State v. Miller. , 122 Haw. 92 ( 2010 )

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IN THE SUPREME COURT OF THE STATE OF HAWAfI
~»~oGo---
STATB oF HAWA:‘ :, ’;;~;»,;
Respondent/Plaintiff~Appellee §nM §§
vs. if§j '*
DOUGLAS MILLER,
Petitioner/Defendant~Appellant
NO. 28849
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(FC-CR NO. 07~l~0309)
JANUARY 25, 2010
MOON, C.J., ACOBA, AND DUFFY, JJ.,
AND NAKAYAMA, J. DISSENTING, WITH WHOM
CIRCUIT JUDGE HIRAI, ASSIGNED BY REASON OF VACANCY, JOINS
OPINION OF THE COURT BY ACOBA, J.
In his Application for Writ of Certiorari
(Application), Petitioner/Defendant~Appellant Douglas Miller
(Petitioner) seeks review of the judgment of the Intermediate
Court of Appeals (ICA) filed on October 3, 2008, pursuant to its
September l5, 2008 Summary Disposition Order.(SDO)1 affirming the
October l5, 2007 Judqment of conviction and sentence of probation
l
The SDO was filed by then-Chief Judge Mark Recktenwald and
Associate Judge Daniel R. Foley and then-Associate Judge Craig H. Nakamura.
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filed by the family court of the second circuit {the court).2
See State v. Miller, No. 28849, 2008 WL 4l95877, at *l (Haw. App.
Sept. l5, 2008) (SDO). We hold that (l) Respondent/Plaintiff-
Appellee State of HawaiFi (Respondent) breached its plea
agreement with Petitioner when, after agreeing to take no
position on Petitioner’s Deferred Acceptance of No Contest Plea
(“DANCP” or “DANC”) motion, it effectively argued against that
motion at Petitioner’s sentencing hearing; and (2) Respondent's
breach of the plea agreement in this case was plain error, as it
denied Petitioner his constitutional right to due process.
Inasmuch as the ICA held to the contrary as to the foregoing
matters, the ICA’s judgment is reversed, the court’s October l5,
2007 judgment is vacated, and the case is remanded for
resentencing before a different family court judge.
The Application was filed by Petitioner on December 24,
2008, and accepted on February 9, 2009. This court heard oral
argument on the merits on March 5, 2009.
I.
On August 6, 2007, Respondent filed a complaint against
Petitioner, charging him with Abuse of a Family or Household
member, under Hawaiii Revised Statutes (HRS) § 709-906 (Supp.
2007).3 At the proceedings on 0ctober l5, 2007, both parties
2 The Honorable Richard T. Bissen, Jr. presided.
3 HRS § 709~906 provides in relevant part:
Abuse of family or household members; penalty. (l) lt
(continued...)
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represented that they were ready for trial, but came to an oral
agreement outside the courtroom just before the trial was to
begin. Respondent agreed to amend the abuse charge to assault in
the Third Degree under HRS § 707~?l2 (l993)* on condition that
Petitioner plead “no contest” to the amended charge. The
agreement also “included the understanding that [Petitioner]
would orally move [the court} for a [DANCP], to which
3(...continued)
shall be unlawful for any person, singly or in concert, to
physically abuse a family or household member . . . .
For the purposes of this section, “family or household
member” means spouses or reciprocal beneficiaries, former
spouses or reciprocal beneficiaries, persons who have a
child in common, parents, children, persons related by
consanguinity, and persons jointly residing or formerly
residing in the same dwelling unit.
(5) Abuse of a family or household member . . . [is
a] misdemeanor[] and the person shall be sentenced as
follows:
(a) For the first offense the person shall serve a
minimum jail sentence of forty-eight hours;
Upon conviction and sentencing of the defendant, the court
shall order that the defendant immediately be incarcerated
to serve the mandatory minimum sentence imposed; provided
that the defendant may be admitted to bail pending appeal
pursuant to chapter 804. The court may stay the imposition
of the sentence if special circumstances exist.
(6) whenever a court sentences a person pursuant to
subsection (5), it also shall require that the offender
undergo any available domestic violence intervention
programs ordered by the court. However, the court may
suspend any portion of a jail sentence, except for the
mandatory sentences under subsection (5)(a) and (b), upon
the condition that the defendant remain arrest-free and
conviction-free or complete court-ordered intervention.
4 HRS § 707-712 provides:
Assault in the third degree. (l) A person commits
the offense of assault in the third degree if the person:
(a) Intentionally, knowingly, or recklessly causes
v bodily injury to another person; or
(b) Negligently causes bodily injury to another
person with a dangerous instrument.
(2) Assault in the third degree is a misdemeanor
unless committed in a fight or scuffle entered into by
mutual consent, in which case it is a petty misdemeanor.
3
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{Respondent] agreed to ‘take no position.’” A change of plea
hearing occurred at which the following colloquy took place
regarding the terms of the plea agreement:
THB COURT: . . . The attorneys, during this time off
the record, have been in negotiations and have come to an
agreement.
Will {Respondent] please place that agreement on the
record.
[PROSECUTOR]: Yes, your Honor. lRespondent will
agree to amend the charge of abuse of a family or household
member to Assault in the Third Degree. And [Petitioner1
will agree to plead guilty or no contest to this charqe.
{Petitioner] has agreed to write a letter of apologize {sic]
to {the complainant]. [Petitionerl has already agreed to do
one year of probation, serve 48 hours jail time, do a
substance abuse assessment, participate in domestic violence
intervention classes, and pay restitution to [the
complainant] for the emergency visit stemming from this
case.
[PETITlONER'S COUNSEL]: ls that it? Okay. And, your
Honor, it's my understandinq, tooL that [Petitioner] will be
moving the [clourt for acceptance of a [DANCP1, and
[Respondent] will take no position as to that motion.
THE COURT: ls that right?
[PROSECUTOR]: 1 will--I'll take no position, your
Honor.
(Emphases added.)
The court then had an on-the~record colloquy with
Petitioner regarding the consequences of his plea agreement and
found that Petitioner “voluntarily, knowingly, and intelligently
enter[ed] his plea with a full understanding of the charge
against him and the consequences of his plea.” The court
reserved entering a “finding of guilt until [it] heard the
argument” on the DANCP motion.
The court first heard from Respondent as to
“[s]entencing.” The prosecutor then stated:
Your Honor, we would ask that you follow the agreement
that’s been reached. However, this case was borderline
strangulation. [Petitioner] actually elbows [the
complainant], kneed her in the back, punched her, choked
her, put his hand over her mouth, and told her to be quiet,
and then also took a pillow after that because she wouldn’t
4
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be quiet and put it over her face.
At that time, your Honor, the witness in this case,
the victim, actually feared for her life. And, you know,
she's 51 years old. So is the defendant. He does not have
a prior criminal record, but you know, at 5l years old, you
shouldn't be doing that to a significant loved one. And
this type of beating and brutality should not be accepted in
our society.
(Emphases added.)
After the prosecutor’s statement, Petitioner thanked
the prosecutor for changing the charge to Assault in the Third
Degree and argued that, because at 5l years of age Petitioner
“doesn’t have a criminal record,” he should be granted a DANCP
under HRS § 853-l (Supp. 2O08).5 Petitioner further argued that
5 HRS § 853-l provides:
(a) Upon proper motion as provided by this chapter:
(l) When a defendant voluntarily pleads guilty or
nolo contendere, prior to commencement of trial,
to a felony, misdemeanor, or petty misdemeanor;
(2) lt appears to the court that the defendant is
not likely again to engage in a criminal course
of conduct; and
(3) The ends of justice and the welfare of society
do not require that the defendant shall
presently suffer the penalty imposed by law, ppg
court, without accepting the plea of nolo
contendere or entering a judgment of guilt and
with the consent of the defendant and after
considering the recommendations, if any, of the
prosecutor, may defer further proceedings.
(b) The proceedings may be deferred upon any of the
conditions specified by section 706-624. As a further
condition, the court shall impose a compensation fee
pursuant to section 351-62.6 upon every defendant who has
entered a plea of guilty or nolo contendere to a petty
misdemeanor, misdemeanor, or felony; provided that the court
shall waive the imposition of a compensation fee, if it
finds that the defendant is unable to pay the compensation
fee. The court may defer the proceedings for a period of
time as the court shall direct but in no case to exceed the
maximum sentence allowable; provided that, if the defendant
has entered a plea of guilty or nolo contendere to a petty
misdemeanor, the court may defer the proceedings for a
period not to exceed one year. The defendant may be subject
to bail or recognizance at the court's discretion during the
period during which the proceedings are deferred.
(c) Upon the defendant's completion of the period
designated by the court and in compliance with the terms and
conditions established, the court shall discharge the
(continued...)
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the court had discretion to grant the DANCP motion so long as it
made the requisite findings under HRS § 853~1, specifically that
{i3n this particular case, there is no mandatory minimum
term based on bodily injury. The [c]ourt has the discretion
to grant the deferral. 1f the court makes two findings, and
one, it appears that fPetitionerl is not likely, again, to
engage in a criminal course of conduct; and two, the ends of
justice and the welfare of society have been properly served
by the penalty as imposed by law.
(Emphasis added.) Petitioner also contended that the court’s
alleged interpretation of DANCP as applying to youthful offenders
is not dictated by law:
And 1 know the court has given, 1 guess, guidance that it
appears that the legislature has given this type of deferral
to youthful offenders. 1 don't see that as a matter of law,
and 1 ask that you use your discretion where [Petitioner]
has not engaged at all in any criminal conduct.
Apparently in response to Respondent’s statements concerning the
assault, Petitioner continued,
1 just want the court to note, while we are not minimizing
his plea and apology, when Officer Katayama appeared at the
scene, there was no complaint of injuries. Look for and
found none.
1n response to Petitioner's comments, Respondent
“clarif[ied]” on the record that
[Respondent] did have Dr. Nelson from the ER examine her,
and did see -- well, diagnosis, she had a bruised neck; and
also, in talking with [the complainant], she did have
bruises to her leg area by basically getting into a fetal
position to block [Petitioner].
5(...continued)
defendant and dismiss the charge against the defendant.
(d) Discharge of the defendant and dismissal of the
charge against the defendant under this section shall be
without adjudication of guilt, shall eliminate any civil
admission of guilt, and is not a conviction.
(e) Upon discharge of the defendant and dismissal of
the charge against the defendant under this section, the
defendant may apply for expungement not less than one year
following discharge, pursuant to section 831-3.2.
(Emphases added.)
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50 Officer Katayama, even though he was on the scene
first, bruises do show up later.
The court denied Petitioner's DANCP motion and
sentenced him according to the terms of the plea agreement to
“forty»eight hours of incarceration, one year probation,
substance abuse assessment, domestic violence intervention
classes, and restitution and an apology to the victim.” However,
according to the court, “someone who is involved [in] or causes
such an offense is -~ should not be granted a deferred acceptance
[of his or her] plea”:
Your motion for deferred acceptance is denied. The
[c]ourt -- although l can find fPetitioner] has had no
record for 51 vears, I guess the offense you decided to
start off was one too significant for the {c]ourt to ignore
and to treat as something where the ends of justice and the
welfare of society do not reguire that you presently suffer
this penalty. 1 think, in fact, the opposite is true. 1
think society does demand that someone who is involved linl
or causes such an offense is -- should not be granted a
deferred acceptance fof his or her] plea.
I can make the finding of the other two conditions,
but the other condition is that he's pleading voluntarily
prior to trial, but I don't know if I -- do not feel
comfortable making a finding that he's not likely to, again,
engage in a criminal course of conduct.
And by the way, to address the argument made by
defense that the [c]ourt is of the belief that the deferred
acceptance is reserved only for the youthful offender, that
actually is not correct.
(Emphases added.)
Furthermore, the court indicated that someone 20 or 21
might be “worthy of a deferred acceptance,” but that for “the
type of crime that was committed,” it would “not grant a deferral
whatever age”:
The [c]ourt does view someone whose judgment is not
fully formed, perhaps at an age of 20 or 2l, as being
perhaps worthy of a deferred acceptance for a minor theft or
some other offense that’s been created. But someone that is
the defendant's age, but more importantly for the type of
crime that was committed, 1 could not grant a deferral
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whatever age anyone who committed a similar offense, and 1
~¢
don't believe 1 have.
(Emphasis added.)
ll.
Petitioner appealed to the lCA as to
l) whether the case should be remanded for re-sentencing
before a different judge based on the prosecutor's alleged
violation of the plea agreement wherein she agreed that she
would “take no position” with respect to [Petitioner’s]
request for a DANCP, but then tendered an argument at
sentencing that amounted to a strong opposition to
{Petitioner’s] request for a DANCP; and 2) even if the ICA
found that Respondent did not breach the plea agreement,
whether the matter should be remanded for re-sentencing
before another judge based on the [court's] alleged apparent
“policy” of not granting any DANCPs to offenders over the
age of 21 years who have been charged with Assault in the
Third Degree.
A.
The ICA in its SDO affirmed the “Judgment Conviction
and Probation Sentence.” Miller, 2008 WL 4195877, at *l. As to
Petitioner's first argument of whether the prosecutor violated
the plea agreement, the lCA concluded that, “having failed to
claim a breach of the plea agreement by [Respondent] at the
sentencing hearing, [Petitioner] did not preserve this issue for
appeal.” ldL According to the ICA, “[Petitioner] did not
object” to the prosecutor's comments at the hearing and
Respondent's “comments were limited to sentencing and at no time
did it take a position on [Petitioner’s] DANC [m]otion.” ;Q4 at
*2. The ICA viewed as determinative that Petitioner failed to
raise the breach of the plea agreement at the sentencing hearing
or subsequently by Hawafi Rules of Penal Procedure (HRPP) Rule
35 motion “and thus he cannot raise the issue for the first time
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on direct appeal.”6 ldL
Regarding whether the lCA should nonetheless exercise
plain error review, the ICA determined that it could not, “based
on the record before [it], conclude there was error which
seriously affected ‘the fairness, integrity, or public reputation
of judicial proceedings,’ subverted ‘the ends of justice,’ and
prevented ‘the denial of fundamental rights.'” ;d; (quoting
State v. Vanstorv, 91 HawaiU_33, 42, 979 P.2d 1059, 1068
(1999)).
B.
As to Petitioner’s second argument that “the [court]
abused its discretion in denying fPetitioner's] DANC [m]otion[,]”
ld; at *1, the ICA reasoned that “[t]he grant or denial of a
motion for a DANC plea is within the discretion of the [court]
5 Petitioner argued that several of the federal circuits have
concluded that claims for breach of a plea agreement are not waived if not
raised at sentencing or under Federal Rules of Criminal Procedure (Fed. R.
Crim. P.) Rule 35, and can be raised for the first time on appeal. See United
States v. Moscahlaidis, 868 F.2d l357, 1360 (3d Cir. 1989) (“Even if we agree
that appellant did not properly object to the plea agreement violation at the
sentencing hearing, such failure does not constitute a waiver.” (Citation
omitted.)); United States v. Shorteeth, 887 F.2d 253, 255 (l0th Cir. 1989)
(“Failure to properly object to breach of a plea agreement at a sentencing
hearing ordinarily does not waive the objection.” (Citation omitted.));
Paradiso v. United States, 689 F.2d 28, 30 (2d Cir. 1982) (“Ordinarily there
is no requirement that a defendant object to the violation of a plea agreement
at the time of sentencing, and defendant's claim that his plea agreement was
violated is not waived by his failure to raise the issue at sentencing or in a
subsequent {Fed. R. Crim. P.] Rule 35 motion.” (Citation omitted.)).
Respondent relied in its arguments to the lCA upon a Ninth Circuit
case to argue that “[a] claim of breach of plea is . . . the sort of claim
which a defendant . . . should be required to raise when the alleged breach
can still be repaired.” (Quoting United States v. Flores~Pavon, 942 F.2d 556,
560 (9th Cir. l99l).) In apparent agreement with Respondent, the lCA
concluded that “[Petitioner] should have raised the alleged breach before the
family court at sentencing or subsequently by [HRPP] Rule 35 motion . . . .
This {Petitioner] failed to do, and thus he cannot raise the issue for the
first time on direct appeal.” Miller, 2008 WL 4195877, at *2.
9
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and will not be disturbed unless there has been manifest abuse of
discretion.” lQg at *2. The lCA thereby concluded that
“[Petitioner} has failed to show that the [court] exceeded the
bounds of reason or disregarded the rules or principles of law or
practice to {Petitioner’s} substantial detriment.” ldg at *3.
lll.
in his Application, Petitioner presents the following
guestions:
l. Whether the lCA gravely erred by holding that
[Petitioner], having failed to claim an alleged breach of
the plea agreement by the prosecution at the sentencing
hearing, did not properly preserve the issue for appeal, and
therefore waived it.
II. Whether the ICA gravely erred by holding that
[Petitioner] failed to show that [the court] had abused its
discretion by denying [Petitioner’s] DANCP motion due to an
alleged “categorical” policy of rejecting DANCP motions that
involve offenders over the age of 21 and a charge of assault
in the third degree.
lV.
A.
Regarding the first guestion, Petitioner’s first
argument in his Application is that “the ICA gravely erred by
holding that [Petitioner], having failed to claim an alleged
breach of the plea agreement by Respondent at the sentencing
hearing, did not properly preserve the issue for appeal, and
therefore waived it.” Petitioner maintains “the ICA’s SDO is
obviously inconsistent with every federal circuit court and
Hawafi appellate decision regarding this issue.”
10
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The lCA cited to State v. Mivazaki, 64 Haw. 6l1, 6l6,
645 P.2d 1340, 1344 (l982), to support its conclusion that
“[Petitioner] did not preserve this issue for appeal.” Miller,
2008 WL 4l95877, at *1. in Mi azaki, the appellant had not
raised her double jeopardy claim prior to appeal. 64 Haw. at
616, 645 P.2d at l344. As the ICA reiterated, this court noted
in Miyazaki that “[n]ormally, an issue not preserved at trial is
deemed to be waived[,]” but went on to address the double
jeopardy issue under this court’s power to review plain errors
affecting substantial rights. §ee iQL
The lCA further cited to its opinion in State v.
Abbott, 79 Hawaifi 3l7, 901 P.2d 1296 (App. 1995), for the
proposition that “[d]isputes over the meaning of plea agreements
involve questions of fact to be addressed by the trial court” and
therefore “[Petitioner] should have raised the alleged breach
before the family court at sentencing or subsequently by [HRPP]
Rule 35 motion and afforded the court the opportunity to hold a
hearing on the alleged breach and make factual determinations as
to whether a breach of the plea agreement occurred.” Miller,
2008 WL 4l95877, at *2. However, Abbott does not support the
conclusion that the ICA propounds. Abbott merely stated that
“[d]isputes over the meaning of plea agreements involve questions
of fact, and our review of factual determinations . . . is
governed by the ‘clearly erroneous’ standard.” 79 Hawafi at
319, 901 P.2d at l298.
11
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Contrary to the lCA’s position, the meaning of the plea
agreement is not at issue on appeal in this case ~ there is no
dispute that Respondent agreed not to take any position on
Petitioner's DANCP motion. Rather, whether the prosecutor took a
position, and thereby breached the agreement, is the issue on
appeal. ln that respect, Abbott held that “[w]hether the State
has actually breached the terms of a,plea agreement1 however, is
a question of law, which we review de novo under the right/wrong
standard of review.” ld; at 320, 901 P.2d at 1299 (emphasis
added). Abbott further reiterated the principle that “a sentence
imposed after a hearing at which the State breaches its plea
agreement with the defendant is illegal and must be set asidef”
lQ4 at 319, 901 P.2d at 1298 (emphasis added) (citation omitted).
Therefore, contrary to the lCA's interpretation, Abbott suggested
that whether a plea agreement was breached is a question
appropriate for de novo appellate review.
B.
As noted, the ICA further rejected Petitioner’s
argument that the matter could be reviewed on appeal pursuant to
the plain error doctrine. Miller, 2008 WL 4195877, at *2.
Without engaging in any reasoning as to why plain error review
should not be exercised in this case, the lCA merely concluded
that there was no “denial of fundamental rights” and that plain
error should be “exercised sparingly.” ;d4 (internal quotation
marks and citations omitted).
