Lead Opinion
In his Application for Writ of Certiorari (Application), Petitioner/Defendant-Appellant Douglas Miller (Petitioner) seeks review of the judgment of the Intermediate Court of Appeals (ICA) filed on October 3, 2008, pursuant to its September 15, 2008 Summary Disposition Order (SDO)
The Application was filed by Petitioner on December 24, 2008, and accepted on February 9, 2009. This court heard oral argument on the merits on March 5, 2009.
I.
On August 6, 2007, Respondent filed a complaint against Petitioner, charging him with Abuse of a Family or Household member, under Hawai'i Revised Statutes (HRS) § 709-906 (Supp.2007).
THE COURT: ... The attorneys, during this time off the record, have been in negotiations and have come to an agreement.
Will [Respondent] please place that agreement on the record.
[PROSECUTOR]: Yes, your Honor. [Respondent] will agree to amend the charge of abuse of a family or household member to Assault in the Third Degree. And [Petitioner] will agree to plead guilty or no contest to this charge. [Petitioner] has agreed to write a letter of apologize [sic] to [the complainant]. [Petitioner] has already agreed to do one year of probation, serve 48 hours jail time, do a substance abuse assessment, participate in domestic violence intervention classes, and pay restitution to [the complainant] for the emergency visit stemming from this case.
[PETITIONER’S COUNSEL]: Is that it? Okay. And, your Honor, it’s my understanding, too, that [Petitioner] will be moving the [c]ourt for• acceptance of a [DANCP], and [Respondent] will take no position as to that motion.
THE COURT: Is that right?
[PROSECUTOR]: I will—Pll take no position, your Honor'.
(Emphases added.)
The court then had an on-the-record colloquy with Petitioner regarding the consequences of his plea agreement and found that Petitioner “voluntarily, knowingly, and intelligently
The court first heard from Respondent as to “[sentencing.” The prosecutor then stated:
Your Honor, we would ask that you follow the agreement that’s been reached. However, this case was borderline strangulation. [Petitioner] actually elbows [the complainant], kneed her in the back, punched her, choked her, put his hand over her mouth, and told her to be quiet, and then also took a pillow after that because she wouldn’t be quiet and put it over her face.
At that time, your Honor, the witness in this case, the victim, actually feared for her life. And, you know, she’s 51 years old. So is the defendant. He does not have a prior criminal record, but you know, at 51 years old, you shouldn’t be doing that to a significant loved one. And this type of beating and brutality should not be accepted in our society.
(Emphases added.)
After the prosecutor’s statement, Petitioner thanked the prosecutor for changing the charge to Assault in the Third Degree and argued that, because at 51 years of age Petitioner “doesn’t have a criminal record,” he should be granted a DANCP under HRS § 853-1 (Supp.2008).
[i]n this particular case, there is no mandatory minimum term based on bodily injury. The [c]ourt has the discretion to grant the deferral. If the court makes two findings, and one, it appears that [Petitioner] is not likely, again, to engage in a criminal course of conduct; and two, the ends of justice and the welfare of society have been properly served by the penalty as imposed by law.
(Emphasis added.) Petitioner also contended that the court’s alleged interpretation of DANCP as applying to youthful offenders is not dictated by law:
And I know the court has given, I guess, guidance that it appears that the legislature has given this type of deferral to youthful offenders. I don’t see that as a matter of law, and I ask that you use yourdiscretion where [Petitioner] has not engaged at all in any criminal conduct.
Apparently in response to Respondent’s statements concerning the assault, Petitioner continued,
I just want the court to note, while we are not minimizing his plea and apology, when Officer Katayama appeared at the scene, there was no complaint of injuries. Look for and found none.
In response to Petitioner’s comments, Respondent “elarif[ied]” on the record that
[Respondent] did have Dr. Nelson from the ER examine her, and did see—well, diagnosis, she had a bruised neck; and also, in talking with [the complainant], she did have bruises to her leg area by basically getting into a fetal position to block [Petitioner].
So Officer Katayama, even though he was on the scene first, bruises do show up later.
The court denied Petitioner’s DANCP motion and sentenced him according to the terms of the plea agreement to “forty-eight hours of incarceration, one year probation, substance abuse assessment, domestic violence intervention classes, and restitution and an apology to the victim.” However, according to the court, “someone who is involved [in] or causes such an offense is— should not be granted a deferred acceptance [of his or her] plea”:
Your motion for deferred acceptance is denied. The [e]ourt—although I can find [Petitioner] has had no record for 51 years, I guess the offense you decided to start off was one too significant for the [cjourt to ignore and to treat as something where the ends of justice and the welfare of society do not require that you presently suffer this penalty. I think, in fact, the opposite is true. I think society does demand that someone who is involved [in] or causes such an offense is—should not be granted a deferred acceptance [of his or her] plea.
I can make the finding of the other two conditions, but the other condition is that he’s pleading voluntarily prior to trial, but I don’t know if I—do not feel comfortable making a finding that he’s not likely to, again, engage in a criminal course of conduct.
And by the way, to address the argument made by defense that the [e]ourt is of the belief that the deferred acceptance is reserved only for the youthful offender, that actually is not correct.
(Emphases added.)
Furthermore, the court indicated that someone 20 or 21 might be “worthy of a deferred acceptance,” but that for “the type of crime that was committed,” it would “not grant a deferral whatever age
The [e]ourt does view someone whose judgment is not fully formed, perhaps at an age of 20 or 21, as being perhaps worthy of a deferred acceptance for a minor theft or some other offense that’s been created. But someone that is the defendant’s age, but more importantly for the type of crime that was committed, I could not grant a deferral whatever age anyone who committed a similar offense, and I don’t believe I have.
(Emphasis added.)
II.
Petitioner appealed to the ICA as to 1) whether the case should be remanded for re-sentencing before a different judge based on the prosecutor’s alleged violation of the plea agreement wherein she agreed that she would “take no position” with respect to [Petitioner’s] request for a DANCP, but then tendered an argument at sentencing that amounted to a strong opposition to [Petitioner’s] request for a DANCP; and 2) even if the ICA found that Respondent did not breach the plea agreement, whether the matter should be remanded for re-sentencing before another judge based on the [court’s] alleged apparent “policy” of not granting any DANCPs to offenders over the age of 21 years who have been charged with Assault in the Third Degree.
A.
The ICA in its SDO affirmed the “Judgment Conviction and Probation Sentence.”
Regarding whether the ICA should nonetheless exercise plain error review, the ICA determined that it could not, “based on the record before [it], conclude there was error which seriously affected ‘the fairness, integrity, or public reputation of judicial proceedings,’ subverted ‘the ends of justice,’ and prevented ‘the denial of fundamental rights.’ ” Id. (quoting State v. Vanstory,
B.
As to Petitioner’s second argument that “the [court] abused its discretion in denying [Petitioner’s] DANC [m]otion[,]” Id. at *1, the ICA reasoned that “[t]he grant or denial of a motion for a DANC plea is within the discretion of the [court] and will not be disturbed unless there has been manifest abuse of discretion.” Id. at *2. The ICA thereby concluded that “[Petitioner] has failed to show that the [court] exceeded the bounds of reason or disregarded the rules or principles of law or practice to [Petitioner’s] substantial detriment.” Id. at *3.
III.
In his Application, Petitioner presents the following questions:
I. Whether the ICA gravely erred by holding that [Petitioner], having failed to claim an alleged breach of the plea agreement by the prosecution at the sentencing hearing, did not properly preserve the issue for appeal, and therefore waived it.
II. Whether the ICA gravely erred by holding that [Petitioner] failed to show that [the court] had abused its discretion by denying [Petitioner’s] DANCP motion due to an alleged “categorical” policy of rejecting DANCP motions that involve offenders over the age of 21 and a charge of assault in the third degree.
IV.
A
Regarding the first question, Petitioner’s first argument in his Application is that “the ICA gravely erred by holding that [Petitioner], having failed to claim an alleged breach of the plea agreement by Respondent at the sentencing hearing, did not properly
The ICA cited to State v. Miyazaki,
The ICA further cited to its opinion in State v. Abbott,
Contrary to the ICA’s position, the meaning of the plea agreement is not at issue on appeal in this case—there is no dispute that Respondent agreed not to take any position on Petitioner’s DANCP motion. Rather, whether the prosecutor took a position, and thereby breached the agreement, is the issue on appeal. In that respect, Abbott held that “[w]hether the State has actually breached the terms of a plea agreement, however, is a question of law, which we review de novo under the right/wrong standard of review.” Id. at 320,
B.
As noted, the ICA further rejected Petitioner’s argument that the matter could be reviewed on appeal pursuant to the plain error doctrine. Miller,
1.
Petitioner argues in his Application that “the ICA gravely erred in its decision because it was clearly inconsistent with Hawai'i appellate decisions addressing breaches of a plea agreement under [HRPP Rule 52] as ‘plain error,’ since such error would undoubtedly affect [Petitioner’s] substantial rights.” Petitioner cites to State v. Nichols,
Respondent, on the other hand, argued in its answering brief on appeal that “[although the [c]ourt has inherent power to notice plain error ... plain error notice is extraordinary[,]” (citations omitted), and that here “[t]he extraordinary measure of plain error
2.
It would seem firmly established that under the plain error doctrine, “where plain error has been committed and substantial rights have been affected thereby, the error may be noticed even though it was not. brought to the attention of the trial court.” Sanchez,
This court has held that it “will apply the plain error standard of review to correct errors which seriously affect the fairness, integrity, or public reputation of judicial proceedings, to serve the ends of justice, and to prevent the denial of fundamental rights.” State v. Sawyer,
To the contrary, under Hawaii’s plain error doctrine, if Petitioner’s substantial rights or the integrity of the proceedings were affected, then plain error review is appropriate. HRPP Rule 52 (2008) provides:
RULE 52. HARMLESS ERROR AND PLAIN ERROR
(a) Harmless Error. Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded.
(b) Plain Error. Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court.
(Emphasis added.) Therefore, despite Petitioner’s failure to raise the issue below, the error may be corrected on appeal unless it was harmless beyond a reasonable doubt. See State v. Aplaca,
The ICA apparently recognized Petitioner’s argument that he should be able to seek plain error review on appeal, but concluded that there was not “error which seriously affected the fairness, integrity, or public reputation of judicial proceedings, subverted the ends of justice, and prevented the denial of fundamental rights.” Miller,
C.
Opposed to Respondent’s position and the ICA’s opinion, State v. Adams,
Similarly, in Santobello v. New York,
need not reach the question whether the sentencing judge would or luould not have been influenced had he known all the details of the negotiations for the plea. He stated that the prosecutor’s recommendation did not influence him and have no reason to doubt that. Nevertheless, we conclude that the interests of justice and appropriate recognition of the duties of the prosecution in relation to promises made in the negotiation of pleas of guilty will be best served by remanding the case[.]
Id. (emphases added.) Hence, according to the Supreme Court, the “interests of justice” require that appropriate relief be granted in the face of a breach of a plea agreement, regardless of whether the breach affected the sentencing decision. See id. It is the breach in and of itself that is the injustice. See id.; see also State v. Waiau,
Under Hawai'i precedent, then, breaches of plea agreements provide appropriate bases for appellate review under the plain error standard, inasmuch as a breach “implicates” “due process,” Adams,
V.
The ICA did correctly point out that “[wjhether [Respondent] breached the terms of a plea agreement is a question we would normally review de novo under the right/ wrong standard of review.” Miller,
A.
