State v. Mawae

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
12-MAY-2021
08:34 AM
Dkt. 61 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
STATE OF HAWAI#I, Plaintiff-Appellee,
v.
MICHAEL PALANI MAWAE, Defendant-Appellant
APPEAL FROM THE CIRCUIT COURT OF THE FIFTH CIRCUIT
(CASE NO. 5CPC-XX-XXXXXXX)
SUMMARY DISPOSITION ORDER
(By: Hiraoka, Presiding Judge, Wadsworth and Nakasone, JJ.)
Defendant-Appellant Michael Palani Mawae (Mawae)
appeals from the July 15, 2020 Amended Judgment of Guilty
Conviction and Probation Sentence entered by the Circuit Court of
the Fifth Circuit (Circuit Court).1 On February 10, 2020,
pursuant to a plea agreement with Plaintiff-Appellee State of
Hawai#i (State), Mawae pled no contest to second-degree burglary
amended from first-degree burglary, Abuse of Family or Household
Members, and the State agreed to dismiss a charge of fourth-
degree criminal property damage. Mawae was sentenced to four
years of probation with one year of incarceration, with credit
for time served for the burglary charge, and two years of
1
The Honorable Randal G.B. Valenciano presided.
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
probation for the abuse charge. The Circuit Court also ordered
restitution in the amount of $2,400 to the victim, which was
later reduced to $1,904.
On appeal, Mawae contends that the Circuit Court erred
by abusing its discretion when it sentenced Mawae: (1) to pay
restitution; and (2) to a term of incarceration "in excess of the
Court's inclination . . . ."
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
affirm.
No Error Regarding Restitution
Mawae contends that the Circuit Court "abused its
discretion" by sentencing Mawae to pay restitution because Mawae
was "induced to enter into a plea agreement in part because of
the State's representation that 'it is not aware of any
restitution that shall be sought.'"
In the plea agreement letter that was attached to the
February 10, 2020 Change of Plea (COP) form, Mawae agreed inter
alia, to pay restitution in an amount to be determined by Adult
Client Probation Services (ACPS), and the State also represented
that it was "not aware" of any restitution being sought by the
victim, as follows:
15. The Defendant agrees to pay restitution in an amount
determined by Adult Client Probation Services as to all
charges, including any cases or charges to be dismissed, and
will not request a restitution hearing; the Defendant agrees
to execute a Free Standing Order of Restitution as to the
full amount of restitution. The Defendant understands that
the Court must order restitution for reasonable and
verifiable losses requested by a victim or when the crime
victim compensation fund makes an award; that restitution
cannot be waived or converted to community service; and
that, unless the amount of restitution has already been
determined, the Court cannot determine what a possible
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restitution amount will be until a later time. (State is
not aware of any restitution that shall be sought)[.]
(first emphasis in original and second emphasis added). In the
May 27, 2020 pre-sentence report prepared for Mawae's June 4,
2020 sentencing date, the "Victim/Restitution Information"
section stated that the victim could not be located. The victim
contacted the prosecutor via email on May 29, 2020, requesting
$2,400 in restitution for therapy visits, supported by a letter
from her therapist. The victim also attended the June 4, 2020
sentencing and addressed the Circuit Court. The State requested
$2,400 in restitution for the victim, which the Circuit Court
ordered Mawae to pay. After sentencing, Mawae filed a First
Amended Motion for Reconsideration of Sentence requesting an
evidentiary restitution hearing and for the Circuit Court to
strike the restitution because the request was not vetted by
ACPS. At the first hearing on the motion on July 2, 2020, the
Circuit Court directed the prosecutor to submit the victim's
restitution request to ACPS, as stated in the plea agreement.
ACPS subsequently determined that restitution of $1,904 was
reasonable, and at the continued hearing on the reconsideration
motion on July 9, 2020, the Circuit Court reduced the restitution
to $1,904 from $2,400.
Mawae claims that the State's representation in the
plea offer letter about being unaware of restitution being
sought, was ambiguous, and that any ambiguity in a plea agreement
"is strictly construed in favor of the defendant," citing State
v. Nakano, 131 Hawai#i 1, 7, 313 P.3d 690, 696 (2013) (citation
omitted). Mawae argues that despite the Circuit Court's
advisements regarding restitution during the change of plea
hearing, "a Defendant might reasonable [sic] conclude that such a
warning does not matter if they have reason to believe that no
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restitution will be sought by the victim." Mawae's contentions
are without merit.
