TO THE INTERMEDIATE COURT OF APPEALS (CAAP-14-1195 and
CAAP-14-1196; CR. NOS. 12-1-0224 and 12-1-0387)
(CAAP-14-1197; CR. NO. 13-1-0813)
A. Luiz for petitioner.
J. Thomas for respondent.
RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON,
issue at the core of this appeal is whether courts must
advise defendants that restitution is a possible consequence
of conviction before accepting a guilty or no contest plea.
Petitioner Kristopher Kealoha ("Kealoha") appeals
the Circuit Court of the First Circuit's ("circuit
court") Judgments of Conviction and Sentence in three
criminal cases. In a Hawai'i Rules of Penal
Procedure ("HRPP") Rule 11 plea agreement with the
State of Hawai'i ("State") to which the circuit
court agreed to be bound, Kealoha agreed to plead guilty in
all three cases, provided that he would be sentenced to serve
concurrent terms of imprisonment, the longest of which would
be five years.
appeal, Kealoha asserts the circuit court violated that
agreement by also sentencing him to pay restitution. He
argues he should be resentenced in conformity with his plea
agreement, without being required to pay restitution. He
alternatively argues he should be allowed to withdraw his
guilty plea. The Intermediate Court of Appeals
("ICA") disagreed and affirmed the circuit court in
its Summary Disposition Order, State v. Kealoha,
Nos. CAAP-14-0001195, CAAP-14-0001196, CAAP-14-0001197, at 2
(App. Apr. 28, 2017) (SDO).
certiorari, Kealoha asserts that the ICA erred in affirming
the convictions and not granting him the relief he requested.
His appellate counsel also requests that we review the
ICA's July 17, 2017 Order Approving in Part and Denying
in Part Defendant-Appellant's Request for Attorney's
Fees and Costs ("ICA's July 17, 2017 order") to
the extent it reduced his request for attorney's fees.
reasons stated below, we hold that because restitution is
part of the "maximum penalty provided by law" and
is a direct consequence of conviction, defendants must be
appropriately advised and questioned in open court regarding
their understanding of this possibility before a court can
accept their pleas. In so holding, we overrule in part the
ICA's opinion in State v. Tuialii, 121
Hawai'i 135, 214 P.3d 1125 (App. 2009), cert,
denied, 2010 WL 60962. Although the circuit court did
not conduct a proper colloquy in Kealoha's case, because
Kealoha never filed an appropriate motion in the circuit
court, we affirm his convictions without prejudice to him
filing a HRPP Rule 40 petition in the circuit court. We also
partially grant appellate counsel's request for an
increased award of attorney's fees for his work before
Circuit Court Proceedings
2012 to 2013, Kealoha was charged with a number of offenses
in three separate criminal cases. On February 10, 2012, in
Cr. No. 12-1-224, Kealoha was charged with one count of
Assault in the Second Degree, in violation of HRS §
707-711 (1) (a) and/or §707-711 (1) (b) and/or
§707-711 (1) (d) . On March 12, 2012, in Cr. No.
12-1-387, Kealoha was charged with one count of each of the
following: Unauthorized Control of a Propelled Vehicle in
violation of HRS § 708-836, Promoting a Dangerous Drug
in the Third Degree in violation of HRS § 712-1246,
Promoting a Detrimental Drug in the Third Degree in violation
of HRS § 712-1249, Resisting Arrest in violation of HRS
§ 710-1026(1)(a), Driving Without a License in violation
of HRS § 286-102, Accidents Involving Bodily Injury in
violation of HRS § 291C-12.6, and Resisting an Order to
Stop a Motor Vehicle in violation of HRS §
710-1027. On June 7, 2013, in Cr. No. 13-1-813,
Kealoha was charged with one count of Assault in the Third
Degree, in violation of HRS § 707-712(1)
Change of plea hearing
28, 2014, Kealoha pled guilty to all counts in all three
cases. At the change of plea hearing, Kealoha indicated that
he would prefer to go to trial if the court did not bind
itself to his plea agreement with the State:
[THE COURT]: You want to plead guilty in all cases as to all
[THE DEFENDANT]: If there's a deal, Your Honor. If this
is a Rule 11, you know what I mean? I don't understand
exactly everything. But if -- if I'm pleading guilty and
it's a Rule 11 and everybody going give me one open 5
max, that's it, for everything, then, yeah. Sure, I like
take that deal. But, if it's not, Your Honor, I going go
circuit court then confirmed the existence and terms of the
plea agreement with Kealoha's counsel and the State:
THE COURT: What is the plea agreement?
[DEFENSE COUNSEL]: Everything concurrent.
