State v. Paulino

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NO. 29 16

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IN THE lNTERMEDlATE COURT OF APPEALS

oF THE sTATE oF HAwAfI

STATE oF HAwA1U; Piaint1ff~App@11@e, v. .
CHARLES KANANI PAULINO, Defendant-Appellant

APPEAL FROM THE CIRCUIT COURT OF THE THlRD CIRCUlT
(CR. NO. O5~l-GO65K}

MEMORANDUM OPINION
(By: Foley, Preeiding J., Fujise and Leonard, JJ.)

Defendant~Appellant Charlee Kanani Paulino (Paulino)
appeals from the Judgment filed on December 22, 2006 in the
Circuit Court of the Third Cirouitl (circuit court). A jury

found Paulino guilty of

Count XI, Robbery in the Firet Degree, in
violation of Hawaii Revised Statutes (HRS) § 708-
840(l)(b) (l993 & Supp. 2005);

Count XIII, Criminal Property Damage in the Fourth
Degree, in violation of HRS § 708-832(l) (l993);

Count XIV, Carrying or USe of Firearm in the CommisSion
of a Separate Felony, in violation of HRS § 134~6(a) &

(e) (Supp. 2005), (the separate felony was Theft in the
FirSt Degree, a violation of HRS §§ 708-830(1) (l993 &

Supp. 2005) and 708~830.5 (l993));

Count XVI, Ownerehip Prohibited, in violation of HRS
§ 134~7 (Supp. 2005);

Count XVII, OWnerShip Prohibited, in violation of HRS
§ l34-8 (l993);

§Qunt XVIII, Place to Keep Firearme, in violation of
HRS § l34~6(c) & (e) (Supp. 2005);

Count XIX, Permits to Acquire, in violation of HRS
§§ 134-2(a) (Supp. 2005) and 134-17 (Supp. 2008); and

Count XXI, Prohibited ActS Related to Drug
Paraphernalia, in violation of HRS § 329~43.5 (l993).

‘ The Honorable EliZabeth A. Strance preeided.

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On appeal, Paulino raises five points of error:

515 there was insufficient evidence to support his
conviction for Robbery in the First Degree (Count Xl) because the
use of force did not occur in the course of the robbery;

{2) the August 4, 2006 Trial Stipulations [sic] §Trial
Stipulation) and September l5, 2006 Amended Trial Stipulation
iAmended Stipulation) (collectively, the Stipulations) and the
circuit court‘s oral colloquies thereon were defective because in
neither was he informed of his constitutional right to
confrontation and to compel the State to prove each element of
the offenses charged;

(3} the sentencing enhancement, pursuant to HRS § 706-
660.l(3)(b} (1993), violated his due process rights because the
State of Hawari (State) failed to provide adequate notice of its
intention to seek enhanced sentences;

(4) Count XIV, Carrying or Use of Firearm in the
Commission of a Separate Felony (the felony being Attempted Theft
in the First Degree), should have been dismissed when the circuit
court dismissed the underlying separate felony of Count XII
(Theft in the First Degree); and

(5) the circuit court should have instructed the jury
to consider whether Count XIV and Count XI (Robbery in the First
Degree) merged, whether the firearm possession offenses in Counts
XIV, XVI, and XVIII merged, and whether the ammunition possession
offenses in Counts XVlI and XVIIl merged,

Because we dispose of this appeal based on Paulino’s
points of error 1 and 2, we need not address his points 3 through
5 .

