State v. Alesana ( 2021 )


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  •   NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
    Electronically Filed
    Intermediate Court of Appeals
    CAAP-XX-XXXXXXX
    29-APR-2021
    07:59 AM
    Dkt. 48 SO
    NO. CAAP-XX-XXXXXXX
    IN THE INTERMEDIATE COURT OF APPEALS
    OF THE STATE OF HAWAI#I
    STATE OF HAWAI#I, Plaintiff-Appellee, v.
    JOHN ALESANA, Defendant-Appellant
    APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT
    (HONOLULU DIVISION)
    (CASE NO. 1DTC-19-027882)
    SUMMARY DISPOSITION ORDER
    (By: Ginoza, Chief Judge, Leonard and Hiraoka, JJ.)
    Defendant-Appellant John Alesana (Alesana) appeals from
    the Notice of Entry of Judgment and/or Order and Plea/Judgment
    filed on August 1, 2019 (Judgment), in the District Court of the
    First Circuit, Honolulu Division (District Court).1/
    Alesana was convicted of Operating a Vehicle After
    License and Privilege Have Been Suspended or Revoked for
    Operating a Vehicle Under the Influence of an Intoxicant (OVLPSR-
    OVUII), in violation of Hawaii Revised Statutes (HRS) § 291E-
    1/      The Honorable Ann S. Isobe presided.
    NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
    62(a)(1) and/or (a)(2) (Supp. 2018), and sentenced pursuant to
    (c)(1).2/
    Alesana raises the following points of error on appeal:
    (1)(a) the District Court erred or plainly erred by admitting
    Exhibit 3, a Notice of Administrative Revocation, as well as
    Officer Jooney Hnong's (Officer Hnong) testimony relating to his
    advisement about the content of Exhibit 3 to Alesana because it
    was irrelevant; (1)(b) the District Court erred or plainly erred
    by admitting Exhibit 1, a Notice of Administrative Review
    2/    HRS § 291E-62 states in relevant part:
    § 291E-62 Operating a vehicle after license and privilege have
    been suspended or revoked for operating a vehicle under the influence of an
    intoxicant; penalties. (a) No person whose license and privilege to operate a
    vehicle have been revoked, suspended, or otherwise restricted pursuant to this
    section or to part III or section 291E-61 or 291E-61.5, or to part VII or part
    XIV of chapter 286 or section 200-81, 291-4, 291-4.4, 291-4.5, or 291-7 as
    those provisions were in effect on December 31, 2001, shall operate or assume
    actual physical control of any vehicle:
    (1)   In violation of any restrictions placed on the person's
    license;
    (2)   While the person's license or privilege to operate a vehicle
    remains suspended or revoked;
    . . . .
    (c)   Any person convicted of violating this section shall be
    sentenced as follows without possibility of probation or suspension of
    sentence:
    (1)   For a first offense, or any offense not preceded within a
    five-year period by conviction for an offense under this
    section, section 291E-66, or section 291-4.5 as that section
    was in effect on December 31, 2001:
    (A)   A term of imprisonment of not less than three
    consecutive days but not more than thirty days;
    (B)   A fine of not less than $250 but not more than $1,000;
    (C)   Revocation of license and privilege to operate a
    vehicle for an additional year; and
    (D)   Loss of the privilege to operate a vehicle equipped
    with an ignition interlock device, if applicable[.]
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    Decision, because absent a showing it was received by Alesana, it
    was irrelevant to establish he was aware his license was revoked
    and, thus, he did not intentionally, knowingly, or recklessly
    disregard the risk his license or privilege to operate a vehicle
    remained revoked; (1)(c) the District Court erred in relying upon
    Exhibit 2, Alesana's traffic abstract, because it was irrelevant
    to prove that he was aware his license was revoked and, thus, he
    did not intentionally, knowingly, or recklessly disregard the
    risk his license or privilege to operate a vehicle had been
    revoked; and (2) the District Court erred by relying on Exhibit 1
    because under HRS § 291E-34(c)(4) Alesana was not entitled to be
    present or represented at the administrative review hearing,
    therefore, it did not meet minimal due process requirements and
    could not be used to enhance his sentence from driving without a
    license to OVLPSR-OVUII.
