CourtListener 10767449

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NOT FOR PUBLICATION IN WEST'S HAWAI I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
31-DEC-2025
07:47 AM
Dkt. 49 SO
NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI I

NANCY LACUESTA, Petitioner-Appellant, v.
STATE OF HAWAI I, Respondent-Appellee

APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT
(CASE NO. 2CPN-XX-XXXXXXX)

SUMMARY DISPOSITION ORDER
(By: Leonard, Presiding Judge, Hiraoka and Guidry, JJ.)
Petitioner-Appellant Nancy Lacuesta (Lacuesta) appeals

from the November 9, 2023 Findings of Fact, Conclusions of Law,

and Order Denying Petition to Vacate and Set Aside Judgment Under

Rule 40, Hawaii Rules of Penal Procedure [(HRPP)] (Order Denying

Petition) entered against her by the Circuit Court of the Second

Circuit (Circuit Court).1

The Statement of Points of Error section of Lacuesta's

Opening Brief does not comply with Hawaii Rules of Appellate

Procedure (HRAP) Rule 28(b)(4), including the failure to state

where in the record the alleged error was objected to or the

manner in which the alleged error was brought to the attention of

the Circuit Court. Accordingly, we review for plain error. In

1
The Honorable Michelle L. Drewyer Presided.
NOT FOR PUBLICATION IN WEST'S HAWAI I REPORTS AND PACIFIC REPORTER

sum, Lacuesta contends that the Circuit Court erred in denying

Lacuesta's July 17, 2023 Petition to Vacate and Set Aside

Judgment Under Rule 40, [HRPP] (Rule 40 Petition). Lacuesta does

not challenge any of the Circuit Court's Findings of Fact (FOFs),

which are therefore binding on the court, but points to

Conclusions of Law (COLs) 7, and 10-14 as erroneous.2

2
The challenged COLs state:

7. During the change-of-plea colloquy in the
underlying case, the Court did advise Petitioner that by
pleading no contest, she may be sentenced inter alia to pay
"a fee and/or assessment," Petitioner confirmed that this
was explained to her, and she did not have any questions
about it. The Court finds sufficient advisement was given
that in addition to the authorized fine for the offense set
by HRS § 706-640, Petitioner might have to pay a fee and/or
assessment such as the Probation Services Fee, Crime Victim
Compensation Fee, and DNA Assessment, whereby the Court
concludes that the Petition is patently frivolous and
without trace of support either in the record or in the
other evidence submitted by the petitioner.

. . . .

10. At sentencing, Petitioner did not object to the
imposition of the Probation Services Fee, Crime Victim
Compensation Fee, and DNA Assessment; Petitioner informed
the Court she could afford it; and the subject fees were
paid in full in 2009, whereby the Court concludes that her
allegation of invalid plea is not credible and not a
colorable claim.

11. Petitioner did not file a direct appeal to
challenge her sentence or move to withdraw her plea before
the Judgment became final in 2009, whereby the Court
concludes that her allegation of invalid plea was waived,
and Petitioner has not proven the existence of extraordinary
circumstances to justify her failure to raise the issue.

12. Under the liberal pre-sentence standard of "fair
and just reason," the court weighs whether the State relied
upon the plea to its substantial prejudice; therefore, it
follows that this factor should also be considered under the
more stringent "manifest injustice" standard. See State v.
Jim, 58 Haw. 574, 575-76, 574 P.2d 521, 522-23 (1978).

13. After the Judgment in the underlying case became
final, a compact disc containing evidence for the underlying
case was purged by Maui County Police Department on April
21, 2014, whereby the·Court concludes that the State relied
on Petitioner's no contest plea to its substantial
prejudice.

14. Based on the foregoing, the Court concludes that
Petitioner failed to establish manifest injustice to
withdraw her plea.

2
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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, we resolve

Lacuesta's points of error as follows:

In the Rule 40 Petition, Lacuesta sought to vacate and

set aside the June 24, 2009 Judgment; Conviction and Probation

Sentence; Notice of Entry (2009 Judgment) entered against her

after a no contest plea on a charge of Theft in the Second

Degree. In the 2009 Judgment, Lacuesta was sentenced to five

years probation, with a Criminal Victim Compensation fee of $105,

a Probation Services fee of $150, and a monetary assessment of

$500 or the actual cost of the DNA analysis (collectively,

Monetary Assessments), as well as a fine of $500.

In the Rule 40 Petition, Lacuesta argued that her no

contest plea was invalid because the trial court failed to advise

her that she could be sentenced to additional monetary

assessments, and therefore, her plea was not knowing,

intelligent, and voluntary.3 After further briefing, on October

19, 2023, a hearing was held on the Rule 40 Petition. The Order

Denying Petition was entered thereafter.

With respect to Lacuesta's arguments on appeal, as a

preliminary matter, it does not appear that Lacuesta raised or

properly preserved a hearsay objection in the proceedings below.