I. BACKGROUND

On March l4, 2005, a grand jury issued an indictment

containing 22 counts against Paulino:

Count I, Attempted Murder in the First Degree, HRS

§§ 705-500<1>(1@> (1993) and 707-701<1> (a> (1993 a
Supp. 2005), for firing a semiautomatic firearm in the
direction of two or more persons;

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§ognt~§;, Attempted Murder in the Second Degree, HRS

§§ 705-500(l)€b) and 707-701.5 (l993), for firing a
semiautomatic firearm in the direction of Solomon Alani
(Alani);

Qount_ll;, attempted Murder in the Second Degree, HRS
§§ 705-500{l)(b} and 707-70l.5, for firing a
semiautomatic firearm in the direction of Edwin Hao,
Jr. (Hao);

QQunt I§, Attempted Murder in the Second Degree, HRS
§§ 705-500il)(b) and 707-70l.5, for firing a
semiautomatic firearm in the direction of Sosimo
Tabieros, Jr. (Tabieros);

Qount V, Terroristic Threatening in the First Degree,
HRS §§ '707-'7].5(1) (1993) and 707-716(1)(<§1) (1993), for
threatening bodily injury to Hao with a dangerous
instrument, a semiautomatic handgun;

Count VI, Terroristic Threatening in the First Degree,
HRS §§ 707-7l5(l) and 707-7l6(l)(d), for threatening
bodily injury to Alani with a dangerous instrument, a
semiautomatic handgun;

Count VIl, Terroristic Threatening in the First Degree,
HRS §§ 707-7i5(l) and 707-7l6(l)(d), for threatening
bodily injury to Tabieros with a dangerous instrument,
a semiautomatic handgun;

Count VIII, Reckless Endangering in the First Degree,
HRS § 707-7l3(l) (l993), for firing a semiautomatic
firearm in a manner that recklessly placed Hao in
danger of death or serous bodily injury;

Count IX, Reckless Endangering in the First Degree, HRS
§ 707-7l3(l), for firing a semiautomatic firearm in a
manner that recklessly placed Alani in danger of death
or serous bodily injury;

Count X, Reckless Endangering in the First Degree, HRS
§ 707-7l3(l), for firing a semiautomatic firearm in a
manner that recklessly placed Tabieros in danger of
death or serous bodily injury;

Count Xl, Robbery in the First Degree, HRS § 708-
840(l}(b), for using force against Tabieros and/or
Alani and/or Hao in the course of committing theft
while armed with a dangerous instrument, a
semiautomatic firearm;

bJ

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1ountM§lL, Theft in the First Degree, HRS §§ 708-830{l)
l“93 & Supp. 2005}, 703-830.5(l}{a) (l993), and 705~
500, for obtaining unauthorized control over the

State’s property, the value of which exceeded $20,000H

,-\ !"';

QQgpt Xg§;, Criminal Property Damage in the Fourth
Degree, HRS § 708-823(l), for damaging the State's
property;

QQun; XIV, Carrying or Use of Firearm in the Commission
of a Separate Felony, HRS § 134-6(a) & (e}, {the
separate felony was Theft in the First Degree, a
violation of HRS §§ 708-330{l) and 708-830.5);

§Qunt_§y, Carrying or Use of Firearm in the Commission
of a Separate Felony, HRS § 134-6{a} & (e) (the
separate felony was Attempted Murder in the First
Degree, a violation of HRS §§ 705-500 and 707-70l);

Count XVl, Ownership or Possession Prohibited, HRS

§ 134-7(b) & (h), for owning, possessing, or
controlling a semiautomatic handgun or ammunition and
having a prior conviction for a crime of violence;

Count XVII, Ownership Prohibited, HRS § 134-8, for
possessing an ammunition magazine with a capacity in
excess of ten rounds that was inserted into a pistol;

Count XVIIl, Place to Keep Firearms, HRS § 134-6(c) &
(e), for possessing a semiautomatic handgun or
ammunition, not properly confined;

Count XIX, Permits to Acquire, HRS §§ 134-2(a) and
134 l7, for having no permit for a semiautomatic
handgun;

Count XX, Promoting a Dangerous Drug in the Third
Degree, HRS § 712-l243(l) (Supp. 2008), for possessing_
methamphetamineH

Count XXl, Unlawful Possession of Drug Paraphernalia,
HRS § 329-43.5;

'w

The circuit court dismissed this count on April 19, 2006 for
insufficient evidence

3 On September 22, 2006, the circuit court granted Paulino‘s motion for
judgment of acquittal as to this count, finding that there was de minimis
evidence of methamphetamine

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is 705 5'0<1> ,
against police officers Sean Smith and/or william
Brown, by reaching for a loaded semiautomatic gun when
confronted by the two officers.

