Stanley v. State. ( 2021 )

*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
Electronically Filed
Supreme Court
SCWC-XX-XXXXXXX
05-JAN-2021
10:11 AM
Dkt. 13 OP
IN THE SUPREME COURT OF THE STATE OF HAWAIʻI
---o0o---
________________________________________________________________
EDWARD G. STANLEY, Petitioner/Petitioner-Appellant,
vs.
STATE OF HAWAIʻI, Respondent/Respondent-Appellee.
________________________________________________________________
SCWC-XX-XXXXXXX
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-XX-XXXXXXX; S.P.P. NO. 17-1-0007; (CR. NO. 1PC880000418))
JANUARY 5, 2021
RECKTENWALD, C.J., NAKAYAMA, McKENNA, AND WILSON, JJ.,
AND CIRCUIT JUDGE MORIKAWA, IN PLACE OF POLLACK, J., RECUSED
OPINION OF THE COURT BY McKENNA, J.
I. Introduction
Edward G. Stanley (“Stanley”), pro se, appeals the Circuit
Court of the First Circuit’s (“circuit court”)1 denial of his
second Hawaiʻi Rules of Penal Procedure (“HRPP”) Rule 40 petition
for post-conviction relief (“Second Petition”).
1 The Honorable Paul B.K. Wong presided over the Second Petition at issue
in this certiorari proceeding.
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
Stanley’s Second Petition arises from a March 16, 1988
conviction. A jury convicted Stanley of two counts of first
degree reckless endangering, as lesser included offenses of
attempted first degree murder (Counts I and II); one count of
attempted first degree murder (Count III); one count of
attempted manslaughter, as a lesser included offense of
attempted second degree murder (Count V); and one count of place
to keep firearm (Count VI).2 On September 23, 1988, the trial
court sentenced Stanley to five-year terms of imprisonment for
Counts I and II, life without the possibility of parole for
Count III, ten years with a mandatory minimum of five years for
Count V, and five years for Count VI. All sentences were to be
served concurrently.
In 1989, Stanley’s direct appeal from his 1988 convictions
was rejected by this court in a brief memorandum opinion. His
first HRPP Rule 40 petition (“First Petition”) in 1992, alleging
different grounds than those contained in this Second Petition,
was rejected by this court in a 1994 published opinion. His
2001 HRPP Rule 35 motion was also denied by the circuit court,
from which he did not appeal.
Thereafter, Stanley filed the subject Second Petition in
2017, in which he alleged, in relevant part, that his conviction
of attempted manslaughter in Count V was based on reckless
2 Regarding Count IV, see infra text accompanying and footnote 8.
2
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
conduct, and therefore, his sentence was illegal, citing to
State v. Pinero, 70 Haw. 509, 778 P.2d 704 (1989), State v.
Holbron, 80 Hawaiʻi 27, 904 P.2d 912 (1995), reconsideration
denied, 80 Hawaiʻi 187, 907 P.2d 773 (1995), and State v. Loa, 83
Hawaiʻi 335, 926 P.2d 1258 (1996), which held that because the
only non-exculpatory circumstance legally capable of mitigating
murder to manslaughter is the mitigation of extreme mental or
emotional disturbance for which there is a reasonable
explanation (“EMED”), there is no offense of attempted
involuntary manslaughter based on reckless conduct (“attempted
reckless manslaughter”).
The circuit court denied Stanley’s Second Petition without
an evidentiary hearing. Stanley appealed the denial of the
Second Petition to the Intermediate Court of Appeals (“ICA”).
In its summary disposition order (“SDO”), the ICA affirmed
the circuit court’s denial of the Second Petition. See Stanley
v. State, CAAP-XX-XXXXXXX, 2019 WL 3976129 (App. Aug. 22, 2019)
(SDO). The ICA ruled, inter alia, that Stanley failed to
demonstrate he was convicted of attempted reckless manslaughter,
thereby failing to state a colorable claim that his sentence for
Count V was illegal. The ICA also ruled Stanley was not
entitled to relief under HRPP Rule 40 based on the equal
protection claim alleged on appeal because he had not raised the
issue before the circuit court in the Second Petition and failed
3
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
to prove the existence of extraordinary circumstances justifying
his failure to raise that claim.
We hold the ICA erred in affirming the circuit court’s
ruling that Stanley failed to state a colorable claim that he
was convicted of attempted reckless manslaughter in his Second
Petition. This error requires vacatur of his attempted
manslaughter conviction in Count V. On remand, double jeopardy
principles bar the State from retrying Stanley for attempted
second degree murder in Count V.
Accordingly, we vacate the ICA’s October 2, 2019 judgment
on appeal entered pursuant to its August 22, 2019 SDO, Stanley’s
1988 conviction for attempted manslaughter in Count V, and the
circuit court’s February 23, 2018 order denying Stanley’s Second
Petition, and we remand this case to the circuit court for
further proceedings consistent with this opinion.
II. Background
A. Factual background
This case arose from a March 11, 1988 incident in which
Stanley fired gunshots in the vicinity of several individuals,
including two police officers, at different intervals, and had
also pointed, but not fired, a gun at another police officer.
State v. Stanley, No. 13402, at 1-2 (Haw. Dec. 14, 1989) (mem.)
(“Stanley I”).
4
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
On March 16, 1988, a grand jury indicted Stanley with three
counts of attempted first degree murder in violation of Hawaiʻi
Revised Statutes (“HRS”) §§ 705-500 (1985),3 707-701(1)(b) (Supp.
1988),4 and 706-656 (Supp. 1988)5 (Counts I, II, and III); one
3 HRS § 705-500 (1985) states:
§705-500 Criminal attempt. (1) A person is guilty of an
attempt to commit a crime if he:
(a) Intentionally engages in conduct which would
constitute the crime if the attendant
circumstances were as he believes them to be;
or
(b) Intentionally engages in conduct which, under
the circumstances as he believes them to be,
constitutes a substantial step in a course of
conduct intended to culminate in his commission
of the crime.
(2) When causing a particular result is an element of the
crime, a person is guilty of an attempt to commit the crime
if, acting with the state of mind required to establish
liability with respect to the attendant circumstances
specified in the definition of the crime, he intentionally
engages in conduct which is a substantial step in a course
of conduct intended or known to cause such a result.
(3) Conduct shall not be considered a substantial step
under this section unless it is strongly corroborative of
the defendant’s criminal intent.
4 HRS § 707-701(1)(b) (Supp. 1988) states:
(1) A person commits the offense of murder in the first
degree if the person intentionally or knowingly causes the
death of:
. . . .
(b) A peace officer, judge, or prosecutor arising out
of the performance of official duties[.]
5 HRS § 706-656 (Supp. 1988) states:
§706-656 Terms of imprisonment for first and second degree
murder and attempted first and second degree murder. (1)
Persons convicted of first degree murder or first degree
(continued . . .)
5
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
count of attempted first degree murder in violation of
HRS §§ 705-500, 707-701(1)(a),6 and 706-656 (Count IV); one count
of attempted second degree murder in violation of
HRS §§ 705-500, 707-701.5(1) (Supp. 1988), and 706-656 (Count
V); and one count of place to keep firearm in violation of
HRS § 134-6 (1985) (Count VI).7
The jury trial began on August 8, 1988. On August 16,
1988, the trial court acquitted Stanley of attempted first
degree murder in Count IV.8 After the close of the parties’
(. . . continued)
attempted murder shall be sentenced to life imprisonment
without possibility of parole.
As part of such sentence the court shall order the
director of the department of corrections and the Hawaii
paroling authority to prepare an application for the
governor to commute the sentence to life imprisonment with
parole at the end of twenty years of imprisonment; provided
that persons who are repeat offenders under section 706-
606.5 shall serve at least the applicable mandatory minimum
term of imprisonment.
. . . .
6 HRS § 707-701(1)(a) (Supp. 1988) states:
(1) A person commits the offense of murder in the first
degree if the person intentionally or knowingly causes the
death of:
(a) More than one person in the same or separate
incident[.]
7 Each count of attempted murder involved a different complaining
witness.
8 Although Stanley had stated the trial court acquitted him of attempted
first degree murder in Count IV for insufficient evidence, the record
indicates the trial court acquitted Stanley of Count IV because it involved
the same police officers in Counts I and III.
6
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
arguments, the trial court read, and provided to the jury in
writing for its deliberations, as follows:
If you are unable to find that the offense of
attempted murder in the first degree or second degree has
been proven beyond a reasonable doubt, you may then
consider whether the defendant is guilty or not guilty of
the included offense of attempted manslaughter.
