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                                                   Electronically Filed
                                                   Intermediate Court of Appeals
                                                   CAAP-XX-XXXXXXX
                                                   12-JUN-2020
                                                   07:52 AM



                            NO. CAAP-XX-XXXXXXX

                 IN THE INTERMEDIATE COURT OF APPEALS

                         OF THE STATE OF HAWAI#I


                 STATE OF HAWAI#I, Plaintiff-Appellee,
                                   v.
                 DESTINY M. KELLY, Defendant-Appellant


         APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
                      (CR. NO. 1CPC-XX-XXXXXXX)


                    SUMMARY DISPOSITION ORDER
     (By: Leonard, Presiding Judge, Chan and Wadsworth, JJ.)

            Defendant-Appellant Destiny M. Kelly (Kelly) appeals
from the Judgment of Conviction and Probation Sentence, filed on
September 5, 2017, and the Order Denying Motion to Reconsider
Sentence, filed on January 26, 2018, in the Circuit Court of the
First Circuit (Circuit Court).1
            After pleading guilty, Kelly was convicted of
Unauthorized Control of Propelled Vehicle (UCPV), in violation of
Hawaii Revised Statutes (HRS) § 708-836 (2014).2            Over Kelly's


     1
         The Honorable Edwin C. Nacino presided.
     2
         HRS § 708-836 states, in relevant part:

                  §708-836 Unauthorized control of propelled vehicle.
            (1) A person commits the offense of unauthorized control of
            a propelled vehicle if the person intentionally or knowingly
            exerts unauthorized control over another's propelled vehicle
            by operating the vehicle without the owner's consent or by
            changing the identity of the vehicle without the owner's
            consent.
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objection, Kelly was ordered to pay restitution of $5,021.76 to
the Complaining Witness (CW) as part of her sentence.           Kelly's
motion to reconsider the imposition of restitution was also
denied.
          On appeal, Kelly claims the Circuit Court erred by (1)
imposing restitution because Kelly's conduct was not the cause of
the CW's loss and the request for restitution was not reasonable
and verified, and (2) failing to consider Kelly's ability to pay
when setting the time and manner of payment, in violation of HRS
§ 706-646(3) (Supp. 2017).
          Upon careful review of the record and the briefs
submitted by the parties and having given due consideration to
the arguments advanced and the issues raised by the parties, we
resolve Kelly's points of error as follows:
          (1) As a preliminary matter, we note that Kelly's
appeal from the September 5, 2017 Judgment of Conviction and
Probation Sentence was untimely.        "In a criminal case, the notice
of appeal shall be filed within 30 days after entry of the
judgment or order appealed from."       Hawai#i Rules of Appellate
Procedure Rule 4(b)(1).     A motion to reduce sentence, pursuant to
Rule 35 of the Hawai#i Rules of Penal Procedure, is not a tolling
motion.   State v. Stone, No. SCWC-30059, 2014 WL 820272, at *5-6
(Haw. Feb. 28, 2014) (mem. op.).        Kelly filed a Notice of Appeal
on January 30, 2018, more than 30 days after the September 5,
2017 Judgment of Conviction and Probation Sentence.          Therefore,
the appeal was untimely.     "[C]ompliance with the requirement of
the timely filing of a notice of appeal is jurisdictional."
State v. Brandimart, 68 Haw. 495, 496, 720 P.2d 1009, 1010
(1986).
          "In criminal cases, [the supreme court] ha[s] made
exceptions to the requirement that notices of appeal be timely


                (2) "Propelled vehicle" means an automobile,
          airplane, motorcycle, motorboat, or other motor-propelled
          vehicle.

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filed."   State v. Irvine, 88 Hawai#i 404, 407, 967 P.2d 236, 239
(1998).   The recognized exceptions include "circumstances
where . . . defense counsel has inexcusably or ineffectively
failed to pursue a defendant's appeal from a criminal conviction
in the first instance[.]"   Id. (citation omitted).
           Counsel for Kelly admitted he inexcusably or
ineffectively failed to timely file a notice of appeal from the
September 5, 2017 Judgment of Conviction and Probation Sentence.
Therefore, this court will exercise jurisdiction over Kelly's
appeal from the September 5, 2017 Judgment of Conviction and
Probation Sentence.
           Kelly contends the Circuit Court erred by imposing
restitution because Kelly's conduct was not the cause of the CW's
loss.   Kelly claims she did not cause the CW's loss because she
was convicted of UCPV, which entailed only intentional or knowing
unauthorized control of the CW's vehicle without her consent.
Thus, Kelly claims there was no evidence she caused any damage to
the CW's vehicle by operating it without consent.
           In State v. Domingo, 121 Hawai#i 191, 195, 216 P.3d
117, 121 (App. 2009), this court reversed the trial court's
imposition of restitution upon a defendant related to a
decedent's death.   The defendant, Freddy Domingo (Domingo), was
convicted of Accidents Involving Death or Serious Bodily Injury
for failing to remain at the scene of an accident, failing to
give information, and failing to render reasonable assistance.
Id. at 192, 216 P.3d at 118.    Over Domingo's objection that he
did not cause the loss suffered by the decedent, the Circuit
Court ordered him to pay restitution of $13,225.94 for funeral
expenses, a gravestone, and an ambulance fee.     Id. at 193, 216
P.3d at 119.   This court held that, because the decedent caused
his own death and died at the scene, there was no causal
relationship between Domingo's conduct and the decedent's losses.
Id. at 195, 216 P.3d at 121.    This court stated: "Absent evidence
that Domingo's conduct caused or aggravated [the decedent's]