Regarding whether the plea agreement was breached, Petitioner argues in his Application that “[Respondent] promised ‘to take no position,’ ” but “[ijnstead of taking no position[,] ... [the prosecutor] argued quite eloquently against [Petitioner’s] oral motion for DANCP” and thereby “clearly breached her plea agreement under the law, which affected [Petitioner’s] substantial rights by influencing whether he would be granted a DANCP.” In support, Petitioner argues that
[t]he record is undisputed that the prosecutor agreed to “take no position” with respect to the issue of whether the [court] should grant [Petitioner’s] oral motion for DANCP. Yet, her sentencing statements directly undermined both her sentencing agreement and her agreement to “take no position” regarding [Petitioner’s] oral motion for DANCP. But the prosecutor, in her zeal to influence the [court] with respect to [Petitioner’s] DANCP motion, violated not only the letter of the plea agreement, but its spirit as well, by asking the [court] to “follow the agreement that’s been reached” while simultaneously arguingthat “this type of beating and brutality should not be accepted in our society.”
(Emphases added.)
1.
Petitioner looks to federal Third Circuit cases for instances of where a prosecutor breached a plea agreement after promising to “take no position” as to one of the issues at sentencing. According to Petitioner, “[i]n United States v. Crusco,
Similarly, Petitioner cites Moscahlaidis, wherein “the prosecutor vowed that he would ‘not take a position relative to whether or not a custodial sentence shall be imposed on [appellant] but ... will recommend to the sentencing [j]udge that if a custodial sentence is imposed on [appellant], it will not exceed one year.’” (Quoting
2.
Additionally, Petitioner argued that “[Respondent] violated the plea agreement not to take any position with respect to [Petitioner’s] oral motion for DANC plea by making statements that had no other purpose than to persuade the trial court to deny the DANC plea.” To reiterate, he contended to the ICA that Respondent had violated the plea agreement thi’ough its comments that, among other things,
1) “this case was borderline strangulation!,”] which “should not be accepted in our society[”;] and 2) pmportedly “clarified ” that an emergency room doctor had allegedly observed bruises on the complainant days later, even though a Maui Police Department officer had failed to observe any injuries at the time of the alleged incident. [Respondent’s] argument violated the plea agreement as a matter of law because the only aspect of the sentencing proceeding that was not agreed to by the parties was whether the trial court should grant or deny the DANC plea. Yet, instead of taking no position with respect to this issue, the prosecutor made numerous statements that appear to have been clearly intended to influence, and indeed, had the practical effect of influencing, the trial court’s decision of whether to grant or deny the DANC plea.
(Brackets omitted.) (Emphases added.)
As to Respondent’s argument that it was only attempting to “clarify” the factual predicate for the charge after Petitioner denied such basis, Petitioner urged in his reply brief that this argument was “totally unfounded for three reasons.” Those reasons were that
[fjirst, the record shows that [Respondent’s] statements were made even before defense counsel had an opportunity to address the [court]. Second, [Petitioner] and [Respondent] had entered into a stipulation “as to a factual basis to support thischarge” earlier, prior to [Respondent’s] statements. Third, [Petitioner] had not “actively denied” the factual basis of the charge.
(Emphasis in original.) Furthermore, Petitioner argued that even putting Respondent’s allegedly clarifying statements aside, Respondent’s “initial statements ... were also in direct opposition to [Petitioner’s] DANCP motion.” According to Petitioner,
[Respondent’s] initial statements addressed directly the two requisite findings tinder [HRS] § 853-1(a)(2) & (3), that “defendant is not likely again to engage in . a criminal course of conduct” and “the ends of justice and the welfare of society do not require the defendant shall presently suffer the penalty imposed by law” respectively.
(Emphasis added.) With respect to the finding required under HRS § 858-1 (a)(2), Petitioner contended that
[Respondent’s] statements about [Petitioner], being 51 years-old, committing “borderline strangulation” upon his “significant loved one” by “elbow[ing],” “kneefing],” “punching],” and “chok[ing]” her, and “put[ting] his hand over her mouth” and “pillow ... over her face” “because she wouldn’t be quiet,” which resulted in the complainant “actually fear[ing] for her life,” addressed whether [Petitioner] would likely engage in a criminal course of conduct again.
(Emphasis added.) Similarly, with regard to the finding required under HRS § 853-1(a)(3), Petitioner maintained that “[Respondent’s] statement that ‘this type of beating and brutality should not be accepted in our 300561/ addressed whether the ends of justice and the welfare of society require [Petitioner] being granted the DANCP.”
3.
Respondent conceded in its answering-brief on appeal that “[p]er [Petitioner’s] request, [Respondent] agreed to take no position on the DANC.” However, Respondent asserted that it “argued in favor of sentencing, not against a DANC[,]” (emphasis in original), and that it “made its remark about the brutality of the crime in direct response to the court’s question: ‘Sentencing? ’ ” (Emphases in original). Respondent maintained that its comments went directly to the “statutory sentencing factors” in HRS § 706-606(1) (1993), “which states ‘the court ... shall consider the nature and circumstances of the offense and the history and characteristics of the defendant’” (Emphases in original.)
Respondent asserted that, consequently, its comments that “[t]he victim is 51 years old” and “[s]o is the defendant” and that “[h]e doesn’t have a prior criminal reeord[,]” went to “the nature and circumstances of the offense, as well as the history of the defendant.” As for Respondent’s statements that “you shouldn’t be doing that to a significant loved one[, a]nd this type of beating and brutality should not be accepted in our soei-ety[,]” Respondent claims that those addressed the portion of HRS § 706-606(2)(a) that states that “the court ... shall consider ... the need for the sentence imposed ... to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense.” (Emphases in original.)
Respondent further contended (1) that it “scrupulously avoided comment on [Petitioner’s] DANC argument[,]” but “necessarily” had to “proffer the factual basis for [Petitioner’s charge]”; (2) that Petitioner “denied an essential element” of the charge by noting that “when [Maui Police] Officer Katayama appeared at the scene, there was no complaint of injuries ” (emphasis in original); and therefore (3) Respondent was “justified in clarifying the facts to the trial court when [Petitioner] actively denied the factual basis for his eharge[,]” because, under United States v. Maldonado, “even where the government enters a ‘plea agreement to make certain recommendations, the government has a duty to ensure that the court has complete and accurate information, enabling the court to impose an appropriate sentence,’ ” (quoting
B.
In concluding that the plea agreement was not violated, the ICA disregarded the well-established
In response to a request for “general input” from the Adult Probation Division (APD), the prosecutor had submitted a statement in which he averred, among other things,
that (1) [the petitioner] had been charged with just “twenty-one of the hundreds of false claims available”; (2) [the petitioner’s] “sexual assaultive behavior” stemmed from his “extremely low opinion of women”; (3) [the petitioner] is “a danger to the community because of his propensity to claim that he renders medical services he is not qualified to perform and his overwhelming desire to generate bills that precludes any interest in patients to overcome their illnesses”; and (4) [the petitioner] falsely claimed to be destitute in order to have a defense attorney provided at taxpayer expense.
Id. at 410,
This court addressed the standard for evaluating breaches of plea agreements as follows:
A plea agreement is essentially a contract entered into between the State and the defendant, in which the defendant agrees to plead guilty or no contest to a charge and to forego certain constitutional rights (including the right to trial) in exchange for which the State promises some form of leniency or cooperation in prosecution. Indeed, courts have often looked to contract law analogies in determining the rights and obligations of the parties to a plea agreement. However, because the plea negotiation process implicates constitutional considerations—including the fairness and voluntariness of the plea—we have recognized that resort to contract princi-pies cannot solely be determinative of the rights and duties comprising the plea bargain.
Id. at 412,
[p]ursuant to the plea bargain, the State agreed to “stand silent ... and not oppose ” Adams’s requests for DANC and for no jail time. No parameters were placed on the State’s obligation; i.e., the agreement did not provide that the State would stand silent only at the sentencing hearing. ... Although it appears that the parties never explicitly considered the precise issue, it is far more reasonable to conclude that the State’s promise to “stand silent” on the matters of jail and DANC meant that the State would not take a position on the issues or make that position known to the court directly or indirectly.
Id. (emphases added). Because “the State [had] clearly attempted ‘to accomplish indirectly what it had promised not to do directly[,]’ [and] the subject areas covered in the written statement paralleled] several important factors which a court considers in sentencing^]” it was decided that “the circuit court erred in concluding that the State did not breach the plea agreement.” Id. at 413-14,
C.
The facts of Adams are virtually indistinguishable from the facts of this case. Here, Respondent promised as a condition of the plea agreement to “take no position” on Petitioner’s DANCP motion, similar to the prosecution’s promise in Adams to “stand silent” and “not oppose” the DANCP plea. Miller,
As in Adams, Respondent’s comments “paralleled] several important factors which a court considers” in determining whether to grant a DANCP motion. In that connection, the prosecutor stated that although “[Petitioner] does not have a prior criminal record ... at 51 years old, you shouldn’t be doing that to a significant loved one[, a]nd this type of beating and brutality should not be accepted in our society.” Those comments manifestly invoked the pertinent issues for consideration under HRS § 853-1 of whether “defendant is not likely again to engage in a criminal course of conduct” and whether “the welfare of society [requires] that the defendant shall presently suffer the penalty[.]”
Furthermore, the prosecutor’s reference to “a significant loved one” directly intimated that the charge was in effect that of Abuse of a Family or Household Member. The closeness of Petitioner’s relationship to the complainant spoke directly to an element of the abuse charge, which the prosecution had promised to amend to Assault in the Third Degree in exchange for the plea. That the defendant held a family or household relationship with the victim is a requisite element of the abuse charge, whereas no such element exists under the assault charge.
The prosecutor therefore essentially argued an element of the abuse charge was present, in contravention of her agreement to drop that charge. See Abbott,
D.
Instead, as Petitioner pointed out on appeal, “[t]he prosecutor’s argument violated
Hence, in this case, the terms of the agreement were not fulfilled and Petitioner was denied his due process rights; thus, there was “manifest injustice as a matter of law.” See Adams,
Moreover, the error in this case was not harmless beyond a reasonable doubt, as the court clearly took the prosecutor’s comments into account in deciding to deny the DANCP motion. In orally denying the DANCP motion, the court appears to have relied particularly upon comments offered by the prosecution. For instance, the court stated that
although I can find the defendant has had no record for 51 years, I guess the offense you decided to start off was one too significant for the court to ignore and to treat as something where the ends of justice and the ivelfare of society do not require that you presently suffer this penalty.
(Emphases added.) That statement mirrors the prosecutor’s comments regarding the severity of the crime and that “[Petitioner] does not have a prior criminal record, but you know, at 51 years old, you shouldn’t be doing that to a significant loved one. And this type of beating and brutality should not be accepted in our society.”
VI.
In sum, Petitioner’s substantial rights were affected by the violation of the plea agreement. The ICA gravely erred in concluding that the error did not rise to the level of plain error. Accordingly, “[sentencing by another judge is the proper remedy[.]” Anderson,
VIL
The dissent, (1) based on Puckett v. United States, — U.S. —,
VIII.
The dissent first “write[s] to elaborate on the ICA’s ruling that, because [Petitioner] did not raise the alleged breach at sentencing or in a [HRPP] Rule 35 motion, he cannot raise the issue for the first time on direct appeal.” Id. at 133,
IX.
