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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 HAWAII
---oOo---
________________________________________________________________
STATE OF HAWAII,
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 HAWAII,
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.
2
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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.
3
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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.
4
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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.
5
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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
6
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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.
7
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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).
8
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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.
9
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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,
10
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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.”
11
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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
38
State v. Kealoha.
Combined Opinion