State v. Tuimalealiifano

499 P.3d 421, 150 Haw. 221

• Court: Hawaii Intermediate Court of Appeals
• Decided: November 30, 2021
• Docket: CAAP-20-0000690
• Status: Published

Opinion

Electronically Filed Intermediate Court of Appeals CAAP-XX-XXXXXXX 30-NOV-2021 08:12 AM Dkt. 75 MO

NOS. CAAP-XX-XXXXXXX and CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

NO. CAAP-XX-XXXXXXX (CR. NO. 16-1-1545) STATE OF HAWAI#I, Plaintiff-Appellee, v. ALABANZA C. TUIMALEALIIFANO, also known as Chris, Defendant-Appellant ________________________

NO. CAAP-XX-XXXXXXX (CR. NO. 1CPC-XX-XXXXXXX) STATE OF HAWAI#I, Plaintiff-Appellee, v. ALABANZA C. TUIMALEALIIFANO, Defendant-Appellant

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT (CR. NO. 16-1-1545; CR. NO. 1CPC-XX-XXXXXXX)

MEMORANDUM OPINION (By: Ginoza, Chief Judge, Leonard and Hiraoka, JJ.)

In this consolidated appeal, Defendant-Appellant

Alabanza C. Tuimalealiifano, also known as Chris

(Tuimalealiifano), appeals from the: (1) October 5, 2020 Judgment of Conviction and Sentence; Notice of Entry in 1CPC-19-

0001189 (Judgment in 2019 Case); and (2) the October 5, 2020

Judgment of Conviction and Sentence; Notice of Entry in

1PC161001545 (Judgment in 2016 Case) both entered by the Circuit

Court of the First Circuit (Circuit Court).1 Tuimalealiifano

challenges the Circuit Court's October 10, 2020 Findings of Fact,

Conclusions of Law and Order Denying Defendant's Motion to

Withdraw Guilty Pleas (FOFs/COLs in 2016 Case) denying his motion

to withdraw his guilty pleas in the 2016 Case. Tuimalealiifano

also challenges the Circuit Court's October 8, 2020 Findings of

Fact, Conclusions of Law, and Order Denying Defendant's Motion to

Withdraw Guilty Pleas, Filed July 30, 2020 (FOFs/COLs in 2019

Case) denying his motion to withdraw his guilty pleas in the 2019

Case.

I. BACKGROUND

On September 29, 2016, a grand jury indicted

Tuimalealiifano on eight counts for offenses arising out of

events occurring on or about September 24, 2016, which resulted

in the injury of one person and death of another: Count 1,

Criminal Attempt, in violation of Hawaii Revised Statutes (HRS)

§ 705-500 (2014)2, Murder in the Second Degree, in violation of

1 The Honorable Karen T. Nakasone presided in both cases. 2 HRS § 705-500 provides:

§ 705-500 Criminal attempt. (1) A person is guilty of an attempt to commit a crime if the person: (continued...)

2 HRS § 707-701.5 (2014)3, Terms of Imprisonment for First and

Second Degree Murder and Attempted First and Second Degree

Murder, pursuant to HRS § 706-656 (2014)4 (Attempted Murder

2 (...continued) (a) Intentionally engages in conduct which would constitute the crime if the attendant circumstances were as the person believes them to be; or (b) Intentionally engages in conduct which, under the circumstances as the person believes them to be, constitutes a substantial step in a course of conduct intended to culminate in the person's commission of the crime. (2) When causing a particular result is an element of the crime, a person is guilty of an attempt to commit the crime if, acting with the state of mind required to establish liability with respect to the attendant circumstances specified in the definition of the crime, the person intentionally engages in conduct which is a substantial step in a course of conduct intended or known to cause such a result. (3) Conduct shall not be considered a substantial step under this section unless it is strongly corroborative of the defendant's criminal intent. 3 HRS § 707-701.5 provides:

§ 707-701.5 Murder in the second degree. (1) Except as provided in section 707-701, a person commits the offense of murder in the second degree if the person intentionally or knowingly causes the death of another person. (2) Murder in the second degree is a felony for which the defendant shall be sentenced to imprisonment as provided in section 706-656. 4 HRS § 706-656 provides:

§ 706-656 Terms of imprisonment for first and second degree murder and attempted first and second degree murder. (1) Persons eighteen years of age or over at the time of the offense who are convicted of first degree murder or first degree attempted murder shall be sentenced to life imprisonment without the possibility of parole. As part of such sentence, the court shall order the director of public safety and the Hawaii paroling authority to prepare an application for the governor to commute the sentence to life imprisonment with parole at the end of twenty years of imprisonment; provided that persons who are repeat offenders under section 706-606.5 shall serve at least the applicable mandatory minimum term of imprisonment. Persons under the age of eighteen years at the time of the offense who are convicted of first degree murder or first degree attempted murder shall be sentenced to life imprisonment with the possibility of parole.

(continued...)

3 Second); Count 2, Manslaughter, in violation of HRS § 707-

702(1)(a) (2014)5; Count 3, Robbery in the First Degree, in

violation of HRS § 708-840(1)(b)(i) (2014)6 (Robbery First),

and/or Robbery in the Second Degree, in violation of HRS § 708-

840(1)(b)(ii) (2014)7 (Robbery Second); Count 4, Carrying or Use

4 (...continued) (2) Except as provided in section 706-657, pertaining to enhanced sentence for second degree murder, persons convicted of second degree murder and attempted second degree murder shall be sentenced to life imprisonment with possibility of parole. The minimum length of imprisonment shall be determined by the Hawaii paroling authority; provided that persons who are repeat offenders under section 706-606.5 shall serve at least the applicable mandatory minimum term of imprisonment. If the court imposes a sentence of life imprisonment without possibility of parole pursuant to section 706-657, as part of that sentence, the court shall order the director of public safety and the Hawaii paroling authority to prepare an application for the governor to commute the sentence to life imprisonment with parole at the end of twenty years of imprisonment; provided that persons who are repeat offenders under section 706-606.5 shall serve at least the applicable mandatory minimum term of imprisonment. 5 HRS § 707-702(1)(a) provides in pertinent part:

§ 707-702 Manslaughter. (1) A person commits the offense of manslaughter if: (a) The person recklessly causes the death of another person[.] 6 HRS § 708-840(1)(b)(i) provides in pertinent part:

§ 708-840 Robbery in the first degree. (1) A person commits the offense of robbery in the first degree if, in the course of committing theft or non-consensual taking of a motor vehicle: . . . . (b) The person is armed with a dangerous instrument or a simulated firearm and: (i) The person uses force against the person of anyone present with intent to overcome that person's physical resistance or physical power of resistance[.] 7 HRS § 708-840(1)(b)(ii) provides in pertinent part:

§ 708-840 Robbery in the first degree. (1) A person commits the offense of robbery in the first degree if, in (continued...)

4 of Firearm in the Commission of a Separate Felony, Attempted

Murder, in violation of HRS § 134-21 (2011)8 (Firearm in

Commission of Felony); Count 5, Firearm in Commission of Felony,

Manslaughter; Count 6, Firearm in Commission of Felony, Robbery;

Count 7, Ownership or Possession Prohibited, When, in violation

7 (...continued) the course of committing theft or non-consensual taking of a motor vehicle: . . . . (b) The person is armed with a dangerous instrument or a simulated firearm and: . . . . (ii) The person threatens the imminent u use of force against the person of anyone present with intent to compel acquiescence to the taking of or escaping with the property[.] 8 HRS § 134-21 provides:

§ 134-21 Carrying or use of firearm in the commission of a separate felony; penalty. (a) It shall be unlawful for a person to knowingly carry on the person or have within the person's immediate control or intentionally use or threaten to use a firearm while engaged in the commission of a separate felony, whether the firearm was loaded or not, and whether operable or not; provided that a person shall not be prosecuted under this subsection when the separate felony is: (1) A felony offense otherwise defined by this chapter; (2) The felony offense of reckless endangering in the first degree under section 707-713; (3) The felony offense of terroristic threatening in the first degree under section 707-716(1)(a), 707-716(1)(b), or [707-716(1)(e)]; or (4) The felony offenses of criminal property damage in the first degree under section 708-820 or criminal property damage in the second degree under section 708-821 and the firearm is the instrument or means by which the property damage is caused. (b) A conviction and sentence under this section shall be in addition to and not in lieu of any conviction and sentence for the separate felony; provided that the sentence imposed under this section may run concurrently or consecutively with the sentence for the separate felony. (c) Any person violating this section shall be guilty of a class A felony.