Second, according to the dissent, Petitioner violated HRAP Rule 28(b), inasmuch as he did not (1) state the error committed by the court, (2) allege that the court’s failure to sua sponte object to Respondent’s breach of the plea agreement was error, or (3) explain how the court’s error deprived the defendant of his substantial rights. Id. at 135-37,
A.
1.
With respect to points of error, HRAP Rule 28(b)(4) requires
[a] concise statement of the points of error set forth in separately numbered paragraphs. Each point shall state: (i) the alleged error committed by the court or agency; (ii) where in the record the alleged error occurred; and (iii) where in the record the alleged error was objected to or the manner in which the alleged error ivas brought to the attention of the court or agency.
(Emphases added.) Following the admonition in HRAP Rule 28(b)(4) to set out “[a] concise statement of the points of error[,]” (emphasis added), Petitioner succinctly stated in his points of error section fundamental errors that were committed, wilting that (1) “[t]he judgment of conviction and sentence must be set aside and the matter remanded to another trial judge for resentencing because the prosecutor violated the plea agreement[,]”
2.
The dissent’s sole objection to Petitioner’s presentation of error seems to be that he did not couch the breach in terms of an error on the part of the court. However, the dissent completely ignores that HRAP Rule 28(b)(4), by its plain language, cannot be intended to strictly apply to claims of plain error. In addition to requiring that the appellant state the “error committed by the court[,]” the rule requires that the appellant must also state “where in the record the alleged error was objected to or the manner in which the alleged error was brought to the attention of the couri[.T HRAP Rule 28(b)(4) (emphasis added). Plain errors by definition were not “objected to” or “brought to the attention of the court,” therefore, under the dissent’s formulation, an appellant claiming plain error would start his or her appeal without any chance of complying with HRAP Rule 28(b)(4), and thus would always be subject to the dissent’s more rigid sua sponte standard. We decline to read the rules in that manner.
B.
1.
Generally, when a plea agreement is breached, the focus is not on any error of the sentencing authority, but on the prosecution. See, e.g., United States v. Barnes,
2.
Similarly, the federal circuits that have opted to exercise plenary review over breaches that were not raised in the sentencing court also have not questioned that a plea breach on the part of the government is a cognizable error appropriate for appellate review.
Like the federal courts, neither this court nor the ICA has ever declined to review a breach of a plea agreement on the basis that the government’s breach does not count as a “point of error.” See, e.g., State v. Chincio,
C.
The dissent concedes that Petitioner “(1) set forth [the plain erroi-] standard ... and (2) claimed that the ICA should consider this issue ‘even though raised for the first time on appeal[.]’ ” Dissenting opinion at 135,
Because the breach was the “point of er-i-or” raised by Petitioner on appeal, it is difficult to discern any cogent basis for the dissent’s position. Under the circumstances, Petitioner’s argument cannot be reasonably characterized as giving “mere notice.” His “Point 1” in his points of error set forth the breach as the error, contrary to the dissent’s statement that he did “not satisfy HRAP
D.
Both Respondent and the ICA recognized that Petitioner’s brief raised (1) the breach as an error (2) to be reviewed in accordance with HRAP Rule 28. Respondent did not challenge Petitioner’s plain error argument as having been raised in violation of HRAP Rule 28(b)(4). Rather, Respondent replied directly to Petitioner’s arguments. Respondent devoted almost the entirety of its brief to addressing the breach and the plain error standard, arguing at length that (1) “the extraordinary measure of plain error notice is not warranted,” (formatting altered), and (2) “[Respondent] fulfilled the plea agreement when it took no position on [Petitioner’s] motion for a DANC[,]” (formatting altered).
Similarly, the ICA did not indicate that Petitioner violated HRAP Rule 28(b)(4), as it would be expected to do and has done so in the past when a violation of the rule took place.
E.
The dissent’s argument that Petitioner violated HRAP Rule 28 because he “raised as a point of error that ‘[t]he prosecutor violated the plea agreement,’ but it did not state ‘the alleged error committed by the court or agency,’ as required by HRAP Rule 28(b)(4)[,]” dissenting opinion at 135,
Second, with regard to breached plea agreements, there is no precedent suggesting that a sentencing court is obligated to “object” when the prosecution violates a plea agreement or that such an act on the part of the court would serve any purpose, and the dissent cites none. It would not undo the breach, nor could it undo the impact of the breaching statements on the court. Cf. Gonczy,
To the contrary, the dissent would require appellants to contrive an argument that the
However, the issue in Merino was whether the circuit court abused its discretion in accepting the appellant’s no contest plea. As this court stated, “[t]he trial court is vested with wide discretion to accept or refuse a nolo contendere plea, and the acceptance or refusal of a no contest plea is therefore reviewed for abuse of that discretion.” Merino,
What the dissent ignores is that, in the case of a breached plea agreement that is not objected to, as in this case, there is no “alleged error” on the part of the court, and to force the appellant to conjure one up is unreasonable. In the case of a breached plea agreement, as opposed to other types of error, the fault lies solely with the prosecution. Hence, HRAP Rule 28(b)(4) is not applicable to breaches raised as plain error to the extent it requires (1) that the error be one “by the court” and (2) that the appellant state “where in the record the alleged error was objected to or the manner in which the alleged error was brought to the attention of the court[.]” Appellant thus complied with HRAP Rule 28(b)(4) to the extent possible under the specific circumstances of his case.
P.
Moreover, HRPP Rule 52(b) does not require that a plain error clearly must be an error by the court, as the dissent maintains. HRPP Rule 52(b) states that “[p]lain errors or defects affecting substantial nghts may be noticed although they were not brought to the attention of the court[,]” (emphases added). Similarly, HRAP Rule 28(b)(4) only states that “the appellate court, at its option, may notice a plain error not presented.” (Emphasis added.) Thus, neither rule limits plain error to those errors committed “by the court[,]” thereby lending support to the rational conclusion that the precise strictures of HRAP Rule 28(b)(4)(i)-(iii) may not always be directly applicable to plain errors raised for the first time on appeal.
G.
Finally, it would appeal- fundamental that a court briefing rule such as HRAP Rule 28 cannot contravene a constitutional mandate such as the due process guarantee in the breach of plea context. Cf. State v. Calbero,
Based on the foregoing, the dissent’s assertion that the majority “rewrites” HRAP Rule 28, dissenting opinion at 136,
Hence, we are by no means of the opinion that “Hawai'i appellate courts are now required to review an error committed by any pa'riy—the prosecution or defendant in a criminal ease, or the plaintiff, defendant, [or] co-party in a civil case—if that party is responsible for the ‘error.’ ” Dissenting opinion at 137,
The dissent further states that this opinion requires that “the appellate court first determine] whether the appellant’s objection has merit, although that role is reserved for the trial court.” Id. (emphasis in original). The dissent merely reiterates what occurs when an appellate court reviews for plain error. As discussed herein, the plain error rules, HRPP Rule 52(b) and HRAP Rule 28(b)(4), recognize that the role of initially adjudging the merit of a defendant’s claim is typically a role “reserved for the trial court.” However, those rules allow the appellate court the discretion to review, even in the first instance, where substantial rights are affected.
X.
Next, the dissent argues Petitioner “did not show how he, specifically, suffered prejudice from the alleged breach of the plea agreement.” Dissenting opinion at 137,
A
But Petitioner in his opening brief cited HRPP Rule 52(b), as well as case law, in arguing that the breach “affected substantial rights,” “[bjeeause the defendant relinquishes his constitutional right to a trial by entering into a plea agreement, the integrity of our judicial system requires that the government strictly comply with its obligations under a plea agreement[,]” (citations, quotation marks, and brackets omitted) (emphasis added), “the interests of justice require that appellant have a means of escape from the position in which he was improperly induced to place himself in this ease[,]” (citation omitted) (emphasis added), and “the prosecutor made numerous statements that appear to have been clearly intended to influence, and indeed, had the practical effect of influencing, the trial court’s decision[,T (emphasis added). Petitioner specifically noted that the Ninth Circuit has reviewed “an alleged breach of a plea agreement raised for the first time on appeal under the ‘plain error doctrine.’ ” (Citing Maldonado,
B.
Nevertheless, the dissent maintains that “the majority is required to inject its own analysis as to the effect of the prosecution’s breach of the plea agreement.” Id. at 137,
As to how the breaching statements interacted with the court’s decision, Petitioner quoted the relevant portions of the transcript, adding emphasis to those statements of the prosecutor and the court which bore a close relationship both to each other, and to the DANCP, such as the prosecutor’s comment that “this type of beating and brutality should not be accepted in our society [,] ” (emphasis in original), and the court’s related conclusion that “society does demand that [Petitioner] ... should not be granted a deferred acceptance [of] your pleal,]” (emphasis in original).
C.
Furthermore, neither Respondent nor the ICA had any trouble discerning Petitioner’s argument, as neither asserted that Petitioner failed to argue that substantial rights were affected. Specifically, Respondent contended that “[Petitioner] failed to [avail himself of other options], yet complains that plain error notice should be taken for a violation of his ‘substantial rights.’ ” (Emphasis added.) Respondent continued to argue why Petitioner’s substantial rights were not affected, never stating that Petitioner had failed to argue that point, or even that his argument was inadequate. Thus, the dissent’s argument that “the prosecution [could not] rebut [Petitioner’s] arguments[,]” dissenting opinion at 143,
XI.
The dissent proceeds to argue at length that this court should establish a new, heightened “extraordinary” standard where plain enror review is exercised sua sponte. Dissenting opinion at 138,
A.
First, the dissent maintains that “[i]n his [A]pplication, [Petitioner] seeks review of the ICA’s ruling, apparently under a de novo standard,” id. at 137,
B.
The dissent asserts “that the ‘appellate court’s discretion to address plain error is always to be exercised sparingly.’ ” Id. at 138,
1.
State v. Fox,
[o]ur prior expressions of an appellate court’s power to notice plain error in criminal cases have been ... succinct. We have said little more in this regard than HRPP [Rule] 52(b) itself, that is:appellate courts “have the power, sua sponte, to notice plain errors or defects in the record affecting substantial rights though they were not 'properly brought to the attention of the trial judge or raised on appeal.” ...
We have not endeavored to place a gloss on the rule, as other courts have, by further defining the kind of error for which we would reverse under Rule 52(b). In our view, the decision to take notice of plain error must turn on the facts of the particular case to correct errors that seriously affect the fairness, integrity, or public reputation of judicial proceedings. Though mindful that this power to deal with error is one to be exercised sparingly and with caution because the rule represents a departure from a presupposition of the adversary system, we are convinced the case at bar calls for its invocation.
Id. (quotation marks, citations, footnote, and brackets omitted) (emphases added).
This court’s elaboration of the plain error standard in Fox is instructive. First, it was verified that the court’s power to notice plain errors is one that may be exercised “sua sponte,” and “even when not presented,” without any indication that such power is in any way distinct from the power to notice plain error generally. See id. Second, the term “sparingly” as used in Fox indicates a recognition that the rules favor the adversary process, while still allowing the granting of plain error review. Third, Fox directed that the “kind of error” appropriate for plain error review under HRPP Rule 52(b) is one to be determined on the specific facts of the case where the error “seriously affeet[s] the fairness, integrity, or public reputation of judicial proceedings.” See id. Fourth, Fox advised against “placing] a gloss on the rule.” See id.
