Schwartz v. State.Schwartz v. State.
Lead Opinion
I. INTRODUCTION
Sandra Schwartz applied for a writ of cer-tiorari from the judgment on appeal of the Intermediate Court of Appeals to determine whether omission of an element of a charged offense renders the trial court without subject-matter jurisdiction over the case. We find no deficiency of jurisdiction and affirm the judgment on appeal, but for the reasons stated herein.
II. BACKGROUND
On February 20, 2008, the State of Hawañ (State) filed a two-count criminal traffic complaint against Sandra Schwartz (Schwartz) in the District Court of the Second Circuit (district court). Count One alleged commission of the offense of Operating a Vehicle Under the Influence of an Intoxicant (OVUII), in violation of Hawai'i Revised Statutes (HRS) § 291E-61(a) (2007).
That on or about the 26th day of January, 2008, in the Division of Lahaina, County of Maui, State of Hawañ, SANDRA KAY SCHWARTZ did operate or assume actual physical control of a vehicle while under the influence of an intoxicant meaning that she was under the influence of alcohol in an amount sufficient to impair her normal mental faculties or ability to care for herself and guard against casualty, thereby committing the offense of Operating a Vehicle Under the Influence of an Intoxicant in violation of Section 291E-61(a) of the Hawaii Revised Statutes.
The complaint did not allege that the offense took place on a public way, street, road, or highway.
On April 2, 2008, Schwartz pleaded guilty to the OVUII charge.
Approximately two years later, this court held that operation of a vehicle on “a public way, street, road, or highway” (public road) is an attendant circumstance of the offense of OVUII, and therefore the public road circumstance is an element of the offense that must be stated in the charge. State v. Wheeler,
Based on Wheeler, Schwartz filed a petition to vacate and set aside the judgment under Hawai'i Rules of Penal Procedure (HRPP) Rule 40 (Rule 40 petition). In her Rule 40 petition, Schwartz raised a single issue: the “complaint failed to allege an essential element of OVUII,” and “[ajccordingly, [cjount [o]ne of the complaint ... was fatally defective, thereby conferring no subject matter[ ] jurisdiction to the trial court.” (Emphasis added). Schwartz argued that as a consequence of the court’s lack of jurisdiction, the judgment as to the OVUII charge “is null and void as a matter of law.” Schwartz did not contend that her plea was not made voluntarily and intelligently nor assert any other reason that her plea should be considered invalid.
The State responded with the following arguments: Schwartz waived her jurisdictional argument by failing to raise it on direct appeal; even if she had not waived the argument, Wheeler does not apply retroactively to final judgments no longer pending at the time Wheeler was decided; the complaint reasonably charged Schwartz with OVUII; and she was not prejudiced by the omission of the public-road element in the OVUII charge.
In its written order denying the Rule 40 petition, the district court concluded that Wheeler “created a new constitutional rule of criminal procedure.”
Schwartz timely appealed to the Intermediate Court of Appeals (ICA). Before the ICA, Schwartz renewed her argument that the district court lacked jurisdiction to adjudicate the crime for which she was charged and also challenged the district court’s conclusion that Wheeler could not be applied retroactively to challenge a final judgment.
In response, the State argued the following: the district court correctly found that Wheeler did not have retroactive application; under the Motta/Wells liberal construction standard,
The ICA affirmed the district court’s order denying Schwartz’s Rule 40 petition in a summary disposition order, relying on Christian v. State,
In her application for writ of certiorari (Application) to this court, Schwartz presents the threshold question of whether the failure of a charging instrument to allege an element of an offense is a jurisdictional defect that “fail[s] to confer subject-matter jurisdiction to the district court.” Schwartz also presents two other questions: whether Wheeler applies retroactively to cases on collateral review, and whether “a defective charge under Wheeler, even if properly characterized as a jurisdictional defect, cannot be retroactively applied on collateral review.”
III. STANDARD OF REVIEW
The denial of a Rule 40 petition based on the district court’s conclusions of law is reviewed de novo. Coulter v. State,
IV. DISCUSSION
In 2009, this court held that the fact that the offense of OVUII took place on a public road was an element of an OVUII charge. Wheeler,
A. Jurisdiction of the district court is conferred by statute
Jurisdiction is defined as “the power and authority on the part of the court to hear and judicially determine and dispose of the cause pending before it.” State v. Villados,
“Jurisdiction of the offense charged and of the person of the accused is a fundamental and indispensable prerequisite to a valid prosecution.”
Lack of subject-matter jurisdiction means that a court is without power to decide the merits of a case.
Thus, subject-matter jurisdiction is fundamental to a court’s power to act on the merits of a case from the outset of the action; it may be challenged at any time, but jurisdiction does not vacillate during the course of a case depending on the particulars of the matter as it develops.
1. Criminal jurisdiction of the district courts
The criminal jurisdiction of our courts originates in our constitution and is defined by the legislature.
The judicial power of the State shall be vested in one supreme court, one intermediate appellate court, circuit courts, district courts and in such other courts as the legislature may from time to time establish. The several courts shall have original and appellate jurisdiction as provided by law....
Haw. Const, art. VI, § 1 (emphasis added). In accordance with the constitution, the legislature has established the criminal jurisdictional parameters of the circuit courts and the district courts by statute. See HRS § 603-21.5 (prescribing the jurisdiction of the circuit courts as including “[cjriminal offenses cognizable under the law of the State, committed within their respective circuits”); HRS § 604-8 (setting forth the narrower criminal jurisdiction of the district courts).
HRS chapter 604 defines the criminal jurisdiction of the district courts.
In addition to defining district court criminal jurisdiction by the penalties that may be imposed for the offense, the legislature specifies that the district comets have jurisdiction of all criminal offenses “cognizable” under state law that occur within their respective circuits, subject to the penalties limitations set forth in HRS § 604-8: “The several district courts shall have jurisdiction, except as otherwise provided, of all criminal offenses cognizable under the laws of the State, committed within their respective circuits or transferred to them for trial by change of venue from some other district court.” HRS § 604-11.5 (1993) (emphasis added); see also HRS § 603-21.5 (providing that the circuit courts have jurisdiction of criminal offenses “cognizable under the laws of the State” (emphasis added)).
