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                                                              Electronically Filed
                                                              Supreme Court
                                                              SCWC-10-0000199
                                                              19-NOV-2015
                                                              09:07 AM




           IN THE SUPREME COURT OF THE STATE OF HAWAIʻI

                                  ---o0o---


                        SANDRA KAY SCHWARTZ,
                  Petitioner/Petitioner-Appellant,

                                     vs.

                          STATE OF HAWAIʻI,
                   Respondent/Respondent-Appellee.


                               SCWC-10-0000199

        CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-10-0000199; DC-S.P. NO. 10-1-0005; CASE NO. 2DTA-08-00292)

                              November 19, 2015

  McKENNA AND POLLACK, JJ., AND CIRCUIT JUDGE KIM, ASSIGNED BY
  REASON OF VACANCY; WITH NAKAYAMA, J., CONCURRING SEPARATELY,
               WITH WHOM RECKTENWALD, C.J., JOINS

                OPINION OF THE COURT BY POLLACK, J.

                         I.        INTRODUCTION

          Sandra Schwartz applied for a writ of certiorari from

the judgment on appeal of the Intermediate Court of Appeals to

determine whether omission of an element of a charged offense

renders the trial court without subject-matter jurisdiction over
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the case.    We find no deficiency of jurisdiction and affirm the

judgment on appeal, but for the reasons stated herein.

                           II.      BACKGROUND

            On February 20, 2008, the State of Hawaiʻi (State)

filed a two-count criminal traffic complaint against Sandra

Schwartz (Schwartz) in the District Court of the Second Circuit

(district court).       Count One alleged commission of the offense

of Operating a Vehicle Under the Influence of an Intoxicant

(OVUII), in violation of Hawaiʻi Revised Statutes (HRS) § 291E-

61(a) (2007). 1   The complaint charged Count One as follows:

            That on or about the 26th day of January, 2008, in the
            Division of Lahaina, County of Maui, State of Hawaii,
            SANDRA KAY SCHWARTZ did operate or assume actual physical
            control of a vehicle while under the influence of an
            intoxicant meaning that she was under the influence of
            alcohol in an amount sufficient to impair her normal mental
            faculties or ability to care for herself and guard against
            casualty, thereby committing the offense of Operating a
            Vehicle Under the Influence of an Intoxicant in violation
            of Section 291E61 (a) of the Hawaii Revised Statutes.

The complaint did not allege that the offense took place on a

public way, street, road, or highway. 2


      1
            HRS § 291E-61(a) provides, in relevant part as follows:

            (a)   A person commits the offense of operating a vehicle under
                  the influence of an intoxicant if the person operates or
                  assumes actual physical control of a vehicle:

                  (1)   While under the influence of alcohol in an amount
                        sufficient to impair the person’s normal mental
                        faculties or ability to care for the person and guard
                        against casualty . . . .
      2
            Count Two alleged Reckless Driving of Vehicle in violation of HRS
§ 291-2 (2007). The charge read as follows:

                                                             (continued . . .)


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            On April 2, 2008, Schwartz pleaded guilty to the OVUII

charge. 3   At the change of plea hearing, counsel for Schwartz

stated, “Your Honor, we are in receipt of a written complaint.

We waive oral reading of the written complaint.”            The court

examined Schwartz with respect to her plea, and Schwartz

indicated that she was aware of the procedural and substantive

effect of her plea.      Schwartz and the State stipulated to the

following facts: Schwartz was stopped by a police officer in

Lāhainā; she was unable to successfully perform field sobriety

maneuvers; and she elected to refuse testing.           Following

recitation of these facts and completion of the guilty plea

colloquy, the district court found Schwartz guilty of OVUII and

imposed sentence. 4    Schwartz did not file an appeal from the

April 2, 2008 judgment of conviction (judgment).


      (. . . continued)
            That on or about the 26th day of January, 2008, in the
            Division of Lahaina, County of Maui, State of Hawaii,
            SANDRA KAY SCHWARTZ did operate a motor vehicle recklessly
            in disregard of the safety of persons or property, thereby
            committing the offense of Reckless Driving of Vehicle in
            violation of Section 291-2 of the Hawaii Revised Statutes.

Court minutes reflect that Count Two was amended to “Lack of Due Care,” in
violation of Maui County Code § 10.52.010.
      3
            The Honorable Rhonda I. L. Loo presided.
      4
            The district court also accepted Schwartz’s “admittance” to the
Lack of Due Care charge.

            The district court imposed the following sentence: Count One--
$300 fine, $30 criminal injury fee, $100 driver’s education fee, $7 driver
education fee, $25 neurotrauma fee, $250 drug demand reduction fee, and 90-
day license suspension; Count Two--$100 fine, and $7 driver’s education fee.




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           Approximately two years later, this court held that

operation of a vehicle on “a public way, street, road, or

highway” (public road) is an attendant circumstance of the

offense of OVUII, and therefore the public road circumstance is

an element of the offense that must be stated in the charge.

State v. Wheeler, 121 Hawaiʻi 383, 393, 219 P.3d 1170, 1180

(2009).

           Based on Wheeler, Schwartz filed a petition to vacate

and set aside the judgment under Hawaiʻi Rules of Penal Procedure

(HRPP) Rule 40 (Rule 40 petition).        In her Rule 40 petition,

Schwartz raised a single issue: the “complaint failed to allege

an essential element of OVUII,” and “[a]ccordingly, [c]ount

[o]ne of the complaint . . . was fatally defective, thereby

conferring no subject matter[] jurisdiction to the trial court.”

(Emphasis added).    Schwartz argued that as a consequence of the

court’s lack of jurisdiction, the judgment as to the OVUII

charge “is null and void as a matter of law.”          Schwartz did not

contend that her plea was not made voluntarily and intelligently

nor assert any other reason that her plea should be considered

invalid.

           The State responded with the following arguments:

Schwartz waived her jurisdictional argument by failing to raise

it on direct appeal; even if she had not waived the argument,

Wheeler does not apply retroactively to final judgments no


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longer pending at the time Wheeler was decided; the complaint

reasonably charged Schwartz with OVUII; and she was not

prejudiced by the omission of the public-road element in the

OVUII charge.

          In its written order denying the Rule 40 petition, the

district court concluded that Wheeler “created a new

constitutional rule of criminal procedure.” 5         The court noted

that new constitutional rules of criminal procedure do not apply

to cases that become final before the new rule is announced,

unless the rule is within one of two categories.           The court

concluded that the two exceptions did not apply because it was

not (1) a rule that places a class of private conduct beyond the

power of the State to proscribe or addresses a substantive

categorical guarantee of the constitution or (2) a watershed

rule of criminal procedure implicating fundamental fairness.

Accordingly, the district court concluded that Wheeler did not

apply retroactively and denied Schwartz’s Rule 40 petition.

          Schwartz timely appealed to the Intermediate Court of

Appeals (ICA).    Before the ICA, Schwartz renewed her argument

that the district court lacked jurisdiction to adjudicate the

crime for which she was charged and also challenged the district




     5
          The Honorable Kelsey T. Kawano presided.




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court’s conclusion that Wheeler could not be applied

retroactively to challenge a final judgment.

            In response, the State argued the following: the

district court correctly found that Wheeler did not have

retroactive application; under the Motta/Wells liberal

construction standard, 6 the complaint could reasonably be

construed to charge a crime; and Schwartz could not show that

she suffered prejudice.

            The ICA affirmed the district court’s order denying

Schwartz’s Rule 40 petition in a summary disposition order,

relying on Christian v. State, 131 Hawaiʻi 153, 315 P.3d 779

(App. 2013), decided the same day.          Schwartz v. State, No. CAAP-

XX-XXXXXXX (App. Nov. 23, 2013) (SDO) at *1.           In Christian, the

ICA held that the Wheeler decision represented a new rule that

did not apply retroactively.        Christian, 131 Hawaiʻi at 160-61,

315 P.3d at 786-87.      Additionally, the ICA concluded that when a

defendant challenges the sufficiency of the charge for the first

time on collateral review, a defendant is required to show

exceptional circumstances in order to obtain relief.            Id. at

164—65, 315 P.3d at 788—90.       Applying that test, the ICA held

that Schwartz could not establish exceptional circumstances.

Id. at 164-65, 315 P.3d at 790-91.
      6
            See State v. Motta, 66 Haw. 89, 657 P.2d 1019 (1983); State v.
Wells, 78 Hawaiʻi 373, 894 P.2d 70 (1995).




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            In her application for writ of certiorari

(Application) to this court, Schwartz presents the threshold

question of whether the failure of a charging instrument to

allege an element of an offense is a jurisdictional defect that

“fail[s] to confer subject-matter jurisdiction to the district

court.”    Schwartz also presents two other questions: whether

Wheeler applies retroactively to cases on collateral review, and

whether “a defective charge under Wheeler, even if properly

characterized as a jurisdictional defect, cannot be

retroactively applied on collateral review.”

                   III.         STANDARD OF REVIEW

            The denial of a Rule 40 petition based on the district

court’s conclusions of law is reviewed de novo.          Coulter v.

State, 116 Hawaiʻi 181, 184, 172 P.3d 493, 496 (2007).

                          IV.       DISCUSSION

            In 2009, this court held that the fact that the

offense of OVUII took place on a public road was an element of

an OVUII charge.    Wheeler, 121 Hawaiʻi at 393, 396, 219 P.3d at

1180, 1183.    As noted, the OVUII charge against Schwartz, filed

prior to the decision in Wheeler, did not allege the public-road

element.    Thus, this court must determine whether the district

court had jurisdiction to adjudicate the OVUII offense charged

against her, notwithstanding the omitted element.




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A.        Jurisdiction of the district court is conferred by statute

              Jurisdiction is defined as “the power and authority on

the part of the court to hear and judicially determine and

dispose of the cause pending before it.”          State v. Villados, 55

Haw. 394, 396, 520 P.2d 427, 430 (1974); Matter of Keamo, 3 Haw.

App. 360, 366, 650 P.2d 1365, 1370 (1982) (same); Sherman v.

Sawyer, 63 Haw. 55, 57, 621 P.2d 346, 348 (1980) (same); see

also Black’s Law Dictionary 980 (10th ed. 2014) (defining

jurisdiction as a “court’s power to decide a case or issue a

decree”).

              “Jurisdiction of the offense charged and of the person

of the accused is a fundamental and indispensable prerequisite

to a valid prosecution.” 7      State v. Meyers, 72 Haw. 591, 593, 825

P.2d 1062, 1064 (1992).       “[J]urisdiction depends upon the state

of affairs existing at the time it is invoked; once having

attached, it . . . is retained by a court until fully exhausted

by the entry of a final judgment.”          Villados, 55 Haw. at 397,

520 P.2d at 430.      It is not lost by subsequent events, id.,




      7
            Jurisdiction over the person of the accused exists, inter alia,
when the person’s conduct or the conduct of another for which the person is
legally accountable occurs within this State or the result constituting an
element of the offense occurs within this State. HRS § 701-106(1)(a); see
also HRS § 701-106(1)(b)-(f). Schwartz has not argued that personal
jurisdiction was lacking in this case.




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unless a statute provides otherwise. 8        “[J]urisdiction is not a

light bulb which can be turned off or on during the course of

the trial.”    Id. (quoting Silver Surprize, Inc. v. Sunshine

Mining Co., 445 P.2d 334, 336 (Wash. 1968)) (internal quotation

marks omitted).

            Lack of subject-matter jurisdiction means that a court

is without power to decide the merits of a case. 9           State v.

Brandimart, 68 Haw. 495, 496, 720 P.2d 1009, 1010 (1986).

However, “[a] court always has jurisdiction to determine whether

it has jurisdiction over a particular case.”           Id.   “[Q]uestions

regarding subject matter jurisdiction may be raised at any stage

of a cause of action.”      Adams v. State, 103 Hawaiʻi 214, 221, 81

P.3d 394, 401 (2003) (quoting Amantiad v. Odum, 90 Hawaiʻi 152,

159, 977 P.2d 160, 167 (1999)).        If a court lacks jurisdiction

to hear a matter, any decision on the merits of the “case” is,

by definition, null and void.        Id.