The error in Fox was “admission of evidence grounded on statements made in the course of plea discussions” as prohibited by HRE Rule 410(4). Id. Without stating anything as to what impact such statements may have had on the jury, this court held that the admission of the statements “seriously affected the fairness of the proceedings.” Id. This court explained that
[wjere we to approve their use to discredit the defendant’s testimony in court, we would not be furthering the purpose of [HRE Rule] flO to promote the disposition of criminal cases by compromise. We would be standing idly by though clear error affecting substantial rights of the defendant was committed. Under the circumstances, an invocation of the plain error r~ule would be the better part of discretion.
Id. (emphases added). Thus, in Fox, promoting the purpose of the rule was enough. In this case, where the error is of constitutional magnitude, we think the rationale of Fox is even more compelling, and, therefore, “invocation of the plain error rule would be the better part of discretion.” See id.
2.
The dissent entirely misconstrues Fox, asserting that “the Fox decision did not merely restate HRPP Rule 52(b)—rather, it added a crucial element to this rule[,]” i.e., that “appellate courts ‘have the power, sua sponte, to notice plain errors[,]’ ... and subsequently limited this power” as one to be used “sparingly and with caution[.]” Dissenting opinion at 139,
3.
Consequently, the term “sparingly” must be viewed in light of the rules, and also in the context of the eases in which it has been used. See dissenting opinion at 138,
4.
The dissent must concede that the rules already recognize that plain error is a departure from the adversarial system, but allow appellate courts discretion to notice plain errors despite the rules’ requirements.
Nevertheless, the dissent would upset this equanimity by limiting notice of plain error sua sponte “even more ‘sparingly’ than the ‘power to deal with plain error[,]’ ” id. at 139,
Similarly, there is no authority for the dissent’s position that “[t]he appellate court must seek power to notice plain error sua sponte from both HRAP Rule 28(b)(i) and HRPP Ride 52(b).” Dissenting opinion at 139,
Also, none of our courts have stated that sua sponte review requires the appellate court to “seek power” from both rules, but have instead acknowledged that each rule individmlly allows an appellate court to exercise sua sponte review, and, moreover, regardless of the rules, such power is inherent. See, e.g. State v. Fields,
Furthermore, creating a two-tiered standard for reviewing plain errors, as the dissent suggests, would create two classes of defendants who could have suffered the same substantial right injury, granting one relief but denying it to the other on the circumstance that plain error was expressly raised in one instance but not in the other. Such an approach would duly invite not only due process, but equal protection objections.
The dissent objects to this premise, stating that “Hawai'i appellate courts require parties to follow numerous procedural court rules, and have dismissed parties’ claims or appeals in accordance with rules and case law, when the rules were not followed, even where another appellant could have suffered the ‘same substantial right injury.’ ” Id. at 140,
Second, as discussed at length herein, there is no rational basis in the rules or the case law for placing appellants who fail to raise plain error into two different categories.
Manifestly, HRPP Rule 52(b) and HRAP Rule 28(b)(4) refer to the same inherent plain error power, including the power to notice errors sua sponte. The dissent contrarily suggests that where a substantial rights violation has occurred, if the appellate court’s review is sua sponte, where the error is not “extraordinary,” the appellate court should decline to notice the error, despite the substantial rights violation. That view contradicts the plain language of the rules, as well as the case law. See Nichols,
C.
In its proposal to adopt a different standard for sua sponte recognition of plain error, the dissent has misapplied the use of the words “sparingly” and “exceptional” in the case law, arguing not only that plain error review is extraordinary, but that the nature of the error itself must be exceptional or extraordinary.
D.
1.
The dissent also relies on Fields to argue that plain error review should be exercised
In a stance that is contradictory to the dissent’s position in this case, the majority in Fields sua sponte addressed the possibility of recognizing ineffective assistance of counsel, inasmuch as that claim had not been raised by the petitioner,
2.
The dissent goes on to argue that “[a] review of the small number of eases in which this court has noticed plain error sua sponte indicates that it is only appropriate to do so in extraordinary circumstances.”
The dissent cites to the dissent in State v. Frisbee,
Similarly, it cannot be said that, in Yama-da, the error was any more “egregious” than the error in this case. As the dissent explains, this court reversed the court in Ya-mada sua sponte because “[bjy directing the jury to find Yamada guilty of manslaughter ‘if one or more jurors believes or believe that the prosecution has not proven ... that’ Yamada was not under the influence of [extreme mental or emotional distress,]” the court “potentially allowed a single juror to highjack the proceedings!,]” thereby depriving Yamada of his constitutional right “to a unanimous verdict!.]”
3.
Furthermore, the dissent chooses selectively which sua sponte cases to discuss, ignoring those that have recognized plain error based on denial of constitutional rights, i.e., due process rights.
Several other cases wherein this court has recognized plain error sua sponte did not present circumstances more extraordinary than in this ease, nor did any of following cited cases state that sua sponte plain error review should be exercised “sparingly” or in “exceptional” cases. See Ruggiero,
E.
Additionally, the dissent’s assertion that when plain error review is exercised sua sponte, “our adversarial system is directly undermined,” dissenting opinion at 143,
XII.
The dissent next argues that the sua sponte standard was not satisfied, because (1) “[a] breached plea agreement does not in itself satisfy the plain error requirements[,]” dissenting opinion at 143,
A.
1.
The dissent objects to what it characterizes as the majority’s “conclusion that [Petitioner] ‘was denied his due process rights,’ based solely on the alleged breach.”
2.
Also, this court has said more than that a breach “implicated] constitutional rights[.]” Dissenting opinion at 145,
3.
According to the dissent, “a Hawai'i appellate court must also find that ‘there is a reasonable possibility that the error contributed to the defendant’s conviction[.]’ ” Id. at 143,
That reasoning defies logic and precedent. It is not the standard of review that dictates whether fundamental rights are denied, but the guarantees embodied in our constitution. Where such constitutional rights are affected, our courts have on several occasions opted to review for plain error.
Furthermore, contrary to the dissent’s assertions, this opinion recognizes that Petitioner was prejudiced by the breach, and that, therefore, the error was not harmless beyond a reasonable doubt. See dissenting opinion at 147,
Based on Yoon, it is the law in this jurisdiction that, where the plea “restfs] in any significant degree ” on the State’s promise, due process requires that the promise be fulfilled. Where, as here, the plea is based on an unfulfilled promise of the prosecution, there is certainly “a reasonable possibility that [the] error might have contributed to convietion[,]” Nichols,
Second, Petitioner was prejudiced because the prosecution’s statements appeared to influence the sentencing court’s decision to deny the DANCP, as set forth supra. Hence, the dissent is wrong when it says that “the majority[ ] ... concludes that [Petitioner’s] fundamental rights were violated without actually applying [the plain error] standard.” Dissenting opinion at 146,
B.
1.
Next, although conceding that “[w]e have never employed the four-pronged plain error standard of review set forth in United States v. Olano,
In Nichols, the federal standard was addressed in the context of this court’s review of the ICA’s determination that “it had the option to decline to exercise its ‘remedial discretion’ or that it had any remedial discretion at all in regards to [prejudicial] error.” Id. As stated before, Nichols “note[d] that-[the petitioner wa]s correct in asserting that there is no case in this jurisdiction referring to ‘remedial discretion’ in connection with plain error, nor can we discover any reported criminal case in which this court has found plain error but refused to reverse in the exercise of discretion.” Id. While observing that “such discretion may exist in the federal courts,” this court declared that “we have never employed the four-pronged plain error standard of review set forth in [Olano],” and, additionally, “decline to do so.” Id. (emphases added).
2.
The dissent proceeds from its incorrect premise to assert that under “federal eases ..., the defendant is not automatically prejudiced or deprived of his or her ‘fundamental rights.’ ” Dissenting opinion at 146,
3.
Again, the dissent next contends that “[t]he majority’s ruling is also at odds with the Supreme Court’s clear ruling that a breached plea agreement does not satisfy the plain error requirement that the error ‘must have affected the [defendant’s] substantial rights.’ ” Dissenting opinion at 147,
Additionally, Puckett’s “clear ruling” was not that “a breached plea agreement does not satisfy the plain error requirement” in every ease, but, as the dissent concedes, only that there are situations where a breach on its own will not affect substantial rights. Puckett noted only two instances where “[t]he defendant whose plea agreement has been broken by the Government will not always be able to show prejudice^ 1] either because he obtained the benefits contemplated by the deal anyway (e.g., the sentence that the prosecutor promised to request) or [2] because he likely would not have obtained those benefits in any event (as is seemingly the case here).”
The prejudice standard enunciated in Puckett, and under the federal standard generally, is different from our law, requiring that the defendant “must demonstrate that [the error] affected the outcome of the district court proceedings^]” id. (citation omitted) (emphases added), as opposed to requiring a showing that there is “a reasonable possibility that [the] error might have contributed to conviction[,]” Nichols,
Furthermore, Puckett departed from federal precedent on breached plea agreements in significant respects, disavowing prior precedent indicating that a breach negates the voluntariness of the plea, and all but overturning Santobello’s holding that “automatic reversal is warranted” where a plea agreement is breached.
The dissent concludes that it “cannot agree with the majority’s decision to erode Hawaii’s plain error standard[.]” Dissenting opinion at 147,
XIII.
A.
The dissent argues that, in the eases cited by Petitioner, “the prosecution’s sentencing statements were made despite promising to stand silent on the issue, whereas, here, the prosecution’s statements addressed the sen-fencing factors as permitted under the plea agreement.” Id. at 148,
As to all of its arguments, see id. at 148-50,
B.
The dissent seemingly believes that, because Petitioner’s counsel also made an argument
The effect of the government’s breach of its commitment is difficult to erase if the case remains before the same judge, because the judge’s decision to deny the reduction was based on his assessment of the facts. As the facts on remand will be the same, regardless of the arguments advanced by the [presentence report] and the government, it is likely that the same judge would reach the same result as he reached before. On the other hand, had the government adhered to its commitment not to contest the defendant’s request for a two-level reduction, there is some likelihood that the judge woidd never have given serious thought to denying it. Re-sentencing before the same judge might therefore deprive the defendant of the benefit he was promised in the plea agreement.
United States v. Enriquez,
But, that reasoning was precisely the reasoning urged by the prosecutor for denying DANCP, when she essentially argued that despite Petitioner’s lack of any criminal history, the nature of the offense required that he currently suffer the punishment, stating that “[h]e does not have a prior criminal record, but ... this type of beating and brutality shoidd not be accepted in our society.” (Emphasis added.) The crux of the dissent’s argument on this point seems to be that the court was aware of Petitioner’s offense “because [Petitioner] was originally charged with Abuse of a Family or Household Memberf.]” Dissenting opinion at 149,
C.
Several courts have recognized that it is virtually impossible for a reviewing court to determine whether the sentencing court’s judgment was in fact influenced by improper factors. For example, in State v. Dimmitt,
Based on the difficulty that is often involved in discerning which sources of information ultimately contributed to a sentencing court’s decision, the Seventh Circuit has formulated
[t]he district court’s comments at sentencing raise sufficient doubts in our mind whether it imposed its sentence wholly unthout regard to the hearsay statements of the confidential informant. Granted, we cannot be sure that these statements influenced Judge Duffs sentencing determinations, but given the closeness of this question—and the relatively low standard, under the law of this circuit, by which Barnes must prove his case—we vacate and remand so that Barnes may have an opportunity to challenge these statements.
