State v. Kekona

LAXN L{BHARY
NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPOR'I`ER
NO. 29853
IN THE INTERMEDIATE COURT OF APPEALS |§§ §
oF THE sTATE oF HAwArI §§
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’ *\> ....l:
STATE OF HAWAfI, Plaintiff-Appellee, “° ft
V. m m _ §§ §§
WILLIAM K. KEKONA, III, also known as "BILL¥§§ ga fw
Defendant-Appellant. §§ ~
APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT
(CR. NO. 07-l-O723(3))
sTATE 0F HAwArI, P1aintiff-Appe11ee,
V
WILLIAM K. KEKONA, III; Defendant-Appellant.
APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT
(CR. NO. 08-1-O398(3))
sTATE oF HAwAfI, P1aintiff-Appe1lee,
V
WILLIAM K. KEKONA, III; Defendant~Appellant.
APPEAL FROM THE FAMILY COURT OF THE SECOND CIRCUIT
(FC-CRIMINAL NO. 08-l-Ol66(3))
MEMORANDUM OPINION
(By: Nakamura, C.J., Fujise, Leonard, JJ.)
Defendant-Appellant William K. Kekona, III, (Kekona)
pleaded no contest to bail jumping pursuant to a plea agreement
in which Plaintiff-Appellee State of HawaiH_(State) agreed to
Kekona was subsequently
recommend five years of probation.
Pursuant to plea
charged with numerous additional crimes.
agreements to resolve the additional charges, Kekona knowingly
and voluntarily waived his right to the State's performance of
its probation recommendation in the bail jumping case and agreed
that the State would ask for five years of imprisonment on the
Kekona was sentenced in accordance with the
He now
bail jumping charge.
terms of the plea agreements on the additional charges.
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seeks to vacate his plea and sentence on the bail jumping charge
on the ground that the State breached its original agreement to
recommend probation.
This case presents the question of whether a defendant
can knowingly and voluntarily waive the State's performance of a
condition of a plea agreement. We hold, under the circumstances
presented here, that the answer to this question is yes.
Accordingly, we affirm Kekona's conviction and sentence on the
bail jumping charge as well as his convictions and sentences on
the additional charges.
BACKGROUND
Kekona appeals from the Judgment filed on April 24,
2009, in the Circuit Court of the Second Circuit (circuit court)
and the Family Court of the Second Circuit (family court)
(collectively referred to as the "trial court") in three cases,
Cr. NO. 07-1-O723 (3), Cr. NO. 08-1-O398(3), and FC-Cr. NO. O8-l-
0166(3).1/
_ I.
On November 30, 2007, Kekona was charged by indictment
with first degree bail jumping in Cr. No. 07-1-0723(3). On April
8, 2008, Kekona pleaded no contest to the bail jumping charge
pursuant to a plea agreement (the "original plea agreement") in
which the State agreed to recommend five years of probation. The
written original plea agreement stated in pertinent part, "In
exchange for Defendant's No Contest plea, the State agrees to
five (5) years probation, with no further jail to be imposed in
this matter." During his change of plea colloquy, Kekona
acknowledged that he understood that the circuit court was "not
required to follow any deal or agreement" between Kekona and the
State.'
y The Honorable Joseph E. Cardoza presided over the proceedings
relevant to this appeal in all three cases.
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II.
Kekona was subsequently charged with numerous
additional crimes. These additional crimes were alleged to have
been committed by Kekona after his entry of the no contest plea
on the bail jumping charge. On May 9, 2008, Kekona was charged
by complaint in family court in FC-Cr. No. 08-1-0166(3)W with
violating an order for protection (Count I) and interfering with
the reporting of an emergency or crime (Count II).
On June 16, 2008, Kekona was charged by complaint in
circuit court in Cr. No. 08-1-O398(3) with first degree assault
(Count I); violating an order for protection (Count II);
intimidating a witness (Count III); and first degree terroristic
threatening (Count IV). Counts I, III, and IV alleged that
Kekona was subject to sentencing for extended terms of
imprisonment as a persistent and multiple offender in accordance
with Hawaii ReViSed StatuteS (HRS) §§ 706-66l, 706-662(l), and
706-662(4) (Supp. 2009). On July 23, 2008, the charges set forth
in FC-Cr. No. 08-1-O166(3) and Cr. No. 08-1-O398(3) (hereinafter
referred to as the "additional charges") were consolidated for
trial.
4 III.
On February 26, 2009, Kekona pleaded no contest to the
additional charges in FC-Cr. No. 08-1-O166(3) and Cr. No. 08-1-
O398(3) pursuant to written plea agreements (collectively
referred to as the "subsequent plea agreements"). The plea
agreement in Cr. No. 08-1-O398(3) provided in pertinent part:
8. 1 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 . -
Open recommendation.
