State v. Yamauchi

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
16-JUN-2022
07:58 AM
Dkt. 52 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

STATE OF HAWAI#I, Plaintiff-Appellee,
v.
ZACHARY R. YAMAUCHI, Defendant-Appellant

APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT
#EWA DIVISION
(CASE NO. 1DTC-19-011055)

SUMMARY DISPOSITION ORDER
(By: Leonard, Presiding Judge, Hiraoka and Wadsworth, JJ.)

Defendant-Appellant Zachary R. Yamauchi appeals from
the "Order Denying Defendant Yamauchi's Motion to Withdraw No
Contest Plea Electronically Filed September 25, 2019[,]" entered
by the District Court of the First Circuit, #Ewa Division, on
December 16, 2019.1 For the reasons explained below, we affirm
the Order.
On March 28, 2019, Yamauchi was cited for excessive
speeding in violation of Hawaii Revised Statutes (HRS) § 291C-
105(a). He pleaded not guilty. He was referred to the Office of
the Public Defender (OPD). On August 7, 2019, he pleaded no-
contest pursuant to a plea agreement. A "Notice of Entry of
Judgment and/or Order and Plea/Judgment" was entered the same
day. The Judgment included a sentence. The sentence included a

1
The Honorable Thomas A.K. Haia presided.
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

30-day suspension of Yamauchi's driver's license under HRS
§ 291C-105(c)(1)(B).
On September 25, 2019, Yamauchi (through OPD) filed a
"Motion to Withdraw Guilty [sic] Plea and Re-set Case for
Trial[.]" A hearing was set for October 15, 2019.
On September 30, 2019 (before the hearing on the motion
to withdraw plea), OPD submitted a proposed order appointing
counsel. OPD stated that it could not continue acting as counsel
because Yamauchi was claiming ineffective assistance of counsel.
On October 14, 2019, the district court entered an order
appointing new counsel for Yamauchi.
On October 15, 2019, Yamauchi moved to continue the
hearing on his motion to withdraw plea. The hearing was
continued to November 19, December 3, and December 10, 2019. At
the December 10, 2019 hearing the district court took the motion
to withdraw plea under advisement. On December 16, 2019, the
district court entered the Order, which denied the motion to
withdraw plea. This appeal followed.
Yamauchi raises two points on appeal:

"1. The trial court erred by denying
YAMAUCHI's . . . Motion to Withdraw No Contest
Plea to the offense of Excessive Speeding, where
(1) YAMAUCHI entered the plea not knowing that it
would result in the automatic consequence that, in
order to retrieve his driver's license, he would
be required to post a $25,000 [sic] bond or obtain
sufficient insurance, called an SR-22, (2) his
appointed counsel never informed him of the SR-22
requirement, (3) the SR-22 is a de facto three
year suspension of his driver's license, and
(4) YAMAUCHI would not have entered a no contest
plea had he known about the SR-22"; and

"2. YAMAUCHI's counsel's performance prior
to his plea of no contest was not within the range
of competence demanded of attorneys in criminal
cases, and therefore constitutionally deficient,
because his counsel failed to advise YAMAUCHI
that, if he plead guilty to Excessive Speeding,
(1) he would be required to post a $25,000 [sic]
bond or obtain insurance (the SR-22) in order to

2
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

have his driver's license returned to him, and
(2) the SR-22 automatically applied by operation
of statute."

(1) "The denial of a post-sentence motion for
withdrawal of plea is reviewed for abuse of discretion." State
v. Fogel, 95 Hawai#i 398, 405, 23 P.3d 733, 740 (2001) (citation
omitted). "An abuse of discretion occurs if the trial court has
clearly exceeded the bounds of reason or has disregarded rules or
principles of law or practice to the substantial detriment of a
party litigant." Id. (cleaned up).
The district court did not abuse its discretion by
denying Yamauchi's motion to withdraw plea because the motion was
untimely. Hawai#i Rules of Penal Procedure (HRPP) Rule 32(d)
provides:

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). Yamauchi's motion to withdraw plea was made
more than ten days after the district court imposed his sentence.
The motion was not made by petition pursuant to HRPP Rule 40
("Post-conviction Proceeding"), as required under HRPP Rule
32(d). The district court did not abuse its discretion by
denying the untimely motion.
Even if the district court had treated Yamauchi's
motion as a nonconforming petition under HRPP Rule 40(c)(2), the
SR-22 requirement is a collateral consequence of an excessive
speeding conviction, of which Yamauchi was not required to be
informed. "[A]n accused need not be informed prior to the
acceptance of his guilty plea about every conceivable collateral

3
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

effect the conviction might have." Reponte v. State, 57 Haw.
354, 364, 556 P.2d 577, 584 (1976). In determining whether a
consequence is "collateral," this court has explained:

A direct consequence is one which has a definite, immediate
and largely automatic effect on defendant's punishment.
Illustrations of collateral consequences are loss of the
right to vote or travel abroad, loss of civil service
employment, loss of a driver's license, loss of the right to
possess firearms or an undesirable discharge from the Armed
Services. The failure to warn of such collateral
consequences will not warrant vacating a plea because they
are peculiar to the individual and generally result from the
actions taken by agencies the court does not control.

D'Ambrosio v. State, 112 Hawai#i 446, 460, 146 P.3d 606, 620
(App. 2006) (emphasis added) (quoting State v. Nguyen, 81 Hawai#i
279, 288, 916 P.2d 689, 698 (1996)).
Yamauchi testified during the hearing on his motion to
withdraw plea. On direct examination, he testified:

Q. Okay. Do you remember ever having been advised
of an obligation under what's called the SR-22 insurance
requirement as being a part of the penalty under that plea
agreement?

