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                                                              Electronically Filed
                                                              Supreme Court
                                                              SCWC-XX-XXXXXXX
                                                              21-DEC-2018
                                                              08:07 AM



           IN THE SUPREME COURT OF THE STATE OF HAWAII

                                ---o0o---


                          STATE OF HAWAII,
                   Respondent/Plaintiff-Appellee,

                                    vs.

                          PIERRE HERNANDEZ,
                   Petitioner/Defendant-Appellant.


                            SCWC-XX-XXXXXXX

         CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
           (CAAP-XX-XXXXXXX; CASE NO. 1DCW-XX-XXXXXXX)

                           DECEMBER 21, 2018

               McKENNA, POLLACK, and WILSON, JJ.,
    WITH NAKAYAMA, J., CONCURRING AND DISSENTING, WITH WHOM
                    RECKTENWALD, C.J., JOINS

                OPINION OF THE COURT BY POLLACK, J.

          In this appeal, Pierre Hernandez challenges the

validity of his no contest plea and the sentence imposed, both

of which occurred after the trial court found that Hernandez had

waived his presence at the court proceeding by the filing of a

document signed by Hernandez and a declaration by his counsel.
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We first conclude that Hernandez’s challenge to his sentence was

not precluded by his plea of no contest.         We also hold that

Hernandez’s right of allocution, which is protected by the

Hawaii Revised Statutes and the Hawaii Constitution, was

violated when the district court did not afford him the

opportunity to be heard prior to being sentenced.           Lastly, we

conclude that the district court’s acceptance of Hernandez’s no

contest plea without an on-the-record colloquy was plain error.

We thus vacate Hernandez’s conviction and remand the case to the

district court for further proceedings consistent with this

opinion.

               I.       FACTS AND PROCEDURAL HISTORY

           On November 6, 2014, the State of Hawaii charged

Pierre Hernandez by complaint in the District Court of the First

Circuit (district court) with harassment by stalking in

violation of Hawaii Revised Statutes (HRS) § 711-1106.5.1



     1
           HRS § 711-1106.5 (1993 & Supp. 2013) provides the following:

           (1) A person commits the offense of harassment by stalking
           if, with intent to harass, annoy, or alarm another person,
           or in reckless disregard of the risk thereof, that person
           engages in a course of conduct involving pursuit,
           surveillance, or nonconsensual contact upon the other
           person on more than one occasion without legitimate
           purpose.

           (2) A person convicted under this section may be required
           to undergo a counseling program as ordered by the court.


                                                          (continued . . .)

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          On January 6, 2015, Hernandez through counsel filed a

“Rule 43 Plea by Mail” (“plea by mail document” or “the

document”) pursuant to Rule 43 of the Hawaii Rules of Penal

Procedure (HRPP).2 The document indicated that Hernandez was


(. . . continued)

          (3) For purposes of this section, “nonconsensual contact”
          means any contact that occurs without that individual’s
          consent or in disregard of that person’s express desire
          that the contact be avoided or discontinued. Nonconsensual
          contact includes direct personal visual or oral contact and
          contact via telephone, facsimile, or any form of electronic
          communication, as defined in section 711-1111(2), including
          electronic mail transmission.

          (4) Harassment by stalking is a misdemeanor.
     2
          HRPP Rule 43 (2012) provides in relevant part as follows:

          (a) Presence required. The defendant shall be present at
          the arraignment, at the time of the plea, at evidentiary
          pretrial hearings, at every stage of the trial including
          the impaneling of the jury and the return of the verdict,
          and at the imposition of sentence, except as otherwise
          provided by this Rule.

          . . . .

          (d) Presence may be waived for non-felony offenses. In
          prosecutions for offenses other than a felony, the court
          may:

          . . . .

          (2) conduct an arraignment in the defendant’s absence, if
          the defendant’s residence is out-of-state or on another
          island, the defendant consents in writing, and a plea of
          guilty or no contest is

                (A) accepted and sentence is imposed; or

                (B) offered and acceptance is deferred. Except for
                the requirement of addressing the defendant
                personally in open court, the court shall otherwise
                comply with the requirements of Rule 11 and Rule 32
                of these Rules.




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pleading no contest to the charged offense of harassment by

stalking.    It also stated that Hernandez understood that (1) he

had the right to be present at various proceedings, including

arraignment, the entry of plea, and sentencing; (2) he was

voluntarily waiving his right to be present at these proceedings

and to be questioned in open court; and (3) he was authorizing

his lawyer to represent him at the proceedings.

            In addition, the plea by mail document stated that

Hernandez was consenting to the court’s imposition of a sentence

in his absence and that he understood “that non-compliance with

the court’s judgment or order will result in the issuance of a

bench warrant, subjecting [him] to being arrested and having to

appear in court.”     Further, the document included a declaration

by counsel, stating that Hernandez represented to him that he

did not wish to be present and wished for the proceedings to be

conducted in his absence; that counsel read and explained the

plea by mail document to Hernandez; and that the statements in

the document were consistent with counsel’s understanding of

Hernandez’s position.3


     3
            The plea by mail document also contained language conforming to
many of the requirements set forth in HRPP Rule 11. The document stated that
Hernandez understood the following: the charge against him; that he was
giving up the right to a trial by jury or the court; the maximum penalty,
which the document states was one year in jail and a fine of $2,000; and the
potential effect of a conviction on the immigration and naturalization rights
of non-U.S. citizens. However, the document did not describe the conduct
underlying the charge or that Hernandez understood that he had the right to

                                                           (continued . . .)

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           At a hearing on January 7, 2015,4 counsel for Hernandez

indicated that Hernandez, who was not present, was residing in

another state and had requested deferred acceptance of his no

contest plea.    The district court stated that it was in receipt

of the plea by mail document submitted by counsel that indicated

Hernandez had completed twelve years of education, was aware of

the charge against him, and understood his possible defenses, as

well as the maximum possible penalties and any potential

citizenship issues a conviction might raise.           Although Hernandez

was not physically present and there was no established

communication with him at the hearing, the court accepted the no

contest plea, ruling that the plea was made knowingly,

intelligently, and voluntarily.           The court further concluded

that Hernandez knowingly, intelligently, and voluntarily waived

his right to a jury trial based on a waiver of jury trial form

also submitted by defense counsel.           The court then found

Hernandez guilty as charged and proceeded to sentencing.

           Before the court imposed sentence, the complainant

provided a statement to the court in which she objected to the



(. . . continued)

plead not guilty, as required by HRPP Rule 11(c). The document also made no
reference to Hernandez’s right to allocution prior to sentencing.
     4
           The Honorable Lono J. Lee presided.




