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               IN THE INTERMEDIATE COURT OF APPEALS

                      OF THE STATE OF HAWAI#I


                              ---o0o--–

             EDMUND CHRISTIAN, Petitioner-Appellant,
                                vs.
              STATE OF HAWAI#I, Respondent-Appellee.


                          CAAP-11-0000147


       APPEAL FROM THE DISTRICT COURT OF THE FIFTH CIRCUIT
               (SD 10-1-001; CR NO. 5DTA-08-00048)


                         NOVEMBER 27, 2013


       NAKAMURA, CHIEF JUDGE, AND FOLEY AND REIFURTH, JJ.

              OPINION OF THE COURT BY NAKAMURA, C.J.

          Petitioner-Appellant Edmund Christian (Christian) was
charged by complaint with Operating a Vehicle Under the Influence
of an Intoxicant (OVUII). On June 24, 2008, he pleaded no
contest to the OVUII charge. On that same day, he was sentenced
to a fine of $700 and various fees and assessments. Christian
did not appeal his OVUII conviction or sentence.
          Over two years after his judgment of conviction became
final, Christian sought to collaterally attack his conviction.
On August 23, 2010, he filed a Hawai#i Rules of Penal Procedure
(HRPP) Rule 40 (2006) "Petition to Vacate, Set Aside or Correct
Prior Judgment/Conviction" (Rule 40 Petition), alleging for the
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first time that his OVUII charge was insufficient. Christian
relied upon the Hawai#i Supreme Court's 2009 decision in State v.
Wheeler, 121 Hawai#i 383, 219 P.3d 1170 (2009), which held that
an OVUII charge which tracked the language of the statute
prescribing the offense, but failed to allege that the offense
was committed "upon a public way, street, road, or highway"
(public-road element), was defective. Christian argued that his
OVUII charge was similarly defective for failing to allege the
public-road element, that the defect in the charge was
jurisdictional, and therefore his judgment of conviction was a
nullity. The District Court of the Fifth Circuit (District
Court)1 denied Christian's Rule 40 Petition, and Christian
appealed.
          We hold that the rule announced in Wheeler does not
apply retroactively to cases on collateral review. In
determining the extent to which a newly announced judicial rule
should be given retroactive effect, we consider "(a) the purpose
of the newly announced rule, (b) the extent of reliance by law
enforcement authorities on the old standards, and (c) the effect
on the administration of justice of a retroactive application of
the new standards[.]" State v. Jess, 117 Hawai#i 381, 401-02,
184 P.3d 133, 153-54 (2008) (internal quotation marks and
citation omitted). Applying these factors, we conclude that the
new rule announced in Wheeler -- that charging the OVUII offense
in the language of the statute is insufficient and that an OVUII
charge is defective unless it specifically alleges the public-
road element -- should not be applied retroactively to defendants
seeking relief on collateral review. Moreover, even if Wheeler
applies retroactively to Christian's Rule 40 Petition, we
conclude that given the heightened interest in finality that
attaches to cases on collateral review, Christian must
demonstrate exceptional circumstances to merit relief on his
belated challenge to the sufficiency of his charge. Because

     1
         The Honorable Trudy K. Senda presided.

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Christian cannot rely on the Wheeler rule, and because he does
not show exceptional circumstances meriting relief, we affirm the
denial of his Rule 40 Petition.
                             BACKGROUND
           On February 20, 2008, Plaintiff-Appellee State of
Hawai#i (State) charged Christian by written complaint with (1)
OVUII as a highly intoxicated driver, in violation of Hawaii
Revised Statutes (HRS) §§ 291E-61(a)(1) and/or (a)(3) and (b)(2)
(2007) (Count I); and (2) Disobedience to Police Officer, in
violation of HRS § 291C-23 (2007) (Count II). The State's OVUII
charge tracked the language of the offense statute and did not
allege the public-road element required under Wheeler -- that
Christian had operated or assumed actual physical control of his
vehicle "upon a public way, street, road, or highway." The State
charged Christian in Count I as follows:

          On or about the 16th day of January, 2008, in the
          County of Kauai, State of Hawaii, [Christian] did,
          while under the influence of an intoxicant,
          operate or assume actual physical control of a
          vehicle while under the influence of alcohol in an
          amount sufficient to impair his normal mental
          faculties or ability to care for himself and guard
          against casualty and/or with 0.8 or more grams of
          alcohol per two hundred ten liters of breath
          thereby committing the offense of Operating a
          Vehicle Under the Influence of an Intoxicant in
          violation of Sections 291E-61(a)(1) and/or (3) of
          the Hawaii Revised Statutes. [Christian] is
          subject to sentencing in accordance with Section
          291E-61(b)(2) of the Hawaii Revised Statutes,
          where [Christian] was a highly intoxicated driver
          as defined in Section 291E-1 of the Hawaii Revised
          Statutes at the time this offense was committed.

