A motion for modification or revocation of the terms and conditions of probation is a hearing where the state is asking the court to withdraw its offer of probation to a defendant who is not in compliance. Often, a defendant
A motion for modification or revocation of the terms and conditions of probation is a hearing where the state is asking the court to withdraw its offer of probation to a defendant who is not in compliance.
Often, a defendant will have been arrested for committing a crime and it doubles as a probation violation for an earlier crime. An example of this is when a defendant is serving probation for methamphetamine possession and is caught again with the drug or failed a drug test that is required in their sentencing.
If a defendant was arrested for failing to perform a requirement of probation, then the judge may choose to keep them on probation with additional penalties or requirements. If it is a serious or repeated offense, or noncompliance, then the probation may be revoked and a prison sentence or new probation is ordered.
There are also special court probation, such as Hawai‘i Opportunity Probation with Enforcement program, or HOPE Probation, Drug Court and others. Most often, any type of probation will allow for a maximum jail time allowed and violations mean a few days, weeks or months in jail until it adds up to a full revocation.
On Monday in 5th Circuit Court, two defendants saw that their last chances pass them by with judges saying there was no choice but to revoke probation.
In one case, the judge still extended a new beginning from a last chance.
Zachariah Kaimana Araneta, 35, of Hanama‘ulu, has a history of misdemeanors and petty misdemeanors, but this was his first drug and first felony charge, according to State Deputy Public Defender Christian Enright.
He was also serving probation and Enright recommended keeping him in the program.
County Second Deputy Prosecuting Attorney Samuel Jajich said the charge was possession of methamphetamine in February.
He recommended up to a year in jail and five year’s probation.
Judge Kathleen Watanabe agreed to the year in jail with credit for time served since February, and to be concurrent with time being served on a Family Court case. He will then begin a new five-year probation.
Tanner-James Italo Bragalone, 25, of Lihu‘e, was also in court for violation of probation by committing first-degree burglary and unauthorized control of a vehicle. He was not in compliance for some time and was not fortunate to receive a new probation.
Judge Watanabe read his history of probation violations stemming back to 2006.
The violations included several positive tests for marijuana, admitting to using non-prescribed drugs, failing to make appointments and treatment and turning down or not looking for full time employment, a requirement of probation.
Watanabe said the court at one time granted the defendant an opportunity to move to Hawai‘i island, where he ignored probation orders.
Bragalone has not made any payments of court fees or restitution since 2006, said the judge, adding up to zero compliance on a five-year probation after serving a year in jail.
Defense attorney Mark Zenger requested probation and a year in jail.
Jajich was the prosecuting attorney in this case and recommended the same.
Watanabe ordered Bragalone to serve the full five year sentence in prison.
She said the parole board would decide how much of that time he would serve.
The judge also ordered Bragalone to pay the remaining $1,369.56 in restitution through monthly payments upon release from jail.
A non-compliant HOPE Probation participant was brought before Chief Judge Randal Valenciano on Monday for being just over 20 minutes late for a group session.
The judge said the defendant could admit, but if he wanted to discuss the issues of being late, he would have to deny the allegation and a hearing would be scheduled. The defendant admitted.
Elijah Leon Waiwaiole, 34, of Kapa‘a, had two prior violations for failing drug tests and has been compliant for some time, said his attorney, State Public Defender Stephanie Sato.
Jajich was the prosecuting attorney in this case.
The judge reminded the defendant that he sentenced him on the original drug charge and granted his application for HOPE probation.
He said the three violations had used up all the jail time allowable.
The option was a revocation and a prison sentence or to start a new probation period from scratch.
The judge said he would give him another chance and ordered the five-year probation — adding that another violation would make it very difficult to remain in the program.
• Tom LaVenture, staff writer, can be reached at 245-3681 (ext. 224) or tlaventure@thegardenisland.com.