The State's representation in the plea agreement that
it was unaware of restitution being sought was not ambiguous, nor
did it render the plea agreement ambiguous. Immediately
preceding this statement in the plea agreement letter is an
advisement that "unless the amount of restitution has already
been determined, the Court cannot determine what a possible
restitution amount will be until a later time." In addition, the
Circuit Court gave similar on-the-record advisements to Mawae
during the COP colloquy that it was legally obligated to order
restitution "for reasonable and verifiable losses claimed by the
victim," that restitution could not be waived, and that the
Circuit Court could not determine restitution until a later time,
in accordance with State v. Kealoha, 142 Hawai#i 46, 414 P.3d 98(2018).2 Mawae confirmed that he understood these advisements.3
2
In Kealoha, the Hawai#i Supreme Court held that trial courts must
ensure that defendants understand the penalty of restitution that could be
imposed as a consequence of conviction, and accordingly required that:
(1) the court must order restitution for reasonable and
verifiable losses requested by a "victim" or when the crime
victim compensation fund makes an award; (2) the court
cannot waive the restitution amount or convert it to
community service; and (3) unless the amount of restitution
has already been determined, the court cannot determine what
a possible restitution amount will be until a later time.
142 Hawai#i at 61-62, 414 P.3d at 113-14 (emphasis in original).
3
The COP hearing transcript provides in pertinent part:
THE COURT: . . . So regarding restitution, the Court
must order restitution for reasonable and verifiable losses
claimed by the victim or when the crime victim compensation
fund makes an award. The Court cannot waive restitution or
convert it to community service work. The Court cannot
determine the amount of restitution until a later time.
So, Mr. Mawae, is that your understanding of the plea
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The record reflects that Mawae was clearly apprised before he
entered his No Contest plea, that restitution was required if
requested, the restitution amount had not yet been determined,
and that the amount could not be determined until a later time.
There was no ambiguity in the plea agreement itself, and the
Circuit Court's restitution advisements complied with Kealoha,
id. Thus, Mawae's contention is without merit.
Assuming arguendo that the State's representation in
the plea agreement letter that it was unaware of any restitution
being sought was ambiguous, Mawae has not articulated the relief
he seeks on appeal. Mawae relies on Nakano for the proposition
that "any ambiguity in the plea agreement is strictly construed
in favor of the defendant," 131 Hawai#i at 7, 313 P.3d at 696,
but Nakano also states that the remedy for a defendant who
successfully rescinds a plea agreement is to be "returned to
their status prior to their plea agreement . . . ." Id. at 8
n.8, 313 P.3d at 697 n.8 (citation omitted). This means that
"the defendant must again face all of the charges in the original
complaint." Id. In Mawae's situation, a rescinded "global plea
agreement" means Mawae must face not only the original charges in
this case, but all of the original charges in the three
additional Fifth Circuit criminal cases covered by the
bargain?
THE DEFENDANT: Yes, your Honor.
THE COURT: [Defense Counsel], is that your
understanding of the plea bargain?
[DEFENSE COUNSEL]: Yes, your Honor.
(emphases added).
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agreement.4
In this case, however, Mawae is not claiming that his
pleas were not knowingly and voluntarily entered due to the
restitution ambiguity he complains of; nor is Mawae requesting to
withdraw his pleas. In fact, Mawae repeatedly asserts in his
Opening Brief and Reply Brief that he is not requesting to
withdraw his pleas in this appeal.5 The Opening Brief does not
present any argument regarding the specific relief sought as to
restitution, even assuming arguendo the plea agreement is
ambiguous. On the contrary, the Opening Brief only specifies
what relief Mawae does not want. This does not comply with
Hawai#i Rules of Appellate Procedure (HRAP) Rule 28(b)(9)
(requiring that the relief sought be specified with
particularity).
An abuse of discretion occurs if the trial court has
clearly exceeded the bounds of reason or disregards principles of
law to the substantial detriment of a party. State v. Austin,
143 Hawai#i 18, 29, 422 P.3d 18, 29 (2018) (citation omitted).
The Circuit Court did not abuse its discretion in sentencing
Mawae to pay restitution, and this contention is without merit.
See id.No Error Regarding Sentencing
Mawae contends that the Circuit Court "abused its
discretion by varying from its sentencing inclination" and
4
The global plea agreement in this case encompassed four criminal
cases, consisting of three Circuit Court matters which included the current case
5CPC-19-000065, 5CPC-19-000092, and 5CPC-19-000217, and one district court
matter, 5DCW-20-000039.
