State v. Mekkaoui ( 2023 )

NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
24-MAY-2023
07:55 AM
Dkt. 55 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
STATE OF HAWAI#I, Plaintiff-Appellee, v.
RACHID MEKKAOUI, Defendant-Appellant
APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT
HONOLULU DIVISION
(CASE NO. 1DTA-21-02056)
SUMMARY DISPOSITION ORDER
(By: Leonard, Presiding Judge, and Hiraoka and Wadsworth, JJ.)
Defendant-Appellant Rachid Mekkaoui (Mekkaoui) appeals
from the Notice of Entry of Judgment and/or Order and
Plea/Judgment (Judgment), entered on January 31, 2022, in the
District Court of the First Circuit, Honolulu Division (District
Court).1/ For the reasons explained below we affirm the Judgment,
which dismissed the case against Mekkaoui without prejudice.
On December 17, 2021, Mekkaoui was charged by Complaint
with Operating a Vehicle Under the Influence of an Intoxicant
(OVUII), in violation of Hawaii Revised Statutes (HRS) § 291E-
61(a)(1) (2020). The Complaint was signed by a deputy
prosecuting attorney, but was not subscribed under oath by a
complainant or accompanied by a declaration in lieu of affidavit.
On December 10, 2021, the Hawai#i Supreme Court decided
State v. Thompson, 150 Hawai#i 262, 500 P.3d 447 (2021), which
held that a penal summons or arrest warrant cannot be issued on
1/
The Honorable Alvin Nishimura presided.
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the basis of a complaint that is not compliant with HRS § 805-1.2/
Id. at 267-69, 500 P.3d at 452-54; see State v. Mortensen-Young,
152 Hawai#i 385, 393-95, 526 P.3d 362, 370-72 (2023) (construing
Thompson).
On December 22, 2021, Mekkaoui filed a motion to
dismiss the Complaint (Motion to Dismiss) based on the Thompson
ruling. The State filed a memorandum in opposition to the Motion
to Dismiss.
On January 27, 2022, Mekkaoui filed no-contest plea
documents, based apparently on terms that had been posted on a
listserv of the Hawaii Association of Criminal Defense Lawyers
(HACDL) in the wake of the Thompson ruling, and modeled on a plea
agreement that had been offered during the COVID shutdown. The
plea documents were emailed by defense counsel to the general
office email of the Department of the Prosecuting Attorney.
On January 28, 2022, Florence Nakakuni (Nakakuni),
Misdemeanor Prosecution Division Chief for the Department of the
Prosecuting Attorney, emailed defense counsel, stating in part:
[W]hatever might have been on the HACDL website is not an
offer to your client or to anyone else.
In the future, please contact me or one of the Team Captains
if you are interested in a change of plea for one of your
clients. Just a kindly reminder that you can't just upload
change of plea forms without having formal plea negotiations
and approval from the Prosecutors.
Nakakuni further stated:
2/
At the time of the alleged offense here and in Thompson, HRS
§ 805-1 (2014) provided, in pertinent part:
When a complaint is made to any prosecuting officer of the
commission of any offense, the prosecuting officer shall examine
the complainant, shall reduce the substance of the complaint to
writing, and shall cause the complaint to be subscribed by the
complainant under oath, which the prosecuting officer is hereby
authorized to administer, or the complaint shall be made by
declaration in accordance with the rules of court. . . . Upon
presentation of the written complaint to the judge in whose
circuit the offense allegedly has been committed, the judge shall
issue a warrant, reciting the complaint and requiring the sheriff,
or other officer to whom it is directed, except as provided in
section 805-3, to arrest the accused and to bring the accused
before the judge to be dealt with according to law; and in the
same warrant the judge may require the officer to summon such
witnesses as are named in the warrant to appear and give evidence
at trial. The warrant may be in the form established by the usage
and practice of the issuing court.
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In the interests of justice and to facilitate a resolution,
I reviewed the reports in the case and based on the facts of
Mr. Mekkaoui's case and his history, we offer to amend the
OVUII to a Reckless. You must waive any procedural defects
of the amendment and the Complaint. You are free to request
a deferral; we will make a record objection.
Later the same day, defense counsel responded to
Nakakuni via email, "I will (again) recommend to him that he take
the dismissal. The judges and HACDL are treating it like it is a
deal for everyone who qualifies." About twenty minutes later,
defense counsel emailed Nakakuni: "My client accepts your offer
to reduce the charge to a reckless. We will argue over
sentencing including the deferral."
