Karamatsu v. State ( 2021 )

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Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
29-MAR-2021
07:51 AM
Dkt. 57 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
JON RIKI KARAMATSU, Petitioner-Appellant, v.
STATE OF HAWAI#I, Respondent-Appellee
APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT
(HONOLULU DIVISION)
(CIVIL NO. 1SD18-1-1)
SUMMARY DISPOSITION ORDER
(By: Ginoza, Chief Judge, Leonard and Nakasone, JJ.)
Petitioner-Appellant Jon Riki Karamatsu (Karamatsu)
appeals from the Findings of Fact, Conclusions of Law and Order
Denying Petitioner's Rule 40 Petition for Post Conviction Relief
(Order Denying Relief), filed on February 5, 2019, in the
Honolulu Division of the District Court of the First Circuit
(District Court).1/
On March 2, 2016, Karamatsu was convicted of Operating
a Vehicle Under the Influence of an Intoxicant (OVUII), in
1/
The Honorable Trish Morikawa presided.
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violation of Hawaii Revised Statutes (HRS) § 291E-61(a)(1).
State v. Karamatsu, CAAP-XX-XXXXXXX, 2017 WL 2839545, *1 (App.
June 30, 2017) (mem. op.), cert. denied, 2017 WL 6524751, *1
(Haw. Dec. 21, 2017). Karamatsu was sentenced to five days
imprisonment, 72 hours of community service, license revocation
for one year, and a $1,000 fine. Id.On direct appeal, Karamatsu claimed there was
insufficient evidence to show he operated his truck while
impaired, the District Court failed to obtain a valid waiver of
his right to testify, the charge was defective for failing to
define the term "alcohol," there was insufficient evidence to
prove he was impaired by alcohol, and the roadblock where he was
stopped was illegal because it failed to comply with the
statutory requirement. Id. On June 30, 2017, this court
affirmed Karamatsu's conviction. Id. On December 21, 2017,
Karamatsu's application for writ of certiorari was denied by the
Hawai#i Supreme Court.
On April 20, 2018, Karamatsu filed a Rule 40 Petition
for Post Conviction Relief (Petition). Karamatsu argued that the
trial judge's off-the-record pretrial comments to his attorney
violated his Due Process rights under article I, section 5 of the
Hawai#i Constitution, and his attorney, Alen Kaneshiro
(Kaneshiro), provided ineffective assistance for failing to
object to the pretrial statements, failing to seek recusal of the
judge prior to trial, and failing to raise the judge's comments
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on direct appeal. On February 5, 2019, after a hearing on the
Petition, the District Court issued the Order Denying Relief.
Karamatsu raises a single point of error on appeal,
contending that the District Court erred in denying the Petition
because Kaneshiro was ineffective at trial and on direct appeal
because he failed to raise the judge's bias on the record. More
specifically, Karamatsu challenges Findings of Fact (FOFs) 16 and
17 and Conclusions of Law (COLs) 2, 3, 4, 5, 7, and 9, and claims
that his attorney was ineffective for failing to raise the issue
of bias, to place the trial judge's pretrial comments on the
record, to move to recuse the trial judge, and to appeal based on
these issues. On this appeal, as he did below, Karamatsu points
to Rules 2.2 and 2.4(a) of the Hawai#i Revised Code of Judicial
Conduct (CJC) to support his claim that the trial judge was
biased and should not have been influenced by fear of criticism,
and relies on State v. Sanney, 141 Hawai#i 14, 404 P.3d 280(2017), for the proposition that a judge should impose the same
sentence after conviction as stated in the court's sentencing
inclination.
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, we
resolve Karamatsu's point of error as follows:
We address Karamatsu's arguments in the context of his
challenges to the District Court's FOFs and COLs.
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Karamatsu challenges the second paragraph of FOF 16 by
pointing to testimony that Kaneshiro did not tell Karamatsu about
the pretrial comments until after Karamatsu's appeal had begun;
thus, Karamatsu argues his attorney made decisions regarding the
case without first speaking with Karamatsu.2/ While there was
conflicting testimony, Kaneshiro testified that he informed
Karamatsu about what occurred in the pretrial conference prior to
trial, that they discussed his impression that the trial judge
would find Karamatsu guilty and impose a harsh sentence, and that
Karamatsu decided to proceed with trial. The record does not
lack substantial evidence to support the second paragraph of FOF
16, and therefore, it is not clearly erroneous.
Karamatsu argues that "[a]s to finding of fact #17 the
court found there was no bias from [the trial judge] against
KARAMATSU." However, FOF 17 does not include a finding that the
trial judge, the Honorable David W. Lo (Judge Lo) was not biased;
instead it appears to summarize Karamatsu's testimony and does
not mention bias. Therefore, FOF 17 is not clearly erroneous.
