NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER

NO. CAAP-19-0000353

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

LINCOLN HUESTON, Petitioner-Appellant, v.

STATE OF HAWAI#I, Respondent-Appellee

APPEAL FROM THE CIRCUIT COURT OF THE FIFTH CIRCUIT

(CR. NO. 5SPP-17-1-0001)

SUMMARY DISPOSITION ORDER

(By: Leonard, Presiding Judge, and Hiraoka, and Wadsworth, JJ.)

Petitioner-Appellant Lincoln Hueston (Hueston) appeals

from the "Order Denying [Hueston's] Petition for Revocation of

Restitution [(Petition)] Filed on August 24, 2017," entered on

March 21, 2019 (March 21, 2019 Order), in the Circuit Court of

the Fifth Circuit (circuit court).1/ Hueston contends that the

circuit court erred in denying the Petition, because it contained

allegations that if proven would have entitled Hueston to relief. 

After reviewing the record on appeal and the relevant

legal authorities, and giving due consideration to the issues

raised and the arguments advanced by the parties, we resolve

Hueston's contention as follows.

I. Background

In 2009, Hueston pleaded guilty to and was convicted of

one count of Theft in the First Degree and forty-nine counts of

1/ The Honorable Randal Valenciano presided.

Electronically Filed

Intermediate Court of Appeals

CAAP-19-0000353

30-APR-2021

07:56 AM

Dkt. 77 SO
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER

Forgery in the Second Degree.2/ At a June 3, 2009 sentencing

hearing, the following exchange between the circuit court and

Hueston regarding restitution occurred:

[THE COURT:] And the amount of restitution that the

Court is ordering -- this is through a freestanding order,

as requested by the prosecutors -- is $212,060.10. This is

what has been verified by the probation department. The

Court is, as I said, ordering a freestanding order.

. . . [Y]ou're going to start making the payments on

the restitution, followed by the crime victim compensation

fees, and I'm not going to waive any of that. You're going

to start making payments 60 days after you're released from

prison, and I'm proposing that you pay minimum payments of

$200 a month.

Now, Mr. Hueston, I know looking down the road, you

don't know what you're going to be doing, you don't know

what kind of employment you're going to be doing, but

setting it at $200 a month, Mr. Hueston, do you foresee a

problem with that after you get out of prison and get

employment?

[HUESTON]: No, your Honor.

THE COURT: All right. Very well. Then I'll note

that for the record.

Pursuant to the June 10, 2009 Judgment of Conviction

and Sentence (Judgment), Hueston was sentenced to, inter alia,

ten years imprisonment for Theft in the First Degree and five

years imprisonment for each count of Forgery in the Second

Degree, all sentences to run concurrently. As was discussed at

the sentencing hearing, Hueston's sentence also included the

order to pay restitution in the amount of $212,060.00, as well as

certain other fees, in monthly installments of no less than $200

commencing 60 days after release from incarceration. 

On June 10, 2009, the circuit court also entered its

"Findings of Fact, Conclusions of Law and Order Granting

[Respondent-Appellee State of Hawaii's (State)] Oral Motion for

Free-Standing Restitution Order," as well as a separate "Order of

Restitution." The circuit court "conclude[d] that a separate

free-standing restitution order obligating [Hueston] to pay the

outstanding restitution beyond the expiration date of his

2/ The Honorable Kathleen N.A. Watanabe presided.

2
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER

probation3/ term [was] warranted."4/ (Footnote added.)

On August 24, 2017, Hueston filed the Petition. 

Hueston alleged that he was sentenced "to make payments of

restitution totaling the amount of $217,400.00"; "[n]o hearing

was held to determine if the amount of restitution was an amount

that [Hueston] could afford to pay"; and "the amount of

restitution imposed by the Court is an amount of which [Hueston]

is unable to pay." He further stated that he was currently

incarcerated; he earned 25 cents an hour in prison, which he

"used for the purchase of basic needs"; and he would remain

incarcerated until the end of his maximum sentence on May 28,

2019. Hueston concluded that "[p]ursuant to [HRS] § 706-645 and

§ 706-644(d) [sic], the Circuit Court may revoke [Hueston's]

restitution" in this case, and requested a hearing on the

Petition. 

In its March 21, 2019 Order, the circuit court denied

the Petition without a hearing. 

II. Discussion

We treat the Petition as a non-conforming Hawai#i Rules

of Penal Procedure (HRPP) Rule 40 petition. See infra. We

review an order denying an HRPP Rule 40 petition without a

hearing de novo, using the right/wrong standard of review. Dan

v. State, 76 Hawai#i 423, 427, 879 P.2d 528, 532 (1994). "The

3/ It appears that the court meant to reference Hueston's

"imprisonment term," rather than "probation term," as Hueston was not

sentenced to a term of probation in this case.

4/ On January 7, 2014, pursuant to a motion by the State, and

following a December 16, 2013 hearing, the circuit court issued an "Order Re

State's Motion to Amend the Judgment Filed on 6/10/09 to Conform to [Hawaii

Revised Statutes (HRS)] 353-22.6" (January 7, 2014 Order). The January 7,

2014 Order concluded that HRS "§ 353-22.6 is to be applied to Hueston" and

"the original judgment herein is not to interfere with the Department of

Public Safety's, or any other State agency['s], enforcement of HRS § 353-

22.6[.]" The January 7, 2014 Order further provided that "the director of

public safety shall enforce the instant victim restitution order against all

moneys earned by Hueston or deposited or credited to his individual account

while he is incarcerated[,]" by deducting twenty-five percent of the total of

such amounts, to be paid as restitution "to the victim once the amount reaches

$25, or annually, whichever is sooner." 

The Petition does not challenge the January 7, 2014 Order, and it is not

mentioned in Hueston's opening brief. We thus deem any such issue waived. 

