Opinion
No. CAAP–14–0001041.
04-26-2016
STATE of Hawai‘i, Plaintiff–Appellee, v. Lance M. NAKASONE, Defendant–Appellant.
Reiko A. Bryant, Deputy Public Defender, on the briefs, for Defendant–Appellant. James M. Anderson, Deputy Prosecuting Attorney, City and County of Honolulu, on the briefs, for Plaintiff–Appellee.
Reiko A. Bryant, Deputy Public Defender, on the briefs, for Defendant–Appellant.
James M. Anderson, Deputy Prosecuting Attorney, City and County of Honolulu, on the briefs, for Plaintiff–Appellee.
NAKAMURA, C.J., and REIFURTH and GINOZA, JJ.
SUMMARY DISPOSITION ORDER
Defendant–Appellant Lance M. Nakasone (Nakasone) was found guilty, after a bench trial, of operating a vehicle under the influence of an intoxicant (OVUII) by the District Court of the First Circuit (District Court). The District Court also found that Nakasone committed the traffic infraction of speeding. Nakasone appeals from the Judgment on his OVUII conviction and sentence, which was entered by the District Court on July 14, 2014.
The Honorable David W. Lo presided.
On appeal, Nakasone contends that his OVUII conviction should be vacated because: (1) the District Court failed to properly advise him of his right to testify pursuant to State v. Lewis, 94 Hawai‘i 292, 12 P.3d 1233 (2000), and Tachibana v. State, 79 Hawai‘i 226, 900 P.2d 1293 (1995) ; and (2) the District Court's colloquy regarding trial stipulations was defective under State v. Murray, 116 Hawai‘i 3, 169 P.3d 955 (2007).
The District Court entered separate judgments on Nakasone's OVUII conviction and his traffic infraction for speeding. Nakasone did not appeal from the judgment entered on his speeding infraction. Accordingly, the District Court's adjudication of Nakasone's speeding infraction is not before this court, and we do not address, and Nakasone is not entitled to relief on, his claim that his “speeding infraction judgment must be vacated.”
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We conclude that the District Court erred in failing to properly advise Nakasone of his rights as required by Tachibana. In particular, the District Court failed to advise Nakasone that if he wanted to testify, no one could prevent him from doing so. See Tachibana, 79 Hawai‘i at 236 n. 7, 900 P.2d at 1303 n. 7. Nakasone did not testify and we cannot say that the District Court's error was harmless. See State v. Hoang, 94 Hawai‘i 271, 279, 12 P.3d 371, 379 (App.2000).
In light of our resolution of Nakasone's Tachibana claim, we need not address the other arguments he raises on appeal. We vacate the District Court's Judgment and remand the case for a new trial on the OVUII charge.