State v. Medeiros

• Decision Date: 23 May 1990
• Docket Number: No. 13785,13785
• Citation: 8 Haw.App. 39,791 P.2d 730
• Parties: STATE of Hawaii, Plaintiff-Appellee, v. Judy A. MEDEIROS, Defendant-Appellant
• Court: Hawaii Court of Appeals

Page 730

791 P.2d 730

8 Haw.App. 39

STATE of Hawaii, Plaintiff-Appellee, v. Judy A. MEDEIROS, Defendant-Appellant.

No. 13785.

Intermediate Court of Appeals of Hawai'i

May 23, 1990.

Certiorari Denied June 7, 1990.

Syllabus by the Court

1. A nolo contendere plea is not an admission of guilt; however, for the purposes of the case in which it is entered it has the same effect as a guilty plea.

2. The court is vested with wide discretion to accept or refuse a nolo contendere plea.

3. Rule 11(b), HRPP, restricts only the court's discretion to accept a nolo contendere plea. The court's rejection of a nolo contendere plea is within its broad discretion and will not be overturned on appeal absent a manifest abuse.

4. The main purpose of a nolo contendere plea is to allow the court and the defendant to avoid the time and expense of trial.

5. If the court allows a nolo contendere plea without requiring the defendant to present a factual basis for the plea, the defendant avoids having to admit guilt and is shielded from having the plea used against him or her in any civil suit based on the alleged illegal conduct.

6. It is not an abuse of discretion for a trial court to refuse to accept a plea of nolo contendere where the defendant has refused to provide a factual basis for the plea.

7. A court is not required to order a pre-sentence report pursuant to Hawaii Revised Statutes (HRS) § 706-601 (Supp.1989) prior to sentencing when the defendant is convicted of a misdemeanor, and is over the age of 21.

8. Whether a defendant must be queried personally to see if he or she wishes to address the court prior to sentencing, and whether the defendant must speak personally or whether his or her counsel may substitute in such regard, depends on the construction of the statute at issue.

9. HRS § 706-604(1) (Supp.1989) and Rule 32(a), HRPP (1977), which require that a defendant be afforded "a fair opportunity" to be heard before being sentenced, are satisfied where the defendant is heard through counsel. The statute and the rule do not require the court to affirmatively ask the defendant if he or she wishes to address the court.

Richard W. Pollack, Public Defender (Carrie Nakaoka, Deputy Public Defender, with him on the opening brief), Honolulu, for defendant-appellant.

Patricia Loo Goodness, Deputy Pros. Atty., Honolulu, for plaintiff-appellee.

Before BURNS, C.J., and HEEN and TANAKA, JJ.

HEEN, Judge.

Defendant-Appellant Judy A. Medeiros (Medeiros) appeals from her conviction after a bench trial for Theft in the Fourth Degree, Hawaii Revised Statutes (HRS) § 708-833 (Supp.1989), a petty misdemeanor. ¹ We find no error and affirm.

Medeiros and her husband pleaded not guilty to a charge of stealing a cassette tape (tape) from Gem's Department Store in Waipahu (Gem's). Medeiros was tried separately. At her trial the State called Erik Edika (Edika), a security guard at Gem's, who testified that he observed Medeiros' husband take the tape from a display and conceal it between himself and the child he was carrying. Edika then saw Medeiros approach her husband, who dropped the tape into her bag. Edika followed the couple as they walked past nine operating cash registers and left the store. Once outside, Edika confronted the couple and recovered the tape from Medeiros' bag.

A short recess followed Edika's testimony. When court reconvened, the following took place:

Ms. Won [Prosecutor]: Your Honor, I believe there will be a change of plea.

Mr. Cooper [Medeiros' Attorney]: Yes, Your Honor, we've discussed this case; I've discussed this case with my client and the prosecutor and I have reached an agreement whereby for the change of plea, prosecution will recommend a fifty dollar fine.

The Court: All right, how does the ... Do you make a motion for change of plea?

Mr. Cooper: Yes, Your Honor.

The Court: Any objection to that motion? The motion will be granted. What is the proposed new plea?

Mr. Cooper: Defendant will enter a no contest plea.

The Court: On the plea of no contest, the court's going to find the defendant guilty. ² Mrs. Medeiros, on or about April 11, 1988, in Gem's in Waipahu, did you take a cassette tape that didn't belong to you without paying for it?

Mr. Cooper: Defendant has entered a no contest plea, Your Honor.

The Court: Mr. Cooper, I have to have some factual findings to support the plea.

(Footnote added.)

