Rapozo v. State ( 2021 )

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
12-MAR-2021
07:57 AM
Dkt. 72 MO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
RICHARD RAPOZO, Petitioner-Appellant,
v.
STATE OF HAWAI#I, Respondent-Appellee
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CASE NO. 1PR141000016)
MEMORANDUM OPINION
(By: Leonard, Presiding Judge, Hiraoka and Nakasone, JJ.)
Self-represented Petitioner-Appellant Richard Rapozo
(Rapozo) appeals from the "Order Denying Petition to Vacate, Set
Aside, or Correct Judgment or to Release Petitioner from Custody"
(Order Denying Rule 40 Petition) entered by the Circuit Court of
the First Circuit1 on June 21, 2016. For the reasons explained
below, we affirm the Order Denying Rule 40 Petition.
BACKGROUND
On the evening of August 15, 1978, [Rapozo] was at the
Waimanalo Gym. He purchased a pistol outside the Gym and
tucked it in his pants. He consumed some beer during the
course of the evening. A girls' volleyball game was in
progress in the Gym and [Rapozo] had been in the Gym playing
with the girls for about an hour when he allegedly became
obnoxious and was asked to leave. As he walked away, he was
confronted by one Robert Lee, whom he had never met. Lee
was fatally wounded by the first bullet fired from
[Rapozo]'s gun which struck him in the stomach. After Lee
had fallen, [Rapozo] shot him two more times.
1
The Honorable Richard K. Perkins presided.
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State v. Rapozo, 1 Haw. App. 255, 256, 617 P.2d 1235, 1236 (1980)
(Rapozo I).
Criminal Case
On August 23, 1978, Rapozo was indicted for murder
under Hawaii Revised Statutes (HRS) § 707-701 (1976). The
statute provided:
§ 707-701 Murder. (1) Except as provided in section
707-702 [Manslaughter], a person commits the offense of
murder if [the person] intentionally or knowingly causes the
death of another person.
(2) Murder is a class A felony for which the
defendant shall be sentenced to imprisonment as provided in
section 706-606.
On April 10, 1979, a jury found Rapozo guilty as
charged. At that time, HRS § 706-606 (1976) provided:
§ 706-606 Sentence for offense of murder. The court
shall sentence a person who has been convicted of murder to
an indeterminate term of imprisonment. In such cases the
court shall impose the maximum length of imprisonment as
follows:
(a) Life imprisonment without possibility of parole
in the murder of:
(i) A peace officer while in the performance
of [their] duties, or
(ii) A person known by the defendant to be a
witness in a murder prosecution, or
(iii) A person by a hired killer, in which event
both the person hired and the person
responsible for hiring the killer shall be
punished under this subsection, or
(iv) A person while the defendant was
imprisoned.
As part of such sentence the court shall order
the director of the department of social
services and housing and the Hawaii paroling
authority to prepare an application for the
governor to commute the sentence to life with
parole at the end of twenty years of
imprisonment.
(b) Life imprisonment with possibility of parole or
twenty years as the court determines, in all
other cases. The minimum length of imprisonment
shall be determined by the Hawaii paroling
authority in accordance with section 706-669.
2
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On May 16, 1979, the circuit court entered a Judgment
sentencing Rapozo to life imprisonment with the possibility of
parole. He was also ordered to pay "restitution in the amount of
$11,109.33, the manner of payment to be determined and handled by
the Department of Social Services and Housing."
Hawaii Paroling Authority
Sets Minimum Sentence
When Rapozo was sentenced HRS § 706-669 (1976)
provided, in relevant part:
(1) When a person has been sentenced to an indeterminate
or an extended term of imprisonment, the Hawaii paroling
authority shall, as soon as practicable but no later than
six months after commitment to the custody of the director
of the department of social services and housing hold a
hearing, and on the basis of the hearing make an order
fixing the minimum term of imprisonment to be served before
the prisoner shall become eligible for parole.
On October 9, 1979, the Hawaii Paroling Authority (HPA) set
Rapozo's minimum sentence at 30 years, with the qualification
that "[p]arole shall not be granted until judgement [sic] of
restitution is satisfied."
Direct Appeal
Rapozo appealed, claiming his trial counsel was
ineffective. We affirmed the conviction, holding that the record
as a whole was "insufficient to establish that there was
ineffective assistance of counsel[.]" Rapozo I, 1 Haw. App. at
256, 617 P.2d at 1237. Rapozo also moved for a remand to the
circuit court, claiming that "his testimony at trial, on the
instructions of his then[-]attorney, was perjured and that
actually, despite his detailed testimony as to the happening of
the homicide, he was without memory of the shooting due to
drunkenness." State v. Rapozo, 1 Haw. App. 660, 661, 617 P.2d
1237, 1238 (1980) (Rapozo II). We denied the motion. Id. at
662, 617 P.2d at 1239.