(Emphasis added.)
          Pursuant to a plea agreement, Christian entered a no
contest plea to the OVUII charge in Count I, and Count II was
dismissed with prejudice. The District Court accepted
Christian's no contest plea and sentenced him to pay a $700 fine
plus fees and assessments. The District Court entered its
Judgment on June 24, 2008. Christian did not challenge the

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sufficiency of the OVUII charge at trial or appeal his
conviction.
          On August 23, 2010, Christian filed his Rule 40
Petition in the District Court. In his Rule 40 Petition,
Christian relied upon Wheeler in arguing that his conviction
should be vacated. On January 31, 2011, the District Court
denied Christian's Rule 40 Petition pursuant to its "Findings of
Fact, Conclusions of Law and Order Denying HRPP Rule 40 Petition
for Post-Conviction Relief" (Order Denying Rule 40 Petition).
The District Court concluded that:
          [T]he Wheeler court recognized that different principles
          apply when the issue of sufficiency of the charge/complaint
          are first raised in a post-conviction setting and that under
          the "Motta/Wells[ 2] post-conviction liberal construction
          rule," the court will liberally construe charges challenged
          for the first time on appeal. In the instant case, this
          court concludes that the "presumption of validity" for
          charges challenged subsequent to a conviction would require
          a showing by [Christian] of prejudice.

Christian timely appealed from the District Court's Order Denying
Rule 40 Petition.
                            DISCUSSION
                                I.
          HRS § 291E-61(a) provides in relevant part:
                (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;

                . . . [or]

                (3)   With .08 or more grams of alcohol per two
                      hundred ten liters of breath[.]

(Emphasis added.) HRS § 291E-1 (2007), in turn, defines the term
"operate" as used in HRS § 291E-61 to mean "to drive or assume


     2
      See State v. Motta, 66 Haw. 89, 90-91, 657 P.2d 1019,
1019–20 (1983); State v. Wells, 78 Hawai#i 373, 381, 894 P.2d 70,
78 (1995).

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actual physical control of a vehicle upon a public way, street,
road, or highway[.] (Emphasis added.)
           In Wheeler, the supreme court concluded that the common
understanding of the term "operate" did not give fair notice of
the term's statutory definition, which included the geographical
requirement that the OVUII offense occur "upon a public way,
street, road, or highway" as an essential element of the offense.
Wheeler, 121 Hawai#i at 391-95, 219 P.3d at 1178-82. The supreme
court therefore held that charging in the language of the offense
statute and using the term "operate" in Wheeler's OVUII charge,
without also specifically alleging the public-road element
included in the term's statutory definition, rendered Wheeler's
OVUII charge deficient. Id.
           Relying on Wheeler, Christian argues in this appeal
that his OVUII charge is similarly deficient because the State
failed to specifically allege the public-road element. Christian
further argues, relying on State v. Cummings, 101 Hawai#i 139,
142-43, 63 P.3d 1109, 1112-13 (2003), that the deficiency in his
OVUII charge was a jurisdictional defect that rendered his
conviction a nullity.
           The State concedes that Christian's charge was
deficient under the "new standard" announced in Wheeler, but
argues that we should not apply the Wheeler rule retroactively to
cases on collateral review. We agree.
           We further conclude that prior to Wheeler, the Hawai#i
Supreme Court had implicitly held that Christian's OVUII charge
was sufficient by directing the entry of judgment based on the
same charging language. See State v. Ruggiero, 114 Hawai'i 227,
240-41, 160 P.3d 703, 716-17 (2007); State v. Kekuewa, 114
Hawai#i 411, 425-26, 163 P.3d 1148, 1162-63 (2007). Indeed, in
State v. Walker, 126 Hawai#i 475, 273 P.3d 1161 (2012), the
Hawai#i Supreme Court acknowledged that Wheeler announced a new
charging rule when Wheeler held that the public-road element was
not encompassed within the term "operate," but must be
specifically alleged. The Walker court stated that "[t]he

