State v. Alesana

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
29-APR-2021
07:59 AM
Dkt. 48 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

STATE OF HAWAI#I, Plaintiff-Appellee, v.
JOHN ALESANA, Defendant-Appellant

APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT
(HONOLULU DIVISION)
(CASE NO. 1DTC-19-027882)

SUMMARY DISPOSITION ORDER
(By: Ginoza, Chief Judge, Leonard and Hiraoka, JJ.)

Defendant-Appellant John Alesana (Alesana) appeals from

the Notice of Entry of Judgment and/or Order and Plea/Judgment

filed on August 1, 2019 (Judgment), in the District Court of the

First Circuit, Honolulu Division (District Court).1/

Alesana was convicted of Operating a Vehicle After

License and Privilege Have Been Suspended or Revoked for

Operating a Vehicle Under the Influence of an Intoxicant (OVLPSR-

OVUII), in violation of Hawaii Revised Statutes (HRS) § 291E-

1/ The Honorable Ann S. Isobe presided.
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62(a)(1) and/or (a)(2) (Supp. 2018), and sentenced pursuant to

(c)(1).2/

Alesana raises the following points of error on appeal:

(1)(a) the District Court erred or plainly erred by admitting

Exhibit 3, a Notice of Administrative Revocation, as well as

Officer Jooney Hnong's (Officer Hnong) testimony relating to his

advisement about the content of Exhibit 3 to Alesana because it

was irrelevant; (1)(b) the District Court erred or plainly erred

by admitting Exhibit 1, a Notice of Administrative Review

2/ HRS § 291E-62 states in relevant part:

§ 291E-62 Operating a vehicle after license and privilege have
been suspended or revoked for operating a vehicle under the influence of an
intoxicant; penalties. (a) No person whose license and privilege to operate a
vehicle have been revoked, suspended, or otherwise restricted pursuant to this
section or to part III or section 291E-61 or 291E-61.5, or to part VII or part
XIV of chapter 286 or section 200-81, 291-4, 291-4.4, 291-4.5, or 291-7 as
those provisions were in effect on December 31, 2001, shall operate or assume
actual physical control of any vehicle:

(1) In violation of any restrictions placed on the person's
license;

(2) While the person's license or privilege to operate a vehicle
remains suspended or revoked;

. . . .

(c) Any person convicted of violating this section shall be
sentenced as follows without possibility of probation or suspension of
sentence:

(1) For a first offense, or any offense not preceded within a
five-year period by conviction for an offense under this
section, section 291E-66, or section 291-4.5 as that section
was in effect on December 31, 2001:

(A) A term of imprisonment of not less than three
consecutive days but not more than thirty days;

(B) A fine of not less than $250 but not more than $1,000;

(C) Revocation of license and privilege to operate a
vehicle for an additional year; and

(D) Loss of the privilege to operate a vehicle equipped
with an ignition interlock device, if applicable[.]

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Decision, because absent a showing it was received by Alesana, it

was irrelevant to establish he was aware his license was revoked

and, thus, he did not intentionally, knowingly, or recklessly

disregard the risk his license or privilege to operate a vehicle

remained revoked; (1)(c) the District Court erred in relying upon

Exhibit 2, Alesana's traffic abstract, because it was irrelevant

to prove that he was aware his license was revoked and, thus, he

did not intentionally, knowingly, or recklessly disregard the

risk his license or privilege to operate a vehicle had been

revoked; and (2) the District Court erred by relying on Exhibit 1

because under HRS § 291E-34(c)(4) Alesana was not entitled to be

present or represented at the administrative review hearing,

therefore, it did not meet minimal due process requirements and

could not be used to enhance his sentence from driving without a

license to OVLPSR-OVUII.

