State v. Ah Puck

FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
08-OCT-2025
08:11 AM
Dkt. 130 OP

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

---o0o---

STATE OF HAWAI#I, Plaintiff-Appellee, v.
HARDY K. AH PUCK, JR., also known as HARDY K. AH PUCK,
Defendant-Appellant

NO. CAAP-XX-XXXXXXX

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

OCTOBER 8, 2025

NAKASONE, CHIEF JUDGE, LEONARD AND HIRAOKA, JJ.

OPINION OF THE COURT BY HIRAOKA, J.

A jury found Hardy K. Ah Puck, Jr. guilty of one count

of Theft in the Fourth Degree (Theft 4) and one count of Habitual

Property Crime. The Circuit Court of the Second Circuit

sentenced him to concurrent prison terms of thirty days for

Theft 4 and five years for Habitual Property Crime, with a
FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

mandatory minimum term of not less than one year.1 Ah Puck

appeals from the Judgment of Conviction and Sentence.

We hold that (1) the statute allowing the chief justice

to authorize district court judges to make probable cause

determinations, set bail, and direct the issuance of arrest

warrants on a circuit court criminal information does not violate

separation of powers, and the supreme court order implementing

the statute was never rescinded, and (2) Theft 4 is included in

Habitual Property Crime and the Habitual Property Crime statute

does not provide for convictions for both Habitual Property Crime

and the included property crime. Ah Puck's conviction for

Theft 4 merged into his conviction for Habitual Property Crime as

a matter of law. We vacate the Judgment of Conviction and

Sentence and remand for entry of an amended judgment of

conviction and sentence for Habitual Property Crime only.

I. BACKGROUND

On November 6, 2023, Ah Puck was charged in circuit

court by Felony Information and Non-felony Complaint with four

counts of theft and four counts of habitual property crime. A

district court judge found probable cause, issued an arrest

warrant, and set bail. Ah Puck pleaded not guilty.

The Circuit Court dismissed one theft count and one

habitual property crime count before trial. A judgment of

acquittal was entered on another theft count and habitual

1
The Honorable Peter T. Cahill presided.

2
FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

property crime count. The counts on which the jury deliberated

were:
1. Theft in the Fourth Degree of tablet computers
and/or cellular phones;
2. Habitual Property Crime for theft of tablet computers
and/or cellular phones;
3. Theft in the Fourth Degree of a backpack and/or
AirPods; and
4. Habitual Property Crime for theft of a backpack and/or
AirPods.

The tablet computers and cellular phones belonged to

Excess Telecom. The backpack and AirPods belonged to an Excess

Telecom employee. Ah Puck took the items from the Lahaina Civic

Center on November 1, 2023, while it was used as the disaster

recovery center for the Lahaina wildfires.

The jury found Ah Puck guilty as charged. The jury

also found the State did not prove beyond a reasonable doubt that

Ah Puck did not commit counts 1 and 3 or counts 2 and 4 as part

of a continuing and uninterrupted course of conduct. The Theft 4

counts merged, as did the Habitual Property Crime counts, under

Hawaii Revised Statutes (HRS) § 701-109(1)(e).2

2
HRS § 701-109 (2014) provides in relevant part:
Method of prosecution when conduct establishes an element of
more than one offense. (1) When the same conduct of a
defendant may establish an element of more than one offense,
the defendant may be prosecuted for each offense of which
such conduct is an element. The defendant may not, however,
be convicted of more than one offense if:

. . . .
(e) The offense is defined as a continuing course of
conduct and the defendant's course of conduct
was uninterrupted, unless the law provides that
specific periods of conduct constitute separate
offenses.

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After the verdict Ah Puck moved to dismiss the felony

information for lack of subject matter jurisdiction. He argued

that a district court judge could not legally find probable cause

or issue an arrest warrant on a felony information. The Circuit

Court denied the motion.

Ah Puck also moved for judgment of acquittal on the

Habitual Property Crime counts. He argued that habitual property

crime required evidence of a property crime other than the

property crime charged in the associated theft count. The
Circuit Court denied the motion.

The Judgment of Conviction and Sentence was entered on

July 9, 2024. This appeal followed.

II. POINTS OF ERROR

Ah Puck states three points of error:
1. The circuit court erred when it denied the motion to
dismiss because the district court judge initiated
felony information charges against Mr. Ah Puck with
unconstitutionally delegated power.

2. Mr. Ah Puck cannot be convicted of both count 2 [sic]
because there is insufficient evidence of a separate
unspecified theft as a habitual property crime.

3. Refusing to instruct the jury about merging theft with
the habitual property crime warrants a new trial.

We clarify the points of error in the sections below.