5
The Opening Brief states: "Mr. Mawae is not necessarily requesting
an opportunity to withdraw his plea." The Reply Brief reiterates: "Mr. Mawae is
not asking that the plea agreement be set aside," and "If this Court is of the
view that Mr. Mawae must withdraw his plea to secure the relief requested, he
does not wish to do so."
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sentencing Mawae to probation with a term of incarceration that
was beyond the credit for time served that Mawae claims he
expected to receive. Mawae specifically argues that the Circuit
Court's "apparent representations during plea discussions amount
to statements of 'inclination'" under State v. Sanney, 141
Hawai#i 14, 404 P.3d 280 (2017). Mawae acknowledges, however,
that at the change of plea hearing, the Circuit Court "did
explain to Mr. Mawae that it did not view its inclination to be
binding."
Preliminarily, the record does not reflect that the
Circuit Court gave a sentencing inclination; on the contrary, the
record reflects that the Circuit Court explicitly did not promise
any particular sentence. The only evidence of the sentencing
"inclination" comes from Mawae himself, in the COP form:
. . . .
8. I have not been promised any kind of deal or
favor or leniency by anyone for my plea, except
that I have been told that the government has
agreed as follows (if none, write "None"):
See plea offer attached. The defendant
was also told by the undersigned attorney that
after discussions between the Court and counsel
for both parties the court indicated that it
thought the defendant had done enough time and
if he entered a plea the Court would impose a
sentence of probation upon such terms and
conditions as the Court deems appropriate.
/ I know that the court is not required to
follow any deal or agreement between the
Government and me. I know that the court has not
promised me leniency.
The court has agreed to follow the plea
agreement pursuant to Rule 11, Hawaii Rules of
Penal Procedure.
9. I further state that (if none, write
"None"):
The defendant understands that the [sic]
while this plea is not tendered pursuant to Rule
11 the plea is tendered in consideration of what
he was told by his attorney as reflected above.
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(emphases added). Mawae claims that this statement in the COP
form constituted an inclination for a sentence of credit for time
served that he expected to receive. However, the words "credit
for time served" are not in the COP form. The words "defendant
had done enough time" in the COP form appeared in the same
sentence as the words "the Court would impose a sentence of
probation upon such terms and conditions as the Court deems
appropriate." This combination of phrases does not convey a
credit for time served sentence. Mawae's premise that these
words constitute a credit for time served inclination is
unfounded.
The record reflects that the Circuit Court explicitly
informed Mawae that the Circuit Court was "not bound" by "any
statement made" during any discussions with the attorneys, and
the Circuit Court further reminded Mawae, more than once, that it
had not made any promises, as follows:
THE COURT: So when I look at paragraph
eight, it says -- in small print, it says: See plea offer
attached. The defendant was also told by the undersigned
attorney that after discussions and the -- between the
Court and counsel for both parties, the Court indicated
that it thought the defendant had done enough time, and if
he entered a plea, the Court would impose a sentence of
probation upon such terms and conditions as the Court
deems appropriate.
Okay. So here's the thing. I'm not making
any promises. You need to understand this is not a Rule
11 situation. I want to be clear. A Rule 11 situation
means the Court is bound by any -- any statement made.
I'm not bound by anything. I haven't promised you
anything. So you need to be aware of the maximum
penalties. You understand that? So this is not a Rule
11.
THE DEFENDANT: Yes, your Honor.
THE COURT: You understand that? Knowing
that I'm not bound by any discussions we had between the
attorneys regarding this case, you still want to go
forward with the change of plea proceeding today?
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THE DEFENDANT: Yes, your Honor.
(emphases added). At a later point during the colloquy, the
Circuit Court again clearly disavowed any promise of leniency:
THE COURT: Okay. So -- basically what I want to tell
you is that I haven't promised you leniency at time of
sentencing. The State can argue for whatever sentence.
[Defense Counsel] can argue on your behalf for whatever
sentence is appropriate. The Court can decide whatever
sentence is appropriate for you. So - basically everybody
can make arguments for the Court to decide what's
appropriate at the time of sentencing. You understand that?
THE DEFENDANT: Yes, your Honor.
(emphases added).
The transcript of the COP hearing reflects that even if
Mawae had incorrectly understood the Circuit Court to have stated
during plea negotiations that it would not impose an open term of
imprisonment or that it would not impose further incarceration as
a condition of probation, the Circuit Court explicitly corrected
any misimpression Mawae or Mawae's counsel may have had.
