State v. Kealoha.

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Electronically Filed
Supreme Court
SCWC-14-0001195
15-MAR-2018
09:49 AM
IN THE SUPREME COURT OF THE STATE OF HAWAII

---oOo---
________________________________________________________________

STATE OF HAWAII,
Respondent/Plaintiff-Appellee,

vs.

KRISTOPHER KEALOHA,
Petitioner/Defendant-Appellant
(CAAP-14-1195 and CAAP-14-1196;
CR. NOS. 12-1-0224 and 12-1-0387)

and

STATE OF HAWAII,
Respondent/Plaintiff-Appellee,

vs.

KRISTOPHER KANE KEALOHA,
Petitioner/Defendant-Appellant
(CAAP-14-1197; CR. NO. 13-1-0813)

________________________________________________________________

SCWC-14-0001195

CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS

MARCH 15, 2018

RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.

OPINION OF THE COURT BY McKENNA, J.
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I. Introduction

The issue at the core of this appeal is whether courts must

advise defendants that restitution is a possible consequence of

conviction before accepting a guilty or no contest plea.

Petitioner Kristopher Kealoha (“Kealoha”) appeals the Circuit

Court of the First Circuit’s (“circuit court”) Judgments of

Conviction and Sentence in three criminal cases.1 In a Hawai‘i

Rules of Penal Procedure (“HRPP”) Rule 11 plea agreement with

the State of Hawai‘i (“State”) to which the circuit court agreed

to be bound, Kealoha agreed to plead guilty in all three cases,

provided that he would be sentenced to serve concurrent terms of

imprisonment, the longest of which would be five years.

On appeal, Kealoha asserts the circuit court violated that

agreement by also sentencing him to pay restitution. He argues

he should be resentenced in conformity with his plea agreement,

without being required to pay restitution. He alternatively

argues he should be allowed to withdraw his guilty plea. The

Intermediate Court of Appeals (“ICA”) disagreed and affirmed the

circuit court in its Summary Disposition Order, State v.

Kealoha, Nos. CAAP-14-0001195, CAAP-14-0001196, CAAP-14-0001197,

at 2 (App. Apr. 28, 2017) (SDO).

1
The Honorable Dexter D. Del Rosario presided.

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On certiorari, Kealoha asserts that the ICA erred in

affirming the convictions and not granting him the relief he

requested. His appellate counsel also requests that we review

the ICA’s July 17, 2017 Order Approving in Part and Denying in

Part Defendant-Appellant’s Request for Attorney’s Fees and Costs

(“ICA’s July 17, 2017 order”) to the extent it reduced his

request for attorney’s fees.

For the reasons stated below, we hold that because

restitution is part of the “maximum penalty provided by law” and

is a direct consequence of conviction, defendants must be

appropriately advised and questioned in open court regarding

their understanding of this possibility before a court can

accept their pleas. In so holding, we overrule in part the

ICA’s opinion in State v. Tuialii, 121 Hawai‘i 135, 214 P.3d 1125

(App. 2009), cert. denied, 2010 WL 60962. Although the circuit

court did not conduct a proper colloquy in Kealoha’s case,

because Kealoha never filed an appropriate motion in the circuit

court, we affirm his convictions without prejudice to him filing

a HRPP Rule 40 petition in the circuit court. We also partially

grant appellate counsel’s request for an increased award of

attorney’s fees for his work before the ICA.

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II. Background

A. Circuit Court Proceedings

From 2012 to 2013, Kealoha was charged with a number of

offenses in three separate criminal cases. On February 10,

2012, in Cr. No. 12-1-224, Kealoha was charged with one count of

Assault in the Second Degree, in violation of HRS § 707-711

(1)(a) and/or §707-711(1)(b) and/or §707-711(1)(d).2 On March

12, 2012, in Cr. No. 12-1-387, Kealoha was charged with one

count of each of the following: Unauthorized Control of a

Propelled Vehicle in violation of HRS § 708-836, Promoting a

Dangerous Drug in the Third Degree in violation of HRS § 712-

1246, Promoting a Detrimental Drug in the Third Degree in

violation of HRS § 712-1249, Resisting Arrest in violation of

HRS § 710-1026(1)(a), Driving Without a License in violation of

HRS § 286-102, Accidents Involving Bodily Injury in violation of

HRS § 291C-12.6, and Resisting an Order to Stop a Motor Vehicle

in violation of HRS § 710-1027.3 On June 7, 2013, in Cr. No. 13-

1-813, Kealoha was charged with one count of Assault in the

Third Degree, in violation of HRS § 707-712(1)(a).4

2
This case was designated as CAAP-14-1195 on appeal.
3
This case was designated as CAAP-14-1196 on appeal.
4
This case was designated as CAAP-14-1197 on appeal.

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1. Change of plea hearing

On May 28, 2014, Kealoha pled guilty to all counts in all

three cases. At the change of plea hearing, Kealoha indicated

that he would prefer to go to trial if the court did not bind

itself to his plea agreement with the State:

[THE COURT]: You want to plead guilty in all cases as to
all counts?
[THE DEFENDANT]: If there’s a deal, Your Honor. If this is
a Rule 11, you know what I mean? I don’t understand exactly
everything. But if -- if I’m pleading guilty and it’s a
Rule 11 and everybody going give me one open 5 max, that’s
it, for everything, then, yeah. Sure, I like take that
deal. But, if it’s not, Your Honor, I going go trial.

The circuit court then confirmed the existence and terms of the

plea agreement with Kealoha’s counsel and the State:

THE COURT: What is the plea agreement?
[DEFENSE COUNSEL]: Everything concurrent.
THE COURT: And he gets the open term and everything
concurrent?
[DEFENSE COUNSEL]: Yeah.
THE COURT: I will bind myself to this agreement.
THE DEFENDANT: The open term of 5 years max, that’s it,
for everything?
THE COURT: And I’m going to make it altogether concurrent.
THE DEFENDANT: Right.
. . . .
THE DEFENDANT: Judge -- Your Honor, again, I know you the
top guy on this, but is the prosecutor, everybody on the
same page, you know what I mean?
THE COURT: Hang on.
[THE STATE]: I’m sorry, Your Honor.
THE COURT: Go ahead.
[THE STATE]: And I did -- I should have clarified. I did
orally commit myself to this. I haven’t signed, but we did
-- we have discussed this, and I -- I have agreed.
THE COURT: Okay.
. . . .
[THE COURT:] He just said he’s agreed to the open 5.
[THE DEFENDANT:] And that’s it? Max? Open 5 max for all
charges concurrent, again?
[THE COURT:] For all Class C felonies, I going give you 5
years, and I going have you serve it concurrently, at the
same time.

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Kealoha orally confirmed that he signed the change of plea form

for each case. The change of plea forms contained the following

boilerplate language in paragraph six:

6. I understand that the court may impose any of the
following penalties for the offense(s) to which I now
plead: the maximum term of imprisonment, any
extended term of imprisonment, and any mandatory
minimum term of imprisonment specified above;
consecutive terms of imprisonment (if more than one
charge); restitution; a fine; a fee and/or
assessment; community service; probation with up to
one year of imprisonment and other terms and
conditions.

Attached to each of the change of plea forms were documents

prepared by counsel labelled “Exhibit A,” which contained a

brief admission of guilt with respect to each charge and a

statement that Kealoha reviewed and understood the contents of

the change of plea form. When asked whether he reviewed the

forms with his attorney, Kealoha replied, “[h]e read it to me,

Your Honor. Yes.” Kealoha confirmed that he understood what was

read to him, and that he understood the charges against him.

