ICA Publishes S.D.O., Discusses Entrapment in Electronic Enticement, Allocution at Sentencing

State v. Nicholson (ICA May 1, 2009)

Background.  Nicholson was chatting online with Bradford, a special special agent at the Attorney General's Office.  Special Agent Bradford was pretending to be a 14-year-old girl.  Nicholson was 40.  Their chats included explicit sexual content.  Nicholson also sent Special Agent Bradford photographs of people having sex.  Eventually they arranged to meet at the Burger King on Beretania Street.  When Nicholson showed up at the arranged day and time, he was arrested.  Nicholson filed a motion to dismiss and after it was denied, Nicholson pleaded guilty.  The circuit court allowed him to withdraw his plea, but he later pleaded guilty again.  He then moved to withdraw a second time, but the circuit court denied his motion.  Before sentence was imposed, Nicholson gave a statement.  The circuit court told Nicholson it had difficulty believing him and explained why.  Nicholson tried to respond, but the circuit court would not allow him and sentenced Nicholson to five years probation and a year in jail.  He appealed.

Withdrawing the Guilty Plea.  "A defendant does not have an absolute right to withdraw his [or her] guilty plea."  State v. Jim, 58 Haw. 574, 575, 574 P.2d 521, 522 (1978).  In order to withdraw a guilty plea before the sentencing, the defendant must show "a fair and just reason for his [or her] request."  State v. Gomes, 79 Hawai'i 32, 36, 897 P.2d 959, 963 (1995).  The bases for "fair and just reasons" are (1) the defendant did not knowingly, intelligently, or voluntarily waive his or her rights in pleading guilty; or (2) there are changed circumstances or new information which justify the withdrawal.  Id. at 37, 897 P.2d at 964.  The reasons must also be plausible and legitimate.  State v. Costa, 64 Haw. 564, 565, 644 P.2d 1329, 1331 (1982).  Here, Nicholson wanted to withdraw because he was not aware of a potentially meritorious claim.  Nicholson argued that the agreed-upon meeting place with Special Agent Bradford--an element of the offense--was the back benches of the Burger King on Beretania, not just the Burger King.  The ICA found no abuse of discretion in denying Nicholson's claim. 

The Motion to Dismiss the Indictment.  A person commits electronic enticement in the 2d degree when, using a computer or any other electronic device, (1) intentionally or knowingly communicates with a person either under 18 or purporting to be under 18; (2) agrees to meet with the minor or purported minor, with the intent to promote or facilitate a felony defined under HRS § 846E-1; and (3) intentionally or knowingly travels to the agreed upon meeting place at the meeting time.  HRS § 707-756(1).

Where was the Meeting Place?  Nicholson first argued that there was insufficient evidence to return a bill of indictment because there was insufficient evidence showing that he traveled to the agreed-upon place: the back benches at the Burger King on Beretania.  The ICA rejected this claim.  The record based on the chats, according to the ICA, showed that the agreed-upon place was the Burger King.

Failure to Identify the Felony is not Fatal to the Indictment.  The ICA also rejected Nicholson's claim that the indictment was deficient because it failed to state with particularity a felony defined under HRS § 846E-1.  The ICA held that it was unnecessary for an indictment to be specific.  According to the ICA, "if a crime requires only an intent to commit an underlying offense, the underlying offense itself need not be specified in the indictment[.]"  See State v. Robins, 66 Haw. 312, 314-15, 660 P.2d 39, 41 (1983).  The ICA held that it was unnecessary to identify which particular felony under HRS § 864E-1 in an indictment.

The Entrapment Claim was Waived by Unconditionally Pleading Guilty.  It appears that Nicholson argued before the ICA that he was entrapped by Special Agent Bradford.  The ICA held that any claim of entrapment was waived when he pleaded guilty.  According to the ICA, valid and unconditional guilty pleas preclude defendants from later asserting "non-jurisdictional claims."  State v. Morin, 71 Haw. 159, 162, 785 P.2d 1316, 1318 (1990).  The entrapment defense, according to the ICA, is a "non-jurisdictional claim."

