State v. Riveira

• Decision Date: 29 December 1999
• Docket Number: No. 21871.,21871.
• Citation: 993 P.2d 580,92 Haw. 546
• Parties: STATE of Hawai`i, Plaintiff-Appellee, v. Jonathan RIVEIRA, Defendant-Appellant.
• Court: Hawaii Court of Appeals

993 P.2d 580

92 Haw. 546

STATE of Hawai`i, Plaintiff-Appellee, v. Jonathan RIVEIRA, Defendant-Appellant.

No. 21871.

Intermediate Court of Appeals of Hawai`i.

December 29, 1999.

Certiorari Granted January 31, 2000.

Janet R. Garcia, Hilo, on the briefs, for Plaintiff-appellee.

Rose Anne Fletcher, Kaneohe, on the briefs, for defendant-appellant.

BURNS, C.J., ACOBA and LIM, JJ.

Opinion of the Court by LIM, J.

Defendant-Appellant Jonathan Riveira (Riveira) appeals the judgment of the District Court of the Third Circuit, entered May 14, 1998, convicting him of the offense of driving without no-fault insurance, in violation of Hawai`i Revised Statutes (HRS) § 431:10C-104(a) (Supp.1997), and sentencing him, as a repeat offender, to a $1500 fine.¹ For the following reasons, we affirm.

I. BACKGROUND

On October 8, 1997, Riveira was cited for driving without no-fault insurance in violation of HRS § 431:10C-104(a).² On April 9, 1998, he pled no contest to the charge. Previously, Riveira had been adjudicated for the same offense; on November 26, 1993, when he was seventeen years old.

The district court continued sentencing to May 14, 1998, to give the parties time to file sentencing memoranda.

Riveira filed a sentencing memorandum on May 11, 1998, contending that, because he was adjudicated as a juvenile for the previous offense, HRS § 571-1 prohibits consideration of the 1993 juvenile adjudication as a prior conviction for sentencing purposes.

The State filed a memorandum in support of sentencing as second conviction on May 12, 1998, arguing that, because State v. Nobriga, 56 Haw. 75, 527 P.2d 1269 (1974), allows the courts to consider juvenile records in sentencing adults, the 1993 juvenile adjudication should be treated as a prior conviction. The State also insisted that juveniles be treated the same as adults for traffic offenses.

When Riveira was cited, HRS § 431:10C-117(a)(2)(B) provided:

If the person is convicted of not having had a [no-fault] 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 conviction[.]

(Emphasis added).

HRS § 571-1 provides, in relevant part:

The chapter creates within this State a system of family courts and it shall be a policy and purpose of said courts to promote the reconciliation of distressed juveniles with their families, foster the rehabilitation of juveniles in difficulty, render appropriate punishment to offenders, and reduce juvenile delinquency. The court shall conduct all proceedings to the end that no adjudication by the court of the status of any child under this chapter shall be deemed a conviction; no such adjudication shall impose any civil disability ordinarily resulting from conviction; no child shall be found guilty or be deemed a criminal by reason of such adjudication; no child shall be charged with [a] crime or be convicted in any court except as otherwise provided in this chapter; and all children found responsible for offenses shall receive dispositions that provide incentive for reform or deterrence from further misconduct, or both. The disposition made of a child or any evidence given in the court, shall not operate to disqualify the child in any civil service or military application or appointment. Any evidence given in any case under section 571-11 shall not in any civil, criminal, or other cause in any court be lawful or proper evidence against the child for any purpose whatever except in subsequent cases involving the same child under section 571-11.

At the May 14, 1998 sentencing, the district court, after hearing the arguments of the parties, deemed Riveira a repeat offender and sentenced him to a $1500 fine. Written findings of fact and conclusions of law were entered on July 27, 1998. Notice of appeal was filed by Riveira's counsel on August 27, 1998.

II. JURISDICTION

Before we reach the merits of the appeal, we must determine that we have jurisdiction. The timely filing of a notice of appeal is a jurisdictional requirement. State v. Knight, 80 Hawai`i 318, 909 P.2d 1133 (1996). "It is well-settled that every court must ... determine as a threshold matter whether it has jurisdiction to decide the issue[s] presented. Moreover, subject matter jurisdiction may not be waived and can be challenged at any time." Public Access Shoreline Hawaii v. Hawaii County Planning Comm'n, 79 Hawai`i 425, 431, 903 P.2d 1246, 1252 (1995) (internal quotations and citations omitted). If neither side raises the issue, "a court sua sponte will, for unless jurisdiction of the court over the subject matter exists, any judgment rendered is invalid." Meyer v. Territory, 36 Haw. 75, 78 (1942).

A.

Whether the appellate court has jurisdiction even though Riveira's appeal was not timely filed?

