ICA holds trial court did not abuse it's discretion in denying Act 44 probation

On June 16, 2011, the ICA issued its opinion in State v. Enos, No. 30653 (Summary Disposition Order- unpublished, panel: Nakamura, C.J, Furise and Ginoza, JJ). This case was an appeal from the Circuit Court of the Second Circuit, Hon. Shackley F. Raffetto presiding. On the briefs were Jennifer D.K. Ng, Esq. for Defendant-Appellant and Artemio C. Baxa, Esq. for the State-Appellee.

Defendant pled guilty to two drug charges, and, pursuant to the plea agreement, was “free to ask for sentencing under Act 44 (HRS 706-622.5) and the State was free to oppose it.” HRS § 706-622.5 gives the court discretion to sentence certain first-time drug offenders to probation provided the person meets specified criteria. Defendant’s criminal history contained numerous convictions, however, and the Court declined to give a probationary sentence. Defendant was sentenced to ten years and five years in the respective counts, to be served concurrently.

On appeal, the ICA rejected Defendant’s argument that the Court erred in finding him to be violent, noting that Defendant had been convicted of such crimes such as terroristic threatening and assault. The ICA held that without a finding that Defendant was “non-violent,” Defendant would not qualify for probation under Act 44, and the trial court did not abuse its discretion in refusing to grant said probation. Affirmed.