Nuezca v. State ( 2020 )


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  •  NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER
    Electronically Filed
    Intermediate Court of Appeals
    CAAP-XX-XXXXXXX
    28-JUL-2020
    10:09 AM
    NO. CAAP-XX-XXXXXXX
    IN THE INTERMEDIATE COURT OF APPEALS
    OF THE STATE OF HAWAI#I
    JONATHAN NUEZCA, Petitioner-Appellant, v.
    STATE OF HAWAI#I, Respondent-Appellee
    APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT
    (S.P.P. NO. 16-1-0008(2); CR. NO. 15-1-0285(2))
    SUMMARY DISPOSITION ORDER
    (By: Leonard, Presiding Judge, and Chan and Wadsworth, JJ.)
    Petitioner-Appellant Jonathan Nuezca (Nuezca) appeals
    from the "Court's Findings of Fact, Conclusions of Law, and Order
    Denying Petition to Vacate, Set Aside, or Correct Judgment or to
    Release Petitioner from Custody Filed on June 7, 2016"
    (FOF/COL/Order), entered on October 3, 2017, in the Circuit Court
    of the Second Circuit (Circuit Court).1/          Following an
    evidentiary hearing, the Circuit Court concluded that Nuezca had
    failed to present sufficient evidence to establish his claims of
    ineffective assistance of counsel and prosecutorial misconduct,
    and denied Nuezca's Petition to Vacate, Set Aside, or Correct
    Judgment or to Release Petitioner from Custody (Petition).
    On appeal, Nuezca challenges the Circuit Court's
    Findings of Fact (FOF) Nos. 27, 28, 29, 31, 33, 36, 38, 39, 40,
    and 41 and Conclusions of Law (COL) Nos. 8, 9, 10, 11, 12, and
    13. Nuezca contends that the Circuit Court erred in ruling that
    he failed to establish his ineffective assistance claim, because
    he was not accurately advised by his trial counsel that pleading
    1/
    The Honorable Peter T. Cahill presided.
    NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER
    no contest to an aggravated felony would subject him to
    "mandatory and certain" deportation.
    Upon careful review of the record and the briefs
    submitted by the parties and having given due consideration to
    the arguments advanced and the issues raised by the parties, as
    well as the relevant statutory and case law, we resolve Nuezca's
    contentions as follows.
    I.   RELEVANT BACKGROUND
    The following FOFs, among others, are undisputed:
    1. On May 1, 2015, in Cr. No. 15-1-0285(2), the Grand
    Jury of the Second Circuit indicted Nuezca on the following
    counts:
    Count One: Sexual Assault in the Third Degree
    [(Sex Assault 3)], in violation of Hawai[]i Revised
    Statutes ("HRS") § 707-732(1)(b); 2/
    Count Two: [Sex Assault 3], in violation of HRS
    § 707-732(1)(c);
    Count Three: [Sex Assault 3], in violation of
    HRS § 707-732(1)(c);
    Count Four: [Sex Assault 3], in violation of HRS
    § 707-732(1)(c); and
    Count Five: [Sex Assault 3], in violation of HRS
    § 707-732(1)(c).
    2. On March 11, 2015, Defendant Nuezca pled not
    guilty to all five counts against him at his Arraignment and
    Plea.
    3. In the Arraignment and Plea hearing, the Court
    gave the immigration advisement required by HRS § 802E-4 to
    Nuezca.
    2/
    HRS § 707-732(1)(b)(2014) provides:
    (1) A person commits the offense of sexual assault in
    the third degree if:
    . . . .
    (b)   The person knowingly subjects to sexual contact
    another person who is less than fourteen years
    old or causes such a person to have sexual
    contact with the person[.]
    At the time of the indictment, HRS § 707-700 (2014) defined
    "sexual contact" as "any touching, other than acts of 'sexual penetration', of
    the sexual or other intimate parts of a person not married to the actor, or of
    the sexual or other intimate parts of the actor by the person, whether
    directly or through the clothing or other material intended to cover the
    sexual or other intimate parts."
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    4. [Trial counsel] represented Defendant Nuezca
    . . . .
    5. On August 11, 2015, Nuezca changed his plea from
    not guilty to no contest to Count One . . . .
    6. In the Change of Plea hearing, the Court gave
    Nuezca an immigration warning as required by HRS § 802E-2.
