State v. Tuimalealiifano ( 2021 )

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.
THE COURT: Good morning.
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 DEFENDANT: Yes, Your Honor.
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 DEFENDANT: Yes, Your Honor.
THE COURT: Did you read and understand this
form before you signed it?
THE DEFENDANT: Yes, Your Honor.
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 DEFENDANT: Yes, Your Honor.
THE COURT: Did you discuss with your attorney the
elements of all these offenses?
THE DEFENDANT: Yes, Your Honor.
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 DEFENDANT: Yes, Your Honor.
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?
THE DEFENDANT: Yes, Your Honor.
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 DEFENDANT: Yes, Your Honor.
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 DEFENDANT: Yes, Your Honor.
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 DEFENDANT: Yes, Your Honor.
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 DEFENDANT: Yes, Your Honor.
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 DEFENDANT: Yes, Your Honor.
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 DEFENDANT: Yes, Your Honor.
THE COURT: Do you understand that the Parole
Board's minimum could be higher than these mandatory
minimums that the court must impose?
THE DEFENDANT: Yes, Your Honor.
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 DEFENDANT: Yes, Your Honor.
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 DEFENDANT: Yes, Your Honor.
THE COURT: Do you understand that the court
cannot waive or set aside the restitution and I cannot
convert it to community service?
THE DEFENDANT: Yes, Your Honor.
THE COURT: Do you understand?
THE DEFENDANT: Yes.
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 DEFENDANT: Yes, Your Honor.
THE COURT: Knowing the penalties you face, do
you still want to plead guilty to these counts?
THE DEFENDANT: Yes, Your Honor.
THE COURT: You understand you have a right to
plead not guilty and go to trial?
THE DEFENDANT: Yes, Your Honor.
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 DEFENDANT: Yes, Your Honor.
THE COURT: A jury trial is when 12 members of
the community would be chosen to decide your case. Do
you understand?
THE DEFENDANT: Yes, Your Honor.
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 DEFENDANT: Yes, Your Honor.
THE COURT: You through your attorney may help
to question and select the 12 jurors. Do you
understand that?
THE DEFENDANT: Yes.
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 DEFENDANT: Yes.
THE COURT: Do you want to give up your right to
a jury trial and a judge trial at this time?
THE DEFENDANT: Yes, Your Honor.
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 DEFENDANT: Yes, Your Honor.
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 DEFENDANT: Yes, Your Honor.
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 DEFENDANT: Yes, Your Honor.
THE COURT: You also have the right not to take
the stand and remain silent at your trial. Do you
understand that?
THE DEFENDANT: Yes.
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?
THE DEFENDANT: Yes.
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 DEFENDANT: Yes, Your Honor.
THE COURT: So a guilty plea means you give up
the trial. Do you understand that?
THE DEFENDANT: Yes.
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 DEFENDANT: Yes, Your Honor.
THE COURT: You also understand you give up your
right to appeal this case when you plead guilty?
THE DEFENDANT: Yes, Your Honor.
THE COURT: Is anyone threatening you, forcing
you, or pressuring you to plead guilty?
THE DEFENDANT: No, Your Honor.
THE COURT: Are you pleading of your own free
will?
THE DEFENDANT: Yes, Your Honor.
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 DEFENDANT: Yes, Your Honor.
THE COURT: Are you satisfied with Mr. Hironaka
and Miss Althof's advice?
THE DEFENDANT: Um, yes, Your Honor.
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 DEFENDANT: Yes, Your Honor.
THE COURT: In Count 2, manslaughter, what is your
plea, sir?
THE DEFENDANT: Guilty.
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 DEFENDANT: Yes, Your Honor.
THE COURT: What is your plea to Count 4, sir?
THE DEFENDANT: Guilty.
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 DEFENDANT: Yes, Your Honor.
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 DEFENDANT: Yes, Your Honor.
THE COURT: In Count 5, use of firearm in the
commission of a separate felony of manslaughter, what
is your plea, sir?
THE DEFENDANT: Guilty.
