Prior Convictions: Essential Element, not Sentencing Factors

State v. Bryan (ICA November 30, 2010)

Background. The State brought two cases against Bryan. In one case, Bryan was charged, among other things, with operating a vehicle while her license was suspended pursuant to a prior OUI offense (HRS § 291E-62) and open container. The license charge went like this:

On or about the 3rd day of September, 2004, in the City and County of Honolulu, State of Hawaii, ERIN E. BRYAN, . . . , a person hose license and privilege to operate a vehicle has been revoked, suspended, or otherwise restricted pursuant to [the OUI statutory scheme], did operate or assume actual physical control of any vehicle while her license or privilege to operate a vehicle remained suspended or revoked.

In the second case, Bryan was charged with a single count of operating a vehicle after license and privilege have been suspended for operating a vehicle while under the influence of an intoxicant. It essentially tracked the same language. It did not include any language about prior convictions for the HRS § 291E-62 violations.

Bryan pleaded no contest in both cases. Before her sentencing, she filed a memoranda arguing that she should be sentenced as a first-time offender for the second case on the grounds that the prior HRS § 291E-62 convictions were essential elements that needed to be pleaded in the charging instruments. The circuit court rejected her argument and sentenced her as a third-time offender subject to the mandatory sentences. Bryan appealed.

A Special Kind of Driving Without a License . . . "No person whose license and privilege to operate a vehicle have been revoked, suspended, or otherwise restricted pursuant to this section or to [the OUI statutory scheme] shall operate or assume actual physical control of any vehicle . . . [w]hile the person's license or privilege to operate a vehicle remains suspended or revoked." HRS § 291E-62. Bryan was charged and pleaded no contest to two counts of violating this statute. A third-time offender of this statute within a five-year period requires a mandatory year in prison, $2,000 fine, and permanent license revocation. HRS § 291E-62(b)(3).

Extending Wheeler . . . The ICA examined the sufficiency of the pleadings in light of State v. Wheeler, 121 Hawai'i 383, 219 P.3d 1170 (2009). In Wheeler, the HSC noted that for the OUI statute, the term "operate" is a term of art that is limited "to driv[ing] or assum[ing] actual physical control of a vehicle upon a public way, street, road or highway." HRS § 291E-1. The HSC held that the requirement that the operation of a vehicle be on a public roadway is an attendant circumstance of the OUI offense and must be stated in the charging document. Wheeler, 121 Hawai'i at 395, 219 P.3d at 1182.

Here, HRS § 291E-62, prohibits people whose license was already restricted pursuant to an OUI offense or other kind of restriction in HRS chapter 291E from "operat[ing] a vehicle. The term "operate" in HRS § 291E-62 is identical to the term "operate" in the OUI statute. Both are limited to driving on a public roadway. According to the ICA, this meant that the prosecution must allege in its complaint that the operation took place on a public street or roadway.

Taking the Liberal Construction Approach. In Wheeler, the defendant objected to the sufficiency of the pleadings and, therefore, the HSC did not apply the liberal-construction approach. Wheeler, 121 Hawai'i at 399-400, 219 P.3d 1186-87. Bryan, however, did not object and she did not raise the issue on appeal.

When there is no objection to the sufficiency of the charging instrument, the appellate court applies the liberal construction approach. "Under this approach, there is a presumption of validity for charges challenged subsequent to a conviction. In those circumstances, the court will not reverse a conviction based upon a defective indictment or complaint unless the defendant can show prejudice or that the indictment or complaint cannot within reason be construed to charge a crime." Id. at 399-400, 219 P.3d at 1186-87. This approach also allows the appellate court to examine "the charge as a whole." State v. Elliot, 77 Hawai'i 309, 312, 884 P.2d 372, 375 (1994).

In the first case, the ICA held that even though there was nothing in the charge indicating that Bryan operated the vehicle on a public roadway, the open container charge stated that on the same date as the alleged license offense, she had an open container in "a motor vehicle when it was upon a public street, road or highway or at a scenic lookout[.]" The ICA stated that it was reasonable to infer that the two charges stemmed from the same incident and because the open container involved a public roadway of some kind, it was reasonable to infer that the license violation also involved driving on a public roadway.

As for the second case--the single count of the driving violation--there was no public-road requirement stated and "there is no basis for reasonably construing the complaint . . . to allege the public-road requirement, which is an essential element[.]" The ICA vacated the second case with instructions to dismiss the case without prejudice.

How to pop a Wheeler. The ICA noted that Bryan did not raise the Wheeler issue before the circuit court and she did not argue it on appeal either. The failure to object called for the liberal-construction approach, which creates a presumption of validity. The ICA, however, noted that while her appeal was pending Wheeler came down from the HSC. This meant that there was no real opportunity to raise a Wheeler issue at all because there was no issue at the time. Does that mean that Bryan was out of luck? The opinion does not indicate whether the parties briefed their cases prior to or after Wheeler came down. Should Bryan have filed a supplemental brief?

Prior Convictions: the Other Essential Element. Prior convictions for driving under the influence is an essential element that must be alleged in charging document in order to later seek enhanced penalties for a multiple OUI offender. State v. Domingues, 106 Hawai'i 480, 487-88, 107 P.3d 409, 416-17 (2005); State v. Kekuewa, 114 Hawai'i 411, 420, 163 P.3d 1148, 1157 (2007) (characterizing prior convictions as a mere sentencing factor rather than essential element "would have raised serious concerns regarding the statute's constitutionality, given a defendant's inability to ascertain the class and grade of the offense charged (i.e., a petty misdemeanor or a class C felony) and whether the right to a jury has or has not attached." Even when the legislature created a separate offense for the habitual drunk driver in HRS § 291E-61.5, the HSC refused to overrule the Domingues analysis. See State v. Ruggiero, 114 Hawai'i 227, 238, 160 P.3d 703, 714 (2004).

The ICA agreed with Bryan that prior convictions of suspended driving are an essential element that must be alleged in the charging instrument in order to impose the enhanced penalties. According to the ICA, the statutory scheme for the OUI offense and HRS § 291E-62 are analogous and should be treated similarly. Both statutes have escalating penalties based on priors and both mixes some offenses triggering a right to a jury trial with those that do not. The ICA held that the analyses and rationales in Domingues, Kekuewa, and Ruggiero control. Prior convictions for suspended driving are attendant circumstances and thus an essential element that must be alleged in the charging document. The ICA vacated Bryan's conviction in the first case and remanded for sentencing as a first-time offender.