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                                                                Electronically Filed
                                                                Supreme Court
                                                                SCWC-30059
                                                                28-FEB-2014
                                                                08:17 AM




                                  SCWC-30059

              IN THE SUPREME COURT OF THE STATE OF HAWAI#I



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

                                      vs.

           CLARENCE STONE, Petitioner/Defendant-Appellant.


           CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
      (ICA NO. 30059; CASE NOS. 2DTA-08-00722; 2DTA-08-01628;
                   2DTC-08-011610; 2DTC-09-009261)

                         MEMORANDUM OPINION
(By: Recktenwald, C.J., Nakayama, Acoba, McKenna, and Pollack, JJ.)

             Petitioner/Defendant-Appellant Clarence Stone (Stone)

 appeals from the Intermediate Court of Appeals’ (ICA) October 1,

 2012 Judgment on Appeal filed pursuant to its August 31, 2012

 Summary Disposition Order (SDO).         The ICA affirmed the September

 1, 2009 Notice of Entry of Judgment and/or Order and

 Plea/Judgments in Case Nos. 2DTA-08-00722, 2DTA-08-01628, 2DTC-

 08-011610, and 2DTC-09-009261 filed in the District Court of the

 Second Circuit, Wailuku Division (district court).            Stone
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presents the following question to this court: whether the ICA

erred in affirming his convictions where the charges failed to

state an offense, and, accordingly, did not confer subject matter

jurisdiction upon the district court.

                             I.   BACKGROUND

                      A.   The Four Traffic Cases

            The appeal in this case arises from four different

traffic cases, later consolidated.

           In the first case, Case No. 2DTA-08-00722, the State

filed an amended complaint on March 2, 2009, charging Stone with

Operating a Vehicle After License and Privilege Have Been

Suspended or Revoked For Operating a Vehicle Under the Influence

of an Intoxicant (OVLPSR-OVUII) in violation of HRS §§ 291E-62

and 291E-62(b)(1) (Count I), and No No-Fault Insurance in

violation of HRS §§ 431:10C-104(a), 431:10C-117(2), and 431:10C-

117(3) (Count II).

           In the second case, Case No. 2DTA-08-01628, the State

filed an amended complaint on October 8, 2009, charging Stone

with Operating a Vehicle Under the Influence of an Intoxicant

(OVUII) in violation of HRS §§ 291E-61(a) and 291E-61(b)(5)

(Count I), and Driving Without a License (DWOL) in violation of

HRS §§ 286-102 and 286-136(a) (Count II).




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           In the third case, Case No. 2DTC-08-011610, the State

filed an amended complaint on January 23, 2009, charging Stone

with OVLPSR-OVUII in violation of HRS §§ 291E-62 and 291E-

62(b)(1) (Count I), and No No-Fault Insurance in violation of HRS

§§ 431:10C-104(a) and 431:10C-117(2)-(3) (Count II).

           In the fourth case, Case No. 2DTC-09-009261, the State

filed an amended complaint on June 26, 2009, charging Stone with

OVLPSR-OVUII in violation of HRS §§ 291E-62 and 291E-62(b)(3)

(Count I), and No No-Fault Insurance in violation Of

HRS §§ 431:10C-104(a) and 431:10C-117(2) and (3) (Count II).

    B.   March 20, 2009 Change of Plea Hearing for Three Cases

            On March 20, 2009,1 Stone entered guilty pleas in Case

Nos. 2DTA-08-00722, 2DTA-08-01628, and 2DTC-08-011610 pursuant to

a plea agreement with the State.        As part of the agreement, the

State dismissed with prejudice Count II (No No-Fault Insurance)

in Case No. 2DTA-08-00722, and also agreed to not request more

than thirty days of jail time in any of the cases unless Stone

did not appear for sentencing.       Stone pleaded guilty to all other

counts in the named cases.




     1
           The Honorable Paul Horikawa presided.

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  C.       July 14, 2009 Hearing: Change of Plea in Fourth Case and
                          Sentencing in All Cases

               At a July 14, 2009 hearing,2 as to Count I (OVLPSR-

OVUII) in Case No. 2DTC-09-009261, Stone pleaded no contest

pursuant to a plea agreement, and the State agreed to dismiss

with prejudice Count II (No No-Fault Insurance).