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granting of a deferral and stated, inter alia, that another

complainant had filed a restraining order against Hernandez and

that the court should impose jail time.          The court thereupon

denied Hernandez’s motion for deferral of acceptance of the no

contest plea and restated that Hernandez had signed all the

waiver documents; that his no contest plea was made knowingly,

intelligently, and voluntarily; and that the court had found him

guilty.   The district court sentenced Hernandez to a

probationary term of eighteen months conditioned on Hernandez

serving thirty days in jail and two hundred hours of community

service and also imposed fees totaling $130.           The court stated

that, if Hernandez was not returning to Hawaii, a mittimus was

to issue forthwith.      After counsel for Hernandez indicated that

he would send the paperwork to Hernandez and inform him that the

court was ordering him to appear on February 9, 2015, the court

delayed the mittimus until that date.5

            Hernandez appealed to the Intermediate Court of

Appeals (ICA) from the district court’s judgment entered on

January 7, 2015,6 “and all trial and pre-trial motions filed or

made by Defendant, that were denied by the Court.”7


     5
            On February 9, 2015, the court continued the stay of the mittimus
pending appeal.
     6
            On the same day he filed the notice of appeal to the ICA, counsel
for Hernandez filed a motion to withdraw as counsel, in which he stated that

                                                           (continued . . .)

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                       II.       ICA PROCEEDINGS

           In his opening brief, Hernandez argued that the

district court committed plain error when it violated his

constitutional and statutory right of allocution, which he had

not waived, by failing to give him an opportunity to make a

statement prior to being sentenced.         This court, Hernandez

contended, has previously questioned whether the denial of

presentence allocution constitutes harmless error and has stated

that the remedy under such circumstances is a remand for

resentencing.     In addition, Hernandez asserted that the district

court did not personally address him, whereas the complainant

was permitted to provide a lengthy statement, which included an

objection to a possible deferral, an entreaty to impose jail

time, and a reference to a separate restraining order against

Hernandez.    Hernandez concluded that the denial of his right to




(. . . continued)

his agreement with Hernandez ended at sentencing and that he filed the notice
of appeal to preserve Hernandez’s right to appeal because of the impending
expiration of the thirty-day deadline for filing the appeal. The district
court granted the motion on February 9, 2015, and referred Hernandez to the
Office of the Public Defender, which filed a notice of appearance on April
23, 2015.
     7
            Although the quoted language appears in the notice of appeal, the
record indicates that there were no “trial and pre-trial motions” by
Hernandez other than the motion for deferred acceptance of the no contest
plea.




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allocution deprived him of his constitutional right to due

process under article I, section 5 of the Hawaii Constitution.8

           In its answering brief, the State argued that the ICA

lacked appellate jurisdiction because Hernandez asserted

nonjurisdictional claims, which were precluded by the entry of

an intelligent and voluntary guilty plea.           Because Hernandez did

not file a motion to withdraw his plea and his plea was not made

on the condition that he may appeal certain rulings, the State

submitted that the case should be dismissed.

           Alternatively, the State contended that Hernandez’s no

contest plea complied with HRPP Rule 11, adding that the

district court ensured that his plea was voluntary and not the

product of threats or promises.           As to Hernandez’s argument

regarding his right of allocution, the State maintained that

HRPP Rule 43(d)(2) does not require the court to address the

defendant, and in any event, Hernandez voluntarily waived his

right to be present at all proceedings, including sentencing,

authorized his counsel to represent him at sentencing, and

waived his right to be questioned in open court.            Thus, the



     8
            Hernandez also argued that the district court committed plain
error when it accepted his no contest plea without administering the
advisement concerning alien status prior to the entry of a plea of nolo
contendere pursuant to HRS § 802E-2. Inasmuch as this argument is not raised
on certiorari, it is not further addressed.




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State argued, Hernandez’s no contest plea was valid under HRPP

Rule 32 (2012).9

           In his reply, Hernandez contended that the State’s

argument regarding jurisdiction lacked merit because an

appellate court may review an invalid no contest plea under

plain error, as in this case.        Although his counsel informed the

court that he would enter a no contest plea, Hernandez asserted,

“it was nonetheless incumbent on the court to address the

defendant personally.”      Hernandez maintained that the court in

accepting a guilty plea cannot rely solely on counsel’s presence

and representations, concluding that an on-the-record colloquy

was, at a minimum, required to show that he had full

understanding of the no contest plea and its consequences.

           On March 17, 2017, the ICA entered a summary

disposition order affirming the district court’s judgment.10                The

ICA rejected Hernandez’s contention that the district court

plainly erred by not personally addressing him regarding his
     9
           HRPP Rule 32(a) provides in relevant part as follows:

           After adjudication of guilt, sentence shall be imposed
           without unreasonable delay. Pending sentence, the court
           may commit the defendant or continue or alter bail, subject
           to applicable provisions of law. Before suspending or
           imposing sentence, the court shall address the defendant
           personally and afford a fair opportunity to the defendant
           and defendant’s counsel, if any, to make a statement and
           present any information in mitigation of punishment.
     10
            The ICA’s summary disposition order can be found at State v.
Hernandez, NO. CAAP-XX-XXXXXXX, 2017 WL 1034487 (Haw. App. Mar. 17, 2017).




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right of allocution prior to imposing sentence.          The ICA

concluded that Hernandez’s claims were not jurisdictional, that

he did not file a motion to withdraw his no contest plea, and

that his plea was not conditional.        The ICA thus concluded that

Hernandez was “precluded from ‘later asserting any

nonjurisdictional claims [to his no contest plea], including

constitutional challenges to the pretrial proceedings.’”

(Quoting State v. Morin, 71 Haw. 159, 162-63, 785 P.2d 1316,

1318-19 (1990).)

                   III.         STANDARD OF REVIEW

            We review questions of law under the right/wrong

standard.   State v. Gomez-Lobato, 130 Hawaii 465, 469, 312 P.3d

897, 901 (2013) (citing State v. Friedman, 93 Hawaii 63, 67, 996

P.2d 268, 272 (2000)).

                          IV.       DISCUSSION

            On certiorari, Hernandez presents two questions for

review: (1) whether the ICA erred in rejecting his appeal of the

district court’s denial of his right of allocution at sentencing

on the basis that the challenge was precluded by his no contest

plea and (2) whether the district court plainly erred in

accepting his no contest plea when it was not made knowingly,

intelligently, and voluntarily.        The first question consists of

two subparts: (a) whether Hernandez was barred from challenging

the manner in which his sentence was imposed because he pleaded

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no contest to the charge and (b) whether the district court’s

failure to personally address Hernandez prior to imposing

sentence violated his right of allocution.           We consider these

issues below.

      A. Hernandez’s Challenge to the Legality of His Sentence

 1.     The ICA Erred in Rejecting Hernandez’s Claim on the Basis
                   that It Was Nonjurisdictional.

            Hernandez contends that the ICA erred in concluding

that he was barred from asserting that the district court

deprived him of his right of allocution because it was a

nonjurisdictional claim.        Hernandez reasons that allocution

arises during sentencing--after the plea has been accepted--and

Hawaii courts have distinguished between challenges made to

events that occur before the plea and those that occur after the

plea.