In a prosecution for attempted murder in the first
degree or second degree, attempted manslaughter is an
included offense. The offense of attempted manslaughter is
committed if the defendant attempted to recklessly cause
the death of another person.
In a prosecution for attempted murder in the first
degree or second degree, it is also a defense, which
reduces the offense to attempted manslaughter, that the
defendant was, at the time he attempted to cause the death
of another person, under the influence of extreme mental or
emotional disturbance for which there is a reasonable
explanation. The reasonable-ness of the explanation shall
be determined from the viewpoint of a person in the
defendant’s situation under the circumstances as he
believed them to be.
The burden is upon the State to prove beyond a
reasonable doubt that the defendant was not acting under
the influence of extreme mental or emotional disturbance
for which there is a reasonable explanation. If the State
has not done so, you must find the defendant guilty of the
included offense of attempted manslaughter. If the State
has done so, you must find the defendant guilty of the
offense of attempted murder in the first degree or second
degree.
If you cannot agree that the prosecution has proven
all of the elements of the offenses of attempted murder in
the first degree or second degree or attempted manslaughter
beyond a reasonable doubt, you may consider the included
offense of reckless endangering in the first degree.
A person commits the offense of reckless endangering
in the first degree if he intentionally fires a firearm in
a manner which places another person in danger of death or
serious bodily injury.
. . . .
As to each count, you may bring in either one of the
following verdicts:
. . . .
As to Count III, attempted murder in the first
degree:
1. Not guilty; or
2. Guilty as charged; or
3. Guilty of the included offense of
attempted manslaughter; or
7
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
4. Guilty of the included offense of
reckless endangering in the first degree.
As to Count V, attempted murder in the second degree:
1. Not guilty; or
2. Guilty as charged; or
3. Guilty of the included offense of
attempted manslaughter; or
4. Guilty of the included offense of
reckless endangering in the first degree.
The jury began its deliberations on August 16, 1988.
During its deliberations, the jury transmitted, in relevant
part, three written communications to the trial court. First,
the jury requested in relevant part: “We would like a definition
of attempted manslaughter & attempted to recklessly cause of
[sic] death.” The trial court responded in relevant part:
“Please refer to the copy of the Court’s instructions which have
been provided to you.”
Second, the jury again inquired: “We request an explanation
as to the law what attempted manslaughter entails.” The trial
court responded: “I regret that I cannot provide you with any
further clarification on this question as you already have the
Penal Code definition of Attempted Manslaughter in the Court’s
Instructions.”
Third, the jury requested: “We request a copy of Black’s
Law Dictionary.”9 The trial court responded: “The dictionary
9 During the trial court’s discussion with the State and defense counsel
after the jury requested a copy of Black’s Law Dictionary, the State admitted
it appeared the jury was confused as to what attempted manslaughter and
attempted reckless manslaughter entailed, stating: “Your Honor, apparently
what’s going on here in the tone of these communications, it’s become readily
(continued . . .)
8
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
definitions may not be consistent with the language utilized by
the Legislature in the statutes, therefore, I am sorry to inform
you that I am unable to grant the request.”
Two days later, on August 18, 1988, the jury found Stanley
guilty of: two counts of first degree reckless endangering, as
lesser included offenses of attempted first degree murder
(Counts I and II); one count of attempted first degree murder
(Count III); one count of attempted manslaughter, as a lesser
included offense of attempted second degree murder (Count V);
and one count of place to keep firearm (Count VI). On September
23, 1988, the trial court entered its amended judgment,
sentencing Stanley to a five-year indeterminate term of
imprisonment for Counts I, II, and VI; life imprisonment without
the possibility of parole for Count III; and a ten-year
indeterminate term of imprisonment with a mandatory minimum of
five years for Count V. The sentences were to be served
concurrently.
B. Procedural background
HRPP Rule 40(a)(3) (2006) provides:
(3) Inapplicability. Rule 40 proceedings shall not be
available and relief thereunder shall not be granted where
the issues sought to be raised have been previously ruled
upon or were waived. Except for a claim of illegal
sentence, an issue is waived if the petitioner knowingly
and understandingly failed to raise it and it could have
(. . . continued)
apparent that the jury is lost in confusion on the question of what is
attempted manslaughter and attempted to recklessly cause the death[.]”
9
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
been raised before the trial, at the trial, on appeal, in a
habeas corpus proceeding or any other proceeding actually
conducted, or in a prior proceeding actually initiated
under this rule, and the petitioner is unable to prove the
existence of extraordinary circumstances to justify the
petitioner’s failure to raise the issue. There is a
rebuttable presumption that a failure to appeal a ruling or
to raise an issue is a knowing and understanding failure.
Because the rule prohibits relief when issues have been
previously ruled upon or have been waived, we briefly summarize
Stanley’s direct appeal and his previous petitions.
1. Stanley’s direct appeal and previous petitions
a. Direct appeal
On October 21, 1988, Stanley directly appealed his
convictions to this court, alleging four points of error: (1)
“erroneous attempted first degree murder and attempted
manslaughter instructions”; (2) “deputy prosecutor’s improper
comment during closing rebuttal argument”; (3) “insufficient
evidence to support the attempted first degree murder
conviction”; and (4) “unlawful imposition of sentence in the
form of life imprisonment without the possibility of parole for
the attempted first degree murder conviction.” Stanley I, mem.
op. at 2.
In a two-page memorandum opinion, this court summarized
Stanley’s convictions, facts, and four points of error alleged
on appeal, and affirmed Stanley’s convictions and held that
“[b]ased on a careful review of the record, we discern no
reversible error. Affirmed.” Id.
10
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
b. Stanley’s two petitions for a writ of habeas
corpus
As indicated in Stanley v. State, 76 Hawaiʻi 446, 879 P.2d
551 (1994) (“Stanley II”), after this court affirmed his
convictions in 1989, Stanley filed a petition for a writ of
habeas corpus in the United States District Court for the
District of Hawaiʻi (“district court”).10 76 Hawaiʻi at 448, 879
P.2d at 553. He alleged: “(1) erroneous jury instructions; (2)
‘improper statement made;’ and (3) ‘insufficient evidence to
support guilt findings.’” Id. After an evidentiary hearing,
the district court denied Stanley’s petition for a writ of
habeas corpus on October 11, 1991. Id.Stanley then filed a second petition for a writ of habeas
corpus in the district court, raising identical grounds as the
previous petition for a writ of habeas corpus. Id. On January
1, 1992, the district court denied his second petition without
holding an evidentiary hearing. Id.c. First HRPP Rule 40 petition11
On February 26, 1992, Stanley filed his First Petition in
the circuit court,12 alleging: “(1) he was denied effective
assistance of counsel; and (2) his convictions for attempted
10 The record does not contain Stanley’s two petitions for a writ of
habeas corpus.
11 The record does not contain the First Petition.
12 The Honorable Gail C. Nakatani presided.
11
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
first degree murder and attempted manslaughter were not
supported by substantial evidence.” Id. On June 4, 1992, the
circuit court denied the First Petition without a hearing,
finding “said petition to be patently frivolous and without a
trace of support either in the record or from other evidence
submitted by the Petitioner.” Id.Stanley appealed the circuit court’s denial of his First
Petition to this court. Id. He argued: (1) “the trial court
erred in denying his petition because the denial was contrary to
an earlier decision by a judge determining that his petition was
meritorious”; (2) “because the trial court made no findings of
fact or conclusions of law in denying the petition, the
resultant order is ‘patently wrong, and without a trace of
support’”; (3) “the trial court erroneously denied him a
HRPP Rule 40 hearing despite Appellant having asserted valid
grounds for his unlawful detention, namely: [(a)] denial of
effective assistance of counsel; and [(b)] insufficient evidence
to support the attempted first degree murder and attempted
manslaughter convictions”; and (4) “the trial court erred when
it refused certain jury instructions relating to the attempted
first degree murder conviction.” 76 Hawaiʻi at 448-51, 879 P.2d
at 553-56.
12
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
d. Stanley II
In a published opinion, this court rejected Stanley’s
points of error and affirmed the circuit court’s denial of his
First Petition; however, this court declined to rule on
Stanley’s fourth point of error because Stanley had failed to
raise the issue in his First Petition.13 Stanley II, 76 Hawaiʻi
at 452, 879 P.2d at 557.