               At this same hearing, the district court imposed

sentences in all four of the cases referenced above.              The

district court’s sentences included various fines and concurrent

jail terms, with the longest jail term being a one-year term for

the most recent case, Case No. 2DTC-09-009261:

                 1. Count One in Case No. 2DTA-08-00722 (Operating Vehicle
                    After License Suspended or Revoked, as a first
                    offense): thirty days jail with credit for time
                    served; $30 criminal injury fee; $250 fine; $7 driver
                    ed fee; one-year driver’s license suspension upon
                    release from jail.
                 2. Count One in Case No. 2DTA-08-01628 (OVUII, as a
                    second offense): fourteen days jail with credit for
                    time served; $500 fine; $462 in administrative fees
                    and court costs; one-year driver’s license suspension
                    and substance abuse evaluation upon release from jail.
                 3. Count Two in Case No. 2DTA-08-01628 (Driving Without
                    License, as a fifth offense): 180 days in jail with
                    credit for time served; $500 fine; $7 driver ed fee;
                    $40 admin fee; $55 criminal injury fee.
                 4. Count One in Case No. 2DTC-08-011610 (Operating
                    Vehicle After License Suspended or Revoked, as a
                    second offense): thirty days jail with credit for time
                    served; $250 fine; $30 criminal injury fee; $7 driver
                    ed fee.
                 5. Count Two in Case No. 2DTC-08-011610 (No No-Fault
                    Insurance, as a first offense): $500 fine; $7 driver
                    ed fee; three-month driver’s license suspension.
                 6. Count One in Case No. 2DTC-09-009261 (Operating
                    Vehicle After License Suspended or Revoked, as a third
                    offense): one year jail with credit for time served;



       2
              The Honorable Kelsey Kawano presided.

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                 $2000 fine; $40 admin fee; $7 driver ed fee; $55
                 criminal injury fee; $10 trauma system surcharge;
                 permanent driver’s license revocation.
              7. All jail sentences and driver’s license suspensions
                 were ordered to run concurrently.


           Judgments in all four cases were filed on July 14,

2009.

                      D.   Post-Sentencing Motions

           On July 30, 2009, Stone filed a post-judgment motion to

withdraw his pleas.     At the hearing held on August 6, 2009, the

parties reached an agreement with respect to a reduction of

Stone’s jail sentences from one year to six months.            Stone also

orally moved to extend the time for filing a notice of appeal.

In order to effectuate the agreement, on August 26, 2009, Stone

filed a motion to reduce the sentences pursuant to Hawai#i Rules

of Penal Procedure (HRPP) Rule 35, which set forth the terms of

the agreement.

           At the September 1, 2009 hearing on Stone’s motion to

reduce sentence, the court granted the motion, and Stone’s jail

terms were reduced in accordance with the August 6, 2009

agreement.   Accordingly, the court: suspended all but 14 days of

the jail terms that had previously been imposed, upon the

condition that Stone commit no further similar driving offenses,

stayed the mittimus pending appeal, consolidated the four cases

for appeal, and granted Stone’s oral motion to extend the time

for filing a notice of appeal to September 14, 2009.            On

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September 1, 2009, the court issued amended judgments reflecting

the modified sentences.

           On September 14, 2009, Stone filed a notice of appeal

from the July 14, 2009 judgments.           On September 21, 2009, the

court issued its written order granting Stone’s oral motion to

extend the time for filing a notice of appeal to September 14,

2009.

                         E.     Appeal to the ICA

                              1.   Opening Brief

           Stone’s appeal was premised on his contention that,

with respect to 2DTA-08-01628, the district court lacked subject

matter jurisdiction over (a) the OVUII offense because the charge

failed to allege an essential element of the offense, and (b) the

DWOL offense because the charge failed to allege that Stone “was

not excepted by statute from the driver’s licensing

requirements.”    Similarly, with respect to Case Nos. 2DTA-08-

00722, 2DTC-08-011610, and 2DTC-09-009261, Stone contended the

district court lacked subject matter jurisdiction over each of

the charges because of their failure to allege an essential

element of the offense.       Stone requested that the ICA remand with

instructions to dismiss these charges without prejudice.