5 of HRS § 134-7(b) and (h) (2011)9 (Ownership or Possession);

Count 8, Place to Keep Pistol or Revolver, in violation of HRS §

134-25 (2011)10 (Place to Keep).

On August 19, 2019, by Felony Information, the State

also charged Tuimalealiifano on two counts for allegedly causing

harm to a correctional worker: Count 1, Assault in the Second

9 HRS § 134-7(b),(h) provides in pertinent part:

§ 134-7 Ownership or possession prohibited, when; penalty. . . . (b) No person who is under indictment for, or has waived indictment for, or has been bound over to the circuit court for, or has been convicted in this State or elsewhere of having committed a felony, or any crime of violence, or an illegal sale of any drug shall own, possess, or control any firearm or ammunition therefor. . . . . (h) Any person violating subsection (a) or (b) shall be guilty of a class C felony; provided that any felon violating subsection (b) shall be guilty of a class B felony. Any person violating subsection (c), (d), (e), (f), or (g) shall be guilty of a misdemeanor. 10 HRS § 134-25 provides:

§ 134-25 Place to keep pistol or revolver; penalty. (a) Except as provided in sections 134-5 and 134-9, all firearms shall be confined to the possessor's place of business, residence, or sojourn; provided that it shall be lawful to carry unloaded firearms in an enclosed container from the place of purchase to the purchaser's place of business, residence, or sojourn, or between these places upon change of place of business, residence, or sojourn, or between these places and the following: (1) A place of repair; (2) A target range; (3) A licensed dealer's place of business; (4) An organized, scheduled firearms show or exhibit; (5) A place of formal hunter or firearm use training or instruction; or (6) A police station. "Enclosed container" means a rigidly constructed receptacle, or a commercially manufactured gun case, or the equivalent thereof that completely encloses the firearm. (b) Any person violating this section by carrying or possessing a loaded or unloaded pistol or revolver shall be guilty of a class B felony.

6 Degree, in violation of HRS § 707-711(1)(c) (2014)11; and Count

2, Assault in the Second Degree in violation of HRS § 707-

711(1)(a) (2014)12.

Prior to any plea negotiations in the 2016 Case,

Tuimalealiifano had two changes of counsel. Eventually, Salina

Kanai Althof (Althof)13 was appointed as Tuimalealiifano's

defense counsel in the 2016 Case. Althof also represented

Tuimalealiifano in his 2019 Case.

Before Althof's appointment, Tuimalealiifano requested

and received various trial continuances in the 2016 Case. On

January 22, 2019, the trial was again continued to October 28,

2019, but this time "set with a panel of 150 ordered for a two

week jury trial." However, on September 20, 2019, Althof orally

moved to continue the trial on the 2016 Case based on her recent

appointment as Tuimalealiifano's counsel, and the Circuit Court

set a new trial week for February 10, 2020. Similarly, on

11 HRS § 707-711(1)(c) provides in pertinent part:

§ 707-711 Assault in the second degree. (1) A person commits the offense of assault in the second degree if: . . . . (c) The person intentionally or knowingly causes bodily injury to a correctional worker, as defined in section 710-1031(2), who is engaged in the performance of duty or who is within a correctional facility[.] 12 HRS § 707-711(1)(a) provides in pertinent part:

§ 707-711 Assault in the second degree. (1) A person commits the offense of assault in the second degree if: (a) The person intentionally or knowingly causes substantial bodily injury to another[.] 13 The record interchangeably refers to her as Ms. Althof and Ms. Kanai.

7 October 24, 2019, Althof also made an oral motion to continue the

trial for the 2019 Case and requested the trial be set for

February 10, 2020. The Circuit Court granted the oral motion and

set a new trial week for February 10, 2020.

The State took several measures to prepare for trial.

The Circuit Court granted the State's Motion for Determination of

Fifth Amendment Privilege and Appointment of Counsels Filed

9/28/18 and ordered court-appointed counsel for four of the

State's witnesses. All four witnesses received court-appointed

counsel. The Circuit Court also issued subpoenas for witnesses

for the State, as well as sought two bench warrants for State

witnesses to appear.

On January 27, 2020, Althof again made an oral motion

for continuance of trial week in the 2016 Case and 2019 Case

because "a plea offer [was] pending." On January 28, 2020, the

State received plea offer negotiation letters from Althof on

behalf of Tuimalealiifano to resolve the 2016 Case and 2019 Case.

On March 4, 2020, the State and Tuimalealiifano reached

a plea agreement in the 2016 Case under which Tuimalealiifano

agreed to plead guilty to the following charges: Count 1

(amended), Attempted Assault First Degree, in violation of HRS

§§ 705-500, 707-710(1) (2014); Count 2, Manslaughter; Count 4,

Firearm in Commission of Felony, Attempted Assault; Count 5,

Firearm in Commission of Felony, Manslaughter; Count 7, Ownership

or Possession. The State agreed to nolle prosequi Counts 3, 6,

8 and 8 at the time of sentencing.14 As set forth on the face of a

change of plea form (Form K), the plea agreement required that

Tuimalealiifano would serve mandatory minimum terms of

imprisonment of five years on Count 1 and ten years on Count 5.

Tuimalealiifano and Althof both signed the Form K and filed it in

the Circuit Court. The attachment to the Form K, however, a

February 20, 2020 letter from the deputy prosecuting attorney

(DPA) to Althof, indicated a mandatory minimum term of ten years

in conjunction with Count 2 and did not indicate any mandatory

minimum term in conjunction with Count 5.

On March 4, 2020, the State and Tuimalealiifano also

reached a plea agreement in the 2019 Case under which

Tuimalealiifano agreed to plead guilty to Count 2, Assault

Second, with a nolle prosequi on Count 1. The plea agreement in

the 2016 Case and plea agreement in the 2019 Case provided that

the sentencing would run concurrently between the two cases.

Tuimalealiifano and Althof both signed the Form K document in the

2019 Case outlining the plea agreement details and filed it in

the Circuit Court.

On the same day, March 4, 2020, the Circuit Court held

a change of plea hearing. The following plea colloquy occurred,

in relevant part, addressing Tuimalealiifano's change of pleas:

14 More accurately, the State intended to nolle prosequi Count 8, but as discussed below, the original attachment to the change of plea form indicated that the State would move to nolle prosequi Count 7.

9 THE BAILIFF: Calling Case 4 and 5 on the calendar, Criminal No. 16-1-1545 and 19-1189, State of Hawai#i v. Alabanza Tuimalealiifano.

Appearances.

MR. BELL: Good morning, Your Honor. Deputy Prosecuting Attorney Scott Bell for the State in Criminal No. 1PC161001645.

THE COURT: Good morning.

MR. BELL: 45, 1645. 1545?

THE COURT: 1545.

MR. BELL: Thank you.

THE COURT: Yeah.

MR. MURATA: And good morning, Your Honor. Deputy Attorney General Landon Murata on behalf of the State in 1CPC191189.

MR. HIRONAKA: Good morning, Your Honor. Randy Hironaka, Your Honor, making a special appearance with leave of court for Salina Althof on behalf of Alabanza Tuimalealiifano. He's present to my left. He has several family members present in the gallery as well, Your Honor.

THE COURT: All right. Good morning. Good morning, Mr. Tuimalealiifano.

THE DEFENDANT: Good morning, Your Honor.

THE COURT: Okay. So I'd like to take up the change of plea. I have been handed change of plea forms in both cases. So let's take up the 2016 case first.

Mr. Tuimalealiifano, it's the court's understanding you wish to plead guilty to Count 1, attempted assault first degree as amended; Count 2, manslaughter; Count 4, use of firearm in the commission of separate felony; Count 5, use of firearm in the commission of separate felony - manslaughter; and Count 7, prohibited possession of a firearm. Is that right?

THE DEFENDANT: Yes, Your Honor.

THE COURT: Okay. Before I accept your plea I need to ask you some questions.

How old are you, sir?

THE DEFENDANT: Thirty-two.

THE COURT: How much education have you had?

10 THE DEFENDANT: Tenth grade.

THE COURT: You read and write English?

THE DEFENDANT: Yes, ma'am.

THE COURT: Have you taken any alcohol, medication, or drugs in the last 24 hours?

THE DEFENDANT: No, Your Honor.

THE COURT: Last 48 hours?

THE DEFENDANT: No.

THE COURT: Is your mind clear today?

