State v. Ayres Jr. ( 2021 )

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
27-APR-2021
08:03 AM
Dkt. 95 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
STATE OF HAWAI#I, Plaintiff-Appellee,
v.
JOAQUIN AYRES JR., Defendant-Appellant
APPEAL FROM THE DISTRICT COURT OF THE FIFTH CIRCUIT
(CASE NO. 5DTC-16-000749)
SUMMARY DISPOSITION ORDER
(By: Leonard, Presiding Judge, Hiraoka and Nakasone, JJ.)
Defendant-Appellant, Joaquin Ayres, Jr. (Ayres),
appeals from the December 15, 2016 Judgment and Notice of Entry
of Judgment entered by the District Court of the Fifth Circuit
(District Court).1 In the Amended Complaint2 filed May 31, 2016,
Plaintiff-Appellee State of Hawai#i (State) charged Ayres with a
misdemeanor offense of Driving Without a Valid Driver's License
(DWOL) in violation of Hawaii Revised Statutes (HRS) §§ 286-102
1
The Honorable Sara L. Silverman presided.
2
The Amended Complaint alleges that Ayres:
[D]id intentionally, knowingly, or recklessly operate a
motor vehicle without first being appropriately examined
and duly licensed as a qualified driver of that category
of motor vehicle, thereby committing the offense of Driving
Without License, as a misdemeanor, in violation of [HRS §]
286-102. JOAQUIN AYRES JR. is subject to sentencing in
accordance with [HRS §] 286-136(b) where JOAQUIN AYRES JR.
has two or more prior convictions for the same offense in
the five-year period preceding the instant offense.
(Emphases in original).
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(2007 & Supp. 2015) and 286-136(b) (2007).3 Following a jury-
waived trial, Ayres was convicted as charged of DWOL as a
misdemeanor for having two or more prior convictions, and
sentenced as a repeat DWOL offender to 90 days in jail, a $55
Crime Victim Fee, a $7 Driver Education Assessment Fee, and a $60
Internet Crimes Against Children (ICAC) fee. Ayres objected to
the ICAC fee. The District Court stayed Ayres' jail sentence
pending this appeal, which Ayres timely filed.4
On appeal, Ayres contends that: (1) the Amended
Complaint was defective; (2) the District Court erroneously
admitted evidence of Ayres' driver's license record and two prior
DWOL citations in violation of the hearsay rule and the
confrontation clause; (3) there was insufficient evidence of
Ayres' two prior DWOL convictions to support Ayres' conviction as
a repeat DWOL offender under HRS § 286-136(b); (4) Ayres' trial
counsel was ineffective for failing to object to the admission of
Ayres' prior DWOL citations into evidence and for failing to
challenge the defective complaint; and (5) the ICAC fee was a
"fine" that violated HRS § 706-641, and Ayres' rights to
substantive due process and equal protection under the federal
and state constitutions.5
3
HRS § 286-102(a) provides that no person "shall operate any
category of motor vehicles listed in this section without first being
appropriately examined and duly licensed as a qualified driver of that
category of motor vehicles."
HRS § 286-136(b) provides:
(b) Any person who is convicted of violating section
286-102 . . . shall be subject to a minimum fine of $500
and a maximum fine of $1,000, or imprisoned not more than
one year, or both, if the person has two or more prior
convictions for the same offense in the preceding five-year
period.
4
Because Ayres challenged the constitutionality of the ICAC fee,
the Attorney General of Hawai#i filed an amicus brief pursuant to Hawai#i Rules
of Appellate Procedure (HRAP) Rules 44 and 28(g).
5
As to Ayres' points of error regarding the ICAC fee, we note that
none of the arguments regarding the ICAC fee were made to the District Court.
