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State v. Aeto7/23/2004
Defendant-Appellant Justin K.H. Aeto (Aeto) appeals from the January 21, 2004 Notice of Entry of Judgment and/or Order and Plea/Judgment that denied his July 15, 2002 Motion to Withdraw No Contest Plea. [FN1] We affirm.
FN1. Appellate jurisdiction is based on the precedent of State v. Bohannon. 102 Hawai'i 228, 74 P.3d 980 (2003).
RELEVANT COURT RULES
Hawai'i Rules of Penal Procedure (HRPP) Rule 11 (1993) states, in relevant part, as follows:
(c) Advice to Defendant. The court shall not accept a plea of guilty or nolo contendere without first addressing the defendant personally in open court and determining that he understands the following:
(1) the nature of the charge to which the plea is offered; and
(2) the maximum penalty provided by law, and the maximum sentence of extended term of imprisonment, which may be imposed for the offense to which the plea is offered; and
(3) that he has the right to plead not guilty, or to persist in that plea if it has already been made; and
(4) that if he pleads guilty or nolo contendere there will not be a further trial of any kind, so that by pleading guilty or nolo contendere he waives the right to a trial[.]
....
(d) Insuring that the Plea is Voluntary. The court shall not accept a plea of **588 *259 guilty or nolo contendere without first addressing the defendant personally in open court and determining that the plea is voluntary and not the result of force or threats or of promises apart from a plea agreement. The court shall also inquire as to whether the defendant's willingness to plead guilty or nolo contendere results from any plea agreement.
HRPP Rule 32(d) (1994) states as follows:
Withdrawal of Plea of Guilty. A motion to withdraw a plea of guilty or of nolo contendere may be made only before sentence is imposed or imposition of sentence is suspended; but to correct manifest injustice the court after sentence shall set aside the judgment of conviction and permit the defendant to withdraw his plea.
HRPP Rule 40 (2000) states, in relevant part, as follows:
POST-CONVICTION PROCEEDING.
(a) Proceedings and Grounds. The post-conviction proceeding established by this rule shall encompass all common law and statutory procedures for the same purpose, including habeas corpus and coram nobis; provided that the foregoing shall not be construed to limit the availability of remedies in the trial court or on direct appeal. Said proceeding shall be applicable to judgments of conviction and to custody based on judgments of conviction, as follows:
(1) From Judgment. At any time but not prior to final judgment, any person may seek relief under the procedure set forth in this rule from the judgment of conviction, on the following grounds:
(i) that the judgment was obtained or sentence imposed in violation of the constitution of the United States or of the State of Hawai'i[.]
BACKGROUND
On July 7, 1998, Aeto was arrested for the following offenses: (1) Driving Under the Influence of Intoxicating Liquor (DUI), Hawaii Revised Statutes (HRS) § 291-4 (1993); (2) No No-Fault Insurance, HRS § 431:10C-104 (Supp.1997); and (3) Disobedience to Traffic-Control Devices, HRS § 291C-31 (1993).
On October 21, 1998, while represented by a deputy public defender and pursuant to a plea agreement, Aeto pled no contest to charge (1), and charges (2) and (3) were dismissed. Judge Christopher McKenzie spoke with Aeto in relevant part as follows:
THE COURT: ... Mr. Aeto, I take it you discussed your no contest plea on your driving under the influence charge with your attorney?
[AETO]: Yes, sir.
THE COURT: And, you understand when you plead no contest, you will be found guilty?
[AETO]: Yes, sir.
....
THE COURT: You and your attorney have discussed what the maximum penalt
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