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Electronically Filed
Supreme Court
SCWC-XX-XXXXXXX
20-MAY-2024
04:11 PM
Dkt. 15 MO
SCWC-XX-XXXXXXX
IN THE SUPREME COURT OF THE STATE OF HAWAI‘I
________________________________________________________________
STATE OF HAWAI‘I,
Respondent/Plaintiff-Appellee,
vs.
PATRICK H. OKI,
Petitioner/Defendant-Appellant.
________________________________________________________________
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-XX-XXXXXXX and CAAP-XX-XXXXXXX (consolidated);
CR. NO. 1PC151000488)
MEMORANDUM OPINION
(By: Recktenwald, C.J., Circuit Judge Castagnetti, in place of
Ginoza, J., recused, and Circuit Judge Chang, in place of
Devens, J., recused, with McKenna, J. dissenting, with whom
Eddins, J., joins)
I. INTRODUCTION
This appeal arises from Patrick H. Oki’s conviction
and sentence for fraudulently obtaining money from a local
accounting firm. Oki was convicted of three counts of first-
degree theft, one count of second-degree theft, three counts of
money laundering, two counts of use of a computer in the
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commission of the thefts in the first degree charged in counts 2
and 3 (sometimes “use of a computer” or “counts 8 and 9”), and
four counts of second-degree forgery. He was sentenced to
twenty years of incarceration for the use of a computer counts -
the longest of his sentences, all of which were to be served
concurrently. Oki was also ordered to pay restitution of
$440,158.54, pursuant to statute during his incarceration, and
at a rate of at least $30 per month after his release.
In his application for writ of certiorari, Oki raises
three issues.
First, Oki challenges his convictions for use of a
computer in the commission of a separate theft in counts 8 and 9
as illegal because after he was charged with the offenses, but
before his trial and sentencing, the statutory subsection under
which he was convicted was repealed. The act repealing the
subsection, Act 231, contained a savings clause, which provided
in relevant part, “[t]his Act does not affect rights and duties
that matured, penalties that were incurred, and proceedings that
were begun before its effective date.” 2016 Haw. Sess. Laws Act
231, § 70 at 775.
Second, Oki challenges the payment schedule in his
restitution order. The Intermediate Court of Appeals (ICA) held
that Oki waived any challenge to the time and manner of
restitution payment. Oki disagrees and requests this court
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clarify the difference between waiver, which forecloses plain
error review, and forfeiture, under which plain error review
still applies. Oki further contends that the circuit court’s
restitution payment schedule was plainly erroneous because it
failed to consider Oki’s ability to pay in setting the manner
and time of payment pursuant to Hawai‘i Revised Statutes (HRS)
§ 706-646(3) (Supp. 2017).
Third, Oki argues the ICA erroneously held that its
remand mandate in a prior appeal by Oki “precluded” the circuit
court from revisiting the amount of restitution on remand. The
circuit court had initially ordered Oki to pay restitution to
the firm, including, but not limited to, four of his former
partners in their capacity as partners; the ICA vacated as to
that order only and remanded to the circuit court with
directions to order restitution directly to the firm itself. On
remand, Oki filed a motion for a restitution hearing and study,
arguing that the circuit court needed to recalculate restitution
entirely because the record lacked evidence of the victim’s
“reasonable and verified losses” pursuant to HRS § 706-646(2)
(2014). The circuit court denied the motion.
We resolve Oki’s issues as follows. With respect to
the first issue, this case requires a straightforward
application of our precedent in State v. Reis, 115 Hawai‘i 79,
165 P.3d 980 (2007). There, we interpreted a savings clause
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that contained the same language as Act 231, which is at issue
here. We concluded that the defendant in Reis did not get the
benefit of the ameliorative amendments contained in the
applicable statute, because (1) her prosecution had begun before
the effective date of the statute, and (2) she had committed the
crime — and thus “incurred” the penalty — before that date.
Those are exactly the same circumstances as Oki. Therefore, we
affirm Oki’s convictions for use of a computer in the commission
of a separate theft because the “proceedings” of his case began
before Act 231’s effective date, and he also committed the
crimes before those crimes were statutorily repealed.
Second, the ICA correctly concluded that Oki waived
his claim as to the restitution payment schedule, and the
circuit court’s restitution payment schedule was not plainly
erroneous. Contrary to Oki’s contention, the circuit court
expressly considered Oki’s ability to pay in setting the manner
and time of payment pursuant to HRS § 706-646(3).
Finally, the ICA did not hold that its remand mandate
“precluded” the circuit court from reconsidering the restitution
amount on remand; rather, the ICA correctly held that the
circuit court did not err in denying Oki’s motion for a
restitution hearing and study. The restitution amount had
already been determined based on the “reasonable and verified
losses” of the accounting firm and the circuit court’s decision
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“closely adhere[d]” to the true intent and meaning of the ICA’s
remand mandate. See HRS § 706-646(2); In re Haw. Elec. Light
Co. (In re HELCO), 149 Hawai‘i 239, 241, 487 P.3d 708, 710
(2021).
We therefore affirm the ICA.
II. BACKGROUND
A. Factual Background
Oki’s charges are based on his alleged conduct
carrying out four fraudulent schemes between 2011 and 2014 as
managing principal partner of local accounting firm Spire
Hawai‘i, LLP (Spire), formerly PKF Pacific Hawai‘i, LLP (PKF).
State v. Oki (Oki I), No. CAAP-XX-XXXXXXX, 2020 WL 3027401, at
*1 (Haw. App. June 5, 2020) (mem. op.). Oki’s former partners
at Spire, Lawrence Chew, Deneen Nakashima, Dwayne Takeno, and
Trisha Nomura (collectively, “former partners”) began to suspect
Oki of stealing money from PKF and reported him to the police in
2014.
Id.
B. Initial Circuit Court Trial Proceedings 1
On April 1, 2015, Oki was indicted for thirteen
charges: three counts of Theft in the First Degree, in violation
of Hawai‘i Revised Statutes (HRS) §§ 708-830.5(1)(a) and -830(2);
one count of Theft in the Second Degree, in violation of HRS §§
1 The Honorable Rom A. Trader presided.
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708-831(1)(b) and -830(2); three counts of Money Laundering, in
violation of HRS § 708A-3(1)(a)(ii)(A); two counts of Use of a
Computer in the Commission of a Separate Crime, in violation of
HRS § 708-893(1)(a) (Counts 8 and 9); and four counts of Forgery
in the Second Degree, in violation of HRS § 708-852.
