*** NOT FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
Electronically Filed
Supreme Court
SCWC-11-0000367
27-FEB-2014
11:04 AM
SCWC-11-0000367
IN THE SUPREME COURT OF THE STATE OF HAWAI#I
STATE OF HAWAI#I,
Respondent/Plaintiff-Appellant,
vs.
PETER DELA CRUZ,
Petitioner/Defendant-Appellee.
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-11-0000367; CASE NO. 1P511-00408)
MEMORANDUM OPINION
(By: Recktenwald, C.J., Nakayama, Acoba, McKenna and Pollack, JJ.)
This case concerns the District Court of the First
Circuit’s (district court) dismissal of the charge against
Petitioner/Defendant-Appellee Peter Dela Cruz (Dela Cruz) of
abuse of family or household members. The State appealed to the
Intermediate Court of Appeals (ICA), and the ICA concluded that
the district court plainly erred in dismissing the charge for
lack of jurisdiction. The ICA vacated the order of dismissal and
remanded the case for further proceedings. We conclude that the
*** NOT FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
ICA did not need to apply the plain error standard of review
because the State preserved the error by timely appealing to the
ICA. We otherwise affirm the ICA’s January 24, 2013 Summary
Disposition Order (SDO) and its March 15, 2013 Judgment on Appeal
vacating the district court’s March 30, 2011 order of dismissal.
I. BACKGROUND
On March 28, 2011, Dela Cruz was charged via complaint
with abuse of family or household members, in violation of
Hawai#i Revised Statutes (HRS) § 709-906(1) (Supp. 2010)1,
resisting an order to stop a motor vehicle, in violation of HRS §
710-1027 (1993)2, and driving without a license, in violation of
1 HRS § 709-906(1) provided then, as it does now:
It shall be unlawful for any person, singly or in
concert, to physically abuse a family or household member or
to refuse compliance with the lawful order of a police
officer under subsection (4). The police, in investigating
any complaint of abuse of a family or household member, upon
request, may transport the abused person to a hospital or
safe shelter.
For the purposes of this section, “family or household
member” means spouses or reciprocal beneficiaries, former
spouses or reciprocal beneficiaries, persons who have a
child in common, parents, children, persons related by
consanguinity, and persons jointly residing or formerly
residing in the same dwelling unit.
2
HRS § 710-1027 provided then, as it does now:
(1) A person commits the offense of resisting an order to
stop a motor vehicle if the person intentionally fails to
obey a direction of a law enforcement officer, acting under
color of the law enforcement officer’s official authority,
to stop the person’s vehicle.
(2) Resisting an order to stop a motor vehicle is a misdemeanor.
2
*** NOT FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
HRS § 286-102(a) (Supp. 2010)3. On March 30, 2011, Dela Cruz
appeared in district court on the abuse of family or household
members charge.4 During defense counsel’s oral motion to release
Dela Cruz on his own recognizance, the district court stated: “I
don’t see that I have jurisdiction in the case. I don’t think I
can do anything on it. Would you agree that this doesn’t belong
before me?” The prosecution stated: “I agree that I’m not sure
why this is here.” The district court suggested that Dela Cruz
move to dismiss the case and then stated that it would dismiss
the case. Later that day, the district court entered its Notice
of Entry of Judgment and/or Order dismissing with prejudice the
charge of abuse of family or household members.
On April 15, 2011, the State filed a motion for
reconsideration, asking the court to dismiss the charge of abuse
of family or household members without prejudice. The State
argued that the district court had jurisdiction over the charge
due to the provisions of HRS § 604-8(b) (Supp. 2010) granting the
district court “concurrent jurisdiction with the family court
3
HRS § 286-102(a) provided then, as it does now:
(a) No person, except one exempted under section 286-105,
one who holds an instruction permit under section 286-110, one who
holds a provisional license under section 286-102.6, one who holds
a commercial driver’s license issued under section 286-239, or one
who holds a commercial driver’s license instruction permit issued
under section 286-236, shall operate any category of motor
vehicles listed in this section without first being appropriately
examined and duly licensed as a qualified driver of that category
of motor vehicles.
