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NO. CAAP-20-0000497

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

STATE OF HAWAI#I, Plaintiff-Appellee, 

v.

MICHAEL PALANI MAWAE, Defendant-Appellant

APPEAL FROM THE CIRCUIT COURT OF THE FIFTH CIRCUIT

(CASE NO. 5CPC-19-0000065)

SUMMARY DISPOSITION ORDER

(By: Hiraoka, Presiding Judge, Wadsworth and Nakasone, JJ.)

Defendant-Appellant Michael Palani Mawae (Mawae)

appeals from the July 15, 2020 Amended Judgment of Guilty

Conviction and Probation Sentence entered by the Circuit Court of

the Fifth Circuit (Circuit Court).1 On February 10, 2020,

pursuant to a plea agreement with Plaintiff-Appellee State of

Hawai#i (State), Mawae pled no contest to second-degree burglary

amended from first-degree burglary, Abuse of Family or Household

Members, and the State agreed to dismiss a charge of fourthdegree criminal property damage. Mawae was sentenced to four

years of probation with one year of incarceration, with credit

for time served for the burglary charge, and two years of

1 The Honorable Randal G.B. Valenciano presided.

Electronically Filed

Intermediate Court of Appeals

CAAP-20-0000497

12-MAY-2021

08:34 AM

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probation for the abuse charge. The Circuit Court also ordered

restitution in the amount of $2,400 to the victim, which was

later reduced to $1,904.

On appeal, Mawae contends that the Circuit Court erred

by abusing its discretion when it sentenced Mawae: (1) to pay

restitution; and (2) to a term of incarceration "in excess of the

Court's inclination . . . ."

Upon careful review of the record and the briefs

submitted by the parties and having given due consideration to

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

affirm.

No Error Regarding Restitution

Mawae contends that the Circuit Court "abused its

discretion" by sentencing Mawae to pay restitution because Mawae

was "induced to enter into a plea agreement in part because of

the State's representation that 'it is not aware of any

restitution that shall be sought.'"

In the plea agreement letter that was attached to the

February 10, 2020 Change of Plea (COP) form, Mawae agreed inter

alia, to pay restitution in an amount to be determined by Adult

Client Probation Services (ACPS), and the State also represented

that it was "not aware" of any restitution being sought by the

victim, as follows:

15. The Defendant agrees to pay restitution in an amount

determined by Adult Client Probation Services as to all

charges, including any cases or charges to be dismissed, and

will not request a restitution hearing; the Defendant agrees

to execute a Free Standing Order of Restitution as to the

full amount of restitution. The Defendant understands that

the Court must order restitution for reasonable and

verifiable losses requested by a victim or when the crime

victim compensation fund makes an award; that restitution

cannot be waived or converted to community service; and

that, unless the amount of restitution has already been

determined, the Court cannot determine what a possible

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restitution amount will be until a later time. (State is

not aware of any restitution that shall be sought)[.]

(first emphasis in original and second emphasis added). In the

May 27, 2020 pre-sentence report prepared for Mawae's June 4,

2020 sentencing date, the "Victim/Restitution Information"

section stated that the victim could not be located. The victim

contacted the prosecutor via email on May 29, 2020, requesting

$2,400 in restitution for therapy visits, supported by a letter

from her therapist. The victim also attended the June 4, 2020

sentencing and addressed the Circuit Court. The State requested

$2,400 in restitution for the victim, which the Circuit Court

ordered Mawae to pay. After sentencing, Mawae filed a First

Amended Motion for Reconsideration of Sentence requesting an

evidentiary restitution hearing and for the Circuit Court to

strike the restitution because the request was not vetted by

ACPS. At the first hearing on the motion on July 2, 2020, the

Circuit Court directed the prosecutor to submit the victim's

restitution request to ACPS, as stated in the plea agreement. 

ACPS subsequently determined that restitution of $1,904 was

reasonable, and at the continued hearing on the reconsideration

motion on July 9, 2020, the Circuit Court reduced the restitution

to $1,904 from $2,400.

Mawae claims that the State's representation in the

plea offer letter about being unaware of restitution being

sought, was ambiguous, and that any ambiguity in a plea agreement

"is strictly construed in favor of the defendant," citing State

v. Nakano, 131 Hawai#i 1, 7, 313 P.3d 690, 696 (2013) (citation

omitted). Mawae argues that despite the Circuit Court's

advisements regarding restitution during the change of plea

hearing, "a Defendant might reasonable [sic] conclude that such a

warning does not matter if they have reason to believe that no

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restitution will be sought by the victim." Mawae's contentions

are without merit.