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                           2.     Answering Brief

            The State argued that Stone’s September 14, 2009 notice

of appeal, which designated the July 14, 2009 Judgment “as

appealed from,” was defective for failing to appeal the final

judgment.    Rather, the State argued that the September 1, 2009

Amended Judgment “was the final judgment in the underlying case

for purposes of appeal in light of State v. Kilborn, 109 Hawai#i

435, 127 P.3d 95 (App. 2005)[.]”3            Therefore, the State argued

that the notice of appeal failed to properly confer appellate

jurisdiction and the appeal should be dismissed.

            The State also argued that the complaints in these

cases were not defective because the trial court’s jurisdiction

was established prior to Stone entering his guilty pleas, and

Stone did not show, nor even claim, that he was prejudiced by any

defect in the charges.

                                3.   The ICA SDO

            On August 31, 2012, the ICA issued its SDO.           State v.

Stone, No. SCWC-30059, 2012 WL 3791886, at *1 (App. Aug. 31,



      3
            The State argued that in Kilborn, the ICA “observed that the
district court did not finally decide whether the defendant in a criminal
traffic case would be required to pay restitution and if so, in what amount.”
The State contended that the ICA held that “judgments of conviction entered in
the district courts are not final and not appealable pursuant to HRS § 641-12,
unless they include the final adjudication and the final sentence.” “Thus,
the judgment which was appealed from was not final because the sentence was
not the final sentence, and the appeal was dismissed for lack of appellate
jurisdiction.”

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2012).4   The ICA first addressed the State’s argument that

Stone’s notice of appeal was defective and he had failed to

invoke appellate jurisdiction.        Stone, 2012 WL 3791886, at *2.

            The ICA began its analysis by noting that the district

court had entered two sets of judgments, and that “Stone filed

his notice of appeal on September 14, 2009, within thirty days of

the September 1, 2009 judgments.”          Stone, 2012 WL 3791886, at *1.

The ICA then relied upon Poe v. Hawaii Labor Relations Board, 98

Hawai#i 416, 49 P.3d 382 (2002), for the general rule with

respect to multiple judgments: where a judgment is amended in a

material and substantial respect, the time from which an appeal

may be taken begins to run from the date of the amendment unless

the amendment relates only to the correction of clerical errors.

Stone, 2012 WL 3791886, at *2.        The ICA concluded that the

September 1, 2009 judgments had materially and substantially

altered the July 14, 2009 judgments by modifying Stone’s

sentences.    It was therefore “error” for Stone’s notice of appeal

to provide that the appeal was from the district court’s July 14,

2009 judgments, rather than from the September 1, 2009 judgments.

Stone, 2012 WL 3791886, at *1-2.




      4
            The Honorable Daniel R. Foley and Lisa M. Ginoza comprised the
majority, and Chief Judge Craig H. Nakamura filed a separate concurring and
dissenting opinion.

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           The ICA held that “this error does not prevent

appellate jurisdiction in this appeal.”         Under State v. Bohannon,

102 Hawai#i 228, 74 P.3d 980 (2003), the ICA concluded that “a

mistake in designating the judgment . . . should not result in

loss of the appeal as long as the intent to appeal from a

specific judgment can be fairly inferred from the notice and the

appellee is not misled by the mistake.”         Stone, 2012 WL 3791886,

at *2 (citing Bohannon, 102 Hawai#i at 235, 74 P.3d at 987

(quoting City & Cnty. of Honolulu v. Midkiff, 57 Haw. 273, 275-

76, 554 P.2d 233, 235 (1976)).       The ICA noted that the State did

not argue that it could not be fairly inferred that Stone

intended to appeal the September 1, 2009 judgments, or that it

was misled by the mistake.      Stone, 2012 WL 3791886, at *2.         The

ICA therefore concluded that it had appellate jurisdiction.             Id.

