Date: Oct 24, 2026

State v. Gaeta: No Remorse Penalty After a No-Contest Plea and No Contractual Evasion of Constitutional Sentencing Limits

Supreme Court of Hawaiʻi · SCWC-23-0000359 · October 22, 2026 · Opinion by McKenna, J.

1. Introduction

State v. Gaeta addresses the constitutional limits of judicial discretion after a negotiated no-contest plea. Although the Supreme Court of Hawaiʻi affirmed Ashley Vincent Gaeta’s conviction and probation sentence, it announced two important rules: plea agreements cannot authorize sentencing practices that violate constitutional protections against punishment for dismissed charges, and a defendant’s failure to express remorse after a no-contest plea cannot be used adversely in sentencing or in deciding whether to defer acceptance of that plea.

The case arose from allegations of sexual assault. Gaeta originally faced three felony counts involving actual or attempted sexual penetration. Under a negotiated disposition, those charges were dismissed in exchange for his no-contest plea to misdemeanor fourth-degree sexual assault based on knowingly exposing his genitals in a manner likely to alarm the complaining witness or cause her fear of bodily injury.

Gaeta sought deferred acceptance of his no-contest plea, commonly called a DANC. The circuit court denied that request because of the impact on the complaining witness and sentenced him to one year of probation. He argued that the court had improperly relied on dismissed penetration allegations and his supposed lack of remorse.

The Supreme Court rejected those challenges on the record presented. However, after supplemental briefing, it separately prohibited plea provisions designed to circumvent constitutional sentencing restrictions and established a prospective protection against adverse use of unexpressed remorse following a no-contest plea.

2. Background and Procedural History

The allegations and negotiated misdemeanor charge

The complaining witness, approximately nineteen years old, knew Gaeta before the incident and described him as an uncle-like figure. After an evening with friends in May 2021, she and Gaeta were alone in a friend’s home. She later alleged nonconsensual sexual acts, including penetration. Gaeta did not deny sexual contact but maintained that the encounter was consensual. The allegations underlying the dismissed felony charges therefore must be distinguished from conduct established by the ultimate criminal disposition.

A grand jury indicted Gaeta on two counts of second-degree sexual assault and one count of attempted second-degree sexual assault. A later complaint added the fourth-degree sexual-assault charge. That distinction mattered because the original charges were ineligible for deferred acceptance, whereas the misdemeanor charge was eligible.

The two plea arrangements

Under the initial agreement, the State would dismiss the felony counts and would not oppose a DANC motion. After the complaining witness strongly opposed a deferral and described substantial harm, the circuit court postponed its decision. That arrangement did not produce the final disposition.

The second agreement again provided for a no-contest plea to the misdemeanor and dismissal of the felony counts, but the State reserved the right to oppose deferral. It also included this provision:

“Facts and circumstances of dismissed charges may be considered at sentencing.”

At the subsequent hearing, the complaining witness again described serious psychological consequences and alleged drugging, rape, and transmission of a sexually transmitted disease. Those assertions were allegations, not findings establishing the dismissed offenses.

The circuit court’s ruling and appellate review

The circuit court denied deferral and imposed probation. Although it initially commented on Gaeta’s apparent lack of remorse, it expressly withdrew that consideration after defense counsel objected. It also repeatedly stated that it was not considering sexual penetration. Its stated basis for denying deferral was the impact on the complaining witness.

The Intermediate Court of Appeals affirmed. The Supreme Court accepted certiorari and requested supplemental briefing on the enforceability of the dismissed-charge provision and the permissibility of considering lack of remorse after a no-contest plea.

3. Summary of the Opinion

The DANC denial was affirmed. The circuit court permissibly considered the psychological impact of the misdemeanor offense and expressly excluded penetration allegations and lack of remorse from its decision.
The plea agreement could not override constitutional sentencing restrictions. A provision attempting to authorize consideration prohibited by judicial precedent seeks an illegal sentence and violates Article I, Sections 5 and 14 of the Hawaiʻi Constitution. Such provisions must not appear in plea agreements.
A no-contest plea preserves a limited privilege against self-incrimination. Under Article I, Section 10, the defendant retains protection against being compelled to make statements that could adversely affect sentencing or a DANC determination.
Failure to express remorse cannot be used adversely after a no-contest plea. This new constitutional rule applies prospectively to events occurring after October 22, 2026.
The ICA’s lesser-included-offense reasoning was incorrect. The particular fourth-degree sexual-assault charge was not a lesser-included offense of the dismissed attempted second-degree sexual-assault charge.