    7. The Court advised Nuezca of the potential
    immigration issues that may arise if he is not a citizen of
    the United States, including detention and removal, by
    changing his plea to no contest.
    8. During the hearing, Nuezca acknowledged that he
    had certain rights, including a speedy and public trial and
    the right to appeal anything that occurred up to the change
    of plea date, and that he gave up those rights.
    9. Nuezca also acknowledged that he faced a possible
    five-year term of imprisonment and $10,000 in fines, an
    extended term of imprisonment of ten-years and a term of
    probation of four-years with up to one year in jail. A
    conviction in the offense to which [Nuezca] entered a No
    Contest Plea also required him to register as a sex offender
    for life.
    10. Nuezca acknowledged that he discussed all of the
    foregoing with his attorney and that he had no complaints
    about his attorney.
    11. Nuezca also signed a No Contest Plea form in open
    Court acknowledging the items contained in these [FOFs].
    12. As a result of his plea deal, Nuezca pled no
    contest to Count One . . . . After sentencing pursuant to
    the plea deal, the Court dismissed Counts Two through Five
    . . . with prejudice.
    13. The Court found that Nuezca intelligently,
    knowingly, and voluntarily changed his plea of not guilty
    and entered a plea of no contest.
    14. On October 20, 2015, the Court sentenced Nuezca
    to five years' probation. As a term and condition of
    probation the Court sentenced [Nuezca] to one year jail.
    15. [O]n June 7, 2016, Nuezca file[d the Petition] in
    the instant case.
    16.   Nuezca raised three grounds for relief in his
    Petition:
    Ineffective assistance of counsel for being
    misinformed about the deportation consequences of his no
    contest plea, leading him to not believe the Court's
    immigration advisement, and not being advised about going to
    trial.
    17. [Respondent-Appellee State of Hawai#i (State)]
    filed a Response to the Petition on August 22, 2016, and
    Nuezca filed a Reply on February 13, 2017.
    18. On October 31, 2016, the U.S. Board of
    Immigration Appeals issued a decision to vacate an
    immigration judge's decision to remove Nuezca from the
    United States.
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    19. This court held an evidentiary hearing on
    Nuezca's . . . Petition on February 22, 2017. Nuezca
    participated via Polycom as he remained in federal custody
    pending possible removal from the United States. A Court
    certified interpreter assisted in the case to provide
    English-Ilokano translation.
    (Footnote added and original footnote omitted.)
    At the hearing on the Petition, Nuezca's trial counsel
    testified that in his practice, it is routine for him to
    determine if his client is a United States citizen, and he did so
    in Nuezca's case. On June 4, 2015, within days of coming on the
    case, trial counsel learned that Nuezca had a permanent resident
    card. "Right away, [trial counsel] told [Nuezca] that what he's
    charged with, five counts of sexual assault three, is a
    deportable offense." Trial counsel informed Nuezca "[m]any
    times" that "there was a possibility that he would be deported";
    he advised Nuezca "[m]any times" that "if he pled no contest, he
    would be -- could be deported"; and that "[Sex Assault 3] was a
    deportable offense." Trial counsel also mentioned to Nuezca that
    because he had a permanent resident card, if Immigration and
    Customs Enforcement (ICE) put a hold on him, he should qualify
    for assistance from a federal public defender. Trial counsel
    told Nuezca he "couldn't give him assurances that he would not be
    deported[,]" but also "tried to give him some hope, because there
    ha[d] been some cases where . . . people were not deported when
    they had their permanent residence card." Trial counsel "told
    [Nuezca] many times, yes, this is a deportable offense, because
    he asked [trial counsel] every single time [trial counsel]
    visited him or talked to him on the phone. And [trial counsel]
    said [he] hoped it didn't happen, but [Nuezca] certainly was
    aware of it." "[P]ortions of this continuing discussion took
    place before the change of plea hearing . . . many, many times."
    Trial counsel further testified:
    And what happened was, over the course of talking with
    the prosecutor's office, [the prosecutor] agreed finally to
    dismiss four of the Class C felonies. . . . [S]he dismissed
    four of the Class C felonies if [Nuezca] would plead to one
    Class C felony. She was going to ask for five years of
    probation and a year in jail.
    . . . .
    . . . And when we came to sentencing, Judge Cahill
    granted the probation request but gave him a year, which was
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    the agreement.
    And we talked about this issue going into it, and he
    was fully aware of it. In fact, he decided to gamble on the
    consequences of whether he might get an ICE hold or, you
    know, spare himself from going to possibly a state prison.