            We have held that “[g]enerally, a guilty plea made

voluntarily and intelligently precludes a defendant from later

asserting any nonjurisdictional claims, including constitutional

challenges to the pretrial proceedings.”           State v. Morin, 71

Haw. 159, 162, 785 P.2d 1316, 1318 (1990) (citing Brady v.

United States, 397 U.S. 742 (1970)).          A no contest plea is

equivalent to a guilty plea in terms of waiving alleged

nonjurisdictional claims.        Id.




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            Pretrial nonjurisdictional defects--such as unlawfully

obtained evidence and illegal detention by law enforcement--are

pretrial errors that do not deprive a trial court of its legal

authority to hear and decide a case, and challenges to such

errors generally will not survive a validly entered plea of

guilty or nolo contendere.        See Schwartz v. State, 136 Hawaii

258, 281, 361 P.3d 1161, 1184 (2015); Morin, 71 Haw. at 162, 785

P.2d at 1318.     In State v. Morin, for example, the defendants

were charged with various drug and firearm-related offenses.                 71

Haw. at 160, 785 P.2d at 1317.         The defendants filed a motion to

suppress all evidence obtained by law enforcement.             Id. at 161,

785 P.2d at 1318.      Following the district court’s denial of the

motion to suppress, the defendants entered no contest pleas in

exchange for a reduction and dismissal of charges against them.

Id.   On appeal, the defendants challenged the district court’s

denial of their motion to suppress; they did not challenge the

validity of their no contest pleas.          Id. at 162, 785 P.2d at

1318.    This court held that the defendants’ pleas precluded them

from challenging any nonjurisdictional issues.            Id. at 163, 785

P.2d at 1319.     We stated,

            To allow the Defendants to plead no contest in exchange for
            the reduction and dismissal of charges against them, and
            then to permit them to attack the remaining convictions
            achieved by those pleas, where those pleas were not
            conditioned upon the right to appeal, would jeopardize the
            integrity of the plea bargaining process.




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Id.   Thus, based on Morin, a defendant who validly pleads guilty

or no contest to a charged offense is generally barred from

raising nonjurisdictional claims related to pretrial proceedings

when the plea is not expressly conditioned upon the right to

appeal specific rulings.        Id. at 162, 785 P.2d at 1319.        But

Morin’s holding applies to only pretrial errors occurring before

the valid entry of a plea, and--unless a sentencing agreement

establishes the details of the defendant’s sentence before the

plea is entered--it does not extend to matters related to

sentencing.     See State v. Dudoit, 90 Hawaii 262, 265 n.2, 978

P.2d 700, 703 n.2 (1999).

            This court has in fact expressly stated that, absent a

prior sentencing agreement between the defendant and the State,

a defendant is not barred by a guilty or no contest plea from

raising nonjurisdictional claims related to sentencing on

appeal.    In State v. Dudoit, the defendant pleaded no contest to

two counts of abuse of a family or household member.              Id. at

264-65, 978 P.2d at 702-03.        After accepting the defendant’s no

contest pleas, the family court proceeded to sentencing, at

which the parties disputed the applicability of a statutory

repeat offender provision.        Id. at 265, 978 P.2d at 703.        The

family court concluded that the provision did apply and

sentenced the defendant accordingly.          Id.



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            On appeal, the defendant solely challenged his

sentence.   Id. at 263, 978 P.2d at 701.        This court found that

there was no indication in the record that the defendant agreed

upon the sentence to be imposed.         Id. at 265 n.2, 978 P.2d at

703 n.2.    We stated that a “sentence is determined after a plea

is accepted, and (absent a prior agreement between the parties)

a defendant cannot know what sentence will be imposed.”            Id.     We

thus held that the defendant’s no contest pleas did not preclude

him from challenging his sentence, and we therefore considered

the merits of the defendant’s appeal.         Id. at 265 n.2, 267-75,

978 P.2d at 703 n.2, 705-13; see also State v. Rauch, 94 Hawaii

315, 323, 13 P.3d 324, 332 (2000) (holding that the defendant’s

challenge to the legality of her sentence was not foreclosed by

a no contest plea).

            In concluding that Hernandez’s claims were barred by

his no contest plea, the ICA determined that Hernandez did not

file a motion to withdraw his plea and that the “no contest plea

was not conditional.”     As stated, however, a defendant’s

challenge to the legality of a sentence, including the manner in

which the sentence was imposed, is not barred by a guilty or no

contest plea absent a prior sentencing agreement between the

defendant and the State.      The record in this case lacks any

indication that Hernandez entered into an agreement with the

State as to the sentence to be imposed.         Rather, the plea by

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mail document stated only that Hernandez was waiving his right

to be present at sentencing and to be questioned in open court.

Thus, Hernandez was not required to file a motion to withdraw

his plea in order to assert nonjurisdictional claims related to

sentencing on appeal.     See Rauch, 94 Hawaii at 323, 13 P.3d at

332 (considering the merits of an appeal of sentence without

regard to whether the defendant had filed a motion to withdraw a

no contest plea); Dudoit, 90 Hawaii at 265-75, 978 P.2d at 703-

13 (same).

          Further, the ICA’s alternative ground for concluding

that it lacked jurisdiction to consider the appeal in this case-

-that Hernandez’s no contest plea was not conditional--is

inapposite.   A conditional plea is employed when the defendant

seeks to challenge on appeal a ruling involving a pretrial

motion, which is a circumstance that is not present in this

case.   HRPP Rule 11(a)(2) (2014) states in relevant part, “With

the approval of the court and the consent of the State, a

defendant may enter a conditional plea of guilty or no contest,

reserving in writing the right, on appeal from the judgment, to

seek review of the adverse determination of any specific

pretrial motion.”    (Emphases added.)      Hernandez does not seek

review of an “adverse determination of any specific pretrial

motion,” but rather, the manner in which his sentence was



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imposed following the district court’s acceptance of his no

contest plea.

            Consequently, the ICA erred in concluding that

Hernandez’s assertion of nonjurisdictional claims regarding his

sentencing on appeal was barred by his no contest plea.

 2.    The District Court Erred in Denying Hernandez the Right of
                            Allocution.

            HRPP Rule 43(d)(2)(A) (2012) permits a court to

conduct an arraignment in the absence of a defendant who pleads

guilty or no contest to non-felony offenses if the defendant

resides out of state or on another island, the defendant

consents in writing, and the plea is accepted and sentence is

imposed.    Under such circumstances, the penal rule allows a

court to dispense with the requirement of addressing the

defendant personally in open court.          See HRPP Rule 43(d)(2)(B)

(cross-referencing HRPP Rule 32(a) (2012)).            On certiorari,

Hernandez contends that, while he waived his right to be present

at sentencing, he did not waive his right of allocution and was

denied this right when he was not afforded an opportunity to

speak prior to the imposition of sentence.