THE COURT: This change of plea form, one, two, three, four, five, six, it's a six-page document, and your signature is on page 2. Is this your signature?

THE COURT: Did you read and understand this form before you signed it?

THE COURT: Did you discuss with your attorney these offenses: Attempted assault first, manslaughter, two counts of firearm –- use of firearm in commission of separate felony, and then one count of prohibited possession of a firearm?

THE COURT: Did you discuss with your attorney the elements of all these offenses?

THE COURT: Did you go over the police reports and discuss possible defenses?

THE DEFENDANT: Um, yes, Your Honor.

THE COURT: Did you discuss the possible penalties for these offenses with your attorney?

THE COURT: Do you understand the maximum penalty for Count 1, attempted assault first, it's a class B, maximum 10 years in prison and a $25,000 fine?

11 THE COURT: Counts 2, 4, and 5 are all class A felonies. Maximum penalty is 20 years in prison and a $50,000 fine on each count. Do you understand?

THE COURT: Count 7, the firearm possession, prohibited charge is a class B felony, maximum penalty is 10 years in prison and a $25,000 fine. Do you understand that?

THE COURT: Okay. In this case, in Count 1 you are looking at a mandatory minimum term of imprisonment of 5 years in Count 1. Do you understand that?

THE COURT: You understand that a -- okay. Do you understand that on Count 5 you're also looking at a mandatory minimum term of imprisonment, and Count 5 is use of the firearm in commission of a separate felony of manslaughter is a 10 year mandatory minimum? Do you understand that?

THE COURT: Do you understand that a mandatory minimum sentence means that you will have to serve at least that time in prison before you are eligible for parole?

THE COURT: Do you understand that even if there's a mandatory minimum here that's required by the court for the court to impose, it is ultimately the Parole Board who will establish the mandatory minimum time that you must serve before becoming eligible for parole?

THE COURT: Do you understand that the Parole Board's minimum could be higher than these mandatory minimums that the court must impose?

THE COURT: Did you discuss with your attorney that restitution is a possible penalty for these offenses?

THE DEFENDANT: Yes.

THE COURT: Do you understand that [sic] restitution is?

12 THE DEFENDANT: Pay back to the State?

THE COURT: Pay back for reasonable and verified losses suffered by a victim or for treatment of the victim's injuries. Do you understand that?

THE COURT: Do you understand the court must order restitution for reasonable and verifiable losses requested by a victim?

THE DEFENDANT: Uh, yes, Your Honor.

THE COURT: Do you understand the court must order restitution if the Crime Victim Compensation Fund made an award to the victim and that you would be ordered to pay restitution to the Crime Victim Fund?

THE COURT: Do you understand that the court cannot waive or set aside the restitution and I cannot convert it to community service?

THE COURT: Do you understand?

THE COURT: Okay. Do you understand if there is no determination or agreement on the amount of restitution at this time the court will not be able to determine what the amount is going to be until later?

THE COURT: Knowing the penalties you face, do you still want to plead guilty to these counts?

THE COURT: You understand you have a right to plead not guilty and go to trial?

THE COURT: You have a right to a jury trial on this case. Did you discuss with your lawyer what a jury trial is?

THE COURT: A jury trial is when 12 members of the community would be chosen to decide your case. Do you understand?

13 THE COURT: All 12 jurors must unanimously agree that the State's proved each count beyond a reasonable doubt before you can be convicted. Do you understand that?

THE COURT: You through your attorney may help to question and select the 12 jurors. Do you understand that?

THE COURT: If you decided you did not want to have a jury trial, then a single judge alone could still hear your case at a trial and decide whether you're guilty or not. This -- we call this a judge trial. Do you understand that?

THE COURT: Do you want to give up your right to a jury trial and a judge trial at this time?

THE COURT: Let me now explain the trial rights you give up. You understand that at a trial before you can be convicted the State is required to prove every element of the offense charged between [sic] a reasonable doubt?

THE COURT: The State will call its witnesses and you through your attorney have the right to cross- examine or question the witnesses. Do you understand that?

THE COURT: You also have the right to subpoena and call your own witnesses and to take the witness stand on your own behalf and tell your side of what happened. Do you understand that?

THE COURT: You also have the right not to take the stand and remain silent at your trial. Do you understand that?

THE COURT: If you choose to remain silent at your trial, the judge or the jury cannot hold your silence against you when deciding your case. Do you understand that?

14 THE COURT: If you plead guilty there is no trial and you'll be sentenced without a trial of any kind. Do you understand?

THE COURT: So a guilty plea means you give up the trial. Do you understand that?

THE COURT: You understand that once you've entered the guilty pleas you cannot change your mind later and ask for a trial if you don't like the sentence you receive?

THE COURT: You also understand you give up your right to appeal this case when you plead guilty?

THE COURT: Is anyone threatening you, forcing you, or pressuring you to plead guilty?

THE COURT: Are you pleading of your own free will?

THE COURT: In this case there's a plea agreement, and the court has reviewed the plea agreement and I will bind myself to follow it. The plea agreement is attached to your change of plea form.

So, Mr. Tuimalealiifano, did you go over the terms of the plea agreement with your attorney?

THE DEFENDANT: Uh, yes.

THE COURT: Besides the plea agreement, has anyone made any promises to you in exchange for your plea?

THE DEFENDANT: Yes -- no, Your Honor.

THE COURT: Okay. So no other promises aside from --

THE DEFENDANT: Only --

THE COURT: -- what's in the plea agreement?

THE DEFENDANT: -- what's on the paper. Yes, Your Honor.

15 THE COURT: Okay. Have you discussed your pleas fully with your attorney?

THE COURT: Are you satisfied with Mr. Hironaka and Miss Althof's advice?

THE COURT: Do I need to read the immigration advisement, Mr. Hironaka?

MR. HIRONAKA: That's not necessary.

THE COURT: Okay.

So, Mr. Tuimalealiifano, on Count 1, this is the amended charge of attempted assault in the first degree, what is your plea, sir?

THE DEFENDANT: Guilty.

THE COURT: And it says in Count 1 that you are pleading guilty because on September 24, 2016 in Honolulu, you intentionally engaged in conduct which was a substantial step in a course of conduct intended to have caused serious bodily injury to Sherard, S-H- E-R-A-R-D, Melei, M-E-L-E-I, thereby committing attempted assault in the first agree [sic]. Is this why you are pleading guilty?

THE COURT: In Count 2, manslaughter, what is your plea, sir?

THE COURT: And it says on your form that you are pleading guilty because for Count 2, same date, September 24, 2016 in Honolulu, you recklessly caused the death of Tara Tevaga, T-E-V-A-G-A, committing the offense of manslaughter. Is this why you're pleading guilty to Count 2?

THE COURT: What is your plea to Count 4, sir?

THE COURT: Okay. And Count 4 is use of a firearm in the commission of a separate felony of attempted assault first degree, and you're pleading guilty to this count?

THE COURT: And it says here you're pleading guilty because on September 24, 2016 in Honolulu you

16 knowingly carried on your person or had within your immediate control or did intentionally use or threaten to use a firearm while engaged in the commission of a separate felony, attempted assault in the first degree, whether the firearm was loaded or not or operable or not, there by committing the offense of carrying or use of firearm in the commission of a separate felony. Is this why you are pleading guilty to Count 4?

THE COURT: In Count 5, use of firearm in the commission of a separate felony of manslaughter, what is your plea, sir?

THE COURT: Okay. It says here in Count 5 you're pleading guilty because September 24, 2016 in Honolulu you knowingly carried on your person or you had within your immediate control or you did intentionally use or threaten to use a firearm while engaged in the commission of a separate felony of manslaughter, whether the firearm was loaded or not or operable or not, thereby committing the offense of carrying or use of firearm in the commission of a separate felony. Is this why you're pleading guilty to Count 5?

THE COURT: In Count 7, ownership or possession prohibited of any firearm or ammunition by person convicted of certain crimes. What is your plea to Count 7, sir?

THE DEFENDANT: Guilty, Your Honor.

THE COURT: And it says here in Count 7, you're pleading guilty --

The record reflect defendant's conferring with counsel.

MR. HIRONAKA: Your Honor, I'm sorry. May I –-

THE COURT: You wanna pass –-

MR. HIRONAKA: -- confer with him for just a couple minutes, and then we --

THE COURT: Sure.

Okay. So we're gonna pass this case.

MR. HIRONAKA: Thank you, Your Honor.