§o" t XXIl, Attempted Murder in the First Degree, HRS
§ -

The events giving rise to the indictment took place on

February l6, 2005. That morning, Alani, Tabieros, and Hao
{collectively, Employees), who were employed by the State’s
Highways Division/ arrived at a gated work site. When they

opened the gate, Paulino leapt from a backhoe that was stored at
the work site. Paulino stopped and stared at Employees and then
ran away from them. Employees yelled at Paulino to stop, and Hao
ran after Paulino. Shots were fired in the direction of
Employees. Hao laid down in the grass, and Alani and Tabeiros
jumped in their truck. The bullets hit near Employees.

Employees reported the incident to management and the police.

After the police arrived, the police and Employees
noted signs of bullet impact at the site and damage to the
backhoe consistent with an attempt to hot-wire it. Officers
recovered spent casings and an empty 15-round Glock magazine on
the trail Paulino ran down.

That night, police apprehended Paulino on Route l90, a
public highway. Officers found a Glock handgun in Paulino’s
waistband and bullets and a glass pipe in his pockets. The
police also removed Paulino's backpack and found within it
various hardware tools and identifiable items from the backhoe.

On March l4, 2005, a grand jury issued the twenty-two-
count indictment against Paulino arising out of the events on
February l6, 2005. Before trial, Paulino and the State presented
the circuit court with the Trial Stipulation. The circuit court
was subsequently presented with the Amended Stipulation. The
circuit court found that Paulino had knowingly, voluntarily, and
intelligently consented to the Amended Stipulation, and the court
received the stipulation and stated that it would be read to the

jury. ln the Amended Stipulation, Paulino conceded that the

N(f)'il` l*`()R P`(_FBMLI(L`./S.’I`I(§)N` IT.N \‘\"'I*IS"I"S '.EL>X‘WAI,‘I RIBII’OI~Z'I`S AN'\`) l“’.»&(.`,l}*`l(`. RFIP()R'I`I€I{

State‘s evidence provided conclusive proof of some elements of
the crimes charged and stipulated that he committed the crimes
charged in the following counts: Counts V, Vl, Vll, Vlll, lX, X,
KlIl, XVl, XVlI, XVLIl, XlX, and XXI. The amended Stipulation
did not indicate that Paulinc, by signing it, was waiving his
right to compel the State to prove each element of the crimes
charged, The circuit court in conducting oral colloquies on the
two Stipulations also failed to inform Paulino that he was
waiving this constitutional right.

On September 28, 2006, the jury found Paulino not
guilty of Counts I, Il, III, lV, XV, and XXIl and guilty of
Counts Xl, Xlll, XlV, XVl, XVll, XVIII, XIX, and XXl. The jury
further found that Counts V, VI, VII, VIII, IX, X merged with
Count Xl.

On December 22, 2006, the circuit court entered the

Judgment. Paulino filed a notice of appeal on June 25, 2008F
II. STHUNDPJUDS ()F EU?VIEHV
A. Sufficiency of the Evidence
The appellate court reviews the sufficiency of evidence

on appeal as follower

[E]vidence adduced in the trial court must be considered in
the strongest light for the prosecution when the appellate
court passes on the legal sufficiency of such evidence to
support a conviction; the same standard applies whether the
case was before a judge or jury. The test on appeal is not
whether guilt is established beyond a reasonable doubt, but
whether there was substantial evidence to support the
conclusion of the trier of fact.