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 by the parties, we

resolve Alesana's points of error as follows:

(1) At trial, Alesana objected to the admission of

Exhibits 1, 2, and 3 based on lack of foundation and/or violation

of his confrontation right. Alesana did not object to Officer

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Hnong's testimony at trial. On appeal, Alesana challenges the

relevance of Exhibits 1, 2, and 3.3/

Plain errors affecting substantial rights may be

noticed although they were not brought to the attention of the

court. State v. Metcalfe, 129 Hawai#i 206, 224-25, 297 P.3d

1062, 1080-81 (2013). "However, objections to the admission of

incompetent evidence, which a party failed to raise at trial, are

generally not subject to plain error review." Id. at 225, 297

P.3d at 1081 (citing, inter alia, State v. Uyesugi, 100 Hawai#i

442, 464, 60 P.3d 843, 865 (2002) ("In the absence of an

objection and/or proper record, the admission of the testimony

and picture does not amount to plain error.")). Here, this court

declines to recognize plain error in the admission of Exhibits 1,

2, and 3 and Officer Hnong's testimony. The trier of fact may

properly consider all admitted evidence to which there was no

valid objection. State v. Wallace, 80 Hawai#i 382, 410, 910 P.2d

695, 723 (1996) (quoting State v. Naeole, 62 Haw. 563, 570-71,

617 P.2d 820, 826 (1980) ("It is the general rule that evidence

to which no objection has been made may properly be considered by

the trier of fact and its admission will not constitute ground

for reversal.")). Therefore, we conclude that the District Court

3/ Although Alesana states on appeal that there was insufficient
foundation to admit Exhibit 1, he argues, "Absent any further foundation to
make it relevant, [Exhibit 1] remained irrelevant and the district court erred
for admitting over defense counsel's foundation objection," and "Alesana
incorporates herein by reference the first paragraph of Section IV.A1 supra on
HRE Rules 401 and 402." Therefore, this court construes Alesana's objection
to the admission of Exhibit 1 on appeal as a challenge to relevance.

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did not err by considering Exhibits 1, 2, and 3 in determining

whether Alesana was guilty of OVLPSR-OVUII.

The remainder of Alesana's challenges to the admission

of Exhibits 1, 2, and 3 are construed as a claim of insufficient

evidence to convict him of OVLPSR-OVUII, in particular that the

State failed to adduce sufficient evidence to demonstrate Alesana

acted with the requisite state of mind with respect to the

revocation of his license.

When the evidence adduced in the trial court is

considered in the strongest light for the prosecution, there was

substantial evidence to convict Alesana of OVLPSR-OVUII. See

State v. Matavale, 115 Hawai#i 149, 157-58, 166 P.3d 322, 330-31

(2007). "When the state of mind required to establish an element

of an offense is not specified by the law, that element is

established if, with respect thereto, a person acts

intentionally, knowingly, or recklessly." HRS § 702-204 (2014).

HRS § 291E-62 does not specify the state of mind required to

establish any elements of the offense; thus, the State must prove

Alesana acted intentionally, knowingly, or recklessly.4/

"[G]iven the difficulty of proving the requisite state

of mind by direct evidence in criminal cases, we have

4/ "A person acts recklessly with respect to attendant circumstances
when he consciously disregards a substantial and unjustifiable risk that such
circumstances exist." HRS § 702-206(3)(b) (2014). "A risk is substantial and
unjustifiable within the meaning of this section if, considering the nature
and purpose of the person's conduct and the circumstances known to him, the
disregard of the risk involves a gross deviation from the standard of conduct
that a law-abiding person would observe in the same situation." HRS § 702-
206(3)(d) (2014).

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consistently held that proof by circumstantial evidence and

reasonable inferences arising from circumstances surrounding the

defendant's conduct is sufficient." State v. Stocker, 90 Hawai#i

85, 92, 976 P.2d 399, 406 (1999) (brackets, ellipsis, citation

and internal quotation marks omitted). "Thus, the mind of

alleged offender may be read from his acts, conduct and

inferences fairly drawn from all the circumstances." Id.

(citation and internal quotation marks omitted).

Officer Brooke Carlbom (Officer Carlbom) testified that

on March 28, 2019, she stopped Alesana on Kukui Street, which is

a public way, street, road, or highway, in the City and County of

Honolulu, State of Hawai#i, for failing to stop at a stop sign

while he was operating a moped. Alesana did not produce his

driver's license as requested, instead he verbally told Officer

Carlbom his first and last name, address, date of birth, and last

four digits of his Social Security number, which she wrote

directly onto the citation issued to Alesana.

