Schwartz v. State. , 136 Haw. 258 ( 2015 )


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  •     ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***
    Electronically Filed
    Supreme Court
    SCWC-10-0000199
    19-NOV-2015
    09:07 AM
    IN THE SUPREME COURT OF THE STATE OF HAWAIʻI
    ---o0o---
    SANDRA KAY SCHWARTZ,
    Petitioner/Petitioner-Appellant,
    vs.
    STATE OF HAWAIʻI,
    Respondent/Respondent-Appellee.
    SCWC-10-0000199
    CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
    (CAAP-10-0000199; DC-S.P. NO. 10-1-0005; CASE NO. 2DTA-08-00292)
    November 19, 2015
    McKENNA AND POLLACK, JJ., AND CIRCUIT JUDGE KIM, ASSIGNED BY
    REASON OF VACANCY; WITH NAKAYAMA, J., CONCURRING SEPARATELY,
    WITH WHOM RECKTENWALD, C.J., JOINS
    OPINION OF THE COURT BY POLLACK, J.
    I.        INTRODUCTION
    Sandra Schwartz applied for a writ of certiorari from
    the judgment on appeal of the Intermediate Court of Appeals to
    determine whether omission of an element of a charged offense
    renders the trial court without subject-matter jurisdiction over
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    the case.    We find no deficiency of jurisdiction and affirm the
    judgment on appeal, but for the reasons stated herein.
    II.      BACKGROUND
    On February 20, 2008, the State of Hawaiʻi (State)
    filed a two-count criminal traffic complaint against Sandra
    Schwartz (Schwartz) in the District Court of the Second Circuit
    (district court).       Count One alleged commission of the offense
    of Operating a Vehicle Under the Influence of an Intoxicant
    (OVUII), in violation of Hawaiʻi Revised Statutes (HRS) § 291E-
    61(a) (2007). 1   The complaint charged Count One as follows:
    That on or about the 26th day of January, 2008, in the
    Division of Lahaina, County of Maui, State of Hawaii,
    SANDRA KAY SCHWARTZ did operate or assume actual physical
    control of a vehicle while under the influence of an
    intoxicant meaning that she was under the influence of
    alcohol in an amount sufficient to impair her normal mental
    faculties or ability to care for herself and guard against
    casualty, thereby committing the offense of Operating a
    Vehicle Under the Influence of an Intoxicant in violation
    of Section 291E61 (a) of the Hawaii Revised Statutes.
    The complaint did not allege that the offense took place on a
    public way, street, road, or highway. 2
    1
    HRS § 291E-61(a) provides, in relevant part as follows:
    (a)   A person commits the offense of operating a vehicle under
    the influence of an intoxicant if the person operates or
    assumes actual physical control of a vehicle:
    (1)   While under the influence of alcohol in an amount
    sufficient to impair the person’s normal mental
    faculties or ability to care for the person and guard
    against casualty . . . .
    2
    Count Two alleged Reckless Driving of Vehicle in violation of HRS
    § 291-2 (2007). The charge read as follows:
    (continued . . .)
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    On April 2, 2008, Schwartz pleaded guilty to the OVUII
    charge. 3   At the change of plea hearing, counsel for Schwartz
    stated, “Your Honor, we are in receipt of a written complaint.
    We waive oral reading of the written complaint.”            The court
    examined Schwartz with respect to her plea, and Schwartz
    indicated that she was aware of the procedural and substantive
    effect of her plea.      Schwartz and the State stipulated to the
    following facts: Schwartz was stopped by a police officer in
    Lāhainā; she was unable to successfully perform field sobriety
    maneuvers; and she elected to refuse testing.           Following
    recitation of these facts and completion of the guilty plea
    colloquy, the district court found Schwartz guilty of OVUII and
    imposed sentence. 4    Schwartz did not file an appeal from the
    April 2, 2008 judgment of conviction (judgment).
    (. . . continued)
    That on or about the 26th day of January, 2008, in the
    Division of Lahaina, County of Maui, State of Hawaii,
    SANDRA KAY SCHWARTZ did operate a motor vehicle recklessly
    in disregard of the safety of persons or property, thereby
    committing the offense of Reckless Driving of Vehicle in
    violation of Section 291-2 of the Hawaii Revised Statutes.
    Court minutes reflect that Count Two was amended to “Lack of Due Care,” in
    violation of Maui County Code § 10.52.010.
    3
    The Honorable Rhonda I. L. Loo presided.
    4
    The district court also accepted Schwartz’s “admittance” to the
    Lack of Due Care charge.
    The district court imposed the following sentence: Count One--
    $300 fine, $30 criminal injury fee, $100 driver’s education fee, $7 driver
    education fee, $25 neurotrauma fee, $250 drug demand reduction fee, and 90-
    day license suspension; Count Two--$100 fine, and $7 driver’s education fee.
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    Approximately two years later, this court held that
    operation of a vehicle on “a public way, street, road, or
    highway” (public road) is an attendant circumstance of the
    offense of OVUII, and therefore the public road circumstance is
    an element of the offense that must be stated in the charge.
    State v. Wheeler, 121 Hawaiʻi 383, 393, 
    219 P.3d 1170
    , 1180
    (2009).
    Based on Wheeler, Schwartz filed a petition to vacate
    and set aside the judgment under Hawaiʻi Rules of Penal Procedure
    (HRPP) Rule 40 (Rule 40 petition).        In her Rule 40 petition,
    Schwartz raised a single issue: the “complaint failed to allege
    an essential element of OVUII,” and “[a]ccordingly, [c]ount
    [o]ne of the complaint . . . was fatally defective, thereby
    conferring no subject matter[] jurisdiction to the trial court.”
    (Emphasis added).    Schwartz argued that as a consequence of the
    court’s lack of jurisdiction, the judgment as to the OVUII
    charge “is null and void as a matter of law.”          Schwartz did not
    contend that her plea was not made voluntarily and intelligently
    nor assert any other reason that her plea should be considered
    invalid.
    The State responded with the following arguments:
    Schwartz waived her jurisdictional argument by failing to raise
    it on direct appeal; even if she had not waived the argument,
    Wheeler does not apply retroactively to final judgments no
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    longer pending at the time Wheeler was decided; the complaint
    reasonably charged Schwartz with OVUII; and she was not
    prejudiced by the omission of the public-road element in the
    OVUII charge.
    In its written order denying the Rule 40 petition, the
    district court concluded that Wheeler “created a new
    constitutional rule of criminal procedure.” 5         The court noted
    that new constitutional rules of criminal procedure do not apply
    to cases that become final before the new rule is announced,
    unless the rule is within one of two categories.           The court
    concluded that the two exceptions did not apply because it was
    not (1) a rule that places a class of private conduct beyond the
    power of the State to proscribe or addresses a substantive
    categorical guarantee of the constitution or (2) a watershed
    rule of criminal procedure implicating fundamental fairness.
    Accordingly, the district court concluded that Wheeler did not
    apply retroactively and denied Schwartz’s Rule 40 petition.
    Schwartz timely appealed to the Intermediate Court of
    Appeals (ICA).    Before the ICA, Schwartz renewed her argument
    that the district court lacked jurisdiction to adjudicate the
    crime for which she was charged and also challenged the district
    5
    The Honorable Kelsey T. Kawano presided.
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    court’s conclusion that Wheeler could not be applied
    retroactively to challenge a final judgment.
    In response, the State argued the following: the
    district court correctly found that Wheeler did not have
    retroactive application; under the Motta/Wells liberal
    construction standard, 6 the complaint could reasonably be
    construed to charge a crime; and Schwartz could not show that
    she suffered prejudice.
    The ICA affirmed the district court’s order denying
    Schwartz’s Rule 40 petition in a summary disposition order,
    relying on Christian v. State, 131 Hawaiʻi 153, 
    315 P.3d 779
    (App. 2013), decided the same day.          Schwartz v. State, No. CAAP-
    XX-XXXXXXX (App. Nov. 23, 2013) (SDO) at *1.           In Christian, the
    ICA held that the Wheeler decision represented a new rule that
    did not apply retroactively.        Christian, 131 Hawaiʻi at 
    160-61, 315 P.3d at 786-87
    .      Additionally, the ICA concluded that when a
    defendant challenges the sufficiency of the charge for the first
    time on collateral review, a defendant is required to show
    exceptional circumstances in order to obtain relief.            
    Id. at 164—65,
    315 P.3d at 788—90.       Applying that test, the ICA held
    that Schwartz could not establish exceptional circumstances.
    