12
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l.
Petitioner argues in his Application that “the lCA
gravely erred in its decision because it was clearly inconsistent
with Hawaiii appellate decisions addressing breaches of a plea
agreement under [HRPP Rule 52] as ‘plain error,’ since such error
would undoubtedly affect [Petitioner’s] substantial rights.”
Petitioner cites to State v. Nichols, 111 Hawai7i 327, 334, 141
P.3d 974, 981 (2006), in which this court held that “[i]f the
substantial rights of the defendant have been affected adversely,
the error will be deemed plain error[,]” and to State v. Sanchez,
82 Hawafi 517, 524-25, 923 P.2d 934, 941-42 (App. 1996), for the
proposition that “where plain error has been committed and
substantial rights have been affected thereby, the error may be
noticed even though it was not brought to the attention of the
trial court.”
Respondent, on the other hand, argued in its answering
brief on appeal that “[a]lthough the [c]ourt has inherent power
to notice plain error . . . plain error notice is
extraordinary[,]” (citations omitted), and that here “[t]he
extraordinary measure of plain error notice is not warranted when
[Petitioner] had and failed to avail himself of adequate and
ordinary alternative recourse for alleged errors[.]”
2.
lt would seem firmly established that under the plain
error doctrine, “where plain error has been committed and
13
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substantial rights have been affected thereby, the error may be
noticed even though it was not brought to the attention of the
trial court.” Sanchez, 82 Hawaid.at 524~25, 923 P.2d at 941-42
(quoting State v. Keleko1io, 74 Haw. 479, 515, 849 P.2d 58, 75
(l993)) (brackets omitted). Hence, Respondent’s and the lCA’s
position that Petitioner is precluded from raising the breach of
the plea agreement at this point because he failed to raise it at
the time of the breach or subsequently by HRPP Rule 35 motion to
correct sentence, indisputably and directly conflicts with our
case law on the plain error doctrine.
This court has held that it “will apply the plain error
standard of review to correct errors which seriously affect the
fairness, integritV, or public reputation of judicial
proceedings, to serve the ends of iustice, and to prevent the
denial of fundamental rights.” State v. SawVer, 88 HawaiH_325,
330, 966 P.2d 637, 642 (1998) (citing State v. Fox, 70 Haw. 46,
56, 760 P.2d 670, 676 (1988)) (emphasis added). Neither
Respondent nor the ICA cite to any case in our decisional law
indicating that breaches of plea agreements should be excluded
from the realm of errors suitable for plain error review on the
basis that such review would be “extraordinary.”
To the contrary, under Hawaii's plain error doctrine,
if Petitioner's substantial rights or the integrity of the
proceedings were affected, then plain error review is
appropriate. HRPP Rule 52 (2008) provides:
14
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RULE 52. HARMLESS ERROR AND PLAlN ERROR
(a) Harmless Error. Any error, defect, irregularity or
variance which does not affect substantial rights shall be
disregarded.
(b) Plain Error. Plain errors or defects affecting
substantial rights may be noticed although they were not
brought to the attention of the court,
(Emphasis added.) Therefore, despite Petitioner’s failure to
raise the issue below, the error may be corrected on appeal
unless it was harmless beyond a reasonable doubt. _ee State v.
Aplaca, 96 Hawaifi l7, 22, 25 P.3d 792, 797 (2001) (holding that
error that “‘does not affect the substantial rights’ of a
defendant” will be deemed “harmless beyond a reasonable doubt”)
(brackets omitted).
The lCA apparently recognized Petitioner's argument
that he should be able to seek plain error review on appeal, but
concluded that there was not “error which seriously affected the
fairness, integrity, or public reputation of judicial
proceedings, subverted the ends of justice, and prevented the
1denial of fundamental rights.” Miller, 2008 WL 4195877, at *2
(internal quotation marks and citation omitted). The lCA’s
position plainly clashes with the protection afforded by Hawafi
law for the integrity of plea proceedings and the safeguards
afforded fundamental rights in such proceedings.
C.
Opposed to Respondent’s position and the lCA’s opinion,
State v. Adams, 76 HawaiU.408, 879 P.2d 513 (1994), holds that
plea agreement violations §§ implicate fundamental rights.
Petitioner cites Adams for the proposition that “because a plea
15
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agreement ‘implicates constitutional considerations``including
the fairness and voluntariness of the plea,’” “the terms of a
plea agreement, which serve as the inducement for entering a
plea, must be fulfilled . . . . lndeed, due process requires
that the State uphold its end of the bargain.’” (Quoting 76
Hawafi at 412, 4l4, 879 P.2d at 5l7, 519.) (Emphases added.) ln
gdam§, this court reiterated that “where a defendant is denied
due process because the prosecution violates a plea agreement,
there is manifest injustice as a matter of law[.]” 76 HawaFi at
4l4, 879 P.2d at 519 (internal quotation marks and citations
omitted) (emphasis added).
Similarly, in Santobello v. New York, 404 U.S. 257, 262
(1971), the United States Supreme Court emphasized that, based on
the breach alone, the case must be remanded in “the interests of
justice,” regardless of prejudice, because, in the case of a plea
agreement, the prosecutor's “promise must be fu1filled.”
(Emphases added.) The Court stated that it
need not reach the question whether the sentencing judge
would or would not have been influenced had he known all the
details of the negotiations for the plea. He stated that
the prosecutor's recommendation did not influence him and
have no reason to doubt that. Nevertheless, we conclude
that the interests of justice and appropriate recognition of
the duties of the prosecution in relation to promises made
in the negotiation of pleas of guilty will be best served by
remanding the case[.]
Id. (emphases added.) Hence, according to the Supreme Court, the
“interests of justice” require that appropriate relief be granted
in the face of a breach of a plea agreement, regardless of
'whether the breach affected the sentencing decision. See id. lt
16
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s
I
¥}a.
is the breach in and of itself that is the injustice. See
see also State v. Waiau, 60 Haw. 93, 97, 588 P.2d 4l2, 415 (1978)
(stating that “the interests of justice require that appellant
have a means of escape from the position in which he was
improperly induced to place himself”); Abbott, 79 Hawai‘i at 3l9,
901 P.2d at 1298 (“a sentence imposed after a hearing at which
the State breaches its plea agreement with the defendant is
illegal and must be set aside”); People v. Sanders, 191 Cal. App.
3d 79, 87 (Cal. App§ 5 Dist. 1987) (stating that “more is at
stake in the context of a broken plea agreement than the liberty
of the defendant or the length of his term. At stake is the
honor of the governmenty public confidence in the fair
administration of justice, and the efficient administration of
justice.” (Quotation marks, citations, and brackets omitted.)).
Under HawaiT.precedent, then, breaches of plea
agreements provide appropriate bases for appellate review under
the plain error standard, inasmuch as a breach “implicates” “due
process,” Adam§, 76 HawaiU.at 414, 879 P.2d at 519, and the
“interests of justice,” Santobello, 404 U.S. at 262. Moreover,
in this case, if the agreement was breached, Petitioner would
have been prejudiced by the error, and his fundamental rights
would have been affected, Therefore, Petitioner’s failure to
raise the issue at sentencing or by HRPP Rule 35 motion does not
preclude our review of the alleged error under the plain error
doctrine.
17
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V.
The lCA did correctly point out that “[w]hether
[Respondent] breached the terms of a plea agreement is a question
we would normally review de novo under the right/wrong standard
of review.” Miller, 2008 WL 4195877, at *l. However, the lCA
failed to conduct such a review in this case because it concluded
that Petitioner “did not preserve this issue for appeal.” ;d;
Because plain error review is appropriate, we review the
circumstances of the breach de nQyg.
A.
Regarding whether the plea agreement was breached,
Petitioner argues in his Application that “[Respondent] promised
‘to take no position,’” but “[i]nstead of taking no position[,]
[the prosecutor] argued quite eloquently against
[Petitioner’s] oral motion for DANCP” and thereby “clearly
breached her plea agreement under the law, which affected
[Petitioner’s] substantial rights by influencing whether he would
be granted a DANCP.” In support, Petitioner argues that
[t]he record is undisputed that the prosecutor agreed to
“take no position” with respect to the issue of whether the
[court] should grant [Petitioner's] oral motion for DANCP.
Yet, her sentencing statements directly undermined both her
sentencing agreement and her agreement to “take no position”
regarding fPetitioner's1 oral motion for DANCP. But the
prosecutor, in her zeal to influence the [court] with
respect to [Petitioner’s] DANCP motion, violated not only
the letter of the plea agreement, but its spirit as well, by
asking the [court] to “follow the agreement that’s been
reached” while simultaneously arguing that “this type of
beating and brutality should not be accepted in our
society.”
(Emphases added.)
18
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1.
Petitioner looks to federal Third Circuit cases for
instances of where a prosecutor breached a plea agreement after
promising to “take no position” as to one of the issues at
sentencing. According to Petitioner, “[i]n United States v.
Crusco, 536 F.2d 21 (3d Cir. l976), the prosecutor promised to
take no position on sentencinQ[,]” but at the sentencing hearing,
emphasized the defendant's “‘elevation in organized crime
hierarchy'” and “‘the danger to the community that this man has
by being out on the street.’” (Quoting id; at 2l, 23, 25.)
(Emphasis added.) On appeal, the Third Circuit held that the
prosecutor's actions were “a transparent effort to influence the
severity of [the appellant’s] sentence.” 536 F.2d- at 26.
Similarly, Petitioner cites Moscahlaidis, wherein “the
prosecutor vowed that he would ‘not take a position relative to
whether or not a custodial sentence shall be imposed on
[appellant] but . . . will recommend to the sentencing [j]udge
that if a custodial sentence is imposed on [appellant], it will
not exceed one year.’” (Quoting 868 F.2d at l358. (Ellipsis in
original.)). (Emphasis added. (Some brackets in original and some
added.)). However, “in its sentencing memorandum, the
prosecution {made reference] to the defendant's ‘moral
bankruptcy,’ . . . ‘demonic’ efforts to preserve his ‘fetid
empire,' and stated that he was ‘not just a white-collar
criminal.’” (Quoting 868 F.2d at l359.) ln that case, the Third
19
*H son PuBLIcATION m wz:s'c's HAWAI‘I expenses mm PA¢:IFI<: REPoRTsRt #**
Circuit held “‘that the statements made by the prosecutor which
offered opinions and drew conclusions about appellant’s character
violated the terms of the plea agreement’” and “the prosecutor's
‘comment about [appellant] not being just a white collar
criminal’ was taking [a] position relative to whether a custodial
sentence be imposed and thus violated the plea agreement.”
(Quoting 868 F.2d at l362-63. (Brackets in original.)).
Petitioner argues that the circumstances of this case are similar
to those in Crusco and Moscahlaidis, because “[i]n the instant
case, the prosecutor promised ‘to take no position' with respect
to [Petitioner’s] motion for DANCP. However, like the
prosecutors in Crusco and Moschalaidis [sic], the prosecutor here
broke that promise.”
2.
Additionally, Petitioner argued that “[Respondent]
violated the plea agreement not to take any position with respect
to [Petitioner's] oral motion for DANC plea by making statements
that had no other purpose than to persuade the trial court to
deny the DANC plea.” To reiterate, he contended to the ICA that
Respondent had violated the plea agreement through its comments
that, among other things,
l) “this case was borderline strangulation[,”] which “should
not be accepted in our society[”;] and 2) purportedly
“clarified” that an emergency room doctor had allegedly
observed bruises on the complainant days later, even though
a Maui Police Department officer had failed to observe any
injuries at the time of the alleged incident.
[Respondent'sl argument violated the plea agreement as a
matter of law because the only aspect of the sentencing
proceeding that was not agreed to by the parties was whether
the trial court should grant or deny the DANC plea. Yet,
20
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instead of taking no position with respect to this issue,
the prosecutor made numerous statements that appear to have
been clearly intended to influence, and indeed, had the
practical effect of influencing, the trial court's decision
cf whether to grant or deny the DANC plea.
(Brackets omitted.) {Emphases added.)
As to Respondent's argument that it was only attempting
to “clarify” the factual predicate for the charge after
Petitioner denied such basis, Petitioner urged in his reply brief
that this argument was “totally unfounded for three reasons.”
Those reasons were that
[f}irst, the record shows that [Respondent’s] statements
were made even before defense counsel had an opportunity to
address the [court]. Second, [Petitioner] and [Respondent]
had entered into a stipulation “as to a factual basis to
support this charge” earlier, prior to [Respondent's]
statements. Third, [Petitioner] had not “actively denied”
the factual basis of the charge.
(Emphasis in original.) Furthermore, Petitioner argued that even
putting Respondent's allegedly clarifying statements aside,
Respondent's “initial statements . . . were also in direct
opposition to [Petitioner's] DANCP motion.” According to
Petitioner,
[Respondent's] initial statements addressed directly the two
reguisite findings under [HRS] § 853-l(a)(2) & (3), that
“defendant is not likely again to engage in a criminal
course of conduct” and “the ends of justice and the welfare
of society do not require the defendant shall presently
suffer the penalty imposed by law” respectively.
(Emphasis added.) With respect to the finding required under HRS
§ 853-l(a)(2), Petitioner contended that
[Respondent's} statements about [Petitioner], being 51
years-old, committing “borderline strangulation” upon his
“significant loved one” by “elbow[ing],” “knee[ing],”
“punch[ing],” and “chok[ing]” her, and “put[ting] his hand
over her mouth” and “pillow . . . over her face” “because
she wouldn’t be guiet,” which resulted in the complainant
“actually fear[ing] for her life,” addressed whether
21
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[Petitioner] would likely engage in a criminal course of
conduct again.
(Emphasis added.) Similarly, with regard to the finding required
under HRS § 853-l(a)(3), Petitioner maintained that
“{Respondent's} statement that ‘this type of beating and
brutality should not be accepted in our society’ addressed
whether the ends of justice and the welfare of society require
[Petitioner] being granted the DANCP.”
3.
Respondent conceded in its answering brief on appeal
that “[p]er [Petitioner’s] reguest, [Respondent] agreed to take
no position on the DANC.” However, Respondent asserted that it
“argued in favor of sentencing, ngt against a DANC[,]” (emphasis
in original), and that it “made its remark about the brutality of
the crime in direct response to the court’s question:
‘Sentencing?’” (Emphases in original). Respondent maintained
that its comments went directly to the “statutory sentencing
factors” in HRS § 706-606(l) (l993), “which states ‘the court
shall consider the nature and circumstances of the offense
and the history and characteristics of the defendant.'”
(Emphases in original.)
Respondent asserted that, conseguently, its comments
that “[t]he victim is 51 years old” and “[s]o is the defendant”
and that “[h]e doesn’t have a prior criminal record[,]” went to
“the nature and circumstances of the offense, as well as the
history of the defendant.” As for Respondent's statements that
22
#** son PuBL1cATIoN rN wEsT's HAwAr1 REPoRTs AND PAc1F1c REPoRTER ***
“you shouldn’t be doing that to a significant loved one[, a]nd
this type of beating and brutality should not be accepted in our
society[,]” Respondent claims that those addressed the portion of
HRS § 706~606(2)(a) that states that “the court . . . shall
consider . . . the need for the sentence imposed . . . to reflect
the seriousness of the offense, to promote respect for the law,
and to provide just punishment for the offense.” (Emphases in
original.)
Respondent further contended (l) that it “scrupulously
avoided comment on [Petitioner's] DANC argument[,]” but
“necessarily” had to “proffer the factual basis for [Petitioner’s
charge]”; (2) that Petitioner “denied an essential element” of
the charge by noting that “when [Maui Police] Officer Katayama
appeared at the scene, there was no complaint of injuries”
(emphasis in original); and therefore (3) Respondent was
“justified in clarifying the facts to the trial court when
[Petitioner] actively denied the factual basis for his charge[,]”
because, under United States v. Maldonado, “even where the
government enters a ‘plea agreement to make certain
recommendations, the government has a duty to ensure that the
court has complete and accurate information, enabling the court
to impose an appropriate sentence,’” (guoting 2l5 F.3d lO46, 1052
(9th Cir. 2000)) (emphases in original).
B.
ln concluding that the plea agreement was not violated,
23
*** ron PusLrcAmroN in wEsT's HAwAr1 REPoRTs ANn PAcrFrc RsPoRTER ***
the lCA disregarded the well~established law of this court and of
prior decisions of the lCA itself. whether plea agreements are
subject to the protections of due process is governed by the due
process clause in the HawaFi Constitution and therefore by state
decisional law, Petitioner aptly cites to this court’s decision
in §dam§ in support of his argument that the plea agreement was
breached. In Adam§, the petitioner had “agreed to plead no_
contest to one count of Medicaid fraud in violation of [HRS]
§ 346-43.5 (l985) in exchange for, inter alia, the State's
promise to ‘stand silent . . . and not oppose' his requests for a
[DANC] plea and for no jail time.” 76 Hawaiii at 409, 879 P.2d
at 514.``
In response to a request for “general input” from the
Adult Probation Division (APD), the prosecutor had submitted a
statement in which he averred, among other things,
that (l) [the petitioner] had been charged with just
“twenty-one of the hundreds of false claims available”;
(2) [the petitioner’s] “sexual assaultive behavior” stemmed
from his “extremely low opinion of women”; (3) [the
petitioner] is “a danger to the community because of his
propensity to claim that he renders medical services he is
not qualified to perform and his overwhelming desire to
generate bills that precludes any interest in patients to
overcome their illnesses”; and (4) [the petitioner] falsely
claimed to be destitute in order to have a defense attorney
provided at taxpayer expense.
\\
ld. at 4lO, 879 P.2d at 5l5. The prosecutor's statement was
attached to the APD's pre~sentence report and forwarded to the
court.” ld.
This court addressed the standard for evaluating
breaches of plea agreements as follows:
24
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A plea agreement is essentially a contract entered into
between the State and the defendant, in which the defendant
agrees to plead guilty or no contest to a charge and to
forego certain constitutional rights (including the right to
trial) in exchange for which the State promises some form of
leniency or cooperation in prosecution. lndeed, courts have
often looked to contract law analogies in determining the
rights and obligations of the parties to a plea agreement.
However, because the plea negotiation process implicates
constitutional considerations``including the fairness and
voluntariness of the plea-~we have recognized that resort to
contract principles cannot solely be determinative of the
rights and duties comprising the plea bargain,
ld; at 4l2, 879 P.2d at 517 (citations omitted) (emphasis added).
Applying those principles, this court concluded that the circuit
court’s findings, which “amount[ed] to a finding that . . . a
promise” “that the State . . . would not communicate with the APD
regarding the pre-sentence report . . . was not implied in the
plea agreement” were “clearly erroneous§” ld¢ lt was reasoned
that
[p]ursuant to the plea bargain, the State agreed to “stand
silent . . . and not oppose” Adams's requests for DANC and
for no jail time. No parameters were placed on the State's
obligation; i.e., the agreement did not provide that the
State would stand silent only at the sentencing hearing.
Although it appears that the parties never explicitly
considered the precise issue, it is far more reasonable to
conclude that the State’s promise to “stand silent” on the
matters of jail and DANC meant that the State would not take
a position on the issues or make that position known to the
court directly or indirectly.
;dL (emphases added). Because “the State [had] clearly attempted
‘to accomplish indirectly what it had promised not to do
directly[,]’ [and] the subject areas covered in the written
statement parallel[ed] several important factors which a court
considers in sentencing[,]” it was decided that “the circuit
court erred in concluding that the State did not breach the plea
agreement.” ld; at 413-l4, 879 P.2d at 5l8~l9; see also State v.
Anderson, 4 Haw. App. lO2, ll3, 661 P.2d 7l6, 723 (l983) (holding
25
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that although the State did not directly advise the court to
reject the appellant’s DAG motion, the State “hreached its plea
bargain not to urge the judge to impose a sentence other than a
DAG plea” when it recommended an alternative sentence in the case
that the judge decided to deny the DAG motion and “defended the
judge’s decision to deny [the appellant’s] motion for DAG plea
and to confine him for a maximum of five years”).
C.