The Supreme Court nevertheless affirmed both the circuit court’s August 7, 2023 first amended judgment and the ICA’s September 23, 2025 judgment. Circuit Judge Holma concurred in the result only.

4. Analysis

A. Statutory Framework and Legal Reasoning

Deferral is an opportunity, not an entitlement

HRS § 853-1 permits deferred acceptance when a defendant voluntarily pleads guilty or no contest before trial, appears unlikely to engage again in criminal conduct, and satisfies the requirement that immediate punishment is unnecessary to serve the ends of justice and society’s welfare.

The statutory policy favors rehabilitation, especially for first-time, accidental, or situational offenders whose future opportunities could be unnecessarily impaired by a conviction. If a defendant successfully completes the deferral conditions, the court dismisses the charge without an adjudication of guilt. Expungement may later be sought under the applicable statutory requirements.

Eligibility, however, does not compel deferral. Here, the parties agreed that Gaeta’s plea was timely and voluntary and that anticipated recidivism was not the reason for denial. The dispute concerned the remaining requirement: whether justice and society’s welfare nevertheless called for a present conviction and penalty.

Although sentencing decisions are persuasive rather than controlling in DANC proceedings, courts must understand the offense, the defendant’s circumstances, and the relevant harm. The trial court’s discretion remains broad, but it cannot rest on constitutionally forbidden considerations.

Victim impact may be considered without punishing dismissed offenses

The central factual difficulty was that the complaining witness’s account described harm from alleged penetration, while the offense of disposition involved genital exposure. Gaeta argued that relying on her trauma necessarily imported the dismissed allegations into the DANC decision.

The Supreme Court rejected that inference. It emphasized the circuit court’s repeated exclusion of penetration and its failure to rely on the alleged transmission of a sexually transmitted disease. The Court also recognized that genital exposure in circumstances likely to cause alarm or fear of bodily injury can itself produce substantial psychological harm.

Thus, the Court found an independently sufficient connection between the permissible offense and the harm considered. The circuit court did not abuse its discretion by concluding that this impact justified denying deferral.

This is a record-specific conclusion, not blanket permission to consider every allegation appearing in a victim-impact statement. Nor does the opinion establish that a judge’s disclaimer will invariably cure reliance on improper material. The decisive point was the Court’s assessment that the stated ground for decision was both lawful and sufficiently supported without resort to the dismissed conduct.

Consent cannot authorize an unconstitutional sentencing basis

The plea provision presented a separate institutional concern. Although the circuit court did not rely on it, and the State did not invoke it to defend the judgment, the Supreme Court addressed its apparent purpose: permitting consideration of dismissed sexual-penetration charges despite existing precedent.

The Court rejected the premise that ordinary contract law could validate such a term. Plea agreements implicate constitutional rights and operate against a background of unequal bargaining power. A defendant may waive important trial rights, but that does not mean every sentencing protection is available for contractual surrender.

Article I, Section 5 protects due process, while Article I, Section 14 includes the right to notice of the accusation. Punishing a defendant for dismissed conduct in the prohibited manner implicates both protections. An agreement attempting to override those constitutional limits seeks an illegal sentence.

The Court reinforced this conclusion through the availability of challenges to illegal sentences. A guilty or no-contest plea does not itself waive an appeal asserting sentencing illegality, and HRPP Rule 40(a)(1)(iii) permits post-conviction relief from an illegal sentence even after an unsuccessful direct appeal.

The holding should not be overstated as excluding every circumstance connected to a dismissed charge. The opinion retains the distinction between impermissibly punishing a dismissed offense and permissibly evaluating circumstances relevant to the offense of disposition. What the parties cannot do is contract around an existing constitutional prohibition.

The Court did not invalidate Gaeta’s entire agreement or order resentencing because of the clause. Its nonuse in the actual decision allowed the judgment to stand.