Karamatsu claims COL 5 is wrong because both he and
Kaneshiro testified that Karamatsu was not informed of Judge Lo's
pretrial comments until after trial, and thus, Karamatsu made a
2/
The second paragraph of FOF 16 states:
In regard to preparation for Petitioner's case,
Kaneshiro filed appropriate motions and was prepared for the
motions and trial. Kaneshiro and Petitioner openly
discussed the case including strengths and weaknesses,
issues and motions. Kaneshiro made no decision regarding
the case without first speaking with Petitioner.
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strategic decision to go to trial without the information
regarding the pretrial conference, and Kaneshiro did not
communicate every aspect of the case. As discussed above,
Kaneshiro testified that Karamatsu was informed about what
happened in the pretrial conference prior to trial. COL No. 5,
which includes that "Kaneshiro was not ineffective for failing to
raise the issue [of bias] as [Karamatsu] and Kaneshiro discussed
Kaneshiro's concerns prior to trial and they made a strategic
decision to proceed to trial before Judge Lo," is not wrong.
Karamatsu challenges the conclusion that Judge Lo was
not biased, which is stated in COLs 2, 3, 4, and 7. Citing CJC
Rule 2.2, commentary to the rule, and the trial judge's comments,
Karamatsu argues Judge Lo was not impartial because he did not
want to face public criticism for being seen as imposing too
lenient a sentence, similar to public criticism of another judge
the previous week, Judge Lo told Kaneshiro to consider a plea,
and Judge Lo was not open-minded with respect to the factual
evidence in the case.
CJC Rule 2.2 states: "A judge shall uphold and apply
the law and shall perform all the duties of judicial office
fairly and impartially." The Commentary elaborates: "To ensure
impartiality and fairness to all parties, a judge must be
objective and open-minded." Comment [1] to CJC Rule 2.2. The
CJC defines "impartial," "impartiality," and "impartially" as
"absence of bias or prejudice in favor of, or against, particular
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parties or classes of parties, as well as maintenance of an open
mind in considering issues that come or may come before a judge."
And, the supreme court has held:
[W]here judicial misconduct or bias deprives a party
of the impartiality to which he or she is entitled, a new
trial may be required. However, reversal on the grounds of
judicial bias or misconduct is warranted only upon a showing
that the trial was unfair. . . . Unfairness, in turn,
requires a clear and precise demonstration of prejudice.
See Mahoney v. Mitchell, 4 Haw. App. 410, 418, 668 P.2d 35,
40-41 (1983) ("[h]ow great a departure from fairness amounts
to reversible error is determined by the answer to the
fundamental inquiry whether or not what was done was
prejudicial to the appellant") (citation omitted); see also
Peters [v. Jamieson ], 48 Haw. [247], 264, 397 P.2d [575],
586 [ (1964) ] ("[p]rejudice is the ultimate fact" (citation
omitted)).
State v. Hauge, 103 Hawai#i 38, 48, 79 P.3d 131, 141 (2003) (some
citations omitted).
Karamatsu does not challenge FOF 7, which found that:
Judge Lo told Kaneshiro that if [Karamatsu] pled and took
responsibility for his actions, Judge Lo would sentence
Karamatsu to a seven hundred fifty dollar ($750.00) fine and
no community service work. Judge Lo further stated that he
hesitated about being too lenient because he did not want to
end up like [another judge] from the prior week.
With respect to his sentencing by Judge Lo, Karamatsu
points to Sanney, 141 Hawai#i at 19-20, 404 P.3d at 285-86
(citing People v. Clancey, 56 Cal. 4th 562, 155 Cal. Rptr.3d 485,
299 P.3d 131 (2013)), in which the supreme court held that a plea
bargain is an agreement negotiated by the State with a defendant
and approved by the court whereby a defendant pleads guilty in
order to obtain a reciprocal benefit. The supreme court
emphasized that a trial court has no authority to substitute
itself as the representative of the State in the negotiation
process and, under the guise of plea bargaining, to agree to a
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disposition of the case over prosecutorial objection. Id. at 20,
404 P.3d at 286. "[W]here a defendant pleads guilty to all
charges so all that remains is the pronouncement of judgment and
sentencing, there is no requirement that the [State] consent to a
guilty plea." Id. "In that circumstance, the court may indicate
what sentence it will impose if a given set of facts is
confirmed, irrespective of whether guilt is adjudicated at trial
or admitted by plea." Id.
Here, Judge Lo provided a sentencing inclination by
stating what sentence would be imposed if Karamatsu pled guilty.