State V. RiChie, 88 HaWafi l9, 33, 960 P.2d l227, 1241 (l998)

(quoting State v. Quitog, 85 Hawafi l28, l45, 938 P.2d 559, 576

4 Paulino did not file his notice of appeal within 30 days after entry

of the Judgment, as required by Hawari Rules of Appellate Procedure (HRAP)
Rule 4(b)(l). Nevertheless, in "criminal cases, [the HawaFi Supreme Court]
ha{s] made exceptions to the requirement that notices of appeal be timely
filed," and the exceptions include "circumstances where . . . defense counsel
has inexcusably or ineffectively failed to pursue a defendant‘s appeal from a
criminal conviction in the first instance.“ State v. Irvine, 88 HawaFi 404,
407, 967 P.2d 236, 239 (l998). Paulino's failure to assert a timely appeal
appears to be the result of ineffective assistance of his counsel and, thus,
does not preclude him from asserting an appeal.

6

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{1997}}. "’Substantial evidence‘ as to every material element of
the offense charged is credible evidence which is of sufficient
quality and probative value to enahle a person of reasonable
caution to support a conclusion.“ §iphie, 88 Hawari at 33, 960
P.2d at .2é1 {internal quotation marks and citation omitted).

B, Constitutional Questions

The appellate court reviews questions of constitutional
law de novo under the "right/wrong" standard and, thus, exercises
its "own independent judgment based on the facts of the case."

v. Jen;<;;i_§, 93 Hawai‘i s"s, 100, 997 P.za i?», 26 <2000>
{internal quotation marks and citation omitted).

C. Plain Error/Rule 52(b)

Hawafi Rules of Penal Procedure Rule 52(b) states that
"[p]lain errors or defects affecting substantial rights may be
noticed although they were not brought to the attention of the
court." Therefore, an appellate court “may recognize plain error
when the error committed affects substantial rights of the
defendant." State v. Staley, 91 HawaFi 275, 282, 982 P.2d 904,
911 (1999) (internal quotation marks and citation omitted).

The appellate court "will apply the plain error
standard of review to correct errors which seriously affect the
fairness, integrity, or public reputation of judicial
proceedings, to serve the ends of justice, and to prevent the
denial of fundamental rights." State v. Nichols, 111 HawaiU_

327, 334, 141 P.3d 974, 981 (2006) (quoting State v. Sawyer, 88
Hawai‘i 325, 330, 966 P.zd 637, 642 <1993>>. An appellate
court's "power to deal with plain error is one to be exercised
sparingly and with caution because the plain error rule
represents a departure from a presupposition of the adversary
system~~that a party must look to his or her counsel for
protection and bear the cost of counsel's mistakes.“ Nichols,

111 Hawari at 335, 141 P.3d at 982 (guoting State v. Kelekolio,

74 HaW. 479, 5l5, 849 P.2d 58, 74-75 (l993)).

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D, Harmless Error

Hawari Rules of Penal Frocedure (HRPP) Rule 52(a)
provides, in relevant part, that "§alny error, defect,
irregularity or variance which does not affect substantial rights
shall be disregarded." The Hawaii Supreme Court has stated that
“{sluch error, however, should not be viewed in isolation and
considered purely in the abstract. lt must be examined in light
of the entire proceedings and given the effect to which the whole
record shows it is entitled." State v. Sprattlinq, 99 Hawafi
312, 320, 55 P.3d 276, 284 (2002} {internal quotation marks,
citation, and brackets in original omitted). Under the harmless
error standard, the appellate court "must determine whether there
is a reasonable possibility that the error complained of might
have contributed to the conviction." State v. Pauline, 100
Hawaid.356, 378, 60 P.3d 306, 328 (2002} (internal quotation
marks and citation omitted). "1f there is such a reasonable
possibility in a criminal case, then the error is not harmless
beyond a reasonable doubt, and the judgment of conviction on
which it may have been based must be set aside " State v. §anQ,
92 HaWafi l6l, l76, 988 P.2d ll53, ll6S (l999) (internal
quotation marks and citation omitted).