    Id. at 164-65,
    315 P.3d at 790-91.
    6
    See State v. Motta, 
    66 Haw. 89
    , 
    657 P.2d 1019
    (1983); State v.
    Wells, 78 Hawaiʻi 373, 
    894 P.2d 70
    (1995).
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    In her application for writ of certiorari
    (Application) to this court, Schwartz presents the threshold
    question of whether the failure of a charging instrument to
    allege an element of an offense is a jurisdictional defect that
    “fail[s] to confer subject-matter jurisdiction to the district
    court.”    Schwartz also presents two other questions: whether
    Wheeler applies retroactively to cases on collateral review, and
    whether “a defective charge under Wheeler, even if properly
    characterized as a jurisdictional defect, cannot be
    retroactively applied on collateral review.”
    III.         STANDARD OF REVIEW
    The denial of a Rule 40 petition based on the district
    court’s conclusions of law is reviewed de novo.          Coulter v.
    State, 116 Hawaiʻi 181, 184, 
    172 P.3d 493
    , 496 (2007).
    IV.       DISCUSSION
    In 2009, this court held that the fact that the
    offense of OVUII took place on a public road was an element of
    an OVUII charge.    Wheeler, 121 Hawaiʻi at 393, 
    396, 219 P.3d at 1180
    , 1183.    As noted, the OVUII charge against Schwartz, filed
    prior to the decision in Wheeler, did not allege the public-road
    element.    Thus, this court must determine whether the district
    court had jurisdiction to adjudicate the OVUII offense charged
    against her, notwithstanding the omitted element.
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    A.        Jurisdiction of the district court is conferred by statute
    Jurisdiction is defined as “the power and authority on
    the part of the court to hear and judicially determine and
    dispose of the cause pending before it.”          State v. Villados, 
    55 Haw. 394
    , 396, 
    520 P.2d 427
    , 430 (1974); Matter of Keamo, 3 Haw.
    App. 360, 366, 
    650 P.2d 1365
    , 1370 (1982) (same); Sherman v.
    Sawyer, 
    63 Haw. 55
    , 57, 
    621 P.2d 346
    , 348 (1980) (same); see
    also Black’s Law Dictionary 980 (10th ed. 2014) (defining
    jurisdiction as a “court’s power to decide a case or issue a
    decree”).
    “Jurisdiction of the offense charged and of the person
    of the accused is a fundamental and indispensable prerequisite
    to a valid prosecution.” 7      State v. Meyers, 
    72 Haw. 591
    , 593, 
    825 P.2d 1062
    , 1064 (1992).       “[J]urisdiction depends upon the state
    of affairs existing at the time it is invoked; once having
    attached, it . . . is retained by a court until fully exhausted
    by the entry of a final judgment.”          
    Villados, 55 Haw. at 397
    ,
    520 P.2d at 430.      It is not lost by subsequent events, 
    id., 7 Jurisdiction
    over the person of the accused exists, inter alia,
    when the person’s conduct or the conduct of another for which the person is
    legally accountable occurs within this State or the result constituting an
    element of the offense occurs within this State. HRS § 701-106(1)(a); see
    also HRS § 701-106(1)(b)-(f). Schwartz has not argued that personal
    jurisdiction was lacking in this case.
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    unless a statute provides otherwise. 8        “[J]urisdiction is not a
    light bulb which can be turned off or on during the course of
    the trial.”    
    Id. (quoting Silver
    Surprize, Inc. v. Sunshine
    Mining Co., 
    445 P.2d 334
    , 336 (Wash. 1968)) (internal quotation
    marks omitted).
    Lack of subject-matter jurisdiction means that a court
    is without power to decide the merits of a case. 9           State v.
    Brandimart, 
    68 Haw. 495
    , 496, 
    720 P.2d 1009
    , 1010 (1986).
    However, “[a] court always has jurisdiction to determine whether
    it has jurisdiction over a particular case.”           
    Id. “[Q]uestions regarding
    subject matter jurisdiction may be raised at any stage
    of a cause of action.”      Adams v. State, 103 Hawaiʻi 214, 221, 
    81 P.3d 394
    , 401 (2003) (quoting Amantiad v. Odum, 90 Hawaiʻi 152,
    159, 
    977 P.2d 160
    , 167 (1999)).        If a court lacks jurisdiction
    to hear a matter, any decision on the merits of the “case” is,
    by definition, null and void.        
    Id. Thus, subject-matter
    jurisdiction is fundamental to a
    court’s power to act on the merits of a case from the outset of
    8
    See, e.g., HRS § 583A-202 (2002) (describing the exclusive,
    continuing jurisdiction of a court over a child-custody determination until
    two alternative events transpire).
    9
    “Subject-matter jurisdiction” is used in this opinion when
    generally referring to “the power and authority on the part of the court to
    hear and judicially determine and dispose of the cause pending before it.”
    State v. Villados, 
    55 Haw. 394
    , 396, 
    520 P.2d 427
    , 430 (1974). “Criminal
    jurisdiction” is used when referring to the subject-matter jurisdiction of
    the district courts over criminal cases, as defined by Hawaii Revised
    Statutes (HRS) chapter 604.
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    the action; it may be challenged at any time, but jurisdiction
    does not vacillate during the course of a case depending on the
    particulars of the matter as it develops.
    1.      Criminal jurisdiction of the district courts
    The criminal jurisdiction of our courts originates in
    our constitution and is defined by the legislature.
    The judicial power of the State shall be vested in one
    supreme court, one intermediate appellate court, circuit
    courts, district courts and in such other courts as the
    legislature may from time to time establish. The several
    courts shall have original and appellate jurisdiction as
    provided by law . . . .
    Haw. Const. art. VI, § 1 (emphasis added).              In accordance with
    the constitution, the legislature has established the criminal
    jurisdictional parameters of the circuit courts and the district
    courts by statute.         See HRS § 603-21.5 (prescribing the
    jurisdiction of the circuit courts as including “[c]riminal
    offenses cognizable under the law of the State, committed within
    their respective circuits”); HRS § 604-8 (setting forth the
    narrower criminal jurisdiction of the district courts). 10
    HRS chapter 604 defines the criminal jurisdiction of
    the district courts. 11        “District courts shall have jurisdiction
    10
    “An offense defined by this Code or by any other statute of
    this State for which a sentence of imprisonment is authorized constitutes a
    crime.” HRS § 701-107.
    11
    See also Haw. Const. art. I, § 14 (“In all criminal prosecutions,
    the accused shall enjoy the right to a speedy and public trial by an
    impartial jury of the district wherein the crime shall have been committed,
    which district shall have been previously ascertained by law . . . .”
    (emphasis added)).
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    of, and their criminal jurisdiction is limited to, criminal
    offenses punishable by fine, or by imprisonment not exceeding
    one year whether with or without fine.”          HRS § 604-8 (2001).
    District courts are empowered “to try without a jury, and to
    render judgment in all cases of criminal offenses coming within
    their respective jurisdictions.”        HRS § 604-9. 12    Additionally,
    the district courts are conferred authority to adjudicate
    violation of ordinances enacted by the counties. 13
    In addition to defining district court criminal
    jurisdiction by the penalties that may be imposed for the
    offense, the legislature specifies that the district courts have
    jurisdiction of all criminal offenses “cognizable” under state
    law that occur within their respective circuits, subject to the
    penalties limitations set forth in HRS § 604-8: “The several
    district courts shall have jurisdiction, except as otherwise
    provided, of all criminal offenses cognizable under the laws of
    the State, committed within their respective circuits or
    transferred to them for trial by change of venue from some other
    district court.”     HRS § 604-11.5 (1993) (emphasis added); see
    12
    The district court’s criminal jurisdiction over a case terminates
    when a defendant exercises a right to jury trial. HRS § 604-8(a); see infra
    note 15.
    13
    “Jurisdiction is conferred upon the district courts to try all
    cases arising from the violation of ordinances in force in the counties and
    to impose the penalties in such ordinances prescribed for such offenses in
    like manner as their original jurisdiction is exercised under the general
    law.” HRS § 604-11 (1993).
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    also HRS § 603-21.5 (providing that the circuit courts have
    jurisdiction of criminal offenses “cognizable under the laws of
    the State” (emphasis added)).
    Cognizable means “[c]apable of being known or
    recognized,” or “[c]apable of being judicially tried or examined
    before a designated tribunal; within the court’s jurisdiction.”
    Black’s Law Dictionary 316 (10th ed. 2014).           “A court has
    subject matter jurisdiction over a case if it is authorized to
    take cognizance of, try, and determine a case involving that
    subject matter.”     State v. Alagao, 77 Hawaiʻi 260, 262, 
    883 P.2d 682
    , 684 (App. 1994) (citing Coleman v. Coleman, 
    5 Haw. 300
    (Haw. Kingdom 1885)). 14
    Therefore, the criminal jurisdiction of the district
    courts is defined and limited by grant of the legislature.              As
    defined by HRS Chapter 604, the jurisdiction of the district
    14
    “Cognizable” has been applied by the United States Supreme Court
    in addressing a court’s jurisdiction. In Lamar v. United States, 
    240 U.S. 60
    (1916), Justice Holmes stated that “nothing can be clearer than that the
    district court, which has jurisdiction of all crimes cognizable under the
    authority of the United States . . . , acts equally within its 
    jurisdiction.” 240 U.S. at 64-65
    (emphases added). Similarly, in United States v. Williams,
    
    341 U.S. 58
    (1951), the Court used the concept of cognizable to distinguish
    between cases where subject-matter jurisdiction existed versus where it did
    not. Where jurisdiction was lacking, the Court found that “[t]he kind of
    judicial controversies presented for adjudication . . . were [sic] not
    cognizable by the respective 
    courts.” 341 U.S. at 67
    . In the case before
    it, however, the Court ruled that the district court had jurisdiction because
    federal statutes independently prohibited the conduct at issue: “We have a
    court empowered to take cognizance of the crime . . . and decide the issues
    under that statute.” 
    Id. at 68.
    Under Lamar and Williams, jurisdiction is
    the power granted by law to adjudicate crimes defined by other law; such
    crimes are said to be “cognizable” by the adjudicating entity.
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    courts encompasses crimes established by law that are punishable
    by fine or by fine and imprisonment of not more than a year, and
    that occur within the court’s respective circuit or that are
    properly transferred by a change of venue.            If the requirements
    of HRS Chapter 604 are satisfied, jurisdiction of the district
    court is invoked by the charging instrument.
    2.        The OVUII charge invoked the jurisdiction of the district
    court
    The complaint charged Schwartz with OVUII under HRS §
    291E-61(a). 15     Count One of the complaint stated as follows:
    That on or about the 26th day of January, 2008, in the
    Division of Lahaina, County of Maui, State of Hawaii,
    SANDRA KAY SCHWARTZ did operate or assume actual physical
    control of a vehicle while under the influence of an
    intoxicant meaning that she was under the influence of
    alcohol in an amount sufficient to impair her normal mental
    faculties or ability to care for herself and guard against
    casualty, thereby committing the offense of Operating a
    Vehicle Under the Influence of an Intoxicant in violation
    of Section 291E-61 (a) of the Hawaii Revised Statutes.
    The charge indicated the location and date of the
    offense, the defendant, and the statute that Schwartz allegedly
    violated.      The charged OVUII offense is “known” and recognized
    as a crime under HRS § 291E-61; the offense was punishable by a
    15
    At the time of Schwartz’s offense, HRS § 291E-61 provided the
    following as a sentence for a first offense: fourteen hours of a “substance
    abuse rehabilitation program,” a 90-day suspension of license, and a $25
    neurotrauma special fund surcharge. HRS § 291E-61 (2007). In addition, the
    court could impose one or more of the following: 72 hours of community
    service, “not less than forty-eight hours and not more than five days of
    imprisonment,” and a “fine of not less than $150 but not more than $1,000.”
    
    Id. Based on
    the maximum potential sentence, Schwartz did not have the right
    to a jury trial. See State v. Nakata, 76 Hawai‘i 360, 367, 
    878 P.2d 699
    , 706
    (1994).
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    fine and by imprisonment not exceeding one year; and the offense
    was alleged to have occurred in Lāhainā, which is within the
    Second Circuit.       The required components of HRS §§ 604-8 and
    604-11.5 were thus met.        Consequently, the district court had
    subject-matter jurisdiction over the January 26, 2008 OVUII
    charge; that is, the district court had the power to hear and
    judicially dispose of the OVUII charge brought against Schwartz.
    Count One also set forth the elements of the crime as
    defined by HRS § 291E-61(a)(1), but it did not state that the
    offense took place on a public road.           Thus, the charge failed to
    allege an element of the crime of OVUII as established by HRS
    § 291E-61(a)(1).
    3.      Failure to charge an element does not deprive a court of
    subject-matter jurisdiction
    This court has implicitly rejected the proposition
    that a charging instrument that fails to allege an element or
    the requisite mens rea of an otherwise cognizable crime renders
    the trial court without criminal jurisdiction.             In State v.
    Davis, 133 Hawaiʻi 102, 
    324 P.3d 912
    (2014), we considered
    whether an appellate court must address a defendant’s express
    claim of insufficiency of evidence prior to remanding a case for
    dismissal because of a defective charge.            
    Id. at 118,
    324 P.3d
    at 928.     The defendant in that case appealed his conviction
    following trial, contending, inter alia, that (1) the charge was
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    defective because the State failed to allege a culpable state of
    mind as required and (2) there was insufficient evidence to
    support the conviction.       
    Id. at 110,
    324 P.3d at 920.         The ICA
    agreed that the charge was defective and accordingly remanded
    the case to the district court to dismiss the case without
    prejudice; however, the ICA did not consider the sufficiency of
    the evidence.     
    Id. The defendant
    sought review in this court of
    the ICA’s failure to consider the sufficiency of the evidence,
    arguing that double jeopardy barred retrial if the evidence
    adduced at trial was insufficient to sustain the conviction.
    
    Id. We held
    that an appellate court is required to address
    a defendant’s expressed claim of insufficiency of the evidence
    before remanding a case for dismissal based on a defective
    charge.    
    Id. at 120,
    324 P.3d at 930.        The holding in Davis
    treated a charge that is deficient for failing to allege a state
    of mind the same as one that fails to allege an element:              “A
    defective or faulty indictment or charge,” whether based on a
    failure to allege the mens rea or based upon the omission of an
    element, is a “trial error.”        
    Id. at 116
    n.14, 324 P.3d at 926
    
    n.14 (internal quotation marks omitted).           The Davis court noted,
    “It is well-settled that, even where this court finds trial
    error, challenges to the sufficiency of the evidence must always
    be decided on appeal.”       
    Id. at 116
    , 324 P.3d at 926 (emphasis
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    altered) (quoting State v. Kalaola, 124 Hawaiʻi 43, 59, 
    237 P.3d 1109
    , 1125 (2010)) (internal quotation marks omitted).
    Therefore, Davis’s treatment of trial error in relation to a
    flawed charge did not depend upon the nature of the charging
    defect.
    The primary holding of Davis--that the appellate court
    must consider the sufficiency of the evidence when it is raised
    on appeal prior to remanding a case for dismissal as a result of
    a defective charge--is incompatible with treating a defective
    charge as depriving the court of the power to hear the case.
    It is axiomatic that if a lower court is found to have
    lacked jurisdiction, we have jurisdiction on appeal, not of
    the merits, but for the purpose of correcting an error in
    jurisdiction. If an insufficient charge constituted a
    jurisdictional defect, then this court could not evaluate
    whether sufficient evidence existed before the trial court
    inasmuch as it would not have jurisdiction over the merits
    of the case.
    