The facts of §dam§ are virtually indistinguishable from
the facts of this case. Here, Respondent promised as a condition
of the plea agreement to “take no position” on Petitioner's DANCP
moticn, similar to the prosecution’s promise in §dam§ to “stand
silent” and “not oppose” the DANCP plea. Miller, 2008 WL
4l95877, at *l. As in Adams, “[nlo parameters were placed on
[that1 obligation.” 76 Hawafi at 4l2, 879 P.2d at 517 (emphasis
added). Despite the obligation to “take no position,” Respondent
here “clearly attempted to accomplish indirectly what it had
promised not to do directly,” by emphasizing the “brutality” of
Petitioner’s crime and directly addressing issues pertinent to
the DANCP motion such as Petitioner's criminal record and his
age, and the closeness of Petitioner’s relationship with the
victim.
As in Adam§, Respondent's comments “parallel[ed]
several important factors which a court considers” in determining
whether to grant a DANCP motion. ln that connection, the
26
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prosecutor stated that although “[Petitioner} does not have a
prior criminal record . . . at 51 years old, you shouldn’t be
doing that to a significant loved one[, a]nd this type of beating
and brutality should not be accepted in our society.” Those
comments manifestly invoked the pertinent issues for
consideration under HRS § 853~l of whether “defendant is not
likely again to engage in a criminal course of conduct” and
whether “the welfare of society [requires] that the defendant
shall presently suffer the penalty[.]”
Furthermore, the prosecutor's reference to “a
significant loved one” directly intimated that the charge was in
effect that of Abuse of a Family or household Member. The
closeness of Petitioner's relationship to the complainant spoke
directly to an element of the abuse charge, which the prosecution
had promised to amend to Assault in the Third Degree in exchange
for the plea. That the defendant held a family or household
relationship with the victim is a requisite element of the abuse
charge, whereas no such element exists under the assault charge.
The prosecutor therefore essentially argued an element
of the abuse charge was present, in contravention of her
agreement to drop that charge. _ee Abbott, 79 Hawafi at 320,
901 P.2d at 1299 (“Even where the state technically complies with
every term, a breach of the plea agreement may be found if the
spirit of the agreement is breached.”). To aggravate this
breach, Abuse of a Family or Household Member is an offense that
27
*H son Puai.ica:rzoz~z m wms'r's HAwAz:‘I assume mm PAc;cF;cc REPOR'J.=ER ***
is excluded from DANCP eligibility under HRS § B53~4 (Supp.
2008), whereas Assault in the Third Degree is not.7 Thus, in
raising an element of the abuse charge, the prosecutor argued in
direct opposition to Petitioner’s DANCP plea. Under the standard
established in Adam§, Respondent's comments directly violated
Respondent's agreement to “take no position” on the DANCP motion,
and therefore, the lCA was wrong in concurring with Respondent
that “its comments were limited to sentencing and at no time did
it take a position on [Petitioner's] DANC {m]otion.” §ee
Miller, 2008 WL 4l95877, at *2.
D.
lnstead, as Petitioner pointed out on appeal, “[t]he
prosecutor's argument violated the plea agreement as a matter of
law because the only aspect of the sentencing proceeding that was
7 HRS § 853-4 limits the applicability of HRS § 853-l, providing in
pertinent part that
[t]his chapter shall not apply when:
(l) The offense charged involves the intentional, knowing,
reckless, or negligent killing of another pers0n;
(2) The offense charged is:
(A) A felony that involves the intentional, knowing,
or reckless bodily injury, substantial bodily
injury, or serious bodily injury of another
person; or
(B) A misdemeanor or petty misdemeanor that carries
a mandatory minimum sentence and that involves
the intentional, knowing, or reckless bodily
injury, substantial bodily injury, or
serious bodily injury of another person;
ll9)' lhe offense charged is:
lP) Abuse of family or household members;
The court may adopt by rule other criteria in this
area.
(Emphasis added.)
28
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not agreed to by the parties was whether the trial court should
grant or deny the DANC plea.” (Emphasis added.) As set forth
§gp;a, it was agreed before sentencing that Petitioner would
write a letter of apology to the complainant, be sentenced to one
year of probation, serve 48 hours in jail, submit to a substance
abuse assessment, participate in domestic violence intervention
classes, and pay restitution to the complainant for the emergency
visit stemming from this case. Furthermore, Respondent's
argument that its comments were directed at “clarifying”
Petitioner's denial of the factual predicate for the charge is
without merit. Respondent's challenged comments, made by the
4 prosecutor before defense counsel ever had a chance to speak,
were more than sufficient to effectuate the breach. Under the
circumstances of this case, the only reasonable explanation for
Respondent’s comments is that it was attempting to influence the
court’s decision as to whether to grant the DANCP plea after
explicitly promising not to do so.
Hence, in this case, the terms of the agreement were
not fulfilled and Petitioner was denied his due process rights;
thus, there was “manifest injustice as a matter of law.” §§e
Adam§, 76 Hawaiii at 4l4, 879 P.2d at 5l9. Accordingly,
Petitioner’s fundamental rights were indeed violated. §§§ igL
(noting that “[t]he fundamental rights flouted by a prosecutor's
breach of a plea bargain are those of the defendant, not of the
State” (guoting Santobello, 404 U.S. at 267 (Douglas, J.,
29
*** ron PUsL1cAmIoN in wEsT's HawArI RsPoRTs Ann PAc1FIc REP0RTER ***
concurring))). Because contravention of the plea agreement
violated Petitioner’s fundamental rights and resulted in manifest
injustice, it was incumbent upon the lCA to recognize the
violation as plain error under HRPP Rule 52. _ee Santobello, 404
U.S. at 262 (concluding that the “interests of justice” require
that the case be remanded for relief based on the breach, despite
accepting the judge's assertion that Rthe prosecutor's
recommendation did not influence him”).
Moreover, the error in this case was not harmless
beyond a reasonable doubt, as the court clearly took the
prosecutor's comments into account in deciding to deny the DANCP
motion. In orally denying the DANCP motion, the court appears to
have relied particularly upon comments offered by the
prosecution. For instance, the court stated that
although 1 can find the defendant has had no record for 51
years, l guess the offense you decided to start off was one
too significant for the court to ignore and to treat as
something where the ends of justice and the welfare of
society do not require that you-presently suffer this
penalty.
(Emphases added.) That statement mirrors the prosecutor's
comments regarding the severity of the crime and that
“[Petitioner] does not have a prior criminal record, but you
know, at 5l years old, you shouldn't be doing that to a
significant loved one. And this type of beating and brutality
should not be accepted in our society.”
Vl.
In sum, Petitioner’s substantial rights were affected
30
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by the violation of the plea agreement, The lCA gravely erred in
concluding that the error did not rise to the level of plain
error, Accordingly, “{s]entencing by another judge is the proper
remedy[.]” Anderson, 4 Haw. App. at ll4, 66l P.2d at 724.8
Vll.
The dissent, (l) based on Puckett v. United States, -~
U.S. --, l29 S.Ct. 1423 (2009), “agree[s] with the lCA that
[Petitioner] forfeited his claim for breached plea agreement[,]”
dissenting opinion at l; (2) asserts that “the [ICA] would have
had to notice this claim under the plain error standard sua
sponte[,]” because Petitioner did not comply with HawaFi Rules
of Appellate Procedure (“HRAP”) Rule 28(b) inasmuch as he
(a) failed to assert that the trial court committed error, and
(b) “failed to argue how the breached plea agreement affected
[Petitioner’s] substantial rights,” id;; (3) maintains that
recognition of plain error sua sponte requires that the error is
“extraordinary,” id. at 23 (emphasis in original); (4) argues
that “[n]oticing [p]lain [e]rror [s ua [slponte[,]” id. at 22, is
3 Because Petitioner’s case is remanded for resentencing, we need
not address Petitioner’s second argument, that “the ICA gravely erred by
holding that [Petitioner] failed to show that the [court] had abused its
discretion by denying [Petitioner’s] DANCP motion due to an alleged
‘categorical' policy of rejecting DANCP motions that involve offenders over
the age of 21 and a charge of assault in the third degree.” However, we note
that such a policy, if in fact exercised categorically, potentially runs afoul
of this court’s holding in State v. Martin. See 56 Haw. 292, 294, 535 P.2d
l27, l28 (l975) (holding, inter alia, that where a motion for a DANC plea was
filed, the sentencing judge’s “blind adherence to predetermined rigid conduct
. preclude[s] any enlightened and just resolve of the criminal charge
placed against appellant”). Because this case is remanded to be reassigned to
a different judge based on the breach of plea agreement, any potential
prejudice stemming from the court’s alleged policy is remedied, and thus, this
issue need not be addressed further.
31
*** son PUsLIcAT1oN zN wEsw's aAwArI Rsaoars ann PAcrF1c RsPoRTsR ***
not appropriate because “[a} breached plea agreement does not in
itself” constitute plain error, id. at 24, and “[t]he federal
cases reviewing breached plea agreements . . . have determined
that . . . the defendant is not automatically prejudiced[,]” id.
at 32, and (5) declares (a) the agreement was not breached, id4
at 36 n.l3, and, (b) “the prosecution’s statements” did not
“affect[ Petitioner’s] substantial rights,” see idA at 38. We
respectfully reject the dissent’s arguments for the reasons
following.
VIII.
The dissent first “write[s] to elaborate on the lCA's
ruling that, because [Petitioner] did not raise the alleged
breach at sentencing or in a [HRPP] Rule 35 motion, he cannot
raise the issue for the first time on direct appeal.” Ld; at 1
(citing Miller, 2008 WL 4l95877, at *2).9 However, the dissent
concedes that, “in [Petitioner's] opening brief, [Petitioner]
correctly explained that the breached plea agreement was to be
reviewed for plain error.” ld4 We have reviewed the breach
pursuant to the plain error standard of review. Therefore, the
dissent’s first argument, from pages 1-5, does not in any way
contradict this court’s opinion.
9 Although we agree that Petitioner's claim should be reviewed for
plain error, we reject the dissent’s argument on this point inasmuch as it
relies on the federal standard for reviewing breaches of plea agreements as
set forth in Puckett, which this court has explicitly rejected. §e§
discussion infra; see also Nichols, 111 HawaiH.at 335, 141 P.3d at 982
(noting that “such discretion may exist in the federal courts,” but “we have
never employed the four-pronged {federal] plain error standard[,]” and
“decline to do so”).
32
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IX.
Second, according to the dissent, Petitioner violated
HRAP Rule 28{b), inasmuch as he did not (l) state the error
committed by the court, (2) allege that the court’s failure to
sss sponte object to Respondent’s breach of the plea agreement
was error, or (3) explain how the court’s error deprived the
defendant of his substantial rights. ;gs at 5~10. We disagree
inasmuch as Petitioner (l) set forth the violation of the plea
agreement as a point of error, (2) there is no requirement that
the court sss sponte object to a breach of a plea agreement, and
(3) Petitioner argued at length that the breach affected his
substantial rights, thereby warranting plain error review.
A.
1.
With respect to points of error, HRAP Rule 28(b)(4)
requires
[a] concise statement of the points of error set forth in
separately numbered paragraphs. Each point shall state:
(i) the alleged error committed by the court or agency;
(ii) where in the record the alleged error occurred; and
(iii) where in the record the alleged error was objected to
or the manner in which the alleged error was brought to the
attention of the court or agency.
(Emphases added.) Following the admonition in HRAP Rule 28(b)(4)
to set out “[a] concise statement of the points of error[,]”
(emphasis added), Petitioner succinctly stated in his points of
error section fundamental errors that were committed, writing
that (l) “[t]he judgment of conviction and sentence must be set
aside and the matter remanded to another trial judge for
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resentencing because the prosecutor violated the plea
agreement{,]” and (2) “the trial court abused its discretion by
failing to exercise any discretion due to an apparent policy of
not granting DANC pleas in assault cases.”” No further detail
was required.
2.
The dissent’s sole objection to Petitioner's
presentation of error seems to be that he did not couch the
breach in terms of an error on the part of the ggur;. However,
the dissent completely ignores that HRAP Rule 28(b)(4), by its
plain language, cannot be intended to strictly apply to claims of
plain error. In addition to requiring that the appellant state
the “error committed by the court[,]” the rule requires that the
w Petitioner's points of error section, in its entirety, is as
follows:
STATEMENT OF POlNTS OF ERROR
l. The judgment of conviction and sentence must be set
aside and the matter remanded to another trial judge for
resentencing because the prosecutor violated the plea
agreement. The prosecutor disregarded her agreement “not to
take any position” with respect to [Petitioner's] oral
motion for DANC plea when she argued, among others, that
“this case was borderline strangulation,” which “should not
be accepted in our society,” and then proceeded to
purportedly “clarify” that an emergency room doctor had
allegedly observed bruises on the complainant days later,
even though a Maui Police Department officer had failed to
note any injuries at the time of the alleged incident.
2. Even if the prosecutor did not breach the plea
agreement, the trial court’s denial of {Petitioner's] oral
motion for DANC plea must be reversed and remanded to
another trial judge for re-sentencing because the trial
court abused its discretion by failing to exercise any
discretion due to an apparent policy of not granting DANC
pleas in assault cases.
(Citations omitted.) (Emphases added.)
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appellant must also state “where in the record the alleged error
was objected to or the manner in which the alleged error was
brought to the attention of the court{.]” HRAP Rule 28(b)(4)
(emphasis added). Plain errors by definition were npr “objected
to” or “brought to the attention of the court,” therefore, under
the dissent’s formulation, an appellant claiming plain error
would start his or her appeal without any chance of complying
with HRAP Rule 28(b)(4), and thus would always be subject to the
dissent’s more rigid sua sponte standard. We decline to read the
rules in that manner.“
B.
l.
Generally, when a plea agreement is breached, the focus
is not on any error of the sentencing authority, but on the
prosecution. See, e.q., United States v. Barnes, 278 F.3d 644,
647 (6th Cir. 2002) (holding that “the touchstone of Santobello
is whether the prosecution met its commitment and not whether the
court would have adopted the government's recommendation”
(emphases added) (citation omitted)). Thus, courts have not
“ According to the dissent any technical violation of HRAP Rule 28
requires the appellate court to review a plain error “§ua sponte” as opposed
to under the regular plain error standard. According to Black’s Law
Dictionary, “sua sponte” means “[w}ithout prompting or suggestion” or “on its
own motion.” BlacK's Law Dictionary l56O (9th ed. 2009). lt defies reality
to suggest that where an appellant has manifestly set forth an error for
review on appeal, that the appellate court is somehow raising the error
“without prompting” or “on its own motion” merely because the appellant failed
to comply with the appellate rules. While we do not condone rule violations,
it is unreasonable to assert that any rule violation somehow renders appellate
review “§ga sponte”. In our view, sua sponte review of an error occurs where
it is not raised by the appellant, but by the appellate court.
35
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questioned that the government's breach of a plea agreement
constitutes an “error" cognizable by an appellate court. Every
federal circuit that has reviewed an argument that a plea
agreement was breached for plain error on the basis that it was
not raised in the sentencing court, has viewed the government’s
breach as an “error” appropriate for plain error review.” ln
“ See United States v, Rivera~Rodriguez, 489 F.3d 48, 57 (lst Cir.
2007) (reviewing the breach for plain error because “defendant hfad] knowledge
of conduct ostensibly amounting to a breach of [the} plea agreement, yet d{id]
not bring that breach to the attention of the sentencing court” and concluding
that the agreement was not breached because “[t]he plea agreement expressly
provided that the government would recommend a sentence at the high~end of the
guideline range” and that “is exactly what it did”); United States v. McOueen,
lO8 F.3d 64, 65, 66 (4th Cir. l997) (reviewing for plain error “because
{defendant] raises this issue for the first time on appeal” and finding that
“because violations of plea agreements on the part of the government serve not
only to violate the constitutional rights of the defendant, but directly
involve the honor of the government, public confidence in the fair
administration of justice, and the effective administration of justice in a
federal scheme of government, we hold that the [g]overnment’s breach
constituted plain error”); United States v. Brown, 328 F.3d 787, 789, 791 (5th
Cir. 2003) (reviewing defendant's claim of breach of plea agreement for plain
error “[b]ecause [defendant] made no objections concerning his plea” and upon
reviewing the prosecutor's contested statements, concluding that “no breach
occurred”); United States v. Swanberq, 370 F.3d 622, 627 (6th Cir. 2004)
(despite government's contention that defendant “has forfeited this argument
on appeal” because he “did not argue that the plea agreement had been
breached” to the sentencing court, holding “that forfeiture . . . does not
extinguish an error under Rule 52(bj” and therefore reviewing the breach under
plain error review, because “[t]his court’s decisions . . . have consistently
applied plain~error review where a defendant fails to claim during sentencing
that the government has breached the plea agreement”); United States y.
Salazar, 453 F.3d 9ll, 9l3, 915 (7th Cir. 2006) (reviewing the breach for
plain error because defendant made the argument for the first time on appeal,
and in addressing “[t]he first step of our analysis[, which] is to consider
whether the government did in fact breach its plea agreement{,]” concluding
that the agreement was not breached); United States v. Jensen, 423 F.3d 85l,
854-55 (8th Cir. 2005) (reviewing the breach and concluding that the agreement
was breached by the government under the de novo standard of review, but
concluding that, “[b]ecause [defendant] failed to allege a breach at
sentencing, [the court] is limited to reviewing his now-raised challenge for
plain error” and determining that defendant did not meet all prongs of the
test because he failed to demonstrate prejudice); United States v. Cannel, 517
F.3d ll72, ll76-77 (9th Cir. 2008) {reviewing for plain error because
defendant “failed to claim a breach of the plea agreement by the government at
the sentencing hearing” and, after reviewing defendant's arguments and the
facts surrounding the alleged breach, concluding that the government did not
breach the agreement); United States v. Thayer, 204 F.3d l352, l356 (llth Cir.
2000) (reviewing defendant's claim of breach of plea agreement for plain error
because defendant failed to object at trial, and concluding that because
defendant “never argue[d] that the sentence imposed is unfair . . . the breach
(continued...)
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each of the cases cited in the preceding footnote, it was the
prosecution, and not the court, that effectuated the breach, and
yet, all of the federal circuit courts recognized that the breach
should be considered pursuant to plain error review. For
example, in Barnes, the Sixth Circuit did not hesitate to notice
the breach as plain error, while at the same time emphasizing
that the error did not reflect on the circuit court judge. 278
F.3d at 647 (“We emphasize that this is in no sense to question
the fairness of the sentencing judge; the fault here rests on the
prosecutor, not on the sentencing judge.” (Emphasis added.)
(Citations omitted.)); see also United States v. Gonczy, 357 F.3d
50, 52 n.l (lst Cir. 2004) (reviewing for plain error despite
noting that “[a] breach of a plea agreement is deemed a violation
of that agreement by the government, not by the sentencing judge”
(emphasis added)).
2.
Similarly, the federal circuits that have opted to
exercise plenary review over breaches that were not raised in the
sentencing court also have not questioned that a plea breach on
the part of the government is a cognizable error appropriate for
appellate review.“ Most recently, in Puckett, a case relied
”(...continued)
of plea agreement does not rise to the level of unjustly affecting a
substantial right of the defendant”).
m See United States v. Griffin, 510 F.3d 354, 360, 366-67 (2d Cir.
2007) (holding that “[t]he defendant need not demonstrate that any error as to
the government’s compliance with his plea agreement satisfies plain error
review,” and, despite determining no error on the part of the court, vacating
(continued..J
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upon by the dissent, the United States Supreme Court, like all of
the federal circuits, assumed in its opinion that the breach was
an error reviewable by an appellate court, despite the fact that
the breach was the fault of the prosecution and not the court.
