State v. Alo-Kaonohi

NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
30-MAR-2022
07:47 AM
Dkt. 48 SO
NOS. CAAP-XX-XXXXXXX AND CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
STATE OF HAWAI#I, Plaintiff-Appellee, v.
KAULANA K. ALO-KAONOHI, Defendant-Appellant
APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT
(CASE NO. 2PC141000489(2))
SUMMARY DISPOSITION ORDER
(By: Leonard, Presiding Judge, and Hiraoka and Wadsworth, JJ.)
In these consolidated appeals, Defendant-Appellant
Kaulana K. Alo-Kaonohi (Alo-Kaonohi) appeals from the May 5, 2020
"Order Setting Restitution" and the October 5, 2020 "Amended
Judgment; Conviction and Probation Sentence; Terms and Conditions
of Probation; Notice of Entry," entered in the Circuit Court of
the Second Circuit.1/ In accordance with a plea agreement with
Plaintiff-Appellee State of Hawai#i (State), Alo-Kaonohi pled no
contest to Assault in the First Degree (Assault One), in
violation of Hawaii Revised Statutes (HRS) § 707-710 (2014).2/ As
1/
The Honorable Peter T. Cahill presided. On October 8, 2020, this
court entered an "Order Consolidating CAAP-XX-XXXXXXX and CAAP-XX-XXXXXXX
Under CAAP-XX-XXXXXXX."
2/
Alo-Kaonohi pled no contest to Count Two of the indictment, which
stated:
That on or about the 13th day of February, 2014, in
the County of Maui, State of Hawaii, KAULANA K. ALO KAONOHI
and/or LEVI K. AKI JR., as principals and/or accomplices,
did intentionally or knowingly cause serious bodily injury
to Christopher Kunzelman [(Kunzelman)], thereby committing
the offense of Assault in the First Degree in violation of
Section 707-710(1) of the Hawaii Revised Statutes.
(continued...)
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER
part of his probation sentence, Alo-Kaonohi was ordered to pay
$60,425.53 in restitution, jointly and severally with co-
defendant Levi K. Aki Jr. (Aki).
On appeal, Alo-Kaonohi contends that the Circuit Court
erred "in ordering restitution jointly and severally in amounts
and for items that were not attributed solely to those acts that
[Alo-Kaonohi] was convicted of[,] that being the assault of the
[complaining witness, Kunzelman]."
After reviewing the record on appeal and the relevant
legal authorities, and giving due consideration to the issues
raised and the arguments advanced by the parties, we resolve Alo-
Kaonohi's contentions as follows, and vacate and remand.
"Review of the trial court's decision to impose
restitution is for an abuse of discretion." State v. DeMello,
130 Hawai#i 332, 340, 310 P.3d 1033, 1041 (App. 2013) (citing
State v. Mundon, 121 Hawai#i 339, 349, 219 P.3d 1126, 1136
(2009)). Under HRS § 706-646(2) (2014), the trial court "shall
order the defendant to make restitution for reasonable and
verified losses suffered by the victim or victims as a result of
the defendant's offense when requested by the victim." "To
determine whether a sufficient nexus exists for the application
of HRS § 706-646, a court must determine whether the evidence
supports a finding that the defendant's conduct was the cause of
or aggravated the victim's loss." State v. Phillips, 138 Hawai#i
321, 352, 382 P.3d 133, 164 (2016) (citing State v. Domingo, 121
Hawai#i 191, 195, 216 P.3d 117, 121 (App. 2009)).
Here, on May 5, 2020, the Circuit Court entered the
following Order Setting Restitution, which stated in relevant
part:
A restitution hearing was held on January 23, 2020
. . . .
2/
(...continued)
In exchange for Alo-Kaonohi's plea, the State dismissed all other charges,
which included: Burglary in the First Degree; Assault in the Third Degree;
two counts of Terroristic Threatening in the First Degree; Theft in the Second
Degree; and Criminal Property Damage in the First Degree. Alo-Kaonohi signed
a written "Form K; No Contest Plea," stating, among other things: "I
understand that the court may impose any of the following penalties for
offense(s) to which I now plead: . . . restitution[.]"
