431 P.3d 1274 (Hawai‘i 2018), SCWC-15-0000067, State v. Hernandez

Docket NºSCWC-15-0000067
Citation431 P.3d 1274, 143 Hawai‘i 501
Opinion JudgePOLLACK, J.
Party NameSTATE of Hawai‘i, Respondent/Plaintiff-Appellee, v. Pierre HERNANDEZ, Petitioner/Defendant-Appellant.
AttorneyReiko A. Bryant, Audrey L. Stanley, Honolulu, for petitioner James M. Anderson, Sonja P. McCullen, for respondent
Case DateDecember 21, 2018
CourtSupreme Court of Hawai'i

Page 1274

431 P.3d 1274 (Hawai‘i 2018)

143 Hawai‘i 501

STATE of Hawai‘i, Respondent/Plaintiff-Appellee,


Pierre HERNANDEZ, Petitioner/Defendant-Appellant.

No. SCWC-15-0000067

Supreme Court of Hawai‘i

December 21, 2018

Page 1275

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Reiko A. Bryant, Audrey L. Stanley, Honolulu, for petitioner

James M. Anderson, Sonja P. McCullen, for respondent




[143 Hawai‘i 504] In this appeal, Pierre Hernandez challenges the validity of his no contest plea and the sentence imposed, both of which occurred after the trial court found that Hernandez had waived his presence at the court proceeding by the filing of a document signed by Hernandez and a declaration by his counsel. We first conclude that Hernandez’s challenge to his sentence was not precluded by his plea of no contest. We also hold that Hernandez’s right of allocution, which is protected by the Hawaii Revised Statutes and the Hawai‘i Constitution, was violated when the district court did not afford him the opportunity to be heard prior to being sentenced. Lastly, we conclude that the district court’s acceptance of Hernandez’s no contest plea without an on-the-record colloquy was plain error. We thus vacate Hernandez’s conviction and remand the case to the district court for further proceedings consistent with this opinion.

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On November 6, 2014, the State of Hawai‘i charged Pierre Hernandez by complaint in the District Court of the First Circuit (district court) with harassment by stalking in violation of Hawaii Revised Statutes (HRS) § 711-1106.5.1

On January 6, 2015, Hernandez through counsel filed a "Rule 43 Plea by Mail" ("plea by mail document" or "the document") pursuant to Rule 43 of the Hawai‘i Rules of Penal Procedure (HRPP).2 The document indicated that Hernandez was pleading no contest to the charged offense of harassment by stalking. It also stated that Hernandez understood that (1) he had the right to be present at various proceedings, including arraignment, the entry of plea, and sentencing; (2) he was voluntarily waiving his right to be present at these proceedings and to be questioned in open court; and (3) he was authorizing his lawyer to represent him at the proceedings.

In addition, the plea by mail document stated that Hernandez was consenting to the court’s imposition of a sentence in his absence and that he understood "that non-compliance with the court’s judgment or order will result in the issuance of a bench warrant, subjecting [him] to being arrested and having to appear in court." Further, the document included a declaration by counsel, stating that Hernandez represented to him that he did not wish to be present and wished for the proceedings to be conducted in his absence; that counsel read and explained the plea by mail document to Hernandez; and that the statements in the document were consistent with counsel’s understanding of Hernandez’s position.3

At a hearing on January 7, 2015,4 counsel for Hernandez indicated that Hernandez, who was not present, was residing in another state and had requested deferred acceptance of his no contest plea. The district court stated that it was in receipt of the plea by mail document submitted by counsel that

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[143 Hawai‘i 506] indicated Hernandez had completed twelve years of education, was aware of the charge against him, and understood his possible defenses, as well as the maximum possible penalties and any potential citizenship issues a conviction might raise. Although Hernandez was not physically present and there was no established communication with him at the hearing, the court accepted the no contest plea, ruling that the plea was made knowingly, intelligently, and voluntarily. The court further concluded that Hernandez knowingly, intelligently, and voluntarily waived his right to a jury trial based on a waiver of jury trial form also submitted by defense counsel. The court then found Hernandez guilty as charged and proceeded to sentencing.