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 DEFENDANT: Yes, Your Honor.
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 DEFENDANT: No.
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 DEFENDANT: Guilty, Your Honor.
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 DEFENDANT: Yes, Your Honor.
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 DEFENDANT: Yes, Your Honor.
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, --
THE COURT: Okay.
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 DEFENDANT: Yes, Your Honor.
THE COURT: Do you have any questions, sir,
about what we discussed in the 2016 case?
THE DEFENDANT: No, Your Honor.
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 DEFENDANT: Yes, Your Honor.
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 COURT: How much education have you had?
THE DEFENDANT: Tenth grade.
THE COURT: You read and write English?
THE DEFENDANT: Yes, Your Honor.
THE COURT: You took any alcohol, medication, or
drugs in the last 48 hours?
THE DEFENDANT: No, Your Honor.
THE COURT: Mind clear today?
THE DEFENDANT: Yes, Your Honor.
THE COURT: This change of plea form, this is
your signature on the second page of this form?
THE DEFENDANT: Yes, Your Honor.
THE COURT: You read and understood this form
before you signed it?
THE DEFENDANT: Yes, Your Honor.
THE COURT: You discussed the assault second
degree offense with your attorney?
THE DEFENDANT: Yes, Your Honor.
THE COURT: You understand the elements of the
offense?
THE DEFENDANT: Yes.
THE COURT: You went over police reports and
discussed possible defenses?
THE DEFENDANT: Yes.
THE COURT: You understand the possible
penalties for this offense?
THE DEFENDANT: Yes.
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 DEFENDANT: Yes, Your Honor.
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 DEFENDANT: Yes, Your Honor.
THE COURT: You understand the court must order
restitution for reasonable and verifiable losses
requested by a victim?
THE DEFENDANT: Yes.
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 DEFENDANT: Yes, Your Honor.
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 DEFENDANT: Yes.
THE COURT: Knowing the penalties you face, do
you still want to plead guilty to this charge?
THE DEFENDANT: Yes, Your Honor.
THE COURT: You understand you have a right to
plead not guilty and go to trial?
THE DEFENDANT: Yes, Your Honor.
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 DEFENDANT: Yes.
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 DEFENDANT: Yes.
THE COURT: You through your attorney may help
to question and select the 12 jurors. You understand
that?
THE DEFENDANT: Yes.
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 DEFENDANT: Yes, Your Honor.
THE COURT: Do you want to give up your right to
a jury trial on this case at this time?
THE DEFENDANT: Yes.
THE COURT: And you want to give up your right
to a judge trial also?
THE DEFENDANT: Yes.
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 DEFENDANT: Yes, Your Honor.
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 DEFENDANT: Yes.
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 DEFENDANT: Yes.
THE COURT: You also have the right not to take
the stand and remain silent. You understand that?
THE DEFENDANT: Yes, Your Honor.
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 DEFENDANT: Yes.
THE COURT: If you plead guilty, there is not
[sic] trial and you give that up. Do you understand?
THE DEFENDANT: Yes.
THE COURT: And you will be sentenced without a
trial of any kind when you plead guilty. Do you
understand?
THE DEFENDANT: Yes.
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 DEFENDANT: Yes, Your Honor.
THE COURT: You also understand you give up your
right to appeal this case when you plead guilty?
THE DEFENDANT: Yes.
THE COURT: Is anyone threatening you, forcing
you, or pressuring you to plead guilty?
THE DEFENDANT: No.
THE COURT: Are you pleading of your own free
will?
THE DEFENDANT: Yes.
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 DEFENDANT: Yes, Your Honor.
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 DEFENDANT: Yes, Your Honor.
THE COURT: Are you satisfied with his advice?
THE DEFENDANT: Yes, Your Honor.
THE COURT: Are you satisfied with Miss Althof's
advice?
THE DEFENDANT: Yes, Your Honor.
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?
THE DEFENDANT: Guilty.
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 DEFENDANT: Yes, Your Honor.
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 DEFENDANT: No, Your Honor.
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.
47