Ayres' trial counsel merely lodged an objection to the ICAC fee by stating
"[o]ver objection still from counsel with regards to the ICAC fee, Your
Honor." None of the arguments raised on appeal were made below, and thus,
2
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Upon careful review of the record and the briefs
submitted by the parties, and having given due consideration to
the arguments advanced and issues raised by the parties, as well
as the relevant statutory and case law, we resolve Ayres' points
of error as follows, and affirm in part and vacate in part.
The following facts were adduced at the December 15,
2016 trial. On April 28, 2016, Ayres was driving on Nawiliwili
Road, County of Kaua#i, when he was stopped by Kaua#i Police
Department Officer Aaron Lester (Officer Lester), who had
observed expired "tags and safety." Officer Lester asked Ayres
for his driver's license, registration, and insurance, none of
which Ayres possessed. Ayres showed only a State ID card. The
officer obtained Ayres' date of birth, "[X-XX]-56," from his
State ID. Officer Lester issued citations for DWOL and No Motor
Vehicle Insurance Policy.6 In addition to Officer Lester, the
State presented testimony from Michael Drake, County of Kaua#i
Chief Driver's License Examiner and Records Custodian (Custodian
of Records). The Custodian of Records presented State's Exhibit
P1, a certified copy of a driver's license record for "Joaquin
Ayres Jr." and testified as to the content and maintenance of
records such as Exhibit P1. The District Court admitted the
following State's exhibits into evidence:
P1 A certified driver's license status record on
file with the County of Kauai Department of
Finance for "Joaquin Costa Ayres, Jr."
P3 A DWOL citation for 5DTC-13-002288 dated
September 10, 2013.
they are waived. See State v. Moses, 102 Hawai#i 449, 456, 77 P.3d 940, 947
(2003) ("As a general rule, if a party does not raise an argument at trial,
that argument will be deemed to have been waived on appeal; this rule applies
in both criminal and civil cases."); State v. Hoglund, 71 Haw. 147, 150, 785
P.2d 1311, 1313 (1990) ("Generally, the failure to properly raise an issue at
trial level precludes a party from raising that issue on appeal.").
6
The charge of having no motor vehicle insurance in violation of
HRS § 431:10C-104(a) was dismissed at trial.
3
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P4 A certified judgment of a DWOL conviction for
5DTC-13-002288 dated July 1, 2014.
P5 A DWOL citation for 5DTC-14-002825 dated June 4,
2014.
P6 A certified judgment of a DWOL conviction for
5DTC-14-002825 dated September 10, 2015.
State's Exhibit P1, the driver's license record, was admitted
under seal with no objection. However, Ayres objected to the
admission of State's Exhibits P3, P4, P5, and P6 because they did
not prove that the person referenced in those documents was
Ayres. Ayres did not testify or present any evidence. The
District Court found Ayres guilty.
The Amended Complaint was Not Defective
Ayres contends, as plain error, that the Amended
Complaint was insufficient because it failed to adequately
apprise Ayres of the "case against him." Ayres claims that he
was misled to believe that "he was being accused of violating HRS
§ 286-102 twice in the five years preceding the offense for which
he was being tried, and, at trial, the State sought to convict
him based on alleged convictions for violating HRS § 286-1327 and
HRS § 286-102." (footnote added). In other words, Ayres believed
the evidence at trial did not correspond to what the State had
charged. This contention is without merit.
Under the Motta/Wells liberal constitution standard of
review applicable to defective charge challenges raised for the
first time on appeal, a charge is presumed to be valid. State v.
Kauhane, 145 Hawai#i 362, 370, 452 P.3d 359, 367 (2019) (citing
State v. Wheeler, 121 Hawai#i 383, 399-400, 219 P.3d 1170, 1186-
87 (2009); State v. Motta, 66 Hawai#i 89, 657 P.2d 1019 (1983);
State v. Wells, 78 Hawai#i 373, 894 P2d 70 (1995)). Under the
7
HRS § 286-132 (2007), Driving While License Suspended or Revoked
provides:
Except as provided in section 291E-62, no resident or
nonresident whose driver's license, right, or privilege to
operate a motor vehicle in this State has been canceled,
suspended, or revoked may drive any motor vehicle upon the
highways of this State while the license, right, or
privilege remains canceled, suspended, or revoked.