With respect to counts 8 and 9 of the indictment, the
two use of a computer charges attendant to the thefts in the
first degree charges in counts 2 and 3, HRS § 708-893(1)(a)
provided in relevant part, “(1) A person commits the offense of
use of a computer in the commission of a separate crime if the
person: (a) Intentionally uses a computer to obtain control
over the property of the victim to commit theft in the first or
second degree.” Subsection (2) of HRS § 708-893 then provided
and still provides that the “[u]se of a computer in the
commission of a separate crime is an offense one class or
grade . . . greater than the offense facilitated.
Notwithstanding any other law to the contrary, a conviction
under this section shall not merge with a conviction for the
separate crime.”
Before trial, Oki filed a motion to dismiss the use of
a computer in the commission of a separate theft charges, counts
8 and 9; he then filed an amended motion. He argued that the
use of a computer charges were defective because they
(1) involved penalties amounting to cruel “and/or” unusual
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punishment; 2 (2) violated his rights to due process and equal
protection; (3) were not rationally related to a legitimate
public purpose; (4) were overbroad as a matter of law; and
(5) did not apply to this case pursuant to rules of statutory
construction.
As support for his cruel and unusual punishment
argument, Oki cited House Bill 2561 of 2016, which at that time,
had been approved by the legislature but had not yet become law.
Oki noted that the bill, which later became Act 231 of 2016,
would completely repeal the subsection of HRS § 708-893 upon
which Oki’s use of a computer charges were based, which was HRS
§ 708-893(1)(a). Act 231 became law on July 11, 2016, with an
effective date of July 1, 2016, after Oki was charged but before
he was tried and sentenced. 2016 Haw. Sess. Laws Act 231, § 72
at 776.
The circuit court denied Oki’s motion to dismiss.
With respect to Act 231, the circuit court relied on the act’s
savings clause, which provides in part, “SECTION 70. This Act
does not affect rights and duties that matured, penalties that
2 The Hawaiʻi Constitution’s language differs from that of the
United States Constitution. The Eighth Amendment of the latter bans “cruel
and unusual punishment,” but our article I, section 12 prohibits the
infliction of “cruel or unusual punishment.”
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were incurred, and proceedings that were begun before its
effective date.” 3 2016 Haw. Sess. Laws Act 231, § 70 at 775.
On November 30, 2016, the circuit court entered its
Findings of Fact, Conclusions of Law, and Order Denying
Defendant’s Motion to Dismiss Counts 8 and 9 of the Indictment
(FOFs/COLs/Order denying motion to dismiss). The circuit court
concluded Act 231 did not affect Oki’s case because Oki’s
“proceedings,” which it interpreted as his prosecution, began
before Act 231 was enacted.
Following a bench trial, Oki was convicted of all
charges except that one count of first-degree theft in violation
of HRS §§ 708-830.5(1)(a) and -830(2) was reduced to the lesser-
included charge of second-degree theft in violation of HRS
§ 708-831(1)(b) (Supp. 2012) and -830(2) (Supp. 2005).
The circuit court then sentenced Oki to concurrent
sentences of ten years each for counts 1 through 3, five years
for count 4, ten years each for counts 5 through 7, twenty years
each for counts 8 and 9, and five years each for counts 10
through 13, with credit for time served. The circuit court
entered an initial judgment of conviction and sentence on
October 17, 2017; after determining restitution, it entered an
amended judgment of conviction and sentence on May 24, 2018.
3 The savings clause goes on to exempt three sections of the act
involving drug-related offenses (specifically, methamphetamine). 2016 Haw.
Sess. Laws Act 231, § 70(2) at 775-76.
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The State filed a motion for restitution asserting the
former partners were direct victims to whom Oki owed restitution
under HRS § 706-646. Oki opposed the motion and requested no
restitution or, in the alternative, that restitution be ordered
to be paid to Spire. Spire also submitted letters to the
circuit court requesting restitution as the victim of Oki’s
theft crimes.
The circuit court granted the State’s motion for restitution and
ordered Oki to pay $440,178.54 in restitution.
As to the time and manner of payment, the circuit
court stated:
Restitution is to be paid as provided by law while
Mr. Oki is incarcerated and thereafter at a rate – at the
bare minimum it would need to be $30 a month. I certainly
full well recognize based upon Mr. Oki’s income earning
ability, as reflected in this case but also in the
presentence report, and while I certainly appreciate that
it has been adversely impacted by his conviction in this
case, at this point I don’t have, I believe, sufficient
information to know what would be reasonable beyond that
$30 a month.
But if either side wishes to revisit that, and most
likely it would be the State, to seek an increase in the
amount ordered – but that would depend upon Mr. Oki’s
ability to earn, his income earning capacity – then the
Court’s more than willing to consider that at a future
date.
The circuit court also entered a free-standing
restitution order ordering Oki to pay $440,158.54 in restitution
to PKF, “including but not limited to Lawrence Chew, Deneen
Nakashima, Dwayne Takeno[, and] Trisha Nomura in their
capacities as [former] partners of PKF.” Restitution was to be
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paid as provided by HRS § 353-22.6 (Supp. 2016) 4 during Oki’s
incarceration and “thereafter at a rate of at least $30.00 per
month.”
C. Oki I
During the first appeal, Oki asserted:
(1) the circuit court erred in denying Oki’s Motion to
Suppress Evidence from Warrantless Search; (2) the circuit
court erred in denying Oki’s Motion to Suppress Evidence
from Unlawful Warrant; (3) the circuit court erred in
denying Oki’s [Motion to Dismiss] Counts 8 & 9; (4) there
was insufficient evidence that Oki intended to permanently
deprive the partnership of any property; and (5) the
circuit court erred in granting the State’s Motion for
Restitution.
Oki I, 2020 WL 3027401, at *10. The State cross-appealed and
contended “the circuit court erred in refusing to order Oki to
pay restitution directly to Chew, Nakashima, Takeno, and Nomura,
in their capacities as the sole partners of PKF at the time of
Oki’s offenses.”
Id.
In its memorandum opinion, the ICA affirmed, except as
to restitution. Oki I, 2020 WL 3027401, at *25. The ICA
remanded to the circuit court to order restitution “directly to
4 HRS § 353-22.6 provided,
The director of public safety shall enforce victim
restitution orders against all moneys earned by the inmate
or deposited or credited to the inmate’s individual account
while incarcerated. Notwithstanding any law or order to
the contrary, the amount deducted shall be twenty-five per
cent of the total of all moneys earned, new deposits, and
credits to the inmate’s individual account. The moneys
intended for victim restitution shall be deducted monthly
and paid to the victim once the amount reaches $25, or
annually, whichever is sooner. This section shall not
apply to moneys earned on work furlough pursuant to section
353–17.
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Spire” rather than to PKF, including but not limited to the
former partners in their capacity as partners. Id.
The ICA’s memorandum opinion also included a footnote
addressing Act 231:
Oki also contends that the legislature’s decision to
remove theft from the purview of HRS § 708-893 in 2016
supports his argument that the statute imposed cruel and
unusual punishment. See 2016 Haw. Sess. Laws Act 231, § 42
at 758-59. Oki specifically points to House Bill 2561,
which led to the removal of theft in the first or second
degree as underlying offenses that would subject a person
to the separate offense of Use of a Computer and enhanced
penalties. See H.B. 2561, 28th Leg., Reg. Sess. (2016).
House Bill 2561 recommended amending HRS § 708-893 by
“[r]epealing a provision that subjects a person to a
separate charge and enhanced penalty for using a computer
to commit an underlying theft crime because it seems unduly
harsh, given the prevalence of ‘smart phones’ and other
computing devices.” Id. (emphasis added). Oki argues that
the legislature’s description of the provision as “unduly
harsh” lends support to his argument that the statute
unconstitutionally imposes cruel and unusual punishment.
We do not agree that the legislature’s
characterization of the provision as “unduly harsh”
indicates an acknowledgment that the statute violated the
protection against cruel and unusual punishment. The Act
contained a savings clause, providing that the repeal of
the provision held only proactive effect and did not have
any retroactive effect: “This Act does not affect rights
and duties that matured, penalties that were incurred, and
proceedings that were begun before its effective date[.]”
2016 Haw. Sess. Laws Act 231, § 70 at 775. If the
legislature intended to, it could have made the law have
retroactive effect, but it did not.
Oki I, 2020 WL 3027401, at *18 n.22.
Oki applied for certiorari review, raising four
questions. Relevant here, the third was whether the ICA erred
in affirming the denial of the motion to dismiss the computer
crimes charges that had been repealed as “unduly harsh” and
constituting cruel and unusual punishment in violation of the
federal and state constitutions. This court denied certiorari
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over Justice Wilson’s dissent. State v. Oki, No. SCWC-18-
0000501, 2020 WL 6115119 (Haw. Oct. 16, 2020) (order rejecting
app. for cert.).
D. Remand 5
On remand, Oki filed a motion for restitution hearing
and study, which the State opposed. The circuit court denied
the motion. At the hearing on the motion, the circuit court
indicated it was constrained to closely follow the ICA’s
directive on remand:
The court notes that the discussion that was . . .
reflected in the ICA’s opinion did indicate that there was
no challenge to the total amount of restitution, but the
challenge was to the manner in which restitution should be
collected or distributed.
Also it noted that all parties agreed that PKF now
exists . . . as Spire . . . .
It concluded therefore after determining that the
partners[,] although identified as victims[,] that that
only exists because of their relationship with PKF, but
that the actual victim and the sole victim was PKF, and
therefore they determined that although there might be some
civil proceeding, that this court should change it or – it
would come back to this court for the purpose of ordering
restitution directly to Spire, the entity formerly known as
PKF.
I understand the argument that the defendants are
making saying that well now everything is changed.
However, I believe that [the State] is correct, there is a
very specific order by the ICA that says, and that’s why I
started with this quote, this matter is remanded to the
circuit court to order restitution directly to Spire, the
entity formerly known as PKF. It doesn’t tell me that I
need to make other hearings to determine if restitution
should be different based on the finding that the four
partners were not the direct victim. The court is
constrained to do any differently.
5 The Honorable Catherine H. Remigio presided on remand.
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It entered a second amended judgment, filed February
10, 2021 (judgment) and an amended restitution order, filed
February 11, 2021 (restitution order). The circuit court
ordered Oki to pay restitution directly to Spire, in the same
amount and time and manner as in the initial restitution order.
The circuit court entered its Order Denying Defendant’s Motion
for Restitution Hearing and Study on March 22, 2021.
In March 2021, Oki filed a motion to correct illegal
sentence. Oki asserted the circuit court had the power to
correct Oki’s illegal sentence in counts 8 and 9 pursuant to
Hawaiʻi Rules of Penal Procedure (HRPP) Rule 35(a) (eff. 2003),
which provides in part that “[t]he court may correct an illegal
sentence at any time and may correct a sentence imposed in an
illegal manner” upon a motion filed within 90 days of the
sentence’s imposition.
Oki asserted his sentence for counts 8 and 9 was
illegal because the offense of the use of a computer in the
commission of a separate theft, HRS § 708-893(1)(a), was
repealed before his trial and sentencing. The State opposed
Oki’s motion to correct illegal sentence.
The circuit court held a hearing on the motion to
correct illegal sentence on April 27, 2021, and took the matter
under advisement. On March 8, 2022, the circuit court entered
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its findings of fact, conclusions of law, and order denying
defendant’s motion to correct illegal sentence.
The circuit court indicated it had already ruled Act
231 did not bar Oki’s prosecution, conviction, and sentence for
counts 8 and 9 in the FOFs/COLs/Order denying motion to dismiss,
and the ICA had also already acknowledged Act 231 did not have
retroactive effect and affirmed the circuit court in that
respect. Citing Wong v. City & Cnty. of Honolulu, 66 Haw. 389,
665 P.2d 157 (1983), the circuit court concluded those rulings
were the “law of the case” and that it could find no “cogent
reason” to vacate the convictions that were upheld on appeal.
The circuit court further concluded Oki’s illegal
sentence argument was barred by the doctrine of collateral
estoppel and res judicata. 6 The circuit court also stated that
because Oki had already conceded Act 231 could not serve as a
basis for dismissal of counts 8 and 9, he was now barred from
arguing the opposite.
The circuit court concluded Oki had waived any
argument based on State v. Avilla, 69 Haw. 509,
750 P.2d 78
(1988), but also found it to be without merit. The circuit
6 This conclusion is wrong, as res judicata and collateral estoppel
principles only apply after “final judgment” has entered and under Hawaiʻi
law, there is no final judgment until all appeals have been exhausted. See
Saplan v. U.S. Bank Nat’l Ass’n, No. SCWC-XX-XXXXXXX, at *20-21 n.8 (Haw. May
20, 2024) (citing E. Sav. Bank, FSB v. Esteban, 129 Hawai‘i 154, 160, 296 P.3d
1062, 1068 (2013)).
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court determined the legislature did not intend to give
retroactive effect to the statutory amendment deleting use of a
computer because it only provided exceptions to the savings
clause for the drug-related offenses. It agreed with the State
that because Act 231 was “comprehensive legislation,” Oki’s case
was more similar to Reis than Avilla.
E. Appellate Proceedings
The ICA affirmed the circuit court’s judgment and
restitution order and affirmed in part the order denying Oki’s
motion to correct illegal sentence.
The ICA held the circuit court did not err in ordering
restitution to Spire without another restitution hearing and a
restitution study. The ICA pointed out the Oki I memorandum
opinion expressly noted that neither party had challenged the
total amount of restitution, but merely the manner in which the
restitution should be distributed; the ICA had directed the
circuit court on remand “to order restitution directly to Spire”
but affirmed the judgment “in all other respects.” The ICA
concluded that on remand, the circuit court closely adhered to
“the true intent and meaning” of its Oki I mandate. (Quoting In
re HELCO, 149 Hawaiʻi at 241, 487 P.3d at 710.)
As to the time and manner of restitution payment, the
ICA held Oki had waived the issue because he did not raise it in
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his first appeal nor cite to where in the record he raised it on
remand.
As to the merits of the illegal sentence issue, the
ICA majority indicated it turned on the meaning of the term
“proceedings” in the Act 231 savings clause. The majority
opined that Reis is “directly on point.” The majority referred
to the principle that it must presume the legislature knew the
law, including Reis’s interpretation of “proceedings,” when
enacting Act 231. It agreed with the State that construing
“proceedings” to mean trial and sentencing would render
superfluous the provisions of the Act 231 savings clause that
provide exceptions for certain drug-related offenses.
The majority also deemed Oki’s illegal sentence
argument unavailing because Reis interpreted an identical
savings clause to mean that a defendant incurs liability for a
criminal penalty at the time they commit the offense. (Citing
Reis, 115 Hawaiʻi at 93, 165 P.3d at 994.) The majority
concluded that, despite the legislature’s remedial purpose in
repealing HRS § 708-893(1)(a), it must apply the plain meaning
of “proceedings.” The majority also rejected Oki’s reliance on
In re Estrada,
408 P.2d 948 (Cal. 1965) and State v. Tapp,
490
P.2d 334 (Utah 1971) and concluded the circuit court did not err
in denying Oki’s motion to correct illegal sentence.
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Judge Wadsworth dissented as to the illegal sentence
issue. He disagreed with the majority’s conclusion that Reis is
directly on point and Avilla is distinguishable. Judge
Wadsworth emphasized that Reis only held that “‘proceedings,’
absent ambiguity arising from [the] subject matter peculiar to
the legislation, means criminal prosecutions.” 115 Hawai‘i at
97-98, 165 P.3d at 998-99.
Judge Wadsworth opined that the repealing legislation
shared relevant similarities with that in Avilla, not Reis.
First, although Act 231 is broad, section 42 pertains solely to
the repeal of HRS § 708-893(1)(a). Second, the express
legislative purpose was to eliminate an “unduly harsh” separate
charge and enhanced penalty for use of a computer. That
purpose, according to Judge Wadsworth, injected ambiguity into
the term “proceedings” as used in the savings clause “and
applied to section 42.” Thus, “[i]n this unique context,
‘proceedings’ can mean trial and sentencing proceedings begun
after the Act’s effective date for pre-effective date
violations.”
F. Certiorari Proceedings
Oki argues that the ICA erred by (1) holding Reis,
rather than Avilla, controls and affirming his conviction as to
the use of a computer charges; (2) concluding Oki “‘waived’ his
claim that the circuit court failed to consider his ability to
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pay when ruling on how and when restitution would be paid;” and
(3) holding “the circuit court could not revisit the amount of
restitution on remand.”
III. STANDARDS OF REVIEW
A. Motion to Correct Illegal Sentence
“A circuit court’s denial based on a conclusion of law,
of a defendant’s HRPP Rule 35 motion to correct illegal sentence
is reviewed de novo, under the right/wrong standard of review.”
State v. Canosa, 152 Hawai‘i 145, 155, 523 P.3d 1059, 1069 (2023)
(citing State v. Kido, 109 Hawai‘i 458, 461,
128 P.3d 340, 343
(2006)).
B. Statutory Interpretation
“The interpretation of a statute is a question of
law. Review is de novo, and the standard of review is
right/wrong.” Kimura v. Kamalo, 106 Hawai‘i 501, 507, 107
P.3d 430, 436 (2005) (citation omitted). Our statutory
interpretation is guided by the following principles:
First, the fundamental starting point for statutory
interpretation is the language of the statute itself.
Second, where the statutory language is plain and
unambiguous, our sole duty is to give effect to its
plain and obvious meaning. Third, implicit in the
task of statutory construction is our foremost
obligation to ascertain and give effect to the
intention of the legislature, which is to be obtained
primarily from the language contained in the statute
itself. Fourth, when there is doubt, doubleness of
meaning, or indistinctiveness or uncertainty of an
expression used in a statute, an ambiguity exists.
And fifth, in construing an ambiguous statute, the
meaning of the ambiguous words may be sought by
examining the context, with which the ambiguous
words, phrases, and sentences may be compared, in
order to ascertain their true meaning.
Ito v. Invs. Equity Life Holding Co., 135 Hawai‘i 49, 61,
346 P.3d 118, 130 (2015) (citation omitted).
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State v. Borge, 152 Hawai‘i 458, 464, 526 P.3d 435, 441 (2023).
C. Sentencing
“The authority of a trial court to select and
determine the severity of a penalty is normally undisturbed on
review in the absence of an apparent abuse of discretion or
unless applicable statutory or constitutional commands have not
been observed.” Reis, 115 Hawai‘i at 83, 165 P.3d at 984
(quoting State v. Aplaca, 96 Hawai‘i 17, 22,
25 P.3d 792, 797
(2001)).
IV. DISCUSSION
A. Illegal Sentence
On appeal, Oki challenges his convictions for use of a
computer to facilitate first-degree theft as illegal because
after he was charged with the offenses, but before his trial and
sentencing, the statutory subsection under which he was
convicted was repealed. We conclude that Reis controls and
therefore affirm Oki’s convictions on counts 8 and 9.
Act 231, which repealed the use of a computer offense
of which Oki was convicted in counts 8 and 9, arose from an
omnibus bill and amended multiple statutes in the Hawai‘i Penal
Code. 2016 Haw. Sess. Laws Act 231, § 70 at 733-76. Section 42
of Act 231 repealed HRS § 708-893(1)(a), the use of a computer
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in the commission of theft offense. 2016 Haw. Sess. Laws Act
231, § 42 at 758.
The act included a savings clause, section 70, which
states:
This Act does not affect rights and duties that
matured, penalties that were incurred, and proceedings that
were begun before its effective date; provided that
sections 54, 55, and 56[ 7] shall apply to offenses committed
before the effective date of this Act:
(1) But not yet charged as of its effective date;
(2) Originally charged as a violation of section
712-1240.7 or 712-1240.8, Hawaiʻi Revised
Statutes, where the defendant:
(a) Has not yet been placed in jeopardy or
convicted on a plea or verdict; and
(b) Waives any claim of denial of speedy trial
rights for the period elapsing between the
date of filing of the original charge and
the date of filing of the new charge under
this Act;
(3) Originally charged as a violation of section
712-1240.7 or 712-1240.8, Hawaiʻi Revised
Statutes, for which the defendant has been
convicted on a plea or verdict, but not yet
sentenced, in which case the defendant shall be
sentenced pursuant to this Act; and
(4) Originally charged as a violation of section
712-1240.7 or 712-1240.8, Hawaiʻi Revised
Statutes, for which the defendant has been
convicted on a plea or verdict and sentenced
but for which no final judgment on appeal has
been entered, in which case the appellate court
shall either:
(a) Remand the case for sentencing pursuant to
this Act if the judgment is affirmed on
appeal or if the sentence is vacated; or
(b) Remand the case for further proceedings
pursuant to this Act if the judgment is
7 Those sections gave trial courts greater discretion in sentencing
methamphetamine offenses. See 2016 Haw. Sess. Laws Act 231, §§ 54-56 at 764-
65; State v. Bovee, 139 Hawai‘i 530, 543, 394 P.3d 760, 773 (2017).
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reversed and remanded for further
proceedings.
2016 Haw. Sess. Laws Act 231, § 70 at 775-76.
This court has previously interpreted the “penalties
that were incurred” and “proceedings that were begun” savings
clause language in two cases: Avilla and Reis.
In Avilla, this court considered a savings clause
substantially similar to the one at issue here. 1987 Haw. Sess.
Laws Act 139, § 10 at 316 (“This Act does not affect rights and
duties that matured, penalties that were incurred, and
proceedings that were begun, before its effective date.”).
Avilla argued that Act 139’s ameliorative bail provisions should
apply to his case. Id. § 8 at 314-15. Act 139 provided
defendants convicted of a felony the opportunity to seek bail
pending appeal in limited circumstances. Avilla was indicted
before Act 139’s effective date, but his appellate proceedings
began after the effective date. Avilla, 69 Haw. at 511-12,
750
P.2d at 79-80. He was convicted of two felonies and then filed
a motion to continue bail pending appeal.
Id. at 511,
750 P.2d
at 79. The circuit court denied his motion, finding that
“proceedings” applied to the beginning of the prosecution, and
therefore he was not eligible for the Act’s ameliorative
provisions.
Id.
On appeal, this court rejected the circuit court’s
interpretation and held that “proceedings” in the context of Act
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139 applied to bail proceedings, rather than the beginning of a
prosecution. Id. at 512,
750 P.2d at 80. We held the term
“proceedings” was ambiguous because it could mean prosecutions,
“but within the context of the statutes regulating the release
of defendants on bail, it also [could] mean bail proceedings.”
Id.
In Reis, a defendant pled guilty to all charged counts
of drug use, drug promotion, and prostitution. Prior to her
sentencing, the legislature passed Act 44, which provided that
“a person convicted for the first time for any
offense . . . involving [drug] possession . . . . is eligible to
be sentenced to probation.” 2004 Haw. Sess. Laws Act 44, § 11
at 214. Act 44 contained a specific savings clause which read
“[t]his Act does not affect rights and duties that matured,
penalties that were incurred, and proceedings that were begun,
before its effective date.” Id. § 29 at 227. Reis argued that
because her sentencing proceedings had not begun until after Act
44’s passage, she should be entitled to the act’s ameliorative
sentencing provisions.
This court rejected her argument, concluding that
“‘proceedings,’ absent ambiguity arising from subject matter
peculiar to the legislation, means criminal prosecutions of
which sentencing hearings are an inseparable component” and
therefore, Reis was subject to the sentencing provisions in
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place at the time the criminal prosecution against her began.
Reis, 115 Hawaiʻi at 97–98, 165 P.3d at 998–99. We held that
“proceedings” in the context of Act 44 “unambiguously means the
initiation of a criminal prosecution against a defendant through
a charging instrument and subsumes within its scope hearings and
other procedural events that arise as a direct result of the
initial charging instrument.” Id. at 98, 165 P.3d at 999. In
doing so, we noted the initiation of criminal proceedings
through a formal felony prosecution, preliminary hearing,
indictment, information, or arraignment “is the starting point
of our whole system of adversary criminal justice.”
Id.
(quoting State v. Luton, 83 Hawai‘i 443, 449,
927 P.2d 844, 850
(1996)).
We then distinguished Avilla:
Avilla, therefore, does not stand, as Reis contends, for
the proposition that this court construes the language of
the standard savings clause “in a manner that best
effectuates the underlying legislative intent and purpose
of that particular statute.” We resort to legislative
history only when there is an ambiguity in the plain
language of the statute. [State v. ]Valdivia, 95 Hawai‘i
[465,] 472, 24 P.3d [661,] 668 [(2001)]. Rather, Avilla
stands for the unremarkable proposition that, if a
statutory amendment on a single subject addresses
proceedings other than criminal prosecutions—and the
numerous hearings subsumed within criminal prosecutions,
including hearings on evidentiary matters, motions for
reconsideration, and sentencing—so as to give rise to an
ambiguity, the defendant may benefit from the amendment if
doing so would comport with the intent of the legislature
as reflected in the amendment's underlying legislative
history.
Id. at 90, 165 P.3d at 991.
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In Reis, we also interpreted the meaning of the
savings clause “penalties that were incurred” language. Id. at
91-93, 165 P.3d at 992-94. We held that a defendant “incurs” a
penalty at the time of the commission of the offense.
Id.
Here, Oki asks for relief from his sentence for the
use of a computer in the commission of a separate crime under
HRS § 708-893(1)(a) (2014) when that sentence was imposed after
Act 231 became law. Section 70 of Act 231 reads the same as the
savings clauses in Reis, but notably, also provides exceptions
for certain drug-related offenses. Because there is no
ambiguity to the term “proceedings,” and because Oki’s crime was
not excluded from section 70’s savings language, Reis must
control.
In both Reis and here, “proceedings” is not ambiguous
because the relevant acts address criminal proceedings
generally, rather than only one stage of the criminal
proceedings, as in Avilla. In Reis, this court held that
“proceedings” applied to the initiation of a criminal
prosecution because there, Act 44 “[was] comprehensive
legislation enacted to address the epidemic of crystal
methamphetamine use in the state” that introduced new charges
and adjusted sentencing provisions, amongst other changes. 115
Hawaiʻi at 89, 165 P.3d at 990. Here, Act 231, which repealed
the use of a computer offense of which Oki was convicted in
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counts 8 and 9, arose from an omnibus bill and amended multiple
statutes in the Hawaiʻi Penal Code.
We explained in Reis that Avilla was distinguishable
because Avilla focused on “a statutory amendment on a single
subject address[ing] proceedings other than criminal
prosecutions” generally. Id. at 90, 165 P.3d at 991. But here,
Act 231 was the product of an omnibus review of the penal code
that resulted in a variety of changes that applied to various
stages of criminal proceedings – from the repeal of the
computer-crime charges, to changes in sentencing for meth-
related crimes, amongst many others. The act in Avilla solely
addressed bail proceedings, thereby infusing the word
“proceedings” with ambiguity because it might refer to the
beginning of a prosecution or the beginning of appellate bail
proceedings. See Avilla, 69 Haw. at 512–13,
750 P.2d at 80.
Conversely, here, Act 231 does not focus on one stage in the
criminal prosecution, and thus “proceedings” is not ambiguous.
There being no ambiguity, we defer to the “standard
interpretation of ‘proceedings’ as the initiation of a criminal
prosecution.” Reis, 115 Hawaiʻi at 90,
165 P.3d at 991.
In other words, it was clear in Reis that the
“proceedings” language of the relevant bill referred to the
beginning of the prosecution, while in Avilla, it was ambiguous
as to whether “proceedings” referred to the initial charges or
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to appellate proceedings. But here, like in Reis, there is no
ambiguity because Act 231 encompasses changes to criminal
proceedings generally, rather than applying to only one stage of
those proceedings.
This conclusion is also supported by the plain
language of Act 231’s savings clause, section 70. “[T]his court
must presume that the legislature meant what it said and is
further barred from rejecting otherwise unambiguous statutory
language.” State v. Demello, 136 Hawai‘i 193, 195, 361 P.3d 420,
422 (2015) (quoting Morgan v. Plan. Dep't, Cnty. of Kaua‘i, 104
Hawai‘i 173, 185,
86 P.3d 982, 994 (2004)). “[T]he legislature
is presumed to know the law when enacting statutes,” including
this court’s decisions. Agustin v. Dan Ostrow Const. Co.,
64
Haw. 80, 83,
636 P.2d 1348, 1351 (1981) (“[W]e must presume that
the legislature knew of the definition we assigned to the word
‘accrued’” in another case).
Here, we presume the legislature was aware of our
holding in Reis, where we clearly defined “proceedings,” as
discussed above. This court stated in Reis that “[t]he
inclusion of a specific savings clause within the body of the
amending statute demonstrates a clear legislative intent that
the contents of the act do not apply retroactively.” Reis, 115
Hawai‘i at 90, 165 P.3d at 991; see also
id. at 90 n.19,
165 P.3d
at 991 n.19.
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The legislature clearly intended for Act 231 to apply
retroactively to certain specific provisions, which did not
include section 42. Specifically, it outlined that “sections
54, 55, and 56 [of Act 231] shall apply to offenses committed
before the effective date of this Act.” 2016 Haw. Sess. Laws
Act 231, § 70 at 775. It then specified which law, either the
previous statute or Act 231, should apply to which defendants.
The legislature thus knew how to apply Act 231 retroactively to
certain defendants at different stages of criminal proceedings.