    Upon careful review of the record and the briefs
    submitted by the parties, and having given due consideration to
    the arguments advanced and the issues raised by the parties, we
    resolve Alesana's points of error as follows:
    (1)   At trial, Alesana objected to the admission of
    Exhibits 1, 2, and 3 based on lack of foundation and/or violation
    of his confrontation right.    Alesana did not object to Officer
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    Hnong's testimony at trial.       On appeal, Alesana challenges the
    relevance of Exhibits 1, 2, and 3.3/
    Plain errors affecting substantial rights may be
    noticed although they were not brought to the attention of the
    court.   State v. Metcalfe, 129 Hawai#i 206, 224-25, 
    297 P.3d 1062
    , 1080-81 (2013).      "However, objections to the admission of
    incompetent evidence, which a party failed to raise at trial, are
    generally not subject to plain error review."           Id. at 225, 297
    P.3d at 1081 (citing, inter alia, State v. Uyesugi, 100 Hawai#i
    442, 464, 
    60 P.3d 843
    , 865 (2002) ("In the absence of an
    objection and/or proper record, the admission of the testimony
    and picture does not amount to plain error.")).            Here, this court
    declines to recognize plain error in the admission of Exhibits 1,
    2, and 3 and Officer Hnong's testimony.          The trier of fact may
    properly consider all admitted evidence to which there was no
    valid objection.     State v. Wallace, 80 Hawai#i 382, 410, 
    910 P.2d 695
    , 723 (1996) (quoting State v. Naeole, 
    62 Haw. 563
    , 570-71,
    
    617 P.2d 820
    , 826 (1980) ("It is the general rule that evidence
    to which no objection has been made may properly be considered by
    the trier of fact and its admission will not constitute ground
    for reversal.")).     Therefore, we conclude that the District Court
    3/    Although Alesana states on appeal that there was insufficient
    foundation to admit Exhibit 1, he argues, "Absent any further foundation to
    make it relevant, [Exhibit 1] remained irrelevant and the district court erred
    for admitting over defense counsel's foundation objection," and "Alesana
    incorporates herein by reference the first paragraph of Section IV.A1 supra on
    HRE Rules 401 and 402." Therefore, this court construes Alesana's objection
    to the admission of Exhibit 1 on appeal as a challenge to relevance.
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    did not err by considering Exhibits 1, 2, and 3 in determining
    whether Alesana was guilty of OVLPSR-OVUII.
    The remainder of Alesana's challenges to the admission
    of Exhibits 1, 2, and 3 are construed as a claim of insufficient
    evidence to convict him of OVLPSR-OVUII, in particular that the
    State failed to adduce sufficient evidence to demonstrate Alesana
    acted with the requisite state of mind with respect to the
    revocation of his license.
    When the evidence adduced in the trial court is
    considered in the strongest light for the prosecution, there was
    substantial evidence to convict Alesana of OVLPSR-OVUII.            See
    State v. Matavale, 115 Hawai#i 149, 157-58, 
    166 P.3d 322
    , 330-31
    (2007).   "When the state of mind required to establish an element
    of an offense is not specified by the law, that element is
    established if, with respect thereto, a person acts
    intentionally, knowingly, or recklessly."          HRS § 702-204 (2014).
    HRS § 291E-62 does not specify the state of mind required to
    establish any elements of the offense; thus, the State must prove
    Alesana acted intentionally, knowingly, or recklessly.4/
    "[G]iven the difficulty of proving the requisite state
    of mind by direct evidence in criminal cases, we have
    4/    "A person acts recklessly with respect to attendant circumstances
    when he consciously disregards a substantial and unjustifiable risk that such
    circumstances exist." HRS § 702-206(3)(b) (2014). "A risk is substantial and
    unjustifiable within the meaning of this section if, considering the nature
    and purpose of the person's conduct and the circumstances known to him, the
    disregard of the risk involves a gross deviation from the standard of conduct
    that a law-abiding person would observe in the same situation." HRS § 702-
    206(3)(d) (2014).
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    consistently held that proof by circumstantial evidence and
    reasonable inferences arising from circumstances surrounding the
    defendant's conduct is sufficient."       State v. Stocker, 90 Hawai#i
    85, 92, 
    976 P.2d 399
    , 406 (1999) (brackets, ellipsis, citation
    and internal quotation marks omitted).       "Thus, the mind of
    alleged offender may be read from his acts, conduct and
    inferences fairly drawn from all the circumstances."       
    Id.
    (citation and internal quotation marks omitted).
