State v. Topasna

• Decision Date: 27 November 2000
• Docket Number: No. 22606.,22606.
• Parties: STATE of Hawaii, Plaintiff-Appellee, v. Alfred TOPASNA, Defendant-Appellant.
• Court: Hawaii Court of Appeals

16 P.3d 849

94 Haw. 444

STATE of Hawaii, Plaintiff-Appellee, v. Alfred TOPASNA, Defendant-Appellant.

No. 22606.

Intermediate Court of Appeals of Hawai`i.

November 27, 2000.

Rose Anne Fletcher, Deputy Public Defender, on the briefs, for defendant-appellant.

Mangmang Qiu Brown, Deputy Prosecuting Attorney, City and County of Honolulu, on the briefs, for plaintiff-appellee.

WATANABE, Acting C.J., LIM and FOLEY, JJ.

Opinion of the Court by LIM, J.

In his appeal of the circuit court of the first circuit's May 21, 1999 judgment, guilty conviction and sentence, Defendant-Appellant Alfred Topasna (Topasna) contends that the court abused its discretion in denying his motion to withdraw his guilty pleas.

Throughout his change-of-plea colloquy with the court, Topasna was extremely hesitant and reluctant to change his pleas. Topasna changed his mind immediately after changing his pleas and the next day told his attorney to move to withdraw the pleas. During the hearing on his motion, Topasna steadfastly maintained his innocence.

Upon our review of the record, we conclude that the court, through its change-of-plea colloquy with Topasna, ensured that his guilty pleas were nonetheless knowing, intelligent and voluntary. In doing so, we decide that Topasna's pleas were indeed knowing, intelligent and voluntary, the above circumstances notwithstanding. Hence, we hold that the court did not abuse its discretion in denying his motion to withdraw his guilty pleas.

We therefore affirm the May 21, 1999 judgment.

I. BACKGROUND.

On May 27, 1998, Topasna was indicted for various acts of sexual penetration and sexual contact with his girlfriend's daughter over a span of about four-and-a-half years.

The first two counts of the indictment charged him with sexual assault in the first degree, in violation of Hawaii Revised Statutes (HRS) § 707-730(1)(b), for sexual penetration of the female when she was less than fourteen years old. Sexual assault in the first degree is a class A felony, HRS § 707-730(2), which carries a mandatory indeterminate term of imprisonment of twenty years. HRS § 706-659.

The third and fourth counts of the indictment charged him with sexual assault in the second degree, in violation of HRS § 707-731(1)(a), for sexual penetration by compulsion. Sexual assault in the second degree is a class B felony, HRS § 707-731(2), which carries an indeterminate term of imprisonment of ten years. HRS § 706-660.

The fifth count of the indictment charged him with sexual assault in the fourth degree, in violation of HRS § 707-733(1)(a), for sexual contact by compulsion. Sexual assault in the fourth degree is a misdemeanor, HRS § 707-733(2), which carries a maximum prison term of one year. HRS § 706-663.

The last count of the indictment charged him with sexual assault in the third degree, in violation of HRS § 707-732(1)(e), for sexual contact by strong compulsion. Sexual assault in the third degree is a class C felony, HRS § 707-732(2), which carries an indeterminate term of imprisonment of five years. HRS § 706-660.

On March 16, 1999, the day jury trial commenced in his case, Topasna pled guilty as part of a plea agreement with the State.

He pled guilty to reduced charges of sexual assault in the second degree in the first two counts of the indictment, and as charged in the following four counts. The deal with the State provided for ten-year indeterminate terms of imprisonment and a five-year indeterminate term of imprisonment, all terms to run concurrently. The State also agreed not to seek extended terms of imprisonment. During the hearing, the trial court bound itself to the plea agreement pursuant to Hawai`i Rules of Penal Procedure (HRPP) Rule 11(e)(1). After Topasna entered his guilty pleas, the court set sentencing for May 21, 1999.

On March 24, 1999, Topasna moved to withdraw his guilty pleas. The supporting declaration of counsel averred that Topasna had asked him to move for withdrawal the day after the change of pleas.

At the April 9, 1999 hearing on the motion, Topasna testified that he had changed his mind about changing his pleas as soon as he walked out of the courtroom on March 16, 1999. He called his attorney the next day about withdrawing the pleas.

When asked why he now wanted to go to trial, Topasna responded, "Well, `cause I'm innocent for those charges." Topasna went on to explain his state of mind at the change-of-plea hearing. He told the trial court that he was very tired that day from lack of sleep. He had been kept awake and nauseated for two weeks before the hearing by incessant noise and cigarette smoke from the inmates in his holding unit. In addition, the holding unit had been freshly painted. As a result, he was confused, sick and tired at the hearing.