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First Rule 40 Petition
On May 8, 1981, Rapozo filed a "Petition for Post-
Conviction Relief[,]" initiating S.P. No. 5490. He again argued
ineffective assistance of counsel. The circuit court denied the
petition. Rapozo appealed. The Hawai#i Supreme Court summarily
affirmed the circuit court. Rapozo v. State, No. 8573 (Haw.
June 26, 1984) (mem.).
Habeas Corpus Petition
Rapozo was involved in a riot while incarcerated at the
Hālawa Correctional Facility, and was transferred to federal
custody in 1981. On June 3, 1988, Rapozo filed a "Petition for
Writ of Habeas Corpus" in federal court, arguing that his trial
and appellate counsel were ineffective, and that the trial judge
was biased against him because the same judge had convicted his
brother of murdering a witness in the case.2 The petition was
dismissed. Order Adopting Magistrate's Report and Recom-
mendation, Rapozo v. Hawai#i, Civ. No. 88-00414DAE (D. Haw.
Dec. 16, 1991).
Second Rule 40 Petition
On August 13, 1993, Rapozo filed another "Petition for
Post-Conviction Relief[,]" initiating S.P.P. No. 93-0048. He
argued that the trial judge was biased against him, the police
were negligent in their investigation, and his trial counsel was
rewarded for his conviction with a position as a judge. The
circuit court denied the petition. Rapozo did not appeal.
2
Dana Rapozo was the defendant in State v. Rapozo, 2 Haw. App. 587,
637 P.2d 786 (1981). That case involved Dana Rapozo's direct appeal from his
conviction for murdering a witness who implicated his brother, Richard Rapozo,
in the murder of Robert Lee. Id. at 589 n.4, 637 P.2d at 788 n.4.
4
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1995 Parole Hearing
On August 21, 1995, the HPA granted Rapozo's applica-
tion to reduce his minimum term from 30 years to 28 years. His
minimum term was to expire on August 10, 2006.3
Third Rule 40 Petition
On July 11, 1997, Rapozo filed another "Petition for
Post-Conviction Relief[,]" initiating S.P.P. No. 97-0016. He
argued that his trial counsel was ineffective, the State mislead
the jury by withholding material evidence, and he was denied the
right to confront potential witnesses. The circuit court denied
the petition. Rapozo appealed. We summarily affirmed the
circuit court. Rapozo v. State, 90 Hawai#i 502, 979 P.2d 98
(Table) (App. 1999).
Motion to Correct Sentence
On January 12, 1999, Rapozo filed a "Brief in Support
of Motion to Correct Sentence." He argued that the statute under
which he was convicted, HRS § 707-701, has been amended since the
time of his sentence. He contended that the crime of which he
was convicted did not fall within the scope of the then-current
version of HRS § 707-701 (1993), Murder in the First Degree. He
argued that his sentence should be corrected to reflect the term
of imprisonment imposed by HRS § 706-656, the statute then
governing the penalty for Murder in the Second Degree, HRS
§ 707-701.5. The circuit court denied the petition, noting that
HRS § 707-701 was amended, and HRS § 707-701.5 (Murder in the
Second Degree) was added, by 1986 Haw. Sess. Laws Act 314, § 50
at 616, and the court "cannot retroactively apply HRS
§ 707-701.5[.]" The circuit court held:
3
Rapozo states, in his June 9, 2014 motion for revocation of
restitution, "In 2006, the HPA raised [his] minimum term of sentence back to
30 years without providing any specific reason for the increase[.]" The
record does not contain any documentation of an increased minimum term.
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In essence, Rapozo asks this court to correct his
sentence to reflect the sentence of an offense (Murder in
the Second Degree) that did not exist at the time Rapozo was
indicted, convicted and sentenced. Rapozo's request
presents the issue of whether this court can retroactively
apply HRS § 707-701.5 (1993), which took effect on
January 1, 1987, to correct Rapozo's sentence, which was
imposed on May 16, 1979.
HRS § 1-3 (1993) states that "[nlo law has any
retrospective operation, unless otherwise expressed or
obviously intended." The general rule is that "[sltatutes
or regulations which say nothing about retroactive
application are not applied retroactively if such a
construction will impair existing rights, create new
obligations or impose additional duties with respect to past
transactions." Clark v. Cassidy, 64 Haw. 74, 77, n.6, 636
P.2d 1344, 1346, n.6 (1981). Because Act 314 took effect on
January 1, 1987[,] and because HRS § 707-701.5 (1993) does
not mention retroactive application, this court cannot
correct Rapozo's sentence to conform with the provisions of
HRS § 707-656 (1993), the sentence required by HRS
§ 707-701.5 (1993).