The court explained, and Kealoha stated he understood, that

based on the plea agreement Kealoha would be sentenced to a

five-year term of imprisonment in Cr. No. 12-1-387, a five-year

term in Cr. No. 12-1-224, and a one-year term in Cr. 13-1-813.

For the non-felony charges in Cr. 12-1-387, the court indicated

that it would impose lesser jail sentences to run concurrently

to the five-year terms for the felony charges, and Kealoha

stated that he understood. Finally, Kealoha acknowledged that

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he still wanted to plead guilty, and acknowledged that he would

be giving up the right to a trial, stating: “Your Honor, as long

as it’s a 5 max, I’m good. I’m good with that.”

Restitution was not discussed at the change of plea

hearing.

2. Sentencing hearing

The sentencing hearing was held on August 20, 2014.

After Kealoha addressed the court, the circuit court confirmed

the terms of the plea agreement with his counsel:

THE COURT: My understanding is that the plea agreement
calls for an open term of incarceration to be served
concurrently with each other.
[DEFENSE COUNSEL]: Yes, everything concurrent that hadn’t
-- some of them have been served already, too.

The State did not offer any corrections to these statements. In

addition to the terms of imprisonment, however, the court then

also ordered Kealoha to pay restitution in the amount of $633.33

for Cr. No. 12-1-224 and $4,140.05 for Cr. No. 12-1-387. No

restitution was ordered in Cr. No. 13-1-813.5

After the circuit court announced its sentence, Kealoha

expressed concerns about being able to pay restitution:

THE DEFENDANT: I don’t know how I going -- excuse me, Your
Honor, but I don’t know how I going pay this. I cannot
just do time instead of restitution or just make more --
THE COURT: You can talk to your lawyer about judgments.
THE DEFENDANT: You know what I mean?
[DEFENSE COUNSEL]: We talked about that.
THE DEFENDANT: This guy doesn’t really like me that much.

5
The circuit court waived the Crime Victim Compensation Fee in each of
the three cases.

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THE COURT: Mr. Kealoha, you cannot pay what you don’t
have.
THE DEFENDANT: That’s what I’m saying. I feel I cannot
pay what I don’t have, so would just be more logical if I
just do it with my time. You know what I mean?
[DEFENSE COUNSEL]: You’re doing the time either way so --
THE DEFENDANT: Hold on, hold on, hold on. That way, one
day -- ‘cause where I starting today, I going get my life
on track, I go outside, get one job. You know what I mean?
I just like be free from anything that going hinder my life
in the future. You know what I’m saying, right?
Understand?
THE COURT: You can talk to [defense counsel].
THE DEFENDANT: Again, I reiterate, this guy doesn’t like
me.
[DEFENSE COUNSEL]: Whatever.

The circuit court entered a Judgment of Conviction and Sentence

in each of Kealoha’s cases on August 20, 2014. Counsel

subsequently withdrew as Kealoha’s attorney,6 and substitute

counsel was appointed for appeal. Kealoha did not file any

post-sentence motion with the circuit court to set aside the

restitution order or withdraw his plea.

6
Counsel asserted in his motion to withdraw his belief that Kealoha’s
claims on appeal were frivolous. Under Hawaiʻi law, this basis for withdrawal
was inappropriate. In Anders v. California, 386 U.S. 738 (1967), the United
States Supreme Court described with approval what is now known as an “Anders
Brief,” a brief that identifies any appealable issues but allows an attorney
to move to withdraw as counsel and advise the court that his or her client’s
claims are frivolous. In re Mohr, 97 Hawai‘i 1, 7, n.4, 32 P.3d 647, 653, n.4
(2001) (citing Anders, 386 U.S. at 744). We disapprove of so-called “Anders
briefs.” Mohr, 97 Hawai‘i at 7, 32 P.3d at 653. Rather, “[w]e think the
better policy is to require counsel to remain an advocate for the client,”
and leave evaluation of the frivolity of claims to the court. Id.
Even if arguments on appeal are frivolous from counsel’s perspective,
however, we have held that “this court will not sanction a court-appointed
attorney if, after taking into account the totality of the circumstances,
arguments raised reflect zealous advocacy on behalf of the client.” Id.; see
Maddox v. State, 141 Hawai‘i 196, 204, 407 P.3d 152, 160 (2017) (quoting Mohr,
97 Hawai‘i at 7, 32 P.3d at 653) (reiterating that counsel should remain an
advocate for the client and has a duty to pursue an appeal, even if
frivolous, if the criminal defendant so chooses).

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B. ICA Proceedings

On April 10, 2015, Kealoha’s three cases were consolidated

before the ICA.7 In his opening brief, Kealoha argued that

restitution was never part of the plea agreement to which the

circuit court agreed to be bound, and therefore he should be

permitted to withdraw his guilty plea because he did not get the

benefit of his bargain pursuant to the clear and unambiguous

terms of the plea agreement. Kealoha asserted that, because the

change of plea form did not include any specific amounts of

restitution to be imposed at sentencing, his guilty plea was not

knowing, intelligent and voluntary as it deviated from the

specific terms of the plea agreement.

In its answering brief, the State argued Kealoha filed no

motion below to withdraw his guilty plea or to correct his

“illegal” sentence on the ground his plea was infirm, and that

Tuialii and HRPP Rule 32(d) required him to file such a motion

within ten days after imposition of his sentence. The State

suggested that, like the defendant in Tuialii, Kealoha should

have filed an HRPP Rule 40 motion after the ten-day period for

an HRPP Rule 32(d) motion had elapsed. The State contended that

even if Kealoha had filed a motion to withdraw his plea, Tuialii

holds that restitution is a collateral consequence of a plea,

and therefore the trial court was not required to apprise him
7
The cases were consolidated under CAAP-14-1195.

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that he could be subject to a free-standing order of

restitution.

Additionally, the State asserted Kealoha understood and was

actually properly advised of the consequences of his plea, based

on the contents of the plea form and the exhibit attached to the

plea form. Specifically, the State argued that paragraph six of

the change of plea forms lists restitution as a possible

penalty, among other penalties, and that Exhibit A to Kealoha’s

forms states that Kealoha reviewed and understood the change of

plea forms, including paragraph 6.

In its SDO, the ICA held the circuit court did not abuse

its discretion in ordering restitution because restitution was

statutorily required under HRS §§ 706-646(2)(2014) and 706-

605(7)(2014). Kealoha, SDO at 2 (citing State v. Feleunga, No.

30450, 3 (App. Nov. 15, 2011) (SDO) (finding no abuse of

discretion by the circuit court when the plea agreement did not

prohibit the imposition of restitution and restitution was

required by HRS § 706-646)). The ICA determined that Kealoha

and the State came to an agreement only as to terms of

incarceration, based on the fact that Exhibit A to the change of

plea forms did not mention any other possible penalties.

Kealoha, SDO at 3. Further, the ICA noted that neither Kealoha

nor his attorney “ever objected to the imposition of restitution

as outside the plea agreement” at the sentencing hearing,

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despite Kealoha’s protestations about his “ability to pay a

judgment of restitution, during which defense counsel stated

that ‘we talked about that,’ indicating that it was not a

surprise.” Id. For these reasons, the ICA concluded “the plea

agreement did not expressly include restitution, but did not

prohibit it and in fact noted the possibility of restitution

being imposed.” Id.

