NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER
NO. 30016
IN THE INTERMEDIATE COURT OF APPEALS
Electronically Filed
OF THE STATE OF HAWAI'IIntermediate Court of Appeals
30016
STATE OF HAWAI'I, 27-SEP-2010
aintiff-Appellee,
v.
10:23 AM
JEFFREY R. BLAGUS, Defendant-Appellant
APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT
(CRIMINAL NO. 06 1 0424{2))
SUMMARY DISPOSITION ORDER
(By: Foley, Presiding Judge, Leonard and Reifurth, JJ.)
Defendant-Appellant Jef R. Blagus (Blagus) appeals
from Order of Resentencing/Revocation of Probation issued by
the Ci t Court of the Second t {circuit courtlY on
July 23, 2009, resentencing Blagus to five years in prison with
credit time served for violating s probation.
On appeal, Blagus contends that (1) the circuit court
abused its discretion in revoking s probation because he used
marijuana, despite evidence of medi need, and (2) it was
plainly erroneous for a judge other than the trial judge to
presi over his probation revocation hearing. l i
Upon careful review of and the briefs
submit by the parties and having due consideration to
the arguments advanced and the issues raised by the parties, as
well as relevant statutory and case law, we resolve Blagus's
points of error as follows:
I. THE CIRCUIT COURT DID NOT ABUSE ITS DISCRETION IN REVOKING
BLAGUS'S PROBATION
In Hawai'i, a court II 11 probation if the
defendant inexcusably failed to comply with a substanti
requirement imposed as a condition the [probation] order or
has convicted of a felony." HAW. REV. STAT. § 706-625 (Supp.
The Honorable Shackley F. Raffetto ided over Blagus's July 23,
2009 ion revocation hearing and
al The Honorable Richard T. Bissen, Jr. presided over Blagus's
January 17, 2007 no contest plea and the related March 9, 2007 judgment and
original sentencing.
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER
2009) See State v. Lazar, 82 Hawai'i 441, 443, 922 P.2d 1054,
1056 (App. 1996) (affirming probation revocat when defendant
left drug litation program in order to see his ex-wife
after divorce papers) i State v. Nakamura, 59 Haw. 378,
581 P.2d 759 (1978) (reversing probation revocation based upon
defendant's f lure to report to third-party substance abuse
treatment center for a few hours after being relea from
prison) .
II [P]robation has historically been as 'a
matter of or privilege and not a matter of right. 111 State
v. Vincent, No. 27357, 2009 WL 120308, at *2 (Hawai'i App. Jan.
20, 2009) (cit State v. Bernades, 71 Haw. 485, 489, 795 P.2d
842,846 (1990)) IIWhether probation should be , revoked,
or modified lies solely within the discretion of sentencing
court. The, only question before this court on ew is whether
or not there been an abuse of that judicial discretion. 11
State v. Huggett, 55 Haw. 632, 635, 525 P.2d 1119, 1122 (1974)
11 [W] h.ere the reflects justifiable cause t revocation
or the modification probation terms, the trial court's
determination 11 be sustained. II Id. at 636, 525 P.2d at 1122
(probation modification of ten months' jail confinement vacated
when probat moved to Hilo without informing his probation
officer in violation his probation terms) .
Blagus was prohibited IIfrom the use of alcohol or any
narcotic drug or cont 1 substance without a prescription ll by
the terms of previous probation orders issued in 2007 and 2008. 1 /
Marijuana is a Schedule I, Controlled Substance under Hawai'i
law. HAW. REV. STAT. § 329 14 (d) (20) (Supp. 2009). As such,
Blagus's October 2008 and January 2009 use of marijuana amounted
11 Blagus was initially sentenced on March 9, 2007 to five years
probation after pleading no contest to the charge of terroristic threatening
in the first degree. (2007 Probation Order) According to the court, Blagus's
record showed sixteen convictions. Included among the terms of his 2007
Probation Order was a requirement that he refrain from using alcohol or any
narcotic drug or controlled substance without a prescription. On October 29,
2008, Blagus tested positive for and admitted to using marijuana. On October
31, 2008, Judge Raffetto presided over a hearing on the State's request to
modify or revoke Blagus's probation. On November 12, 2008, Judge Raffetto
found that Blagus had failed to comply with the terms of his
probation and modified his sentence to include fourteen days of incarceration.
(2008 Probation Modification Order)
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NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER
to violations of the 2007 Probation Order and 2008 Probation
Modification Order, respectively.
While Blagus concedes that he violated the 2007
Probation Order and the 2008 Probation Modification Order, he
contends that the evidence establishes that he "qualified for
medical marijuana" under chapter 329, Hawaii Revised Statutes,
and that, as such, his "actions do not rise to the level of
inexcusable or substantial, the statutory requirement to revoke
probation." We disagree.