On May 16, 1979, Rapozo was sentenced to life
imprisonment with the possibility of parole. This sentence
was correct according to the law as it existed at that time.
Rapozo appealed. The supreme court dismissed the
appeal after Rapozo failed to file an opening brief. State v.
Rapozo, No. 22327 (Haw. Sept. 9, 1999).
Fourth Rule 40 Petition
On January 5, 2006, Rapozo filed a request for
"Revocation of Restitution Forms" in his criminal case. The
circuit court construed the filing as a non-conforming petition
for post-conviction relief under Rule 40(c)(2) of the Hawai#i
Rules of Penal Procedure (HRPP) and created S.P.P. No. 06-1-0040.
The circuit court gave Rapozo 60 days to supplement his non-
conforming petition, and sent HRPP forms A and B to Rapozo to
complete. Rapozo did not return the forms. Accordingly, the
circuit court dismissed the non-conforming petition. Rapozo did
not appeal.
2006 Parole Hearing
On October 23, 2006, the HPA denied Rapozo's request
for parole because it was not convinced Rapozo could
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substantially comply with the terms and conditions of parole.
HPA recommended that Rapozo participate in work furlough. A
rehearing was scheduled for July 2007.
2007 Parole Hearing
On July 24, 2007, the HPA denied Rapozo's request for
parole because it was not convinced Rapozo could substantially
comply with the terms and conditions of parole. HPA recommended
that Rapozo "participate in all RAD recommended programs."4 A
rehearing was scheduled for June 2008.
Fifth Rule 40 Petition
On January 24, 2008, Rapozo filed another "Petition for
Post-Conviction Relief" (2008 Rule 40 Petition), initiating
S.P.P. No. 08-1-0003. He argued that his First Amendment rights
were violated by application of ex post facto laws, the HPA and
Department of Public Safety (DPS) refused to release him after
the expiration of what should have been his maximum term
sentence, he was falsely imprisoned, and ex post facto law
changes were applied without notification of change or
application. The circuit court denied the petition. Rapozo
appealed. We affirmed, holding:
In 1979, Rapozo was properly sentenced in accordance
with HRS § 706-606(b) (1976) to life with possibility of
parole. Rapozo is not being held beyond the expiration of
his maximum sentence. Rapozo's arguments to the contrary
are wholly without merit.
Rapozo v. State, No. 29771, 2010 WL 2565125, at *1 (Haw. App.
June 28, 2010) (SDO).
2008 Parole Hearing
On June 26, 2008, the HPA denied Rapozo's request for
parole because it was not convinced Rapozo could substantially
comply with the terms and conditions of parole. HPA recommended
4
The record does not reflect what the acronym RAD means.
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that Rapozo "participate in all RAD recommended programs." A
rehearing was scheduled for May 2009.
2009 Parole Hearing
On May 20, 2009, the HPA denied Rapozo's request for
parole because it was not convinced Rapozo could substantially
comply with the terms and conditions of parole. HPA recommended
that Rapozo "participate in work furlough." A rehearing was
scheduled for April 2010.
Sixth Rule 40 Petition
On May 26, 2009, Rapozo filed a "Petition for Writ of
Habeas Corpus[.]" The circuit court construed the filing as a
non-conforming petition for post-conviction relief under HRPP
Rule 40(c)(2) and created S.P.P. No. 09-1-0022. The circuit
court gave Rapozo 60 days to supplement his non-conforming
petition, and sent Rapozo the form to complete. Rapozo did not
complete or return the form. Accordingly, the circuit court
dismissed the non-conforming petition. Rapozo did not appeal.
2010 Parole Hearing
On April 22, 2010, the HPA denied Rapozo's request for
parole. HPA stated, "Your participation in work furlough while
incarcerated will significantly enhance your success on parole."
A rehearing was scheduled for January 2011.
Second Habeas Corpus Petition
On August 30, 2010, Rapozo filed an "Amended Petition
for a Writ of Habeas Corpus" in federal district court. The
federal district court transferred the petition to the Ninth
Circuit Court of Appeals because "only the Ninth Circuit can
authorize this court to consider a second or successive petition
for writ of habeas corpus[.]" The Ninth Circuit denied
authorization for a second habeas corpus petition. Order at 1,
Rapozo v. Bennett, No. 10-73221 (9th Cir. Jan. 12, 2011).
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2011 Parole Hearing
On March 28, 2011, the HPA denied Rapozo's request for
parole because it was not convinced Rapozo could substantially
comply with the terms and conditions of parole. HPA recommended
that Rapozo "participate in work furlough." A rehearing was
scheduled for February 2012.