The State's representation in the plea agreement that

it was unaware of restitution being sought was not ambiguous, nor

did it render the plea agreement ambiguous. Immediately

preceding this statement in the plea agreement letter is an

advisement that "unless the amount of restitution has already

been determined, the Court cannot determine what a possible

restitution amount will be until a later time." In addition, the

Circuit Court gave similar on-the-record advisements to Mawae

during the COP colloquy that it was legally obligated to order

restitution "for reasonable and verifiable losses claimed by the

victim," that restitution could not be waived, and that the

Circuit Court could not determine restitution until a later time,

in accordance with State v. Kealoha, 142 Hawai#i 46, 414 P.3d 98

(2018).2 Mawae confirmed that he understood these advisements.3 

2 In Kealoha, the Hawai#i Supreme Court held that trial courts must

ensure that defendants understand the penalty of restitution that could be

imposed as a consequence of conviction, and accordingly required that:

(1) the court must order restitution for reasonable and

verifiable losses requested by a "victim" or when the crime

victim compensation fund makes an award; (2) the court

cannot waive the restitution amount or convert it to

community service; and (3) unless the amount of restitution

has already been determined, the court cannot determine what

a possible restitution amount will be until a later time.

142 Hawai#i at 61-62, 414 P.3d at 113-14 (emphasis in original).

3 The COP hearing transcript provides in pertinent part:

THE COURT: . . . So regarding restitution, the Court

must order restitution for reasonable and verifiable losses

claimed by the victim or when the crime victim compensation

fund makes an award. The Court cannot waive restitution or

convert it to community service work. The Court cannot

determine the amount of restitution until a later time.

So, Mr. Mawae, is that your understanding of the plea

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The record reflects that Mawae was clearly apprised before he

entered his No Contest plea, that restitution was required if

requested, the restitution amount had not yet been determined,

and that the amount could not be determined until a later time. 

There was no ambiguity in the plea agreement itself, and the

Circuit Court's restitution advisements complied with Kealoha,

id. Thus, Mawae's contention is without merit.

Assuming arguendo that the State's representation in

the plea agreement letter that it was unaware of any restitution

being sought was ambiguous, Mawae has not articulated the relief

he seeks on appeal. Mawae relies on Nakano for the proposition

that "any ambiguity in the plea agreement is strictly construed

in favor of the defendant," 131 Hawai#i at 7, 313 P.3d at 696,

but Nakano also states that the remedy for a defendant who

successfully rescinds a plea agreement is to be "returned to

their status prior to their plea agreement . . . ." Id. at 8

n.8, 313 P.3d at 697 n.8 (citation omitted). This means that

"the defendant must again face all of the charges in the original

complaint." Id. In Mawae's situation, a rescinded "global plea

agreement" means Mawae must face not only the original charges in

this case, but all of the original charges in the three

additional Fifth Circuit criminal cases covered by the

bargain?

THE DEFENDANT: Yes, your Honor.

THE COURT: [Defense Counsel], is that your

understanding of the plea bargain?

[DEFENSE COUNSEL]: Yes, your Honor.

(emphases added).

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agreement.4

 In this case, however, Mawae is not claiming that his

pleas were not knowingly and voluntarily entered due to the

restitution ambiguity he complains of; nor is Mawae requesting to

withdraw his pleas. In fact, Mawae repeatedly asserts in his

Opening Brief and Reply Brief that he is not requesting to

withdraw his pleas in this appeal.5 The Opening Brief does not

present any argument regarding the specific relief sought as to

restitution, even assuming arguendo the plea agreement is

ambiguous. On the contrary, the Opening Brief only specifies

what relief Mawae does not want. This does not comply with

Hawai#i Rules of Appellate Procedure (HRAP) Rule 28(b)(9)

(requiring that the relief sought be specified with

particularity).

An abuse of discretion occurs if the trial court has

clearly exceeded the bounds of reason or disregards principles of

law to the substantial detriment of a party. State v. Austin,

143 Hawai#i 18, 29, 422 P.3d 18, 29 (2018) (citation omitted). 

The Circuit Court did not abuse its discretion in sentencing

Mawae to pay restitution, and this contention is without merit. 

See id.

No Error Regarding Sentencing

Mawae contends that the Circuit Court "abused its

discretion by varying from its sentencing inclination" and

4 The global plea agreement in this case encompassed four criminal

cases, consisting of three Circuit Court matters which included the current case

5CPC-19-000065, 5CPC-19-000092, and 5CPC-19-000217, and one district court

matter, 5DCW-20-000039.