Relying on its decision in Tuialii, the ICA also concluded

that restitution is a collateral consequence of a no contest or

guilty plea, and therefore Kealoha’s plea was not rendered

involuntary by the circuit court’s failure to warn him about

restitution. Kealoha, SDO at 2 (citing Reponte v. State, 57

Haw. 354, 363-64, 556 P.2d 577, 584 (1976); Tuialii, 121 Hawaiʻi

at 139, 214 P.3d at 1129). The ICA’s Judgments on Appeal were

filed on July 26, 2017.

Kealoha’s court-appointed appellate attorney subsequently

filed a request for appellate attorney’s fees and costs seeking

$59.84 in costs and $7,425.00 in attorney’s fees. In its July

17, 2017 order, the ICA majority summarily granted counsel

attorney’s fees in the reduced amount of $5,000 and costs in the

reduced amount of $54.90.8 Judge Ginoza dissented, stating that

she would have granted the requested attorney’s fees.

8
Appellate counsel’s postage cost request of $4.94 was “denied without
prejudice for failure to provide copies of receipts.”

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C. Application for Certiorari

Kealoha seeks review of the ICA’s SDO upholding the circuit

court’s order of restitution, as well as the July 17, 2017 ICA

order with respect to the reduction of appellate counsel’s fees

for work before the ICA.

On the issue of restitution, Kealoha again asserts the

circuit court deviated from the plea agreement by imposing

restitution, and that, therefore his plea was not knowingly,

intelligently, and voluntarily made. He argues “restitution is

. . . a direct term of the sentence that is to be imposed upon a

defendant pursuant to HRS § 706-605,” and therefore Kealoha

should have been informed, prior to the acceptance of his guilty

plea, that restitution could be ordered.

As a remedy for the alleged improper inclusion of

restitution in the sentence, he requests remand to the circuit

court for resentencing or withdrawal of his guilty plea.

Kealoha asks this court “to adopt a bright line rule that

requires any restitution to be imposed at sentencing, be clearly

included in either the change of plea form and/or the change of

plea colloquy with a defendant.”

With respect to his request for attorney’s fees and costs

before the ICA, appellate counsel asserts he was entitled to

fees exceeding the statutory cap of $5000 for an appellate

proceeding because he reviewed dockets and filed documents in

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each of Kealoha’s three cases before they were consolidated on

appeal, and because he filed a motion for temporary relief in

the consolidated case, among other things. He argues that three

separate appeals “would allow a statutory cap in each case of

$5,000.00 for a total of $15,000.00,”9 and therefore “the

requested $7,425.00 was reasonable.”

III. Standards of Review

A. Questions of Law

Questions of law are reviewable de novo under the

right/wrong standard of review. State v. Jess, 117 Hawaiʻi 381,

391, 184 P.3d 133, 143 (2008).

B. Attorney’s Fees

This court reviews a lower court’s award of attorneys’ fees
for abuse of discretion. Allstate Ins. Co. v. Pruett, 118
Hawaiʻi 174, 179, 186 P.3d 609, 614 (2008) (citation
omitted). “The trial court abuses its discretion if it
bases its ruling on an erroneous view of the law or on a
clearly erroneous assessment of the evidence.” Id. (quoting
Lepere v. United Pub. Workers, 77 Hawaiʻi 471, 473, 887 P.2d
1029, 1031 (1995)). In other words, “[a]n abuse of
discretion occurs where the trial court has clearly
exceeded the bounds of reason or disregarded rules or
principles of law or practice to the substantial detriment
of a party litigant.” Id. (quoting TSA Int’l Ltd. v.
Shimizu Corp., 92 Hawaiʻi 243, 253, 990 P.2d 713, 723
(1999)).

Hart v. Ticor Title Ins. Co., 126 Hawaiʻi 448, 455, 272 P.3d

1215, 1222 (2012) (brackets in original).
9
Under HRS § 802-5(b) (2001), court-appointed counsel shall receive
“reasonable compensation . . . based on the rate of $90 an hour[.]” The
maximum allowable fee for an appeal is $5,000. HRS § 802-5(b)(4). However,
“[p]ayment in excess of any maximum . . . may be made whenever the court in
which the representation was rendered certifies that the amount of the excess
payment is necessary to provide fair compensation and the payment is approved
by the administrative judge of that court.” HRS § 802-5(b).

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With respect to court-appointed counsel, this court has

said that “[u]nder HRS § 802-5, requests for fees should be

granted if the court certifies that the requesting attorney has

met his or her burden to prove that the fees requested are for

hours expended and that the hours expended were ‘reasonable’ for

the services rendered.” In re Mohr, 97 Hawai‘i 1, 5, 32 P.3d

647, 651 (2001). When a fee request is reduced, the judge

reducing the request is required to set forth reasons for the

reduction, to enable appellate review of excess fee awards. In

re Bettencourt, 126 Hawaiʻi 26, 32, 265 P.3d 1122, 1128 (2011).

IV. Discussion

The transcript of Kealoha’s change of plea hearing makes

clear that the circuit court did not inform Kealoha that

restitution could be imposed as part of his sentence. The

question before us is whether the circuit court had an

obligation to advise him of such a fact before accepting his

guilty plea.

A. Trial courts must advise defendants of the possibility of
restitution being a part of their sentences before
accepting a change of plea.

For the reasons below, we conclude that a court accepting a

guilty or no contest plea is required by the HRPP and our

constitution to advise the defendant that restitution is a

possible consequence of conviction.

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1. As part of the “maximum penalty provided by law,”
restitution must be part of the advisement and
colloquy held in open court.

Under HRPP Rule 11(c)(2)(2007),10 the sentencing court is

required to advise defendants orally in open court of, and

ensure they understand, “the maximum penalty provided by law . .

. which may be imposed for the offense to which the plea is

offered” before the court may accept a guilty or no contest

plea. In general, HRS § 706-605 (2016)11 lays out the

“Authorized disposition of convicted defendants” under the

Hawaii Penal Code. In relevant part, HRS § 706-605 provides as

follows:

(1) Except as provided in . . . subsections (2) [Probation
and Imprisonment], (6) [Compensation Fees], and (7)
[Restitution] . . . the court may sentence a convicted
defendant to one or more of the following dispositions:
(a) To be placed on probation[;]
(b) To pay a fine[;]
(c) To be imprisoned[;] or
(d) To perform services for the community[.]

. . . .

10
At the time Kealoha pled guilty, the 2007 version of HRPP Rule 11 was
in effect. The language at issue here was not changed in the 2014 amendment
of the rule. HRPP Rule 11(c)(2007) provided, in relevant part:

The court shall not accept a plea of guilty or nolo
contendere without first addressing the defendant
personally in open court and determining that the defendant
understands the following:
. . . .
(2) the maximum penalty provided by law, and the
maximum sentence of extended term of imprisonment, which
may be imposed for the offense to which the plea is
offered[.]
11
The language relevant to this appeal became effective in 2006, and was
not altered in the 2016 amendment to this section.

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(7) The court shall order the defendant to make
restitution for losses as provided in section 706-646. In
ordering restitution, the court shall not consider the
defendant’s financial ability to make restitution in
determining the amount of restitution to order. The court,
however, shall consider the defendant’s financial ability
to make restitution for the purpose of establishing the
time and manner of payment.

(Emphasis added.)