Therefore, the criminal jurisdiction of the district courts is defined and limited by grant of the legislature. As defined by HRS Chapter 604, the jurisdiction of the district courts encompasses crimes established by law that are punishable by fine or by fine and imprisonment of not more than a year, and that occur within the court’s respective circuit or that are properly transferred by a change of venue. If the requirements of HRS Chapter 604 are satisfied, jurisdiction of the district court is invoked by the charging instrument.
2. The OVUII charge invoked the jurisdiction of the district court
The complaint charged Schwartz with OVUII under HRS § 291E-61(a).
That on or about the 26th day of January, 2008, in the Division of Lahaina, County of Maui, State of Hawaii, SANDRA KAY SCHWARTZ did operate or assume actual physical control of a vehicle while under the influence of an intoxicant meaning that she was under the influence of alcohol in an amount sufficient to impair her normal mental faculties or ability to care for herself and guard against casualty, thereby committing the offense of Operating a Vehicle Under the Influence of an Intoxicant in violation of Section 291E-61 (a) of the Hawaii Revised Statutes.
The charge indicated the location and date of the offense, the defendant, and the statute that Schwartz allegedly violated. The charged OVUII offense is “known” and recognized as a crime under HRS § 291E-61; the offense was punishable by a fine and by imprisonment not exceeding one year; and the offense was alleged to have occurred in Láhainá, which is within the Second Circuit. The required components of HRS §§ 604-8 and 604-11.5 were thus met. Consequently, the district court had subject-matter jurisdiction over the January 26, 2008 OVUII charge; that is, the district comí had the power to hear and judicially dispose of the OVUII charge brought against Schwartz.
Count One also set forth the elements of the crime as defined by HRS § 291E-61(a)(1), but it did not state that the offense took place on a public road. Thus, the
3. Failure to charge an element does not deprive a court of subject-matter jurisdiction
This court has implicitly rejected the proposition that a charging instrument that fails to allege an element or the requisite mens rea of an otherwise cognizable crime renders the trial court without criminal jurisdiction. In State v. Davis,
We held that an appellate court is required to address a defendant’s expressed claim of insufficiency of the evidence before remanding a case for dismissal based on a defective charge. Id. at 120,
The primary holding of Davis—that the appellate court must consider the sufficiency of the evidence when it is raised on appeal prior to remanding a case for dismissal as a result of a defective charge—is incompatible with treating a defective charge as depriving the court of the power to hear the case.
It is axiomatic that if a lower court is found to have lacked jurisdiction, we have jurisdiction on appeal, not of the merits, but for the purpose of correcting an error in jurisdiction. If an insufficient charge constituted a jurisdictional defect, then this court could not evaluate whether sufficient evidence existed before the trial court inasmuch as it would not have jurisdiction over the merits of the case.
Id. at 123 n. 2,
4. Prior decisions are generally consistent with Davis
This court’s prior decisions are generally consistent with a rule that a charging instrument that fails to allege either the mens rea or an element of a crime, while potentially a significant violation of the defendant’s right to due process, does not deprive the court of its power to adjudicate a crime over which the legislature has granted the court jurisdiction.
In State v. Elliott,
Citing Jendrusch, Elliott states that “the failure to allege an essential element of an offense ma[kes] a charge ‘fatally defective,’ ” id., and “constitute^] a denial of due process.” id. (quoting Jendrusch,
Accordingly, the case was remanded for entry of conviction of assault in the third degree and for dismissal of the resisting arrest charge. Id. If the defective charge had deprived the trial court of its power to adjudicate the assault offense, there would have been no basis on which this court could direct the trial court to enter conviction for the lesser included offense—the conviction for assault against a police officer would simply have been a nullity and the court would have vacated the judgment and remanded the case for dismissal. Therefore, as Elliott addressed the merits of the assault charge and examined relevant facts of the case, it is consistent with the rule that a charge, defective for failure to allege an element of an offense or a requisite mens rea, does not deprive the court of subject-matter jurisdiction conferred by statute.
In State v. Israel,
In State v. Sprattling,
In State v. Nesmith,
As is significant in the current context, Nesmith did not describe the failure to allege the mens rea as a defect that deprived the court of its subject-matter jurisdiction. Instead,
Similarly, in State v. Apollonio,
While the majority of our cases have not treated a charge that omits an element or the requisite mens rea as a defect that eliminates a court’s subject-matter jurisdiction, two cases have characterized such defects as jurisdictional flaws. These cases state that the defective charge is a violation of due process and deprives the court of “jurisdiction.” However, both cases appear not to have fully applied a subject-matter jurisdiction analysis as reflected in the disposition or other rul-mgs rendered in those cases. See Adams,
In State v. Cummings,
The disposition in Cummings, however, indicates that the case was decided on its merits. In regard to the defective charge, the Cummings court reversed the conviction and sentence. Id. at 141,
However, Walker also determined that lack of jurisdiction over the habitual offense could not be “cured” by remand to the lower court to enter judgment under a lesser included OVUII offense because the charge for the habitual offense failed to allege the pub-lie-road element that an OVUII charge would have required. Id. at 492,
Further, the Walker opinion went on to analyze the defendant’s argument that statements to a police officer and the results of a field sobriety test should have been suppressed.
As treatment of the merits of a ease by a trial or appellate court is inconsistent with a
B. Under federal law, an omission of an element from a charge does not deprive the court of jurisdiction
Recently decided federal law is consistent with the decisions of this court as reflected by Jendrusch and subsequent cases such as Nesmith, Apollonio, and Davis.
In United States v. Cotton,
The Supreme Court revei’sed, expressly overruling its decision in Ex parte Bain,
To explain the difference between a “defect” that might deprive a court of subject-matter jurisdiction and one that would not, the Cotton Court cited Lamar v. United States,
A decision that a patent is bad, either on the facts or on the law, is as binding as one that it is good. And nothing can be clearer than that the district court, which has jurisdiction of all crimes cognizable under the authority of the United States, acts equally within its jurisdiction whether it decides a man to be guilty or innocent under the criminal law, and whether its decision is right or wrong. The objection that the indictment does not charge a crime against the United States goes only to the merits of the case.
Id. at 64-65 [
Similarly, in United States v. Brown,
The district court’s power over [the] case did not vanish simply because the indictment omitted one element of the charged offense. The omission of an element may render the indictment insufficient, but it does not strip the district court of jurisdiction over the case.