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injuries or caused [the decedent's] death, no causal relationship
between Domingo's criminal act and a victim's losses is shown and
restitution may not be imposed pursuant to HRS § 706-646."       Id.
            Kelly's argument that any loss outside the scope of the
statutory elements of an offense precludes causation of loss is
without merit.   It is true that damage or loss of property is not
an element of UCPV.   However, in State v. Foumai, No. CAAP-17-
0000093, 2018 WL 495679, at *2 (Haw. App. Jan. 22, 2018) (mem.
op.), this court found a defendant convicted of Burglary in the
Second Degree, in violation of HRS § 708-811 (2014), was the
cause of losses for items missing from the premises he
burglarized despite the fact that taking of property is not an
element of Burglary in the Second Degree.     Citing State v.
Phillips, 138 Hawai#i 321, 352, 382 P.3d 133, 164 (2016), this
court noted that the defendant's conduct need not be the whole or
only conduct to bring about the losses, and that only a nexus is
required.   Foumai, 2018 WL 495679, at *2.    This court held there
was sufficient evidence presented that the defendant took the
missing items, based upon statements from the owners that the
items were in their desks prior to the burglary, to demonstrate
there was a causal relationship or nexus to establish the
defendant caused the losses.    Id. at *3.
            Contrary to Kelly's claim, HRS § 708-836 currently does
not merely seek to punish a defendant for operating a vehicle for
a "joyride"; the statute was amended to prohibit unauthorized
control of a vehicle.   Compare Commentary on HRS § 708-836, with
Supplementary Commentary on HRS § 708-836.     As in Foumai, it need
not be shown that Kelly's conduct was the whole or only conduct
that caused all of the damage or loss or that the type of losses
claimed for purposes of restitution falls squarely within the
elements of the crime for which she is convicted.      When Kelly
assumed control of the CW's vehicle, the CW lost the ability to
guard against loss or damage to the vehicle and its content.
Kelly was responsible for any damage or loss to the vehicle or

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its content while it was in her control.          In this case, the
police incident report indicated that, when Kelly was pulled
over, "the stereo was missing . . . .         The vehicle was sprayed
with red spray paint and the hood was spray painted black."
Thus, Kelly is not precluded, as a matter of law, from being
found to be the cause of the CW's losses due to her conviction
for UCPV.
            Kelly also contends the losses were not reasonable and
verified because: original receipts were not submitted, a list
detailing the original content and condition of the vehicle was
not provided, there was no showing that expenses were actually
paid to fix or replace damages or losses, estimates were used to
justify the costs of some repairs or replacement items instead of
showing actual payment, and the fair market value for replacement
of the entire vehicle was substantially less than the restitution
requested to cover repairs and replacement items.
            HRS § 706-646 states, in relevant part:
                  (2) The court shall order the defendant to make
            restitution for reasonable and verified losses suffered by
            the victim or victims as a result of the defendant's offense
            when requested by the victim. . . .

                  (3) In ordering restitution, the court shall not
            consider the defendant's financial ability to make
            restitution in determining the amount of restitution to
            order. The court, however, shall consider the defendant's
            financial ability to make restitution for the purpose of
            establishing the time and manner of payment. The court
            shall specify the time and manner in which restitution is to
            be paid. While the defendant is in the custody of the
            department of public safety, restitution shall be collected
            pursuant to chapter 353 and any court-ordered payment
            schedule shall be suspended. Restitution shall be a dollar
            amount that is sufficient to reimburse any victim fully for
            losses, including but not limited to:

                  (a)   Full value of stolen or damaged property, as
                        determined by replacement costs of like
                        property, or the actual or estimated cost of
                        repair, if repair is possible[.]

