CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CAAP-12-0000106; CASE NO. 1DTA-11-02743)
Samuel P. King, Jr., for petitioner
Donn Fudo for respondent
RECKTENWALD, C.J., NAKAYAMA, ACOBA, McKENNA, AND POLLACK, JJ.
Daniel S. Nakano was charged with Operating a Vehicle Under the Influence of an Intoxicant (OVUII) in violation of Hawai'i Revised Statutes (HRS) §§ 291E-61 (a) (1), (a)(3), and (b)(1). Nakano entered a conditional no contest plea as to HRS § 291E-61(a)(1), conditioned on his ability to appeal on the ground that the charge was defective because it did not allege a state of mind. The State consented to the conditional plea. Although Nakano's written submission of plea form contained a conditional plea only to the HRS § 291E-61(a)(1) method of proof, the district court convicted Nakano of OVUII under both HRS §§ 291E-61 (a) (1) and (a)(3).
On appeal, the Intermediate Court of Appeals (ICA) determined that the district court's judgment should be vacated as to the HRS § 291E-61(a)(1) method of proof based on this court's decision in State v. Nesmith, 127 Hawai'i 48, 276 P.3d 617 (2012). The ICA further vacated Nakano's conviction as to HRS § 291E-61(a)(3), but determined that, on remand, the State could proceed to prosecute Nakano under the HRS § 291E-61(a) (3) method of proof. In his application, Nakano argues that the ICA violated his right to due process in remanding the HRS § 291E-61(a)(3) method of proof for further proceedings.
We conclude that the State cannot prosecute Nakano under HRS § 291E-61(a) (3) . Although the State did not explicitly agree to give up the HRS § 291E-61(a) (3) method of proof, it appears to have agreed to Nakano's no contest plea under HRS § 291E-61(a)(1), and any ambiguity as to what the State agreed to should be construed in favor of Nakano. Accordingly, we affirm the ICA's judgment vacating the district court's judgment, but clarify that, on remand, the State is precluded from prosecuting Nakano under the HRS § 291E-61(a)(3) method of proof.
The following factual background is taken from the record on appeal.
A. District Court Proceedings
On June 27, 2011, the State filed a complaint against Nakano, alleging he committed the offense of OVUII "in violation of Section 291E-61(a)(1) and/or (a)(3) of the [HRS]." The complaint did not contain a state of mind allegation.
At a proceeding on January 23, 2012, the deputy prosecuting attorney (DPA) informed the district court that the prosecution and the defense had "come to a conditional plea agreement" that "Nakano will be pleading No Contest to 291E-61(a)(1)(b)(1) and --" Defense counsel then stated:
That's true, Judge. And we have the form in front of you.
The conditional plea is raised, as you know, the issue of whether state of mind is required to be charged in a written complaint charging DUI[.] . . . So we are preserving that issue for appeal, otherwise we're doing a conditional plea.
Nakano submitted a Written Submission of Plea form, in which he initialed the following statements: "I plead ... No Contest to the following charge(s): HRS 261E-61(a)(1) and (b) (1) [.] . . . This is a conditional plea under HRPP Rule 11(a)(2) - Defendant is preserving the issue of the requirement of state of mind being charged in the written Complaint." (Emphasis added).
The following exchange then occurred at the proceeding:
THE COURT: Okay. (Indiscernible) stipulate to a factual basis. 
[Defense]: Yes. There's already a written charge, so we waive public reading of the written charge. And although our argument is that the charge is defective because it doesn't include state of mind.
The DPA then asked to re-arraign Nakano, and Nakano objected. The district court denied the DPA's request in light of a pending appeal of an unrelated case on the same issue, and because mens rea was a material element and the "original charge should have been dismissed without prejudice and recharged with the mens rea language." The district court continued:
THE COURT: The written filed complaint . . . has been filed, and that is what the defense is entering a No Contest Plea to. Conditionally, that if the Supreme Court overturns the ICA decision regarding mens rea that they will be allowed to withdraw the plea, correct?
[Defense]: Yes. I guess, basically, Judge, what I'm arguing is that the charge, as it's written, should be dismissed because it's defective. If you deny the motion, yes, then we're -- which I'm making, then we're preserving that issue on a conditional plea.
THE COURT: Okay. . . . [Y]our oral motion is denied.
The following exchange then occurred regarding Nakano's plea of No Contest:
THE COURT: . . . Okay, so your client's making a conditional plea ...