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the statute was never rescinded, and (2) Theft 4 is included in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