13 This court applied the rationale in Bryant v. State, 6 Haw. App. 331,
720 P.2d 1015 (1986), disapproved on other grounds by Briones v. State, 74
Haw. 442, 848 P.2d 966 (1993), in which the ICA found the “[f]ailure to raise
[a Rule 40 issue] . . . specifically in the petition does not per se defeat
the possibility of obtaining relief on that ground in the Rule 40
proceeding,” and that “a pro se petitioner ‘should not suffer for his
inability to articulate his claim.’” Stanley II, 76 Hawaiʻi at 451, 879 P.2d
at 556 (alterations and ellipsis in original) (quoting Bryant, 6 Haw. App. at
334-35, 720 P.3d at 1018-19). We distinguished Bryant from the case:
Applying the above rationale, Appellant’s failure to raise
the erroneous exclusion of jury instructions allegation in
his petition would apparently not prevent him from
asserting the same on appeal. The instant case, however,
is easily distinguished from Bryant.
In Bryant, because at the trial level: (1) the State
was alerted to the general issue; (2) the petitioner,
subsequent to the filing of the initial petition at the
trial level, clearly raised the specifics of the issue in a
subsequent memorandum in support of the petition; (3) the
State responded to the issue in a supplemental memorandum;
(4) the trial court considered the issue; and, most
importantly, (5) HRPP Rule 40(e) provides that amendments
to the petition shall be freely allowed, the ICA concluded
that despite the petitioner’s failure to specifically
allege the factual basis of his claim for relief, the claim
would survive as an amendment to the petition.
In the instant case, unlike Bryant, Appellant did not
alert the State to the general issue of erroneous denial of
jury instructions. Consequently, the State could not
respond, and the trial court never considered the issue.
Appellant’s petition, therefore, may not be construed to
have been amended to include the erroneous jury
instructions issue. Moreover, because “[t]he general rule
is that an issue which was not raised in the lower court
will not be considered on appeal,” we do not address
Appellant’s claim of erroneous exclusion of jury
instructions. Kernan v. Tanaka, 75 Haw. 1, 35, 856 P.2d
(continued . . .)
13
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
e. HRPP Rule 35 motion
On April 24, 2001, Stanley filed a pro se HRPP Rule 35
(1980) motion in the circuit court.14 Stanley contended his
attempted first degree murder sentence was illegal because he
should have been sentenced to a twenty-year imprisonment, as
HRS § 706-610 (Supp. 1988),15 amended by Act 181, Session Laws
(. . . continued)
1207, 1224 (1993) (quotation and citations omitted), cert.
denied, 510 U.S. 1119, 114 S.Ct. 1070, 127 L.Ed.2d 389(1994); see also Tax Appeal of Hawaiian Flour Mills, Inc.,
76 Hawaiʻi 1, 868 P.2d 419 (Sup. 1994).
Id. (footnote omitted).
14 HRPP Rule 35 (1980) states in relevant part:
CORRECTION OR REDUCTION OF SENTENCE
The court may correct an illegal sentence at any time
and may correct a sentence imposed in an illegal manner
within the time provided herein for the reduction of
sentence. The court may reduce a sentence within 90 days
after the sentence is imposed, or within 90 days after
receipt by the court of a mandate issued upon affirmance of
the judgment or dismissal of the appeal, or within 90 days
after entry of any order or judgment of the Supreme Court
of the United States denying review of, or having the
effect of upholding a judgment of conviction. A motion to
correct or reduce a sentence which is made within the time
period aforementioned shall empower the court to act on
such motion even though the time period has expired. The
filing of a notice of appeal shall not deprive the court of
jurisdiction to entertain a timely motion to reduce a
sentence.
15 HRS § 706-610 states:
(1) Apart from first and second degree murder and attempted
first and second degree murder, felonies defined by this Code are
classified, for the purpose of sentence, into three classes, as
follows:
(a) Class A felonies;
(b) Class B felonies; and
(c) Class C felonies.
(continued . . .)
14
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
1987, could not apply to him as doing so would constitute as an
improper ex post facto application of law.
On August 14, 2001, the circuit court filed its order
denying Stanley’s HRPP Rule 35 motion. Noting the June 6, 1987
effective date of Act 181, Session Laws 1987, and the commission
of Stanley’s offenses on March 11, 1988, the circuit court
determined there was no improper retroactive application of the
sentencing statute. Thus, the circuit court concluded Stanley
failed to state a colorable claim for relief, and denied
Stanley’s HRPP Rule 35 motion as “patently frivolous and without
a trace of support, either in the record, or from other evidence
submitted by [Stanley].” Stanley did not appeal the circuit
court’s denial of his HRPP Rule 35 motion.
2. Second Petition proceedings
a. Circuit court proceedings
On March 30, 2017, sixteen years after the denial of his
HRPP Rule 35 motion, Stanley filed his Second Petition, the
subject of this certiorari proceeding, in the circuit court. He
argued: (1) his sentence was illegal and against legislative
intent because the HRS specifically provides attempted murder
was to be treated as an ordinary class A felony subject to a
(. . . continued)
A felony is a class A, class B, or class C felony when it is so
designated by this Code. Except for first and second degree murder and
attempted first and second degree murder, a crime declared to be a
felony, without specification of class, is a class C felony.
15
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
twenty-year imprisonment, and therefore, his sentence violated
the Fifth, Eighth, and Fourteenth Amendments to the United
States Constitution, as well as the Bill of Rights of the Hawaiʻi
Constitution; (2) attempted manslaughter, specifically
HRS § 707-702 (1985),16 was not a crime recognized in Hawaiʻi,
citing to Pinero, Holbron, and Loa;17 (3) his indictment
presented to the grand jury and petit jury, which contained
charged offenses excessive of the “evidenced event,” was fatally
defective; (4) his place to keep firearm conviction violated the
Fifth and Fourteenth Amendments to the United States
Constitution, and article I, sections 5 and 10 of the Hawaiʻi
Constitution, HRS § 701-109, and HRS § 134-6 because place to
keep a firearm is an included offense of attempted murder,
attempted manslaughter, and reckless endangering; (5) the
16 HRS § 707-702 (1985) states:
§707-702 Manslaughter. (1) A person commits the offense of
manslaughter if:
(a) He recklessly causes the death of another person;
or
(b) He intentionally causes another person to commit
suicide.
(2) In a prosecution for murder it is a defense, which
reduces the offense to manslaughter, that the defendant
was, at the time he caused the death of the other person,
under the influence of extreme mental or emotional
disturbance for which there is a reasonable explanation.
The reasonableness of the explanation shall be determined
from the viewpoint of a person in the defendant’s situation
under the circumstances as he believed them to be.
(3) Manslaughter is a class B felony.
17 These cases are further discussed in Section IV.B.1 of this opinion.
16
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
multiple mandatory minimum terms imposed by the trial court
imposed were “illegal, redundant, multiplicious, excessive
and/or prejudicial” because the jury was the trier of fact and
“the only entity capable of determining . . . the maximum and
minimum terms of sentence,” and therefore, the terms the trial
court imposed violated the Fifth, Sixth, Eighth, and Fourteenth
Amendments to the United States Constitution and the Bill of
Rights of the Hawaiʻi Constitution; (6) the errors in his case,
whether harmless or plain, amounted to cumulative error which
was prejudicial and required the reversal of his convictions;
and (7) the trial court’s denial of his August 1, 1988 motion
for extension of time violated the equal protection clause of
the United States and Hawaiʻi constitutions, as well as the
United States Constitution’s right to effective counsel because
he was prejudiced by being forced to proceed with ill-prepared
counsel.18
On May 9, 2017, the State untimely responded to the Second
Petition.19 Stanley moved to strike the State’s response and
18 Stanley served the Second Petition on the Department of the Attorney
General, State of Hawaiʻi (“AG”) and the Office of the Prosecuting Attorney.
The AG discussed Stanley’s grounds for relief with the Office of the
Prosecuting Attorney; the Office of the Prosecuting Attorney stated the
grounds for relief Stanley raised related solely to his conviction. The AG
agreed the Office of the Prosecuting Attorney would file a response on the
merits, and it would not be submitting an answer.
19 HRPP Rule 40(d) (2006) required the State to respond within thirty days
after the service of the HRPP Rule 40 petition from Stanley or within such
further time as the court may allow. HRPP Rule 40(d).
17
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
asked the circuit court to set a hearing and appoint him
counsel. On February 23, 2018, the circuit court granted
Stanley’s request to strike the State’s response but denied his
other requests.