State will recommend 10 years on Count I, 5
years on counts III and IV; one year on count II. And
State will ask 5 years on Cr. No. 07-1-O723(3) [(the
bail jumping case!|. All counts to run concurrent.
y The original case number was FC~Cr. No. 08-1-O166(4) but eventually
became FC~Cr. No. 08-1-O166(3). '
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This case to run concurrent with FC No. 08-1-0166(3)
and with Cr. No. 07-1-O723(3) (Bail Jumping). State
will take no further action on the Intimidating a
Witness and Violation of Order for Protection charges,
under MPD Report No. 08-46559 and 08-46568, which are
pending screening. Defendant agrees to waive
restitution hearing and pay restitution as determined
by the Adult Probation Division.
Defense may request Probation. Defense requests
updated Presentence report.
(Emphasis added.)
The plea agreement in FC-Cr. No. 08-1-O166(3) provided
in pertinent part:
8. 1 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 ~
Open recommendation.
State will recommend one year on Count I, and 30
days on Count II. Al1 counts to run concurrent. This
case to run concurrent with CR. No. 08~1-0398(3) and
with Cr. No. 07-1~O723(3) (Bail Jumping). State will
take no further action on the Intimidating a witness
and violation of Order for Protection charges, under
MPD Report No. 08-46559 and 08-46568, which are
pending screening. Defendant agrees to waive
restitution hearing and pay restitution as determined
by the Adult Probation Division.
Defense may request Probation. Defense requests
updated Presentence report.
At the change of plea hearing on the additional
charges, the trial court read Paragraph 8 of the subsequent plea
agreements in Cr. No. 08~l-0398(3) and FC~Cr. No. 08-1-0l66(3) to
Kekona. The trial court explained that the term "open
recommendation" as used in Paragraph 8 means that the State will
be asking for the "regular" maximum terms of imprisonment and
will not be seeking extended terms of imprisonment. The trial
court advised Kekona that the State will not be seeking
consecutive sentences. The trial court further advised Kekona
that, pursuant to the subsequent plea agreements, Kekona and the
State had revised their plea agreement in the bail jumping case,
such that the State can ask for imprisonment instead of its
previous agreement to ask for probation. Kekona acknowledged
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that he understood these terms. The colloquy between the trial
court and Kekona was in pertinent part as follows:
THE COURT: Open recommendation means they'll be
asking for the regular maximum terms of imprisonment for
each of the six counts. They will not be asking for
consecutive sentencing or extended terms of sentencing under
this plea agreement, and they have -- 1 guess you and the
government have revised the bailjumpinq plea agreement, such
/that the government can ask for prison on that, They’ve
previously agreed to ask for probation. Do you understand
that?
[KEKONA]: YeS.
THE COURT: As clarified on the record, is this your
understanding [of] the plea agreement with the government in
these two cases?
[KEKONA]: Yes.
THE COURT: Has anyone said anything different
concerning your plea agreement?
[KEKONA]: NO.
(Emphasis added.)
v At the change of plea hearing on the additional
charges, Kekona also confirmed that he had signed the subsequent
plea agreements after reviewing them with his attorney. He
signed the acknowledgment in the subsequent plea agreement forms
that stated, "1 acknowledge that the Judge questioned me
personally in open court to make sure that 1 knew what 1 was
doing in pleading guilty or no contest and understood this form
before 1 signed it." The trial court accepted Kekona's pleas of
no contest to the additional charges in Cr. No. 08-1-O398(3) and
FC-Cr. No. 08-1-Ol66(3), finding that Kekona had entered those
pleas "intelligently, knowingly, voluntarily, and with the advice
of counsel."
IV.
On April 23, 2009, Kekona appeared for sentencing
before the trial court on the bail jumping charge in Cr. No. 07-
1-0723(3) as well as the additional charges in Cr. 08-1-O398(3)
and FC-Cr. No. 08-1-0166(3). At the outset of the hearing, the
trial court noted that the original plea agreement in the bail
jumping case had been modified by the subsequent plea agreements
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on the additional charges. The trial court explained that it
would rule within the framework of the subsequent plea
agreements, which, as the trial court stated, included the
State's recommendation of "five years [of imprisonment] on the
bail jumping, because originally, there was a different agreement
there." Kekona's counsel agreed that Kekona was "not asking for
an exception" from the subsequent plea agreements.
