State v. Stone

• Decision Date: 31 August 2012
• Docket Number: No. 30059.,30059.
• Citation: 284 P.3d 224,128 Hawai'i 131
• Parties: STATE of Hawai‘i, Plaintiff–Appellee, v. Clarence STONE, Defendant–Appellant.
• Court: Hawaii Court of Appeals

128 Hawai'i 131

284 P.3d 224

STATE of Hawai‘i, Plaintiff–Appellee,

v.Clarence STONE, Defendant–Appellant.

No. 30059.

Intermediate Court of Appeals of Hawai‘i.

Aug. 31, 2012.

Appeal from the District Court of the Second Circuit, Wailuku Division (Case Nos. 2DTA–08–00722; 2DTA–08–01628; 2DTC–08–011610; 2DTC–09–009261).

Hayden Aluli, on the briefs, for Defendant–Appellant.

Renee Ishikawa Delizo, Deputy Prosecuting Attorney, County of Maui, on the briefs, for Plaintiff–Appellee.

FOLEY and GINOZA, JJ. with NAKAMURA, C.J., concurring and dissenting separately.

SUMMARY DISPOSITION ORDER

Defendant–Appellant Clarence Stone (Stone) appeals from the Notices of Entry of Judgment and/or Order and Plea/Judgments (Judgments) in Case Nos. 2DTA–08–00722, 2DTA–08–01628, 2DTC–08–011610, and 2DTC–09–009261 filed in the District Court of the Second Circuit, Wailuku Division (District Court). ¹

In Case No. 2DTA–08–00722, pursuant to Stone's guilty plea, he was convicted of Operating a Vehicle After License and Privilege Have Been Suspended or Revoked for Operating a Vehicle Under the Influence of an Intoxicant (Operating Vehicle After License Revoked), in violation of Hawaii Revised Statutes (HRS) § 291E–62 (2007 Repl.).

In Case No. 2DTA–08–01628, pursuant to Stone's guilty plea, he was convicted of: Operating a Vehicle Under the Influence of an Intoxicant (OVUII) in violation of HRS § 291E–61(a) (Supp.2008); and Driving Without a License (DWOL) in violation of HRS § 286–102 (2007 Repl.).

In Case No. 2DTC–08–011610, pursuant to Stone's guilty plea, he was convicted of: Operating a Vehicle After License Revoked in violation of HRS § 291E–62; and Driving Without No–Fault Insurance in violation of HRS § 431:10C–104 (2005 Repl.).

In Case No. 2DTC–09–009261, pursuant to Stone's no contest plea, he was convicted of Operating a Vehicle After License Revoked in violation of HRS § 291E–62.

On appeal, Stone raises the following points of error:

(1) with respect to Case No. 2DTA–08–01628: (a) the District Court lacked subject matter jurisdiction over the OVUII offense because the charge failed to allege an essential element, that Stone operated a vehicle upon a public way, street, road, or highway, as required under State v. Wheeler, 121 Hawai‘i 383, 219 P.3d 1170 (2009); and (b) the District Court lacked subject matter jurisdiction over the DWOL offense because the charge failed to allege that Stone “was not excepted by statute from the driver's licensing requirements[.]”;

(2) with respect to Case Nos. 2DTA–08–00722, 2DTC–08–011610, and 2DTC–09–009261, the District Court lacked subject matter jurisdiction over the offenses of Operating a Vehicle After License Revoked because each of the charges failed to allege an essential element, that Stone operated a vehicle upon a public way, street, road, or highway, as required under Wheeler.

Upon careful review of the record and the briefs submitted by the parties and having given due consideration to the arguments advanced and the issues raised by the parties, we affirm the judgment in each case and resolve Stone's points of error as follows.

We first address the State's contention that Stone's notice of appeal was defective and thus failed to invoke appellate jurisdiction. The District Court entered two sets of judgments, the first set on July 14, 2009 and subsequently another set on September 1, 2009, which amended Stone's sentences. Stone filed his notice of appeal on September 14, 2009, within thirty days of the September 1, 2009 judgments. However, the notice of appeal indicated the appeal was from the July 14, 2009 judgments and copies of those judgments were attached thereto.

Although Stone's notice of appeal should have referenced that the appeal was from the judgments entered on September 1, 2009, this error does not prevent appellate jurisdiction in this appeal.

With respect to multiple judgments, the supreme court has explained as follows:

The general rule is that where a judgment is amended in a material and substantial respect, the time within which an appeal from such determination may be taken begins to run from the date of the amendment, although where the amendment relates only to the correction of a clerical error, it does not affect the time allowed for appeal.

