State v. Hanohano

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
16-JUL-2024
07:49 AM
Dkt. 54 SO

NOS. CAAP-XX-XXXXXXX, CAAP-XX-XXXXXXX and CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

CAAP-XX-XXXXXXX
STATE OF HAWAI#I, Plaintiff-Appellee,
v.
RANDY HANOHANO, Defendant-Appellant

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CASE NO. 1CPC-XX-XXXXXXX)

and
CAAP-XX-XXXXXXX
STATE OF HAWAI#I, Plaintiff-Appellee,
v.
RANDY HANOHANO, Defendant-Appellant

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CASE NO. 1CPC-XX-XXXXXXX)

and
CAAP-XX-XXXXXXX
STATE OF HAWAI#I, Plaintiff-Appellee,
v.
RANDY HANOHANO, Defendant-Appellant

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CASE NO. 1CPC-XX-XXXXXXX)

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

Randy Hanohano appeals from orders denying his motions
to withdraw his no-contest pleas in three cases, all entered by
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

the Circuit Court of the First Circuit on September 21, 2023.1
We consolidated the appeals. We vacate the orders and remand for
further proceedings.
In 1CPC-XX-XXXXXXX, Hanohano was charged with
Unauthorized Entry into Motor Vehicle in the First Degree in
violation of Hawaii Revised Statutes (HRS) § 708-836.5 (2014); in
1CPC-XX-XXXXXXX, he was charged with Unauthorized Control of
Propelled Vehicle in the First Degree in violation of HRS § 708-
836 (2014); and in 1CPC-XX-XXXXXXX, he was charged with
Unauthorized Entry into Motor Vehicle in the First Degree in
violation of HRS § 708-836.5 (2014) and Promoting a Dangerous
Drug in the Third Degree in violation of HRS § 712-1243 (2014).
He pleaded not guilty in each case. On December 27, 2022, he
changed his pleas to "no contest." Judgments were entered on
April 12, 2023; he was sentenced to five years in prison on each
count in each case, to be served concurrently.
On April 24, 2023, Hanohano moved to withdraw his no-
contest pleas. The motions were substantially identical.
Hanohano claimed he was innocent of all charges, and only pleaded
no contest because he thought he would be sentenced to probation.
The circuit court entered orders denying the motions on
September 21, 2023. These appeals followed. We review for abuse
of discretion. State v. Nguyen, 81 Hawai#i 279, 286, 916 P.2d
689, 696 (1996).
A change-of-plea hearing was held on December 27, 2022.
The circuit court told Hanohano that if he pleaded no contest,
his attorney could argue for probation but the State was "free to
argue sentencing on them because there's no plea agreement."
Hanohano indicated he understood.
The court then had a colloquy with Hanohano. The court
asked Hanohano if he talked to his attorney about the penalty for
each charge in each case "a fine up to $10,000 and jail up to
five years."

1
The Honorable Fa#auuga L. To#oto#o presided.

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

Hanohano replied, "Yes, sir" for each charge in each
case.
The court asked Hanohano if he talked to his attorney
about possible extended term sentences.
Hanohano replied, "Yes, sir."
The deputy prosecuting attorney stated, "We're going to
be asking for the open five . . . at sentencing, just to -- just
for clarity."
The court asked if Hanohano had any questions or
concerns.
Hanohano replied, "No, sir."
The court asked if Hanohano "understood everything the
Court has asked you so far this morning?"
Hanohano replied, "Yes, sir." He then pleaded no
contest to all counts in the three cases. He signed and dated
the change-of-plea forms in open court. Each form contained this
acknowledgment:

7. I understand that the court may impose any of the
following penalties for the offense(s) to which I now
plead: the maximum term of imprisonment, any extended
term of imprisonment, and any mandatory minimum term
of imprisonment specified above; consecutive terms of
imprisonment (if more than one charge); restitution; a
fine; a fee and/or assessment; community service;
probation with up to 2 years of imprisonment and other
terms and conditions.

Hanohano's presentence report, dated March 23, 2023,
was filed in camera on March 30, 2023. When the April 12, 2023
sentencing hearing began, Hanohano's attorney stated he discussed
the presentence report with Hanohano, and "[Hanohano] told me
that unless he gets probation, he wants to withdraw his plea.
And so I'm not sure if he wants to proceed with sentencing
today." (Emphasis added.)
The circuit court addressed Hanohano: "I'm not going to
tell you right now what -- you know, that I'm not giving you
probation or I'm denying probation. Understand?"
Hanohano replied, "Yes, sir."