Seventh Rule 40 Petition
On January 10, 2012, Rapozo filed a "Petition to
Vacate, Set Aside, or Correct Judgment or to Release Petitioner
for [sic] Custody[,]" initiating S.P.P. No. 12-1-0003. The
petition stated 14 grounds for relief. The circuit court
dismissed the petition, finding that:
All fourteen grounds raised by Petitioner were in fact
already raised and ruled upon either in Petitioner's direct
appeal, or in one of his four prior Rule 40 Petitions cited
above[5] and their respective appeals. Even assuming,
arguendo, that any of the fourteen grounds were not raised
in Petitioner's prior Rule 40 Petitions or his direct
appeal, they are deemed waived as Petitioner has failed to
allege facts establishing the existence of extraordinary
circumstances to justify the failure to raise them in the
earlier proceedings.
Rapozo appealed. We dismissed the appeal after Rapozo failed to
file an opening brief. Rapozo v. State, No. CAAP–12–000054, 2013
WL 1490431 (Haw. App. Apr. 11, 2013).6
5
The circuit court took judicial notice of Rapozo I and the records
and files in S.P.P. Nos. 5490 (the first Rule 40 petition), 93-0048 (the
second Rule 40 petition), 97-0016 (the third Rule 40 petition), and 08-1-0003
(the fifth Rule 40 petition).
6
In addition to the ten proceedings described above, Rapozo also
initiated proceedings that resulted in: Order [Denying Petition for Writ of
Mandamus], Rapozo v. State, No. 29047, 2008 WL 923291 (Haw. Mar. 24, 2008);
Order Denying Petition for Writ of Mandamus and Dismissing Action Pursuant to
28 U.S.C. § 1915A(b), Rapozo v. Hawai#i, Case 1:08-cv-00191-HG-BMK (D. Haw.
May 2, 2008); Order [Denying Petition for Writ of Mandamus], Rapozo v.
Perkins, No. 29667, 2009 WL 714308 (Haw. Mar. 13, 2009); Order [Denying
Petition for Writ of Habeas Corpus], Rapozo v. Frank, No. 29718, 2009 WL
990850 (Haw. Apr. 9, 2009); Order [Denying Petition for Writ of Habeas
Corpus], Rapozo v. State, No. 29949, 2009 WL 2477517 (Haw. Aug. 7, 2009); and
Order [Denying Petition for Writ of Habeas Corpus], Rapozo v. State,
No. 30604, 2010 WL 2844082 (Haw. July 15, 2010).
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2012 Parole Hearing
On August 28, 2012, the HPA denied Rapozo's request for
parole because it was not convinced Rapozo could substantially
comply with the terms and conditions of parole. HPA recommended
that Rapozo "participate in all RAD recommended programs." A
rehearing was scheduled for July 2013.
2013 Parole Hearing
On July 29, 2013, the HPA denied Rapozo's request for
parole. HPA stated, "Your participation in work furlough while
incarcerated will significantly enhance your success on parole."
A rehearing was scheduled for June 2014.
Eighth Rule 40 Petition
On June 9, 2014, a self-represented Rapozo filed
"Defendant's Motion for Revocation of Restitution[.]" As
summarized by the circuit court:
In this, Petitioner's eighth Rule 40 petition, he
raises two general grounds for relief: 1) that his consti-
tutional rights are being violated by the Hawaii Paroling
Authority ("HPA") by their denial of parole due to his
non-payment of restitution, and secondarily that his resti-
tution has been more than satisfied under HRS §§ 706-644
["Consequences of nonpayment; imprisonment for contumacious
nonpayment; summary collection"] and 706-645 ["Revocation of
fine or restitution"] and should be "revoked;" [sic] and
2) that his sentence is illegal because a) he was sentenced
to an extended term of imprisonment when he received a life
term with parole instead of twenty years; b) restitution was
not an authorized sentence for murder under HRS §§ 706-605
(1978) and 706-606 (1976); and c) even if it was, the court
could not delegate the determination of the manner of
payment to the Department of Social Services and Housing.
The circuit court construed the motion as a non-
conforming HRPP Rule 40(c)(2) petition for post-conviction relief
and initiated S.P.P. No. 14-1-0016. As it had done in the past,
the circuit court sent HRPP Forms A and B to Rapozo.7 On
July 18, 2014, Rapozo filed the "Petition to Vacate, Set Aside,
7
HRPP Rule 40(c)(1) provides, in relevant part: "The petition shall
be in substantially the form annexed to these rules."
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or Correct Judgment or to Release Petitioner from Custody" (2014
Rule 40 Petition) which is at issue in this appeal. The 2014
Rule 40 Petition incorporated the Motion for Revocation of
Restitution.