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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" and that "post-Wheeler, OVUII
charges must now allege the attendant circumstance that the
defendant operated a vehicle 'on a public way, street, road, or
highway.'" Id. at 490, 273 P.3d at 1176.
          As explained below, the Wheeler charging rule does not
retroactively apply to Christian's collateral attack of his OVUII
conviction. Under cases existing prior to Wheeler, Christian
cannot show that he is entitled to collaterally attack his
conviction based on the failure of his OVUII charge to
specifically allege the public-road element. Moreover, Christian
does not satisfy the increased burden that we conclude is
properly placed on a defendant who challenges the sufficiency of
his or her charge for the first time on collateral review.
Accordingly, we affirm the District Court's Order Denying Rule 40
Petition.
                                II.
          We review the denial of Christian's Rule 40 Petition,
which was based on the District Court's conclusions of law, de
novo. See Coulter v. State, 116 Hawai#i 181, 184, 172 P.3d 493,
496 (2007).
                               A.
          We first consider whether the Wheeler charging rule
should be applied retroactively to Christian's Rule 40 Petition.
In Jess, the Hawai#i Supreme Court discussed the analytical
framework for deciding whether, and to what extent, a new rule
announced in a judicial decision should be applied retroactively.
The Jess decision announced a new charging rule which required
the State to allege aggravating extrinsic facts as well as
aggravating intrinsic facts in a charging instrument when seeking
an extended term of imprisonment. Jess, 117 Hawai#i at 400-01,




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184 P.3d at 152-53.3 In determining whether the new rule should
be given retroactive effect, the supreme court stated that
although retroactive application of judicial decisions is
generally assumed, "such application is not automatic, because
the Constitution neither prohibits nor requires retrospective
effect." Id. at 401, 184 P.3d at 153 (internal quotation marks
and citation omitted).
          The supreme court concluded that it was "free to apply
decisions with or without retroactivity[.]" Id. (internal
quotation marks, citation, and brackets omitted). It described
the options regarding the extent to which a new judicial rule
could be given retroactive effect as follows: (1) purely
prospective effect, under which the new rule only applies to
future cases and does not apply to the parties in the law-making
decision or to conduct or events occurring before that decision;
(2) limited or pipeline retroactive effect, under which the new
rule applies to the parties in the decision and all cases on
direct review or not yet final on the date of the decision; or
(3) full retroactive effect, under which the new rule applies
"both to the parties before the court and to all others by and
against whom claims may be pressed[.]" Id. (internal quotation
marks and citation omitted). In deciding which retroactivity
option is appropriate, the court "weigh[s] the merits and
demerits of retroactive application of the particular rule in
light of (a) the purpose of the newly announced rule, (b) the
extent of reliance by law enforcement authorities on the old
standards, and (c) the effect on the administration of justice of
a retroactive application of the new standards[.]" Id. at 401-
02, 184 P.3d at 153-54 (internal quotation marks and citation
omitted).
                                B.

     3
      Previously, the State had been required to allege
aggravating intrinsic facts, but not aggravating extrinsic facts,
when seeking an extended term of imprisonment. See Jess, 117
Hawai#i at 400-01, 184 P.3d at 152-53.

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          A threshold question is whether Wheeler announced a new
rule because "[i]t is only when the law changes in some respect
that an assertion of nonretroactivity may be entertained[.]"
James B. Beam Distilling Co. v. Georgia, 501 U.S. 529, 534
(1991). We conclude, in light of the Hawai#i Supreme Court's
pre-Wheeler decisions in Ruggiero and Kekuewa, that Wheeler
announced a new rule regarding whether charging in the language
of the OVUII offense statute would be sufficient to charge a
first-time OVUII offense.
          Ruggiero was charged with OVUII in language that, as
relevant to our analysis, is indistinguishable from the language
used in Christian's OVUII charge. Ruggiero's OVUII charge, which
was quoted in the supreme court's opinion, alleged:

               That on or about the 10th day of March, 2004,
          in the Division of Wailuku, County of Maui, State
          of Hawai#i, ADAM M. RUGGIERO did operate or assume
          actual physical control of a vehicle while under
          the influence of an intoxicant meaning that he was
          under the influence of alcohol in an amount
          sufficient to impair his normal mental faculties
          or ability to care for himself and guard against
          casualty, thereby committing the offense of
          Operating a Vehicle Under the Influence of an
          Intoxicant in violation of Section 291E–61 of the
          Hawai#i Revised Statutes.

Ruggiero, 114 Hawai#i at 229 n.3, 160 P.3d at 705 n.3 (brackets
omitted). As with Christian's OVUII charge, Ruggiero's charge
alleged the statutorily defined term "operate," but did not
specifically allege the public-road element. Ruggiero was
convicted of the OVUII charge and given an enhanced sentence as a
repeat offender. Id. at 229–31, 160 P.3d at 705–07. On appeal,
Ruggiero challenged his enhanced sentence as a repeat offender.
The supreme court concluded that Ruggiero's prior OVUII
conviction was an elemental attendant circumstance and therefore
Ruggiero could not be sentenced as a repeat offender because his
prior conviction had not been alleged in the charge and proven at
trial. Id. at 293, 160 P.3d at 715.