5 The Opening Brief states: "Mr. Mawae is not necessarily requesting

an opportunity to withdraw his plea." The Reply Brief reiterates: "Mr. Mawae is

not asking that the plea agreement be set aside," and "If this Court is of the

view that Mr. Mawae must withdraw his plea to secure the relief requested, he

does not wish to do so."

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sentencing Mawae to probation with a term of incarceration that

was beyond the credit for time served that Mawae claims he

expected to receive. Mawae specifically argues that the Circuit

Court's "apparent representations during plea discussions amount

to statements of 'inclination'" under State v. Sanney, 141

Hawai#i 14, 404 P.3d 280 (2017). Mawae acknowledges, however,

that at the change of plea hearing, the Circuit Court "did

explain to Mr. Mawae that it did not view its inclination to be

binding."

Preliminarily, the record does not reflect that the

Circuit Court gave a sentencing inclination; on the contrary, the

record reflects that the Circuit Court explicitly did not promise

any particular sentence. The only evidence of the sentencing

"inclination" comes from Mawae himself, in the COP form:

. . . .

8. I have not been promised any kind of deal or

favor or leniency by anyone for my plea, except

that I have been told that the government has

agreed as follows (if none, write "None"):

See plea offer attached. The defendant

was also told by the undersigned attorney that

after discussions between the Court and counsel

for both parties the court indicated that it

thought the defendant had done enough time and

if he entered a plea the Court would impose a

sentence of probation upon such terms and

conditions as the Court deems appropriate.

/ I know that the court is not required to

follow any deal or agreement between the

Government and me. I know that the court has not

promised me leniency.

 The court has agreed to follow the plea

agreement pursuant to Rule 11, Hawaii Rules of

Penal Procedure.

9. I further state that (if none, write

"None"):

The defendant understands that the [sic]

while this plea is not tendered pursuant to Rule

11 the plea is tendered in consideration of what

he was told by his attorney as reflected above.

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(emphases added). Mawae claims that this statement in the COP

form constituted an inclination for a sentence of credit for time

served that he expected to receive. However, the words "credit

for time served" are not in the COP form. The words "defendant

had done enough time" in the COP form appeared in the same

sentence as the words "the Court would impose a sentence of

probation upon such terms and conditions as the Court deems

appropriate." This combination of phrases does not convey a

credit for time served sentence. Mawae's premise that these

words constitute a credit for time served inclination is

unfounded.

The record reflects that the Circuit Court explicitly

informed Mawae that the Circuit Court was "not bound" by "any

statement made" during any discussions with the attorneys, and

the Circuit Court further reminded Mawae, more than once, that it

had not made any promises, as follows:

THE COURT: So when I look at paragraph

eight, it says -- in small print, it says: See plea offer

attached. The defendant was also told by the undersigned

attorney that after discussions and the -- between the

Court and counsel for both parties, the Court indicated

that it thought the defendant had done enough time, and if

he entered a plea, the Court would impose a sentence of

probation upon such terms and conditions as the Court

deems appropriate.

Okay. So here's the thing. I'm not making

any promises. You need to understand this is not a Rule

11 situation. I want to be clear. A Rule 11 situation

means the Court is bound by any -- any statement made.

I'm not bound by anything. I haven't promised you

anything. So you need to be aware of the maximum

penalties. You understand that? So this is not a Rule

11.

THE DEFENDANT: Yes, your Honor.

THE COURT: You understand that? Knowing

that I'm not bound by any discussions we had between the

attorneys regarding this case, you still want to go

forward with the change of plea proceeding today?

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THE DEFENDANT: Yes, your Honor.

(emphases added). At a later point during the colloquy, the

Circuit Court again clearly disavowed any promise of leniency:

THE COURT: Okay. So -- basically what I want to tell

you is that I haven't promised you leniency at time of

sentencing. The State can argue for whatever sentence.

[Defense Counsel] can argue on your behalf for whatever

sentence is appropriate. The Court can decide whatever

sentence is appropriate for you. So - basically everybody

can make arguments for the Court to decide what's

appropriate at the time of sentencing. You understand that?

THE DEFENDANT: Yes, your Honor.

(emphases added).