On February 23, 2018, the circuit court filed its order
denying the Second Petition without a hearing, ruling as
follows: (1) HRPP Rule 40(a)(3) barred Stanley’s claim of an
improper sentence for attempted first degree murder because it
was previously ruled upon by Stanley I; (2) HRPP Rule 40(a)(3)
barred Stanley’s claim of erroneous attempted reckless
manslaughter jury instruction because it was not raised in his
2001 HRPP Rule 35 motion and he failed to prove the existence of
extraordinary circumstances justifying his failure to raise this
issue, as Holbron and Loa were decided five years before Stanley
filed his 2001 HRPP Rule 35 motion; and (3) Stanley’s remaining
claims, “maturing well before [Stanley I],” had been similarly
waived due to his failure to present extraordinary circumstances
justifying his failure to previously raise the issues and rebut
the presumption that such failure was knowing and understanding.
Stanley timely appealed the circuit court’s denial of his
Second Petition to the ICA.
C. ICA proceedings
In his pro se opening brief, Stanley argued the circuit
court erred, in relevant part, by (1) determining his claim of
18
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
erroneous attempted manslaughter jury instruction was deemed
waived, as he instead argued his sentence was illegal because he
was convicted of the nonexistent offense of attempted reckless
manslaughter, and (2) not responding to his equal protection
clause claim.
In response, the State conceded Stanley stated a colorable
claim as to his erroneous attempted reckless manslaughter
conviction argument as the record did not demonstrate whether
Stanley was convicted of attempted EMED manslaughter or
attempted reckless manslaughter. However, the State argued that
the remainder of Stanley’s claims was either waived or
meritless.
In its August 22, 2019 SDO, the ICA ruled the State’s
concession was unwarranted and rejected Stanley’s arguments.20
Stanley, SDO at 7, 10. The ICA concluded that, inter alia,
Stanley failed to state a colorable claim that he could not have
been convicted of attempted reckless manslaughter, noting
20 The ICA also ruled: the circuit court did not fail to issue findings of
fact and conclusions of law when denying the Second Petition; the circuit
court did not err in ruling his claims, except for involuntary manslaughter,
were previously ruled upon or waived because he failed to explain how his
claims were not previously ruled upon or waived or how he proved the
existence of extraordinary circumstances to justify his failure to raise the
claims in his direct appeal, HRPP Rule 35 motion, two habeas corpus petitions
to the district court, and the First Petition; the ICA could not address
Stanley’s claim regarding the Motion for Production of Documents because the
record did not contain a Motion for Production of Documents; and Stanley’s
claim that his sentence of life without the possibility of parole for
attempted first degree murder violated the Eighth Amendment to the United
States Constitution was raised and ruled upon in Stanley I. Stanley, SDO at
4-5, 9-10.
19
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
Holbron and Loa were issued more than six years after Stanley’s
convictions. Stanley, SDO at 5, 9.
The ICA explained that in Holbron, this court held “as a
matter of law that HRS §§ 705-500 [(1993)] and 707-702(1)(a)
[(1993)] do not and cannot give rise to the offense of
‘attempted manslaughter’ under any circumstances,” overruling
State v. Tagaro, 7 Haw. App. 291, 757 P.2d 1175, cert. granted,
69 Haw. 678 (1987), and cert. dismissed, 70 Haw. 666, 796 P.2d
502 (1988). Stanley, SDO at 5 (quoting Holbron, 80 Hawaiʻi at
29, 904 P.2d at 914). The ICA observed this court held that
although “there is no offense of attempted involuntary
manslaughter premised upon the defendant attempting recklessly
to cause the death of another person, in violation of
HRS §§ 705-500 and 707-702(1)(a) (Supp. 1988)[,]” “a defendant
may be convicted of attempted voluntary manslaughter as a lesser
included offense of attempted murder, in violation of
HRS §§ 705-500 and 707-702(2), when the State fails to negative
a defense of extreme mental or emotional disturbance (EMED) for
which there is a reasonable explanation.” Stanley, SDO at 5-6
(citing Holbron, 80 Hawaiʻi at 29, 34, 43-45, 904 P.2d at 914,
919, 928-30).
According to the ICA, Stanley, in his Second Petition,
admitted he made an EMED defense as he stated his counsel
requested an EMED jury instruction and the jury “rejected the
20
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
Petitioner’s EMED defense.” Stanley, SDO at 6. The ICA stated
that Stanley pointed to his convictions of two counts of first
degree reckless endangering as proof his EMED defense was
rejected by the jury and that the jury found he acted
recklessly, implying he was convicted for attempted involuntary
manslaughter because Counts I and II demonstrated the jury found
his conduct to be reckless after rejecting his EMED defense.
Id.The ICA disagreed, concluding Stanley’s convictions of two
counts of first degree reckless endangering did not support a
conclusion that he was convicted of attempted involuntary
manslaughter in Count V. Id. It reasoned that although Stanley
was convicted on two counts of first degree reckless
endangering, the lesser included offense of attempted first
degree murder, he was also convicted of attempted first degree
murder in Count III and the lesser included offense of attempted
manslaughter in Count V. Id. Thus, the ICA concluded that
although the jury rejected Stanley’s EMED defense in Count III
because he could not have been convicted of attempted first
degree murder if the State did not negative his EMED defense,
the jury did not reject his EMED defense in Count V because he
could only be convicted of attempted manslaughter if the State
failed to negative his EMED defense. Stanley, SDO at 6-7.
21
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
The ICA also concluded Stanley’s convictions for first
degree reckless endangering did not depend on whether the jury
accepted his EMED defense because the jury did not consider an
EMED defense for Counts I and II. Stanley, SDO at 7. The ICA
stated consideration of an EMED defense would only arise if the
jury believed the State proved all elements of attempted first
degree murder because an EMED defense mitigates murder or
attempted murder. Id. (citing Holbron, 80 Hawaiʻi at 43, 904
P.2d at 928). It stated that if the State had proven attempted
first degree murder in Counts I and II, the jury would not
consider the lesser included offense of first degree reckless
endangering because the outcome of the jury considering the EMED
defense could only lead to a conviction for attempted first
degree murder or attempted manslaughter, depending on whether
the jury believed the State negatived Stanley’s EMED defense.
Id. The ICA stated that only a failure to prove attempted first
degree murder could lead to the jury considering first degree
reckless endangering. Id. Thus, the ICA concluded the jury did
not reject Stanley’s EMED defense in Counts I and II. Id. The
ICA also stated Stanley’s convictions for attempted first degree
murder in Count III and attempted manslaughter in Count V
demonstrated the jury may decide whether the State negatived an
EMED defense for each charge and was not required to apply the
same finding as to EMED to all charges. Id.22
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
The ICA ruled the State’s concession that Stanley presented
a colorable claim that he was convicted of attempted reckless
manslaughter based on Holbron and Loa was unwarranted. Stanley,
SDO at 7-8. The ICA quoted Stanley’s opening brief in Stanley
I, in which he argued the attempted manslaughter jury
instructions were erroneous and confused the jury:
[T]he use of the term “recklessly” in the instruction
would undeniably lead a layperson to conclude that the
instruction applied to both forms of attempted
manslaughter.
No rational trier of fact could be expected to
differentiate the two forms of attempted manslaughter and
the different circumstances under which they were to be
considered based upon the instructions in the case at bar.
. . .
The jury’s confusion is all too well illustrated by
their repeated communications seeking clarification of
attempted manslaughter. The court merely referred the jury
to the instructions already provided, which had, of course,
triggered the questions in the first place. (RA: 248-254).
Even the verdict forms were of no assistance as they, too,
indicated the existence of only one form of attempted
manslaughter.
The defective attempted manslaughter instructions in
their entirety rendered the jury instructions prejudicially
erroneous and misleading, affecting substantial rights of
Stanley at trial and depriving him of due process of law
under the Hawaii and federal constitutions.
Stanley, SDO at 8 (alteration and ellipsis in original). The
ICA observed Stanley I affirmed Stanley’s convictions,
specifically noted he raised the issue of “erroneous attempted
first degree murder and attempted manslaughter instructions,”
and held “we discern no reversible error.” Stanley, SDO at 9
(citing Stanley I, mem. op. at 1-2). As such, the ICA opined
Stanley did not state a colorable claim in this appeal based on
an erroneous attempted manslaughter jury instruction because the
23
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
issue was previously raised and ruled upon. Id. It further
opined Stanley failed to state a factual basis to support a
claim that his conviction for attempted manslaughter was for
attempted involuntary manslaughter based on reckless conduct.