A court may revoke a defendant's probation based on the
defendant's violation of a probationary term prohibiting drug or
alcohol use. See State v. Perry, 93 Hawai'i 189, 192-194, 998
P.2d 70, 73-75 (App. 2000) (probation revocation was proper when
defendant had, among other things, used marijuana in violation of
the terms of his probation); Vincent, 2009 WL 120308 at *2 (the
medical-use-of-marijuana law "does not prohibit a court from
imposing conditions prohibiting marijuana use on a person
sentenced for a drug offense"). Blagus neither established an
entitlement to the medical use of marijuana, HAw. REV. STAT.
§ 329-122(a) (Supp. 2009), nor did he petition the court to amend
the terms of his probation.
In sum, Blagus failed to comply with a substantial
requirement imposed as a condition of his probation when he
tested positive for the use of marijuana. His failure to comply
with the requirement that he refrain from the use of any
controlled substance without a prescription was inexcusable under
the circumstances. As a result, the circuit court did not abuse
its discretion in revoking Blagus's probation.
II. IT WAS NOT PLAINLY ERRONEOUS FOR A JUDGE OTHER THAN THE
TRIAL JUDGE TO RESENTENCE BLAGUS
It was not plainly erroneous for Judge Raffetto to
preside over Blagus's 2009 probation revocation hearing.
Although, in the Hawai'i circuit courts, "the sentencing judge is
generally also the trial judge," State v. Valera, 74 Haw. 424,
432 n.5, 848 P.2d 376, 380 n.5 (1993), variation from this
general practice under the circumstances does not "seriously
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affect the rness, integrity, or public reputation of judicial
proceedings, to serve the ends of justice, and to prevent the
denial of fundamental rights. II State v. Vanstory, 91 Hawai'i 33,
42, 979 P.2d 1059, 1068 (1999) (internal quotation marks omitted)
(quoting State v. Sawyer, 88 Hawai'i 325, 330, 966 P.2d 637, 642
(1998) .
In addition, a probation revocation hearing is
fundamentally different from an initi sentencing hearing. Both
Valera and Rule 25(b), Hawai'i Rules of Penal Procedure,if
illustrate the practice of the t judge conducting
sentencing ies to the initial sentencing. An initial
sentence is , in large part, on ormation provided and
determined during trial. See Valera, 74 Haw. at 436, 848 P.2d at
381 ("A sentencing judge is still red to impose a 'fair,
proper, and just sentence,' based upon crime of which t
defendant was convicted . [ba upon] the evidence presented
at trial." (citation omitted)) i HAW. REV. STAT. § 706-606 (1) (2)
(1993).
Probation revocation, on t other hand, is largely
based on the subsequent actions the probationer, with the
merits of the underlying sentence assumed. See State v. Vil a,
70 Haw. 58, 61 62, 759 P.2d 1376, 1378 79 (1988) (generally,
probation violation requiring revocation of probation "indicates
that the probat r has not yet reGe the full rehabilitative
benefit that ion is designed to -induce"); Huggett, 55 Haw.
at 635, 525 P.2d at 1122 (defendant's" t-sentencing conduct is
always a relevant tor in revocation or modification
proceedings"); HAW. REV. STAT. § 706-625 (3) .
if The rules of penal procedure provide:
reason of absence from the State, death, sickness or
other ity, including retirement or disqualification, the
judge before whom the defendant has been tried is unable to
perform the duties to be performed by the court after a verdict or
finding of guilt, any other judge regul sitting in or assigned
to the court may perform those dutiesj but if such other judge is
satisfied tht he cannot perform those duties because he did not
ide at the trial or for any other reason, he may in his
scretion a new trial.
Haw. R . Pe n . P. 25 (b) (1977) .
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NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER
In this case, was no IItrial judge ll as Blagus pled
no contest to the original charge and subsequently admitted to
the probation violations. There is no evidence that the pre
sentencing reports, including the bail study and the presentence
diagnosis report, which are a part of the record on appeal, were
unavailable to Judge Raffetto. In addition, Judge Raffetto
conducted an evidentiary hearing on the order to show cause
before revoking Blagus's probation. Thus, it was not plainly
erroneous for Judge Raffetto to preside over the 2009 probation
revocation/modification proceeding.
III. CONCLUSION
For the foregoing reasons, the circuit court's July 23,
2009 Order of Resentencing/Revocation of Probation is affirmed.
DATED: Honolulu, Hawai'i, September 27, 2010.
On the briefs:
Matthew S. Kohm
Defendant Appellant.
U . R -
PreSl d lng Ju dge
Kristin L. Coccaro,
A udge
Deputy Prosecuting Attorney,
County of Maui,
Plaintiff-Appellee.
. (l.tJJWnu-m.~~
Associate Judge
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