they don't have her --
they don't have any of the juvenile records, if she has any.
[DEFENSE COUNSEL]: To me it's not a defendant's,
um --
THE COURT: No, it's the movant. You're the movant.
I'm not saying if there's a defendant or not, but a movant
has a -- has a -- has a responsibility to prove eligibility.
Since you're just reading the statute to me, I was just
pointing that out.
[DEFENSE COUNSEL]: She is eligible -- she is eligible
because there's no evidence that she's not eligible, your
Honor. So, in other words --
THE COURT: Okay.
[DEFENSE COUNSEL]: -- so, in other words, the -- the
record stands, your Honor. She is eligible.
And if the Court were to use, you know, her election,
ah, not to arguably confess a crime, right, as far as the
innocence, the courts have held that you can't use that to
sentence someone, your Honor.
THE COURT: I'm not -- no, listen. I'm specifically
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talking about the deferral statute. I'm not talking about
her sentence. I'm talking about her deferral request as the
movant.
The first -- the first threshold is eligibility. Now,
when you say it can't be used against her, ah, you can't
hide behind it either.
[DEFENSE COUNSEL]: The government, if it has
information --
THE COURT: Sure.
[DEFENSE COUNSEL]: -- available at its resource,
which we know the government has National, they have Hawaii
Data Base --
THE COURT: Correct.
[DEFENSE COUNSEL]: -- because I've engaged and you've
engaged in that --
THE COURT: So you're telling me she doesn't have a
record then; right?
[DEFENSE COUNSEL]: I'm not commenting on that, Judge.
I'm not commenting --
THE COURT: Why not? Why not?
[DEFENSE COUNSEL]: Because we do not have the burden,
your Honor --
THE COURT: Oh, yes, you do.
[DEFENSE COUNSEL]: Well, I -- I didn't receive --
THE COURT: You are moving for a deferred acceptance
of no -- the State's not moving for it. You're moving for
it.
[DEFENSE COUNSEL]: Where in the statute does it say,
your Honor, that we have to show eligibility. [sic] To me I
read it as --
THE COURT: Where does it say it? Where does it --
where does it say it? It says it right in the chapter.
[DEFENSE COUNSEL]: That she -- if she -- there are
certain exceptions of ineligibility, your Honor.
THE COURT: This chapter shall not apply when, and
then it gives about, oh, I don't know, four -- 15 -- 15
things that you [sic] make you ineligible.
[DEFENSE COUNSEL]: Right, your Honor.
THE COURT: So you don't think you have to show that?
[DEFENSE COUNSEL]: I -- I believe the government has
the burden to prove ineligibility.
THE COURT: Wow, okay.
[DEFENSE COUNSEL]: And I believe so, your Honor.
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THE COURT: Okay.
[DEFENSE COUNSEL]: Otherwise -- otherwise it's like
the courts have not allowed a sentencing court to use
someone's, let's say, refusal to admit guilt against them at
sentencing for enhancement purposes or not.
So I believe, Judge, the govern -- the government,
with its resources, has every --
THE COURT: Okay, where does that -- where do you get
that from? What -- what --
[DEFENSE COUNSEL]: From case law, your Honor.
THE COURT: Okay.
[DEFENSE COUNSEL]: People when they -- when they
insist of their innocence and a sentencing court says, well,
you haven't plead [sic] or haven't admitted guilt or
responsibility, that that can not be used against them
(inaudible) enhanced sentencing.
So I say, Judge, by analogy, the government if -- if
it shows ineligibility, I can see as a matter of law that
she's not eligible.
In this case there's no information, your Honor. And
I ask the Court to not impose the govern -- the defendant,
okay, to comment on any prior arguably drug history or
criminal history in a matter of sentencing, your Honor. And
I -- I feel that the Court, because she's exercising that
right --
THE COURT: What right was that? The right of what?
[DEFENSE COUNSEL]: The right of her not to comment on
any of her criminal drug history or criminal history.
That's for the government, your Honor. And the government
itself.
So I see the record is, your Honor, and I see a frown
on your face that you --
THE COURT: Well, I'm curious by you're saying that
it's the government, um, burden, I suppose. But okay. We
might disagree, but that's fine.
[DEFENSE COUNSEL]: Okay. Well, I hope that this
isn't the aspect if you do deny it, that that is it. Let's
say you're looking at enhancing sentencing or looking at a
prior conviction, what is the government's role in proving
that?
THE COURT: Okay. Let me come -- if you're going to
compare, I mean compare apples to apples.
If there's enhanced sentencing, the government has the
duty of proving that the person qualifies for an enhanced
sentence. Let's say a mandatory minimum term.
