State v. Semes

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
17-JUN-2022
07:56 AM
Dkt. 61 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I

STATE OF HAWAI#I, Plaintiff-Appellee, v.
ROMAN SEMES, Defendant-Appellant

APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT
(CASE NO. 2PC151001014(3))

SUMMARY DISPOSITION ORDER
(By: Ginoza, Chief Judge, Leonard and Wadsworth, JJ.)

Defendant-Appellant Roman Semes (Semes) appeals from

the August 4, 2020 Order Denying Defendant's Motion to Dismiss

Count Five of the Indictment for Failure to State an Offense

(Order Denying Second Motion to Dismiss), entered in the Circuit

Court of the Second Circuit (Circuit Court).1

Semes raises a single point of error on appeal,

contending that the Circuit Court erred when it entered the Order

Denying Second Motion to Dismiss.

1
The Honorable Kelsey K. Kawano entered the Order Denying Motion.
The Honorable Joseph E. Cardoza presided over the underlying criminal
proceeding and entered the Judgment.
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Upon careful review of the record and the briefs

submitted by the parties, and having given due consideration to

the arguments advanced and the issues raised by the parties, we

resolve Semes's point of error as follows:

On April 2, 2018, the Circuit Court entered a Judgment;

Conviction and Sentence; Notice of Entry (Judgment) in the

underlying criminal proceeding. Pursuant to a plea agreement and

guilty plea, Semes was convicted on two counts of Negligent

Homicide in the First Degree, in violation of Hawaii Revised

Statutes (HRS) § 707-702.5 (2014), two counts of Negligent Injury

in the First Degree, in violation of HRS § 707-705 (2014), and

one count of Accidents Involving Death or Serious Bodily Injury,

in violation of HRS § 291C-12 (2020) (Count 5),2 and sentenced to

consecutive terms of imprisonment, collectively totaling 40

years, including 10 years for Count 5. Prior to the entry of the

Judgment, on March 22, 2018, Semes filed a motion to dismiss

Count 5 for failure to state an offense (First Motion to

Dismiss), which was orally denied at the sentencing hearing held

on April 2, 2018, with a written order entered on August 14,

2018.

2
HRS § 291C-12 provides, in relevant part:

§ 291C-12 Accidents involving death or serious bodily
injury. (a) The driver of any vehicle involved in an
accident resulting in bodily injury to or death of any
person shall immediately stop the vehicle at the scene
of the accident or as close thereto as possible but
shall then forthwith return to and in every event
shall remain at the scene of the accident until the
driver has fulfilled the requirements of section
291C-14. Every such stop shall be made without
obstructing traffic more than is necessary.

2
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

On November 18, 2018, Semes filed a direct appeal from

the Judgment (CAAP-XX-XXXXXXX), challenging the Circuit Court's

denial of his demand for a jury trial on the issue of consecutive

sentences on due process grounds, but not arguing that (1) the

Circuit Court abused its discretion in imposing consecutive

sentences, or (2) the Circuit Court erred in denying the First

Motion to Dismiss. This court affirmed the Judgment, and Semes's

petition for writ of certiorari was ultimately dismissed.

Subsequent to the filing of Semes's direct appeal in

CAAP-XX-XXXXXXX, on March 13, 2020, the supreme court issued

State v. Baker, 146 Hawai#i 299, 463 P.3d 956 (2020), where it

assessed whether a charge must include that "every such stop be

made without obstructing traffic more than is necessary" when

charging a driver with the offense of not stopping at an accident

scene and providing the required information under HRS § 291C-13

(2020).3 Id. at 302, 463 P.3d at 959. The supreme court held

that, "[t]he requirement that the stop was made without

obstructing traffic more than is necessary is thus a requisite

aspect of proof of the offense when the driver stops at, or

forthwith returns to, a location that the State contends is not

as close as 'possible' to the accident scene." Id. at 307, 463

P.3d at 964.

3
As the State acknowledges, although HRS § 291C-13 involves the
offense of Accidents Involving Damage to Vehicle or Property, the identical
subject phrase is contained in HRS § 291C-12.

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Thereafter, on June 12, 2020, Semes filed a second

Motion to Dismiss [Count 5] for Failure to State an Offense,

citing Baker (Second Motion to Dismiss). In opposition, the

State noted that the motion was procedurally improper, as Semes

should have sought relief pursuant to Hawai#i Rules of Penal

Procedure (HRPP) Rule 40, and argued that by pleading guilty to

Count 5, Semes was precluded from challenging the charge on

collateral review because the failure to allege an element of an

offense is a non-jurisdictional defect. After a hearing on the
motion, the Circuit Court entered the Order Denying Second Motion

to Dismiss, and this appeal followed.

We review the Order Denying Second Motion to Dismiss as

a denial of a nonconforming HRPP Rule 40 petition.

As argued by the State, pursuant to a plea agreement

that included the dismissal of certain counts against Semes,

Semes pleaded guilty to the remaining counts, including Count 5.

Semes thereafter moved to dismiss Count 5 for failure to allege

an element of the offense after his guilty plea.

"[A] guilty plea made voluntarily and intelligently

precludes a defendant from later asserting any nonjurisdictional

claims, including constitutional challenges to the pretrial

proceedings." State v. Morin, 71 Haw. 159, 162, 785 P.2d 1316,

1318 (1990). The omission of an element of an offense is a

nonjurisdictional claim. Schwartz v. State, 136 Hawai#i 258,

282, 361 P.3d 1161, 1185 (2015) ("[T]he failure of a charging

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NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

instrument to allege an element of an offense does not constitute

a jurisdictional defect that fails to confer subject-matter

jurisdiction to the district court."). The Second Motion to

Dismiss, which sought dismissal of Count 5 for failure to include

an element of the offense, raised a nonjurisdictional claim.

Thus, we conclude that the Circuit Court did not err in denying

the Second Motion to Dismiss.

Accordingly, the Circuit Court's August 4, 2020 Order

Denying Second Motion to Dismiss is affirmed.

DATED: Honolulu, Hawai#i, June 17, 2022.

On the briefs: /s/ Lisa M. Ginoza
Chief Judge
Keith S. Shigetomi,
for Defendant-Appellant. /s/ Katherine G. Leonard
Associate Judge
Renee Ishikawa Delizo,
Deputy Prosecuting Attorney, /s/ Clyde J. Wadsworth
County of Maui, Associate Judge
for Plaintiff-Appellee.

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