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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. NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
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 (a) No person whose license and privilege to operate a vehicle have been revoked, suspended, or otherwise restricted pursuant to this section or to part III or section 291E-61 or 291E-61.5, or to part VII or part XIV of chapter 286 or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.