No plea negotiations occurred; rather, Judge Lo considered
Karamatsu's existing record when he stated he knew about
Karamatsu's prior conviction. Thus, the trial judge did not
consider Karamatsu's exercise of his right to a trial as an
influential factor in determining the sentencing inclination, and
there was no bargaining over what sentence would be imposed. See
id. at 21, 404 P.3d at 287.
Karamatsu has not shown his trial was unfair by relying
only upon the sentencing inclination. The sentencing inclination
relates only to the sentence the District Court would impose
whether Karamatsu pled guilty or was found guilty after trial and
did not affect the trial. "An indicated sentence, properly
understood, is not an attempt to induce a plea by offering the
defendant a more lenient sentence than what could be obtained
through plea negotiations with the prosecuting authority."
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Clancey, 56 Cal. 4th at 575, 299 P.3d at 139. Therefore, merely
stating a sentencing inclination is not an order or advice for a
defendant to take a plea instead of proceeding with trial.
Judge Lo testified at the hearing on the Petition that
he did not know about the merits of the case when he stated his
inclination, and that Kaneshiro and the deputy prosecuting
attorney did not say anything about the merits of the case. No
evidence to the contrary is in the record. There is no evidence
in the record that the trial judge was not open-minded about the
factual evidence of the case. As discussed below, an error by a
judge in sentencing a defendant to a harsher sentence for
exercising the right to a trial is a violation of the right to
remain silent and due process, but it is not judicial bias. We
conclude that Karamatsu failed to demonstrate that Judge Lo was
biased, which would have required recusal from the trial, and
Kaneshiro was not ineffective for failing to move for Judge Lo's
recusal on the grounds of bias. Therefore, COLs 2, 3, 4, 5, and
7 are not wrong with respect to concluding that Judge Lo was not
biased and that Karamatsu's counsel was not ineffective for
failing to move to recuse Judge Lo.
Karamatsu further challenges COL 7, which found his
counsel was not ineffective for failing to raise the bias issue.
Karamatsu argues that Kaneshiro was ineffective by failing to put
Judge Lo's pretrial comments on the record, which is not squarely
addressed by COL 7. However, no other conclusion of law
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specifically addresses whether Kaneshiro was ineffective for
failing to place the trial judge's pretrial comments on the
record, including the trial judge's sentencing inclination.
Karamatsu claims that if Kaneshiro had objected to the sentence
after trial, based on the difference in the sentencing
inclination, his appeal would have resulted in a new trial or
resentencing before a different judge.
It has been held that "the sentencing inclination must
be the same punishment the court would be prepared to impose if
the defendant were convicted after trial." Sanney, 141 Hawai#i
at 21, 404 P.3d at 287. However, "[a] sentencing inclination is
not binding; it is merely a trial court's statement of the
sentence it would be inclined to impose for the offense(s)
charged, should the defendant be convicted after trial." Id. A
sentencing court may consider a defendant's lack of remorse in
assessing the likelihood of successful rehabilitation, but may
not infer lack of remorse from a defendant's refusal to admit
guilt or consider a defendant's exercise of his constitutional
right to trial as an influential factor in determining the
appropriate sentence. State v. Kamana#o, 103 Hawai#i 315, 321, 82
P.3d 401, 407 (2003). Punishing a defendant for refusal to admit
guilt is a violation of due process, the right to remain silent,
also referred to as the privilege against self-incrimination, and
to appeal. Id. at 320-21, 82 P.3d at 406-07. The privilege
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against self-incrimination applies with equal force during
sentencing. Id.
[W]hether a sentencing court had erroneously relied on a
defendant’s refusal to admit guilt in imposing a sentence:
(1) the defendant's maintenance of innocence after
conviction, (2) the judge's attempt to get the
defendant to admit guilt, and (3) the appearance
that[,] had the defendant affirmatively admitted
guilt, his sentence would not have been so severe.
. . . [I]f there is an indication of the three
factors, then the sentence was likely to have been
improperly influenced by the defendant's persistence
in his innocence. If, however, the record shows that
the court did no more than address the factor of
remorsefulness as it bore upon defendant's
rehabilitation, then the court's reference to a
defendant's persistent claim of innocence will not
amount to error requiring reversal.
Id. at 323, 82 P.3d at 409 (citation omitted).
Here, Judge Lo testified that during allocution,
Karamatsu did not take responsibility because Karamatsu explained
what would have happened if he had taken the stand. Thus,
Karamatsu maintained his innocence after conviction. Judge Lo
noted that Karamatsu was a trained deputy prosecutor who handled
OVUII cases, was familiar with the field sobriety tests, should
have known better, and stated at trial, "I'm sure you've had the
opportunity to review your own case. And yet I see no acceptance
of remorse, regret, or accepting responsibility up until today."
