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Crabbe v. State

Intermediate Court of Appeals of Hawaii

September 27, 2013

NOLAN L.K. CRABBE, Petitioner-Appellant,
v.
STATE OF HAWAI'I, Respondent-Appellee

NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT (SPECIAL PROCEEDING PRISONER NO. 10-1-0090 (CRIMINAL NO. 00-1-0300)).

Nolan L.K. Crabbe Petitioner-Appellant pro se.

Sonja P. McCullen Deputy Prosecuting Attorney, City and County of Honolulu for Respondent-Appellee.

Nakamura, C.J., Foley and Leonard, JJ.

MEMORANDUM OPINION

Petitioner-Appellant Nolan L.K. Crabbe appeals from the September 16, 2011 "Order Denying Hearing, Dismissing Petition To Vacate, Set Aside, Or Correct Judgment Pursuant to Rule 40, HRPP (Hawai'i Rules of Penal Procedure) And Summarily Denying Petitioner's Ex Parte Motions" (September 16, 2011 order) filed in the Circuit Court of the First Circuit[1] (circuit court).

I.

On June 9, 1998, the Respondent-Appellee State of Hawai'i (State) indicted Crabbe on one count of extortion in the first degree and one count of terroristic threatening in the first degree in Cr. No. 98-1244. Represented by the Office of the Public Defender, Crabbe moved to dismiss the indictment. On July 12, 1999, the circuit court[2] granted Crabbe's motion without prejudice on the basis that the circuit court found that the State failed to present clearly exculpatory evidence to the grand jury.

On February 15, 2000, the State indicted Crabbe, for a second time, in Cr. No. 00-1-0300 on one count of extortion in the first degree based on the same facts underlying the previous indictment in Cr. No. 98-1244. On September 12, 2000, Crabbe filed a motion to dismiss for failure to present clearly exculpatory evidence. On November 6, 2000, the circuit court[3]denied the motion because the exculpatory evidence had been presented to the grand jury, albeit in a different form.

On November 17, 2000, Crabbe filed a second motion to dismiss claiming that a prior ruling by Judge Town required dismissal of the indictment in Cr. No. 00-1-0300. The circuit court[4] denied the motion concluding that it was not bound by Judge Town's decision in Cr. No. 98-1244.

During a status conference, Myles Breiner (Breiner) replaced the Deputy Public Defender as Crabbe's attorney. Breiner then informed the circuit court that Crabbe wished to change his plea. The following exchange occurred:

MR. BREINER: Your honor, I've prepared a change of plea form. I've gone over it with Mr. Crabbe. I have a copy and the original and I believe three other copies are with the court.
THE COURT: Good afternoon, Mr. Crabbe.
[CRABBE]: Good afternoon, your honor.
THE COURT: It is the court's understanding that you wish to change your plea now to guilty to the charge of Extortion in the Third Degree; is that correct?
[CRABBE]: Yes, it is.
THE COURT: Okay. Okay. Because of that, the court will be asking you some questions, Mr. Crabbe, to make sure you understood the rights you may have had at trial. These rights you'll be waiving because you're pleading to the charge against you. You understand that?
[CRABBE]: Yes, your honor.
THE COURT: Okay. Could we have your full name please?
[CRABBE]: Nolan Lee Keliinohopono Crabbe.
THE COURT: Okay. And your age?
[CRABBE]: 43
THE COURT: And the last grade completed?
[CRABBE]: Six year college.
THE COURT: You understand what the maximum jail time and fine is for Extortion in the Third Degree?
[CRABBE]: Yes, your honor.
THE COURT: And what is that?
[CRABBE]: A year imprisonment, $2, 000 fine.
THE COURT: Okay. Now, in this matter, in exchange for your plea, the State -- you do have an agreement with the State as reflected in a May 12th, 2001 letter; is that correct?
[CRABBE]: Yes.
THE COURT: And in that situation they are reducing the --in exchange for your plea they are reducing this original charge down to ...

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