(Case passed at 9:44 a.m.)

(Case recalled at 9:49 a.m.)

17 THE COURT: Okay. We are back on record in Mr. Tuimalealiifano's case.

So, Mr. Tuimalealiifano, you needed some time to talk to Mr. Hironaka about any other questions or issues you had?

THE DEFENDANT: Um -- yes.

THE COURT: Okay. Do you need more time –-

THE COURT: -- or are you okay to keep going?

THE DEFENDANT: Yeah, I'm good. I'm good. Yes, Your Honor.

THE COURT: So when we left off, we were on Count 7, ownership or possession prohibited of a firearm or ammunition by a person convicted of certain crimes. What is your plea to Count 7, sir?

THE COURT: And it says on your form that you're pleading guilty because on September 24, 2016 in Honolulu, being a person who was convicted in the State of Hawai#i of having committed a felony, with knowledge of reckless disregard of the substantial and unjustifiable risk that you had been so convicted, that you did intentionally or knowingly own, possess, or control an object with intent, knowledge, or reckless disregard of the substantial and unjustifiable risk that the object was a firearm or ammunition, thereby committing the offense of ownership or possession prohibited of any firearm or ammunition by a person convicted of certain crimes. Is this why you're pleading guilty to Count 7?

THE COURT: The court finds that defendant has knowingly, voluntarily, and intelligently entered his pleas with an understanding of the nature of the charges. The pleas in Counts 1, 2, 4, 5, and 7 are accepted and he is therefore adjudged guilty as charged in those counts.

And looking at the plea agreement, the court's understanding is the remaining counts will be nolle prosequied, Counts 3, 6, and 7, at time of sentencing. Is that right?

THE COURT: State's gonna file a motion at --

MR. BELL: Yes, --

18 THE COURT: -- time of sentencing?

MR. BELL: -- at the time of sentencing. Thank you, Your Honor.

MR. HIRONAKA: And, Your Honor, just -- I'm sorry, just a quick clarification. I think you said that he's adjudged guilty as charged in those counts, but I --

THE COURT: Oh, that's right.

MR. HIRONAKA: -- I believe some of them have been amended.

THE COURT: Yes. So he's --

MR. BELL: That would be Count 1, Your Honor, --

MR. BELL: -- the amended charge.

THE COURT: And in Count 1, Mr. Tuimalealiifano, I misspoke. You're -- the court's gonna find you guilty of the amended charge, attempted assault first degree. Is that your unders -- is that what your understanding is also?

THE COURT: Do you have any questions, sir, about what we discussed in the 2016 case?

THE COURT: Okay. So I'm gonna return your form back to you for your acknowledgment and signature.

MR. HIRONAKA: And, Your Honor, if the record could reflect that Mr. Tuimalealiifano has signed the acknowledgment.

THE COURT: Yes. And the court has received the form back.

And, Mr. Tuimalealiifano, I need to go over the same kinds of questions with you in case 2019. So we're gonna do the same process in that case. Okay?

And in this case I've been handed a form. It says you are pleading guilty to Count 2 only and Count 1 is going to be nolle prosequied or -- at time of sentencing. Is that your understanding?

THE COURT: Okay. Before I accept your plea in this case, I need to ask you the same questions.

19 How old are you?

THE DEFENDANT: Thirty-three.

THE DEFENDANT: Tenth grade.

THE COURT: You took any alcohol, medication, or drugs in the last 48 hours?

THE COURT: Mind clear today?

THE COURT: This change of plea form, this is your signature on the second page of this form?

THE COURT: You read and understood this form before you signed it?

THE COURT: You discussed the assault second degree offense with your attorney?

THE COURT: You understand the elements of the offense?

THE COURT: You went over police reports and discussed possible defenses?

THE COURT: You understand the possible penalties for this offense?

THE COURT: You under the -- you understand the maximum penalty for this one as a class C felony is five years in prison and a $10,000 fine?

THE COURT: This one also, did you discuss with your attorney that restitution is a possible penalty for this assault?

20 THE DEFENDANT: Yes, Your Honor.

THE COURT: You understand what restitution is?

THE COURT: You understand the court must order restitution for reasonable and verifiable losses requested by a victim?

THE COURT: You understand the court must order restitution if the Crime Victim Compensation Fund made an award to the victim and that you would be ordered to pay restitution to the Crime Victim Fund?

THE DEFENDANT: Yes, that is correct.

THE COURT: You understand the court cannot waive or set aside restitution and I cannot convert it to community service?

THE COURT: You understand if there's no determination or agreement on the amount of restitution at this time, the court will not be able to determine what the amount is going to be until later?

THE COURT: Knowing the penalties you face, do you still want to plead guilty to this charge?

THE COURT: You understand you have a right to plead not guilty and go to trial?

THE COURT: You have a right to a jury trial on this case. Did you discuss with your lawyer what the jury trial is?

THE COURT: A jury trial is when 12 members of the community would decide your case and all 12 jurors have to unanimously agree that the State's proved the case before you can be convicted. You understand?

THE COURT: You through your attorney may help to question and select the 12 jurors. You understand that?

21 THE COURT: If it is -- if you decided you did not want to have a jury trial, a single judge alone would hear your case and decide whether you're guilty or not. You understand that?

THE COURT: Do you want to give up your right to a jury trial on this case at this time?

THE COURT: And you want to give up your right to a judge trial also?

THE COURT: And when you give up your right to a trial, you give up your right to have the State prove every element of the charged offenses beyond a reasonable doubt. Do you understand that?

THE COURT: At a trial the State will call its witnesses and you through your attorney have the right to cross-examine or question the witnesses. Do you understand that?

THE COURT: You also have the right to subpoena, call your own witnesses and to take the witness stand on your own behalf. Do you understand that?

THE COURT: You also have the right not to take the stand and remain silent. You understand that?

THE COURT: If you remain silent at a trial, the judge or the jury cannot hold your silence against you when deciding your case. Do you understand that?

THE COURT: If you plead guilty, there is not [sic] trial and you give that up. Do you understand?

THE COURT: And you will be sentenced without a trial of any kind when you plead guilty. Do you understand?

22 THE COURT: You understand that once you plead guilty, you cannot change your mind later and ask for a trial if you don't like the sentence you received?

THE COURT: You also understand you give up your right to appeal this case when you plead guilty?

THE COURT: Is anyone threatening you, forcing you, or pressuring you to plead guilty?

THE COURT: Do you understand that -- in this case there's a plea agreement, and the court has agreed to follow it. A copy of your agreement is attached to this change of plea form. Did you go over the terms of this agreement with your attorney?

THE COURT: Besides the plea agreement, did anyone make you any promises in exchange for your guilty plea?

THE DEFENDANT: Besides the paper, no, Your Honor.

THE COURT: Okay. Have you discussed your plea fully with your attorney?

THE COURT: Are you satisfied with his advice?

THE COURT: Are you satisfied with Miss Althof's advice?

THE COURT: And no need to read the immigration, right?

MR. HIRONAKA: No, Your Honor.

THE COURT: Okay. Mr. Tuimalealiifano, to Count 2, assault in the second degree, what is your plea, sir?

23 THE COURT: And in this case it says you're pleading guilty because on April 11, 2019 in Honolulu you intentionally, knowingly, or recklessly caused substantial bodily injury to Ross Taylor. Is this why you're pleading guilty?

THE COURT: This court finds that the defendant has knowingly, voluntarily, and intelligently entered his plea with an understanding of the nature of the charge. The plea to Count 2 is accepted and he's therefore adjudged guilty as charged in Count 2.

Do you have any questions, sir, about what we have just discussed?

THE COURT: I'm gonna return your form back to you for your acknowledgment and signature.

MR. HIRONAKA: And then, Your Honor, if the record could reflect that Mr. Tuimalealiifano has signed the acknowledgment.

THE COURT: Yes.

MR. HIRONAKA: And I am returning the forms to the clerk.

THE COURT: Okay. And the court has received the forms.

On March 16, 2020, a Stipulation to Amend the Change of

Plea Form Filed on March 4, 2020 was filed (Stipulation) in the

2016 Case. The Stipulation removed the February 20, 2020 letter

attached to the guilty plea form and replaced it with a March 4,

2020 letter, which was initialed by Althof and Tuimalealiifano.

The March 4, 2020 letter indicated that the State would move to

nolle prosequi Count 8, rather than Count 7. No other change was

made; like the February 20, 2020 letter, the March 4, 2020 letter

indicated that Tuimalealiifano would be sentenced to a ten year

mandatory minimum sentence on Count 2 and did not indicate any

mandatory minimum sentence on Count 5.