On January 29, 2022, Nakakuni emailed defense counsel:
"[G]ot it. Thank you." Later that day, defense counsel filed
revised no-contest plea documents. It appears that defense
counsel also emailed Nakakuni: "Please find attached the revised
plea papers I filed under seal today pursuant to our agreement."
The District Court held a hearing on January 31, 2022.
The following exchange occurred:
[DEFENSE COUNSEL:] . . . .
Your honor, we have a deal in place to resolve this
matter. I filed two sets of plea documents. The first one
I was told by Ms. Nakakuni was not offered to Mr. Mekkaoui
so we have renegotiated and Mr. Mekkaoui and I redid the
paperwork which was filed the 29th. And basically it is --
they are dropping this to a reckless driving and making a
record objection to our request that you impose a [deferral
on Mr. Mekkaoui].
. . . .
THE COURT: Okay.
[DEPUTY PROSECUTING ATTORNEY (DPA)]: And, yes, your
honor, I can articulate the terms.
So the first term is the State will amend the OVUII to
HRS 291-2 reckless driving. Defendant to waive procedural
defects of the amendment and the complaint. Defendant . . .
will be moving for referral [sic]. State will make a record
objection.
There is either a $1,000 fine or 72 hours of community
service work; 14 hours substance abuse rehabilitation
program; substance abuse assessment and treatment if
recommended; DUI DE cost of $100; neurotrauma surcharge
[$]25; $75 probation fee; $70 -- $7.00 DE; $30 CICF.
Defendant must inform Adult Client Services Branch of
all infractions, citations, and arrests. Defendant must
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comply with all terms of the ADLRO. Defendant cannot drive
for one year unless [he] installs an ignition interlock
device on any vehicle operated by [him].
And I don't believe there's any restitution in this
case. But restitution if applicable.
[DEFENSE COUNSEL]: Judge, that is not what we agreed
on. That's what I thought was available to all defendants
to qualify. When I filed the papers with those terms on
there, I was specifically told by Ms. Nakakuni that that was
not available to Mr. Mekkaoui and instead they were dropping
it to reckless . . . and objecting to our request for a
deferral. None of those other terms were on there. The
available punishment for a reckless driving is $1,000
dollars fine, 30 days in jail.
. . . .
. . . So, judge, . . . all of those terms and
conditions she listed, that was in our first set of
paperwork in an agreement that we thought was available to
all defendants.
I was specifically informed by Ms. Nakakuni that that
was not available to Mr. Mekkaoui and instead she said: "In
the interest of justice and to facilitate a resolution, I
reviewed the reports in the case and based on the facts in
Mr. Mekkaoui's case and his history, we offer to amend the
OVUII to a reckless. You must waive any procedural defects
of the amendment and the complaint. You are free to request
a deferral and we will make a record objection."
Those are the only terms, judge. The only sentence
available for a reckless driving is a thousand dollar fine
and 30 days in jail.
THE COURT: Is there a letter signed by Ms. Nakakuni
–-
. . . .
. . . memorializing the terms and conditions of your
deal?
[DEFENSE COUNSEL]: I have it in writing, judge, via
email.
[DPA]: And, your honor, if I may respond . . . I'm
not comfortable taking this plea. I think [defense
counsel], Ms. Nakakuni should perhaps go back to the drawing
board and clarify the terms before entering this change of
plea. There appears to be a breakdown in communication.
THE COURT: [Defense counsel], I . . . agree with the
prosecutor . . . Ms. Nakakuni is not here today and nobody
else has this writing that you have in their possession.
It's not attached to your deferred acceptance of no contest
plea or the change of plea document. So shall we continue
this matter until you get the deal in writing to the
prosecutor . . . representing the State in court, or how
would you like to proceed? . . . .
. . . .
. . . There's a discrepancy on what the deal is so
that means there's no deal.
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[DEFENSE COUNSEL]: We . . . object for Rule 48
purposes. If they want to bring Ms. Nakakuni in, I mean,
I'm reading verbatim what her email says. I don't know how
they can now renege on the deal.
The District Court continued the hearing to the end of
the calendar, and the proceeding then reconvened with Nakakuni
present. After defense counsel explained his January 28, 2022
email exchange with Nakakuni, the following discussion occurred:
THE COURT: -- part of your statement, [defense
counsel], discusses that you will argue sentencing. Does
that not include the driver sanctions, the fines and fees,
the --
. . . .