Respondent-Appellee State of Hawai#i — through the
Office of the Prosecuting Attorney of the City and County of
Honolulu — requested and received two extensions of time to
respond to Rapozo's petition. The declaration submitted in
support of the second extension stated: "Declarant was recently
informed of a policy change regarding restitution matters, an
issue raised in the Petition, which could affect the State's
response." The State's answer to the 2014 Rule 40 Petition was
filed by the Prosecuting Attorney's office on January 29, 2015.
It contained 22 appendices setting forth most of the background
described above. It did not mention any "policy change regarding
restitution matters[.]"
On April 4, 2016, the State — through its Attorney
General — filed an answer to the 2014 Rule 40 Petition.8 Rapozo
moved to strike the Attorney General's answer; his motion also
responded to the Attorney General's substantive arguments. The
record does not contain a ruling by the circuit court on Rapozo's
motion to strike. On April 29, 2016, the Attorney General
submitted a declaration of then-HPA administrator Tommy Johnson
and additional documents in support of its answer to the 2014
Rule 40 Petition. The additional documents included HPA denials
of parole for 2014, 2015, and 2016.
On June 21, 2016, the circuit court entered the Order
Denying Rule 40 Petition without conducting a hearing. This
appeal followed.
8
The Attorney General's office maintained that it was not served
with the 2014 Rule 40 Petition until February 18, 2016, when it received a
filed copy from the circuit court. In response, Rapozo submitted a copy of
his Saguaro Correctional Center Inmate Mail History showing that he mailed
legal documents to the circuit court, the Attorney General's office, and the
Prosecuting Attorney's office on January 13, 2015. It appears from the record
that the legal document served on January 13, 2015, was actually Rapozo's
motion to schedule a hearing on the 2014 Rule 40 Petition, not the petition
itself.
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STANDARD OF REVIEW
We review an order denying an HRPP Rule 40 petition
without a hearing de novo, using the right/wrong standard of
review. Dan v. State, 76 Hawai#i 423, 427, 879 P.2d 528, 532
(1994). "The question on appeal of a denial of a Rule 40
petition without a hearing is whether the trial record indicates
that Petitioner's application for relief made such a showing of a
colorable claim as to require a hearing before the lower court."
Lewi v. State, 145 Hawai#i 333, 345, 452 P.3d 330, 342 (2019)
(citation omitted). To establish a colorable claim of illegal
sentence, the allegations of the petition must show that if taken
as true the facts alleged would change the petitioner's sentence;
however, a petitioner's conclusions need not be regarded as true.
See id.
DISCUSSION
Rapozo's opening brief lists 14 points of error. We
address them in order.
(1) Rapozo contends:
[The sentencing court] committed plain error by sentencing
[Rapozo] to pay [an] amount of restitution without first
determining the amount of restitution was one of which
[Rapozo] could afford to pay.
The "afford to pay" issue was not raised in either the Motion for
Revocation of Restitution or the 2014 Rule 40 petition. We will
not consider it for the first time on this appeal. Dan, 76
Hawai#i at 431, 879 P.2d at 536 (holding that the court will not
consider an assertion raised for the first time on appeal).
(2) Rapozo contends:
[The] Circuit Court of the First Circuit committed error by
delegating payment of [Rapozo's] Order of Restitution to
another person or entity whom [sic] was not the trier of
fact.
The Judgment required that Rapozo pay "restitution in
the amount of $11,109.33, the manner of payment to be determined
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and handled by the Department of Social Services and Housing
[(DSSH)]." Rapozo cites no authority to support his argument
that the manner of payment of restitution must be decided by the
trier of fact, and we find none. But cf. Apprendi v. New Jersey,
530 U.S. 466, 490 (2000) (holding that "any fact that increases
the penalty for a crime beyond the prescribed statutory maximum
must be submitted to a jury, and proved beyond a reasonable
doubt.") (underscoring added).
Rapozo argues that the sentencing court erred by
delegating determination of the manner of payment to DSSH, citing
State v. Gaylord, 78 Hawai#i 127, 890 P.2d 1167 (1995). The
circuit court noted that Gaylord was based upon State v. Johnson,
68 Haw. 292, 711 P.2d 1295 (1985) in which the supreme court
held: "Without express legislative authority, the court cannot
delegate the sentencing function to another person or entity."
Johnson, 68 Haw. at 297, 711 P.2d at 1299. Johnson was decided
after Rapozo's sentence was affirmed on direct appeal. To para-
phrase the circuit court, "The question, then, is whether the
ruling in Johnson applies retroactively to [Rapozo]'s sentence on
collateral attack."
The controlling precedent is State v. Gomes, 107
Hawai#i 308, 113 P.3d 184 (2005). In that case the Hawai#i
Supreme Court adopted the analytical framework of the United
States Supreme Court in Teague v. Lane, 489 U.S. 288 (1989):
In Teague v. Lane, the Supreme Court held that new
constitutional rules of criminal procedure that had not been
announced at the time the defendant's conviction became
final cannot be applied retroactively on collateral review
unless they fit within one of two narrow exceptions.