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NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER
The Court, having considered the record and the
arguments of counsel, and therefore, being fully advised of
the premises; IT IS HEREBY ORDERED that restitution in the
above-entitled matter is set as follows:
Iphone $ 846.88
Gold chain $ 5,680.00
Land Rover $ 7,947.98
Tools/Household items $25,088.76
Medical costs $10,861.91
Temporary housing $ 5,000.00
Loss of house use $ 5,000.00
Total $60,425.53
Restitution is joint and several with Defendant Levi
K. Aki in 2PC141000490(2).
The order did not contain any findings.
Alo-Kaonohi contends that "[i]mposing restitution
amounts that were not related to the assault of [Kunzleman] is
not contemplated by HRS § 706-646." Alo-Kaonohi further argues:
The State failed to prove by a preponderance of the
evidence a nexus between the items and costs sought for
restitution and the costs and damages that were actually
incurred from the injury Kunzelman complained of. All the
other items ordered for restitution other than the medical
expenses were over and above those medical expenses and
should not have been imposed on [Alo-Kaonohi]. 3/
(Footnote added.)
We recently addressed a similar argument in State v.
Aki, No. CAAP-XX-XXXXXXX, 2022 WL ______ (Haw. App. March 28,
2022), which arose from the same February 13, 2014 incident in
which Kunzelman was injured. There, Aki pled no contest to
Terroristic Threatening in the First Degree, in violation of HRS
§ 707-716, for his role in the incident. Id. at *__. Aki and
Alo-Kaonohi both attended the same January 23, 2020 restitution
hearing and, based on the same evidence, Aki was ordered to pay
restitution in the same amount as, and jointly and severally
with, Alo-Kaonohi. Id. Aki appealed in part from an order
setting restitution that substantially mirrors the Order Setting
3/
It appears that Alo-Kaonohi does not dispute the award of
restitution against him for medical expenses to the extent such expenses are
attributable to his actions in assaulting Kunzelman.
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NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER
Restitution in this case. Id. And on appeal, Aki similarly
argued that the State failed to elicit evidence showing that
Aki's offense caused or aggravated Kunzelman's losses. Id.
We analyzed that issue and ruled as follows:
Our appellate review in this case is compromised by
the ambiguity of what constituted the record considered by
the Circuit Court in determining restitution, and by the
lack of factual findings showing the factual basis of the
court's ruling. The Hawai#i Supreme Court has repeatedly
stated that:
cases will be remanded when the factual basis of the
lower court's ruling cannot be determined from the
record." State v. Visintin, 143 Hawai#i 143, 157, 426
P.3d 367, 381 (2018) (internal quotation marks
omitted). This rule has been applied whenever the
trial court fails to make findings of fact that are
necessary for the court's ruling. State v. Hutch, 75
Haw. 307, 331, 861 P.2d 11, 23 (1993) ("Because
findings of fact are imperative for an adequate
judicial review of a lower court's conclusions of law,
we have held that cases will be remanded when the
factual basis of the lower court's ruling cannot be
determined from the record." (alterations and internal
quotation marks omitted) (quoting State v. Anderson,
67 Haw. 513, 514, 693 P.2d 1029, 1030 (1985)));
Anderson, 67 Haw. at 514, 693 P.2d at 1030 (remanding
after determining that the lower court granted the
motion to suppress without having made any findings of
fact). Accordingly, when a trial court has failed to
issue findings of fact and the appellate court is
unable to discern the factual basis of the lower
court's ruling, we have held that the case should be
remanded to permit the lower court or agency to make
the requisite findings. Visintin, 143 Hawai #i at 157,
426 P.3d at 381; see also Gordon v. Gordon, 135
Hawai#i 340, 351, 350 P.3d 1008, 1019 (2015)
(remanding to the trial court when the record was so
deficient as to prohibit "meaningful appellate
review").
[In re] Elaine Emma Short Revocable Living Tr. Agreement
Dated July 17, 1984, 147 Hawai#i 456, 466, 465 P.3d 903, 913
(2020).
. . . .
[The Order Setting Restitution] did not contain any
findings. While the Circuit Court's oral ruling appears to
contain some factual findings and a credibility finding, it
is still unclear what evidence the Circuit Court relied on
in determining that a causal connection existed between
Aki's offense and Kunzelman's losses.