III. STANDARDS OF REVIEW

A. Constitutional Law

Questions of constitutional law are reviewed de novo

under the right/wrong standard. State v. Feliciano, 107 Hawai#i

469, 475, 115 P.3d 648, 654 (2005).

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B. Subject Matter Jurisdiction

The existence of subject matter jurisdiction is a

question of law reviewed de novo under the right/wrong standard.

Ass'n of Apartment Owners of Century Ctr., Inc. v. An, 139
Hawai#i 278, 284, 389 P.3d 115, 121 (2016).
C. Court Orders

We interpret court orders de novo under the right/wrong

standard. State v. Guyton, 135 Hawai#i 372, 377, 351 P.3d 1138,

1143 (2015).
D. Merger of Included Offense

Whether an offense is included within another is a

question of law reviewed de novo under the right/wrong standard.

State v. Manuel, 148 Hawai#i 434, 439, 477 P.3d 874, 879 (2020).

IV. DISCUSSION

A. The district court judge was authorized to
determine probable cause, issue an arrest
warrant, and set bail on a circuit court
felony information.

Ah Puck moved to dismiss the Felony Information and

Non-felony Complaint after the jury returned its verdict, arguing

lack of jurisdiction because a district court judge determined

probable cause, set bail, and issued the warrant for his arrest.

He contends that "HRS § 806-85(d) violates the separate-of-powers

[sic] doctrine because it empowers the chief justice to exercise

legislative power to expand the district court's criminal

jurisdiction." The motion was made after the verdict, but lack

of subject matter jurisdiction can never be waived, and may be

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FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

raised at any time. Yamane v. Pohlson, 111 Hawai#i 74, 83, 137

P.3d 980, 989 (2006).

Ah Puck alternately argues that even if HRS § 806-85

doesn't violate separation-of-powers, the chief justice rescinded

the order authorizing district court judges to make probable

cause determinations, set bail, and issue arrest warrants.

1. HRS § 806-85(d) does not violate the
separation-of-powers doctrine.

HRS § 806-82 (2014) allows certain felony charges,
including the ones at issue here, to be instituted by "written

information . . . filed in the court having jurisdiction

thereof[.]"

The circuit courts have general jurisdiction over

criminal offenses. HRS § 603-21.5(a)(1) (2016). HRS § 806-85

(2014) provides in relevant part:
Probable cause. (a) When an information is filed, the court
having jurisdiction shall review the information and its
exhibit to determine whether there is probable cause to
believe that the offense charged was committed and that the
defendant committed the offense charged.

. . . .
(d) As used in this section, "court having
jurisdiction" and "court" mean the circuit court; provided
that the chief justice may by order authorize district court
judges to make probable cause determinations, set bail, and
direct the issuance of arrest warrants, as provided by this
section.

In 2005, then-Chief Justice Ronald T.Y. Moon issued an

order (the 2005 Order) stating in relevant part:
IT IS HEREBY ORDERED that the District Judges of the
First, Second, Third, and Fifth Circuits of the State of
Hawai#i are hereby authorized to make probable cause
determinations, set bail, and direct the issuance of arrest
warrants, as provided by HRS § 806-[85].

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FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

IT IS FURTHER ORDERED that the Clerks of the Courts of
each Circuit shall refer such matters to the District Court
of the Circuit for action and shall make the information and
the District Court Judge's action and findings thereon part
of the record of the court having jurisdiction over the
offense.

In re Info. Charging, (Haw. Feb. 15, 2005) (Order Authorizing

Action by District Judges) (emphasis added).3

The legislature defines and grants the criminal

jurisdiction of the district courts. Schwartz v. State, 136

Hawai#i 258, 264, 361 P.3d 1161, 1167 (2015); see HRS

Chapter 604. To determine whether HRS § 806-85(d) violates

separation of powers, we must determine whether the legislature

delegated a legislative function — defining the criminal

jurisdiction of the district courts — to the judiciary. Cf.

Alaka#i Na Keiki, Inc. v. Matayoshi, 127 Hawai#i 263, 278, 277

P.3d 988, 1003 (2012) (instructing that "to determine whether

there is a separation of powers violation, it must be decided

whether the legislature delegated a judicial function to an

administrative agency").

HRS § 806-85(d) does not authorize the chief justice to

expand the criminal jurisdiction of the district court. It

allows the chief justice to authorize district court judges to

make probable cause determinations, set bail, and issue arrest

warrants in circuit court criminal cases charged by information.

This is authorized by article VI, section 2 of the Hawai#i

3
https://www.courts.state.hi.us/docs/sct_various_orders/order21.pdf
[https://perma.cc/9LMQ-MAPE].

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Constitution ("The chief justice may assign . . . a judge of the

district court to serve temporarily on the circuit court.").

