Remedy for Deficient Charging Instrument is Dismissal Without Prejudice, For Real.

State v. Walker (HSC March 28, 2012)

Background. Samuel Walker was charged with Habitually Operating a Vehicle Under the Influence of an Intoxicant. HRS §291E-61.5(a)(1) and (a)(2)(A). Walker had been charged by felony information. The charging instrument failed to allege that Walker had been operating a vehicle on a public road, way, street, or highway. The instrument also merely referred to Walker as a "habitual operator of a vehicle while under the influence of an intoxicant." He was convicted and sentenced to five years imprisonment. Walker appealed. The ICA held that the charge did not allege an essential element--the attendant circumstances of a "habitual operator"--and vacated the judgment with instructions to dismiss without prejudice. Chief Judge Nakamura dissented.

Walker's Complaint. Walker's argument to the HSC had nothing to do with the ICA's analysis of the Wheeler issue. Rather, he took issue with the remedy: vacating the judgment with instructions to dismiss without prejudice. Walker argued that there was insufficient evidence to support the conviction and a reversal was the proper remedy. In the alternative, Walker argued that the remedy should have been conviction and resentencing to non-felony OUI pursuant to HRS § 291E-61.

No Error for Dismissal of Felony Without Prejudice. The overall purposes of a charge in a criminal case is to (1) sufficiently allege an offense to properly confer jurisdiction, State v. Sprattling, 99 Hawai'i 312, 327, 55 P.3d 276, 291 (2002), and (2) inform the defendant of the "nature and cause of the accusation" as required by the state and federal constitutions. State v. Mita, 124 Hawai'i 385, 290, 245 P.3d 458, 463 (2010). Here, there is no dispute that the charging instrument was deficient because it did not adequately allege that Walker was a "habitual operator," i.e., one with prior convictions within a ten-year period. But even then, there is no jurisdiction for a simple OUI charge. According to the HSC, Walker's charge did not include the statutory definition of "operate." That meant that there is no jurisdiction for the misdemeanor OUI too. Remanding the case and sentencing under a jurisdictionally-defective charge would be clearly erroneous and improper.

Justice Nakayama's Concurrence. Justice Nakayama disagreed with the HSC's analysis, but concurred in the result. She agreed that the charge did not adequately plead habitual OUI because it did not define "operate" properly. However, Walker did not make the specific challenge to this term. Justice Nakayama believed "the defendant must be specific in identifying the way in which the charge is defective[.]" The failure to object warranted analysis of the charge under the liberal analysis from State v. Motta, 66 Haw. 89, 90, 657 P.2d 1019, 1019-20 (1983), and State v. Wells, 78 Hawai'i 373, 381, 894 P.2d 70, 78 (1995). Under that standard, two counts can be read together. State v. Tominiko, 126 Hawai'i 68, 76, 266 P.3d 1122, 1130 (2011). That left open the possibility of resentencing Walker to the lesser-included OUI offense, but because the ICA has discretion in remanding with instructions to dismiss without prejudice, there should be no disturbance of that decision. Chief Justice Recktenwald joined.

Taking Issue with the Specific Objection. The majority made a point to state the Walker's generalized objection to the charging instrument was sufficient to preserve the issue on appeal. Unlike Tominiko, Walker "generally moved to dismiss on the grounds that the charge failed to state an offense without specifying which element of the offense was deficient." According to the majority, Walker is more like Wheeler and his motion and less like Tominiko and his non-objection. Justice Nakayama didn't see it that way.