. . . crime victim compensation fee?
. . . .
Those are things that are automatic that are not part
of the deal that was stated but it's certainly part of the
court's realm to provide those fines and fees. It's part of
a change of plea.
[DEFENSE COUNSEL]: I don't think so for a reckless,
judge. Under a DUI I would agree with you.
THE COURT: What about crime victim compensation fund?
[DEFENSE COUNSEL]: Well, the court costs, maybe.
Okay. We're not bickering over court costs.
. . . .
I'm bickering --
. . . .
-- over a 14-hour class, the one year with an
interlock regardless of what's happened at the ADLRO.
In response to defense counsel, Nakakuni explained:
MS. NAKAKUNI: . . . . So, your Honor, on Thursday,
January 27, what [defense counsel] did was to send to the
general office email, HonPros District, his plea documents.
So I got it probably couple of days later 'cause it didn't
come directly to me. . . .
. . . . And I reviewed the document. He had uploaded
. . . the proper forms and he knows to do this because this
is what is usually done in these deferrals. I reviewed the
documents and they were fine. They . . . were in order.
Now, . . . when I saw what he said, which is . . . Mr.
Mekkaoui . . . accepts the State's offer for the plea deal
communicated through the HACDL web site, . . . I took
objection to that.
We have had this issue before, [defense counsel] and I
(indiscernible) our office previously last year when there
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was a COVID deferral . . . I think it was last summer,
[defense counsel] filed a motion to enforce plea agreement.
And what he did was he again referred to whatever was
uploaded on the HACDL web site, and I said that was not a
plea agreement specific to you or anybody else.
And so actually this time around, judge, I took pains
. . . explaining . . . .
And so of course I did inform this committee that we
had a plan for trying to deal with some of the outfall from
the Thompson case, that if we could, what we would like to
do is make a similar type offer because we thought there
might be defendants who would want to take care of their
cases and resolve it now, rather than if the judge dismisses
the case, wait for us to refile, we might not but most times
we would refile, and then have to deal with it couple of
months down the road. So it was with that intent that this
was something that I told this committee.
And I took pains to tell them, because of the
situation with [defense counsel] last year, I said, you know
what, this is not a program. You know, we're not going to
announce it and so I'm not sending any emails. Okay? But
of course they wanted to know what the terms were and I'm
sure they were writing it down. And I haven't seen the
HACDL web site, which [defense counsel] referred to in the
email he sent to our office's general email box, but the
terms and conditions probably made their way there. . . .
So . . . when I get this email from [defense counsel], his
paperwork was fine but I just needed to make him understand
that anything that's uploaded on the HACDL web site as
informational is not an offer to any specific client. So
that's what I told him.
And so I did say that we'll make the offer, and of
course what I intended, what I meant was we accept this
paperwork. I did not reject the paperwork. This paperwork
is in proper order.
. . . .
His paperwork . . . .
. . . .
On the 27th.
. . . .
. . . And which was attached to the email –
. . . .
-- that was sent to my office.
. . . .
THE COURT: Did you receive the paperwork on the 29th?
. . . .
MS. NAKAKUNI: . . . I never saw that one. I never
saw the most recent one.
THE COURT: Please pass this to Ms. Nakakuni.
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[DEFENSE COUNSEL]: I have a copy for her, judge.
. . . .
MS. NAKAKUNI: Judge . . . I'm reading it for the
first time now in court and this is not what I saw. And in
my communications with [defense counsel], . . . I thought
this was a collegial exchange. After he filed this and
after I told him . . . don't be doing that unless you . . .
. . . .
-- contact one of us. I considered my email to him a
contact.
. . . .
THE COURT: So when you said "got it," you were of the
impression –-
. . . .
-- that this –
. . . .
-- DANCP with all of the conditions that were stated
by the prosecutor was what the deal was?
MS. NAKAKUNI: Yes, your honor.
. . . .
Because that was the email that I got and I read.
THE COURT: All right. Understood. Thank you, Ms.
Nakakuni. [Defense counsel], any rebuttal?
Defense counsel responded:
[T]he most probative communication that I got from Ms.
Nakakuni is not when she said "got it, I accept the offer."
It's before that . . . first of all, she does tell me, I
mean, I misunderstood. I didn't mean to try to pull a fast
one. I was just doing what I thought we were supposed to do
to resolve this case quickly . . . that's what I did in
COVID. My clients qualified. Here's the papers.
THE COURT: And you did do that, right?