They must prove that the person committed a felony
that's an -- that's an included offense, included felony,
that it occurred within the certain time period, and this is
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the same defendant. So you're absolutely right. That is a
fair analogy.
So you must do the same thing as the movant for a
deferral. It's your burden. The State doesn't have to
disprove it.
[DEFENSE COUNSEL]: With all due respect, your Honor,
I disagree. The government with its resources, if it finds,
and I -- again, I see you frowning at me, your Honor. I'm
just standing by my position that I hope that you don't use
the government's -- or rather the defendant's silence to,
ah, preclude her from the opportunity of a deferral when I
believe the –-
THE COURT: The defendant can remain silent at all
stages. But if you're the movant, you have the burden of
proof. That's all I'm explaining. And I think that's just
basic -- basic black letter law. A movant has the burden.
You're the movant. If you're not moving for it, it's not
even -- we're not even talking about it. The State's not
moving for it.
[DEFENSE COUNSEL]: I believe -- I believe the record,
as it stands, she's eligible.
THE COURT: The record is incomplete, Counsel, at
best, or being hidden at worst. So that's the record.
[DEFENSE COUNSEL]: Well, no, your Honor --
THE COURT: It's right in here. The defendant has
knowing -- no history of probation (inaudible)
incarceration. She declined to comment on prior corrections
history at the direction of her defense counsel. That's
what it says [PSI].
[DEFENSE COUNSEL]: So what information are you saying
that she's --
THE COURT: I don't know the information. You're not
disclosing it.
[DEFENSE COUNSEL]: That's the whole point, your
Honor.
THE COURT: What is the whole point? You know
something that we don't know and you don't want to share it.
That's fine. You don't have to. But don't come in here
asking for something when you know something that you don't
want to share. Come on now, let's be fair.
[DEFENSE COUNSEL]: I believe, your Honor, you are
housing [sic] an inference to be used negatively against the
defendant --
THE COURT: Cause an inference?
[DEFENSE COUNSEL]: A negative inference. A negative
inference against her and I believe (inaudible).
THE COURT: You can finish your argument.
[DEFENSE COUNSEL]: Thank you.
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Judge, I hope, given this discussion, that's not something
that you would use against the defendant because as the record
stands now, she is eligible.
Now, she --
THE COURT: I don't know that. I don't know that
she's eligible, Counsel. That's all I'm telling you. But
go ahead.
[DEFENSE COUNSEL]: All right. So she's pleaded, the
three conditions that I hope the Court can find under [HRS
§ 853-1]. She has disposed of her case prior to trial
commencing.
Two. We believe that the ends of justice should be
served by granting her the opportunity to prove to you that
she is worthy of a deferral, because whatever conditions of
deferral probation you impose, could be a lot of conditions,
that if she complies with it, at the end of her four years,
Judge, that she is worthy to keep her record clean.
And lastly, your Honor, given her situation, your
Honor, given her situation as this defendant you can see
that she is struggling with, um, her pain management as a
result of accidents that resulted in a spinal fusion, that
you could help her, okay.
And these conditions (inaudible), but more
importantly, Judge, that you can find that she is likely,
with your assistance with these conditions of deferral, that
she will not likely commit further acts of criminal
(inaudible).
If I may, your Honor, with the kind of policy that the
legislature has given in discretion to your Court, and given
the state of the record, your Honor, she's eligible and
she's met those three conditions. We ask you to grant the
deferral. Thank you.
THE COURT: Any sentencing argument? Any more
sentencing argument? That was just you incorporated that
into your motion?
[DEFENSE COUNSEL]: Yes, your Honor.
THE COURT: All right.
(Emphasis added.)
The circuit court then asked the State for its
position. The State responded:
Um, your Honor, we -- we'd ask the Court to follow the plea
agreement. Um, regarding her eligibility --
. . . .
Ah, we'd defer to the Court whether the -- um, the --
regarding the eligibility of the defendant for the deferral,
as well as, um, the other factors regarding the possibility
of recidivism as well. So we would defer to the Court, ah,
ah, as stated in the, ah, plea agreement.
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(Emphasis added).
The circuit court denied Meador's motion for DANCP:
All right. The Court is going to impose, ah, the following
sentence.
As to the request for a, ah, deferred acceptance of a
no contest plea, that's denied. The Court can not make the
findings, ah, that are required. While I can agree that the
defendant has voluntarily pled prior to trial, the Court can
not make the finding that the defendant is unlikely to
reoffend, ah, nor can the Court make the finding that the
defendant -- the ends of justice and the welfare of society
do not require that she presently suffer the penalty
imposed. And therefore, the Court denies that motion.
(Emphasis added.) This appeal followed.