§ee »~ U.S. at -~, 129 S.Ct. at 1428 (concluding that the “plain-
error test applies to a forfeited claim, like Puckett’s that the
Government failed to meet its obligations under a plea agreement”
(emphasis added)).“
Like the federal courts, neither this court nor the ICA
has ever declined to review a breach of a plea agreement on the
basis that the government’s breach does not count as a “point of
error.” See, e.g;L State v. Chincio, 60 Haw. lO4, lO5, 588 P.2d
408, 409 (1978) (addressing the breach and stating that
”(...continued)
and remanding for resentencing, because “[w]here the sentencing court has
sentenced in accordance with a position improperly advocated, while claiming
not to have been influenced by the improper advocacy, a reviewing court can do
no more than speculate as to whether the judge was in fact influenced, even
unconsciously” (emphasis added)); United States v. Altamirano-Quintero, 511
F.3d l087, 1094 (l0th Cir. 2007) (stating that, “where a defendant fails to
object to the Government's breaching a plea agreement at the time the breach
occurs, this court still reviews the terms of the plea agreement de novo”
(emphases added); United States v. Hodge, 412 F.3d 479, 485, 487 (although
assuming the absence of a proper objection in the sentencing court,
“remand[ing] for the [d]istrict [c]ourt to determine whether to grant specific
performance or allow withdrawal of the guilty plea” because “the government
breached its agreement” (emphasis added)).
“ The dissent maintains that we “obfuscate the points raised in the
dissenting opinion” by asserting that federal courts have recognized that a
breach is an “error” cognizable by appellate courts, despite a lack of any
fault attributable to the sentencing judge, §ee dissenting opinion at 6, and
argues in opposition that “the appellants in the cited federal cases were not
required to follow HRAP Rule 28(b)(4)[,]” idL at 7. To the contrary, this is
a correct reflection of the case law,
Additionally, reference to federal cases for further guidance on
this point lend support to the proposition that a breach of plea agreement is
an “error” appropriate for consideration on appellate review, and to the
proposition that breaches by their nature do not involve any “error” on the
part of the court. -
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“[alppellant has presented the point on this appeal that by
requesting the extended term sentencing hearing the prosecuting
attorney breached the plea agreement and entitled appellant to
withdraw his guilty plea” (emphases added)); @aiau, 60 Haw. at
97-98, 588 P.2d at 4l5~l6 (concluding that a breach occurred and
“remand[ing] for sentencing by another judge” without stating
that the court committed any error, but only that “the plea
bargain was breached and we must consider the remedy available to
appellant”); State v. Schaefer, ll7 HawaiU.490, 50l, l84 P.3d
805, 816 (App. 2008) (ordering that, “[o]n remand, the district
court shall” “determin[e] the scope of the parties’ plea
agreements and whether the Partial [pre-sentence investigations
(PSIs)] were a material breach of the plea agreements” although
there is no indication that the appellant alleged any error on
the part of the court in having failed to do so); Abbott, 79
HawaiT.at 320, 901 P.2d at 1299 (referring to the breach as the
“error” on appeal).”
C.
The dissent concedes that Petitioner “(l) set forth
§ The dissent maintains that the foregoing cases “do not quote to
the appellants' points of error or otherwise indicate that the appellants in
those cases failed to cite to a court’s error in compliance with HRAP Rule
2B(b)(4)[,)” and, therefore, “[t]hese cases do not permit this court to
disregard the requirements of HRAP Rule 2S(b)(4).” Dissenting opinion at 7
n.4. First, this opinion does not “permit” courts to “disregard” HRAP Rule
28(b)(4), but only that it should be construed in a reasonable manner under
the circumstance of this case so as not to subject a whole category of
potential constitutional errors to heightened scrutiny. Second, this argument
seems to rest on the dissent’s view that the appellant in the points of error
section should distort reality and characterize an error that is actually the
prosecutor's as one on the part of the court, and that, had the appellants in
the foregoing cases done so, no violation would have occurred. We reject such
an unreasonable application of the rules.
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[the plain error} standard . . . and (2) claimed that the ICA
should consider this issue ‘even though raised for the first time
on appeal[.j’” Dissenting opinion at 6. Inexplicably, however,
the dissent dismisses Petitioner's actions as providing “mere
‘notice’ to the prosecution{,]” which “does not satisfy the
requirement that each point of error state the error committed by
the court{.]” ;g$ But the dissent fails to elaborate as to what
is the legal significance of “mere notice,” why “mere notice”
does not satisfy HRAP Rule 28(b), or why Petitioner’s express
discussion of plain error served only to provide “notice” as
opposed to actually raising the issue, other than to state that
“HRAP Rule 28(b)(4) . . . reguire[s] . . . a statement as to ‘the
alleged error committed by the court[,]’” rather than “mere
notice.” ld; at 6 n.3.
Because the breach was the “point of error” raised by
Petitioner on appeal, it is difficult to discern any cogent basis
for the dissent’s position. Under the circumstances,
Petitioner’s argument cannot be reasonably characterized as
giving “mere notice.” His “Point l” in his points of error set
forth the breach as the error, contrary to the dissent’s
statement that he did “not satisfy HRAP Rule 28(b)(4)’s
requirement that the point state the error.” Id. (emphasis
added).
D.
Both Respondent and the lCA recognized that
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Petitioner's brief raised §l) the breach as an error (2) to be
reviewed in accordance with HRAP Rule 28. Respondent did not
challenge Petitioner’s plain error argument as having been raised
in violation of HRAP Rule 28(b)(4), Rather, Respondent replied
directly to Petitioner’s arguments. Respondent devoted almost
the entirety of its brief to addressing the breach and the plain
error standard, arguing at length that (l) “the extraordinary
measure of plain error notice is not warranted,” (formatting
altered), and (2) “{Respondent] fulfilled the plea agreement when
it took no position on [Petitioner’s] motion for a DANC[,]”
(formatting altered).
Similarly, the lCA did not indicate that fetitioner
violated HRAP Rule 28(b)(4), as it would be expected to do and
has done so in the past when a violation of the rule took
place.“ Rather, like Respondent, the ICA addressed Petitioner’s
breach and plain error arguments, stating, inter alia, that “[o]n
appeal, [Petitioner] raises two points of error: (l) [Respondent}
violated the terms of the plea agreement[,] . . . and (2) the []
court abused its discretion in denying [Petitioner’s] DANC
“ Cf. Weidenbach v. Koolau Agr. Co., Ltd., No. 243l5, 2009 WL
537098, at *l n.3 (Haw. App. March 3, 2009) (mem.) (noting that “[appellant’s]
opening brief failfed] to comply with . . . [HRAP Rule] 28(b)(4) by failing to
state in the points of error where in the record the error occurred and a
quotation of the finding or conclusion urged as error” and warning “counsel on
the opening brief . . . that future noncompliance with HRAP Rule 28 may result
in sanctions against them”); Suzuki v. State, ll9 Hawafi 28B, 303, 196 P.3d
290, 305 (App. 2008) (noting that “[appellant] did not identify the circuit
court’s grant of summary judgment on her claims for negligence, negligent
hiring and retention, and infliction of emotional distress in her points of
error in her brief as required by HRAP Rule 28(b)(4)” and therefore concluding
that appellant “waived any challenge to the circuit court’s grant of summary
judgment on these claims”).
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Motion.” Miller, 2008 WL 4l95877, at *l. The lCA further stated
that, “{o}n appeal, §Petitionerl raises, for the first time, gee
issue of breach of the plea agreement[,}” gee at *2 (emphases
added), and, “fa]s to plain error review, we cannot
conclude there was error{,]” ide at *3 (citations and internal
quotation marks omitted) (emphasis added). Respondent and the
ICA recognized there was no violation of HRAP Rule 28 by
Petitioner.
E.
The dissent’s argument that Petitioner violated HRAP
Rule 28 because he “raised as a point of error that ‘[t]he
prosecutor violated the plea agreement,' but it did not state
‘the alleged error committed by the court or agencv,’ as required
by HRAP Rule 28(b)(4)[,]” dissenting opinion at 5 (emphasis in
original), is simply wrong. As stated above, it appears that
certain provisions of HRAP Rule 28(b)(4) are not applicable to
Petitioner's circumstances, and thus, he did not violate the
requirements of that rule to the extent that they are simply
inapplicable. First, as stated eep;e, an appellant raising plain
error will Qeye; be able to strictly comply with HRAP Rule
28(b)(4) because, by definition, that error was not raised in the
trial court, and thus, the appellant will always be unable to
point to where in the record the error was objected to, as
required under the rule.
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Second, with regard to breached plea agreements, there
is no precedent suggesting that a sentencing court is obligated
to “object” when the prosecution violates a plea agreement or
that such an act on the part of the court would serve any
purpose, and the dissent cites none. lt would not undo the
breach, nor could it undo the impact of the breaching statements
on the court. _fe Gonczy, 357 F.3d at 52 n.l (stating that “[a]
breach of a plea agreement is deemed a violation of that
agreement by the government, not by the sentencing judge”
(emphasis added)); Barnes, 278 F.3d at 647 (emphasizing “that
this is in no sense to question the fairness of the sentencing
judge; the fault here rests on the prosecutor, not on the
sentencing judge” (emphasis added) (citations omitted)).
To the contrary, the dissent would require appellants
to contrive an argument that the court committed error, even
where the error “was technically the ‘fault’ of the
prosecution[.]” Dissenting opinion at 9. In that connection,
the dissent relies on State v. Merino, arguing that the appellant
there “complied with HRAP Rule 28(b)(4) by stating the court’s
error” where he “pointed out the circuit court’s error ‘in
allowing him to plead no contest' where ‘the complaint charging
him with criminal conspiracy was fatally defective.’” ;de
(quoting 81 Hawaifi l98, 20l, 915 P.2d 672, 675 (1996)) (first
emphasis in origina1) (second emphasis added). Based on Merino,
the dissent posits that, “[s]imilarly, here, where the
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prosecution's breach of the plea agreement may have been the root
of the court’s error, {Petitioner] was required to state ;he
court’s alleged error.” lee (emphasis added).
However, the issue in Merino was whether the circuit
court abused its discretion in accepting the appellant's no
contest plea. As this court stated, “[t]he trial court is vested
with wide discretion to accept or refuse a nolo contendere plea,
and the acceptance or refusal of a no contest plea is therefore
reviewed for abuse of that discretion.” Merino, 81 HawaiH at
211, 915 P.2d at 685 (quotation marks, brackets, and citation
omitted) (emphasis added). Thus, a trial court’s acceptance or
refusal of a no contest plea, if it represents an abuse of
discretion, could properly be considered court error, On the
contrary, a court has no obligation to eee sponte object to a
breach, and thus, any failure to do so on the part of the court
cannot be considered court error.“
What the dissent ignores is that, in the case of a
breached plea agreement that is not objected to, as in this case,
there is no “alleged error” on the part of the court, and to
force the appellant to conjure one up is unreasonable. In the
case of a breached plea agreement, as opposed to other types of
" Notably, the dissent asserts that the appellant in Merino
“complied with HRAP Rule 28(b)(4)” although there is no indication that he
stated “where in the record the alleged error was objected to or the manner in
which the alleged error was brought to the attention of the court” as required
by HRAP Rule 28(b)(4)(iii). Indeed, the appellant could not have done so,
inasmuch as he did not raise the error in the trial court. However, this
court did not fault appellant for having committed a HRAP Rule 28(b)(4)
violation, and, apparently, neither does the dissent.
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error, the fault lies solely with the prosecution. Hence, HRAP
Rule 28(b}{4) is not applicable to breaches raised as plain error
to the extent it requires (l) that the error be one “by the
court” and (2) that the appellant state “where in the record the
alleged error was objected to or the manner in which the alleged
error was brought to the attention of the court[.]” Appe1lant
thus complied with HRAP Rule 28(b)(4) to the extent possible
under the specific circumstances of his case.
F.
Moreover, HRPP Rule 52(b) does not require that a plain
error clearly must be an error by the court, as the dissent
maintains. HRPP Rule 52(b) states that “ p lain errors or
defects affecting substantial rights may be noticed although they
were not brought to the attention of the court[,]” (emphases
added). Similarly, HRAP Rule 28(b)(4) only states that “the
appellate court, at its option, may notice a plain error not
presented.” (Emphasis added.) Thus, neither rule limits pleig
e;;e; to those errors committed “by the court[,]” thereby lending
support to the rational conclusion that the precise strictures of
HRAP Rule 28(b)(4)(i)-(iii) may not always be directly applicable
to ple;g errors raised for the first time on appeal.
G.
Finally, it would appear fundamental that a court
briefing rule such as HRAP Rule 28 cannot contravene a
constitutional mandate such as the due process guarantee in the
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breach of plea context. Cf. State v. Calbero, 71 Haw. 1l5, l24,
785 P.2d 157, 161 (1989) (“{HawaFi Rules of Evidence {HRE)] 412
cannot override the constitutional rights of the accused.”). To
foreclose appellate review of plea agreement breaches because
they are not errors committed “by the court” would be
fundamentally unfair to defendants who are induced into plea
agreements based on unkept promises, and thus would leave an
entire category of due process violations unremedied, as both
federal and state decisions apparently recognize.
H.
Based on the foregoing, the dissent’s assertion that
the majority “rewrites” HRAP Rule 28, dissenting opinion at 8, is
without basis. ln that connection, the dissent asserts that,
“[u]nder the majority’s ruling, [] an opening brief will be
reviewed where its point of error section states the alleged
error committed by any party as long as fault may be attributed
to that party.” lee at 9 (emphasis in original). Contrary to
the dissent’s assertion, this opinion merely holds that, under
the specific circumstances of this case, the requirements in HRAP
Rule 28(b)(4)(ii) and (iii) that the appellant state (l) the
I
error “committed by the court,' and (2) where the error was
“objected to” or “brought to the attention of the court,” are
inapplicable with regard to Petitioner.
Hence, we are by no means of the opinion that “Hawafi
appellate courts are now required to review an error committed by
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any party -- the prosecution or defendant in a criminal case, or
the plaintiff, defendant, [or} co~party in a civil case `` if
l
that party is responsible for the ‘error." Dissenting opinion
at 9 (emphases in original). First, our decision is expressly
based on the fact that the error in this case is plain error, and
thus, there is no “require[ment]” that an appellate court “mee;
rule” on a claim that a party erred even if it is the “fi;e;
objection[,]” ide (emphases in original). lnstead, where a claim
is not raised, the plain error standard of review applies.
Second, the ruling herein is specifically based on the fact that
a prosecutorial breach, not objected to at the trial court, is
different, inasmuch as, in such cases, there is no error
attributable to the court that could be raised as such on appeal.
Third, this opinion in no way suggests that claims of error on
the part of a defendant will now be cognizable. Finally, because
the decision to review pursuant to plain error in this case rests
substantially on the fact that the error was a constitutional one
based on a criminal defendant's right to due process, it is
plainly inappropriate to suggest that the holding herein in any
way extends to civil proceedings.
The dissent further states that this opinion requires
that “the appellate court f;;e; determin[e] whether the
appellant’s objection has merit, although that role is reserved
for the trial court.” lee (emphasis in original). The dissent
merely reiterates what occurs when an appellate court reviews for
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plain error, hs discussed herein, the plain error rules, HRPP
Rule 52(b} and HRAP Rule 28(b)(4), recognize that the role of
initially adjudging the merit of a defendant's claim is typically
a role “reserved for the trial court.” However, those rules
allow the appellate court the discretion to review, even in the
first instance, where substantial rights are affected.
X.
Next, the dissent argues Petitioner “did not show how
he, specifical1y, suffered prejudice from the alleged breach of
the plea agreement.” Dissenting opinion at 10.
A.
But Petitioner in his opening brief cited HRPP Rule
52(b), as well as case law, in arguing that the breach “affected
substantial rights,” “{b]ecause the defendant relinquishes his
constitutional right to a trial by entering into a plea
agreement, the integrity of our judicial system requires that the
government strictly comply with its obligations under a plea
agreement[,]” (citations, quotation marks, and brackets omitted)
(emphasis added), “the interests of justice require that
appellant have a means of escape from the position in which he
was improperly induced to place himself in this case[,]”
(citation omitted) (emphasis added), and “the prosecutor made
numerous statements that appear to have been clearly intended to
influence, and indeed, had the practical effect of influencing,
the trial court’s decision[,]” (emphasis added). Petitioner
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specifically noted that the Ninth Circuit has reviewed “an
alleged breach of a plea agreement raised for the first time on
appeal under the ‘plain error doctrine.'” (Citing Maldonado, 215
F.3d at 1051.) Thus, contrary to the dissent, Petitioner
“present[ed] e;gpmeppe that satisfy the plain error standard.””
Dissenting opinion at 23 n.8 (emphasis added).
B.
Nevertheless, the dissent maintains that “the majority
is required to inject its own analysis as to the effect of the
prosecution’s breach of the plea agreement.” lee at 1l. To the
contrary, we agree with Petitioner that the error was not
harmless because he “relinquishe[d] his constitutional right[s]”
w In his standard of review section, Petitioner recounted the plain
error standard, which includes errors “that affected substantial rights” and
“that seriously affected the fairness, integrity, or public reputation of the
judicial proceedings.” (Citations omitted.) (Emphases added.) Subsequently,
in the first paragraph of his argument section, Petitioner argued that
“[b]ecause the defendant relinquishes his constitutional right to a trial by
entering into a plea agreement,” (citing INS v. St. Cyr, 533 U.S. 298, 321-22
(200l)), “‘ftlhe integrity of our judicial system requires that the government
strictly comply with its obligations under a plea agreement[,]'” (quoting
United States v. Allen, 434 F.3d 1166, 1174 (9th Cir. 2006) (quoting United
States v. Mondragon, 228 F.3d 978, 981 (9th Cir. 2000)).
Petitioner went on to devote almost two pages of his six~page
argument section, arguing that, where “the terms of a plea agreement [] serve
as the inducement for entering a plea,” (quoting Adams, 76 Hawaid at 414, 879
P.2d at 519), the breach is a denial of constitutional rights and has an
adverse impact on the administration of justice. In that vein, Petitioner
stated that when entering a plea, the defendant agrees to “forego certain
constitutional rights[,]” and that “the plea negotiation process implicates
constitutional considerations[.]” (Quoting Adams, 76 Hawafi at 412, 879 P.2d
at 517.) (Emphases added.) He further maintained that “due process reguires
that the State uphold its end of the bargain.” (Quoting Adams, 76 HawaiE at
414, 879 P.2d at 519.) (Emphasis added.) Petitioner proceeded to discuss
Santobello, noting that a plea agreement induced by a prosecutorial promise
“must be fulfilled.” (Quoting 404 U.S. at 262.) (Emphasis added.) Moreover,
Petitioner quoted from Waiau, 60 Haw. at 97, 588 P.2d at 4l5, explaining that
“the interests of justice reguire that appellant have a means of escape from
the position in which he was improperly induced to place himself in this
case.” (Emphasis added.)
Based on the record, we fail to see any merit in the dissent’s
position.
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based on a false inducement, Respondent’s actions in breaching
the agreement adversely impacted “the integrity of our judicial
system” and “the interests of justice[,]” and Respondent’s
statements were “intended to influence, and indeed, had the
practical effect of influencing, the trial court’s decision.”
As to how the breaching statements interacted with the
court’s decision, Petitioner quoted the relevant portions of the
transcript, adding emphasis to those statements of the prosecutor
and the court which bore a close relationship both to each other,
and to the DANCP, such as the prosecutor's comment that “;hi§
type of beating and brutality should not be accepted in our
society[,]” (emphasis in original), and the court’s related
conclusion that “societV does demand that fPetiti0nerl
should not be granted a deferred acceptance [Of] your plea[,]”
(emphasis in original).” Thus, this court’s conclusion stems
directly from arguments presented by Petitioner in his opening
brief,
C.
pFurthermore, neither Respondent nor the ICA had any
trouble discerning Petitioner’s argument, as neither asserted
that Petitioner failed to argue that substantial rights were
affected, Specifically, Respondent contended that “[Petitioner]
” Petitioner could not have done any more to emphasize that
statements made by the prosecutor were reflected in the court’s decision and
to argue that the prosecutor's statements were “intended to influence” and did
influence the judge. As described supra, it appears that the breaching
statements quoted by Petitioner were (l) relevant to DANCP factors and
(2) included in the court’s analysis.
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failed to [avail himself of other options}, yet complains that
plain error notice should be taken for a violation of his
‘substantial ridhts.’” (Emphasis added.) Respondent continued to
argue why Petitioner's substantial rights were not affected,
never stating that Petitioner had failed to argue that ooint, or
even that his argument was inadeguate. Thus, the dissent’s
argument that “the prosecution [could not] rebut [Petitioner’s]
arguments[,]” dissenting opinion at 23 n.8, is not true.”