"A constitutional error is harmless as long as the
court is able to declare a belief that it was harmless beyond a
reasonable doubt." Korean Buddhist Dae Won Sa Temple of Hawaii
v. suilivan, 37 Ha.wai‘i 217', 245, 953 P.zd 1315, 1343 <1993)
(internal quotation marks, citation, brackets, and ellipsis
omitted).

III. DISCUSSION

A. There was substantial evidence to support
Paulino’s conviction for Robbery in the First
Degree because Paulino did use force in the course
of committing a theft.

Paulino argues that "[t]here was insufficient evidence

to support any conviction for robbery as a matter of law, because

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{he§ did not employ force ‘in the course of committing a theft.'"
HRS § 703~84O provides in relevant part:

§708~B40 Robbery in the first degree. {1) A.person
commits the offense of robbery in the first degree if, §
the course of committing theft:

ibi The person is armed with a dangerous instrument
aid:
(i) The person uses force against the person

of anyone present with intent to overcome
that person's physical resistance or
physical power of resistance; or
iii) The person threatens the imminent use of

force against the person of anyone who is
present with intent to compel acquiescence
to the taking of or escaping with the
property.

(Emphasis added.) HRS § 7OB»842 (l993) defines "in the course of
committing a theft" as occurring "in an attempt to commit theft,
in the commission of theft, or in the flight after the attempt or
commission."

Paulino's use of force clearly occurred "in the course
of committing theft." The plain language of HRS § 708-842
extends "in the course of" to "flight after the attempt." §§§
State g;_jg;LLs, 78 HawaiYi 373, 376, 894 P.2d 70, 73 (l995)
(internal quotation marks and citation omitted) ("And where the
language of the statute is plain and unambiguous, [a court‘s]
only duty is to give effect to [the statute‘s] plain and obvious
meaning."). Substantial evidence supports the inference that
Paulino was attempting to hot~wire the backhoe, and the arrival
of Alani, Hao, and Tabieros foiled Paulino's efforts. Paulino
ran, and as Hao chased Paulino, shots were fired. This use of
force occured during "flight after the attempt" and therefore
occured "in the course of" the theft.

Paulino‘s reliance on State v. Arlt, 9 Haw. App. 263,
833 P.2d 902 (l992), does not compel a different conclusion. in
A;lt, this court determined that Arlt had completed the theft of

a tequila bottle from a store after snatching it and leaving the

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premises. §d, at 272, C3“ ?.2d at 9G?. Accordingly, we held

f

that Arlt‘s later use of force against the store owner when
returning the bottle did not occur "in the course of" the theft.
;dg at 273~74, 333 P.2d at 907 O8. g;l; is inapposite because
Arlt’s use of force occurred in his voluntary attempt to return

the stolen bottle to the store owner after Arlt completed the

theft. in the instant case, Paulino’s use of force occurred
during flight from a theft attempt. The two are factually
dis`inguishable.

This court accordingly concludes that there is
substantial evidence establishing that Paulino‘s use of force
occurred "in the course of committing theft."

B. The failure to inform Paulino of his right to
compel the State to prove each element of the
offense charged rendered the Amended Stipulation
and colloquies constitutionally defective.

The State argues that Paulino did not challenge the
constitutionality of the Amended Stipulation or the oral
colloquies at trial and therefore waived this point of error on
appeal. "Normally, an issue not preserved at trial is deemed to
be waived. But where plain errors were committed and substantial
rights were affected therehy, the errors may be noticed although

they were not brought to the attention of the trial court.“

State v. Fagaragan, ll5 HawaFi 364, 367-68, 167 P.3d 739, 742~43
(2007) (internal quotation marks, citations, and brackets
omitted). We accordingly review Paulino‘s point of error to
determine if Paulino's "substantial rights were affected
thereby." gap at 3es, 167 P.3d at 743.

