Failure to Clarify Theory of OUI Meant no Theory can Proceed on Remand

State v. Nakano (HSC October 9, 2013)
Background. Daniel Nakano was charged with operating a vehicle under the influence of an intoxicant. HRS § 291E-61. The complaint alleged that Nakano either committed the offense by having an amount sufficient to impair his normal faculties or guard against casualty in violation of HRS § 291E-61(a)(1) and or by operating a vehicle with a BAC of 0.08 or more in his blood or breath in violation of (a)(3). The complaint did not plead any state of mind. Nakano and the prosecution entered a plea agreement. Nakano requested a conditional plea allowing him to plead no contest to HRS § 291E-61(a)(1) and challenge the sufficiency of the plea on appeal. There was nothing in the change-of-plea form or during the colloquy that indicated if the plea included the other theory under (a)(3). The prosecution agreed to the conditional plea and the district court sentenced Nakano, but stayed it pending appeal.

On appeal, the ICA held that pursuant to State v. Nesmith, 127 Hawai'i 48, 276P.3d 617 (2012), the (a)(1) theory. The ICA vacated the judgment and then held on remand that the State could prosecute Nakano for violation of (a)(3). Nakano moved to reconsider on the grounds that he never pleaded no contest under the (a)(3) theory and the ICA denied the motion in part. Nakano petitioned for cert.

Have an A-1 Day. The HSC first held that the ICA correctly found a Nesmith violation. The complaint did not include a state of mind for the (a)(1) violation—operating with “an amount sufficient to impair the person’s normal mental faculties or ability to care for the person and guard against casualty.” That rendered the charge insufficient and must be dismissed without prejudice. State v. Spearman, 129 Hawaii 146,151-52, 296 P.3d 359, 364-65 (2013). The issue for the HSC is whether the prosecution could move forward on remand with the (a)(3) violation. It held it could not without breaching the plea agreement.

A Plea Agreement is a Contract. “A plea agreement is essentially a contract entered into between the State and the defendant, in which the defendant agrees to plead guilty or no contest to a charge and to forego certain constitutional rights (including the right to trial) in exchange for which the State promises some form of leniency or cooperation in prosecution.” State v. Adams, 76 Hawaii 408, 412, 879 P.2d 513, 517 (1994). The prosecution “is bound by the terms of a plea agreement which serves as the inducement or consideration for a defendant’s guilty or no-contest plea.” State v. Abbott, 79 Hawaii 317, 319, 901 P.2d 1296, 1298 (App. 1995). And when the plea is the result of a promise by the prosecution “so that it can be said to be part of the inducement or consideration, such a promise must be fulfilled.” Santobello v. New York, 404 U.S. 257, 262 (1971).

The Prosecution has to Uphold its End of it. Neither the change-of-plea form nor the oral colloquy indicated if Nakano was pleading no contest for just the (a)(1) method or the (a)(3) method or both. Nonetheless, the prosecution agreed to conditional plea pursuant to Hawaii Rules of Penal Procedure (HRPP) Rule 11(a)(2). Because the record did not have any indication if the prosecution intended to give up the proceedings under (a)(3), that term of the plea agreement had to be construed by the HSC.

According to the HSC, this was “at the very least” an ambiguous term. The “plea agreement containing terms that are ambiguous or reasonably susceptible to different interpretations is strictly construed in favor of the defendant.” State v. Abbott, 79 Hawaii at 320, 901 P.2d at 1299. Here, the HSC held that the agreement prohibited the State from going forth on remand with an (a)(3) prosecution. According to the HSC, if it were to allow the State to proceed on the (a)(3) prosecution, it would not fulfill the promise it made to Nakano. A breached plea agreement is more than a civil violation. It “implicates due process, and the interests of justice.” State v. Miller,122 Hawaii 92, 101, 223 P.3d 157, 166 (2010). And so, on remand, the State cannot prosecute Nakano on the (a)(3) violation.


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