Id. at 696-97 (emphases added). See also United States v. Robin,
XIV.
Based on the foregoing, the ICA’s judgment is reversed, the sentence of the court is vacated, and the case is remanded for resen-tencing before a different judge.
STATEMENT OF POINTS OF ERROR
Notes
. The SDO was filed by then-Chief Judge Mark Recktenwald and Associate Judges Daniel R. Foley and Alexa D.M. Fujise.
. The Honorable Richard T. Bissen, Jr. presided.
. HRS § 709-906 provides in relevant part:
Abuse of family or household members; penalty. (1) It shall be unlawful for any person, singly or in concert, to physically abuse a family or household member....
For the purposes of this section, "family or household member" means spouses or reciprocal beneficiaries, former spouses or reciprocal beneficiaries, persons who have a child in common, parents, children, persons related by consanguinity, and persons jointly residing or formerly residing in the same dwelling unit.
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(5) Abuse of a family or household member ... [is a] misdemeanorf ] and the person shall be sentenced as follows:
(a) For the first offense the person shall serve a minimum jail sentence of forty-eight hours;
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Upon conviction and sentencing of the defendant, the court shall order that the defendant immediately be incarcerated to serve the mandatory minimum sentence imposed; provided that the defendant may be admitted to bail pending appeal pursuant to chapter 804. The court may stay the imposition of the sentence if special circumstances exist.
(6) Whenever a court sentences a person pursuant to subsection (5), it also shall require that the offender undergo any available domestic violence intervention programs ordered by the court. However, the court may suspend any portion of a jail sentence, except for the mandatory sentences under subsection (5)(a) and (b), upon the condition that the defendant remain arrest-free and conviction-free or complete court-ordered intervention.
. HRS § 707-712 provides:
Assault in the third degree. (1) A person commits the offense of assault in the third degree if the person:
(a) Intentionally, knowingly, or recklessly causes bodily injury to another person; or
(b) Negligently causes bodily injury to another person with a dangerous instrument.
(2) Assault in the third degree is a misdemeanor unless committed in a fight or scuffle entered into by mutual consent, in which case it is a petty misdemeanor.
. HRS § 853-1 provides:
(a) Upon proper motion as provided by this chapter:
(1) When a defendant voluntarily pleads guilty or nolo contendere, prior to commencement of trial, to a felony, misdemeanor, or petty misdemeanor;
(2) It appears to the court that the defendant is not likely again to engage in a criminal course of conduct; and
(3) The ends of justice and the welfare of society do not require that the defendant shall presently suffer the penalty imposed by law, the court, without accepting the plea of nolo contendere or entering a judgment of guilt and with the consent of the defendant and after considering the recommendations, if any, of the prosecutor, may defer further proceedings.
(b) The proceedings may be deferred upon any of the conditions specified by section 706-624. As a further condition, the court shall impose a compensation fee pursuant to section 351-62.6 upon every defendant who has entered a plea of guilty or nolo contendere to a petty misdemeanor, misdemeanor, or felony; provided that the court shall waive the imposition of a compensation fee, if it finds that the defendant is unable to pay the compensation fee. The court may defer the proceedings for a period of time as the court shall direct but in no case to exceed the maximum sentence allowable; provided that, if the defendant has entered a plea of guilty or nolo contendere to a petty misdemeanor, the court may defer the proceedings for a period not to exceed one year. The defendant may be subject to bail or recognizance at the court’s discretion during the period during which the proceedings are deferred.
(c) Upon the defendant’s completion of the period designated by the court and in compliance with the terms and conditions established, the court shall discharge the defendant and dismiss the charge against the defendant.
(d) Discharge of the defendant and dismissal of the charge against the defendant under this section shall be without adjudication of guilt, shall eliminate any civil admission of guilt, and is not a conviction.
(e) Upon discharge of the defendant and dismissal of the charge against the defendant under this section, the defendant may apply for expungement not less than one year following discharge, pursuant to section 831-3.2.
(Emphases added.)
. Petitioner argued that several of the federal circuits have concluded that claims for breach of a plea agreement are not waived if not raised at sentencing or under Federal Rules of Criminal Procedure (Fed.R.Crim.P.) Rule 35, and can be raised for the first time on appeal. See United States v. Moscahlaidis,
Respondent relied in its arguments to the ICA upon a Ninth Circuit case to argue that "[a] claim of breach of plea is ... the sort of claim which a defendant ... should be required to raise when the alleged breach can still be repaired.” (Quoting United States v. Flores-Payon,
. HRS § 853-4 limits the applicability of HRS
§ 853-1, providing in pertinent part that [t]his chapter shall not apply when:
(1) The offense charged involves the intentional, knowing, reckless, or negligent killing of another person;
(2) The offense charged is:
(A) A felony that involves the intentional, knowing, or reckless bodily injury, substantial bodily injury, or serious bodily injury of another person; or
(B) A misdemeanor or petty misdemeanor that carries a mandatory minimum sentence and that involves the intentional, knowing, or reckless bodily injury, substantial bodily injury, or serious bodily injury of another person;
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(13) The offense charged is:
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(P) Abuse of family or household members;
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The court may adopt by rule other criteria in this area.
(Emphasis added.)
. Because Petitioner's case is remanded for re-sentencing, we need not address Petitioner's second argument, that "the ICA gravely erred by holding that [Petitioner] failed to show that the [court] had abused its discretion by denying [Petitioner’s] DANCP motion due to an alleged 'categorical’ policy of rejecting DANCP motions that involve offenders over the age of 21 and a charge of assault in the third degree.” However, we note that such a policy, if in fact exercised categorically, potentially runs afoul of this court's holding in State v. Martin. See
. Although we agree that Petitioner's claim should be reviewed for plain error, we reject the dissent's argument on this point inasmuch as it relies on the federal standard for reviewing breaches of plea agreements as set forth in Puckett, which this court has explicitly rejected. See discussion infra; see also Nichols,
. Petitioner's points of error section, in its entirety, is as follows:
1. The judgment of conviction and sentence must be set aside and the matter remanded to another trial judge for resentencing because the prosecutor violated the plea agreement. The prosecutor disregarded her agreement "not to take any position" with respect to [Petitioner's] oral motion for DANC plea when she argued, among others, that "this case was borderline strangulation,” which "should not be accepted in our society," and then proceeded to purportedly "clarify” that an emergency room doctor had allegedly observed bruises on the complainant days later, even though a Maui Police Department officer had failed to note any injuries at the time of the alleged incident.
2. Even if the prosecutor did not breach the plea agreement, the trial court's denial of [Petitioner's] oral motion for DANC plea must be reversed and remanded to another trial judge for re-sentencing because the trial court abused its discretion by failing to exercise any discretion due to an apparent policy of not granting DANC pleas in assault cases.
(Citations omitted.) (Emphases added.)
. According to the dissent any technical violation of HRAP Rule 28 requires the appellate court to review a plain error "sua sponte " as opposed to under the regular plain error standard. According to Black's Law Dictionary, "sua sponte " means "[w]ithout prompting or suggestion” or "on its own motion.” Black’s Law Dictionary 1560 (9th ed.2009). It defies reality to suggest that where an appellant has manifestly set forth an error for review on appeal, that the appellate court is somehow raising the error "without prompting” or “on its own motion” merely because the appellant failed to comply with the appellate rules. While we do not condone rule violations, it is unreasonable to assert that any rule violation somehow renders appellate review "sua sponte ”. In our view, sua sponte review of an error occurs where it is not raised by the appellant, but by the appellate court.
.See United States v. Rivera-Rodriguez,
. See United States v. Griffin,
. The dissent maintains that we “obfuscate the points raised in the dissenting opinion” by asserting that federal courts have recognized that a breach is an "error” cognizable by appellate courts, despite a lack of any fault attributable to the sentencing judge, see dissenting opinion at 136,
Additionally, reference to federal cases for further guidance on this point lend support to the proposition that a breach of plea agreement is an "error" appropriate for consideration on appellate review, and to the proposition that breaches by their nature do not involve any "error" on the part of the court.
. The dissent maintains that the foregoing cases “do not quote to the appellants' points of error or otherwise indicate that the appellants in those cases failed to cite to a court's error in compliance with HRAP Rule 28(b)(4)[,]” and, therefore, "[tjhese cases do not permit this court to disregard the requirements of HRAP Rule 28(b)(4).” Dissenting opinion at 136,
. Cf. Weidenbach v. Koolau Agr. Co., Ltd., No. 24315,
. Notably, the dissent asserts that the appellant in Merino "complied with HRAP Rule 28(b)(4)” although there is no indication that he stated "where in the record the alleged error was objected to or the manner in which the alleged error was brought to the attention of the court” as required by HRAP Rule 28(b)(4)(iii). Indeed, the appellant could not have done so, inasmuch as he did not raise the error in the trial court. However, this court did not fault appellant for having committed a HRAP Rule 28(b)(4) violation, and, apparently, neither does the dissent.
. In his standard of review section, Petitioner recounted the plain error standard, which includes errors "that affected substantial rights " and "that seriously affected the fairness, integrity, or public reputation of the judicial proceedings." (Citations omitted.) (Emphases added.) Subsequently, in the first paragraph of his argument section, Petitioner argued that "[bjecause the defendant relinquishes his constitutional right to a trial by entering into a plea agreement,” (citing INS v. St. Cyr,
Petitioner went on to devote almost two pages of his six-page argument section, arguing that, where "the terms of a plea agreement [ ] serve as the inducement for entering a plea,” (quoting Adams,
Based on the record, we fail to see any merit in the dissent's position.
. Petitioner could not have done any more to emphasize that statements made by the prosecutor were reflected in the court's decision and to argue that the prosecutor’s statements were "intended to influence” and did influence the judge. As described supra, it appears that the breaching statements quoted by Petitioner were (1) relevant to DANCP factors and (2) included in the court's analysis.
. That statement is plainly incorrect inasmuch as Respondent ”rebut[ted]” Petitioner's substantial rights argument at length in its answering brief. Respondent’s theory as to why substantial rights were not affected was that “where multiple avenues of recourse existed and [Petitioner] failed to take them, [Petitioner's] substantial rights were not violaled[,]” and "[t]he ends of justice do not require plain error notice where the parlies stood ready for trial, a jury awaited, and [Petitioner] chose to be silent ... against a perceived breachf.]"
. The dissent complains that Petitioner "did not show how he, specifically, suffered prejudice from the alleged breach of the plea agreement, i.e., evidence that the court would have granted the DANCP motion if not for the breach." Dissenting opinion at 137,
. The dissent cites to civil cases which are irrelevant here. See dissenting opinion at 138,
. Similarly, many of the cases that have used the term "sparingly" have immediately qualified it by stating that "[t]his court will apply the plain error standard of review to correct errors which seriously affect the fairness, integrity, or public reputation of judicial proceedings, to serve the ends of justice, and to prevent the denial of fundamental rights.” State v. Chin,
.Furthermore, the dissent's argument on this point ignores that the language in HRPP Rule 52(b) and HRAP Rule 28(b)(4) already encompass a preference for the adversarial system, but nonetheless permit appellate courts to notice plain error in their discretion. HRPP Rule 52(b) states that "[pjlain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court.” (Emphasis added.) The rule therefore acknowledges that issues are usually to be raised in the trial court by counsel. HRAP Rule 28(b)(4) similarly confirms that the appropriate procedure for raising errors on appeal is to list them as points of error, stating that "[pfoints not presented in accordance with this section will be disregarded," (emphasis added), except that the appellate court, "may notice [] plain error[,]” (emphasis added).
