State v. Semes

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
17-JUN-2022
07:56 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.
ROMAN SEMES, Defendant-Appellant
APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT
(CASE NO. 2PC151001014(3))
SUMMARY DISPOSITION ORDER
(By: Ginoza, Chief Judge, Leonard and Wadsworth, JJ.)
Defendant-Appellant Roman Semes (Semes) appeals from
the August 4, 2020 Order Denying Defendant's Motion to Dismiss
Count Five of the Indictment for Failure to State an Offense
(Order Denying Second Motion to Dismiss), entered in the Circuit
Court of the Second Circuit (Circuit Court).1
Semes raises a single point of error on appeal,
contending that the Circuit Court erred when it entered the Order
Denying Second Motion to Dismiss.
1
The Honorable Kelsey K. Kawano entered the Order Denying Motion.
The Honorable Joseph E. Cardoza presided over the underlying criminal
proceeding and entered the Judgment.
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
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 Semes's point of error as follows:
On April 2, 2018, the Circuit Court entered a Judgment;
Conviction and Sentence; Notice of Entry (Judgment) in the
underlying criminal proceeding. Pursuant to a plea agreement and
guilty plea, Semes was convicted on two counts of Negligent
Homicide in the First Degree, in violation of Hawaii Revised
Statutes (HRS) § 707-702.5 (2014), two counts of Negligent Injury
in the First Degree, in violation of HRS § 707-705 (2014), and
one count of Accidents Involving Death or Serious Bodily Injury,
in violation of HRS § 291C-12 (2020) (Count 5),2 and sentenced to
consecutive terms of imprisonment, collectively totaling 40
years, including 10 years for Count 5. Prior to the entry of the
Judgment, on March 22, 2018, Semes filed a motion to dismiss
Count 5 for failure to state an offense (First Motion to
Dismiss), which was orally denied at the sentencing hearing held
on April 2, 2018, with a written order entered on August 14,
2018.
2
HRS § 291C-12 provides, in relevant part:
§ 291C-12 Accidents involving death or serious bodily
injury. (a) The driver of any vehicle involved in an
accident resulting in bodily injury to or death of any
person shall immediately stop the vehicle at the scene
of the accident or as close thereto as possible but
shall then forthwith return to and in every event
shall remain at the scene of the accident until the
driver has fulfilled the requirements of section
291C-14. Every such stop shall be made without
obstructing traffic more than is necessary.
2
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
On November 18, 2018, Semes filed a direct appeal from
the Judgment (CAAP-XX-XXXXXXX), challenging the Circuit Court's
denial of his demand for a jury trial on the issue of consecutive
sentences on due process grounds, but not arguing that (1) the
Circuit Court abused its discretion in imposing consecutive
sentences, or (2) the Circuit Court erred in denying the First
Motion to Dismiss. This court affirmed the Judgment, and Semes's
petition for writ of certiorari was ultimately dismissed.
Subsequent to the filing of Semes's direct appeal in
CAAP-XX-XXXXXXX, on March 13, 2020, the supreme court issued
State v. Baker, 146 Hawai#i 299, 463 P.3d 956 (2020), where it
assessed whether a charge must include that "every such stop be
made without obstructing traffic more than is necessary" when
charging a driver with the offense of not stopping at an accident
scene and providing the required information under HRS § 291C-13
(2020).3 Id. at 302, 463 P.3d at 959. The supreme court held
that, "[t]he requirement that the stop was made without
obstructing traffic more than is necessary is thus a requisite
aspect of proof of the offense when the driver stops at, or
forthwith returns to, a location that the State contends is not
as close as 'possible' to the accident scene." Id. at 307, 463
P.3d at 964.
3
As the State acknowledges, although HRS § 291C-13 involves the
offense of Accidents Involving Damage to Vehicle or Property, the identical
subject phrase is contained in HRS § 291C-12.
3
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Thereafter, on June 12, 2020, Semes filed a second
Motion to Dismiss [Count 5] for Failure to State an Offense,
citing Baker (Second Motion to Dismiss). In opposition, the
State noted that the motion was procedurally improper, as Semes
should have sought relief pursuant to Hawai#i Rules of Penal
Procedure (HRPP) Rule 40, and argued that by pleading guilty to
Count 5, Semes was precluded from challenging the charge on
collateral review because the failure to allege an element of an
offense is a non-jurisdictional defect. After a hearing on the
motion, the Circuit Court entered the Order Denying Second Motion
to Dismiss, and this appeal followed.
We review the Order Denying Second Motion to Dismiss as
a denial of a nonconforming HRPP Rule 40 petition.
As argued by the State, pursuant to a plea agreement
that included the dismissal of certain counts against Semes,
Semes pleaded guilty to the remaining counts, including Count 5.
Semes thereafter moved to dismiss Count 5 for failure to allege
an element of the offense after his guilty plea.
"[A] guilty plea made voluntarily and intelligently
precludes a defendant from later asserting any nonjurisdictional
claims, including constitutional challenges to the pretrial
proceedings." State v. Morin, 71 Haw. 159, 162, 785 P.2d 1316,
1318 (1990). The omission of an element of an offense is a
nonjurisdictional claim. Schwartz v. State, 136 Hawai#i 258,
282, 361 P.3d 1161, 1185 (2015) ("[T]he failure of a charging
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NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
instrument to allege an element of an offense does not constitute
a jurisdictional defect that fails to confer subject-matter
jurisdiction to the district court."). The Second Motion to
Dismiss, which sought dismissal of Count 5 for failure to include
an element of the offense, raised a nonjurisdictional claim.
Thus, we conclude that the Circuit Court did not err in denying
the Second Motion to Dismiss.
Accordingly, the Circuit Court's August 4, 2020 Order
Denying Second Motion to Dismiss is affirmed.
DATED: Honolulu, Hawai#i, June 17, 2022.
On the briefs: /s/ Lisa M. Ginoza
Chief Judge
Keith S. Shigetomi,
for Defendant-Appellant. /s/ Katherine G. Leonard
Associate Judge
Renee Ishikawa Delizo,
Deputy Prosecuting Attorney, /s/ Clyde J. Wadsworth
County of Maui, Associate Judge
for Plaintiff-Appellee.
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