He also testified that he was rushed into changing his pleas to guilty. He claimed that he had not seen a copy of the indictment until the day of the hearing. "I didn't know what was I charged for. I mean, the whole charges[.]" He also said he felt "defeated" due to the motion court's denial of a key evidentiary motion he had filed. As a result, he was not prepared to go to trial that day and presumably, saw no way out but to change his pleas to guilty.

On April 30, 1999, the trial court filed its findings of fact, conclusions of law and order denying Topasna's motion to withdraw his guilty pleas.

Topasna filed for reconsideration of that decision. The trial court denied the motion for reconsideration at the May 21, 1999 hearing on the motion. Immediately thereafter, the court sentenced Topasna pursuant to the plea agreement. Judgment was entered the same day. Topasna filed his notice of appeal from the May 21, 1999 judgment on June 18, 1999.

The ten months between indictment and change of pleas saw a number of motions filed by Topasna. The evidentiary motion referred to by Topasna during the hearing on his motion to withdraw his guilty pleas was a Hawaii Rules of Evidence (HRE) Rule 412¹ motion. As originally filed on December 11, 1998, the motion sought to admit evidence at trial "under HRE [Rule] 412(b)(2)(B) of the complainant's `[p]ast sexual behavior with the accused . . . upon the issue of whether the alleged victim consented to the sexual behavior with respect to which rape or sexual assault is alleged.'" The offer of proof in the motion asserted that "[t]he police reports indicate that the complaining witness . . . had some form of injury (healed laceration) to her private area . . . . [Topasna] intends to illicit [sic] evidence that the complaining witness is sexually active through the complaining witness, as well as other possible [sic—presumably, witnesses]."

In a January 7, 1999 filing, however, Topasna amended the object and the basis of his HRE Rule 412 motion. The object of the motion was now "evidence under HRE [Rule] 412(b)(1) as well as (2)(A) of the complainant's `[p]ast sexual behavior with persons other than the accused . . . upon the issue of whether the accused was or was not, with respect to the alleged victim, the source of semen or injury.' Defendant will not introduce evidence under HRE Rule 412(b)(2)(B)." The amended offer of proof alleged that "[t]he police reports indicate that the complaining witness . . . had some form of injury (healed laceration) to her private area. Med-Legal documents indicate that the complaining witness was sexually active. Counsel intends to illicit [sic] this information through the complaining witnesses [sic] as well as other possible sources. There is evidence that [the complaining witness] had at least one boyfriend who may have been the source of the injury."

At the January 8, 1999 hearing on the motion, the motions court denied the motion because "the Defense offer of proof is insufficient to proceed to a contested hearing involving live testimony." The motions court further concluded that "even if the Defendant's offer of proof is found adequate, this Court would find and conclude that the proffered evidence still does not reflect anything factual which would allow such prohibited evidence to be admissible at trial."

The trial court entertained motions in limine on March 15, 1999, the day before jury trial was to commence. At the beginning of that hearing, Topasna's attorney revisited the subject of the HRE Rule 412 evidence:

[DEFENSE COUNSEL]: Your Honor, we were hoping not to continue this case, just proceed to trial on this matter. But after thinking about the case further, discussing the case further with the witnesses, and in preparing a little bit more, it's become a little bit clearer that the [HRE Rule] 412 motion which was denied earlier is critical to the defense.

And the remedies—you know, we could have the trial court rule on it or we could file a motion for reconsideration of the [motions court's] ruling. Maybe some of the problems that [the motions court] had was perhaps with the offer of proof which was given, and she may not have specific details of what the proffered testimony was going to be and a more—a better—a clearer argument of why we actually needed the testimony.

And so I don't want to continue it really because my client's in custody. But because the issue is important to his defense—it goes to the motive of the complaining witness. And I, you know, feel a little hamstrung or handcuffed a little bit what to do about this case.

In the same sense too, because there's a prior ruling by another Court of equal power, I didn't want this Court to feel—to just brush off the issue and think that this is law of the case already, I can't touch it up anymore. And for that reason, if the Court's going to have an inclination to that effect, I'm going to ask—I'm asking for a continuance in order to file a motion.

THE COURT: Okay. Well, I think we need to get into a little bit—at least a little bit of what your motion for reconsideration will be. What is it that you want to introduce at trial?

[DEFENSE COUNSEL]: Well, I mean, I tried to flush

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