Similarly, the lCA concluded that “based on the record
before us” there was not error that denied “fundamental rights.”
Miller, 2008 WL 4l95877, at *2. The lCA did not state that
Petitioner had inadequately argued plain error or that his
substantial rights were affected. Therefore, the plain error
issue, including the impact on substantial rights, was fully
briefed, as the ICA recognized by addressing it.
XI.
The dissent proceeds to argue at length that this court
should establish a new, heightened “extraordinary” standard where
plain error review is exercised sua sponte. Dissenting opinion
at l2.
” That statement is plainly incorrect inasmuch as Respondent
“rebut{ted]” Petitioner’s substantial rights argument at length in its
answering brief. Respondent’s theory as to why substantial rights were not
affected was that “where multiple avenues of recourse existed and [Petitioner]
failed to take them, [Petitioner’s] substantial rights were not violated[,]”
and “[t]he ends of justice do not require plain error notice where the parties
stood ready for trial, a jury awaited, and [Petitioner] chose to be
silent . . . against a perceived breach[.]”
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A.
First, the dissent maintains that “[i}n his
[A]pplication, [Petitioner] seeks review of the ICA's ruling,
apparently under a de novo standard,” id; at l0, yet the dissent
immediately contradicts that point, conceding that “{Petitioner]
recited case law demonstrating that a breached plea agreement has
affected other defendants’ substantial riqhts,”” id., and
“claim[ed] generally that the breach ‘affected (hisl substantial
rights by influencing whether he would be granted a DANCP[.]’”
ld; at ll (emphases added). Although Petitioner did point out
that “two federal circuit[s] . . . review . . . breaches of plea
agreements de novo,” he also argued “that every federal circuit
has at least adopted the view that alleged breaches of plea
agreements may be raised for the first time on appeal . . . under
the ‘plain error’ standard of review.” (Emphasis added.)
Petitioner further asserted that the breach “affected
[Petitioner's] substantial rights by influencing whether he would
be granted a DANCP[.]” Hence, we are not “required to inject
“ The dissent complains that Petitioner “did not show how he,
specifically, suffered prejudice from the alleged breach of the plea
agreement, i.e., evidence that the court would have granted the DANCP motion
if not for the breach.” Dissenting opinion at ll (emphasis added). However,
as the dissent later in its opinion apparently concedes, neither the rules nor
our case law requires that Petitioner provide “evidence” that the result
“would have” been different. indeed, as explained more fully infra, in most
cases it is virtually impossible to speculate as to what the precise impact on
the sentencing judge might have been or how the court would have decided
absent the breaching statements. lnstead, under our law, Petitioner is
required to show only that there is “a reasonable possibility that [the] error
might have contributed to conviction.” Nichols, lll Hawai‘i at 334, l4l P.3d
at 981 (citation omitted) (emphases added). Thus, the dissent requires that
Petitioner demonstrate what our law recognizes cannot reasonably be shown,
i.e., “that the court would have granted the DANCP motion[.]” Dissenting
opinion at ll (emphasis added).
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{our} own analysis as to the effect of the prosecution’s breach
of the plea agreement[,]” dissenting opinion at ll, as the
dissent charges.
B.
The dissent asserts “that the ‘appellate court’s
discretion to address plain error is always to be exercised
sparingly.'” ;d; at 12 (quoting Okada Trucking, Co. v. Bd. of
Water Supply, 97 Hawafi 450, 458, 40 P.3d 73, 81 (2002))
(emphases in original).
l.
State v. Fox, 70 Haw. 46, 56, 760 P.2d 670, 676 (l988),
was the first case to use the term “sparingly,” stating that
“[t]hough mindful that this power to deal with error is one to be
exercised sparingly and with caution because the rule represents
a departure from a presupposition of the adversary system, we are
convinced the case at bar calls for its invocation.” (Citation
omitted.) Thus, §Q; recognized that HRPP Rule 52(b) does not
represent the normal procedure in the adversary system, but
nonetheless gives the appellate courts discretion to notice such
errors, which this court deemed was appropriate in that case. ln
explicating the plain error rule, it was stated that
[o]ur prior expressions of an appellate court’s power to
notice plain error in criminal cases have been .
succinct. We have said little more in this regard than HRPP
{Rule] 52(b) itself, that is: appellate courts “have the
power, sua sponte, to notice plain errors or defects in the
record affecting substantial rights though they were not
properly brought to the attention of the trial judge or
raised on appeal.” . .
We have not endeavored to place a gloss on the rule,
as other courts have, by further defining the kind of error
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for which we would reverse under Rule S2(b). in our view,
the decision to take notice of plain error must turn on the
facts of the particular case to correct errors that
seriously affect the fairness, integrity, or public
reputation of judicial proceedings. Though mindful that
this power to deal with error is one to be exercised
sparingly and with caution because the rule represents a
departure from a presupposition of the adversary system, we
are convinced the case at bar calls for its invocation.
lgA (quotation marks, citations, footnote, and brackets omitted)
(emphases added).
This court’s elaboration of the plain error standard in
_gx is instructive. First, it was verified that the court’s
power to notice plain errors is one that may be exercised Ҥua
sponte,” and “even when not presented,” without any indication
that such power is in any way distinct from the power to notice
plain error generally. §e§ id; Second, the term “sparingly” as
used in fox indicates a recognition that the rules favor the
adversary process, while still allowing the granting of plain
error review. Third, Egx directed that the “kind of error”
appropriate for plain error review under HRPP Rule 52(b) is one
to be determined on the specific facts of the case where the
error “seriously affect[s] the fairness, integrity, or public
reputation of judicial proceedings.” §§e id4 Fourth, §gx
advised against “plac[ing] a gloss on the rule.” §ee iQ4
The error in §gx was “admission of evidence grounded on
statements made in the course of plea discussions” as prohibited
by HRE Rule 4l0(4). ld4 Without stating anything as to what
impact such statements may have had on the jury, this court held
that the admission of the statements “seriously affected the
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fairness of the proceedings.” id. This court explained that
{w]ere we to approve their use to discredit the defendant's
testimony in court, we would not be furthering the purpose
of IHRE Rulel 410 to promote the disposition of criminal
cases by compromise. We would be standing idly by though
clear error affecting substantial rights of the defendant
was committed. Under the circumstances, an invocation of
the plain error rule would be the better part of discretion,
ld. (emphases added). Thus, in Fox, promoting the purpose of the
rule was enough. in this case, where the error is of
constitutional magnitude, we think the rationale of §gx is even
more compelling, and, therefore, “invocation of the plain error
rule would be the better part of discretion.” §ee id;
2.
The dissent entirely misconstrues §gx, asserting that
“the §g§ decision did not merely restate HRPP Rule 52(b) --
rather, it added a crucial element to this rule[,]” i;e;, that
“appellate courts ‘have the power, sua sponte, to notice plain
errors[,]’ . . . and subsequently limited this power” as one to
be used “sparingly and with caution[.]” Dissenting opinion at l3
(quoting §Qx, 70 Haw. at 56, 760 P.2d at 676) (emphases in
original). To the contrary, although we agree that §gx did more
than restate the plain error rule, inasmuch as, as indicated
above, it explicated HRPP Rule 52(b), it certainly did not
“add[]” any “crucial element[,]” because bQ;h HRPP Rule 52(b) and
HRAP Rule 28(b)(4), by their plain language, already allow for
sga sponte review. in fact, neither rule indicates any
requirement that the appellant raise plain error, but instead,
they provide that “[p]lain errors . . . affecting substantial
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rights may be noticed although they were not brought to the
attention of the court[,l” HRPP Rule 52(b) (emphasis added), and
“the appellate court, at its option, may notice a plain error not
presented[,]” HRAP Rule 28(b)(4) {emphasis added). Thus, it is
illogical to assert that §Q§ “add{ed]” an element that was
already encompassed within the rule. lt follows then, that §Q§
did not “limit” the power already clearly granted by the rules,
but instead recognized that noticing plain error sua sponte, just
like noticing plain error that has been raised, is a power “to be
exercised sparingly and with caution because[,]” as the rules
manifestly recognize, “the rule represents a departure from the
presupposition of the adversary system.” §Q;, 70 Haw. at 56,
760 P.2d at 676.
3.
Consequently, the term “sparingly” must be viewed in
light of the rules, and also in the context of the cases in which
it has been used. §ee dissenting opinion at 12-13 n.6.” The
cases that have followed EQ; in employing the term “sparingly”
have qualified that term by recognizing that, “where plain error
has been committed and substantial rights have been affected;
thereby, the error may be noticed[.]” See, e.g. State v. Kaiama,
81 HawaFi 15, 25, 911 P.2d 735, 745 (l996) (recognizing that
22 The dissent cites to civil cases which are irrelevant here, §§e_
dissenting opinion at 12-13 n.6 (citing Honda v. Bd. of Trs. of the Emplovees’
Ret. Svs. of the State of Hawai‘i, 108 Hawai‘i 212, 239, 118 P.Bd 1155, 1182
(2005) (Levinson, J., dissenting, joined by Moon, C.J.); Okada Trucking_, 97
Hawai‘i at 458, 40 P.3d at 81); In re Doe Children, 108 Hawai‘i 145, 150, 129
P.3d 1173, 1178 (App. 2006); Liftee v. Bo er, 108 Hawai‘i 89, 98, 117 P.3d
821, 830 (App. 2004). ``
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“[t]his court’s power to deal with plain error is one to be
exercised sparing1y{,1” but “§nlevertheless, where plain error
has been committed and substantial rights have been affected
thereby, the error may be noticed even though it was not brought
to the attention of the trial court” (citation and internal
quotation marks omitted)); State v. Baron, 80 Hawai‘i 107, 117,
905 P.2d 613, 623 (1995) (same); State v. Puaoi, 78 Hawafi 185,
19l, 891 P.2d 272, 278 (l995) (stating that “[t]hough mindful
that this power to deal with error is one to be exercised
sparingly[,]” “where plain error has been committed and
substantial rights have been affected thereby, the error may be
noticed” (quotation marks and citations omitted)); State v.
Kelekolio, 74 Haw. 479, 515, 849 P.2d 58, 74-75 (1993) (stating
that “[t]his court’s power to deal with plain error is one to be
exercised sparingly” but “[n]evertheless, where plain error has
been committed and substantial rights have been affected thereby,
the error may be noticed” (citations omitted)).” The foregoing
3 Similarly, many of the cases that have used the term “sparing1y”
have immediately qualified it by stating that “[t]his court will apply the
plain error standard of review to correct errors which seriously affect the
fairness, integrity, or public reputation of judicial proceedings, to serve
the ends of justice, and to prevent the denial of fundamental rights.” State
v. Chin, 112 HawaiYi 142, 147 n.4, 144 P.3d 590, 595 n.4 (App. 2006) (emphasis
added); State v. Randles, 112 HawaiU.192, 194, 145 P.3d 735, 737 (App. 2006)
(same); State v. Kiakona, 110 HawaiU_450, 458 n.4, 134 P.3d 616, 624 n.4
(App. 2006) (same); State v. Yoo, 110 HawaiH.145, 150, 129 P.3d 1173, 1178
(App. 2006) (same); State v. Gray, 108 HawaiT.124, 134 n.9, 117 P.3d 856, 866
n.9 (App. 2005) (same); State v. Carva1ho, 106 HawaiHe13, 16 n.6, 100 P.3d
607, 610 n.6 (App. 2004) (same); State v. Aki, 102 HawaiH 457, 459, 77 P.3d
948, 950 (App. 2003) (same); State v. Sugihara, 101 HawaiU.361, 364, 68 P.3d
635, 638 (App. 2003) (same); State v. Gunson, 101 HawaiH 161, 162 n.4, 64
P.3d 290, 291 n.4 (App. 2003) (same); State v. Kossman, 101 HawaiU.112, 122
n.10, 63 P.3d 420, 430 n.10 (App. 2003) (same). Thus, “sparingly” manifestly
refers to the requirement that the error “seriously affect” the proceedings,
justice, or fundamental rights.
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cases, then, indicate that the term “sparingly” refers to the
limitation already in place in HRPP Rule 52(b) that the error
must be one “affecting substantial rights.” Hence, this court
has not “used the word ‘sparingly’ in order to limit appellate
courts from noticing plain error.” Dissenting opinion at 13 n.6
(emphasis in original). To the contrary, “where plain error has
been committed and substantial rights have been affected
thereby,” the “better part of discretion” is to “invok{e] the
plain error rule.” §gx, 70 Haw. at 56, 760 P.2d at 676.
4.
The dissent must concede that the rules already
recognize that plain error is a departure from the adversarial
system, but allow appellate courts discretion to notice plain
errors despite the rules' requirements.M §§§ dissenting opinion
at 13, 16. But the dissent maintains that “appellate review of
plain error is confined and explained by case law[,]” and “the
“ Furthermore, the dissent’s argument on this point ignores that the
language in HRPP Rule 52(b) and HRAP Ru1e 28(b)(4) already encompass a
preference for the adversarial system, but nonetheless permit appellate courts
to notice plain error in their discretion. HRPP Rule 52(b) states that
“[p}lain errors or defects affecting substantial rights may be noticed
although they were not brought to the attention of the court.” (Emphasis
added.) The rule therefore acknowledges that issues are usually to be raised
in the trial court by counsel. HRAP Rule 28(b)(4) similarly confirms that the
appropriate procedure for raising errors on appeal is to list them as points
of error, stating that “[ploints not presented in accordance with this section
will be disregarded,” (emphasis added), except that the appellate court, “may
gg;ige [] plain error[,]” (emphasis added).
Hence, although acknowledging that the usual, and appropriate
method, for raising errors in the adversarial system is to depend on counsel,
the rules provide that, where substantial rights are affected, the court may
choose to review error, even if not raised in the adversary process, in order
to avoid the infringement of substantial rights. Consequent1y, the
adversarial factor that might otherwise preclude review is already accounted
for and incorporated into the language of HRPP Ru1e 52(b) and HRAP Ruley
28(b)(4), and, therefore, further narrowing of the rules to account for the
adversarial process as proposed by the dissent is neither wise nor warranted.
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constraints of appellate review of plain error must continue to
be explained by appellate case law.” ldy at 17 (emphasis in
original). However, as the dissent concedes, this court has
peye; set forth in the case law a different standard for
reviewing plain errors ppg sponte as opposed to reviewing errors
brought to the court’s attention by the appellant. §ee idy at
12.
Nevertheless, the dissent would upset this equanimity
by limiting notice of plain error sua sponte “even more
‘sparingly’ than the ‘power to deal with plain error[,]’” idy at
15 (emphasis added), supposedly because “[w]hen an appellate
court notices plain error spa s onte, it departs from . . . the
adversary system . . . pyipe: first, when the counsel failed to
preserve the error at the lower court and, subsequently, when the
counsel failed to argue the plain error on appeal[,]” idy
(quotation marks and brackets omitted) (emphasis in original).”
That statement, of course, contravenes the plain language of HRPP
Rule 52(b) and HRAP Rule 28(b)(4), neither of which adopts the
severe restrictions proposed by the dissent. §pp §pp;a note 24.
lnstead, both of those rules grant appellate courts discretion to
“ As discussed at length supra, Petitioner's argument satisfied the
requirements of HRAP Rule 28(b), and, therefore, it was wholly unnecessary for
the lCA or this court to raise the error sua sponte. With all due respect, it
is implausible to say in this case that Petitioner’s counsel did not “argue
the plain error on appeal.” First, based on the record expounded supra, to
urge that the breach of plea agreement argument was not presented defies
reason. Second, as discussed at length supra, Petitioner argued to the lCA
and to this court that the plea breach should be reviewed pursuant to the
plain error standard. Hence, the dissent embarks on a path foreign to this
case.
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“notice” error not raised either (l) in the court, see HRPP Rule
52(b), or (2) in the points of error, see HRAP Rule 28(b)(4). No
distinction is made in the rules between an appellant who fails
to raise a plain error in his appellate brief versus failure at
the trial court level.
Similarly, there is no authority for the dissent’s
position that “[t]he appellate court must seek power to notice
plain error ppg sponte from both HRAP Rule 28(b)(4) and HRPP Rule
§2lpL.” Dissenting opinion at 15 (emphasis added). To the
contrary, ppph of those rules recognize appellate courts' power
to recognize plain error ppg s onte, stating that “[p]lain errors
may be noticed[,]” HRPP Rule 52(b) (emphasis added), and
“the appellate court, at its option, may notice a plain error[,]”
HRAP Rule 28(b)(4) (emphasis added). The rationale behind each
rule is the same: that when substantial rights are affected, an
error may be noticed despite counsel's failure to raise it.
Also, none of our courts have stated that spa sponte
review requires the appellate court to “seek power” from both
rules, but have instead acknowledged that each rule individually
allows an appellate court to exercise spa sponte review, and,
moreover, regardless of the rules, such power is inherent. §epy
e.g. State v. Fields, 115 Hawafi 503, 528, 168 P.3d 955, 980
(2007) (“We are, of course, cognizant of our inherent power to
notice plain error sua sponte.” (Emphasis added.); State v.
Friedman, 93 Hawai‘i 63, 67-68, 996 P.2d 268, 273 (2000) (citing
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only HRPP Rule 52(b) and recognizing that the appel1ant’s
“failure to properly raise the issue . . . does not foreclose our
consideration of the issue because this court may sua sponte
notice plain errors[,]” because under HR?P Rule 52(b) (1996),
“‘[p]lain errors or defects affecting substantial rights may be
noticed although they were not brought to the attention of the
court’” (emphases added); ln lnterest of Doe, 77 Hawafi 46, 50,
881 P.2d 533, 537 n.5 (l994) (citing neither rule but noting that
“[a]1though Doe has not raised [on appeal] the family court’s
failure to explain the nature of assault as error with regard to
her waiver of counsel, we may ppg sponte notice plain error where
it affects Doe’s substantial rights” (citation omitted)); State
v. McGriff, 76 HawaiU,148, l55, 871 P.2d 782, 789 (1994) (citing
only HRAP Rule 28 and noting that the appellant “violate[d] HRAP
Rulel 28(b)(4)(A)” but recognizing that, nevertheless, “this
court may spa sponte notice plain errors affecting an accused’s
substantial rights” (citation omitted)); State v. Hirayasu, 71
Haw. 587, 589, 801 P.2d 25, 26 (1990) (holding, without citation
to either rule, that “[o]n appeal, although [the a]ppellant did
not raise the issue of sufficiency of the evidence, the power to
sua sponte notice plain errors . . . clearly resides in this
court” (internal quotation marks and citation omitted) (emphasis
added)); Fox, 70 Haw. at 56, 760 P.2d at 676 (citing only HRPP
Rule 52(b) and holding that “appellate courts have the power, sua
sponte, to notice plain errors or defects in the record affecting
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substantial rights though they were not properly brought to the
attention of the trial judge or raised on appeal” (guotation
marks, brackets, and citation omitted) (emphases added)); §;ape
v. Calarruda, No. 28880, 2009 WL l060465, at *2 (Haw. App. Apr.
2l, 2009) (SDO) (citing only HRPP Rule 52(b) and stating that
“faln appellate court may notice error even if it was not
properly preserved at trial or properly raised on appeal[,]” and
“[w]e have said little more in this regard than HRPP 52§b)
itself, that is: appellate courts have the power, sua sponte, to
notice plain errors” (citation omitted) (emphases added)). Thus,
the dissent’s contention that “this court’s discretion to notice
plain error sua sponte should be narrowed . . . by case law[,]”
dissenting opinion at 17 (emphasis added), advocates not only
usurpation of the express language of the rules, but of our case
law as well.
Furthermore, creating a two-tiered standard for``
reviewing plain errors, as the dissent suggests, would create two
classes of defendants who could have suffered the same
substantial right injury, granting one relief but denying it to
the other on the circumstance that plain error was expressly
raised in one instance but not in the other. Such an approach
would duly invite not only due process, but equal protection
objections.
