Honolulu, Hawaii



RE:    H.B. No. 1059

       H.D. 2

       S.D. 1




Honorable Donna Mercado Kim

President of the Senate

Twenty-Seventh State Legislature

Regular Session of 2013

State of Hawaii




     Your Committee on Transportation and International Affairs, to which was referred H.B. No. 1059, H.D. 2, entitled:




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 Federal Public Defender, Department of the Attorney General, Office of the State Public Defender, County of Maui Prosecuting Attorney, Honolulu Prosecuting Attorney, and two individuals.  Your Committee received comments on this measure from the Judiciary.


     Your Committee finds that the current 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.  Furthermore, the current 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.


     Section 802E-1, Hawaii Revised Statutes, states: "The legislature finds that in many instances involving an individual who is not a citizen of the United States charged with an offense punishable as a crime under state law, a plea of guilty or nolo contendere is entered without the defendant knowing that a conviction of such offense is grounds for deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States."


     Your Committee is concerned that there are a number of aliens who come before the criminal courts whose immigration status may be affected by the outcome of their case.


     Your Committee has amended this measure by:


(1)  Repealing the existing section 802E-2, Hawaii Revised Statutes, and inserting a new section to chapter 802E, Hawaii Revised Statutes, in its place, in the interest of enhancing readability and as recommended by the Department of the Attorney General;


     (2)  Inserting language in the new section requiring the advisement to be administered prior to the arraignment and plea hearing, as recommended by the Office of the Public Defender; and


(3)  Making technical, nonsubstantive amendments for the purposes of clarity and consistency.


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


Respectfully submitted on behalf of the members of the Committee on Transportation and International Affairs,