            “Allocution is ‘the defendant’s right to speak before

sentence is imposed[.]’”        State v. Chow, 77 Hawaii 241, 246, 883

P.2d 663, 668 (App. 1994) (alteration in original) (quoting R.

Dawson, Sentencing 52 n.83 (1969)).          We have stated that


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allocution is a due process right guaranteed under article I,

section 5 of the Hawaii Constitution.11         State v. Davia, 87

Hawaii 249, 255, 953 P.2d 1347, 1353 (1998) (citing Chow, 77

Hawaii at 246-47, 883 P.2d at 668-69).         In addition, HRS § 706-

604(1) (2014) provides, “Before imposing sentence, the court

shall afford a fair opportunity to the defendant to be heard on

the issue of the defendant’s disposition.”          (Emphasis added.)

Similarly, HRPP Rule 32(a) requires that the court, prior to

imposing sentence, “address the defendant personally and afford

a fair opportunity to the defendant and defendant’s counsel, if

any, to make a statement and present any information in

mitigation of punishment.”       (Emphases added.)

           It is undisputed that, after accepting Hernandez’s no

contest plea and finding him guilty, the district court in this

case did not address Hernandez personally and afford him an

opportunity to make a statement and present information in

mitigation of punishment before proceeding to sentencing.              The

court heard from the complainant, reiterated that it had already

found Hernandez guilty, and imposed sentence.           In its answering



     11
            Article I, section 5 of the Hawaii Constitution provides as
follows: “No person shall be deprived of life, liberty or property without
due process of law, nor be denied the equal protection of the laws, nor be
denied the enjoyment of the person’s civil rights or be discriminated against
in the exercise thereof because of race, religion, sex or ancestry.”




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brief, however, the State contended that the court was not

required to address Hernandez personally because he had waived

his right to be present at sentencing pursuant to HRPP Rule 43.

           While HRPP Rule 43 permits a defendant who pleads

guilty or no contest to non-felony offenses to waive the right

to be present at sentencing and allows the court to forego the

requirement of HRPP Rule 32(a) that it personally address the

defendant,12 nothing in the plea by mail document signed by

Hernandez evinces that he was informed or otherwise knew of his

right of allocution.      “A waiver is ordinarily an intentional

relinquishment or abandonment of a known right or privilege.”

Reponte v. State, 57 Haw. 354, 361, 556 P.2d 577, 583 (1976)

(emphasis added) (quoting Johnson v. Zerbst, 304 U.S. 458, 464

(1938)); accord State v. Friedman, 93 Hawaii 63, 68, 996 P.2d

268, 273 (2000) (“A waiver is the knowing, intelligent, and

voluntary relinquishment of a known right.” (emphasis added));

State v. Barros, 105 Hawaii 160, 168, 95 P.3d 14, 22 (App. 2004)

(same).   Because the record lacks any indication that Hernandez

knew of his “right to speak before sentence is imposed,” Chow,

77 Hawaii at 246, 883 P.2d at 668 (quoting Dawson, supra, at 52

     12
            As previously set forth, HRPP Rule 43(d)(2)(B) provides in
relevant part as follows: “Except for the requirement of addressing the
defendant personally in open court, the court shall otherwise comply with the
requirements of Rule 11 and Rule 32 of these Rules.”




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n.83), it follows then that Hernandez could not have waived this

right.13

           But even if HRPP Rule 43 is deemed to have excused the

court from the allocution requirement of HRPP Rule 32(a), HRS §

706-604(1) separately requires that the court afford the

defendant an opportunity to be heard prior to sentencing.14             As

noted, HRS § 706-604(1) states, “Before imposing sentence, the

court shall afford a fair opportunity to the defendant to be



     13
            Citing various portions of the plea by mail document purporting
to be waivers of Hernandez’s right to be present and right to be questioned
in open court, the dissent argues that Hernandez knowingly relinquished his
right “to engage with the court in-person at both sentencing and plea-entry,”
which it views as encompassing the right to allocution. Dissent at 15. But
the dissent identifies nothing in the record evincing that Hernandez
understood he would have been afforded the right to allocution if he were
present at sentencing, and it is axiomatic that Hernandez could not knowingly
waive a right he was unaware he possessed. See Friedman, 93 Hawai‘i at 68,
996 P.2d at 273 (“A waiver is the knowing, intelligent, and voluntary
relinquishment of a known right.” (emphasis added)). The dissent also points
to the declaration of Hernandez’s counsel stating that he (the counsel) had
explained the right to be present and the plea by mail document to Hernandez.
Yet this declaration, too, has no specific reference to the right of
allocution, and, as discussed infra, this court has stated that it will not
rely on the representations of counsel or speculate about the substance of
off-the-record, privileged communications to establish a knowing and
voluntary waiver. See State v. Ui, 142 Hawai‘i 287, 299, 418 P.3d 628, 640
(2018) (citing State v. Eduwensuyi, 141 Hawai‘i 328, 336, 409 P.3d 732, 740
(2018)). Thus, even were we to hold that a waiver of all rights related to
in-person engagement with the court could be accomplished through the
submission of a waiver document or other filing without any interaction
between the defendant and the court--which would be fundamentally at odds
with our longstanding precedents, see infra note 16 and Section IV.B--the
filings in this case would be facially inadequate to establish such a waiver.
     14
             It is self-evident that while a court rule may provide an
exception to another court rule, this exception would have no effect upon the
statutory or constitutional right of allocution. See In re Doe Children, 94
Hawaii 485, 486, 17 P.3d 217, 218 (2001) (stating that when there is a
conflict between a court rule and a statute, the statute is controlling).




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heard on the issue of the defendant’s disposition.”           (Emphasis

added.)

            In addition to this statutory mandate, allocution is a

significant right to which the Hawaii Constitution affords

protection.    We have stated that the right of allocution is

guaranteed under the due process clause of the Hawaii

Constitution.   Davia, 87 Hawaii at 255, 953 P.2d at 1353 (citing

Chow, 77 Hawaii at 246-47, 883 P.2d at 668-69).          That is, a

trial court is constitutionally required to accord a defendant

the right to be heard prior to imposing sentence.           Id.; State v.

Carvalho, 90 Hawaii 280, 286, 978 P.2d 718, 724 (1999); Schutter

v. Soong, 76 Hawaii 187, 208, 873 P.2d 66, 87 (1994).

