APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT (CR. NO. 09-1-1083)
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER
SUMMARY DISPOSITION ORDER
(By: Foley, Presiding Judge, Fujise and Leonard, JJ.)
Defendant-Appellant Siaosi Feleunga (Feleunga) appeals from the March 22, 2010 judgment of the Circuit Court of the First Circuit (circuit court),*fn1 convicting Feleunga of: (1)
Accident Involving Death or Serious Bodily Injury in violation of Hawaii Revised Statutes (HRS) § 291C-12 (2007 & Supp. 2010) (Accident charge); (2) Negligent Homicide in the Second Degree in violation of HRS § 707-703 (1993) (Negligent Homicide charge); and (3) Operating a Vehicle After License and Privilege have been Suspended or Revoked for Operating a Vehicle Under the Influence of an Intoxicant in violation of HRS § 291E-62 (2007 & Supp. 2008) (Driving While License Suspended charge). Pursuant to a plea agreement with the State of Hawaii (State) and to which the circuit court agreed to be bound pursuant to Hawaii Rules of Penal Procedure (HRPP) Rule 11(e)(1), *fn2 the circuit court sentenced Feleunga to concurrent terms of imprisonment of ten years, five years, and thirty days, respectively.*fn3 The circuit court also ordered Feleunga to pay restitution in the amount of $1,865 to the State Department of Human Services (DHS) for medical expenses and $5,106.57 in restitution to the victim's mother for funeral expenses, an assessment of $500 to the Neurotrauma Special Fund, and an assessment of no more than $500 to the DNA Registry Special Fund.
On appeal, Feleunga challenges his sentence of restitution on two grounds: (1) The circuit court erred when it ordered restitution despite having agreed to be bound by the terms of a plea agreement that did not provide for restitution in the underlying criminal case and (2) the legislature, by mandating restitution through enactment of HRS § 706-646, violated the separation of powers doctrine insofar as it operated to impose restitution despite the terms of a plea agreement thereby invading "the province of the Courts to ensure protection of criminal defendants through its inherent power to regulate plea agreements."
Upon careful review of the record and the briefs submitted by the parties and having given due consideration to the arguments advanced, the issues raised by the parties, and the relevant statutory and case law, we resolve Feleunga's point of error as follows:
"The authority of a trial court to select and determine the severity of a penalty is normally undisturbed on review in the absence of an apparent abuse of discretion or unless applicable statutory or constitutional commands have not been observed." State v. Gaylord, 78 Hawaii 127, 143-44, 890 P.2d 1167, 1183-84 (1995) (citation and internal quotation marks omitted). As the circuit court was statutorily required to order restitution to both the victim's mother and DHS, the circuit court did not abuse its discretion in ordering the restitution payments at issue in this case. HRS § 706-646 (Supp. 2010) ("[t]he 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.") (emphasis added).*fn4
In the instant case, Feleunga does not dispute that the terms of HRS §706-646 were met. Rather, Feleunga appears to be arguing that the terms of his plea agreement prevented the application of this legislative mandate. However, nothing in Feleunga's plea agreement prohibits the imposition of restitution.*fn5 Compare State v. Costa, 64 Haw. 564, 566-67, 644 P.2d 1329, 1331-32 (1982) (prosecution did not breach plea agreement by seeking mandatory minimum term of imprisonment where agreement stated only that the prosecution agreed to seek a
As the circuit court was statutorily required to order restitution to both the victim's mother and DHS and the plea agreement did not explicitly exclude the imposition of restitution, the circuit court did not err in ordering the restitution payments at issue in this case.
As we do not read the plea agreement as precluding restitution in the underlying criminal case, we do not reach Feleunga's separation of powers argument.
IT IS HEREBY ORDERED that the March 22, 2010 Judgment of Conviction and Sentence of the Circuit Court of ...