Hence, although acknowledging that the usual, and appropriate method, for raising errors in the adversarial system is to depend on counsel, the rules provide that, where substantial rights are affected, the court may choose to review error, even if not raised in the adversary process, in order to avoid the infringement of substantial rights. Consequently, the adversarial factor that might otherwise preclude review is already accounted for and incorporated into the language of HRPP Rule 52(b) and HRAP Rule 28(b)(4), and, therefore, further narrowing of the rales to account for the adversarial process as proposed by the dissent is neither wise nor warranted.
. As discussed at length supra, Petitioner’s argument satisfied the requirements of HRAP Rule 28(b), and, therefore, it was wholly unnecessary for the ICA or this court to raise the error sua sponte. With all due respect, it is implausible to say in this case that Petitioner’s counsel did not "argue the plain error on appeal.” First, based on the record expounded supra, to urge that the breach of plea agreement argument was not presented defies reason. Second, as discussed at length supra, Petitioner argued to the ICA and to this court that the plea breach should be reviewed pursuant to the plain error standard. Hence, the dissent embarks on a path foreign to this case.
. See Bank of Hawai'i v. Shinn,
. See, e.g., State v. Aplaca,
. The dissents states that “[t]he circumstances should be exceptional" in order to notice plain error. Dissenting opinion at 139,
The dissent also cites State v. Ruiz,
. Significantly, the petitioner in Fields had never raised the ineffective assistance argument at all, let alone whether it should be reviewed for plain error, which makes Fields a case wherein the ICA or this court literally would have had to raise the issue on its own, and in fact the majority in Fields apparently did so. See
. A review of our case law on plain error reveals that our appellate courts have in fact recognized plain error sua sponte in numerous cases, contrary to the dissent's assertion. See, e.g., State v. Ruggiero,
.In a footnote, the dissent cites to Justice Aco-ba’s dissenting opinion in Fields, which cited to several cases for the proposition that “this court has many times employed” its "inherent power to notice plain error sua sponte.” Dissenting opinion at 140-41,
For example, in McGriff, although this court ultimately determined that the defendant’s right of confrontation had not been violated, it recognized that, had a constitutional violation occurred, it would be recognized as plain error. See
Finally, the dissent’s reference to the majority’s conclusion in In re Doe is misplaced, because in Fields, Justice Acoba's dissenting opinion cited his dissent in that case and not the majority opinion. See Fields,
. The dissent's recitation of the facts of Ruggie-ro and Yamada only demonstrates the requirement that substantial rights must be affected, not that the error committed must somehow be "extraordinary." Indeed, the dissent does not leave the reader with any sense of what an “extraordinary” error might be, or when this court might consider the denial of fundamental constitutional rights to be of an extraordinary nature versus a garden variety violation. Nor does the dissent explain why the fundamental due process rights denied when a breach occurs are merely of a garden variety, rather than "extraordinary.”
. See Ruggiero,
. The dissent claims that it "certainly recog-nizefs] that the denial of constitutional rights may well be extraordinary.” Dissenting opinion at 142,
. Contrary to the facts of this case, in Staley, the appellant did not present the constitutional issue at all, and instead argued solely "(1) the circuit court erred in granting the prosecution's motion in limine, ...; (2) the jury instructions as read to the jury were prejudicial to him; and (3) there was insufficient evidence to support his conviction[,]”
. The dissent attacks our citation to Heapy, asserting that "the plurality’s mere mention of the plain error doctrine [in Heapy] was unnecessary to adjudicate the particular issue presented in that case, and is therefore dictumf,]" and, thus, "the majority’s reliance on Heapy is wrong, inasmuch as it is clearly not an accurate reflection of the extraordinary circumstances under which this court has applied the plain error doctrine in the past.” Dissenting opinion at 142,
Also, this court may consider plain error for the apparent failure of Defendant to raise HRS § 291E-20 and the Guide on appeal. Appellate courts, in criminal cases, may sua sponte “notice errors to which no exception has been taken, if the errors are obvious, or if they otherwise seriously affect the fairness, integrity or public reputation of judicial proceedings[,]” [Fox,70 Haw. at 56 ,760 P.2d at 675-76 ], as in this case.
Assuming, arguendo, that an exception must be taken with respect to ... the court’s exclusion of the Guide, notice of plain error would be appropriate. As earlier explained, the procedures listed in ... the Guide are relevant to a discussion of the reasonableness of the stop. These prescribed procedures were developed in order to minimize intrusion upon an individual’s privacy rights and are referred to in much of the case law. Given the negative constitutional implications of the court's decision, application of the plain error doctrine would be proper.
Heapy,
. It is ironic that the dissent argues that somehow the parties in this case were "precluded from presenting arguments on the [plain error] issue,” dissenting opinion at 143,
. As discussed more fully infra, the dissent subsequently contradicts that statement by stating that "the majority ... also concluded that the error was not harmless beyond a reasonable doubt.” Id. at 148,
.The dissent attempts to minimize the impact of the breach by stating that "the plea agreement clearly involved advantages and incentives for the defendant other than the prosecution’s promise to stand silent on the DANCP motion.” Id. at 145,
. The dissent claims that it objects to our holding that "[Petitioner’s] due process rights were violated, based on Adams’ discussion on the effect of a breached plea agreement, generally.” Dissenting opinion at 146,
. The dissent asserts that this is “an egregious distortion of my statements[J” because it purports to believe that "the denial of due process affects substantial rights, but that a breached plea agreement, in itself, does not deny the defendant of his or her due process rightsl.]” Dissenting opinion at 145,
. The dissent also claims that “[t]he majority correctly states that this court may review a breached plea agreement claim for plain error, but it [ J applies a de novo standard for a breached plea agreement claim raised for the first time on appeal[.]” Dissenting opinion at 143,
. See, e.g., State v. Uyesugi,
. In that case, the Ninth Circuit concluded that "the government did not breach the plea agreement.”
. Salazar is inapposite, inasmuch as that court concluded "that the government honored its agreement with Salazar.”
. In De La Garza,
. Likewise, in lensen, there was little question that the court was entirely unaffected by the breach. The issue in lensen was whether "the government was obligated to move for [an] additional level reduction” in sentence after "the district court granted a two-level reduction on its own motion[.]” lensen,
.It is worth noting that, as acknowledged by the Supreme Court, the facts in Puckett were extremely unfavorable to the petitioner. In Puckett, the government had agreed as part of the plea deal to "agree[] that Puckett has demonstrated acceptance of responsibility and thereby qualifies for a three-level reduction in his offense level[,]” and "to request that Puckett's sentence be placed at the lowest end of the guideline level deemed applicable by the Court.” — U.S. at-,
However, subsequent to the plea bargain, "Puckett assisted another man in a scheme to defraud the Postal Service^]” Id. at-,
It is true enough that when the Government reneges on a plea deal, the integrity of the system may be called into question, but there may well be countervailing factors in particular cases. Puckett is again a good example: Given that he obviously did not cease his life of crime, receipt of a sentencing reduction for acceptance of responsibility would have been so ludicrous as itself to compromise the public reputation of judicial proceedings.
Id. at-,
. Many of our cases have not required such a "specific showing,” but have noticed plain error because "substantial rights” were affected or denied. See, e.g., Puaoi, 78 Hawai'i at 191,
. The dissent "cannot agree that the Supreme Court 'departed' from federal precedent,]” dissenting opinion at 147,
. The dissent does not argue that the prosecutor's statements were irrelevant to the DANCP. Instead, the dissent argues that ‘‘[a] fair review of the record does not show that the prosecution's statements ... affected [Petitioner's] substantial rights[,]" because "[t]he court decided that, based on the offense, as presented by both the prosecution and [Petitioner’s] counsel, it could not ... grant the DANCP motion.” Dissenting opinion at 149,
. Notably, the dissent never states that the prosecutor’s statements had no impact on the court’s decision, and, in fact, as stated supra, seems to concede that they did. See dissenting opinion at 149,
Dissenting Opinion
Dissenting Opinion by
I respectfully dissent. I agree with the ICA that Miller forfeited his claim for breached plea agreement when he failed to raise this issue before the trial court. Moreover, inasmuch as Miller does not point to any error committed by the trial court, and also failed to argue how the breached plea agreement affected his substantial rights, the Intermediate Court of Appeals (“ICA”) would have had to notice this claim under the plain error standard sua sponte. The ICA did not gravely err in affirming Miller’s conviction and sentence when it declined to notice plain error sua sponte, and the circumstances of the case do not warrant such review on certiorari.
A. Failure to Preserve Breached Plea Agreement at Sentencing
First, I write to elaborate on the ICA’s ruling that, because Miller did not raise the alleged breach at sentencing or in a Hawai'i Rules of Penal Procedure Rule 35 motion, he cannot raise the issue for the first time on direct appeal. State v. Miller, No. 28849,
The United States Supreme Court has recently affirmed the position held by a majority of federal circuit courts on this issue
On appeal to the United States Fifth Circuit Court of Appeals, Puckett argued for the first time that the government breached the plea agreement at sentencing. Id. The government conceded that it violated the plea agreement, but contended that Puckett forfeited this claim when he failed to raise it in the District Court and that the plain-error standard of review applied. Id. The Fifth Circuit Court of Appeals agreed and held that, although error (the breached plea agreement) had occurred and was obvious, Puckett did not show that the error affected his substantial rights. Id. at 1428 (citing United States v. Puckett (“Puckett I”),
The Court observed the well-established rule that in order to properly preserve an error during a judicial proceeding, a litigant must bring the error to the attention of the tribunal. Id. Otherwise,
[t]his claim for relief from the error is forfeited. “No procedural principle is more familiar to this Court than that a ... right may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it.”
Id. (quoting Yakus v. United States,
There is good reason for this; anyone familiar with the work of courts understands that errors are a constant in the trial process, that most do not much matter, and that a reflexive inclination by appellate courts to reverse because of unpreserved error would be fatal. United States v. Padilla,415 F.3d 211 , 224 (1st Cir.2005) (en bane) (Boudin, C.J., concurring).
This limitation on appellate-court authority serves to induce the timely raising of claims and objections, which gives the district court the opportunity to consider and resolve them. That court is ordinarily in the best position to determine the relevant facts and adjudicate the dispute. In the ease of an actual or invited procedural error, the district court can often correct or avoid the mistake so that it cannot possibly affect the ultimate outcome. And of course the contemporaneous-objection rule prevents a litigant from “sandbagging” the court-remaining silent about his objection and belatedly raising the error only if the case does not conclude in his favor. Cf. Wainwright v. Sykes,433 U.S. 72 , 89,97 S.Ct. 2497 ,53 L.Ed.2d 594 (1977); see also United States v. Vonn,535 U.S. 55 , 72,122 S.Ct. 1043 ,152 L.Ed.2d 90 (2002).
Id. at 1428 (some internal quotation marks omitted) (brackets omitted).
Based on federal ease law and this jurisdiction’s rulings on waiver, the ICA did not gravely err when it determined that Miller waived his claim of a breached plea agreement. The ICA was limited to reviewing the claim of a breached plea agreement under the plain error standard.