Ah Puck argues "the district court judge initiated

felony information charges against Mr. Ah Puck" and "[t]he

initiation of felony information charges in district court is

unconstitutional." The case against Ah Puck was initiated by the

Maui County Department of the Prosecuting Attorney, not by the

district court judge. The Felony Information and Non-felony

Complaint was filed in circuit court, not district court.

The 2005 Order did not expand the criminal jurisdiction

of the district court. A district court judge's probable cause

determination, setting of bail, and arrest warrant were to be

entered on the record in the circuit court proceeding, as

authorized under HRS § 806-85(a) and (d). The 2005 Order was

consistent with the supreme court's general supervisory powers

over the lower courts, Hawai#i Police Department v. Kubota, 155

Hawai#i 136, 148, 557 P.3d 865, 877 (2024), and its "inherent

power . . . to administer justice," State v. Moriwake, 65 Haw.

47, 55, 647 P.2d 705, 712 (1982).

2. The 2005 Order was never rescinded.

Ah Puck argues that the 2005 Order was rescinded in

2010. In 2010, in In re Statewide Court Administrative Orders &

Memoranda, (Haw. June 9, 2010) (Order Rescinding Statewide Court

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FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Administrative Orders and Memoranda) (the 2010 Order)4 then-Chief

Justice Moon rescinded certain administrative orders. The 2010

Order provided in relevant part:
It appears that previously approved statewide court
administrative orders or memoranda include requirements that
are more appropriate for court rules than for administrative
orders and memoranda and that revised administrative orders
and memoranda have not been submitted for my review, as
instructed by my May 24, 2007 memorandum to the Chief
Judges. Therefore,

IT IS HEREBY ORDERED, pursuant to Article VI, § 6 of
the Hawai#i Constitution and effective immediately upon
filing of this order, that all previously approved statewide
circuit, family, and district court administrative orders or
memoranda are hereby rescinded.

The 2010 Order rescinded only "circuit, family, and

district court administrative orders or memoranda[.]" The 2005

Order was a supreme court order. It was not rescinded by the

2010 Order.

In addition, the 2010 Order rescinded administrative

orders "that are more appropriate for court rules[.]" The 2005

Order was authorized by HRS § 806-85(d). The statute required an

order by the chief justice; it did not require a court rule.

The Circuit Court did not err by denying Ah Puck's
motion to dismiss for lack of subject matter jurisdiction.

B. Ah Puck's conviction for Theft 4 merged into
his conviction for Habitual Property Crime as
a matter of law.

Ah Puck originally contended he "cannot be convicted of

[Habitual Property Crime] because there is insufficient evidence

of a separate unspecified theft as a habitual property crime."

4
https://www.courts.state.hi.us/docs/sct_various_orders/order35.pdf
[https://perma.cc/XQW2-VPBU].

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He argued to the Circuit Court, as he does on appeal, that there

was no evidence of a theft other than the one alleged in count 1

(Theft 4) to support a conviction of Habitual Property Crime

under count 2.

HRS § 708-803 (Supp. 2022) provides in relevant part:
Habitual property crime. (1) A person commits the offense
of habitual property crime if the person is a habitual
property crime perpetrator and commits a property crime.

(2) For the purposes of this section, "habitual
property crime perpetrator" means a person who, within ten
years of the instant offense, has convictions for offenses
within this chapter for:
. . . .

(c) Three petty misdemeanors.

The convictions shall be for separate incidents on separate
dates. . . .

(3) A person commits a property crime if the person
engages in conduct that constitutes an offense under this
chapter. It can be established that the person has
committed a property crime by either the prosecution proving
that the person is guilty of or by the person pleading
guilty or no contest to committing any offense under this
chapter.

(Emphasis added.)

Ah Puck does not contend there was insufficient

evidence to support his Theft 4 conviction. Theft 4 was the

offense that satisfied the "commits a property crime" element of

HRS § 708-803(1).

The Circuit Court instructed the jury it took judicial

notice that Ah Puck had been convicted of three petty

misdemeanors for separate incidents on separate dates within ten

years before November 1, 2023. That supported the "habitual

property crime perpetrator" attendant circumstance element of HRS

§ 708-803(1), as defined by HRS § 708-803(2).

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The evidence was sufficient to support the Habitual

Property Crime conviction. Ah Puck's point of error actually

presents a merger issue. HRS § 701-109 (2014 & Supp. 2022)

provides in relevant part:
(1) When the same conduct of a defendant may
establish an element of more than one offense, the defendant
may be prosecuted for each offense of which such conduct is
an element. The defendant may not, however, be convicted of
more than one offense if:
(a) One offense is included in the other, as defined
in subsection (4) of this section[.]
. . . .

(4) A defendant may be convicted of an offense
included in an offense charged in the felony complaint,
indictment, or information. An offense is so included when:

(a) It is established by proof of the same or less
than all the facts required to establish the
commission of the offense charged[.]

