State v. Chun ( 2022 )

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
17-JUN-2022
08:17 AM
Dkt. 98 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
STATE OF HAWAI#I, Plaintiff-Appellee, v.
WAYNE A. CHUN, Defendant-Appellant.
APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT
(CASE NOS. 2FFC-XX-XXXXXXX(1) and 2CPC-XX-XXXXXXX(1))
SUMMARY DISPOSITION ORDER
(By: Hiraoka, Presiding Judge, Nakasone and McCullen, JJ.)
Defendant-Appellant Wayne A. Chun (Chun) appeals from
the Circuit Court of the Second Circuit's1 (circuit court)
(1) January 3, 2020 Findings of Fact and Conclusions of Law and
Order Denying Defendant's Motion to Withdraw No Contest Plea, and
(2) January 6, 2021 judgment and sentence convicting Chun of one
count of Felony Abuse of Family or Household Member2 and one
count of Burglary in the First Degree.3
1
The Honorable Rhonda I.L. Loo presided.
2
In case number 2FFC-XX-XXXXXXX [hereinafter 2FFC], Chun was charged
with one count of Felony Abuse of Family or Household Member, in violation of
Hawaii Revised Statutes (HRS) § 709-906(1) and/or (9) (Supp. 2016), for a
June 10, 2017 incident involving his wife, Angela Chun.
HRS §§ 709-906(1) and (9) provide that "[i]t shall be unlawful for any
person, singly or in concert, to physically abuse a family or household
member" and "[w]here the physical abuse occurs in the presence of a minor, as
defined in section 706-606.4, and the minor is a family or household member
less than fourteen years of age, abuse of a family or household member is a
class C felony."
3
In case number 2CPC-XX-XXXXXXX [hereinafter 2CPC], Chun was charged,
inter alia, with one count of Burglary in the First Degree, in violation of
(continued...)
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In the argument section of his opening brief, Chun
contends that the "circuit court abused its discretion in denying
[his] pre-sentence motion to withdraw his pleas."4 To support
this contention, Chun claims that there are fair and just reasons
to withdraw his plea, specifically, (1) "he has never admitted
guilt"; (2) he "did not unduly delay in requesting [a] plea
withdrawal"; (3) "he entered his no-contest plea to protect his
son, to reconcile with his estranged wife and did so without the
effective assistance of counsel";5 (4) his nature and background
weigh in favor of allowing him to withdraw his plea; and
(5) there would be no prejudice to the State.
Upon careful review of the record and the briefs
submitted by the parties and having given due consideration to
the arguments advanced and the issues raised, we resolve Chun's
appeal as discussed below, and vacate and remand.
When a motion to withdraw a plea is made prior to
sentencing, a "liberal approach is to be taken, and the motion
3
(...continued)
HRS § 708-810(1)(c) (2014), for a September 22, 2017 incident involving Samuel
Keaweehu.
HRS § 708-810(1)(c) provides that "[a] person commits the offense of
burglary in the first degree if the person intentionally enters or remains
unlawfully in a building, with intent to commit therein a crime against a
person or against property rights, and . . . [t]he person recklessly
disregards a risk that the building is the dwelling of another, and the
building is such a dwelling."
4
In the points of error section of his opening brief, Chun challenges
numerous findings of fact (FOF) and conclusions of law (COL), but does not
address them individually in the argument section of his brief. Instead, he
appears to address the challenged FOF and COL in the context of his argument
that the circuit court erred in denying his motion to withdraw his plea. We
address the challenged FOF and COL in a likewise manner.
5
Regarding his ineffective assistance of counsel assertion, we need
not address this issue in light of our holding. And, it should be noted that
Chun does not raise ineffective assistance of counsel as a point of error, and
does not appear to have served counsel he alleges as ineffective with a copy
of the opening brief. Hawai#i Rules of Appellate Procedure Rules 28(a) and
(b)(4).
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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. Garcia, 135
Hawai#i 361, 368, 351 P.3d 588, 595 (2015) (citation omitted).
The Hawai#i Supreme Court explained that "[g]iven the
significance of the constitutional rights waived by a guilty or
no contest plea, the flexible and comparatively liberal approach
we adopted in [State v. Jim, 58 Haw. 574, 574 P.2d 521 (1978)]
favors allowing pre-sentence defendants to reclaim their
constitutional rights and go to trial." State v. Pedro, 149
Hawai#i 256, 271, 488 P.3d 1235, 1250 (2021).
Thus, we must "examine the totality of the
circumstances to determine whether there was any fair and just
reason for [the defendant's] plea withdrawal." Id. To do so,
the supreme court put forth five non-exclusive factors to
consider.
The first factor is "whether the defendant has asserted
and maintained innocence." Id. at 275, 488 P.3d at 1254.
Although Chun does not challenge the circuit court's FOF 36
finding that Chun stipulated to a factual basis for the charges,
he now asserts his innocence. During the hearing on the motion
to withdraw his plea, Chun testified, "I never abused my wife"
and "I never entered the house." "Though an assertion of
innocence, standing alone, is not a 'fair and just reason' for
plea withdrawal, an assertion of innocence by a defendant who has
never admitted guilt weighs strongly in favor of allowing plea
withdrawal before sentencing." Id. Because the factual basis
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was part of a no-contest plea, this weighs in favor of allowing
withdrawal of the plea.