At sentencing, the prosecutor, consistent with the
subsequent plea agreements, recommended that the trial court
sentence Kekona to concurrent non-extended maximum terms of
imprisonment, including five years of imprisonment on the bail
jumping charge. Kekona's counsel did not object to the
prosecutor's recommendation. The trial court imposed the
concurrent terms of imprisonment recommended by the prosecutor,
This included a ten-year term of imprisonment for the class B
felony and five-year terms of imprisonment for the three class C
felonies.
DISCUSSION
On appeal, Kekona contends that the State violated the
terms of its plea agreement in the bail jumping case by
recommending five years of incarceration at sentencing when the
original plea agreement called for the State to recommend
probation. Kekona claims that his agreement to revise the
original plea agreement in the subsequent plea agreements was
invalid because the trial court did not consolidate the bail
jumping case with the other cases and did not have Kekona re-
plead to the bail jumping charge. Kekona requests that his
sentence and plea in the bail jumping case be vacated, and he
also requests that the case be remanded for "re-sentencing on the
charges in the other two cases." We conclude that Kekona's
arguments on appeal are without merit.W
9 Kekona provides no argument to support his contention that he is
entitled to resentencing on the additional charges. He does not challenge the
validity of the subsequent plea agreements, his no contest pleas to the
(continued...)
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The HawaFi Supreme Court has stated:
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.
1ndeed, 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.
State v. Adams, 76 Hawafi 408, 412, 879 P.2d 513, 517 (1994)
(citation omitted; emphasis added). k
"Disputes over the meaning of plea agreements involve
questions of fact," and we review the trial court's factual
determinations under the clearly erroneous standard. State v.
Abbot;t, 79 Hawai‘i 317, 319, 901 P.2d 1296, 1298 (App. 1995).
"Whether the State has actually breached the terms of a plea
agreement, however, is a question of law, which we review de novo
under the right/wrong standard of review." 1d; at 320, 901 P.2d
at 1299.
I.
We conclude that the decision in this case is
controlled by the principle of waiver. The HawaiH.Supreme Court
has "long permitted defendants to waive constitutional rights,
provided it is done knowingly, intelligently, and voluntarily."
State v. Timoteo, 87 HawaFi 108, 123, 952 P.2d 865, 880 (1997)
(Ramil, J., dissenting, joined by Levinson, J.). 1t is also well
established that a party to a contract can waive the performance
of a condition or term of the contract. See Wilart Assocs. v.
KaDiOlani PlaZa, Ltd., 7 Haw. App. 354, 358-60, 766 P.2d l207,
y(...continued)
additional charges, or the sentences imposed on the additional charges. Thus,
even if we were to determine that Kekona's arguments regarding the bail
jumping charge had merit, he would not be entitled to require resentencing on
the additional charges.
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1210-11 (1988); First Trust Co. v. Cabrinha, 24 Haw. 777, 784
(Hawai‘i Terr. 1919).
II.
Here, Kekona entered into the original plea agreement
with the State on the bail jumping charge in which the State
agreed to recommend probation. Absent any action by Kekona to
free the State of this obligation, Kekona had the right to insist
on the State's performance. However, Kekona chose to waive his'
right to insist on the State's performance of its obligation to
recommend probation. He did so by entering into subsequent plea
agreements regarding the additional charges in which he
specifically agreed that the State could recommend five years of
imprisonment on the bail jumping charge. 1n effect, Kekona used
the waiver of his right to insist on the State's performance of
its obligation to recommend probation on the bail jumping charge
as partial consideration for the subsequent plea agreements.
Kekona obtained substantial benefits from the subsequent plea
agreements in the form of the State's promise to not seek
consecutive or extended terms of imprisonment on the additional
charges and to forego pursuing other potential charges.
"Waiver is the intentional relinquishment of a known
right[.]" Wilart Assocs., 7 Haw. App. at 359, 766 P.2d at 1210
(internal quotation marks and citation omitted).
A party to a contract may waive, by express agreement
or by its course of conduct, its legal right to strict
performance of the terms of a contract. The waiver doctrine
is intended to prevent the waiving party from lulling
another into a false belief that strict compliance with a
contractual duty will not be required and then suing for
noncompliance.
Lake County Grading Co. v. Advance Mechanical, 654 N.E.2d 1109,
1118 (Ill. App. Ct. 1995) (citation omitted). A defendant can
waive a breach by the prosecution of a plea agreement or the
right to challenge the validity of a prior guilty plea through a
subsequent plea agreement. See Donahue v. State, 655 S.W.2d 642,
645-46 (Mo. Ct. App. 1983) (defendant waived any breach of prior
plea agreement requiring the imposition of concurrent sentences
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by entering into a subsequent plea agreement calling for the
imposition of consecutive sentences); Ferina v. State, 742 S.W.2d
215, 216-17 (Mo. Ct. App. 1987) (defendant waived right to
challenge the validity of a prior guilty plea by agreeing to
withdraw this claim as part of a subsequent plea agreement).
