87 Hawai'i 249, State v. Davia

• Decision Date: 01 May 1998
• Docket Number: No. 19961,19961
• Parties: 87 Hawai'i 249 STATE of Hawai'i, Plaintiff-Appellee, v. David B. DAVIA, Defendant-Appellant.
• Court: Hawaii Supreme Court

Page 1347

953 P.2d 1347

87 Hawai'i 249

STATE of Hawai'i, Plaintiff-Appellee, v. David B. DAVIA, Defendant-Appellant.

No. 19961.

Supreme Court of Hawai'i.

May 1, 1998.

Darcia Forester, Deputy Public Defender, on the briefs, for defendant-appellant David B. Davia.

Artemio C. Baxa, Deputy Prosecuting Attorney, on the briefs, for the plaintiff-appellee State of Hawai'i.

Before MOON, C.J., and KLEIN, LEVINSON, NAKAYAMA, and RAMIL, JJ.

LEVINSON, Justice.

The defendant-appellant David B. Davia appeals from his conviction and sentence of one count of driving under the influence of intoxicating liquor in violation of Hawai'i Revised Statutes (HRS) § 291-4 (Supp.1996). ¹ He argues, and the prosecution concedes that the district court erred by (1) failing to engage Davia in an on-the-record colloquy to establish that his plea of no contest was knowing and voluntary, and (2) failing to accord Davia his right of allocution prior to sentencing. Additionally, Davia asserts that the ninety-day suspension of his driver's license (3) was not authorized by HRS § 291-4 and (4) constituted cruel and unusual punishment in violation of the eighth amendment to the United States Constitution ² and article I, section 12 of the Hawai'i Constitution (1978). ³

We agree with the parties that the district court erred in failing to establish on the record that Davia's plea was knowing and voluntary; accordingly, we vacate Davia's conviction and sentence and remand either for a new change of plea hearing before a different judge or, at Davia's option, for trial. Although this issue is outcome-dispositive of the instant appeal, we briefly address Davia's remaining points of error in order to provide guidance to the district court and the parties on remand.

I. BACKGROUND

The following facts were derived from the record and from the parties' offers of proof at trial.

On March 8, 1996, Davia was charged with one count of driving under the influence of intoxicating liquor, in violation of HRS § 291-4, and one count of inattention to driving, in violation of HRS § 291-12 (1993). ⁴ The charges arose out of an incident that occurred in the afternoon of January 14, 1996, at Welakahao Road in Kihei, on the Island of Maui. Maui Police Department Officer Donald Nakooka was dispatched to "respond to a case where an individual had struck a vehicle." Upon arrival, Officer Nakooka was greeted by Davia, who admitted to him that he had struck a parked car. Officer Nakooka noticed several indications of intoxication in Davia, including an odor of alcohol, unsteadiness, redness in the eyes, and slurred speech. Officer Nakooka spoke to the complainant, who told him that she had heard the sounds of a crash while standing outside her home and that, when she looked up, she observed that Davia, who had been riding a bicycle, had crashed into her parked car.

Officer Nakooka administered a field sobriety test to Davia at the scene, which Davia failed. After his arrest, Davia submitted to an "intoxilyzer" breath test, which indicated that he was unlawfully intoxicated.

On May 1, 1996, Davia attempted to argue a motion to suppress evidence, but the motion was summarily denied because it had been untimely filed. The trial commenced that same morning. After several minutes of the prosecution's direct examination of Officer Nakooka, the district court called a recess and asked to speak to counsel off the record. After the recess, the following exchange transpired:

THE COURT: I believe you have reached an agreement. And as I understand it, prosecutor, you will dismiss the inattention and there will be a no contest plea to the DUI; however, the defendant will reserve the right to appeal my ruling on the suppression motion.

[DAVIA'S COUNSEL]: That is correct.

THE COURT: ... I'm going to allow that. And the section of law you cited me again is?

[DAVIA'S COUNSEL]: Is Rule 11[ (a)(]2[) ] of the Hawaii Rules of Penal Procedure.

THE COURT: 11[ (a)(]2[) ]. Very good. And so you'll draft an order ... and you'll have the prosecutor approve it as to form and then I'll sign it.

[DAVIA'S COUNSEL]: Okay.

THE COURT: And that being said, we'll enter a plea of no contest on--let me get the calendar.

[THE PROSECUTOR]: It's TR6, your Honor.

THE COURT: TR--we'll dismiss 5. We'll enter a plea of no contest on 6. I'll impose the minimum sentence that the law allows which is a fine of $250.00. 100 of the $250 to the DET. I'll require the AARP and the substance abuse assessment. I'll suspend your driver's license for 90 days. During the first 30 of those 90 you cannot drive. The suspension is absolute during the latter 60. I'll allow you to drive to and from work and in conjunction with your work. We'll have a return day for the AARP and the substance abuse.

Although further discussion ensued on the record--both parties making their offers of proof with respect to the facts of the case and the motion to suppress--the district court at no time addressed Davia personally. The district court's judgment convicting Davia of driving under the influence of intoxicating liquor and imposing the sentence described above was filed on May 10, 1996. Davia timely appealed.