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Motta/Wells rule, a conviction will be vacated only if a
defendant can show "(1) that the charge cannot reasonably be
construed to allege a crime; or (2) that the defendant was
prejudiced." Id. (citing Motta, 66 Haw. at 91, 657 P.2d at
1020).
In this case, the Amended Complaint sought sentencing
as a repeat offender because Ayres had two or more convictions
for the same offense (i.e. DWOL), within the last five years.
See HRS § 286-102, HRS § 286-136(b). The Amended Complaint
clearly apprised Ayres that he was being charged with DWOL under
HRS § 286-102 and that the State was seeking repeat DWOL offender
sentencing as a misdemeanor, under HRS § 286-136(b). The Amended
Complaint properly alleged a crime citing the pertinent statute,
and it also gave notice that repeat offender sentencing was being
sought, citing the sentencing provision in HRS § 286-136(b).
Thus, there was no Motta/Wells violation in the language of the
Amended Complaint. See Kauhane, 121 Hawai#i at 370, 452 P.3d at
367.
Consistent with the State's allegation in the Amended
Complaint that Ayres had two or more prior convictions for the
same HRS § 286-102 DWOL offense, the State introduced evidence at
trial to prove that Ayres had two prior DWOL convictions, through
Exhibits P3, P4, P5 and P6. Although Exhibit P1, the driver's
license record, showed a prior conviction for Driving While
License Suspended or Revoked under HRS § 286-132 and no prior
DWOL convictions, the State also adduced evidence of two prior
DWOL convictions through Exhibits P3, P4, P5 and P6. The
evidence at trial did correspond to the repeat DWOL offense the
State had charged, and there was no surprise as Ayres claims.
Thus, there was no prejudice to Ayres under the Motta/Wells rule.
See id. Ayres has not overcome the Motta/Wells presumption of
validity that we apply to our review of the Amended Complaint
that he challenges for the first time on appeal. See id. Ayres'
contention that the State's Amended Complaint was defective is
without merit.
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Exhibit P1, the Driver's License Record, was
not Erroneously Admitted
Ayres contends that the driver's license record,
Exhibit P1, was erroneously admitted in violation of the hearsay
rule, the confrontation clause, and due to insufficient
foundation. This contention is waived. Ayres claims that the
error regarding admission of hearsay "was preserved at trial in
this matter" and provides a citation to the record.8 This was
not accurate, however, because the record shows that no objection
was lodged to Exhibit P1 at trial on hearsay grounds.9 See
8
Ayres did not include a quotation of the grounds urged below
regarding the objection, which is required under HRAP Rule 28(b)(4)(A).
9
The trial transcript reflects the following:
[PROSECUTOR]: Your Honor, at this time, the State is
requesting to move State's Exhibit P1 into evidence. It is
a certified copy of the documents from driver's licensing.
THE COURT: Yes.
Ms. [defense counsel].
[DEFENSE COUNSEL]: Your Honor, first, if you do
accept, we would ask that it be redacted, there is some
personal information.
[PROSECUTOR]: Yes.
[DEFENSE COUNSEL]: That I would not want out.
THE COURT: Specifically?
[DEFENSE COUNSEL]: ID, especially the SS.
THE COURT: Is it in there?
[DEFENSE COUNSEL]: Yes.
[PROSECUTOR]: Yes, it is.
THE COURT: Yes, it is. Okay.
[PROSECUTOR]: In the alternative, State would not
object to it being received under seal.
THE COURT: P1 will be received into evidence under
seal, given that it concerns certain confidential
information.
[DEFENSE COUNSEL]: Thank you, Your Honor.
There was no objection to the admission of Exhibit P1.
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Hawai#i Rules of Evidence (HRE) Rule 103(a)(1) (requiring timely
objection and specific ground of objection); Hoglund, 71 Haw. at
150, 785 P.2d at 1313.