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          The supreme court then went on to consider whether
Ruggiero could be sentenced as a first-time offender. The court
held that Ruggiero could be sentenced as a first-time offender
because his OVUII charge could "reasonably be construed" to
charge OVUII as a first offense. Id. at 240, 160 P.3d at 716.
The court stated:
          the complaint can reasonably be construed to charge the
          crime of [OVUII] as a first offense, in violation of HRS §
          291E–61(a) and (b)(1). It plainly states the elements set
          forth in HRS § 291E–61(a) ("operates or assumes actual
          physical control of a vehicle") and –61(a)(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").

Id. (emphasis added; brackets omitted). The court accordingly
remanded the case to the trial court for entry of a judgment of
conviction for OVUII as a first offense and resentencing in
accordance therewith. Id. at 241, 160 P.3d at 717.
          Like Ruggiero, Kekuewa was charged with OVUII in
language that, for purposes of our analysis, is indistinguishable
from Christian's OVUII charge, in that Kekuewa's charge alleged
the statutorily defined term "operate," but did not specifically
allege the public-road element. Kekuewa's charge, which was
quoted in the supreme court's opinion, alleged that:
          on or about the 15th day of April 2004, in the City and
          County of Honolulu, State of Hawaii, island of Oahu, you did
          operate or assume actual physical control of a vehicle while
          under the influence of alcohol in an amount sufficient to
          impair your normal mental faculties or the ability to care
          for yourself and guard against casualty thereby violating
          Section 291E–61 of the Hawaii Revised Statutes for your
          second offense.

Kekuewa, 114 Hawai#i at 415, 163 P.3d at 1152 (emphasis added;
emphasis in original omitted). The supreme court affirmed this
court's determination that Kekuewa could not be convicted as a
repeat offender because his charge failed to sufficiently allege
the attendant circumstance of his prior conviction. Id. at 423,
163 P.3d at 1160. The supreme court, however, stated that the
charge against Kekuewa set forth the essential elements of OVUII
as a first offense. Id. at 426, 163 P.3d at 1163. The supreme

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court therefore held that this court should have remanded the
case for entry of a judgment of conviction and resentencing for
OVUII as a first offense, instead of reversing Kekuewa's
conviction. Id. at 425-26, 163 P.3d at 1162-63.
                                C.
          As noted in Wheeler, Ruggiero and Kekuewa did not
challenge the sufficiency of their charges on the specific ground
that the charges failed to alleged the public-road element and
thus the supreme court's opinions in Ruggiero and Kekuewa did not
establish clear precedent on this question for stare decisis
purposes. Wheeler, 121 Hawai#i at 399, 219 P.3d at 1186.
Nevertheless, 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, the supreme court implicitly held and
concluded that the charges in Ruggiero and Kekuewa were
sufficient to charge OVUII as a first offense. Indeed, in
Ruggiero, the supreme court stated that "the complaint can
reasonably be construed to charge the crime of [OVUII] as a first
offense, in violation of HRS § 291E–61(a) and (b)(1)." See
Ruggiero, 114 Hawai#i 240, 160 P.3d at 716. Moreover, if the
sufficiency of a charge is jurisdictional, then the supreme court
should not have directed the entry of judgment of conviction on
the charge if the charge was insufficient.
          Accordingly, Ruggiero and Kekuewa implicitly approved
the charging language used in those cases and provided persuasive
authority that such language, which used the terms of the offense
statute without specifically alleging the public-road element,
was sufficient to charge OVUII as a first offense. We therefore
conclude that Wheeler announced a new rule for purposes of
determining whether the decision should be applied retroactively.
See Teague v. Lane, 489 U.S. 288, 301 (1989) ("[A] case announces
a new rule if the result was not dictated by precedent existing
at the time the defendant's conviction became final.").
                               III.