    Id. at 123
    n.2, 
    324 P.3d 933
    n.2 (Acoba, J., concurring)
    (alteration omitted) (emphasis added and omitted) (quoting In re
    Rice, 
    68 Haw. 334
    , 
    713 P.2d 426
    (1986)) (internal quotation
    marks omitted).    Therefore, Davis is irreconcilable with a rule
    that a court is deprived of subject-matter jurisdiction by a
    charging instrument that fails to allege a culpable state of
    mind or an element of the crime charged.         If the court’s
    jurisdiction had been abrogated by the defective charge, the
    trial proceedings would be void and the appellate court would be
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    unable to consider whether the evidence was sufficient to
    support a conviction.
    4.    Prior decisions are generally consistent with Davis
    This court’s prior decisions are generally consistent
    with a rule that a charging instrument that fails to allege
    either the mens rea or an element of a crime, while potentially
    a significant violation of the defendant’s right to due process,
    does not deprive the court of its power to adjudicate a crime
    over which the legislature has granted the court jurisdiction.
    In State v. Jendrusch, 
    58 Haw. 279
    , 
    567 P.2d 1242
    (1977), this court characterized an insufficient charge as a
    “failure to state an offense” and characterized a conviction
    based on such a charge as a “denial of due process.”           
    Id. at 281,
    567 P.2d at 1244.     “Not only does [the complaint] fail to
    state an offense, but it also fails to meet the requirement that
    an accused must be informed of the ‘nature and cause of the
    accusation’ against him.”      
    Id. (quoting Territory
    v. Yoshimura,
    
    35 Haw. 324
    , 327 (Haw. Terr. 1940)).        Despite finding the charge
    “fatally defective,” 
    id., Jendrusch does
    not describe the
    defective charge as precluding the subject-matter jurisdiction
    of the court.   Rather, the principal error recognized by
    Jendrusch was that the complaint failed to state the requisite
    intent and an element of conduct of the offense charged.            
    Id. at 281-82,
    567 P.2d at 1244-45 (noting that the complaint failed to
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    allege the prescribed intent and that the relevant speech was
    likely to provoke a violent response).         Therefore, Jendrusch
    addressed the defendant’s lack of notice of the nature and cause
    of the charge against him and not the power of the court to hear
    the case.
    In State v. Elliott, 77 Hawaiʻi 309, 
    884 P.2d 372
    (1994), this court also did not use the term “jurisdiction”
    regarding a deficient charging instrument.         The State failed to
    allege that the defendant intentionally prevented a police
    officer from effectuating an arrest with respect to a resisting
    arrest charge.    Also, in regard to an assault against a police
    officer charge, the State did not allege that the assault was
    against a police officer in the line of duty.          
    Id. at 311,
    884
    P.2d at 374.
    Citing Jendrusch, Elliott states that “the failure to
    allege an essential element of an offense ma[kes] a charge
    ‘fatally defective,’” 
    id., and “constitute[s]
    a denial of due
    process,.” 
    id. (quoting Jendrusch,
    58 Haw. at 
    281, 567 P.2d at 1244
    .   Elliott then examined the charge to determine if it could
    reasonably be construed to allege an included crime.           
    Id. at 312,
    884 P.2d at 375.     The court concluded that the assault
    against a police officer charge could be construed to charge
    assault in the third degree but that the resisting arrest charge
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    could not be construed to charge an included offense.            
    Id. at 313,
    884 P.2d at 376.
    Accordingly, the case was remanded for entry of
    conviction of assault in the third degree and for dismissal of
    the resisting arrest charge.      
    Id. If the
    defective charge had
    deprived the trial court of its power to adjudicate the assault
    offense, there would have been no basis on which this court
    could direct the trial court to enter conviction for the lesser
    included offense--the conviction for assault against a police
    officer would simply have been a nullity and the court would
    have vacated the judgment and remanded the case for dismissal.
    Therefore, as Elliott addressed the merits of the assault charge
    and examined relevant facts of the case, it is consistent with
    the rule that a charge, defective for failure to allege an
    element of an offense or a requisite mens rea, does not deprive
    the court of subject-matter jurisdiction conferred by statute.
    In State v. Israel, 78 Hawaiʻi 66, 
    890 P.2d 203
    (1994),
    the State appealed the circuit court’s dismissal of a charge of
    the use of a firearm in the commission of a felony.           The
    defendant had successfully moved to have the charge dismissed
    for failure to allege the underlying felony.          
    Id. at 69,
    890
    P.2d at 306.   The court held that the failure of the State to
    allege the predicate felony resulted in a failure to adequately
    inform the defendant of the nature and cause of the crime
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    charged, in violation of article I, section 14 of the Hawaiʻi
    Constitution.     
    Id. at 71,
    890 P.2d at 308.       The Israel court
    concluded that “the principle of fundamental fairness, essential
    to the concept of due process of law, dictates that the
    defendant in a criminal action should not be relegated to a
    position from which he or she must speculate as to what crime he
    or she will have to meet in defense.”         
    Id. (alterations omitted)
    (quoting Kreck v. Spalding, 
    721 F.2d 1229
    , 1233 (9th Cir.))
    (internal quotation marks omitted); see also 
    id. at 73—75,
    890
    P.2d at 310—12 (characterizing a defective charge as a failure
    of due process and citing Elliott, Jendrusch, and Territory v.
    Yoshimura, 
    35 Haw. 324
    , 328 (Haw. Terr. 1940)). 16          Therefore, the
    court affirmed the dismissal.        
    Id. at 76,
    890 P.2d at 313.
    Israel does not refer to jurisdiction in discussing the failure
    of the charging document; thus, the decision is also consistent
    16
    In Yoshimura, the court held that a grand jury indictment was
    sufficient if the information clearly and distinctly sets
    forth the offense charged in ordinary and concise language,
    in such manner as to enable a person of common
    understanding to know what is intended, and with such a
    degree of certainty as to enable the court to pronounce
    judgment of conviction according to the right of the case.
    
    Yoshimura, 35 Haw. at 331
    (internal quotation mark omitted). The court found
    that one charge was legally insufficient for “merely” using “the language of
    the statute and [fell] short of apprising the defendant of the nature and
    cause of the accusation against him as required by the sixth amendment to the
    Constitution of the United States.” 
    Id. at 327-28.
    The court found that
    another charge was not defective and accordingly reinstated the indictment
    against the defendant but only on the sufficient charge. 
    Id. at 332.
    The
    decision does not suggest any impairment of jurisdiction.
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    with the rule that a charging instrument that fails to allege an
    element of the crime charged does not deprive a court of its
    subject-matter jurisdiction.
    In State v Sprattling, 99 Hawaiʻi 312, 317, 
    55 P.3d 276
    , 282 (2002), the defendant was orally charged with assault
    in the third degree, but the State failed to allege “bodily
    injury,” alleging only “injury” instead.            
    Id. at 317,
    55 P.3d at
    281.    Sprattling describes a defective charge as “encroach[ing]
    upon a defendant’s constitutional rights,” but not as
    encroaching upon the power of the court to adjudicate the crime
    charged.     
    Id. at 318,
    55 P.3d at 282.        “The onus is on the
    prosecution to inform the accused fully of the accusations
    presented against him or her because [of] ‘the principle of
    fundamental fairness[] essential to the concept of due process
    of law . . . .’”       
    Id. (alteration omitted)
    (quoting Israel, 78
    Hawaiʻi at 
    71, 890 P.2d at 308
    ).          The majority in Sprattling did
    not use the term “jurisdiction” in reference to the alleged
    defect of the charge. 17       This decision is therefore also
    consistent with the rule that a charge that omits an element of
    an offense is a trial error but not one that vitiates the
    jurisdiction of the court granted by statute.
    17
    But see Sprattling, 99 Hawaiʻi at 
    327, 55 P.3d at 291
    (Levinson,
    J., dissenting).
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    In State v. Nesmith, 127 Hawaiʻi 48, 
    276 P.3d 617
    (2012), this court again reviewed the sufficiency of a charge
    and did not describe an insufficient charge in terms of
    jurisdiction.     
    Id. at 52,
    276 P.3d at 621.       The defendants in
    Nesmith were charged with OVUII under HRS § 291E-61(a)(1) and
    (a)(3), but challenged their convictions on the grounds that the
    charge in their respective cases failed to allege the mens rea.
    This court determined that under HRS § 291E-61(a)(1), the
    “sufficient to impair” alternative of the offense, 18 the State
    was required to prove a culpable state of mind that must be
    alleged in the complaint.       
    Id. However, under
    HRS § 291E-
    61(a)(3), the court determined that the alternative of “with .08
    or more grams of alcohol” per two hundred ten liters of breath
    was a strict liability offense that did not require the State to
    prove a culpable state of mind.        
    Id. at 53,
    276 P.3d at 622.
    Thus, as the charges relating to the HRS § 291E-61(a)(3)
    alternative did not require the State to allege the mens rea,
    the decision in Nesmith upheld the convictions of both
    18
    HRS § 291E-61(a) contains four subsections delineating forms of
    conduct or circumstances that comprise the offense of OVUII: (1) while under
    the influence of alcohol in an amount sufficient to impair the person’s
    normal mental faculties or ability to care for the person and guard against
    casualty; (2) while under the influence of any drug that impairs the person’s
    ability to operate the vehicle in a careful and prudent manner; (3) with .08
    or more grams of alcohol per two hundred ten liters of breath; or (4) with
    .08 or more grams of alcohol per one hundred milliliters or cubic centimeters
    of blood. HRS § 291E-61(a). Conviction of the single offense of OVUII under
    HRS § 291E–61(a) can be based on any, or any combination, of the subsections.
    Nesmith, 127 Hawaiʻi at 50 
    n.5, 276 P.3d at 619
    n.5.
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    defendants, but the court also concluded that the respective
    charges failed to allege the requisite state of mind for the
    “sufficient to impair” alternative under HRS § 291E-61(a)(1).
    
    Id. at 61,
    276 P.3d at 630.
    As is significant in the current context, Nesmith did
    not describe the failure to allege the mens rea as a defect that
    deprived the court of its subject-matter jurisdiction.            Instead,
    the decision describes the defect as “a failure to state an
    offense, and a conviction based upon it cannot be sustained, for
    that would constitute a denial of due process.”          
    Id. at 53,
    276
    P.3d at 622.   Thus, Nesmith is consistent with the rule that a
    charge that fails to allege the requisite mens rea does not
    deprive the court of subject-matter jurisdiction.
    Similarly, in State v. Apollonio, 130 Hawaiʻi 353, 358,
    
    311 P.3d 676
    , 681 (2013), this court considered the sufficiency
    of an excessive speeding charge that failed to allege a culpable
    state of mind.    Apollonio described the insufficient charge not
    as a defect that deprives a court of its subject-matter
    jurisdiction, but as a denial of due process.          “[W]e adhere to
    this core principle: A charge that fails to charge a requisite
    state of mind cannot be construed reasonably to state an offense
    and thus the charge is dismissed without prejudice because it
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    violates due process.” 19     
    Id. at 359,
    311 P.3d at 682 (citing
    Elliott, 77 Hawaii at 
    313, 884 P.2d at 376
    ; Nesmith, 127 Hawaii
    at 
    56, 276 P.3d at 625
    ).       Therefore, Apollonio is also
    consistent with the rule that a charge that fails to allege the
    mens rea or an element of a crime is a due process violation,
    but such omission does not eliminate a court’s jurisdiction
    established by statute over a cognizable criminal offense.
    While the majority of our cases have not treated a
    charge that omits an element or the requisite mens rea as a
    defect that eliminates a court’s subject-matter jurisdiction,
    two cases have characterized such defects as jurisdictional
    flaws.   These cases state that the defective charge is a
    violation of due process and deprives the court of
    “jurisdiction.”     However, both cases appear not to have fully
    applied a subject-matter jurisdiction analysis as reflected in
    the disposition or other rulings rendered in those cases.              See
    Adams, 103 Hawaiʻi at 
    220-21, 81 P.3d at 400-01
    (“[J]urisdiction
    19
    The majority held that the insufficiency of the charge required
    that it be dismissed without prejudice. 
    Id. at 358,
    311 P.3d at 681. The
    majority opinion did not undertake an analysis of the jurisdiction of the
    trial court. The minority, however, analyzed the defendant’s argument that
    the insufficient charge deprived the court of jurisdiction and concluded that
    “an insufficient charge does not constitute a jurisdictional defect.”
    Apollonio, 130 Hawaiʻi at 
    368, 311 P.3d at 691
    (Recktenwald, C.J., concurring
    and dissenting).
    The minority would have found no error on the insufficient charge
    issue, but concurred in the result that remanded the case for a new trial
    based on other grounds reached by the majority. 
    Id. at 364,
    311 P.3d at 687
    (Recktenwald, C.J., concurring and dissenting).
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    of the offense charged and of the person of the accused is a
    fundamental and indispensable prerequisite to a valid
    prosecution.”    (citing State v. Meyers, 
    72 Haw. 591
    , 593, 
    825 P.2d 1062
    , 1064 (1992))).
    In State v. Cummings, 101 Hawaiʻi 139, 
    63 P.3d 1109
    (2003), a defendant charged with OVUII argued “that the
    complaint failed to allege he was under the influence of
    intoxicating liquor ‘in an amount sufficient to impair the
    person’s normal mental faculties or ability to care for oneself
    and guard against casualty.’”       101 Hawaiʻi at 
    142, 63 P.3d at 1112
    (emphasis deleted) (quoting HRS § 291-4(a)(1) (Supp.
    1999)).   The Cummings court agreed that the complaint was
    “fatally defective” and stated that “the district court lacked
    subject matter jurisdiction to preside over the prosecution’s
    DUI case against [the defendant].”         
    Id. at 145,
    63 P.3d at 1115.
    Therefore, Cummings concluded that the prosecution’s case-in-
    chief “was a nullity.”     
    Id. The disposition
    in Cummings, however, indicates that
    the case was decided on its merits.        In regard to the defective
    charge, the Cummings court reversed the conviction and sentence.
    
    Id. at 141,
    63 P.3d at 1111; see also 
    id. at 145,
    63 P.3d at
    1116.   To “reverse” is defined as “end[ing] the litigation on
    the merits.”    Hawaiʻi Rules of Appellate Procedure Rule 35(e)
    (2010) (emphasis added).      In order for the disposition in
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    Cummings to be consistent with a theory that a charge failing to
    allege an element of the offense deprives the court of
    jurisdiction, the charge should have been dismissed or the case
    remanded to the lower court for dismissal. 20
    In State v. Walker, 126 Hawaiʻi 475, 
    273 P.3d 1161
    (2012), the court examined the conviction of the defendant for
    habitually operating a vehicle under the influence of an
    intoxicant (habitual offense).        
    Id. at 478,
    273 P.3d at 1164.
    The State failed to allege an element of the crime, namely, that
    the defendant was convicted of OVUII three or more times within
    ten years.    
    Id. at 486,
    273 P.3d at 1172.        Walker states that “a
    charge must sufficiently allege an offense in order to properly
    confer jurisdiction upon the presiding court.”           
    Id. at 489,
    273
    P.3d at 1175).     The Walker decision concluded that the lack of
    subject-matter jurisdiction was fatal to the original charge.
    
