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.

Comments

Post a Comment

Popular posts from this blog

Judge accidentally strikes the entire expert opinion in a murder trial

By Benjamin Lowenthal -
  State v. Sylva (HSC December 29, 2023) Background. Kumulipo Sylva was indicted for murder in the second degree after he was arrested for killing Eduardo Cerezo in the bathroom of the Queen Kaahumanu Shopping Center. Sylva raised the insanity defense and three examiners were appointed to determine penal responsibility. All three concluded that Sylva suffered from a physical or mental disease, disorder, or defect. Two out of the three believed he lacked capacity under the insanity defense was not criminally responsible.   At trial, the prosecution presented evidence that Cerezo and Kyle Keoho got on the bus in Pukalani when they saw Sylva on the bus. Cerezo called Sylva a “pussy” and threatened to beat him up. When the bus got to the shopping center, the three of them got off and Sylva challenged Cerezo to a fight. Cerezo said he did not want to fight and Sylva walked away from them.   Cerezo and Keoho went to the bathroom together. Sylva also went into the bath...
Read more

If you're going to set bail, it has to be reasonable and can't be excessive so $3.3 million won't work

By Benjamin Lowenthal -
  State v. Carter (ICA March 6, 2024) Background. Samuel Carter was indicted for attempted murder in the second degree and firearms offenses. He was held in jail without bail. About four months later, Carter filed a motion for supervised release or, in the alternative, a motion to set bail. Carter argued that there had been no findings supporting the decision to hold him without bail. The prosecution opposed and attached a letter to the Circuit Court noting that there had been no bail report because of the no-bail determination. According to the pretrial services intake center, it would not assess Carter’s eligibility for supervised release unless and until the court sets bail first.   At the hearing on the motion, Carter asked that bail be set at $100,000. The prosecution objected and argued that there was a rebuttable presumption of detention, Carter posed a danger to the community, and there was a flight risk. The prosecution did maintain that even though he could be...
Read more

HSC doesn’t wait for Rule 40 to find defense counsel ineffective for failing to file a motion to suppress

By Benjamin Lowenthal -
  State v. Yuen (HSC August 20, 2024) Background. Charles Tung Ming Yuen was charged with driving under the influence of an intoxicant. The charge arose from a motor vehicle collision that occurred approximately fifty feet from the O’Malley Gate just outside of the Joint Base Pearl Harbor-Hickam in Honolulu. Two vehicles were approaching the gate when one of the vehicle rear-ended the one in front of it. Military police came onto the scene and identified Yuen as the driver of the vehicle that cause the collision. They seized him and subjected him to standardized field sobriety tests. Then they held him and called the Honolulu Police Department to report a “possible DUI outside the gate.”   The collision, seizure of Yuen, and their investigation occurred outside of the base within the City and County of Honolulu. The police showed up and took over. They conducted their investigation, saw signs of intoxication, and arrested Yuen.   Yuen’s lawyer, Barry Sooalo, di...
Read more