Meador asserts a single point of error: "The government
breached the parties' plea agreement by failing 'to stand silent
regarding the deferral' and responding to the court's invitation
to comment on Meador's motion for DANCP." "A dispute over the
meaning of a plea agreement involves questions of fact, and an
appellate court's examination of factual determinations rendered
below is governed by the 'clearly erroneous' standard." State v.
Adams, 76 Hawai#i 408, 411, 879 P.2d 513, 516 (1994) (citation
omitted). The issue of whether the State breached the terms of a
plea agreement is reviewed de novo under the right/wrong standard
of review. State v. Miller, 122 Hawai#i 92, 101, 223 P.3d 157,
166 (2010).
Meador's plea agreement required that the State "stand
silent regarding the deferral[.]" When Meador objected that the
State had breached the plea agreement, the circuit court stated:
I think the State did -- did stay silent on it. They said
they they'd defer to the Court --
[DEFENSE COUNSEL]: Um --
THE COURT: -- they take no position.
[DEFENSE COUNSEL]: -- they seem to be more than that,
your Honor.
THE COURT: They say more what?
[DEFENSE COUNSEL]: More than that.
THE COURT: You think they are opposing it?
[DEFENSE COUNSEL]: No.
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THE COURT: Okay. All right.
[DEFENSE COUNSEL]: They didn't seem to be strictly
compliance [sic] to remaining regarding -- stand silent
regarding the deferral provided the defendant.
I just want to be sure that to me the -- the clear
language of the agreement should be strictly construed, your
Honor.
. . . .
THE COURT: The State stood up and said, we defer to
the Court as to the granting of the deferral.
[DEFENSE COUNSEL]: Ah, more -- he said more than
that, your Honor. Which seemed to lead into your
questioning as to eligibility, which I --
THE COURT: Yeah, he says he's leaving it up to me. I
mean I think that's what he said.
(Emphasis added.)
The plea agreement required that the State "stand
silent regarding the deferral[.]" At the sentencing hearing,
when the circuit court asked the State for its position on
sentencing, the deputy attorney general referred to the issue of
Meador's eligibility for a DANCP. The deputy attorney general
said the State would "defer to the Court . . . regarding the
eligibility of the defendant for the deferral[.]" The circuit
court equated the State's deference to the court with silence.
But the plea agreement did not require the State to defer to the
circuit court on, take no position on, or not oppose, Meador's
DANCP; the plea agreement required that the State stand silent.
The State did not stand silent; the State deferred to the court's
determination of Meador's eligibility for a DANCP after the
circuit court clearly expressed its view that Meador had not
sustained her burden to show she was eligible for a DANCP. The
circuit court clearly erred when it found the State did stand
silent.
The circuit court's explanation for denying Meador's
DANCP appropriately recited the criteria stated in HRS § 853-
1(a)(1)-(3). The circuit court did not mention Meador's eligibi-
lity for a DANCP, or lack thereof, in announcing its decision.
The apparent lack of prejudice to the defendant, however, is
immaterial. In Miller the supreme court concluded that the State
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breached its agreement to take no position on the defendant's
motion for DANCP. 122 Hawai#i at 105, 223 P.3d at 170. The
supreme court noted that "based on the breach alone, the case
must be remanded in the interests of justice, regardless of
prejudice, because, in the case of a plea agreement, the
prosecutor's promise must be fulfilled." Id. at 100–01, 223 P.3d
at 165–66 (citing Santobello v. New York, 404 U.S. 257, 262
(1971)) (cleaned up) (emphasis added). The circuit court was
wrong to conclude that the State did not breach the terms of the
plea agreement.
Where the State breaches a plea agreement:
either resentencing or withdrawal of a plea may be the
appropriate remedy depending on the defendant's particular
circumstances. In considering which remedy is appropriate,
the trial court should give considerable weight to the
choice of the defendant. A court ought to accord a
defendant's preference considerable, if not controlling,
weight inasmuch as the fundamental rights flouted by a
prosecutor's breach of a plea bargain are those of the
defendant, not of the State.
Adams, 76 Hawai#i at 414, 879 P.2d at 519 (cleaned up). In this
case, Meador requests that her case be remanded for resentencing
before another circuit court judge. That is an appropriate
disposition under the circumstances of this case.
For the foregoing reasons, we vacate Meador's sentence
and remand for resentencing before a different circuit court
judge.
DATED: Honolulu, Hawai#i, June 4, 2021.
On the briefs:
/s/ Katherine G. Leonard
Ryan K. Shinsato, Presiding Judge
Special Deputy Attorney General,
State of Hawai#i, /s/ Keith K. Hiraoka
for Plaintiff-Appellee. Associate Judge
Hayden Aluli, /s/ Karen T. Nakasone
for Defendant-Appellant. Associate Judge
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