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          The Hawai#i Supreme Court has already rejected the
option of giving purely prospective effect to the Wheeler rule,
and it has thus far given the Wheeler rule limited or pipeline
retroactive effect. The supreme court applied the announced
charging rule to Wheeler and also applied the Wheeler rule to
cases pending on direct review. The question presented by
Christian's Rule 40 Petition is whether the Wheeler rule should
be given "full retroactive effect" and apply to cases on
collateral review. By "Wheeler rule," we mean the holding that
an OVUII charge is deficient if it charges in the language of the
offense statute (HRS § 291E-61(a)) without specifically alleging
the public-road element.
          Applying the factors set forth in Jess for determining
the extent to which a newly announced rule should be given
retroactive effect, we conclude that limited or pipeline
retroactive effect is sufficient and that full retroactive effect
would be inappropriate. As noted, the factors to consider are:
"(a) the purpose of the newly announced rule, (b) the extent of
reliance by law enforcement authorities on the old standards, and
(c) the effect on the administration of justice of a retroactive
application of the new standards[.]" Jess, 117 Hawai#i at 401-
02, 184 P.3d at 153-54 (internal quotation marks and citation
omitted).
          The purpose of the Wheeler rule is to ensure that
defendants charged with OVUII receive fair notice of the public-
road element so they can adequately prepare their defense. This
purpose is furthered by applying the Wheeler rule to Wheeler and
cases on direct appeal, which the supreme court has already done.
There does not appear to be a compelling need to apply the
Wheeler rule retroactively to cases that are already final. It
would be unusual for an OVUII prosecution to arise from the
operation of a vehicle on a non-public road. In addition,
although pre-Wheeler, the State routinely charged OVUII by
tracking the offense language without alleging the public-road
element, there is no indication that the State, the trial court,

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or the defendants were generally unaware of the State's
obligation to prove the public-road element, or that defendants
driving on non-public roads were being convicted of OVUII.
Moreover, as discussed below, the other factors in the
retroactively analysis strongly weigh against giving the Wheeler
rule full retroactive effect and applying it to cases on
collateral review.
          The second factor is the extent of reliance by law
enforcement authorities on the old standards. The significant
number of appeals involving charges filed pre-Wheeler, in which
the State charged in the language of HRS § 291E-61(a) and did not
specifically allege the public-road element, indicates that the
State's reliance on the language of the OVUII charges implicitly
approved by the supreme court in Ruggiero and Kekuewa was high.
Indeed, it appears that in cases filed after Ruggiero and
Kekuewa, the State routinely charged in the language of the
offense statue without specifically alleging the public-road
element.
          The third factor, the effect on the administration of
justice of a retroactive application of the new standards, weighs
heavily against giving Wheeler full retroactive effect. OVUII is
a frequently charged offense that is aimed at deterring conduct
presenting a grave risk to public safety -- driving while
impaired by alcohol or drugs -- and it appears that the State's
standard practice was to charge the OVUII offense without
alleging the public-road element. The public-road element was
added to the offense of OVUII through statutory amendments in
2000 that resulted in the repeal of the former law and the
enactment of HRS § 291E-61. See Wheeler, 121 Hawai#i at 392
n.11, 219 P.3d at 1179 n.11 (explaining the origin of the public-
road element). Prior to the 2000 amendment, the former OVUII law
did not require proof of a public-road element. Id. As the
State argues, applying Wheeler retroactively to cases on
collateral review "would impose a heavy burden on the judicial
system because potentially all OVUII convictions, going back to

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2000, when the present version of HRS § 291E-61(a) was enacted,
could be vacated." (Emphasis in original.)4 Moreover, giving
the Wheeler rule full retroactive effect would place at risk
OVUII convictions that have long been final, even where the
defendant was not prejudiced by the failure to specifically
allege the public-road element in his or her OVUII charge.5
          Weighing the applicable factors, we conclude that full
retroactive application of Wheeler to cases on collateral review
is not warranted. The State's reasonable reliance on Ruggiero
and Kekuewa in charging the OVUII offense, and the significant
disruption to the administration of justice that would result if
OVUII convictions that had already become final are subject to
wholesale invalidation, convinces us that giving the Wheeler rule
limited or pipeline retroactive effect is sufficient and
appropriate.
                               IV.
          Even if the asserted deficiency in Christian's charge
is properly characterized as a jurisdictional defect, that would
not require applying the Wheeler rule retroactively to
Christian's collateral attack of his conviction. In United
States v. Cuch, 79 F.3d 987 (10th Cir. 1996), the federal court
of appeal for the Tenth Circuit considered whether a United
States Supreme Court decision affecting the federal court's
jurisdiction to try the defendants for criminal offenses should
be applied retroactively on collateral review. Prior to the
Supreme Court's decision in Hagen v. Utah, 510 U.S. 399 (1994),


     4
      It appears that although enacted in 2000, the effective
date of the new HRS § 291E-61 was January 1, 2002, see Wheeler,
121 Hawai#i at 392 n.11, 219 P.3d at 1179 n.11, and so all
convictions based on OVUII after January 1, 2002, could be at
risk.
     5
      For purposes of this discussion, we assume the retroactive
application of the Wheeler charging rule without considering the
effect of the Motta/Wells liberal construction standard or the
imposition of a higher standard for collateral review, which we
discuss infra.

