Background
Robert Raymond Tongg was convicted in 1988 of six counts of second-degree sexual assault, one count of third-degree sexual assault, and one count of kidnapping. He received six months in prison and five years of probation. After Hawaiʻi enacted its sex-offender registration law, HRS Chapter 846E, Tongg became subject to registration requirements.
Tongg unsuccessfully petitioned to terminate registration in 2008. In April 2025, he filed a second petition in the Circuit Court of the Second Circuit. The court denied it, and Tongg appealed pro se, challenging venue, the statutory waiting period, the law’s retroactive application, the absence of an individualized risk hearing, and the lack of findings and legal analysis in the denial order.
The Court’s Holding
The Intermediate Court of Appeals affirmed. Tongg’s offenses placed him in Tier 3, and HRS § 846E-10(e) permits a Tier 3 offender to seek termination only 40 years after release or sentencing, whichever is later. Because the record indicated that Tongg’s six-month prison term ended on April 5, 1989, he cannot petition for termination until April 5, 2029. Completion of probation in 1993 did not control because the statute defines “release” by reference to release from imprisonment and specified forms of custody, not discharge from probation.
The court also rejected Tongg’s other arguments. His venue and ex post facto claims were waived because he had not raised them below, and they failed on the merits in any event. The termination proceeding was civil, venue requirements could be waived, and Hawaiʻi precedent establishes that Chapter 846E is remedial and does not violate the federal Ex Post Facto Clause. Due process did not require a risk hearing before Tongg became statutorily eligible; he may receive the hearing contemplated by HRS § 846E-10(f) when eligible in 2029. Finally, the circuit court was not required to enter findings of fact or conclusions of law when deciding the petition by motion.
Key Takeaways
- A Tier 3 offender may petition to terminate registration under HRS § 846E-10(e) only after the statutory 40-year period has elapsed.
- For Tongg, “release” meant release from imprisonment, making April 5, 2029 the earliest date he may petition.
- Due process entitles an eligible offender to an appropriate hearing, but does not require that hearing before statutory eligibility arises.
Why It Matters
The decision clarifies that Hawaiʻi’s termination procedure is a civil proceeding and that Tier 3 eligibility is calculated using the statutory definition of release, rather than the date probation ends. It also confirms that an individualized risk hearing may be deferred until the registrant becomes eligible to seek termination.