           In regards to the sufficiency of the charges, the ICA

rejected Stone’s “untimely challenge to the sufficiency of the

respective charges and his assertion that the district court

lacked subject matter jurisdiction to convict him.”            Id. at *4.

           In his concurring and dissenting opinion, Chief Judge

Nakamura stated that he would have held that the OVUII charge in

Case No. 2DTA-08-01628 was insufficient, but he agreed with the

majority that all the other charges were sufficient.            Id. at *6,

*15 (Nakamura, J., concurring in part and dissenting in part).


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           Therefore, the ICA affirmed the judgment of the

district court in each of the four cases.

               F.   Application for Writ of Certiorari

           In his application for writ of certiorari (Application)

to this court, Stone maintains that the OVUII charge and each of

the three OVLPSR-OVUII charges failed to state an offense and

thereby did not confer subject matter jurisdiction on the

district court.     Specifically, the ICA failed in its decision to

consider State v. Nesmith, 127 Hawai#i 48, 276 P.3d 617 (2012)

and State v. Walker, 126 Hawai#i 475, 273 P.3d 1161 (2012).

Stone also contends that the district court lacked subject matter

jurisdiction over the DWOL offense.

           In its Response, the State disagrees with Stone’s

assertion that the charges in this case were jurisdictionally

defective under Nesmith and Walker.

           In his Reply, Stone maintains that the OVLPSR-OVUII

charges “must be reversed and the matter remanded for a dismissal

without prejudice because the charges failed to allege a mens

rea.”

                             II. DISCUSSION

           “A court always has jurisdiction to determine whether

it has jurisdiction over a particular case.”          State v. Bohannon,

102 Hawai#i 228, 234, 74 P.3d 980, 986 (2003) (citing State v.

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Graybeard, 93 Hawai#i 513, 516, 6 P.3d 385, 388 (App. 2000) (“An

appellate court has . . . an independent obligation to ensure

jurisdiction over each case and to dismiss the appeal sua sponte

if a jurisdictional defect exists.”)).          The issue of whether an

appellant “compli[ed] with the requirement of the timely filing

of a notice of appeal, as set forth in HRAP Rule 4(b)(1), is

jurisdictional.”     Bohannon, 102 Hawai#i at 234, 74 P.3d at 986

(brackets omitted).

            The ICA, in its SDO, rejected the State’s argument that

Stone’s notice of appeal was defective and had failed to invoke

appellate jurisdiction.5      Stone, 2012 WL 3791886, at *2.         In

reaching this conclusion, the ICA stated that although it was

“error” for Stone’s notice of appeal to provide that the appeal

was from the district court’s July 14, 2009 judgments, rather

than from the September 1, 2009 judgments, this error did “not

prevent appellate jurisdiction in this appeal.”            Id.

            In light of our independent obligation to ensure our

jurisdiction over a case, we address the State’s jurisdictional

challenge to Stone’s appeal to the ICA.          Thus we consider whether

the 30-day period for Stone to appeal his convictions began

running from July 14, 2009, the date when the original judgment



      5
            This issue was not raised in the State’s Response to the
Application, but was raised in the State’s Answering Brief at the ICA.

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was filed, or from September 1, 2009, the date when the amended

judgment was filed, which reflected the district court’s granting

of the motion to reduce sentence.

                                    A.

            “In a criminal case, the notice of appeal shall be

filed . . . within 30 days after entry of the judgment or order

appealed from.”    Hawai#i Rules of Appellate Procedure (HRAP) Rule

4(b)(1) (2006).    The only exceptions to the commencement date of

the time for filing the notice of appeal is “[i]f a timely motion

in arrest of judgment under [HRPP] Rule 34 . . . or for a new

trial under [HRPP] Rule 33 . . . has been made, an appeal from a

judgment of conviction may be taken within 30 days after the

entry of any order denying the motion.”         HRAP Rule 4(b)(2)

(2009).

            HRAP Rule 4(b)(2) does not provide that a motion for

reconsideration will extend the time to the date of the order

granting or denying the motion.       This is because HRPP Rule 35(b)

(2003) provides its own procedure when an appeal is filed.