Id. Thus, the ICA concluded Stanley failed to state a colorable
claim that he could not have been convicted of attempted
manslaughter and that his sentence was illegal. Id.The ICA also ruled Stanley did not claim his sentence for
attempted first degree murder violated the equal protection
clause of the United States and Hawaiʻi constitutions in his
Second Petition. Stanley, SDO at 10. The ICA stated, “[T]he
general rule is that an issue which was not raised in the lower
court will not be considered on appeal[.]” Id. (alterations in
original) (quoting Stanley II, 76 Hawaiʻi at 451, 879 P.2d at
556). The ICA stated Stanley failed to prove the existence of
extraordinary circumstances to justify his failure to raise that
claim in his direct appeal, two habeas corpus petitions to the
district court, and the First Petition. Id. Therefore, the ICA
concluded relief for this claim was unavailable under HRPP Rule
40(a)(3). Id.24
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
D. Application for a writ of certiorari
Stanley presents the following relevant questions on
certiorari:21
[1]. Did the Intermediate Court of Appeals commit error by
failing to apply obvious existing laws, rules and/or
mandated canon to the Appellant’s appeal?
[2]. Did the Intermediate Court of Appeals commit error in
failing to address in any manner the Appellant’s
Constitutional Challenge submitted within Petition and
appeal (See Petition S.P.P. No. 17-1-0007 pages 18-24)
pertaining Equal Protection?
[3]. Did the Intermediate Court of Appeals commit error in
finding Appellant can be convicted and punished for a crime
previously determined to be not a cognizable crime in the
State of Hawaii?
[4]. Did the Intermediate Court of Appeals commit error in
not finding exceptional circumstance pertaining the degree
and level of the Appellant’s education at the time of the
offenses charged against the Appellant, and the ensuing
trial and sentence?
III. Standards of review
A. HRPP Rule 40
Review of orders denying HRPP Rule 40 petitions is de
novo:
As a general rule, a hearing should be held on
a Rule 40 petition for post-conviction relief where
the petition states a colorable claim. To establish
a colorable claim, the allegations of the petition
must show that if taken as true the facts alleged
would change the verdict, however, a petitioner’s
conclusions need not be regarded as true. Where
examination of the record of the trial court’s
proceedings indicates that the petitioner’s
allegations show no colorable claim, it is not error
to deny the petition without a hearing. The question
on appeal of a denial of a Rule 40 petition without a
hearing is whether the trial record indicates that
21 Stanley also presents one other question on certiorari: “Did the
Intermediate Court of Appeals commit error by ignoring Grounds presented
within the Appellant’s appeal (CAAP-XX-XXXXXXX) and Petition (S.P.P. No. 17-
1-007), and fail to respond to all of his meritorious claims?” We note the
ICA did not ignore and fail to respond to Stanley’s claims; it appears the
ICA summarized the arguments and questions Stanley presented.
25
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
Petitioner’s application for relief made such a
showing of a colorable claim as to require a hearing
before the lower court.
Dan v. State, 76 Hawaiʻi 423, 427, 879 P.2d 528, 532 (1994)
(citation omitted).
Lewi v. State, 145 Hawaiʻi 333, 345, 452 P.3d 330, 342 (2019).
B. Sentencing
“The authority of a trial court to select and determine the
severity of a penalty is normally undisturbed on review in the
absence of an apparent abuse of discretion or unless applicable
statutory or constitutional commands have not been observed.”
State v. Reis, 115 Hawaiʻi 79, 83-84, 165 P.3d 980, 984-85 (2007)
(internal quotation marks and citation omitted).
C. Erroneous jury instructions and nonexistent offenses
When jury instructions or the omission thereof are at
issue on appeal, the standard of review is whether, when
read and considered as a whole, the instructions given are
prejudicially insufficient, erroneous, inconsistent, or
misleading.
Erroneous instructions are presumptively
harmful and are a ground for reversal unless it
affirmatively appears from the record as a whole that
the error was not prejudicial. Error is not to be
viewed in isolation and considered purely in the
abstract. It must be examined in the light of the
entire proceedings and given the effect which the
whole record shows it to be entitled. In that
context, the real question becomes whether there is a
reasonable possibility that error might have
contributed to conviction. If there is such a
reasonable possibility in a criminal case, then the
error is not harmless beyond a reasonable doubt, and
the judgment of conviction on which it may have been
based must be set aside.
State v. Holbron, 80 Hawaiʻi 27, 32, 904 P.2d 912, 917,
reconsideration denied, 80 Hawaiʻi 187, 907 P.2d 773 (1995)
(citations, footnote, brackets, and quotation signals
omitted) (emphasis in original).
“[T]here can be no offense of ‘attempted
manslaughter’ within the meaning of HRS § 707–702(1)(a)[.]”
26
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
Id. at 45, 904 P.2d at 930. Thus, a jury instruction
purporting to describe that nonexistent offense is
erroneous. Id.Loa, 83 Hawaiʻi at 350, 926 P.2d at 1273 (alterations in
original).
IV. Discussion
A. HRPP Rule 40 principles
We begin our analysis with the ICA’s ruling that Stanley
failed to state a colorable claim that his sentence for Count V
was illegal. The ICA concluded that in addition to failing to
state a factual basis that he was convicted of attempted
reckless manslaughter, he previously raised and Stanley I ruled
upon the issue of erroneous attempted manslaughter jury
instructions. This issue requires us to examine HRPP Rule 40.
We begin with its plain language.
HRPP Rule 40(a)(1) states in relevant part:
(1) From Judgment. At any time but not prior to final
judgment, any person may seek relief under the procedure
set forth in this rule from the judgment of conviction, on
the following grounds:
(i) that the judgment was obtained or sentence
imposed in violation of the constitution of the United
States or of the State of Hawaiʻi;
(ii) that the court which rendered the judgment was
without jurisdiction over the person or the subject matter;
(iii) that the sentence is illegal;
(iv) that there is newly discovered evidence; or
(v) any ground which is a basis for collateral attack
on the judgment.
(Emphasis added.)
HRPP Rule 40(a)(3), which governs waiver of issues in a
HRPP Rule 40 proceeding, states:
27
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
(3) Inapplicability. Rule 40 proceedings shall not be
available and relief thereunder shall not be granted where
the issues sought to be raised have been previously ruled
upon or were waived. Except for a claim of illegal
sentence, an issue is waived if the petitioner knowingly
and understandingly failed to raise it and it could have
been raised before the trial, at the trial, on appeal, in a
habeas corpus proceeding or any other proceeding actually
conducted, or in a prior proceeding actually initiated
under this rule, and the petitioner is unable to prove the
existence of extraordinary circumstances to justify the
petitioner’s failure to raise the issue. There is a
rebuttable presumption that a failure to appeal a ruling or
to raise an issue is a knowing and understanding failure.
(Emphasis added.) In turn, HRPP Rule 40(f) provides that “[i]f
a petition alleges facts that if proven would entitle the
petitioner to relief, the court shall grant a hearing which may
extend only to the issues raised in the petition or answer[,]”
but “the court may deny a hearing if the petitioner’s claim is
patently frivolous and is without trace of support either in the
record or from other evidence submitted by the petitioner.”
Thus, the plain language of HRPP Rule 40 allows a
petitioner to bring a claim of illegal sentence “[a]t any time
but not prior to final judgment,” even if the petitioner had not
raised a claim of illegal sentence in a previous petition and
failed to show extraordinary circumstances justifying their
failure to do so. In Akau v. State, 144 Hawaiʻi 159, 439 P.3d
111 (2019), we held the doctrine of laches did not apply in the
context of HRPP Rule 40 proceedings, observing HRPP Rule 40
lacked a statute of limitations for bringing post-conviction
petitions. 144 Hawaiʻi at 162, 439 P.3d at 114. We declined to
28
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
impose “a kind of judicially-crafted statute of limitations on
Rule 40 petitions seeking relief from a judgment of conviction
when that rule as promulgated explicitly states that such
petitions may be brought ‘[a]t any time’ so long as they are not
brought ‘prior to final judgment[.]’” Id. (alterations in
original) (quoting HRPP Rule 40(a)(1)) (citing HRPP Rule
40(a)(2)). We opined the lack of a statute of limitations
appeared to be deliberate, as the drafters of HRPP Rule 40
rejected using an Illinois statute as a template for a statute
of limitations on post-conviction petitions. Id. (citing Comm.
For Penal Rules Revision of the Judicial Council of Haw.,
Proposed Hawaiʻi Rules of Penal Procedure at 206 (June 1985)).