Paulino argues that neither the Amended Stipulation nor
the oral colloquies on the Trial Stipulation and Amended
Stipulation contained the necessary advisement or waiver and, as
a matter of law, were constitutionally defective. On August 4,
2006, the circuit court received and approved the Trial

Stipulation entered into by the State and Paulino. On

10

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Septemher lB, 200G, the circuit court received the Amended
Stipulation. In the amended Stipulation, Paulino conceded the
a

Stace's evidence, s conclusively proven, on the monetary value

of tie backhoe, the type and functionality of the gun and
ammunition in his possession, identifiable backhoe items
recovered from his person, and the results of DNA tests conducted
on clothing discovered on the hackhoe. Paulino also conceded
that he committed numerous counts charged in the indictment. The
Amended stipulation provided in part:

ll. The jury shall consider conclusively proven that
the gun recovered from [Paulino] by {Officer Smith] was a
semi~automatic handgun, a pistol and a firearm, and that
said handgun, pistol, and firearm was fully operable, for
any count requiring proof of that fact.

l2. The jury shall consider conclusively proven that
the magazine attached to the gun recovered from [Paulino] by
[Officer Smith] was a detachable ammunition magazine with a
capacity in excess of ten rounds which is designed for or
capable of use with a pistol, and which was possessed while
inserted into a pistol.

27. [Paulino] and the [State] stipulate that
[Paulino] is the person who was found on the State highway
backhoe when [Alani, Hao, and Tabieros] arrived at work on

2/16/O5. [Paulino] further stipulates that he is the person
who fired a Glock semi-automatic pistol firearm that
morning.

29. [Paulino] stipulates that prior to 2/16/O5, he

was convicted of a separate crime of violence, Assault in
the Third Degree, a misdemeanor. A copy of the conviction
is submitted as State's Exhibit 27.

30. Each of the exhibits above-mentioned, will be
admissible without the necessity of showing chain of
custody. [Paulino} stipulated that a chain of custody was

maintained, as shown on the Property and Evidence Receipt
for each item.

3l. {Paulino] stipulates and you shall find
conclusively (subject to the jury instructions on Merger),
that {Paulino] committed the following offenses:

Counts V, VI, and VII: Terroristic Threatening in the
First Degree

Counts VIII, IX, and X: Reckless Endangering in the
First Degree

C0unt XIII: Criminal Froperty Damage in the Fourth
Degree

H

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Count XVI: Own@rship cr posse:r on prohihited,
’"ino} having been nvicted before Fehruary l6, 2965 of

c . cf viclence, and being in
'on or control of a GlocK semi~automatic handgun or

ammar .icn therefore.

Count XVII; Ownership Prohibited of a detachable
ammunition magazine with a capacity in excess of ten rounds,

Count XVIlI: Place to Keep Firearms
Count XIX: Permit to Acguire

Ccunt XXI; Prohibited Acts Related to Brug
Paraphernalia

On August 4, 2006, the circuit court conducted an oral
colloquy as to the Trial Stipulation. The colloquy involved the
circuit court reciting the evidence set forth and the conclusions
contained in each paragraph of the Trial Stipulation and
eliciting an affirmative response from Paulino as to each
paragraph. The circuit court did not advise Paulino that he was
waiving his constitutional right to confront witnesses and to
have the State prove each element of the crimes charged beyond a
reasonable doubt. Yet, the circuit court found that Paulino had
knowingly, voluntarily, and intelligently entered into the Trial
Stipulation.