THE COURT: And he gets the open term and everything
[DEFENSE COUNSEL]: Yeah.
THE COURT: I will bind myself to this agreement.
THE DEFENDANT: The open term of 5 years max, that's it,
THE COURT: And I'm going to make it altogether
THE DEFENDANT: Right.
THE DEFENDANT: Judge - Your Honor, again, I know you the top
guy on this, but is the prosecutor, everybody on the same
page, you know what I mean?
THE COURT: Hang on.
[THE STATE]: I'm sorry, Your Honor.
THE COURT: Go ahead.
[THE STATE]: And I did - I should have clarified. I did
orally commit myself to this. I haven't signed, but we
did -- we have discussed this, and I -- I have agreed.
THE COURT: Okay.
[THE COURT:] He just said he's agreed to the open 5.
[THE DEFENDANT:] And that's it? Max? Open 5 max for all
charges concurrent, again?
[THE COURT:] For all Class C felonies, I going give you 5
years, and I going have you serve it concurrently, at the
orally confirmed that he signed the change of plea form for
each case. The change of plea forms contained the following
boilerplate language in paragraph six:
6. I understand that the court may impose any of the
following penalties for the offense(s) to which I now plead:
the maximum term of imprisonment, any extended term of
imprisonment, and any mandatory minimum term of imprisonment
specified above; consecutive terms of imprisonment (if more
than one charge); restitution; a fine; a fee and/or
assessment; community service; probation with up to one year
of imprisonment and other terms and conditions.
to each of the change of plea forms were documents prepared
by counsel labelled "Exhibit A, " which contained a
brief admission of guilt with respect to each charge and a
statement that Kealoha reviewed and understood the contents
of the change of plea form. When asked whether he reviewed
the forms with his attorney, Kealoha replied, "[h]e read
it to me, Your Honor. Yes." Kealoha confirmed that he
understood what was read to him, and that he understood the
charges against him.
court explained, and Kealoha stated he understood, that based
on the plea agreement Kealoha would be sentenced to a
five-year term of imprisonment in Cr. No. 12-1-387, a
five-year term in Cr. No. 12-1-224, and a one-year term in
Cr. 13-1-813. For the non-felony charges in Cr. 12-1-387, the
court indicated that it would impose lesser jail sentences to
run concurrently to the five-year terms for the felony
charges, and Kealoha stated that he understood. Finally,
Kealoha acknowledged that he still wanted to plead guilty,
and acknowledged that he would be giving up the right to a
trial, stating: "Your Honor, as long as it's a 5
max, I'm good. I'm good with that."
was not discussed at the change of plea hearing.
sentencing hearing was held on August 20, 2014. After Kealoha
addressed the court, the circuit court confirmed the terms of
the plea agreement with his counsel:
THE COURT: My understanding is that the plea agreement calls
for an open term of incarceration to be served concurrently
with each other.
[DEFENSE COUNSEL]: Yes, everything concurrent that hadn't
-- some of them have been served already, too.
State did not offer any corrections to these statements. In
addition to the terms of imprisonment, however, the court
then also ordered Kealoha to pay restitution in the amount of
$633.33 for Cr. No. 12-1-224 and $4, 140.05 for Cr. No.
12-1-387. No restitution was ordered in Cr. No.
the circuit court announced its sentence, Kealoha expressed
concerns about being able to pay restitution:
THE DEFENDANT: I don't know how I going - excuse me, Your
Honor, but I don't know how I going pay this. I cannot
just do time instead of restitution or just make more --
THE COURT: You can talk to your lawyer about judgments.
THE DEFENDANT: You know what I mean?
[DEFENSE COUNSEL]: We talked about that.
THE DEFENDANT: This guy doesn't really like me that much.
THE COURT: Mr. Kealoha, you cannot pay what you don't
THE DEFENDANT: That's what I'm saying. I feel I
cannot pay what I don't have, so would just be more
logical if I just do it with my time. You know what I mean?
[DEFENSE COUNSEL]: You're doing the time either way so -
THE DEFENDANT: Hold on, hold on, hold on. That way, one day
-- ''cause where I starting today, I going get my
life on track, I go outside, get one job. You know what I
mean? I just like be free from anything that going hinder my
life in the future. You know what I'm saying, right?
THE COURT: You can talk to [defense counsel].
THE DEFENDANT: Again, I reiterate, this guy doesn't like
[DEFENSE COUNSEL]: Whatever.
circuit court entered a Judgment of Conviction and Sentence
in each of Kealoha's cases on August 20, 2014. Counsel
subsequently withdrew as Kealoha's attorney,
and substitute counsel was appointed for appeal. Kealoha did
not file any post-sentence motion with the circuit court to
set aside the restitution order or withdraw his plea.