B. Extending Plain Error Review To Errors Committed By the Parties Rather Than By the Trial Court
Miller’s opening brief did not conform with HRAP Rule 28(b)(4) inasmuch as it did not state the error committed by the court. More specifically, Miller’s opening brief raised as a point of error that “[t]he prosecutor violated the plea agreement,” but it did not state “the alleged error committed by the cowrt or agency,” as required by HRAP Rule 28(b)(4). (Emphasis added.)
Under the plain language of this rule, each point must state “the alleged error commit ted by the court.” HRAP Rule 28(b)(4); see also O’Connor v. Diocese of Honolulu,
Moreover, I am not saying that appellate courts are precluded from noticing plain error in reviewing a case that involves a breached plea agreement.
However, the majority insists that Miller satisfied HRAP Rule 28(b)(4) because he “succinctly stated in his points of error section fundamental errors that were committed, writing that ... the prosecutor violated the plea agreement[.]” Majority at 107-08,
In my view, the majority ignores the requirement of HRAP Rule 28(b)(4), and instead rewrites this rule. Compliance with HRAP Rule 28(b)(4) does not turn on correctly naming who—the court, or a particular party—is at fault for the court’s error. See majority at 109,
In Merino, the defendant pointed out the circuit court’s error “in allowing him to plead no contest” where “the complaint charging him with criminal conspiracy was fatally defective.”
Under the majority’s ruling, however, an opening brief will be reviewed where its point of error section states the alleged error committed by any party as long as fault may be attributed to that party. It is alarming that, under the majority’s construction of HRAP Rule 28(b)(4), Hawaii appellate courts are now required to review an error committed by any party—the prosecution or defendant in a criminal case, or the plaintiff, defendant, co-party in a civil case—if that party is responsible for the “error.” Consequently, where the appellant states as a point of error any party’s error (and by implication, the appellant’s own error in failing to object to the alleged error), the appellate court must rule as to this point, regardless of whether it is the appellant’s first objection to the error.
The majority’s opinion, therefore, requires Hawaii’s appellate courts to review errors committed by parties in addition to the trial court. This results in the appellate court first determining whether the appellant’s objection has merit, though that role is reserved for the trial court. As this court explained,
[tjhere are sound reasons for this rule. It is unfair to the trial court to reverse on a ground that no one even suggested might be error. It is unfair to the opposing party, who might have met the argument not made below. Finally, it does not comport with the concept of an orderly and efficient method of administration of justice.
Kawamata Farms, Inc. v. United Agri Prods.,86 Hawai'i 214 , 248,948 P.2d 1055 , 1089 (1997) (citation omitted).
Price,
C. Reviewing For Plain Error Sua Sponte
In his application, Miller seeks review of the ICA’s ruling, apparently under a de novo standard, based on (1) past ease law reviewing breached plea agreements, and (2) the prosecution’s alleged breach of the plea agreement. Miller recited case law demonstrating that a breached plea agreement has affected other defendants’ substantial rights, but he did not show how he, specifically, suffered prejudice from the alleged breach of the plea agreement, i.e., evidence that the court would have granted the DANCP motion if not for the breach. He claims generally that the breach “affected [his] substantial rights by influencing whether he would be granted a DANCP,” but he does not explain how the court’s error had this effect. Miller thus seeks to inflate the “plain error standard”—in his view, any time the prosecution breaches a plea agreement, the defendant is “prejudiced” and his or her “fundamental rights [were] affected.” Miller alleges that his claim should be reviewed under the plain error standard, but he actually argues for a de novo standard of review for forfeited claims of breached plea agreements. As such, in order to scrutinize Miller’s claim under the plain error standard, the majority is required to inject its own analysis as to the effect of the prosecution’s breach of the plea agreement. See majority at 106-07,
Hawaii appellate courts may notice error not raised on appeal and at the trial court,
At the outset, I observe that this court has stated that the “appellate court’s discretion to address plain error is always to be exercised sparingly.” Okada Trucking Co., Ltd. v. Bd. of Water Supply,
Fields elaborated on this standard by quoting other courts highlighting the importance of the adversary system, as follows:
See also Penson v. Ohio,488 U.S. 75 , 84[,109 S.Ct. 346 ,102 L.Ed.2d 300 ] (1988) (“This system is premised on the well-tested principle that truth—as well as fairness—is best discovered by powerful statements on both sides of the question.”); Hines v. United States,971 F.2d 506 , 509 (10th Cir.1992) (“The rule that points not argued will not be considered is more than just a prudential rule of convenience; its observance, at least in the vast majority of cases, distinguishes our adversary system of justice from the inquisitorial one.”) (Citing United States v. Burke,504 U.S. 229 , 249[,112 S.Ct. 1867 ,119 L.Ed.2d 34 ] (1992) (Scalia, J., concurring).); Ford v. United States,533 A.2d 617 , 624 (D.C. 1987) (“The premise of our adversarial system is that appellate courts do not sit as self-directed boards of legal inquiry and research, but essentially as arbiters of legal questions presented and argued by the parties before them.”) (Citation omitted.); Carducci v. Regan,714 F.2d 171 , 177 (D.C.Cir.1983) (“Failure to enforce this requirement will ultimately deprive us in substantial measure of that assistance of counsel which the system assumes—a deficiency that we can perhaps supply by other means, but not without altering the character of our institution.”).
When an appellate court notices plain error sua sponte, it “depart[s] from the position usually presupposed by the adversary system that a party must look to his counsel to protect him and that he must bear the cost of the mistakes of his counsel” twice: first, when the counsel failed to preserve the error at the lower court and, subsequently, when the counsel failed to argue the plain error on appeal. The appellate court must seek power to notice plain error sua sponte from both HRAP Rule 28(b)(4) and HRPP Rule 52(b). The power to deal with plain error sua sponte, therefore, should be exercised even more “sparingly” than the “power to deal with plain error.” As such, this court has stated that an appellate court should notice plain error sua sponte in “exceptional circumstances.” Fox,
The majority also posits that the language of HRAP Rule 28(b)(4) and HRPP Rule 52(b) already “encompass a preference for the adversarial system.” See majority at 117,
Dismissing the value of our court’s explanations and discussions of these rules, and seeking to rely solely on HRPP Rule 52(b) and HRAP Rule 28(b)(4), see majority at 118,
The majority further disregards the dangers present when reviewing for plain error sua sponte, and plain error generally, claiming that a two-tiered standard for reviewing plain errors would “invite not only due process, but equal protection- objections” because it “would create two classes of defendants who could have suffered the same substantial right injury, granting one relief but denying it to the other on the circumstance that plain error was expressly raised in one instance but not in the other.” Majority at 119,
A review of the small number of cases in which this court has noticed plain error sua sponte
As this court’s case law has demonstrated, when an appellant fails to identify or argue a court’s error, an appellate court should only notice an extraordinary plain error sua sponte. Anytime this power is exercised, both parties are precluded from presenting arguments on the issue and our adversarial system is directly undermined.
D. Noticing Plain Error Sua Sponte
This court may notice plain error to correct errors “which seriously affect the fairness, integrity, or public reputation of judicial proceedings, to serve the ends of justice, and to prevent the denial of fundamental rights,”—and, arguably, in extraordinary circumstances. The majority correctly states that this court may review a breached plea agreement claim for plain error, but it (1) applies a de novo standard for a breached plea agreement claim raised for the first time on appeal, and (2) determines that Miller’s fundamental rights were violated based on the breached plea agreement itself. I disagree with the majority’s application of the plain error standard.
1. A breached plea agreement does not in itself satisfy the plain error requirements.
“[T]he decision to take notice of plain error must turn on the facts of the particular case to correct errors that ‘seriously affect the fairness, integrity, or public reputation of judicial proceedings.’ ” Fox,
Thus, in order to notice plain error, the majority must determine that, based on the record, Miller’s substantial rights were affected from the breached plea agreement. The majority states that
[Miller’s] right to due process was violated based on the circumstances.of this case, because (1) the promise of the prosecution to take no position on DANCP was central to the promise made by the prosecution as a condition of the plea, and thus, was clearly material to [Miller’s] resulting decision to forego all of his constitutional rights and plead guilty,[ ] and (2) the court’s rationale for rejecting [Miller’s] DANCP, closely reflected the prosecution’s position, which was offered for no other apparent reason than to influence the court’s decision to grant or deny the DANCP.
Majority at 125-26,
First, the majority’s conclusion that Miller’s due process rights were violated, in part, because of the court’s rationale for rejecting Miller’s DANCP, is contradicted by
The majority concludes that Miller’s fundamental rights were violated based entirely on the fact of a breached plea agreement— and without a discussion of how Miller’s due process rights were affected in this ease.
Hence, in this ease, the terms of the agreement were not fulfilled and [Miller] was denied his due process rights; thus, there was “manifest injustice as a matter of law.” See [State v. ]Adams, 76 Hawai'i [408, ]414, 879 P.2d [513,] 519 [(1994)]. Accordingly, [Miller’s] fundamental rights were indeed violated. See id. (noting that “[t]he fundamental rights flouted by a prosecutor’s breach of a plea agreement are those of the defendant, not of the State” (quoting Santobello,404 U.S. at 267 [,92 S.Ct. 495 ] (Douglas, J., concurring))). Because contravention of the plea agreement violated Petitioner’s fundamental rights and resulted in manifest injustice, it was incumbent upon the ICA to recognize the violation as plain error under HRPP Rule 52. See Santobello,404 U.S. at 262 [,92 S.Ct. 495 ] (concluding that the “interests of justice” require that the case be remanded for relief based on the breach, despite accepting the judge’s assertion that “the prosecutor’s recommendation did not influence him”).
Majority at 106,
I agree that “breaches of plea agreements” may “provide appropriate bases for appellate review under the plain error standard[.]” Majority at 101,
Even assuming, arguendo, that the prose-, cution breached the plea agreement, it does not follow that Miller “was denied his due process rights” or that his “fundamental rights were indeed violated.” See majority at 106,
Although the majority states that the prosecution’s promise to take no position on DANCP “was clearly material to [Miller’s] resulting decision to forego all of his constitutional rights and plead guilty,” see majority at 125,
In my view, the majority’s position on breached plea agreements (1) is misleading, where it restates our long-held plain error standard, see majority at 99-100,
2. Federal case laiv
“We have never employed the four-pronged plain error standard of review set forth in [U.S. v. Olano,
Each federal circuit court of appeals that reviewed a breach of a plea agreement for plain error required a showing that there was “(1) error; (2) that was plain; (3) that affected substantial rights; and (4) that seriously affected the fairness, integrity, or public reputation of the judicial proceedings.” Cannel,
The federal cases reviewing breached plea agreements for plain error have determined that, even where the prosecution breaches the plea agreement, the defendant is not automatically prejudiced or deprived of his or her “fundamental rights.” See Cannel,
The majority’s ruling is also at odds with the Supreme Court’s clear ruling that a breached plea agreement does not satisfy the plain error requirement that the error “must have affected the [defendant’s] substantial rights.” See Puckett II,
Furthermore, the Supreme Court rejected the claim that a breached plea agreement always impairs a defendant of his “substantial rights.” Id. It explained that a breached plea agreement does not necessarily prejudice the defendant where the defendant may have obtained the benefits of the plea agreement “either because he obtained the benefits contemplated by the deal anyway (e.g., the sentence that the prosecutor promised to request) or because he likely would not have obtained those benefits in any event.” Id. at 1432-33. According to the Supreme Court, the claim that a defendant asserting a breached plea agreement will always suffer an impairment of his substantial rights
is simply an ipse dixit recasting the conceded error—breach of the plea agreement—as the effect on substantial rights. Any trial error can be said to impair substantial rights if the harm is defined as “being convicted at a trial tainted with [fill-in-the-blank] error.” Nor does the fact that there is a “protected liberty interest” at stake render this case different. That interest is always at stake in criminal cases.