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the Tenth Circuit had held that the lands on which defendants had
committed their crimes were part of the Ute Indian Tribe's Uintah
Reservation. Cuch, 79 F.3d at 988. However, in Hagen, the
Supreme Court determined that the lands in question were not part
of the Unitah Reservation. Id. The effect of the Hagen
decision, if applied retroactively to the defendants'
prosecutions, would be that the State of Utah, not the federal
government, had jurisdiction over crimes committed on the lands
where defendants had committed their crimes. Cuch, 79 F.3d at
988.
          The Tenth Circuit held that "based on principles of
finality and fundamental fairness[,]" the retroactive application
of subject matter jurisdiction rulings could be limited so that
they would not apply to invalidate criminal convictions on
collateral review. Id. at 990-91. It stated that in Gosa v.
Mayden, 413 U.S. 655 (1973), the United States Supreme Court
refused to retroactively apply its prior decision -- that
constitutional restraints deprived military courts of
jurisdiction to try individuals for non-service related crimes --
to invalidate convictions on collateral review. Cuch, 79 F.3d at
990. The Tenth Circuit further stated that the Supreme Court has
emphasized that "'the principle of finality . . . is essential to
the operation of our criminal justice system'" and that
[c]onsequently,
          "the interest in leaving concluded litigation in a
          state of repose . . . may quite legitimately be
          found by those responsible for defining the scope
          of the writ [of habeas corpus] to outweigh in
          some, many, or most instances the competing
          interest in readjudicating convictions according
          to all legal standards in effect when a habeas
          petition is filed."

Id. at 991 (ellipsis points in original; brackets omitted)
(quoting Teague, 489 U.S. at 306, 309 (1989)). The Tenth Circuit
noted that "[t]his overriding interest in finality is a primary
factor distinguishing collateral review from direct review for


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due process purposes." Id. at 991 n.8. The Tenth Circuit held
that the retroactive application of the Hagen decision to the
defendants' collateral attack was not warranted and affirmed the
denial of the defendants' claims on collateral review. Id. at
995.
                                V.
          Applying the law pre-Wheeler to Christian's Rule 40
Petition, we conclude that he is not entitled to relief. In
Walker, the Hawai#i Supreme Court acknowledged that Wheeler had
effectively changed the law regarding OVUII charging as it had
existed under its 2007 decisions in Ruggiero and Kekuewa.
The court stated that "[t]he current essential elements that the
State must include in an OVUII charge [post-Wheeler] differ from
those required in 2007 at the time of the Ruggiero and Kekuewa
decisions." Walker, 126 Hawai#i at 490, 273 P.3d at 1176. It
further stated that "post-Wheeler, OVUII charges must now allege
the attendant circumstance that the defendant operated a vehicle
'on a public way, street, road, or highway.'" Id.
          If the Wheeler rule is not retroactively applicable to
Christian's Rule 40 Petition, we conclude that Ruggiero and
Kekuewa would provide persuasive authority that Christian's OVUII
charge was sufficient. In addition, because Christian did not
object to the sufficiency of his charge during his trial
proceedings, he would at least have to overcome the liberal
construction standard. See State v. Motta, 66 Haw. 89, 90-91,
657 P.2d 1019, 1019–20 (1983); State v. Wells, 78 Hawai#i 373,
381, 894 P.2d 70, 78 (1995). Under this standard, Christian has
the burden of (1) showing prejudice from the defective charge or
(2) that the charge "cannot within reason be construed to charge
a crime." State v. Merino, 81 Hawai#i 198, 212, 915 P.2d 672,
686 (1996) (block quote format and citation omitted).
          Here, Christian does not argue that he was prejudiced
by the failure of his OVUII charge to allege the public-road
element. In Ruggiero, the supreme court stated that Ruggiero's
OVUII charge, which is substantively the same as Christian's