So long as the indictment charges the defendant with violating a valid federal statute as enacted in the United States Code, it alleges an “offense against the laws of the United States” and, thereby, invokes the district court’s subject-matter jurisdiction. The omission of an element of that offense does not mean that the indictment fails to do so; it means only that the indictment is missing an “allegation requisite to liability.” This may allow the defendant to argue before a guilty plea that the indictment is insufficient and should be dismissed—but it does not deprive the district court of jurisdiction to act over the indictment or to accept a guilty plea.
Id. at 1353-54 (emphases added) (citations omitted) (quoting Alikhani v. United States,
C. The omission of the public-road element from the OVUII charge did not eliminate subject-matter jurisdiction
Schwartz has argued that the trial court lacked jurisdiction over the OVUII offense because the charging instrument failed to allege an essential element of the offense. Based on the holdings of this court in Jendrusch through Nesmith and Davis, it
D. Analysis in Christian v. State is flawed
Christian v. State,
The ICA affirmed the denial on the grounds that although Wheeler created a new rule, the rule did not apply retroactively. Id. at 160,
Additionally, the ICA held that even if the new rule did apply retroactively, the defendant in Christian could not demonstrate exceptional circumstances to overcome a “heightened interest in finality that attaches to cases on collateral review.” Id. at 156,
1. Guiding Principles in the Creation of New Rules
“[W]hen questions of state law are at issue, state courts generally have the authority to determine the retroactivity of their own decisions.” State v. Garcia,
In Jess, this court considered the continued viability of the intrinsic/extrinsic distinction between facts that must be alleged in charging an individual with a crime. Jess,
This court, in Jess, held that “the intrinsic/extrinsic distinction has lost its viability to the extent that it governs charging procedure and ... decline to follow it any further.” Id. at 398,
Finding that the rule it announced was a new rule because it expressly overruled cases that distinguished between extrinsic and intrinsic facts when charging an individual with a crime, the Jess court then considered whether to accord the new rule with retroactive effect. Id. at 401,
Another classic situation in which this court establishes a new rule is when it announces a new principle of constitutional law, such as one applying to criminal prosecutions. In Tachibana v. State, for example, we held that under the Hawai'i Constitution, “trial courts must advise criminal defendants of their right to testify and must obtain an on-the-record waiver of that right in every case in which the defendant does not testify.”
In Garcia, we stated that “Tauiliili was not a departure from precedent but, rather, confirmed the law as it existed prior to that decision.” Id. at 443,
Finally, we have also held that where this court merely clarifies an existing legal principle, a new rule is not created. See State v. Ketchum,
2. Wheeler did not announce a new rule because it did not overrule Ruggiero or Kekuewa
The ICA’s decision in Christian is predicated on its conclusion that this court implicitly ruled, in Ruggiero and Kekuewa, that a charge omitting the public-road element can nonetheless be reasonably construed to allege OVUII under HRS § 291E-61(a). Christian,
In Wheeler, the State argued that Ruggie-ro and Kekuewa established precedent that an OVUII charge lacking the public-road element is not deficient. Wheeler,
Ruggiero and Kekuewa focused on whether a charge that failed to adequately allege that the defendant had a prior OVUII conviction within the past five years was nevertheless sufficient to charge a first-offense OVUII. Neither defendant raised the issue of whether the proscribed conduct must take place “upon a public way, street, road, or highway” and, if so, whether it had been adequately alleged in the charge.
Id. at 399,
As we recognized in Wheeler, our decisions in Ruggiero and Kekuewa did not hold that a charge accusing an individual of OVUII, in violation of HRS § 291E-61(a), is sufficient without the public-road element. The fact that this court in Ruggiero and Kekuewa did not address the public-road element was not equivalent to a holding that it was not a required element of OVUII; it meant only that the issues challenged in those cases provided neither a reason nor the necessity for this court to consider this element. See id. at 396,
Accordingly, our conclusion in Wheeler—that “HRS § 291E-1 [requires] that the defendant’s conduct occur 'upon a public way, street, road, or highway’ ”—was not a new rule, see Wheeler,
3. Wheeler Engaged in Statutory Interpretation to Effectuate a Settled Constitutional Principle
Wheeler is best understood as a case applying the settled constitutional requirement that “an ‘accusation must sufficiently allege all of the essential elements of the offense charged.’ ” Id. (quoting Merino,
Using principles of statutory construction, we concluded in Wheeler that “HRS § 291E-1 establishes an attendant circumstance of the offense of OVUII, i.e., that the defendant’s conduct occur ‘upon a public way, street, road, or highway.’” Id. at 392,
Against this foregoing background, it cannot be said that Wheeler created a new rule. For one, Wheeler merely applied the constitutionally settled principle that all elements of an offense must be alleged in order for the charging instrument to be legally sufficient.
It is true that Wheeler was the first time that we announced the necessity of alleging the public-road element when the State charges an individual with OVUII. But the fact that it was an addition to our jurisprudence does not mean it was “new” under principles governing the creation of a new rule. Wheeler is similar to Tauiliili inasmuch as it interpreted HRS § 291E-1 to definitively and authoritatively explain what that statute always meant (but was left unsaid) since its enactment, and Wheeler did not change or modify the requirements or the meaning of HRS § 291E-1. See Rivers,
The concurrence contends that Wheeler created a new rule “because it held that the State’s routine charging practice was unconstitutional despite this court's contrary directives in Ruggiero and Kekuewa.”
