State v. Miller
| Decision Date | 25 January 2010 |
| Docket Number | No. 28849.,28849. |
| Citation | 223 P.3d 157,122 Haw. 92 |
| Parties | STATE of Hawai`i, Respondent/Plaintiff-Appellee v. Douglas MILLER, Petitioner/Defendant-Appellant. |
| Court | Hawaii Supreme Court |
Hayden Aluli for petitioner/defendant-appellant.
Justine M. Hura, Deputy Prosecuting Attorney, County of Maui (Richard Minatoya, Deputy Prosecuting Attorney, County of Maui also appearing) for respondent/plaintiffappellee.
In his Application for Writ of Certiorari (Application), Petitioner/Defendant-Appellant Douglas Miller (Petitioner) seeks review of the judgment of the Intermediate Court of Appeals (ICA) filed on October 3, 2008, pursuant to its September 15, 2008 Summary Disposition Order (SDO)1 affirming the October 15, 2007 Judgment of conviction and sentence of probation filed by the family court of the second circuit (the court).2 See State v. Miller, No. 28849, 2008 WL 4195877, at *1 (Haw.App. Sept. 15, 2008) (SDO). We hold that (1) Respondent/Plaintiff-Appellee State of Hawai`i (Respondent) breached its plea agreement with Petitioner when, after agreeing to take no position on Petitioner's Deferred Acceptance of No Contest Plea ("DANCP" or "DANC") motion, it effectively argued against that motion at Petitioner's sentencing hearing; and (2) Respondent's breach of the plea agreement in this case was plain error, as it denied Petitioner his constitutional right to due process. Inasmuch as the ICA held to the contrary as to the foregoing matters, the ICA's judgment is reversed the court's October 15, 2007 judgment is vacated, and the case is remanded for resentencing before a different family court judge.
The Application was filed by Petitioner on December 24, 2008, and accepted on February 9, 2009. This court heard oral argument on the merits on March 5, 2009.
On August 6, 2007, Respondent filed a complaint against Petitioner, charging him with Abuse of a Family or Household member, under Hawai`i Revised Statutes (HRS) § 709-906 (Supp.2007).3 At the proceedings on October 15, 2007, both parties represented that they were ready for trial, but came to an oral agreement outside the courtroom just before the trial was to begin. Respondent agreed to amend the abuse charge to Assault in the Third Degree under HRS § 707-712 (1993)4 on condition that Petitioner plead "no contest" to the amended charge. The agreement also "included the understanding that [Petitioner] would orally move [the court] for a [DANCP], to which [Respondent] agreed to `take no position.'" A change of plea hearing occurred at which the following colloquy took place regarding the terms of the plea agreement:
THE COURT: ... The attorneys, during this time off the record, have been in negotiations and have come to an agreement.
Will [Respondent] please place that agreement on the record.
(Emphases added.)
The court then had an on-the-record colloquy with Petitioner regarding the consequences of his plea agreement and found that Petitioner "voluntarily, knowingly, and intelligently enter[ed] his plea with a full understanding of the charge against him and the consequences of his plea." The court reserved entering a "finding of guilt until [it] heard the argument" on the DANCP motion.
The court first heard from Respondent as to "[s]entencing." The prosecutor then stated:
Your Honor, we would ask that you follow the agreement that's been reached. However, this case was borderline strangulation. [Petitioner] actually elbows [the complainant], kneed her in the back, punched her, choked her, put his hand over her mouth, and told her to be quiet, and then also took a pillow after that because she wouldn't be quiet and put it over her face.
At that time, your Honor, the witness in this case, the victim, actually feared for her life. And, you know, she's 51 years old. So is the defendant. He does not have a prior criminal record, but you know, at 51 years old, you shouldn't be doing that to a significant loved one. And this type of beating and brutality should not be accepted in our society.
(Emphases added.)
