Pesky Plain Error Problems

State v. Miller (HSC January 25, 2010)

Background. Miller was charged with abuse of family/household member. The parties came to a plea agreement and entered it on the record. Miller would plead no contest to an amended charge of assault in the 3d degree (HRS § 707-712), write a letter of apology, serve 1 year probation with 48 hours jail, undergo a substance abuse treatment, pay restitution, and attend domestic violence classes. Miller would also move for a deferred acceptance of no contest plea (DANC) pursuant to HRS § 853-1. The State agreed that it would "take no position" on the DANC motion.

The family court reserved a guilty finding pending the DANC motion. The family court then heard the State's argument for sentencing. The prosecutor argued that this was a brutal incident and went into graphic detail about it. Miller argued that his motion for DANC should be granted based on the findings necessary under HRS § 853-1. The family court denied the motion and sentenced Miller according to the plea agreement.

Miller appealed on the grounds that the State breached its plea agreement. The ICA, in an unpublished order, concluded that because Miller failed to raise the breach to the family court at the time of sentencing and because no motion to correct the sentence pursuant to Hawai'i Rules of Penal Procedure Rule 35 had been filed, the issue had been waived. Furthermore, the ICA did not exercise plain error review.

Plain Error Allows the Court to Review the Issue. It was clear to the HSC and the ICA that Miller never raised the issues before the family court. Thus, the HSC first examined whether it could review the issue of the breached plea agreement. The HSC "will apply the plain error standard of review to correct errors which seriously affect the fairness, integrity, or public reputation of the judicial proceedings, to serve the ends of justice, and to prevent the denial of fundamental rights." State v. Sawyer, 88 Hawai'i 325, 330, 966 P.2d 637, 642 (1998); see also HRPP Rule 52(b).

The question was whether a breach of a plea agreement triggers the plain error doctrine. The HSC concluded--contrary to the ICA--that it did because a breached plea agreement implicates fundamental rights. "[W]here a defendant is denied due process because the prosecution violates a plea agreement, there is manifest injustice as a matter of law." State v. Adams, 76 Hawai'i 408, 414, 879 P.2d 513, 519 (1994). Furthermore, a breach alone requires remand "in the interests of justice." Santobello v. New York, 404 U.S. 257, 262 (1971).

The Standard of Review . . . "[W]hether the State has actually breached the terms of a plea agreement . . . is a question of law, which we review de novo." State v. Abbott, 79 Hawai'i 317, 320, 901 P.2d 1296, 1299 (App. 1995). Accordingly, the HSC, having concluded that the plain error power allowed it to review the issue, reviewed the question de novo.

Prosecutor's Comments Breached its Agreement to "take no Position." While a plea agreement "is essentially a contract . . . [,] because the plea negotiation process implicates constitutional considerations--including the fairness and voluntariness of the plea--we have recognized that resort to contract principles cannot solely be determinative of the rights and duties compromising the plea bargain." State v. Adams, 76 Hawai'i 408, 412, 879 P.2d 513, 517 (1994). Furthermore, "[e]ven where the state technically complies with every term, a breach of the plea agreement may be found if the spirit of the agreement is breached." State v. Abbott, 79 Hawai'i at 320, 901 P.2d at 1299.

Here, the State agreed to all terms of the sentence and the only thing left for the family court to decide was the motion for DANC. The prosecutor's comments were, according to the HSC, an attempt "to influence the court's decision as to whether to grant the DANC" plea after explicitly promising not to do so. The breach arose because the State "clearly attempted to accomplish indirectly what it had promised not to do directly," and even though it agreed to take no position, the prosecutor's comments at sentencing "parallel[ed] several important factors which a court considers at sentencing." State v. Adams, 76 Hawai'i at 413-14, 879 P.2d at 518-19. This case, according to the HSC, is "virtually indistinguishable" from Adams. The appropriate remedy to vacate the sentence and remand to another judge. See State v. Anderson, 4 Haw. App. 102, 114, 661 P.2d 716, 724 (1983) ("Sentencing by another judge is the proper remedy").

On top of that, it's not Harmless. The HSC also concluded that the error in this case was not harmless beyond a reasonable doubt because "the court clearly took the prosecutor's comments into account in deciding to deny" the DANC motion.