It bears repeating that this Court clarified in Wheeler that “Ruggiero and Kekuewa focused on whether a charge that failed to adequately allege that the defendant had a prior OVUII conviction within the past five years was nevertheless sufficient to charge a first-offense OVUII.” Wheeler,
The dissent’s suggestion—that this court’s silence in Ruggiero and Kekuewa on the issue directly presented for the first time in Wheeler was an implicit endorsement of the validity of the practice of not charging the public-road element—artificially extracts a holding from what was unaddressed. This practice was soundly rejected in Wheeler, see id. (rejecting the State’s contention that this Court had already decided in Ruggiero and Kekuewa that a charge omitting the public-road element is legally sufficient), and is of insignificant analytical value, see Texas v. Cobb,
Just because this Court has not explicitly and affirmatively rejected a legal proposition in no way means that it has effectively approved of it, especially given the fact that prudential rules limit this Court to consideration of issues presented by the peculiarities of a particular case and the issues raised by a party. See Kapuwai v. City & Cnty. of Honolulu, Dep’t of Parks & Recreation,
Additionally, the concurrence’s analogy of Wheeler to Payton v. New York,
Contrary to the concurrence’s assertion that Johnson found a new rule in the primary holding of Payton, a closer reading of Johnson reveals that this is not accurate. The question of retroactivity in Johnson was not predicated on whether the Payton rule was new. What the U.S. Supreme Court did was to identify three classes of cases in which the question of retroactivity had been conclusively decided by Supreme Court precedents. Johnson,
The concurrence’s reasoning behind its assertion that Payton announced a new rule appears to be based on the Supreme Court’s finding that Payton “did not simply apply settled precedent” and, therefore, was not a preexisting rule. Johnson,
The concurrence additionally concludes that Wheeler should not be applied to cases that have become final before Wheeler was announced. Concurrence at 291,
Finally, the concurrence maintains that our decision on the issue of whether Wheeler applies retrospectively is dictum because “it has no impact on [our] ultimate conclusion that Schwartz waived her constitutional challenges by pleading guilty.” Dissent at 289,
an obiter dictum is a remark made or opinion expressed by a judge, in his decision upon a cause, by the way—that is, incidentally or collaterally and not directly upon the question before the court; or is any statement of law enunciated by the judge or court merely by way of illustration, argument, analogy, or suggestion.
State v. Hussein,
Based on the foregoing, the ICA’s holding in Christian that Wheeler announced
4. Adoption of an “exceptional circumstances” test for collateral review was unwarranted
The ICA in Christian alternatively concluded that “[e]ven if the asserted deficiency in [the] charge is properly characterized as a jurisdictional defect, [it] would not require applying the Wheeler rule retroactively to [the defendant’s] collateral attack of his conviction” because of an “overriding interest in finality” that distinguishes collateral review from direct review. Christian,
Although determining that the “new rule” had limited retroactive effect and that the defendant’s HRPP Rule 40 petition was properly denied, the ICA observed that “[t]he Hawai‘i Supreme Court ... has not specifically addressed how a challenge to the sufficiency of a charge raised for the first time on collateral review should be evaluated.” Id. at 163,
However, Wheeler did not establish a new rule, and the trial court in this case did not lack jurisdiction because of the omission of the public-road element from the OVUII charge brought against Schwartz. Additionally, the adoption of an “exceptional circumstances” test that must be satisfied by defendants seeking to challenge the sufficiency of charging instruments on collateral review was unwarranted in light of the various alternative bases advanced by the ICA to support its ruling, and further, the test is not in accordance with our law.
E. Resolution of the Application
We resolve as follows the threshold question presented in Schwartz’s Application: the failure of a charging instrument to allege an element of an offense does not constitute a jurisdictional defect that fails to confer subject-matter jurisdiction to the district court. Secondly, we conclude that Wheeler did not establish a new rule; thus, Schwartz’s contention pertaining to the retroactive applicability of the new rule to cases on collateral review is inapposite. Schwartz’s third question, whether “a defective charge under Wheeler, even if properly characterized as a jurisdictional defect cannot be retroactively applied on collateral review,” is rendered moot by our response to the threshold question.
Accordingly, Schwartz’s Rule 40 petition was properly denied as the district court had jurisdiction to accept her plea to the OVUII charge and enter judgment.
V. CONCLUSION
In accordance with the prior decisions of this court, the criminal jurisdiction of the district court is provided by HRS Chapter 604; here, the district court had jurisdiction over the OVUII charge alleged against Schwartz by satisfaction of the requirements set forth in that chapter. Subject-matter jurisdiction is not abrogated by a charging instrument that fails to allege a culpable state of mind or a statutory element defining the offense; thus, the fact that the OVUII charge failed to allege an element of the offense did not extinguish the criminal jurisdiction of the district court.
Based on the foregoing, we overrule Cummings and Walker insofar as the holdings of those decisions indicate that a charge, information, or indictment that fails to allege either the requisite mental state or an element of the charged offense deprives a trial court of subject-matter jurisdiction. In addition, as explained, the decision in Christian is also overruled.
The denial of Schwartz’s Rule 40 petition is therefore affirmed, but for the reasons set forth in this opinion.
Notes
. HRS § 291E-61(a) provides, in relevant part as follows:
(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....
. Count Two alleged Reckless Driving of Vehicle in violation of HRS § 291-2 (2007). The charge read as follows:
That on or about the 26th day of January, 2008, in the Division of Lahaina, County of Maui, State of Hawaii, SANDRA KAY SCHWARTZ did operate a motor vehicle recklessly in disregard of the safety of persons or property, thereby committing the offense of Reckless Driving of Vehicle in violation of Section 291-2 of the Hawaii Revised Statutes.
Court minutes reflect that Count Two was amended to "Lack of Due Care,” in violation of Maui County Code § 10.52.010.
.The Honorable Rhonda I.L. Loo presided.
.The district court also accepted Schwartz's "admittance” to the Lack of Due Care charge.
The district court imposed the following sentence: Count One—$300 fine, $30 criminal injury fee, $100 driver's education fee, $7 driver education fee, $25 neurotrauma fee, $250 drug demand reduction fee, and 90-day license suspension; Count Two—$100 fine, and $7 driver's education fee.
. The Honorable Kelsey T. Kawano presided.
. See State v. Motta,
.Jurisdiction over the person of the accused exists, inter alia, when the person's conduct or the conduct of another for which the person is legally accountable occurs within this State or the result constituting an element of the offense occurs within this State. HRS § 701—106(l)(a); see also HRS § 701-106(l)(b)-(f). Schwartz has not argued that personal jurisdiction was lacking in this case.
. See, e.g., HRS § 583A-202 (2002) (describing the exclusive, continuing jurisdiction of a court over a child-custody determination until two alternative events transpire).
. "Subject-matter jurisdiction" is used in this opinion when generally referring to "the power and authority on the part of the court to hear and judicially determine and dispose of the cause pending before it.” State v. Villados, 55 Haw. 394, 396,
. "An offense defined by this Code or by any other statute of this State for which a sentence of imprisonment is authorized constitutes a crime.” HRS § 701-107.