    Trial counsel explained, "It was a gamble because he wanted to go
    home, so he chose to enter the plea of no contest to one count
    involving his stepdaughter and basically rolled the dice on
    whether ICE would ever catch up with him."
    When asked if he ever told Nuezca that "he would be
    deported," trial counsel testified: "I did not know to a hundred
    percent that he would be, no. There was a possibility that he
    would not be. In fact, my understanding was the immigration
    judge sided with him over in Honolulu recently."
    When asked if he felt he "had an obligation to tell Mr.
    Nuezca that he would be deported," trial counsel responded:
    Well, that assumes that I knew what the immigration
    courts would do, and I did not at the time. I did tell him
    it was a deportable offense and if he got caught up in the
    system, he would need an immigration -- he would need the
    help. But having a residence card, he should be able to get
    a federal public defender to help with that. I definitely
    told him it was deportable.
    Following testimony and argument, the Circuit Court
    orally denied the Petition. In the FOF/COL/Order, the Circuit
    Court further found and concluded, in relevant part:
    20. Defendant Nuezca, his wife . . ., and [trial
    counsel] testified at the hearing.
    21. The court finds [trial counsel] to be a credible
    witness and accepts his testimony.
    . . . .
    27. The Court finds credible [trial counsel's]
    testimony that he advised Nuezca on numerous occasions that
    he faced the possibility of deportation.
    28. [Trial counsel] also told Nuezca that because he
    had a permanent resident card, if Immigration and Customs
    Enforcement put a hold on Nuezca, he would qualify for
    assistance from a federal public defender.
    29. [Trial counsel] told Nuezca that he could not give
    Nuezca assurances that he would not be deported, but also
    tried to give him some hope by telling him that some people
    were not deported when they had their permanent resident
    card.
    . . . .
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    31. [Trial counsel] requested an interpreter for the
    Change of Plea hearing just in case words were spoken too
    quickly or complex terms were used, and the Court furnished
    one for [Nuezca].
    . . . .
    33. Although [Nuezca] faced possible deportation,
    [trial counsel] testified that Nuezca accepted the plea deal
    because he wanted to return to his family and his job and
    sought to receive probation in a plea agreement.
    34. [Trial counsel] further testified that he made
    efforts for a "better" deal, but the deputy prosecutor
    assigned to Nuezca's case would not enter into a plea
    agreement unless Nuezca pled to one of the class C felony
    counts, and in return, she agreed to a dismissal of the
    remaining four counts.
    35. The Court followed the plea agreement and
    sentenced Nuezca to five years probation, including one year
    of prison.
    36. Nuezca faced possible lengthy prison time if he
    chose to go to trial and the jury convicted him of all
    charged offenses. The Court finds credible the testimony of
    [trial counsel] that Nuezca decided to risk deportation with
    a shorter prison term or probation because of his family.
    . . . .
    38. The Court does not find credible either Mr. or
    Mrs. Nuezca's testimony that [Nuezca] had not been warned or
    advised by his lawyers that he would likely face removal.
    39. The Court further finds that based on all the
    credible evidence, [Nuezca] had been advised and warned that
    if convicted he could face removal.
    40. The Court further finds that Nuezca as a "green
    card" holder of recent arrival and facing actual removal now
    seeks to undo the benefits of the plea deal he knowingly,
    intelligently, and voluntarily entered into with the full
    advice of counsel. The Court further finds that based upon
    all credible evidence that [Nuezca] is motivated by current
    events and the desire to remain in the United States and not
    out of actual innocence.
    41. The Court further finds that Nuezca failed to
    present any credible evidence that his [trial counsel's]
    representation was ineffective.
    . . . .
    CONCLUSIONS OF LAW
    . . . .
    8. . . . Nuezca failed to establish factually and
    legally that his conviction under Hawaii law for [Sex
    Assault 3] make it practically certain that he shall be
    removed or deported.
    9. [Trial counsel's] advice to Nuezca that [Sex
    Assault 3] made him subject to deportation or removal was
    not objectively unreasonable and within the standard
    required of a competent attorney, and thus Nuezca failed to
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    meet the first prong of the Strickland[ v. Washington, 
    466 U.S. 668
    , 687, reh. denied, 
    467 U.S. 1267
    (1984) test].