The dissent objects to this premise, stating that
“Hawafi appellate courts require parties to follow numerous
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procedural court rules, and have dismissed parties' claims or
appeals in accordance with rules and case law, when the rules
were not followed, even where another appellant could have
suffered the ‘same substantial right injury.’” lQy at 18. That
statement is contrary to the purpose of the plain error rule and
our precedent applying plain error. First, the cases the dissent
cites for that proposition are entirely inapposite because this
court did not in any of those cases indicate that substantial
rights were affected.% Thus, those cases are irrelevant to the
question of whether two appellants with the same substantial
right injury should be subject to differing standards of plain
error review. 9
Second, as discussed at length herein, there is no
rational basis in the rules or the case law for placing
appellants who fail to raise plain error into two different
categories." The purpose of plain error is to allow the court to
“ See Bank of Hawaii v. Shinn, 120 HawaiFi 1, l2, 200 P.3d 370, 381
(2008) (concluding that “under HRCP Rule 61, the ‘harmless error' rule, a
judgment or order is not to be disturbed absent conflict with the substantial
rights of the parties, which is not the case here” (emphasis added)); ln re
Contested Case Hearing on Water Use Permit Application Fi1ed by Kukui
(Molokai;¢ Inc., 116 HawaiU_481, 506, 174 P.3d 320, 345 (2007) (noting that
the petitioner asserted that there was a conflict of interest with regard to
its attorney’s representation, but failed to point to any facts supporting
that assertion, without any indication that substantial rights might have been
affected); Poe v. Hawaii Labor Relations Bd., 98 HawaiT.416, 419, 49 P.3d
382, 385 (2002) (“dismiss[ing] Poe's appeal for lack of appellate
jurisdiction” without any mention of plain error or a substantial right injury
(emphasis added)). §pp, in particular, is entirely inapplicable inasmuch as
this court does not have the option to review for plain error where appellate
jurisdiction is lacking.
” See, e.g., State v. Aplaca, 96 Hawaid.l7, 22, 25 P.3d 792, 797
(2001) (recognizing that HRPP Rule 52(b) alone grants the appellate court
discretion “whether to recognize error that has not been raised by trial
counsel, appellate counsel, or both, as plain error” (emphasis added)).
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vindicate substantial rights and to uphold the integrity of the
judicial system, regardless of the venue in which the appellant
failed to present the argument, Accordingly, HRAP Rule 28 does
not set forth a different or more stringent type of error than
HRPP Rule 52(b), and in fact, merely recognizes the same plain
error rule set forth in HRPP Rule 52(b) that “{p]1ain errors
affecting substantial rights may be noticed although they
were not brought to the attention of the court.” If it were
otherwise, then, according to the rules, the standard under HRAP
Rule 28(b)(4) would be a less burdensome standard, because that
rule does not place any substantial rights limitation as to what
kind of error may be recognized, merely stating that “the
appellate court, at its option, may notice a plain error not
presented.”
Manifestly, HRPP Rule 52(b) and HRAP Rule 28(b)(4)
refer to the same inherent plain error power, including the power
to notice errors ppg sponte. The dissent contrarily suggests
that where a substantial rights violation has occurred, if the
appellate court’s review is ppg sponte, where the error is not
“extraordinary,” the appellate court should decline to notice the
error, despite the substantial rights violation, That view
contradicts the plain language of the rules, as well as the case
law. §§e Nichols, 111 HawaiT.at 335, 141 P.3d at 982 (stating
that “[w]hile [remedial] discretion may exist in the federal
courts,” “there is no case in this jurisdiction referring to
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‘remedial discretion’ in connection with plain error, nor can we
discover any reported criminal case in which this court has found
plain error but refused to reverse in the exercise of discretion”
(emphasis added)).
C.
1n its proposal to adopt a different standard for sua
sponte recognition of plain error, the dissent has misapplied the
use of the words “sparingly” and “exceptiona1” in the case law,
arguing not only that plain error review is extraordinary, but
that the nature of the error itself must be exceptional or
extraordinary.” The dissent misinterprets this opinion,
asserting that because plain error is limited to “errors which
seriously affect . . . judicial proceedings,” dissenting opinion
at 16 (emphases in original) (internal quotation marks and
citation omitted), “[the dissent] do[es] not believe that the
majority has a reasonable basis to now question our long-held
practice to consider the nature of the error or its impact[,]”
” The dissents states that “[t]he circumstances should be
exceptional” in order to notice plain error. Dissenting opinion at 15
(emphasis added). lt cites to Fox for that proposition, wherein, as discussed
su ra, it cannot be said that the circumstances, i.e. admission of statements
made in the course of plea negotiations, were any more “exceptiona1” than the
circumstances in this case.
The dissent also cites State v. Ruiz, 49 Haw. 504, 506, 421 P.2d
305, 308 (1966) for the proposition that sua sponte review should “be
exercised only in an exceptional case. Dissenting opinion at 15 (emphasis in
original). 1n Ruiz, this court recognized the error_because “the court ruled
that defendant's story was incredible because it was told for the first time
on the stand . . . [b]ut the record plainly shows that this story was told to
one or both investigators[,]” and “[h]ence, the stated ground of the decision
was err0neous.” Ruiz, 49 Haw. at 506, 421 P.2d at 308. Again, a court’s
reliance on an erroneous factual finding does not make that case any more
“exceptional” than this one.
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id. (emphasis in original). We do not question that the “nature
of the error” is a paramount consideration. The difference
between the majority’s view and that of the dissent is that we
believe that the “nature of the error or its impact” has been
defined by the rules and in the case law as being one that
“affects substantial rights,” HRPP Rule 52(b}, or “seriously
affect[s] . . . judicial proceedings[,]” Nichols, 111 Hawafi at
334, 141 P.3d at 98l, not that the error must be “extraordinary,”
as the dissent insists. We believe that the former standard, as
set forth in the rules and elaborated in the case law, provides
more coherent guidance for plain error review. Thus, the
dissent’s statement that “this decision will result in confusion”
in the “application of the plain error rule[,]” dissenting
opinion at 17, is belied by the numerous cases applying the same
plain error standard we follow here,
D.
l.
The dissent also relies on Fields to argue that plain
error review should be exercised “sparingly.” ;d; at 14-l5.
However, that case is not supportive. In Fields, the petitioner
argued “that his ‘constitutional right of confrontation is
undoubtedly a ‘substantial right' and the erroneous admission of
both statements, in violation of the Hawai‘i Constitution, did
affect [his] substantial rights[.]” 115 Hawai5i at 528, 168 P.3d
at 980. This court did not reject the petitioner’s claim because
66
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it considered violation of the right of confrontation not
important enough to rise to the level of plain error, but because
this court had “already determined that the admission of [thel
prior out~of~court statement did not violate {the petitioner’s]
right of confrontation.” ld¢
ln a stance that is contradictory to the dissent’s
position in this case, the majority in Fields sua sponte
addressed the possibility of recognizing ineffective assistance
of counsel, inasmuch as that claim had not been raised by the
petitioner,” stating that “[wle are, of course, cognizant of our
inherent power to notice plain error sua sponte.” lQ; (emphasis
added). However, in that case, the majority determined it was
appropriate to “decline to notice plain error sua sponte inasmuch
as [the petitioner] retain[ed] the ability to vindicate his
rights by filing a petition, pursuant to HRPP Rule 40, asserting
a claim of ineffective assistance of counsel.” ldL at 529, 168
P.3d at 981. Therefore, this court’s decision not to exercise
sua sponte review was not based on the fact that such review is
extraordinary, but was specifically grounded in the fact that
there was an alternate avenue of relief still available to the
” Significantly, the petitioner in Fields had never raised the
ineffective assistance argument at all, let alone whether it should be
reviewed for plain error, which makes Fields a case wherein the 1CA or this
court literally would have had to raise the issue on its own, and in fact the
majority in Fields apparently did so, §ee 115 Hawaid at 529, 168 P.3d at
981. By contrast, here, the ICA never considered the possibility of having to
address the breach §gg sponte, as it was clear that it was the central issue
presented on appeal.
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petitioner by way of a HRPP Rule 40 motion. Fields, then, is
obviously not supportive of the dissent’s position.
2.
The dissent goes on to argue that “[a] review of the
small number of cases in which this court has noticed plain error
aaa sponte indicates that it is only appropriate to do so in
extraordinary circumstances.”” Dissenting opinion at 18~19
(footnote omitted). But the cases the dissent cites do not
support that proposition.“ The circumstances of those cases are
” A review of our case law on plain error reveals that our appellate
courts have in fact recognized plain error aaa sponte in numerous cases,
contrary to the dissent’s assertion, See, e.g., State v. Rugqiero, 114
HawaiH.227, 239, 160 P.3d 703, 715 (2007); State v. Heapy, 113 Hawafi 283,
305, 151 P.3d 764, 786 (2007); State v. Yamada, 99 Hawai‘i 542, 550, 57 P.3d
467, 475 (2002); State v. Sta1ey, 91 HawaFi 275, 286, 982 P.2d 904, 915
(1999); State v. Mahoe, 89 HawaiH.284, 287, 972 P.2d 287, 290 (1998); State
v. Richie, 88 Hawaiii 19, 33, 960 ?=2d 1227, 1241 (1998); State v. Gavlord,
78 HawaiH.127, 130 n.5, 890 P.2d 1167, 1170 n.5 (1995); Puaoi, 78 Hawafi at
191, 891 P.2d at 278; State v. Schr0eder, 76 Hawaid.517, 532, 880 P.2d l92,
207 (1994); State v. Lemalu, 72 Haw. 130, 136, 809 P.2d 442, 445 (1991);
Hirayasu, 71 Haw. at 589, 801 P.2d at 26; State v. Grindles, 70 Haw. 528, 530,
777 P.2d 1187, 1189 (1989); State v. Hernandez, 61 Haw. 475, 482, 605 P.2d 75,
79 (1980); Calarruda, 2009 WL 1060465, at *2. The dissent asserts that all of
the foregoing cases “invo1ved extraordinary errors.” Dissenting opinion at 19
n.7. However, the dissent does not make any argument as to why the errors in
those cases were any more “extraordinary” that the error in this case, and
thus, the dissent’s assertion is unavailing.
” ln a footnote, the dissent cites to Justice Acoba’s dissenting
opinion in Fields, which cited to several cases for the proposition that “this
court has many times employed” its “inherent power to notice plain error sua
sponte.” Dissenting opinion at 18~19 n.6 (guoting Fields, 115 Hawaid.at 536-
37, 169 P.3d at 988-89 (Acoba, J., dissenting)). The dissent “do[es] not
dispute [the] appellate courts' ability to notice plain error sua sponte{,]”
but “note[s] that many of [the cases cited by Justice Acoba in Fields]
declined to notice plain error.” laa at 19 n.6. However, the dissent fails
to recognize that, although it was determined in those cases that no error had
in fact occurred, this court’s ability to review for error in the first place
stemmed from its inherent power to recognize errors aaa sponte. Thus, in
those cases this court employed its power to review an alleged error aaa
sponte, but upon such review, ultimately concluded that no error had occurred,
For example, in McGriff, although this court ultimately determined
that the defendant's right of confrontation had not been violated, it
recognized that, had a constitutional violation occurred, it would be
recognized as plain error, See 76 Hawafi at l55, 871 P.2d at 789 (stating
that “if we should determine that [a co-defendant’s] testimony in this case
(continued...}
68
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not any more “extraordinary,” or unprecedented, than those in
this case. ln Ruggiero, this court held that “{t]he district
court plainly erred in convicting Ruggiero as a second time DUI
offender pursuant to HRS § 291E~61(a) and (b)(2)[,]” because
“{t]his court’s holding in [State v.l_Tafoya[, 91 Hawai‘i 261,
270, 273, 982 P.2d 890, 899, 902 (1999),] requires that the
essential elements of any offense be alleged in the complaint and
found beyond a reasonable doubt by the trier of fact.” 114
HawaiU_at 239, 160 P.3d at 715 (emphasis added). Plainly, the
requirement that all elements be alleged in the charging document
is not any more “extraordinary” than the requirement that a
prosecutor's promise associated with a plea agreement “must be
fulfilled.” §aa Santobe1lo, 404 U.S. at 262.
The dissent cites to the dissent in State v. Frisbee,
114 HawaiH_76, 85, 156 P.3d 1182, 1191 (2007) (Nakayama, J.,
dissentiHg), as authority for the proposition that the errors in
“(...continued)
contravened the confrontation clauses of the United States or Hawafi
constitutions, the admission of such testimony would be considered plain
error” (emphasis added)); see also State v. Iaukea, 56 Haw. 343, 355, 537 P.2d
724, 733 (1975) (reviewing “the issue raised because it could have (affectedl
the appellant's substantial rights, including the length of his sentence, but
ultimately concluding that “[t]he trial court did not commit error, plain or
otherwise” (emphasis added)); State v. Cummings, 49 Haw. 522, 528, 423 P.2d
438, 442-43 (1967) (although concluding that no error occurred, reviewing the
alleged error pursuant to the power to review for plain error, because
“[e]rroneous admission of evidence may constitute plain error if a fair trial
of the accused was thereby impaired, or if it substantially prejudiced the
accused[,]” and because admission of evidence in that case was “peculiarly
vulnerable as possible error ‘affecting substantial rights’ under [HRCP] Ru1e
52(b)” (some internal quotation marks, parentheses and citation omitted)).
Finally, the dissent’s reference to the majority's conclusion in
ln re Doe is misp1aced, because in Fields, Justice Acoba's dissenting opinion
cited his dissent in that case and not the majority opinion. §aa Fie1ds, 115
Hawafi at 537, 168 P.3d at 989 (Acoba, J. dissenting) (citing Qaa, 102 Hawaid
75, 87, 73 P.3d 29, 41 (2003) (Acoba, J., dissenting).
69
*H son PusL:ccAmtoN m wss'z:'s HAWA;‘I arrests ann PAc;u-"rc Rsx.>osrrsn ***
Ruggiero and Yamada, were “particularly egregious and obviously
harmful{.}” Dissenting opinion at 22, However, in both Ruggiero
and in this case, the error stemmed from an action of the
prosecution, which resulted in a denial of the defendant's
fundamental due process rights. See Ruggiero, 114 Hawaid.at 239,
160 P.3d at 715 (“A charge defective in this regard amounts to a
failure to state an offense, and a conviction based upon it
cannot be sustained, for that would constitute a denial of due
process,” (citations omitted) (emphasis added)); Aaama, 76 Hawaid
at 412, 414, 879 P.2d at 517, 519 (holding that a plea agreement
“imp1icates constitutional considerations -~ including the
fairness and voluntariness of the plea,” and therefore, “the
terms of a plea agreement, which serve as the inducement for
entering a plea, must be fulfilled[,]” and thus, “due process
requires that the State uphold its end of the barGain” (emphases
added)).
Similarly, it cannot be said that, in Yamada, the error
was any more “egregious” than the error in this case. As the
dissent explains, this court reversed the court in Yamada aaa
sponte because “[b]y directing the jury to find Yamada guilty of
manslaughter ‘if one or more jurors believes or believe that the
prosecution has not proven . . . that' Yamada was not under the
influence of [extreme mental or emotional distress,]” the court
“potentially allowed a single juror to highjack the
proceedings[,]” thereby depriving Yamada of his constitutional
70
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right “to a unanimous verdictF.}” 99 HawaFi at 551, 57 P.3d at
476. The dissent does not make any argument as to why depriving
a defendant of a panoply of constitutional guarantees because of
a false promise of the government in a plea deal is any less
troublesome than denial of the right to a unanimous verdict.”
According1y, there is nothing so “extraordinary” about the cases
cited by the dissent wherein this court has aaa sponte noticed
plain error that sets them apart from this case.”
3.
Furthermore, the dissent chooses selectively which aaa
sponte cases to discuss, ignoring those that have recognized
plain error based on denial of constitutional rights, iaaa, due
process rights.” For example, in Stale , this court noticed
” The dissent’s recitation of the facts of Ruggiero and Yamada only
demonstrates the requirement that substantial rights must be affected, app
that the error committed must somehow be “extraordinary,” lndeed, the dissent
does not leave the reader with any sense of what an “eXtraordinary” error
might be, or when this court might consider the denial of fundamental
constitutional rights to be of an extraordinary nature versus a garden variety
violation, Nor does the dissent explain why the fundamental due process
rights denied when a breach occurs are merely of a garden variety, rather than
Yextraordinary.”
33 §aa Bpggaa;p, 114 HawaiU.227, 160 P.3d 703 (discussed app;a);
Yamada, 99 Hawafi 542, 57 P.3d 467 (discussed supra); Grindles, 70 Haw. at
533, 777 P.2d at 1191 (concluding “that the [a]ppellant was entitled to have
the State present its entire case against him under HRS § 291-4(a) before
presenting any evidence in his defense or deciding whether or not he himself
should take the stand”); Ruiz, 49 Haw. at 506, 421 P.2d at 308 (discussed
supra note 28).
" The dissent claims that it “certain1y recognize[s] that the denial
of constitutional rights may well be extraordinary.” Dissenting opinion at 20
n.7 (first emphasis in original) (second emphasis added). However, the
dissent does not explain which constitutional errors might satisfy its rigid
aaa sponte standard, as opposed to those that are merely ordinary
constitutional errors not worthy of plain error review. Inasmuch as our case
law supports plain error review where constitutional rights are denied, and
the violation in this case rose to the level of plain error, we see no reason
to distinguish among categories of constitutional error herein.
71
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plain error aaa sponte, unanimously holding, “based on [its]
independent review of the record, that [the appellant’s}
constitutional right to testify was violated.” 91 Hawai‘i at 277,
982 P.2d at 906.“ This court, citing only to HRPP Rule 52(b) and
case law, stated succinctly with regard to plain error review
that “{w]e may recognize plain error when the error committed
affects substantial rights of the defendant[,]” aaa at 282, 982
P.2d at 911, and did not employ the term “sparingly” or
“exceptional” to refer to plain error review. lt was held that
“[a]lthough not raised by [the appe1lant] on appeal, our review
of the record establishes that [his] right to testify . . . was
violated” because “[w]hile the circuit court did engage in a
colloquy with [the appellant] regarding [his] understanding of
his right to testify, the circuit court failed to elicit an
on~the-record waiver[.]” lap at 286, 982 P.2d at 915. As for
the impact on substantial rights, this court concluded that
“[b]ecause the circuit court’s error infringed upon [the
appellant'sl constitutional right to testify, we address it as
plain error.” gap (emphasis added). We do not think that the
infringement of constitutional rights that occurs when the court
fails to obtain a specific waiver of the right to testify is any
” Contrary to the facts of this case, in Staley, the appellant did
app present the constitutional issue at all, and instead argued solely
“(1) the circuit court erred in granting the prosecution’s motion in limine,
; (2) the jury instructions as read to the jury were prejudicial to him;
and (3) there was insufficient evidence to support his conviction{,]” 91
HawaiH at 277, 982 P.2d at 906, matters totally unrelated to the issue
addressed as plain error.
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more “extraordinary” than the infringement upon constitutional
due process rights that occurred in this case.
Several other cases wherein this court has recognized
plain error aaa sponte did not present circumstances more
extraordinary than in this case, nor did aay of following cited
cases state that apa sponte plain error review should be
exercised “sparingly” or in “exceptional” cases. §aa Ruggiero,
114 Hawafi at 239, 160 P.3d at 715 (recognizing plain eror aaa
sponte based on insufficiency of the complaint, stating only that
“[w]e may recognize plain error when the error committed affects
substantial rights of the defendant”); E§§QX, 113 Hawafi at 305
n.26, 151 P.3d at 786 n.26 (stating only that “[a]ppellate
courts, in criminal cases, may aaa sponte notice errors to which
no exception has been taken, if the errors are obvious, or if
they otherwise seriously affect the fairness, integrity or public
l
reputation of judicial proceedings,’ and recognizing as plain
error the trial court’s exclusion of “The Use of Sobriety
Checkpoints for lmpaired Driving Enforcement, (Nov. 1990) of the
National Highway Traffic Safety Administration,” (the Guide),
because “[g]iven the negative constitutional implications of the
court’s decision, application of the plain error doctrine would
be proper” (citation omit-ed) (emphasis added))”; Yamada, 99
” The dissent attacks our citation to Heapy, asserting that “the
plurality's mere mention of the plain error doctrine {in Heapy] was
unnecessary to adjudicate the particular issue presented in that case, and is
therefore dictum[,]” and, thus, “the majority’s reliance on Heapy is wrong,
inasmuch as it is clearly not an accurate reflection of the extraordinary
circumstances under which this court has applied the plain error doctrine in
4 (continued...)