Ayres does acknowledge in his point of error that his
contentions regarding the confrontation clause violation and
insufficient evidentiary foundation for the business records
exception were not preserved and requests plain error review
"with an eye toward Mr. Ayres' allegations of ineffective
assistance of counsel." While Ayres presents argument on why the
evidentiary foundation for Exhibit P1 was insufficient, no
argument is made showing why or how this unpreserved objection
meets the standard for plain error review on appeal. No argument
is made regarding the claimed confrontation clause violation
caused by the admission of Exhibit P1. Accordingly, we do not
address Ayres' contentions as to Exhibit P1. See HRAP Rule
28(b)(7).
Exhibits P3 and P5, Ayres' Prior DWOL Citations,
Were Erroneously Admitted in Violation of the
Confrontation Clause
Ayres contends that the two prior DWOL citations,
Exhibits P3 and P5, were erroneously admitted in violation of the
hearsay rule, confrontation clause, and due to insufficient
foundation.10 Ayres claims that Exhibits P3 and P5 were
"testimonial," and thus, Ayres "had the right to confront the
10
Similar to the previous point of error, Ayres claims the error
regarding admission of hearsay "was preserved at trial" as to Exhibits P3 and P5.
This was not accurate. Exhibit P3 was the citation in 5DTC-13-002288, and
Exhibit P4 was a certified copy of the judgment for 5DTC-13-002288. When the
State moved to admit these exhibits, trial defense counsel stated, "object for
the record that they don't prove that the person that was cited on this day and
with this conviction is the actual person that is on trial." This same
"identification" objection was lodged to Exhibits P5 and P6, the citation and
certified judgment for 5DTC-14-002825. While no hearsay objections were raised
below as to Exhibits P3 and P5, see HRE Rule 103(a)(1), we address this issue
infra in the context of testimonial hearsay and Ayres' constitutional right to
confrontation.
As to Ayres' point of error that there was insufficient foundation
for Exhibits P3 and P5, no argument is presented, and we will not address it.
See HRAP Rule 28(b)(7).
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authors of those documents" under the Sixth Amendment.11 Ayres
argues that the admission of the documents "constituted a plain
error affecting a substantial right" and was not harmless beyond
a reasonable doubt, since the District Court "considered and
relied upon those exhibits when it convicted and sentenced" Ayres
for a misdemeanor, as a repeat DWOL offender. Citing State v.
Souleng, 134 Hawai#i 465, 471, 342 P.3d 884, 890 (App. 2015),
which applied Melendez-Diaz v. Massachusetts, 557 U.S. 305, 321-
22 (2009), Ayres argues that "police reports generated by law
enforcement officials . . . do not qualify as business or public
records" because they are created for use in court and are
testimonial. The State does not advance any argument that the
citations in Exhibits P3 and P5 are not testimonial. Rather, the
State contends that "[e]ven assuming that the trial court plainly
erred by admitting Exhibits P3 and P5 . . . in violation of the
Confrontation Clause, sufficient evidence was nevertheless
admitted to support the court's finding of two prior DWOL
convictions[.]"
We conclude that Ayres' contention has merit. Exhibits
P3 and P5 are prior DWOL citations given to an individual bearing
the same name as Ayres. The exhibits were offered for their
truth, i.e., to establish that an individual with the same name
and the same identifying information as Ayres, was cited for DWOL
under HRS § 286-102, on the date listed in each citation, under
each respective citation number. Thus, the citation, authored by
a citing officer as the declarant, constituted hearsay under HRE
Rule 801. The prior DWOL citations in this case contained
features of a charging instrument, probable cause affidavit, and
11
The confrontation clause of article I, section 14 of the Hawai#i
Constitution states: "In all criminal prosecutions, the accused shall enjoy the
right . . . to be confronted with the witnesses against the accused . . . ."
