Hawai'i Legal News

  State v. Fay (HSC June 17, 2024) Background. Melissa Fay crashed her car into a tree and was charged with traffic offenses in the district court. She pleaded no contest to driving under the influence of an intoxicant, driving without insurance, and the amended charge of criminal property damage in the fourth degree. She also agreed to pay restitution. Kahului Auto Sales, Inc., owned the car and made a restitution claim. The Judiciary’s Monetary Restitution Program recommended that Fay pay $6,504. The parties agreed to the amount and the district court issued an order for restitution in that amount at a rate of $50.00 per month.   The district court with the Hon. Judge Lauren Akitake presiding ordered Fay to return to court in six months if the amount was not paid off. The court told Fay that the hearings would be ongoing until it was paid off. Fay objected, but the hearing was set. Fay appealed. The ICA affirmed. Fay petitioned for further review.   The statu...

  State v. Borge (HSC March 15, 2023) Background. On November 5, 2019, Maui police officers responded to the Paia Youth and Cultural Center between Baldwin Beach and Paia Bay. They found the complainant had suffered serious injuries after Borge struck him on the head several times with a piece of wood. Borge was arrested. The prosecution went to the grand jury and called Detective Dennis Clifton. Det. Clifton testified he investigated the case and met with Borge after he was arrested. The following exchange took place:   Q.      . . . . Did you notice any injuries to Mr. Borge? A.      No. Q.       None to his head, arms, anyplace? A.       No, sir. Q.       Okay. And you didn’t take any statement from Mr. Borge? A.       We attempted to question him, but he requested to speak to an attorney.   After Det. Clifton...

  Warner v. State (HSC September 20, 2022).  Background. Luke Warner was indicted with four counts of attempted theft in the 2d degree, three counts of meth trafficking, and seven other offenses for a total of fourteen counts. He pleaded guilty to meth trafficking in the second degree and the other counts. During the colloquy between Warner and the circuit court (the Hon. Judge Karen Ahn presided), the circuit court went over the possibility of “authorized fines” but did not specify or inform Warner about court fees and other monetary assessments. The guilty plea was accepted and he was sentenced to a total of 10 years imprisonment. The circuit court did not impose a fine, but levied fees: a $1,420 crime victim compensation fee, $1,420 drug demand reduction assessment, $7,500 methamphetamine trafficking restitution and reimbursement, and a fee of up to $500 for a DNA analysis. The sentencing court made no finding that Warner could afford to pay any of these fees at the time o...

State v. Kealoha (HSC March 15, 2018) Background. Kristopher Kealoha was charged with multiple offenses in three different case numbers. He pleaded guilty to all charges in exchange for an open five-year term of imprisonment running concurrent to each other. The circuit court pursuant to HRPP Rule 11 agreed to bind itself to the agreement. At the change-of-plea hearing and colloquy, Kealoha repeatedly said that as long he gets the open five year term “I’m good. I’m good with that.” No one discussed restitution. At sentencing, everyone confirmed the plea agreement for prison. The court, however, ordered more than $4,500 in restitution. Kealoha was surprised and astounded at having to pay for the restitution. Shortly after sentencing, counsel withdrew and new counsel was appointed. Kealoha appealed. Restitution is part of the “Maximum Penalty Provided by law.” Before accepting the defendant’s guilty or no-contest plea, the court is required to apprise the defendant in open ...

State v. DeMello (HSC November 2, 2015) Background. Lawrence DeMello was charged with harassment and trespassing. He was found guilty after a bench trial. At trial, the complainant testified about an altercation he had with DeMello. Subsequently, the District Court held two evidentiary hearings on restitution claims. Again, the complainant testified about the altercation and included testimony about experiencing chronic pain, blurred vision, and having difficulty standing. She also testified that because of these injuries, she missed work as a hairdresser for ten days. She claimed lost wages in the amount of $1,155.12. DeMello argued that the lost wages were not part of the criminal restitution claim. The district court disagreed and ordered the lost wages as restitution. DeMello appealed the ICA vacated the order and held that lost wages were not compensable. The State petitioned the HSC. Restitution and Lost Wages . “The court shall order the defendant to make restitution fo...

OVERRULED! State v. DeMello (ICA August 27, 2013) Background. Lawrence DeMello was charged with harassment and simple trespass. At trial, Alex Kelekoma testified that he was married to Carleen Kelekoma. His ex-wife, Cherilyn Kelekoma, lived with her boyfriend, DeMello. One day there was a dispute over picking up Alex’s son between the couples. Alex called DeMello to talk about it. DeMello was argumentative, but calm. Carleen took the phone and started talking to DeMello, and according to Carleen, DeMello hung up on her. Then Cherilyn called and Carleen answered the phone. Carleen said to her that she didn’t do anything to him. A few minutes later, Alex saw DeMello in front of his house. Alex went outside, DeMello hopped the gate. Alex testified that DeMello approached Carleen and was very aggressive. Cherilyn showed up and approached Carleen. It looked to Alex like Cherilyn was going to attack Carleen so he got in between the women. Cherilyn was still trying to go for Carleen and...

State v. Domingo (ICA September 11, 2009) Background. Domingo was indicted for one count of Accidents Involving Death or Serious Bodily Injury (HRS § 291C-12); specifically, that Domingo failed to stop his car at the scene of the accident and breached his duty to remain on the scene pursuant to HRS § 291C-14. Domingo and Tomlin were driving in separate cars on the H-1 freeway. Tomlin crossed his line and sideswiped Domingo, which caused both cars to crash into the guard rail. Tomlin's car flipped on its side and Tomlin died. Domingo's car flipped onto its roof. Domingo got out of the car, walked to the side of the freeway, and took off into the bushes. Approximately 30 minutes later, he returned to the scene. Domingo pleaded no contest and moved for a deferred acceptance of no contest plea, which was not opposed. The circuit court sentenced Domingo to five years probation and denied the motion for DANC. The circuit court ordered restitution in the amount of $13,225...

OVERULLED!!! State v. Tuialii (ICA June 30, 2009) Background. Tuialii was charged with theft in the first degree (HRS § 708-839.5(1)(a)) based on an alleged transfer of about $76,000 from his employer's account to his personal account. Tuialii pleaded no contest. The no-contest plea form stated that various penalties, including restitution, could be imposed by the court. The circuit court, however, did not mention restitution during his change-of-plea colloquy. At his sentencing, the circuit court, upon the State's recommendation, ordered that Tuialii pay full restitution. The circuit court entered a free-standing order of restitution. Tuialii filed a motion pursuant to Hawai'i Rules of Penal Procedure (HRPP) Rule 35 on the grounds that he did not change his plea knowingly, voluntarily, and intelligently. The motion was denied and Tuialii appealed. No Rule 40 Petition, no Remand for Withdrawal. Tuialii argued that because the circuit court failed to mention...