A notice of appeal must be filed within thirty days after entry of judgment. HRS § 641-12; Hawai`i Rules of Appellate Procedure (HRAP) 4(b). Judgment was entered on May 14, 1998, when the clerk noted the disposition on the court's daily calender.³ The notice of appeal filed by Riveira on August 27, 1998 was, therefore, not timely.

However, if driving without no-fault insurance is a crime, as opposed to a mere violation, then Riveira's right to appeal may not be denied merely because his counsel failed to comply with procedural rules. Knight, 80 Hawai`i at 323-24, 909 P.2d at 1138-39 ("a criminal defendant is entitled, on his first appeal, to effective counsel who may not deprive him of his appeal by failure to comply with procedural rules.") See also State v. Erwin, 57 Haw. 268, 270, 554 P.2d 236, 238 (1976)

.

According to HRS § 701-107(1), "[a]n offense defined by this Code [Hawaii Penal Code] or by any other statute of this State for which a sentence of imprisonment is authorized constitutes a crime." (Emphasis added.) For example, in State v. Lau, 78 Hawai`i 54, 59, 890 P.2d 291, 296 (1995), the Hawai`i Supreme Court held that driving under the influence of intoxicating liquor is a crime because a sentence of imprisonment is authorized by the statute. HRS § 291-4. A violation, on the other hand, does not carry a potential prison sentence, and is not considered a crime. See HRS § 701-107(5).

We question whether HRS § 701-107(1) applies in this case. Although HRS § 431:10C-117(a) authorizes imprisonment as punishment, it does so only for repeat offenders with multiple offenses.⁴ Unlike the defendants in Lau, who faced possible prison time even upon their first offenses, Riveira was not subject to incarceration.

However, offenses which do not carry the possibility of imprisonment can also be considered criminal. For example, improper mooring of vessel is a criminal offense, even though no prison sentence can be imposed. State v. Simeona, 10 Haw.App. 220, 229, 864 P.2d 1109, 1114 (1993), overruled on other grounds, State v. Ford, 84 Hawai`i 65, 929 P.2d 78 (1996). The controlling factor is whether the legislature intended to classify the penalties as criminal or civil. Simeona, 10 Haw.App. at 229-32, 864 P.2d at 1114-15.

Accordingly, a prosecution for driving without no-fault insurance is criminal in nature because the legislature intended the penalties to be criminal. The purpose of the no-fault insurance penalties is "[t]o deter persons from driving without motor vehicle insurance coverage not only through criminal penalties, but through a limitation on the ability of the uninsured motorist to recover for injuries in tort...." (Emphasis added) 1983 Haw. Sess. L. Act 245, § 1 at 510-21, cited in Del Rio v. Crake, 87 Hawai`i 297, 303, 955 P.2d 90, 96 (1998). The Del Rio Court also noted that the legislature's several approaches to enforcing universal no-fault coverage extend to "[c]riminal penalties including fines, possible license suspension, jail, and impoundment of the vehicle[.]" (Emphasis added) Id. at 302, 955 P.2d at 95. Finally, the legislature has provided a specific criminal procedure statute for HRS § 431:10C violations. HRS § 805-13 (HRS Chapter 805 is entitled "Criminal Procedure: District Courts."). See also State v. Shamp, 86 Hawai`i 331, 334-39, 949 P.2d 171, 174-79

(describing a driving without no-fault insurance case as "a criminal case," and applying a criminal state-of-mind requirement to the material elements of the offense).

Therefore, although Riveira did not face a sentence of imprisonment, the proceeding was nevertheless criminal. As a criminal defendant, Riveira is entitled to the present appeal.

B.

Whether Riveira's right to appeal an alleged illegal sentence was waived by his plea of no contest?

The next jurisdictional issue is whether Riveira's right to appeal an alleged illegal sentence was waived by his plea of no contest.

Generally, a valid and unconditional plea of guilty or no contest constitutes a waiver of the right to appeal all nonjurisdictional claims. State v. Morin, 71 Haw. 159, 162, 785 P.2d 1316, 1318 (1990). The Hawai`i Supreme Court has identified the policy behind this general rule:

"Once the defendant chooses to bypass the orderly procedure for litigating his constitutional claims in order to take the benefits, if any, of a plea of guilty, the State acquires a legitimate expectation of finality in the conviction thereby obtained."

Id. at 163, 785 P.2d at 1319 (quoting Lefkowitz v. Newsome, 420 U.S. 283, 289, 95 S.Ct. 886, 43 L.Ed.2d 196 (1975)).

Allowing a defendant to appeal an illegal sentence after a plea of guilty or no contest does not conflict, however, with the policy behind Morin. An appeal pertaining to the legality of a sentence does not disturb finality in the conviction, no matter how the appeal is ultimately decided.

Furthermore, Hawai`i cases suggest that the right to appeal an illegal sentence is not waived by a plea of guilty or no contest. The Hawai`i Supreme Court has routinely reviewed appeals in which the defendant had pled guilty but was...