24 Subsequently on June 19, 2020, Althof filed a Motion to

Withdraw as Counsel in both cases, in part because

Tuimalealiifano wanted to withdraw his plea agreement, and she

felt she could no longer represent him effectively based on his

reasoning. Specifically, Althof stated that Tuimalealiifano

wanted to withdraw his guilty pleas because "he did not

understand fully the terms and conditions of the plea agreement,

that I [Althof] was not present for his change of plea, and that

he felt pressured to plead guilty with Mr. Hironaka."

Subsequently, Emmanuel Guerrero (Guerrero) was

appointed as Tuimalealiifano's defense counsel. On July 30,

2020, Tuimalealiifano, in both the 2016 Case and 2019 Case, filed

motions to withdraw his guilty pleas on the grounds that he did

not knowingly, voluntarily, and intelligently enter his guilty

pleas. In support, Tuimalealiifano asserted the following, in

relevant part: A. At the change of plea, the Defendant expressed surprise to his counsel that the plea agreement included a mandatory 10 year minimum, and that he was of the belief that there would be no such mandatory minimum. (Transcripts of the Change of Plea proceedings is attached as Exhibit "B").

B. Further, Defendant believed that he would be entering "no-contest" as oppose to "guilty" pleas as part of the agreement.

C. Further, although SALINA KANAI ALTHOF was Defendant's counsel at that time and had negotiated the plea agreement with the State, at the change of plea, RANDALL HIRONOKA [sic] appeared in place of Ms. Althof on behalf of Defendant.

D. According to the Defendant, he conferred with Mr. Hironaka regarding his concerns of the differences in his understanding of the plea agreement as he was advised and informed by Ms. Althof, with that being discussed in Court.

25 E. Defendant was assured by Mr. Hironoka [sic] that the pela [sic] agreement was a "good deal" and to continue on with the change of plea.

The State filed a Memorandum in Opposition

to Defendant's Motion to Withdraw Guilty Pleas (Opposition

Memorandum), attaching a declaration from Althof, which provided

in relevant part: 15. Defendant expressed at our first meeting on September 26, 2019 that he did not wish to take either case to trial and asked me to submit a plea offer.

. . . .

18. On November 18, 2019, I spoke with Deputy Prosecuting Attorney Scott Bell regarding the terms of a potential plea agreement in Case No. 1CPC-XX-XXXXXXX, based upon my knowledge that Defendant wished to resolve the cases.

22. On or about January 27, 2020, I had a discussion with Defendant at Circuit Court cellblock prior to a trial call.

23. At that point, we had not yet received a response from the State on our plea offer.

24. Defendant and I discussed the terms of the outstanding plea offer, and Defendant requested that I submit a revised plea offer. After discussion of that revised plea offer, I agreed to do so.

29. On or about February 20, 2020, I received a counteroffer from DPA Bell. While it differed somewhat from Defendant's revised plea offer on January 28, 2020, it called for essentially the same result - an indeterminate 20-year term with a mandatory minimum on Count 2 of ten (10) years.

30. On or about February 21, 2020, I had a phone call with DAG Murata confirming verbally that a sentence that would be concurrent to DAG Bell's case was approved.

31. On or about February 25, 2020, I mailed a copy of the counteroffer to Defendant.

32. On or about February 28, 2020, I met Defendant at OCCC. We went over the written counteroffer from DPA Bell in detail. I explained the terms of the plea agreement. Defendant agreed that he was willing to accept the counteroffer.

26 33. On or about March 3, 2020, I met with Defendant again at OCCC. This time, I had change of plea (COP) forms prepared on both cases - a guilty plea form for Case No. 1PC161001545 and a no contest plea form for Case No. 1CPC- XX-XXXXXXX. The COP hearing had been scheduled for the following day, March 4, 2020.

40. On the morning of March 4, 2020, prior to the scheduled COP hearing, I received an email from DAG Murata indicating that his understanding was that the plea agreement required Defendant to plead "guilty" as opposed to "no contest." He emailed me a letter to clarify the plea agreement.

41. The letter clarified that Defendant could not plead no contest and set out other terms which did not substantively change the sentence that Defendant was expecting.

42. I corrected the COP form on Case No. 1CPC-XX-XXXXXXX to reflect a "guilty" plea and to attach DAG Murata's letter to it.

43. I explained to Hironaka the change and asked him to explain to Defendant about the change from "guilty" to "no contest" and that he needed to execute the amended COP form. I told Hironaka that if Defendant had any hesitation about going forward without me for any reason to continue the hearing.

The State also attached a declaration from Hironaka,

which provided in relevant part: 10. On or about March 3, 2020, Ms. Althof requested my possible assistance with covering a March 4, 2020 change of plea hearing for Mr. Alabanza Tuimalealiifano, who had two cases –- 1PC160001545 and 1CPC-XX-XXXXXXX.

15. On either March 3, 2020, or the morning of March 4, 2020, Ms. Althof provided me with the change of plea form (with an attached plea agreement) for 1PC161001545.

a. That change of plea form was already signed once by Mr. Tuimalealiifano.

b. The certificate of counsel on that change of plea form was already signed by Ms. Althof.

c. Ms. Althof had already reviewed the change of plea form and the attached plea agreement with Mr. Tuimalealiifano on March 3, 2020.

27 16. On the morning of March 4, 2020, Ms. Althof provided me with a change of plea form (with an attached plea agreement) for 1CPC-XX-XXXXXXX.

a. I recall Ms. Althof informing me that an issue came up and Mr. Tuimalealiifano could no longer plead "no contest" in this case.

b. As such, Ms. Althof provided me with a change of plea form (with an attached plea agreement) that had not been executed by Mr. Tuimalealiifano.

c. The certificate of counsel was already signed by Ms. Althof as an indication that she reviewed the entire document with Mr. Tuimalealiifano, with two exceptions:

(1) The box indicating a "guilty" plea was checked; and

(2) A factual basis for Mr. Tuimalealiifano's plea was provided in paragraph 7 of the form. . . . .

25. I spoke with Mr. Tuimalealiifano about the change of plea forms and about why he was at court.

26. Mr. Tuimalealiifano seemed to understand the forms, the attached plea agreements, and the purpose for being at court that day.

28. I recall explaining to Mr. Tuimalealiifano that the plea agreement in 1CPC-XX-XXXXXXX now required him to plead "guilty," as opposed to "no contest."

35. I do not recall Mr. Tuimalealiifano expressing any concern nor hesitation about having to plead "guilty" in 1CPC-XX-XXXXXXX.

37. During the change of plea hearing, at approximately 9:44 a.m., Mr. Tuimalealiifano wanted to speak privately with me.

38. I asked Judge Nakasone for a brief recess so that I could confer with Mr. Tuimalealiifano.

39. Our request was granted . . . .

40. During the recess, I recall Mr. Tuimalealiifano expressing a concern about whether the plea agreements were the "best deal" he could get from the government.

41. I recall telling Mr. Tuimalealiifano that I did not know a lot about the facts and circumstances of his

28 cases, so whether he wanted to take the deals being offered by the government was up to him.

42. I do not recall him expressing a concern about a ten- year mandatory minimum in 1PC1610001545.

43. I do not recall him expressing a concern about having to plead "guilty," rather than "no contest," in 1CPC - XX-XXXXXXX.

On October 5, 2020, the Circuit Court held a hearing on

Tuimalealiifano's Motions to Withdraw Guilty Pleas. At the

hearing, the Circuit Court considered all of the evidence that

Tuimalealiifano put forth in his motion including the Form Ks,

plea negotiation letters, and transcript from the change of plea

hearing on March 4, 2020. The Circuit Court also considered the

State's evidence, including the declarations of Althof and

Hironaka, put forth in the Opposition Memorandum. At the

hearing, Mr. Guerrero argued, in relevant part: MR. GUERRERO: Your honor, what I informed Mr. Tuimalealiifano going over the form is that if he was called to testify -- if he were to testify, he would testify that at the change of plea proceedings he was of the good faith belief, he was of the belief that he was to enter pleas of no contest as opposed to guilty, that he was not facing a mandatory minimum term of 10 years on the cases, in 1545, and that he -- he was of the belief that it was going to be an open 20-year term. That is what he would testify to. And he would further testify that based upon review of the terms it does indicate that, I believe at page 14 of the transcript, well, that the court had to take a break to allow him to confer with the substitute defense attorney regarding those issues.