Id. at 1433 (emphasis added).
The majority dismisses the Supreme Court’s recent limitation of errors not objected to at the trial court, stating that Puckett II “departed from federal precedent on breached plea agreements in significant respects, ... all but overturning Santobello’s holding that ‘automatic reversal is warranted’ where a plea agreement is breached.’ ” Majority at 130,
Moreover, even though Puckett II is clear that an error that is not preserved is reviewed under a higher standard, the majority insists on clinging to the statements of San-tobello and the Hawai'i ease law that followed it, even though the defendants preserved error and the appellate courts subsequently reviewed the trial court’s rejection of the defendant’s claim of a breached plea agreement. See majority at 100-01,
Although stated differently from the federal four-prong standard, the Hawai'i plain error standard also requires that the error affect the defendant’s substantial rights. In light of Puckett II and the other federal decisions on this issue, I cannot agree with the majority’s decision to erode Hawaii’s plain error standard by determining that a breached plea agreement automatically denies a defendant of his substantial rights.
Although the majority decides that the breached plea agreement itself denied Miller of his due process rights, see majority at 101-02,
Assuming, arguendo, that the prosecution breached the plea agreement,
[the court’s] statement mirrors the prosecutor’s comments regarding the severity of the crime and that “[Miller] does not have a prior criminal record, but you know, at [fifty-one] years old, you shouldn’t be doing that to a significant loved one. And this type of beating and brutality should not be accepted in our society.”
Id. at 102,
Yet, the court’s ruling indicates that it took into account the defense counsel’s factual statements that
[t]he [c]ourt has the discretion to grant the deferral. If the [e]ourt makes two findings, and one, it appears that the defendant’s not likely, again to engage in a criminal course of conduct; and two, the ends of justice and the welfare of society have been properly served by the penalty as imposed by law.
.... [H]e’s 51 years old. He has no prior criminal record. ... I ask that you use your discretion where [Miller] has not engaged at all in any criminal conduct. He’s 51 years old.
(Emphases added.) It may seem implausible that the court considered Miller’s counsel’s statements because these facts were presented in support of the DANCP motion, and the court ruled against the motion. However, the court stated, “although [it could] find the defendant has had no record for [fifty-one] years,” it could not make the required finding
The remainder of the court’s ruling denying the DANCP motion was based on whether “the defendant is not likely again to engage in a criminal course of conduct,” and “[t]he ends of justice and the welfare of society do not require that the defendant shall presently suffer the penalty imposed by law,” which are requirements that a defendant must satisfy prior to a court’s grant of a DANCP motion. See HRS § 853-1(a)(2)-(3). The court stated that it could not make these findings based on Miller’s offense. The court was aware of Miller’s offense because of statements made by both Miller’s counsel and the prosecution—in its sentencing state: ments—regarding Miller’s offense.
In response to the court’s “Sentencing” prompt, the prosecution described the nature of the offense, which is a factor of sentencing, see HRS § 706-606, as follows:
[Tjhis case was borderline strangulation. The defendant actually elbows her, kneed her in the back, punched her, choked her, put his hand over her mouth, and told her to be quiet, and then also took a pillow after that because she wouldn’t be quiet and put it over her face.
At that time, your Honor, the witness in this case, the victim, actually feared for her life. And, you know, she’s [fifty-one] years old. So is the defendant.
The prosecution also referred to the complaining witness (“CW”) as a “significant loved one.”
Miller’s counsel next spoke as to the offense and the court’s discretion to grant the DANCP motion. He further discussed Miller’s relationship with CW and the resulting injuries to the complaining witness:
[Miller] has had a [fourteen]-year relationship with [CW], and frankly, during the last four years of it, it has ended. And he has been ordered to attend Child and Family Services domestic violence classes. He has told me that he is actually learning a lot about it.
[[Image here]]
He has agreed to pay whatever restitution to be determined, given the four-day later emergency check out to the office....
I just want the court to note, while we are not minimizing his plea and apology, when Officer Katayama appeared at the scene, there was no complaint of injuries. She showed the officer no injuries, and Officer Katayama would have testified that he’s tried to look for injuries. Look for and found none.
(Emphases added.)
The prosecution, in response, informed the court as to the extent of the CWs injuries:
We did have Dr. Nelson from the ER examine [CW], and did see—well, diagnosis, she had a bruised neck; and also, in talking with Miss Moyco, she did have bruises to her leg area by basically getting into a fetal position to block the defendant.
So Officer Katayama, even though he was on the scene first, bruises do show up later.
A fair review of the record does not show that the prosecution’s statements to the court, even if they could be construed to be in violation of the plea agreement, affected Miller’s substantial rights. The court decided that, based on the offense, as presented by both the prosecution and Miller’s counsel, it could not find the necessary pre-requisites to grant the DANCP motion. See HRS § 853-1. The court was also well aware as to the type of crime Miller committed because Miller was originally charged with Abuse of a Family or Household Member, under HRS § 709-906. Moreover, the court was further informed as to the offense when, pursuant to the plea agreement, it sentenced Miller to write a letter of apology to CW, participate in domestic violence intervention classes, and pay restitution to CW. Based on the ample evidence before the court regarding Miller’s offense, I cannot agree that the prosecution’s statements affected Miller’s substantial rights, or that the error created such “exceptional circumstances” that this court must notice plain error sua sponte.
. See Price v. AIG Ins. Co., Inc.,
. The majority of the federal circuit courts of appeal hold that a claim for a breached plea agreement is waived if not raised prior to appeal and may only be reviewed for plain error. See United States v. Cannel,
. The majority notes that I "fail[] to elaborate as to what is the legal significance of 'mere notice,’ why 'mere notice' does not satisfy HRAP Rule 28(b), or why [Miller's] express discussion of plain error review served only to provide 'notice' as opposed to actually raising the issue[.]” Majority at 110,
. The majority cites to cases that reviewed cases that involved allegations of breached plea agreements, but those cases do not quote to the appellants' points of error or otherwise indicate that the appellants in those cases failed to cite to a court’s error in compliance with HRAP Rule 28(b)(4). See State v. Chindo,
. Miller's claim that "Hawai'i appellate courts have not hesitated to invoke the plain error doctrine” is wrong. (Emphasis added.) (Citing to State v. Nichols,
Our court has used the word "sparingly” in order to limit appellate courts from noticing plain error. See The Random House College Dictionary 1260 (rev'd ed.1975) (defining "sparing” as "3. lenient or merciful. 4. frugally restricted. 5. scanty; limited-[sparingly], adv.”).
. In Justice Acoba's dissenting opinion in Fields, he stated, among other things, that "even if Fields had failed to raise these issues in his certiorari application,” the court has the "inherent power to notice plain error sua sponte.”
In re Doe,102 Hawai'i 75 , 87,73 P.3d 29 , 41 (2003) [ (Acoba, J., dissenting) ]; State v. McGriff,76 Hawai'i 148 , 155,871 P.2d 782 , 789 (1994) (citing State v. Grindles,70 Haw. 528 , 530,777 P.2d 1187 , 1189 (1989) (the power to sua sponte notice plain errors or defects affecting substantial rights’ clearly resides in this court (quoting State v. Hernandez,61 Haw. 475 , 482,605 P.2d 75 , 79 (1980)))); State v. Iaukea,56 Haw. 343 , 355,537 P.2d 724 , 733 (1975) (This court ha[s] the power, sua sponte, to notice plain errors or defects in the record affecting substantial rights not properly brought to the attention of the trial judge or raised on appeal (citing State v. Yoshino,50 Haw. 287 , 289,439 P.2d 666 , 668 (1968); State v. Cummings,49 Haw. 522 , 528,423 P.2d 438 , 442 (1967); State v. Ruiz,49 Haw. 504 , 507,421 P.2d 305 , 308 (1966))).
Id.
Again, I do not dispute an appellate courts’ ability to notice plain error sua sponte. See supra at 138,
. The cases that did notice plain error involved extraordinary errors. See State v. Staley,
Moreover, I certainly recognize that the denial of constitutional rights may well be extraordinary. However, the majority places too much emphasis on the exact words used. Instead, it behooves the majority to place that language in context with the circumstances of the cases that even it relies on. For example, the majority's citation to State v. Heapy,
. The majority finds this “ironic,” inasmuch as the prosecution argued against the ICA noticing plain error. Majority at 125,
. The majority states that Miller's right to due process was violated, in part, because "the court's rationale for rejecting [Miller's] DANCP, closely reflected the prosecution's position.” Majority at 126,
. The majority’s cited cases, Adams, and Santobello v. New York,
In Adams, the defendant sought to withdraw his plea, arguing in a motion for reconsideration that the plea agreement was breached. Adams,
Hawai'i precedent does not support the majority’s claim that a breached plea agreement automatically denies a defendant of his due process rights and/or violates his fundamental rights. Because Adams was not subject to plain error review, the case does not dictate that a breach of a plea agreement requires the case to be remanded, even where the claim is forfeited.
I also note that the majority’s quotation that "a breach is undoubtedly a violation of the defendant's rights,'' majority at 130,
Such a breach is undoubtedly a violation of the defendant's rights, but the defendant has the opportunity to seek vindication of those rights in district court; if he fails to do so, Rule 52(b) as clearly sets forth the consequences for that forfeiture as it does for all others. Puckett II,129 S.Ct. at 1429 (citation omitted) (emphases added).
. The majority claims that I am "[u]rging ... that the denial of due process, i.e., the breach, does not 'in fact' affect substantial rights,” and that it "is contrary to this court's plain error jurisprudence, and would greatly diminish due process protections under our constitution." Majority at 127,
. I strongly disagree with the majority's attempt to recharacterize a portion of my dissent, where it suggests that I "seem to” claim that "cases wherein this court has concluded that fundamental rights were denied outside of the plain error context, cannot be used as support for the proposition that substantial rights were affected in the plain error context." Majority at 127,
. Although the plea agreement precluded the prosecution from taking a position as to the DANCP motion, the prosecution was permitted to make statements as to Miller’s sentencing. The prosecution argues that its statements relating to Miller’s offense was made in response to the court’s prompt, "Sentencing?," and for the purpose of influencing the court's ruling as to Miller’s sentencing.
This case differs from the cases relied on by Miller, see majority at 98,
In ruling on sentencing, the court is required to consider, among other things:
(1) The nature and circumstances of the offense and the history and characteristics of the defendant;
(2) The need for the sentence imposed:
(a) To reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense;
(b) To afford adequate deterrence to criminal conduct!.]
HRS § 706-606. The prosecution’s statements that the complaining witness was a “significant loved one," and that "this type of beating and brutality should not be accepted in our society” directly addresses "[t]he nature and circumstances of the offense” and "[t]he need for the sentence imposed ... to reflect the seriousness of the offense ... and to provide just punishment for the offense.” Because the prosecution’s statements addressed the sentencing factors, I cannot agree that it breached its promise not to take a position as to the DANCP motion.