Justice Nakayama's Dissent. Justice Nakayama dissented. Justice Nakayama agreed with the ICA that Miller waived his right to bring the issue regarding the breached plea agreement and that there was no plain error because substantial rights were not affected. Accordingly, Justice Nakayama would not have granted certiorari. Judge Hirai, substituting for Justice Recktenwald, joined. The following are just some of the contentions raised in her dissenting opinion.

The HRAP Rule 28(b)(4) Violation. In an opening brief, there must be a section for the points of error. Each point of error "shall" state the alleged error "committed by the court or agency," where in the record it occurred, and where the error was objected to or brought to the attention of the court or agency. Hawai'i Rules of Appellate Procedure (HRAP) Rule 28(b)(4). Miller's opening brief stated that the judgment should be set aside because "the prosecutor violated the plea agreement." Justice Nakayama believed that Miller's opening brief violated HRAP Rule 28(b)(4). According to Justice Nakayama, "[s]tating an error was committed in the court . . . is not the same as an error committed by the court, which is the requirement of HRAP Rule 28(b)(4)." Justice Nakayama disagreed with the majority's conclusion that Miller complied with HRAP Rule 28(b). She believed that the majority has rewritten the rule and now requires appellate courts to review all alleged errors committed by parties in court, rather than only those errors committed by the court.

The Majority's take: not Violated, just Inapplicable. The majority disagreed. The majority wrote that HRAP Rule 28(b) was not violated, it was simply inapplicable. According to the majority, when a party raises plain error--that is, error that was not raised below, it is impossible to strictly comply with HRAP Rule 28(b)(4) because "the appellant will always be unable to point to where in the record the error was objected to, as required under the rule." Moreover, the majority criticized Justice Nakayama's formulation that the points of error must articulate an error committed by the court or agency. In the case where the breached plea agreement has not been objected to, the court did not commit an error "and to conjure one up is unreasonable." HRAP Rule 28(b)(4) is simply inapplicable.

Plain Error v. Plain Error sua Sponte. Justice Nakayama also took issue with the application of plain error. It appears that Justice Nakayama has derived two formulations of plain error. The first is one stemming from the court rules in HRAP Rule 28(b) and HRPP Rule 52(b). The other derives from the inherent power of the court. State v. Fields, 115 Hawai'i 503, 528-29, 168 P.3d 955, 980-81 (2007). According to Justice Nakayama, when an error has not been raised below at trial or on appeal, the court should exercise the inherent power to correct plain error sua sponte sparingly. Furthermore, the error itself should be extraordinary as it undermines the adversarial system. The majority took issue with the two standards. The majority held that when substantial rights are affected by the error, the better part of discretion is to employ the plain error rule.

No Plain Error--under any Standard. Justice Nakayama also disagreed that there was plain error at all. Simply stated, she did not agree that the breach of the plea agreement seriously affected Miller's substantial rights. Justice Nakayama believed that the majority erroneously applied the plain error standard by reviewing the issue de novo.

A Standard or a Doctrine? The majority's position is that plain error is a doctrine empowering appellate courts to correct errors that have not been raised below or even on appeal. The error must affect the substantial rights of the defendant. Here, the majority concluded that a breach of the plea agreement is plain error and opted to review it as if it had been raised below. And had this particular issue been raised, it would have been reviewed de novo. Having finished the merits, the majority also notes that the error was not harmless beyond a reasonable doubt.

Justice Nakayama, on the other hand, treats plain error more like a standard of review. She believes that when an issue is not raised below or on appeal, the court has the power to recognize plain error, but it should only be done sparingly and in extraordinary circumstances. This means that the appellate court should review the case and find plain error only when there is an error that seriously affects substantial rights.

The Plain Error Problem. Is the question settled? Does it mean that once found to have a serious affect on substantial rights, the court can act as if it had been raised and review it accordingly? What if the standard of review was an abuse of discretion? The lower court never addressed it and there was no discretion exercised to abuse? What then? Then again, it is tough to see plain error as a standard in itself. How does a court find an error? It would seem to imply that that in itself is de novo. It seems that the pesky plain error problem will continue to plague us.

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