At the time of Kealoha’s change of plea, HRS § 706-646

(2013) provided as follows:

§706-646 Victim restitution. (1) As used in this
section, “victim” includes any of the following:
(a) The direct victim of a crime including a
business entity, trust, or governmental entity;
(b) If the victim dies as a result of the crime, a
surviving relative of the victim as defined in chapter 351;
or
(c) A governmental entity that has reimbursed the
victim for losses arising as a result of the crime or paid
for medical care provided to the victim as a result of the
crime.

(2) The court shall order the defendant to make
restitution for reasonable and verified losses suffered by
the victim or victims as a result of the defendant’s
offense when requested by the victim. The court shall
order restitution to be paid to the crime victim
compensation commission in the event that the victim has
been given an award for compensation under chapter 351. If
the court orders payment of a fine in addition to
restitution or a compensation fee, or both, the payment of
restitution and compensation fee shall have priority over
the payment of the fine, and payment of restitution shall
have priority over payment of a compensation fee.

(3) In ordering restitution, the court shall not consider
the defendant’s financial ability to make restitution in
determining the amount of restitution to order. The court,
however, shall consider the defendant’s financial ability
to make restitution for the purpose of establishing the
time and manner of payment. The court shall specify the
time and manner in which restitution is to be
paid. Restitution shall be a dollar amount that is
sufficient to reimburse any victim fully for losses,
including but not limited to:
(a) Full value of stolen or damaged property, as
determined by replacement costs of like property, or the
actual or estimated cost of repair, if repair is
possible;
(b) Medical expenses; and

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(c) Funeral and burial expenses incurred as a
result of the crime.

(4) The restitution ordered shall not affect the right of
a victim to recover under section 351-33 or in any manner
provided by law; provided that any amount of restitution
actually recovered by the victim under this section shall
be deducted from any award under section 351-33.[12]

Thus, pursuant to HRS §706-646(2), if a “victim” as defined

in subsection (1) requests restitution, or if the crime victim

compensation fund has provided the victim with an award,

12
Changes to the 2013 version of HRS § 706-646 from the current version
(2014 & Supp. 2017) are reflected below, but these amendments do not affect
our analysis in this case:

§706-646 Victim restitution. (1) As used in this
section, “victim” includes any of the following:
. . . .
(d) Any duly incorporated humane society or duly
incorporated society for the prevention of cruelty to
animals, contracted with the county or State to enforce
animal-related statutes or ordinances, that impounds,
holds, or receives custody of a pet animal pursuant to
section 711-1109.1, 711-1109.2, or 711-1110.5; provided
that this section does not apply to costs that have already
been contracted and provided for by the counties or State.
(2) . . .If the court orders payment of a fine in addition
to restitution or a compensation fee, or both, the payment
of restitution and compensation fee shall be made pursuant
to section 706-651 [have priority over the payment of the
fine, and payment of restitution shall have priority over
payment of a compensation fee].
(3) . . .The court shall specify the time and manner in
which restitution is to be paid. While the defendant is in
the custody of the department of public safety, restitution
shall be collected pursuant to chapter 353 and any court-
ordered payment schedule shall be suspended. . . .
(4) In any criminal proceeding before any court, all money
deposited by the defendant as bail and not declared
forfeited shall be applied toward payment of any
restitution, fines, or fees ordered by the court in the
same case, consistent with the priorities in subsection
(2).
(5) The restitution ordered shall not affect the right of a
victim to recover under section 351-33 or in any manner
provided by law; provided that any amount of restitution
actually recovered by the victim under this section shall
be deducted from any award under section 351-33.

(Emphases added.)

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restitution for reasonable and verified losses must be ordered.

Therefore, whether or not it is ultimately ordered, restitution

is part of the “maximum penalty provided by law” and under HRPP

Rule 11(c)(2) sentencing courts must advise defendants that

restitution will be part of their sentences if the conditions of

HRS § 706-646 are met.13

The Federal Rules of Criminal Procedure (“FRCrP”) Rule 11

is explicitly in accord. Since 1985, FRCrP Rule 11 has included

restitution in the court’s mandatory plea advisements because

“restitution is deemed an aspect of the defendant’s sentence,”

according to the legislative history of the federal restitution

statute. Commentary to Fed. R. Crim. P. Rule 11(c)(1) (1985)

(citing S. Rep. No. 97-532, at 30-33 (1982) (Conf. Rep.)).

Indeed, restitution is just one of several items of which

federal courts are explicitly required to advise defendants

under FRCrP Rule 11(b)(1) (2013):14

13
Other jurisdictions with rules similar to our HRPP Rule 11 have come to
the same conclusion. See, e.g., Hayes v. State, 137 P.3d 475, 481 (Idaho Ct.
App. 2006) (“[R]estitution is a direct consequence of entering a guilty plea,
of which a defendant should be informed pursuant to Idaho Criminal Rule 11(c)
before his guilty plea is accepted.”); Keller v. State, 723 P.2d 1244, 1246–
47 (Wyo. 1986) (“From the viewpoint of a defendant in a criminal trial,
payment of restitution is as much a penalty as payment of a fine. Both
require the payment of money. Both are direct consequences of the plea. Both
are punishments authorized by law. Restitution, therefore, is part of the
“maximum possible penalty provided by law” for the purposes of Rule 15; and
we hold that Rule 15(c) requires the trial judge to inform a defendant of the
court's power to order restitution.”).
14
The Standing Committee on the HRPP may consider whether to amend HRPP
Rule 11 to set forth similarly detailed requirements.

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(1) Advising and Questioning the Defendant. Before the
court accepts a plea of guilty or nolo contendere, the
defendant may be placed under oath, and the court must
address the defendant personally in open court. During
this address, the court must inform the defendant of,
and determine that the defendant understands, the
following:
(A) the government’s right, in a prosecution for perjury or
false statement, to use against the defendant any
statement that the defendant gives under oath;
(B) the right to plead not guilty, or having already so
pleaded, to persist in that plea;
(C) the right to a jury trial;
(D) the right to be represented by counsel--and if
necessary have the court appoint counsel--at trial and
at every other stage of the proceeding;
(E) the right at trial to confront and cross-examine
adverse witnesses, to be protected from compelled self-
incrimination, to testify and present evidence, and to
compel the attendance of witnesses;
(F) the defendant’s waiver of these trial rights if the
court accepts a plea of guilty or nolo contendere;
(G) the nature of each charge to which the defendant is
pleading;
(H) any maximum possible penalty, including imprisonment,
fine, and term of supervised release;
(I) any mandatory minimum penalty;
(J) any applicable forfeiture;
(K) the court’s authority to order restitution;
(L) the court’s obligation to impose a special assessment;
(M) in determining a sentence, the court’s obligation to
calculate the applicable sentencing-guideline range and
to consider that range, possible departures under the
Sentencing Guidelines, and other sentencing factors
under 18 U.S.C. § 3553(a);
(N) the terms of any plea-agreement provision waiving the
right to appeal or to collaterally attack the sentence;
and
(O) that, if convicted, a defendant who is not a United
States citizen may be removed from the United States,
denied citizenship, and denied admission to the United
States in the future.

FRCrP Rule 11(b)(1)(A)-(O).