[DEFENSE COUNSEL]: I did do that on the 27th.
Defense counsel then restated the offer made in Nakakuni's
January 27, 2022 email.
After considering the matter, the District Court ruled:
[M]y ruling today is that there is no meeting of the minds
here. . . . If you're intent on arguing that Mr. Mekkaoui
is going to walk with a reckless and that is all, and that's
the extent of the deal, I don’t believe that there is . . .
an agreement here.
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Given the multiple documents that were filed and the
timing of the documents such that on the 28th of January at
4:56 p.m. when Ms. Nakakuni says, 'got it, I agree' in her
possession was the two documents that you filed on January
the 27th. Both of them are change of pleas requesting a
DANCP, amending to reckless and stating various provisions
that were not only part of the COVID deal, but I think it's
the intent of the prosecutor that's going to be the
standards for the cases that they are now going to work on
for the Thompson case. I'm not sure about that. I'm going
to leave that to you folks. But if that's the information
at the time of her knowledge when she responded, then that
was her understanding of the agreement.
If you have a different understanding of the
agreement, then that means there's no agreement. And if
there's no agreement, I'm not going to take a plea today.
The District Court then turned to the pending Motion to
Dismiss based on the Thompson ruling. Following oral argument,
the court granted the motion, ruling that "because there is no
signed declaration supporting the complaint, the court is going
to dismiss the complaint as defective." The court continued:
However, in doing so the court does note that this is a
fairly new case. Prosecutors had little time to prepare.
Given the criminality as a petty misdemeanor . . . for an
allegation of driving under the influence of an intoxicant,
which is a safety issue for our community, and the
technicality by which the case is being dismissed today, the
matter's dismissed without prejudice.
The same day, i.e., January 31, 2022, the District Court entered
the Judgment, granting the motion to dismiss without prejudice.
On appeal, Mekkaoui contends that: (1) "[t]he State
breached and/or the [District Court] should have accepted the
plea"; and (2) "[t]he case should have been dismissed with
prejudice and/or the decision to dismiss without prejudice was
supported by insufficient and/or incorrect findings."
(1) In order to breach a plea agreement, or in order to
enforce a plea agreement, there must be a valid plea agreement in
the first instance. The existence of a plea agreement is a
question of fact subject to review for clear error. Cf. United
States v. Helmandollar, 852 F.2d 498, 501 (9th Cir. 1988)
(applying analogous federal law: "What the parties agreed to in
any given case is preeminently a question of fact, to be resolved
by the district court. . . . Accordingly, we review the district
court's findings as to the existence and terms of the alleged
plea agreement for clear error." (citations omitted)). "A plea
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agreement is essentially a contract" and is generally measured by
contract principles. See State v. Miller, 122 Hawai#i 92, 104,
223 P.3d 157, 169 (2010) (quoting State v. Adams, 76 Hawai#i 408,
412, 879 P.2d 513, 517 (1994)).
Here, the parties exchanged multiple emails and plea
documents, but the record does not reflect an agreement between
the parties on all of the essential terms of the potential plea,
in particular, the terms regarding sentencing. Cf. Balogh v.
Balogh, 134 Hawai#i 29, 40 n.7, 332 P.3d 631, 642 n.7 (2014)
("[I]t is well settled that 'there must be a meeting of the minds
on all essential elements or terms in order to create a binding
contract.'" (quoting Moss v. Am. Int'l Adjustment Co., 86 Hawai#i
59, 63, 947 P.2d 371, 375 (1997))). Hence, at the hearing on
January 31, 2022, the parties disagreed as to the meaning of
their emails and the terms of the alleged plea agreement. Under
these circumstances, the District Court found that "there [wa]s
no meeting of the minds" between the parties and thus no plea
agreement. On this record, we cannot say that the District Court
clearly erred in so ruling.3/
(2) Mekkaoui contends that the case, which was
dismissed based on Thompson, should have been dismissed with
prejudice. He argues that, alternatively, the District Court did
not make sufficient findings to dismiss the case without
prejudice.
Initially, we note that the Hawai#i Supreme Court
recently held in Mortensen-Young that HRS § 805-1 applies only to
criminal complaints used to obtain a penal summons or arrest
warrant. 152 Hawai#i at 393-95, 526 P.3d at 370-72. In other
3/
Relying on State v. Abbott, 79 Hawai#i 317, 901 P.2d 1296 (App.