After the prosecutor's statement, Petitioner thanked the prosecutor for changing the charge to Assault in the Third Degree and argued that, because at 51 years of age Petitioner "doesn't have a criminal record," he should be granted a DANCP under HRS § 853-1 (Supp.2008).5 Petitioner further argued that the court had discretion to grant the DANCP motion so long as it made the requisite findings under HRS § 853-1, specifically that
[i]n this particular case, there is no mandatory minimum term based on bodily injury. The [c]ourt has the discretion to grant the deferral. If the court makes two findings, and one, it appears that [Petitioner] is not likely, again, to engage in a criminal course of conduct; and two, the ends of justice and the welfare of society have been properly served by the penalty as imposed by law.
(Emphasis added.) Petitioner also contended that the court's alleged interpretation of DANCP as applying to youthful offenders is not dictated by law:
And I know the court has given, I guess, guidance that it appears that the legislature has given this type of deferral to youthful offenders. I don't see that as a matter of law, and I ask that you use your discretion where [Petitioner] has not engaged at all in any criminal conduct.
Apparently in response to Respondent's statements concerning the assault, Petitioner continued,
I just want the court to note, while we are not minimizing his plea and apology, when Officer Katayama appeared at the scene, there was no complaint of injuries. Look for and found none.
In response to Petitioner's comments, Respondent "clarif[ied]" on the record that
[Respondent] did have Dr. Nelson from the ER examine her, and did see—well, diagnosis, she had a bruised neck; and also, in talking with [the complainant], she did have bruises to her leg area by basically getting into a fetal position to block [Petitioner].
So Officer Katayama, even though he was on the scene first, bruises do show up later.
The court denied Petitioner's DANCP motion and sentenced him according to the terms of the plea agreement to "forty-eight hours of incarceration, one year probation, substance abuse assessment, domestic violence intervention classes, and restitution and an apology to the victim." However, according to the court, "someone who is involved [in] or causes such an offense is— should not be granted a deferred acceptance [of his or her] plea":
Your motion for deferred acceptance is denied. The [c]ourt—although I can find [Petitioner] has had no record for 51 years, I guess the offense you decided to start off was one too significant for the [c]ourt to ignore and to treat as something where the ends of justice and the welfare of society do not require that you presently suffer this penalty. I think, in fact, the opposite is true. I think society does demand that someone who is involved [in] or causes such an offense is—should not be granted a deferred acceptance [of his or her] plea.
I can make the finding of the other two conditions, but the other condition is that he's pleading voluntarily prior to trial, but I don't know if I—do not feel comfortable making a finding that he's not likely to, again, engage in a criminal course of conduct.
And by the way, to address the argument made by defense that the [c]ourt is of the belief that the deferred acceptance is reserved only for the youthful offender, that actually is not correct.
(Emphases added.)
Furthermore, the court indicated that someone 20 or 21 might be "worthy of a deferred acceptance," but that for "the type of crime that was committed," it would "not grant a deferral whatever age":
The [c]ourt does view someone whose judgment is not fully formed, perhaps at an age of 20 or 21, as being perhaps worthy of a deferred acceptance for a minor theft or some other offense that's been created. But someone that is the defendant's age, but more importantly for the type of crime that was committed, I could not grant a deferral whatever age anyone who committed a similar offense, and I don't believe I have.
(Emphasis added.)
Petitioner appealed to the ICA as to
1) whether the case should be remanded for re-sentencing before a different judge based on the prosecutor's alleged violation of the plea agreement wherein she agreed that she would "take no position" with respect to [Petitioner's] request for a DANCP, but then tendered an argument at sentencing that amounted to a strong opposition to [Petitioner's] request for a DANCP; and 2) even if the ICA found that Respondent did not breach the plea agreement, whether the matter should be remanded for re-sentencing before another judge based on the [court's] alleged apparent "policy" of not granting any DANCPs to offenders over the age of 21 years who have been charged with Assault in the Third Degree.
The ICA in its SDO affirmed the "Judgment Conviction and...
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