    Officer Brooke Carlbom (Officer Carlbom) testified that
    on March 28, 2019, she stopped Alesana on Kukui Street, which is
    a public way, street, road, or highway, in the City and County of
    Honolulu, State of Hawai#i, for failing to stop at a stop sign
    while he was operating a moped.       Alesana did not produce his
    driver's license as requested, instead he verbally told Officer
    Carlbom his first and last name, address, date of birth, and last
    four digits of his Social Security number, which she wrote
    directly onto the citation issued to Alesana.
    Office Hnong testified he arrested Alesana on May 29,
    2018, for Operating a Vehicle Under the Influence of an
    Intoxicant (OVUII) and driving without a license.       He verbally
    conveyed to Alesana some of the content of Exhibit 3, the Notice
    of Administrative Revocation, specifically that it would not
    serve as a temporary permit to drive because he did not have a
    driver's license to forward to the Administrative Driver's
    License Revocation Office (ADLRO) and was arrested for driving
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    without a license.   Alesana acknowledged that he understood, and
    he signed the fourth page of the Notice of Administrative
    Revocation in Officer Hnong's presence.      Officer Hnong also
    listed Alesana's address, last four digits of his Social Security
    number, and year of birth on the Notice of Administrative
    Revocation based on information Alesana provided.      The District
    Court found both officers' testimony credible.
    Exhibit 2, a traffic abstract, contains Alesana's first
    and last name, last four digits of his Social Security number,
    and date of birth, all of which match the information Alesana
    provided to Officer Carlbom and the citation issued to Alesana.
    Therefore, Alesana was adequately linked to the traffic abstract.
    See, e.g., State v. Davis, 133 Hawai#i 102, 122, 
    324 P.3d 912
    ,
    932 (2014); and see also State v. Nishi, 
    9 Haw. App. 516
    , 527,
    
    852 P.2d 476
    , 482 (1993).
    The traffic abstract lists an Administrative Review for
    John A. Alesana for Case ID 18203244D, noting a "Notice of Admin
    Revocation Alcohol" for the date 05/29/2018 and "ADLRO Sustained"
    with the date 06/04/2018.
    Exhibit 3, a Notice of Administrative Revocation,
    references "REPORT NO.:   18-203244" for "ALESANA, JOHN" and has
    the same address and last four digits of Alesana's Social
    Security number as the citation.       It also states the arrest date
    as "5-29-18."   The Notice of Administrative Revocation was
    adequately linked to Alesana by the traffic abstract as well as
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    Officer Hnong's testimony that Alesana signed the document.       The
    Notice of Administrative Revocation stated that Alesana was the
    Respondent and that "You are the Respondent in this
    administrative proceeding.    Pursuant to the Administrative
    Revocation Process, Chapter 291E, Part III, Hawai#i Revised
    Statutes ('HRS')[.]"   It also stated it was not a temporary
    permit because Alesana was unlicensed or his license expired.
    Exhibit 1, a Notice of Administrative Review Decision
    dated June 4 2018, references John A. Alesana, Date of Arrest of
    May 29, 2018, and Arrest Rpt. No. 18-203244, and the same address
    and last four digits of Alesana's Social Security number as the
    citation.   Therefore, the Notice of Administrative Review
    Decision was adequately linked to Alesana by the traffic abstract
    and citation.   The Notice of Administrative Review Decision
    indicates a 'Date of Decision and Mailing' of June 4, 2018, with
    Alesana's name and address appearing immediately thereafter, and
    stated Alesana's administrative revocation was sustained and his
    license and privilege to operate a vehicle were revoked from June
    29, 2018 to June 28, 2019.    (Emphasis added).
    On March 29, 2019, Alesana operated or assumed actual
    physical control of a moped, which is included in the definition
    of a vehicle under HRS § 291E-1 (2007).     Alesana's license was
    revoked from June 29, 2018 to June 28, 2019 pursuant to Part III
    of HRS Chapter 291E.   Thus, there was substantial evidence that
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    Alesana drove or operated a vehicle while his license was revoked
    within the meaning of HRS § 291E-62(a).