1995), Mekkaoui argues that he "had reasonable grounds for relying on his
interpretation of the State's plea offer, particularly when strictly construed
in . . . Mekkaoui's favor." In Abbott, however, there was no dispute that the
parties had entered into a plea agreement under which the defendant had
entered a no-contest plea; rather, the issue was whether the State had
breached the terms of the parties' agreement by seeking a sentence that was
not part of it. 79 Hawai#i at 318-19, 901 P.2d at 1297-98. In determining
whether a breach had occurred, the court analyzed "whether the defendant ha[d]
reasonable grounds for reliance on his interpretation of the prosecutor's
promise, and whether the defendant in fact relied to his detriment on that
promise." Id. at 320, 901 P.2d at 1299. Here, in contrast, the issue is
whether there was a valid plea agreement in the first instance. Abbott is
thus inapposite.
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cases, such as the OVUII prosecutions at issue in Mortensen-
Young, Hawai#i Rules of Penal Procedure (HRPP) Rule 7 provides
the proper framework to analyze the sufficiency of complaints.
In Mortensen-Young, the supreme court held that the trial court
improperly dismissed the complaints against the appellees,
reasoning that the charging instruments had complied with HRPP
Rule 7(d), and were thus sufficient to initiate prosecutions for
OVUII. Id. at 399, 526 P.3d at 376.
Here, as in Mortensen-Young, HRS § 805-1 is
inapplicable because the Complaint was not used to obtain a penal
summons or arrest warrant. The Complaint set forth a plain and
concise statement of the essential facts, was signed by the
prosecutor, and referenced the statute that Mekkaoui allegedly
violated, as required by HRPP Rule 7(d). Therefore, the
Complaint was sufficient to initiate the subject prosecution, and
the District Court erred in dismissing the case based on
Thompson.
Nevertheless, the State did not appeal from the
Judgment, and Mekkaoui does not challenge the dismissal of the
Complaint. Rather, Mekkaoui argues only that the District Court
erred in dismissing the Complaint without (as opposed to with)
prejudice or in failing to make adequate findings to support its
decision, based primarily on the rulings in State v. Hern, 133
Hawai#i 59, 323 P.3d 1241 (App. 2013), and State v. Estencion, 63
Haw. 264, 625 P.2d 1040 (1981).
Hern and Estencion require trial courts to consider
various factors and to clearly articulate the reasons for
dismissing a case with or without prejudice under HRPP Rule 48.
See Hern, 133 Hawai#i at 63-64, 323 P.3d at 1245-46; Estencion,
63 Haw. at 268-69, 625 P.2d at 1043-44; see also State v.
Michaeledes, 152 Hawai#i 217, 223, 524 P.3d 1241, 1247 (2023)
(construing Estencion). However, Hern and Estencion appear to be
irrelevant here, because the District Court granted Mekkaoui's
motion to dismiss under Thompson, not under HRPP Rule 48. Cf.
Michaeledes, 152 Hawai#i at 223, 524 P.3d at 1247 (ruling that
Estencion and its progeny were irrelevant where the defendant
moved to dismiss for lack of jurisdiction under HRPP Rule
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12(b)(1), not under HRPP Rule 48). Mekkaoui cites no applicable
authority for the proposition that trial courts must provide a
basis for dismissing a complaint without prejudice when the
dismissal is for non-compliance with HRS § 805-1. Even were
Mekkaoui to point to such authority, a dismissal with prejudice
plainly would not be appropriate here, where HRS § 805-1 was
inapplicable and the Complaint was sufficient to initiate the
OVUII prosecution. See supra; Michaeledes, 152 Hawai#i at 223,
524 P.3d at 1247. Put another way, since the sole basis for
dismissal of the Complaint was erroneous, it would make no sense
to preclude the State from returning to court and refiling the
Complaint, if it so chose.
For these reasons, the Notice of Entry of Judgment
and/or Order and Plea/Judgment, entered on January 31, 2022, in
the District Court of the First Circuit, Honolulu Division, is
affirmed.
DATED: Honolulu, Hawai#i, May 24, 2023.
On the briefs: /s/ Katherine G. Leonard
Presiding Judge
Richard L. Holcomb
(Holcomb Law, LLLC)
for Defendant-Appellant. /s/ Keith K. Hiraoka
Associate Judge
Donn Fudo,
Deputy Prosecuting Attorney,
City & County of Honolulu, /s/ Clyde J. Wadsworth
for Plaintiff-Appellee. Associate Judge
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