Although restitution is not specifically mentioned in HRPP

Rule 11(c), our rule requires the court to address “the

defendant personally in open court” to determine “that the

defendant understands the following” four items:

(1) the nature of the charge to which the plea is offered;
and

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(2) the maximum penalty provided by law, and the maximum
sentence of extended term of imprisonment, which may be
imposed for the offense to which the plea is offered; and

(3) that the defendant has the right to plead not guilty,
or to persist in that plea if it has already been made; and

(4) that if the defendant pleads guilty or no contest there
will not be a further trial of any kind, so that by
pleading guilty or no contest the right to a trial is
waived.

HRPP Rule 11(c)(1)-(4) (emphasis added). Although we have held

that there is no “ritualistic litany” to which sentencing courts

must adhere in order to fulfil their duties under HRPP Rule 11,

we have stated that we “cannot emphasize enough that all

procedural components of HRPP Rule 11 should actually be

complied with by . . . trial judges.” State v. Cornelio, 68

Haw. 644, 646, 727 P.2d 1125, 1127 (1986). This includes the

requirement that a trial court “address the defendant personally

in open court” to ensure the defendant understands the “maximum

penalty provided by law,” which includes restitution.

In this case, the circuit court never orally addressed

Kealoha in open court to determine whether he understood that

restitution could be imposed as part of his sentence. Thus,

there was no compliance with the requirement of HRPP Rule

11(c)(2).

The circuit court may have relied on the ICA’s previous

ruling in Tuialii that no oral advisement regarding restitution

is required; in that case, the ICA held that the sentencing

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court was not required by HRPP Rule 11(c)(2)(2007) to advise the

defendant that restitution could be imposed as part of his

sentence, 121 Hawaiʻi at 138-39, 214 P.3d at 1128-29, stating:

The Circuit Court orally advised Tuialii that the maximum
sentence that could be imposed for Theft in the First
Degree was ten years of imprisonment and a fine of $20,000.
Tuialii’s written no-contest-plea form, which he confirmed
he had read carefully and discussed with his attorney,
states that he may be subject to restitution. Indeed, in
later arguing for reconsideration of his sentence, Tuialii
argued that he was prepared to tender a check for $10,000
for a restitution payment “and has been doing everything he
can to get some money together.” The Circuit Court was not
required by HRPP Rule 11(c)(2) to further advise Tuialii
that restitution may be imposed as part of his sentence.
The Circuit Court complied with HRPP Rule 11.

121 Hawai‘i at 139, 214 P.3d at 1129. Likewise, in this case,

the State argued Kealoha knew and understood that restitution

could be imposed because paragraph six of Kealoha’s change of

plea forms listed restitution as a possible penalty, and Kealoha

indicated that he read and understood the forms, and the ICA

referenced this argument in its SDO. Kealoha, SDO at 3 n.6.

Paragraph six of Kealoha’s change of plea forms did indeed list

restitution as a penalty that may be imposed upon entry of a

guilty or no contest plea.

Contrary to the ICA’s rulings, however, the boilerplate

language in Kealoha’s change of plea forms, which included

reference to sentencing options inapplicable to Kealoha, is

insufficient to satisfy the court’s HRPP Rule 11(c)(2)

obligation to personally advise the defendant in open court of

the maximum penalty provided by law. The forms did not provide

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Kealoha the personal, oral colloquy required by HRPP Rule

11(c)(2).

Therefore, we hold that trial courts must include the

possibility of restitution in the oral colloquy required by HRPP

Rule 11(c)(2). We overrule Tuialii to the extent it held

otherwise.

2. Restitution is a direct consequence of
conviction.

A proper oral colloquy regarding any possible restitution

sentence is also required to satisfy a trial court’s duty to

ensure that a defendant’s change of plea is knowingly,

intelligently, and voluntarily made, with respect to the

consequences of the plea:

A trial judge is constitutionally required to ensure that a
guilty plea is voluntarily and knowingly entered. In
determining the voluntariness of a defendant’s proffered
guilty plea, the trial court should make an affirmative
showing by an on-the-record colloquy between the court and
the defendant wherein the defendant is shown to have a full
understanding of what the plea of guilty connotes and its
consequences.

State v. Krstoth, 138 Hawaiʻi 268, 273, 378 P.3d 984, 989 (2016)

(internal quotation marks and citations omitted). “Manifest

injustice occurs when a defendant makes a plea involuntarily or

without knowledge of the direct consequences of the plea.”

State v. Nguyen, 81 Hawaiʻi 279, 292, 916 P.2d 689, 702 (1996).

We have also held, however, that “an accused need not be

informed prior to the acceptance of his guilty plea about every

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conceivable collateral effect the conviction might have.”15

Reponte, 57 Haw. at 364, 556 P.2d at 584.

The direct/collateral consequence framework is meant to

provide guidance to trial courts with respect to what they must

ensure defendants know in order to make constitutionally valid

pleas. In Nguyen, we looked to other jurisdictions’ law to

distinguish direct consequences from collateral ones:

A direct consequence is one which has a definite, immediate
and largely automatic effect on defendant’s punishment. The
failure to warn of . . . collateral consequences will not
warrant vacating a plea because they are peculiar to the
individual and generally result from the actions taken by
agencies the court does not control.

Nguyen, 81 Hawai‘i at 288, 916 P.2d at 698 (citing People v.

Ford, 657 N.E.2d 265, 267–68 (N.Y. 1995) (citations omitted)

(overruled on other grounds by People v. Peque, 3 N.E.3d 617,

636-37 (N.Y. 2013)).

In a footnote in Tuialii, citing our decision in State v.

Gaylord, 78 Hawai‘i 127, 890 P.2d 1167 (1995), the ICA opined

that treating restitution as a collateral consequence of a plea

would be “consistent with Hawai‘i case law, which views

restitution as a ‘quasi-civil’ compensatory action, an ‘adjunct

15
Previous cases have held that collateral consequences of conviction
include sex offender registration, Foo v. State, 106 Hawaiʻi 102, 114, 102
P.3d 346, 358 (2004), the possibility of deportation, Nguyen, 81 Hawaiʻi at
287, 916 P.2d at 697, and prohibitions on the ownership of firearms and
ammunition, Reponte, 57 Haw. at 364-65, 556 P.2d at 584. We note that courts
are required by law to advise all defendants of the possibility of
deportation at arraignment and change of plea. HRS §§ 802E-2, 802E-4; HRPP
Rules 10(e)(4), 11(d).

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of punishment of the offender,’ in contrast to a fine, which

advances punitive objectives.” 121 Hawai‘i at 139, n.2, 214 P.3d

at 1129, n.2 (citing Gaylord, 78 Hawai‘i at 150-54, 890 P.2d at

1190-94). The SDO in Kealoha’s case cited Tuialii as holding

that restitution was a collateral consequence of a guilty or no

contest plea. Kealoha, SDO at 3 (citing Tuialii, 121 Hawai‘i at

139, n.2, 214 P.3d at 1129, n.2).

While it is true that this court has distinguished “quasi-

civil” restitution from criminal fines, Tuialii’s

characterization of Gaylord is inaccurate. In State v. Murray,

63 Haw. 12, 621 P.2d 334 (1980), we recognized “a legislative

contemplation that [HRS § 706-605] should serve several

objectives, including retribution, rehabilitation, and

restitution.” 63 Haw. at 20, 621 P.2d at 339. We determined,

based on the legislative history of the 1975 amendment to HRS §

705-605, that “reparation of a direct victim” was not the only

purpose of restitution, and that instead the restitution

amendment had “a purpose and design that encompasses the

punishment and the rehabilitation of the offender.” 63 Haw. at

18-19, 621 P.2d at 339. “[R]estitution or reparation,” in our

view, serves “as an optional penal sanction” in the correctional

process. 63 Haw. at 15, 621 P.2d at 337.