III, _
The record reflects that in entering into the
subsequent plea agreements, Kekona knowingly and voluntarily
waived his right to enforce the State's agreement in the original
plea agreement to recommend,probation on the bail jumping charge.
The subsequent plea agreement on the additional charges in Cr.
No. 08-1-O398(3) provided that the State would ask for five years
of imprisonment on the bail jumping charge. At the change of
plea hearing on the additional charges, the trial court advised
Kekona that the subsequent plea agreements had revised the
original plea agreement so that the State could ask for prison on
the bail jumping charge, even though it had previously agreed to
ask for probation. Kekona acknowledged that he understood that
the original plea agreement had been revised.
The record shows that Kekona entered into the
subsequent plea agreements with the full knowledge and
understanding that he was agreeing to give up his right to
enforce the State's performance of its obligation under the
original plea agreement to recommend probation on the bail
jumping charge. The record further establishes that Kekona
entered into the subsequent plea agreements and pleaded no
contest to the additional charges intelligently, knowingly, and
voluntarily. Through the subsequent plea agreements, Kekona
knowingly and voluntarily waived his right to enforce the State's
promise in the original plea agreement to recommend probation on
the bail jumping charge.
We perceive no unfairness in holding Kekona to his
waiver, which Kekona used to his advantage. Kekona used his
waiver to obtain concessions from the State in the subsequent
plea agreements, which included the State's agreement not to seek
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consecutive or extended terms of imprisonment on the additional
charges. Having obtained the benefit of the subsequent plea
agreements, Kekona cannot be allowed to avoid the consequences of
his waiver. 1ndeed, it would be manifestly unfair to permit
Kekona, after using his waiver as partial consideration for the
subsequent plea agreements from which he benefitted, to then
invalidate his bail jumping plea on the ground that the State
"breached" the original plea agreement by failing to perform the
very condition Kekona had agreed to waive,
While consolidating the bail jumping case with the
other cases or having Kekona re-plead to the bail jumping charge
would have produced a cleaner record, the failure of the trial
court to do so did not prejudice Kekona's substantial rights.
Kekona understood and agreed that he was giving up his right to
enforce the State's prior agreement to recommend probation on the
bail jumping charge as part of the subsequent plea agreements.
Kekona does not claim otherwise. The bail jumping charge was a
class C felony, with a maximum non-extended prison term of five
years. The additional charges included a class B felony, with a
maximum non-extended prison term of ten years, and two class C
felonies. The State's recommendation of probation on the bail
jumping charge would have been of little benefit to Kekona if the
State recommended imprisonment on the class B and C felonies
included in the additional charges.9p Moreover, with respect to
the potential severity of Kekona's punishment, the trial court's
decision on whether to impose extended or non-extended terms of
imprisonment or consecutive or concurrent terms of imprisonment
on the additional charges was far more important to Kekona than
the trial court's decision on whether to impose probation or
imprisonment on the bail jumping charge.
i/ we note that because Kekona was sentenced on the additional charges
and the bail jumping charge at the same time, the trial court could not have
sentenced Kekona _to maximum non-extended terms of imprisonment on the
additional charges and also sentenced him to probation on the bail jumping
charge. §ge HRS § 706-629(1) (a) (1993).
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Kekona reduced his risk of being sentenced to more than
ten years of imprisonment by securing the State's agreement in
the subsequent plea agreements to recommend concurrent terms of
imprisonment for all the charges. As part of the subsequent plea
agreements, Kekona and the State agreed that with respect to the
additional charges, the State would recommend concurrent non-
extended terms of imprisonment of ten years on the class B felony
and five years on the two class C felonies. Given Kekona's
agreement to the State's incarceration recommendation on the
additional charges, Kekona had little to gain by insisting on a
probation recommendation on the bail jumping charge. Kekona does
not contend, and there is no basis for believing, that Kekona
would have struck a different deal than set forth in the
subsequent plea agreements if all the cases had been consolidated
or if Kekona had been asked to re-plead to the bail jumping
charge.
CONCLUSION
We affirm the April 24, 2009, Judgment filed by_the
trial court in Cr. No. 07-1-0723(3), Cr. No. 08-1-0398(3), and
FC-Cr. NO. 08-1-0166(3).
DATE:D= Honelulu, Hawai‘i, september 22, 2010.
On the briefs:
L,‘¢/.?z/Vemn
Matthew S. Kohm
for Defendant-Appellant. Chief Judge
Richard K. Minatoya
Deputy Prosecuting Attorney g
County of Maui ' b/
for Plaintiff-Appellee. Associate Judg
ll