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The court then stated:

Okay. So we'll go forward with sentencing. And
whether you get probation or not, that's something to be
determined after I hear from you -- from the prosecutor,
your attorney, and you. And then if I -- if the
sentencing's not what you expect and you disagree, then, of
course, you have that right to disagree and do what you
think is -- and that is the next step for you to consider,
is withdrawing your plea. That's up to you and your
attorney to consider.
Understand?

Hanohano replied, "Yes, sir."
The circuit court was correct that Hanohano could move
to withdraw his no-contest plea if he was not sentenced to
probation. But the court didn't tell Hanohano that if he asked
to withdraw his plea before he was sentenced, he would have to
show there was a "fair and just reason" for it — that is, he did
not knowingly, intelligently or voluntarily waive his rights, or
changed circumstances or new information (such as the presentence
report) justified withdrawal of his plea, State v. Pedro, 149
Hawai#i 256, 270–71, 488 P.3d 1235, 1249–50 (2021), but if he
waited until after he was sentenced, he'd have to show "manifest
injustice" — that is, his plea was involuntary or he did not know
the direct consequences of the plea, Nguyen, 81 Hawai#i at 292,
916 P.2d at 702.
"The 'fair and just reason' standard [governing pre-
sentencing plea withdrawals] is more flexible and permissive than
the 'manifest injustice' standard governing post-sentencing plea
withdrawals." Pedro, 149 Hawai#i at 271, 488 P.3d at 1250. The
circuit court should have informed Hanohano about his option to
ask to withdraw his plea before he was sentenced, versus the
consequences of taking a chance and waiting until after he was
sentenced to seek to withdraw his plea, and then ask him if he
wanted to proceed with sentencing. Its failure to do so was
error.
The sentencing hearing proceeded. The State requested
"the open five-year term incarceration in each case." Hanohano's

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

attorney requested a sentence of "probation with up to one year
jail with early release to an appropriate program that's
recommended by his probation officer." Hanohano addressed the
court. He asked for probation. After a recess, the court
announced the sentences of imprisonment and entered the
judgments.
At the September 20, 2023 hearing on Hanohano's motion
to withdraw his no-contest plea, Hanohano explained:

It was misunderstanding. There's confusion. The plea was
involuntary, number one. It was unknown and unintelligent. He
[apparently referring to defense counsel] gave the impression when
he was talking to me that I was going on probation.
. . . .

Okay. So there was a lot of promises and inducement.
He promised me five things. He said, number one, you're
going on probation. He said, number two, you're getting
released. He said, number three, you're going to get an
appeal. He said, number four, we're going to withdraw your
plea. And then, number five, he said there was going to be
a dismissal.

(Emphasis added.)
Hanohano argues the circuit court erred by failing to
conduct an evidentiary hearing on his motion to withdraw his no-
contest pleas. See State v. Merino, 81 Hawai#i 198, 223, 915
P.2d 672, 697 (1996) (noting that "the trial court may hold an
evidentiary hearing to determine the plausibility and legitimacy
of a defendant's reasons for requesting withdrawal of his or her
plea"). The circuit court did not ask Hanohano's attorney
whether Hanohano's contentions about "promises and inducement"
were accurate.2 We conclude the trial court should have held an

2
Hawai#i Rules of Professional Conduct Rule 1.6 provides:
(b) A lawyer may reveal information relating to the
representation of a client to the extent the lawyer
reasonably believes necessary:

. . . .
(4) . . . to respond to allegations in any
proceeding concerning the lawyer's representation of
the client[.]
(continued...)

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evidentiary hearing on this issue because if true, Hanohano's
explanation about why he decided to plead no contest may have
justified granting his motion to withdraw his no-contest pleas
under the circumstances of this case.
For these reasons, we vacate the circuit court's
September 21, 2023 "Order Denying Defendant's Motion to Withdraw
No Contest Plea" in each of these consolidated cases and remand
to the circuit court for further proceedings consistent with this
summary disposition order.
DATED: Honolulu, Hawai#i, July 16, 2024.

On the briefs:
/s/ Keith K. Hiraoka
Emmanuel G. Guerrero, Presiding Judge
for Defendant-Appellant.
/s/ Clyde J. Wadsworth
Loren J. Thomas, Associate Judge
Deputy Prosecuting Attorney,
City and County of Honolulu, /s/ Karen T. Nakasone
for Plaintiff-Appellee. Associate Judge

2
(...continued)
Hawaii Rules of Evidence Rule 503 (2016) (Lawyer-client privilege)
provides:

(d) Exceptions. There is no privilege under this rule:

. . . .
(7) Lawyer's professional responsibility. As to a
communication the disclosure of which is required or
authorized by the Hawaii rules of professional conduct
for attorneys.

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