    Id. at 492
    n.26, 273 P.3d at 1178 
    n.26.
    20
    Cummings cited to Territory v. Gora, 
    37 Haw. 1
    (Haw. Terr. 1944),
    as support for its conclusion that a charge that does not state all the
    essential elements of an offense contains a jurisdictional defect. Cummings,
    101 Hawaiʻi at 
    142, 63 P.3d at 1112
    . However, a contrasting analysis is also
    evident in Gora, in which the court characterized the failure to state an
    offense in a charge as a “jurisdictional 
    point.” 37 Haw. at 6
    . The court
    concluded that the defendant did not argue that the charge did not state an
    offense and cited no authorities that would have supported such a contention.
    
    Id. Consequently, the
    Gora court concluded that the defendant had abandoned
    the jurisdictional issue, but the court nevertheless found that the charge
    was sufficient. 
    Id. As lack
    of jurisdiction is not subject to abandonment
    or waiver, Adams, 103 Hawaiʻi at 
    221, 81 P.3d at 401
    , the determination that
    the charge was sufficient is in conflict with a rule that a deficient
    indictment is a “jurisdictional point.”
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    However, Walker also determined that lack of
    jurisdiction over the habitual offense could not be “cured” by
    remand to the lower court to enter judgment under a lesser
    included OVUII offense because the charge for the habitual
    offense failed to allege the public-road element that an OVUII
    charge would have required.       
    Id. at 492
    , 273 P.3d at 1178.         The
    analysis in Walker seemingly indicates that, while jurisdiction
    may be lacking for a charged offense, it might nonetheless be
    present for a lesser included offense.          But if jurisdiction is
    truly absent, the court is without authority to allow the
    prosecution to proceed upon a lesser included offense.
    Further, the Walker opinion went on to analyze the
    defendant’s argument that statements to a police officer and the
    results of a field sobriety test should have been suppressed. 21
    
    Id. at 492
    , 273 P.3d at 1178.        Under the rule that every
    judgment on the merits in a proceeding is invalid if it is later
    determined that the court lacked jurisdiction, 
    Meyers, 72 Haw. at 593
    , 825 P.2d at 1064, the question of whether evidence was
    properly admitted by the trial court was not subject to
    21
    Walker found that “where there is a wealth of overwhelming and
    compelling evidence tending to show the defendant guilty beyond a reasonable
    doubt, . . . errors in the admission or exclusion of evidence are deemed
    harmless.” 
    Id. at 493,
    273 P.3d at 1178 (alteration omitted) (quoting State
    v. Toyomura, 80 Hawaii 8, 27, 
    904 P.2d 893
    , 912 (1995)) (internal quotation
    marks omitted).
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    appellate review once the Walker court ostensibly determined
    that jurisdiction was lacking. 22
    As treatment of the merits of a case by a trial or
    appellate court is inconsistent with a lack of subject-matter
    jurisdiction, Cummings and Walker appear not to have fully
    applied a subject-matter jurisdiction analysis.           In any event,
    our more recent decisions in Davis, Apollonio, and Nesmith have
    implicitly rejected an approach in which a charge, information,
    or indictment that fails to allege either the requisite mental
    22
    It is noted that the statement in State v. Morin, 
    71 Haw. 159
    ,
    
    785 P.2d 1316
    (1990), that “[g]enerally, a guilty plea . . . precludes a
    defendant from later asserting any nonjurisdictional claims” but that “the
    defendant may still challenge the sufficiency of the indictment or other like
    defects bearing directly upon the government’s authority to compel the
    defendant to answer to charges in 
    court,” 71 Haw. at 162
    , 785 P.2d at 1318
    (emphasis added), could be construed to suggest that a charging instrument
    that fails to allege an element or the requisite mens rea renders the trial
    court without jurisdiction. However, the charging instrument in Morin was
    not deficient; it did not fail to allege an element or the requisite mens
    rea. Further, the authorities cited by Morin do not appear to assert that a
    charge that fails to allege an element deprives the court of jurisdiction,
    see 
    id. (citing 1A
    Charles Alan Wright et al., Fed. Prac. & Proc. Crim. § 175
    (1969)), or did not involve a deficient charging instrument, see State v.
    Lerner, 
    551 P.2d 553
    (Ariz. 1976). Thus, Morin does not provide authority
    for the proposition that a charging instrument failing to charge an element
    of the offense invariably deprives the court of jurisdiction. Cases that
    cite Morin’s language regarding challenges to the sufficiency of the
    indictment do not discuss charging instruments that omit an element or the
    mens rea of an offense, see Adams, 103 Hawaiʻi at 
    224, 81 P.3d at 404
    (defect
    in indictment alleging crimes outside the period of the statute of limitation
    was nonjurisdictional), or do not involve a defective indictment, see State
    v. Rauch, 94 Hawaiʻi 315, 316, 
    13 P.3d 324
    , 325 (2000) (jurisdictional issues
    raised on appeal unrelated to sufficiency of charging instrument); State v.
    Dudoit, 90 Hawaiʻi 262, 263, 
    978 P.2d 700
    , 701 (1999) (appeal of a sentence).
    Accordingly, Morin is more appropriately construed to mean that a
    defendant, who has pled guilty or nolo contendere, is not barred from
    challenging the sufficiency of the charging instrument if the alleged defect
    goes to the subject-matter jurisdiction of the court. See infra note 42 for
    a non-exhaustive list of defects in a charging instrument that are
    jurisdictional in nature.
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    state or an element of the offense deprives a trial court of
    subject-matter jurisdiction.        To the extent that Cummings and
    Walker proceeded upon this premise, they have been superseded,
    and their rulings as to subject-matter jurisdiction are no
    longer controlling.
    B.      Under federal law, an omission of an element from a charge
    does not deprive the court of jurisdiction
    Recently decided federal law is consistent with the
    decisions of this court as reflected by Jendrusch and subsequent
    cases such as Nesmith, Apollonio, and Davis.
    In United States v. Cotton, 
    535 U.S. 625
    (2002), the
    United States Supreme Court rejected the contention that a
    charging instrument that failed to allege an element of the
    crime “deprive[s] a court of its power to adjudicate” a criminal
    case.      
    Id. at 630.
      Following a jury trial, the defendants were
    convicted of drug charges under an indictment that did not
    allege sufficient quantities of contraband that would support
    enhanced penalties.      
    Id. at 628.
       Nonetheless, the trial court
    applied the enhanced penalties when imposing sentence. 23            
    Id. On review,
    the court of appeals vacated the enhanced sentences due
    23
    The Court noted that the imposition of the enhanced sentences was
    in violation of Apprendi v. New Jersey, 
    530 U.S. 466
    (2000). Cotton, 535 U.S
    at 632. However, as the defendants in Cotton had neglected to object to the
    omission of enhancement language in the indictment during the sentencing
    proceeding, the Court reviewed the sentences for plain error. 
    Id. No error
    was found as the Court concluded that the evidence admitted at trial
    overwhelmingly demonstrated a sufficient quantity of contraband to support
    the enhanced penalties. 
    Id. - 29
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    ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***
    to lack of jurisdiction: “an indictment setting forth all the
    essential elements of an offense is both mandatory and
    jurisdictional”; thus, “a court is without jurisdiction to . . .
    impose a sentence for an offense not charged in the indictment.”
    
    Id. at 629
    (emphasis omitted) (quoting United States v. Cotton,
    
    261 F.3d 397
    , 404-05 (4th Cir. 2001)) (internal quotation mark
    omitted).
    The Supreme Court reversed, expressly overruling its
    decision in Ex parte Bain, 
    121 U.S. 1
    (1887), “the progenitor”
    of the view that a defective indictment necessarily deprives a
    court of jurisdiction.      
    Cotton, 535 U.S. at 629
    –31.          The Court
    found that Bain was “a product of an era” that “led to a
    somewhat expansive notion of ‘jurisdiction,’” which was “more a
    fiction than anything else.”        
    Id. at 629
    -30 (quoting Custis v.
    United States, 
    511 U.S. 485
    , 494 (1994); Wainwright v. Sykes,
    
    433 U.S. 72
    , 79 (1977)) (internal quotation marks omitted).                 The
    Court indicated that the nineteenth century “concept of
    jurisdiction is not what the term ‘jurisdiction’ means today,
    i.e., ‘the courts’ statutory or constitutional power to
    adjudicate the case.’”      
    Id. at 630
    (emphasis added and
    omitted). 24   “This latter concept of subject-matter jurisdiction,
    24
    The historical reason for the expansive view of   jurisdiction was
    explained by the Cotton Court, which characterized Ex parte   Bain as “a
    product of an era in which this Court’s authority to review   criminal
    convictions was greatly circumscribed.” Cotton, 535 U.S at    629. It could
    (continued . . .)
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    because it involves a court’s power to hear a case, can never be
    forfeited or waived.”      
    Id. To explain
    the difference between a “defect” that
    might deprive a court of subject-matter jurisdiction and one
    that would not, the Cotton Court cited Lamar v. United States,
    
    240 U.S. 60
    (1916), in which the Court rejected the claim that
    “the court had no jurisdiction because the indictment does not
    charge a crime against the United States.”          
    Cotton, 535 U.S. at 630
    (quoting 
    Lamar, 240 U.S. at 64
    ) (internal quotation marks
    omitted).    In Lamar, Justice Holmes stated, “Jurisdiction is a
    matter of power, and covers wrong as well as right 
    decisions.” 240 U.S. at 64-65
    (citing Fauntleroy v. Lum, 
    210 U.S. 230
    , 234
    (1908); Burnet v. Desmornes y Alvarez, 
    226 U.S. 145
    , 147
    (1912)).
    A decision that a patent is bad, either on the facts or on
    the law, is as binding as one that it is good. And nothing
    can be clearer than that the district court, which has
    jurisdiction of all crimes cognizable under the authority
    of the United States, acts equally within its jurisdiction
    whether it decides a man to be guilty or innocent under the
    criminal law, and whether its decision is right or wrong.
    The objection that the indictment does not charge a crime
    against the United States goes only to the merits of the
    case.
    (. . . continued)
    examine constitutional errors in a criminal trial only on a writ of habeas
    corpus, and only then if it deemed the error “jurisdictional.” 
    Id. (internal quotation
    marks omitted). “The Court’s desire to correct obvious
    constitutional violations led to a ‘somewhat expansive notion of jurisdiction
    . . . .’” 
    Id. (quoting Custis
    v. United States, 
    511 U.S. 485
    , 494 (1994))
    (internal quotation marks omitted).
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    Id. at 64-65
    (emphasis added) (citations omitted).           Thus,
    Justice Holmes’ analysis concludes that whether the charging
    instrument is sufficient or insufficient goes to the merits of
    the particular case–-including whether the case is correctly or
    wrongly decided–-but does not deprive the federal district court
    of cognizance of the crime in the first instance, nor of the
    power to adjudicate that crime.       See also 
    Cotton, 535 U.S. at 631
    (quoting United States v. Williams, 
    341 U.S. 58
    , 66 (1951),
    for its holding that a defective indictment “does not affect the
    jurisdiction of the trial court to determine the case presented
    by the indictment”).     Under Cotton, Lamar, and Williams,
    criminal subject-matter jurisdiction is the power granted by a
    legislative body to adjudicate certain crimes.          These cases hold
    that an indictment that is defective for failing to charge an
    element of the offense does not deprive a court of its
    legislatively granted power.
    Similarly, in United States v. Brown, 
    752 F.3d 1344
    (11th Cir. 2014), the Eleventh Circuit noted that the Cotton
    decision and its own case law were in accordance with a rule
    that “an omission of an element from an indictment does not
    deprive the district court of jurisdiction.”          
    Id. at 1351.
    Brown found that to determine “whether an indictment defect is
    jurisdictional, we must ask the question whether the indictment
    charged the defendant with a criminal ‘offense against the laws
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    of the United States.’”        
    Id. (alteration omitted)
    (emphasis
    added).
    The district court’s power over [the] case did not vanish
    simply because the indictment omitted one element of the
    charged offense. The omission of an element may render the
    indictment insufficient, but it does not strip the district
    court of jurisdiction over the case.
    So long as the indictment charges the defendant with
    violating a valid federal statute as enacted in the United
    States Code, it alleges an “offense against the laws of the
    United States” and, thereby, invokes the district court’s
    subject-matter jurisdiction. The omission of an element of
    that offense does not mean that the indictment fails to do
    so; it means only that the indictment is missing an
    “allegation requisite to liability.” This may allow the
    defendant to argue before a guilty plea that the indictment
    is insufficient and should be dismissed — but it does not
    deprive the district court of jurisdiction to act over the
    indictment or to accept a guilty plea.
    