4 The Honorable Christopher J. McKenzie presided.
3
*** NOT FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
of . . . any violation of section 709-906 when multiple offenses
are charged and at least one other offense is a criminal offense
within the jurisdiction of the district courts.”5 In his
memorandum of law in opposition to the State’s motion for
reconsideration, Dela Cruz argued that the district court lacked
the requisite jurisdiction to reconsider an order dismissing
charges against a criminal defendant.6
At the April 27, 2011 hearing on the State’s motion for
reconsideration, the district court acknowledged that it had
erred in dismissing the charge for lack of jurisdiction.
However, the court ultimately denied the State’s motion for
reconsideration of the order “based on the arguments raised by
the defense counsel in her memorandum.”7
On April 29, 2011, the State filed a timely notice of
appeal to the ICA. In its opening brief, the State contended
5
Dela Cruz does not dispute that the district court erred in
dismissing the charge. Because Dela Cruz was also charged with criminal
offenses over which the district court had jurisdiction -- resisting an order
to stop a motor vehicle, in violation of HRS § 710-1027, and driving without a
license, in violation of HRS § 286-102(a) –- the district court had
jurisdiction over the charge of abuse of family or household members pursuant
to HRS § 604-8(b).
6 Dela Cruz also argued that, were he re-prosecuted for the charge
of abuse of family or household members, this would violate HRS § 701-109(2)
(1993) and would constitute double jeopardy. Considering this issue, the ICA
held that double jeopardy did not bar the ICA from vacating the district
court’s judgment and remanding the case for further proceedings “[b]ecause the
[d]istrict [c]ourt’s dismissal of the charge for lack of jurisdiction did not
constitute an acquittal.” Dela Cruz has not reprised his argument regarding
HRS § 701-109(2) before this court.
7 The district court actually stated that it granted the motion for
reconsideration in part, granting the State’s concurrent motion to correct the
court’s March 30, 2011 minutes.
4
*** NOT FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
that the district court erred in granting Dela Cruz’s oral motion
to dismiss for lack of jurisdiction. The State argued that the
district court had jurisdiction over the charge of abuse of
family or household members pursuant to HRS § 604-8(b).
Dela Cruz responded that because the State failed to
object to the dismissal during the initial hearing, the alleged
error may be reviewed only for plain error, which “is not
applicable in the instant case.”
The ICA concluded that, pursuant to HRS § 709-906(1),
the district court erred in dismissing with prejudice the charge
against Dela Cruz for abuse of family or household members. The
ICA stated: “Under the circumstances of this case, we conclude
that it is appropriate to reach the State’s challenge to the
[d]istrict [c]ourt’s dismissal of the charge with prejudice under
the plain error standard.” Furthermore, the ICA stated that
because it had vacated the district court’s judgment, there was
no need to address whether the district court erred in denying
the State’s motion for reconsideration.
II. DISCUSSION
On appeal, an appellant must note where in the record
an alleged error was objected to or brought to the attention of
the trial court. Hawai#i Rules of Appellate Procedure (HRAP)
28(b)(4). While plain error may be noticed even if the error was
not raised in the trial court, “our power to deal with plain
5
*** NOT FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
error is one to be exercised sparingly and with caution because
the plain error rule represents a departure from a presupposition
of the adversary system –- that a party must look to his or her
counsel for protection and bear the cost of counsel’s mistakes.”
State v. Nichols, 111 Hawai#i 327, 336, 141 P.3d 974, 983 (2006)
(quoting State v. Kelekolio, 74 Haw. 479, 515, 849 P.2d 58, 74-75
(1993)).
However, we need not reach the question of whether
plain error may be applied. The State’s appeal of this issue to
the ICA was sufficient to preserve the error. Here, there was no
need for the ICA to apply a plain error analysis because the
State had no opportunity to object to the district court’s
dismissal of the case with prejudice prior to the district
court’s order.
We therefore affirm the ICA’s March 15, 2013 judgment
on appeal vacating the district court’s order of dismissal and
remand this case to the district court for further proceedings
consistent with this opinion.
DATED: Honolulu, Hawai#i, February 27, 2014.
James S. Tabe /s/ Mark E. Recktenwald
for petitioner
/s/ Paula A. Nakayama
Stephen K. Tsushima
for respondent /s/ Simeon R. Acoba, Jr.
/s/ Sabrina S. McKenna
/s/ Richard W. Pollack
6