These exceptions exist if a new rule (1) "places certain
kinds of primary private individual conduct beyond the power
of the criminal law-making authority to proscribe," or
(2) "requires the observance of those procedures that . . .
are implicit in the concept of ordered liberty."
Thus, in order to apply the [new] rule . . . retroactively,
we must determine that [it] is a new rule of criminal
procedure that fits into one of Teague's exceptions.
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Gomes, 107 Haw. at 313, 113 P.3d at 189 (quoting United States
v. Sanchez–Cervantes, 282 F.3d 664, 667 (9th Cir. 2002))
(reformatted) (second ellipsis added).
Johnson announced a new rule — five years after
Rapozo's conviction and sentence became final — that does not
fall within either of the Teague exceptions. It cannot be
retroactively applied to collaterally challenge Rapozo's
sentence. The circuit court did not err by denying Rapozo's
request for relief without a hearing.
(3) Rapozo contends:
[The] Circuit Court of the First Circuit committed error by
failing to address [Rapozo]'s factual Claims [sic] of
restitution challenge brought pursuant to HRS § 706-645
within the instant Petition on appeal.
The circuit court's Order Denying Rule 40 Petition cited HRS
§ 706-655 rather than HRS § 706-645, but the text of the order
quotes HRS § 706-645 and shows that the circuit court's reference
to HRS § 706-655 was a typographical error.
HRS § 706-645 (2014) provides:
(1) A defendant who has been sentenced to pay a fine or
restitution and who is not in contumacious default in the
payment thereof may at any time petition the court which
sentenced the defendant for a revocation of the fine or
restitution or of any unpaid portion thereof.
(2) If it appears to the satisfaction of the court
that the circumstances which warranted the imposition of the
fine or restitution have changed, or that it would otherwise
be unjust to require payment, the court may revoke the fine
or restitution or the unpaid portion thereof in whole or in
part. Prior to revocation, the court shall afford the
prosecuting attorney an opportunity to be heard.
(Underscoring added.) The statute authorizes the circuit court
"to alter, amend, or revoke restitution orders on the basis of
unforeseen or changed circumstances[.]" Gaylord, 78 Haw. at 153
n.50, 890 P.2d at 1193 n.50. A petition under HRPP Rule 40 is
the appropriate way to seek relief under HRS § 706-645. See
State v. Kealoha, 142 Hawai#i 46, 63, 414 P.3d 98, 115 (2018).
The circuit court held that Rapozo "presented absolutely no
evidence of a change in circumstances or that requiring payment
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would be unjust." On the record before us, we agree. The
circuit court did not err by denying Rapozo's request for relief
under HRS § 706-645 without a hearing.
(4) Rapozo contends:
[The] Circuit Court of the First Circuit committed error by
determining that restitution requirement pertaining to the
"amount of restitution must be one in which defendant can
afford to pay" was not a requirement available to [Rapozo]
in the year 1979.
As stated in section (1), the "afford to pay" issue was not
raised in the 2014 HRPP Rule 40 Petition; the issue raised (in
the Motion for Revocation of Restitution) was whether the
sentencing court improperly delegated "the determination of the
manner of payment of restitution to another person or entity."
We will not consider the "afford to pay" issue for the first time
on appeal. Dan, 76 Hawai#i at 431, 879 P.2d at 536.
(5) Rapozo contends:
[The] Hawaii Paroling Authority, by Order, has committed
error in disallowing [Rapozo]'s possibility of parole for
non-payment of a fee, fine or restitution.
The circuit court found that the record contains "no
evidence to support the conclusion that [Rapozo] has been denied
parole due to his nonpayment of restitution[.]"9 HPA's October
9, 1979 "Notice and Order Fixing Minimum Term(s) of Imprisonment"
(Appendix D to Rapozo's Motion for Revocation of Restitution) did
state that "Parole shall not be granted until judgement [sic] of
restitution is satisfied." However, none of the 11 HPA parole
decisions in the record makes any reference to payment of
restitution as a condition of parole. In addition, this argument
has been waived. It challenges an HPA parole decision; it does
9
Appended to Rapozo's reply brief were several documents purporting
to show that he is being denied parole because has not satisfied his sentence
of restitution. None of those documents were presented to the circuit court
with Rapozo's 2014 Rule 40 Petition, so we cannot consider them on this
appeal. See Hawai#i Rules of Appellate Procedure (HRAP) Rule 28(b)(10)
("Anything that is not part of the record shall not be appended to the
brief[.]").
