As Corrected Dec. 16, 2013.
[Copyrighted Material Omitted]
Daniel G. Hempey, (Hempey & Meyers LLP), on the briefs, for petitioner-appellant.
Tracy Murakami, Deputy Prosecuting Attorney, County of Kaua‘ i, on the briefs, for respondent-appellee.
NAKAMURA, Chief Judge, and FOLEY and REIFURTH, JJ.
Petitioner-Appellant Edmund Christian (Christian) was charged by complaint with Operating a Vehicle Under the Influence of an Intoxicant (OVUII). On June 24, 2008, he pleaded no contest to the OVUII charge. On that same day, he was sentenced to a fine of $700 and various fees and assessments. Christian did not appeal his OVUII conviction or sentence.
Over two years after his judgment of conviction became final, Christian sought to collaterally attack his conviction. On August 23, 2010, he filed a Hawai'i Rules of Penal Procedure (HRPP) Rule 40 (2006) " Petition to Vacate, Set Aside or Correct Prior Judgment/Conviction" (Rule 40 Petition), alleging for the first time that his OVUII charge was insufficient. Christian relied upon the Hawai'i Supreme Court's 2009 decision in State v. Wheeler, 121 Hawai'i 383, 219 P.3d 1170 (2009), which held that an OVUII charge which tracked the language of the statute prescribing the offense, but failed to allege that the offense was committed " upon a public way, street, road, or highway" (public-road element), was defective. Christian argued
that his OVUII charge was similarly defective for failing to allege the public-road element, that the defect in the charge was jurisdictional, and therefore his judgment of conviction was a nullity. The District Court of the Fifth Circuit (District Court)  denied Christian's Rule 40 Petition, and Christian appealed.
We hold that the rule announced in Wheeler does not apply retroactively to cases on collateral review. In determining the extent to which a newly announced judicial rule should be given retroactive effect, we consider " (a) the purpose of the newly announced rule, (b) the extent of reliance by law enforcement authorities on the old standards, and (c) the effect on the administration of justice of a retroactive application of the new standards[.]" State v. Jess, 117 Hawai'i 381, 401-02, 184 P.3d 133, 153-54 (2008) (internal quotation marks and citation omitted). Applying these factors, we conclude that the new rule announced in Wheeler — that charging the OVUII offense in the language of the statute is insufficient and that an OVUII charge is defective unless it specifically alleges the public-road element— should not be applied retroactively to defendants seeking relief on collateral review. Moreover, even if Wheeler applies retroactively to Christian's Rule 40 Petition, we conclude that given the heightened interest in finality that attaches to cases on collateral review, Christian must demonstrate exceptional circumstances to merit relief on his belated challenge to the sufficiency of his charge. Because Christian cannot rely on the Wheeler rule, and because he does not show exceptional circumstances meriting relief, we affirm the denial of his Rule 40 Petition.
On February 20, 2008, Plaintiff-Appellee State of Hawai'i (State) charged Christian by written complaint with (1) OVUII as a highly intoxicated driver, in violation of Hawaii Revised Statutes (HRS) §§ 291E-61(a)(1) and/or (a)(3) and (b)(2) (2007) (Count I); and (2) Disobedience to Police Officer, in violation of HRS § 291C-23 (2007) (Count II). The State's OVUII charge tracked the language of the offense statute and did not allege the public-road element required under Wheeler — that Christian had operated or assumed actual physical control of his vehicle " upon a public way, street, road, or highway." The State charged Christian in Count I as follows:
On or about the 16th day of January, 2008, in the County of Kauai, State of Hawaii, [Christian] did, while under the influence of an intoxicant, operate or assume actual physical control of a vehicle while under the influence of alcohol in an amount sufficient to impair his normal mental faculties or ability to care for himself and guard against casualty and/or with 0.8 or more grams of alcohol per two hundred ten liters of breath thereby committing the offense of Operating a Vehicle Under the Influence of an Intoxicant in violation of Sections 291E-61(a)(1) and/or (3) of the. Hawaii Revised Statutes. [Christian] is subject to sentencing in accordance with Section 291E-61(b)(2) of the Hawaii Revised Statutes, where [Christian] was a highly intoxicated driver as defined in Section 291E-1 of the Hawaii Revised Statutes at the time this offense was committed.
Pursuant to a plea agreement, Christian entered a no contest plea to the OVUII charge in Count I, and Count II was dismissed with prejudice. The District Court accepted Christian's no contest plea and sentenced him to pay a $700 fine plus fees and assessments. The District Court entered its Judgment on June 24, 2008. Christian did not challenge the sufficiency of the OVUII charge at trial or appeal his conviction.
On August 23, 2010, Christian filed his Rule 40 Petition in the District Court. In his Rule 40 Petition, Christian relied upon Wheeler in arguing that his conviction should be vacated. On January 31, 2011, the District Court denied Christian's Rule 40 Petition pursuant to its " Findings of Fact, Conclusions of Law and Order Denying HRPP Rule 40 Petition for Post-Conviction Relief"
(Order Denying Rule 40 Petition). The District Court concluded that:
[T]he Wheeler court recognized that different principles apply when the issue of sufficiency of the charge/complaint are first raised in a post-conviction setting and that under the " Motta / Wells [ ] post-conviction liberal construction rule," the court will liberally construe charges challenged for the first time on appeal. In the instant case, this court concludes that the " presumption of validity" for charges challenged subsequent to a conviction would require a showing by [Christian] of prejudice.
Christian timely appealed from the District Court's Order Denying Rule 40 Petition.
HRS § 291E-61(a) provides in relevant part:
(a) A person commits the offense of operating a vehicle under the influence of an intoxicant if the person operates or assumes actual physical control of a vehicle:
(1) While under the influence of alcohol in an amount sufficient to impair the person's normal mental faculties or ability to care for the person and guard against casualty;
(3) With .08 or more grams of alcohol per two hundred ten liters of breath[.]
(Emphasis added.) HRS § 291E-1 (2007), in turn, defines the term " operate" as used in HRS § 291E-61 to mean " to drive or assume actual physical control of a vehicle upon a public way, street, road, or highway [.]" (Emphasis added.)
In Wheeler, the supreme court concluded that the common understanding of the term " operate" did not give fair notice of the term's statutory definition, which included the geographical requirement that the OVUII offense occur " upon a public way, street, road, or highway" as an essential element of the offense. Wheeler, 121 Hawai'i at 391-95, 219 P.3d at 1178-82. The supreme court therefore held that charging in the language of the offense statute and using the term " operate" in Wheeler's OVUII charge, without also specifically alleging the public-road element included in the term's statutory definition, rendered Wheeler's OVUII charge deficient. Id.
Relying on Wheeler, Christian argues in this appeal that his OVUII charge is similarly deficient because the State failed to specifically allege the public-road element. Christian further argues, relying on State v. Cummings, 101 Hawai'i 139, 142-43, 63 P.3d 1109, 1112-13 (2003), that the deficiency in his OVUII charge was a jurisdictional defect that rendered his conviction a nullity.
The State concedes that Christian's charge was deficient under the " new standard" announced in Wheeler, but argues that we should not apply the Wheeler rule ...