Restitution and its Consequences no Longer a Collateral Consequence at Change of Plea

By Benjamin Lowenthal -

State v. Kealoha (HSC March 15, 2018)
Background. Kristopher Kealoha was charged with multiple offenses in three different case numbers. He pleaded guilty to all charges in exchange for an open five-year term of imprisonment running concurrent to each other. The circuit court pursuant to HRPP Rule 11 agreed to bind itself to the agreement. At the change-of-plea hearing and colloquy, Kealoha repeatedly said that as long he gets the open five year term “I’m good. I’m good with that.” No one discussed restitution.

At sentencing, everyone confirmed the plea agreement for prison. The court, however, ordered more than $4,500 in restitution. Kealoha was surprised and astounded at having to pay for the restitution. Shortly after sentencing, counsel withdrew and new counsel was appointed. Kealoha appealed.

Restitution is part of the “Maximum Penalty Provided by law.” Before accepting the defendant’s guilty or no-contest plea, the court is required to apprise the defendant in open court of and ensure they understand, “the maximum penalty provided by law . . . which may be imposed for the offense to which the plea is offered[.]” HRPP Rule 11(c)(2). The sentencing court is required to order restitution whenever the “victim” makes a restitution claim. HRS § 706-646(2). The HSC “cannot emphasize enough that all procedural components of HRPP Rule 11 should actually be complied with by . . . trial judges.” State v. Cornelio, 68 Haw. 644, 646, 727 P.2d 1125, 1127 (1986).

And it’s a Direct Consequence of a Change of Plea. “Manifest injustice occurs when a defendant makes a plea involuntary or without knowledge of the direct consequences of the plea.” State v. Nguyen, 81 Hawaii 279, 292, 916 P.2d 689, 702 (1996). A direct consequence “has a definite, immediate, and largely automatic effect on defendant’s punishment.” Id. at 288, 916 P.2d at 698. The HSC overruled prior cases by the ICA and held that the imposition of restitution and the process outlined in HRS § 706-646(2) is a direct consequence of the changed plea.

So what do we have to say? The HSC held that the court at the change-of-plea hearing must ensure that the defendant understands the following aspects of restitution: (1) the court must order restitution for reasonable and verifiable losses requested by a “victim” or when the crime victim compensation fund makes an award; (2) the court cannot waive the restitution amount or convert it to community service; and (3) unless the amount of restitution has already been determined, the court cannot determine what a possible restitution amount will be until a later time.

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