Office Hnong testified he arrested Alesana on May 29,

2018, for Operating a Vehicle Under the Influence of an

Intoxicant (OVUII) and driving without a license. He verbally

conveyed to Alesana some of the content of Exhibit 3, the Notice

of Administrative Revocation, specifically that it would not

serve as a temporary permit to drive because he did not have a

driver's license to forward to the Administrative Driver's

License Revocation Office (ADLRO) and was arrested for driving

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without a license. Alesana acknowledged that he understood, and

he signed the fourth page of the Notice of Administrative

Revocation in Officer Hnong's presence. Officer Hnong also

listed Alesana's address, last four digits of his Social Security

number, and year of birth on the Notice of Administrative

Revocation based on information Alesana provided. The District

Court found both officers' testimony credible.

Exhibit 2, a traffic abstract, contains Alesana's first

and last name, last four digits of his Social Security number,

and date of birth, all of which match the information Alesana

provided to Officer Carlbom and the citation issued to Alesana.

Therefore, Alesana was adequately linked to the traffic abstract.

See, e.g., State v. Davis, 133 Hawai#i 102, 122, 324 P.3d 912,

932 (2014); and see also State v. Nishi, 9 Haw. App. 516, 527,

852 P.2d 476, 482 (1993).

The traffic abstract lists an Administrative Review for

John A. Alesana for Case ID 18203244D, noting a "Notice of Admin

Revocation Alcohol" for the date 05/29/2018 and "ADLRO Sustained"

with the date 06/04/2018.

Exhibit 3, a Notice of Administrative Revocation,

references "REPORT NO.: 18-203244" for "ALESANA, JOHN" and has

the same address and last four digits of Alesana's Social

Security number as the citation. It also states the arrest date

as "5-29-18." The Notice of Administrative Revocation was

adequately linked to Alesana by the traffic abstract as well as

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Officer Hnong's testimony that Alesana signed the document. The

Notice of Administrative Revocation stated that Alesana was the

Respondent and that "You are the Respondent in this

administrative proceeding. Pursuant to the Administrative

Revocation Process, Chapter 291E, Part III, Hawai#i Revised

Statutes ('HRS')[.]" It also stated it was not a temporary

permit because Alesana was unlicensed or his license expired.

Exhibit 1, a Notice of Administrative Review Decision

dated June 4 2018, references John A. Alesana, Date of Arrest of

May 29, 2018, and Arrest Rpt. No. 18-203244, and the same address

and last four digits of Alesana's Social Security number as the

citation. Therefore, the Notice of Administrative Review

Decision was adequately linked to Alesana by the traffic abstract

and citation. The Notice of Administrative Review Decision

indicates a 'Date of Decision and Mailing' of June 4, 2018, with

Alesana's name and address appearing immediately thereafter, and

stated Alesana's administrative revocation was sustained and his

license and privilege to operate a vehicle were revoked from June

29, 2018 to June 28, 2019. (Emphasis added).

On March 29, 2019, Alesana operated or assumed actual

physical control of a moped, which is included in the definition

of a vehicle under HRS § 291E-1 (2007). Alesana's license was

revoked from June 29, 2018 to June 28, 2019 pursuant to Part III

of HRS Chapter 291E. Thus, there was substantial evidence that

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Alesana drove or operated a vehicle while his license was revoked

within the meaning of HRS § 291E-62(a).