Thus, put simply, HRPP Rule 40 allows a petitioner to bring
a claim of illegal sentence “[a]t any time” after final
judgment, even if they failed to raise the illegal sentence
claim in a previous petition; if the petitioner states a
colorable claim, they are entitled to a hearing under HRPP Rule
40(f). See Flubacher v. State, 142 Hawaiʻi 109, 114 n.7, 414
P.3d 161, 166 n.7 (2018) (“[A]ny analysis of waiver must be made
in light of HRPP Rule 40(a)(3), which specifically exempts
illegal sentence claims from being waived.”). With the
foregoing principles in mind, we now turn to Stanley’s
contentions on certiorari.
29
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
B. The record does not demonstrate Stanley was convicted of
attempted EMED manslaughter; if he was convicted of
attempted reckless manslaughter, he was subject to an
illegal sentence for a non-existent crime and the
presumptively harmful erroneous attempted reckless
manslaughter jury instruction was not harmless beyond a
reasonable doubt
Stanley maintains he was convicted of the nonexistent
offense of attempted reckless manslaughter. If this is true, he
would have been subject to an illegal sentence under HRPP Rule
40(a)(3) because a sentence for a crime that does not exist is
an illegal sentence in Hawaiʻi. We begin our analysis by
discussing the history of the nonexistent offense of attempted
reckless manslaughter.
1. The history of the nonexistent offense of attempted
reckless manslaughter in Hawaiʻi
a. Pinero
While Stanley’s 1988 direct appeal was pending, this court
issued Pinero on July 25, 1989, approximately five months before
this court decided Stanley I. In Pinero, the trial court
instructed the jury as follows:
In this case, you must first determine whether the
Defendant is guilty or not guilty of Murder in the First
Degree. If you find that the offense of Murder in the
First Degree has not been proved from the evidence beyond a
reasonable doubt, you may then consider whether the
Defendant is guilty or not guilty of the lesser included
offense of Manslaughter.
A person commits the offense of Manslaughter if he
recklessly causes the death of another person; or in a
prosecution for murder it is a defense, which reduces the
offense to Manslaughter, that the defendant was, at the
time he caused the death of the other person, under the
influence of extreme mental or emotional disturbance for
which there is a reasonable explanation. The
30
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
reasonableness of the explanation shall be determined from
the viewpoint of a person in the defendant’s situation
under the circumstances as he believed them to be.
70 Haw. at 515, 778 P.2d at 709. During its deliberations, the
jury asked the trial court for a “legal definition of the
elements of the lesser charge of manslaughter” and the trial
court responded by referring the jury to the foregoing
instructions. 70 Haw. at 516, 778 P.2d at 709. The jury
convicted the defendant of, inter alia, first degree murder and
the defendant appealed. 70 Haw. at 512, 778 P.2d at 707.
This court vacated the defendant’s conviction, holding the
trial court erred because it
instruct[ed] . . . the jury to first consider whether or
not the defendant was guilty of the charged offense and if
it found the offense had not been proved, to then proceed
to the lesser offense. “If [a lesser-included offense]
instruction is given, it is customary to tell the jury to
consider first the greater offense, and to move on to
consideration of the lesser offense only if they have some
reasonable doubt as to guilt of the greater offense.”
The trial court’s error here was one of omission; it
failed to fully explain the significance of HRS § 707-
702(2) and to guide the jury in its consideration of the
mitigating defense. The lesser-included offense
instruction may well have had an effect of precluding
consideration of possibly extenuating circumstances during
deliberations on the charge of murder in the first degree.
70 Haw. at 524-25, 778 P.2d at 714 (citations omitted) (second
alteration in original).
This court distinguished HRS § 707-702(2) from
HRS § 707-702(1)(a), stating the provisions of manslaughter as
defined by HRS § 707-702(1)(a) “may be established by the same
or less than all the facts required to prove murder; and this
renders it a lesser included offense of murder.” 70 Haw. at
31
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
523, 778 P.2d at 713. However, this court stated the provisions
of HRS § 707-702(2) did not describe manslaughter as a lesser
included offense of murder, but instead served “to reduce murder
to manslaughter ‘when mitigating mental or emotional
disturbances are present.’” 70 Haw. at 523, 778 P.2d at 714.
This court stated HRS § 707-702(2) was “more accurately the
mitigating defense,” as it has been characterized as “voluntary
manslaughter [because it] involves the intentional [or knowing]
killing of another while under the influence of a reasonably
induced [extreme mental or] emotional disturbance . . . causing
a temporary loss of normal self-control.” 70 Haw. at 523-24,
778 P.2d at 714 (alterations and ellipsis in original).
Although Pinero did not reach the question of whether attempted
reckless manslaughter was a recognized offense in Hawaiʻi,
implicit in its holding was that “the only non-exculpatory
circumstance that the [Hawaiʻi Penal Code] recognizes as being
legally capable of ‘mitigating’ murder to manslaughter is the
‘mitigation’ of ‘extreme mental or emotional disturbance for
which there is a reasonable explanation’ as set forth in
HRS § 707-702(2).” Holbron, 80 Hawaiʻi at 45, 904 P.2d at 930
(citing Pinero, 70 Haw. at 523-24, 778 P.2d at 714).
b. Holbron
A year after Pinero, we issued Holbron, in which we
discussed the “offense” of attempted reckless manslaughter. 80
32
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
Hawaiʻi at 44-45, 904 P.2d at 929-30. In Holbron, the State
charged the defendant with attempted second degree murder. 80
Hawaiʻi at 30, 904 P.2d at 915. Defense counsel objected to the
instruction of the “included offense” of “Attempted Manslaughter
(Reckless conduct),” which the trial court denied. 80 Hawaiʻi at
31, 904 P.2d at 916. At the conclusion of the parties’ final
arguments, the trial court instructed the jury that “if it was
‘unable to agree that the [prosecution] has proven beyond a
reasonable doubt’ that [the defendant] had committed the offense
of Attempted Murder, the jury could then go on to consider the
lesser included offense of ‘Attempted Manslaughter (Reckless
Conduct).’” 80 Hawaiʻi at 46, 904 P.2d at 931 (first alteration
in original). The jury convicted the defendant of the charged
offense of attempted second degree murder and he appealed. 80
Hawaiʻi at 32, 904 P.2d at 917.
After discussing voluntary and involuntary manslaughter,
this court unequivocally held there could be no attempt to
commit involuntary manslaughter, and therefore, there is no
offense of attempted reckless manslaughter.22 80 Hawaiʻi at 33-
45, 904 P.2d at 918-30. As such, this court held the attempted
22 In holding there was no offense of attempted reckless manslaughter,
Holbron overruled Tagaro, in which the ICA held that under the circumstances
of that case, attempted reckless manslaughter was an included offense of
attempted murder, and that the trial court was required to sua sponte
instruct the jury it could find the defendant guilty of attempted reckless
manslaughter if it did not find him guilty of attempted murder. 80 Hawaiʻi at
47, 904 P.2d at 932.
33
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
reckless manslaughter jury instruction was erroneous as it
described a nonexistent offense. 80 Hawaiʻi at 43, 904 P.2d at
928. However, invoking the presumption that jurors are
reasonable and generally follow the instructions given, this
court concluded that because “the jury could not have reached,
much less considered, the disputed instruction that erroneously
described a nonexistent offense, there is no ‘reasonable
possibility that [the] error might have contributed to [the
defendant’s] conviction.” 80 Hawaiʻi at 46-47, 904 P.2d at 931-
32 (first alteration in original). As such, we held the
erroneous attempted reckless manslaughter jury instruction
harmless beyond a reasonable doubt and affirmed the defendant’s
attempted second degree murder conviction. Id.c. Loa
Approximately a year later after Holbron, we issued Loa.
In Loa, the State charged the defendant with, inter alia,
attempted first degree murder. 83 Hawaiʻi at 339, 926 P.2d at
1262. The trial court instructed the jury, inter alia, as
follows:
If and only if you find [the defendant] not guilty of
Attempted Murder in the First Degree, or you are unable to
reach a unanimous verdict as to the offense of Attempted
Murder in the First Degree, then you must determine whether
[the defendant] is guilty or not guilty of the lesser
included offense of Attempted Manslaughter.
A person commits the offense of Attempted
Manslaughter if he intentionally engages in conduct
intended or known to recklessly cause the death of another
person.
34
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
There are two elements to the offense of Attempted
Manslaughter, each of which must be proven by the
prosecution beyond a reasonable doubt. The two elements
are:
1. That [the defendant] intentionally engaged in a
course of conduct; and
2. That [the defendant] consciously disregarded a
substantial and unjustifiable risk that his conduct would
be intended or known to recklessly cause the deaths of [the
complainant] and [her male companion].