    Id. at 1353-54
    (emphases added) (citations omitted) (quoting
    Alikhani v. United States, 
    200 F.3d 732
    , 734-35 (11th Cir.
    2000); United States v. Peter, 
    310 F.3d 709
    , 715 (11th Cir.
    2002)).     Thus, it is clear that under federal law, the omission
    of an element of the charged offense in an indictment does not
    deprive the court of jurisdiction over the case.
    C.       The omission of the public-road element from the OVUII
    charge did not eliminate subject-matter jurisdiction
    Schwartz has argued that the trial court lacked
    jurisdiction over the OVUII offense because the charging
    instrument failed to allege an essential element of the offense.
    Based on the holdings of this court in Jendrusch through Nesmith
    and Davis, it is clear that a charging instrument that fails to
    allege a culpable state of mind or an element of an offense may
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    result in a significant violation of due process, but the flawed
    instrument does not abrogate the jurisdiction of the court,
    which is established by statute and invoked by a charge of a
    cognizable offense prescribed by law. 25        Here, as noted, the
    district court had jurisdiction over the OVUII charge under HRS
    §§ 604-8 and 604-11.5.      Thus, the failure of the charging
    instrument to fully allege the elements of the crime of OVUII as
    set forth in HRS § 291E-61(a)(1) did not negate the charge’s
    fulfillment of the requirements under HRS Chapter 604
    establishing the jurisdiction of the district court.
    Consequently, Schwartz’s contention that the district court
    lacked jurisdiction of the OVUII charge against her is
    incorrect.
    D.     Analysis in Christian v. State is flawed
    Christian v. State, 131 Hawaiʻi 153, 
    315 P.3d 779
    (App.
    2013), provided the basis for the ICA’s decision in the present
    case. 26   See Schwartz, No. CAAP-10-0000199 at *1 (affirming the
    order denying Schwartz’s petition “on the basis explained today
    25
    A charging instrument may be so deficient that a court does not
    have jurisdiction over the case; for instance, if the charging document was
    never filed. See State v. Kaulia, 128 Hawaiʻi 479, 491, 
    291 P.3d 377
    , 389
    (2013) (holding that because the State failed to properly file the complaint,
    “the district court lacked jurisdiction to proceed to trial”). Without
    deciding the matter, a charge that fails to fulfill the statutory
    requirements of jurisdiction, see, e.g., HRS §§ 604-8 and 604-11.5, in
    contrast to the due process failure to properly state an offense, would
    appear to fail to confer jurisdiction upon the district court.
    26
    Christian was decided prior to this court’s decision in Davis.
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    in Christian”).    The relevant facts in Christian are
    substantively indistinguishable from the facts in Schwartz’s
    case.   See Christian, 131 Hawaiʻi at 
    155, 315 P.3d at 781
    .             The
    defendant pleaded no contest to a charge of OVUII in 2008.              
    Id. In 2010,
    the defendant filed an HRPP Rule 40 petition seeking to
    have his judgment set aside on the basis that a “defect in the
    charge was jurisdictional, and therefore his judgment of
    conviction was a nullity” because the charge failed to allege
    the public-road element.      
    Id. at 156,
    315 P.3d at 782.        The
    district court denied the petition, and the defendant appealed
    to the ICA.
    The ICA affirmed the denial on the grounds that
    although Wheeler created a new rule, the rule did not apply
    retroactively.    
    Id. at 160,
    315 P.3d at 786.        The ICA reached
    this conclusion by looking at this court’s analysis in State v.
    Ruggiero, 114 Hawaiʻi 227, 
    160 P.3d 703
    (2007), and State v.
    Kekuewa, 114 Hawaiʻi 411, 
    163 P.3d 1148
    (2007), and noted that in
    both cases, the decisions determined that the complaint could
    reasonably be construed to allege the crime of OVUII.            
    Id. at 159,
    315 P.3d at 785.     The ICA reasoned that “by quoting the
    charges in Ruggiero and Kekuewa and then directing entry of
    judgment of conviction on the charges for OVUII as a first
    offense, [this court] implicitly held and concluded that the
    charges in Ruggiero and Kekuewa were sufficient to charge OVUII
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    as a first offense.”     
    Id. at 160,
    315 P.3d at 786.        Therefore,
    the ICA concluded that, since Ruggiero and Kekuewa approved
    charging instruments that did not specifically allege a public-
    road element, Wheeler’s requirement that the State must allege a
    public-road element “announced a new rule.”          
    Id. Additionally, the
    ICA held that even if the new rule
    did apply retroactively, the defendant in Christian could not
    demonstrate exceptional circumstances to overcome a “heightened
    interest in finality that attaches to cases on collateral
    review.”    
    Id. at 156,
    315 P.3d at 782.
    1. Guiding Principles in the Creation of New Rules
    “[W]hen questions of state law are at issue, state
    courts generally have the authority to determine the
    retroactivity of their own decisions.”         State v. Garcia, 96
    Hawaiʻi 200, 211, 
    29 P.3d 919
    , 930 (2001) (quoting Am. Trucking
    Ass’ns, Inc. v. Smith, 
    496 U.S. 167
    , 177 (1990) (plurality
    opinion)) (internal quotation marks).        The prototypical manner
    in which this court creates a new rule is when it overrules a
    previous decision and announces a superseding principle of law.
    See State v. Jess, 117 Hawaiʻi 381, 398—99, 
    184 P.3d 133
    , 150—51
    (2008); see also James B. Beam Distilling Co. v. Georgia, 
    501 U.S. 529
    , 534 (1991) (the paradigm case of nonretroactivity
    arises “when a court expressly overrules a precedent upon which
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    the contest would otherwise be decided differently and by which
    the parties may previously have regulated their conduct”).
    In Jess, this court considered the continued viability
    of the intrinsic/extrinsic distinction between facts that must
    be alleged in charging an individual with a crime.           Jess, 117
    Hawaiʻi at 
    393—94, 184 P.3d at 145
    —46.        At the time Jess was
    decided, the rule was that aggravating circumstances must be
    alleged by the State in the charging instrument and submitted to
    the jury for its consideration, State v. Apao, 
    59 Haw. 625
    , 634,
    
    586 P.2d 250
    , 257 (1978), unless such circumstances constitute
    extrinsic facts--those that have no bearing on the issue of
    guilt, State v. Huelsman, 
    60 Haw. 71
    , 79, 
    588 P.2d 394
    , 400
    (1978).
    This court, in Jess, held that “the
    intrinsic/extrinsic distinction has lost its viability to the
    extent that it governs charging procedure and . . . decline to
    follow it any further.”     
    Id. at 398,
    184 P.3d at 150.         The
    result was to reverse the Huelsman qualification and cases
    reaffirming it, and revert to the original rule that requires
    all aggravating circumstances, regardless of whether they are
    intrinsic or extrinsic in nature, to be alleged when charging a
    crime.    
    Id. at 398,
    184 P.3d at 150.
    Finding that the rule it announced was a new rule
    because it expressly overruled cases that distinguished between
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    extrinsic and intrinsic facts when charging an individual with a
    crime, the Jess court then considered whether to accord the new
    rule with retroactive effect.        
    Id. at 401,
    184 P.3d at 153.
    Ultimately, this court concluded, after weighing considerations
    pertinent to the issue of retroactivity, that the new rule
    should be given only purely prospective application to avoid
    substantial prejudice to prosecutions and the courts.             
    Id. at 403,
    184 P.3d at 155. 27
    Another classic situation in which this court
    establishes a new rule is when it announces a new principle of
    constitutional law, such as one applying to criminal
    prosecutions.     In Tachibana v. State, for example, we held that
    under the Hawaiʻi Constitution, “trial courts must advise
    criminal defendants of their right to testify and must obtain an
    on-the-record waiver of that right in every case in which the
    27
    Another case in which a new rule was created by overruling
    precedent is State v. Ikezawa, 
    75 Haw. 210
    , 
    857 P.2d 593
    (1993). In Ikezawa,
    this court reiterated that State v. Stone, 
    65 Haw. 308
    , 
    651 P.2d 485
    (1982),
    was overruled by State v. Balauro, 
    73 Haw. 70
    , 
    828 P.2d 267
    (1992), which
    held that the six-month period under HRPP 48(b), within which a criminal
    trial must be commenced, is tolled when a later charge is the same or is
    required to be joined with the original charge. 
    Ikezawa, 75 Haw. at 221
    —22,
    857 P.2d at 598—99. The Ikezawa court held that the principle stated in
    Balauro constituted a new rule and, after conducting a balancing test as to
    whether to apply the new rule retroactively, found that purely prospective
    application was more appropriate. Id.; see also State v. Santiago, 
    53 Haw. 254
    , 
    492 P.2d 657
    , 665—67 (1971) (holding that this court’s decision in State
    v. Cuevas, 
    53 Haw. 100
    , 
    488 P.2d 322
    (1971), in which we invalidated a
    statute imposing the burden upon a defendant to disprove the existence of
    malice once the act of killing is proved by the prosecution and which
    overruled cases that previously upheld the statute’s validity, announced a
    new rule that should be accorded pipeline retroactive application).
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    defendant does not testify.”        79 Hawaiʻi 226, 236 & n.7, 
    900 P.2d 1293
    , 1303 & n.7 (1995).       Hence, this court concluded that the
    Tachibana colloquy was a new rule and that it should be applied
    only prospectively. 28    
    Id. at 238
    & 
    n.10, 900 P.2d at 1305
    &
    n.10.
    In contrast, in instances where this court engages
    only in statutory construction to elucidate the meaning and
    application of specific provisions of a statute, we have held
    that a new rule does not arise.        In Garcia v. State, 125 Hawaiʻi
    429, 
    263 P.3d 709
    (2010), we examined whether our decision in
    State v. Tauiliili, 96 Hawaiʻi 195, 
    29 P.3d 914
    (2001),
    constituted an announcement of a new rule.          Tauiliili
    interpreted HRS § 706-671 to mean that presentence imprisonment
    credit should be applied, in cases where a defendant is
    sentenced to consecutive terms, only to the aggregate term of
    the sentence.     See 
    id. at 199,
    29 P.3d at 918.        Until that
    point, the practice was to apply the presentence imprisonment
    28
    The U.S. Supreme Court has also identified the following
    instances in which it has created “an entirely new and unanticipated
    principle of law”: where the (1) “ruling caused such an abrupt and
    fundamental shift in doctrine as to constitute an entirely new rule which in
    effect replaced an older one”; (2) “disapproves a practice this Court
    arguably has sanctioned in prior cases”; (3) “or overturns a longstanding and
    widespread practice to which this Court has not spoken, but which a near-
    unanimous body of lower court authority has expressly approved. United
    States v. Johnson, 
    457 U.S. 537
    , 551 (1982) (citations omitted) (internal
    quotations marks omitted). The decision in Wheeler does not fall under any
    of these categories.
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    credit to each of the consecutive terms.         See Garcia, 125 Hawaiʻi
    at 
    443—44, 263 P.3d at 723
    —24.
    In Garcia, we stated that “Tauiliili was not a
    departure from precedent but, rather, confirmed the law as it
    existed prior to that decision.”       
    Id. at 443,
    263 P.3d at 723
    (citing Rivers v. Roadway Express, Inc., 
    511 U.S. 298
    , 312—13
    (1994)).   As such, we concluded that our holding in Tauiliili
    applied retroactively.     
    Id. Finally, we
    have also held that where this court
    merely clarifies an existing legal principle, a new rule is not
    created.   See State v. Ketchum, 97 Hawaiʻi 107, 114 n.26, 
    34 P.3d 1006
    , 1013 n.26 (2001).     In Ketchum, this court considered
    whether the principle announced in State v. Ah Loo, 94 Hawaiʻi
    207, 
    10 P.3d 728
    (2000), constituted a new rule.           Ah Loo held
    that Miranda warnings must be administered “once a detainee
    becomes expressly or impliedly accused of having committed a
    crime—because the totality of the circumstances reflects either
    that probable cause to arrest the detainee has developed or that
    the officer’s questions have ‘become sustained and coercive.’”
    Ketchum, 97 Hawaiʻi at 
    124, 34 P.3d at 1023
    (quoting Ah Loo, 94
    Hawaii at 
    212, 10 P.3d at 733
    ).       We concluded that Ah Loo did
    not announce a new rule, but “merely clarified the existing
    proposition that a person temporarily and lawfully detained need
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    not be given Miranda warnings until the moment of express or
    implied accusation has arrived.”         
    Id. at 123
    n.26, 34 P.3d at
    1022 
    n.26.
    2.      Wheeler did not announce a new rule because it did not
    overrule Ruggiero or Kekuewa
    The ICA’s decision in Christian is predicated on its
    conclusion that this court implicitly ruled, in Ruggiero and
    Kekuewa, that a charge omitting the public-road element can
    nonetheless be reasonably construed to allege OVUII under HRS §
    291E-61(a).     Christian, 131 Hawaiʻi at 
    159—60, 315 P.3d at 785
    —
    86.     In both Ruggiero and Kekuewa, at issue was the sufficiency
    of the charge in accusing the defendants of violating HRS §
    291E-61(a) and (b)(2) as second-time OVUII offenders.              Ruggiero,
    114 Hawaiʻi at 
    239, 160 P.3d at 715
    ; Kekuewa, 114 Hawaiʻi at 421—
    
    21; 163 P.3d at 1158
    —59.        In both cases, we held that the
    charges were insufficient as a matter of law to accuse the
    defendants of violating HRS § 291E-61(a) and (b)(2) because they
    failed to allege the defendants’ respective prior OVUII
    conviction but that they could reasonably be construed to charge
    OVUII as a first offense under HRS § 291E-61(a) and (b)(1).
    Ruggiero, 114 Hawaiʻi at 
    240, 160 P.3d at 716
    ; Kekuewa, 114
    Hawaiʻi at 
    425—26, 163 P.3d at 1162
    —63.
    In Wheeler, the State argued that Ruggiero and Kekuewa
    established precedent that an OVUII charge lacking the public-
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    road element is not deficient.        Wheeler, 121 Hawaiʻi at 
    396, 219 P.3d at 1183
    .     This court disagreed, explaining that
    Ruggiero and Kekuewa focused on whether a charge that
    failed to adequately allege that the defendant had a prior
    OVUII conviction within the past five years was
    nevertheless sufficient to charge a first-offense OVUII.
    Neither defendant raised the issue of whether the
    proscribed conduct must take place “upon a public way,
    street, road, or highway” and, if so, whether it had been
    adequately alleged in the charge.
    