. See also Haw. Const, art. I, § 14 ("In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial by an impartial jury of the district wherein the crime shall have been committed, which district shall have been previously ascertained by law ...." (emphasis added)).
. The district court's criminal jurisdiction over a case terminates when a defendant exercises a right to jury trial. HRS § 604-8(a); see infra note 15.
. "Jurisdiction is conferred upon the district courts to try all cases arising from the violation of ordinances in force in the counties and to impose the penalties in such ordinances prescribed for such offenses in like manner as their original jurisdiction is exercised under the general law." HRS § 604-11 (1993).
. "Cognizable” has been applied by the United States Supreme Court in addressing a court's jurisdiction. In Lamar v. United States,
. At the time of Schwartz's offense, HRS § 291E-61 provided the following as a sentence for a first offense: fourteen hours of a "substance abuse rehabilitation program,” a 90-day suspension of license, and a $25 neurotrauma special fund surcharge. HRS § 291E-61 (2007). In addition, the court could impose one or more of the following: 72 hours of community service, "not less than forty-eight hours and not more than five days of imprisonment,” and a “fine of not less than $150 but not more than $1,000.” Id. Based on the maximum potential sentence, Schwartz did not have the right to a jury trial. See State v. Nakata,
.In. Yoshimura, the court held that a grand jury indictment was
sufficient if the information clearly and distinctly sets forth the offense charged in ordinary and concise language, in such manner as to enable a person of common understanding to know what is intended, and with such a degree of certainty as to enable the court to pronounce judgment of conviction according to the right of the case.
Yoshimura,
. But see Sprattling,
. HRS § 291E-61(a) contains four subsections delineating forms of conduct or circumstances that comprise the offense of OVUII: (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; (2) while under the influence of any drug that impairs the person's ability to operate the vehicle in a careful and prudent manner; (3) with .08 or more grams of alcohol per two hundred ten liters of breath; or (4) with .08 or more grams of alcohol per one hundred milliliters or cubic centimeters of blood. HRS § 291E-61(a). Conviction of the single offense of OVUII under HRS § 291E-61 (a) can be based on any, or any combination, of the subsections. Nesmith,
. The majority held that the insufficiency of the charge required that it be dismissed without prejudice. Id. at 358,
The minority would have found no error on the insufficient charge issue, but concurred in the result that remanded the case for a new trial based on other grounds reached by the majority. Id. at 364,
. Cummings cited to Territory v. Gora,
. Walker found that "where there is a wealth of overwhelming and compelling evidence tending to show the defendant guilty beyond a reasonable doubt, ... errors in the admission or exclusion of evidence are deemed harmless." Id. at 493,
. It is noted that the statement in State v. Morin,
Accordingly, Morin is more appropriately construed to mean that a defendant, who has pled guilty or nolo contendere, is not barred from challenging the sufficiency of the charging instrument if the alleged defect goes to the subject-matter jurisdiction of the court. See infra note 42 for a non-exhaustive list of defects in a charging instrument that are jurisdictional in nature.
. The Court noted that the imposition of the enhanced sentences was in violation of Apprendi v. New Jersey,
. The historical reason for the expansive view of jurisdiction was explained by the Cotton Court, which characterized Ex parte Bain as "a product of an era in which this Court's authority to review criminal convictions was greatly circumscribed.” Cotton,
. A charging instrument may be so deficient that a court does not have jurisdiction over the case; for instance, if the charging document was never filed. See State v. Kaulia,
. Christian was decided prior to this court’s decision in Davis.
. Another case in which a new rule was created by overruling precedent is State v. Ikezawa,
. The U.S. Supreme Court has also identified the following instances in which it has created "an entirely new and unanticipated principle of law”: where the (1) "ruling caused such an abrupt and fundamental shift in doctrine as to constitute an entirely new rule which in effect replaced an older one”; (2) "disapproves a practice this Court arguably has sanctioned in prior cases;” (3) "or overturns a longstanding and widespread practice to which this Court has not spoken, but which a near-unanimous body of lower court authority has expressly approved.” United States v. Johnson,
. Additionally, the Wheeler court reasoned that "Ruggiero and Kekuewa are factually distinguishable from the circumstances of [Wheeler]." Wheeler,
. Nonetheless, according to the concurrence, "Walker clarified that Wheeler did, in fact, render Ruggiero and Kekuewa unreliable for the proposition that a defendant who is not given fair notice of the public roads element may ... be convicted of OVUII as a first offense.” Concurrence at 290,
Generally, a crime or offense is governed by the law existing at the time it was committed. See State v. Martin,
The underlying conduct that comprised the charged offense in Wheeler occurred on May 31, 2007. Wheeler,
.This court has previously applied Wheeler retroactively in cases in which an OVUII charge lacked the public-road element without discussion of whether Wheeler announced a new rule. See Garcia,
. The concurrence asserts that Wheeler created a new rule because "it imposed an obligation on the State that was not compelled by prior law.” Concurrence at 288-89,
It is equally inaccurate to say that "Wheeler broke new ground by establishing a constitutional rule.” Concurrence at 287,
. See also United States v. Rivera-Nevarez,
. To the extent the concurrence’s conclusion that there are "four categories of cases that delineate when a new rule is established" could be read as enumerating an exhaustive list of categories, concurrence at 285,
. For this proposition, the concurrence relies upon Johnson,
Further, if Wheeler were indeed a case that disapproved of a previously sanctioned practice, then the concurrence, consistent with what Johnson directs, should find that Wheeler is fully non-retroactive, see id. at 549-51,
. The concurrence’s assertion is analogous to the argument that the denial by the U.S. Supreme Court of certiorari is an implicit endorsement of the holding and reasoning of the case for which certiorari review was sought. But it has long been settled that "denial of a writ of certio-rari imports no expression of opinion upon the merits of the case.” United States v. Carver, 260, U.S. 482, 490,
. These two classes are as follows: (1) "when a decision of this Court merely has applied settled precedents to new and different factual situations,” it applies retrospectively; and (2) "full retroactivity [i]s a necessary adjunct to a ruling that a trial court lacked authority to convict or punish a criminal defendant in the first place.” Johnson,
. The concurrence argues that "the Supreme Court had to have found that Payton was a new rule because it applied Justice Harlan’s test." Concurrence at 284 n. 2,
Thus, compared to Justice Harlan’s test—"that all 'new’ rules of constitutional law must, at a minimum, be applied to all those cases which are still subject to direct review by this Court at the time the new’ decision is handed down,” Desist,
. The concurrence agrees that Payton did not announce an entirely new and unanticipated principle of law, but it asserts that the rule in Payton was new because it fits "a second separate category of cases”: those that break new ground. Concurrence at 284 n. 2,
. It bears noting that the issue in Teague was whether to accord retrospectivity to the constitutional requirement that jurors must be drawn from a fair cross section of the community, a requirement that was not in existence prior to the Supreme Court's decision in Taylor v. Louisiana,
. The concurrence's proposition is equivalent to an argument that this court's determination of whether a lower court erred is dictum when it is ultimately determined that any error is harmless. See Michael C. Dorf, Dicta and Article III, 142 U. Pa. L. Rev. 1997, 2046 (1994). However, as explained by Professor Dorf, deciding first whether the lower court erred "simply makes more sense ... before deciding whether a putative error was harmless.” Id. Analytically speaking, "until the court passes on the substantive question, it will not know exactly what the error is that it must test for harmlessness.” Id. Because the determination of whether the lower court erred is meant to further "the purpose of resolving the case,” it is not dictum. Id.