On September l5, 2006, the circuit court engaged
Paulino in an oral colloquy as to the amended Stipulation. The
circuit court questioned Paulino concerning only the paragraphs
that were different from those in the Trial Stipulation. The
circuit court recited the changed evidence and conclusions and
elicited an affirmative response from Paulino as to each
paragraph. The circuit court again failed to advise Paulino that
he was waiving his constitutional right to confront witnesses and
have the State prove each element of the offenses charged beyond
a reasonable doubt and again found Paulino's waiver knowing,
voluntary, and intelligent.

lt is settled precedent in HawaiYi that a knowing and
voluntary waiver of fundamental rights must come directly from

the aefenaant. see state v. Murray, iie Hawai‘i 3, 10-13, 169

12

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P.3d Q55, 962~6F (2OU7} (court‘s failure to engage defendant in
or:l colloquy on his constitutional right to have the State prove
each element of the offense charged beyond a reasonable doubt
invalidated written stipulation); see also State v. Ibuos, 75
Haw. 113, 121, 857 P.2d 576, 578 §1993} {"A knowing and voluntary
waiver of the right to trial by jury must come directly from a

defendant, either in writing or orally.”); State v. Tachibana, 79

HaWafi 226, 235~36, 900 P.2d l293, l302~O3 {l995) (COHClUding

that the trial court must engage in an on-the~record colloquy to

(D

nsure that the defendant knowingly and voluntarily waived his
constitutional right to testify).

The Amended Stipulation implicated Paulino‘s
fundamental right to have the State prove each element of the
offense charged. §§§ Murray, 116 Hawafi at 10, 169 P.3d at 962
(footnote omitted) ("The defendant's right to have each element
of an offense proven beyond a reasonable doubt is a
constitutionally and statutorily protected right.“); see also
U.S. Const. amend. XIV; Haw. Const. art. 1, § 5; HRS § 701-114
(1993). Paulino’s stipulation that he committed the offenses set
forth in COuntS V, Vl, VII, VllI, IX, X, XIlI, XVI, XVII, XVlII,
XlX, and XXI was to relieve the State of its burden of proving
these charges beyond a reasonable doubt and was tantamount to a
guilty plea on these counts. In addition, the Amended
Stipulation was to relieve the State of its burden of proving the
"dangerous weapon" element of Count XI and the "firearm" and
“separate felony" elements of Count XIV.

We agree with Paulino that neither the Amended
Stipulation nor the two oral colloquies at trial sufficiently
apprised Paulino of his fundamental right to have the State prove
each element of the offenses charged, thus ensuring a voluntary
and intelligent waiver in compliance with Murray. The Amended

tipulation made no mention of Paulino's fundamental right to
have the State prove each element of the offenses charged, and

the oral colloquies at trial merely recited the written

N()'[` FOR P'U 131.§1(.`¢&']`|().?'¥" I.N `VS~'I‘.`,ST"S I~IA\V\'¢'X|‘I REI’OR'.|`S AND PA(I`IVP`IC R.`I`§I’()R'l`.\§l{

Stipnlations. Panlino consequently never made a voluntary,
intelligent waiver of this fundamental right.

Becanse the circuit court's error impacts a substantial
ht, we find plain error. §e§ §taley, 91 HawaFi at 282, 982
P.2d at 911 (noting that the appellate court may exercise plain
error review where the error impacts a defendant‘s substantial
rights}. Under Mu;ray, 116 HawaiH_at 10~13, 169 P.3d at 962»65,
we must vacate all counts directly impacted by the defective
Stipulations. We conclude that absent the Amended Stipulation,
the evidence was not overwhelming and it is reasonably possible
that the error in accepting the Amended Stipulation contributed
to the convictions.

IV. CONCLUSION
This court vacates the Judgment filed in the Circuit

Court of the Third Circnit on December 22, 2006 and remands this
case for a new trial,

DATED: Honolulu, Hawafi, January 25, 2010.
On the briefs:

Karen T. Nakasone, 1 ,__
Deputy Public Defender, /? ~ %:> /L,g
for Defendant-Appellant. ' 1
Presiding Judge

Linda L. Walton,

Deputy Prosecuting Attorney,

County of Hawafi,
for Piain::fr-Appeii@@. @W ;Z _

Associate Judg

?esociate Jud;e

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