In Gaylord, we criticized the way Murray “blurred the

distinction between criminal fines . . . and restitution” not

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because we thought restitution was not punitive, but because we

needed to make clear that payment of restitution, as a stand-

alone rehabilitative sentence, was “an insufficient basis for

the imposition of a prison term that is not appropriate on other

independent grounds.”16 Gaylord, 78 Hawai‘i at 152, 154, 890 P.2d

at 1192, 1194. While we stated that restitution, because of its

rehabilitative potential, was insufficient to justify imposing

consecutive terms of imprisonment, Gaylord did not actually

address whether restitution is a direct or a collateral

consequence of conviction.

We also did not address this issue in State v. Feliciano,

103 Hawaiʻi 269, 81 P.3d 1184 (2003), in which we held that the

sentencing court could not convert restitution originally

imposed as a condition of probation into a free standing order

to ensure the defendant paid restitution after his term of

probation ended. 103 Hawaiʻi at 275, 81 P.3d at 1190. In that

case, less than ten years after Gaylord, we reiterated that

“[r]estitution contains a rehabilitative component, as its

16
We looked to the legislative history of HRS § 706-605, Murray, and
relevant academic sources to conclude that restitution was rehabilitative in
nature, at least as far as it was “calculated to develop in the offender ‘a
degree of self-respect and pride in knowing that he or she has righted the
wrong committed.’” Gaylord, 78 Hawai‘i at 152, 890 P.3d 1192 (citing Stand.
Comm. Rep. No. 789, in 1975 Senate Journal, at 1132). Our discussion of
restitution in Gaylord was based on a previous version of HRS § 706-605
(Supp. 1992), which allowed sentencing courts to order restitution at their
discretion and limited that order to “an amount the defendant can afford to
pay.” 78 Hawaiʻi at 150, 890 P.2d at 1190 (citing HRS § 706-605(1)(d) (Supp.
1992)).

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purpose is not only to repay the person injured by the criminal

act, but also to develop in the offender ‘a degree of self-

respect and pride’ for having ‘righted a wrong committed.’” 103

Hawaiʻi at 272, 81 P.3d at 1187 (citing Murray, 63 Haw. at 19

n.11, 621 P.2d at 339 n.11). We summarized Gaylord as

recognizing “that restitution is ‘quasi-civil’ in nature because

it is designed to compensate the victim as an adjunct of

punishment.” Feliciano, 103 Hawaiʻi at 272, 81 P.3d at 1187

(emphasis added) (citing Gaylord, 78 Hawai‘i at 152, 890 P.2d at

1193). In acknowledging that restitution has “a rehabilitative

component” and provides compensation “as an adjunct of

punishment,” we reaffirmed that restitution is not solely

rehabilitative. See Feliciano, 103 Hawaiʻi at 272, 81 P.3d at

1187. But again, we did not determine whether restitution was a

direct or a collateral consequence of conviction.

Based on our analysis in Section IV(A)(1) above and for the

reasons explained below, we now hold that restitution is a

direct consequence of conviction.

In the most literal and plain meaning of the word “direct,”

restitution is a direct consequence of a guilty or no contest

plea, or of a finding of guilt. See Black’s Law Dictionary

(10th ed. 2014) (defining “direct” as “1. (of a thing) straight;

undeviating . . . 2. (of a thing or a person) straightforward .

. . 3. Free from extraneous influence; immediate[.]”). As

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discussed above, restitution is an authorized disposition of

convicted defendants under HRS § 706-605 — like imprisonment,

fees, and fines — and may be imposed only upon conviction.

Whether imposed by free standing order, or as a condition of

probation, restitution is part of the defendant’s sentence and

judgment of conviction. Restitution therefore “has a definite,

immediate and largely automatic effect on the defendant’s

punishment” because it is imposed by the court alongside the

defendant’s other punishments.17

Even when a sentencing court has bound itself pursuant to

HRPP Rule 11(f)(1)18 to a plea agreement that specifies the

penalties to be imposed without including restitution, the

17
Other jurisdictions have also reached this conclusion. See, e.g.,
Harris v. Superior Court, 222 Cal.Rptr.3d 192, 197 (2017) (“A consequence is
direct . . . if it has a definite, immediate and largely automatic effect on
the range of the defendant’s punishment . . . Victim restitution is a direct
consequence of the plea.”) (citations and internal quotations omitted);
Holland v. United States, 584 A.2d 13, 15 (D.C. 1990) (“[W]e have no
difficulty concluding that restitution is a direct consequence about which a
defendant should be warned.”); State v. Cameron, 633 P.2d 901, 905 (1981)
(“We conclude that restitution is a direct consequence of entering a guilty
plea and the sentencing court may not impose restitution upon a defendant who
pleads guilty, unless defendant is advised of that possibility prior to
entering his plea.”).
18
HRPP Rule 11(f)(1) provides:

The prosecutor and counsel for the defendant, or the
defendant when acting pro se, may enter into plea
agreements that, upon the entering of a plea of guilty or
no contest to a charged offense or to an included or
related offense, the prosecutor will take certain actions
or adopt certain positions, including the dismissal of
other charges and the recommending or not opposing of
specific sentences or dispositions on the charge to which a
plea was entered. The court may participate in discussions
leading to such plea agreements and may agree to be bound
thereby.

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sentencing court must advise a defendant of the possibility of a

restitution sentence when restitution could possibly be ordered,

as part of its obligation to advise the defendant of all

possible maximum penalties. Thus, as part of their

“constitutionally required” duty “to ensure that a guilty [or no

contest] plea is voluntarily and knowingly entered,” Krstoth,

138 Hawaiʻi at 273, 378 P.3d at 989 (internal quotation marks and

citations omitted), trial courts must advise defendants that

restitution may be ordered as part of their sentences.

In this regard, we note that under HRS § 706-647(1) (2000),

restitution orders may be enforced as though they were civil

judgments. Free standing orders of restitution are therefore

enforceable for ten years and can potentially be extended to

twenty years from the date of the judgment. See HRS § 657-5

(2001) (permitting “any judgment or decree” to extend no longer

than “twenty years from the date of the original judgment or

decree.”). Furthermore, the imposition of restitution can delay

the defendant’s satisfaction of other monetary punishments:

restitution must be paid before all other monetary sanctions,

including fines. See HRS § 706-651 (2016) (defining the order

of priority for payments made by a defendant).

In addition, since 2006, restitution has been a mandatory

disposition of convicted defendants whenever it is requested by

a victim and shown to be reasonable and verifiable, according to

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HRS § 706-605(7) as well as HRS § 706-646(2) (2016).19 The 2006

amendment also forbade sentencing courts from “consider[ing] the

defendant’s financial ability to make restitution in determining

the amount of restitution to order.” HRS § 706-605(7) (2006);

HRS § 706-646(2), (3) (2006). As a result, restitution must now

be imposed when the statutory conditions are met, even if the

defendant cannot pay and cannot develop “a degree of self-

respect and pride in knowing that he or she has righted the

wrong committed.” See Gaylord, 78 Hawai‘i at 152, 890 P.3d 1192

(citing Stand. Comm. Rep. No. 789, in 1975 Senate Journal, at

1132). In contrast, a defendant cannot be ordered to pay a fine

unless “[t]he defendant is or will be able to pay the fine[.]”