A. No.
. . . .

Q. And so on that day when you -- when did you
find out about that SR-22 requirement?

A. Was about close to a month after I had entered
my plea, already had done my 30-day license suspension. I
got a letter in the mail saying that I was required to
obtain a SR-22 or a $25,000 insurance bond --

Q. Okay.
A. -- to be able to retain my license.

. . . .
Q. Okay. And do you remember the court ever
advising you of that --

A. No.

Q. -- obligation as you entered your plea on --
A. I -- I do not.

(emphasis added).

4
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

On cross-examination, Yamauchi clarified:

Q. Now, Mr. Yamauchi, when you got that letter,
who was that letter from?
A. That was from the Department of Motor Vehicles,
I think DOT and DMV.

Q. So wasn't part of your criminal trial, is that
--

A. No.
Q. -- correct? Okay.

(emphasis added).
The SR-22 requirement is imposed not by the Hawai#i
Penal Code, but by HRS Chapter 287, the Hawai#i Motor Vehicle
Safety Responsibility Act. The Act provides, in relevant part:

Proof of financial responsibility required upon
conviction of certain offenses.

(a) Whenever a driver's license has been suspended or
revoked:

. . . .

(2) Upon a conviction of any offense pursuant to law
. . . ;

. . . .
the license shall not at any time thereafter be issued to
the person whose license has been suspended or revoked, nor
shall the person thereafter operate a motor vehicle, unless
and until the person has furnished and thereafter maintains
proof of financial responsibility[.]

HRS § 287-20(a)(2) (2007 & Supp. 2019). "Proof of financial
responsibility means proof of ability to respond in damages for
liability, on account of accidents occurring subsequent to the
effective date of such proof, arising out of the ownership,
maintenance, or use of a motor vehicle[.]" HRS § 287-1 (2007).
Proof of financial responsibility can be provided by a motor
vehicle insurance policy complying with HRS § 431:10C-301(b)(1)
(2019). If a person does not have motor vehicle insurance,
"[p]roof of financial responsibility may be evidenced by the bond
of a surety company[.]" HRS § 287-35(a) (2007). The bond must

5
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

be filed with the county director of finance. See id. and HRS
§ 287-1. Because the SR-22 requirement is "peculiar to the
individual and generally result[s] from the actions taken by
agencies the court does not control[,]" it is a collateral
consequence of an excessive speeding conviction, of which the
failure to warn will not warrant vacating a plea. See
D'Ambrosio, 112 Hawai#i at 460, 146 P.3d at 620. For this
additional reason the district court did not abuse its discretion
by denying Yamauchi's motion to withdraw his no-contest plea.
(2) Yamauchi's ineffective assistance of counsel
argument is raised for the first time on appeal. Ordinarily,
"the failure to properly raise an issue at the trial level
precludes a party from raising that issue on appeal." State v.
Hoglund, 71 Haw. 147, 150, 785 P.2d 1311, 1313 (1990). In this
case, however, Yamauchi's allegation that his former defense
counsel was ineffective is based solely on OPD's failure to
inform him of the potential SR-22 requirement, which depended in
part on factors unrelated to his conviction. In light of our
ruling that the SR-22 requirement is a collateral consequence of
an excessive speeding conviction, OPD's failure to advise
Yamauchi about the possible SR-22 requirement was not a "specific
error[] or omission[] reflecting defense counsel's lack of skill,
judgment or diligence[,]" nor did it result "in either the
withdrawal or substantial impairment[] of a potentially
meritorious defense." Najera v. State, 143 Hawai#i 83, 88, 422
P.3d 661, 666 (App. 2018) (cleaned up).2

2
In Najera, the petitioner "asserted that he received ineffective
assistance of counsel because his trial counsel did not advise him that his
no-contest pleas would subject him to automatic deportation and that had he
received this advice, he would not have pleaded no contest." Id. at 85-86,
422 P.3d at 663-64 (emphasis added). "[D]eportation is an integral part —
indeed, sometimes the most important part — of the penalty that may be imposed
on noncitizen defendants who plead guilty to specified crimes." Id. at 89,
422 P.3d at 667 (quoting Padilla v. Kentucky, 559 U.S. 356, 369, 130 S.Ct.
1473, 176 L.Ed.2d 284 (2010)). Indeed, we noted that "Najera's no contest
plea to a controlled substance offense for first-degree promoting a dangerous
drug that was a class A felony made it virtually certain that he would be
deported." Id. at 90, 422 P.3d at 668 (emphasis added). Thus, deportation is
a direct, not a collateral, consequence of a noncitizen defendant's conviction
(continued...)

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

For the foregoing reasons, the December 16, 2019 Order
denying Yamauchi's motion to withdraw his no-contest plea is
affirmed.
DATED: Honolulu, Hawai#i, June 16, 2022.

On the briefs:
/s/ Katherine G. Leonard
Dale K. Mattice, Presiding Judge
for Defendant-Appellant.
/s/ Keith K. Hiraoka
Brian R. Vincent, Associate Judge
Deputy Prosecuting Attorney,
City and County of Honolulu, /s/ Clyde J. Wadsworth
for Plaintiff-Appellee. Associate Judge

2
(...continued)
for promoting a dangerous drug in the first degree.

7