            Thus, subject-matter jurisdiction is fundamental to a

court’s power to act on the merits of a case from the outset of

      8
            See, e.g., HRS § 583A-202 (2002) (describing the exclusive,
continuing jurisdiction of a court over a child-custody determination until
two alternative events transpire).
      9
            “Subject-matter jurisdiction” is used in this opinion when
generally referring to “the power and authority on the part of the court to
hear and judicially determine and dispose of the cause pending before it.”
State v. Villados, 55 Haw. 394, 396, 520 P.2d 427, 430 (1974). “Criminal
jurisdiction” is used when referring to the subject-matter jurisdiction of
the district courts over criminal cases, as defined by Hawaii Revised
Statutes (HRS) chapter 604.




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the action; it may be challenged at any time, but jurisdiction

does not vacillate during the course of a case depending on the

particulars of the matter as it develops.

           1.      Criminal jurisdiction of the district courts

                The criminal jurisdiction of our courts originates in

our constitution and is defined by the legislature.

                The judicial power of the State shall be vested in one
                supreme court, one intermediate appellate court, circuit
                courts, district courts and in such other courts as the
                legislature may from time to time establish. The several
                courts shall have original and appellate jurisdiction as
                provided by law . . . .

Haw. Const. art. VI, § 1 (emphasis added).              In accordance with

the constitution, the legislature has established the criminal

jurisdictional parameters of the circuit courts and the district

courts by statute.         See HRS § 603-21.5 (prescribing the

jurisdiction of the circuit courts as including “[c]riminal

offenses cognizable under the law of the State, committed within

their respective circuits”); HRS § 604-8 (setting forth the

narrower criminal jurisdiction of the district courts). 10

                HRS chapter 604 defines the criminal jurisdiction of

the district courts. 11        “District courts shall have jurisdiction

      10
              “An offense defined by this Code or by any other statute of
this State for which a sentence of imprisonment is authorized constitutes a
crime.” HRS § 701-107.
      11
            See also Haw. Const. art. I, § 14 (“In all criminal prosecutions,
the accused shall enjoy the right to a speedy and public trial by an
impartial jury of the district wherein the crime shall have been committed,
which district shall have been previously ascertained by law . . . .”
(emphasis added)).




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of, and their criminal jurisdiction is limited to, criminal

offenses punishable by fine, or by imprisonment not exceeding

one year whether with or without fine.”          HRS § 604-8 (2001).

District courts are empowered “to try without a jury, and to

render judgment in all cases of criminal offenses coming within

their respective jurisdictions.”        HRS § 604-9. 12    Additionally,

the district courts are conferred authority to adjudicate

violation of ordinances enacted by the counties. 13

            In addition to defining district court criminal

jurisdiction by the penalties that may be imposed for the

offense, the legislature specifies that the district courts have

jurisdiction of all criminal offenses “cognizable” under state

law that occur within their respective circuits, subject to the

penalties limitations set forth in HRS § 604-8: “The several

district courts shall have jurisdiction, except as otherwise

provided, of all criminal offenses cognizable under the laws of

the State, committed within their respective circuits or

transferred to them for trial by change of venue from some other

district court.”     HRS § 604-11.5 (1993) (emphasis added); see

      12
            The district court’s criminal jurisdiction over a case terminates
when a defendant exercises a right to jury trial. HRS § 604-8(a); see infra
note 15.
      13
            “Jurisdiction is conferred upon the district courts to try all
cases arising from the violation of ordinances in force in the counties and
to impose the penalties in such ordinances prescribed for such offenses in
like manner as their original jurisdiction is exercised under the general
law.” HRS § 604-11 (1993).




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also HRS § 603-21.5 (providing that the circuit courts have

jurisdiction of criminal offenses “cognizable under the laws of

the State” (emphasis added)).

            Cognizable means “[c]apable of being known or

recognized,” or “[c]apable of being judicially tried or examined

before a designated tribunal; within the court’s jurisdiction.”

Black’s Law Dictionary 316 (10th ed. 2014).           “A court has

subject matter jurisdiction over a case if it is authorized to

take cognizance of, try, and determine a case involving that

subject matter.”     State v. Alagao, 77 Hawaiʻi 260, 262, 883 P.2d

682, 684 (App. 1994) (citing Coleman v. Coleman, 5 Haw. 300

(Haw. Kingdom 1885)). 14

            Therefore, the criminal jurisdiction of the district

courts is defined and limited by grant of the legislature.              As

defined by HRS Chapter 604, the jurisdiction of the district


      14
            “Cognizable” has been applied by the United States Supreme Court
in addressing a court’s jurisdiction. In Lamar v. United States, 240 U.S. 60
(1916), Justice Holmes stated that “nothing can be clearer than that the
district court, which has jurisdiction of all crimes cognizable under the
authority of the United States . . . , acts equally within its jurisdiction.”
240 U.S. at 64-65 (emphases added). Similarly, in United States v. Williams,
341 U.S. 58 (1951), the Court used the concept of cognizable to distinguish
between cases where subject-matter jurisdiction existed versus where it did
not. Where jurisdiction was lacking, the Court found that “[t]he kind of
judicial controversies presented for adjudication . . . were [sic] not
cognizable by the respective courts.” 341 U.S. at 67. In the case before
it, however, the Court ruled that the district court had jurisdiction because
federal statutes independently prohibited the conduct at issue: “We have a
court empowered to take cognizance of the crime . . . and decide the issues
under that statute.” Id. at 68. Under Lamar and Williams, jurisdiction is
the power granted by law to adjudicate crimes defined by other law; such
crimes are said to be “cognizable” by the adjudicating entity.




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courts encompasses crimes established by law that are punishable

by fine or by fine and imprisonment of not more than a year, and

that occur within the court’s respective circuit or that are

properly transferred by a change of venue.            If the requirements

of HRS Chapter 604 are satisfied, jurisdiction of the district

court is invoked by the charging instrument.

 2.        The OVUII charge invoked the jurisdiction of the district
                                  court

              The complaint charged Schwartz with OVUII under HRS §

291E-61(a). 15     Count One of the complaint stated as follows:

              That on or about the 26th day of January, 2008, in the
              Division of Lahaina, County of Maui, State of Hawaii,
              SANDRA KAY SCHWARTZ did operate or assume actual physical
              control of a vehicle while under the influence of an
              intoxicant meaning that she was under the influence of
              alcohol in an amount sufficient to impair her normal mental
              faculties or ability to care for herself and guard against
              casualty, thereby committing the offense of Operating a
              Vehicle Under the Influence of an Intoxicant in violation
              of Section 291E-61 (a) of the Hawaii Revised Statutes.

              The charge indicated the location and date of the

offense, the defendant, and the statute that Schwartz allegedly

violated.      The charged OVUII offense is “known” and recognized

as a crime under HRS § 291E-61; the offense was punishable by a


      15
            At the time of Schwartz’s offense, HRS § 291E-61 provided the
following as a sentence for a first offense: fourteen hours of a “substance
abuse rehabilitation program,” a 90-day suspension of license, and a $25
neurotrauma special fund surcharge. HRS § 291E-61 (2007). In addition, the
court could impose one or more of the following: 72 hours of community
service, “not less than forty-eight hours and not more than five days of
imprisonment,” and a “fine of not less than $150 but not more than $1,000.”
Id. Based on the maximum potential sentence, Schwartz did not have the right
to a jury trial. See State v. Nakata, 76 Hawai‘i 360, 367, 878 P.2d 699, 706
(1994).




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fine and by imprisonment not exceeding one year; and the offense

was alleged to have occurred in Lāhainā, which is within the

Second Circuit.       The required components of HRS §§ 604-8 and

604-11.5 were thus met.        Consequently, the district court had

subject-matter jurisdiction over the January 26, 2008 OVUII

charge; that is, the district court had the power to hear and

judicially dispose of the OVUII charge brought against Schwartz.

             Count One also set forth the elements of the crime as

defined by HRS § 291E-61(a)(1), but it did not state that the

offense took place on a public road.           Thus, the charge failed to

allege an element of the crime of OVUII as established by HRS

§ 291E-61(a)(1).

  3.      Failure to charge an element does not deprive a court of
                      subject-matter jurisdiction

             This court has implicitly rejected the proposition

that a charging instrument that fails to allege an element or

the requisite mens rea of an otherwise cognizable crime renders

the trial court without criminal jurisdiction.             In State v.

Davis, 133 Hawaiʻi 102, 324 P.3d 912 (2014), we considered

whether an appellate court must address a defendant’s express

claim of insufficiency of evidence prior to remanding a case for

dismissal because of a defective charge.            Id. at 118, 324 P.3d

at 928.     The defendant in that case appealed his conviction

following trial, contending, inter alia, that (1) the charge was



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defective because the State failed to allege a culpable state of

mind as required and (2) there was insufficient evidence to

support the conviction.       Id. at 110, 324 P.3d at 920.         The ICA

agreed that the charge was defective and accordingly remanded

the case to the district court to dismiss the case without

prejudice; however, the ICA did not consider the sufficiency of

the evidence.     Id.   The defendant sought review in this court of

the ICA’s failure to consider the sufficiency of the evidence,

arguing that double jeopardy barred retrial if the evidence

adduced at trial was insufficient to sustain the conviction.

Id.

            We held that an appellate court is required to address

a defendant’s expressed claim of insufficiency of the evidence

before remanding a case for dismissal based on a defective

charge.    Id. at 120, 324 P.3d at 930.        The holding in Davis

treated a charge that is deficient for failing to allege a state

of mind the same as one that fails to allege an element:              “A

defective or faulty indictment or charge,” whether based on a

failure to allege the mens rea or based upon the omission of an

element, is a “trial error.”        Id. at 116 n.14, 324 P.3d at 926

n.14 (internal quotation marks omitted).           The Davis court noted,

“It is well-settled that, even where this court finds trial

error, challenges to the sufficiency of the evidence must always

be decided on appeal.”       Id. at 116, 324 P.3d at 926 (emphasis


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altered) (quoting State v. Kalaola, 124 Hawaiʻi 43, 59, 237 P.3d

1109, 1125 (2010)) (internal quotation marks omitted).

Therefore, Davis’s treatment of trial error in relation to a

flawed charge did not depend upon the nature of the charging

defect.

          The primary holding of Davis--that the appellate court

must consider the sufficiency of the evidence when it is raised

on appeal prior to remanding a case for dismissal as a result of

a defective charge--is incompatible with treating a defective

charge as depriving the court of the power to hear the case.

          It is axiomatic that if a lower court is found to have
          lacked jurisdiction, we have jurisdiction on appeal, not of
          the merits, but for the purpose of correcting an error in
          jurisdiction. If an insufficient charge constituted a
          jurisdictional defect, then this court could not evaluate
          whether sufficient evidence existed before the trial court
          inasmuch as it would not have jurisdiction over the merits
          of the case.

Id. at 123 n.2, 324 P.3d 933 n.2 (Acoba, J., concurring)

(alteration omitted) (emphasis added and omitted) (quoting In re

Rice, 68 Haw. 334, 713 P.2d 426 (1986)) (internal quotation

marks omitted).    Therefore, Davis is irreconcilable with a rule

that a court is deprived of subject-matter jurisdiction by a

charging instrument that fails to allege a culpable state of

mind or an element of the crime charged.         If the court’s

jurisdiction had been abrogated by the defective charge, the

trial proceedings would be void and the appellate court would be




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unable to consider whether the evidence was sufficient to

support a conviction.

    4.    Prior decisions are generally consistent with Davis

          This court’s prior decisions are generally consistent

with a rule that a charging instrument that fails to allege

either the mens rea or an element of a crime, while potentially

a significant violation of the defendant’s right to due process,

does not deprive the court of its power to adjudicate a crime

over which the legislature has granted the court jurisdiction.

