Schwartz v. State

Citation136 Hawai'i 258,361 P.3d 1161
Decision Date19 November 2015
Docket NumberNo. SCWC–10–0000199.,SCWC–10–0000199.
Parties Sandra Kay SCHWARTZ, Petitioner/Petitioner–Appellant, v. STATE of Hawai‘ii, Respondent/Respondent–Appellee.
CourtSupreme Court of Hawai'i

136 Hawai'i 258
361 P.3d 1161

Sandra Kay SCHWARTZ, Petitioner/Petitioner–Appellant,
STATE of Hawai‘ii, Respondent/Respondent–Appellee.

No. SCWC–10–0000199.

Supreme Court of Hawai‘i.

Nov. 19, 2015.

361 P.3d 1163

Hayden Aluli, Wailuku, for petitioner.

Renee Ishikawa Delizo, for respondent.

McKENNA and POLLACK, JJ., and Circuit Judge KIM, assigned by reason of vacancy; with NAKAYAMA, J., concurring separately, with whom RECKTENWALD, C.J., joins.

Opinion of the court by POLLACK, J.

136 Hawai'i 260


Sandra Schwartz applied for a writ of certiorari from the judgment on appeal of the Intermediate Court of Appeals to determine whether omission of an element of a charged offense renders the trial court without subject-matter jurisdiction over the case. We find no deficiency of jurisdiction and affirm the judgment on appeal, but for the reasons stated herein.


On February 20, 2008, the State of Hawai‘i (State) filed a two-count criminal traffic complaint against Sandra Schwartz (Schwartz) in the District Court of the Second Circuit (district court). Count One alleged commission of the offense of Operating a Vehicle Under the Influence of an Intoxicant (OVUII), in violation of Hawai‘i Revised Statutes (HRS) § 291E–61(a) (2007).1 The complaint charged Count One as follows:

That on or about the 26th day of January, 2008, in the Division of Lahaina, County of Maui, State of Hawai‘i, SANDRA KAY SCHWARTZ did operate or assume actual physical control of a vehicle while under the influence of an intoxicant meaning that she was under the influence of alcohol in an amount sufficient to impair her normal mental faculties or ability to care for herself and guard against casualty, thereby committing the offense of Operating a Vehicle Under the Influence of an Intoxicant in violation of Section 291E–61(a) of the Hawaii Revised Statutes.

The complaint did not allege that the offense took place on a public way, street, road, or highway.2

On April 2, 2008, Schwartz pleaded guilty to the OVUII charge.3 At the change of plea hearing, counsel for Schwartz stated, "Your Honor, we are in receipt of a written complaint. We waive oral reading of the written complaint." The court examined Schwartz with respect to her plea, and Schwartz indicated that she was aware of the procedural

136 Hawai'i 261
361 P.3d 1164

and substantive effect of her plea. schwartz and tHe state stipulated to the following facts: Schwartz was stopped by a police officer in Lahaina; she was unable to successfully perform field sobriety maneuvers; and she elected to refuse testing. Following recitation of these facts and completion of the guilty plea colloquy, the district court found Schwartz guilty of OVUII and imposed sentence.4 Schwartz did not file an appeal from the April 2, 2008 judgment of conviction (judgment).

Approximately two years later, this court held that operation of a vehicle on "a public way, street, road, or highway" (public road) is an attendant circumstance of the offense of OVUII, and therefore the public road circumstance is an element of the offense that must be stated in the charge. State v. Wheeler, 121 Hawai‘i 383, 393, 219 P.3d 1170, 1180 (2009).

Based on Wheeler, Schwartz filed a petition to vacate and set aside the judgment under Hawai‘i Rules of Penal Procedure (HRPP) Rule 40 (Rule 40 petition). In her Rule 40 petition, Schwartz raised a single issue: the "complaint failed to allege an essential element of OVUII," and "[a]ccordingly, [c]ount [o]ne of the complaint ... was fatally defective, thereby conferring no subject matter[ ] jurisdiction to the trial court." (Emphasis added). Schwartz argued that as a consequence of the court's lack of jurisdiction, the judgment as to the OVUII charge "is null and void as a matter of law." Schwartz did not contend that her plea was not made voluntarily and intelligently nor assert any other reason that her plea should be considered invalid.

The State responded with the following arguments: Schwartz waived her jurisdictional argument by failing to raise it on direct appeal; even if she had not waived the argument, Wheeler does not apply retroactively to final judgments no longer pending at the time Wheeler was decided; the complaint reasonably charged Schwartz with OVUII; and she was not prejudiced by the omission of the public-road element in the OVUII charge.

