State v. Morris

  NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER




                                                  Electronically Filed
                                                  Intermediate Court of Appeals
                                                  CAAP-XX-XXXXXXX
                                                  24-AUG-2022
                                                  07:57 AM
                                                  Dkt. 54 SO




                           NO. CAAP-XX-XXXXXXX

                 IN THE INTERMEDIATE COURT OF APPEALS

                         OF THE STATE OF HAWAI#I


               STATE OF HAWAI#I, Plaintiff-Appellee, v.
                MARC ALLAN MORRIS, Defendant-Appellant


         APPEAL FROM THE DISTRICT COURT OF THE SECOND CIRCUIT
                           (WAILUKU DIVISION)
                       (CASE NO. 2DTC-18-006704)


                    SUMMARY DISPOSITION ORDER
    (By: Leonard, Presiding Judge, Hiraoka and Nakasone, JJ.)

            Defendant-Appellant Marc Allan Morris (Morris) appeals

from the September 8, 2020 Sua Sponte Order Setting Aside Order,

Reinstating Restitution Balance and Setting Proof of Compliance

Hearing (Reinstatement Order), and the October 1, 2020 Order and

Notice of Entry of Order (Order Denying Reconsideration), entered

in the District Court of the Second Circuit, Wailuku Division

(District Court).1




     1
            The Honorable Blaine J. Kobayashi presided.
  NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER


           Morris raises two points of error on appeal, contending

that:   (1) the Reinstatement Order constitutes an illegal

sentence because restitution is not an authorized disposition for

violations; and (2) the District Court erred in issuing the

Reinstatement Order and increasing Morris's monthly payments from

$10.00 to $25.00 without notice, without a hearing, without the

opportunity to present evidence and argument, and without the

opportunity to confront and cross-examine witnesses.

           Upon careful review of the record and the briefs

submitted by the parties, and having given due consideration to

the arguments advanced and the issues raised by the parties, we

resolve Morris's points of error as follows:

           (1)   Restitution is an authorized disposition for

crimes, but not violations.    See Hawaii Revised Statutes (HRS)

§ 706-646 (2014 & Supp. 2017).    Lack of Due Care is a violation.

See HRS § 701-107 (2014); Maui County Code (MCC) § 10.72.020

(1983) ("Any person convicted of a violation of any section or

provision of this title shall be punished by a fine[.]"); MCC

§ 10.08.050 (1980) ("[i]t is a violation for any person to do

any act forbidden or fail to perform any act required in this

title"); State v. Fukuoka, 141 Hawai#i 48, 52 n.1, 

,

318 n.1 (2017) (stating that lack of due care, in violation of

MCC § 10.52.010 (1965), "constitutes a violation punishable by a

fine").   Accordingly, restitution is not an authorized

disposition for Lack of Due Care, and the District Court could

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  NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER


not impose restitution as part of Morris's sentence for Lack of

Due Care.    See State v. Nakamura, 121 Hawai#i 117, 118 n.4, 

, 1108 n.4 (App. 2009) ("[A]greed to or not, 'a court

may only pronounce a sentence which the law hath annexed to the

crime, and a sentence which does not conform to statutory

sentencing provisions, either in the character or the extent of

the punishment imposed, is void'" (citations, internal quotation

marks, and brackets omitted)).

            We conclude that the District Court erred in

reinstating restitution and in denying Morris's Motion for

Reconsideration.2

            (2)   In light of our resolution of Morris's first point

of error, we need not address the second one.




      2
            The State concedes that "restitution could not have been ordered
as part of Morris'[s] sentence, the plea agreement notwithstanding." However,
the State asserts, for the first time on appeal, that Morris's pleas and
convictions should be vacated, and that the State should be allowed on remand
to either (1) proceed with a change of plea hearing and sentencing on the
remaining charges under the parties' original plea agreement, or (2) withdraw
from the plea agreement and reinstate the Inattention to Driving charge. The
State failed to raise such arguments before the District Court, and thus
waived them on appeal. See State v. Hoglund, 

, 

 (1990) ("Generally, the failure to properly raise an issue at the trial
level precludes a party from raising that issue on appeal."). Moreover, the
State expressly stated that it had no objection to Morris's motion to strike
the restitution amount, and did not object when the District Court struck the
Restitution Order.

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          For the foregoing reasons, the District Court's

September 8, 2020 Reinstatement Order and October 1, 2020 Order

Denying Reconsideration are reversed.

          DATED: Honolulu, Hawai#i, August 24, 2022.

On the briefs:                        /s/ Katherine G. Leonard
                                      Presiding Judge
Taryn R. Tomasa,
Deputy Public Defender,               /s/ Keith K. Hiraoka
for Defendant-Appellant.              Associate Judge

Gerald K. Enriques,                   /s/ Karen T. Nakasone
Deputy Prosecuting Attorney,          Associate Judge
County of Maui
for Plaintiff-Appellee.




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