NOT FOR PUBLICATION IN WEST'S HAWAI I REPORTS AND PACIFIC REPORTER
Electronically Filed Intermediate Court of Appeals CAAP-XX-XXXXXXX 31-DEC-2025 07:47 AM Dkt. 49 SO NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI I
NANCY LACUESTA, Petitioner-Appellant, v. STATE OF HAWAI I, Respondent-Appellee
APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT (CASE NO. 2CPN-XX-XXXXXXX)
SUMMARY DISPOSITION ORDER (By: Leonard, Presiding Judge, Hiraoka and Guidry, JJ.) Petitioner-Appellant Nancy Lacuesta (Lacuesta) appeals
from the November 9, 2023 Findings of Fact, Conclusions of Law,
and Order Denying Petition to Vacate and Set Aside Judgment Under
Rule 40, Hawaii Rules of Penal Procedure [(HRPP)] (Order Denying
Petition) entered against her by the Circuit Court of the Second
Circuit (Circuit Court).1
The Statement of Points of Error section of Lacuesta's
Opening Brief does not comply with Hawaii Rules of Appellate
Procedure (HRAP) Rule 28(b)(4), including the failure to state
where in the record the alleged error was objected to or the
manner in which the alleged error was brought to the attention of
the Circuit Court. Accordingly, we review for plain error. In
1 The Honorable Michelle L. Drewyer Presided. NOT FOR PUBLICATION IN WEST'S HAWAI I REPORTS AND PACIFIC REPORTER
sum, Lacuesta contends that the Circuit Court erred in denying
Lacuesta's July 17, 2023 Petition to Vacate and Set Aside
Judgment Under Rule 40, [HRPP] (Rule 40 Petition). Lacuesta does
not challenge any of the Circuit Court's Findings of Fact (FOFs),
which are therefore binding on the court, but points to
Conclusions of Law (COLs) 7, and 10-14 as erroneous. 2
2 The challenged COLs state:
7. During the change-of-plea colloquy in the underlying case, the Court did advise Petitioner that by pleading no contest, she may be sentenced inter alia to pay "a fee and/or assessment," Petitioner confirmed that this was explained to her, and she did not have any questions about it. The Court finds sufficient advisement was given that in addition to the authorized fine for the offense set by HRS § 706-640, Petitioner might have to pay a fee and/or assessment such as the Probation Services Fee, Crime Victim Compensation Fee, and DNA Assessment, whereby the Court concludes that the Petition is patently frivolous and without trace of support either in the record or in the other evidence submitted by the petitioner.
. . . .
10. At sentencing, Petitioner did not object to the imposition of the Probation Services Fee, Crime Victim Compensation Fee, and DNA Assessment; Petitioner informed the Court she could afford it; and the subject fees were paid in full in 2009, whereby the Court concludes that her allegation of invalid plea is not credible and not a colorable claim.
11. Petitioner did not file a direct appeal to challenge her sentence or move to withdraw her plea before the Judgment became final in 2009, whereby the Court concludes that her allegation of invalid plea was waived, and Petitioner has not proven the existence of extraordinary circumstances to justify her failure to raise the issue.
12. Under the liberal pre-sentence standard of "fair and just reason," the court weighs whether the State relied upon the plea to its substantial prejudice; therefore, it follows that this factor should also be considered under the more stringent "manifest injustice" standard. See State v. Jim, 58 Haw. 574, 575-76, 574 P.2d 521, 522-23 (1978).
13. After the Judgment in the underlying case became final, a compact disc containing evidence for the underlying case was purged by Maui County Police Department on April 21, 2014, whereby the·Court concludes that the State relied on Petitioner's no contest plea to its substantial prejudice.
14. Based on the foregoing, the Court concludes that Petitioner failed to establish manifest injustice to withdraw her plea.
2 NOT FOR PUBLICATION IN WEST'S HAWAI I REPORTS AND PACIFIC REPORTER
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, we resolve
Lacuesta's points of error as follows:
In the Rule 40 Petition, Lacuesta sought to vacate and
set aside the June 24, 2009 Judgment; Conviction and Probation
Sentence; Notice of Entry (2009 Judgment) entered against her
after a no contest plea on a charge of Theft in the Second
Degree. In the 2009 Judgment, Lacuesta was sentenced to five
years probation, with a Criminal Victim Compensation fee of $105,
a Probation Services fee of $150, and a monetary assessment of
$500 or the actual cost of the DNA analysis (collectively,
Monetary Assessments), as well as a fine of $500.
In the Rule 40 Petition, Lacuesta argued that her no
contest plea was invalid because the trial court failed to advise
her that she could be sentenced to additional monetary
assessments, and therefore, her plea was not knowing,
intelligent, and voluntary. 3 After further briefing, on October
19, 2023, a hearing was held on the Rule 40 Petition. The Order
Denying Petition was entered thereafter.