          In State v. Jendrusch, 58 Haw. 279, 567 P.2d 1242

(1977), this court characterized an insufficient charge as a

“failure to state an offense” and characterized a conviction

based on such a charge as a “denial of due process.”           Id. at

281, 567 P.2d at 1244.     “Not only does [the complaint] fail to

state an offense, but it also fails to meet the requirement that

an accused must be informed of the ‘nature and cause of the

accusation’ against him.”      Id. (quoting Territory v. Yoshimura,

35 Haw. 324, 327 (Haw. Terr. 1940)).        Despite finding the charge

“fatally defective,” id., Jendrusch does not describe the

defective charge as precluding the subject-matter jurisdiction

of the court.   Rather, the principal error recognized by

Jendrusch was that the complaint failed to state the requisite

intent and an element of conduct of the offense charged.            Id. at

281-82, 567 P.2d at 1244-45 (noting that the complaint failed to


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allege the prescribed intent and that the relevant speech was

likely to provoke a violent response).         Therefore, Jendrusch

addressed the defendant’s lack of notice of the nature and cause

of the charge against him and not the power of the court to hear

the case.

            In State v. Elliott, 77 Hawaiʻi 309, 884 P.2d 372

(1994), this court also did not use the term “jurisdiction”

regarding a deficient charging instrument.         The State failed to

allege that the defendant intentionally prevented a police

officer from effectuating an arrest with respect to a resisting

arrest charge.    Also, in regard to an assault against a police

officer charge, the State did not allege that the assault was

against a police officer in the line of duty.          Id. at 311, 884

P.2d at 374.

            Citing Jendrusch, Elliott states that “the failure to

allege an essential element of an offense ma[kes] a charge

‘fatally defective,’” id., and “constitute[s] a denial of due

process,.” id. (quoting Jendrusch, 58 Haw. at 281, 567 P.2d at

1244.   Elliott then examined the charge to determine if it could

reasonably be construed to allege an included crime.           Id. at

312, 884 P.2d at 375.     The court concluded that the assault

against a police officer charge could be construed to charge

assault in the third degree but that the resisting arrest charge




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could not be construed to charge an included offense.            Id. at

313, 884 P.2d at 376.

          Accordingly, the case was remanded for entry of

conviction of assault in the third degree and for dismissal of

the resisting arrest charge.      Id.    If the defective charge had

deprived the trial court of its power to adjudicate the assault

offense, there would have been no basis on which this court

could direct the trial court to enter conviction for the lesser

included offense--the conviction for assault against a police

officer would simply have been a nullity and the court would

have vacated the judgment and remanded the case for dismissal.

Therefore, as Elliott addressed the merits of the assault charge

and examined relevant facts of the case, it is consistent with

the rule that a charge, defective for failure to allege an

element of an offense or a requisite mens rea, does not deprive

the court of subject-matter jurisdiction conferred by statute.

          In State v. Israel, 78 Hawaiʻi 66, 890 P.2d 203 (1994),

the State appealed the circuit court’s dismissal of a charge of

the use of a firearm in the commission of a felony.           The

defendant had successfully moved to have the charge dismissed

for failure to allege the underlying felony.          Id. at 69, 890

P.2d at 306.   The court held that the failure of the State to

allege the predicate felony resulted in a failure to adequately

inform the defendant of the nature and cause of the crime


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charged, in violation of article I, section 14 of the Hawaiʻi

Constitution.     Id. at 71, 890 P.2d at 308.       The Israel court

concluded that “the principle of fundamental fairness, essential

to the concept of due process of law, dictates that the

defendant in a criminal action should not be relegated to a

position from which he or she must speculate as to what crime he

or she will have to meet in defense.”         Id. (alterations omitted)

(quoting Kreck v. Spalding, 721 F.2d 1229, 1233 (9th Cir.))

(internal quotation marks omitted); see also id. at 73—75, 890

P.2d at 310—12 (characterizing a defective charge as a failure

of due process and citing Elliott, Jendrusch, and Territory v.

Yoshimura, 35 Haw. 324, 328 (Haw. Terr. 1940)). 16          Therefore, the

court affirmed the dismissal.        Id. at 76, 890 P.2d at 313.

Israel does not refer to jurisdiction in discussing the failure

of the charging document; thus, the decision is also consistent


      16
            In Yoshimura, the court held that a grand jury indictment was

            sufficient if the information clearly and distinctly sets
            forth the offense charged in ordinary and concise language,
            in such manner as to enable a person of common
            understanding to know what is intended, and with such a
            degree of certainty as to enable the court to pronounce
            judgment of conviction according to the right of the case.

Yoshimura, 35 Haw. at 331 (internal quotation mark omitted). The court found
that one charge was legally insufficient for “merely” using “the language of
the statute and [fell] short of apprising the defendant of the nature and
cause of the accusation against him as required by the sixth amendment to the
Constitution of the United States.” Id. at 327-28. The court found that
another charge was not defective and accordingly reinstated the indictment
against the defendant but only on the sufficient charge. Id. at 332. The
decision does not suggest any impairment of jurisdiction.




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with the rule that a charging instrument that fails to allege an

element of the crime charged does not deprive a court of its

subject-matter jurisdiction.

             In State v Sprattling, 99 Hawaiʻi 312, 317, 55 P.3d

276, 282 (2002), the defendant was orally charged with assault

in the third degree, but the State failed to allege “bodily

injury,” alleging only “injury” instead.            Id. at 317, 55 P.3d at

281.    Sprattling describes a defective charge as “encroach[ing]

upon a defendant’s constitutional rights,” but not as

encroaching upon the power of the court to adjudicate the crime

charged.     Id. at 318, 55 P.3d at 282.        “The onus is on the

prosecution to inform the accused fully of the accusations

presented against him or her because [of] ‘the principle of

fundamental fairness[] essential to the concept of due process

of law . . . .’”       Id. (alteration omitted) (quoting Israel, 78

Hawaiʻi at 71, 890 P.2d at 308).          The majority in Sprattling did

not use the term “jurisdiction” in reference to the alleged

defect of the charge. 17       This decision is therefore also

consistent with the rule that a charge that omits an element of

an offense is a trial error but not one that vitiates the

jurisdiction of the court granted by statute.



       17
            But see Sprattling, 99 Hawaiʻi at 327, 55 P.3d at 291 (Levinson,
J., dissenting).




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            In State v. Nesmith, 127 Hawaiʻi 48, 276 P.3d 617

(2012), this court again reviewed the sufficiency of a charge

and did not describe an insufficient charge in terms of

jurisdiction.     Id. at 52, 276 P.3d at 621.       The defendants in

Nesmith were charged with OVUII under HRS § 291E-61(a)(1) and

(a)(3), but challenged their convictions on the grounds that the

charge in their respective cases failed to allege the mens rea.

This court determined that under HRS § 291E-61(a)(1), the

“sufficient to impair” alternative of the offense, 18 the State

was required to prove a culpable state of mind that must be

alleged in the complaint.       Id.   However, under HRS § 291E-

61(a)(3), the court determined that the alternative of “with .08

or more grams of alcohol” per two hundred ten liters of breath

was a strict liability offense that did not require the State to

prove a culpable state of mind.        Id. at 53, 276 P.3d at 622.

Thus, as the charges relating to the HRS § 291E-61(a)(3)

alternative did not require the State to allege the mens rea,

the decision in Nesmith upheld the convictions of both

      18
            HRS § 291E-61(a) contains four subsections delineating forms of
conduct or circumstances that comprise the offense of OVUII: (1) while under
the influence of alcohol in an amount sufficient to impair the person’s
normal mental faculties or ability to care for the person and guard against
casualty; (2) while under the influence of any drug that impairs the person’s
ability to operate the vehicle in a careful and prudent manner; (3) with .08
or more grams of alcohol per two hundred ten liters of breath; or (4) with
.08 or more grams of alcohol per one hundred milliliters or cubic centimeters
of blood. HRS § 291E-61(a). Conviction of the single offense of OVUII under
HRS § 291E–61(a) can be based on any, or any combination, of the subsections.
Nesmith, 127 Hawaiʻi at 50 n.5, 276 P.3d at 619 n.5.




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defendants, but the court also concluded that the respective

charges failed to allege the requisite state of mind for the

“sufficient to impair” alternative under HRS § 291E-61(a)(1).

Id. at 61, 276 P.3d at 630.

          As is significant in the current context, Nesmith did

not describe the failure to allege the mens rea as a defect that

deprived the court of its subject-matter jurisdiction.            Instead,

the decision describes the defect as “a failure to state an

offense, and a conviction based upon it cannot be sustained, for

that would constitute a denial of due process.”          Id. at 53, 276

P.3d at 622.   Thus, Nesmith is consistent with the rule that a

charge that fails to allege the requisite mens rea does not

deprive the court of subject-matter jurisdiction.

          Similarly, in State v. Apollonio, 130 Hawaiʻi 353, 358,

311 P.3d 676, 681 (2013), this court considered the sufficiency

of an excessive speeding charge that failed to allege a culpable

state of mind.    Apollonio described the insufficient charge not

as a defect that deprives a court of its subject-matter

jurisdiction, but as a denial of due process.          “[W]e adhere to

this core principle: A charge that fails to charge a requisite

state of mind cannot be construed reasonably to state an offense

and thus the charge is dismissed without prejudice because it




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violates due process.” 19     Id. at 359, 311 P.3d at 682 (citing

Elliott, 77 Hawaii at 313, 884 P.2d at 376; Nesmith, 127 Hawaii

at 56, 276 P.3d at 625).       Therefore, Apollonio is also

consistent with the rule that a charge that fails to allege the

mens rea or an element of a crime is a due process violation,

but such omission does not eliminate a court’s jurisdiction

established by statute over a cognizable criminal offense.

            While the majority of our cases have not treated a

charge that omits an element or the requisite mens rea as a

defect that eliminates a court’s subject-matter jurisdiction,

two cases have characterized such defects as jurisdictional

flaws.   These cases state that the defective charge is a

violation of due process and deprives the court of

“jurisdiction.”     However, both cases appear not to have fully

applied a subject-matter jurisdiction analysis as reflected in

the disposition or other rulings rendered in those cases.              See

Adams, 103 Hawaiʻi at 220-21, 81 P.3d at 400-01 (“[J]urisdiction

      19
            The majority held that the insufficiency of the charge required
that it be dismissed without prejudice. Id. at 358, 311 P.3d at 681. The
majority opinion did not undertake an analysis of the jurisdiction of the
trial court. The minority, however, analyzed the defendant’s argument that
the insufficient charge deprived the court of jurisdiction and concluded that
“an insufficient charge does not constitute a jurisdictional defect.”
Apollonio, 130 Hawaiʻi at 368, 311 P.3d at 691 (Recktenwald, C.J., concurring
and dissenting).

            The minority would have found no error on the insufficient charge
issue, but concurred in the result that remanded the case for a new trial
based on other grounds reached by the majority. Id. at 364, 311 P.3d at 687
(Recktenwald, C.J., concurring and dissenting).




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of the offense charged and of the person of the accused is a

fundamental and indispensable prerequisite to a valid

prosecution.”    (citing State v. Meyers, 72 Haw. 591, 593, 825

P.2d 1062, 1064 (1992))).

           In State v. Cummings, 101 Hawaiʻi 139, 63 P.3d 1109

(2003), a defendant charged with OVUII argued “that the

complaint failed to allege he was under the influence of

intoxicating liquor ‘in an amount sufficient to impair the

person’s normal mental faculties or ability to care for oneself

and guard against casualty.’”       101 Hawaiʻi at 142, 63 P.3d at

1112 (emphasis deleted) (quoting HRS § 291-4(a)(1) (Supp.

1999)).   The Cummings court agreed that the complaint was

“fatally defective” and stated that “the district court lacked

subject matter jurisdiction to preside over the prosecution’s

DUI case against [the defendant].”         Id. at 145, 63 P.3d at 1115.

Therefore, Cummings concluded that the prosecution’s case-in-

chief “was a nullity.”     Id.

           The disposition in Cummings, however, indicates that

the case was decided on its merits.        In regard to the defective

charge, the Cummings court reversed the conviction and sentence.

Id. at 141, 63 P.3d at 1111; see also id. at 145, 63 P.3d at

1116.   To “reverse” is defined as “end[ing] the litigation on

the merits.”    Hawaiʻi Rules of Appellate Procedure Rule 35(e)

(2010) (emphasis added).      In order for the disposition in


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Cummings to be consistent with a theory that a charge failing to

allege an element of the offense deprives the court of

jurisdiction, the charge should have been dismissed or the case

remanded to the lower court for dismissal. 20

            In State v. Walker, 126 Hawaiʻi 475, 273 P.3d 1161

(2012), the court examined the conviction of the defendant for

habitually operating a vehicle under the influence of an

intoxicant (habitual offense).        Id. at 478, 273 P.3d at 1164.

