***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER*** Electronically Filed Supreme Court SCWC-XX-XXXXXXX 21-DEC-2018 08:07 AM IN THE SUPREME COURT OF THE STATE OF HAWAII ---o0o--- STATE OF HAWAII, Respondent/Plaintiff-Appellee, vs. PIERRE HERNANDEZ, Petitioner/Defendant-Appellant. SCWC-XX-XXXXXXX CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CAAP-XX-XXXXXXX; CASE NO. 1DCW-XX-XXXXXXX) DECEMBER 21, 2018 McKENNA, POLLACK, and WILSON, JJ., WITH NAKAYAMA, J., CONCURRING AND DISSENTING, WITH WHOM RECKTENWALD, C.J., JOINS OPINION OF THE COURT BY POLLACK, J. In this appeal, Pierre Hernandez challenges the validity of his no contest plea and the sentence imposed, both of which occurred after the trial court found that Hernandez had waived his presence at the court proceeding by the filing of a document signed by Hernandez and a declaration by his counsel. ***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER*** We first conclude that Hernandez’s challenge to his sentence was not precluded by his plea of no contest. We also hold that Hernandez’s right of allocution, which is protected by the Hawaii Revised Statutes and the Hawaii Constitution, was violated when the district court did not afford him the opportunity to be heard prior to being sentenced. Lastly, we conclude that the district court’s acceptance of Hernandez’s no contest plea without an on-the-record colloquy was plain error. We thus vacate Hernandez’s conviction and remand the case to the district court for further proceedings consistent with this opinion. I. FACTS AND PROCEDURAL HISTORY On November 6, 2014, the State of Hawaii charged Pierre Hernandez by complaint in the District Court of the First Circuit (district court) with harassment by stalking in violation of Hawaii Revised Statutes (HRS) § 711-1106.5.1 1 HRS § 711-1106.5 (1993 & Supp. 2013) provides the following: (1) A person commits the offense of harassment by stalking if, with intent to harass, annoy, or alarm another person, or in reckless disregard of the risk thereof, that person engages in a course of conduct involving pursuit, surveillance, or nonconsensual contact upon the other person on more than one occasion without legitimate purpose. (2) A person convicted under this section may be required to undergo a counseling program as ordered by the court. (continued . . .) 2 ***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER*** On January 6, 2015, Hernandez through counsel filed a “Rule 43 Plea by Mail” (“plea by mail document” or “the document”) pursuant to Rule 43 of the Hawaii Rules of Penal Procedure (HRPP).2 The document indicated that Hernandez was (. . . continued) (3) For purposes of this section, “nonconsensual contact” means any contact that occurs without that individual’s consent or in disregard of that person’s express desire that the contact be avoided or discontinued. Nonconsensual contact includes direct personal visual or oral contact and contact via telephone, facsimile, or any form of electronic communication, as defined in section 711-1111(2), including electronic mail transmission. (4) Harassment by stalking is a misdemeanor. 2 HRPP Rule 43 (2012) provides in relevant part as follows: (a) Presence required. The defendant shall be present ...
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