The State did not introduce any evidence at the
restitution hearing about Aki's offense or conduct, and Alo
Kaonohi's offense or conduct; and only introduced Exhibit
No. 1 which listed numerous items of loss claimed by
Kunzelman and their values. It is not clear whether the
[Pre-sentence Investigation (PSI)] [R]eport was part of the
record of the restitution hearing, or whether the Circuit
Court considered any part of the PSI Report in determining
restitution. It is also not clear whether and to what
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NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER
extent the Circuit Court considered any statements or
evidence presented to it, at the prior sentencing hearing
. . . in determining restitution.
While a court is not precluded from considering
evidence within the record prior to a restitution hearing,
it is unclear what the Circuit Court may have relied upon in
this case. Cf. Phillips, 138 Hawai#i at 352-53, 382 P.3d at
164-65 (holding that evidence at trial and sentencing
plainly demonstrated a sufficient nexus between the
defendant's attack, victim's later death, and restitution
for funeral expenses, where defendant was convicted of
second-degree attempted murder); State v. Domingo, 121
Hawai#i 191, 195, 216 P.3d 117, 121 (App. 2009) (holding
that based on the factual basis stipulated to at the time of
defendant's no contest plea to Accidents Involving Death or
Serious Bodily Injury, and the State's acknowledgment at the
restitution hearing that the decedent, not defendant, caused
the accident that led to decedent's death, there was no
sufficient nexus to order restitution where there was no
conduct by the defendant that caused or aggravated the
victim's injuries or death). Unlike Phillips, 138 Hawai #i
321, 382 P.3d 133, there was no trial here; and there was no
factual basis for Aki's no contest plea to the first-degree
terroristic threatening offense he pled to, unlike Domingo,
121 Hawai#i 191, 216 P.3d 117.
The Circuit Court's oral ruling did not articulate
what Aki's conduct was, what co-defendant Alo Kaonohi's
conduct was, and how the court connected each defendant's
offenses with the various losses claimed by Kunzelman, to
award the restitution amounts. Based on the current record,
this court is unable to determine whether the Circuit Court
abused its discretion in ordering Aki to pay $60,425.53 in
restitution. See [In re] Elaine Emma Short, 147 Hawai #i at
466, 465 P.3d at 913; DeMello, 130 Hawai#i at 340, 310 P.3d
at 1041.
For the foregoing reasons, we vacate in part with
respect to the restitution condition in the Amended Judgment
of Conviction and Probation Sentence . . . ; and vacate the
Order Setting Restitution . . . , and remand for factual
findings and for further proceedings as may be necessary[,]
consistent with this Summary Disposition Order.
Id. at *__ (footnote omitted).
The same reasoning applies here. There was no trial in
this case, and there is nothing in the record establishing the
factual basis for Alo-Kaonohi's no contest plea to the Assault
One charge. Based on the Order Setting Restitution and the
transcript of the restitution hearing, it is unclear what
evidence the Circuit Court relied on in determining that a causal
connection existed between Alo-Kaonohi's offense and Kunzelman's
losses. And neither the Order Setting Restitution nor the
Circuit Court's oral ruling articulated what Alo Kaonohi's
conduct was and how the court connected each defendant's offense
with the various losses claimed by Kunzelman. Based on the
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NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER
current record, this court is unable to determine whether the
Circuit Court abused its discretion in ordering Alo Kaonohi to
pay $60,425.53 in restitution. See In re Elaine Emma Short, 147
Hawai#i at 466, 465 P.3d at 913.
For these reasons, we vacate in part with respect to
the restitution condition in the October 5, 2020 "Amended
Judgment; Conviction and Probation Sentence; Terms and Conditions
of Probation; Notice of Entry," and vacate the May 5, 2020 Order
Setting Restitution, both entered in the Circuit Court of the
Second Circuit, and remand for factual findings and for further
proceedings as may be necessary, consistent with this Summary
Disposition Order.
DATED: Honolulu, Hawai#i, March 30, 2022.
On the briefs:
/s/ Katherine G. Leonard
Richard D. Gronna Presiding Judge
for Defendant-Appellant.
Richard B. Rost, /s/ Keith K. Hiraoka
Deputy Prosecuting Attorney, Associate Judge
County of Maui,
for Plaintiff-Appellee.
/s/ Clyde J. Wadsworth
Associate Judge
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