    When Alesana was arrested for Driving under the
    influence (DUI)5/ and driving without a license on May 29, 2018,
    Alesana did not have a driver's license and Officer Hnong
    explained to him that the Notice of Administrative Revocation
    would not be a temporary permit because he did not have a license
    to forward to the ADLRO.       The Notice of Administrative Revocation
    also stated, "The administrative review decision shall be mailed
    to you:    (a) No later than eight days after the date of the
    issuance of this Notice in the case of an alcohol related
    offense[.]"    Pursuant to HRS § 291E-37 (Supp. 2017), the Director
    of the ADLRO must "issue a written decision administratively
    revoking the license and privilege to operate a vehicle or
    rescinding the notice of administrative revocation."             HRS § 291E-
    37(a).    "If the evidence does not support administrative
    revocation, the director shall rescind the notice of
    administrative revocation and return the respondent's license
    along with a certified statement that administrative revocation
    proceedings have been terminated."         HRS § 291E-37(e).      "If the
    director administratively revokes the respondent's license and
    privilege to operate a vehicle, the director shall mail a written
    review decision to the respondent, or to the parent or guardian
    5/    DUI is also referred to as OVUII. See State v. Spearman, 129
    Hawai#i 146, 148, 
    296 P.3d 359
    , 361 (2013) (DUI under HRS § 291-4 now OVUII
    under HRS § 291E-61).
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    of the respondent if the respondent is under the age of
    eighteen."   HRS § 291E-37(f).   Alesana consciously disregarded a
    substantial and unjustifiable risk that his license was revoked
    when he operated a moped and was stopped by Officer Carlbom, even
    if there was no proof that Alesana actually received a copy of
    the Notice of Administrative Review Decision.     See State v.
    Lioen, 106 Hawai#i 123, 132, 
    102 P.3d 367
    , 376 (App. 2004)
    (defendant acted recklessly in driving without determining
    whether his license remained revoked or suspended for DUI-alcohol
    when he knew his license had previously been suspended or revoked
    for DUI-alcohol and had knowledge he did not have a valid
    driver's license, and had the defendant inquired about the status
    of his license he would have learned his license remained
    administratively revoked as a result of his prior DUI-alcohol
    arrests); State v. Rios,   CAAP-XX-XXXXXXX, 
    2021 WL 964862
    , *2
    (Haw. App. Mar. 15, 2021) (SDO), (defendant consciously
    disregarded substantial and unjustifiable risk license was
    revoked when he drove five months after receiving revocation form
    indicating he was arrested for OVUII, was unlicensed or license
    was expired, and a decision whether his license and privilege to
    operate a vehicle would be revoked would be mailed to him not
    later than eight days after issuance of the form).
    (2)   Citing State v. Afong, 
    61 Haw. 281
    , 
    602 P.2d 927
    (1979) and State v. Vares, 
    71 Haw. 617
    , 
    801 P.2d 555
     (1990),
    Alesana contends that the District Court erred by relying on
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    Exhibit 1 because under HRS § 291E-34(c)(4) Alesana was not
    entitled to be present or represented at the administrative
    review.    Therefore, Alesana argues, it did not meet minimal due
    process requirements and could not be used to enhance his
    sentence from driving without a license to OVLPSR-OVUII.
    While Alesana was sentenced to three days imprisonment,
    Alesana was not subject to a repeat offender provision as in
    Afong, 61 Haw. at 282-83, 
    602 P.2d at 929
    , or to an enhanced
    sentence as in Vares, 71 Haw. at 621, 
    801 P.2d at 557
    , because he
    was sentenced pursuant to HRS § 291E-62(c)(1) for a first
    offense.    Thus, Afong and Vares are not directly applicable.
    Alesana's argument also appears to be that his license
    revocation by the ADLRO should not have been used to prove an
    element of OVLPSR-OVUII because it was uncounseled.      An
    uncounseled prior conviction may not be used to establish an
    element of an offense.    See State v. Veikoso, 102 Hawai#i 219,
    223-24, 
    74 P.3d 575
    , 579-80 (2003).    "Generally, a conviction is
    defined as '[t]he final judgment on a verdict or finding of
    guilty, a plea of guilty, or a plea of nolo contendere, but does
    not include a final judgment which has been expunged by pardon,
    reversed, set aside, or otherwise rendered nugatory.'"        State v.
    Shimabukuro, 100 Hawai#i 324, 326, 
    60 P.3d 274
    , 276 (2002)
    (citing Black's Law Dictionary 333–34 (6th ed. 1990)).        Alesana's
    license revocation is not a conviction within the meaning of HRS
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    § 291E-62 because it was not a final judgment on a verdict or
    finding of guilt, a guilty plea, or a plea of nolo contendere.
