CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (ICA No. 29520; HPD Traffic No. 1DTA-08-03393).
Leslie C. Maharaj, for petitioner.
Brian R. Vincent, for respondent.
ACOBA, McKENNA, POLLACK, JJ.
We hold that the charge for Operating a Vehicle Under the Influence of an Intoxicant, (OVUII), HRS § 261E-61 (a) (1) (2007) was insufficient because Respondent/Plaintiff-Appellee the State of Hawai'i (the State) failed to allege the requisite states of mind of intentional, knowing, or reckless in the charge, State v. Apollonio, --- P.3d ----, 2013 WL 5574921, at *5 (Haw. Oct. 10, 2013); see also State v. Nesmith, 127 Hawai'i 48, 54, 276 P.3d 617, 623 (2012), and because the charge failed to allege an "essential fact constituting the offense charged." Hawai'i Rules of Penal Procedure (HRPP) Rule 7(d). Accordingly, the conviction of Petitioner/Defendant-Appellant Peter Newal Maharaj (Defendant) is dismissed without prejudice. The November 23, 2012 judgment of the Intermediate Court of Appeals (ICA), filed pursuant to its October 25, 2012 Summary Disposition Order (SDO), having been to the contrary in affirming Defendant's conviction, as well as the November 18, 2008 Judgment of conviction of the District Court of the First Circuit (the court) are therefore vacated.
According to Defendant, he "was orally charged on April 10, 2008 with Operating a Vehicle Under the Influence of an Intoxicant, (OVUII), Hawai'i Revised Statutes (HRS) §§ 291E-61(a)(1) & (b)(1) (2007)." Defendant states the "oral charge was reduced to an Order and Notice of Entry of Order [(Order)] on that same date." He maintains "the [Order] does not clearly state in writing the specific allegations of the charge against [Defendant]" and "does not allege the relevant mens rea as there is no reference to an intentional, knowing or reckless state of mind in the charge." Thus, Defendant points out, "the Order merely states that the violation charged is HRS [§] 291E-61[.]" A "Notice of Entry of Judgment and/or Order and Plea/Judgment [(Judgment)] was entered against [Defendant] on November 18, 2 0 0 8."
Defendant appealed to the ICA on December 11, 2008. On appeal, Defendant argued that "(1) he received ineffective assistance of counsel because his trial counsel failed to introduce [his] medical records into evidence; (2) there was insufficient evidence to support [Defendant's] conviction; and (3) [the court] erred in denying [Defendant's] motion to suppress evidence." State v. Maharaj, No. 29520, 2012 WL 5272227 (Hawai'i App. Oct. 25, 2012) (SDO). The transcript of the second part of Defendant's trial was made a part of the record on appeal. However, the ICA noted that "[t]he transcript for the September 29, 2008, hearing on the motion to suppress evidence and the beginning of trial was not made part of the record on appeal." Maharaj, 2012 WL 5272227 at *1. The ICA affirmed the court's judgment on October 25, 2012.
This court filed the decision in Nesmith on April 12, 2012.
Defendant filed a Motion for Reconsideration with the ICA on November 5, 2012, arguing that the charge against him was jurisdictionally defective since it did not "allege the requisite mens rea. . . ." (Citing Nesmith, 127 Hawai'i 48, 276 P.3d 617.) In this motion, Defendant contended that the charge was "facially defective" and that the court "lacked subject matter jurisdiction, " which was "not waivable." The State did not file a response to Defendant's reconsideration motion contesting Defendant's recitation of the contents of the charge. Nevertheless, the ICA denied Defendant's Motion for Reconsideration on November 14, 2012, citing its decision in State v. Rivera, No. CAAP-11-0000774, 2012 WL 4344185 at *1 (App. Sept. 24, 2012) (SDO). State v. Maharaj, No. 29520, 2102 WL 5272227 at *1 (App. Nov. 14, 2012) (SDO).
In Rivera, the ICA held in pertinent part, "the supreme court's decision in [Nesmith] raises, but does not clearly answer, the question of whether a deficiency in a charge for failing to allege the requisite mens rea is a jurisdictional defect." (Quoting Rivera, 2012 WL 4344185 at *2.) The ICA adopted what it construed as the ...