            The importance of allocution is underscored by the

multiple purposes it serves.      Allocution is the defendant’s

“opportunity to affect the totality of the trial court’s

sentencing determination.”      Carvalho, 90 Hawaii at 286, 978 P.2d

at 724.   “A prime reason for allowing a defendant the right of

allocution is to provide the defendant an opportunity to plead

for mitigation of the sentence.”         Id. (internal quotation marks

omitted).   “But allocution today serves purposes beyond that of

sentence mitigation.”     Chow, 77 Hawaii at 250, 883 P.2d at 672.

            Allocution allows a defendant to acknowledge wrongful

conduct, which is “the first step towards satisfying the

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sentencing objective of rehabilitation.”         Id.   The opportunity

to speak prior to sentencing may also have a therapeutic effect

on the defendant.    Id.   Further, allocution is “a significant

aspect of the fair treatment which should be accorded a

defendant in the sentencing process.”        Id.

          Consistent with these purposes, Hawaii caselaw has

strongly protected a defendant’s right of allocution.            In Davia,

the State conceded and this court held that the district court

erred in failing to accord the defendant his right of

allocution.   87 Hawaii at 255, 953 P.2d at 1353.         The Davia

court concluded that, if the defendant “is again convicted on

remand, the district court should insure that he is afforded an

opportunity to speak prior to sentencing.”         Id.

          Additionally, in Carvalho, the circuit court denied

the defendant’s request for sentencing under the Youthful

Offender Act without granting him the right of allocution.             90

Hawaii at 282-83, 978 P.2d at 720-21.        On appeal, this court

held that, because a court’s consideration of the Youthful

Offender Act is an aspect of sentencing, the circuit court

violated the defendant’s right of allocution when it denied him

a fair opportunity to be heard on the potential application of

the youthful offender statute.       Id. at 286, 978 P.2d at 724.




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             Further, in Chow, the district court sentenced the

defendant without first affording him the right to be heard.                  77

Hawaii at 243, 246, 883 P.2d at 665, 668.            The ICA held that

“the defendant must be given the opportunity to be heard before

the court imposes sentence.”         Id. at 247, 883 P.2d at 669.

Ruling that the denial of allocution constitutes error, the ICA

vacated the defendant’s sentences and remanded the case for

resentencing before a different judge.            Id. at 251, 883 P.2d at

673.     Indeed, the ICA expressed doubt that a court’s error in

denying a defendant the opportunity to speak prior to imposing

sentence could ever be harmless.            Id.

             Thus, a defendant has a right to be heard prior to

being sentenced, which “is constitutionally protected,

independent and apart from the mandates of statute . . . and

rule.”     Id. at 246-47, 883 P.2d at 668-69.         In this case, the

record lacks any indication that the court provided Hernandez

the opportunity to be heard prior to imposing sentence.15               Nor

does the record show that Hernandez made any waiver of his right




      15
             The fact that Hernandez was not physically present at sentencing
is of no consequence to the court’s duty to ensure that he is accorded the
right to be heard prior to the imposition of sentence. The availability of
real-time video communication may allow a defendant’s right of allocution at
sentencing in qualifying misdemeanor cases to be realized by means other than
physical presence. See HRPP Rule 43(e) (allowing for presence by video
conference).




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of allocution voluntarily and with full understanding of the

consequences.

           Consistent with the court’s constitutional obligation

to address the defendant as to the right of allocution, the

court has a duty to ensure that a defendant’s waiver of this

right is knowingly, intelligently, and voluntarily made.             “It is

well settled in Hawaii law that a defendant relinquishes

fundamental rights only when a waiver is undertaken

intelligently, knowingly, and voluntarily.”           State v. Ui, 142

Hawaii 287, 293, 418 P.3d 628, 634 (2018).          “Reviewing courts

will not presume a defendant’s acquiescence in the loss of

fundamental rights on the basis of a silent record.”16            Id.

(citing Wong v. Among, 52 Haw. 420, 424, 477 P.2d 630, 633-34

(1970)).

           In sum, because Hernandez was not provided the

opportunity to be heard, which is mandated by statute and the

Hawaii Constitution, and the record does not establish a




     16
            Because, as stated, the plea by mail document did not contain any
reference to Hernandez’s statutory and constitutional right of allocution, we
need not decide whether an effective waiver of the right may be established
through the submission of a waiver document or other filings without a
colloquy between the court and the defendant. As discussed infra, however, a
document that is filed without any direct interaction between the defendant
and the court is insufficient to establish a knowing, intelligent, and
voluntary waiver of a fundamental right under our precedents.




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knowing, intelligent, and voluntary waiver of that opportunity,

his right of allocution was violated.17

B. The District Court’s Acceptance of Hernandez’s No Contest Plea
                         Without a Colloquy

            This court will consider issues that have not been

preserved below and raised on appeal when necessary to serve the

ends of justice.     State v. Ui, 142 Hawaii 287, 297, 418 P.3d

628, 638 (2018) (citing State v. Kahalewai, 56 Haw. 481, 491,

541 P.2d 1020, 1027 (1975)).        In determining whether a lower

court’s plain error may be noticed, the relevant inquiry is

whether the error affected substantial rights.            Id. (citing

State v. Miller, 122 Hawaii 92, 100, 223 P.3d 157, 165 (2010)).

Hernandez contends that the district court plainly erred in

accepting his no contest plea because it was not made knowingly,

voluntarily, and intelligently.18


      17
             The remedy for the denial of a defendant’s right of allocution is
resentencing. Chow, 77 Hawaii at 248, 883 P.2d at 670 (citing Schutter, 76
Hawaii at 208, 873 P.2d at 85). “For, if the right of allocution is
violated, it cannot be known whether the defendant would have said anything
that could have resulted in a different sentence.” Id. However, in light of
our disposition in this case, see infra, the remedy of resentencing is
unnecessary.
      18
            The dissent argues that we should not invoke plain error review
in this instance because it is a power to be used “sparingly and with
caution.” Dissent at 2 (quoting Miller, 122 Hawai‘i at 146, 223 P.3d at 211
(Nakayama, J., dissenting)). To the extent this is an argument that we
should not notice and correct errors affecting substantial rights, this court
has expressly rejected this position on multiple occasions. See Miller, 122
Hawai‘i at 117, 223 P.3d at 182 ("[T]he term ‘sparingly’ refers to the
limitation already in place in HRPP Rule 52(b) that the error must be one
‘affecting substantial rights.’ . . . [W]here plain error has been committed

                                                            (continued . . .)