And by Failing to Raise it Below.  The ICA also pointed out that the claim was waived because Nicholson failed to raise it before the circuit court.  "As a general rule, if a party does not raise an argument at trial, that argument will be deemed to have been waived on appeal."  State v. Moses, 102 Hawai'i 449, 456, 77 P.3d 940, 947 (2003).  When the circuit court issued its order denying Nicholson's motion to suppress, it noted that there was no entrapment by Special Agent Bradford.  This, according to the ICA, was not enough to raise the issue.  Nicholson's suppression motion was based on entirely different grounds.

Waiver Aside, There was no Entrapment Defense.  Despite holding that Nicholson waived the argument, the ICA examined the entrapment defense in dictum.  Entrapment arises when a law enforcement officer uses "methods of persuasion or inducement which created a substantial risk that the offense would be committed by persons other than those who are ready to commit it."  HRS § 707-237(1)(b).  Entrapment is an affirmative defense.  Id.  "The main concern is whether the conduct of the police . . . was so extreme that it created a substantial risk that persons not ready to commit the offense alleged would be persuaded or induced to commit it."  State v. Anderson, 58 Haw. 479, 484, 572 P.2d 159 162 (1977).  Entrapment is based on an objective inquiry.  Id. at 483-84, 572 P.2d at 162.

According to the ICA, the transcripts of the chats between Nicholson and Special Agent Bradford showed that Nicholson initiated the conversation, started discussing sex, repeatedly asked for oral sex and intercourse, after Special Agent Bradford told Nicholson that he was 14, and wanted to meet.  The record also showed that Special Agent Bradford hesitated and gave Nicholson chances to back out of the meeting.  Based on the record, the ICA concluded there was no entrapment.

The Right to Allocution; but no Right to Respond.  A defendant has the right to have a fair opportunity to speak before being sentenced.  State v. Cravalho, 90 Hawai'i 280, 285-86, 978 P.2d 718, 723-24 (1999); HRS § 706-604(1).  Before imposing sentence, Nicholson gave a long statement to the court.  When he finished, Nicholson said that "that's basically all I have to say, sir."  The circuit court told Nicholson it had a hard time believing his statement and explained why.  Nicholson tried to respond, but the circuit court refused to let him have the last word and sentenced him.  The ICA held that under these circumstances, the circuit court did not deny Nicholson his right to allocution and that it was not error to refuse Nicholson a chance to respond to the court's comments.

It appears that the right to allocution does not extend to responses from the circuit court.  The ICA was not clear as to whether the circuit court posed questions to Nicholson or merely explained why it did not believe his statement.  It would seem that it would be the latter since the circuit court refused to allow Nicholson to respond.

The Motion to Publish.  This case was initially an unpublished summary disposition order.  The State, however, filed a motion for publication, which was granted over Nicholson's objection.  There is no rule discussing the substance of a motion to publish--only the rule governing motions in general, Hawai'i Rules of Appellate Procedure Rule 27.  The ICA's order granting the motion does not reveal any of the reasons given by the State.  It is unclear what standards, if any, govern a motion to publish.  We can only guess what sort of arguments are meritorious in this kind of motion.

So what is the Standard?  The appellate court is free to determine whether the disposition shall be published.  Neither the HSC nor the ICA has ever explained the standards, if any, that govern its decision in publishing a case.  It would seem to be governed by a rule of thumb--that cases which resolve issues that have wide-spread implications ought to be published.  Would it be better for the appellate courts to remain silent on what governs a decision to publish?  This is one of the appellate court's most important functions.  Every court in the State of Hawai'i is bound to the comply with a published opinion.  It is the engine that drives the common law.  Affixing a standard implies that the court's discretion could be abused, reviewed, and ultimately reversed--at least for the ICA.    Can a standard be articulated in the first place?

To Publish or not to Publish.  There are possible points to raise--whether the disposition resolves controversies that have bubbled up in other cases; and whether the disposition guides courts and lawyers about a particular issue.  How do you oppose such a motion?  Perhaps there are facts in the case that would warrant an unpublished disposition.  Take this one, for example, it is easy to guess why the State wanted Nicholson: the ICA's dicta about entrapment.  But an opposition could be the fact that there was no trial on that issue and that it would be premature to make such a statement about entrapment binding to all courts.