Because committing an offense under HRS Chapter 708 is

an element of Habitual Property Crime, and Theft 4 is an offense

under HRS Chapter 708, Theft 4 is always included in Habitual

Property Crime as a matter of law. Cf. State v. Jumila, 87

Hawai#i 1, 3, 950 P.2d 1201, 1203 (1998) (holding that separate

felony underlying former HRS § 134–6(a) (use of firearm in

commission of separate felony) "is, as a matter of law, an

included offense of the HRS § 134–6(a) offense"), overruled on

other grounds by, State v. Brantley, 99 Hawai#i 463, 56 P.3d 1252

(2002).

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In Jumila, the supreme court held:
Because the felony underlying an HRS § 134–6(a)
offense is an included offense of the HRS § 134–6(a)
offense, pursuant to HRS § 701–109(1)(a), Jumila should not
have been convicted of both the HRS § 134–6(a) offense and
the underlying second degree murder offense. If he should
not have been convicted of both offenses, then, of course,
he should not have received separate sentences for each
offense.

87 Hawai#i at 3, 950 P.2d at 1203 (footnote omitted), overruled

by, Brantley, 99 Hawai#i at 469, 56 P.3d at 1258 (overruling based

on legislative history of 1993 amendment to HRS § 134–6).

After Jumila was decided, the legislature again amended

HRS § 134–6 to specify that
A conviction and sentence under subsection (a) or (b) shall
be in addition to and not in lieu of any conviction and
sentence for the separate felony . . . .

Brantley, 99 Hawai#i at 464 n.2, 56 P.3d at 1253 n.2 (quoting

1999 Haw. Sess. L. Act 12, § 1 at 12). Brantley recognized that

the 1999 amendment "explicitly state[d] that an individual could

be convicted of both HRS § 134–6(a) and the separate felony."

Id. at 464, 56 P.3d at 1253.

And in State v. Feliciano, 107 Hawai#i 469, 115 P.3d 648

(2005), the supreme court examined the legislative history of the

1999 amendment to HRS § 134–6 and stated:
This legislative history clearly shows that the legislature
intended to punish defendants multiple times for both the
underlying, separate felony (with a conviction and a
mandatory minimum) and with a conviction for use of a
firearm.

Id. at 485, 115 P.3d at 664.

HRS § 708-803 (the Habitual Property Crime statute)

contains no provision that a conviction and sentence for Habitual

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FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Property Crime shall be in addition to, and not in lieu of, any

conviction and sentence for the included property crime. Nor

does the legislative history of HRS § 708-803 indicate an intent

to allow a conviction and sentence for the included property

crime in addition to a conviction and sentence for Habitual

Property Crime. Accordingly, Ah Puck's conviction for Theft 4

merged into his conviction for Habitual Property Crime as a

matter of law under HRS § 701-109(1)(a). The Circuit Court erred

by sentencing Ah Puck for Theft 4 in addition to Habitual
Property Crime.

C. Refusing to instruct the jury about merging
theft with the habitual property crime does
not warrant a new trial.

Ah Puck contends that the Circuit Court's refusal to

instruct the jury about merging theft with habitual property

crime warrants a new trial. It does not.

The jury found Ah Puck guilty of Theft 4 and Habitual

Property Crime. The Circuit Court did not need to instruct the

jury on merger because Theft 4 merged into Habitual Property

Crime as a matter of law under HRS § 701–109(1)(a). Cf. Jumila,

87 Hawai#i at 3, 950 P.2d at 1203. The remedy is to vacate the

conviction and sentence for Theft 4, the included offense.

Brantley, 99 Hawai#i at 466, 56 P.3d at 1255 (stating that "the

lesser grade offense should be reversed" (citing Jumila, 87

Hawai#i at 4, 950 P.2d at 1204)).

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V. CONCLUSION

The July 9, 2024 Judgment of Conviction and Sentence is

vacated and this case is remanded to the Circuit Court. On

remand, the Circuit Court should enter an amended judgment of

conviction and sentence on Count 2 (Habitual Property Crime)

only.

On the briefs: /s/ Karen T. Nakasone
Chief Judge
Benjamin E. Lowenthal,
Sara K. Haley, /s/ Katherine G. Leonard
Deputies Public Defender, Associate Judge
State of Hawai#i,
for Defendant-Appellant /s/ Keith K. Hiraoka
Hardy K. Ah Puck, Jr., Associate Judge
also known as Hardy K. Ah Puck.

Gerald K. Enriques,
Deputy Prosecuting Attorney,
County of Maui,
for Plaintiff-Appellee
State of Hawai#i.

Caitlyn B. Carpenter,
Deputy Solicitor General,
on the amicus curiae brief
for Attorney General of the
State of Hawai#i.