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           HRPP Rule 43(d)(2) provides that a court need not

comply with the requirement in HRPP Rule 11 that it address the

defendant personally in open court when the defendant has waived

the right to be present at arraignment.          On certiorari,

Hernandez contends that the district court erred in accepting

his no contest plea without ensuring that his plea was

knowingly, intelligently, and voluntarily made.19

           It is well established “that a guilty plea ‘in itself

is a conviction and a simultaneous waiver of several important


(. . . continued)

and substantial rights have been affected thereby, the better part of
discretion is to invoke the plain error rule.” (some internal quotations and
alterations omitted) (quoting State v. Fox, 70 Haw. 46, 56, 760 P.2d 670, 676
(1988)); Ui, 142 Hawai‘i at 298 n.19, 418 P.3d at 639 n.19 ("We reaffirm
Miller's holding that where plain error has been committed and substantial
rights have been affected thereby, the better part of discretion is to invoke
the plain error rule." (internal quotations omitted)); see also State v.
Nichols, 111 Hawai‘i 327, 335, 141 P.3d 974, 982 (2006) (holding that, where
the error is a failure to fulfill a constitutional duty placed upon the trial
court rather than the litigants, there is a “merger of the plain error and
harmless error standards of review”).

            The dissent further contends that plain error review is
inappropriate because Hernandez has not specifically alleged that the trial
court’s error affected his substantial rights. Dissent at 11-12. But
Hernandez clearly argues in his application that “[t]he trial court plainly
erred in accepting Petitioner’s no contest plea as it was not knowingly,
voluntarily, and intelligently made.” (Emphasis added.) Hernandez thus
alleges that he was deprived of substantial rights, including the right to a
fair trial and all the constituent rights that a fair trial encompasses,
because he was convicted without validly waiving any of these rights. A
formalistic recitation of the phrase “substantial rights” is not required.
     19
            Although this argument was raised in the reply brief and is made
on certiorari to this court, it was not asserted in the opening brief to the
ICA. Nonetheless, because we conclude that the district court’s acceptance
of the no contest plea violated substantial rights of Hernandez, we need not
address whether the issue was otherwise adequately preserved.




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constitutional guarantees[,]’ namely, the privilege against

compulsory self-incrimination, the right to a trial by jury, and

the right to confront one’s accusers.”         State v. Solomon, 107

Hawaii 117, 127, 111 P.3d 12, 22 (2005) (alteration in original)

(quoting Wong v. Among, 52 Haw. 420, 425, 477 P.2d 630, 634

(1970)).   Additional constitutional guarantees waived by a

guilty plea include the right to testify and the right to have

each element of the charged offense proven beyond a reasonable

doubt.   See Tachibana v. State, 79 Hawaii 226, 231-32, 900 P.2d

1293, 1298-99 (1995); State v. Murray, 116 Hawaii 3, 10, 169

P.3d 955, 962 (2007).     Thus, “the waiver of these guarantees ‘is

not constitutionally acceptable unless made voluntarily and with

full understanding of the consequences.’”         Solomon, 107 Hawaii

at 127, 111 P.3d at 127 (quoting Wong, 52 Haw. at 425, 477 P.2d

at 634).

           While HRPP Rule 43(d)(2) provides that the court need

not comply with the HRPP requirement of addressing the defendant

in open court when the defendant has waived the right to be

present at arraignment, our court rules must be construed to

conform with the dictates of our constitution when such an

interpretation is reasonably possible and to yield when there is




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irreconcilable conflict.20      See Life of the Land, Inc. v. W.

Beach Dev. Corp., 63 Haw. 529, 531, 631 P.2d 588, 590 (1981);

supra note 14.     We have stated that a trial court is

constitutionally obligated to ensure that a defendant’s guilty

plea is knowingly and voluntarily entered.          State v. Williams,

68 Haw. 498, 499, 720 P.2d 1010, 1012 (1986).           In determining

the voluntariness of a guilty plea, the trial court should, at a

minimum, “make an affirmative showing by an on-the-record

colloquy between the court and the defendant wherein the

defendant is shown to have a full understanding of what the plea

of guilty connotes and its consequences.”          State v. Vaitogi, 59

Haw. 592, 601, 585 P.2d 1259, 1265 (1978).          “Reviewing courts

will not presume a defendant’s acquiescence in the loss of

fundamental rights on the basis of a silent record.”             Ui, 142

Hawaii at 293, 418 P.3d at 634 (citing Wong, 52 Haw. at 424, 477

P.2d at 633-34).

           For example, in Williams, we held that the trial court

committed plain error when it accepted the defendant’s guilty

plea without informing the defendant of the penalties provided

by law or inquiring whether the defendant knew or understood the

     20
            By its own terms, HRPP Rule 43(d)(2) excuses the court from
complying with only the requirement of addressing the defendant in open court
established by HRPP Rule 11 (2014) and HRPP Rule 32. Thus, HRPP Rule
43(d)(2) does not--and indeed, could not--excuse the court from complying
with any obligations established by statute or the constitution.




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penalties.     68 Haw. at 499, 720 P.2d at 1012.         We stated that

the trial court violated its “constitutional obligation to

ensure that the guilty plea was voluntarily and knowingly

entered.”     Id.   Thus, we concluded the defendant’s guilty plea

and sentence were void and remanded the case for a new trial.

Id.

            Similarly, in Solomon, the defendant asserted error in

the family court’s acceptance of his guilty plea without

establishing on the record that his plea was made knowingly and

voluntarily.     107 Hawaii at 127, 111 P.3d at 22.         Although the

family court conducted a colloquy with the defendant, we held

that the colloquy was insufficient because the family court did

not inform the defendant that, by pleading guilty, he was giving

up “certain rights.”       Id. at 128, 111 P.3d at 23.        Thus, we

concluded that the defendant’s guilty plea was not made

knowingly, intelligently, and voluntarily.           Id.

            We have underscored the requirement of a colloquy

between the court and the defendant even where the penal rules

permit the defendant to waive fundamental rights.             In State v.

Gomez-Lobato, the defendant submitted a waiver of jury trial

form.    130 Hawaii 465, 466-67, 312 P.3d 897, 898-99 (2013).

After the family court engaged in a brief conversation with the

defendant regarding the form, the court concluded that the

defendant knowingly, intelligently, and voluntarily waived his

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right to a jury trial.     Id.   This court recognized that a

defendant is entitled under HRPP Rule 23(a) to waive the right

to a jury trial by oral or written consent.          Id. at 469, 312

P.3d at 901.   Nonetheless, we stated, the penal rule “does not

relieve the court of its obligation to ensure, through an

appropriate oral colloquy in court, that the waiver was

knowingly, intelligently, and voluntarily given.”           Id.     Because

the family court’s questions were not sufficient to establish a

valid waiver of the right to a jury trial, we concluded that the

family court erred in finding a knowing and voluntary waiver.

Id. at 471-73, 312 P.3d at 903-05.