    Id. at 399,
    219 P.3d at 1186 (emphasis added).           The Wheeler
    court reasoned that Ruggiero and Kekuewa “are limited to the
    issues that were actually decided by the court [in those cases],
    and are not dispositive of the distinct issue presented [in
    Wheeler, i.e., whether the public-road element must be alleged
    in the charging instrument.]”        
    Id. at 399,
    219 P.3d at 1186
    (citing Webster v. Fall, 
    266 U.S. 507
    , 511 (1925); E&J Lounge
    Operating Co., Inc. v. Liquor Comm’n of City & County of
    Honolulu, 118 Hawaii 320, 338, 
    189 P.3d 432
    , 450 (2008)). 29
    29
    Additionally, the Wheeler court reasoned that “Ruggiero and
    Kekuewa are factually distinguishable from the circumstances of [Wheeler].”
    Wheeler, 121 Hawaiʻi at 
    399, 219 P.3d at 1186
    . Because the defendants in both
    cases failed to make “a timely objection to the sufficiency of the OVUII
    charge in the trial court,” 
    id., the “Motta/Wells
    post-conviction liberal
    construction rule” applied, 
    id. (quoting State
    v. Merino, 81 Hawaii 198, 212,
    
    915 P.2d 672
    , 688 (1996)) (internal quotation marks omitted). Under this
    analysis, a charging instrument is presumed valid, and a conviction will not
    be reversed because of a defective charging instrument, unless the defendant
    demonstrates prejudice or the complaint cannot be reasonably construed to
    charge a crime. 
    Id. at 399—400,
    219 P.3d at 1186—87. In contrast, “because
    Wheeler timely objected to the oral charge in the district court, the
    Motta/Wells analysis [wa]s not applicable [in Wheeler].” 
    Id. at 400,
    219
    P.3d at 1187. This factual distinction between Wheeler, on the one hand, and
    Ruggiero and Kekuewa, on the other--which essentially resulted in the
    application of differing analytical standards--was another reason why the
    court held in Wheeler that Ruggiero and Kekuewa were not governing precedent.
    
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    ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***
    As we recognized in Wheeler, our decisions in Ruggiero
    and Kekuewa did not hold that a charge accusing an individual of
    OVUII, in violation of HRS § 291E-61(a), is sufficient without
    the public-road element.       The fact that this court in Ruggiero
    and Kekuewa did not address the public-road element was not
    equivalent to a holding that it was not a required element of
    OVUII; it meant only that the issues challenged in those cases
    provided neither a reason nor the necessity for this court to
    consider this element.      See 
    id. at 396,
    219 P.3d at 1184
    (stating that Ruggiero and Kekuewa “do not require a contrary
    result”).
    Accordingly, our conclusion in Wheeler--that “HRS §
    291E–1 [requires] that the defendant’s conduct occur ‘upon a
    public way, street, road, or highway’”--was not a new rule, see
    Wheeler, 121 Hawaiʻi at 
    392, 219 P.3d at 1179
    , because unlike
    Jess, Wheeler did not overrule or modify any previous precedent
    of this court dealing with the same issue. 30         Cf. Jess, 117
    30
    Nonetheless, according to the concurrence, “Walker clarified that
    Wheeler did, in fact, render Ruggiero and Kekuewa unreliable for the
    proposition that a defendant who is not given fair notice of the public roads
    element may . . . be convicted of OVUII as a first offense.” Concurrence at
    23. To support this assertion, the concurrence relies quite heavily on a
    quote from Walker stating that the “current essential elements that the State
    must include in an OVUII charge differ from those required in 2007 at the
    time of the Ruggiero and Kekuewa decisions.” Concurrence at 19 (quoting
    Walker, 126 Hawaiʻi at 
    490, 273 P.3d at 1176
    ). However, the validity of this
    statement from Walker is plainly problematic.
    Generally, a crime or offense is governed by the law existing at
    the time it was committed. See State v. Martin, 
    62 Haw. 364
    , 370, 616 P.2d
    (continued . . .)
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    Hawaiʻi at 
    398, 184 P.3d at 150
    (abandoning the
    intrinsic/extrinsic distinction that once governed the kind of
    aggravating facts that must be alleged in a charging
    instrument).    Wheeler had no need to overrule Ruggiero or
    Kekuewa because those cases neither addressed the issue of
    statutory construction that Wheeler did, nor are their facts
    similar or analogous to the facts of Wheeler. 31
    (. . . continued)
    193, 197—98 (1980) (holding that “all the elements necessary to prove a crime
    charged under the Hawaii Penal Code must be shown to have occurred after its
    effective date”); 
    Tachibana, 67 Haw. at 577
    , 698 P.2d at 291 (stating that
    the defendant was properly charged under the pre-Hawaiʻi Penal Code law
    because the underlying act was committed before the effective date of the
    Penal Code). It naturally follows that a charge must be compliant with the
    governing law existing at the time the offense was committed.
    The underlying conduct that comprised the charged offense in
    Wheeler occurred on May 31, 2007. Wheeler, 121 Hawaiʻi at 386—87, 
    219 P.3d 1170
    —74. Hence, for charging purposes, the law that governed was the OVUII
    statute as it existed in 2007. It is therefore inaccurate to say that the
    OVUII law post-Wheeler was any different than that existing pre-Wheeler,
    because the requirements set forth in Wheeler were themselves applied to a
    charge that dated back to 2007. Accordingly, the Walker quote is a
    misstatement (“essential elements that the State must include in an OVUII
    charge differ from those required in 2007”).
    31
    This court has previously applied Wheeler retroactively in cases
    in which an OVUII charge lacked the public-road element without discussion of
    whether Wheeler announced a new rule. See Garcia, 125 Hawaiʻi at 
    443, 263 P.3d at 724
    (holding that “retroactivity is assumed unless a ‘new rule’ is
    announced”). These post-Wheeler decisions include the following cases: State
    v. Tominiko, 126 Hawaiʻi 68, 76, 
    266 P.3d 1122
    , 1130 (2011) (applying Wheeler,
    which was decided in November 2009, to an August 2008 complaint charging
    defendant with OVUII, and holding that under the liberal construction
    standard, the charges, read with reference to each other, were sufficient to
    allege the public-road element to support the OVUII conviction); Walker, 126
    Hawaiʻi at 
    489, 273 P.3d at 1175
    (applying Wheeler to an April 21, 2008 felony
    information and complaint and holding that the charging instruments could not
    be reasonably construed to charge OVUII because the public-road element was
    not alleged); 
    id. at 493,
    273 P.3d at 1179 (Recktenwald, C.J., concurring)
    (agreeing with the majority that Wheeler’s public-road element applied to the
    April 21, 2008 charging instruments).
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    As it is clear that Wheeler did not overrule
    precedent, it did not announce a new rule.
    3.      Wheeler Engaged in Statutory Interpretation to Effectuate a
    Settled Constitutional Principle
    Wheeler is best understood as a case applying the
    settled constitutional requirement that “an ‘accusation must
    sufficiently allege all of the essential elements of the offense
    charged.’”    
    Id. (quoting Merino,
    81 Hawaiʻi at 
    212, 915 P.2d at 686
    ).    Specifically, Wheeler involved an inquiry into whether
    the OVUII charge at issue in that case was legally sufficient.
    Wheeler, 121 Hawaiʻi at 
    391, 219 P.3d at 1178
    .           In conducting
    this inquiry, the Wheeler court utilized settled canons of
    statutory construction to identify the elements of OVUII that
    must be alleged in order to satisfy the dictates of due process.
    See 
    id. at 391—93,
    219 P.3d at 1178—80 (applying principles of
    statutory construction in interpreting the word “operating”).
    Using principles of statutory construction, we
    concluded in Wheeler that “HRS § 291E–1 establishes an attendant
    circumstance of the offense of OVUII, i.e., that the defendant’s
    conduct occur ‘upon a public way, street, road, or highway.’”
    Id. at 
    392, 219 P.3d at 1179
    .        Because an attendant circumstance
    is an element of an offense, we held that “the operation of a
    vehicle on a public way, street, road, or highway is an . . .
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    element of the offense” that must be alleged in an OVUII charge.
    Wheeler, 121 Hawaiʻi at 
    393, 219 P.3d at 1180
    .
    Against this foregoing background, it cannot be said
    that Wheeler created a new rule.        For one, Wheeler merely
    applied the constitutionally settled principle that all elements
    of an offense must be alleged in order for the charging
    instrument to be legally sufficient. 32        See Yates v. Aiken, 
    484 U.S. 211
    , 216—17 (1988) (explaining that Francis v. Franklin,
    
