STAND. COM. REP. NO. 1376

Honolulu, Hawaii

RE:    H.B. No. 1059

       H.D. 2

       S.D. 2

Honorable Donna Mercado Kim

President of the Senate

Twenty-Seventh State Legislature

Regular Session of 2013

State of Hawaii

Madam:

     Your Committee on Judiciary and Labor, to which was referred H.B. No. 1059, H.D. 2, S.D. 1, entitled:

"A BILL FOR AN ACT RELATING TO COURT ADVISEMENT CONCERNING ALIEN STATUS,"

begs leave to report as follows:

     The purpose and intent of this measure is to protect the rights of aliens in criminal proceedings in state courts by informing the alien defendant of the possible consequences to entering a guilty plea and its impact on the alien's admission to the United States.

     Your Committee received testimony in support of this measure from the Department of the Attorney General; Office of the Public Defender; Department of the Prosecuting Attorney, City and County of Honolulu; and Department of the Prosecuting Attorney, County of Maui.  Testimony in opposition to this measure was submitted by the Judiciary.

     Your Committee finds that the existing language of section 802E-2, Hawaii Revised Statutes, relating to court advisement concerning alien status, was enacted in 1988 and has not been amended since then.  Your Committee further finds that a United Supreme Court case (Padilla v. Kentucky, 559 U.S. 356 (2010)), and a Ninth Circuit Court of Appeals case (Nunes-Reyes v. Holder, 646 F.3d. 684 (2011)) requires that section 802E-2, Hawaii Revised Statutes, be updated to conform to current federal court holdings.  The court advisement under section 802E-2, Hawaii Revised Statutes, does not adequately advise a defendant of the defendant's Sixth Amendment right to competent and specific advice on immigration consequences of a criminal conviction.  Furthermore, the existing language is not consistent with Rule 11(c)(5) of the Hawaii Rules of Penal Procedure.  This measure updates the current federal law and remedies those inconsistencies.

     Your Committee notes the testimony submitted by the Office of the Public Defender that suggests that the advisement be read twice: at the defendant's arraignment and plea hearing prior to the entry of a guilty or no contest plea and prior to the commencement of trial.  The Office testified that providing a warning at the arraignment and plea hearing will provide the defendant sufficient time to consult with an attorney regarding the potential impacts a conviction or deferral may have on the defendant's immigration status before entering a plea at trial.

     Your Committee further notes the concerns raised in written testimony submitted by the Judiciary.  At the end of the hearing on this measure, your Committee requested that the Judiciary and the Office of the Public Defender work together to develop language to address the Judiciary's concerns and establish requirements to advise a defendant twice.

     Accordingly, your Committee has amended this measure by adopting the language developed by the Office of the Public Defender and Judiciary that:

     (1)  Amends the new section added to chapter 802E, Hawaii Revised Statutes, to require the court to administer a specific advisement to a defendant at the commencement of the court session for arraignment and plea hearing;

     (2)  Reinstates the language under section 802E-2, Hawaii Revised Statutes, and amends it further by amending the advisement the court is required to administer to the defendant prior to the commencement of trial, entry of a plea of guilty or nolo contendere, or an admission of guilt or sufficient facts;

     (3)  Makes conforming amendments to section 802E-3, Hawaii Revised Statutes, to reflect the additional advisement required at the commencement of arraignment and plea hearing; and

     (4)  Makes technical, nonsubstantive amendments for the purposes of clarity and consistency.

     As affirmed by the record of votes of the members of your Committee on Judiciary and Labor that is attached to this report, your Committee is in accord with the intent and purpose of H.B. No. 1059, H.D. 2, S.D. 1, as amended herein, and recommends that it pass Third Reading in the form attached hereto as H.B. No. 1059, H.D. 2, S.D. 2.

Respectfully submitted on behalf of the members of the Committee on Judiciary and Labor,

____________________________

CLAYTON HEE, Chair