State v. Harrell

NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
31-MAY-2022
09:09 AM
Dkt. 77 SO

NOS. CAAP-XX-XXXXXXX & CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

STATE OF HAWAI#I, Plaintiff-Appellee, v.
KAPUAOHEOHEONOLANIEHIKU P. HARRELL, Defendant-Appellant

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

SUMMARY DISPOSITION ORDER
(By: Ginoza, C.J., and Leonard and Wadsworth, JJ.)

Defendant-Appellant Kapuaoheoheonolaniehiku P. Harrell
(Harrell) appeals from the following orders entered on August 16,
2018, in the Circuit Court of the Second Circuit (Circuit
Court)1/: (1) the "Court's Findings of Fact, Conclusions of Law,
and Order Granting Motion to Dismiss Count One of Indictment
Filed May 23, 2017, for Prosecutorial Misconduct Before Grand
Jury, Filed on July 27, 2018"; and (2) the "Findings of Fact,
Conclusions of Law, and Order Denying Motion to Dismiss Count One
of Indictment Filed May 23, 2017, for Violation of Speedy Trial
Rights, Filed July 26, 2018" (collectively, the August 16, 2018
Orders).
In granting Harrell's motion to dismiss for
prosecutorial misconduct, the Circuit Court dismissed Count One
of the Indictment – for Robbery in the First Degree, in violation

1/
The Honorable Peter T. Cahill presided. On March 25, 2019, this
court entered an order granting Harrell's motion to consolidate appellate case
numbers CAAP-XX-XXXXXXX and CAAP-XX-XXXXXXX, which were consolidated under
case number CAAP-XX-XXXXXXX. We refer to these consolidated appeals in the
singular as "appeal."
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER

of Hawaii Revised Statutes § 708-840(1)(b)(i) and/or (ii) –
without prejudice.2/ On August 31, 2018, the court entered an
amended order also stating that "if the State does not re-charge
Count One by November 2, 2018, the dismissal shall be with
prejudice."
In his opening brief on appeal, Harrell contended that
the Circuit Court erred and/or abused its discretion: (1) in
dismissing Count One without prejudice rather than with
prejudice; and (2) in denying Harrell's motion to dismiss Count
One based on alleged violations of Hawai#i Rules of Penal
Procedure Rule 48 and Harrell's constitutional right to a speedy
trial. However, after briefing was completed, on March 31, 2021,
Harrell filed a motion to dismiss this appeal pursuant to Hawai#i
Rules of Appellate Procedure (HRAP) Rules 27 and 42(c).3/
Harrell's motion asserted that the State had re-indicted him on
September 24, 2018, in Criminal No. 2CPC-XX-XXXXXXX, and Harrell
had "pled to the underlying charges as part of a plea agreement
which requires that [Harrell] dismiss his pending appeal in
consideration of the agreed upon plea agreement." Harrell's
counsel submitted a supporting declaration, which confirmed the
above facts, attached copies of the plea agreement and subsequent
judgment, and also stated: "Declarant believes that the appeals
are now moot because the change of plea was not part of a
conditional plea subject to the right to appeal as part of the
plea agreement." However, no declaration by Harrell was
submitted in support of the motion to dismiss.

2/
On May 23, 2017, Plaintiff-Appellee State of Hawai #i (State) filed
a five-count indictment against Harrell in Criminal No. 2CPC-XX-XXXXXXX. On
March 8, 2018, Counts Two through Five were dismissed without prejudice
following the State's motion to dismiss. Only Count One is at issue in this
appeal.
3/
HRAP Rule 42(c) provides:

Special Requirements for Criminal Appeals. In a
criminal appeal by a defendant, the stipulation or motion
for dismissal of the appeal shall be supported by the
defendant's affidavit or declaration that reflects a knowing
and intelligent understanding of the consequences of the
dismissal of the appeal and that the withdrawal is made
voluntarily. In circumstances where the defendant cannot be
located after a diligent effort, the circumstances of the
effort shall be set forth in an affidavit or declaration of
counsel in support of the stipulation or motion.