A no-contest plea does not require a factual confession

The remorse holding rests on the distinctive structure of a no-contest plea. Under HRPP Rule 11(b), a court must consent to such a plea after considering the parties’ views and the public interest in effective administration of justice. Unlike a guilty plea, a no-contest plea does not require the court to establish a factual basis under HRPP Rule 11(g).

Once the court permits that form of disposition, the defendant has a right not to admit a factual basis for the charge. Requiring an expression of remorse on pain of a harsher sentence or denial of deferral could undermine that right by pressuring the defendant to make an incriminating acknowledgment.

Accordingly, the Court held that the plea waives the privilege against self-incrimination only to a limited extent. The defendant retains protection against compelled statements that could adversely affect sentencing or deferral.

The practical rule is categorical within its stated setting: after a no-contest plea, failure to express remorse cannot be used against the defendant. A judge who regards an expression of remorse as indispensable to effective administration of justice must address that concern when deciding whether to permit the no-contest plea, rather than imposing a later penalty for the defendant’s silence.

The rule is prospective and does not prohibit voluntary remorse

The new prohibition applies to events occurring after the opinion’s date. The Court did not announce general retroactive relief for earlier cases in which remorse had been considered.

Nor did it prohibit a defendant from voluntarily expressing remorse or prevent a court from considering such an expression favorably. The important distinction is between recognizing a voluntary mitigating statement and penalizing its absence. The opinion also cautions that a voluntary expression may have consequences in related civil litigation.

Finally, the decision addresses no-contest pleas. It should not be read as eliminating every role for remorse following a guilty plea or trial conviction.

B. Precedents Cited and Their Influence

Discretion, victim impact, and the limits on dismissed-charge punishment

State v. Tom, 69 Haw. 602, 752 P.2d 597 (1988), and State v. Davia, 87 Hawaiʻi 249, 953 P.2d 1347 (1998). These decisions supply the review framework. The grant or denial of DANC relief is discretionary and is disturbed only for manifest abuse. An abuse occurs when the trial court clearly exceeds reason’s bounds or disregards governing legal principles to a party’s substantial detriment. Consequently, appellate review does not ask whether another judge might have granted deferral, but whether the actual decision exceeded lawful discretion.
State v. Satoafaiga, 150 Hawaiʻi 406, 504 P.3d 324 (2022). This was the principal substantive precedent. There, the trial court repeatedly referred to sexual penetration when denying DANC relief even though penetration charges had been dismissed. Those express references established improper reliance on the dismissed conduct.

The present Court distinguished that record from Gaeta’s, where the judge repeatedly disclaimed reliance on penetration. It also relied on this precedent for the necessity of considering the defendant’s individual circumstances in DANC proceedings and for the proposition that sentencing decisions provide persuasive guidance.

Importantly, the earlier decision did not bar consideration of all circumstances associated with a greater dismissed charge whenever a defendant pleads to a lesser-included offense. The ICA invoked that qualification here, but the Supreme Court corrected its premise: Gaeta’s particular exposure offense was not a lesser-included offense of attempted penetration. The earlier case had also expressly reserved the broader question whether lack of remorse could be considered after a no-contest plea; this opinion resolves that reservation.
State v. Hussein, 122 Hawaiʻi 495, 229 P.3d 313 (2010). This sentencing decision recognized victim impact as part of the circumstances relevant to selecting concurrent or consecutive terms. The Court used that principle to support consideration of victim impact in DANC proceedings. Its relevance is the legitimacy of the factor, not authority to include harm attributable only to constitutionally excluded conduct.
State v. Vellina, 106 Hawaiʻi 441, 106 P.3d 364 (2005), and State v. Nunes, 72 Haw. 521, 824 P.2d 837 (1992). The Court cited these decisions as part of the established constitutional prohibition against sentencing based on dismissed or acquitted charges. In particular, the reasoning associated with State v. Nunes connects punishment for uncharged criminal conduct with due process and the right to notice of the accusation. These authorities supplied the protection that the challenged plea clause could not override.