Thus, Lacuesta's challenge to COL 13 based on the argument that

the Circuit Court improperly considered inadmissible hearsay is

3
Lacuesta was represented by counsel through the HRPP Rule 40
proceedings.

3
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waived; plain error review of this issue is not warranted. See,

e.g., State v. Crisostomo, 94 Hawai i 282, 290, 12 P.3d 873, 881

(2000); State v. Metcalfe, 129 Hawai i 206, 225, 297 P.3d 1062,

1081 (2013).

Lacuesta's overarching argument is that the sentencing

court failed to strictly comply with HRPP Rule 11(c)(2) 4 because

the court incorrectly advised Lacuesta of the maximum fine that

could be imposed, and thus, Lacuesta's no contest plea was not

knowing, intelligent, and voluntary; and accordingly, the

colloquy was constitutionally invalid.

Lacuesta relies heavily on Warner v. State, 151 Hawai i

433, 438, 517 P.3d 716, 721 (2022), wherein the Hawai i Supreme

Court held that the petitioner-appellant's (Warner's) HRPP Rule

40 claim that the trial court's failure to inform Warner of any

of the monetary assessments before accepting a change of plea

stated a colorable Rule 40 claim for relief from the monetary

assessments.

Warner filed an HRPP Rule 40 petition that raised

various issues and requested, inter alia, that his sentence be

4
HRPP Rule 11(c)(2) provides:

Rule 11. PLEAS.

. . . .

(c) Advice to defendant. The court shall not accept a
plea of guilty or no contest without first addressing the
defendant personally in open court, or by video conference
with defendant's consent and affirmation of defendant's
identity on the record, and determining that the defendant
understands the following:

. . . .

(2) the maximum penalty provided by law, and the
maximum sentence of extended term of imprisonment, which may
be imposed for the offense to which the plea is offered[.]

4
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ended and that all fines and fees be waived. Id. at 436, 517

P.3d at 719. Warner's petition was denied without a hearing and

this court affirmed. Id. at 436-37, 517 P.3d at 719-20. The

supreme court held that Warner stated a colorable claim regarding

monetary assessments, noting that "[t]he sentencing court did not

inform Warner of any of the monetary assessments it imposed

before accepting Warner's change of plea." Id. at 438, 517 P.3d

at 721 (emphasis added). Therefore, the supreme court held that

Warner's Rule 40 petition "stated a colorable claim as to his

request that the monetary assessments, which constitutes fines,

be set aside based on the sentencing court's failure to advise

him of them before accepting his plea." Id. Thus, and based on

the sentencing court's failure to address whether Warner had the

ability to pay the monetary assessments, 5 the case was remanded

to the trial court for further proceedings, i.e., a hearing on

Warner's colorable Rule 40 claims. 6

Unlike in Warner, where the defendant was not informed

of any monetary assessments before accepting the change of plea,

Lacuesta was advised, inter alia:
THE COURT: All right. Item six reads, I understand
that the Court may impose any of the following
penalties for the offense to which I now plead. The
maximum term of imprisonment. If you look at the top
of the page, for theft in the second degree, the
maximum term is five years jail and a $10,000.00
fine.

Has that been explained to you?

THE DEFENDANT: Yes.

5
Here, the Circuit Court inquired as to Lacuesta's ability to pay
the Monetary Assessments, the answer was yes, and Lacuesta does not raise any
issues regarding her ability to pay.
6
Other relief, not pertinent to this case, was also granted to
Warner.

5
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THE COURT: All right. It appears that extended terms
and mandatory minimum terms of imprisonment do not
apply, nor do consecutive terms of imprisonment. You
may also be sentenced, however, to restitution, a
fine, a fee and/or assessment, community service,
probation, with up to one year of imprisonment, and
other terms and conditions.

Has that all been explained to you?

THE DEFENDANT : Yes, your Honor.

THE COURT: Again, any questions?

THE DEFENDANT: No, your Honor.7

Also, unlike in Warner, a hearing was held on

Lacuesta's Rule 40 Petition. Fourteen years after her plea and

sentence, Lacuesta sought to withdraw her no contest plea and

enter a plea of not guilty. Hawai i law regarding plea

withdrawals is governed by HRPP Rule 32(d), which provides in

relevant part:
(d) Withdrawal of Plea. A motion to withdraw a plea
of guilty or of nolo contendere may be made before sentence
is imposed or imposition of sentence is suspended; provided
that, to correct manifest injustice the court, upon a
party's motion submitted no later than ten (10) days after
imposition of sentence, shall set aside the judgment of
conviction and permit the defendant to withdraw the plea.
At any later time, a defendant seeking to withdraw a plea of
guilty or nolo contendere may do so only by petition
pursuant to Rule 40 of these rules and the court shall not
set aside such a plea unless doing so is necessary to
correct manifest injustice.

(Emphasis added).

Thus, the issue before the Circuit Court was whether

setting aside Lacuesta's plea was necessary to correct manifest

injustice. "Manifest injustice occurs when a defendant makes a

plea involuntarily or without knowledge of the direct

consequences of the plea." State v. Kealoha, 142 Hawai i 46, 59,

7
No objections were made to the Monetary Assessments at sentencing.
Lacuesta did not file a post-sentence motion to withdraw plea within 10 days
of sentencing and she did not appeal the sentence. The Monetary Assessments
were paid in full in 2009, probation was completed in 2014, and she was
discharged on July 29, 2014.

