May 24, 2013
ROBIN BARTHOLOMEW, Petitioner-Appellant,
STATE OF HAWAl'l, Respondent-Appellee
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER
APPEAL FROM THE DISTRICT COURT OF THE SECOND CIRCUIT WAILUKU DIVISION (DISTRICT COURT SPECIAL PROCEEDING NO. 11-1-0002)
Matson Kelley for Petitioner-Appellant.
Richard K. Minatoya, Deputy Prosecuting Attorney, County of Maui, for Respondent-Appellee.
Fujise, Presiding Judge, Leonard and Reifurth, JJ.
SUMMARY DISPOSITION ORDER
Petitioner-Appellant Robin Bartholomew ("Bartholomew") appeals from the Findings of Fact, Conclusions of Law, and Order Denying Petition for Post-Conviction Relief ("Order"), filed on July 22, 2011, in the District Court of the Second Circuit, Wailuku Division ("District Court"). On August 16, 2000, Bartholomew was found guilty of Theft in the Third Degree, in violation of Hawaii Revised Statutes ("HRS") § 708-832 (1993) after pleading no contest to the charge. At the time of Bartholomew's conviction, Theft in the Third Degree was classified as a misdemeanor for which a defendant could be sentenced to a maximum of one year of imprisonment and a fine of $2, 000. Haw. Rev. Stat. §§ 706-640 (Supp. 2012), - 663 (1993). During the colloquy that preceded the acceptance of his plea, the District Court incorrectly informed Bartholomew that the maximum penalty for Theft in the Third Degree was thirty days in jail and a fine of $1, 000. Bartholomew was sentenced to one year of probation, ordered to pay a $50 criminal injury compensation fee, and required to complete forty hours of community service and a chemical-dependency program, as well as remain gainfully employed.
On appeal, Bartholomew contends that the District Court erred in finding that Bartholomew's claims were patently frivolous and without a trace of support in the record because (1) his nolo contendere plea was not made knowingly, intelligently, and voluntarily because the District Court misstated the maximum possible sentence and (2) he did not understand the nature of the charge and the consequences of the plea because the District Court did not inform him of the potential consequences associated with a plea made by someone who was not a United States citizen.
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 Bartholomew's points of error as follows:
(1) "[W]hen a defendant moves to withdraw a plea of nolo contendere under HRPP 32(d) after imposition of sentence, only a showing of manifest injustice will entitle the defendant to withdraw his or her plea." State v. Nguyen, 81 Hawai'i 279, 286, 916 P.2d 689, 696 (1996) (citing State v. Adams, 76 Hawai'i 408, 411, 879 P.2d 513, 516 (1994)).
A defendant must be informed of "the maximum penalty-provided by law, and the maximum sentence of any extended term of imprisonment, which may be imposed for the offense to which the plea is offered[.]" Haw. R. Pen. P. 11(c)(2). Thus, the District Court erred by advising Bartholomew that the maximum penalty and term of imprisonment was less than the term provided for in HRS §§ 706-663 and 706-640. The error was harmless, however, because the District Court sentenced Bartholomew to less time than it had (erroneously) warned Bartholomew that he might receive; Bartholomew was given no jail time and not fined more than $1, 000. See State v. Cornelio, 68 Haw. 644, 647, 727 P.2d 1125, 1127 (1986) (harmless error to inform defendant that maximum term of imprisonment was ten years when he pled no contest to a class A felony with a maximum term of twenty years but received a five-year term). Therefore, Bartholomew fails to show manifest injustice.
(2) Before accepting Bartholomew's no contest plea, and as part of a more lengthy colloquy, the District Court asked, "Now, if you're not a citizen of the United States - - well, are you a citizen of the United States?" Bartholomew answered, "Yes, your Honor." Presumably because of that response, the District Court did not explain to Bartholomew that, were he a non-citizen, pleading to the offense for which he was charged "may have the consequences of deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States." Haw. R. Pen. P. 11(c)(5).
Although the District Court erred in not completing the colloquy, it was harmless under the circumstances. Bartholomew does not contend that any of the information excluded by the District Court was relevant to him; consequently, he demonstrates no prejudice. See People v. Delvillar, 922 N.E.2d 330, 337 (111. 2009) (U.S. citizens "face no immigration consequences as a result of entering a guilty plea"), - cf. Cun-Lara v. State, 126 Hawai'i 541, 551, 273 P.3d 1227, 1237 (2012) (a defense attorney generally only need advise a non-citizen client that criminal charges may carry a risk of adverse immigration consequences). Therefore, Bartholomew fails to show manifest injustice.
Therefore, the Findings of Fact, Conclusions of Law, and Order Denying Petition for Post-Conviction Relief, filed on July 22, 2011 in the District Court of the Second Circuit, Wailuku Division, is affirmed.