NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
NO. 27827
IN
THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI‘I
On the day of trial, Sakurada was orally charged with the offense of Prostitution in violation of HRS § 712-1200(1) (1993), but was instead convicted of Street Solicitation of Prostitution under HRS § 712-1207 (Street Solicitation). (2) She contends on appeal that her conviction must be reversed due to a defective charge and that she may not be retried for either charge pursuant to the Double Jeopardy Clause.
"Whether an indictment or complaint sets forth all the essential elements of a charged offense . . . is a question of law, which we review under the de novo, or right/wrong, standard." State v. Jess, 117 Hawai‘i 381, 391, 184 P.3d 133, 143 (2008) (internal quotation marks and brackets omitted) (quoting State v. Merino, 81 Hawai‘i 198, 212, 915 P.2d 672, 686 (1996)). Under the right/wrong standard, the appellate court "examines the facts and answers the question without being required to give any weight to the trial court's answer to it." State v. Joseph, 109 Hawai‘i 482, 493, 128 P.3d 795, 806 (2006) (internal quotation marks omitted) (quoting State v. Keliiheleua, 105 Hawai‘i 174, 179, 95 P.3d 605, 610 (2004)). Post-conviction challenges to indictments, oral charges, or complaints are liberally construed in favor of validity. State v. Elliott, 77 Hawai‘i 309, 311, 884 P.2d 372, 374 (1994). Under the "liberal construction standard" for post-conviction challenges, Hawaii appellate courts "will not reverse a conviction based upon a defective oral charge unless the defendant can show prejudice or that the oral charge cannot within reason be construed to charge a crime." Elliott, 77 Hawai‘i at 311, 884 P.2d at 374 (brackets omitted); see also State v. Ruggiero, 114 Hawai‘i 227, 239, 160 P.3d 703, 715 (2007).Upon careful review of the record, the applicable statutes and case law, 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 Sakurada's points of error as follows:
The oral charge was defective because it charged Sakurada with the offense of Prostitution and not Street Solicitation. The oral charge described the element of engaging in sexual conduct with another person for a fee, as required for the offense of Prostitution under HRS § 712-1200(1) (3), but it did not state an essential element of Street Solicitation under HRS § 712-1207(2) (4), specifically, the geographical area of the alleged solicitation, which was Downtown Honolulu.
While the State agrees that the District Court erred in convicting Sakurada of the offense of Street Solicitation because she was not charged with that offense, the State and Sakurada disagree as to the remedy. The State urges this court to remand this case to the District Court for an entry of judgment of Prostitution because the oral charge on February 15, 2006 can be construed to charge the lesser-included offense of Prostitution. Sakurada argues that the proper remedy is to reverse and vacate (5) the judgment of conviction and sentence for Street Solicitation under HRS § 712-1207. Sakurada further requests that this court find that jeopardy attached to both HRS §§ 712-1200(1) and 712-1207, prohibiting retrial and resentencing on either offense.
The State argues, Sakurada acknowledges, and we agree that the offense of Prostitution is a lesser-included offense of Street Solicitation. However, Sakurada argues that she may not now be convicted and sentenced under HRS § 712-1200(1) because her rights would be substantially affected. Specifically, she points out that she would suffer prejudice because she would not have the option of a deferred acceptance of a guilty (DAG) plea, and she may not now be sentenced for the lesser-included offense because she has already served the sentence for the greater offense.
Sakurada notes that the punishments under HRS §§ 712-1200(1) (6) and 712-1207 (7) differ. For instance, a conviction for Street Solicitation requires a mandatory thirty days of imprisonment, to be imposed immediately. HRS § 712-1207(4). As an option to the mandatory term, HRS § 712-1207(5) allows a six-month probation period subject to geographic restrictions. While HRS § 712-1207(5) allows the imposition of geographic restrictions as punishment for Street Solicitation, HRS § 712-1200 does not allow a similar condition as punishment for the offense of Prostitution. HRS § 712-1200 imposes a mandatory minimum fine of $500, while HRS § 712-1207 does not. See supra HRS §§ 712-1200(4)(a) and 712-1207(4)-(5). The punishment for the first offense of Prostitution may also include imprisonment of not more than thirty days or probation. HRS § 712-1200(4)(a). For subsequent offenses of Prostitution, HRS § 712-1200(4)(b) imposes a mandatory fine of $500 and a mandatory term of imprisonment of thirty days or probation. Finally, and arguably most importantly, HRS § 712-1200(4) allows a defendant to apply for a DAG plea under HRS Chapter 853 for a first offense.
In this case, Sakurada's conviction was for a first-time offense. Under HRS § 853-1 (1993 and Supp. 2005), a court may defer further proceedings without accepting a plea of nolo contendere or entering a judgment of guilt. HRS § 853-1(a). If the defendant completes the period designated by the court and he or she is in compliance with the terms and conditions established, the court shall discharge the defendant and dismiss the charge against him or her. HRS § 853-1(c). The discharge of the defendant and dismissal of the charge against the defendant shall be without adjudication of guilt, and is not a conviction. HRS § 853-1(d). Also, upon discharge of the defendant and dismissal of the charge against the defendant, the defendant is eligible to apply for expungement four years following the discharge. HRS § 712-1200(4)(c). While a person charged under HRS § 712-1200 is eligible for a deferral under the DAG plea statute, a person charged under HRS § 712-1207 is not. Although the fine under HRS § 712-1200 is larger, a defendant may choose not to contest this charge as it is deferrable, unlike HRS § 712-1207.
By the time of this appeal, Sakurada had completed a six-month conditional probation under HRS § 712-1207. Sakurada's plea may well have been different had she (and her counsel) understood that she was being charged with the offense of Prostitution.
In light of all of the facts and circumstances of this case, we hold that the appropriate remedy is to reverse Sakurada's conviction and sentence for Street Solicitation. Therefore, we need not address the other issue raised by Sakurada on this appeal.
For the foregoing reasons, the District Court's February 16, 2006 Judgment and/or Order is reversed.DATED: Honolulu, Hawai‘i, July 30, 2008.
1. The Honorable Lono J. Lee presided.
2. Sakurada had previously been charged with Street Solicitation, and pre-trial filings also reflected the Street Solicitation charge, but when the charge was read at the onset of trial, the prosecution charged her with Prostitution instead. It appears to be uncontested that the charge of Prostitution was a mistake and that neither of the parties nor the judge realized it at the time. The defendant pled not guilty.
3. In pertinent part, HRS § 712-1200 (1993) states:
4. HRS § 712-1207(2) (Supp. 2005) states:
5. We note that, under Hawai‘i Rules of Appellate Procedure (HRAP) Rule 35(e), the word "reverse" ends litigation on the merits and the phrase "vacate and remand" indicates that the litigation continues in the court below in accordance with the appellate court's instruction.
6. HRS § 712-1200(4) (Supp. 2005) states:
(a)
For the first offense, when the court has not
deferred further proceedings pursuant to chapter 853, a
mandatory fine of $500 and
the person may be sentenced to a term of imprisonment of not more
than thirty
days or probation; provided
that in the event the convicted person defaults in payment of the $500
fine, and
the default was not
contumacious, the court may sentence the person to perform
services for the community
as authorized by section
706-605(1).
(b)
For any subsequent offense, a mandatory fine of $500
and a term of imprisonment of thirty days or
probation, without
possibility of deferral of further proceedings pursuant to chapter 853
and
without
possibility of suspension
of sentence.
7. HRS § 712-1207(4) and (5) states: