NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
24-AUG-2022
07:57 AM
Dkt. 54 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
STATE OF HAWAI#I, Plaintiff-Appellee, v.
MARC ALLAN MORRIS, Defendant-Appellant
APPEAL FROM THE DISTRICT COURT OF THE SECOND CIRCUIT
(WAILUKU DIVISION)
(CASE NO. 2DTC-18-006704)
SUMMARY DISPOSITION ORDER
(By: Leonard, Presiding Judge, Hiraoka and Nakasone, JJ.)
Defendant-Appellant Marc Allan Morris (Morris) appeals
from the September 8, 2020 Sua Sponte Order Setting Aside Order,
Reinstating Restitution Balance and Setting Proof of Compliance
Hearing (Reinstatement Order), and the October 1, 2020 Order and
Notice of Entry of Order (Order Denying Reconsideration), entered
in the District Court of the Second Circuit, Wailuku Division
(District Court).1
1
The Honorable Blaine J. Kobayashi presided.
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Morris raises two points of error on appeal, contending
that: (1) the Reinstatement Order constitutes an illegal
sentence because restitution is not an authorized disposition for
violations; and (2) the District Court erred in issuing the
Reinstatement Order and increasing Morris's monthly payments from
$10.00 to $25.00 without notice, without a hearing, without the
opportunity to present evidence and argument, and without the
opportunity to confront and cross-examine witnesses.
Upon careful review of the record and the briefs
submitted by the parties, and having given due consideration to
the arguments advanced and the issues raised by the parties, we
resolve Morris's points of error as follows:
(1) Restitution is an authorized disposition for
crimes, but not violations. See Hawaii Revised Statutes (HRS)
§ 706-646 (2014 & Supp. 2017). Lack of Due Care is a violation.
See HRS § 701-107 (2014); Maui County Code (MCC) § 10.72.020
(1983) ("Any person convicted of a violation of any section or
provision of this title shall be punished by a fine[.]"); MCC
§ 10.08.050 (1980) ("[i]t is a violation for any person to do
any act forbidden or fail to perform any act required in this
title"); State v. Fukuoka, 141 Hawai#i 48, 52 n.1, 404 P.3d 314,
318 n.1 (2017) (stating that lack of due care, in violation of
MCC § 10.52.010 (1965), "constitutes a violation punishable by a
fine"). Accordingly, restitution is not an authorized
disposition for Lack of Due Care, and the District Court could
2
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not impose restitution as part of Morris's sentence for Lack of
Due Care. See State v. Nakamura, 121 Hawai#i 117, 118 n.4, 214
P.3d 1107, 1108 n.4 (App. 2009) ("[A]greed to or not, 'a court
may only pronounce a sentence which the law hath annexed to the
crime, and a sentence which does not conform to statutory
sentencing provisions, either in the character or the extent of
the punishment imposed, is void'" (citations, internal quotation
marks, and brackets omitted)).
We conclude that the District Court erred in
reinstating restitution and in denying Morris's Motion for
Reconsideration.2
(2) In light of our resolution of Morris's first point
of error, we need not address the second one.
2
The State concedes that "restitution could not have been ordered
as part of Morris'[s] sentence, the plea agreement notwithstanding." However,
the State asserts, for the first time on appeal, that Morris's pleas and
convictions should be vacated, and that the State should be allowed on remand
to either (1) proceed with a change of plea hearing and sentencing on the
remaining charges under the parties' original plea agreement, or (2) withdraw
from the plea agreement and reinstate the Inattention to Driving charge. The
State failed to raise such arguments before the District Court, and thus
waived them on appeal. See State v. Hoglund, 71 Haw. 147, 150, 785 P.2d 1311,
1313 (1990) ("Generally, the failure to properly raise an issue at the trial
level precludes a party from raising that issue on appeal."). Moreover, the
State expressly stated that it had no objection to Morris's motion to strike
the restitution amount, and did not object when the District Court struck the
Restitution Order.
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For the foregoing reasons, the District Court's
September 8, 2020 Reinstatement Order and October 1, 2020 Order
Denying Reconsideration are reversed.
DATED: Honolulu, Hawai#i, August 24, 2022.
On the briefs: /s/ Katherine G. Leonard
Presiding Judge
Taryn R. Tomasa,
Deputy Public Defender, /s/ Keith K. Hiraoka
for Defendant-Appellant. Associate Judge
Gerald K. Enriques, /s/ Karen T. Nakasone
Deputy Prosecuting Attorney, Associate Judge
County of Maui
for Plaintiff-Appellee.
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