The virtually identical federal provision provides: "In all
criminal prosecutions, the accused shall enjoy the right . . . to be confronted
with the witnesses against him . . . ." U.S. Const. amend. VI.
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a police report. Each citation is entitled "Complaint,"12 and
includes the citing officer's sworn statement of the defendant's
information, "Vehicle Information," "Law(s) Violated and Traffic
Crime(s) Committed," details regarding the offense(s) charged
including the "Officer's Statement of Facts," both the officer's
and the defendant's signatures, and a summons stating the
district court's location, and the date and time for the court
appearance.
The prior DWOL citations in Exhibits P3 and P5
contained testimonial hearsay triggering Ayres' right to confront
the officers who issued the citations under the federal
confrontation clause. See Crawford v. Washington, 541 U.S. 36,
42 (2004) (holding that the confrontation clause barred the
"admission of testimonial statements of a witness who did not
appear at trial unless [the witness] was unavailable to testify,
and the defendant had a prior opportunity for cross-
examination."); State v. Fields, 115 Hawai#i 503, 168 P.3d 955(2007) (applying Crawford to testimonial hearsay statements).
"Testimonial" means a "solemn declaration or affirmation made for
the purpose of establishing or proving some fact." Crawford, 541
U.S. at 51. "Testimonial" statements include "statements that
were made under circumstances which would lead an objective
witness reasonably to believe that the statement would be
available for use at a later trial . . . ." Id. at 52. To the
extent "the primary purpose" of the prior citations in Exhibits
P3 and P5 "is to establish or prove past events potentially
relevant to later criminal prosecution," they are testimonial.
12
The citations in Exhibits P3 and P5 contain the following standard
form language at the very top:
COMPLAINT: The undersigned officer, on behalf of Plaintiff
State of Hawai#i, declares under penalty of law that he/she
has probable cause to believe and does believe that on the
date, at the time, and under the conditions indicated, the
named defendant did commit the criminal offense(s) noted
below and that the same is true and correct to the best of
his/her knowledge and belief.
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Fields, 115 Hawai#i at 514, 168 P.3d at 966 (quoting Davis v.
Washington, 547 U.S. 813, 822 (2006)).
"[T]he fact that the defendant had the identical name
with an individual who had been previously convicted was
insufficient, in and of itself, to authorize application of the
enhanced punishment statute. Other evidence tying the defendant
to the previously convicted individual is required." State v.
Pantoja, 89 Hawai#i 492, 495, 974 P.2d 1082, 1085 (App. 1999).
In this case, the State could not rely on Exhibit P1 to establish
the prior DWOL convictions because they were not listed in that
document. Nor could the State rely on the certified judgments
for the prior DWOL convictions in Exhibits P4 and P6 to establish
the identity of the individual therein as Ayres, because no other
identifying information such as date of birth or social security
number, appeared in those documents. The underlying citations
(Exhibits P3 and P5) for the DWOL judgments in Exhibits P4 and
P6, however, did contain identifying information necessary for
the State to prove the common identity of the "Joaquin Ayres,
Jr." named in all of the documents.
Thus, the prior DWOL citations in Exhibits P3 and P5
were used, not in the prosecutions arising out of those
citations, but in a subsequent criminal prosecution to establish
the identification necessary for repeat DWOL offender sentencing.
Under these circumstances, Exhibits P3 and P5 did constitute
testimonial hearsay, and the declarants were required to be
produced and subject to cross-examination. See Fields, 115
Hawai#i at 503, 168 P.3d at 955. The officers who wrote the
citations in Exhibits P3 and P5 did not testify, and were not
shown to be unavailable. The District Court plainly erred in
admitting Exhibits P3 and P5 without affording Ayres an
opportunity to cross-examine the officers who wrote those
citations, consistent with Ayres' substantial constitutional
right to confrontation. See Crawford, 541 U.S. 36; Fields, 115
Hawai#i 503, 168 P.3d 955.