The transcript of the COP hearing reflects that even if

Mawae had incorrectly understood the Circuit Court to have stated

during plea negotiations that it would not impose an open term of

imprisonment or that it would not impose further incarceration as

a condition of probation, the Circuit Court explicitly corrected

any misimpression Mawae or Mawae's counsel may have had. 

Therefore, Mawae's contention that there was a "sentencing

inclination" is not supported by the record, and is without

merit.

Mawae's argument relying on Sanney is also without

merit. The Sanney Court set forth a new rule that:

[i]f a defendant pleads guilty or no contest in response to

a court's sentencing inclination, but the court later

decides not to follow the inclination, then the court must

so advise the defendant and provide the defendant with the

opportunity to affirm or withdraw the plea of guilty or no

contest.

141 Hawai#i at 25, 404 P.3d at 291. In Sanney, the trial court's

sentencing inclination of probation with up to 18 months

incarceration was clearly on the record and confirmed by the

trial court. Id. at 17, 404 P.3d at 283. Sanney does not apply

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to this case because this record does not show that there was a

sentencing inclination, nor does it show that Mawae pled no

contest "in response" to any inclination. Id. at 25, 404 P.3d at

291.

Mawae also complains on appeal that the Circuit Court

"did not, however, provide Mr. Mawae with an opportunity to

withdraw his plea at sentencing, as is required by Sanney." This

argument is waived because Mawae never moved, or requested to

withdraw his plea at the sentencing hearing on June 4, 2020; nor

did Mawae request to withdraw his plea at the reconsideration

hearings on July 2 or July 9, 2020. See State v. Hoglund, 71

Haw. 147, 150, 785 P.2d 1311 1313 (1990) ("Generally, the failure

to properly raise an issue at the trial level precludes a party

from raising that issue on appeal.").

Finally, Mawae presents no authority for his requested

relief that his sentence "be reduced in accordance with the

Court's sentencing inclination." Under the authority of Sanney

that Mawae himself relies on, the remedy is for the trial court

to give Mawae an "opportunity" to affirm or withdraw his no

contest plea. 141 Hawai#i at 25, 404 P.3d at 291. See also

Nakano, 131 Hawai#i at 8 n.8, 313 P.3d at 697 n.8 (recognizing

that "ordinarily, a defendant who successfully rescinds a plea

agreement is returned to their status prior to their plea

agreement . . . ."). Yet, as noted supra, Mawae takes the

incongruous position in his opening and reply briefs, that he is

not requesting to withdraw his plea.6

 No authority supports

6 Mawae explains his inconsistent position as follows:

If this Court is of the view that Mr. Mawae must

withdraw his plea to secure the relief requested, he does

not wish to do so. However, Mr. Mawae's position is that

he has detrimentally relied upon the terms of the plea

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Mawae's requested relief for a reduced term of incarceration

without withdrawing his pleas and undoing the global plea

agreement, and thus Mawae's contention is patently without merit. 

The Circuit Court did not abuse its discretion in the sentence it

imposed on Mawae, which was consistent with the plea agreement. 

See Austin, 143 Hawai#i at 29, 422 P.3d at 29.

Therefore, IT IS HEREBY ORDERED that the Amended

Judgment of Guilty Conviction and Probation Sentence, entered on

July 15, 2020, in the Circuit Court of the Fifth Circuit, is

affirmed.

DATED: Honolulu, Hawai#i, May 12, 2021.

On the briefs:

Matthew Mannisto

(Law Office of Matthew

Mannisto)

for Defendant-Appellant

Tracy Murakami

Deputy Prosecuting Attorney

County of Kaua#i

for Plaintiff-Appellee

/s/ Keith K. Hiraoka

Presiding Judge

/s/ Clyde J. Wadsworth

Associate Judge

/s/ Karen T. Nakasone

Associate Judge

agreement and endured 6 months of incarceration since the

date that he was sentenced in reliance upon its terms. In

such circumstances, requiring withdrawal of the plea would

be unfair to Mr. Mawae, just as it would be unfair to allow

the State to reinstitute the cases dismissed under the plea

agreement.

Mawae has not presented any authority supporting the above justification for

these inconsistent positions he advances on appeal. The authority of State v.

Guity, 144 Hawai#i 557, 445 P.3d 138 (2019) Mawae relies on in the Reply

Brief, is inapposite. The Guity Court held that where the ICA correctly

concluded that Guity was entitled to withdraw his plea in one of his criminal

cases in a global plea agreement, Guity must be allowed to withdraw his plea

in the remaining criminal case that was included in the agreement. Id. at

563, 445 P.3d at 144.

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