II. STANDARDS OF REVIEW

A. Plain Error

"We may recognize plain error when the error committed affects substantial rights of the defendant." State v. Cullen, 86 Hawai'i 1, 8, 946 P.2d 955, 962 (1997) (citations and internal quotation signals omitted). See also Hawai'i Rules of Penal Procedure (HRPP) Rule 52(b) (1993) ("Plain error or defects affecting substantial rights may be noticed although they were not brought to the attention of the court.").

B. Acceptance Of A No Contest Plea

"The [trial] court is vested with wide discretion to accept or refuse a nolo contendere plea." State v. Medeiros, 8 Haw.App. 39, 43, 791 P.2d 730, 733, cert. denied, 71 Haw. 669, 833 P.2d 901 (1990) (emphasis deleted), and the acceptance or refusal of a no contest plea is therefore reviewed for abuse of that discretion.... "An abuse of discretion occurs if the trial court has clearly exceeded the bounds of reason or has disregarded rules or principles of law or practice to the substantial detriment of a party litigant. [State v.] Gomes, 79 Hawai'i [32,] 36, 897 P.2d [959,] 963 [ (1995) ] (quoting [State v.] Adams, 76 Hawai'i [408,] 411, 879 P.2d [513,] 516 [ (1994) ] ) (citation omitted) (internal quotation marks omitted).

State v. Merino, 81 Hawai'i 198, 211, 915 P.2d 672, 685 (1996) (footnote omitted).

C. Sentencing

"The authority of a trial court to select and determine the severity of a penalty is normally undisturbed on review in the absence of an apparent abuse of discretion or unless applicable statutory or constitutional commands have not been observed." State v. Valera, 74 Haw. 424 439, 848 P.2d 376, 383, reconsideration denied, 74 Haw. 650, 853 P.2d 542 (1993).

State v. Cornelio, 84 Hawai'i 476, 483, 935 P.2d 1021, 1028 (1997) (quoting State v. Gaylord, 78 Hawai'i 127, 143-44, 890 P.2d 1167, 1183-84 (1995)).

D. Interpretation Of A Statute

SB21<470>[5-8] "[T]he interpretation of a statute ... is a question of law reviewable de novo." State v. Arceo, 84 Hawai'i 1, 10, 928 P.2d 843, 852 (1996) (quoting State v. Camara, 81 Hawai'i 324, 329, 916 P.2d 1225, 1230 (1996) (citations omitted)). See also State v. Toyomura, 80 Hawai'i 8, 18, 904 P.2d 893, 903 (1995); State v. Higa, 79 Hawai'i 1, 3, 897 P.2d 928, 930, reconsideration denied, 79 Hawai'i 341, 902 P.2d 976 (1995); State v. Nakata, 76 Hawai'i 360, 365, 878 P.2d 699, 704, reconsideration denied, 76 Hawai'i 453, 879 P.2d 558 (1994), cert. denied, 513 U.S. 1147, 115 S.Ct. 1095, 130 L.Ed.2d 1063 (1995).

Gray v. Administrative Dir. of the Court, 84 Hawai'i 138, 144, 931 P.2d 580, 586 (1997) (some brackets added and some in original). See also State v. Soto, 84 Hawai'i 229, 236, 933 P.2d 66, 73 (1997). Furthermore, our statutory construction is guided by established rules:

When construing a statute, our foremost obligation is to ascertain and give effect to the intention of the legislature, which is to be obtained primarily from the language contained in the statute itself. And we must read statutory language in the context of the entire statute and construe it in a manner consistent with its purpose.

When there is doubt, doubleness of meaning, or indistinctiveness or uncertainty of an expression used in a statute, an ambiguity exists....

In construing an ambiguous statute, "[t]he meaning of the ambiguous words may be sought by examining the context, with which the ambiguous words, phrases, and sentences may be compared, in order to ascertain their true meaning." HRS § 1-15(1) [ (1993) ]. Moreover, the courts may resort to extrinsic aids in determining legislative intent. One avenue is the use of legislative history as an interpretive tool.

Gray, 84 Hawai'i at 148, 931 P.2d at 590 (quoting State v. Toyomura, 80 Hawai'i 8, 18-19, 904 P.2d 893, 903-04 (1995)) (brackets and ellipsis points in original) (footnote omitted). This court may also consider "[t]he reason and spirit of the law, and the cause which induced the legislature to enact it ... to discover its true meaning." HRS § 1-15(2) (1993). "Laws in pari materia, or upon the same subject matter, shall be construed with reference to each other. What is clear in one statute may be called upon in aid to explain what is doubtful in another." HRS § 1-16 (1993).

Korean Buddhist Dae Won Sa Temple of Hawaii v. Sullivan, 87 Hawai'i 217, 229-230, 953 P.2d 1315, 1327 (Haw.1998) (quoting Cullen, 86 Hawai'i at 8-9, 946 P.2d at 963-64 (some brackets in original and some added)).

III. DISCUSSION

A. The District Court's Failure To Establish On The Record That Davia's No Contest Plea Was Knowing And Voluntary Constituted An Abuse of Discretion Amounting to Plain Error.

HRPP Rule 11 (1996) provides in relevant part:

(c) Advice to the defendant. The court shall not accept a plea of guilty or nolo contendere without first...