In its written order denying the Rule 40 petition, the district court concluded that Wheeler "created a new constitutional rule of criminal procedure."5 The court noted that new constitutional rules of criminal procedure do not apply to cases that become final before the new rule is announced, unless the rule is within one of two categories. The court concluded that the two exceptions did not apply because it was not (1) a rule that places a class of private conduct beyond the power of the State to proscribe or addresses a substantive categorical guarantee of the constitution or (2) a watershed rule of criminal procedure implicating fundamental fairness. Accordingly, the district court concluded that Wheeler did not apply retroactively and denied Schwartz's Rule 40 petition.

Schwartz timely appealed to the Intermediate Court of Appeals (ICA). Before the ICA, Schwartz renewed her argument that the district court lacked jurisdiction to adjudicate the crime for which she was charged and also challenged the district court's conclusion that Wheeler could not be applied retroactively to challenge a final judgment.

In response, the State argued the following: the district court correctly found that Wheeler did not have retroactive application; under the Motta /Wells liberal construction standard,6 the complaint could reasonably be construed to charge a crime; and Schwartz could not show that she suffered prejudice.

The ICA affirmed the district court's order denying Schwartz's Rule 40 petition in a summary disposition order, relying on Christian v. State, 131 Hawai‘i 153, 315 P.3d 779 (App.2013), decided the same day. Schwartz

136 Hawai'i 262
361 P.3d 1165

v. State, No. CAAP–10–0000199, 2013 WL 6246505 (App. Nov. 23, 2013) (SDO) at *1. In Christian, the ICA held that the Wheeler decision represented a new rule that did not apply retroactively. Christian, 131 Hawai‘i at 160–61, 315 P.3d at 786–87. Additionally, the ICA concluded that when a defendant challenges the sufficiency of the charge for the first time on collateral review, a defendant is required to show exceptional circumstances in order to obtain relief. Id. at 164–65, 315 P.3d at 788–90. Applying that test, the ICA held that Schwartz could not establish exceptional circumstances. Id. at 164–65, 315 P.3d at 790–91.

In her application for writ of certiorari (Application) to this court, Schwartz presents the threshold question of whether the failure of a charging instrument to allege an element of an offense is a jurisdictional defect that "fail[s] to confer subject-matter jurisdiction to the district court." Schwartz also presents two other questions: whether Wheeler applies retroactively to cases on collateral review, and whether "a defective charge under Wheeler, even if properly characterized as a jurisdictional defect, cannot be retroactively applied on collateral review."


The denial of a Rule 40 petition based on the district court's conclusions of law is reviewed de novo. Coulter v. State, 116 Hawai‘i 181, 184, 172 P.3d 493, 496 (2007).


In 2009, this court held that the fact that the offense of OVUII took place on a public road was an element of an OVUII charge. Wheeler, 121 Hawai‘i at 393, 396, 219 P.3d at 1180, 1183. As noted, the OVUII charge against Schwartz, filed prior to the decision in Wheeler, did not allege the public-road element. Thus, this court must determine whether the district court had jurisdiction to adjudicate the OVUII offense charged against her, notwithstanding the omitted element.

A. Jurisdiction of the district court is conferred by statute

Jurisdiction is defined as "the power and authority on the part of the court to hear and judicially determine and dispose of the cause pending before it." State v. Villados, 55 Haw. 394, 396, 520 P.2d 427, 430 (1974) ; Matter of Keamo, 3 Haw.App. 360, 366, 650 P.2d 1365, 1370 (1982) (same); Sherman v. Sawyer, 63 Haw. 55, 57, 621 P.2d 346, 348 (1980) (same); see also Black's Law Dictionary 980 (10th ed. 2014) (defining jurisdiction as a "court's power to decide a case or issue a decree").

"Jurisdiction of the offense charged and of the person of the accused is a fundamental and indispensable prerequisite to a valid prosecution."7 State v. Meyers, 72 Haw. 591, 593, 825 P.2d 1062, 1064 (1992). "[J]urisdiction depends upon the state of affairs existing at the time it is invoked; once having attached, it ... is retained by a...

To continue reading

Request your trial
2 cases
  • Schwartz v. State
    • United States
    • Supreme Court of Hawai'i
    • November 19, 2015
    ...258361 P.3d 1161Sandra Kay SCHWARTZ, Petitioner/Petitioner–Appellant, v. STATE of Hawai‘ii, Respondent/Respondent–Appellee.No. SCWC–10–0000199.Supreme Court of Hawai‘i.Nov. 19, 2015.361 P.3d 1163 Hayden Aluli, Wailuku, for petitioner.Renee Ishikawa Delizo, for respondent.McKENNA and POLLACK......
  • State v. Luong, CAAP-15-0000958
    • United States
    • Court of Appeals of Hawai'i
    • November 22, 2016
    ...or recklessly. A charge should set forth the applicable state of mind to satisfy due process requirements. Schwartz v. State, 136 Hawai'i 258, 271-72, 361 P.3d 1161, 1174-75 (2015); State v. Nesmith, 127 Hawai'i 48, 52-54, 61, 276 P.3d 617, 621-23, 630 (2012). Here, although the written and......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT