*** NOT FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***

SCWC-22-0000129 

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-22-0000129 and CAAP-21-0000278 (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 firstdegree theft, one count of second-degree theft, three counts of 

money laundering, two counts of use of a computer in the 

Electronically Filed

Supreme Court

SCWC-22-0000129

20-MAY-2024

04:11 PM

Dkt. 15 MO
*** NOT FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***

2 

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which he was convicted was repealed.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 
*** NOT FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***

3 

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 
*** NOT FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***

4 

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 
*** NOT FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***

5 

“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-18-0000501, 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 Proceedings1 

 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. 
*** NOT FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***

6 

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 
*** NOT FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***

7 

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.”
*** NOT FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***

8 

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 lesserincluded 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. 
*** NOT FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***

9 

 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 
*** NOT FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***

10 

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.
*** NOT FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***

11 

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 
*** NOT FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***

12 

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. Remand5

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.
*** NOT FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***

13 

 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 
*** NOT FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***

14 

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-17-0000847, 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)). 
*** NOT FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***

15 

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 
*** NOT FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***

16 

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. 
*** NOT FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***

17 

 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 
*** NOT FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***

18 

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).
*** NOT FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***

19 

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 
*** NOT FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***

20 

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). 
*** NOT FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***

21 

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 
*** NOT FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***

22 

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 
*** NOT FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***

23 

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. 
*** NOT FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***

24 

 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 
*** NOT FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***

25 

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 methrelated 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 
*** NOT FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***

26 

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. 
*** NOT FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***

27 

 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 
*** NOT FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***

28 

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 
*** NOT FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***

29 

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 
*** NOT FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***

30 

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 
*** NOT FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***

31 

(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-11-0000081, 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 
*** NOT FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***

32 

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 
*** NOT FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***

33 

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 
*** NOT FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***

34 

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 
*** NOT FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***

35 

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 
*** NOT FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***

36 

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