April 10, 2015, Kealoha's three cases were consolidated
before the ICA. In his opening brief, Kealoha argued
that restitution was never part of the plea agreement to
which the circuit court agreed to be bound, and therefore he
should be permitted to withdraw his guilty plea because he
did not get the benefit of his bargain pursuant to the clear
and unambiguous terms of the plea agreement. Kealoha asserted
that, because the change of plea form did not include any
specific amounts of restitution to be imposed at sentencing,
his guilty plea was not knowing, intelligent and voluntary as
it deviated from the specific terms of the plea agreement.
answering brief, the State argued Kealoha filed no motion
below to withdraw his guilty plea or to correct his
"illegal" sentence on the ground his plea was
infirm, and that Tuialii and HRPP Rule 32(d)
required him to file such a motion within ten days after
imposition of his sentence. The State suggested that, like
the defendant in Tuialii, Kealoha should have filed
an HRPP Rule 40 motion after the ten-day period for an HRPP
Rule 32(d) motion had elapsed. The State contended that even
if Kealoha had filed a motion to withdraw his plea,
Tuialii holds that restitution is a collateral
consequence of a plea, and therefore the trial court was not
required to apprise him that he could be subject to a
free-standing order of restitution.
the State asserted Kealoha understood and was actually
properly advised of the consequences of his plea, based on
the contents of the plea form and the exhibit attached to the
plea form. Specifically, the State argued that paragraph six
of the change of plea forms lists restitution as a possible
penalty, among other penalties, and that Exhibit A to
Kealoha's forms states that Kealoha reviewed and
understood the change of plea forms, including paragraph 6.
SDO, the ICA held the circuit court did not abuse its
discretion in ordering restitution because restitution was
statutorily required under HRS §§ 706-646(2) (2014)
and 706-605(7)(2014). Kealoha, SDO at 2 (citing
State v. Feleunga, No. 30450, 3 (App. Nov. 15, 2011)
(SDO) (finding no abuse of discretion by the circuit court
when the plea agreement did not prohibit the imposition of
restitution and restitution was required by HRS §
706-646)). The ICA determined that Kealoha and the State came
to an agreement only as to terms of incarceration, based on
the fact that Exhibit A to the change of plea forms did not
mention any other possible penalties. Kealoha, SDO
at 3. Further, the ICA noted that neither Kealoha nor his
attorney "ever objected to the imposition of restitution
as outside the plea agreement" at the sentencing
hearing, despite Kealoha's protestations about his
"ability to pay a judgment of restitution, during which
defense counsel stated that Ve talked about that, '
indicating that it was not a surprise." Id. For
these reasons, the ICA concluded "the plea agreement did
not expressly include restitution, but did not prohibit it
and in fact noted the possibility of restitution being
on its decision in Tuialii, the ICA also concluded
that restitution is a collateral consequence of a no contest
or guilty plea, and therefore Kealoha's plea was not
rendered involuntary by the circuit court's failure to
warn him about restitution. Kealoha, SDO at 2
(citing Reponte v. State, 57 Haw. 354, 363-64, 556
P.2d 577, 584 (1976); Tuialii, 121 Hawai'i at
139, 214 P.3d at 1129). The ICA's Judgments on Appeal
were filed on July 26, 2017.
court-appointed appellate attorney subsequently filed a
request for appellate attorney's fees and costs seeking
$59.84 in costs and $7, 425.00 in attorney's fees. In its
July 17, 2017 order, the ICA majority summarily granted
counsel attorney's fees in the reduced amount of $5, 000
and costs in the reduced amount of $54.90. Judge Ginoza
dissented, stating that she would have granted the requested
Application for Certiorari
seeks review of the ICA's SDO upholding the circuit
court's order of restitution, as well as the July 17,
2017 ICA order with respect to the reduction of appellate
counsel's fees for work before the ICA.
issue of restitution, Kealoha again asserts the circuit court
deviated from the plea agreement by imposing restitution, and
that, therefore his plea was not knowingly, intelligently,
and voluntarily made. He argues "restitution is . . . a
direct term of the sentence that is to be imposed upon a
defendant pursuant to HRS § 706-605, " and
therefore Kealoha should have been informed, prior to the
acceptance of his guilty plea, that restitution could be
remedy for the alleged improper inclusion of restitution in
the sentence, he requests remand to the circuit court for
resentencing or withdrawal of his guilty plea. Kealoha asks
this court "to adopt a bright line rule that requires
any restitution to be imposed at sentencing, be clearly
included in ...