            “The general rule is that the filing of a notice of

appeal divests the trial court of jurisdiction over the appealed

case.”    State v. Ontiveros, 82 Hawai#i 446, 448-49, 923 P.2d 388,

390-91 (1996) (brackets omitted).         However, “[a] motion to reduce

a sentence that is made within the time prior [to the imposition

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of sentence] shall empower the court to act on such motion even

though the time period has expired.”         HRPP Rule 35(b) (2003).6

Thus, “[t]he filing of a notice of appeal shall not deprive the

court of jurisdiction to entertain a timely motion to reduce a

sentence.”    Id.

            Consequently, there is no need for a defendant to defer

filing a notice of appeal in order to determine the disposition

of a motion for reduction of sentence.          If the result is

unfavorable, the proceedings related to the appeal have not been

unnecessarily delayed.       If the outcome is favorable, the

defendant may withdraw the appeal.

            In State v. Naone, the court held that a motion to

reconsider sentence7 does not extend the time for filing a notice

of appeal under HRAP Rule 4(b):



      6
            HRPP Rule 35(b) states:

            Reduction of Sentence. The court may reduce a sentence
            within 90 days after the sentence is imposed, or within 90
            days after receipt by the court of a mandate issued upon
            affirmance of the judgment or dismissal of the appeal, or
            within 90 days after entry of any order or judgment of the
            Supreme Court of the United States denying review of, or
            having the effect of upholding the judgment of conviction. A
            motion to reduce a sentence that is made within the time
            prior shall empower the court to act on such motion even
            though the time period has expired. The filing of a notice
            of appeal shall not deprive the court of jurisdiction to
            entertain a timely motion to reduce a sentence.

HRPP Rule 35(b) (2003).

      7
            The terms “motion for reconsideration of sentence” and “motion to
reduce sentence” are often used interchangeably by our courts.

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           It is undisputed that judgment in this case was entered on
           July 11, 1997, as amended on July 22 and 24, 1997, and that
           Defendant filed his notice of appeal on September 2, 1997,
           beyond the deadline prescribed by HRAP Rule 4(b). Although
           the record reflects that Defendant filed a motion to
           reconsider his sentence on August 11, 1997, such a motion
           does not qualify under HRAP Rule 4(b) as a tolling motion
           that extends the filing deadline for a notice of appeal.
           Therefore, Defendant's appeal was clearly untimely.


92 Hawai#i 289, 300, 990 P.2d 1171, 1182 (App. 1999) (emphasis

added); see also State v. Solomon, 107 Hawai#i 117, 125 n.4, 111

P.3d 12, 20 n.4 (2005) (“Disposition of a motion for

reconsideration of sentence, however, ‘does not qualify under

HRAP Rule 4(b) as a tolling motion that extends the filing

deadline for a notice of appeal.’” (citing Naone, 92 Hawai#i at

300, 990 P.2d at 1182) (emphasis added)).

           Consistent with the court’s holding in Naone, a motion

to reduce sentence “does not qualify under HRAP Rule 4(b) as a

tolling motion that extends the filing deadline for a notice of

appeal.”   See Naone, 92 Hawai#i at 300, 990 P.2d at 1182.

Accordingly, the disposition of Stone’s motion to reduce sentence

had no effect on the time allowed for filing a notice of appeal.

Thus, the ICA erred in concluding that the issuance of an amended

judgment resulted in a new time period to appeal based on the

filing date of the amended judgment.

           Consequently, the ICA erred in concluding that Stone’s

notice of appeal should have referenced the appeal from the



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September 1, 2009 judgments.        See Stone, 2012 WL 3791886, at *2.

Stone’s notice of appeal correctly referenced the July 14, 2009

judgments.    Id.

                                      B.

            The ICA also erred in holding that Stone should have

appealed from the September 1, 2009 amended judgments on the

basis that they “materially and substantially altered” the July

14, 2009 judgments by modifying Stone’s sentences.            Id.    The

ICA’s reliance on State v. Mainaaupo, 117 Hawai#i 235, 246 n.6,

178 P.3d 1, 12 n.6 (2008) as support for its ruling that Stone

correctly appealed from the September 1, 2009 amended judgment is

misplaced.    See id. at 246 n.6, 178 P.3d at 12 n.6.           In

Mainaaupo, the court was addressing when the time for filing of

an application for writ of certiorari began running under HRAP

Rule 40.1(a).8      Id.   It was in this context that we stated that

“where a judgment is amended in a material and substantial

respect, the time within which an appeal from such determination

may be taken begins to run from the date of the amendment.”                Id.

