Monday, December 2, 2013

Wheeler Doesn't Apply to your Rule 40 Petition

Christian v. State (ICA November 27, 2013)
Background. In early 2008, Edmund Christian was charged with a single count of operating a vehicle while under the influence of an intoxicant under both theories—having over 0.08 or more grams of alcohol per 210 liters of breath and having an amount sufficient to impair his normal mental faculties and guard against casualty—as well as disobeying a police officer. The DUI charge did not explicitly allege that Christian was operating on a “public way, street, road, or highway” as defined in HRS § 291E-1. Months later, Christian took a plea deal and the second count was dismissed in exchange for pleading no contest to the DUI charge. He was fined $700 with fees and “assessments.” He did not challenge the sufficiency of the charge appeal.

Almost two years later, in 2010, Christian filed a petition pursuant to Hawaii Rules of Penal Procedure Rule 40 that collaterally attacked the conviction. In the petition, Christian argued that the failure to allege the essential element of operating on a public way, street, road, or highway rendered the charge defective and the conviction improper. Of course, Christian was relying on State v. Wheeler, 121 Hawaii 383, 219 P.3d 1170 (2009), which came down about a year after the conviction was entered. The petition was denied. Christian appealed.

The Wheeler Rule. The term “operate” for the DUI statute means “to drive or assume actual physical control of a vehicle upon a public way, street, road, or highway.” HRS § 291E-1. The HSC held that this term departs from the ordinary meaning of the word and, thus, its statutory definition must be included in the charging instrument. Wheeler, 121 Hawaii at 391-95, 219 P.3d at 1178-82. Thus, after Wheeler, any charge for DUI has to include this statutory definition.

The Argument Here . . . Christian argued that his charging instrument failed to include the statutory definition of “operate” and is, therefore, deficient. He also argued that this deficiency is a jurisdictional defect that no conviction can sustain. The prosecution concedes that the charge would be deficient after Wheeler, and argued that the Wheeler rule cannot be applied retroactively to cases on collateral attack.

Wheeler is a New Rule. First, the ICA held that the Wheeler rule is a “new rule.” According to the ICA, prior to Wheeler, the HSC had held in the past that it was perfectly reasonable to construe HRS § 291E-61 to simply track the language of the statute. State v. Ruggeiro, 114 Hawaii 227, 160 P.3d 703 (2007); State v. Kekuewa, 114 Hawaii 411, 163 P.3d 1148 (2007). Moreover, the HSC itself noted that Wheeler marked a change in the way the prosecution charges DUI. State v. Walker, 126 Hawaii 475, 273 P.3d 1161 (2012).

Going Retro. In deciding if a new rule should be given full retroactive effect (i.e., applying to cases that were not on appeal at the time it came down), the court must “weigh the merits and demerits of retroactive application of the particular rule in light of (a) the purpose of the newly announced rule, (b) the extent of reliance by law enforcement authorities on the old standards, and (c) the effect on the administration of justice of a retroactive application of the new standards.” State v. Jess, 117 Hawaii 381, 401-02, 184 P.3d 133, 153-54 (2008).

The ICA applied all three factors and held that Wheeler should not be given retroactive effect. The purpose of Wheeler is to provide fair notice to the defendant about all of the elements in the offense. According to the ICA, there is no “compelling need” to apply Wheeler to cases that are already final. “It would be unusual for an OVUII prosecution to arise from the operation of a vehicle on a non-public road.” Moreover, the ICA stated that there was no indication in the pre-Wheeler days that the parties were “generally unaware of the State’s obligation to prove the public-road element[.]” As for the second factor, the ICA concluded that the prosecution relied heavily on the old rule of not including that language. The prosecution “routinely charged in the language of the offense statute without specifically alleging the public-road element.” Finally, the ICA agreed with the prosecution that the retroactive effect would open the unforeseen possibility of vacating all convictions for DUI for the last 11 years, when the statute went into effect.

The Jurisdictional Problem isn’t a Problem at all. The ICA then tackled the elephant in the room: the jurisdictional hook. According to the ICA, even if Christian characterized the issue as a jurisdictional defect in charging him, it still would not require vacating his conviction. The ICA relied extensively on federal precedent and “principles of finality and fundamental fairness[.]”United States v. Cuch, 79 F.3d 987, 990-91 (10th Cir. 1996). See also United States v. Richardson, 687 F.2d 952, 962 (7th Cir. 1982) (“the tardier the challenge, the more liberally and aggressively have indictments been construed so as to save them.”). Thus, on collateral attack, the ICA held that there was simply not enough exceptional circumstances to overcome the judiciary’s need for finality in judgments.


A Showdown in the Works. The ICA’s ruling on this issue comes at an interesting time. The HSC has been consistently holding this month that OUI charges have to allege a state of mind—even though it’s not an element of the offense—because it is a violation of due process to not include it. It doesn’t matter if it was never raised before trial court and it may not even matter if it wasn’tincluded in an Opening Brief. The HSC majority seems to suggest that this is a jurisdictional matter that can be raised at any time. Now, the ICA has attempted to put a check on this issue and keep things prospective. Of course, Wheeler is different from Nesmith, but the implication is pretty strong. Is this holding consistent with the very string of HSC cases? Stay tuned.

1 comment:

SEO Company Bangalore said...

Digimaxo is a Website Development Company Bangalore Offers Website Development Services in Bangalore
Web Design Company Bangalore