(Format altered).

The Circuit Court found that the testimonies in the

declarations of Althof and Hironaka were credible,

Tuimalealiifano's testimony not credible, and that

Tuimalealiifano had not met the standard of providing a fair and

29 just reason for withdrawal of his pleas. Moreover, the Circuit

Court stated that even if Tuimalealiifano had met his burden of

providing a fair and just reason for withdrawal in the 2016 Case,

permitting Tuimalealiifano to withdraw his plea in that case

would cause substantial detriment to the government.

Subsequently, the Circuit Court sentenced Tuimalealiifano in

accordance with the plea agreements.

On October 8, 2020, the Circuit Court entered the

FOFs/COLs in the 2019 Case. On appeal, Tuimalealiifano

challenges the following FOFs as erroneous: 27. Based on the Court's questioning of Defendant, the record is clear that Defendant understood the nature of the charge to which he intended to plead and the maximum penalties that may be imposed by law, including the possibility of restitution.

34. The record is also clear that Defendant understood that he had a right to plead not guilty, to persist in that plea and go to trial, and that by pleading guilty or no contest he would be giving up his rights.

44. Defendant confirmed that he had fully discussed the plea with his attorney, that he was satisfied with Mr. Hironaka and Ms. Kanai's advice, and that there were no promises made in exchange for his plea besides the Plea Agreement.

57. Based on the Court's review of all the declarations and exhibits submitted, Defendant's allegation that he thought he would be entering a plea of no contest as opposed to guilty in the Instant Case is not credible.

58. Similarly, Defendant's allegation that he was not aware of the applicable mandatory minimum in Case No. 1PC161001545 is not credible.

59. Finally, Defendant's allegation that the information and advice he received from defense counsel regarding the plea agreement in Instant Case differed from what was entered on the record is not credible.

30 On October 10, 2020, the Circuit Court entered its

FOFs/COLs in the 2016 Case. On appeal, Tuimalealiifano

challenges the following FOFs erroneous: 42. When the hearing resumed, Defendant confirmed that he had sufficient time for Mr. Hironaka to answer his questions.

46. The court finds that Ms. Kanai and Mr. Hironaka's explanation of the plea agreement in Case No. 1PC161001545 is consistent with what transpired on the record at the March 4, 2020 change of plea hearing.

49. On July 30, 2020, Defendant, through counsel, filed "Defendant's Motion to Withdraw Guilty Pleas" (motion). The motion argues that there are three reasons to justify the withdrawal of Defendant's guilty plea. They are: (1) Defendant was not advised that the plea agreement called for a 10-year mandatory minimum term of imprisonment; (2) Defendant expected to plead "no contest" and not "guilty" as part of the plea agreement; and (3) his trial counsel's advice and information as to the settlement agreement was different from that entered on the record. For the reasons set forth below, Defendant's arguments are without legal merit and the court should deny the motion in its entirety.

50. The court finds Ms. Kanai and Mr. Hironaka to be credible.

51. The court finds that Defendant is not credible.

Tuimalealiifano also challenges the following COLs from

the Circuit Court's FOFs/COLs in the 2016 Case: 7. The record on the motion to withdraw guilty pleas is complete. Defendant fails to demonstrate by a preponderance of the evidence that there are fair and just reasons to support the withdrawal of his guilty pleas.

8. The court complied with the colloquy requirements of HRPP Rule 11.

31 9. Defendant knowingly, intelligently, and voluntarily waived his specific constitutional rights upon pleading guilty.

II. POINTS OF ERROR

In each of these consolidated appeals, Tuimalealiifano

raises a single point of error, with subpoints, contending that

the Circuit Court abused its discretion in not allowing him to

withdraw his guilty pleas and erred when it: (1) entered

multiple FOFs suggesting that he knowingly, intelligently, and

voluntarily entered his guilty pleas; and (2) found his testimony

not credible.

III. APPLICABLE STANDARDS OF REVIEW

"A trial court's denial of a motion to withdraw a plea

made prior to sentencing is reviewed for abuse of discretion."

State v. Guity, 144 Hawai#i 557, 560-61, 445 P.3d 138, 141-42

(2019). A trial court abuses its discretion when it "has clearly

exceeded the bounds of reason or has disregarded rules or

principles of law or practice to the substantial detriment of a

party litigant." State v. Merino, 81 Hawai#i 198, 211, 915 P.2d

672, 685 (1996) (quoting State v. Gomes, 79 Hawai#i 32, 36, 897

P.2d 959, 963 (1995)). However, where an appellate court's

review is based "solely upon the constitutional inquiry" of a

defendant's claim that a plea was not knowingly, intelligently,

or voluntarily entered, an appellate court will review the claim

"de novo, i.e., according to the right/wrong standard, based upon

an examination of the entire record." State v. Topasna, 94

32 Hawai#i 444, 452, 16 P.3d 849, 857 (App. 2000) (citation

omitted).

"[A] trial court's FOFs are subject to the clearly

erroneous standard of review." State v. Hicks, 113 Hawai#i 60,

70, 148 P.3d 493, 503 (2006) (quoting State v. St. Clair, 101

Hawai#i 280, 287, 67 P.3d 779, 786 (2003)). A trial court's FOF

"is clearly erroneous when, despite evidence to support the

finding, the appellate court is left with the definite and firm

conviction in reviewing the entire evidence that a mistake has

been committed." Merino, 81 Hawai#i at 219, 915 P.2d at 693

(quoting Tachibana v. State, 79 Hawai#i 226, 231, 900 P.2d 1293,

1298 (1995)). "Moreover, an appellate court will not pass upon

issues dependent upon credibility of witnesses and the weight of

the evidence; this is the province of the trial judge." Hicks,

113 Hawai#i at 70, 148 P.3d at 503 (quoting St. Clair, 101 Hawai#i

at 287, 67 P.3d at 786); see also Topasna, 94 Hawai#i at 461, 16

P.3d at 866 ("To the extent the findings were the court's

judgment as to the credibility of Topasna's testimony about his

state of mind, we cannot disturb them.").

Conclusions of law are "not binding upon an appellate

court." Merino, 81 Hawai#i at 219, 915 P.2d at 693 (quoting

State v. Wallace, 80 Hawai#i 382, 391, 910 P.2d 695, 704 (1996)).

COLs are subject to the right/wrong standard, and "[t]hus, a COL

that is supported by the trial court's FOF and that reflects an

33 application of the correct rule of law will not be overturned."

Id.

IV. DISCUSSION

Hawai#i Rules of Penal Procedure (HRPP) Rule 32(d)

governs plea withdrawals, but it does not provide a standard for

defendants withdrawing pleas prior to sentencing.15 State v.

Pedro, 149 Hawai#i 256, ___, 488 P.3d 1235, 1249 (2021).

Instead, the Hawai#i Supreme Court has articulated the standard,

providing that although "[a] defendant does not have an absolute

right to withdraw his guilty plea," when "the motion is presented

to the trial court before the imposition of sentence, a more

liberal approach is to be taken, and the motion should be granted

if the defendant has presented a fair and just reason for his

request and the State has not relied upon the guilty plea to its

substantial prejudice." State v Jim, 58 Haw. 574, 575-576, 574

P.2d 521, 522-23 (1978); see also Pedro, 149 Hawai#i at __, 488

P.3d at 1249.

In Pedro, the supreme court explained that "fair and

just reason" is a flexible and permissive standard that requires

15 HRPP Rule 32(d) provides:

(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.

34 an examination of "the totality of the circumstances to determine

whether there was any fair and just reason for [a defendant's]

plea withdrawal." Pedro, 149 Hawai#i at ___, 488 P.3d at 1250

(emphasis in original). The court reaffirmed that "[t]he

defendant has the burden of establishing plausible and legitimate

grounds for the withdrawal" in conjunction with this framework.

Id. at ___, 488 P.3d at 1249 (citing State v. Costa, 64 Haw. 564,

565, 644 P.2d 1329, 1331 (1982)). The supreme court in Pedro

concluded that the trial court did not err either in concluding

that Pedro's pleas were knowing and voluntary or in finding that

"new evidence" did not justify the plea withdrawal; however, the

trial court nevertheless abused its discretion by ending its

inquiry there and failing to consider "whether there were any

circumstances constituting a 'fair and just' reason for the pre-

sentence withdrawal of Pedro's pleas." Id. at __, 488 P.3 at

1253.