Plea agreements, waiver, and independent state constitutional protection

State v. Adams, 76 Hawaiʻi 408, 879 P.2d 513 (1994). This case describes a plea agreement as an exchange of a plea and constitutional waivers for governmental leniency or cooperation. But it also recognizes that plea agreements implicate due process. The Court used that framework to reject purely commercial-contract analysis: the fairness and constitutional validity of a plea cannot be determined solely by the fact that both sides agreed to its terms.
Lafler v. Cooper, 566 U.S. 156 (2012). Its observation that modern criminal justice is predominantly a system of pleas rather than trials supplies institutional context. The Court supplemented that observation with Hawaiʻi caseload statistics showing far more circuit-court dispositions by plea than trial. This prevalence makes constitutional limits on plea terms especially consequential.
State v. Gomez-Lobato, 130 Hawaiʻi 465, 312 P.3d 897 (2013), and Tachibana v. State, 79 Hawaiʻi 226, 900 P.2d 1293 (1995). These cases concern waiver of the jury-trial right and the right to testify, respectively. They demonstrate that important constitutional rights can be waived. Their role is comparative: the existence of valid trial-right waivers does not establish that a defendant can authorize an otherwise unconstitutional sentence.
State v. Dudoit, 90 Hawaiʻi 262, 978 P.2d 700 (1999). This authority establishes that pleading guilty or no contest does not itself waive an appeal challenging an illegal sentence. The Court used that principle to support the conclusion that plea bargaining cannot insulate sentencing illegality from review.
Granillo v. State, No. SCWC-22-0000740, 2026 WL 2085397 (Hawaiʻi July 15, 2026), and State v. Tolentino, 158 Hawaiʻi 321, 592 P.3d 209 (2026). These decisions reinforce the independent force of Hawaiʻi’s Constitution. The former supports greater state due-process protection than the federal constitutional minimum; the latter emphasizes human dignity. Together, they support treating constitutional sentencing safeguards as substantive limits rather than bargaining concessions.

No-contest pleas, self-incrimination, and remorse

United States v. Harris, 751 F.3d 123 (3d Cir. 2014); State v. Knight, 701 N.W.2d 83 (Iowa 2005); and State v. Kaluna, No. CAAP-23-0000096, 2024 WL 637400 (Haw. App. Feb. 15, 2024) (SDO). These authorities illustrate the broader judicial acceptance of considering lack of remorse. The last permitted consideration of a no-contest defendant’s lack of remorse for psychological harm associated with kidnapping. Rather than simply extending that approach, the Supreme Court adopted a brighter, more protective state constitutional rule for no-contest dispositions.
State v. Medeiros, 146 Hawaiʻi 1, 454 P.3d 1069 (2019). The Court previously held that a trial court erred by failing to consider a defendant’s expressed remorse before rejecting DANC relief after a no-contest plea. This precedent remains relevant because voluntarily expressed remorse may still support mitigation. The present rule protects against adverse treatment when such an expression is absent.
State v. Kamanaʻo, 103 Hawaiʻi 315, 82 P.3d 401 (2003). Following a jury conviction, this decision distinguished considering remorse for rehabilitation purposes from enhancing punishment because the defendant refused to admit guilt. The latter was prohibited. Although not a plea case, it supplied an important foundation: conviction does not authorize sentencing pressure designed to extract a confession.
State v. Nguyen, 81 Hawaiʻi 279, 916 P.2d 689 (1996). This decision identifies protection against use of the plea in related civil litigation as a principal distinction between guilty and no-contest pleas. The Court combined that principle with HRPP Rule 11’s differences in judicial consent and factual-basis requirements. Penalizing a defendant for withholding an incriminating acknowledgment would undermine the purpose of allowing the no-contest plea.
State v. Gleason, 576 A.2d 1246 (Vt. 1990). The Vermont Supreme Court treated the self-incrimination waiver accompanying a no-contest plea as limited to determination of guilt or innocence, preserving the privilege against statements that could enhance punishment while sentencing remained pending. The Hawaiʻi Supreme Court expressly agreed with this approach and grounded its protection in Article I, Section 10.
State v. Hewitt, 153 Hawaiʻi 33, 526 P.3d 558 (2023). This decision supports bright-line criminal-procedure rules as instruments of predictability, uniformity, and constitutional protection. The Court invoked that reasoning to replace uncertainty about no-contest remorse with a clear prohibition, rather than leaving defendants dependent on subjective judicial assessments.
State v. Gaeta, No. CAAP-23-0000359, 2025 WL 2466115 (Haw. App. Aug. 27, 2025) (SDO). The ICA decision under review supplied both points requiring clarification: its general approval of considering lack of remorse and its mistaken lesser-included-offense analysis. The Supreme Court affirmed the judgment without adopting those propositions as a complete statement of the governing law.

