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State of Hawaii, Plaintiff-Appellee v. Mohomiid Wicks

February 21, 2013

STATE OF HAWAII, PLAINTIFF-APPELLEE,
v.
MOHOMIID WICKS, DEFENDANT-APPELLANT
AND STATE OF HAWAII, PLAINTIFF-APPELLEE,
v.
MOHOMIID A. WICKS, DEFENDANT-APPELLANT



APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT (CR. NO. 09-1-0847), (CR. NO. 08-1-0988)

NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER

NO. CAAP-11-0000929

CAAP-11-0000930

MEMORANDUM OPINION

(By: Foley, Presiding Judge, Fujise and Reifurth, JJ.)

Defendant-Appellant Mohomiid A. Wicks (Wicks) timely appeals from the Judgments entered by the Circuit Court of the First Circuit (Circuit Court) *fn1 in Cr. Nos. 08-1-0988 (CAAP-11- 0000929, or "the Drug Case") and 09-1-0847 (CAAP-11-0000930, or "the UEMV case"). The two cases were consolidated for disposition pursuant to this court's June 12, 2012 Order. In the Drug Case, Wicks entered no contest pleas to (1) Promoting a Dangerous Drug in the Third Degree (PDD3) in violation of Hawaii Revised Statutes (HRS) § 712-1243 (Supp. 2012); (2) Unlawful Use of Drug Paraphernalia (Paraphernalia) in violation of HRS § 329-43.5(a) (2010); (3) Driving Without a License in violation of HRS § 286-102 (2007 and Supp. 2012); (4) and (6) Duty Upon Striking Unattended Vehicle or Other Property in violation of HRS § 291C-15 (2007); (5) Promoting a Detrimental Drug in the Third Degree in violation of HRS § 712-1249 (1993); (7) Reckless Driving of Vehicle in violation of HRS § 291-2 (2007); and (8) Obedience to Police Officer in violation of HRS § 291C-23 (2007).

In the UEMV case, Wicks pleaded no contest to Unauthorized Entry Into Motor Vehicle in the First Degree (UEMV) in violation of HRS § 708-836.5 (Supp. 2012). Wicks argues four main points of error with regard to the Drug Case: (1) that his no contest pleas were not knowingly, intelligently, and voluntarily entered; (2) that the Circuit Court failed to inquire as to the pre-sentence report; (3) that sentencing was held after he fired his attorney; and (4) that his counsel was ineffective.

With regard to the UEMV case, Wicks argues that his sentence was imposed in derogation of his right to be present at sentencing, his right to allocution, and his right to review and controvert his presentence report.

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, as well as the relevant statutory and case law, we resolve Wicks's points of error as follows:

1. Entry of Plea

We conclude that Wicks's plea to all charges was entered knowingly, voluntarily, and intelligently.*fn2 No motion to withdraw has been filed, so the applicable "standard of review for the withdrawal of a nolo contendere plea after sentencing is based on a showing of necessity to avoid manifest injustice." State v. Cornelio, 68 Haw. 644, 646, 727 P.2d 1125, 1126 (1986). Wicks contends that he did not have the requisite awareness of the circumstances and consequences surrounding his plea because he did not believe that mandatory minimum sentencing applied to him and because he was erroneously told that he could fight his case "from Habilitat". His contentions are belied by the exchange he participated in with the Circuit Court. See Cornelio, 68 Haw. at 646, 727 P.2d at 1127 ("[T]here is no manifest injustice when the trial court has made 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.") (citation and internal quotation marks omitted).

2. Allocution

However, with regard to sentencing, our review of the record reveals that Wicks may not have been present for sentencing on all offenses and was not clearly advised of his opportunity for allocution as to all charges before he was sentenced.

A defendant's right to pre-sentence allocution is described in HRS ยง 706-604(1) (1993). It provides that "[b]efore imposing sentence, the court shall afford a fair opportunity to the defendant to be heard on the issue of the defendant's disposition." Hawaii Rules of Penal Procedure (HRPP) Rule 32(a) also requires that "[b]efore suspending or imposing sentence, the court shall address the defendant personally and afford a fair opportunity to the ...


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