          Similarly, in State v. Baker, the defendant executed a

waiver of jury trial form, after which the family court engaged

in a brief exchange with the defendant.         132 Hawaii 1, 3-4, 319

P.3d 1009, 1011-12 (2014).       On appeal, the defendant challenged

the family court’s colloquy as “woefully deficient.”              Id. at 5,

319 P.3d at 1013.    We stated that, “while the defendant may

execute a written waiver form, the court should also engage in

an appropriate oral colloquy with the defendant to establish

that the waiver was knowing, intelligent, and voluntary.”             Id.

at 6, 319 P.3d at 1014.     Finding that none of the family court’s

questions addressed the voluntariness of the defendant’s waiver,

we concluded that the family court failed to ensure that the



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defendant’s waiver of the right to a jury trial was voluntary.

Id. at 7, 319 P.3d at 1015.

          The deficiency of the process is more pronounced when,

as in this case, the waiver document is submitted without any

direct interaction between the defendant and the court.            Here,

the court appeared to accept defense counsel’s representations

that Hernandez understood the charges against him and the rights

he was waiving by pleading no contest.         But we have held that “a

court may not rely upon an off-the-record discussion between

counsel and a defendant to establish a valid waiver of a

constitutional right.”     State v. Eduwensuyi, 141 Hawai‘i 328,

336, 409 P.3d 732, 740 (2018).       Indeed, “[o]ur precedents do not

permit a reviewing court to infer that a fundamental right was

knowingly, voluntarily, and intelligently relinquished by a

defendant simply because defense counsel suggested that the

right was so waived.”     Ui, 142 Hawai‘i at 299, 418 P.3d at 640.

          The dissent nonetheless relies on the plea by mail

document and counsel’s representations in arguing that plain

error review is inappropriate when context suggests “a defendant

initiated a procedural maneuver for his benefit” because the

failure of the court to conduct a colloquy in such circumstances

does not affect a defendant’s substantial rights.           Dissent at 8.

This approach calls for speculation regarding what a defendant

would have done had the requisite information been provided.

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Alternatively, it may be an indirect decision on the merits of

whether the waiver at issue was knowing, intelligent, and

voluntary, which appears to be applied as a plain error

standard.    In either event, we squarely rejected this position

in State v. Ui, 142 Hawai‘i at 299, 418 P.3d at 640.            Prior to

invoking our authority to correct plain errors, we held that

there is no strategic decision exception to the constitutional

colloquy requirement because, inter alia, evaluating whether the

exception applied would require conjecture regarding privileged

communications and because the exception would be wholly

unadministrable, as virtually any waiver can be characterized as

having strategic benefits.       Id. at 294-96, 418 P.3d at 635-37.

This holds true regardless of whether the argued-for exception

is characterized as a plain error standard, Dissent at 8-9, or a

method of evaluating a purported waiver in the first instance.21

Dissent at 13-15.

            Additionally, the dissent’s position is at odds with

firmly established precedent.        This court has consistently


     21
            The dissent alternately argues that, under the invited error
doctrine, the omission of the required colloquy is not grounds for vacating
Herandez’s conviction. We have stated, however, that the “general rule” that
invited errors are not reversible “is inapplicable where an invited error is
so prejudicial as to be plain error.” Nichols, 111 Hawai‘i at 339 n.7, 141
P.3d at 986 n.7. In other words, errors that affect substantial rights such
that plain error review is appropriate are not subject to the invited error
doctrine, and we need not consider whether the doctrine would otherwise
apply.




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declined to find a valid waiver of a fundamental right based on

a filing or representations by counsel when the trial court

failed to engage the defendant in an on-the-record colloquy, and

we have often expressly invoked plain error review to do so--

including specifically when a defendant has executed a written

waiver pursuant to an HRPP Rule ostensibly authorizing the

procedure.22    See Gomez-Lobato, 130 Hawai‘i at 469 n.4, 312 P.3d

at 901 n.4 (holding that it was plain error for trial court to

accept defendant’s written waiver of a jury trial without

engaging defendant in a colloquy despite HRPP Rule 23(a)

permitting a waiver to be in writing); see also, e.g., Ui, 142

Hawai‘i at 299, 418 P.3d at 640 (holding that it was plain error

      22
            Further, the dissent faults Hernandez for failing to challenge
the district court’s acceptance of his plea at the district court stage.
Dissent at 6, 10. Our precedents make clear, however, that it is the duty of
the trial court to perform a colloquy to ensure a defendant’s waiver of a
fundamental right is undertaken knowingly, intelligently, and voluntarily--
not a defendant or defense counsel’s duty. See, e.g., Ui, 142 Hawai‘i at 293,
418 P.3d at 634 (“[I]t is necessary for a trial court to engage a defendant
in an on-the-record colloquy before accepting a waiver of any of the rights
we have held to be fundamental.” (emphasis added)); Murray, 116 Hawai‘i at 11,
169 P.3d at 963 (“[A] knowing and voluntary waiver of a defendant’s
fundamental right must come directly from the defendant, and requires the
court to engage in a colloquy with the defendant.” (emphasis added)). It is
certainly questionable whether a defendant can be faulted for a trial court’s
failure to fulfil the constitutional requirement of a colloquy. Cf. Nichols,
111 Hawai‘i at 335, 141 P.3d at 982 (holding that unobjected-to jury
instruction error was subject to harmless beyond a reasonable doubt review
because “the duty to properly instruct the jury ultimately lies with the
trial court”). Indeed, were we to hold that that defense counsel is under a
duty to notice the failure and bring it to the court’s attention, it would
follow that the failure of a prosecutor to do the same would amount to
prosecutorial misconduct. See State v. Maluia, 107 Hawai‘i 20, 25, 108 P.3d
974, 979 (2005) (“The term ‘prosecutorial misconduct’ is a legal term of art
that refers to any improper action committed by a prosecutor, however
harmless or unintentional.” (emphasis omitted)).




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for trial court to accept stipulation to an element of the

charged offense without engaging defendant in a colloquy); State

v. Vaitogi, 59 Haw. 592, 593 n.4, 597, 585 P.2d 1259, 1260 n.4,

1262 (1978) (stating “(i)t was error, plain on the face of the

record, for the trial judge to accept (defendant’s) guilty plea

without” a colloquy (alterations in original) (quoting Boykin v.

Alabama, 395 U.S. 238, 242 (1969))); State v. Ichimura, SCWC-13-

0000396, 2017 WL 2590858, at *7 (Haw. June 15, 2017) (holding

that it was plain error for the trial court to fail to engage

defendant in a colloquy regarding defendant’s right to testify).

The dissent offers no justification for departing from these

precedents.

