State v. Tuialii
| Citation | 214 P.3d 1125,121 Haw. 135 |
| Decision Date | 30 June 2009 |
| Docket Number | No. 29239.,29239. |
| Parties | STATE of Hawai`i, Plaintiff-Appellee, v. Afa TUIALII, Defendant-Appellant. |
| Court | Hawaii Court of Appeals |
Craig W. Jerome, Deputy Public Defender, on the briefs, for Defendant-Appellant.
Delanie D. Prescott-Tate, Deputy Prosecuting Attorney, on the briefs, for Plaintiff-Appellee.
Defendant-Appellant Afa Tuialii (Tuialii) appeals from the Findings of Fact, Conclusions of Law, and Order Denying Defendant's Motion For Correction Of Illegal Sentence (Rule 35 Order), filed on June 4, 2008 in the Circuit Court of the First Circuit (Circuit Court).1
Tuialii, a former payroll and accounts payable clerk, was charged with Theft in the First Degree, in violation of Haw.Rev.Stat. (HRS) § 708-830.5(1)(a) (Supp.2007), stemming from the transfer of over $76,000 from his employer's payroll account into his personal credit union account. Tuialii pled no contest to the charge and was sentenced to five years of probation and one year in jail (which was suspended except for time served). Tuialii was also ordered to pay restitution in the amount of $76,285.19 to his employer, Principle Hotels, LLC. (Principle).
On appeal, Tuialii contends that the Circuit Court erred by denying his Motion for Correction of Illegal Sentence (Rule 35 Motion) because the Circuit Court failed to conduct a colloquy which advised him that restitution could be ordered as a consequence of his plea, thus rendering his no-contest plea unknowing and involuntary. Tuialii claims that the "illegal" restitution order must be vacated or Tuialii must be allowed to withdraw his plea. Tuialii further claims that restitution cannot be ordered because the victim received indemnification from its insurance company. We reject both arguments and affirm.
Tuialii was employed by Principle from October 2005 until some time after the theft was discovered. As a payroll and accounts payable clerk, his duties included entering information into payroll and accounting systems and processing vendor invoices. In early February of 2007, Principle's chief financial officer noticed irregularities in Principle's payroll records. Through an investigation, it was discovered that money from Principle's account was being directly deposited into Tuialii's credit union account. After initially denying any knowledge of the transfers, Tuialii admitted that he was responsible for the unauthorized transfer of funds into his account, which included ten deposits totaling over $76,000.
After the matter was reported to the Honolulu Police Department, on March 8, 2007, Tuialii was charged with Theft in the First Degree. On September 6, 2007, Tuialii pled no contest to the charge. The no-contest plea stated in part:
6. I understand that the court may impose any of the following penalties for the offense(s) to which I now plead: the maximum term of imprisonment, any extended term of imprisonment, and any mandatory minimum term of imprisonment specified above; consecutive terms of imprisonment (if more than one charge); restitution; a fine; a fee and/or assessment; community service; probation with up to one year of imprisonment and other terms and conditions.
At sentencing, the State requested that Tuialii be sentenced to prison and ordered to pay restitution in the amount of $76,285.19, the amount established at a preliminary hearing.
On November 26, 2007, the Circuit Court found Tuialii guilty and sentenced him to five years of probation and one year of imprisonment, which was suspended except for time served. The special conditions of probation included, inter alia, restitution in the amount of $76,285.19 to Principle and referenced a free-standing order for restitution.
On February 7, 2008, Tuialii filed a Motion for Reconsideration of Sentence based in part on his possession of a $10,000 check, which Tuialii intended as an "upfront payment of restitution as mitigation" and other matters which Tuialii submitted in support of his reconsideration request. Although not entirely clear from the motion, it appears that Tuialii was requesting that the court reconsider its denial of Tuialii's earlier request for a deferred acceptance of no-contest plea. Tuialii does not appeal from the Circuit Court's June 4, 2008 order denying the motion for reconsideration.
On February 8, 2008, the Circuit Court entered a "Free-Standing Order of Restitution," pursuant to HRS §§ 706-605(7), 706-644(5), and 706-630, ordering that Tuialii pay restitution in the amount of $76,285.19. The Free-Standing Order provides that Tuialii's obligation to pay restitution survives the November 26, 2007 Judgment, Guilty Conviction and Sentence and continues in effect even after Tuialii's five-year term of probation expires.