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On April 8, 2021, the State filed a statement of no
opposition to Harrell's motion to dismiss.
On April 15, 2021, this court entered an order denying
Harrell's motion to dismiss without prejudice. We concluded that
the motion to dismiss did not comply with HRAP Rule 42(c) "in
that it [was] not supported by 'the defendant's affidavit or
declaration that reflects a knowing and intelligent understanding
of the consequences of the dismissal of the appeal[s] and that
the withdrawal is made voluntarily.'" Thus, the motion was
denied "without prejudice to a subsequent motion that complies
with HRAP Rule 42(c)." To date, however, Harrell has not filed a
subsequent motion.
Accordingly, we must now determine whether Harrell's
appeal is moot. After reviewing the record on appeal and the
relevant legal authorities, and giving due consideration to the
issues raised and the arguments advanced by the parties, we
conclude that the appeal is moot and must be dismissed for lack
of appellate jurisdiction.
"In general, 'this court does not have jurisdiction to
decide abstract propositions of law or moot cases.'" State v.
Nakanelua, 134 Hawai#i 489, 501, 345 P.3d 155, 167 (2015)
(brackets omitted) (quoting Lathrop v. Sakatani, 111 Hawai#i 307,
312, 141 P.3d 480, 485 (2006)). "[A] case is moot if the
reviewing court can no longer grant effective relief."
Kaho#ohanohano v. State, 114 Hawai#i 302, 332, 162 P.3d 696, 726
(2007) (emphasis omitted) (quoting Kemp v. State of Hawai#i Child
Support Enforcement Agency, 111 Hawai#i 367, 385, 141 P.3d 1014,
1032 (2006)). "[M]ootness is an issue of subject matter
jurisdiction[,]" Hamilton ex rel. Lethem v. Lethem, 119 Hawai#i
1, 4, 193 P.3d 839, 842 (2008), and we must raise the issue sua
sponte, Kapuwai v. City & Cty. of Honolulu, 121 Hawai#i 33, 40,
211 P.3d 750, 757 (2009) (concluding that "if the parties do not
raise the issue of a lack of subject matter jurisdiction, a court
sua sponte will.") (brackets omitted) (quoting Tamashiro v. Dep't
of Human Servs., State of Hawai#i, 112 Hawai#i 388, 398, 146 P.3d
103, 113 (2006)).

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Harrell's appeal is moot because we can no longer
provide effective relief. Harrell was seeking "revers[al" of the
August 16, 2018 Orders and dismissal of Count One with prejudice.
However, Harrell subsequently entered into a plea agreement with
the State under which, inter alia, he pled no contest to the same
Robbery-in-the-First-Degree charge, albeit re-filed under a new
criminal case number, that is the subject of this appeal. As a
result, on October 20, 2020, the Circuit Court entered, inter
alia, a judgment of conviction on Count One in Criminal No. 2CPC-
XX-XXXXXXX. It appears that Harrell did not appeal from that
judgment.4/
Harrell's no contest plea – which was not conditional –
and his final judgment of conviction on the underlying charge
"have so affected the relations between the parties" that at
least one of "the two conditions for justiciability relevant on
appeal — . . . effective remedy — ha[s] been compromised."
Lathrop, 111 Hawai#i at 313, 141 P.3d at 486 (quoting Wong v. Bd.
of Regents, Univ. Of Hawai#i, 62 Haw. 391, 394, 616 P.2d 201,
203-04 (1980)); see also State v. Morin, 71 Haw. 159, 162, 785
P.2d 1316, 1318 (1990) ("Generally, a guilty [or no contest] plea
made voluntarily and intelligently precludes a defendant from
later asserting any nonjurisdictional claims, including
constitutional challenges to the pretrial proceedings." (citing
Brady v. United States, 397 U.S. 742 (1970); Tollett v.
Henderson, 411 U.S. 258 (1973); 1 C. Wright, Federal Practice &
Procedure § 175 (1982))); cf. State v. Hanaoka, 97 Hawai#i 17,
19, 32 P.3d 663, 665 (2001) ("A conditional plea is an exception
to the general rule precluding nonjurisdictional appeals after a
guilty or a no contest plea." (quoting State v. Kealaiki, 95
Hawai#i 309, 314, 22 P.3d 588, 593 (2001))).
Accordingly, it is apparent from the record that we can
no longer grant Harrell effective relief. This appeal is
therefore moot and must be dismissed for lack of appellate
jurisdiction.

4/
We take judicial notice of the docket entries and documents filed
in Criminal No. 2CPC-XX-XXXXXXX. See State v. Kapalski, No, CAAP-XX-XXXXXXX,
2019 WL 2417753, at *1 (Haw. App. June 10, 2019) (SDO).

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Based on the forgoing, this appeal is dismissed.
The State's Motion for Temporary Stay, filed on May 24,
2022, is denied as moot.

DATED: Honolulu, Hawai#i, May 31, 2022.

On the briefs:
/s/ Lisa M. Ginoza
Shawn A. Luiz, Chief Judge
for Defendant-Appellant.

Richard B. Rost, /s/ Katherine G. Leonard
Deputy Prosecuting Attorney, Associate Judge
County of Maui,
for Plaintiff-Appellee.
/s/ Clyde J. Wadsworth
Associate Judge

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