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Without Exhibits P3 and P5, There was Insufficient
Evidence of Ayres' Two Prior DWOL Convictions
Ayres contends that because Exhibits P3 and P5 were
erroneously admitted into evidence, there was insufficient
evidence to convict Ayres of misdemeanor DWOL for having two or
more prior DWOL convictions. This contention has merit.13
"[W]hen an enhanced punishment for a particular
criminal offense is sought because of a prior conviction, the
present defendant must be the same person who was previously
convicted." Pantoja, 89 Hawai#i at 494, 974 P.2d at 1084(citation omitted). Thus, "proof of such identity is an
essential part of the case for the prosecution." Id. (citation
and brackets omitted). Under HRS § 286-136 and the Amended
Complaint, the State was required to prove that Ayres had at
least two prior DWOL convictions in the five-year period
preceding the April 28, 2016 DWOL charge in this case. Because
we have held that Exhibits P3 and P5 were improperly admitted, we
cannot consider them in determining whether there was sufficient
evidence to support Ayres' conviction as a repeat DWOL offender.
See State v. Wallace, 80 Hawai#i 382, 414 n.30, 910 P.2d 695, 727
n.30 (1996). Without the citations, Exhibits P1, P4 and P6,
which consist of Ayres' driving record and two certified
judgments of DWOL convictions bearing the same name as Ayres –-
constitute the remaining evidence of two prior DWOL convictions
against Ayres. This evidence, as explained infra, does not
13
We reject the State's request that we take "judicial notice of the
fact that a 'party ID' on court-issued Judgments of Conviction and dockets are
unique to a single person" and that Ayres' "party ID in 5DTC-XX-XXXXXXX is
69861." The meaning of a "party ID" in the court's database is not a fact
generally known or capable of accurate and ready determination under HRE Rule
201(b) and thus, judicial notice is inappropriate. See State v. Kwong, No.
SCWC-XX-XXXXXXX, 2021 WL 822541, at *10 (Haw. Mar. 4, 2021) (facts to be
noticed must be "commonly known or easily verifiable") (citation omitted).
We also reject the State's request that we take judicial notice of
the underlying District Court audio-visual recordings for Exhibits P3 and P5,
to match Ayres' identity to the prior convictions. The State did not ask the
District Court to take judicial notice of these recordings or the "party ID"
discussed supra. Appellate courts "rarely take judicial notice of acts
presented for the first time on appeal[.]" Id. (citation omitted). We
decline to do so in this appeal.
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sufficiently establish that Ayres was the same individual
identified in Exhibits P4 and P6, the two prior DWOL judgments.
See Pantoja, 89 Hawai#i at 494, 974 P.2d at 1084.
"Unless conceded by the defendant, the State is
required to show, by evidence satisfactory to the court, the fact
of the defendant's prior conviction. Thus, the State must
satisfactorily identify the defendant being sentenced to be the
same person who was previously convicted." Pantoja, 89 Hawai#i
at 495, 974 P.2d at 1085 (citation omitted). In State v. Nishi,
9 Haw. App. 516, 528, 852 P.2d 476, 482, reconsideration granted,
9 Haw. App. 660, 853 P.2d 543 (1993), this court held that where
the prosecution failed to submit any evidence showing that Nishi
was the same person who had been previously convicted as shown on
the corrected copy of a traffic abstract, it was error to
sentence the defendant as a second-time offender.
Although we have stated above that a certified copy of a
traffic abstract is satisfactory evidence to establish a
prior No No-Fault Insurance conviction, the record
discloses no evidence to tie Defendant with the Michael
Nishi of the traffic abstract. The State presented no
evidence of Defendant's driver's license number or social
security number or birth date that could be compared with
information appearing on the traffic abstract.
Id. at 528, 852 P.2d at 482.