The court then questioned Medeiros regarding the facts of the alleged offense, but she refused to respond. The court thereupon refused to accept the plea, reinstated the not guilty plea, and went on with the trial. The State put on one more witness and the parties stipulated to the testimony of another witness representing Gem's. Medeiros put on no evidence, and the court found her guilty on November 30, 1988.

Upon finding Medeiros guilty, the judge immediately sentenced her to five days in jail. However, he stayed the mittimus pending the disposition of Medeiros' husband's case and the receipt of a pre-sentence report which he ordered prepared.

I.

Medeiros first argues that the trial judge erred when he refused to accept her nolo contendere plea after she refused to provide him with a factual basis for the plea. We disagree.

Nolo contendere pleas are allowed by Rule 11, Hawaii Rules of Penal Procedure (HRPP) (1988). Rule 11(b) reads:

Nolo Contendere. A defendant may plead nolo contendere only with the consent of the court. Such a plea shall be accepted by the court only after due consideration of the views of the parties and the interest of the public in the effective administration of justice.

Rule 11(d) continues:

Insuring that the Plea is Voluntary. The court shall not accept a plea of guilty or nolo contendere without first addressing the defendant personally in open court and determining that the plea is voluntary and not the result of force or threats or of promises apart from a plea agreement. The court shall also inquire as to whether the defendant's willingness to plead guilty or nolo contendere results from any plea agreement.

Also pertinent to this case is Rule 11(f), which reads:

Determining Accuracy of Plea. Notwithstanding the acceptance of a plea of guilty, the court shall not enter a judgment upon such plea without making such inquiry as shall satisfy it that there is a factual basis for the plea.

A nolo contendere plea is not an admission of guilt; however, for the purposes of the case in which it is entered it has the same effect as a guilty plea. It constitutes an admission of all of the essential elements of the charge and is tantamount to an admission of guilt. The court is vested with wide discretion to accept or refuse a nolo contendere plea. 1 C. Wright, Federal Practice and Procedure: Criminal 2d § 177 (1982).

Rule 11, HRPP, is patterned after Rule 11 of the Federal Rules of Criminal Procedure. When the federal rules were enacted in 1946, a defendant was allowed to plead nolo contendere with the consent of the court. No limits were placed on the exercise of the court's discretion to accept or reject the plea. As a result of criticism directed at the rule and its operation, the rule was amended to its present form in 1975. Note, Nolo Contendere: Acceptance in the Federal Courts, 10 Mem.St.U.L.Rev. 550, 553 (1980). The significant change in the federal rule is the addition of the provision that the nolo contendere plea "shall be accepted by the court only after due consideration of the views of the parties and the interest of the public in the efficient administration of justice." Our Rule 11 contains the same language.

The new language restricts only the courts' discretion to accept a nolo contendere plea. The courts' discretion to reject the plea is left undisturbed, and the courts are "permitted to reject the plea at will." Id. at 569-70. "[I]n requiring the courts to take competing factors into consideration before accepting a nolo plea, the drafters must also have intended that the courts accept the plea more discriminately." Id. at 570. In United States v. Gratton, 525 F.2d 1161 (7th Cir.1975), stay denied, 423 U.S. 1067, 96 S.Ct. 1090, 46 L.Ed.2d 658 (1976), the court stated: "[I]t seems at least arguable that the acceptance of a nolo plea is so broadly a matter of discretion that a judge's adoption of a policy against such a plea is itself within his discretion[.]" 525 F.2d at 1163. And Professor Wright opines that "it is wholly unlikely that refusal to accept the plea would be regarded as error on appeal." C. Wright, supra, at 668.

In light of the history of the federal rule, we hold that the limiting language of Rule 11(b) operates only as a prerequisite to the court's acceptance of a nolo contendere plea. On the other hand, the court's rejection of a nolo contendere plea is within its broad discretion and will not be overturned on appeal absent a manifest abuse. See United States v. Gratton, supra.

The main purpose of the nolo contendere plea is to allow the court and the defendant to avoid the time and expense of trial. If the court allows the plea without requiring the defendant to present a factual basis for the plea, the defendant avoids having to admit guilt, "saves face," and is shielded from having the plea used against him or her in any civil suit based on the alleged illegal conduct. Note, supra; C. Wright, supra.

Defendant argues that the court abused its discretion in this case by rejecting her nolo contendere plea when she refused to provide a factual basis. ³ We disagree. The judge's "refusal to accept the plea without requiring a factual basis therefor is not a basis for reversal, for acceptance of a nolo plea is solely a matter of grace, something to which defendants are by no means automatically entitled." United States v. Cepeda Penes, 577 F.2d 754, 756 (1st Cir.1978).

At oral argument Medeiros contended that, since she is subject to a civil suit by Gem's for actual damages and statutory penalties pursuant to HRS ...