    Citing HRS § 291E-34(c)(4) (Supp. 2018) which requires
    the Notice of Administrative Revocation to state "[t]hat the
    respondent is not entitled to be present or represented at the
    administrative review," Alesana argues that the statute violates
    his right to due process and right to be represented by counsel
    at a review hearing.
    Since the proceeding to review Alesana's license
    revocation is a civil administrative proceeding and not a
    criminal proceeding, he has no constitutional right to counsel in
    the initial administrative license revocation proceeding.              See
    Norton v. Admin. Dir. of the Court, 80 Hawai#i 197, 200, 
    908 P.2d 545
    , 548 (1995).6/
    Alesana conflates the automatic administrative review
    decision required by HRS § 291E-37 with an administrative hearing
    decision pursuant to HRS § 291E-38 (Supp. 2018).
    Alesana has a statutory right to be present and be
    represented by counsel for an administrative hearing, but not for
    the initial administrative review.         While HRS § 291E-34(c)(4)
    does not allow a respondent to be represented for the
    administrative review, if the administrative review decision
    6/    Norton interpreted the administrative driver's license revocation
    process under HRS Chapter 286. Act 189 (2000), codified as HRS Chapter 291E,
    was enacted to "consolidate, for purposes of uniformity and consistency, where
    appropriate, the provisions relating to operating a vehicle while using an
    intoxicant." State v. Wheeler, 121 Hawai#i 383, 392 n.11, 
    219 P.3d 1170
    , 1179
    n.11 (2009). Act 189 repealed HRS §§ 286-251 to 286-266 and enacted the
    Administrative Revocation Process in HRS §§ 291E-31 to 291E-50.
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    revokes a respondent's license and privilege to operate a
    vehicle, the administrative review decision must inform the
    respondent that he/she has six days to request a hearing and
    "that the respondent may be represented by counsel at the
    hearing[.]"   HRS § 291E-37(f)(2) and (6).    Both the Notice of
    Administrative Revocation and Notice of Administrative Review
    Decision stated an administrative hearing could be requested and
    that the respondent could be represented by counsel or an
    attorney.   There is nothing in the record to indicate Alesana
    requested an administrative hearing.
    In Kernan v. Tanaka, 
    75 Haw. 1
    , 41, 
    856 P.2d 1207
    , 1227
    (1993), the court held that "HRS chapter 286 Part XIV, the
    Administrative Revocation of Driver's License law, is
    constitutional because an arrestee's due process rights are fully
    protected."   The court held "the interest in a driver's license
    is not so great that more than an administrative review and
    hearing are needed to comport with the requirements of due
    process."   Id. at 31, 
    856 P.2d at 1222
    .    At the time, HRS § 286-
    258(b) and (c) allowed an arrestee to submit written information
    for the reviewing officer to consider and an administrative
    review of the police officer's actions occurred automatically.
    Id. at 18, 865 P.2d at 1216-17.    The reviewing officer would then
    issue a written decision within eight days after the arrest which
    also informed the arrestee of the right to request an
    administrative hearing.   Id. at 18-19, 865 P.2d at 12-16-17.
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    HRS § 291E-34(c)(2) also provides:     "That the respondent, within
    three days of the issuance of the notice of administrative
    revocation in the case of an alcohol related offense and within
    seventeen days of the issuance of the notice of administrative
    revocation in the case of a drug related offense, may submit
    written information demonstrating why the respondent's license
    and privilege to operate a vehicle should not be administratively
    revoked[.]"    Alesana presents no specific argument or authority
    as to why HRS § 291E-34 does not comply with due process when a
    similar procedure in HRS § 286-258 was found to fully protect an
    arrestee's due process rights in Kernan.     Therefore, we conclude
    that the State did not need to establish that Alesana's license
    revocation was counseled before using it to prove an element of
    OVLPSR-OVUII and that Alesana's due process rights were not
    violated.
    For these reasons, the District Court's August 1, 2019
    Judgment is affirmed.
    DATED: Honolulu, Hawai#i, April 29, 2021.
    On the briefs:
    /s/ Lisa M. Ginoza
    Phyllis J. Hironaka,                   Chief Judge
    Deputy Public Defender,
    for Defendant-Appellant.               /s/ Katherine G. Leonard
    Associate Judge
    Brian R. Vincent,
    Deputy Prosecuting Attorney,           /s/ Keith K. Hiraoka
    City and County of Honolulu,           Associate Judge
    for Plaintiff-Appellee.
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