    471 U.S. 307
    (1985), merely applied the constitutional rule that
    32
    The concurrence asserts that Wheeler created a new rule because
    “it imposed an obligation on the State that was not compelled by prior law.”
    Concurrence at 19. However, the obligation we set forth in Wheeler--that the
    State must allege the statutory definition of “operating” when charging
    OVUII--is merely a particularized application of the elementary precept that
    a charge must allege all elements of the offense. In short, what the State
    was obligated to do in Wheeler, and after Wheeler, was essentially the same
    as what the State was obligated to do before Wheeler: to charge a person with
    all of the elements of the offense of which he or she is accused. Thus,
    prior law, which required all elements of an offense to be alleged, did impel
    the result in Wheeler.
    It is equally inaccurate to say that “Wheeler broke new ground by
    establishing a constitutional rule.” Concurrence at 21 (emphasis added).
    Wheeler merely applied a well-established constitutional principle to the
    context of OVUII charging. Even assuming such a rule were applicable, there
    are no indicia that Wheeler could have been decided to yield a “reasonable
    contrary conclusion[].” See Butler v. McKellar, 
    494 U.S. 407
    , 415 (1990)
    (emphasis added) (noting a circuit split between the Fourth and Seventh
    Circuit Courts of Appeals as an indication that the result in Arizona v.
    Roberson, 
    486 U.S. 675
    (1988), “was susceptible to debate among reasonable
    minds”). The ICA unanimously decided the case in a two-page summary
    disposition order relying on settled law that the charge failed to allege an
    attendant circumstance of the offense. State v. Wheeler, 120 Hawaii 256, 
    203 P.3d 676
    (App. 2009) (summary disposition order) (citing HRS § 702-205 and
    Jendrusch in concluding that the charge was insufficient). This court was
    similarly unanimous. See Wheeler, 121 Hawaii at 
    385, 219 P.3d at 1172
    . It
    was not debatable whether the failure to allege the public-road element
    (i.e., the definition of “operating”) yields a sufficient charging
    instrument, because this would have been in derogation of a settled
    constitutional principle. See State v. Jendrusch, 
    58 Haw. 279
    , 281, 
    567 P.2d 1242
    , 1244 (1977) (noting that a charge omitting an element of the offense
    constitutes a denial of due process).
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    governed the Court’s decision in Sandstrom v. Montana, 
    442 U.S. 510
    (1979), “that the Due Process Clause of the Fourteenth
    Amendment prohibits the State from making use of jury
    instructions that have the effect of relieving the State of the
    burden of proof enunciated in Winship on the critical question
    of intent in a criminal prosecution” (quoting 
    Francis, 471 U.S. at 326
    —327)).      Further, this court’s elucidation in Wheeler on
    the meaning of “operating” in the OVUII statute, which was based
    on our application of canons of statutory construction, see
    Wheeler, 121 Hawaiʻi at 
    390—93, 219 P.3d at 1177
    —80, similarly
    did not create a new rule.       When this court announces a legal
    principle grounded in its understanding of a particular statute,
    it merely expresses in definitive terms what that statute has
    always meant, both before and after that decision is handed
    down.      See 
    Rivers, 511 U.S. at 312
    —13 n.12 (“[I]t is not
    accurate to say that the Court’s decision in Patterson ‘changed’
    the law that previously prevailed . . . when this case was
    filed.      Rather, . . . the Patterson opinion finally decided what
    § 1981 had always meant and explained why the Courts of Appeals
    had misinterpreted the will of the enacting Congress.” (first
    emphasis added)). 33
    33
    See also United States v. Rivera-Nevarez, 
    418 F.3d 1104
    , 1107
    (10th Cir. 2005) (“Decisions of statutory interpretation are fully
    retroactive because they do not change the law, but rather explain what the
    law has always meant.”); In re Blackshire, 
    98 F.3d 1293
    , 1294 (11th Cir.
    (continued . . .)
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    It is true that Wheeler was the first time that we
    announced the necessity of alleging the public-road element when
    the State charges an individual with OVUII.           But the fact that
    it was an addition to our jurisprudence does not mean it was
    “new” under principles governing the creation of a new rule.
    Wheeler is similar to Tauiliili inasmuch as it interpreted HRS §
    291E–1 to definitively and authoritatively explain what that
    statute always meant (but was left unsaid) since its enactment,
    and Wheeler did not change or modify the requirements or the
    meaning of HRS § 291E–1.       See 
    Rivers, 511 U.S. at 312
    —13
    (explaining that “[a] judicial construction of a statute is an
    authoritative statement of what the statute meant before as well
    as after the decision of the case giving rise to that
    construction”); cf. Tauiliili, 96 Hawaiʻi at 
    199, 29 P.3d at 918
    (construing for the first time HRS § 706-671 (1993) to mean that
    presentence imprisonment credit should be credited only to the
    aggregate term of consecutive sentences).
    (. . . continued)
    1996) (holding that the U.S. Supreme Court’s interpretation of 18 U.S.C. §
    924(c) in an earlier case was not an expression of a new rule because the
    Court “merely interpreted a substantive criminal statute using rules of
    statutory construction”); Nuñez v. United States, 
    96 F.3d 990
    , 992 (7th Cir.
    1996) (stating that a prior U.S. Supreme Court decision did not announce a
    new rule of constitutional law because it merely engaged in statutory
    interpretation); United States v. Lorentsen, 
    106 F.3d 278
    , 279 (9th Cir.
    1997) (accord); In re Vial, 
    115 F.3d 1192
    , 1195-96 (4th Cir. 1997) (accord);
    United States v. McPhail, 
    112 F.3d 197
    , 199 (5th Cir. 1997) (holding that a
    prior U.S. Supreme Court decision did not present a new rule of criminal
    procedure but merely interpreted a statute).
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    The concurrence contends that Wheeler created a new
    rule “because it held that the State’s routine charging practice
    was unconstitutional despite this court’s contrary directives in
    Ruggiero and Kekuewa.” 34        Concurrence at 20.   Because this court
    remanded Ruggiero and Kekuewa for entry of judgment and
    resentencing, and because this court in those cases did not
    opine as to the meaning of “operating” and the public-road
    element of OVUII, the concurrence posits that “this court had
    provided a degree of judicial approval over the practice of
    charging OVUII in the language of the statute.”           Concurrence at
    20. 35        That is, the concurrence suggests that this court endorsed
    34
    To the extent the concurrence’s conclusion that there are “four
    categories of cases that delineate when a new rule is established” could be
    read as enumerating an exhaustive list of categories, concurrence at 8, it is
    overly restrictive. The inquiry into whether a rule is new or preexisting is
    not accurately conducted by classifying a wide variety of cases in which this
    issue may arise under inflexibly delineated categories; oftentimes, a rule
    promulgated by a case is best characterized as existing on a spectrum, one
    end of which constitutes rules that are clearly preexisting and the other end
    composed of clearly new rules. See Teague v. Lane, 
    489 U.S. 288
    , 301 (1989)
    (“It is admittedly often difficult to determine when a case announces a new
    rule, and we do not attempt to define the spectrum of what may or may not
    constitute a new rule for retroactivity purposes.”). Hence, the
    concurrence’s sweeping list of four categories of cases that “delineate[s]
    when a new rule is established” is not helpful.
    35
    For this proposition, the concurrence relies upon Johnson, 
    457 U.S. 537
    , where the U.S. Supreme Court has recognized that as far as federal
    retroactivity jurisprudence is concerned, a new principle of law is announced
    when a case “disapproves a practice [that it] arguably has sanctioned in
    prior cases.” 
    Id. at 551.
    However, this class of cases disavowed previous
    decisions that expressly sanctioned the practices involved. See Gosa v.
    Mayden, 
    413 U.S. 665
    , 673 (1973) (holding that “[t]he Court long and
    consistently had recognized that military status in itself was sufficient for
    the exercise of court-martial jurisdiction,” a view that was later disavowed
    by the Court); Johnson v. New Jersey, 
    384 U.S. 719
    , 731 (1966) (recognizing
    that the Court’s previous cases approved of in-custody interrogation even
    though there was a “failure to warn accused persons of their rights[] or the
    failure to grant them access to outside assistance,” cases that Miranda later
    (continued . . .)
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    sub silentio in Ruggiero and Kekuewa the then-prevailing
    practice by the State of charging OVUII without the public-road
    element.
    It bears repeating that this Court clarified in
    Wheeler that “Ruggiero and Kekuewa focused on whether a charge
    that failed to adequately allege that the defendant had a prior
    OVUII conviction within the past five years was nevertheless
    sufficient to charge a first-offense OVUII.”           Wheeler, 121
    Hawaiʻi at 
    399, 219 P.3d at 1186
    .        As mentioned, “the issue of
    whether the proscribed conduct must take place ‘upon a public
    way, street, road, or highway’ and, if so, whether it had been
    adequately alleged in the charge” was never raised, and “[a]s a
    result, this court did not address that issue in Ruggiero or
    Kekuewa.”    
    Id. Hence, this
    court concluded in Wheeler that
    Ruggiero and Kekuewa were dispositive only of the distinct
    issues presented in those cases.        
    Id. The dissent’s
    suggestion--that this court’s silence
    in Ruggiero and Kekuewa on the issue directly presented for the
    (. . . continued)
    rendered nonbinding). In stark contrast, Ruggiero and Kekuewa were merely
    silent and in no way sanctioned the State’s practice of charging OVUII
    without the public-road element derived from the statutory definition of
    “operating.”
    Further, if Wheeler were indeed a case that disapproved of a
    previously sanctioned practice, then the concurrence, consistent with what
    Johnson directs, should find that Wheeler is fully nonretroactive, see 
    id. at 549—51,
    a conclusion that the concurrence does not reach, concurrence at 28.
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    first time in Wheeler was an implicit endorsement of the
    validity of the practice of not charging the public-road
    element--artificially extracts a holding from what was
    unaddressed.    This practice was soundly rejected in Wheeler, see
    
    id. (rejecting the
    State’s contention that this Court had
    already decided in Ruggiero and Kekuewa that a charge omitting
    the public-road element is legally sufficient), and is of
    insignificant analytical value, see Texas v. Cobb, 
    532 U.S. 162
    ,
    169 (2001) (“Constitutional rights are not defined by inferences
    from opinions which did not address the question at issue.”); In
    re Stegall, 
    865 F.2d 140
    , 142 (7th Cir. 1989) (“A point of law
    merely assumed in an opinion, not discussed, is not
    authoritative.”). 36
    Just because this Court has not explicitly and
    affirmatively rejected a legal proposition in no way means that
    it has effectively approved of it, especially given the fact
    that prudential rules limit this Court to consideration of
    issues presented by the peculiarities of a particular case and
    the issues raised by a party.        See Kapuwai v. City & Cnty. of
    Honolulu, Dep’t of Parks & Recreation, 121 Hawaiʻi 33, 40, 211
    36
    The concurrence’s assertion is analogous to the argument that the
    denial by the U.S. Supreme Court of certiorari is an implicit endorsement of
    the holding and reasoning of the case for which certiorari review was sought.
    But it has long been settled that “denial of a writ of certiorari imports no
    expression of opinion upon the merits of the case.” United States v. Carver,
    
    260 U.S. 482
    , 490 (1923) (Holmes, J.); accord Hughes Tool Co. v. Trans World
    Airlines, Inc., 
    409 U.S. 363
    , 366, n.1 (1973).
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    P.3d 750, 757 (2009) (“[W]hile the courts of the State of Hawaiʻi
    are not bound by a ‘case or controversy’ requirement, we
    nonetheless recognize that the ‘prudential rules’ of judicial
    self-governance ‘founded in concern about the proper—and
    properly limited—role of courts in a democratic society’ are
    always of relevant concern.’ For ‘even in the absence of
    constitutional restrictions, courts must still carefully weigh
    the wisdom, efficacy, and timeliness of an exercise of their
    power before acting.’” (citation omitted) (emphasis omitted)
    (quoting Life of the Land v. Land Use Commission, 
    63 Haw. 166
    ,
    172, 
    623 P.2d 431
    , 438 (1981)) (internal quotation marks
    omitted)).
    Additionally, the concurrence’s analogy of Wheeler to
    Payton v. New York, 
    445 U.S. 573
    (1980) is incongruous.            In
    United States v. Johnson, 
    457 U.S. 537
    (1982), the Supreme Court
    concluded that Payton “did not simply apply settled precedent to
    a new set of facts” and that the presumption of retroactivity
    was thus inapplicable.     
    Johnson, 457 U.S. at 551
    .        The
    concurrence’s reliance on Johnson is flawed for two reasons:
    first, as fully 
    explained supra
    , Wheeler did apply settled
    precedent to a new set of facts and did not break new ground;
    and second, the Johnson Court did not find that Payton
    established a new rule.
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    Contrary to the concurrence’s assertion that Johnson
    found a new rule in the primary holding of Payton, a closer
    reading of Johnson reveals that this is not accurate.             The
    question of retroactivity in Johnson was not predicated on
    whether the Payton rule was new.        What the U.S. Supreme Court
    did was to identify three classes of cases in which the question
    of retroactivity had been conclusively decided by Supreme Court
    precedents.    
    Johnson, 457 U.S. at 549
    —51.        One of those classes
    is where a case “announce[s] an entirely new and unanticipated
    principle of law”; in those cases, the Supreme Court “almost
    invariably has gone on to find such a newly minted principle
    nonretroactive.”     
    Id. at 549.
        The Court expressly found that
    Payton did not fall under this class of cases.           
    Id. at 551.
    Similarly, the Court determined that Payton did not fit the
    other two classes of cases where retroactivity is presumed. 37              As
    a result, the Court then analyzed Payton under a retroactivity
    test patterned after that advocated for by Justice Harlan. 38
    37
    These two classes are as follows: (1) “when a decision of this
    Court merely has applied settled precedents to new and different factual
    situations,” it applies retrospectively; and (2) “full retroactivity [i]s a
    necessary adjunct to a ruling that a trial court lacked authority to convict
    or punish a criminal defendant in the first place.” 
    Johnson, 457 U.S. at 549
    —51.
    38
    The concurrence argues that “the Supreme Court had to have found
    that Payton was a new rule because it applied Justice Harlan’s test.”
    Concurrence at 7 n.2. It is true that Justice Harlan’s test focuses on
    “newly-declared constitutional rule[s],” 
    Johnson, 457 U.S. at 546
    (emphasis
    added), and that in Johnson, the Court stated, “We now agree with Justice
    Harlan that ‘[r]etroactivity must be rethought,’” 
    id. at 548
    (quoting Desist
    v. United States, 
    394 U.S. 244
    , 258 (1969) (dissenting opinion)) (internal
    (continued . . .)
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    The concurrence’s reasoning behind its assertion that
    Payton announced a new rule appears to be based on the Supreme
    Court’s finding that Payton “did not simply apply settled
    precedent” and, therefore, was not a preexisting rule.             
    Johnson, 457 U.S. at 551
    .     However, the fact that Payton was not a
    preexisting rule did not establish the converse: that Payton
    must be a new rule.      Instead, unacknowledged by the concurrence
    is that the Supreme Court in fact found that Payton was not a
    new rule.    
    Id. (“Payton also
    did not announce an entirely new
    and unanticipated principle of law.”). 39        Hence, to the extent
    (. . . continued)
    quotation marks omitted). The test that the Court adopted in Johnson,
    however, varies from that advocated by Justice Harlan. The test announced by
    Johnson is twofold: “We . . . examine the circumstances of this case to
    determine whether it presents a retroactivity question clearly controlled by
    past precedents, and if not,” 
    id., whether a
    limited retroactive application
    of Payton “would satisfy each of the three concerns stated in Justice
    Harlan’s opinions in Desist and Mackey,” 
    id. at 554.
    Thus, compared to Justice Harlan’s test--“that all ‘new’ rules of
    constitutional law must, at a minimum, be applied to all those cases which
    are still subject to direct review by this Court at the time the ‘new’
    decision is handed down,” Desist, 394 U.S. at 258--the Johnson test was not
    founded upon whether the rule is new or not new. This approach partially
    differs from the approach that we employ. See 
    Ikezawa, 75 Haw. at 221
    —22,
    857 P.2d at 598—99 (analyzing whether a legal principle is new before
    proceeding to a balancing test to answer the retroactivity question).
    39
    The concurrence agrees that Payton did not announce an entirely
    new and unanticipated principle of law, but it asserts that the rule in
    Payton was new because it fits “a second separate category of cases”: those
    that break new ground. Concurrence at 5, 7 n.2. However, Johnson was clear
    that Payton did not break new ground. See 
    Johnson, 457 U.S. at 551
    —52
    (describing cases that broke new ground and concluding that Payton is not one
    of them). Further, cases that break new ground are merely a subset of cases
    that announce an entirely new and unanticipated principle of law, 
    Johnson, 457 U.S. at 551
    —54, such that the concurrence’s attempt at disassociating one
    from the other--characterizing each as a discrete group--is inaccurate.
    Concurrence at 7 n.2.
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    that the concurrence concludes that Wheeler announced a new rule
    because it is similar to Payton, it is mistaken.
    The concurrence additionally concludes that Wheeler
    should not be applied to cases that have become final before
    Wheeler was announced.        Concurrence at 28.      This conclusion is
    grounded in a predicate finding that mischaracterizes Wheeler as
    a case that announced a “new constitutional rule[] of criminal
    procedure,” concurrence at 27 (quoting 
    Teague, 489 U.S. at 310
    ).
    As already explained, Wheeler merely applied an established
    constitutional principle.         Hence, the rule from Teague
    (acknowledged by this court in State v. Gomes, 107 Hawaii 308,
    