The State failed to allege an element of the crime, namely, that

the defendant was convicted of OVUII three or more times within

ten years.    Id. at 486, 273 P.3d at 1172.        Walker states that “a

charge must sufficiently allege an offense in order to properly

confer jurisdiction upon the presiding court.”           Id. at 489, 273

P.3d at 1175).     The Walker decision concluded that the lack of

subject-matter jurisdiction was fatal to the original charge.

Id. at 492 n.26, 273 P.3d at 1178 n.26.



      20
            Cummings cited to Territory v. Gora, 37 Haw. 1 (Haw. Terr. 1944),
as support for its conclusion that a charge that does not state all the
essential elements of an offense contains a jurisdictional defect. Cummings,
101 Hawaiʻi at 142, 63 P.3d at 1112. However, a contrasting analysis is also
evident in Gora, in which the court characterized the failure to state an
offense in a charge as a “jurisdictional point.” 37 Haw. at 6. The court
concluded that the defendant did not argue that the charge did not state an
offense and cited no authorities that would have supported such a contention.
Id. Consequently, the Gora court concluded that the defendant had abandoned
the jurisdictional issue, but the court nevertheless found that the charge
was sufficient. Id. As lack of jurisdiction is not subject to abandonment
or waiver, Adams, 103 Hawaiʻi at 221, 81 P.3d at 401, the determination that
the charge was sufficient is in conflict with a rule that a deficient
indictment is a “jurisdictional point.”




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            However, Walker also determined that lack of

jurisdiction over the habitual offense could not be “cured” by

remand to the lower court to enter judgment under a lesser

included OVUII offense because the charge for the habitual

offense failed to allege the public-road element that an OVUII

charge would have required.       Id. at 492, 273 P.3d at 1178.         The

analysis in Walker seemingly indicates that, while jurisdiction

may be lacking for a charged offense, it might nonetheless be

present for a lesser included offense.          But if jurisdiction is

truly absent, the court is without authority to allow the

prosecution to proceed upon a lesser included offense.

            Further, the Walker opinion went on to analyze the

defendant’s argument that statements to a police officer and the

results of a field sobriety test should have been suppressed. 21

Id. at 492, 273 P.3d at 1178.        Under the rule that every

judgment on the merits in a proceeding is invalid if it is later

determined that the court lacked jurisdiction, Meyers, 72 Haw.

at 593, 825 P.2d at 1064, the question of whether evidence was

properly admitted by the trial court was not subject to




      21
            Walker found that “where there is a wealth of overwhelming and
compelling evidence tending to show the defendant guilty beyond a reasonable
doubt, . . . errors in the admission or exclusion of evidence are deemed
harmless.” Id. at 493, 273 P.3d at 1178 (alteration omitted) (quoting State
v. Toyomura, 80 Hawaii 8, 27, 904 P.2d 893, 912 (1995)) (internal quotation
marks omitted).




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appellate review once the Walker court ostensibly determined

that jurisdiction was lacking. 22

            As treatment of the merits of a case by a trial or

appellate court is inconsistent with a lack of subject-matter

jurisdiction, Cummings and Walker appear not to have fully

applied a subject-matter jurisdiction analysis.           In any event,

our more recent decisions in Davis, Apollonio, and Nesmith have

implicitly rejected an approach in which a charge, information,

or indictment that fails to allege either the requisite mental

      22
            It is noted that the statement in State v. Morin, 71 Haw. 159,
785 P.2d 1316 (1990), that “[g]enerally, a guilty plea . . . precludes a
defendant from later asserting any nonjurisdictional claims” but that “the
defendant may still challenge the sufficiency of the indictment or other like
defects bearing directly upon the government’s authority to compel the
defendant to answer to charges in court,” 71 Haw. at 162, 785 P.2d at 1318
(emphasis added), could be construed to suggest that a charging instrument
that fails to allege an element or the requisite mens rea renders the trial
court without jurisdiction. However, the charging instrument in Morin was
not deficient; it did not fail to allege an element or the requisite mens
rea. Further, the authorities cited by Morin do not appear to assert that a
charge that fails to allege an element deprives the court of jurisdiction,
see id. (citing 1A Charles Alan Wright et al., Fed. Prac. & Proc. Crim. § 175
(1969)), or did not involve a deficient charging instrument, see State v.
Lerner, 551 P.2d 553 (Ariz. 1976). Thus, Morin does not provide authority
for the proposition that a charging instrument failing to charge an element
of the offense invariably deprives the court of jurisdiction. Cases that
cite Morin’s language regarding challenges to the sufficiency of the
indictment do not discuss charging instruments that omit an element or the
mens rea of an offense, see Adams, 103 Hawaiʻi at 224, 81 P.3d at 404 (defect
in indictment alleging crimes outside the period of the statute of limitation
was nonjurisdictional), or do not involve a defective indictment, see State
v. Rauch, 94 Hawaiʻi 315, 316, 13 P.3d 324, 325 (2000) (jurisdictional issues
raised on appeal unrelated to sufficiency of charging instrument); State v.
Dudoit, 90 Hawaiʻi 262, 263, 978 P.2d 700, 701 (1999) (appeal of a sentence).

            Accordingly, Morin is more appropriately construed to mean that a
defendant, who has pled guilty or nolo contendere, is not barred from
challenging the sufficiency of the charging instrument if the alleged defect
goes to the subject-matter jurisdiction of the court. See infra note 42 for
a non-exhaustive list of defects in a charging instrument that are
jurisdictional in nature.




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state or an element of the offense deprives a trial court of

subject-matter jurisdiction.        To the extent that Cummings and

Walker proceeded upon this premise, they have been superseded,

and their rulings as to subject-matter jurisdiction are no

longer controlling.

B.      Under federal law, an omission of an element from a charge
              does not deprive the court of jurisdiction

              Recently decided federal law is consistent with the

decisions of this court as reflected by Jendrusch and subsequent

cases such as Nesmith, Apollonio, and Davis.

              In United States v. Cotton, 535 U.S. 625 (2002), the

United States Supreme Court rejected the contention that a

charging instrument that failed to allege an element of the

crime “deprive[s] a court of its power to adjudicate” a criminal

case.      Id. at 630.   Following a jury trial, the defendants were

convicted of drug charges under an indictment that did not

allege sufficient quantities of contraband that would support

enhanced penalties.      Id. at 628.    Nonetheless, the trial court

applied the enhanced penalties when imposing sentence. 23            Id.    On

review, the court of appeals vacated the enhanced sentences due

      23
            The Court noted that the imposition of the enhanced sentences was
in violation of Apprendi v. New Jersey, 530 U.S. 466 (2000). Cotton, 535 U.S
at 632. However, as the defendants in Cotton had neglected to object to the
omission of enhancement language in the indictment during the sentencing
proceeding, the Court reviewed the sentences for plain error. Id. No error
was found as the Court concluded that the evidence admitted at trial
overwhelmingly demonstrated a sufficient quantity of contraband to support
the enhanced penalties. Id.




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to lack of jurisdiction: “an indictment setting forth all the

essential elements of an offense is both mandatory and

jurisdictional”; thus, “a court is without jurisdiction to . . .

impose a sentence for an offense not charged in the indictment.”

Id. at 629 (emphasis omitted) (quoting United States v. Cotton,

261 F.3d 397, 404-05 (4th Cir. 2001)) (internal quotation mark

omitted).

            The Supreme Court reversed, expressly overruling its

decision in Ex parte Bain, 121 U.S. 1 (1887), “the progenitor”

of the view that a defective indictment necessarily deprives a

court of jurisdiction.      Cotton, 535 U.S. at 629–31.          The Court

found that Bain was “a product of an era” that “led to a

somewhat expansive notion of ‘jurisdiction,’” which was “more a

fiction than anything else.”        Id. at 629-30 (quoting Custis v.

United States, 511 U.S. 485, 494 (1994); Wainwright v. Sykes,

433 U.S. 72, 79 (1977)) (internal quotation marks omitted).                 The

Court indicated that the nineteenth century “concept of

jurisdiction is not what the term ‘jurisdiction’ means today,

i.e., ‘the courts’ statutory or constitutional power to

adjudicate the case.’”      Id. at 630 (emphasis added and

omitted). 24   “This latter concept of subject-matter jurisdiction,


      24
            The historical reason for the expansive view of   jurisdiction was
explained by the Cotton Court, which characterized Ex parte   Bain as “a
product of an era in which this Court’s authority to review   criminal
convictions was greatly circumscribed.” Cotton, 535 U.S at    629. It could
                                                               (continued . . .)


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because it involves a court’s power to hear a case, can never be

forfeited or waived.”      Id.

            To explain the difference between a “defect” that

might deprive a court of subject-matter jurisdiction and one

that would not, the Cotton Court cited Lamar v. United States,

240 U.S. 60 (1916), in which the Court rejected the claim that

“the court had no jurisdiction because the indictment does not

charge a crime against the United States.”          Cotton, 535 U.S. at

630 (quoting Lamar, 240 U.S. at 64) (internal quotation marks

omitted).    In Lamar, Justice Holmes stated, “Jurisdiction is a

matter of power, and covers wrong as well as right decisions.”

240 U.S. at 64-65 (citing Fauntleroy v. Lum, 210 U.S. 230, 234

(1908); Burnet v. Desmornes y Alvarez, 226 U.S. 145, 147

(1912)).

            A decision that a patent is bad, either on the facts or on
            the law, is as binding as one that it is good. And nothing
            can be clearer than that the district court, which has
            jurisdiction of all crimes cognizable under the authority
            of the United States, acts equally within its jurisdiction
            whether it decides a man to be guilty or innocent under the
            criminal law, and whether its decision is right or wrong.
            The objection that the indictment does not charge a crime
            against the United States goes only to the merits of the
            case.




      (. . . continued)
examine constitutional errors in a criminal trial only on a writ of habeas
corpus, and only then if it deemed the error “jurisdictional.” Id. (internal
quotation marks omitted). “The Court’s desire to correct obvious
constitutional violations led to a ‘somewhat expansive notion of jurisdiction
. . . .’” Id. (quoting Custis v. United States, 511 U.S. 485, 494 (1994))
(internal quotation marks omitted).




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Id. at 64-65 (emphasis added) (citations omitted).           Thus,

Justice Holmes’ analysis concludes that whether the charging

instrument is sufficient or insufficient goes to the merits of

the particular case–-including whether the case is correctly or

wrongly decided–-but does not deprive the federal district court

of cognizance of the crime in the first instance, nor of the

power to adjudicate that crime.       See also Cotton, 535 U.S. at

631 (quoting United States v. Williams, 341 U.S. 58, 66 (1951),

for its holding that a defective indictment “does not affect the

jurisdiction of the trial court to determine the case presented

by the indictment”).     Under Cotton, Lamar, and Williams,

criminal subject-matter jurisdiction is the power granted by a

legislative body to adjudicate certain crimes.          These cases hold

that an indictment that is defective for failing to charge an

element of the offense does not deprive a court of its

legislatively granted power.

          Similarly, in United States v. Brown, 752 F.3d 1344

(11th Cir. 2014), the Eleventh Circuit noted that the Cotton

decision and its own case law were in accordance with a rule

that “an omission of an element from an indictment does not

deprive the district court of jurisdiction.”          Id. at 1351.

Brown found that to determine “whether an indictment defect is

jurisdictional, we must ask the question whether the indictment

charged the defendant with a criminal ‘offense against the laws


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of the United States.’”        Id. (alteration omitted) (emphasis

added).

             The district court’s power over [the] case did not vanish
             simply because the indictment omitted one element of the
             charged offense. The omission of an element may render the
             indictment insufficient, but it does not strip the district
             court of jurisdiction over the case.

             So long as the indictment charges the defendant with
             violating a valid federal statute as enacted in the United
             States Code, it alleges an “offense against the laws of the
             United States” and, thereby, invokes the district court’s
             subject-matter jurisdiction. The omission of an element of
             that offense does not mean that the indictment fails to do
             so; it means only that the indictment is missing an
             “allegation requisite to liability.” This may allow the
             defendant to argue before a guilty plea that the indictment
             is insufficient and should be dismissed — but it does not
             deprive the district court of jurisdiction to act over the
             indictment or to accept a guilty plea.