See Hawai#i Rules of Appellate Procedure Rule 28(b)(4), (7).

3
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER

question on appeal of a denial of a Rule 40 petition without a

hearing is whether the trial record indicates that Petitioner's

application for relief made such a showing of a colorable claim

as to require a hearing before the lower court." Lewi v. State,

145 Hawai#i 333, 345, 452 P.3d 330, 342 (2019) (quoting Dan, 76

Hawai#i at 427, 879 P.2d at 532). To establish a colorable claim

of illegal sentence, the allegations of the petition must show

that if taken as true the facts alleged would change the

petitioner's sentence; however, a petitioner's conclusions need

not be regarded as true. See id. (quoting Dan, 76 Hawai#i at

427, 879 P.2d at 532).

Hueston argues that the Petition established a

colorable claim for relief under HRS § 706-645 by "assert[ing]

[Hueston's] inability to pay restitution due to the length of his

incarceration and the high amount of the restitution."5/ Hueston

further argues that these allegations "if taken as true, could

have potentially changed the restitution amount to which

[Hueston] was sentenced." 

HRS § 706-645 (2014) provides:

(1) A defendant who has been sentenced to pay a fine

or restitution and who is not in contumacious default in the

payment thereof may at any time petition the court which

sentenced the defendant for a revocation of the fine or

restitution or of any unpaid portion thereof.

(2) If it appears to the satisfaction of the court

that the circumstances which warranted the imposition of the

fine or restitution have changed, or that it would otherwise

be unjust to require payment, the court may revoke the fine

or restitution or the unpaid portion thereof in whole or in

part. Prior to revocation, the court shall afford the

prosecuting attorney an opportunity to be heard.

(Emphasis added.) The statute thus authorizes the sentencing

court "to alter, amend, or revoke restitution orders on the basis

of unforeseen or changed circumstances[.]" State v. Gaylord, 78

Hawai#i 127, 153 n.50, 890 P.2d 1167, 1193 n.50 (1995). A

petition under HRPP Rule 40 is the appropriate way to seek relief

5/ The Petition also cited HRS § 706-644(d) as authorizing the

circuit court to revoke Hueston's restitution. To the extent that Hueston may

have intended to cite HRS § 706-644(4), which applies where "the defendant's

default in the payment of a fee, fine, or restitution is not contumacious,"

that section did not apply here, where Hueston presented no evidence that he

was in default of the payment of restitution. Hueston does not rely on HRS

§ 706-644 in the opening brief. 

4
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER

under HRS § 706-645. See State v. Kealoha, 142 Hawai#i 46, 63,

414 P.3d 98, 115 (2018). 

Here, the Petition did not establish a colorable claim

for revocation of restitution under HRS § 706-645. Hueston

alleged in the Petition that "the amount of restitution imposed

by the Court is an amount of which [Hueston] is unable to pay." 

However, Hueston's asserted inability to pay the amount of

restitution was not, as a matter of law, an unforeseen or changed

circumstance or other injustice authorizing a revocation of

restitution. Specifically, HRS § 706-646(3) provides that "[i]n

ordering restitution, the court shall not consider the

defendant's financial ability to make restitution in determining

the amount of restitution to order." HRS § 706-646(3) (Supp.

2016) (emphases added); see Commentary on HRS § 706-646 (2014)

(noting that "Act 230, Session Laws 2006, amended this section

to, among other things, require that when restitution is ordered,

the amount ordered is not based on the defendant's financial

ability to make restitution[.]"). Thus, a defendant's financial

inability to make restitution was a foreseen circumstance, and

the legislature determined that the amount of restitution ordered

must not be based on the defendant's ability to make payment.6/

In contrast, "[t]he court . . . shall consider the

defendant's financial ability to make restitution for the purpose

of establishing the time and manner of payment." HRS § 706-

646(3). Here, at the June 3, 2009 sentencing hearing, Hueston

stated that he did not "foresee a problem" in making minimum

payments of $200 per month toward his restitution obligation

after his release from prison. When Hueston filed the Petition

in 2017, he stated that he was currently incarcerated and would

remain incarcerated until the end of his maximum sentence on

May 28, 2019. He did not allege unforeseen or changed

circumstances or other injustice regarding the time or manner of

payment of his restitution obligation after his release. Indeed,

rather than seeking an alteration of the payment terms, i.e.,

6/ Accordingly, when the circuit court ordered restitution in 2009,

it was not required to hold a hearing "to determine if the amount of

restitution was an amount that [Hueston] could afford to pay." 

5
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER

monthly installments of $200 commencing 60 days after his release

from prison, Hueston sought revocation of restitution based on

his asserted inability to pay the amount of $212,060.00. 

We conclude that Hueston's asserted inability to pay

the amount of restitution did not constitute an unforeseen or

changed circumstance or other injustice authorizing a revocation

of restitution under HRS § 706-645. Because Hueston failed to 

establish a colorable claim for relief under HRS § 706-645, the

circuit court did not err in denying the Petition without a

hearing.

III. Conclusion

For the reasons discussed above, the "Order Denying

[Hueston's] Petition for Revocation of Restitution Filed on

August 24, 2017," entered on March 21, 2019, in the Circuit Court

of the Fifth Circuit, is affirmed.

DATED: Honolulu, Hawai#i, April 30, 2021.

On the briefs:

Rosa Flores

(Greg Ryan and Associates)

for Petitioner-Appellant.

Tracy Murakami,

Deputy Prosecuting Attorney,

County of Kauai,

for Respondent-Appellee.

/S/ Katherine G. Leonard

Presiding Judge

/s/ Keith K. Hiraoka

Associate Judge

/s/ Clyde J. Wadsworth

Associate Judge

6