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not implicate an illegal sentence imposed by the circuit court,
it was not raised in any of Rapozo's seven previous HRPP Rule 40
petitions, and Rapozo has not shown "the existence of extra-
ordinary circumstances to justify [his] failure to raise the
issue" previously. See HRPP Rule 40(a)(3). The circuit court
did not err by denying Rapozo's request for relief without a
hearing.
(6) Rapozo contends:
[The] Hawaii Paroling Authority has committed error by
denying [Rapozo] parole repeatedly within the past 13 years
for reason of "RAD recommendations" (Reception Assessment &
Diagnostics) — in that, [Rapozo] has never been returned to
Hawaii by the Department of Public Safety to participate in,
nor [sic] complete this "Hawaii Program" which did not exist
prior to [Rapozo]'s removal from the State by the State of
Hawaii Department of Public Safety.
This issue was not raised in either the Motion for
Revocation of Restitution or the 2014 Rule 40 petition. We will
not consider it for the first time on appeal. Dan, 76 Hawai#i at
431, 879 P.2d at 536.
(7) Rapozo contends:
[The] Hawaii Paroling Authority has committed error by
denying [Rapozo] parole repeatedly within the past 13 years
for failure to complete or participate in Work Furlough
Program . . . when this program is only available in the
State of Hawaii . . . and, [Rapozo] has not ever been
returned to the State of Hawaii to be able to participate in
this "Hawaii" program.
The State contends this issue was not raised below, but
it is mentioned in passing on page 10 of Rapozo's Motion for
Revocation of Restitution, and we construe Rapozo's pleadings
liberally because he is self-represented. The record shows that
Rapozo was denied parole in every year from 2006 (when he became
eligible) until 2016. The documents show that parole was denied
in 2006, 2007, 2008, 2009, 2011, 2012, 2014, 2015, and 2016
because HPA "is not convinced that [Rapozo] can substantially
comply with the terms and conditions of parole."
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The 2010 and 2013 denials stated:
REASON FOR DENIAL: Your participation in work furlough
while incarcerated will significantly enhance your success
on parole.
These denials were not based upon Rapozo's failure to participate
in the work furlough program; they are consistent with a con-
tinuing assessment by HPA that Rapozo is unable to "substantially
comply with the terms and conditions of parole[,]" but that his
participation in work furlough programs would "significantly
enhance" his ability to "substantially comply with the terms and
conditions of parole." The circuit court did not err by denying
this claim without a hearing.
(8) Rapozo contends:
[The] Hawaii Paroling Authority has committed prejudicial
error in violation of Hawaii Revised Statutes § 353H-7 and
§ 706-670 in not returning [Rapozo] to the State of Hawaii
to participate in Work Furlough program for reasons given
that, "no room" existed on approximately 40 plane flights to
return [Rapozo] to Hawaii, or that the program was "too
full" for the past 13 years to accommodate [Rapozo].
These issues were not raised in either the Motion for
Revocation of Restitution or the 2014 Rule 40 petition. We will
not consider them on this appeal. Dan, 76 Hawai#i at 431, 879
P.2d at 536.
(9) Rapozo contends:
It was error of the Circuit Court of the First Circuit to
allow extremely late response to [Rapozo]'s Petition by the
State of Hawaii Attorney General without their submittal
[sic] and approval of Leave to Respond.
Rapozo's opening brief contains no argument on this
point, which we deem waived. See HRAP Rule 28(b)(7) ("Points not
argued may be deemed waived.").
(10) Rapozo contends:
It was error of the Circuit Court of the First Circuit not
to address the perjury committed by Hawaii Paroling
Authority Administrator Tommy Johnson within sworn
affidavit.
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Johnson did not swear out an affidavit; he signed a
declaration under penalty of perjury. The State argues that
Rapozo's claim of perjury is "not supported by the evidence" but
concedes that "Mr. Johnson may have been misled by Rapozo's
criminal record."10 The issue before the circuit court was
whether the factual allegations in the 2014 HRPP Rule 40
Petition, if taken as true, established a colorable claim of
illegal sentence. See Lewi, 145 Hawai#i at 345, 452 P.3d at 342.
The veracity of Johnson's declaration, or lack thereof, was not
material to that determination. The circuit court did not need
to address Rapozo's allegations of perjury to properly rule on
Rapozo's 2014 HRPP Rule 40 Petition.
(11) Rapozo contends:
It was constitutional error to sentence [Rapozo] to Hawaii
Revised Statute § 706-606(b) which allowed arbitrary
selection of multiple punishments without specific
differentiating [sic] elements of legislative instruction
depicting separation of higher and lower degrees of
punishment.