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charge, "can reasonably be construed to charge the crime of
[OVUII] as a first offense[.]" Ruggiero, 114 Hawai#i at 240, 160
P.3d at 716. Thus, applying the law as it existed pre-Wheeler to
Christian's Rule 40 Petition, we conclude that he is not entitled
to relief.
                                 VI.
           In any event, given the interest in the finality of
criminal judgments challenged on collateral review, even assuming
arguendo that Wheeler is applied retroactively to Christian's
Rule 40 Petition, we conclude that he is not entitled to relief.
The significant interest in the finality of judgments become even
more compelling once the time and opportunity for a direct appeal
has passed. "[T]he tardier the challenge, the more liberally and
aggressively have indictments been construed so as to save them."
United States v. Richardson, 687 F.2d 952, 962 (7th Cir. 1982).
           The Hawai#i Supreme Court has held that a liberal
construction standard applies when a defendant waits to challenge
his conviction for the first time on direct appeal. See Motta,
66 Haw. at 90-91, 657 P.2d at 1019–20; Wells, 78 Hawai#i at 381,
894 P.2d at 78. Under this liberal construction standard, a
charge that would fail to pass muster if timely challenged in the
trial court can nevertheless be found to be sufficient if
challenged for the first time on direct appeal. Id. The Hawai#i
Supreme Court, however, has not specifically addressed how a
challenge to the sufficiency of a charge raised for the first
time on collateral review should be evaluated.
           Given the heightened interest in the finality of
judgments applicable to cases challenged on collateral review, we
conclude that a higher burden should be placed on a defendant
challenging the sufficiency of his or her charge for the first
time on collateral review. Under this higher burden, we conclude
that Christian must show exceptional circumstances in order to
obtain relief. We adopt the standard applied by federal
appellate courts in the Fifth and Eighth Circuits:


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          "The sufficiency of an indictment or information is not open
          to collateral attack after conviction unless it appears that
          the circumstances are exceptional, that the questions raised
          are of 'large importance,' that the need for the remedy
          sought is apparent, and that the offense charged was one of
          which the sentencing court manifestly had no jurisdiction."

United States v. Prince, 868 F.2d 1379, 1384 (5th Cir. 1989)
(brackets omitted) (quoting Keto v. United States, 189 F.2d 247,
251 (8th Cir. 1951). Under this standard, we conclude that
Christian has not shown that the deficiency in his OVUII charge
entitles him to relief on collateral review.
                               A.
          In Teague, the United States Supreme Court recognized
the importance of finality to the criminal justice system. The
Court stated:
          Without finality, the criminal law is deprived of much of
          its deterrent effect. The fact that life and liberty are at
          stake in criminal prosecutions shows only that conventional
          notions of finality should not have as much place in
          criminal as in civil litigation, not that they should have
          none. If a criminal judgment is ever to be final, the
          notion of legality must at some point include the assignment
          of final competence to determine legality.

Teague, 489 U.S. at 309 (internal quotation marks, brackets, and
citations omitted; emphasis in original).
           The Hawai#i Supreme Court has applied finality
principles in civil cases to reject collateral attacks on
judgments. In Cvitanovich-Dubie v. Dubie, 125 Hawai#i 128, 254
P.3d 439 (2011), the Hawai#i Supreme Court rejected the
plaintiff's argument that her divorce decree was void under
Hawai#i Family Court Rules Rule 60(b)(4) because "her marriage
was bigamous and therefore violated prohibitory law, and that the
marriage was therefore void ab initio pursuant to HRS § 1-6."
Id. at 143, 254 P.3d at 454. The supreme court explained:
                Assuming arguendo that the question of whether a
          marriage is valid goes to the family court's jurisdiction to
          enter a divorce, [the plaintiff's] challenges to the family
          court's jurisdiction would have been relevant had she raised
          them in the divorce proceedings or in a direct appeal.
          However, on a Rule 60(b)(4) motion, the principle of
          finality narrows the scope of review. Because the family
          court had "power to adjudicate the issues in the class of
          suits to which the case belongs," i.e., divorce proceedings,

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             its judgment is not subject to collateral attack pursuant to
             HFCR Rule 60(b)(4).

Id. (emphasis added; footnote and citations omitted).
Accordingly, the supreme court upheld the family court's denial
of the plaintiff's motion under Rule 60(b)(4). Id. at 144, 254
P.3d at 455.
          The strong interest in the finality of criminal
judgments, particularly after the opportunity for direct appeal
has passed, also underlies the provision in HRPP Rule 40 that
generally precludes a criminal defendant from raising an issue in
an HRPP Rule 40 petition that the defendant failed to raise on
direct appeal. HRPP Rule 40(a)(3) provides, in relevant part,
that
             an issue is waived if the petitioner knowingly and
             understandingly failed to raise it and it could have been
             raised . . . on appeal . . . and the petitioner is unable to
             prove the existence of extraordinary circumstances to
             justify the petitioner's failure to raise the issue. There
             is a rebuttable presumption that a failure to appeal a
             ruling or to raise an issue is a knowing and understanding
             failure.