With respect to Lacuesta's arguments on appeal, as a
preliminary matter, it does not appear that Lacuesta raised or
properly preserved a hearsay objection in the proceedings below.
Thus, Lacuesta's challenge to COL 13 based on the argument that
the Circuit Court improperly considered inadmissible hearsay is
3 Lacuesta was represented by counsel through the HRPP Rule 40 proceedings.
3 NOT FOR PUBLICATION IN WEST'S HAWAI I REPORTS AND PACIFIC REPORTER
waived; plain error review of this issue is not warranted. See,
e.g., State v. Crisostomo, 94 Hawai i 282, 290, 12 P.3d 873, 881
(2000); State v. Metcalfe, 129 Hawai i 206, 225, 297 P.3d 1062,
1081 (2013).
Lacuesta's overarching argument is that the sentencing
court failed to strictly comply with HRPP Rule 11(c)(2) 4 because
the court incorrectly advised Lacuesta of the maximum fine that
could be imposed, and thus, Lacuesta's no contest plea was not
knowing, intelligent, and voluntary; and accordingly, the
colloquy was constitutionally invalid.
Lacuesta relies heavily on Warner v. State, 151 Hawai i
433, 438, 517 P.3d 716, 721 (2022), wherein the Hawai i Supreme
Court held that the petitioner-appellant's (Warner's) HRPP Rule
40 claim that the trial court's failure to inform Warner of any
of the monetary assessments before accepting a change of plea
stated a colorable Rule 40 claim for relief from the monetary
assessments.
Warner filed an HRPP Rule 40 petition that raised
various issues and requested, inter alia, that his sentence be
4 HRPP Rule 11(c)(2) provides:
Rule 11. PLEAS.
(c) Advice to defendant.
Free access — add to your briefcase to read the full text and ask questions with AI
NOT FOR PUBLICATION IN WEST'S HAWAI I REPORTS AND PACIFIC REPORTER
Electronically Filed Intermediate Court of Appeals CAAP-XX-XXXXXXX 31-DEC-2025 07:47 AM Dkt. 49 SO NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI I
NANCY LACUESTA, Petitioner-Appellant, v. STATE OF HAWAI I, Respondent-Appellee
APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT (CASE NO. 2CPN-XX-XXXXXXX)
SUMMARY DISPOSITION ORDER (By: Leonard, Presiding Judge, Hiraoka and Guidry, JJ.) Petitioner-Appellant Nancy Lacuesta (Lacuesta) appeals
from the November 9, 2023 Findings of Fact, Conclusions of Law,
and Order Denying Petition to Vacate and Set Aside Judgment Under
Rule 40, Hawaii Rules of Penal Procedure [(HRPP)] (Order Denying
Petition) entered against her by the Circuit Court of the Second
Circuit (Circuit Court).1
The Statement of Points of Error section of Lacuesta's
Opening Brief does not comply with Hawaii Rules of Appellate
Procedure (HRAP) Rule 28(b)(4), including the failure to state
where in the record the alleged error was objected to or the
manner in which the alleged error was brought to the attention of
the Circuit Court. Accordingly, we review for plain error. In
1 The Honorable Michelle L. Drewyer Presided. NOT FOR PUBLICATION IN WEST'S HAWAI I REPORTS AND PACIFIC REPORTER
sum, Lacuesta contends that the Circuit Court erred in denying
Lacuesta's July 17, 2023 Petition to Vacate and Set Aside
Judgment Under Rule 40, [HRPP] (Rule 40 Petition). Lacuesta does
not challenge any of the Circuit Court's Findings of Fact (FOFs),
which are therefore binding on the court, but points to
Conclusions of Law (COLs) 7, and 10-14 as erroneous. 2
2 The challenged COLs state:
7. During the change-of-plea colloquy in the underlying case, the Court did advise Petitioner that by pleading no contest, she may be sentenced inter alia to pay "a fee and/or assessment," Petitioner confirmed that this was explained to her, and she did not have any questions about it. The Court finds sufficient advisement was given that in addition to the authorized fine for the offense set by HRS § 706-640, Petitioner might have to pay a fee and/or assessment such as the Probation Services Fee, Crime Victim Compensation Fee, and DNA Assessment, whereby the Court concludes that the Petition is patently frivolous and without trace of support either in the record or in the other evidence submitted by the petitioner.
. . . .
10. At sentencing, Petitioner did not object to the imposition of the Probation Services Fee, Crime Victim Compensation Fee, and DNA Assessment; Petitioner informed the Court she could afford it; and the subject fees were paid in full in 2009, whereby the Court concludes that her allegation of invalid plea is not credible and not a colorable claim.