On February 8, 2008, Tuialii filed the Rule 35 Motion, pursuant to Hawai`i Rules of Penal Procedure (HRPP) Rule 35. Tuialii claimed that his sentence was illegal because there was no verified loss to Principle since Principle was paid $87,093.25, less a $500.00 deductible, by its insurance company. On June 4, 2008, the Circuit Court entered the Rule 35 Order, rejecting Tuialii's request for relief. Tuialii timely filed a notice of appeal.
Tuialii raises the following two points of error on this appeal:
1. The order of restitution is invalid because the Circuit Court failed to engage in a colloquy with Tuialii to determine that he understood that restitution could be imposed as a punishment and consequence of his no-contest plea; and
2. The order of restitution was illegal because it ordered Tuialii to pay restitution to Principle for amounts which had been previously indemnified by Principle's insurer.
A circuit court's denial, based on a conclusion of law, of a defendant's HRPP Rule 35 motion to correct illegal sentence is reviewed de novo, under the right/wrong standard of review. Questions of constitutional law and statutory interpretation are reviewed under the same standard. State v. Kido, 109 Hawai`i 458, 461, 128 P.3d 340, 343 (2006).
State v. Fagaragan, 115 Hawai`i 364, 367-68, 167 P.3d 739, 742-43 (2007) (internal quotation marks, citations, and brackets omitted).
Tuialii argues that the Circuit Court plainly erred when it failed to ensure that Tuialii entered a plea voluntarily and knowingly. Tuialii claims that, in his colloquy with the Circuit Court, he was not advised that restitution could be imposed as part of his sentence, thus, he did not understand the consequences of his no-contest plea. Tuialii argues that the Circuit Court should have ensured that he fully understood the consequences of his plea pursuant to HRPP Rule 11(d). On appeal, Tuialii requests that this court remand the case with instructions to allow him to withdraw his no-contest plea.
A defendant does not, however, enjoy an absolute right to withdraw his or her guilty or no-contest plea. See State v. Topasna, 94 Hawai`i 444, 451, 16 P.3d 849, 856 (App.2000) (citing State v. Merino, 81 Hawai`i 198, 223, 915 P.2d 672, 697 (1996)). HRPP Rule 32(d) provides:
A motion to withdraw a plea of guilty or of nolo contendere may be made before sentence is imposed or imposition of sentence is suspended; provided that, to correct manifest injustice the court, upon a party's motion submitted no later than ten (10) days after imposition of sentence, shall set aside the judgment of conviction and permit the defendant to withdraw the plea. At any later time, a defendant seeking to withdraw a plea of guilty or nolo contendere may do so only by petition pursuant to Rule 40 of these rules and the court shall not set aside such a plea unless doing so is necessary to correct manifest injustice.
(Emphasis added.)
Tuialii did not move to withdraw his plea within ten days after sentencing. Therefore, to seek relief from his no-contest plea, Tuialii was required to file a petition pursuant to HRPP Rule 40. See HRPP Rule 32(d). Tuialii failed to avail himself of this option. Tuialii instead filed a petition pursuant to HRPP Rule 35, arguing only that the restitution condition of his probation sentence was illegal because the victim, Principle, was reimbursed by its insurer. We reject Tuialii's request to remand this case to allow withdrawal of his no-contest plea.
Tuialii claims that he was not personally advised in open court, pursuant to HRPP Rule 11(c)(2), that restitution could be imposed as part of his sentence. Tuialii argues that since he did not know the court could order him to pay restitution, his sentence is illegal and he should be resentenced without being ordered to pay restitution.
The plain language of HRPP Rule 11(c)(2) requires that the court advise a defendant of the maximum penalty provided by law and maximum extended term of imprisonment. The Circuit Court orally advised Tuialii that the maximum sentence that could be imposed for Theft in the First Degree was ten years of imprisonment and a fine of $20,000. Tuialii's written no-contest-plea form, which he confirmed he had read carefully and discussed with this attorney, states that he may be subject to restitution. Indeed, in later arguing for reconsideration of his sentence, Tuialii argued that he was prepared to tender a check for $10,000 for a restitution payment "and has been doing everything he can to get some money together." The Circuit Court was not required by HRPP Rule 11(c)(2) to further advise Tuialii...
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