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FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
08-OCT-2025
08:11 AM
Dkt. 130 OP

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

---o0o---

STATE OF HAWAI#I, Plaintiff-Appellee, v.
HARDY K. AH PUCK, JR., also known as HARDY K. AH PUCK,
Defendant-Appellant

NO. CAAP-XX-XXXXXXX

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

OCTOBER 8, 2025

NAKASONE, CHIEF JUDGE, LEONARD AND HIRAOKA, JJ.

OPINION OF THE COURT BY HIRAOKA, J.

A jury found Hardy K. Ah Puck, Jr. guilty of one count

of Theft in the Fourth Degree (Theft 4) and one count of Habitual

Property Crime. The Circuit Court of the Second Circuit

sentenced him to concurrent prison terms of thirty days for

Theft 4 and five years for Habitual Property Crime, with a
FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

mandatory minimum term of not less than one year.1 Ah Puck

appeals from the Judgment of Conviction and Sentence.

We hold that (1) the statute allowing the chief justice

to authorize district court judges to make probable cause

determinations, set bail, and direct the issuance of arrest

warrants on a circuit court criminal information does not violate

separation of powers, and the supreme court order implementing

the statute was never rescinded, and (2) Theft 4 is included in

Habitual Property Crime and the Habitual Property Crime statute

does not provide for convictions for both Habitual Property Crime

and the included property crime. Ah Puck's conviction for

Theft 4 merged into his conviction for Habitual Property Crime as

a matter of law. We vacate the Judgment of Conviction and

Sentence and remand for entry of an amended judgment of

conviction and sentence for Habitual Property Crime only.

I. BACKGROUND

On November 6, 2023, Ah Puck was charged in circuit

court by Felony Information and Non-felony Complaint with four
counts of theft and four counts of habitual property crime. A

district court judge found probable cause, issued an arrest

warrant, and set bail. Ah Puck pleaded not guilty.

The Circuit Court dismissed one theft count and one

habitual property crime count before trial. A judgment of

acquittal was entered on another theft count and habitual

1
The Honorable Peter T. Cahill presided.

2
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property crime count. The counts on which the jury deliberated

were:
1. Theft in the Fourth Degree of tablet computers
and/or cellular phones;
2. Habitual Property Crime for theft of tablet computers
and/or cellular phones;
3. Theft in the Fourth Degree of a backpack and/or
AirPods; and
4. Habitual Property Crime for theft of a backpack and/or
AirPods.

The tablet computers and cellular phones belonged to

Excess Telecom. The backpack and AirPods belonged to an Excess

Telecom employee. Ah Puck took the items from the Lahaina Civic

Center on November 1, 2023, while it was used as the disaster

recovery center for the Lahaina wildfires.

The jury found Ah Puck guilty as charged. The jury

also found the State did not prove beyond a reasonable doubt that

Ah Puck did not commit counts 1 and 3 or counts 2 and 4 as part

of a continuing and uninterrupted course of conduct. The Theft 4

counts merged, as did the Habitual Property Crime counts, under

Hawaii Revised Statutes (HRS) § 701-109(1)(e).2

2
HRS § 701-109 (2014) provides in relevant part:
Method of prosecution when conduct establishes an element of
more than one offense. (1) When the same conduct of a
defendant may establish an element of more than one offense,
the defendant may be prosecuted for each offense of which
such conduct is an element. The defendant may not, however,
be convicted of more than one offense if:
. . . .

(e) The offense is defined as a continuing course of
conduct and the defendant's course of conduct
was uninterrupted, unless the law provides that
specific periods of conduct constitute separate
offenses.

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After the verdict Ah Puck moved to dismiss the felony

information for lack of subject matter jurisdiction. He argued

that a district court judge could not legally find probable cause

or issue an arrest warrant on a felony information. The Circuit

Court denied the motion.

Ah Puck also moved for judgment of acquittal on the

Habitual Property Crime counts. He argued that habitual property

crime required evidence of a property crime other than the

property crime charged in the associated theft count. The

Circuit Court denied the motion.

The Judgment of Conviction and Sentence was entered on

July 9, 2024. This appeal followed.

II. POINTS OF ERROR

Ah Puck states three points of error:
1. The circuit court erred when it denied the motion to
dismiss because the district court judge initiated
felony information charges against Mr. Ah Puck with
unconstitutionally delegated power.

2. Mr. Ah Puck cannot be convicted of both count 2 [sic]
because there is insufficient evidence of a separate
unspecified theft as a habitual property crime.

3. Refusing to instruct the jury about merging theft with
the habitual property crime warrants a new trial.

We clarify the points of error in the sections below.