11. Petitioner did not file a direct appeal to challenge her sentence or move to withdraw her plea before the Judgment became final in 2009, whereby the Court concludes that her allegation of invalid plea was waived, and Petitioner has not proven the existence of extraordinary circumstances to justify her failure to raise the issue.
12. Under the liberal pre-sentence standard of "fair and just reason," the court weighs whether the State relied upon the plea to its substantial prejudice; therefore, it follows that this factor should also be considered under the more stringent "manifest injustice" standard. See State v. Jim, 58 Haw. 574, 575-76, 574 P.2d 521, 522-23 (1978).
13. After the Judgment in the underlying case became final, a compact disc containing evidence for the underlying case was purged by Maui County Police Department on April 21, 2014, whereby the·Court concludes that the State relied on Petitioner's no contest plea to its substantial prejudice.
14. Based on the foregoing, the Court concludes that Petitioner failed to establish manifest injustice to withdraw her plea.
2 NOT FOR PUBLICATION IN WEST'S HAWAI I REPORTS AND PACIFIC REPORTER
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, we resolve
Lacuesta's points of error as follows:
In the Rule 40 Petition, Lacuesta sought to vacate and
set aside the June 24, 2009 Judgment; Conviction and Probation
Sentence; Notice of Entry (2009 Judgment) entered against her
after a no contest plea on a charge of Theft in the Second
Degree. In the 2009 Judgment, Lacuesta was sentenced to five
years probation, with a Criminal Victim Compensation fee of $105,
a Probation Services fee of $150, and a monetary assessment of
$500 or the actual cost of the DNA analysis (collectively,
Monetary Assessments), as well as a fine of $500.
In the Rule 40 Petition, Lacuesta argued that her no
contest plea was invalid because the trial court failed to advise
her that she could be sentenced to additional monetary
assessments, and therefore, her plea was not knowing,
intelligent, and voluntary. 3 After further briefing, on October
19, 2023, a hearing was held on the Rule 40 Petition. The Order
Denying Petition was entered thereafter.
With respect to Lacuesta's arguments on appeal, as a
preliminary matter, it does not appear that Lacuesta raised or
properly preserved a hearsay objection in the proceedings below.
Thus, Lacuesta's challenge to COL 13 based on the argument that
the Circuit Court improperly considered inadmissible hearsay is
3 Lacuesta was represented by counsel through the HRPP Rule 40 proceedings.
3 NOT FOR PUBLICATION IN WEST'S HAWAI I REPORTS AND PACIFIC REPORTER
waived; plain error review of this issue is not warranted. See,
e.g., State v. Crisostomo, 94 Hawai i 282, 290, 12 P.3d 873, 881
(2000); State v. Metcalfe, 129 Hawai i 206, 225, 297 P.3d 1062,
1081 (2013).
Lacuesta's overarching argument is that the sentencing
court failed to strictly comply with HRPP Rule 11(c)(2) 4 because
the court incorrectly advised Lacuesta of the maximum fine that
could be imposed, and thus, Lacuesta's no contest plea was not
knowing, intelligent, and voluntary; and accordingly, the
colloquy was constitutionally invalid.
Lacuesta relies heavily on Warner v. State, 151 Hawai i
433, 438, 517 P.3d 716, 721 (2022), wherein the Hawai i Supreme
Court held that the petitioner-appellant's (Warner's) HRPP Rule
40 claim that the trial court's failure to inform Warner of any
of the monetary assessments before accepting a change of plea
stated a colorable Rule 40 claim for relief from the monetary
assessments.
Warner filed an HRPP Rule 40 petition that raised
various issues and requested, inter alia, that his sentence be
4 HRPP Rule 11(c)(2) provides:
Rule 11. PLEAS.
(c) Advice to defendant. The court shall not accept a plea of guilty or no contest without first addressing the defendant personally in open court, or by video conference with defendant's consent and affirmation of defendant's identity on the record, and determining that the defendant understands the following:
(2) the maximum penalty provided by law, and the maximum sentence of extended term of imprisonment, which may be imposed for the offense to which the plea is offered[.]
4 NOT FOR PUBLICATION IN WEST'S HAWAI I REPORTS AND PACIFIC REPORTER
ended and that all fines and fees be waived. Id. at 436, 517
P.3d at 719. Warner's petition was denied without a hearing and
this court affirmed. Id. at 436-37, 517 P.3d at 719-20. The
supreme court held that Warner stated a colorable claim regarding
monetary assessments, noting that "[t]he sentencing court did not
inform Warner of any of the monetary assessments it imposed
before accepting Warner's change of plea." Id. at 438, 517 P.3d
at 721 (emphasis added). Therefore, the supreme court held that
Warner's Rule 40 petition "stated a colorable claim as to his
request that the monetary assessments, which constitutes fines,
be set aside based on the sentencing court's failure to advise
him of them before accepting his plea." Id. Thus, and based on
the sentencing court's failure to address whether Warner had the
ability to pay the monetary assessments, 5 the case was remanded
to the trial court for further proceedings, i.e., a hearing on
Warner's colorable Rule 40 claims. 6
Unlike in Warner, where the defendant was not informed
of any monetary assessments before accepting the change of plea,
Lacuesta was advised, inter alia: THE COURT: All right. Item six reads, I understand that the Court may impose any of the following penalties for the offense to which I now plead. The maximum term of imprisonment. If you look at the top of the page, for theft in the second degree, the maximum term is five years jail and a $10,000.00 fine.