    10. . . . Nuezca did not suffer prejudice as required
    by the second prong of the Strickland test, because Nuezca
    faced a possible 25-year prison term, so he made the
    conscious decision to take his chances with deportation and
    enter into a plea agreement.
    11. . . . [Trial counsel's] assistance to Nuezca was
    within the range of competence demanded of attorneys in
    criminal cases under [State v. ]Richie[, 88 Hawai #i 19, 
    960 P.2d 1227
    (1998)].
    12.   . . . [Trial counsel] did not commit specific
    errors or omissions reflecting counsel's lack of skill,
    judgment, or diligence under the first prong of the Richie
    test.
    13. Because [trial counsel] did not commit any errors
    or omissions, there is no need to conduct the second prong
    of the Richie test.
    14. . . . Nuezca failed to present sufficient
    evidence to establish his claims of ineffective assistance
    of counsel in his first and second grounds for relief.
    15.   . . . Nuezca failed to present any evidence to
    establish his claim of prosecutorial misconduct in his third
    ground for relief.
    . . . .
    ORDER
    The Court, having made the foregoing [FOFs] and
    [COLs], and concluding that Nuezca failed to present
    sufficient evidence to meet [h]is burden of proof to
    establish his claims of ineffective assistance of counsel
    and prosecutorial misconduct[,]
    IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the
    [Petition] is DENIED.
    II.   DISCUSSION
    Nuezca argues that his trial counsel was ineffective
    for failing to advise him that "he was facing mandatory and
    certain deportation from being convicted of an aggravated
    felony." Nuezca challenges numerous findings by the Circuit
    Court as to what Nuezca's trial counsel advised him regarding the
    immigration consequences of pleading no contest to one count of
    Sex Assault 3. Ultimately, the Circuit Court found that trial
    counsel's testimony was credible, and that trial counsel had
    advised Nuezca that he "could face removal" for a Sex Assault 3
    conviction, and "[Sex Assault 3] made him subject to deportation
    or removal."
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    "A trial court's [findings of fact] are reviewed under
    the clearly erroneous standard. A finding of fact is clearly
    erroneous when, despite evidence to support the finding, the
    appellate court is left with the definite and firm conviction in
    reviewing the entire evidence that a mistake has been committed."
    Dan v. State, 76 Hawai#i 423, 428, 
    879 P.2d 528
    , 533 (1994)
    (citing and quoting Hawai#i Thousand Friends v. City and County
    of Honolulu, 
    75 Haw. 237
    , 248, 
    858 P.2d 726
    , 732, (1993))
    (internal quotation marks omitted).
    Here, there is evidence in the record to support the
    Circuit Court's findings of fact that are challenged by Nuezca,
    and based on our review of the record, we are not left with a
    definite and firm conviction that the Circuit Court made mistakes
    in these findings. To the extent that Nuezca challenges the
    Circuit Court's findings regarding credibility, "it is within the
    province of the trial court to determine the credibility of a
    witness[.]" Matter of Ishida-Waiakamilo Legacy Trust, 140
    Hawai#i 69, 74, 
    398 P.3d 658
    , 663 (2017) (quoting In re Ishida-
    Waiakamilo Legacy Trust, 138 Hawai#i 98, 107, 
    377 P.3d 39
    , 48
    (App. 2016)) (internal quotation marks omitted); see also State
    v. Jenkins, 93 Hawai#i 87, 101, 
    997 P.2d 13
    , 27 (2000) (quoting
    State v. Mattiello, 90 Hawai#i 255, 259, 
    978 P.2d 693
    , 697
    (1999)).
    We therefore conclude that the challenged findings were
    not clearly erroneous, and the evidence supports that trial
    counsel advised Nuezca that pleading no contest to Sex Assault 3
    would subject him to deportation. Nuezca argues that even if the
    Circuit Court's findings are upheld, his trial counsel's advice
    was deficient and constituted ineffective assistance. He relies
    primarily on Padilla v. Kentucky, 
    559 U.S. 356
    (2010), to support
    his claim.
    In Padilla, the Supreme Court held that
    constitutionally competent counsel would have advised a defendant
    that his conviction for drug distribution made him subject to
    automatic deportation.
    Id. at 360.