The second factor is "the timing of the request for the
plea withdrawal and the reasons for any delay." Id. Chun
challenges COL 17, which concluded that there was undue delay in
moving to withdraw his plea by considering the days that passed
between the his plea and motion to withdraw his plea. But, based
on the record, the following pertinent events occurred:
• In June 2018, Chun pled no contest, and the circuit
court ordered a presentence report;
• In September 2018, the presentence report was filed;
• In October 2018, the Honorable Richard Bissen recused
himself and the case was assigned to another court, and
defense counsel withdrew and new counsel was appointed;
• In December 2018, the parties stipulated to continue
sentencing because the court reporters had not been
able to provide new counsel with transcripts;
• In March 2019, Chun subpoenaed his prior counsel
because there was a disagreement over producing
documents to new counsel, prior counsel moved to quash
the subpoena, and the circuit court ordered certain
documents be distributed to new counsel; and
• Four days after the disclosure of the documents, Chun
moved to withdraw his plea.
Here, time elapsed due to preparing the presentence
report, recusal of the judge, substitution of counsel, and new
counsel's attempt to obtain transcripts from court reporters and
documents from prior counsel, which would reasonably be required
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to make informed decisions. As such, we hold that the delay in
this case was not unwarranted or excessive. See id. at 278, 488
P.3d at 1257 (holding no undue delay where, among other things,
conflict with counsel may have caused the delay). Thus, this
factor weighs in favor of allowing withdrawal of the plea.
The third factor is "the circumstances underlying the
plea." Id. at 275, 488 P.3d at 1254. Chun's plea appears to be
tactical. He admitted that he pled no contest because, "I
basically wanted to show her that I was sorry[,]" "I didn't want
to – to drag her or any of the witnesses or my family into
court[,]" and "I didn't want my son to get involved[.]" Chun
also testified, "I truly felt that taking the plea would be my
best option[.]" And the plea offer proposed a substantially
reduced sentence of, among other things, five years probation for
Felony Abuse and four years probation for Burglary, with the
State free to argue 90 days jail as a condition and Chun was free
to argue credit for time served. Otherwise, Chun was facing a
maximum of five years imprisonment and/or a $10,000 fine for
Felony Abuse, a maximum of ten years imprisonment and/or a
$20,000 fine for Burglary, and a possible extended term of thirty
years imprisonment. This factor weighs against allowing
withdrawal of the plea.
The fourth factor is "the defendant's nature and
background." Id. As Chun admits, he is a fifty-year-old college
graduate. A reasonable inference from his age and education is
that he should have the maturity and education to understand the
proceedings before him and to communicate effectively with his
counsel and the court. Cf Pedro, 149 Hawai#i at 280, 488 P.3d at
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1259 (explaining that defendant's background weighed in favor of
allowing a plea withdrawal where he was thirty-three years old,
attended school until the ninth grade, and his first language was
Marshallese). This factor also weighs against allowing
withdrawal of the plea.
The fifth factor is "the potential prejudice to the
prosecution caused by the reliance on the plea." Id. at 275, 488
P.3d at 1254. In its answering brief, the State acknowledges
that it "does not challenge the trial court's conclusion that the
prosecution has not relied upon Chun's pleas to its substantial
detriment." COL 18. We are bound by this unchallenged COL,
which is actually a finding of fact, and thus, this factor weighs
in favor of allowing withdrawal of the plea.
In sum, considering the supreme court's liberal
approach that "favors allowing pre-sentence defendants to reclaim
their constitutional rights and go to trial," and the particular
circumstances of this case, namely Chun's assertion of innocence,
no undue delay, and no prejudice to the prosecution, we hold that
a fair and just reason existed to allow Chun to withdraw his no-
contest plea before sentencing. Id. at 270-71, 488 P.3d at 1249-
50. The circuit court, thus, abused its discretion in denying
Chun's motion to withdraw his no-contest plea. Garcia, 135
Hawai#i at 368, 351 P.3d at 595 ("The denial of an [Hawai#i Rules
of Penal Procedure Rule] 32(d) motion to withdraw a plea of nolo
contendere, or 'no contest,' prior to the imposition of
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sentence, is reviewed for abuse of discretion.") (citation,
internal quotation marks, brackets and ellipsis omitted).
Based on the foregoing, we vacate the circuit court's
(1) January 3, 2020 Findings of Fact and Conclusions of Law and
Order Denying Defendant's Motion to Withdraw No Contest Plea, and
(2) January 6, 2021 judgment and sentence, and remand this case
for further proceedings consistent with this order.
DATED: Honolulu, Hawai#i, June 17, 2022.
On the briefs: /s/ Keith K. Hiraoka
Presiding Judge
Hayden Aluli,
for Defendant-Appellant. /s/ Karen T. Nakasone
Associate Judge
Renee Ishikawa Delizo,
Deputy Prosecuting Attorney, /s/ Sonja M.P. McCullen
County of Maui, Associate Judge
for Plaintiff-Appellee.
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