Has that been explained to you?
THE DEFENDANT: Yes.
5 Here, the Circuit Court inquired as to Lacuesta's ability to pay the Monetary Assessments, the answer was yes, and Lacuesta does not raise any issues regarding her ability to pay. 6 Other relief, not pertinent to this case, was also granted to Warner.
5 NOT FOR PUBLICATION IN WEST'S HAWAI I REPORTS AND PACIFIC REPORTER
THE COURT: All right. It appears that extended terms and mandatory minimum terms of imprisonment do not apply, nor do consecutive terms of imprisonment. You may also be sentenced, however, to restitution, a fine, a fee and/or assessment, community service, probation, with up to one year of imprisonment, and other terms and conditions.
Has that all been explained to you?
THE DEFENDANT : Yes, your Honor.
THE COURT: Again, any questions?
THE DEFENDANT: No, your Honor.7
Also, unlike in Warner, a hearing was held on
Lacuesta's Rule 40 Petition. Fourteen years after her plea and
sentence, Lacuesta sought to withdraw her no contest plea and
enter a plea of not guilty. Hawai i law regarding plea
withdrawals is governed by HRPP Rule 32(d), which provides in
relevant part: (d) 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).
Thus, the issue before the Circuit Court was whether
setting aside Lacuesta's plea was necessary to correct manifest
injustice. "Manifest injustice occurs when a defendant makes a
plea involuntarily or without knowledge of the direct
consequences of the plea." State v. Kealoha, 142 Hawai i 46, 59,
7 No objections were made to the Monetary Assessments at sentencing. Lacuesta did not file a post-sentence motion to withdraw plea within 10 days of sentencing and she did not appeal the sentence. The Monetary Assessments were paid in full in 2009, probation was completed in 2014, and she was discharged on July 29, 2014.
6 NOT FOR PUBLICATION IN WEST'S HAWAI I REPORTS AND PACIFIC REPORTER
414 P.3d 98, 111 (cleaned up). The manifest injustice standard
also seeks to avoid the risk of prejudice to the State and to the
efficient administration of criminal justice. See generally
State v. Jim, 58 Haw. 574, 575-76, 574 P.2d 521, 522-23 (1978).
In COL 7, which contains mixed findings of fact and
conclusions of law, the Circuit Court did not plainly err when it
found that the 2009 court taking Lacuesta's change of plea did
advise Lacuesta that by pleading no contest she might be
sentenced to pay a fee and/or assessment, that Lacuesta
acknowledged that this had been explained to her, and she had no
questions. In COL 10, the Circuit Court did not plainly err when
it stated that Lacuesta had no objections at sentencing to the
Monetary Assessments; Lacuesta had informed the court that she
could afford the fines; and they were in fact paid in 2009. In
addition, in COL 13, the Circuit Court did not plainly err when
it found and concluded, inter alia, that the State was
substantially prejudiced by the extensive delay in Lacuesta's
request to withdraw her plea, as the evidence for the underlying
case was purged in 2014.
We conclude that the Circuit Court erred in concluding
that the Rule 40 Petition – based on an allegation of an invalid
plea – was waived, patently frivolous, and/or without a trace of
support. See Warner, 151 Hawai i at 438, 515 P.3d at 721. However, we conclude that such errors are harmless in light of
the record, including that a full hearing was held on the Rule 40
Petition and Lacuesta failed to establish that a withdrawal of
her 2009 no contest plea was necessary to avoid a manifest
injustice in this case.
7 NOT FOR PUBLICATION IN WEST'S HAWAI I REPORTS AND PACIFIC REPORTER
For these reasons, the Circuit Court's November 9, 2023
Order Denying Petition is affirmed.
DATED: Honolulu, Hawai i, December 31, 2025.
On the briefs: /s/ Katherine G. Leonard Presiding Judge Hayden Aluli, for Petitioner-Appellant. /s/ Keith K. Hiraoka Associate Judge Renee Ishikawa Delizo, Deputy Prosecuting Attorney, /s/ Kimberly T. Guidry County of Maui, Associate Judge for Respondent-Appellee.