Before the court imposed sentence, the complainant provided a statement to the court in which she objected to the granting of a deferral and stated, inter alia, that another complainant had filed a restraining order against Hernandez and that the court should impose jail time. The court thereupon denied Hernandez’s motion for deferral of acceptance of the no contest plea and restated that Hernandez had signed all the waiver documents; that his no contest plea was made knowingly, intelligently, and voluntarily; and that the court had found him guilty. The district court sentenced Hernandez to a probationary term of eighteen months conditioned on Hernandez serving thirty days in jail and two hundred hours of community service and also imposed fees totaling $130. The court stated that, if Hernandez was not returning to Hawai‘i, a mittimus was to issue forthwith. After counsel for Hernandez indicated that he would send the paperwork to Hernandez and inform him that the court was ordering him to appear on February 9, 2015, the court delayed the mittimus until that date.5

Hernandez appealed to the Intermediate Court of Appeals (ICA) from the district court’s judgment entered on January 7, 2015,6 "and all trial and pre-trial motions filed or made by Defendant, that were denied by the Court."7


In his opening brief, Hernandez argued that the district court committed plain error when it violated his constitutional and statutory right of allocution, which he had not waived, by failing to give him an opportunity to make a statement prior to being sentenced. This court, Hernandez contended, has previously questioned whether the denial of presentence allocution constitutes harmless error and has stated that the remedy under such circumstances is a remand for resentencing. In addition, Hernandez asserted that the district court did not personally address him, whereas the complainant was permitted to provide a lengthy statement, which included an objection to a possible deferral, an entreaty to impose jail time, and a reference to a separate restraining order against Hernandez. Hernandez concluded that the denial of his right to allocution deprived him of his constitutional right to due process under article I, section 5 of the Hawai‘i Constitution.8

In its answering brief, the State argued that the ICA lacked appellate jurisdiction because Hernandez asserted nonjurisdictional claims, which were precluded by the entry of an intelligent and voluntary guilty plea.

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[143 Hawai‘i 507] Because Hernandez did not file a motion to withdraw his plea and his plea was not made on the condition that he may appeal certain rulings, the State submitted that the case should be dismissed.

Alternatively, the State contended that Hernandez’s no contest plea complied with HRPP Rule 11, adding that the district court ensured that his plea was voluntary and not the product of threats or promises. As to Hernandez’s argument regarding his right of allocution, the State maintained that HRPP Rule 43(d)(2) does not require the court to address the defendant, and in any event, Hernandez voluntarily waived his right to be present at all proceedings, including sentencing, authorized his counsel to represent him at sentencing, and waived his right to be questioned in open court. Thus, the State argued, Hernandez’s no contest plea was valid under HRPP Rule 32 (2012).9

In his reply, Hernandez contended that the State’s argument regarding jurisdiction lacked merit because an appellate court may review an invalid no contest plea under plain error, as in this case. Although his counsel informed the court that he would enter a no contest plea, Hernandez asserted, "it was nonetheless incumbent on the court to address the defendant personally." Hernandez maintained that the court in accepting a guilty plea cannot rely solely on counsel’s presence and representations, concluding that an on-the-record colloquy was, at a minimum, required to show that he had full understanding of the no contest plea and its consequences.

On March 17, 2017, the ICA entered a summary disposition order affirming the district court’s judgment.10 The ICA rejected Hernandez’s contention that the district court plainly erred by not personally addressing him regarding his right of allocution prior to imposing sentence. The ICA concluded that Hernandez’s claims were not jurisdictional, that he did not file a motion to withdraw his no contest plea, and that his plea was not conditional. The ICA thus concluded that Hernandez was "precluded from ‘later asserting any nonjurisdictional claims [to his no contest plea], including constitutional challenges to the pretrial proceedings.’ " (Quoting State v. Morin, 71 Haw. 159, 162-63, 785 P.2d 1316, 1318-19 (1990).)


We review questions of law under the right/wrong standard. State v. Gomez-Lobato, 130 Hawai‘i 465, 469, 312 P.3d 897, 901 (2013) (citing State v. Friedman, 93 Hawai‘i 63, 67, 996 P.2d 268, 272 (2000) ).


On certiorari, Hernandez presents two questions for review: (1) whether the ICA erred in rejecting his appeal of the district court’s denial of his right of allocution at sentencing on the basis that the challenge was precluded by his no contest plea and (2) whether the district court plainly erred in accepting his no contest plea when it was not made knowingly, intelligently, and voluntarily. The...

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