State v. Richardson

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
24-AUG-2021
07:55 AM
Dkt. 51 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
STATE OF HAWAI#I, Plaintiff-Appellant,
v.
MYOUNG RICHARDSON, Defendant-Appellee,
and
EUNMI KIM, ULSUN LEE, SUNG HEE BRIDGE, and
KYUNG STRAIN, Defendants
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CRIMINAL NO. 1CPC-XX-XXXXXXX)
SUMMARY DISPOSITION ORDER
(By: Ginoza, Chief Judge, Leonard and Hiraoka, JJ.)
Plaintiff-Appellant State of Hawai#i appeals from the
"Findings of Fact, Conclusions of Law and Order Granting Motion
to Dismiss Count 2 as Being Unconstitutionally Overbroad as to
Defendant Myoung Richardson" (Constitutionality Dismissal Order)
entered by the Circuit Court of the First Circuit on February 28,
2018.1 For the reasons explained below, the State's appeal is
moot and must be dismissed for lack of appellate jurisdiction.
On April 27, 2017, a grand jury indicted Defendant-
Appellee Myoung Richardson and others for unlawful ownership or
operation of business in violation of Hawaii Revised Statutes
(HRS) §§ 842-2(3) and 842-3 (Counts 1 and 2), promoting
prostitution in the second degree in violation of HRS § 712-1203
(Count 3), and promoting prostitution in violation of HRS § 712-
1203 (Count 4) (Indictment). Richardson was charged in Count 2
only.
1
The Honorable Rom A. Trader presided.
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
On October 2, 2017, Richardson filed a motion to
dismiss the Indictment, contending that HRS § 842-2 was
unconstitutionally vague and/or overbroad. The circuit court
granted the motion, entering the Constitutionality Dismissal
Order on February 28, 2018. On March 28, 2018, the State filed a
timely notice of appeal from the Constitutionality Dismissal
Order.
Also on October 2, 2017, Richardson's co-defendant Sung
Hee Bridge filed a motion to dismiss all counts of the
Indictment. Richardson filed a "Joinder in Defendant Bridge's
Motion to Dismiss All Counts" on December 8, 2017. On
February 28, 2018, the circuit court entered "Findings of Fact,
Conclusions of Law and Order Granting Motion to Dismiss All
Counts Filed by Defendant Bridge and Joined by Defendant Myoung
Richardson's [sic] for Insufficient Evidence (Ground #1) Against
Defendant Richardson as to Count 2" (Joinder Dismissal Order).
The Joinder Dismissal Order dismissed Count 2 of the Indictment
as to Richardson only.
The State could have appealed from the Joinder
Dismissal Order. HRS § 641-13(1) (2016); see State v. Stan's
Contracting, Inc., 111 Hawai#i 17, 19-22, 137 P.3d 331, 333-36
(2006) (affirming circuit court's dismissal of count 2 of the
indictment through defendants' substantive joinder to co-
defendants' motion to dismiss). The State did not file a notice
of appeal from the Joinder Dismissal Order; the time for the
State to appeal from the Joinder Dismissal Order has expired, see
Rule 4(b)(1) of the Hawai#i Rules of Appellate Procedure (HRAP);
the circuit court has not extended the time for the State to
appeal from the Joinder Dismissal Order; and the time for the
State to file a motion to extend the time to file a notice of
appeal from the Joinder Dismissal Order has expired, see HRAP
Rule 4(b)(5).
"In general, this court does not have jurisdiction to
decide abstract propositions of law or moot cases." State v.
Nakanelua, 134 Hawai#i 489, 501, 345 P.3d 155, 167 (2015)
(cleaned up) (citing Lathrop v. Sakatani, 111 Hawai#i 307, 312,
141 P.3d 480, 485 (2006)). "[A] case is moot if the reviewing
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NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
court can no longer grant effective relief." Kaho#ohanohano v.
State, 114 Hawai#i 302, 332, 162 P.3d 696, 726 (2007) (cleaned
up). "[M]ootness is an issue of subject matter jurisdiction[,]"
Hamilton ex rel. Lethem v. Lethem, 119 Hawai#i 1, 4, 193 P.3d
839, 842 (2008), and we are obliged to raise the issue sua
sponte, Kapuwai v. City & Cty. of Honolulu, 121 Hawai#i 33, 40,
211 P.3d 750, 757 (2009) (concluding even if "the parties do not
raise the issue of lack of subject matter jurisdiction, a court
sua sponte will.") (cleaned up); see also Pele Def. Fund v. Puna
Geothermal Venture, 77 Hawai#i 64, 67, 881 P.2d 1210, 1213 (1994)
(noting every court must determine "as a threshold matter whether
it has jurisdiction to decide the issue presented.") (citation
omitted).
The State's appeal from the Constitutionality Dismissal
Order is moot; even if we were to vacate the Constitutionality
Dismissal Order, prosecution of Count 2 against Richardson would
be barred by the Joinder Dismissal Order. On July 26, 2021, we
ordered the State to show cause why this appeal should not be
dismissed for lack of appellate jurisdiction due to mootness.
The State's response was filed on August 6, 2021. The State did
not argue that any of the recognized exceptions to the mootness
doctrine applied.2
Based upon the foregoing, this appeal is dismissed for
lack of appellate jurisdiction due to mootness.
DATED: Honolulu, Hawai#i, August 24, 2021.
On the briefs:
/s/ Lisa M. Ginoza
Brian R. Vincent, Chief Judge
Deputy Prosecuting Attorney,
City and County of Honolulu, /s/ Katherine G. Leonard
for Plaintiff-Appellant. Associate Judge
William A. Harrison, /s/ Keith K. Hiraoka
for Defendant-Appellee. Associate Judge
2
Hawai#i recognizes three exceptions to the mootness doctrine:
(1) capable of repetition, yet evading review; (2) public interest exception;
and (3) collateral consequences exception. See State v. Kiese, 126 Hawai#i
494, 508-09, 273 P.3d 1180, 1194-95 (2012); Hamilton, 119 Hawai#i at 5, 10,
193 P.3d at 843, 848; see also Flores v. Ballard, 149 Hawai#i 81, 88, 88 n.7,
482 P.3d 544, 551, 551 n.7 (App. 2021).
3