State v. Aki, CAAP-20-0000300

• Court: Court of Appeals of Hawai'i
• Docket Number: CAAP-20-0000300
• Decision Date: 28 March 2022
• Parties: STATE OF HAWAI'I, Plaintiff-Appellee, v. LEVI K. AKI, JR., Defendant-Appellant

STATE OF HAWAI'I, Plaintiff-Appellee,
v.
LEVI K. AKI, JR., Defendant-Appellant

No. CAAP-20-0000300

Intermediate Court of Appeals of Hawaii

March 28, 2022

NOT FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER

APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT (CASE NO. 2PC141000490)

Andrew T. Park for Defendant-Appellant

Richard B. Rost Deputy Prosecuting Attorney County of Maui for Plaintiff-Appellee

Leonard, Presiding Judge, Wadsworth and Nakasone, JJ.

SUMMARY DISPOSITION ORDER

Defendant-Appellant, Levi K. Aki Jr. (Aki) appeals from the Amended Judgment; Conviction and Probation Sentence; Terms and Conditions of Probation; Notice of Entry filed on February 26, 2020; and Order Setting Restitution filed on February 25, 2020, by the Circuit Court of the Second Circuit (Circuit Court)^[1] In accordance with a plea agreement with Plaintiff-Appellee State of Hawai'i (State) , Aki pled no contest to Terroristic Threatening in the First Degree, in violation of Hawaii Revised Statutes (HRS) § 707-716.^[2] As part of his

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probation sentence, Aki was ordered to pay $60, 425.53 in restitution, jointly and severally with co-defendant Kaulana Alo Kaonohi (Alo Kaonohi).

On appeal, Aki contends that the Circuit Court erred in (1) ordering restitution where there was "no evidence to show that [Aki's] offense conduct [sic] was the cause of or aggravated" the victim Christopher Kunzelman's (Kunzelman) losses; and (2) "assuming arguendo that there was a connection shown between [Aki's] offense conduct [sic] and the victim's losses, the Circuit Court erred in ordering restitution for the iPhone, gold chain, tools/household items, medical costs, temporary housing, and loss of house use [sic]."

Upon review of the record on appeal and relevant legal authorities, giving due consideration to the issues raised and arguments advanced by the parties, we vacate and remand for findings.

"Review of the trial court's decision to impose restitution is for an abuse of discretion." State v. DeMello, 130 Hawai'i 332, 340, 310 P.3d 1033, 1041 (App. 2013), vacated in part on other grounds, 136 Hawai'i 193, 361 P.3d 420 (2015). Under HRS § 706-646(2) (2014 & Supp. 2016), a court "shall order [a] defendant to make restitution for reasonable and verified losses suffered by [a] victim or victims as a result of the defendant's offense when requested by the victim." "To determine whether a sufficient nexus exists for the application of HRS § 706-646, a court must determine whether the evidence supports a finding that the defendant's conduct was the cause of or

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aggravated the victim's loss." State v. Phillips, 138 Hawai'i 321, 352, 382 P.3d 133, 164 (2016) (citation omitted).

Aki argues, inter alia, that the State failed to elicit evidence proving that the requested restitution was "as a result of the defendant's offense" under HRS § 706-646(2) . Aki asserts that there was no admission of guilt to the terroristic threatening offense, and there was no connection shown between Kunzelman's losses and Aki's offense. Aki claims that the Circuit Court "did not take judicial notice of the records and files . . . nor did it judicially notice or indicate . . . that it was relying upon the PSI [(Pre-sentence Investigation Report)] that was filed in this case." Assuming arguendo there was a connection shown between Aki's offense and Kunzelman's losses, Aki further argues that Aki's "offense would only be related to the damage to the Land Rover," but the evidence also showed that "the bulk of the damage to the Land Rover was caused by an unnamed 'defendant number three . . . .'"

Our appellate review in this case is compromised by the ambiguity of what constituted the record considered by the Circuit Court in determining restitution, and by the lack of factual findings showing the factual basis of the court's ruling. The Hawai'i Supreme Court has repeatedly stated that:

cases will be remanded when the factual basis of the lower court's ruling cannot be determined from the record." State v. Visintin, 143 Hawai'i 143, 157, 426 P.3d 367, 381 (2018) (internal quotation marks omitted). This rule has been applied whenever the trial court fails to make findings of fact that are necessary for the court's ruling. State v. Hutch, 75 Haw. 307 331, 861 P.2d 11, 23 (1993) ("Because findings of fact are imperative for an adequate judicial review of a lower court's conclusions of law, we have held that cases will be remanded when the factual basis of the lower court's ruling cannot be determined from the record." alterations and internal quotation marks omitted) (quoting State v. Anderson, 67 Haw. 513, 514, 693 P.2d 1029 1030 (1985))); Anderson, 67 Haw. at 514, 693 P.2d at 1030 (remanding after determining that the lower court granted the motion to suppress without having made any findings of fact). Accordingly, when a trial court has failed to issue findings of fact and the appellate court is unable to

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