The same is true in this case. The retrospective application of Wheeler forms an essential part of the analysis for why we conclude that Schwartz is precluded from challenging the legal sufficiency of the charge. In fact, the effect of Schwartz' guilty plea upon her ability to challenge the charge becomes significant only after it is determined that Wheeler did not announce a new rule and was, therefore, applicable retrospectively. Because our conclusion on retro-spectivity is an integral part of our reasoning, it may not be seriously labeled as dictum. See Hussein,
. Where the defect in the charging instrument is one that precludes the district court from exercising criminal jurisdiction—e.g., charging an offense that is not "cognizable” under state law or an offense that was committed outside the district court's circuit, see HRS §§ 603-21.5; 604-11.5; or if the offense charged is not "punishable by fine, or by imprisonment not exceeding one year whether with or without fine,” HRS § 604-8; or if the charging instrument was never filed, see supra note 25, then the rule from Morin would not apply and a defendant may challenge such jurisdictional defects even after entry of a guilty or nolo contendere plea.
. The exceptional circumstance test, as adopted by the ICA, applies to defendants challenging the sufficiency of a charge for the first time on collateral review. However, HRPP Rule 40 does not assign any special standard for challenging a conviction based on the grounds asserted in the petition. See HRPP Rule 40. Although an HRPP Rule 40 challenge to a conviction on the grounds that the charge omitted an element has not been reviewed by this court, an HRPP Rule 40 challenge based upon a charge that reflected the alleged misconduct outside the statute of limitations has been considered, without reviewing the petition under any specialized standard. See Adams,
Adopting varying standards of review to evaluate an HRPP Rule 40 petition that would depend on the grounds alleged is an approach that this court has not previously applied and would unnecessarily complicate our law regarding post-conviction relief. Our review in this case did not employ a specialized standard. In light of our jurisprudence with regard to Rule 40 petitions, the "exceptional circumstances” standard is rejected.
. State v. Kam,
The ICA opinion in Christian concludes that the defendant "failed to show that the offense charged was one of which the sentencing court manifestly had no jurisdiction” and that "the charge was not so deficient that the trial court manifestly lacked jurisdiction.” Christian,
Concurrence Opinion
Concurring Opinion by
in which RECKTENWALD, C.J., joins
I. INTRODUCTION
I concur with the Majority’s determination that charging defects are not jurisdictional in nature and that the District Court of the Second Circuit (district court) properly denied Petitioner/Petitioner-Appellant Sandra Kay Schwartz’s (Schwartz) Hawañ Rules of Penal Procedure (HRPP) Rule 40 petition. I write separately because I believe that State v. Wheeler established a new rule that should not apply to convictions that were final when Wheeler was decided. Indeed, this court has already determined that Wheeler worked a fundamental change in Hawaii’s OVUII charging requirements.
However, in light of the Majority’s con-trai’y conclusion, I would affirm Schwartz’s conviction pursuant to HRPP Rule 40(a)(3). Specifically, I would hold that Schwartz failed to demonstrate extraordinary circumstances that would justify her failure to ehal-lenge
II. DISCUSSION
A. Retroactivity
This court has been asked to decide whether State v. Wheeler,
(1) purely prospective effect, which means that the rule is applied neither to the parties in the law-making decision nor to those others against or by whom it might be applied to conduct or events occurring before that decision;
(2) limited or “pipeline” retroactive effect, under which the rule applies to the parties in the decision and all cases that are on direct review or not yet final as of the date of the decision; or
(3) full retroactive effect, under which the rule applies both to the parties before the court and to all others by and against whom claims may be pressed.
State v. Jess,
1. New Rule Determinations
There are four categories of cases that provide guidance for determining whether a new rule has been created. First, the “paradigm” case that creates a new rule is when a court “expressly overrules a precedent upon which the contest would otherwise be decided differently and by which the parties may previously have regulated their conduct.” Id.; see, e.g., Lawrence v. Texas,
Second, “a case announces a new rule if the result was not dictated by precedent existing at the time the defendant’s conviction became final.” Teague v. Lane,
For example, in Payton v. New York,
The third category of cases are those that merely apply settled precedent to new and different factual situations. In such cases, “no real question has arisen as to whether the later decision should apply retrospectively.” Johnson,
Fourth, judicial decisions that merely engage in statutory interpretation do not typically create new rules. See, e.g., Rivers v. Roadway Express, Inc.,
In sum, there are four categories of cases that delineate when a new rule is established. First, those cases that overrule precedent or impose new obligations on the State dearly establish new rules insofar as they present a clear break from the past. See, e.g., Lawrence,
2. State v. Wheeler
The determination of whether Wheeler established a new rule requires analyzing the law in existence prior to Wheeler, the holding of Wheeler itself, and this court’s subsequent statements, in light of the preceding legal framework.
