State v. Brighter

• Decision Date: 05 January 2005
• Docket Number: No. 25269.,25269.
• Citation: 105 P.3d 1197,106 Haw. 391
• Parties: STATE of Hawai'i, Plaintiff-Appellee, v. Carolyn BRIGHTER, Defendant-Appellant.
• Court: Hawaii Court of Appeals

105 P.3d 1197

106 Haw. 391

STATE of Hawai'i, Plaintiff-Appellee, v.Carolyn BRIGHTER, Defendant-Appellant.

No. 25269.

Intermediate Court of Appeals of Hawai'i.

January 5, 2005.

Traci Rei Morita, deputy public defender, State of Hawai'i(Cindy A.L. Goodness, deputy public defender, State of Hawai'i, on the briefs) for defendant-appellant.

Janet R. Garcia, deputy prosecuting attorney, County of Hawai'i, for plaintiff-appellee.

WATANABE, Acting C.J., and LIM, J.; with FOLEY, J., Concurring Separately.

Opinion of the Court by WATANABE, Acting C.J.

Defendant-AppellantCarolyn Brighter(Brighter, Miss Brighter, or Ms. Brighter) appeals from the "Order Granting [Plaintiff-AppelleeState of Hawai'i's (the State)]Motion to Impose Suspended Fine" entered on July 15, 2002 by the District Court of the Third Circuit (the district court).¹We conclude that the district court lacked authority to impose the suspended fine.Accordingly, we reverse.

BACKGROUND

On May 12, 2001, Brighter was issued Complaint & SummonsNo. 1715355MH (Citation 1), charging her with operating or using a vehicle without no-fault insurance,² in violation of Hawaii Revised Statutes (HRS) § 431:10C-104(Supp.2003).³Brighter was the owner of the vehicle she was operating when Citation 1 was issued.

Brighter appeared in district court⁴ on August 1, 2001 and entered a no-contest plea to the Citation 1 charge, pursuant to a plea agreement.At the request of Brighter's counsel, however, sentencing was continued until September 12, 2001 to allow Brighter to obtain insurance.

On September 12, 2001, Brighter appeared in district court⁵ for sentencing.The relevant sentencing statute, HRS § 431:10C-117(a)(Supp.2003), provided then as it does now, in pertinent part, as follows:

Penalties.

(a) ...;

(2) Notwithstanding any provision of the Hawaii Penal Code:

(A) Each violation shall be deemed a separate offense and shall be subject to a fine of not less than $100 nor more than $5,000 which shall not be suspended except as provided in subparagraph (B); and

(B) If the person is convicted of not having had a motor vehicle insurance policy in effect at the time the citation was issued, the fine shall be $500 for the first offense and a minimum of $1,500 for each subsequent offense that occurs within a five-year period from any prior offense; provided that the judge:

(i)Shall have the discretion to suspend all or any portion of the fine if the defendant provides proof of having a current motor vehicle insurance policy; provided further that upon the defendant's request, the judge may grant community service in lieu of the fine, of not less than seventy-five hours and not more than one hundred hours for the first offense, and not less than two hundred hours nor more than two hundred seventy-five hours for the second offense; and

(ii)May grant community service in lieu of the fine for subsequent offenses at the judge's discretion;

(3)In addition to the fine in paragraph (2), the court shall either:

(A)Suspend the driver's license of the driver or of the registered owner for:

(i) Three months for the first conviction; and

(ii)One year for any subsequent offense within a five-year period from a previous offense;

provided that the driver or the registered owner shall not be required to obtain proof of financial responsibility pursuant to section 287-20;or

(B)Require the driver or the registered owner to keep a nonrefundable motor vehicle insurance policy in force for six months;

....

(5)In the case of multiple convictions for driving without a valid motor vehicle insurance policy within a five-year period from any prior offense, the court, in addition to any other penalty, shall impose the following penalties:

(A) Imprisonment of not more than thirty days;

(B) Suspension or revocation of the motor vehicle registration plates of the vehicle involved;

(C) Impoundment, or impoundment and sale, of the motor vehicle for the costs of storage and other charges incident to seizure of the vehicle, or any other cost involved pursuant to section 431:10C-301; or

(D) Any combination of those penalties.

HRS§ 431:10C-117(a)(emphases added).

At the outset of the hearing, Brighter's counsel reminded the district court why sentencing had been continued:

Judge, we were continuing this to see if we could get proof of current insurance for Miss Brighter.She does have some documentation referring to the policy of her parents.I wasn't sure if this would actually help us or not so I contacted the insurance company.Apparently Miss Brighter's situation, from the insurance agent that I spoke with, is that she is covered under her parents' policy as a member of the household.However, she's not a named insured on the policy.So the insurance company said she is covered driving any vehicles covered under her parents' policy.Where if she drives another vehicle she is not covered.And she's not, I guess, a named insured on the policy.