When Rapozo was sentenced, HRS § 706-606 provided, in
relevant part:
§ 706-606 Sentence for offense of murder. The court
shall sentence a person who has been convicted of murder to
an indeterminate term of imprisonment. In such cases the
court shall impose the maximum length of imprisonment as
follows:
. . . .
(b) Life imprisonment with possibility of parole or
twenty years as the court determines, in all
other cases. The minimum length of imprisonment
shall be determined by the Hawaii paroling
authority in accordance with section 706-669.
Rapozo argues that the option to sentence a defendant
to "[l]ife imprisonment with the possibility of parole or twenty
10
Johnson's declaration incorrectly states that Rapozo "was serving
a concurrent sentence for a federal offense at a federal prison when his
minimum term expired[.]" The record does not show that Rapozo was convicted
of a federal offense; he was transferred to a federal prison after he was
involved in a riot at the Hālawa Correctional Facility.
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years as the court determines" is illegal because it "provides no
specific legislative intent as to which punishment application of
the greater 'life with the possibility of parole', [sic] or
lesser 'twenty year' punishments is to occur[.]". The same
argument was made by the defendant in State v. Heard, 64 Haw.
193, 638 P.2d 307 (1981). In that case the Hawai#i Supreme Court
held:
Appellant argues that [§] 706-606 is unconstitutional
because it fails to set forth criteria for a sentencing
judge to consider before imposing a life sentence or a
twenty-year sentence. We find no merit to his argument. As
we read [§] 706-606, it requires the sentencing judge to
impose the maximum penalty of life imprisonment with
possibility of parole, except that the sentencing judge is
given the discretion to reduce it to twenty years if there
are mitigating factors or circumstances which would warrant
a lesser sentence. We find no constitutional infirmity in
such a sentencing scheme.
Id. at 195, 638 P.2d at 309 (citations omitted). Rapozo's point
lacks merit.
(12) Rapozo contends:
It was error of the Circuit Court of the First Circuit to
determine [Rapozo]'s maximum term sentence; and, error of
the Hawaii Paroling Authority to determine Appellant's
minimum term sentence when neither circuit court nor
paroling authority were the trier of fact. In Appellant's
case Cr. No. 51915, jury was the trier of fact.
This point is without merit. The circuit court is
statutorily required to impose sentence. HRS §§ 706-605, 606.
HPA is statutorily required to "make an order fixing the minimum
term of imprisonment to be served before the prisoner shall
become eligible for parole." HRS § 706-669.
(13) Rapozo contends:
[The] State of Hawaii has committed prejudicial error in
keeping [Rapozo] away from the State of Hawaii, and
[Rapozo]'s family for nearly 40 years. [Rapozo] was unable
to see his own mother prior to her death in 2016; and, has
been kept at distance away from those whom offer [Rapozo]
the most support and assistance in a successful community
re-entry.
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These issues were not raised in either the Motion for
Revocation of Restitution or the 2014 Rule 40 petition. We will
not consider them on this appeal. Dan, 76 Hawai#i at 431, 879
P.2d at 536.
(14) Rapozo's final point of error states:
[The] Circuit Court of the First Circuit has committed error
by not only denying [Rapozo] a hearing upon the submitted
facts of Federal and State of Hawaii Constitutional
violation as mandated by Hawaii Rules of Penal Procedure
Rule 40(f), but also failed to address [Rapozo]'s Claims
[sic] of illegal sentence brought pursuant to Hawaii Rules
of Penal Procedure Rule 35 as being incorporated within
Hawaii Rules of Penal Procedure Rule 40.
Rapozo's point is unclear. HRPP Rule 35 provides, in
relevant part:
(a) Correction of Illegal 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. A motion
made by a defendant to correct an illegal sentence more than
90 days after the sentence is imposed shall be made pursuant
to Rule 40 of these rules.
The Motion for Revocation of Restitution giving rise to this
appeal was filed on June 9, 2014, more than 90 days after Rapozo
was sentenced (on May 16, 1979). Accordingly, the circuit court
did not err by treating the motion as a non-conforming HRPP Rule
40 petition under HRPP Rule 40(c)(2).
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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CONCLUSION
For the foregoing reasons, the Order Denying Rule 40
Petition entered by the circuit court on June 21, 2016, is
affirmed.
DATED: Honolulu, Hawai#i, March 12, 2021.
On the briefs:
/s/ Katherine G. Leonard
Richard Rapozo, Presiding Judge
Self-represented
Petitioner-Appellant. /s/ Keith K. Hiraoka
Associate Judge
Brian R. Vincent,
Deputy Prosecuting Attorney, /s/ Karen T. Nakasone
City and County of Honolulu, Associate Judge
for Respondent-Appellee.
Lisa M. Itomura,
Diane K. Taira,
Deputy Attorneys General,
State of Hawai#i,
for Respondent-Appellee.
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