HRS § 706-641(3)(a) (1986). Thus, a restitution order, despite

its rehabilitative and compensatory functions, can have

significant and direct impacts on a defendant’s punishment.20

19
The language relevant to this appeal became effective in 2006, and was
not altered in the 2012, 2013, or 2016 amendments to this section; HRS § 706-
646(2) provides, in relevant part:

(2) The court shall order the defendant to make
restitution for reasonable and verified losses suffered by
the victim or victims as a result of the defendant’s
offense when requested by the victim. . . .
20
Gaylord is still good law; payment of restitution as a stand alone
rehabilitative sentence is still “an insufficient basis for the imposition of
a prison term that is not appropriate on other independent grounds.” 78
Hawai‘i at 154, 890 P.2d at 1194. However, we emphasize that —- as our case
law has always acknowledged —- restitution is a sentence with rehabilitative
and compensatory potential, but it is still a supplement to the defendant’s
punishment. See Gaylord, 78 Hawai‘i at 153, 890 P.2d at 1193 (“Restitution .
. . is ‘compensation for the victim’ as an adjunct of ‘punishment of the
(continued. . .)

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Therefore, with respect to restitution, the court must, at

a minimum, ensure the defendant understands the following before

accepting a change of plea: (1) the court must order restitution

for reasonable and verifiable losses requested by a “victim” or

when the crime victim compensation fund makes an award; (2) the

court cannot waive the restitution amount or convert it to

community service;21 and (3) unless the amount of restitution has

already been determined, the court cannot determine what a

possible restitution amount will be until a later time.

Based on the reasoning above, we also overrule Tuialii’s

holding that restitution is a collateral consequence of

conviction.22

(continued. . .)
offender[.]’”) (emphasis in original) (citing Murray, 63 Haw. at 15, 621 P.2d
at 337).
21
HRS § 706-644(4) (2000) provides:

If it appears that the defendant’s default in the payment
of a fee, fine, or restitution is not contumacious, the
court may make an order allowing the defendant additional
time for payment, reducing the amount of each installment,
or revoking the fee, fine, or the unpaid portion thereof in
whole or in part, or converting the unpaid portion of the
fee or fine to community service. A defendant shall not be
discharged from an order to pay restitution until the full
amount of the restitution has actually been collected or
accounted for.

(Emphasis added.)
22
The remaining holding in Tuialii —- that restitution may be ordered for
a victim who has already been reimbursed by an insurer —- is not before us.
See Tuialii, 121 Hawai‘i at 140-42, 214 P.3d at 1130-32 (concluding that
ordering a defendant to pay the full amount of losses to the victim, without
any reduction for amounts already paid by an insurer, is permitted by HRS §
706-646).

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B. Kealoha’s Remedies

We have held that “[m]anifest injustice occurs when a

defendant makes a plea involuntarily or without knowledge of the

direct consequences of the plea.” Nguyen, 81 Hawai‘i at 292, 916

P.2d at 702 It is well settled that the terms of a plea

agreement serve as inducement for the entering of a plea, and

must be fulfilled. State v. Adams, 76 Hawai‘i 408, 414, 879 P.2d

513, 519 (1994) (citing State v. Costa, 64 Haw. 564, 566, 644

P.2d 1329, 1331 (1982); Santobello v. New York, 404 U.S. 257,

262 (1971)). “Indeed, due process requires that the State

uphold its end of the bargain” and manifest injustice occurs

when the State violates a plea agreement, entitling the

defendant to withdraw his or her plea. Adams, 76 Hawai‘i at 414,

879 P.2d at 519 (citing State v. Yoon, 66 Haw. 342, 347, 662

P.2d 1112, 1115 (1983); United States v. Crusco, 536 F.2d 21,

26-27 (3d Cir. 1976)). Likewise, when a court binds itself to a

plea agreement pursuant to HRPP Rule 11(f)(1), due process

requires the court to “uphold its end of the bargain” by

sentencing the defendant in accordance with the agreement’s

terms. When the sentencing court violates a plea agreement to

which it is bound, the defendant is denied due process and

manifest justice occurs as a matter of law. When a plea

agreement is breached, “either resentencing or withdrawal of a

plea may be the appropriate remedy depending on the defendant’s

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particular circumstances.” Adams, 76 Hawai‘i at 414, 879 P.2d at

519.

Based on these legal principles, Kealoha asks this court to

order a correction of his sentence to afford him specific

performance of his plea agreement without restitution, or in the

alternative, to allow withdrawal of his plea. Based on the

reasons below, however, Kealoha is not entitled to the specific

relief he seeks, but must instead seek such relief under HRPP

Rule 40.23

23
HRPP Rule 40 (2006) provides in relevant part:

(a) Proceedings and grounds. The post-conviction proceeding
established by this rule shall encompass all common law and
statutory procedures for the same purpose, including habeas corpus
and coram nobis; provided that the foregoing shall not be
construed to limit the availability of remedies in the trial court
or on direct appeal. Said proceeding shall be applicable to
judgments of conviction and to custody based on judgments of
conviction, as follows:
(1) FROM JUDGMENT. At any time but not prior to final
judgment, any person may seek relief under the procedure
set forth in this rule from the judgment of conviction, on
the following grounds:
(i) that the judgment was obtained or sentence
imposed in violation of the constitution of the
United States or of the State of Hawaiʻi;
(ii) that the court which rendered the judgment was
without jurisdiction over the person or the subject
matter;
(iii) that the sentence is illegal;
(iv) that there is newly discovered evidence; or
(v) any ground which is a basis for collateral attack
on the judgment.
For the purposes of this rule, a judgment is final when the
time for direct appeal under Rule 4(b) of the Hawaiʻi Rules of
Appellate Procedure has expired without appeal being taken, or if
direct appeal was taken, when the appellate process has
terminated, provided that a petition under this rule seeking
relief from judgment may be filed during the pendency of direct
appeal if leave is granted by order of the appellate court. . . .

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With respect to Kealoha’s request that this court order

resentencing pursuant to the Rule 11 plea agreement without any

restitution, as noted above, the circuit court was required by

law to order restitution in a reasonable and verifiable amount

once it was requested by the victims. See HRS § 706-646(2)

(“The court shall order the defendant to make restitution for

reasonable and verified losses suffered by the victim or victims

. . . when requested by the victim.”) (emphasis added).

Although the plea agreement did not contain restitution as part

of the sentence, resentencing for specific performance of the

plea agreement is not an available remedy.24

24
The State asserted at oral argument that there was no plea agreement
because the “Rule 11 agreement as to sentencing” was not written and had not
been approved by the prosecutor’s office.” This argument was never raised
before the ICA and is unsupported by the record, which clearly reflects the
prosecutor’s oral assent to the plea agreement. Further, the circuit court
bound itself to the plea agreement:

THE COURT: What is the plea agreement?
[DEFENSE COUNSEL]: Everything concurrent.
THE COURT: And he gets the open term and everything
concurrent?
[DEFENSE COUNSEL]: Yeah.
THE COURT: I will bind myself to this agreement.