73
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Hawai‘i at 550, 57 P.3d at 475 (reconizing plain error sua sponte
and stating solely that “[w]e may recognize plain error when the
error committed affects substantial rights of the defendant”
(citations omitted)); MahQe, 89 HawaiU_at 287, 972 P.2d at 290
(merely quoting the language of HRPP Rule 52(b) and concluding
sua sponte that “[a]lthough not raised by Mahoe on appeal, our
review of the record indicates that Mahoe’s right to due process
. . . was violated” and “[b]ecause these errors infringed on
Mahoe's constitutional rights to due process and unanimous jury
verdict, we address them as plain error” (emphases added));
Richie, 88 Hawai‘i at 33 n.6, 960 P.2d at 1241 n.6 (recognizing
plain error sua sponte and stating solely that “this court has
“(...continued)
the past.” Dissenting opinion at 21 n.7. Although in Heapy this court
determined, in addition to its plain error analysis, that consideration of the
Guide was appropriate on appeal, “irrespective of any arguable failure on the
part of Defendant to raise it on appeal[,]” because it was “germane” to the
other issues on appeal, its reference to plain error was manifestly tied to
its decision that the Guide was “imbedded in the legal doctrine concerning
roadblocks,” and provided additional support for its conclusion that review of
the Guide was appropriate, and, thus, was not merely “dictum”:
Also, this court may consider plain error for the apparent
failure of Defendant to raise HRS § 29lE~2O and the Guide on
appeal. Appellate courts, in criminal cases, may sua sponte
“notice errors to which no exception has been taken, if the
errors are obvious, or if they otherwise seriously affect
the fairness, integrity or public reputation of judicial
proceedings[,]” [Fox, 70 Haw. at 56, 760 P.2d at 675-76], as
in this case.
Assuming, ar uendo, that an exception must be taken
with respect to . . . the court’s exclusion of the Guide,
notice of plain error would be appropriate. As earlier
eXplained, the procedures listed in . . . the Guide are
relevant to a discussion of the reasonableness of the stop.
These prescribed procedures were developed in order to
minimize intrusion upon an individual’s privacy rights and
are referred to in much of the case law. Given the negative
constitutional implications of the court’s decision,
application of the plain error doctrine would be proper.
Heapy, ll3 Hawafi at 305 n.26, l5l P.3d at 786 n.26 (emphases added).
74
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reviewed possible violations of HRS § 701-109 under the plain
error doctrine in the past[,]” and thus, “despite the failure of
trial counsel and appellate counsel to properly raise this issue,
we address it sss sponte” (citation omitted)); Gaylord, 78 HawaFi
at l30 n.5, 890 P.2d at ll70 n.5 (merely quoting the plain error
language from HRAP Rule 28(b)(4) and noticing plain error sss
sponte with regard to “the sentencing court’s restitution
order”); Schroeder, 76 Hawafi at 532, 880 P.2d at 207 (noticing
plain error sss sponte because the appellant had a “right under
the due process clause . . . to be given reasonable notice of the
circuit court’s intention to . . . impos[e] a mandatory minimum
ten year term of imprisonment” because “where plain error has
been committed and substantial rights have been affected thereby,
the error may be noticed” (citation omitted) (emphasis added));
Lemalu, 72 Haw. at l36, 809 P.2d at 445 (noticing plain error sss
sponte because, “[a]lthough Lemalu has not raised this issue on
appeal, we view the giving of certain instructions coupled with
the use of multiple verdict forms as plain error”); Hirayasu, 7l
Haw. at 589, 801 P.2d at 26 lnoticing plain error sss sponte,
stating that “[o]n appeal, although [the a]ppellant did not raise
the issue of sufficiency of the evidence, the power to sua sponte
notice plain errors or defects affecting substantial rights
clearly resides in this court” (guotation marks and citations
omitted)); Grindles, 70 Haw. at 530, 777 P.2d at ll89 (noticing
sua sponte as error that “the trial court’s action in compelling
75
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[the a]ppellant to put on his evidence prior to the conclusion of
the State’s evidence violated his due process right to a fair
;s;sg{,]” because “[a]lthough [the a}ppellant did not raise on
appeal any due process claim, the power to sua sponte notice
plain errors or defects affecting substantial rights clearly
resides in this court” (quotation marks and citation omitted)
(emphasis added)); Hernandez, 6l Haw. at 482, 605 P.2d at 79
(recognizing plain error sss sponte because “[a]lthough appellant
did not raise on appeal the sufficiency of the evidence . . . ,
the power to [s]ua sponte notice plain errors or defects
affecting substantial rights clearly resides in this court”
(quotation marks and citation omitted); Calarruda, 2009 WL
l060465, at *2 (concluding sss sponte that “the trial court
committed plain error in imposing sentences for both possession
of the firearm and possession of ammunition[,]” because “[a]n
appellate court may notice error even if it was not properly
preserved at trial or properly raised on appeal”).
E.
Additionally, the dissent’s assertion that when plain
error review is exercised sss sponte, “our adversarial system is
idirectly undermined,” dissenting opinion at 23 (footnote
omitted), is inapposite here. The dissent maintains that “[t]his
system is premised on the well-tested principle that truth - as
well as fairness -his best discovered by powerful statements on
both sides of the guestion.” Id. at l4 (quoting Fields, ll5
76
*+- son r>usr.;rca:c):on m vmsm's Hz~.wz~.r‘i ampoz=u's mm PAcIFIC Raporz'.rrsa *#*
Hawai‘i at 529, l68 P.3d at 98l) (emphasis added). But, the
aforementioned objection is not involved in this case. Here,
both sides plainly believed that (l) the prosecution’s breach of
the plea agreement, and (2) whether that breach should be
reviewed for plain error, were the central issues on appeal, and
each made “powerful statements” to that effect.” As a result,
all of the arguments, facts, and case law necessary to determine
whether the plea agreement was breached were fully presented.
Conseguently, there was no necessity for this court to perform
its own “legal inquiry and research,” sss sss at 14 (citation
omitted), inasmuch as this opinion relies on cases that were
argued by Petitioner, ssss, sssss and Santobello. The concerns
posed by the dissent are simply not present in this case.
XIl.
The dissent next argues that the sua sponte standard was
not satisfied, because (l) “[a] breached plea agreement does not
in itself satisfy the plain error requirements[,]” dissenting
opinion at 24; and (2) “federal decisions” dictate that “a
breached plea agreement [does not] automatically den[y] a
defendant of his substantial rights[,]” id. at 34.
” lt is ironic that the dissent argues that somehow the parties in
this case were “precluded from presenting arguments on the [plain error]
issue,” dissenting opinion at 23, and yet the dissent apparently deemed
Respondent’s argument quite “powerful,” inasmuch as the dissent adopts
Respondent's unprecedented-“extraordinary” standard and advocates adopting
that standard in this jurisdiction. In fact, the dissent employs Respondent's
“extraordinary” language several times. §ss sss at l2, l9, 20, 2l, 23, 35.
Thus, the dissent contradicts its own argument that Respondent did not have a
chance to argue plain error, by adopting the very plain error standard
Respondent advocated on appeal.
77
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A.
l.
The dissent objects to what it characterizes as the
majority’s “conclusion that [Fetitioner] ‘was denied his due
process rights,’ based solely on the alleged breach.”” lss at 25
(emphasis in original). That statement misconstrues this opinion.
First, this opinion does not hold “that [Petitioner's] fundamental
rights were violated based entirely on the fact of a breached plea
agreement . . . without a discussion of how [Petitioner’s] due
process rights were affected in this case.” lss (emphasis in
original). Petitioner's right to due process was violated pssss
on the circumstances of this case, because (l) the promise of the
prosecution to take no position on DANCP was central to the
promise made by the prosecution as a condition of the plea, and
thus, was clearly material to Petitioner's resulting decision to
forego all of his constitutional rights and plead guilty,” and
” As discussed more fully infra, the dissent subsequently
contradicts that statement by stating that “the majority . . . also concluded
that the error was not harmless beyond a reasonable doubt.” Id. at 33. At
page 33, the dissent is apparently referring to the conclusion that the
breaching statements had an impact on the court’s decision. The harm in this
case, however, stems both from (l) denial of Petitioner’s due process rights
based on the breach, and (2) the apparent impact on the court’s decision to
deny Petitioner's DANCP motion.
” The dissent attempts to minimize the impact of the breach by
stating that “the plea agreement clearly involved advantages and incentives
for the defendant other than the prosecution’s promise to stand silent on the
DANCP motion.” §ss at 28, However, under Adams, “the terms of a plea
agreement, which serve as the inducement for entering a plea, must be
fulfilled.” Adams, 76 HawaiH at 4l4, 879 P.2d at 519 (emphases added); sss
also State v. Yoon, 66 Haw. 342, 347, 662 P.2d lll2, lll5 (l983) (concluding
that, “if [the defendant's] guilty pleas . . . rested in any significant
degree” on the prosecution’s promise, “due process would indeed call for a
fulfillment of the State’s end of the bargain”). Thus, any term that
“serve{d] as the inducement” is material to the agreement and “must be
(continued...)
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(2) the court’s rationale for rejecting Petitioner’s DANCP closely
reflected the prosecution’s position, which was offered for no
other apparent reason than to influence the court’s decision to
grant or deny the DANCP. Thus, it is sss this court’s holding
“that all breached plea agreements violate a defendant's
fundamental rights[,}” sss at 26~27, or “that a breached plea
agreement automatically . . . violates [] fundamental rights[,]”
sss at 28 n.l0, without any further analysis, but, that, on the
facts of this case, the breach rises to the level of plain error.
That approach is consistent with our cases noticing plain error
based on the facts of the particular case. sss State v.
Rodrisuesl ll3 HawaiYi 4l, 47, 147 P.3d 825, 831 (2006) (holding
that “[t]he decision to take notice of plain error must turn on
the facts of the particular case” (quoting §ss, 70 Haw. at 56, 760
P.2d at 676)). Thus, the dissent’s “extraordinary” standard is
unprecedented.
2.
Also, this court has said more than that a breach
“implicate si constitutional rights[.]” Dissenting opinion at 28
(emphasis in original). In Adams, this court stated that, not a
”(...continued)
fulfilled,” regardless of any other compromises incorporated into the
agreement. sss Adams, 76 Hawaid.at 4l4, 879 P.2d at 5l9; sss also
Santobello, 404 U.S. at 262 (stating that “petitioner ‘bargained’ and
negotiated for a particular plea in order to secure dismissal of more serious
charges, but also on condition that no sentence recommendation would be made
by the prosecutor" (emphasis added)). Here, Petitioner manifestly pleaded
guilty based at least in part on the prosecution’s promise to “take no
position” on the DANCP motion, and thus, Petitioner was “denied due process
because the prosecution violate{d the] plea ssreement[.]” Adams, 76 HawaiH
at 4l4, 879 P.2d at 5l9 (emphasis added).
79
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breach, but “the plea negotiation process implicates
constitutional considerations.” 76 Hawaid.at 412, 879 P.2d at
517 (emphasis added). As sssss indicated, the constitutional
considerations at stake “includ{e] the fairness and voluntariness
of the plea[.}” sss when the State's promise acts as inducement
for the plea, the validity of the plea, and therefore the
conviction, are called into question when that promise goes
unfulfilled. lt is for those reasons that this court held in
sssss that “the terms of a plea agreement, which serve as the
inducement for entering a plea, must be fulfilled.” sss at 414,
879 P.2d at 519 (citing State v. Costa, 65 Haw. 564, 566, 644 P.2d
1329, 1331 (1982); Santobe1lo, 404 U.S. at 262). Thus, despite
the dissent’s contrary position, we have affirmatively psss that,
where the plea agreement acts as inducement for pleading guilty,
the “defendant is denied due process” and “there is manifest
injustice as a matter of law.” sss (emphases added).” When, as
in this case, a breach “denied due process,” sss, because it
undermined the foundation for the defendant's guilty plea, the
error “in fact affected the defendant's substantial rights[,]”
" The dissent claims that it objects to our holding that
“[Petitioner's} due process rights were violated, based on Adams’ discussion
on the effect of a breached plea agreement, generally.” Dissenting opinion at
30 n.12 (emphasis in original). However, as we stated supra, “[t]he facts of
Adams are virtually indistinguishable from the facts of this case[,]" sss
supra at 27, and hence, Adams is quite apposite here. Moreover, Adams’
holding that the government's breach of a plea agreement violates due process
is unmistakable, whether that holding is characterized as “general[]” or
specific.
80
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dissenting opinion at 27 (emphases in original).“ Thus, we do not
“lower{] the plain error standard for breached plea agreements{,}”
id¢ at 28, as the dissent contends, but, consistent with our plain
error precedent, opt to notice plain error where due process is
denied. Urging, as the dissent does, that the denial of due
process, i;e¢, the breach, does not “in fact” affect substantial
rights, is contrary to this court’s plain error jurisprudence, and
would greatly diminish due process protections under our
constitution.”
3.
According to the dissent, “a HawaFi appellate court
must also find that ‘there is a reasonable possibility that the
error contributed to the defendant's conviction[.]’” ld. at 24
“ The dissent asserts that this is “an egregious distortion of my
statements[,]” because it purports to believe that “the denial of due process
affects substantial rights, but that a breached plea agreement, in itself,
does not deny the defendant of his or her due process riqhts[.]” Dissenting
opinion at 26 n.l2 (emphasis added). The dissent relies on Puckett in support
of that statement, which, as explained further, infra, relies on the federal
plain error standard and is therefore inapposite here. Moreover, the
dissent’s view as to the due process implications of breached plea agreements
is impossible to square with Adams.
n The dissent also claims that “[t]he majority correctly states that
this court may review a breached plea agreement claim for plain error, but it
[] applies a de novo standard for a breached plea agreement claim raised for
the first time on appeal[.]” Dissenting opinion at 23; §e§ also id; at 24
n.lO (stating that the majority's “conclusion itself was based entirely on
its de novo review of the breach”). That statement is manifestly inaccurate,
as this court has determined, pursuant to two distinct analyses, (l) that the
breached plea agreement is appropriate for plain error review inasmuch as the
breach contributed both to Petitioner’s conviction and the denial of his DANCP
motion, and (2) pursuant to de novo review, that the plea agreement was
breached. §ge Abbott, 79 Hawaid at 320, 901 P.2d at 1299 (emphases added)
(“Whether the State has actually breached the terms of a plea agreement {] is
a question of law, which we review de novo under the right/wrong standard of
review.”) lt would seem plain that whether the breach occurred, and whether
or not it affected substantial rights under the plain error standard, are two
distinct, albeit related, questions. ``
81
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(guoting Nichols, lll HawaFi at 337, 141 P.3d at 984). The
dissent seems to concede that, in §dam§ and in Santobe1lo, the
breach was the sole reason for vacation of the sentence, but avers
that those cases do not apply here because those “courts were not
limited to reviewing the defendant's claim for plain error.” ld4
at 27 n.10. The dissent’s argument seems to be that, cases
wherein this court has concluded that fundamental rights were
denied outside of the plain error context, cannot be used as
support for the proposition that substantial rights were affected
in the plain error context.
That reasoning defies logic and precedent. lt is not
the standard of review that dictates whether fundamental rights
are denied, but the guarantees embodied in our constitution.
Where such constitutional rights are affected, our courts have on
several occasions opted to review for plain error.” Thus, the
dissent has no sound basis for ignoring the rationale of AQam§ and
Santobe1lo in the instant case.
43 See, e.g.L State v. Uvesugi, 100 Hawafi 442, 449, 60 P.3d 843,
850 (2002) (stating that plain error will be noticed where “instruction .
has affected the defendant's substantial rights - to wit, his or her
constitutional rights to a trial by an impartial jury and to due process of
law” (citation omitted)); State v. Arceo, 84 Hawafi 1, 33, 928 P.2d 843, 875
(l996) (VArceo's substantial constitutional right to unanimous jury verdicts
was prejudiced in such a manner as to give rise to plain error.”); Puaoi, 78
Hawaiu at 191, 891 P.2d at 278 (ho1ding that “[a] conviction based on
insufficient evidence of any element . . . is a violation of due process and
thus constitutes plain error[,]”); State v. Mitchell, No. 28079, 2008 WL
4649426, at *13 (Haw. App. Oct. 17, 2008) (mem.) (holding that “[i]f the
psychologist-client privilege was destroyed, the [error] would have seriously
affected the fairness and integrity of Mitche1l’s trial, entitling Mitchell to
a new trial to serve the ends of justice and prevent a denial of his
fundamental right to a fair trial”).
82
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Furthermore, contrary to the dissent’s assertions, this
opinion recognizes that Petitioner was prejudiced by the breach,
and that, therefore, the error was not harmless beyond a
reasonable doubt. §ee dissenting opinion at 33. First,
Petitioner was prejudiced when he forewent all of his
constitutional rights and pleaded guilty based, at least in
substantial part, on an empty promise. ln Yoon, this court
concluded that, “if [the defendant’s] guilty pleas . . . rested in
any significant degree on a promised resolution of all the cases
then pending against him, due process would indeed call for a
fulfillment of the State’s end of the bargain.” 66 Haw. at 347,
662 P.2d at 1115 (citing Bordenkircher v. Haves, 434 U.S. 357(1978); Santobello, 404 U.S. at 262; W§l§u, 60 Haw. at 96-97, 588
P.2d at 414~15; State v. GumiennV, 58 Haw. 304, 308, 568 P.2d
1194, 1197-98 (1977)) (emphases added). Because “[a]n unfulfilled
plea agreement . . . implicates other considerations of
constitutional dimension[,] . . . it is also clear that a
prosecutor's [broken] promise may deprive a guilty plea of the
character of a voluntary act.” ld; at 349, 662 P.2d at 1116
(citation and quotation marks omitted). lt was held that “the
State should be held to the agreement to clear the defendant's
record[,}” inasmuch as “Ialnything less might have raised
guestions concerning fairness in the State’s dealings with [the
defendantl and the voluntariness of his Gui1tV Dleas.” ld.
(emphasis added).
83
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Based on §Qgn, it is the law in this jurisdiction that,
where the plea “rest{sl in any significant degree” on the State’s
promise, due process requires that the promise be fulfilled.
Where, as here, the plea is based on an unfulfilled promise of the
prosecution, there is certainly “a reasonable possibility that
[the] error might have contributed to conviction(,]” Nichols, 111
Hawafi at 334, 141 P.3d at 981 (citation omitted), inasmuch as
the conviction rests entirely on Petitioner’s plea.
Second, Petitioner was prejudiced because the
prosecution’s statements appeared to influence the sentencing
court’s decision to deny the DANCP, as set forth §up;a. Hence,
the dissent is wrong when it says that “the majority[]
concludes that [Petitioner’s] fundamental rights were violated
without actually applying [the plain error] standard.” Dissenting
opinion at 30 (citations omitted). This decision does not
contradict, but reaffirms that this court’s review is exercised in
order “to correct [an] error[] which seriously affect[s] the
fairness, integrity, or public reputation of judicial proceedings,
to serve the ends of justice, and to prevent the denial of
fundamental rights.” §ee Sawyer, 88 HawaiYi at 330, 966 P.2d at
642 (emphasis added).
B.
1.
