FOR PUBLICATION
IN
THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI`I
---o0o---
STATE
OF HAWAI`I, Plaintiff-Appellee, v.
JUSTIN K. H. AETO, Defendant-Appellant
NO. 25297
APPEAL
FROM THE DISTRICT COURT OF THE FIRST CIRCUIT
(TRAFFIC HPD NO. 98253694)
JULY 23, 2004
BURNS, C.J., LIM AND FOLEY, JJ.
OPINION OF THE COURT BY BURNS, C.J.
Defendant-Appellant Justin K. H. Aeto (Aeto) appeals from the January 21, 2004 Notice of Entry of Judgment and/or Order and Plea/Judgment that denied his July 15, 2002 Motion to Withdraw No Contest Plea. (1) We affirm.
Hawai`i Rules of Penal Procedure (HRPP) Rule 11 (1993) states, in relevant part, as follows:
(c) Advice to Defendant. The court shall not accept a plea of guilty or nolo contendere without first addressing the defendant personally in open court and determining that he understands the following:
(3) that he has the right to plead not guilty, or to persist in that plea if it has already been made; and
. . . .
HRPP Rule 32(d) (1994) states as follows:
Withdrawal of Plea of Guilty. A motion to withdraw a plea of guilty or of nolo contendere may be made only before sentence is imposed or imposition of sentence is suspended; but to correct manifest injustice the court after sentence shall set aside the judgment of conviction and permit the defendant to withdraw his plea.
HRPP Rule 40 (2000) states, in relevant part, as follows:
(1) From Judgment. At any time but not prior to final judgment, any person may seek relief under the procedure set forth in this rule from the judgment of conviction, on the following grounds:
On July 7, 1998, Aeto was arrested for the following offenses: (1) Driving Under the Influence of Intoxicating Liquor (DUI), Hawaii Revised Statutes (HRS) § 291-4 (1993); (2) No No-Fault Insurance, HRS § 431:10C-104 (Supp. 1997); and (3) Disobedience to Traffic-Control Devices, HRS § 291C-31 (1993).
On October 21, 1998, while represented by a deputy public defender and pursuant to a plea agreement, Aeto pled no contest to charge (1), and charges (2) and (3) were dismissed. Judge Christopher McKenzie spoke with Aeto in relevant part as follows:
THE COURT: . . . Mr. Aeto, I take it you discussed your no contest plea on your driving under the influence charge with your attorney?
THE COURT: And, you understand when you plead no contest, you will be found guilty?
. . . .
[AETO]: Yes, sir.
[AETO]: Yes, sir.
THE COURT: And, what is your age?
THE COURT: And, what is the highest grade of formal education you've had?
THE COURT: Have any difficulty understanding any -- anything I've been saying to you about your right to go to trial on this case?
THE COURT: Do you give up and waive your right to a trial?
THE COURT: I find you've made a knowing, voluntary and intelligent waiver of your right to trial in this case. On your plea of no contest to Driving Under the Influence of Intoxicating Liquor on July 7, 1998, I find you guilty. Anything you want to say before I sentence you?
THE COURT: All right. I sentence you as follows: 14 (fourteen) hours of alcohol abuse education and counseling; a 90-day license suspension, 30 (thirty) of which will be absolute. But, the 60 (sixty) days you'll be able to drive to and from work, and to and from alcohol assessment and counseling. That will run concurrent with any administrative suspension that has occurred or will occur. A hundred fifty dollar ($150.00) fine, and alcohol assessment and possible treatment at your own expense, and a hundred and seven dollar ($107.00) Drive [sic] Education assessment.
[AETO]: Thank you, Your Honor.
On July 15, 2002, Aeto filed a Motion to Withdraw No Contest Plea. In his declaration in support of the motion, counsel for Aeto wrote, in relevant part, as follows:
It is clear from the plea colloquy that there are several problems with the taking of the plea which entitle [Aeto] to withdraw his no contest plea at this time. First, the reading of the charge was never made. As the attached Memorandum of law suggests, this is a jurisdictional defect in District Court. Second, HRPP Rule 11(c) was ignored in several respects - the nature of the charge was never discussed with [Aeto] by the Court, the Court never told [Aeto] what the possible maximum penalty was, and there was minimal discussion about [Aeto's] waiver of a jury trial.
At the conclusion of a hearing on the motion on July 29, 2002, the court orally denied the motion. On January 21, 2004, the court filed a Notice of Entry of Judgment and/or Order and Plea/Judgment.
In this appeal, Aeto contends that
(Citation omitted.)
In this case, the record pertaining to the motion to withdraw guilty plea is complete. Aeto had the burden of establishing, by a preponderance of the evidence, plausible and legitimate grounds for the withdrawal. To prevail on his motion, it was Aeto's burden to prove the occurrence of a "manifest injustice." The mere fact that the court did not comply with all of the requirements of HRPP Rule 11 when he accepted Aeto's plea is not proof of a "manifest injustice." Therefore, Aeto has failed to satisfy his burden of proof and the July 29, 2002 order must be affirmed.
CONCLUSION
Accordingly, we
affirm the January 21, 2004 Notice of Entry of Judgment and/or
Order and Plea/Judgment that denied the
July 15, 2002 Motion to Withdraw No Contest Plea filed by
Defendant-Appellant
Justin K. H. Aeto.
Alexa D.M. Fujise
Deputy Prosecuting Attorney,
City and County of Honolulu
for Plaintiff-Appellee.
1. Appellate jurisdiction is based on the precedent of State v. Bohannon. 102 Hawai`i 228, 74 P.3d 980 (2003).
2. The word "manifest"
"is synonymous with open, clear, visible, unmistakable, indubitable,
indisputable, evident, and self-evident." Black's Law Dictionary 962
(6th ed. 1990). "Manifest
injustice" is defined as "[a]n error in the trial court that is direct,
obvious, and observable, such
as a defendant's guilty plea that is involuntary or that is based on a
plea agreement that the
prosecution rescinds." Black's Law Dictionary 974 (7th ed. 1999). That
being so, query why the abuse
of discretion standard of review, rather than the right/wrong standard
of review, is applied to the
trial court's decision that the required showing of a "manifest
injustice" has not been made.