III. STANDARDS OF REVIEW

A. Constitutional Law

Questions of constitutional law are reviewed de novo

under the right/wrong standard. State v. Feliciano, 107 Hawai#i

469, 475, 115 P.3d 648, 654 (2005).

4
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B. Subject Matter Jurisdiction

The existence of subject matter jurisdiction is a

question of law reviewed de novo under the right/wrong standard.

Ass'n of Apartment Owners of Century Ctr., Inc. v. An, 139

Hawai#i 278, 284, 389 P.3d 115, 121 (2016).
C. Court Orders

We interpret court orders de novo under the right/wrong

standard. State v. Guyton, 135 Hawai#i 372, 377, 351 P.3d 1138,

1143 (2015).
D. Merger of Included Offense

Whether an offense is included within another is a

question of law reviewed de novo under the right/wrong standard.

State v. Manuel, 148 Hawai#i 434, 439, 477 P.3d 874, 879 (2020).

IV. DISCUSSION

A. The district court judge was authorized to
determine probable cause, issue an arrest
warrant, and set bail on a circuit court
felony information.

Ah Puck moved to dismiss the Felony Information and

Non-felony Complaint after the jury returned its verdict, arguing

lack of jurisdiction because a district court judge determined

probable cause, set bail, and issued the warrant for his arrest.

He contends that "HRS § 806-85(d) violates the separate-of-powers

[sic] doctrine because it empowers the chief justice to exercise

legislative power to expand the district court's criminal

jurisdiction." The motion was made after the verdict, but lack

of subject matter jurisdiction can never be waived, and may be

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raised at any time. Yamane v. Pohlson, 111 Hawai#i 74, 83, 137

P.3d 980, 989 (2006).

Ah Puck alternately argues that even if HRS § 806-85

doesn't violate separation-of-powers, the chief justice rescinded

the order authorizing district court judges to make probable

cause determinations, set bail, and issue arrest warrants.

1. HRS § 806-85(d) does not violate the
separation-of-powers doctrine.

HRS § 806-82 (2014) allows certain felony charges,

including the ones at issue here, to be instituted by "written

information . . . filed in the court having jurisdiction

thereof[.]"

The circuit courts have general jurisdiction over

criminal offenses. HRS § 603-21.5(a)(1) (2016). HRS § 806-85

(2014) provides in relevant part:
Probable cause. (a) When an information is filed, the court
having jurisdiction shall review the information and its
exhibit to determine whether there is probable cause to
believe that the offense charged was committed and that the
defendant committed the offense charged.

. . . .
(d) As used in this section, "court having
jurisdiction" and "court" mean the circuit court; provided
that the chief justice may by order authorize district court
judges to make probable cause determinations, set bail, and
direct the issuance of arrest warrants, as provided by this
section.

In 2005, then-Chief Justice Ronald T.Y. Moon issued an

order (the 2005 Order) stating in relevant part:
IT IS HEREBY ORDERED that the District Judges of the
First, Second, Third, and Fifth Circuits of the State of
Hawai#i are hereby authorized to make probable cause
determinations, set bail, and direct the issuance of arrest
warrants, as provided by HRS § 806-[85].

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IT IS FURTHER ORDERED that the Clerks of the Courts of
each Circuit shall refer such matters to the District Court
of the Circuit for action and shall make the information and
the District Court Judge's action and findings thereon part
of the record of the court having jurisdiction over the
offense.

In re Info. Charging, (Haw. Feb. 15, 2005) (Order Authorizing

Action by District Judges) (emphasis added).3

The legislature defines and grants the criminal

jurisdiction of the district courts. Schwartz v. State, 136

Hawai#i 258, 264, 361 P.3d 1161, 1167 (2015); see HRS

Chapter 604. To determine whether HRS § 806-85(d) violates

separation of powers, we must determine whether the legislature

delegated a legislative function — defining the criminal

jurisdiction of the district courts — to the judiciary. Cf.

Alaka#i Na Keiki, Inc. v. Matayoshi, 127 Hawai#i 263, 278, 277

P.3d 988, 1003 (2012) (instructing that "to determine whether

there is a separation of powers violation, it must be decided

whether the legislature delegated a judicial function to an

administrative agency").

HRS § 806-85(d) does not authorize the chief justice to
expand the criminal jurisdiction of the district court. It

allows the chief justice to authorize district court judges to

make probable cause determinations, set bail, and issue arrest

warrants in circuit court criminal cases charged by information.

This is authorized by article VI, section 2 of the Hawai#i

3
https://www.courts.state.hi.us/docs/sct_various_orders/order21.pdf
[https://perma.cc/9LMQ-MAPE].

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Constitution ("The chief justice may assign . . . a judge of the

district court to serve temporarily on the circuit court.").