      8
             In Mainaaupo, the ICA’s judgment, entered on September 13, 2007,
vacated the circuit court’s judgment and remanded the case for a new trial.
117 Hawai#i at 246, 178 P.3d at 12. Because this disposition was inconsistent
with its memorandum opinion, the ICA entered an amended judgment on October 8,
2007, which affirmed the circuit court’s judgment. Id. Mainaaupo filed an
application for writ of certiorari on December 11, 2007. Id. This court held
that the time period for filing the application under HRAP Rule 40.1 began
running anew when the ICA filed its amended judgment, reasoning that “the
ICA’s amendment did not simply eliminate clerical errors but, rather, changed
the fundamental disposition of this matter from a ‘vacate and remand’ to an
affirmance.” Id. at 246 n.6, 178 P.3d at 12 n.6.

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           This court’s holding in Mainaaupo, which was applicable

to filing an application for a writ of certiorari, does not

prescribe the time for filing an appeal from a judgment of

conviction, which is expressly governed by HRAP Rule 4(b).

Mainaaupo is not precedent that the time period for filing a

notice of appeal from a judgment begins running from an amended

judgment of conviction when there has been a favorable

disposition of a motion to reduce sentence.          Rather, the amended

judgment merely reduces the sentences as a result of a favorable

ruling on the motion to reduce sentence, and has no effect on the

time period for filing the notice of appeal.

           Under the ICA’s analysis, if a defendant were to defer

filing a notice of appeal until after the disposition of a motion

for reduction of sentence, the timeliness of the notice of appeal

would depend on whether a favorable disposition of the motion was

obtained, as an amended judgment would not otherwise be issued.

A defendant should not be encouraged to gamble as to whether to

file a notice of appeal based on the outcome of a ruling of a

motion for reduction of sentence.

           Additionally, the ICA’s analysis contradicts HRPP Rule

45(b) by providing a means to extend the time period for filing a

notice of appeal through an amended judgment based on an HRPP

Rule 35 motion.


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           HRPP Rule 45(b) (2001) provides:

           Enlargement. When an act is required or allowed to be done
           at or within a specified time, the court for cause shown may
           at any time in its discretion (1) with or without motion or
           notice, order the period enlarged if request therefor is
           made before the expiration of the period originally
           prescribed or as extended by a previous order or (2) upon
           motion made after the expiration of the specified period
           permit the act to be done if the failure to act was the
           result of excusable neglect; but the court may not extend
           the time for taking any action under Rules 29, 33, 34 and 35
           of these rules and Rule 4(b) of the Hawai#i Rules of
           Appellate Procedure, except to the extent and under the
           conditions stated in them .


           Allowing an amended judgment to extend the time for

filing a notice of appeal that was based upon a favorable

disposition of an HRPP Rule 35 motion would contravene the

express terms of HRPP Rule 45(b).

                                     C.

           Consequently, Stone correctly appealed from the July

14, 2009 judgments.     At the August 6, 2009 hearing, Stone orally

moved to extend the time for filing a notice of appeal.            Stone

was granted a 30-day extension to file the notice of appeal on

September 1, 2009.     On September 14, 2009, Stone timely filed the

notice of appeal.    Accordingly, this court has jurisdiction of

Stone’s appeal.




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                                     D.

           Based upon our review of the record, the ICA’s October

1, 2012 Judgment on Appeal is affirmed.

           DATED: Honolulu, Hawai#i, February 28, 2014.



Hayden Aluli                              /s/ Mark E. Recktenwald
for petitioner
                                          /s/ Paula A. Nakayama
John D. Kim and
Peter A. Hanano                           /s/ Simeon R. Acoba, Jr.
for respondent
                                          /s/ Sabrina S. McKenna

                                          /s/ Richard W. Pollack




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