Id. at 1353-54 (emphases added) (citations omitted) (quoting

Alikhani v. United States, 200 F.3d 732, 734-35 (11th Cir.

2000); United States v. Peter, 310 F.3d 709, 715 (11th Cir.

2002)).     Thus, it is clear that under federal law, the omission

of an element of the charged offense in an indictment does not

deprive the court of jurisdiction over the case.

  C.       The omission of the public-road element from the OVUII
         charge did not eliminate subject-matter jurisdiction

             Schwartz has argued that the trial court lacked

jurisdiction over the OVUII offense because the charging

instrument failed to allege an essential element of the offense.

Based on the holdings of this court in Jendrusch through Nesmith

and Davis, it is clear that a charging instrument that fails to

allege a culpable state of mind or an element of an offense may




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result in a significant violation of due process, but the flawed

instrument does not abrogate the jurisdiction of the court,

which is established by statute and invoked by a charge of a

cognizable offense prescribed by law. 25        Here, as noted, the

district court had jurisdiction over the OVUII charge under HRS

§§ 604-8 and 604-11.5.      Thus, the failure of the charging

instrument to fully allege the elements of the crime of OVUII as

set forth in HRS § 291E-61(a)(1) did not negate the charge’s

fulfillment of the requirements under HRS Chapter 604

establishing the jurisdiction of the district court.

Consequently, Schwartz’s contention that the district court

lacked jurisdiction of the OVUII charge against her is

incorrect.

           D.     Analysis in Christian v. State is flawed

             Christian v. State, 131 Hawaiʻi 153, 315 P.3d 779 (App.

2013), provided the basis for the ICA’s decision in the present

case. 26   See Schwartz, No. CAAP-10-0000199 at *1 (affirming the

order denying Schwartz’s petition “on the basis explained today

      25
            A charging instrument may be so deficient that a court does not
have jurisdiction over the case; for instance, if the charging document was
never filed. See State v. Kaulia, 128 Hawaiʻi 479, 491, 291 P.3d 377, 389
(2013) (holding that because the State failed to properly file the complaint,
“the district court lacked jurisdiction to proceed to trial”). Without
deciding the matter, a charge that fails to fulfill the statutory
requirements of jurisdiction, see, e.g., HRS §§ 604-8 and 604-11.5, in
contrast to the due process failure to properly state an offense, would
appear to fail to confer jurisdiction upon the district court.
      26
            Christian was decided prior to this court’s decision in Davis.




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in Christian”).    The relevant facts in Christian are

substantively indistinguishable from the facts in Schwartz’s

case.   See Christian, 131 Hawaiʻi at 155, 315 P.3d at 781.             The

defendant pleaded no contest to a charge of OVUII in 2008.              Id.

In 2010, the defendant filed an HRPP Rule 40 petition seeking to

have his judgment set aside on the basis that a “defect in the

charge was jurisdictional, and therefore his judgment of

conviction was a nullity” because the charge failed to allege

the public-road element.      Id. at 156, 315 P.3d at 782.        The

district court denied the petition, and the defendant appealed

to the ICA.

           The ICA affirmed the denial on the grounds that

although Wheeler created a new rule, the rule did not apply

retroactively.    Id. at 160, 315 P.3d at 786.        The ICA reached

this conclusion by looking at this court’s analysis in State v.

Ruggiero, 114 Hawaiʻi 227, 160 P.3d 703 (2007), and State v.

Kekuewa, 114 Hawaiʻi 411, 163 P.3d 1148 (2007), and noted that in

both cases, the decisions determined that the complaint could

reasonably be construed to allege the crime of OVUII.            Id. at

159, 315 P.3d at 785.     The ICA reasoned that “by quoting the

charges in Ruggiero and Kekuewa and then directing entry of

judgment of conviction on the charges for OVUII as a first

offense, [this court] implicitly held and concluded that the

charges in Ruggiero and Kekuewa were sufficient to charge OVUII


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as a first offense.”     Id. at 160, 315 P.3d at 786.        Therefore,

the ICA concluded that, since Ruggiero and Kekuewa approved

charging instruments that did not specifically allege a public-

road element, Wheeler’s requirement that the State must allege a

public-road element “announced a new rule.”          Id.

            Additionally, the ICA held that even if the new rule

did apply retroactively, the defendant in Christian could not

demonstrate exceptional circumstances to overcome a “heightened

interest in finality that attaches to cases on collateral

review.”    Id. at 156, 315 P.3d at 782.

           1. Guiding Principles in the Creation of New Rules

            “[W]hen questions of state law are at issue, state

courts generally have the authority to determine the

retroactivity of their own decisions.”         State v. Garcia, 96

Hawaiʻi 200, 211, 29 P.3d 919, 930 (2001) (quoting Am. Trucking

Ass’ns, Inc. v. Smith, 496 U.S. 167, 177 (1990) (plurality

opinion)) (internal quotation marks).        The prototypical manner

in which this court creates a new rule is when it overrules a

previous decision and announces a superseding principle of law.

See State v. Jess, 117 Hawaiʻi 381, 398—99, 184 P.3d 133, 150—51

(2008); see also James B. Beam Distilling Co. v. Georgia, 501

U.S. 529, 534 (1991) (the paradigm case of nonretroactivity

arises “when a court expressly overrules a precedent upon which




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the contest would otherwise be decided differently and by which

the parties may previously have regulated their conduct”).

            In Jess, this court considered the continued viability

of the intrinsic/extrinsic distinction between facts that must

be alleged in charging an individual with a crime.           Jess, 117

Hawaiʻi at 393—94, 184 P.3d at 145—46.        At the time Jess was

decided, the rule was that aggravating circumstances must be

alleged by the State in the charging instrument and submitted to

the jury for its consideration, State v. Apao, 59 Haw. 625, 634,

586 P.2d 250, 257 (1978), unless such circumstances constitute

extrinsic facts--those that have no bearing on the issue of

guilt, State v. Huelsman, 60 Haw. 71, 79, 588 P.2d 394, 400

(1978).

            This court, in Jess, held that “the

intrinsic/extrinsic distinction has lost its viability to the

extent that it governs charging procedure and . . . decline to

follow it any further.”     Id. at 398, 184 P.3d at 150.         The

result was to reverse the Huelsman qualification and cases

reaffirming it, and revert to the original rule that requires

all aggravating circumstances, regardless of whether they are

intrinsic or extrinsic in nature, to be alleged when charging a

crime.    Id. at 398, 184 P.3d at 150.

            Finding that the rule it announced was a new rule

because it expressly overruled cases that distinguished between


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extrinsic and intrinsic facts when charging an individual with a

crime, the Jess court then considered whether to accord the new

rule with retroactive effect.        Id. at 401, 184 P.3d at 153.

Ultimately, this court concluded, after weighing considerations

pertinent to the issue of retroactivity, that the new rule

should be given only purely prospective application to avoid

substantial prejudice to prosecutions and the courts.             Id. at

403, 184 P.3d at 155. 27

            Another classic situation in which this court

establishes a new rule is when it announces a new principle of

constitutional law, such as one applying to criminal

prosecutions.     In Tachibana v. State, for example, we held that

under the Hawaiʻi Constitution, “trial courts must advise

criminal defendants of their right to testify and must obtain an

on-the-record waiver of that right in every case in which the


      27
            Another case in which a new rule was created by overruling
precedent is State v. Ikezawa, 75 Haw. 210, 857 P.2d 593 (1993). In Ikezawa,
this court reiterated that State v. Stone, 65 Haw. 308, 651 P.2d 485 (1982),
was overruled by State v. Balauro, 73 Haw. 70, 828 P.2d 267 (1992), which
held that the six-month period under HRPP 48(b), within which a criminal
trial must be commenced, is tolled when a later charge is the same or is
required to be joined with the original charge. Ikezawa, 75 Haw. at 221—22,
857 P.2d at 598—99. The Ikezawa court held that the principle stated in
Balauro constituted a new rule and, after conducting a balancing test as to
whether to apply the new rule retroactively, found that purely prospective
application was more appropriate. Id.; see also State v. Santiago, 53 Haw.
254, 492 P.2d 657, 665—67 (1971) (holding that this court’s decision in State
v. Cuevas, 53 Haw. 100, 488 P.2d 322 (1971), in which we invalidated a
statute imposing the burden upon a defendant to disprove the existence of
malice once the act of killing is proved by the prosecution and which
overruled cases that previously upheld the statute’s validity, announced a
new rule that should be accorded pipeline retroactive application).




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defendant does not testify.”        79 Hawaiʻi 226, 236 & n.7, 900 P.2d

1293, 1303 & n.7 (1995).       Hence, this court concluded that the

Tachibana colloquy was a new rule and that it should be applied

only prospectively. 28    Id. at 238 & n.10, 900 P.2d at 1305 &

n.10.

            In contrast, in instances where this court engages

only in statutory construction to elucidate the meaning and

application of specific provisions of a statute, we have held

that a new rule does not arise.        In Garcia v. State, 125 Hawaiʻi

429, 263 P.3d 709 (2010), we examined whether our decision in

State v. Tauiliili, 96 Hawaiʻi 195, 29 P.3d 914 (2001),

constituted an announcement of a new rule.          Tauiliili

interpreted HRS § 706-671 to mean that presentence imprisonment

credit should be applied, in cases where a defendant is

sentenced to consecutive terms, only to the aggregate term of

the sentence.     See id. at 199, 29 P.3d at 918.        Until that

point, the practice was to apply the presentence imprisonment



      28
            The U.S. Supreme Court has also identified the following
instances in which it has created “an entirely new and unanticipated
principle of law”: where the (1) “ruling caused such an abrupt and
fundamental shift in doctrine as to constitute an entirely new rule which in
effect replaced an older one”; (2) “disapproves a practice this Court
arguably has sanctioned in prior cases”; (3) “or overturns a longstanding and
widespread practice to which this Court has not spoken, but which a near-
unanimous body of lower court authority has expressly approved. United
States v. Johnson, 457 U.S. 537, 551 (1982) (citations omitted) (internal
quotations marks omitted). The decision in Wheeler does not fall under any
of these categories.




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credit to each of the consecutive terms.         See Garcia, 125 Hawaiʻi

at 443—44, 263 P.3d at 723—24.

           In Garcia, we stated that “Tauiliili was not a

departure from precedent but, rather, confirmed the law as it

existed prior to that decision.”       Id. at 443, 263 P.3d at 723

(citing Rivers v. Roadway Express, Inc., 511 U.S. 298, 312—13

(1994)).   As such, we concluded that our holding in Tauiliili

applied retroactively.     Id.

           Finally, we have also held that where this court

merely clarifies an existing legal principle, a new rule is not

created.   See State v. Ketchum, 97 Hawaiʻi 107, 114 n.26, 34 P.3d

1006, 1013 n.26 (2001).     In Ketchum, this court considered

whether the principle announced in State v. Ah Loo, 94 Hawaiʻi

207, 10 P.3d 728 (2000), constituted a new rule.           Ah Loo held

that Miranda warnings must be administered “once a detainee

becomes expressly or impliedly accused of having committed a

crime—because the totality of the circumstances reflects either

that probable cause to arrest the detainee has developed or that

the officer’s questions have ‘become sustained and coercive.’”

Ketchum, 97 Hawaiʻi at 124, 34 P.3d at 1023 (quoting Ah Loo, 94

Hawaii at 212, 10 P.3d at 733).       We concluded that Ah Loo did

not announce a new rule, but “merely clarified the existing

proposition that a person temporarily and lawfully detained need




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not be given Miranda warnings until the moment of express or

implied accusation has arrived.”         Id. at 123 n.26, 34 P.3d at

1022 n.26.