                                B.
          Federal courts have imposed stringent standards when a
defendant challenges the sufficiency of an indictment or
information on collateral review. As noted, the Fifth and Eighth
Circuits have applied the following test:
             The sufficiency of an indictment or information is not open
             to collateral attack after conviction unless it appears that
             the circumstances are exceptional, that the questions raised
             are of 'large importance,' that the need for the remedy
             sought is apparent, and that the offense charged was one of
             which the sentencing court manifestly had no jurisdiction.

Prince, 868 F.2d at 1384 (quoting Keto, 189 F.2d at 251).              In
justifying this test, the Eighth Circuit explained:
                   The orderly administration of criminal justice demands
             that a defendant who is dissatisfied with the form or
             substance of an indictment or information filed against him
             shall make that known to the trial court at or before the
             time when sentence is imposed, and shall appeal from any
             judgment which he contends is based upon a defective
             indictment or information. It would create an intolerable
             situation if defendants, after conviction, could defer their
             attacks upon indictments or informations until witnesses had

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          disappeared, statutes of limitation had run, and those
          charged with the duty of prosecution had died, been
          replaced, or had lost interest in the cases.

Keto, 189 F.2d at 251 (emphasis added).
          We conclude that the test applied by the Fifth and
Eighth Circuits fairly balances the interest in finality with the
interest served by permitting a defendant to collaterally attack
his or her conviction and sentence. Accordingly, we adopt this
test in evaluating challenges to the sufficiency of a charge
raised for the first time on collateral review.
                                C.
          Applying this test to Christian's Rule 40 Petition, we
conclude that Christian failed to satisfy the test. Here,
Christian's circumstances are not exceptional. Christian does
not claim that he suffered any prejudice from the failure of his
OVUII charge to specifically allege the public-road element.
Indeed, he does not contend that he was driving on a non-public
road or that the State's failure to allege the public-road
element affected the preparation of his defense in any way. He
does not maintain that he was actually innocent of the OVUII
offense. He was not sentenced to incarceration and he is not in
custody. For these same reasons, Christian has not shown that
the question he raises regarding the sufficiency of his OVUII
charge are of large importance or that the need for the remedy he
seeks, the voiding of his conviction, is apparent.
          Finally, we conclude that Christian failed to show that
the offense charged was one of which the sentencing court
manifestly had no jurisdiction. Even assuming that a deficient
charge is jurisdictional,6 Christian failed to show that his

     6
      In State v. Cummings, 101 Hawai#i 139, 142-43, 63 P.3d
1109, 1112-13 (2003), the Hawai#i Supreme Court concluded that a
charge that failed to adequately allege an essential element
contained "a substantive jurisdictional defect." We note that a
number of federal and state courts "have abandoned the view that
an insufficient charge constitutes a jurisdictional defect."
State v. Apollonio, 130 Hawai#i 353, ---, 311 P.3d 676, 691 & n.5
                                                    (continued...)

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charge was so deficient that the trial court manifestly had no
jurisdiction. As noted, the Hawai#i Supreme Court stated in
Ruggiero that a charge, which was substantively the same as
Christian's charge, could "reasonably be construed to charge the
crime of [OVUII] as a first offense[.]" That statement, combined
with the liberal construction standard applicable where a
defendant fails to challenge the sufficiency of his or her
charge in the trial court and the heightened interest in finality
where the charge is challenged for the first time on collateral
review, convinces us that Christian's charge was not so deficient
that the trial court manifestly lacked jurisdiction.
                            CONCLUSION
          For the foregoing reasons, we affirm the District
Court's Order Denying Rule 40 Petition.


On the briefs:

Daniel G. Hempey
(Hempey & Meyers LLP)
for Petitioner-Appellant

Tracy Murakami
Deputy Prosecuting Attorney
County of Kaua#i
for Respondent-Appellee




     6
      (...continued)
(2013) (Recktenwald, C.J., concurring and dissenting) (citing
cases). Moreover, in Wheeler, the Hawai#i Supreme Court did not
characterize the failure to allege the public-road element as a
jurisdictional defect, and other recent supreme court decisions
have indicated some uncertainty over whether defects in a charge
should be viewed as jurisdictional. See State v. Nesmith, 127
Hawai#i 48, 66, 276 P.3d 617, 635 (2012) (Acoba, J. concurring
and dissenting) (describing majority opinion); Apollonio, 130
Hawai#i at ---, 311 P.3d at 688-91 (Recktenwald, C.J., concurring
and dissenting). In any event, Cummings involved a charge that
was objected to as insufficient during trial and was challenged
as insufficient on direct appeal, and Cummings therefore did not
address the issue raised here of the challenge to the sufficiency
of a charge raised for the first time on collateral attack.

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