Therefore, Mawae's contention that there was a "sentencing
inclination" is not supported by the record, and is without
merit.
Mawae's argument relying on Sanney is also without
merit. The Sanney Court set forth a new rule that:
[i]f a defendant pleads guilty or no contest in response to
a court's sentencing inclination, but the court later
decides not to follow the inclination, then the court must
so advise the defendant and provide the defendant with the
opportunity to affirm or withdraw the plea of guilty or no
contest.
141 Hawai#i at 25, 404 P.3d at 291. In Sanney, the trial court's
sentencing inclination of probation with up to 18 months
incarceration was clearly on the record and confirmed by the
trial court. Id. at 17, 404 P.3d at 283. Sanney does not apply
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to this case because this record does not show that there was a
sentencing inclination, nor does it show that Mawae pled no
contest "in response" to any inclination. Id. at 25, 404 P.3d at
291.
Mawae also complains on appeal that the Circuit Court
"did not, however, provide Mr. Mawae with an opportunity to
withdraw his plea at sentencing, as is required by Sanney." This
argument is waived because Mawae never moved, or requested to
withdraw his plea at the sentencing hearing on June 4, 2020; nor
did Mawae request to withdraw his plea at the reconsideration
hearings on July 2 or July 9, 2020. See State v. Hoglund, 71
Haw. 147, 150, 785 P.2d 1311 1313 (1990) ("Generally, the failure
to properly raise an issue at the trial level precludes a party
from raising that issue on appeal.").
Finally, Mawae presents no authority for his requested
relief that his sentence "be reduced in accordance with the
Court's sentencing inclination." Under the authority of Sanney
that Mawae himself relies on, the remedy is for the trial court
to give Mawae an "opportunity" to affirm or withdraw his no
contest plea. 141 Hawai#i at 25, 404 P.3d at 291. See also
Nakano, 131 Hawai#i at 8 n.8, 313 P.3d at 697 n.8 (recognizing
that "ordinarily, a defendant who successfully rescinds a plea
agreement is returned to their status prior to their plea
agreement . . . ."). Yet, as noted supra, Mawae takes the
incongruous position in his opening and reply briefs, that he is
not requesting to withdraw his plea.6 No authority supports
6
Mawae explains his inconsistent position as follows:
If this Court is of the view that Mr. Mawae must
withdraw his plea to secure the relief requested, he does
not wish to do so. However, Mr. Mawae's position is that
he has detrimentally relied upon the terms of the plea
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Mawae's requested relief for a reduced term of incarceration
without withdrawing his pleas and undoing the global plea
agreement, and thus Mawae's contention is patently without merit.
The Circuit Court did not abuse its discretion in the sentence it
imposed on Mawae, which was consistent with the plea agreement.
See Austin, 143 Hawai#i at 29, 422 P.3d at 29.
Therefore, IT IS HEREBY ORDERED that the Amended
Judgment of Guilty Conviction and Probation Sentence, entered on
July 15, 2020, in the Circuit Court of the Fifth Circuit, is
affirmed.
DATED: Honolulu, Hawai#i, May 12, 2021.
On the briefs:
Matthew Mannisto /s/ Keith K. Hiraoka
(Law Office of Matthew Presiding Judge
Mannisto)
for Defendant-Appellant /s/ Clyde J. Wadsworth
Associate Judge
Tracy Murakami
Deputy Prosecuting Attorney /s/ Karen T. Nakasone
County of Kaua#i Associate Judge
for Plaintiff-Appellee
agreement and endured 6 months of incarceration since the
date that he was sentenced in reliance upon its terms. In
such circumstances, requiring withdrawal of the plea would
be unfair to Mr. Mawae, just as it would be unfair to allow
the State to reinstitute the cases dismissed under the plea
agreement.
Mawae has not presented any authority supporting the above justification for
these inconsistent positions he advances on appeal. The authority of State v.
Guity, 144 Hawai#i 557, 445 P.3d 138 (2019) Mawae relies on in the Reply
Brief, is inapposite. The Guity Court held that where the ICA correctly
concluded that Guity was entitled to withdraw his plea in one of his criminal
cases in a global plea agreement, Guity must be allowed to withdraw his plea
in the remaining criminal case that was included in the agreement. Id. at
563, 445 P.3d at 144.
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