The State also argued that the circuit court’s failure to advise
Kealoha about restitution was harmless error, analogizing this case to
federal cases and FRCrP Rule 11. The State’s harmless error argument was not
raised below, and regardless is without merit because we conclude that
restitution is a direct consequence of a guilty plea. In any event, we note
this court has never embraced the federal courts’ harmless error approach to
change of plea advisements, and has actually consistently ruled that
sentencing courts must strictly adhere to HRPP Rule 11’s dictates. See
Cornelio, 68 Haw. at 646, 727 P.2d at 1127 (“This court has stressed that it
is incumbent on all trial judges to strictly conform to the guidelines
provided in HRPP Rule 11.” (citing State v. Vaitogi, 59 Haw. 592, 594-95, 585
P.2d 1259, 1261 (1978)).
Furthermore, the federal courts’ harmless error doctrine has typically
only applied when the defendant is advised of a potential fine at their
(continued. . .)

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Kealoha alternatively requests that he be permitted to

withdraw his guilty plea. In this regard, HRPP Rule 32(d)

permits a motion to withdraw plea to be filed no later than ten

days after imposition of sentence,25 but Kealoha did not file a

motion with the circuit court to withdraw his plea. He asked to

withdraw his plea for the first time on appeal. Therefore, to

request a withdrawal of his plea, Kealoha must now proceed by

way of an HRPP Rule 40 petition to seek relief from judgment.

See HRPP Rule 32(d) (“At any later time, a defendant seeking to

withdraw a plea of guilty . . . may do so only by petition

pursuant to Rule 40 of these rules[.]”).

We also note HRS § 706-645(1)(1992) provides that a

defendant sentenced to pay restitution who is “not in

contumacious default in the payment thereof may at any time

(continued. . .)
change of plea, but is ultimately sentenced to a restitution amount that is
less than the advised-upon fine. See, e.g., United States v. Crawford, 169
F.3d 590, 591-93 (9th Cir. 1999) (holding that failure to advise on
restitution was harmless error where the defendant was advised that he could
be ordered to pay a fine of up to $250,000, but was ultimately ordered to
restitution in the amount of $2,511.86 with no fine). Even if we chose to
embrace this harmless error analysis, it would be inapplicable to Kealoha
because the circuit court did not advise him of any potential fines at his
change of plea.
25
HRPP Rule 32(d) provides, in relevant part:

A motion to withdraw a plea of guilty or of nolo contendere
may be made before sentence is imposed or imposition of
sentence is suspended; provided that, to correct manifest
injustice the court, upon a party’s motion submitted no
later than ten (10) days after imposition of sentence,
shall set aside the judgment of conviction and permit the
defendant to withdraw the plea. . . .

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petition the court which sentenced the defendant for a

revocation of . . . restitution or of any unpaid portion

thereof.” (Emphasis added.) The sentencing court may revoke

restitution in whole or in part if “the circumstances which

warranted the imposition of the . . . restitution have changed,”

or if “it would otherwise be unjust to require payment.” HRS §

706-645(2). Thus, Kealoha could also seek relief under HRS §

706-645 in a Rule 40 petition.

For these reasons, Kealoha’s requested relief is denied

without prejudice to him seeking appropriate relief in the

circuit court.

C. Appellate attorney’s fees for work before the ICA

Finally, Kealoha’s court-appointed appellate counsel seeks

review of the ICA’s July 17, 2017 order. For his work before

the ICA, counsel requested $7,425 in appellate attorney’s fees.

The ICA’s July 17, 2017 order states:

Upon consideration of the Request for Appellate
Attorney’s Fees and Costs by . . . court-appointed counsel
for Defendant-Appellant Kristopher Kealoha, and the
attachments thereto submitted on May 22, 2017, pursuant to
HRS § 802-5 and HRAP Rule 39, attorney’s fees in the
reduced amount of $5,000.00 and costs in the reduced amount
of $54.90[] are reasonable.

HRS § 802-5 (2015) provides, in relevant part, as follows:

§802-5 Appointment of counsel; compensation. (a) . . .
[T]he judge shall appoint counsel to represent the person
at all stages of the proceedings, including appeal, if any.

. . . .

(b) The court shall determine the amount of reasonable
compensation to appointed counsel, based on the rate of $90

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an hour; provided that the maximum allowable fee shall not
exceed the following schedule:

. . . .

(4) Appeals 5,000

. . . .

Payment in excess of any maximum provided for under
paragraphs (1) to (6) may be made whenever the court in
which the representation was rendered certifies that the
amount of the excess payment is necessary to provide fair
compensation and the payment is approved by the
administrative judge of that court.

Therefore, under HRS § 802-5(b)(4)(2014), the maximum

allowable fee for a criminal “proceeding, including appeal,” is

$5,000, unless “the court in which the representation was

rendered certifies that the amount of the excess payment is

necessary to provide fair compensation and the payment is

approved by the administrative judge of that court.” HRS § 802-

5(b)(2015). Counsel argues he should have been granted fees in

excess of $5,000 because, although Kealoha’s three criminal

cases were consolidated for appellate purposes, he reviewed

dockets, drafted notices of appeals and jurisdictional

statements, and ordered transcripts for each of the three cases.

He also argues he sought temporary relief from restitution after

the cases were consolidated.26

26
Counsel also asserts that he performed additional work, for which he
did not bill, to respond to an order to show cause before the ICA. However,
we have previously said “[i]t would be patently unreasonable to compensate a
court-appointed attorney for work not documented[.]” Mohr, 97 Hawaiʻi at 6,
32 P.3d at 652.

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We review a court’s award of attorney’s fees for abuse of

discretion. Hart, 126 Hawaiʻi at 455, 272 P.3d at 1222. In this

regard, although appellate review of fee awards requires the

judge reducing the request to set forth reasons for the

reduction, “[t]he nature of appellate work is subject to ready

evaluation by this court, which reviews similar attorney’s fees

requests for work performed before it,” and therefore remand is

not required for this court to review the ICA’s reduction of an

appellate fee request. Bettencourt, 126 Hawaiʻi at 31, 265 P.3d

at 1127.

Upon review of appellate counsel’s time sheets and the

record below, we conclude the ICA abused its discretion in

summarily reducing appellate counsel’s attorney’s fees to

$5,000. Counsel’s time sheets show that fees above $5,000,

although not all the fees he requested, were necessary to

provide him fair compensation.27 We conclude that in order to

provide fair compensation, counsel is entitled to reasonable

appellate attorney’s fees in the amount of $6,025.50, for 66.95

hours of work before the ICA.28

27
Some of appellate counsel’s fee requests were duplicative or excessive,
particularly with respect to phone calls made and documents filed before
Kealoha’s three appeals were consolidated.
28
We need not and do not address counsel’s assertion that there were
three “proceedings,” each subject to the statutory fees cap.

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We therefore award appellate attorney’s fees in the amount

of $6,025.50 for appellate counsel’s work before the ICA.

V. Conclusion

Based on the foregoing, the circuit court’s judgments of

conviction and the ICA’s judgment on appeal affirming the

convictions are affirmed, but based on the reasoning in this

opinion. Kealoha’s requested relief is denied without prejudice

to any petition he may file in the circuit court. Finally, the

ICA’s July 17, 2017 order is vacated in part as to the

attorney’s fees award only, and appellate counsel is awarded

$6,025.50 in appellate attorney’s fees for his work before the

ICA; the costs award of $54.90 is affirmed.

Shawn A. Luiz /s/ Mark E. Recktenwald
for petitioner
/s/ Paula A. Nakayama
Loren J. Thomas
for respondent /s/ Sabrina S. McKenna

/s/ Richard W. Pollack

/s/ Michael D. Wilson

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