State v. Kealoha., 414 P.3d 98

Kristopher Kealoha pled guilty (HRPP Rule 11 plea) in three consolidated Hawai‘i criminal cases in May 2014 under an agreement that the court would bind itself to concurrent terms, the longest being an "open" five-year term.
Change-of-plea forms included boilerplate listing restitution among possible penalties, but the circuit court did not orally advise Kealoha in open court that restitution could be imposed, and restitution was not discussed at the plea colloquy.
At sentencing the court imposed the agreed concurrent prison terms and also ordered restitution in two of the cases (totaling several thousand dollars); Kealoha voiced concern about ability to pay but did not move below to withdraw his plea or vacate restitution.
On appeal the ICA affirmed, relying on State v. Tuialii and treating restitution as a collateral consequence; it also reduced court-appointed appellate counsel’s requested fees to the $5,000 statutory cap.
The Hawai‘i Supreme Court granted certiorari to decide whether courts must advise defendants pre-plea that restitution may be imposed and to review the ICA’s fee reduction.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether trial courts must orally advise before accepting plea that restitution may be imposed	State: restitution may be collateral; written plea form is sufficient	Kealoha: restitution is part of the maximum penalty and must be included in the oral colloquy	Court held trial courts must orally advise and question defendants about possible restitution under HRPP Rule 11(c)(2)
Whether restitution is a direct or collateral consequence of conviction	State/ICA: restitution is collateral (Tuialii)	Kealoha: restitution is a direct consequence affecting punishment	Court held restitution is a direct consequence and overruling Tuialii to the extent it held otherwise
Whether Kealoha is entitled to relief (resentencing without restitution or plea withdrawal)	Kealoha: plea breached because restitution was not part of agreed sentence; requests resentencing or withdrawal	State: defendant failed to file timely Rule 32(d) or Rule 40 below; restitution was legally required when victims requested it	Court affirmed convictions but denied requested relief without prejudice; directed Kealoha to pursue HRPP Rule 40 (or statutory remedies) in circuit court
Whether appellate counsel was entitled to fees above statutory $5,000 cap	Counsel: work in three cases and pre-consolidation justified more than $5,000	State/ICA: cap applies; reduction appropriate	Court found ICA abused discretion and awarded $6,025.50 for appellate work before the ICA

State v. Tuialii, 121 Hawai‘i 135, 214 P.3d 1125 (Haw. App. 2009) (ICA decision treating restitution as collateral consequence, overruled in part)
State v. Krstoth, 138 Hawai‘i 268, 378 P.3d 984 (Haw. 2016) (discusses constitutional duty to ensure guilty plea is knowing and voluntary)
State v. Nguyen, 81 Hawai‘i 279, 916 P.2d 689 (Haw. 1996) (framework distinguishing direct versus collateral consequences)
State v. Gaylord, 78 Hawai‘i 127, 890 P.2d 1167 (Haw. 1995) (discusses restitution’s rehabilitative aspects and limits on using restitution alone to justify imprisonment)
Murray v. State, 63 Hawai‘i 12, 621 P.2d 334 (Haw. 1980) (legislative purposes of restitution include punishment and rehabilitation)
Santobello v. New York, 404 U.S. 257 (U.S. 1971) (due process requires state to honor plea agreements)
State v. Feliciano, 103 Hawai‘i 269, 81 P.3d 1184 (Haw. 2003) (limits on converting probation restitution to a free-standing order)
State v. Cornelio, 68 Hawai‘i 644, 727 P.2d 1125 (Haw. 1986) (trial courts must strictly adhere to HRPP Rule 11 procedures)