   2.      Wheeler did not announce a new rule because it did not
                      overrule Ruggiero or Kekuewa

             The ICA’s decision in Christian is predicated on its

conclusion that this court implicitly ruled, in Ruggiero and

Kekuewa, that a charge omitting the public-road element can

nonetheless be reasonably construed to allege OVUII under HRS §

291E-61(a).     Christian, 131 Hawaiʻi at 159—60, 315 P.3d at 785—

86.     In both Ruggiero and Kekuewa, at issue was the sufficiency

of the charge in accusing the defendants of violating HRS §

291E-61(a) and (b)(2) as second-time OVUII offenders.              Ruggiero,

114 Hawaiʻi at 239, 160 P.3d at 715; Kekuewa, 114 Hawaiʻi at 421—

21; 163 P.3d at 1158—59.        In both cases, we held that the

charges were insufficient as a matter of law to accuse the

defendants of violating HRS § 291E-61(a) and (b)(2) because they

failed to allege the defendants’ respective prior OVUII

conviction but that they could reasonably be construed to charge

OVUII as a first offense under HRS § 291E-61(a) and (b)(1).

Ruggiero, 114 Hawaiʻi at 240, 160 P.3d at 716; Kekuewa, 114

Hawaiʻi at 425—26, 163 P.3d at 1162—63.

             In Wheeler, the State argued that Ruggiero and Kekuewa

established precedent that an OVUII charge lacking the public-



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road element is not deficient.        Wheeler, 121 Hawaiʻi at 396, 219

P.3d at 1183.     This court disagreed, explaining that

            Ruggiero and Kekuewa focused on whether a charge that
            failed to adequately allege that the defendant had a prior
            OVUII conviction within the past five years was
            nevertheless sufficient to charge a first-offense OVUII.
            Neither defendant raised the issue of whether the
            proscribed conduct must take place “upon a public way,
            street, road, or highway” and, if so, whether it had been
            adequately alleged in the charge.

Id. at 399, 219 P.3d at 1186 (emphasis added).           The Wheeler

court reasoned that Ruggiero and Kekuewa “are limited to the

issues that were actually decided by the court [in those cases],

and are not dispositive of the distinct issue presented [in

Wheeler, i.e., whether the public-road element must be alleged

in the charging instrument.]”        Id. at 399, 219 P.3d at 1186

(citing Webster v. Fall, 266 U.S. 507, 511 (1925); E&J Lounge

Operating Co., Inc. v. Liquor Comm’n of City & County of

Honolulu, 118 Hawaii 320, 338, 189 P.3d 432, 450 (2008)). 29


      29
            Additionally, the Wheeler court reasoned that “Ruggiero and
Kekuewa are factually distinguishable from the circumstances of [Wheeler].”
Wheeler, 121 Hawaiʻi at 399, 219 P.3d at 1186. Because the defendants in both
cases failed to make “a timely objection to the sufficiency of the OVUII
charge in the trial court,” id., the “Motta/Wells post-conviction liberal
construction rule” applied, id. (quoting State v. Merino, 81 Hawaii 198, 212,
915 P.2d 672, 688 (1996)) (internal quotation marks omitted). Under this
analysis, a charging instrument is presumed valid, and a conviction will not
be reversed because of a defective charging instrument, unless the defendant
demonstrates prejudice or the complaint cannot be reasonably construed to
charge a crime. Id. at 399—400, 219 P.3d at 1186—87. In contrast, “because
Wheeler timely objected to the oral charge in the district court, the
Motta/Wells analysis [wa]s not applicable [in Wheeler].” Id. at 400, 219
P.3d at 1187. This factual distinction between Wheeler, on the one hand, and
Ruggiero and Kekuewa, on the other--which essentially resulted in the
application of differing analytical standards--was another reason why the
court held in Wheeler that Ruggiero and Kekuewa were not governing precedent.
Id.




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            As we recognized in Wheeler, our decisions in Ruggiero

and Kekuewa did not hold that a charge accusing an individual of

OVUII, in violation of HRS § 291E-61(a), is sufficient without

the public-road element.       The fact that this court in Ruggiero

and Kekuewa did not address the public-road element was not

equivalent to a holding that it was not a required element of

OVUII; it meant only that the issues challenged in those cases

provided neither a reason nor the necessity for this court to

consider this element.      See id. at 396, 219 P.3d at 1184

(stating that Ruggiero and Kekuewa “do not require a contrary

result”).

            Accordingly, our conclusion in Wheeler--that “HRS §

291E–1 [requires] that the defendant’s conduct occur ‘upon a

public way, street, road, or highway’”--was not a new rule, see

Wheeler, 121 Hawaiʻi at 392, 219 P.3d at 1179, because unlike

Jess, Wheeler did not overrule or modify any previous precedent

of this court dealing with the same issue. 30         Cf. Jess, 117


      30
            Nonetheless, according to the concurrence, “Walker clarified that
Wheeler did, in fact, render Ruggiero and Kekuewa unreliable for the
proposition that a defendant who is not given fair notice of the public roads
element may . . . be convicted of OVUII as a first offense.” Concurrence at
23. To support this assertion, the concurrence relies quite heavily on a
quote from Walker stating that the “current essential elements that the State
must include in an OVUII charge differ from those required in 2007 at the
time of the Ruggiero and Kekuewa decisions.” Concurrence at 19 (quoting
Walker, 126 Hawaiʻi at 490, 273 P.3d at 1176). However, the validity of this
statement from Walker is plainly problematic.

            Generally, a crime or offense is governed by the law existing at
the time it was committed. See State v. Martin, 62 Haw. 364, 370, 616 P.2d
                                                             (continued . . .)


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Hawaiʻi at 398, 184 P.3d at 150 (abandoning the

intrinsic/extrinsic distinction that once governed the kind of

aggravating facts that must be alleged in a charging

instrument).    Wheeler had no need to overrule Ruggiero or

Kekuewa because those cases neither addressed the issue of

statutory construction that Wheeler did, nor are their facts

similar or analogous to the facts of Wheeler. 31



      (. . . continued)
193, 197—98 (1980) (holding that “all the elements necessary to prove a crime
charged under the Hawaii Penal Code must be shown to have occurred after its
effective date”); Tachibana, 67 Haw. at 577, 698 P.2d at 291 (stating that
the defendant was properly charged under the pre-Hawaiʻi Penal Code law
because the underlying act was committed before the effective date of the
Penal Code). It naturally follows that a charge must be compliant with the
governing law existing at the time the offense was committed.

            The underlying conduct that comprised the charged offense in
Wheeler occurred on May 31, 2007. Wheeler, 121 Hawaiʻi at 386—87, 219 P.3d
1170—74. Hence, for charging purposes, the law that governed was the OVUII
statute as it existed in 2007. It is therefore inaccurate to say that the
OVUII law post-Wheeler was any different than that existing pre-Wheeler,
because the requirements set forth in Wheeler were themselves applied to a
charge that dated back to 2007. Accordingly, the Walker quote is a
misstatement (“essential elements that the State must include in an OVUII
charge differ from those required in 2007”).
      31
            This court has previously applied Wheeler retroactively in cases
in which an OVUII charge lacked the public-road element without discussion of
whether Wheeler announced a new rule. See Garcia, 125 Hawaiʻi at 443, 263
P.3d at 724 (holding that “retroactivity is assumed unless a ‘new rule’ is
announced”). These post-Wheeler decisions include the following cases: State
v. Tominiko, 126 Hawaiʻi 68, 76, 266 P.3d 1122, 1130 (2011) (applying Wheeler,
which was decided in November 2009, to an August 2008 complaint charging
defendant with OVUII, and holding that under the liberal construction
standard, the charges, read with reference to each other, were sufficient to
allege the public-road element to support the OVUII conviction); Walker, 126
Hawaiʻi at 489, 273 P.3d at 1175 (applying Wheeler to an April 21, 2008 felony
information and complaint and holding that the charging instruments could not
be reasonably construed to charge OVUII because the public-road element was
not alleged); id. at 493, 273 P.3d at 1179 (Recktenwald, C.J., concurring)
(agreeing with the majority that Wheeler’s public-road element applied to the
April 21, 2008 charging instruments).




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            As it is clear that Wheeler did not overrule

precedent, it did not announce a new rule.

3.      Wheeler Engaged in Statutory Interpretation to Effectuate a
                   Settled Constitutional Principle

            Wheeler is best understood as a case applying the

settled constitutional requirement that “an ‘accusation must

sufficiently allege all of the essential elements of the offense

charged.’”    Id. (quoting Merino, 81 Hawaiʻi at 212, 915 P.2d at

686).    Specifically, Wheeler involved an inquiry into whether

the OVUII charge at issue in that case was legally sufficient.

Wheeler, 121 Hawaiʻi at 391, 219 P.3d at 1178.           In conducting

this inquiry, the Wheeler court utilized settled canons of

statutory construction to identify the elements of OVUII that

must be alleged in order to satisfy the dictates of due process.

See id. at 391—93, 219 P.3d at 1178—80 (applying principles of

statutory construction in interpreting the word “operating”).

            Using principles of statutory construction, we

concluded in Wheeler that “HRS § 291E–1 establishes an attendant

circumstance of the offense of OVUII, i.e., that the defendant’s

conduct occur ‘upon a public way, street, road, or highway.’”

Id. at 392, 219 P.3d at 1179.        Because an attendant circumstance

is an element of an offense, we held that “the operation of a

vehicle on a public way, street, road, or highway is an . . .




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element of the offense” that must be alleged in an OVUII charge.

Wheeler, 121 Hawaiʻi at 393, 219 P.3d at 1180.

            Against this foregoing background, it cannot be said

that Wheeler created a new rule.        For one, Wheeler merely

applied the constitutionally settled principle that all elements

of an offense must be alleged in order for the charging

instrument to be legally sufficient. 32        See Yates v. Aiken, 484

U.S. 211, 216—17 (1988) (explaining that Francis v. Franklin,

471 U.S. 307 (1985), merely applied the constitutional rule that
      32
            The concurrence asserts that Wheeler created a new rule because
“it imposed an obligation on the State that was not compelled by prior law.”
Concurrence at 19. However, the obligation we set forth in Wheeler--that the
State must allege the statutory definition of “operating” when charging
OVUII--is merely a particularized application of the elementary precept that
a charge must allege all elements of the offense. In short, what the State
was obligated to do in Wheeler, and after Wheeler, was essentially the same
as what the State was obligated to do before Wheeler: to charge a person with
all of the elements of the offense of which he or she is accused. Thus,
prior law, which required all elements of an offense to be alleged, did impel
the result in Wheeler.

            It is equally inaccurate to say that “Wheeler broke new ground by
establishing a constitutional rule.” Concurrence at 21 (emphasis added).
Wheeler merely applied a well-established constitutional principle to the
context of OVUII charging. Even assuming such a rule were applicable, there
are no indicia that Wheeler could have been decided to yield a “reasonable
contrary conclusion[].” See Butler v. McKellar, 494 U.S. 407, 415 (1990)
(emphasis added) (noting a circuit split between the Fourth and Seventh
Circuit Courts of Appeals as an indication that the result in Arizona v.
Roberson, 486 U.S. 675 (1988), “was susceptible to debate among reasonable
minds”). The ICA unanimously decided the case in a two-page summary
disposition order relying on settled law that the charge failed to allege an
attendant circumstance of the offense. State v. Wheeler, 120 Hawaii 256, 203
P.3d 676 (App. 2009) (summary disposition order) (citing HRS § 702-205 and
Jendrusch in concluding that the charge was insufficient). This court was
similarly unanimous. See Wheeler, 121 Hawaii at 385, 219 P.3d at 1172. It
was not debatable whether the failure to allege the public-road element
(i.e., the definition of “operating”) yields a sufficient charging
instrument, because this would have been in derogation of a settled
constitutional principle. See State v. Jendrusch, 58 Haw. 279, 281, 567 P.2d
1242, 1244 (1977) (noting that a charge omitting an element of the offense
constitutes a denial of due process).




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governed the Court’s decision in Sandstrom v. Montana, 442 U.S.