    The Court stated:
    In the instant case, the terms of the relevant
    immigration statute are succinct, clear, and explicit in
    defining the removal consequence for [the defendant's]
    conviction. See 8 U.S.C. § 1227(a)(2)(B)(i) ("Any alien who
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    at any time after admission has been convicted of a
    violation of (or a conspiracy or attempt to violate) any law
    or regulation of a State, the United States or a foreign
    country relating to a controlled substance . . ., other than
    a single offense involving possession for one's own use of
    30 grams or less of marijuana, is deportable"). [The
    defendant's] counsel could have easily determined that his
    plea would make him eligible for deportation simply from
    reading the text of the statute, which addresses not some
    broad classification of crimes but specifically commands
    removal for all controlled substances convictions except for
    the most trivial of marijuana possession offenses. Instead,
    [the defendant's] counsel provided him false assurance that
    his conviction would not result in his removal from this
    country. This is not a hard case in which to find
    deficiency: The consequences of [the defendant's] plea
    could easily be determined from reading the removal statute,
    his deportation was presumptively mandatory, and his
    counsel's advice was incorrect.
    Id. at 368-69.
    In sum, the defendant's counsel erred in not
    recognizing that the defendant's plea would subject him to
    "presumptively mandatory" deportation, and advising him to the
    contrary "that his conviction would not result in his removal."
    Id. The Court recognized
    that "[i]mmigration law can be
    complex, and it is a legal specialty of its own."
    Id. at 369.
    The Court observed:
    There will, therefore, undoubtedly be numerous situations in
    which the deportation consequences of a particular plea are
    unclear or uncertain. . . . When the law is not succinct
    and straightforward . . ., a criminal defense attorney need
    do no more than advise a noncitizen client that pending
    criminal charges may carry a risk of adverse immigration
    consequences. But when the deportation consequence is truly
    clear, as it was in this case, the duty to give correct
    advice is equally clear.
    Id. (emphasis added) (footnote
    omitted). The Court concluded by
    stating: "[W]e now hold that counsel must inform her client
    whether his plea carries a risk of deportation."
    Id. at 374.
              This case differs from Padilla in important respects.
    Here, Nuezca argues that Sex Assault 3 constitutes "sexual abuse
    of a minor," which he asserts "is clearly an aggravated felony"
    that triggered "mandatory" deportation under federal immigration
    law.3/ However, he failed to establish that at the time of his
    no-contest plea, it was "truly clear" that Sex Assault 3
    3/
    8 U.S.C. § 1227(a)(2)(A)(iii) (2008) provides: "Any alien who is
    convicted of an aggravated felony at any time after admission is deportable."
    An "aggravated felony" includes "sexual abuse of a minor." 8 U.S.C.
    § 1101(a)(43)(A).
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    constituted "sexual abuse of a minor," such that his removal was
    "presumptively mandatory" and his counsel was required to so
    advise him.
    Id. at 369.
              Indeed, in Nuezca's subsequent removal proceedings, the
    Board of Immigration Appeals (BIA) ruled that the Department of
    Homeland Security (DHS) had not established that Nuezca's
    conviction for Sex Assault 3 constituted a conviction for sexual
    abuse of a minor. In re Nuezca, 
    2016 WL 8188641
    , at *2 (BIA
    Oct. 31, 2016) (unpublished) ("Given that Hawaii's definition of
    'sexual contact' includes offenses which were committed 'through
    the clothing,' the respondent has . . . not been convicted of a
    categorical sexual abuse of a minor aggravated felony . . . ."
    (citing United States v. Martinez, 
    786 F.3d 1227
    , 1232 (9th Cir.
    2015) (holding that, under Washington state law, third-degree
    child molestation did not categorically constitute "sexual abuse
    of a minor" because it "criminalize[d] touching over clothing as
    opposed to the generic offense's requirement of skin-to-skin
    contact"); and United States v. Castro, 
    607 F.3d 566
    , 570 (9th
    Cir. 2010) (holding that a California statute prohibiting lewd
    and lascivious acts on a child was categorically broader than the
    generic definition for sexual abuse of a minor because "[l]ewd
    touching [under the state statute] can occur through a victim's
    clothing and can involve any part of the victim's body"))). The
    BIA further ruled that the DHS had not established that Nuezca's
    Sex Assault 3 conviction constituted a conviction for a crime
    involving "moral turpitude."4/
    Id. Accordingly, the BIA:
    (1)
    sustained Nuezca's appeal and vacated "the Immigration Judge's
    decision to sustain the charges of removability"; and (2)
    4/
    8 U.S.C. § 1227(a)(2)(A)(i) (2008) provides:
    Any alien who--
    (I) is convicted of a crime involving moral turpitude
    committed within five years (or 10 years in the case
    of an alien provided lawful permanent resident status
    under section 1255(j) of this title) after the date of
    admission, and
    (II) is convicted of a crime for which a sentence of
    one year or longer may be imposed,
    is deportable.