When Alesana was arrested for Driving under the

influence (DUI)5/ and driving without a license on May 29, 2018,

Alesana did not have a driver's license and Officer Hnong

explained to him that the Notice of Administrative Revocation

would not be a temporary permit because he did not have a license

to forward to the ADLRO. The Notice of Administrative Revocation

also stated, "The administrative review decision shall be mailed

to you: (a) No later than eight days after the date of the

issuance of this Notice in the case of an alcohol related

offense[.]" Pursuant to HRS § 291E-37 (Supp. 2017), the Director

of the ADLRO must "issue a written decision administratively

revoking the license and privilege to operate a vehicle or

rescinding the notice of administrative revocation." HRS § 291E-

37(a). "If the evidence does not support administrative

revocation, the director shall rescind the notice of

administrative revocation and return the respondent's license

along with a certified statement that administrative revocation

proceedings have been terminated." HRS § 291E-37(e). "If the

director administratively revokes the respondent's license and

privilege to operate a vehicle, the director shall mail a written

review decision to the respondent, or to the parent or guardian

5/ DUI is also referred to as OVUII. See State v. Spearman, 129
Hawai#i 146, 148, 296 P.3d 359, 361 (2013) (DUI under HRS § 291-4 now OVUII
under HRS § 291E-61).

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of the respondent if the respondent is under the age of

eighteen." HRS § 291E-37(f). Alesana consciously disregarded a

substantial and unjustifiable risk that his license was revoked

when he operated a moped and was stopped by Officer Carlbom, even

if there was no proof that Alesana actually received a copy of

the Notice of Administrative Review Decision. See State v.

Lioen, 106 Hawai#i 123, 132, 102 P.3d 367, 376 (App. 2004)

(defendant acted recklessly in driving without determining

whether his license remained revoked or suspended for DUI-alcohol

when he knew his license had previously been suspended or revoked

for DUI-alcohol and had knowledge he did not have a valid

driver's license, and had the defendant inquired about the status

of his license he would have learned his license remained

administratively revoked as a result of his prior DUI-alcohol

arrests); State v. Rios, CAAP-XX-XXXXXXX, 2021 WL 964862, *2

(Haw. App. Mar. 15, 2021) (SDO), (defendant consciously

disregarded substantial and unjustifiable risk license was

revoked when he drove five months after receiving revocation form

indicating he was arrested for OVUII, was unlicensed or license

was expired, and a decision whether his license and privilege to

operate a vehicle would be revoked would be mailed to him not

later than eight days after issuance of the form).

(2) Citing State v. Afong, 61 Haw. 281, 602 P.2d 927

(1979) and State v. Vares, 71 Haw. 617, 801 P.2d 555 (1990),

Alesana contends that the District Court erred by relying on

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Exhibit 1 because under HRS § 291E-34(c)(4) Alesana was not

entitled to be present or represented at the administrative

review. Therefore, Alesana argues, it did not meet minimal due

process requirements and could not be used to enhance his

sentence from driving without a license to OVLPSR-OVUII.

While Alesana was sentenced to three days imprisonment,

Alesana was not subject to a repeat offender provision as in

Afong, 61 Haw. at 282-83, 602 P.2d at 929, or to an enhanced

sentence as in Vares, 71 Haw. at 621, 801 P.2d at 557, because he

was sentenced pursuant to HRS § 291E-62(c)(1) for a first

offense. Thus, Afong and Vares are not directly applicable.

Alesana's argument also appears to be that his license

revocation by the ADLRO should not have been used to prove an

element of OVLPSR-OVUII because it was uncounseled. An

uncounseled prior conviction may not be used to establish an

element of an offense. See State v. Veikoso, 102 Hawai#i 219,

223-24, 74 P.3d 575, 579-80 (2003). "Generally, a conviction is

defined as '[t]he final judgment on a verdict or finding of

guilty, a plea of guilty, or a plea of nolo contendere, but does

not include a final judgment which has been expunged by pardon,

reversed, set aside, or otherwise rendered nugatory.'" State v.

Shimabukuro, 100 Hawai#i 324, 326, 60 P.3d 274, 276 (2002)

(citing Black's Law Dictionary 333–34 (6th ed. 1990)). Alesana's

license revocation is not a conviction within the meaning of HRS

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§ 291E-62 because it was not a final judgment on a verdict or

finding of guilt, a guilty plea, or a plea of nolo contendere.