But it deliberately chose not to address defendants affected by
section 42. This targeted approach to creating exceptions in
the otherwise broad sweep of the savings clause is indicative of
the legislature’s intent. See State v. Choy Foo, 142 Hawai‘i 65,
74, 414 P.3d 117, 126 (2018) (“[T]he canon of construction
expressio unius est exclusio alterius holds that to express or
include one thing implies the exclusion of the other, or of the
alternative.”) (italics and quotation omitted); Goran Pleho, LLC
v. Lacy, 144 Hawai‘i 224, 251,
439 P.3d 176, 203 (2019) (“This
court may not take it upon itself to add an additional exception
that the legislature has declined to adopt.”).
Oki argues that the legislature repealed the use of a
computer charge offenses “to prevent unduly harsh separate
charges” and therefore upholding his convictions would undermine
the legislature’s intent. Similarly, the dissent states, “[i]t
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is difficult to understand why we would say the legislature did
not intend to give a defendant the benefit of the more humane
sentence.” But the legislature knew how to give Oki that
benefit, and it specifically chose not to do so. See State v.
Cotton, 55 Haw. 148, 151,
516 P.2d 715, 718 (1973) (“[E]nactment
of laws is the prerogative of the legislature and it is not for
the judiciary to secondguess the legislature or substitute its
judgment for that of the legislature.”); see also Shibuya v.
Architects Hawaii Ltd.,
65 Haw. 26, 41,
647 P.2d 276, 286
(1982) (“[A] court should not substitute its view of wise or
fair legislative policy for that of the duly elected
representatives of the people.”) (quotation omitted).
The dissent attempts to distinguish Reis on the basis
that “it addressed a statute that reduced penalties, not one
that repealed a crime.” (Emphases omitted.) But the dissent
does not explain why that distinction should matter. To the
contrary, our reasoning in Reis still applies: “an unambiguous
term can[not] be rendered ambiguous merely because the statutory
provision urged as applicable by the defendant is ameliorative.”
115 Hawai‘i at 88, 165 P.3d at 989.
Moreover, Reis’s policy rationale applies with equal
force here. See State v. Stocker, 90 Hawai‘i 85, 95, 976 P.2d
399, 409 (1999) (“[A] court should not overrule its earlier
decisions unless the most cogent reasons and inescapable logic
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require it.”) We explained in Reis that our interpretation of
“proceedings” and “incurred” accorded with a consistent
application of the terms across a variety of statutes, and
preserved the constitutionality of the statute as a whole:
To interpret “proceedings” to mean any discrete hearing
pertaining to sentencing, motions for reconsideration, or
appellate review would, in practice, mean that the savings
clause would not operate to exclude a defendant's case
unless all stages of a prosecution and all appeals were
entirely concluded prior to the effective date of an
amendment. Such a construction would vitiate the very
reason for enacting a savings clause, to wit, (1) to
delineate clearly which defendants fall under the new
statute, in order to avoid producing inconsistent and
unjust outcomes among defendants arising from the vagaries
of the scheduling process, and (2) to avoid rendering
portions of an act—Act 44 in the present matter -
potentially unconstitutional as ex post facto measures. To
construe penalties as having been “incurred” only at the
moment of the imposition of sentence would similarly
generate risks of inconsistency and constitutional
infirmity.
Reis, 115 Hawai‘i at 93, 165 P.3d at 994.
The dissent contends that the rule of lenity applies
because “proceedings” is ambiguous. Respectfully, the Reis
majority considered similar arguments at length and rejected the
position the dissent advances again today. Reis’s analysis
remains valid, and has informed the subsequent actions of the
legislature, including the legislature that adopted Act 231. It
should not be set aside, even in a limited instance, without
compelling justification, which does not exist here. See State
v. Garcia, 96 Hawai‘i 200, 206, 29 P.3d 919, 925 (2001) (noting
that a court should “not depart from the doctrine of stare
decisis without some compelling justification,” and further
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observing that “considerations of stare decisis have special
force in the area of statutory interpretation.”) (citations,
brackets, and emphasis omitted).
Reis therefore controls in this case. While the
outcome is harsh for Oki, following the settled precedent of
this court ensures stability and reliability in our legal
system. Id. (“Adherence to the principle of stare decisis has
added force when the legislature, in the public sphere, and
citizens, in the private realm, have acted in reliance on a
previous decision, for in this instance overruling the decision
would dislodge settled rights and expectations or require an
extensive legislative response.”) (brackets and quotation
omitted).
B. Waiver Versus Forfeiture and Plain Error Review of the
Time and Manner of Restitution Payment
Second, we turn to Oki’s request that this court
clarify the difference between waiver and forfeiture. Regarding
Oki’s contention that the circuit court erroneously failed to
consider his financial ability to make restitution for the
purpose of establishing the time and manner of payment as
required by HRS § 706-646(3), the ICA concluded, “Oki failed to
raise this issue in his first appeal, and he does not state
where in the record he raised it on remand; the issue is
therefore waived.” (Citing Hawai‘i Rules of Appellate Procedure
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(HRAP) Rule 28(b)(4); State v. Moses, 102 Hawai‘i 449, 456, 77
P.3d 940, 947 (2003); State v. Hoglund,
71 Haw. 147, 150,
785
P.2d 1311, 1313.)
Although the terms waiver and forfeiture are often
used interchangeably, they are distinct concepts. See generally
Noah J. Gordon & Kristina E. Music Biro, Nat’l Legal Rsch. Grp.,
28 Am. Jur. 2d Estoppel and Waiver § 184 (2024). Forfeiture is
a “failure to make a timely assertion of a right,” whereas
waiver is “the intentional relinquishment or abandonment of a
known right.” Id. (footnote omitted); see also, e.g., United
States v. Pembrook, 79 F.4th 720, 724 n.1 (6th Cir. 2023).
This court has not addressed the distinction between waiver and
forfeiture, although several cases have acknowledged it. See
State v. Timoteo, 87 Hawai‘i 108, 119,
952 P.2d 865, 876 (1997)
(Ramil, J., dissenting) (“Strictly speaking, ‘waiver’ is the
intentional relinquishment or abandonment of a known right.