83 Hawaiʻi at 344, 926 P.2d at 1267 (last two alterations in
original). The trial court also instructed the jury with
respect to first degree assault and second degree reckless
endangering as additional offenses included within attempted
first degree murder. 83 Hawaiʻi at 359, 926 P.2d at 1282.
During its deliberations, the jury transmitted a written
communication to the trial court, asking:
What do we do now on Count I, Attempted Murder in the
First Degree? We are unable to reach a unanimous decision.
Do we now have to consider Attempted Manslaughter or are we
deadlocked and stop deliberating on Count I? Some jurors
are not willing to settle for a lesser charge.
83 Hawaiʻi at 343-44, 926 P.2d at 1266-67. With the concurrence
of counsel, the trial court responded, “Please reread the
attached instructions,” and furnished the jury with the
foregoing instructions in writing. 83 Hawaiʻi at 344, 926 P.2d
at 1267. The jury convicted the defendant of, inter alia,
“‘attempted reckless manslaughter’ (as a supposedly included
offense of the charged offense of attempted murder in the first
degree).” 83 Hawaiʻi at 339, 926 P.2d at 1262.
35
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
This court held the trial court plainly erred in
instructing the jury it could convict the defendant of the
nonexistent offense of attempted reckless manslaughter, and it
was not harmless beyond a reasonable doubt because it was the
sole basis of the defendant’s attempted reckless manslaughter
conviction. 83 Hawaiʻi at 357, 926 P.2d at 1280. This court
stated, “It is self-evident that, being non-existent, attempted
reckless manslaughter cannot be ‘included’ within attempted
first degree murder[.]” 83 Hawaiʻi at 358, 926 P.2d at 1281.
This court further stated that “the giving of such an erroneous
instruction constitutes plain error as a matter of law when
‘there is a reasonable possibility that [the instruction] might
have contributed to conviction,’ because the error ‘seriously
affect[s] the fairness, integrity, or public reputation of [the]
judicial proceedings.’” Id. (alterations in original) (citation
omitted).
This court rejected the State’s suggestion that the
erroneous attempted reckless manslaughter jury instruction
“obviously benefitted” the defendant because the only
alternative was to convict him of attempted first degree murder.
83 Hawaiʻi at 359, 926 P.2d at 1282. Invoking the presumption
that jurors are reasonable and generally follow the instructions
given, this court stated the fact that the jury reached the
erroneous jury instruction at all signified the jury was unable
36
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
to convict the defendant of attempted first degree murder. Id.Moreover, this court noted that although the trial court had
also instructed the jury to the other lesser included offenses
of first degree assault and second degree reckless endangering,
“subsumed within these instructions was a directive that the
jury could not consider these included offenses if it convicted
[the defendant] of attempted reckless manslaughter.” Id. As
such, the jury’s conviction based on the erroneous attempted
manslaughter jury instruction precluded it from reaching the
other lesser included offenses. Id. This court stated that “in
the absence of the erroneous instruction, the jury may have
acquitted [the defendant] altogether in connection with the
attempted first degree murder charge. However compelling the
evidence of criminal wrongdoing might have been, such a
possibility cannot be dismissed absolutely.” Id. (footnote
omitted).
This court held the erroneous attempted reckless
manslaughter jury instruction was “presumptively harmful” and
“necessarily contributed to [the defendant’s] conviction of the
nonexistent offense of attempted reckless manslaughter.” Id.This court stated that “[o]bviously, in absence of the erroneous
instruction, [the defendant] could not have been so
convicted[,]” which “seriously affect[ed] the fairness [and]
37
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
integrity . . . of [the] judicial proceedings.” Id. (last
three alterations and ellipsis in original).
2. The erroneous attempted reckless manslaughter jury
instruction was not harmless beyond a reasonable doubt
With the principles of Pinero, Holbron, and Loa in mind, we
now turn to this case. The ICA gave two bases for rejecting
Stanley’s attempted reckless manslaughter conviction argument:
(1) Stanley previously raised this argument which was ruled upon
in Stanley I and (2) he failed to state a factual basis to
support his claim that he was convicted of attempted reckless
manslaughter. After reviewing the jury instructions, verdict
forms, and the record as a whole, we hold Stanley stated a
colorable claim as to his attempted manslaughter conviction in
Count V.
As to the ICA’s first basis for rejecting Stanley’s
attempted reckless manslaughter argument, the ICA concluded that
Stanley did not state a colorable claim of erroneous attempted
manslaughter jury instruction in the instant appeal because he
previously raised the issue of “erroneous attempted first degree
murder and attempted manslaughter instructions” and Stanley I
held “we discern no discernible error.” Stanley I, mem. op. at
1-2. As the ICA noted, Stanley previously argued that these
jury instructions were erroneous and confusing. However, he did
not argue, as he does here, that his sentence was illegal
38
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
because it was based on a crime that does not exist. Indeed,
Stanley’s 1988 direct appeal and our previous decision
predate Holbron and Loa. Accordingly, we hold that this court
has not previously ruled upon the issue in this case and Stanley
is not barred from Rule 40 relief under HRPP Rule 40(a)(3) on
this issue.
As to the ICA’s second basis for rejecting Stanley’s
attempted reckless manslaughter jury conviction argument, the
ICA incorrectly concluded Stanley failed to state a colorable
claim that his conviction in Count V was for attempted reckless
manslaughter. Because the record does not demonstrate Stanley
was convicted of attempted manslaughter based on the mitigating
defense of EMED, “the only non-exculpatory circumstance legally
capable of mitigating murder to manslaughter,” we hold Stanley
stated a colorable claim that he was convicted of attempted
reckless manslaughter.23
23 For the same reasons, we note that in its February 23, 2018 order
denying the Second Petition without a hearing, the circuit court erroneously
concluded HRPP Rule 40(a)(3) barred Stanley’s claim of erroneous attempted
manslaughter jury instruction because Stanley failed to prove the existence
of extraordinary circumstances justifying his failure to raise this issue, as
Holbron and Loa were decided five years before his 2001 HRPP Rule 35 motion.
As Stanley argued, the circuit court appeared to misconstrue the arguments
presented in his almost-eighty-pages pro se Second Petition, as Stanley had
also argued he was convicted of the nonexistent offense of attempted reckless
manslaughter. See Villaver v. Sylva, 145 Hawaiʻi 29, 36, 445 P.3d 701, 708
(2019) (explaining that, in the context of pro se pleadings, “[a] fundamental
tenet of Hawaiʻi law is that ‘[p]leadings prepared by pro se litigants should
be interpreted liberally[,]’” and that “[t]he underpinnings of this tenet
rest on the promotion of equal access to justice”) (alterations in original)
(citation omitted); see also Bryant, 6 Haw. App. at 335, 720 P.2d at 1019(“Although the [HRPP Rule 40] Petition did not specify as a ground for relief
(continued . . .)
39
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
As stated above,
[e]rroneous instructions are presumptively harmful
and are a ground for reversal unless it affirmatively
appears from the record as a whole that the error was not
prejudicial. Error is not to be viewed in isolation and
considered purely in the abstract. It must be examined in
the light of the entire proceedings and given the effect
which the whole record shows it to be entitled. In that
context, the real question becomes whether there is a
reasonable possibility that error might have contributed to
conviction. If there is such a reasonable possibility in a
criminal case, then the error is not harmless beyond a
reasonable doubt, and the judgment of conviction on which
it may have been based must be set aside.
Loa, 83 Hawaiʻi at 350, 926 P.2d at 1273.
Here, the trial court instructed the jury as follows:
If you are unable to find that the offense of
attempted murder in the first degree or second degree has
been proven beyond a reasonable doubt, you may then
consider whether the defendant is guilty or not guilty of
the included offense of attempted manslaughter.
In a prosecution for attempted murder in the first
degree or second degree, attempted manslaughter is an
included offense. The offense of attempted manslaughter is
committed if the defendant attempted to recklessly cause
the death of another person.
In a prosecution for attempted murder in the first
degree or second degree, it is also a defense, which
reduces the offense to attempted manslaughter, that the
defendant was, at the time he attempted to cause the death
of another person, under the influence of extreme mental or
emotional disturbance for which there is a reasonable
explanation. The reasonable-ness of the explanation shall
be determined from the viewpoint of a person in the
defendant’s situation under the circumstances as he
believed them to be.
The burden is upon the State to prove beyond a
reasonable doubt that the defendant was not acting under
the influence of extreme mental or emotional disturbance
for which there is a reasonable explanation. If the State
has not done so, you must find the defendant guilty of the
included offense of attempted manslaughter. If the State
has done so, you must find the defendant guilty of the
offense of attempted murder in the first degree or second
degree.
