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                                                               Electronically Filed
                                                               Supreme Court
                                                               SCWC-11-0000367
                                                               27-FEB-2014
                                                               11:04 AM




                             SCWC-11-0000367

            IN THE SUPREME COURT OF THE STATE OF HAWAI#I


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

                                     vs.

                           PETER DELA CRUZ,
                    Petitioner/Defendant-Appellee.


          CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
              (CAAP-11-0000367; CASE NO. 1P511-00408)

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

           This case concerns the District Court of the First

Circuit’s (district court) dismissal of the charge against

Petitioner/Defendant-Appellee Peter Dela Cruz (Dela Cruz) of

abuse of family or household members.         The State appealed to the

Intermediate Court of Appeals (ICA), and the ICA concluded that

the district court plainly erred in dismissing the charge for

lack of jurisdiction.      The ICA vacated the order of dismissal and

remanded the case for further proceedings.          We conclude that the
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ICA did not need to apply the plain error standard of review

because the State preserved the error by timely appealing to the

ICA.       We otherwise affirm the ICA’s January 24, 2013 Summary

Disposition Order (SDO) and its March 15, 2013 Judgment on Appeal

vacating the district court’s March 30, 2011 order of dismissal.

                                 I.   BACKGROUND

               On March 28, 2011, Dela Cruz was charged via complaint

with abuse of family or household members, in violation of

Hawai#i Revised Statutes (HRS) § 709-906(1) (Supp. 2010)1,

resisting an order to stop a motor vehicle, in violation of HRS §

710-1027 (1993)2, and driving without a license, in violation of




       1       HRS § 709-906(1) provided then, as it does now:

                     It shall be unlawful for any person, singly or in
               concert, to physically abuse a family or household member or
               to refuse compliance with the lawful order of a police
               officer under subsection (4). The police, in investigating
               any complaint of abuse of a family or household member, upon
               request, may transport the abused person to a hospital or
               safe shelter.

                     For the purposes of this section, “family or household
               member” means spouses or reciprocal beneficiaries, former
               spouses or reciprocal beneficiaries, persons who have a
               child in common, parents, children, persons related by
               consanguinity, and persons jointly residing or formerly
               residing in the same dwelling unit.
       2
               HRS § 710-1027 provided then, as it does now:

               (1) A person commits the offense of resisting an order to
               stop a motor vehicle if the person intentionally fails to
               obey a direction of a law enforcement officer, acting under
               color of the law enforcement officer’s official authority,
               to stop the person’s vehicle.

               (2) Resisting an order to stop a motor vehicle is a misdemeanor.


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  HRS § 286-102(a) (Supp. 2010)3.         On March 30, 2011, Dela Cruz

appeared in district court on the abuse of family or household

members charge.4     During defense counsel’s oral motion to release

Dela Cruz on his own recognizance, the district court stated: “I

don’t see that I have jurisdiction in the case.           I don’t think I

can do anything on it.      Would you agree that this doesn’t belong

before me?”    The prosecution stated: “I agree that I’m not sure

why this is here.”      The district court suggested that Dela Cruz

move to dismiss the case and then stated that it would dismiss

the case.    Later that day, the district court entered its Notice

of Entry of Judgment and/or Order dismissing with prejudice the

charge of abuse of family or household members.

            On April 15, 2011, the State filed a motion for

reconsideration, asking the court to dismiss the charge of abuse

of family or household members without prejudice.             The State

argued that the district court had jurisdiction over the charge

due to the provisions of HRS § 604-8(b) (Supp. 2010) granting the

district court “concurrent jurisdiction with the family court
     3
            HRS § 286-102(a) provided then, as it does now:

                  (a) No person, except one exempted under section 286-105,
            one who holds an instruction permit under section 286-110, one who
            holds a provisional license under section 286-102.6, one who holds
            a commercial driver’s license issued under section 286-239, or one
            who holds a commercial driver’s license instruction permit issued
            under section 286-236, shall operate any category of motor
            vehicles listed in this section without first being appropriately
            examined and duly licensed as a qualified driver of that category
            of motor vehicles.

