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State v. Kealoha

Supreme Court of Hawaii

March 15, 2018

STATE OF HAWAI'I, Respondent/Plaintiff-Appellee,
KRISTOPHER KEALOHA, Petitioner/Defendant-Appellant and STATE OF HAWAI'I, Respondent/Plaintiff-Appellee,
KRISTOPHER KANE KEALOHA, Petitioner/Defendant-Appellant

         CERTIORARI 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)



          MCKENNA, J.

         I. Introduction

         The 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.[1] 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.

         On 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).

         On 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.

         For the 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 the ICA.

         II. Background

         A. Circuit Court Proceedings

         From 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) .[2] 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.[3] 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) (a).[4]

         1. Change of plea hearing

         On May 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 counts?
[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 trial.

         The 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 concurrent?
THE COURT: I will bind myself to this agreement.
THE DEFENDANT: The open term of 5 years max, that's it, for everything?
THE COURT: And I'm going to make it altogether concurrent.
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:] 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 same time.

         Kealoha 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.

         Attached 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.

         The 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."

         Restitution was not discussed at the change of plea hearing.

         2. Sentencing hearing

         The 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.

         The 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. 13-1-813.[5]

         After 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 have.
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? Understand?
THE COURT: You can talk to [defense counsel].
THE DEFENDANT: Again, I reiterate, this guy doesn't like me.

         The 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, [6] 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.

         B. ICA Proceedings

         On April 10, 2015, Kealoha's three cases were consolidated before the ICA.[7] 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.

         In its 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.

         Additionally, 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.

         In its 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 imposed." Id.

         Relying 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.

         Kealoha's 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.[8] Judge Ginoza dissented, stating that she would have granted the requested attorney's fees.

         C. Application for Certiorari

         Kealoha 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.

         On the 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 ordered.

         As a 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 either the change of plea form and/or the change of plea colloquy with a defendant."

         With respect to his request for attorney's fees and costs before the ICA, appellate counsel asserts he was entitled to fees exceeding the statutory cap of $5000 for an appellate proceeding because he reviewed dockets and filed documents in each of Kealoha's three cases before they were consolidated on appeal, and because he filed a motion for temporary relief in the consolidated case, among other things. He argues that three separate appeals "would allow a statutory cap in ...

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