In Pantoja, this court affirmed the sentence of
defendant as a repeat prostitution offender, finding there was
sufficient evidence in the record to establish beyond a
reasonable doubt, that defendant had a prior prostitution
conviction. Pantoja verified her name and admitted that she was
arrested by the officer for the instant offense. 89 Hawai#i at
495-96, 974 P.2d at 1085-86. The Pantoja court noted that the
certified abstract contained not only defendant's name, but also
listed physical identifying information (height, weight) about
the individual in the abstract. Id. at 496, 974 P.2d at 1086.
The Pantoja court noted that the district court had the
opportunity to evaluate whether defendant fit the physical
description of the "Omi Pantoja" referred to in the abstract.
Id. In addition, the abstract set forth the details and
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disposition of Pantoja's prior prostitution conviction, and it
also referred to the current offense. Id. at 496 n.4, 974 P.2d
at 1086 n.4.
Most recently, in State v. Kam, 134 Hawai#i 280, 339
P.3d 1081 (App. 2014), we held that the State's evidence of a
certified traffic abstract reflecting a prior 2011 conviction for
Operating a Vehicle Under the Influence of an Intoxicant (OVUII)
together with a certified copy of the judgment for the conviction
that was reflected in the abstract, along with a police report
and administrative driver's license revocation documents that
also were in evidence, all showing the same name, residence
address, date of birth, and last four digits of the social
security number as Kam, were sufficient to establish Kam's prior
OVUII conviction, for the current offense of operating a vehicle
after Kam's license had been suspended or revoked for OVUII.
In this case, the evidence sufficiently establishes
that Ayres is the same person in Exhibit P1, the driver's license
record, since the officer testified to Ayres' date of birth,
which matched the date in Exhibit P1. State's Exhibit P1,
however, reflects a conviction for Driving While License
Suspended or Revoked under HRS § 286-132, and does not reflect
any prior convictions for DWOL under HRS § 286-102. Therefore,
this situation is unlike any of the precedent described supra in
Nishi, Pantoja and Kam, where the prior convictions the State was
required to prove, were listed in the criminal abstract or
traffic abstract. State's Exhibits P4 and P6 are certified
copies of judgments showing a DWOL conviction for someone with
the same name as Ayres, however, they contain no other
identifying information, besides the common name. The DWOL
judgments of conviction in Exhibits P4 and P6 do not appear in
Ayres' driver's license record in Exhibit P1. Because the
evidence fails to establish that Ayres had two prior DWOL
convictions in the preceding five years, the District Court erred
in sentencing Ayres for a misdemeanor as a repeat DWOL offender
under HRS § 286-136, and we vacate Ayres' sentence. See Pantoja,
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89 Hawai#i 492, 974 P.2d 1082; Nishi, 9 Haw. App. 516, 852 P.2d
476.
Ineffective Assistance of Counsel
Ayres contends that trial counsel's failure to raise
potentially meritorious confrontation clause and hearsay
objections and to challenge the State's defective amended
complaint constituted ineffective representation that violated
his due process and equal protection rights. Ayres argues that
"if these objections were raised, it is at least 'possible' that
the District Court would have refused to sentence Mr. Ayres as a
misdemeanant[.]" Based on our resolution of the case, we need
not address this point of error.
Therefore, IT IS HEREBY ORDERED that the Judgment and
Notice of Entry of Judgment filed on December 15, 2016 in the
District Court of the Fifth Circuit, is affirmed in part with
respect to Ayres' conviction for DWOL, and vacated in part as to
Ayres' sentence, and we remand for resentencing as a petty
misdemeanor under HRS § 286-136(a), in accordance with this
Summary Disposition Order.
DATED: Honolulu, Hawai#i, April 27, 2021.
On the briefs:
/s/ Katherine G. Leonard
Matthew Mannisto Presiding Judge
(Law Office of Matthew
Mannisto) /s/ Keith K. Hiraoka
for Defendant-Appellant Associate Judge
Tracy Murakami /s/ Karen T. Nakasone
Deputy Prosecuting Attorney Associate Judge
County of Kauai
for Plaintiff-Appellee
14