     4      The Honorable Christopher J. McKenzie presided.


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of . . . any violation of section 709-906 when multiple offenses

are charged and at least one other offense is a criminal offense

within the jurisdiction of the district courts.”5           In his

memorandum of law in opposition to the State’s motion for

reconsideration, Dela Cruz argued that the district court lacked

the requisite jurisdiction to reconsider an order dismissing

charges against a criminal defendant.6

            At the April 27, 2011 hearing on the State’s motion for

reconsideration, the district court acknowledged that it had

erred in dismissing the charge for lack of jurisdiction.

However, the court ultimately denied the State’s motion for

reconsideration of the order “based on the arguments raised by

the defense counsel in her memorandum.”7

            On April 29, 2011, the State filed a timely notice of

appeal to the ICA.      In its opening brief, the State contended

      5
            Dela Cruz does not dispute that the district court erred in
dismissing the charge. Because Dela Cruz was also charged with criminal
offenses over which the district court had jurisdiction -- resisting an order
to stop a motor vehicle, in violation of HRS § 710-1027, and driving without a
license, in violation of HRS § 286-102(a) –- the district court had
jurisdiction over the charge of abuse of family or household members pursuant
to HRS § 604-8(b).

      6     Dela Cruz also argued that, were he re-prosecuted for the charge
of abuse of family or household members, this would violate HRS § 701-109(2)
(1993) and would constitute double jeopardy. Considering this issue, the ICA
held that double jeopardy did not bar the ICA from vacating the district
court’s judgment and remanding the case for further proceedings “[b]ecause the
[d]istrict [c]ourt’s dismissal of the charge for lack of jurisdiction did not
constitute an acquittal.” Dela Cruz has not reprised his argument regarding
HRS § 701-109(2) before this court.

      7     The district court actually stated that it granted the motion for
reconsideration in part, granting the State’s concurrent motion to correct the
court’s March 30, 2011 minutes.

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that the district court erred in granting Dela Cruz’s oral motion

to dismiss for lack of jurisdiction.        The State argued that the

district court had jurisdiction over the charge of abuse of

family or household members pursuant to HRS § 604-8(b).

            Dela Cruz responded that because the State failed to

object to the dismissal during the initial hearing, the alleged

error may be reviewed only for plain error, which “is not

applicable in the instant case.”

            The ICA concluded that, pursuant to HRS § 709-906(1),

the district court erred in dismissing with prejudice the charge

against Dela Cruz for abuse of family or household members.             The

ICA stated: “Under the circumstances of this case, we conclude

that it is appropriate to reach the State’s challenge to the

[d]istrict [c]ourt’s dismissal of the charge with prejudice under

the plain error standard.”      Furthermore, the ICA stated that

because it had vacated the district court’s judgment, there was

no need to address whether the district court erred in denying

the State’s motion for reconsideration.

                            II.   DISCUSSION

            On appeal, an appellant must note where in the record

an alleged error was objected to or brought to the attention of

the trial court.    Hawai#i Rules of Appellate Procedure (HRAP)

28(b)(4).    While plain error may be noticed even if the error was

not raised in the trial court, “our power to deal with plain

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error is one to be exercised sparingly and with caution because

the plain error rule represents a departure from a presupposition

of the adversary system –- that a party must look to his or her

counsel for protection and bear the cost of counsel’s mistakes.”

State v. Nichols, 111 Hawai#i 327, 336, 141 P.3d 974, 983 (2006)

(quoting State v. Kelekolio, 74 Haw. 479, 515, 849 P.2d 58, 74-75

(1993)).

           However, we need not reach the question of whether

plain error may be applied.      The State’s appeal of this issue to

the ICA was sufficient to preserve the error.          Here, there was no

need for the ICA to apply a plain error analysis because the

State had no opportunity to object to the district court’s

dismissal of the case with prejudice prior to the district

court’s order.

           We therefore affirm the ICA’s March 15, 2013 judgment

on appeal vacating the district court’s order of dismissal and

remand this case to the district court for further proceedings

consistent with this opinion.

           DATED:   Honolulu, Hawai#i, February 27, 2014.

James S. Tabe                            /s/ Mark E. Recktenwald
for petitioner
                                         /s/ Paula A. Nakayama
Stephen K. Tsushima
for respondent                           /s/ Simeon R. Acoba, Jr.

                                         /s/ Sabrina S. McKenna

                                         /s/ Richard W. Pollack

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