           Thus, regardless of whether the defendant has executed

a document waiving the right to be present at a change of plea

proceeding pursuant to the HRPP, the trial court is required,

under the Hawaii Constitution, to ensure through an on-the-

record colloquy that a defendant’s guilty plea is knowingly and

voluntarily entered.      Solomon, 107 Hawaii at 127, 111 P.3d at

22; Williams, 68 Haw. at 499, 720 P.2d at 1012.23


     23
            This principle is similarly true with regard to the waiver of
other fundamental rights. See Murray, 116 Hawaii at 12, 169 P.3d at 964
(holding that “the trial court must conduct a colloquy regarding waiver of
proof of an element of the offense”); Tachibana, 79 Hawaii at 235, 900 P.2d
at 1302 (holding that the trial court must engage in an on-the-record
colloquy to ensure that the defendant knowingly and voluntarily waived the
constitutional right to testify); State v. Ibuos, 75 Haw. 118, 121, 857 P.2d

                                                           (continued . . .)

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           In this case, although Hernandez submitted a plea by

mail document indicating that he was waiving his right to be

present at arraignment and sentencing and pleading no contest to

harassment by stalking, the district court was constitutionally

obligated, prior to accepting his no contest plea, to ensure

through an on-the-record colloquy with Hernandez that his plea

was knowingly, intelligently, and voluntarily made.            The record

lacks any showing that the court fulfilled this constitutional

obligation.24



(. . . continued)

576, 578 (1993) (holding that the record was silent as to any colloquy
between the court and the defendant and concluding that counsel’s waiver of
the defendant’s right to a trial by jury was invalid).
     24
            As with the right of allocution, a defendant’s written consent to
waive the right to be present at arraignment does not relieve the court of
its constitutional obligation to ensure that the guilty or no contest plea is
knowingly and voluntarily made. Cf. Gomez-Lobato, 130 Hawai‘i at 469, 312
P.3d at 901 (“In other words, while the defendant may execute a written
waiver form [pursuant to HRPP Rule 23(a)], the court should also engage in an
oral colloquy with the defendant to establish that the waiver was knowing,
intelligent, and voluntary.”). And contrary to the dissent’s contention, our
holding will not lead Hawai‘i judges to cease accepting Rule 43(d) pleas.
Dissent at 9 n.5. Like the right of allocution, the court’s colloquy
obligation in misdemeanor cases within the scope of HRPP Rule 43(d) may be
fulfilled through real-time electronic video communication. Such technology
has become easily accessible--indeed ubiquitous--in the modern age through
smartphones and other common consumer devices, dispelling any notion that
offenders who have departed from the island where the offense is alleged to
have been committed before their court date will be unable to appear
remotely. Further, the use of video conferencing for arraignments is
expressly authorized under the HRPP. See HRPP Rule 10(d) (2014)
(“Arraignment in the circuit court shall be conducted in open court or by
video conference when permitted by Rule 43.”); HRPP Rule 43(e)(1)-(2)(A)
(authorizing courts to conduct arraignment by video conference). Presence by
video conference is also permitted with the consent of the defendant at a
pre- or posttrial evidentiary hearing, a non-evidentiary proceeding, and a
sentencing hearing. See HRPP Rule 43(e)(2)(B)-(C), (e)(3).


                                                           (continued . . .)

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(. . . continued)

            Notwithstanding this specific authorization in multiple
situations, the dissent contends that appearing by video conference is not
“viable” when a defendant is not in an “institutional setting like a prison”
because “authentication, identification, and confidentiality issues” will
make it too difficult to develop an “accurate record.” Dissent at 9 n.5.
Yet it is not clear which of the assurances of a defendant’s identity that
are present when a defendant appears in person would be absent when the
defendant instead appears by video conferencing, nor why the lack of such
safeguards would undermine the memorialization of the record in the manner
employed in any other proceeding. Moreover, the alternative procedure argued
for by the dissent--under which courts would accept a defendant’s guilty or
no contest plea based on an out-of-court signature and submission of a
document--contains far fewer assurances of the defendant’s personal
involvement and willingness to relinquish fundamental rights than when a
court conducts a colloquy by video conference, and the alternative procedure
would thus be more susceptible to the subsequent legal challenges the dissent
appears to contemplate. To the extent the evidentiary concept of
authentication applies to a video conference, it has not presented a
significant enough obstacle to prevent our court rules from authorizing the
technique in a variety of contexts in a criminal case without conditioning
its use on the defendant’s institutionalization. The same conclusion applies
to the dissent’s concern with “identification[] and confidentiality issues,”
which have also not inhibited our broad endorsement of video conferencing
under HRPP Rule 43. Dissent at 9 n.5.

            We note that the positive benefits of the colloquy requirement
are broadly recognized in seminal decisions by this and other courts across
the nation. Tachibana, 79 Haw. at 233, 900 P.2d at 1300 (“There are well-
documented benefits to the colloquy procedure.”); accord Boykin, 395 U.S. at
244 n.7 (“A majority of criminal convictions are obtained after a plea of
guilty. If these convictions are to be insulated from attack, the trial
court is best advised to conduct an on the record examination of the
defendant which should include, inter alia, an attempt to satisfy itself that
the defendant understands the nature of the charges, his right to a jury
trial, the acts sufficient to constitute the offenses for which he is charged
and the permissible range of sentences.” (quoting Commonwealth ex rel. West
v. Rundle, 428 Pa. 102, 105—106 (1968))).

            Further, the misdemeanor offenses qualifying for an in-absentia
plea under HRPP Rule 43(d)(2) encompass a wide range of serious crimes. In
addition to harassment by stalking, with which Hernandez was charged,
qualifying offenses include such crimes as abuse of a family or household
members, HRS § 709-906 (2014), sexual assault in the fourth degree, HRS §
707-733 (2014), violation of privacy in the second degree, HRS § 711-1111
(2014), and unlawful imprisonment in the second degree, HRS § 707-722 (2014).
Not only may these offenses greatly impact the victims of the crimes--who are
denied an opportunity to directly address the offender when a defendant does
not participate in the sentencing proceeding--but a conviction of such an
offense may also have serious consequences for a defendant’s career,
reputation, and personal life. The decision to forego an opportunity to
contest such charges should not be treated as a technical formality effected

                                                           (continued . . .)

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     ***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***


           Because the district court failed to ascertain whether

Hernandez’s no contest plea was made knowingly, intelligently

and voluntarily, the omission affected Hernandez’s substantial

rights.   The district court therefore plainly erred in accepting

Hernandez’s plea of no contest.

                             V.   CONCLUSION

           Based on the foregoing, the ICA’s May 30, 2017

Judgment on Appeal and the district court’s January 7, 2015 and

February 9, 2015 Notices of Entry of Judgment and/or Order are

vacated, and the case is remanded to the district court for

further proceedings consistent with this opinion.

Reiko A. Bryant                           /s/ Sabrina S. McKenna
Audrey L. Stanley
for petitioner                            /s/ Richard W. Pollack

James M. Anderson                         /s/ Michael D. Wilson
Sonja P. McCullen
for respondent




(. . . continued)

solely through written waiver forms without the defendant’s direct
participation. See Gomez-Lobato, 130 Hawai‘i at 469, 312 P.3d at 901.




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