Ah Puck argues "the district court judge initiated

felony information charges against Mr. Ah Puck" and "[t]he

initiation of felony information charges in district court is

unconstitutional." The case against Ah Puck was initiated by the

Maui County Department of the Prosecuting Attorney, not by the

district court judge. The Felony Information and Non-felony

Complaint was filed in circuit court, not district court.

The 2005 Order did not expand the criminal jurisdiction

of the district court. A district court judge's probable cause

determination, setting of bail, and arrest warrant were to be

entered on the record in the circuit court proceeding, as

authorized under HRS § 806-85(a) and (d). The 2005 Order was

consistent with the supreme court's general supervisory powers

over the lower courts, Hawai#i Police Department v. Kubota, 155
Hawai#i 136, 148, 557 P.3d 865, 877 (2024), and its "inherent

power . . . to administer justice," State v. Moriwake, 65 Haw.

47, 55, 647 P.2d 705, 712 (1982).

2. The 2005 Order was never rescinded.

Ah Puck argues that the 2005 Order was rescinded in

2010. In 2010, in In re Statewide Court Administrative Orders &

Memoranda, (Haw. June 9, 2010) (Order Rescinding Statewide Court

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Administrative Orders and Memoranda) (the 2010 Order)4 then-Chief

Justice Moon rescinded certain administrative orders. The 2010

Order provided in relevant part:
It appears that previously approved statewide court
administrative orders or memoranda include requirements that
are more appropriate for court rules than for administrative
orders and memoranda and that revised administrative orders
and memoranda have not been submitted for my review, as
instructed by my May 24, 2007 memorandum to the Chief
Judges. Therefore,

IT IS HEREBY ORDERED, pursuant to Article VI, § 6 of
the Hawai#i Constitution and effective immediately upon
filing of this order, that all previously approved statewide
circuit, family, and district court administrative orders or
memoranda are hereby rescinded.

The 2010 Order rescinded only "circuit, family, and

district court administrative orders or memoranda[.]" The 2005

Order was a supreme court order. It was not rescinded by the

2010 Order.

In addition, the 2010 Order rescinded administrative

orders "that are more appropriate for court rules[.]" The 2005

Order was authorized by HRS § 806-85(d). The statute required an

order by the chief justice; it did not require a court rule.

The Circuit Court did not err by denying Ah Puck's
motion to dismiss for lack of subject matter jurisdiction.

B. Ah Puck's conviction for Theft 4 merged into
his conviction for Habitual Property Crime as
a matter of law.

Ah Puck originally contended he "cannot be convicted of

[Habitual Property Crime] because there is insufficient evidence

of a separate unspecified theft as a habitual property crime."

4
https://www.courts.state.hi.us/docs/sct_various_orders/order35.pdf
[https://perma.cc/XQW2-VPBU].

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He argued to the Circuit Court, as he does on appeal, that there

was no evidence of a theft other than the one alleged in count 1

(Theft 4) to support a conviction of Habitual Property Crime

under count 2.

HRS § 708-803 (Supp. 2022) provides in relevant part:
Habitual property crime. (1) A person commits the offense
of habitual property crime if the person is a habitual
property crime perpetrator and commits a property crime.

(2) For the purposes of this section, "habitual
property crime perpetrator" means a person who, within ten
years of the instant offense, has convictions for offenses
within this chapter for:

. . . .

(c) Three petty misdemeanors.
The convictions shall be for separate incidents on separate
dates. . . .
(3) A person commits a property crime if the person
engages in conduct that constitutes an offense under this
chapter. It can be established that the person has
committed a property crime by either the prosecution proving
that the person is guilty of or by the person pleading
guilty or no contest to committing any offense under this
chapter.

(Emphasis added.)

Ah Puck does not contend there was insufficient

evidence to support his Theft 4 conviction. Theft 4 was the

offense that satisfied the "commits a property crime" element of

HRS § 708-803(1).

The Circuit Court instructed the jury it took judicial

notice that Ah Puck had been convicted of three petty

misdemeanors for separate incidents on separate dates within ten

years before November 1, 2023. That supported the "habitual

property crime perpetrator" attendant circumstance element of HRS

§ 708-803(1), as defined by HRS § 708-803(2).

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The evidence was sufficient to support the Habitual

Property Crime conviction. Ah Puck's point of error actually

presents a merger issue. HRS § 701-109 (2014 & Supp. 2022)

provides in relevant part:
(1) When the same conduct of a defendant may
establish an element of more than one offense, the defendant
may be prosecuted for each offense of which such conduct is
an element. The defendant may not, however, be convicted of
more than one offense if:
(a) One offense is included in the other, as defined
in subsection (4) of this section[.]
. . . .

(4) A defendant may be convicted of an offense
included in an offense charged in the felony complaint,
indictment, or information. An offense is so included when:

(a) It is established by proof of the same or less
than all the facts required to establish the
commission of the offense charged[.]