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    "remand[ed] the record to the Immigration Judge for further
    proceedings," including "a renewed opportunity [for the DHS] to
    lodge additional charges of removability."
    Id. at *2-*3
    (citing
    8 C.F.R. § 1240.10(e) (2015)).
    Nuezca points out that at the hearing on the Petition,
    trial counsel testified: "It looked to me like it was an
    aggravated felony. . . . It's a crime of moral turpitude as
    well." Regardless, whether a conviction for Sex Assault 3 would
    trigger "mandatory" deportation at the time of Nuezca's plea was
    primarily a legal issue, and Nuezca failed to establish that such
    a consequence was "truly clear" as a matter of federal
    immigration law. 
    Padilla, 559 U.S. at 369
    . In citing the BIA's
    2016 decision in Nuezca's removal proceedings, we neither adopt
    nor reject its legal analysis, which is dependent in part on its
    reading of Hawai#i law. We also recognize that the decision came
    after Nuezca's plea, and was thus not available when his trial
    counsel advised him regarding immigration consequences.
    Nevertheless, the decision relies on pre-existing authorities,
    which, at the very least, undermine Nuezca's argument that Sex
    Assault 3 was "clearly an aggravated felony" that triggered
    "mandatory" deportation under federal immigration law.
    Accordingly, on this record, we conclude that Nuezca failed to
    establish that pleading no-contest to Sex Assault 3 would subject
    him to presumptively mandatory deportation, such that his trial
    counsel was required to so advise him.
    Under these circumstances, we also conclude that trial
    counsel was not ineffective in advising Nuezca regarding the
    immigration consequences of his plea. "When the law is not
    succinct and straightforward . . ., a criminal defense attorney
    need do no more than advise a noncitizen client that pending
    criminal charges may carry a risk of adverse immigration
    consequences." 
    Padilla, 559 U.S. at 369
    . Here, trial counsel
    advised Nuezca that pleading no contest to Sex Assault 3 would
    subject him to deportation, which was sufficient to warn Nuezca
    that the plea "carr[ied] a risk of adverse immigration
    consequences."
    Id. Thus, trial counsel
    satisfied Padilla, and
    on this record, Nuezca has not established "specific errors or
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    omissions reflecting counsel's lack of skill, judgment or
    diligence."5/ Richie, 88 Hawai#i at 
    39, 960 P.2d at 1247
    (quoting
    State v. Fukusaku, 85 Hawai#i 462, 480, 
    946 P.2d 32
    , 50 (1997)).
    Accordingly, the Circuit Court did not err in ruling that Nuezca
    failed to establish his ineffective assistance claim.
    III.   CONCLUSION
    For the reasons stated above, we affirm the "Court's
    Findings of Fact, Conclusions of Law, and Order Denying Petition
    to Vacate, Set Aside, or Correct Judgment or to Release
    Petitioner from Custody Filed on June 7, 2016," entered on
    October 3, 2017, in the Circuit Court of the Second Circuit.
    DATED:   Honolulu, Hawai#i, July 28, 2020.
    On the briefs:
    /s/ Katherine G. Leonard
    Matthew S. Kohm                           Presiding Judge
    for Petitioner-Appellant.
    Richard K. Minatoya,                      /s/ Derrick H.M. Chan
    Deputy Prosecuting Attorney,              Associate Judge
    County of Maui,
    for Respondent-Appellee.
    /s/ Clyde J. Wadsworth
    Associate Judge
    5/
    It appears that the Circuit Court analyzed Nuezca's ineffective
    assistance claim under both the Sixth Amendment of the United States
    Constitution, applying the federal standard announced in 
    Strickland, 466 U.S. at 687
    , and Article I, section 14 of the Hawai #i Constitution, applying the
    state standard followed in Richie, 88 Hawai#i at 39, 
    960 P.2d 1227
    at 1247.
    To the extent that COLs 3, 4, 7, 9, or 10 can be read as imposing the
    Strickland standard on the ineffective assistance claim brought under the
    Hawai#i Constitution, that conclusion is incorrect, but harmless, because the
    Circuit Court concluded that Nuezca's claim also failed the applicable Richie
    standard.
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