510 (1979), “that the Due Process Clause of the Fourteenth

Amendment prohibits the State from making use of jury

instructions that have the effect of relieving the State of the

burden of proof enunciated in Winship on the critical question

of intent in a criminal prosecution” (quoting Francis, 471 U.S.

at 326—327)).      Further, this court’s elucidation in Wheeler on

the meaning of “operating” in the OVUII statute, which was based

on our application of canons of statutory construction, see

Wheeler, 121 Hawaiʻi at 390—93, 219 P.3d at 1177—80, similarly

did not create a new rule.       When this court announces a legal

principle grounded in its understanding of a particular statute,

it merely expresses in definitive terms what that statute has

always meant, both before and after that decision is handed

down.      See Rivers, 511 U.S. at 312—13 n.12 (“[I]t is not

accurate to say that the Court’s decision in Patterson ‘changed’

the law that previously prevailed . . . when this case was

filed.      Rather, . . . the Patterson opinion finally decided what

§ 1981 had always meant and explained why the Courts of Appeals

had misinterpreted the will of the enacting Congress.” (first

emphasis added)). 33


      33
            See also United States v. Rivera-Nevarez, 418 F.3d 1104, 1107
(10th Cir. 2005) (“Decisions of statutory interpretation are fully
retroactive because they do not change the law, but rather explain what the
law has always meant.”); In re Blackshire, 98 F.3d 1293, 1294 (11th Cir.
                                                             (continued . . .)


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            It is true that Wheeler was the first time that we

announced the necessity of alleging the public-road element when

the State charges an individual with OVUII.           But the fact that

it was an addition to our jurisprudence does not mean it was

“new” under principles governing the creation of a new rule.

Wheeler is similar to Tauiliili inasmuch as it interpreted HRS §

291E–1 to definitively and authoritatively explain what that

statute always meant (but was left unsaid) since its enactment,

and Wheeler did not change or modify the requirements or the

meaning of HRS § 291E–1.       See Rivers, 511 U.S. at 312—13

(explaining that “[a] judicial construction of a statute is an

authoritative statement of what the statute meant before as well

as after the decision of the case giving rise to that

construction”); cf. Tauiliili, 96 Hawaiʻi at 199, 29 P.3d at 918

(construing for the first time HRS § 706-671 (1993) to mean that

presentence imprisonment credit should be credited only to the

aggregate term of consecutive sentences).



      (. . . continued)
1996) (holding that the U.S. Supreme Court’s interpretation of 18 U.S.C. §
924(c) in an earlier case was not an expression of a new rule because the
Court “merely interpreted a substantive criminal statute using rules of
statutory construction”); Nuñez v. United States, 96 F.3d 990, 992 (7th Cir.
1996) (stating that a prior U.S. Supreme Court decision did not announce a
new rule of constitutional law because it merely engaged in statutory
interpretation); United States v. Lorentsen, 106 F.3d 278, 279 (9th Cir.
1997) (accord); In re Vial, 115 F.3d 1192, 1195-96 (4th Cir. 1997) (accord);
United States v. McPhail, 112 F.3d 197, 199 (5th Cir. 1997) (holding that a
prior U.S. Supreme Court decision did not present a new rule of criminal
procedure but merely interpreted a statute).




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                 The concurrence contends that Wheeler created a new

rule “because it held that the State’s routine charging practice

was unconstitutional despite this court’s contrary directives in

Ruggiero and Kekuewa.” 34        Concurrence at 20.   Because this court

remanded Ruggiero and Kekuewa for entry of judgment and

resentencing, and because this court in those cases did not

opine as to the meaning of “operating” and the public-road

element of OVUII, the concurrence posits that “this court had

provided a degree of judicial approval over the practice of

charging OVUII in the language of the statute.”           Concurrence at

20. 35        That is, the concurrence suggests that this court endorsed


         34
            To the extent the concurrence’s conclusion that there are “four
categories of cases that delineate when a new rule is established” could be
read as enumerating an exhaustive list of categories, concurrence at 8, it is
overly restrictive. The inquiry into whether a rule is new or preexisting is
not accurately conducted by classifying a wide variety of cases in which this
issue may arise under inflexibly delineated categories; oftentimes, a rule
promulgated by a case is best characterized as existing on a spectrum, one
end of which constitutes rules that are clearly preexisting and the other end
composed of clearly new rules. See Teague v. Lane, 489 U.S. 288, 301 (1989)
(“It is admittedly often difficult to determine when a case announces a new
rule, and we do not attempt to define the spectrum of what may or may not
constitute a new rule for retroactivity purposes.”). Hence, the
concurrence’s sweeping list of four categories of cases that “delineate[s]
when a new rule is established” is not helpful.
         35
            For this proposition, the concurrence relies upon Johnson, 457
U.S. 537, where the U.S. Supreme Court has recognized that as far as federal
retroactivity jurisprudence is concerned, a new principle of law is announced
when a case “disapproves a practice [that it] arguably has sanctioned in
prior cases.” Id. at 551. However, this class of cases disavowed previous
decisions that expressly sanctioned the practices involved. See Gosa v.
Mayden, 413 U.S. 665, 673 (1973) (holding that “[t]he Court long and
consistently had recognized that military status in itself was sufficient for
the exercise of court-martial jurisdiction,” a view that was later disavowed
by the Court); Johnson v. New Jersey, 384 U.S. 719, 731 (1966) (recognizing
that the Court’s previous cases approved of in-custody interrogation even
though there was a “failure to warn accused persons of their rights[] or the
failure to grant them access to outside assistance,” cases that Miranda later
                                                             (continued . . .)


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sub silentio in Ruggiero and Kekuewa the then-prevailing

practice by the State of charging OVUII without the public-road

element.

            It bears repeating that this Court clarified in

Wheeler that “Ruggiero and Kekuewa focused on whether a charge

that failed to adequately allege that the defendant had a prior

OVUII conviction within the past five years was nevertheless

sufficient to charge a first-offense OVUII.”           Wheeler, 121

Hawaiʻi at 399, 219 P.3d at 1186.        As mentioned, “the issue of

whether the proscribed conduct must take place ‘upon a public

way, street, road, or highway’ and, if so, whether it had been

adequately alleged in the charge” was never raised, and “[a]s a

result, this court did not address that issue in Ruggiero or

Kekuewa.”    Id.   Hence, this court concluded in Wheeler that

Ruggiero and Kekuewa were dispositive only of the distinct

issues presented in those cases.        Id.

              The dissent’s suggestion--that this court’s silence

in Ruggiero and Kekuewa on the issue directly presented for the


      (. . . continued)
rendered nonbinding). In stark contrast, Ruggiero and Kekuewa were merely
silent and in no way sanctioned the State’s practice of charging OVUII
without the public-road element derived from the statutory definition of
“operating.”

            Further, if Wheeler were indeed a case that disapproved of a
previously sanctioned practice, then the concurrence, consistent with what
Johnson directs, should find that Wheeler is fully nonretroactive, see id. at
549—51, a conclusion that the concurrence does not reach, concurrence at 28.




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first time in Wheeler was an implicit endorsement of the

validity of the practice of not charging the public-road

element--artificially extracts a holding from what was

unaddressed.    This practice was soundly rejected in Wheeler, see

id. (rejecting the State’s contention that this Court had

already decided in Ruggiero and Kekuewa that a charge omitting

the public-road element is legally sufficient), and is of

insignificant analytical value, see Texas v. Cobb, 532 U.S. 162,

169 (2001) (“Constitutional rights are not defined by inferences

from opinions which did not address the question at issue.”); In

re Stegall, 865 F.2d 140, 142 (7th Cir. 1989) (“A point of law

merely assumed in an opinion, not discussed, is not

authoritative.”). 36

            Just because this Court has not explicitly and

affirmatively rejected a legal proposition in no way means that

it has effectively approved of it, especially given the fact

that prudential rules limit this Court to consideration of

issues presented by the peculiarities of a particular case and

the issues raised by a party.        See Kapuwai v. City & Cnty. of

Honolulu, Dep’t of Parks & Recreation, 121 Hawaiʻi 33, 40, 211
      36
            The concurrence’s assertion is analogous to the argument that the
denial by the U.S. Supreme Court of certiorari is an implicit endorsement of
the holding and reasoning of the case for which certiorari review was sought.
But it has long been settled that “denial of a writ of certiorari imports no
expression of opinion upon the merits of the case.” United States v. Carver,
260 U.S. 482, 490 (1923) (Holmes, J.); accord Hughes Tool Co. v. Trans World
Airlines, Inc., 409 U.S. 363, 366, n.1 (1973).




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P.3d 750, 757 (2009) (“[W]hile the courts of the State of Hawaiʻi

are not bound by a ‘case or controversy’ requirement, we

nonetheless recognize that the ‘prudential rules’ of judicial

self-governance ‘founded in concern about the proper—and

properly limited—role of courts in a democratic society’ are

always of relevant concern.’ For ‘even in the absence of

constitutional restrictions, courts must still carefully weigh

the wisdom, efficacy, and timeliness of an exercise of their

power before acting.’” (citation omitted) (emphasis omitted)

(quoting Life of the Land v. Land Use Commission, 63 Haw. 166,

172, 623 P.2d 431, 438 (1981)) (internal quotation marks

omitted)).

          Additionally, the concurrence’s analogy of Wheeler to

Payton v. New York, 445 U.S. 573 (1980) is incongruous.            In

United States v. Johnson, 457 U.S. 537 (1982), the Supreme Court

concluded that Payton “did not simply apply settled precedent to

a new set of facts” and that the presumption of retroactivity

was thus inapplicable.     Johnson, 457 U.S. at 551.        The

concurrence’s reliance on Johnson is flawed for two reasons:

first, as fully explained supra, Wheeler did apply settled

precedent to a new set of facts and did not break new ground;

and second, the Johnson Court did not find that Payton

established a new rule.




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            Contrary to the concurrence’s assertion that Johnson

found a new rule in the primary holding of Payton, a closer

reading of Johnson reveals that this is not accurate.             The

question of retroactivity in Johnson was not predicated on

whether the Payton rule was new.        What the U.S. Supreme Court

did was to identify three classes of cases in which the question

of retroactivity had been conclusively decided by Supreme Court

precedents.    Johnson, 457 U.S. at 549—51.        One of those classes

is where a case “announce[s] an entirely new and unanticipated

principle of law”; in those cases, the Supreme Court “almost

invariably has gone on to find such a newly minted principle

nonretroactive.”     Id. at 549.     The Court expressly found that

Payton did not fall under this class of cases.           Id. at 551.

Similarly, the Court determined that Payton did not fit the

other two classes of cases where retroactivity is presumed. 37              As

a result, the Court then analyzed Payton under a retroactivity

test patterned after that advocated for by Justice Harlan. 38


      37
            These two classes are as follows: (1) “when a decision of this
Court merely has applied settled precedents to new and different factual
situations,” it applies retrospectively; and (2) “full retroactivity [i]s a
necessary adjunct to a ruling that a trial court lacked authority to convict
or punish a criminal defendant in the first place.” Johnson, 457 U.S. at
549—51.
      38
            The concurrence argues that “the Supreme Court had to have found
that Payton was a new rule because it applied Justice Harlan’s test.”
Concurrence at 7 n.2. It is true that Justice Harlan’s test focuses on
“newly-declared constitutional rule[s],” Johnson, 457 U.S. at 546 (emphasis
added), and that in Johnson, the Court stated, “We now agree with Justice
Harlan that ‘[r]etroactivity must be rethought,’” id. at 548 (quoting Desist
v. United States, 394 U.S. 244, 258 (1969) (dissenting opinion)) (internal
                                                             (continued . . .)


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            The concurrence’s reasoning behind its assertion that

Payton announced a new rule appears to be based on the Supreme

Court’s finding that Payton “did not simply apply settled

precedent” and, therefore, was not a preexisting rule.             Johnson,

457 U.S. at 551.     However, the fact that Payton was not a

preexisting rule did not establish the converse: that Payton

must be a new rule.      Instead, unacknowledged by the concurrence

is that the Supreme Court in fact found that Payton was not a

new rule.    Id. (“Payton also did not announce an entirely new

and unanticipated principle of law.”). 39        Hence, to the extent



      (. . . continued)
quotation marks omitted). The test that the Court adopted in Johnson,
however, varies from that advocated by Justice Harlan. The test announced by
Johnson is twofold: “We . . . examine the circumstances of this case to
determine whether it presents a retroactivity question clearly controlled by
past precedents, and if not,” id., whether a limited retroactive application
of Payton “would satisfy each of the three concerns stated in Justice
Harlan’s opinions in Desist and Mackey,” id. at 554.