Because committing an offense under HRS Chapter 708 is

an element of Habitual Property Crime, and Theft 4 is an offense

under HRS Chapter 708, Theft 4 is always included in Habitual

Property Crime as a matter of law. Cf. State v. Jumila, 87

Hawai#i 1, 3, 950 P.2d 1201, 1203 (1998) (holding that separate

felony underlying former HRS § 134–6(a) (use of firearm in

commission of separate felony) "is, as a matter of law, an

included offense of the HRS § 134–6(a) offense"), overruled on
other grounds by, State v. Brantley, 99 Hawai#i 463, 56 P.3d 1252

(2002).

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In Jumila, the supreme court held:
Because the felony underlying an HRS § 134–6(a)
offense is an included offense of the HRS § 134–6(a)
offense, pursuant to HRS § 701–109(1)(a), Jumila should not
have been convicted of both the HRS § 134–6(a) offense and
the underlying second degree murder offense. If he should
not have been convicted of both offenses, then, of course,
he should not have received separate sentences for each
offense.

87 Hawai#i at 3, 950 P.2d at 1203 (footnote omitted), overruled

by, Brantley, 99 Hawai#i at 469, 56 P.3d at 1258 (overruling based

on legislative history of 1993 amendment to HRS § 134–6).

After Jumila was decided, the legislature again amended

HRS § 134–6 to specify that
A conviction and sentence under subsection (a) or (b) shall
be in addition to and not in lieu of any conviction and
sentence for the separate felony . . . .

Brantley, 99 Hawai#i at 464 n.2, 56 P.3d at 1253 n.2 (quoting

1999 Haw. Sess. L. Act 12, § 1 at 12). Brantley recognized that

the 1999 amendment "explicitly state[d] that an individual could

be convicted of both HRS § 134–6(a) and the separate felony."

Id. at 464, 56 P.3d at 1253.

And in State v. Feliciano, 107 Hawai#i 469, 115 P.3d 648

(2005), the supreme court examined the legislative history of the

1999 amendment to HRS § 134–6 and stated:
This legislative history clearly shows that the legislature
intended to punish defendants multiple times for both the
underlying, separate felony (with a conviction and a
mandatory minimum) and with a conviction for use of a
firearm.

Id. at 485, 115 P.3d at 664.

HRS § 708-803 (the Habitual Property Crime statute)

contains no provision that a conviction and sentence for Habitual

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Property Crime shall be in addition to, and not in lieu of, any

conviction and sentence for the included property crime. Nor

does the legislative history of HRS § 708-803 indicate an intent

to allow a conviction and sentence for the included property

crime in addition to a conviction and sentence for Habitual

Property Crime. Accordingly, Ah Puck's conviction for Theft 4

merged into his conviction for Habitual Property Crime as a

matter of law under HRS § 701-109(1)(a). The Circuit Court erred

by sentencing Ah Puck for Theft 4 in addition to Habitual

Property Crime.

C. Refusing to instruct the jury about merging
theft with the habitual property crime does
not warrant a new trial.

Ah Puck contends that the Circuit Court's refusal to

instruct the jury about merging theft with habitual property

crime warrants a new trial. It does not.

The jury found Ah Puck guilty of Theft 4 and Habitual

Property Crime. The Circuit Court did not need to instruct the

jury on merger because Theft 4 merged into Habitual Property

Crime as a matter of law under HRS § 701–109(1)(a). Cf. Jumila,

87 Hawai#i at 3, 950 P.2d at 1203. The remedy is to vacate the

conviction and sentence for Theft 4, the included offense.

Brantley, 99 Hawai#i at 466, 56 P.3d at 1255 (stating that "the

lesser grade offense should be reversed" (citing Jumila, 87

Hawai#i at 4, 950 P.2d at 1204)).

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V. CONCLUSION

The July 9, 2024 Judgment of Conviction and Sentence is

vacated and this case is remanded to the Circuit Court. On

remand, the Circuit Court should enter an amended judgment of

conviction and sentence on Count 2 (Habitual Property Crime)

only.

On the briefs: /s/ Karen T. Nakasone
Chief Judge
Benjamin E. Lowenthal,
Sara K. Haley, /s/ Katherine G. Leonard
Deputies Public Defender, Associate Judge
State of Hawai#i,
for Defendant-Appellant /s/ Keith K. Hiraoka
Hardy K. Ah Puck, Jr., Associate Judge
also known as Hardy K. Ah Puck.

Gerald K. Enriques,
Deputy Prosecuting Attorney,
County of Maui,
for Plaintiff-Appellee
State of Hawai#i.

Caitlyn B. Carpenter,
Deputy Solicitor General,
on the amicus curiae brief
for Attorney General of the
State of Hawai#i.

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