In order to "prospectively facilitate" the analysis of

whether there is a fair and just reason for the withdrawal of a

plea before sentencing, absent manifest injustice, the supreme

court in Pedro introduced a non-exclusive, five-factor test: Courts evaluating an HRPP Rule 32(d) motion to withdraw a knowing and voluntary plea before sentencing should consider: (1) whether the defendant has asserted and maintained innocence; (2) the timing of the request for the plea withdrawal and the reasons for any delay; (3) the circumstances underlying the plea; (4) the defendant's nature and background; and (5) the potential prejudice to the prosecution caused by reliance on the plea.

Pedro, 149 Hawai#i at ___, 488 P.3d at 1254 (footnote omitted).

35 The threshold question in this case is whether

Tuimalealiifano knowingly, intelligently, and voluntarily entered

his guilty pleas, as that is his sole argument for asserting that

the Circuit Court abused its discretion in declining to allow him

to withdraw his pleas. HRPP Rule 11 governs pleas and requires

trial courts to follow particular procedures to ensure that a

defendant is knowingly, intelligently, and voluntarily entering a

plea. In addition, the supreme court has provided that: It is well-recognized that a guilty plea "in itself is a conviction and a simultaneous waiver of several important constitutional guarantees [,]" namely, the privilege against compulsory self-incrimination, the right to a trial by jury, and the right to confront one's accusers, and, thus, the waiver of these guarantees "is not constitutionally acceptable unless made voluntarily and with full understanding of the consequences." . . . In determining the voluntariness of a defendant's proffered guilty plea, the trial court should make an affirmative showing by an on- the-record colloquy between the court and the defendant wherein the defendant is shown to have a full understanding of what the plea of guilty connotes and its consequences.

State v Solomon, 107 Hawai#i 117, 127, 111 P.3d 12, 22 (internal

citations and quotation marks omitted).

An on-the-record plea colloquy is generally

constitutionally sufficient and ensures a defendant knowingly,

intelligently, and voluntarily enters a plea when it: (1)

informs the defendant that in "pleading guilty, he [is] waiving

his privilege against self-incrimination, the right to a trial by

jury, and the right to confront his accuser;" and (2) adheres to

HRPP Rule 11 requirements. Id. at 128, 111 P.3d at 23 (finding

colloquy insufficient to obtain knowing and voluntary waiver when

it failed to inform defendant what specific constitutional rights

36 he gave up in pleading guilty); Topasna, 94 Hawai#i at 454, 16

P.3d at 859 (analyzing HRPP Rule 11 mandates and waiver of

important constitutional rights separately). A trial court may

also be required to "ask follow up questions" if a "salient fact"

exists, which notifies a trial court that the defendant does not

understand the consequences of the plea. State v. Krstoth, 138

Hawai#i 268, 276, 378 P.3d 984, 992 (2016) (citation omitted).

Here, Tuimalealiifano does not argue that the change

of plea colloquy failed to inform him, for example, that in

pleading guilty, he waived his privilege against self-

incrimination, right to a jury trial, and right to confront his

accuser. Indeed, the record establishes that the plea colloquy

sufficiently informed Tuimalealiifano, inter alia, that in

pleading guilty, he would waive the right to a jury trial, his

privilege against self-incrimination, and the right to confront

his accusers. The Circuit Court clearly explained in detail,

inter alia, that a jury trial consisted of 12 members from the

community; that Tuimalealiifano, through his attorney, could

question and help select the 12 jurors; all 12 jurors must

unanimously agree that the State proved each count beyond a

reasonable doubt; and even if Tuimalealiifano chose not to have a

jury trial, he could still have a judge trial. Tuimalealiifano

expressly confirmed, with responses appropriate to the particular

rights being explained, that he understood that in pleading

guilty, he waived each of these rights. Cf. Krstoth, 138 Hawai#i

37 at 275-76, 378 P.3d at 991-92 (several omissions in colloquy,

combined with elicitation of one-word responses, and language

barrier, contributed to a totality of circumstances supporting

the supreme court's conclusion that the record did not establish

a knowing, intelligent, and voluntary waiver).

Here, in arguing that he did not knowingly,

voluntarily, and intelligently change his pleas, Tuimalealiifano

points to the totality of the circumstances regarding his change

of plea, particularly: (1) the severity of the charges; (2) the

one-time representation by a different attorney during the change

of plea hearing regarding the "complicated global plea

agreement;" and (3) the Circuit Court's limited inquiry after the

court paused the change of plea proceedings to allow

Tuimalealiifano to confer with counsel.

The severity of charges is certainly part of the

totality of the circumstances, but there is no argument or

indication in the record that Tuimalealiifano did not fully

understand the charges.

While not conclusive of constitutional validity, a

signed Form K plea agreement may tend to support that a defendant

knowingly, voluntarily, and intelligently pled to serious

charges, such as the ones in this case. See Pedro, 149 Hawai#i

at ___, 488 P.3d at 1251. Here, however, the Form K was itself

inconsistent and confusing. On its face, the Form K stated that

Tuimalealiifano was subject to a mandatory minimum term of ten

38 years on Count 5, whereas the attached February 20, 2020 letter

detailing the plea agreement (as well as the subsequent March 4,

2020 letter) stated that Tuimalealiifano was subject to a

mandatory minimum term of ten years on Count 2.

Notably, it appears that a mandatory minimum term under

HRS § 706-660.1 (2014) could not be imposed as to Count 5, which

charged Tuimalealiifano with Firearm in Commission of Felony,

Manslaughter, in violation of HRS § 134-21. See, e.g., State v.

Ambrosio, 72 Haw. 496, 824 P.2d 107 (1992); and State v. Ancheta,

No. 29039, 2009 WL 3776408, *8 (Haw. App. Nov. 9, 2009) (mem.

op.). In Ambrosio, 72 Haw. at 496-97, 824 P.2d at 107-08, the

Defendant pled no contest under HRS § 134-6(a) and was sentenced

to a seven year mandatory minimum sentence pursuant to HRS § 706-

660.1(a)(2). The supreme court held that the trial court had

"improperly applied the statute when sentencing appellant for the

felony of using a firearm in the commission of the kidnapping."

Ambrosio 72 Haw. at 498, 824 P.2d at 108. The supreme court

reasoned: The language of the above statute [referring to HRS § 706-660.1(a)(2)] is clear and unambiguous. The enhanced sentencing applies to the conviction for the felony in which the firearm was used. In this case, it was the kidnapping.

The legislature has chosen to make the use of a firearm in the commission of a felony the basis for enhanced sentencing for that felony, and it has also chosen to make such use a separate felony, but it clearly has not chosen to impose two mandatory minimum sentences for one use of a gun.

Id. at 497-98, 824 P.2d at 107-08.

39 In Ancheta, the defendant was charged for Carrying,

Using or Threatening to Use a Firearm in the Commission of a

Separate Felony, in violation of HRS § 134-6(a) and (e) (Supp.

2005) and sentenced to twenty years with a mandatory minimum term

of ten years pursuant to HRS § 706-660.1 (1993). Ancheta, 2009

WL 3776408 at *2. The original complaint in that case alleged

that the defendant did knowingly carry on his person or have within his immediate control or intentionally use or threaten to use a firearm while engaged in the commission of a separate felony, whether the firearm was loaded or not, and whether operable or not, thereby committing the offense of Carrying, Using or Threatening to Use a Firearm in the Commission of a Separate Felony, in violation of Sections 134-6(a) and (e) of the Hawai #i Revised Statutes, and the separate felony is Burglary in the First Degree . . . .

This court went on to state: However, effective May 2, 2006, HRS § 134-6 was repealed in its entirety in Act 66 of 2006. See 2006 Haw. Sess. Laws Act 66, § 6 at 110, § 10 at 110. As part of the re-working of Chapter 134, the Legislature added various new sections, including § 134-A "Carrying or use of firearm in the commission of a separate felony; penalty," which was codified as HRS § 134-21. See 2006 Haw. Sess. Laws Act 66 § 1 at 105. HRS § 134-21(a) (Supp. 2006) is substantively identical to HRS § 134-6(a)(repealed) . . . .

Id. at *3 (footnote omitted). Relying primarily on Ambrosio,

this court vacated the ten-year mandatory minimum and concluded

that "HRS § 706-660.1(1) is inapplicable to Use of Firearm in the

Commission of Felony convictions as a matter of law." Id. at *8.