            Thus, compared to Justice Harlan’s test--“that all ‘new’ rules of
constitutional law must, at a minimum, be applied to all those cases which
are still subject to direct review by this Court at the time the ‘new’
decision is handed down,” Desist, 394 U.S. at 258--the Johnson test was not
founded upon whether the rule is new or not new. This approach partially
differs from the approach that we employ. See Ikezawa, 75 Haw. at 221—22,
857 P.2d at 598—99 (analyzing whether a legal principle is new before
proceeding to a balancing test to answer the retroactivity question).
      39
            The concurrence agrees that Payton did not announce an entirely
new and unanticipated principle of law, but it asserts that the rule in
Payton was new because it fits “a second separate category of cases”: those
that break new ground. Concurrence at 5, 7 n.2. However, Johnson was clear
that Payton did not break new ground. See Johnson, 457 U.S. at 551—52
(describing cases that broke new ground and concluding that Payton is not one
of them). Further, cases that break new ground are merely a subset of cases
that announce an entirely new and unanticipated principle of law, Johnson,
457 U.S. at 551—54, such that the concurrence’s attempt at disassociating one
from the other--characterizing each as a discrete group--is inaccurate.
Concurrence at 7 n.2.




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that the concurrence concludes that Wheeler announced a new rule

because it is similar to Payton, it is mistaken.

              The concurrence additionally concludes that Wheeler

should not be applied to cases that have become final before

Wheeler was announced.        Concurrence at 28.      This conclusion is

grounded in a predicate finding that mischaracterizes Wheeler as

a case that announced a “new constitutional rule[] of criminal

procedure,” concurrence at 27 (quoting Teague, 489 U.S. at 310).

As already explained, Wheeler merely applied an established

constitutional principle.         Hence, the rule from Teague

(acknowledged by this court in State v. Gomes, 107 Hawaii 308,

113 P.3d 184 (2005)) is inapposite and has no application to

Wheeler. 40

              Finally, the concurrence maintains that our decision

on the issue of whether Wheeler applies retrospectively is

dictum because “it has no impact on [our] ultimate conclusion

that Schwartz waived her constitutional challenges by pleading

guilty.”      Dissent at 22.     As this court has explained,

              an obiter dictum is a remark made or opinion expressed by a
              judge, in his decision upon a cause, by the way—that is,
              incidentally or collaterally and not directly upon the

      40
            It bears noting that the issue in Teague was whether to accord
retrospectivity to the constitutional requirement that jurors must be drawn
from a fair cross section of the community, a requirement that was not in
existence prior to the Supreme Court’s decision in Taylor v. Louisiana, 419
U.S. 522 (1975). In contrast, Wheeler involved the long-settled
constitutional requirement that a charge must set forth all elements of the
offense.




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             question before the court; or is any statement of law
             enunciated by the judge or court merely by way of
             illustration, argument, analogy, or suggestion.

State v. Hussein, 122 Hawaiʻi 495, 513—14, 229 P.3d 313, 331—32

(2010) (emphasis added and omitted) (quoting Black’s Law

Dictionary 1177 (9th ed. 2009)) (internal quotation marks

omitted) (alteration omitted).         Resolving the issue of Wheeler’s

retroactivity bears directly upon the question of whether

Schwartz has any legal basis upon which she could predicate a

challenge to the sufficiency of the charge against her, as a

determination of a new rule could foreclose a challenge to the

charge; hence, deciding the issue of retroactivity is a

necessary component of the resolution of this case and not

dictum. 41


      41
            The concurrence’s proposition is equivalent to an argument that
this court’s determination of whether a lower court erred is dictum when it
is ultimately determined that any error is harmless. See Michael C. Dorf,
Dicta and Article III, 142 U. Pa. L. Rev. 1997, 2046 (1994). However, as
explained by Professor Dorf, deciding first whether the lower court erred
“simply makes more sense . . . before deciding whether a putative error was
harmless.” Id. Analytically speaking, “until the court passes on the
substantive question, it will not know exactly what the error is that it must
test for harmlessness.” Id. Because the determination of whether the lower
court erred is meant to further “the purpose of resolving the case,” it is
not dictum. Id.

            The same is true in this case. The retrospective application of
Wheeler forms an essential part of the analysis for why we conclude that
Schwartz is precluded from challenging the legal sufficiency of the charge.
In fact, the effect of Schwartz’ guilty plea upon her ability to challenge
the charge becomes significant only after it is determined that Wheeler did
not announce a new rule and was, therefore, applicable retrospectively.
Because our conclusion on retrospectivity is an integral part of our
reasoning, it may not be seriously labeled as dictum. See Hussein, 122
Hawaiʻi at 513—14, 229 P.3d at 331—32 (defining obiter dictum as a court’s
incidental or collateral remark that does not directly relate to the
resolution of any of the issues presented).




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            Based on the foregoing, the ICA’s holding in Christian

that Wheeler announced a new rule is incorrect, and Wheeler

applies retroactively.      Because we hold that the failure to

charge the public-road element of OVUII does not deprive the

district court of criminal jurisdiction--that is, such a failure

is a nonjurisdictional defect 42--the retroactive effect of

Wheeler does not provide a basis for post-conviction relief to

Schwartz, who pleaded guilty to OVUII.          See Morin, 71 Haw. at

162, 785 P.2d at 1318 (stating that a guilty or a nolo

contendere plea “made voluntarily and intelligently precludes a

defendant from later asserting any nonjurisdictional claims,

including constitutional challenges to the pretrial

proceedings”).     Schwartz’s guilty plea therefore precludes her

from challenging the charge as being insufficient for failing to

allege the public-road element of OVUII.

     4.    Adoption of an “exceptional circumstances” test for
                  collateral review was unwarranted

            The ICA in Christian alternatively concluded that

“[e]ven if the asserted deficiency in [the] charge is properly


      42
            Where the defect in the charging instrument is one that precludes
the district court from exercising criminal jurisdiction--e.g., charging an
offense that is not “cognizable” under state law or an offense that was
committed outside the district court’s circuit, see HRS §§ 603-21.5; 604-
11.5; or if the offense charged is not “punishable by fine, or by
imprisonment not exceeding one year whether with or without fine,” HRS § 604-
8; or if the charging instrument was never filed, see supra note 25, then the
rule from Morin would not apply and a defendant may challenge such
jurisdictional defects even after entry of a guilty or nolo contendere plea.




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characterized as a jurisdictional defect, [it] would not require

applying the Wheeler rule retroactively to [the defendant’s]

collateral attack of his conviction” because of an “overriding

interest in finality” that distinguishes collateral review from

direct review.    Christian, 131 Hawaiʻi at 161, 315 P.3d at 787

(quoting United States v. Cuch, 79 F.3d 987, 991 n. 8 (1996)).

Based on its determination that Wheeler should not be applied

retroactively to the defendant’s charge in the underlying

conviction, the ICA concluded that Ruggiero and Kekuewa provided

persuasive authority that the OVUII charge was sufficient and

that under the Motta/Wells standard the defendant could not

demonstrate either prejudice or that the charge could not be

construed to charge a crime.      Id. at 162, 315 P.3d at 788.

Therefore, the ICA held that the defendant in Christian was not

entitled to the relief sought in the HRPP Rule 40 petition.                Id.

          Although determining that the “new rule” had limited

retroactive effect and that the defendant’s HRPP Rule 40

petition was properly denied, the ICA observed that “[t]he

Hawaiʻi Supreme Court . . . has not specifically addressed how a

challenge to the sufficiency of a charge raised for the first

time on collateral review should be evaluated.”          Id. at 163, 315

P.3d at 789.   Based on the perceived lack of an evaluative

standard, Christian adopted a test from the federal circuits

that a defendant challenging the sufficiency of a charge for the


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first time on collateral review must show “exceptional

circumstances” to reflect “the heightened interest in the

finality of judgments.”       Id. at 163-64, 315 P.3d at 789-80.

             However, Wheeler did not establish a new rule, and the

trial court in this case did not lack jurisdiction because of

the omission of the public-road element from the OVUII charge

brought against Schwartz.       Additionally, the adoption of an

“exceptional circumstances” test that must be satisfied by

defendants seeking to challenge the sufficiency of charging

instruments on collateral review was unwarranted in light of the

various alternative bases advanced by the ICA to support its

ruling, and further, the test is not in accordance with our

law. 43    Accordingly, the decision in Christian is overruled. 44


      43
            The exceptional circumstance test, as adopted by the ICA, applies
to defendants challenging the sufficiency of a charge for the first time on
collateral review. However, HRPP Rule 40 does not assign any special
standard for challenging a conviction based on the grounds asserted in the
petition. See HRPP Rule 40. Although an HRPP Rule 40 challenge to a
conviction on the grounds that the charge omitted an element has not been
reviewed by this court, an HRPP Rule 40 challenge based upon a charge that
reflected the alleged misconduct outside the statute of limitations has been
considered, without reviewing the petition under any specialized standard.
See Adams 103 Hawaiʻi at 224, 81 P.3d at 404 (reviewing de novo the denial of
an HRPP Rule 40 challenge of a conviction on the grounds, inter alia, that
the charge was defective).

            Adopting varying standards of review to evaluate an HRPP Rule 40
petition that would depend on the grounds alleged is an approach that this
court has not previously applied and would unnecessarily complicate our law
regarding post-conviction relief. Our review in this case did not employ a
specialized standard. In light of our jurisprudence with regard to Rule 40
petitions, the “exceptional circumstances” standard is rejected.

      44
            State v. Kam, 134 Hawai‘i 280, 339 P.3d 1081 (App. 2014)
recognized that Davis “is inconsistent with the theory that a defect in a
charge for failing to allege the requisite mens rea is jurisdictional in
                                                             (continued . . .)


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                E.       Resolution of the Application

            We resolve as follows the threshold question presented

in Schwartz’s Application: the failure of a charging instrument

to allege an element of an offense does not constitute a

jurisdictional defect that fails to confer subject-matter

jurisdiction to the district court.         Secondly, we conclude that

Wheeler did not establish a new rule; thus, Schwartz’s

contention pertaining to the retroactive applicability of the

new rule to cases on collateral review is inapposite.

Schwartz’s third question, whether “a defective charge under

Wheeler, even if properly characterized as a jurisdictional

defect cannot be retroactively applied on collateral review,” is

rendered moot by our response to the threshold question.

            Accordingly, Schwartz’s Rule 40 petition was properly

denied as the district court had jurisdiction to accept her plea

to the OVUII charge and enter judgment.




      (. . . continued)
nature” and concluded on that basis that the failure of an indictment to
allege the requisite mens rea did not present a “jurisdictional impediment.”
134 Hawai‘i at 285, 339 P.3d at 1086. Kam did not cite Christian.

            The ICA opinion in Christian concludes that the defendant “failed
to show that the offense charged was one of which the sentencing court
manifestly had no jurisdiction” and that “the charge was not so deficient
that the trial court manifestly lacked jurisdiction.” Christian, 131 Hawaiʻi
at 164-65, 315 P.3d at 790-91. This conclusion appears to create a confusing
new standard for measuring a court’s lack of jurisdiction--“manifest lack of
jurisdiction”--which we do not adopt.




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                          V.      CONCLUSION

          In accordance with the prior decisions of this court,

the criminal jurisdiction of the district court is provided by

HRS Chapter 604; here, the district court had jurisdiction over

the OVUII charge alleged against Schwartz by satisfaction of the

requirements set forth in that chapter.         Subject-matter

jurisdiction is not abrogated by a charging instrument that

fails to allege a culpable state of mind or a statutory element

defining the offense; thus, the fact that the OVUII charge

failed to allege an element of the offense did not extinguish

the criminal jurisdiction of the district court.

          Based on the foregoing, we overrule Cummings and

Walker insofar as the holdings of those decisions indicate that

a charge, information, or indictment that fails to allege either

the requisite mental state or an element of the charged offense

deprives a trial court of subject-matter jurisdiction.            In

addition, as explained, the decision in Christian is also

overruled.




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            The denial of Schwartz’s Rule 40 petition is

therefore affirmed, but for the reasons set forth in this

opinion.

Hayden Aluli                            /s/ Sabrina S. McKenna
for petitioner
                                        /s/ Richard W. Pollack
Renee Ishikawa Delizo
for respondent                          /s/ Glenn J. Kim




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