State v. Nakano
| Decision Date | 08 October 2013 |
| Docket Number | No. SCWC–12–0000106.,SCWC–12–0000106. |
| Citation | 313 P.3d 690,131 Hawai'i 1 |
| Parties | STATE of Hawai‘i, Respondent/Plaintiff–Appellee, v. Daniel S. NAKANO, Petitioner/Defendant–Appellant. |
| Court | Hawaii Supreme Court |
Samuel P. King, Jr., Honolulu, for petitioner.
Donn Fudo, Honolulu, for respondent.
Daniel S. Nakano was charged with Operating a Vehicle Under the Influence of an Intoxicant (OVUII) in violation of Hawai‘i Revised Statutes (HRS) §§ 291E–61(a)(1), (a)(3), and (b)(1). Nakano entered a conditional no contest plea as to HRS § 291E–61(a)(1), conditioned on his ability to appeal on the ground that the charge was defective because it did not allege a state of mind. The State consented to the conditional plea. Although Nakano's written submission of plea form contained a conditional plea only to the HRS § 291E–61(a)(1) method of proof, the district court convicted Nakano of OVUII under both HRS §§ 291E–61(a)(1) and (a)(3).1
On appeal, the Intermediate Court of Appeals (ICA) determined that the district court's judgment should be vacated as to the HRS § 291E–61(a)(1) method of proof based on this court's decision in State v. Nesmith, 127 Hawai‘i 48, 276 P.3d 617 (2012). The ICA further vacated Nakano's conviction as to HRS § 291E–61(a)(3), but determined that, on remand, the State could proceed to prosecute Nakano under the HRS § 291E–61(a)(3) method of proof. In his application, Nakano argues that the ICA violated his right to due process in remanding the HRS § 291E–61(a)(3) method of proof for further proceedings.
We conclude that the State cannot prosecute Nakano under HRS § 291E–61(a)(3). Although the State did not explicitly agree to give up the HRS § 291E–61(a)(3) method of proof, it appears to have agreed to Nakano's no contest plea under HRS § 291E–61(a)(1), and any ambiguity as to what the State agreed to should be construed in favor of Nakano. Accordingly, we affirm the ICA's judgment vacating the district court's judgment, but clarify that, on remand, the State is precluded from prosecuting Nakano under the HRS § 291E–61(a)(3) method of proof.
The following factual background is taken from the record on appeal.
On June 27, 2011, the State filed a complaint against Nakano, alleging he committed the offense of OVUII "in violation of Section 291E–61(a)(1) and/or (a)(3) of the [HRS]." The complaint did not contain a state of mind allegation.
At a proceeding on January 23, 2012, the deputy prosecuting attorney (DPA) informed the district court that the prosecution and the defense had "come to a conditional plea agreement" that "Nakano will be pleading No Contest to 291E–61(a)(1)(b)(1) and—" Defense counsel then stated:
Nakano submitted a Written Submission of Plea form, in which he initialed the following statements: (Emphasis added).
The following exchange then occurred at the proceeding:
The DPA then asked to re-arraign Nakano, and Nakano objected. The district court denied the DPA's request in light of a pending appeal of an unrelated case on the same issue, and because mens rea was a material element and the "original charge should have been dismissed without prejudice and recharged with the mens rea language." The district court continued:
The following exchange then occurred regarding Nakano's plea of No Contest:
(Emphases added).
The district court then sentenced Nakano, but stayed the sentence pending appeal.
The district court subsequently entered its Order and Notice of Entry of Order reflecting the acceptance of the No Contest plea and imposing the aforementioned sentence. The Order and Notice of Entry of Order identified one count against Nakano—" HRS 291E–61(a)(1)(3)(b)(1)"—and noted that it had accepted Nakano's nolo contendere plea on that count.4 Nakano timely filed a notice of appeal.
While Nakano's appeal was pending, but before filing of Nakano's opening brief, this court decided State v. Nesmith, 127 Hawai‘i 48, 276 P.3d 617 (2012), in which we held that an HRS § 291E–61(a)(1) charge that omitted mens rea was deficient.5 In his opening brief, Nakano argued based on Nesmith that the district court erred in denying his oral motion to dismiss the HRS § 291E–61(a)(1) complaint. Nakano specifically argued: "[T]his Court should allow [Nakano] to withdraw his plea on remand in this case pursuant to HRPP Rule 11(a)(2) and order that the case be dismissal [sic] by the District Court for lack of jurisdiction because the Complaint fails to state a proper charge."
In its answering brief, the State acknowledged that the omission of a state of mind from the HRS § 291E–61(a)(1) charge rendered it defective under Nesmith. However, the State asserted that Nakano was charged with violating either HRS §§ 291E–61(a)(1) or (a)(3), and in light of this court's decision in Nesmith, "a state of mind was not required for the HRS § 291E–61(a)(3) OVUII charge, therefore the charge was not defective with regard to OVUII charged pursuant to HRS § 291E–61(a)(3)." The State further asserted that "on remand [Nakano's] conviction and sentence for his no contest plea to the OVUII charge based on HRS § 291E–61(a)(3) should be affirmed[.]"
Nakano filed a reply brief and argued that the HRS § 291E–61(a)(1) charge must be dismissed without prejudice. In addition, Nakano contended that he did not enter a plea to the HRS § 291E–61(a)(3) charge, and therefore, "there is no reason to address the (a)(3) charge, and the entire Complaint should be dismissed without prejudice."
On April 17, 2013, the ICA filed an initial summary disposition order (SDO) affirming the district court's judgment as to his conviction under HRS § 291E–61(a)(3), but vacating his conviction under HRS § 291E–61(a)(1). Nakano filed a motion for reconsideration and argued that he did not plead to the charge under HRS § 291E–61(a)(3). The ICA filed an Order granting the motion for reconsideration, and ordered that the April 17, 2013 SDO be vacated and that a new SDO be filed.
In its April 26, 2013 SDO, the ICA determined:
Based on the Hawai‘i Supreme Court's decision in State v. Nesmith, 127 Hawai‘i 48, 61, 276 P.3d 617, 630 (2012), we conclude that the complaint was sufficient to charge OVUII in violation of HRS § 291E–61(a)(3), but was insufficient to charge OVUII in violation of HRS § 291E–61(a)(1). Thus, no effective charge against Nakano under HRS § 291[E]–61(a)(1) existed, but the State was entitled to proceed to trial on the OVUII offense charged under HRS § 291E–61(a)(3). However, where no trial ensued on the (a)(3) offense, and where Nakano neither entered a no contest plea nor stipulated to a factual basis for the OVUII charge...
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