a. Pre-Wheeler Caselaw
Four aspects of the law in existence prior to Wheeler form the relevant background of that opinion; (i) charging requirements under Hawaii law, (ii) the post-conviction liberal construction standard, (iii) this court’s opinions in State v. Ruggiero,
i. Charging Requirements Under Hawaii Law
Prior to Wheeler, this court had established the overarching rule that an “accusation must sufficiently allege all of the essential elements of the offense charged,” a requirement that “obtains whether an accusation is in the nature of an oral charge, information, indictment, or complaint[.]” State v. Jendrusch,
This court has also established certain guidelines to determine whether charges framed in the language of a statute are sufficient: “Where the statute sets forth with
ii. Liberal Construction
Another well-established aspect of this court’s charging defect doctrine is the “presumption of validity” that attaches to charges that are challenged for the first time on appeal. State v. Sprattling,
With respect to whether an indictment can within reason be construed to charge a crime, we “interpret a charge as a whole, employing practical considerations and common sense.” Sprattling,
iii. Ruggiero and Kekuewa
In Ruggiero, this court held that a trial court had plainly erred when it convicted a defendant as a habitual OVUII offender in violation of Hawaii Revised Statutes (HRS) § 291E-61(a) and (b)(2) because the complaint failed to allege the essential element that the defendant had been convicted of a prior OVUII offense within the previous five years.
Similarly, in Kekuewa, this court held that an oral charge of OVUII as a second offense was fatally defective because it' failed to allege the prior conviction element.
the prosecution’s oral charge set forth the essential elements of the included offense described by HRS §§ 291E-61(a) and (b)(1) (Supp.2004). See State v. Ruggiero,114 Hawai'i 227 , 240,160 P.3d 703 , 716 (2007) (stating that a complaint mirroring only the provisions set forth in HRS § 291E-61(a)(l), and making no mention of the accused’s status as either a first-time or multiple offender, sufficiently described the first-level OVUII offense under HRS §§ 291E-61(a) and (b)(l))[.]
Id. at 426,
Ruggiero and Kelcuewa are emblematic of a trend. Prior to this courts decision in Wheeler, “the State routinely charged OVUII by tracking the offense language without alleging the public-road element.” Christian v. State,
b. State v. Wheeler
In Wheeler, this court held that the State was required to allege that the defendant operated a vehicle on a public way, street, road or highway, and that the State’s routine practice of charging OVUII in the language of the statute was constitutionally insufficient as a matter of due process.
While the Supreme Court in Hamling did not require that the component elements of the “constitutional definition” of obscenity be pleaded in an indictment, it is significant that the term “obscenity” itself provided a person of common understanding with some notice of the nature of the prohibited conduct. In contrast, “operate” has been statutorily defined in HRS § 291E-1 in a manner that does not comport with its commonly understood definition. The word “operate” has been defined as “to perform a function, or operation, or produce an effect,” Black’s Law Dictionary 1091 (6th ed. 1990), or “to perform a funetion[,] exert power or influence [or] to produce an appropriate effect[,]” Merriamr-Wébster’s Collegiate Dictionary 814 (10th ed. 1993), and does not geographically limit where the conduct must take place. The statutory definition of “operate,” however, requires that the conduct take place “upon a public way, street, road, or highway.” HRS § 291E-1. Therefore, the term “operate” as used within HRS § 291E-61 is neither “unmistakable” nor “readily comprehensible to persons of common understanding.” Merino,81 Hawai'i at 214 ,915 P.2d at 688 [.]
This court’s analysis of charges under the Hawaii constitution has focused on whether the language actually used in the charge provides fair notice to the defendant.... The use of the phrase “operate” did not provide adequate notice to Wheeler that the State was required to prove that his operation of the vehicle occurred on a public way, street, road, or highway.
Id. at 394-95,
Although this conclusion flowed naturally from precedent, the result was not “dictated” by that precedent insofar as no other case had held that an oral charge was constitutionally insufficient due to the failure to allege the public roads element. Nonetheless, our reliance on precedent was fundamental, as it always is when arriving at a judicial decision:
a judge invariably takes precedent as his starting point; he is constrained to arrive at a decision in the context of ancestral judicial experience: the given decisions or, lacking these, the given clues. Even if his search of the past yields nothing, so that he confronts a truly unprecedented case, he still arrives at a decision in the context of judicial reasoning with recognizable ties to the past; by its kinship thereto it not only establishes the unprecedented case as a precedent for the future, but integrates it into the often rewoven but always unbroken line with the past.
Traynor, supra, at 774-75.
Another important aspect of Wheeler was this court’s treatment of Ruggiero and Ke-kuewa. The State argued that those cases had established precedent that charging
c. State v. Walker
After Wheeler was decided, this court accepted certiorari in State v. Walker, “for the limited purpose of clarifying and reconciling this court’s opinions in State v. Ruggiero, and State v. Kekuewa, in light of State v. Wheeler.”
In support of the latter argument, “Walker assert[ed] that his case [was] ‘on all fours’ with State v. Ruggiero, and State v. Kekuewa.” Id. at 486,
While Walker correctly characterizes Rug-giero and Kekuewa in his Application, his argument fails to account for more recent developments in OVUII case law. Specifically, under this court’s decision in Wheeler, Walker’s HOVUII charge did not adequately allege the lesser-included offense of OVUII as a first offender pursuant to HRS §§ 291E-61(a)(l) and (b)(1). As such, it would be improper to remand this case for entry of judgment of conviction and sentencing based upon a deficient lesser-included charge.
Id. We further explained:
Walker’s Application ... requires us to clarify Ruggiero and Kekuewa in the context of Wheeler. The 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. Again, post -Wheeler, OVUII charges must now allege the attendant circumstance that the defendant operated a vehicle “on a public way, street, road, or highway.”
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Walker’s argument fails to account for Wheeler’s contribution to Hawaii’s OVUII case law.