(. . . continued)
the precise factual basis upon which the circuit court ruled, it must be
borne in mind that Defendant was pro se when he filed the Petition and should
not suffer for his inability to articulate his claim.”).
40
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
(Emphasis added.)
When, based on the entirety of the record, there is a
reasonable possibility that a defendant was convicted of a non-
existent offense, the judgment of conviction must be set aside.
The trial court’s erroneous attempted reckless manslaughter jury
instruction was “presumptively harmful” because it described the
nonexistent offense of attempted reckless manslaughter, and such
an instruction “[is] a ground for reversal unless it
affirmatively appears from the record as a whole that the error
was not prejudicial.”24 See Loa, 83 Hawaiʻi at 350, 926 P.2d at
1273. The critical inquiry, then, is whether the attempted
reckless manslaughter jury instruction “necessarily contributed
to [Stanley’s] conviction of the nonexistent offense of
attempted reckless manslaughter.” Loa, 83 Hawaiʻi at 359, 926
P.2d at 1282.
Unlike in Holbron and like in Loa, here, the record
demonstrates the jury reached the erroneous attempted reckless
manslaughter jury instruction as evidenced by its transmitted
written communications to the trial court asking for
24 We note the trial court’s jury instructions concerning when the jury
could consider the mitigating EMED defense were erroneous, as they “may well
have had an effect of precluding consideration of possibly extenuating
circumstances during deliberations on the charge of [attempted] murder in the
first [and second] degree.” Pinero, 70 Haw. at 525, 778 P.2d at 714; see
also Holbron, 80 Hawaiʻi at 45, 904 P.2d at 930; Loa, 83 Hawaiʻi at 358, 926
P.2d at 1281.
41
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
clarification on attempted reckless manslaughter, as well as its
verdict form finding Stanley guilty of attempted manslaughter in
Count V. The question then turns to whether there was a
reasonable probability the jury convicted Stanley of attempted
reckless manslaughter. Although the State conceded Stanley
stated a colorable claim because the record did not demonstrate
whether Stanley was convicted of attempted EMED manslaughter,
the ICA concluded the State’s concession was unwarranted because
“the jury did not reject the EMED defense when Stanley was
convicted of Attempted Manslaughter in Count V because he could
only be convicted of Attempted Manslaughter if the State failed
to negative his EMED defense.” Stanley, SDO at 6-7. For the
reasons discussed below, the ICA’s analysis is flawed.
The record does not support the ICA’s conclusion. First,
the jury’s Count V verdict form, which only shows a conviction
of “Attempted Manslaughter,” is ambiguous as to whether it was
based on attempted reckless manslaughter or attempted EMED
manslaughter. See State v. Lincoln, 3 Haw. App. 107, 122, 643
P.2d 807, 818 (App. 1982), superseded in part by statute as
stated in Briones, 74 Haw. at 456 n.7, 848 P.2d at 973 n.7
(looking to the jury’s verdict forms to resolve alleged
inconsistency in jury instructions and resulting verdicts).
Second, the jury’s transmitted written communications to the
trial court asking for clarification as to attempted reckless
42
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
manslaughter show the jury’s confusion as to attempted reckless
manslaughter.25 Third, the structure of the trial court’s jury
instructions prejudiced Stanley as they misled the jury. It
appears the ICA, noting Stanley admitted he made an EMED defense
that the jury rejected, relied on the trial court’s attempted
EMED manslaughter jury instruction, which came after the
attempted reckless manslaughter jury instruction, to conclude
the jury did not reject Stanley’s EMED defense. However, there
is a reasonable possibility the jury, having found Stanley
guilty of attempted reckless manslaughter, did not move on to
consider the attempted EMED manslaughter jury instruction.
Further, because the trial court instructed the jury to also
consider first degree reckless endangering in Count V, it could
have been possible for the jury to find Stanley not guilty of
that charge as well, thereby acquitting Stanley of attempted
second degree murder. “However, subsumed within these
instructions was a directive that the jury could not consider
these included offenses if it convicted [Stanley] of attempted
reckless manslaughter. The jury’s guilty verdict thus precluded
it from reaching them[.]” Loa, 83 Hawaiʻi at 359, 926 P.2d at
1282. “The jury may have acquitted [Stanley] altogether in
connection with the attempted [second] degree murder charge.
25 Indeed, the State admitted it appeared the jury was confused as to what
attempted manslaughter and attempted reckless manslaughter entailed. See
supra note 9.
43
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
However compelling the evidence of criminal wrongdoing might
have been, such a possibility cannot be dismissed absolutely.”
Id. (footnote omitted).
Because of the lack of evidence in the record demonstrating
Stanley was convicted of attempted EMED manslaughter, there is a
reasonable possibility that the jury may have convicted Stanley
of the nonexistent offense of attempted reckless manslaughter.
Therefore, the erroneous attempted reckless manslaughter jury
instruction was not harmless beyond a reasonable doubt. This
requires us to vacate his attempted manslaughter conviction and
remand to the circuit court for further proceedings consistent
with this opinion.26
26 On remand, double jeopardy principles preclude Stanley from being
retried for attempted second degree murder in Count V. See Loa, 83 Hawaiʻi at
360, 926 P.2d at 1283 (holding the defendant cannot be retried on the
original charge of attempted first degree murder because he was convicted of
the “included offense” of the nonexistent offense of attempted reckless
manslaughter, as doing so would violate HRS § 701-110(1) (1993), the
defendant’s constitutional right against double jeopardy, and State v.
Feliciano, 62 Haw. 637, 618 P.2d 306 (1980)). Here, the trial court
instructed the jury that “[i]f you are unable to find that the offense of
Attempted Murder in the First Degree or Second Degree has been proven beyond
a reasonable doubt, you may then consider whether the Defendant is guilty or
not guilty of the included offense of Attempted Manslaughter.” The jury’s
written communications asking for clarification as to attempted reckless
manslaughter are significant in light of “the sound presumption of appellate
practice that jurors are reasonable and generally follow the instructions
that they are given.” Loa, 83 Hawaiʻi at 359, 926 P.2d at 1282.
We presume that the jury followed the [trial] court's
instructions and first considered the evidence with regard
to the Attempted Murder charge. Consequently, the jury
would first have considered the charged offense and would
have gone on to consider any lesser offense only if [it
was] unable to agree that the prosecution had proven that
[Stanley] was guilty of the charged offense beyond a
reasonable doubt.
(continued . . .)
44
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
C. Stanley did not claim his sentence for attempted first
degree murder violates the equal protection clause of the
United States or Hawaiʻi constitutions
Stanley maintains that his sentence for attempted first
degree murder violates the equal protection clause of the United
States and Hawaiʻi constitutions because Hawaiʻi’s first degree
murder statute affords greater protection to judges,
prosecutors, and police officers or it is not applied equally,
and argues the ICA erred in failing to address that claim. As
the ICA concluded, Stanley’s failure to raise this argument in
the circuit court and failure to prove the existence of
extraordinary circumstances to justify his failure to raise this
argument in his direct appeal, two habeas corpus petitions to
the district court, and the First Petition bar relief under HRPP
Rule 40(a)(3).
D. The record is insufficient to address Stanley’s remaining
claim
The record is insufficient to address Stanley’s remaining
claim on certiorari, namely whether the ICA erred in not finding
exceptional circumstances existed because of the degree and
level of his education at the time of his offenses and trial.
(. . . continued)
Id. “Thus, the fact that the jury reached the erroneous [attempted reckless
manslaughter jury] instruction at all signifies it was unable to convict
[Stanley] of attempted [second] degree murder.” Id. “The jury having
acquitted [Stanley] of [attempted second degree murder] by virtue of its
verdict, we hold that [Stanley] may not be retried for it.” Loa, 83 Hawaiʻi
at 361, 926 P.2d at 1284.
45
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
V. Conclusion
For the reasons explained above, we vacate the ICA’s
October 2, 2019 judgment on appeal, the circuit court’s February
23, 2018 order denying the Second Petition, and Stanley’s
conviction of attempted manslaughter and the ten-year sentence
that flowed from it. We remand this case to the circuit court
for further proceedings consistent with this opinion.
Edward G. Stanley, /s/ Mark E. Recktenwald
petitioner pro se
/s/ Paula A. Nakayama
Sonja P. McCullen,
(on the briefs), /s/ Sabrina S. McKenna
for respondent
/s/ Michael D. Wilson
/s/ Trish K. Morikawa
46