            HRS § 706-646 does not require original receipts be
provided to establish a loss was suffered.          Estimated repair
costs are expressly permitted to demonstrate losses that are
subject to restitution.       Thus, the CW was permitted to rely upon

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estimated repair costs as part of her restitution request.        There
is no statutory requirement to demonstrate only actual payment.
Requiring actual payment would negate the express statutory
language of HRS § 706-646(3)(a) that allows use of the estimated
cost of repair.
          Kelly's argument that losses are limited to the fair
market replacement value is not supported by the plain language
of HRS § 706-646(3).   HRS § 706-646(3) states: "Restitution shall
be a dollar amount that is sufficient to reimburse any victim
fully for losses," including the full value of damaged property,
which can be determined by either "the replacement costs of like
property, or the actual or estimated cost of repair, if repair is
possible."   HRS § 706-646(3) does not limit restitution to the
lesser of the replacement or repair cost when repair is possible.
In this case, the CW claimed repair was possible and requested
restitution for the repair cost.       Restitution was not limited to
the fair market value of a replacement vehicle.
          Kelly's foregoing arguments are questions of law
involving the statutory interpretation of HRS § 706-646.
However, Kelly's claim that the CW failed to adequately specify
the damage or loss to the vehicle or its content is a challenge
to the reasonableness or veracity of the restitution request.          In
State v. Demello, 130 Hawai#i 332, 310 P.3d 1033 (App. 2013),
vacated in part on other grounds, 136 Hawai#i 193, 361 P.3d 420
(2015), this court described the burden shifting nature involved
in a restitution proceeding.    We held that the prosecution had
the initial burden to present a prima facie showing that the
restitution request is "reasonable and verified" by providing
information regarding and verification of the victim's losses
caused by the defendant.   Id. at 344, 310 P.3d at 1045.      If a
defendant contests the request, the defendant must come forward
with evidence to support his or her challenge.      Id.   "This
process will allow both a defendant and victim the opportunity to
litigate their interests while still maintaining the 'fast track'

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contemplated by the Legislature."         Id. at 345, 310 P.3d at 1046.
Here, the Circuit Court did not make a finding that Kelly was the
cause of the CW's losses and that the losses were sufficiently
verified and reasonable.       On this record, a finding is necessary
to determine whether, and to what extent, the State made a prima
facie showing that Kelly was the cause of the losses and the
losses were reasonable and verified.          It was premature to impose
restitution as part of Kelly's sentence without making such a
finding.
            (2)    Kelly contends the Circuit Court did not comply
with HRS § 706-646(3)3 by failing to make findings considering
Kelly's financial ability to pay $30 per month in restitution
based on her employment, income, lack of assets, and entry into a
long term residential substance abuse treatment program.             The
State concedes the case should be remanded for findings to
adequately determine the time and manner of restitution payments.
            The Circuit Court was required to make oral or written
findings and conclusions regarding Kelly's financial ability to
pay when setting the time and manner of restitution payments.
HRS §§ 706-605(7) (2014), 706-646(3); State v. Gaylord, 78
Hawai#i 127, 153, 890 P.2d 1167, 1193 (1995); State v. Curioso,
No. CAAP-XX-XXXXXXX, 2014 WL 1271038, at *2-3 (Haw. App. Mar. 28,
2014) (SDO).      In this case, the Circuit Court did not make any
oral or written findings and conclusions on the record regarding
Kelly's ability to pay restitution when setting the time and
manner of the payments.




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         HRS § 706-646(3) provides, in relevant part:

                  (3) In ordering restitution, the court shall
            not consider the defendant's financial ability to make
            restitution in determining the amount of restitution
            to order. The court, however, shall consider the
            defendant's financial ability to make restitution for
            the purpose of establishing the time and manner of
            payment. The court shall specify the time and manner
            in which restitution is to be paid.

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          Therefore, IT IS HEREBY ORDERED that the Judgment of
Conviction and Probation Sentence, filed on September 5, 2017,
and the Order Denying Motion to Reconsider Sentence, filed on
January 26, 2018, in the Circuit Court of the First Circuit, are
vacated and the case is remanded for resentencing.
          DATED:   Honolulu, Hawai#i, June 12, 2020.



On the briefs:                         /s/ Katherine G. Leonard
                                       Presiding Judge
Brian R. Vincent,
Deputy Prosecuting Attorney,
City and County of Honolulu,           /s/ Derrick H. M. Chan
for Plaintiff-Appellee.                Associate Judge

Taryn R. Tomasa,
Deputy Public Defender,                /s/ Clyde J. Wadsworth
for Defendant-Appellant.               Associate Judge




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