Id. at 489-90,
d. Wheeler Established a New Rule
Wheeler is consistent with the “paradigm” new rules cases because it imposed an obligation on the State that was not compelled
Wheeler is also a “paradigm” new rule case because it held that the State’s routine charging practice was unconstitutional despite this court’s contrary directives in Rug-giero and Kekuewa. By remanding Ruggie-ro and Kekuetva for entry of judgment and resentencing based on OVUII charges that omitted the public road element, this court had provided a degree of judicial approval over the practice of charging OVUII in the language of the statute. See Ruggiero,
To the extent that Wheeler was consistent with precedent from this court, it also fits in the category of eases that establish a new rule because “the result was not dictated by precedent existing at the time the defendant’s conviction became final.” Teague,
The Majority’s conclusion that Wheeler is not a new rule is difficult to reconcile with this court’s recognition that the “current essential elements that the State must include in an OVUII charge differ from those required in 2007,” and that the difference is solely attributable to this court’s decision in Wheeler. Walker,
The Majority also argues that Wheeler did not establish a new rule because it did not overrule or modify Ruggiero and Kekuewa. Majority at 274,
Finally, as a policy matter, close cases should be resolved in favor of a determination that a new rule has been created. This is so because the threshold “new rule” inquiry simply determines whether or not the court has the authority and the responsibility to weigh the merits and demerits of retrospective effect. See State v. Peralto,
For the reasons stated herein, I would hold that Wheeler established a new rule. The Majority’s contrary conclusion is dictum in that it has no impact on the Majority’s ultimate conclusion that Schwartz waived her constitutional challenges by pleading guilty. See Pierre N. Leval, Judging Under the Constitution: Dicta About Dicta, 81 N.Y.U. L.Rev. 1249,1256 (2006) (“If the court’s judgment and the reasoning which supports it would remain unchanged, regardless of the proposition in question, that proposition plays no role in explaining why the judgment goes for the winner. It is superfluous to the decision and is dictum.”). The Majority decides this case under Morin, and thus, following a conclusion that a challenge to the sufficiency of a charge is a nonjurisdictional issue, Morin precludes Schwartz’s claim without consideration of the merits of her challenge. Therefore, resolving the question of whether Wheeler retroactively applies to the merits of Schwartz’s claim does not bear directly upon that disposition. Whether Wheeler announced a new rule or not, Schwartz’s claim would be precluded under the Majority’s application of Morin, and the Majority’s retroactivity discussion is, therefore, superfluous and dictum.
3. Retroactivity and Collateral Review
Having determined that Wheeler established a new rule, the question becomes whether that rule should apply retroactively to collateral review of convictions that became final before Wheeler was decided. This analysis must begin with an assessment of “ ‘the nature, function, and scope of the adjudicatory process in which such cases arise. The relevant frame of reference, in other words, is not the purpose of the new rule whose benefit the [defendant] seeks, but instead the purposes for which [collateral review] is made available.’” Teague,
Although HRPP Rule 40 provides an “ ‘avenue for upsetting judgments that have become otherwise final,’ ” it is “ ‘not designed as a substitute for direct review.’ ” Teague,
Application of constitutional rules not in existence at the time a conviction became final seriously undermines the principle of finality which is essential to the operation of our criminal justice system. 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. No one, not criminal defendants, not the judicial system, not society as a whole is benefitted by a judgment providing that a man shall tentatively go to jail today, but tomorrow and every day thereafter his continued incarceration shall be subject to fresh litigation.
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In many ways the application of new rules to cases on collateral review may be more intrusive than the enjoining of criminal prosecutions, for it continually forces the States to marshal resources in order to keep in prison defendants whose trials and appeals conformed to then-existing constitutional standards.
Id. at 309-10,
Based on the foregoing principles, the general rale for retroactivity on collateral review is that “new constitutional rules of criminal procedure will not be applicable to those cases which have become final before the new rules are announced.” Teague,
In this case, neither exception to the general rule applies. The first exception does not apply because Wheeler did not remove a category of private conduct from the reach of criminal prohibition. Rather, it merely imposed a new procedural requirement on the State. The second exception does not apply because Wheeler was not the kind of watershed rule of criminal procedure without which the likelihood of an accurate conviction is seriously diminished. As Christian recognized, “there is no indication that the State, the trial court, 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.”
B. HRPP Rule 40(a)(3)
Assuming arguendo that Wheeler did not establish a new rule, I would resolve this
Rule 40 proceedings shall not be available and relief thereunder shall not be granted where the issues sought to be raised have been previously ruled upon or were waived.
Except for a claim of illegal sentence, an issue is waived if the petitioner knowingly and understandingly failed to raise it and it could have been raised before the trial, at the trial, on appeal, in a habeas corpus proceeding or any other proceeding actually conducted, or in a prior proceeding actually initiated under this rule, 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.
Schwartz failed to cany the burden established by HRPP Rule 40(a)(3) in two respects. First, she did not challenge the sufficiency of the charge against her before her conviction became final. Thus, if Wheeler did not establish a new rule, as the Majority now holds, then Schwartz’s failure to allege a Wheeler defect would constitute waiver. Furthermore, if Wheeler is not a new rule, the fact that it was decided after Schwartz’s conviction became final would not constitute an “extraordinary circumstance” that would justify her failure to challenge the sufficiency of the charge before her plea. Second, Schwartz has not attempted to overcome the “rebuttable presumption that a failure to appeal a ruling or to raise an issue is a knowing and understanding failure.” If she had, for example, presented some evidence that she was not driving on a public road, then it would suggest that her failure to challenge the sufficiency of her charge was not knowing and understanding. But no such assertion has been made. Therefore, I conclude that the district court properly denied Schwartz’s HRPP Rule 40 petition pursuant to the standards enunciated in HRPP Rule 40(a)(3).
I disagree with the Majority’s exclusive reliance on State v. Morin,
III. CONCLUSION
I would affirm the district court’s denial of Schwartz’s HRPP Rule 40 petition, but for the reasons stated herein. I join with the Majority in concluding that charging defects are not jurisdictional. See State v. Apollonio,
. "Payton expressly overruled no clear past precedent of this Court ... [n]or did Payton disapprove an established practice that the Court had previously sanctioned.... [I]ts ruling rested on both long-recognized principles of Fourth Amendment law and the weight of historical authority.” Id. at 552-53,
. The Majority asserts that our reading of Johnson is inaccurate and that "the Supreme Court in fact found that Payton was not a new rule.” Majority at 284,
The Majority further asserts that the Supreme Court analyzed the retroactivity of Payton under Justice Harlan’s retroactivity test because the Supreme Court in fact found that Payton was not a new rule. Majority at 279,
. Although Loo overruled an ICA opinion that was inconsistent with case law from this court, such overruling merely reaffirmed the continued vitality of our precedent.
. As noted above, neither Ruggiero nor Kekuewa utilized the liberal construction standard to supply the public roads element of OVUII.
. The Majority asserts that ''[t]his court has previously applied Wheeler retroactively.” Majority at 275-76 n. 31,