Poe v. Hawai‘i Labor Relations Bd., 98 Hawai‘i 416, 418, 49 P.3d 382, 384 (2002) (citation, and ellipsis omitted); see also State v. Mainaaupo, 117 Hawai‘i 235, 246 n. 6, 178 P.3d 1, 12 n. 6 (2008). Because the September 1, 2009 judgments materially and substantially altered the July 14, 2009 judgments by modifying Stone's sentences, Stone should have appealed from the latter judgments. However, under the standard articulated in State v. Bohannon, “a mistake in designating the judgment ... should not result in loss of the appeal as long as the intent to appeal from a specific judgment can be fairly inferred from the notice and the appellee is not misled by the mistake.” 102 Hawai‘i 228, 235, 74 P.3d 980, 987 (2003) (quoting City & Cnty. of Honolulu v. Midkiff, 57 Haw. 273, 275–76, 554 P.2d 233, 235 (1976)). Moreover, Hawai‘i Rules of Appellate Procedure (HRAP) Rule 3(c)(2) states, in relevant part that “[a]n appeal shall not be dismissed for informality of form or title of the notice of appeal.”

The State does not argue that it could not be fairly inferred that Stone intended to appeal the September 1, 2009 judgments, nor does the State argue that it was misled by the mistake. Moreover, the State did not file a statement contesting jurisdiction as allowed by HRAP Rule 12.1(a). Rather, the State filed an answering brief addressing the merits of Stone's appeal, and raises the question of jurisdiction as an initial argument.² We therefore conclude that we have jurisdiction to hear this appeal.

(1) Because the respective charges did not allege that Stone operated a vehicle upon a public way, street, road, or highway as required in Wheeler, Stone contends that the charges were defective and that the District Court thus lacked subject matter jurisdiction: in Case No. 2DTA–08–01628 as to the OVUII offense; and in Case Nos. 2DTA–08–00722, 2DTC–08–011610 and 2DTC–09–009261 as to the offenses in those cases of Operating a Vehicle After License Revoked.

Stone did not object to any of the subject charges at any point in the District Court proceedings and instead raises the issue for the first time on appeal. In Wheeler, the Hawai‘i Supreme Court stated that:

this court has applied different principles depending on whether or not an objection was timely raised in the trial court. Under the “ Motta/Wells post-conviction liberal construction rule,” we liberally construe charges challenged for the first time on appeal. See Merino, 81 Hawai‘i at 212, 915 P.2d at 686;Nells, 78 Hawai‘i at 381, 894 P.2d at 78;Elliott, 77 Hawai‘i at 311, 884 P.2d at 374;State v. Motta, 66 Haw. 89, 90, 657 P.2d 1019, 1019–20 (1983). Under this approach, there is a “presumption of validity,” Sprattling, 99 Hawai‘i at 318, 55 P.3d at 282, for charges challenged subsequent to a conviction. In those circumstances, this court will “not reverse a conviction based upon a defective indictment [or complaint] unless the defendant can show prejudice or that the indictment [or complaint] cannot within reason be construed to charge a crime.” Merino, 81 Hawai‘i at 212, 915 P.2d at 686 (citation omitted).

121 Hawai‘i at 399–400, 219 P.3d at 1186–87.

In Wheeler, the Hawai‘i Supreme Court further noted that:

in determining whether a defendant has been adequately informed of the charges against him, the appellate court can consider other information in addition to the charge that may have been provided to the defendant during the course of the case up until the time defendant objected to the sufficiency of the charges against him.

Wheeler, 121 Hawai‘i at 396, 219 P.3d at 1183;³see State v. Sprattling, 99 Hawai‘i 312, 318–21, 55 P.3d 276, 282–85 (2002) (court reviewed record and information provided to defendant prior to challenge of the charge in determining defendant failed to overcome presumption of valid charge under the Motta/Wells standard); State v. Treat, 67 Haw. 119, 120, 680 P.2d 250, 251 (1984) (dismissal of indictment reversed because, prior to consideration of dismissal motion, defendant “had been supplied with the grand jury transcript which clearly established the details of the crime, [and] he had been fully informed of the nature and cause of the accusation against him.”).

In this case, Stone does not attempt to make any showing that the requirements of the Motta/Wells rule are met. Indeed, although the State argued the application of the Motta/Wells rule in its answering brief, Stone did not file a reply brief and thus does not address the Motta/Wells rule. Instead, Stone's contention is that because the charges were defective pursuant to Wheeler, under cases such as State v. Cummings, 101 Hawai‘i 139, 63 P.3d 1109 (2003), the District Court did not have jurisdiction to convict him. The Hawai‘i Supreme Court, however, has continued to recognize the validity of the Motta/Wells rule, both in Wheeler and post- Wheeler. See State v. Tominiko, 126 Hawai‘i 68, 76, 266 P.3d 1122, 1130 (2011); Hitchcock, 123 Hawai‘i at 379, 235 P.3d at 375.

Because Stone did not timely raise any objection to the sufficiency of the subject charges before he was convicted in the District Court, the Motta/Wells liberal construction standard is applicable. Under this standard, the validity of the charges is presumed and the convictions will not be reversed unless Stone can show: (a) prejudice; or (b) that the charges cannot within reason be construed to charge a crime.

Stone makes no attempt to carry his burden under the Motta/Wells rule and thus has waived any challenge on the issue of prejudice and whether the charge can within reason be construed to charge a crime. SeeHRAP Rule 28(b)(7) ( “Points not argued may be deemed waived.”).

Even if we were to reach those issues,...