Supporting scholarship

The opinion also draws on scholarship, while not treating it as precedent. Antonin Scalia’s discussion of rules supports the predictability rationale quoted through State v. Hewitt. Rocksheng Zhong’s Judging Remorse highlights disagreement among judges about what remorse looks like and how mental illness affects its expression. That research reinforces the practical value of avoiding adverse inferences from unexpressed remorse in the no-contest setting.

C. Impact on Future Cases and Practice

Plea drafting must respect constitutional boundaries

Prosecutors and defense counsel must remove provisions that purport to authorize sentencing consideration forbidden by precedent. Broad language allowing consideration of dismissed charges cannot function as a constitutional override. Courts must independently assess legality rather than assume that negotiated consent resolves the issue.

No-contest sentencing requires a different approach to remorse

For events after the opinion’s date, judges cannot treat the absence of an apology or expression of remorse as a reason to increase punishment or deny DANC relief following a no-contest plea. Voluntary mitigating statements remain possible, but defendants need not make them to avoid an adverse inference.

Judicial screening moves to the plea stage

A judge concerned that a no-contest disposition would not serve the administration of justice may withhold consent under HRPP Rule 11(b). Once that plea is permitted, however, the judge must respect its constitutional consequences. The Court thereby separates the decision to allow the plea from the later exercise of sentencing discretion.

Victim impact remains important but must be tied to permissible grounds

The decision does not diminish the relevance of psychological harm or imply that a misdemeanor necessarily causes minor injury. It does require continued attention to the distinction between harm associated with the offense of disposition and punishment for dismissed allegations.

In cases involving mixed victim-impact narratives, a clear record identifying permissible considerations will be especially important. Gaeta’s affirmance shows that a court can consider serious emotional harm without accepting every allegation in the surrounding narrative.

The holdings do not automatically reopen earlier judgments

The remorse rule is expressly prospective. The opinion also did not establish that the mere presence of an improper plea clause requires automatic reversal. Here, the absence of actual reliance on the clause or other improper factors was decisive.

5. Complex Concepts Simplified

No contest, or nolo contendere: A plea allowing the criminal case to be resolved without the defendant admitting the factual allegations. The court must agree to accept this form of plea.
Deferred acceptance of a no-contest plea: A procedure postponing acceptance of the plea while the defendant completes court-ordered conditions. Successful completion results in dismissal without a conviction; it is not simply probation following a conviction.
Abuse of discretion: More than disagreement with a judge’s decision. It means the judge exceeded reasonable bounds or disregarded governing legal principles in a substantially harmful way.
Lesser-included offense: An offense meeting the statutory requirements for inclusion within another offense, based on their legal elements and relationship. A lower offense grade or shared factual episode alone does not establish inclusion.
Illegal sentence: A sentence contrary to governing law or constitutional protections. A punishment can be unlawful because of the basis used to impose it, even if its duration falls within the statutory range.
Limited waiver of self-incrimination protection: Giving up only part of the protection against compelled incriminating statements. A no-contest plea does not surrender protection against pressure to make statements adversely affecting sentencing or deferral.
Prospective constitutional rule: A new rule governing future events rather than automatically changing the legal consequences of earlier proceedings. Here, that limitation expressly applies to the new remorse prohibition.

6. Conclusion

State v. Gaeta preserves substantial judicial discretion over deferral while establishing firm constitutional boundaries. Victim impact may justify denying DANC relief, but plea agreements cannot authorize otherwise unlawful punishment for dismissed charges.

Its central prospective rule is equally clear: once a court permits a no-contest plea, the defendant’s failure to express remorse cannot be used adversely. The decision protects the integrity of that plea without preventing consideration of legitimate victim harm or voluntarily offered mitigation.