    113 P.3d 184
    (2005)) is inapposite and has no application to
    Wheeler. 40
    Finally, the concurrence maintains that our decision
    on the issue of whether Wheeler applies retrospectively is
    dictum because “it has no impact on [our] ultimate conclusion
    that Schwartz waived her constitutional challenges by pleading
    guilty.”      Dissent at 22.     As this court has explained,
    an obiter dictum is a remark made or opinion expressed by a
    judge, in his decision upon a cause, by the way—that is,
    incidentally or collaterally and not directly upon the
    40
    It bears noting that the issue in Teague was whether to accord
    retrospectivity to the constitutional requirement that jurors must be drawn
    from a fair cross section of the community, a requirement that was not in
    existence prior to the Supreme Court’s decision in Taylor v. Louisiana, 
    419 U.S. 522
    (1975). In contrast, Wheeler involved the long-settled
    constitutional requirement that a charge must set forth all elements of the
    offense.
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    question before the court; or is any statement of law
    enunciated by the judge or court merely by way of
    illustration, argument, analogy, or suggestion.
    State v. Hussein, 122 Hawaiʻi 495, 513—14, 
    229 P.3d 313
    , 331—32
    (2010) (emphasis added and omitted) (quoting Black’s Law
    Dictionary 1177 (9th ed. 2009)) (internal quotation marks
    omitted) (alteration omitted).         Resolving the issue of Wheeler’s
    retroactivity bears directly upon the question of whether
    Schwartz has any legal basis upon which she could predicate a
    challenge to the sufficiency of the charge against her, as a
    determination of a new rule could foreclose a challenge to the
    charge; hence, deciding the issue of retroactivity is a
    necessary component of the resolution of this case and not
    dictum. 41
    41
    The concurrence’s proposition is equivalent to an argument that
    this court’s determination of whether a lower court erred is dictum when it
    is ultimately determined that any error is harmless. See Michael C. Dorf,
    Dicta and Article III, 142 U. Pa. L. Rev. 1997, 2046 (1994). However, as
    explained by Professor Dorf, deciding first whether the lower court erred
    “simply makes more sense . . . before deciding whether a putative error was
    harmless.” 
    Id. Analytically speaking,
    “until the court passes on the
    substantive question, it will not know exactly what the error is that it must
    test for harmlessness.” 
    Id. Because the
    determination of whether the lower
    court erred is meant to further “the purpose of resolving the case,” it is
    not dictum. 
    Id. The same
    is true in this case. The retrospective application of
    Wheeler forms an essential part of the analysis for why we conclude that
    Schwartz is precluded from challenging the legal sufficiency of the charge.
    In fact, the effect of Schwartz’ guilty plea upon her ability to challenge
    the charge becomes significant only after it is determined that Wheeler did
    not announce a new rule and was, therefore, applicable retrospectively.
    Because our conclusion on retrospectivity is an integral part of our
    reasoning, it may not be seriously labeled as dictum. See Hussein, 122
    Hawaiʻi at 
    513—14, 229 P.3d at 331
    —32 (defining obiter dictum as a court’s
    incidental or collateral remark that does not directly relate to the
    resolution of any of the issues presented).
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    Based on the foregoing, the ICA’s holding in Christian
    that Wheeler announced a new rule is incorrect, and Wheeler
    applies retroactively.      Because we hold that the failure to
    charge the public-road element of OVUII does not deprive the
    district court of criminal jurisdiction--that is, such a failure
    is a nonjurisdictional defect 42--the retroactive effect of
    Wheeler does not provide a basis for post-conviction relief to
    Schwartz, who pleaded guilty to OVUII.          See Morin, 71 Haw. at
    
    162, 785 P.2d at 1318
    (stating that a guilty or a nolo
    contendere plea “made voluntarily and intelligently precludes a
    defendant from later asserting any nonjurisdictional claims,
    including constitutional challenges to the pretrial
    proceedings”).     Schwartz’s guilty plea therefore precludes her
    from challenging the charge as being insufficient for failing to
    allege the public-road element of OVUII.
    4.    Adoption of an “exceptional circumstances” test for
    collateral review was unwarranted
    The ICA in Christian alternatively concluded that
    “[e]ven if the asserted deficiency in [the] charge is properly
    42
    Where the defect in the charging instrument is one that precludes
    the district court from exercising criminal jurisdiction--e.g., charging an
    offense that is not “cognizable” under state law or an offense that was
    committed outside the district court’s circuit, see HRS §§ 603-21.5; 604-
    11.5; or if the offense charged is not “punishable by fine, or by
    imprisonment not exceeding one year whether with or without fine,” HRS § 604-
    8; or if the charging instrument was never filed, see supra note 25, then the
    rule from Morin would not apply and a defendant may challenge such
    jurisdictional defects even after entry of a guilty or nolo contendere plea.
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    characterized as a jurisdictional defect, [it] would not require
    applying the Wheeler rule retroactively to [the defendant’s]
    collateral attack of his conviction” because of an “overriding
    interest in finality” that distinguishes collateral review from
    direct review.    Christian, 131 Hawaiʻi at 
    161, 315 P.3d at 787
    (quoting United States v. Cuch, 
    79 F.3d 987
    , 991 n. 8 (1996)).
    Based on its determination that Wheeler should not be applied
    retroactively to the defendant’s charge in the underlying
    conviction, the ICA concluded that Ruggiero and Kekuewa provided
    persuasive authority that the OVUII charge was sufficient and
    that under the Motta/Wells standard the defendant could not
    demonstrate either prejudice or that the charge could not be
    construed to charge a crime.      
    Id. at 162,
    315 P.3d at 788.
    Therefore, the ICA held that the defendant in Christian was not
    entitled to the relief sought in the HRPP Rule 40 petition.                
    Id. Although determining
    that the “new rule” had limited
    retroactive effect and that the defendant’s HRPP Rule 40
    petition was properly denied, the ICA observed that “[t]he
    Hawaiʻi Supreme Court . . . has not specifically addressed how a
    challenge to the sufficiency of a charge raised for the first
    time on collateral review should be evaluated.”          
    Id. at 163,
    315
    P.3d at 789.   Based on the perceived lack of an evaluative
    standard, Christian adopted a test from the federal circuits
    that a defendant challenging the sufficiency of a charge for the
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    first time on collateral review must show “exceptional
    circumstances” to reflect “the heightened interest in the
    finality of judgments.”       
    Id. at 163-64,
    315 P.3d at 789-80.
    However, Wheeler did not establish a new rule, and the
    trial court in this case did not lack jurisdiction because of
    the omission of the public-road element from the OVUII charge
    brought against Schwartz.       Additionally, the adoption of an
    “exceptional circumstances” test that must be satisfied by
    defendants seeking to challenge the sufficiency of charging
    instruments on collateral review was unwarranted in light of the
    various alternative bases advanced by the ICA to support its
    ruling, and further, the test is not in accordance with our
    law. 43    Accordingly, the decision in Christian is overruled. 44
    43
    The exceptional circumstance test, as adopted by the ICA, applies
    to defendants challenging the sufficiency of a charge for the first time on
    collateral review. However, HRPP Rule 40 does not assign any special
    standard for challenging a conviction based on the grounds asserted in the
    petition. See HRPP Rule 40. Although an HRPP Rule 40 challenge to a
    conviction on the grounds that the charge omitted an element has not been
    reviewed by this court, an HRPP Rule 40 challenge based upon a charge that
    reflected the alleged misconduct outside the statute of limitations has been
    considered, without reviewing the petition under any specialized standard.
    See Adams 103 Hawaiʻi at 
    224, 81 P.3d at 404
    (reviewing de novo the denial of
    an HRPP Rule 40 challenge of a conviction on the grounds, inter alia, that
    the charge was defective).
    Adopting varying standards of review to evaluate an HRPP Rule 40
    petition that would depend on the grounds alleged is an approach that this
    court has not previously applied and would unnecessarily complicate our law
    regarding post-conviction relief. Our review in this case did not employ a
    specialized standard. In light of our jurisprudence with regard to Rule 40
    petitions, the “exceptional circumstances” standard is rejected.
    44
    State v. Kam, 134 Hawai‘i 280, 
    339 P.3d 1081
    (App. 2014)
    recognized that Davis “is inconsistent with the theory that a defect in a
    charge for failing to allege the requisite mens rea is jurisdictional in
    (continued . . .)
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    E.       Resolution of the Application
    We resolve as follows the threshold question presented
    in Schwartz’s Application: the failure of a charging instrument
    to allege an element of an offense does not constitute a
    jurisdictional defect that fails to confer subject-matter
    jurisdiction to the district court.         Secondly, we conclude that
    Wheeler did not establish a new rule; thus, Schwartz’s
    contention pertaining to the retroactive applicability of the
    new rule to cases on collateral review is inapposite.
    Schwartz’s third question, whether “a defective charge under
    Wheeler, even if properly characterized as a jurisdictional
    defect cannot be retroactively applied on collateral review,” is
    rendered moot by our response to the threshold question.
    Accordingly, Schwartz’s Rule 40 petition was properly
    denied as the district court had jurisdiction to accept her plea
    to the OVUII charge and enter judgment.
    (. . . continued)
    nature” and concluded on that basis that the failure of an indictment to
    allege the requisite mens rea did not present a “jurisdictional impediment.”
    134 Hawai‘i at 
    285, 339 P.3d at 1086
    . Kam did not cite Christian.
    The ICA opinion in Christian concludes that the defendant “failed
    to show that the offense charged was one of which the sentencing court
    manifestly had no jurisdiction” and that “the charge was not so deficient
    that the trial court manifestly lacked jurisdiction.” Christian, 131 Hawaiʻi
    at 
    164-65, 315 P.3d at 790-91
    . This conclusion appears to create a confusing
    new standard for measuring a court’s lack of jurisdiction--“manifest lack of
    jurisdiction”--which we do not adopt.
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    V.      CONCLUSION
    In accordance with the prior decisions of this court,
    the criminal jurisdiction of the district court is provided by
    HRS Chapter 604; here, the district court had jurisdiction over
    the OVUII charge alleged against Schwartz by satisfaction of the
    requirements set forth in that chapter.         Subject-matter
    jurisdiction is not abrogated by a charging instrument that
    fails to allege a culpable state of mind or a statutory element
    defining the offense; thus, the fact that the OVUII charge
    failed to allege an element of the offense did not extinguish
    the criminal jurisdiction of the district court.
    Based on the foregoing, we overrule Cummings and
    Walker insofar as the holdings of those decisions indicate that
    a charge, information, or indictment that fails to allege either
    the requisite mental state or an element of the charged offense
    deprives a trial court of subject-matter jurisdiction.            In
    addition, as explained, the decision in Christian is also
    overruled.
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    The denial of Schwartz’s Rule 40 petition is
    therefore affirmed, but for the reasons set forth in this
    opinion.
    Hayden Aluli                            /s/ Sabrina S. McKenna
    for petitioner
    /s/ Richard W. Pollack
    Renee Ishikawa Delizo
    for respondent                          /s/ Glenn J. Kim
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