Yes, Forgery Includes Using Counterfeit Cash

State v. Eberly (ICA March 31, 2014)
Background. Bardwell Eberly, Antony Moore, and Chrisitna Whitley were originally charged with forgery in the first degree. HRS § 708-853. Specifically, they were charged with “uttering” a forged instrument “purported to be United States Currency.” Eberly pleaded guilty to a reduced charge of forgery in the third degree. Before sentencing, however, the HSC in an unrelated case affirmed Eberly’s conviction and sentence to prison. The sentence was stayed pending appeal this entire time. Now that it had come down, the trial court in this case told Eberly that he could not be sentenced to probation. Eberly moved to withdraw his guilty plea. He was sentenced to a year in jail. Eberly appealed.

The Issue and the two big Procedural Problems. Eberly presented a straight-forward issue on appeal: the forgery statutes plainly and unambiguously do not include counterfeiting U.S. currency. The problem in getting to the issue is that it was never raised below. There’s also the additional problem of the guilty plea: “a guilty plea made voluntarily and intelligently precludes a defendant from later asserting any nonjurisdictional claims, including constitutional challenges to the pretrial proceedings.” State v. Morin, 71 Haw. 159, 162, 785 P.2d 1316, 1318 (1990).

The ICA got around these problems and reviewed the case de novo because the issue goes to the heart of a court’s jurisdiction in a criminal case. The “existence of jurisdiction is a question of law that we review de novo under the right/wrong standard. Questions regarding subject matter jurisdiction may be raised at any stage of a cause of action.” Amantiad v. Odum, 90 Hawaii 152, 158-59, 977 P.2d 160, 166-67 (1999). “If a court lacks jurisdiction over the subject matter of a proceeding, any judgment rendered in that proceeding is invalid.” Bush v. Haw’n Homes Com’n, 76 Hawaii 128, 133, 870 P.2d 1272, 1277 (1994). And so, the ICA did not review this issue for plain error but instead took a fresh de novo review to see if the circuit court had jurisdiction to enter the judgment of conviction and sentence. Turns out it did.

Jurisdiction over Criminal Proceedings. Circuit courts have jurisdiction over “[c]riminal offenses cognizable under the laws of the State, committed within their respective circuits or transferred to them for trial by change of venue from some other circuit court[.] HRS § 603-21.5(a)(1). This is a “fundamental and indispensable prerequisite [] to a valid prosecution.” State v. Alagao, 77 Hawaii 260, 261-62, 883 P.2d 682, 683-84 (App. 1994).

Using Counterfeit cash Constitutes “Uttering” a “Forged Instrument.” The ICA rejected Eberly’s argument that counterfeiting U.S. currency is not conduct fitting the forgery statutes. A person commits the act of forgery when the person “falsely makes, completes, endorses, or alters a written instrument, or utters a forged instrument[.]” HRS § 708-851. The language at issue centers around “utters a forged instrument.” See HRS § 708-853. The charge limited Eberly’s conduct to “uttering” a forged instrument. A “written instrument” is defined as any “paper, document, or other instrument containing written or printed matter or its equivalent” or a “token, coin, stamp, seal, badge, trademark, or other evidence or symbol of value, right, privilege, or identification[.]” HRS § 708-850(7). Finally, “utter” means “offer, whether accepted or not, a forged instrument with representation by acts or words, oral or in writing, that the instrument is genuine.” HRS § 708-850(8).

The factual basis for the guilty plea stated that Eberly gave Whitley a counterfeit $20 bill. According to the ICA, the bill is a “written instrument” because it’s a paper, containing printed matter. The act of giving it to Whitley was enough for the ICA to hold that handing it over to Whitley was enough to show forgery.

A Field Day for Appellate Attorneys? The actual issue in this case is not as newsworthy as the way the ICA got to it. One of the biggest problems for appellate attorneys once they are hired or appointed to a criminal case is to search the record for some shred of evidence showing that counsel preserved an issue on appeal. No one wants the appellate court to dodge an issue simply because it was never raised. That’s been the plain errorbattle raging in the HSC for some time now. The other big issue that arises comes with pleading guilty or no contest. Once that happens, then any issues that may have went down prior to the change of plea are considered waived and can’t be resurrected at trial. Now, it seems that jurisdiction can be the means to get certain issues before an appellate court—even if the defendant pleaded out and even if counsel never raised the issue below.


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