However, waiver is different from forfeiture. ‘Forfeiture’
should be defined as the automatic and unintentional loss of a
right, such as that resulting from the failure to make the
timely assertion of a right.” (quotations, citations, and
brackets omitted)); State v. Lui, No. SCWC-XX-XXXXXXX,
2013 WL
693008, at *6 n.1 (order denying certiorari) (Pollack, J.,
dissenting) (“‘Forfeiture’ is distinct from the concept of
‘waiver[.]’”); State v. Nichols, 111 Hawai‘i 436, 443,
142 P.3d
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300, 307 (App. 2005), vacated on other grounds, 111 Hawai‘i 327,
141 P.3d 974 (2006) (“Waiver is different from forfeiture.
Whereas forfeiture is the failure to make the timely assertion
of a right, waiver is the ‘intentional relinquishment or
abandonment of a known right.’ . . . Mere forfeiture, as opposed
to waiver, does not extinguish an ‘error’ under Rule
52(b).”) (quoting Johnson v. Zerbst,
304 U.S. 458, 464 (1938)).
Hawai‘i court rules, as well as some of our opinions,
appear to use the terms interchangeably. HRAP Rule 28(b)(7)
(eff. 2022), for example, provides that “points not argued may
be deemed waived.” But the plain language of HRPP Rule 52(b)
permits the appellate court to notice plain error, even if a
point is not argued. See HRPP Rule 52(b) (“Plain errors or
defects affecting substantial rights may be noticed although
they were not brought to the attention of the court.”).
Oki asserts the circuit court plainly erred in setting the time
and manner of restitution because it failed to consider his
financial ability to make restitution pursuant to HRS § 706-
646(3). HRS § 706-646(3) provided and provides in relevant
part,
In ordering restitution, the court shall not consider
the defendant’s financial ability to make restitution in
determining the amount of restitution to order. The court,
however, shall consider the defendant’s financial ability
to make restitution for the purpose of establishing the
time and manner of payment. The court shall specify the
time and manner in which restitution is to be paid. While
the defendant is in the custody of the department of
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corrections and rehabilitation, restitution shall be
collected pursuant to chapter 353 and any court-ordered
payment schedule shall be suspended.
(Emphasis added.)
The circuit court did, however, consider Oki’s
financial ability to make restitution. The circuit court
explained it had considered Oki’s “income earning ability, as
reflected in this case but also in the presentence report,” as
well as the adverse impact of Oki’s conviction on such ability.
The circuit court ordered Oki to pay restitution “as provided by
law while Mr. Oki is incarcerated and thereafter at a rate – at
the bare minimum it would need to be $30 a month.” The circuit
court continued, “at this point I don’t have, I believe,
sufficient information to know what would be reasonable beyond
that $30 a month.” It left open the possibility of revisiting
the time and manner of payment in the future, depending on Oki’s
future ability to earn.
Because the circuit court expressly considered Oki’s
income earning ability, it complied with the requirements of HRS
§ 706-646(3). The circuit court thus did not err in setting the
time and manner of restitution payments.
C. Revisiting the Restitution Amount on Remand
Finally, Oki argues the ICA erred in holding that its
“remand mandate from Oki’s first appeal precluded the circuit
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court from conducting a new restitution study on remand or
otherwise revisiting the amount of restitution.”
Here, the ICA pointed out that its Oki I memorandum
opinion expressly noted that neither party had challenged the
total amount of restitution, but merely the manner in which the
restitution should be distributed; the ICA had directed the
circuit court on remand “to order restitution directly to Spire”
but affirmed the judgment “in all other respects.” The ICA
concluded that on remand, the circuit court closely adhered to
“the true intent and meaning” of its Oki I mandate. (Quoting In
re HELCO, 149 Hawai‘i at 241, 487 P.3d at 710.)
Oki misapprehends the ICA’s holding. The ICA did not
hold its remand mandate “precluded” the circuit court from
revisiting restitution; rather, it held the circuit court “did
not err in ordering restitution to Spire without another
restitution hearing and a restitution study.” The ICA was
correct.
At a hearing on the State’s motion for restitution in
Oki’s first appeal, the circuit court concluded that the amount
of restitution should be the $440,178.54 in proven losses; it
then discussed in depth to whom that restitution should be
ordered (the former partners in their capacity as partners or
the firm). During Oki’s first appeal, the ICA remanded with a
directive to the circuit court “to order restitution directly to
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Spire.” Oki, 2020 WL 6115119, at *25. The ICA’s memorandum
opinion also had noted that “neither party expressly challenges
the $440,158.54 total amount of restitution ordered by the
circuit court. The parties instead dispute the manner in which
the restitution should be collected/distributed.” Id. at *22.
Then, on remand, the circuit court declined to order a new
restitution hearing or study and entered a judgment and
restitution order with restitution to be paid to Spire.
HRS § 706-646(2) allows for restitution of a victim’s losses
that are (1) reasonable; (2) verified; (3) suffered as a result
of the defendant’s conduct; and (4) requested by the victim.
Demello, 136 Hawai‘i at 196,
361 P.3d at 423; see also Borge, 152
Hawai‘i at 467,
526 P.3d at 444.
“On remand, a trial court must closely adhere to the
true intent and meaning of the appellate court’s mandate.” In
re HELCO, 149 Hawai‘i at 241, 487 P.3d at 710 (citing State v.
Lincoln,
72 Haw. 480, 485,
825 P.2d 64, 68 (1992)).
Here, the circuit court closely adhered to the true
intent and meaning of the ICA’s memorandum opinion when it
entered an amended order changing the recipient of the
restitution but nothing else. The circuit court had already
held restitution hearings and taken evidence on Spire’s
“reasonable and verified losses.” See HRS § 706-646(2). We
therefore agree with the ICA that the circuit court did not err
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in denying Oki’s motion for restitution hearing and study when
it entered the amended restitution order.
III. CONCLUSION
Based on the reasoning above, we affirm the ICA’s
October 24, 2023 judgment on appeal.
DATED: Honolulu, Hawai‘i, May 20, 2024.
James S. Tabe, /s/ Mark E. Recktenwald
Taryn R. Tomasa,
for petitioner/ /s/ Jeannette H. Castagnetti
defendant-appellant
/s/ Gary W.B. Chang
Steven S. Alm,
Brian R. Vincent,
for respondent/
plaintiff-appellee
36