So I don't know how that affects us here today, but that is her current insurance situation.She has insurance covering vehicles under her parents' policy but not covering any other vehicles.

The following discussion then ensued:

THE COURT: [Deputy Prosecutor], what's your position on that?

[DEPUTY PROSECUTOR]: That's being a little tenuous for my satisfaction, Judge.But it's up to the [c]ourt whether that is proof.Cause we're here for sentencing, not for dismissal.

THE COURT: I understand that.

[DEPUTY PROSECUTOR]: But appears that this vehicle apparently is not her parents' vehicle so we don't have proof of insurance of that.Um, she is not a named insured on the policy and —

THE COURT: What insurance carrier is she?

[DEPUTY PUBLIC DEFENDER]: State Farm Insurance.

THE COURT: Well they should be providing verification that she's covered.

[DEPUTY PUBLIC DEFENDER]: Here's what they provided —

THE COURT: Did they provide verification that she's covered?

[DEPUTY PUBLIC DEFENDER]: Here's what their policy says:

"The following list of drivers is shown for informational purposes only, does not extend or expand coverage beyond that contained in this automobile policy.

"Our records indicate that persons listed below are the only licensed drivers reported to us.Edward Brighter, Billy Brighter, Kimo Brighter, Carolyn Patterson," who is Carolyn Brighter, "and Anela Brighter."

THE COURT: So they did at least acknowledge that.

[DEPUTY PUBLIC DEFENDER]: They acknowledged that, that she's a member of the household listed on the policy, but she's not — I don't know how the policy —

THE COURT: I'll accept that.

[DEPUTY PUBLIC DEFENDER]: Okay.

....

THE COURT: Is there registration for the vehicle now ... ?

[DEPUTY PUBLIC DEFENDER]: This vehicle is junked.

The district court then proceeded to sentence Brighter:

THE COURT:....

On the insurance you are sentenced to a fine of $1,500.But I'm going to suspend $1,400 of that for six months in light of there — that you do have present coverage.[⁶] Plus you're assessed $25 to the Crime Victim's Claims Fund, $20 in administrative fees, and $7 to the Driver's Education Fund.

....

... I'm going to order monthly payments of $25 a month.

Miss Brighter, ... you have a case in Hamakua?Is that easier for you in Hamakua?

[MISS BRIGHTER]: No.

THE COURT: You're supposed to come back next week.You've been making payments, though, on your other matter?

[MISS BRIGHTER]: Yeah.Now I have one payment left.

THE COURT: Instead of coming back next week, I'll let you sign a notice so we'll continue all of this for three months.Because you've been making your payments regularly.

THE CLERK: December 12th at 9 a.m.

THE COURT: Miss Brighter, you want — it's easier for your Hamakua case to be here?

[MISS BRIGHTER]: Yes.

THE COURT: Alright [sic].We'll continue this all for three months.

(Footnote added.)According to the transcript of the proceedings, the district court did not advise Brighter of any conditions attached to her suspended sentence.The record on appeal similarly contains no indication that Brighter was advised in writing of any conditions attached to her suspended sentence.It does not appear that Brighter was informed, for example, that she was required to remain conviction-free for the six-month period of suspension.

At the December 12, 2001 continued hearing, the district court scheduled a "for payment" hearing for March 13, 2002, at 9 a.m.

On December 28, 2001, within the six-month suspension period⁷ for Citation 1, Brighter received Complaint & SummonsNo. 1234129MH (Citation 2), charging her with not having motor vehicle insurance.Brighter's initial appearance in district court for the Citation 2 charge occurred on February 7, 2002.The court calendar for that day notes that Brighter did not yet have insurance and would obtain insurance when her car was fixed.The matter was continued until March 7, 2002 for arraignment and plea and to allow Brighter to obtain proof of current insurance.

At the March 7, 2002 hearing, Brighter presented a State Farm insurance card, effective for the period from February 25, 2002 to February 25, 2003.The district court referred Brighter to the Public Defender's office and continued the case until April 18, 2002 for arraignment and plea.

On March 13, 2002, Brighter failed to appear at the "for payment" hearing that had been set on December 12, 2001.Consequently, the district court ordered a bench warrant issued for her arrest, with bail set at $50.The bench warrant was served on Brighter on April 8, 2002.

On April 18, 2002, Brighter appeared in district court⁸ and entered, pursuant to a plea agreement, a no-contest plea to the Citation 2 charge.Brighter's counsel then asked that sentencing be continued, since Brighter had forgotten "her proof of current insurance."The following colloquy then ensued:

THE COURT: Did [Brighter] get picked up on the bench warrant yet?

[DEPUTY PUBLIC DEFENDER]: Yes, Your Honor.We're asking the [c]ourt to continue sentencing in this matter

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