Opinion
No. CAAP–12–0000842.
2013-10-10
STATE of Hawai‘i, Plaintiff–Appellee, v. Samuel K. KEA, III, Defendant–Appellant.
Appeal from the Circuit Court of the First Circuit (CR. NO. 11–1–0094). Walter J. Rodby, for Defendant–Appellant. Sonja P. McCullen, Deputy Prosecuting Attorney, City & County of Honolulu, for Plaintiff–Appellee.
Appeal from the Circuit Court of the First Circuit (CR. NO. 11–1–0094).
Walter J. Rodby, for Defendant–Appellant. Sonja P. McCullen, Deputy Prosecuting Attorney, City & County of Honolulu, for Plaintiff–Appellee.
FUJISE, PRESIDING JUDGE, LEONARD and REIFURTH, JJ.
SUMMARY DISPOSITION ORDER
Defendant–Appellant Samuel K. Kea, III (“Kea”) appeals from the Judgment of Conviction and Sentence, filed on September 18, 2012, in the Circuit Court of the First Circuit (“Circuit Court”). After a hearing on Kea's Motion to Withdraw Guilty Plea (“Motion”), the Circuit Court denied the motion and convicted Kea as a young adult defendant on the counts that he initially pled guilty to: two counts of Sexual Assault in the First Degree (“Sex Assault 1”), in violation of Hawaii Revised Statutes (“HRS”) § 707–730(1)(b) (“Counts 1 and 5”); two counts of Attempted Sex Assault 1, in violation of HRS §§ 705–500 & 707–730(1)(b) (“Counts 3 and 6”); and two counts of Sexual Assault in the Third Degree, in violation of HRS § 707–732(1)(b) (“Counts 4 and 7”).
The Honorable Randal K.O. Lee presided.
.HRS § 707–730(1)(b) provides that “[a] person commits the offense of sexual assault in the first degree if ... [t]he person knowingly engages in sexual penetration with another person who is less than fourteen years old[.]” HAW.Rev.Stat. § 707–730(1)(b) (Supp.2012).
.HRS § 707–732(1)(b) provides that “[a] person commits the offense of sexual assault in the third degree if ... [t]he person knowingly subjects to sexual contact another person who is less than fourteen years old or causes such a person to have sexual contact with the person [.]” Haw.Rev.Stat. § 707–732(1)(b).
The court sentenced Kea as a youthful offender to an eight-year term of imprisonment on each of Counts 1, 3, 5, and 6; and a four-year term of imprisonment on each of Counts 4 and 7; with credit for time served. The sentences were to run concurrently with each other.
On appeal, Kea argues that the Circuit Court erred in denying his Motion, and he contests Conclusion of Law (“COL”) 21 of the September 28, 2012 “Findings of Fact and Conclusions of Law Denying Defendant's Motion to Withdraw Guilty Plea.”
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 Kea's points of error as follows:
The Circuit Court did not abuse its discretion in denying Kea's Motion. The testimony of Kea's former counsel, which the Circuit Court found to be credible, provides substantial evidence in support of COL 21. See State v. Buch, 83 Hawai‘i 308, 321, 926 P.2d 599, 612 (1996) (“[A]n appellate court will not pass upon issues dependent upon the credibility of witnesses[.]” (quoting Domingo v. State, 76 Hawai‘i 237, 242, 873 P.2d 775, 789 (1994)) (internal quotation marks omitted)). Therefore, COL 21 is not clearly erroneous and there is no “fair and just reason” to support Kea's withdrawal of his guilty plea. See State v. Merino, 81 Hawai‘i 198, 223–24, 915 P.2d 672, 697–98 (1996).
COL 21 is a mislabeled finding of fact.
Therefore,
IT IS HEREBY ORDERED that the Judgment of Conviction and Sentence, filed on September 18, 2012, in the Circuit Court of the First Circuit, is affirmed.