Next, although conceding that “[w]e have never employed
the four-pronged plain error standard of review set forth in
84
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United States v. Olano, 507 U.S. 725 {1993){,]” dissenting opinion
at 30 (brackets and citation omitted), the dissent nevertheless
argues that “Hawaii’s plain error standard is substantially
similar to the federal plain error test,” idL at 31. Aside from
the fact that its contention is incorrect, the dissent’s
application of the federal plain error standard is particularly
guestionable, §ee id; at 30-34, inasmuch as, not only has this
court never employed the federal four-pronged test, but has
explicitly rejected it when faced with the opportunity to adopt
that standard. §ee Nichols, 111 Hawafi at 335, 141 P.3d at 982.
ln Nichols, the federal standard was addressed in the
context of this court’s review of the lCA’s determination that “it
had the option to decline to exercise its ‘remedial discretion' or
that it had any remedial discretion at all in regards to
[prejudicial] error.” ld; As stated before, Nichols “note[d]
that [the petitioner wa]s correct in asserting that there is no
case in this jurisdiction referring to ‘remedial discretion' in
connection with plain error, nor can we discover any reported
criminal case in which this court has found plain error but
refused to reverse in the exercise of discretion.” ld4 While
observing that “such discretion may exist in the federal courts,”
this court declared that “we have geyer employed the four-pronged
plain error standard of review set forth in {Olano ,” and,
additionally, “decline to do so.” ld. (emphases added).
85
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2.
The dissent proceeds from its incorrect premise to
assert that under “federal cases . . . , the defendant is not
automatically prejudiced or deprived of his or her ‘fundamental
rights.'” Dissenting opinion at 32 (citing Cannel, 517 F.3d at
1179 (Clifton, J., concurring); United States v. De La Garza, 516
F.3d l266, 1269-70 (l1th Cir. 2008); Salazar, 453 F.3d at 9l5;
Jensen, 423 F.3d at 855). None of these cases are relevant under
our state standard. See Nichols, 111 Hawafi at 335, 141 P.3d at
982. Even if considered, Cannel is inapposite because there was
no breach“; Salazar adopts a standard Nichols rejected“; in De La
Garza there was no loss of the bargain“; and in Jensen, the breach
“ ln that case, the Ninth Circuit concluded that “the government did
not breach the plea agreement.” 517 F.3d at 1177.
“ Salazar is inapposite, inasmuch as that court concluded “that the
government honored its agreement with Salazar.” 453 F.3d at 915. Moreover,
the Seventh Circuit’s dicta in that case regarding whether the breach
hypothetically would have satisfied the plain error standard had one occurred
is not applicable in this jurisdiction, as that court applied a rigid standard
as opposed to that set forth in Nichols, requiring that the defendant show
that “but for the breach of the plea agreement his sentence would have been
different.” ld4 (emphases added). This court did not in Nichols, nor has it
ever, stated that the error must have contributed to the conviction, but has
only required that “there is a reasonable possibility that error might have
contributed to conviction.” Nichols, lll HawaiH at 334, 141 P.3d at 981
(emphases added).
“ ln De La Garza, 516 F.3d at 1269-70, the breach consisted of the
prosecution’s comments casting doubt on defendant's testimony regarding a fact
that was stipulated to as part of the agreement. However, the defendant
obtained the benefit of his bargain, because the district court explicitly
credited the very testimony that the defendant claimed was undermined by the
prosecution’s comments. Also, despite not granting a downward sentencing
departure, “the district court sentenced De La Garza at the low end of the
[sentencing] Guidelines range” and its reasoning for denying the departure was
totally separate and distinct from the issue in dispute, and thus would have
been the same regardless of the stipulated fact at issue. ;g; at 1270.
86
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had no consequence for the sentence.”
3.
Again, the dissent next contends that “[t]he majority’s
ruling is also at odds with the Supreme Court’s clear ruling that
a breached plea agreement does not satisfy the plain error
requirement that the error ‘must have affected the {defendant’s]
substantial rights.’” Dissenting opinion at 32 (quoting Puckett,
-~ U.S. at --, 129 S.Ct. at 1429) (brackets in original). First,
Puckett simply is irrelevant to our plain error analysis because
it departs from Hawafi law in its requirement that, in addition
to showing that the error affected substantial rights or the
integrity of the judiciary, the defendant must make a
particularized showing of prejudice, i.e., that the sentence would
heye been different. _ee Puckett, -- U.S. at ~-, 129 S.Ct. at
1433; eee elee Nichols, 111 HawaiH.at 335, 141 P.3d at 982
(rejecting the federal plain error standard upon which Puckett
relies).
Additionally, Puckett’s “clear ruling” was gee that “a
breached plea agreement does not satisfy the plain error
requirement” in every case, but, as the dissent concedes, only
" Likewise, in Jensen, there was little question that the court was
entirely unaffected by the breach. The issue in Jensen was whether “the
government was obligated to move for [an] additional level reduction” in
sentence after “the district court granted a two~level reduction on its own
motion[.]” Jensen, 423 F.3d at 854. Although answering that question in the
affirmative, the Jensen court concluded that the failure to ask for an
additional reduction had no consequence, because “Jensen was sentenced to 33
months, and the applicable guideline range absent the breach would have been
between 27-33 months{,]” and “because in sentencing Jensen the district court
explicitly deemed the guidelines as being advisory only.” lee at 854-55.
87
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that there are situations where a breach on its own will not
affect substantial rights. Puckett noted only gee instances where
“{t]he defendant whose plea agreement has been broken by the
Government will not always be able to show prejudice[: 1] either
because he obtained the benefits contemplated by the deal anyway
(eege, the sentence that the prosecutor promised to request) or
[2] because he likely would not have obtained those benefits in
any event (as is seemingly the case here).” 129 S.Ct. at
1432-33.“
On the other handj Puckett acknowledged that “Santobello
did hold that automatic reversal is warranted when objection to
the Government’s breach of a plea agreement has been preserved[,]”
based upon “a policy interest in establishing the trust between
“ lt is worth noting that, as acknowledged by the Supreme Court,
the facts in Puckett were extremely unfavorable to the petitioner. ln
Puckett, the government had agreed as part of the plea deal to “agree[] that
Puckett has demonstrated acceptance of responsibility and thereby qualifies
for a three-level reduction in his offense 1evel[,]” and “to request that
Puckett's sentence be placed at the lowest end of the guideline level deemed
applicable by the Court.” -- U.S. at --, 129 S.Ct. at 1426-27.
However, subsequent to the plea bargain, “Puckett assisted another
man in a scheme to defraud the Postal Service[.]” lee at ~-, 129 S.Ct. at
1427. Therefore, at the time of sentence, the prosecutor “made clear that the
[g]overnment opposed any reduction in Puckett’s offense level[.]” lee Based
on the unique facts of Puckett, the Supreme Court noted:
lt is true enough that when the Government reneges on a plea
deal, the integrity of the system may be called into
question, but there may well be countervailing factors in
particular cases. Puckett is again a good example: Given
that he obviously did not cease his life of crime, receipt
of a sentencing reduction for acceptance of responsibility
would have been so ludicrous as itself to compromise the
public reputation of judicial proceedings.
lee at --, 129 S.Ct. at 1433 (emphasis added). ln this case, there are no
“countervailing factors” that would have made following the agreement “so
ludicrous as itself to compromise the public reputation of judicial
proceedings.” §ee lee
88
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defendants and prosecutors that is necessary to sustain plea
bargaining ~ an ‘essential’ and ‘highly desirable’ part of the
criminal process,” id¢ at -~, 129 S.Ct. at 1432 (emphasis added),
and that “[i}t is true enough that when the Government reneges on
a plea deal, the integrity of the system may be called into
guestion,” id$ at ``, 129 S.Ct. at 1433 (emphasis added). The
Court further recognized that “a breach is undoubtedly a violation
of the defendant's rights[.]” lQ; at ``, 129 S.Ct. at 1429
(citing Santobello, 404 U.S. at 262) (emphasis added)). Puckett
only clarified that for federal courts1 under the federal plain
error standard, “impair[ment of] substantial rights” is not
enough, as QlagQ requires that “a defendant ‘must make a specific
showing of prejudice[.]’” ld; at --, 129 S.Ct. at 1433 (quoting
QlanQ, 507 U.S. at 735) (emphasis added).” Contrary to Puckett,
under our law, plain error review is warranted where “the
integrity of the system” is compromised. §§§ iQ;
The prejudice standard enunciated in Puckett, and under
the federal standard generally, is different from our law,
w Many of our cases have not required such a “specific showing,” but
have noticed plain error because “substantial rights” were affected or denied.
See, e.g.¢ Puaoi, 78 Hawafi at l9l, 891 P.2d at 278 (holding that “[a]
conviction based on insufficient evidence of any element of the offense
charged is a violation of due process and thus constitutes plain error”
(emphasis added)); §Q§, 70 Haw. at 56, 760 P.2d at 676 (holding “that the
admission of evidence grounded on statements made in the course of plea
discussions was clearly {plain] error”); Mitchell, 2008 WL 4649426, at *l3
(holding that “[i]f the psychologist~client privilege was destroyed, the
exclusion/preclusion of Dr. Rhoades’ testimony would have seriously affected
the fairness and integrity of Mitchell's trial, entitling Mitchell to a new
trial to serve the ends of justice and prevent a denial of his fundamental
right to a fair trial” without reference to whether exclusion of testimony
prejudiced the outcome of the trial).
89
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requiring that the defendant “must demonstrate that [the error]
affected the outcome of the district court proceedings[,}” id;
(citation omitted) (emphases added), as opposed to requiring a
showing that there is “a reasonable possibility that [the] error
might have contributed to conviction[,]” Nichols, 111 Hawafi at
334, 141 P.3d at 981 (citation omitted) (emphases added). As
observed supra, this court flatly rejected adoption of the federal
standard in Nichols, and distinguished our standard, stating that,
“[i]n effect, we employ our HRPP Rule 52(b) discretion to correct
errors that are not harmless beyond a reasonable doubt and to
disregard those errors that are harmless beyond a reasonable
a@ubt." ial at 335, 141 P.3a at 982 (emphasis added). as the
Supreme Court acknowledged in Puckett, Santobello held that a
breach, at least where the unfulfilled promise acts as inducement
for pleading guilty, cannot be harmless. See Puckett, -- U.S. at
--, 129 S.Ct. at 1431 (acknowledging that Santobello addressed the
question of “[w]hether an error can be found harmless”).
Furthermore, Puckett departed from federal precedent on
breached plea agreements in significant respects, disavowing prior
precedent indicating that a breach negates the voluntariness of
the plea, and all but overturning Santobello’s holding that
“automatic reversal is warranted” where a plea agreement is
breached.” 1n that connection, the Supreme Court “disavow[ed]”
” The dissent “cannot agree that the Supreme Court ‘departed’ from
federal precedent[,]” dissenting opinion at 34, in Puckett, because
“Santobel1o was distinguishable from [Puckett] because the defendant in that
(continued...)
90
~=* son Pusr.:cmirion m was'r's HAWAI‘I arrests A.Nn PAc:cF:cc REPQRTER *=~*
its “suggestion in 1Mabry!, 467 U.S. [at} 509 . . . , that ‘when
the prosecution breaches its promise with respect to an executed
plea agreement, the defendant pleads guilty on a false premise,
and hence his conviction cannot stand.’” Puckett, ~- U.S. at ``,
129 S.Ct. at 1430 n.l (emphasis added). However, contrary to
Puckett, we continue to uphold this court’s decision in §gQn,
concluding that a breached plea agreement “raise[s] questions
concerning fairness in the State’s dealings with [the defendant]
and the voluntariness of his guilty pleas.” 66 Haw. at 349, 662
P.2d at 1116 (emphasis added). Additiona1ly, Santobello held that
“a constant factor is that when a plea rests in any significant
degree on a promise or agreement of the prosecutory so that it can
be said to be part of the inducement or consideration, §ugh
promise must be fulfilled[,]” Santobello, 404 U.S. at 262
(emphases added), a proposition that seems tenuous in the federal
courts following Puckett.
The dissent concludes that it “cannot agree with the
majority’s decision to erode Hawaii's plain error standard[.]”
“(...continued)
case preserved error[,]” ig; (citation omitted). Thus, the dissent attacks
the majority for “clinging to the statements of Santobello and the HawaiH
case law that followed it[.]” ;dL Again, despite the fact that the error is
subject to plain error review in this case, we cannot agree that Santobe11o
and the Hawai‘i cases on breached plea agreements are not relevant to whether
substantial rights were affected when the agreement was breached. Manifestly,
in Santobel1o and Adams, the breach resulted in a denial of due process, which
is why automatic reversal was required. The dissent’s position is that,
although a breach may constitute a denial of fundamental rights where it is
objected to, that same breach would ppg violate due process if the defendant
failed to object. We cannot agree with that view. Moreover, the dissent
conveniently ignores Puckett's explicit departure from Mabry v. Johnson, 467
U.S. 504 (1984), which conflicts with Yoon.
91
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Dissenting opinion at 34 (emphasis added). But, the “ero{sion]”
that the dissent refers to appears to relate to the inapplicable
federal standard, and Puckett is significantly different from the
Hawafi plain error standard.
Xlll.
A.
The dissent argues that, in the cases cited by
Petitioner, “the prosecution’s sentencing statements were made
despite promising to stand silent on the issue, whereas, here, the
prosecution’s statements addressed the sentencing factors as
permitted under the plea agreement.” ;d; at 35 n.13 (emphases in
original).
As to all of its arguments, see id; at 35~39, this
contention is baseless because, as observed supra, when the
assault was characterized by the prosecution as, i4§4,
“bruta1ity,” the prosecution had already agreed on the sentence to
be imposed via the plea agreement and the only thing left to
decide was whether the DANC plea was to be granted or not and, as
to that question, the prosecution had promised to take no
position. Hence, the prosecution’s arguments regarding
“sentencing” were irrelevant to the punishment to be imposed and
in contravention of its “no position” promise, Merely because
some of the considerations that go to sentencing under HRS § 706-
606 are similar to those considered for the DANCP motion, did not
give the prosecution free rein to violate its promise under the
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guise that it was addressing the sentencing factors. See Adams,
76 HawaiH,at 413, 879 P.2d at 518 (stating that “to construe the
promise to permit the prosecution’s conduct would render the
Government’s promise practically meaningless, since it would allow
the Government to accomplish indirectly what it had promised not
to do directly” (quotation marks, brackets, and citation omitted)
(emphasis added)). lndeed, because the DANCP motion was the only
undecided element of the sentence, is presumably and precisely why
the prosecution’s obligation to stay silent on the DANCP was
incorporated into the agreement.”
B.
The dissent seemingly believes thatl because
Petitioner's counsel also made an argument related to the DANCP
motion, and because the court was also made aware of some of the
facts presented by the prosecution through other means, it makes
no difference that the prosecution’s comments may have influenced
the court. Other courts have rejected similar arguments,
recognizing the need for resentencing by a different judge,
despite the fact that other facts in the record supported the
“ The dissent does not argue that the prosecutor's statements were
irrelevant to the DANCP. 1nstead, the dissent argues that “{a] fair review of
the record does not show that the prosecution’s statements . . . affected
[Petitioner's] substantial rights[,]" because “[t]he court decided that, based
on the offense, as presented by both the prosecution and [Petitioner’s]
counsel, it could not . . . grant the DANCP motion.” Dissenting opinion at
38-39 (emphasis added). lt is difficult to discern how the dissent comes to
the conclusion that Petitioner's substantial rights were not affected, despite
conceding that the court’s decision was based, at least in part, on “the
offense, as presented by fl the prosecution[.]” §§§ iQ; at 38 (emphasis
added). '
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sentence, because the effect of the prosecutor's comments is
“difficult to erase”:
The effect of the government's breach of its commitment is
difficult to erase if the case remains before the same judge,
because the judge’s decision to deny the reduction was based
on his assessment of the facts. As the facts on remand will
be the same, regardless of the arguments advanced by the
[presentence report) and the government, it is likely that
the same judge would reach the same result as he reached
before. On the other hand, had the government adhered to its
commitment not to contest the defendant's request for a
two-level reduction, there is some likelihood that the judge
would never have given serious thought to denying it.
Resentencing before the same judge might therefore deprive
the defendant of the benefit he was promised in the plea
agreement.
United States v. Enriguez, 42 F.3d 769, 771-72 (2d Cir. 1994)
(emphases added). 1n that regard, the dissent attempts to parse
the court’s language, stating that, because the court said,
“although it could find the defendant has had no record for fifty-
one years, . . . [t]he use of ‘although’ to preface the fact that
[Petitioner] had no record for fifty-one years . . . signals that
the court recognized this fact as evidence to support the DANCP
motion.” Dissenting opinion at 37 (brackets omitted) (emphasis in
original).
But, that reasoning was precisely the reasoning urged by
the prosecutor for denying DANCP, when she essentially argued that
despite Petitioner’s lack of any criminal history, the nature of
the offense required that he currently suffer the punishment,
stating that “[h]e does not have a prior criminal record, but
this type of beating and brutality should not be accepted in
our society.” (Emphasis added.) The crux of the dissent’s
argument on this point seems to be that the court was aware of
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Petitioner's offense “because [Petitioner] was originally charged
"!//
with Abuse of a Family or Household Member[.3 Dissenting opinion
at 37. Based on the express agreement that was entered into in
this case, however, it was ppg appropriate for the prosecution to
make statements that bore on the question of whether Petitioner’s
DANCP motion should be granted, which, at that juncture, was the
§Qle issue to be determined. As noted before, the court’s
reasoning as to why the DANCP motion should not be granted
directly reflected the rationale proffered by the prosecution.”
C.
Several courts have recognized that it is virtually
impossible for a reviewing court to determine whether the
sentencing court’s judgment was in fact influenced by improper
factors. For example, in State v. Dimmitt, 665 N.W.2d 692, 697
(N.D. 2003), the Supreme Court of North Dakota “conclude[d] [the
defendant] has shown a manifest injustice requiring that he be
afforded an opportunity to withdraw his guilty plea[,]” based on
“the State's failure to make the agreed upon recommendation,”
because “[i]t is constitutionally impermissible to hold a
defendant to his negotiated plea when the promises upon which it
was based were not performed.” That court recognized that “jil;
is not possible, under the circumstances, to know whether the
sentencing judge was influenced by the State's recommendation of a
” Notably, the dissent never states that the prosecutor's statements
had no impact on the court’s decision, and, in fact, as stated supra, seems to
concede that they did. See dissenting opinion at 38.
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ten year, rather than a five year, term of imprisonment.” lQ$
(emphasis added).
Based on the difficulty that is often involved in
discerning which sources of information ultimately contributed to
a sentencing court’s decision, the Seventh Circuit has formulated
a standard requiring that “[a] petitioner need only show it is
‘not improbable that the trial judge was influenced by improper
factors in imposing sentence.’” United States. v. Barnes, 907
F.2d 693, 696 (7th Cir. l990) (emphases added). In Barnes, the
Seventh Circuit Court concluded that
[t]he district court’s comments at sentencing raise
sufficient doubts in our mind whether it imposed its sentence
wholly without regard to the hearsay statements of the
confidential informant. Granted, we cannot be sure that
these statements influenced Judqe Duff’s sentencing
determinations, but given the closeness of this question -
and the relatively low standard, under the law of this
circuit, by which Barnes must prove his case ~ we vacate and
remand so that Barnes may have an opportunity to challenge
these statements. 7
ld4 at 696-97 (emphases added). See also United States v. Robin,
545 F.2d 775, 779 (2d Cir. l976) (holding that “[w]here there is a
possibility that sentence was imposed on the basis of false
information or false assumptions concerning the defendant, an
appeal will lie to this Court and the sentence will be vacated[,]”
and noting that “[alctual reliance need not be shown: ‘Here it is
impossible to determine from the judge’s remarks in imposing
sentence . . . whether he was at least in part influenced’”
(quoting McGee v. United States, 462 F.2d 243, 245-46, 247 (2d
Cir. l972)) (footnote omitted) (emphases added)); State v.
Rodgers, 655 P.2d l348, l359 (Ariz. App. l982) (“remand[ing] for
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resentencing proceedings” because “viewing the sentencing as a
whole, it is impossible to speculate regarding the effect of the
legal error on the trial judge’s sentencing decision as to each of
the convictions” (emphasis added)).
Xl\].
Based on the foregoing, the ICA’s judgment is reversed,
the sentence of the court is vacated, and the case is remanded for
resentencing before a different judge.
naya@n Aiuii far
petitioner/defendant-
appellant_
Justine M. Hura, Deputy
Prosecuting Attorney, Qa”v€'b“H3‘q\'
County of Maui
(Richard Minatoya,
Deputy Prosecuting
Attorney, County of
Maui also appearing)
for respondent/plaintiff-
appellee.
97