Although there have been some modifications to HRS

§ 706-660.1, it remains essentially unchanged with respect to the

issue of not imposing a mandatory minimum sentence for a Firearm

in Commission of Felony violation, as charged in Count 5.

40 Accordingly, Tuimalealiifano could not be sentenced to a

mandatory minimum term with respect to Count 5, as reflected on

the face of Form K.

The error in the Form K was not corrected, and the

error was repeated in the Circuit Court's colloquy, which did not

advise Tuimalealiifano that he was subject to a mandatory minimum

term of ten years with respect to Count 2, but instead asked him

whether he understood that "on Count 5 you're also looking at a

mandatory minimum term of imprisonment, and Count 5 is use of the

firearm in commission of a separate felony of manslaughter is a

10 year mandatory minimum? Do you understand that?"

Tuimalealiifano answered, "Yes, Your Honor." Tuimalealiifano did

not raise this specific infirmity in arguing that his guilty plea

was not entered knowingly, intelligently and voluntarily, but

neither the lawyers nor the court recognized the mistake, and

Tuimalealiifano argued that he was surprised by the ten-year

mandatory minimum term. In any case, the Circuit Court was

plainly wrong in advising Tuimalealiifano that Count 5 was

subject to a mandatory minimum term and his "understanding" of

that advisement was at best ill-informed and confused. The

Circuit Court failed to instead advise him that Count 2 was

subject to a mandatory minimum term, and it is difficult to

conclude that a plea based on an erroneous and confusing Form K,

41 as well as an erroneous advisement in the colloquy, was entered

knowingly and intelligently.16

As part of the colloquy, the Circuit Court confirmed

Tuimalealiifano's age, limited educational background, ability to

read and write English, and clear, sound mind. The Circuit

Court's plea colloquy systematically addressed each of the

charges Tuimalealiifano was pleading guilty to and the factual

basis for that plea. When Tuimalealiifano hesitated, to confer

with counsel, the court agreed to break the proceedings to allow

consultation with substitute counsel and, when the proceedings

resumed, the court inquired whether Tuimalealiifano needed "more

time" and he said no. As discussed above, the Circuit Court

colloquied Tuimalealiifano about whether he had discussed the

penalties for the offenses with counsel and then discussed with

Tuimalealiifano the maximum penalties, the mandatory minimum

terms, the role of the Parole Board in ultimately establishing

the minimum time he would serve, and restitution, albeit with

errors as to the consequences of pleading guilty as to Counts 2

and 5.

In addition, after accepting Tuimalealiifano's guilty

plea as to Count 7, the court had to be corrected as to its

16 On October 20, 2021, this court entered an order providing the parties an opportunity to file supplemental briefs on this issue, as well as other issues described in the order. Through (substituted) appellate counsel, Tuimalealiifano argued that the Form K error, along with the fact that his counsel of record was not present on the day of his plea, along with the related errors in the court's plea colloquy, all weigh in favor of allowing him to withdraw his guilty pleas. The State did not file a supplemental brief in response to the October 20, 2021 order.

42 summary including that Tuimalealiifano was adjudged "guilty as

charged" to Count 1, when he in fact pled guilty to a lesser

charge. The Circuit Court further said, inter alia, that the

charges in Counts 3, 6, and 7, would be nolle prosequied;

Tuimalealiifano responded "Yes, Your Honor" when asked if that

was right, even though he had just pled guilty to Count 7. While

that error was corrected in the Stipulation, that exchange

reflects at least some confusion on Tuimalealiifano's part and

perhaps a lack of attention to the details of the pleas on the

part of the court and counsel. While none of these errors

ultimately changed the result of the pleas, they bring into

question Tuimalealiifano's understanding of the specifics of the

guilty pleas, notwithstanding his responses.

Tuimalealiifano asserts that Hironaka's appearance with

him at the change of plea hearing, in lieu of Althof, should have

weighed heavily in favor of allowing Tuimalealiifano to withdraw

his plea. The record supports the Circuit Court's findings

concerning Tuimalealiifano's directions to Althof to resolve the

cases through plea negotiations and her series of discussions

with him. However, the absence of the attorney who negotiated

the plea agreement for Tuimalealiifano may or may not have

contributed to the problems evident in the plea colloquy and

Tuimalealiifano's hesitation at one point during the colloquy.

The Form K for the 2019 Case had to be changed on the morning of

the change of plea hearing to reflect a plea of guilty, rather

43 than no contest, and Hironaka, rather than Althof, explained this

change to Tuimalealiifano; on the other hand, Tuimalealiifano

expressed no concerns or hesitancy over having to plead guilty

(rather than no contest) to the single remaining charge in the

2019 Case. The record does not demonstrate concern by

Tuimalealiifano about proceeding with the plea hearing with

Hironaka until after his pleas were entered, albeit before

sentencing.

As the supreme court clarified in Pedro, although

Tuimalealiifano offered no other argument that there was a fair

and just reason for plea withdrawal before sentencing, it is

necessary to conduct an expansive consideration of the fair and

just inquiry. Pedro, 149 Hawai#i at ___, 488 P.3d at 1253-54.

Although the guidance from Pedro was not available to the Circuit

Court in this case, the evidentiary record concerning

Tuimalealiifano's pleas and his motion for their withdrawal is

well developed. Pursuant to the majority opinion in Pedro, we

thus consider the five-factor test articulated by the supreme

court. Id. at ___, 488 P.3d at 1254.

Here, Tuimalealiifano has never asserted innocence and

expressly admitted guilt based on the facts supporting the

subject charges. There was no undue delay in requesting plea

withdrawal. While there is no indication that Tuimalealiifano's

pleas were entered in haste, there was evident confusion

regarding the mandatory minimum, misstatements regarding the

44 nolle prosequi, and last minute changes, including the

representation by substitute counsel. Although the pleas were

the result of months of negotiations initiated at

Tuimalealiifano's direction, consultations between

Tuimalealiifano and the attorney that negotiated the plea

agreement on his behalf, and opportunities to review and reflect

on the pleas in written form, the written form and oral colloquy

were problematic.

While Tuimalealiifano's education ended with tenth

grade, his maturity, mental faculties, and command of the English

language seemingly equipped him to consider the implications of

his pleas. Yet, he agreed with the Circuit Court even when the

court misstated various parts of the plea agreement.

The last factor, any prejudice to the prosecution, was

perhaps not as well developed in the record as the other Pedro

considerations, but the State had put considerable effort into

trial preparation and there had already been significant delays.

Finally, we address Tuimalealiifano's contention that

the Circuit Court abused its discretion when it found his

testimony not to be credible. Hawai#i appellate courts have long

held that a trial court retains the power to "inquire into the

truth and validity of the defendant's claims and

representations." Jim, 58 Haw. at 579, 574 P.2d at 524. Thus,

this court will not disturb the Circuit Court's determinations as

to the credibility of Tuimalealiifano's testimony or as to

45 Althof's and Hironaka's testimonial declarations. Topasna, 94

Hawai#i at 461, 16 P.3d at 866.

Even so, in light of the supreme court's mandate in

Pedro that this court consider "whether there were any

circumstances constituting a 'fair and just' reason for the pre-

sentence withdrawal" of a defendant's pleas, we conclude that the

circumstances of Tuimalealiifano's guilty pleas to the multiple,

serious charges in the 2016 Case constituted such circumstances,

and the plea agreement in the 2019 Case was negotiated as part of

a coordinated deal. Thus, we conclude that the Circuit Court

erred when it denied Tuimalealiifano's request to withdraw his

guilty pleas.

V. CONCLUSION

For these reasons, the Circuit Court's October 5, 2020

Judgments are vacated, and these cases are remanded to the

Circuit Court for further proceedings.

DATED: Honolulu, Hawai#i, November 30, 2021.

On the briefs: /s/ Lisa M. Ginoza Emmanuel G. Guerrero, Chief Judge appearance on the Opening Brief only, /s/ Katherine G. Leonard for Defendant-Appellant. Associate Judge

Donn Fudo, /s/ Keith K. Hiraoka Deputy Prosecuting Attorney, Associate Judge City and County of Honolulu, appearance on the Answering Brief in CAAP NO. 20-690, for Plaintiff-Appellee.

46 Landon M.M. Murata, Deputy Attorney General, State of Hawai#i, appearance on the Answering Brief in CAAP NO. 20-691, for Plaintiff-Appellee.

Kai Lawrence, appearance on the Reply Brief only, for Defendant-Appellant.