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

By Benjamin Lowenthal -
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.

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