Citing HRS § 291E-34(c)(4) (Supp. 2018) which requires

the Notice of Administrative Revocation to state "[t]hat the

respondent is not entitled to be present or represented at the

administrative review," Alesana argues that the statute violates

his right to due process and right to be represented by counsel

at a review hearing.

Since the proceeding to review Alesana's license

revocation is a civil administrative proceeding and not a

criminal proceeding, he has no constitutional right to counsel in

the initial administrative license revocation proceeding. See

Norton v. Admin. Dir. of the Court, 80 Hawai#i 197, 200, 908 P.2d

545, 548 (1995).6/

Alesana conflates the automatic administrative review

decision required by HRS § 291E-37 with an administrative hearing

decision pursuant to HRS § 291E-38 (Supp. 2018).

Alesana has a statutory right to be present and be

represented by counsel for an administrative hearing, but not for

the initial administrative review. While HRS § 291E-34(c)(4)

does not allow a respondent to be represented for the

administrative review, if the administrative review decision

6/ Norton interpreted the administrative driver's license revocation
process under HRS Chapter 286. Act 189 (2000), codified as HRS Chapter 291E,
was enacted to "consolidate, for purposes of uniformity and consistency, where
appropriate, the provisions relating to operating a vehicle while using an
intoxicant." State v. Wheeler, 121 Hawai#i 383, 392 n.11, 219 P.3d 1170, 1179
n.11 (2009). Act 189 repealed HRS §§ 286-251 to 286-266 and enacted the
Administrative Revocation Process in HRS §§ 291E-31 to 291E-50.

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revokes a respondent's license and privilege to operate a

vehicle, the administrative review decision must inform the

respondent that he/she has six days to request a hearing and

"that the respondent may be represented by counsel at the

hearing[.]" HRS § 291E-37(f)(2) and (6). Both the Notice of

Administrative Revocation and Notice of Administrative Review

Decision stated an administrative hearing could be requested and

that the respondent could be represented by counsel or an

attorney. There is nothing in the record to indicate Alesana

requested an administrative hearing.

In Kernan v. Tanaka, 75 Haw. 1, 41, 856 P.2d 1207, 1227

(1993), the court held that "HRS chapter 286 Part XIV, the

Administrative Revocation of Driver's License law, is

constitutional because an arrestee's due process rights are fully

protected." The court held "the interest in a driver's license

is not so great that more than an administrative review and

hearing are needed to comport with the requirements of due

process." Id. at 31, 856 P.2d at 1222. At the time, HRS § 286-

258(b) and (c) allowed an arrestee to submit written information

for the reviewing officer to consider and an administrative

review of the police officer's actions occurred automatically.

Id. at 18, 865 P.2d at 1216-17. The reviewing officer would then

issue a written decision within eight days after the arrest which

also informed the arrestee of the right to request an

administrative hearing. Id. at 18-19, 865 P.2d at 12-16-17.

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HRS § 291E-34(c)(2) also provides: "That the respondent, within

three days of the issuance of the notice of administrative

revocation in the case of an alcohol related offense and within

seventeen days of the issuance of the notice of administrative

revocation in the case of a drug related offense, may submit

written information demonstrating why the respondent's license

and privilege to operate a vehicle should not be administratively

revoked[.]" Alesana presents no specific argument or authority

as to why HRS § 291E-34 does not comply with due process when a

similar procedure in HRS § 286-258 was found to fully protect an

arrestee's due process rights in Kernan. Therefore, we conclude

that the State did not need to establish that Alesana's license

revocation was counseled before using it to prove an element of

OVLPSR-OVUII and that Alesana's due process rights were not

violated.

For these reasons, the District Court's August 1, 2019

Judgment is affirmed.

DATED: Honolulu, Hawai#i, April 29, 2021.

On the briefs:
/s/ Lisa M. Ginoza
Phyllis J. Hironaka, Chief Judge
Deputy Public Defender,
for Defendant-Appellant. /s/ Katherine G. Leonard
Associate Judge
Brian R. Vincent,
Deputy Prosecuting Attorney, /s/ Keith K. Hiraoka
City and County of Honolulu, Associate Judge
for Plaintiff-Appellee.

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