State v. Abordo

• Court: Hawaii Supreme Court
• Decided: January 28, 2016
• Docket: SCWC-12-0000602
• Status: Published

Opinion

*** NOT FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***

Electronically Filed Supreme Court SCWC-12-0000602 28-JAN-2016 08:41 AM

SCWC-12-0000602

IN THE SUPREME COURT OF THE STATE OF HAWAII ________________________________________________________________

STATE OF HAWAII, Respondent/Plaintiff-Appellee,

vs.

EDDY A. ABORDO, Petitioner/Defendant-Appellant. ________________________________________________________________

CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CAAP-12-0000602; CASE NO. 1DTC-11-082314)

SUMMARY DISPOSITION ORDER (By: Recktenwald, C.J., Nakayama, McKenna, Pollack, and Wilson, JJ.)

Petitioner/Defendant-Appellant Eddy A. Abordo (Abordo)

seeks review of the Intermediate Court of Appeals’ (ICA) April

13, 2015 Judgment on Appeal, entered pursuant to its February

23, 2015 Summary Disposition Order, which vacated the District

Court of the First Circuit’s (district court)1 May 30, 2012

1 The Honorable Linda K.C. Luke presided. *** NOT FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***

Judgment and remanded the case for a new trial.2 The district

court found Abordo guilty 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 Hawaii Revised Statutes § 291E-62 (2007 & Supp.

2010).

On certiorari, Abordo contends, inter alia, that the

ICA erred in holding that the district court properly permitted

the State to amend the charge against Abordo to allege the

required mens rea for the offense. Abordo argues that the

defective charge rendered the district court without

jurisdiction over the case, and, therefore, without jurisdiction

to permit the State to amend the charge. We disagree. In

Schwartz v. State, we recently held that “the failure of a

charging instrument to allege an element of an offense does not

constitute a jurisdictional defect that fails to confer subject-

matter jurisdiction to the district court.” 136 Hawaiʻi 258,

282, 361 P.3d 1161, 1185 (2015). Accordingly, the ICA correctly

concluded that the district court properly permitted the State

to amend the charge.

We further conclude that Abordo’s remaining claims

lack merit.

2 The ICA vacated and remanded the case based on the district court’s misstatement of the standard of proof.

2 *** NOT FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***

IT IS HEREBY ORDERED that the ICA’s Judgment on Appeal

is affirmed.

DATED: Honolulu, Hawaii, January 28, 2016.

James S. Tabe /s/ Mark E. Recktenwald for petitioner /s/ Paula A. Nakayama Brian R. Vincent for respondent /s/ Sabrina S. McKenna

/s/ Richard W. Pollack

/s/ Michael D. Wilson