6
NOT FOR PUBLICATION IN WEST'S HAWAI I REPORTS AND PACIFIC REPORTER

414 P.3d 98, 111 (cleaned up). The manifest injustice standard

also seeks to avoid the risk of prejudice to the State and to the

efficient administration of criminal justice. See generally

State v. Jim, 58 Haw. 574, 575-76, 574 P.2d 521, 522-23 (1978).

In COL 7, which contains mixed findings of fact and

conclusions of law, the Circuit Court did not plainly err when it

found that the 2009 court taking Lacuesta's change of plea did

advise Lacuesta that by pleading no contest she might be

sentenced to pay a fee and/or assessment, that Lacuesta

acknowledged that this had been explained to her, and she had no

questions. In COL 10, the Circuit Court did not plainly err when

it stated that Lacuesta had no objections at sentencing to the

Monetary Assessments; Lacuesta had informed the court that she

could afford the fines; and they were in fact paid in 2009. In

addition, in COL 13, the Circuit Court did not plainly err when

it found and concluded, inter alia, that the State was

substantially prejudiced by the extensive delay in Lacuesta's

request to withdraw her plea, as the evidence for the underlying

case was purged in 2014.

We conclude that the Circuit Court erred in concluding

that the Rule 40 Petition – based on an allegation of an invalid

plea – was waived, patently frivolous, and/or without a trace of

support. See Warner, 151 Hawai i at 438, 515 P.3d at 721.

However, we conclude that such errors are harmless in light of

the record, including that a full hearing was held on the Rule 40

Petition and Lacuesta failed to establish that a withdrawal of

her 2009 no contest plea was necessary to avoid a manifest

injustice in this case.

7
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For these reasons, the Circuit Court's November 9, 2023

Order Denying Petition is affirmed.

DATED: Honolulu, Hawai i, December 31, 2025.

On the briefs: /s/ Katherine G. Leonard
Presiding Judge
Hayden Aluli,
for Petitioner-Appellant. /s/ Keith K. Hiraoka
Associate Judge
Renee Ishikawa Delizo,
Deputy Prosecuting Attorney, /s/ Kimberly T. Guidry
County of Maui, Associate Judge
for Respondent-Appellee.

NOT FOR PUBLICATION IN WEST'S HAWAI I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
31-DEC-2025
07:47 AM
Dkt. 49 SO
NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI I

NANCY LACUESTA, Petitioner-Appellant, v.
STATE OF HAWAI I, Respondent-Appellee

APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT
(CASE NO. 2CPN-XX-XXXXXXX)

SUMMARY DISPOSITION ORDER
(By: Leonard, Presiding Judge, Hiraoka and Guidry, JJ.)
Petitioner-Appellant Nancy Lacuesta (Lacuesta) appeals

from the November 9, 2023 Findings of Fact, Conclusions of Law,

and Order Denying Petition to Vacate and Set Aside Judgment Under

Rule 40, Hawaii Rules of Penal Procedure [(HRPP)] (Order Denying

Petition) entered against her by the Circuit Court of the Second

Circuit (Circuit Court).1

The Statement of Points of Error section of Lacuesta's

Opening Brief does not comply with Hawaii Rules of Appellate

Procedure (HRAP) Rule 28(b)(4), including the failure to state

where in the record the alleged error was objected to or the

manner in which the alleged error was brought to the attention of

the Circuit Court. Accordingly, we review for plain error. In

1
The Honorable Michelle L. Drewyer Presided.
NOT FOR PUBLICATION IN WEST'S HAWAI I REPORTS AND PACIFIC REPORTER

sum, Lacuesta contends that the Circuit Court erred in denying

Lacuesta's July 17, 2023 Petition to Vacate and Set Aside

Judgment Under Rule 40, [HRPP] (Rule 40 Petition). Lacuesta does

not challenge any of the Circuit Court's Findings of Fact (FOFs),

which are therefore binding on the court, but points to

Conclusions of Law (COLs) 7, and 10-14 as erroneous. 2

2
The challenged COLs state:

. . . .

14. Based on the foregoing, the Court concludes that
Petitioner failed to establish manifest injustice to
withdraw her plea.

2
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, we resolve

Lacuesta's points of error as follows:

In the Rule 40 Petition, Lacuesta sought to vacate and

set aside the June 24, 2009 Judgment; Conviction and Probation

Sentence; Notice of Entry (2009 Judgment) entered against her

after a no contest plea on a charge of Theft in the Second

Degree. In the 2009 Judgment, Lacuesta was sentenced to five

years probation, with a Criminal Victim Compensation fee of $105,

a Probation Services fee of $150, and a monetary assessment of

$500 or the actual cost of the DNA analysis (collectively,

Monetary Assessments), as well as a fine of $500.

In the Rule 40 Petition, Lacuesta argued that her no

contest plea was invalid because the trial court failed to advise

her that she could be sentenced to additional monetary

assessments, and therefore, her plea was not knowing,

intelligent, and voluntary. 3 After further briefing, on October