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State v. Kalaola9/30/2005
NOT FOR PUBLICATION
SUMMARY DISPOSITION ORDER
By: Moon, C.J., Levinson, Nakayama, and Duffy, JJ.; Acoba, J., Concurring
Defendant-appellant Clint Kelai Kalaola appeals from the findings of facts (FOFs), conclusions of law (COLs), and order of the Circuit Court of the First Circuit, the Honorable Sandra A. Simms presiding, filed on May 26, 2004, denying Kalaola's Hawaii Rules of Penal Procedure (HRPP) Rule 35 motion to dismiss his conviction of and sentence for habitually driving under the influence of intoxicating liquor (habitual DUI), in violation of Hawaii Revised Statutes (HRS) § 291-4.4 (1995), and reduce the sentence (Rule 35 motion).
On appeal, Kalaola contends that the circuit court erred in denying his Rule 35 motion after he had offered evidence that two of his four predicate DUI convictions used to support his habitual DUI conviction were dismissed by the district court. Specifically, Kalaola asserts that: (1) HRPP Rule 35 clearly allows him to raise a post-judgment challenge to an illegal sentence at any time; (2) his plea of nolo contendere, or "no contest," to the habitual DUI charge did not bar his right to attack any of the predicate prior DUI convictions upon which the habitual DUI offense was based; and (3) his post-judgment attack on the habitual DUI conviction was permissible under State v. Shimabukuro, 100 Hawaii 324, 60 P.3d 274 (2002), and State v. Veikoso, 102 Hawaii 219, 74 P.3d 575 (2003).
Upon carefully reviewing the record and the briefs submitted by the parties and having given due consideration to the arguments advanced and the issues raised by the parties, we hold that:
(1) the circuit court did not err in concluding that Kalaola "has no remedy under [HRPP] Rule 35" because he failed to file his Rule 35 motion within the ninety-day time period mandated by HRPP Rule 35 or pursuant to HRPP Rule 40.
(2) the circuit court did not err in concluding that Kalaola "waived his right to challenge the factual basis that he had been convicted of DUI, a violation of HRS § 291-4, three times within ten (10) years prior to the commission of the [habitual] offense" in view of the fact that Kalaola unconditionally, knowingly and voluntarily pled no contest to the habitual DUI charge. See State v. Morin, 71 Haw. 159, 162-63, 785 P.2d 1316, 1318 (1990); and
(3) the circuit court did not err in concluding that there was "no basis to reduce the sentence within either [Shimabukuro or Veikoso] as the procedural and factual history in this case are distinguished from those aspects of the other two cases" because " one of [Kalaola's] prior DUI convictions [ ] had been vacated at the time he pled guilty," Veikoso, 102 Hawaii 223, 74 P.3d at 579 (distinguishing Shimabukuro) (emphasis added). Moreover, unlike the defendants in Shimabukuro, 100 Hawaii at 325-26, 60 P.3d at 275-76, and Veikoso, 102 Hawaii at 221, 74 P.3d at 577, Kalaola's plea was unconditional. See Morin, 71 Haw. at 162, 785 P.2d at 1318. Therefore,
IT IS HEREBY ORDERED that the May 26, 2004 order of the Circuit Court of the First Circuit denying Kalaola's motion to dismiss the habitual DUI conviction and sentence filed pursuant to HRPP Rule 35 is affirmed.
CONCURRENCE BY ACOBA, J.
I concur in the result only.
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