However, he did not coerce Karamatsu into admitting guilt or
expressly warn him that he would consider the admission of guilt,
or lack therefore, in determining the sentence. Id. at 323, 82
P.3d at 409-10.
Nevertheless, Karamatsu's sentence would not have been
so severe had he admitted guilt and not proceeded with trial.
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The trial judge stated two reasons for imposing the sentence
given after trial, i.e., that Karamatsu did not accept
responsibility earlier and Karamatsu had not learned from his
prior conviction. During sentencing, the trial judge referenced
Karamatsu's prior conviction by stating "obviously you didn't
learn from that prior experience. You're in law enforcement, or
was. You screened cases. You should know better. So now your
attorney is asking for no jail. But what you got before didn't
correct your behavior." However, the trial judge plainly knew
about Karamatsu's prior conviction when he made the sentencing
inclination, but nevertheless increased the sentence after trial.
Thus, it appears that the increase in the sentence from the
sentencing inclination is not solely attributable to the failure
to learn from a prior conviction, but also from Karamatsu not
taking responsibility earlier by going to trial. Therefore, we
conclude that Karamatsu's due process rights and right against
self-incrimination were violated. Id. at 324, 82 P.3d at 410.
Relatedly, after Karamatsu was sentenced, Kaneshiro
provided ineffective assistance as trial counsel for failing to
put the sentencing inclination on the record. "In any claim of
ineffective assistance of trial counsel, the burden is upon the
defendant to demonstrate that, in light of all the circumstances,
counsel's performance was not objectively reasonable -- i.e.,
within the range of competence demanded of attorneys in criminal
cases." Briones v. State, 74 Haw. 442, 462, 848 P.2d 966, 976
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(1993) (citation and internal quotation marks omitted). The
defendant must show specific errors or omissions reflecting
counsel's lack of skill, judgment, or diligence, and that these
errors or omissions resulted in either the withdrawal or
substantial impairment of a potentially meritorious defense. Id.It is clear that the difference between the sentencing
inclination and the sentence imposed after trial was based upon
Karamatsu's decision to proceed with trial. Without placing the
sentencing inclination on the record, Karamatsu could not
demonstrate his sentence would not have been so severe. Such an
error demonstrated a specific error in judgment that
substantially impaired a potentially meritorious defense
regarding sentencing.
Kaneshiro also provided ineffective assistance as
appellate counsel. If an appealable issue is omitted as a result
of the performance of counsel whose competence fell below that
required of attorneys in criminal cases, then appellant's counsel
is constitutionally ineffective. Id. at 467, 848 P.2d at 978.
An appealable issue is an error or omission by counsel, judge, or
jury resulting in the withdrawal or substantial impairment of a
potentially meritorious defense. Id. at 465-66, 848 P.2d at 977.
Kaneshiro represented Karamatsu at trial and on appeal.
Kaneshiro knew about the sentencing error, knew he failed to put
the sentencing inclination on the record, and did not raise the
issue on appeal, resulting in a substantial impairment of a
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potentially meritorious defense regarding sentencing. Therefore,
COL 7 is wrong to the extent it generally concluded Kaneshiro was
not ineffective, although it was not wrong due to a failure to
raise the bias issue.
Karamatsu also challenges COL 9, in which the District
Court concluded that Karamatsu failed to prove the existence of
any extraordinary circumstances that justified his failure to
raise the claim that Kaneshiro was ineffective for failing to
make a record of Judge Lo's comments or to request Judge Lo
recuse himself. The FOFs do not provide facts directly related
to COL 9. It appears to be based on FOF 2, which found that
Kaneshiro was both trial and appellate counsel, and the State's
argument that, because Karamatsu knew about the pretrial comments
prior to trial and chose not to raise the issue and proceed to
trial, Karamatsu waived his right to effective assistance of
counsel by retaining Kaneshiro for the appeal.
"It is well settled that the constitutional right to
the assistance of counsel in a criminal case is satisfied only
when such assistance is effective." Maddox v. State, 141 Hawai#i
196, 202, 407 P.3d 152, 158 (2017) (internal brackets, citation
and quotation marks omitted). A defendant may waive the right to
effective assistance of counsel, but it must be knowingly and
intelligently waived. See State v. Richie, 88 Hawai#i 19, 42,
960 P.2d 1227, 1250 (1998). However, "[a] waiver is the knowing,
intelligent, and voluntary relinquishment of a known right."
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State v. Barros, 105 Hawai#i 160, 168, 95 P.3d 14, 22 (App. 2004)
(citation omitted), cert. denied, 105 Hawai#i 196, 95 P.3d 627(2004). "A waiver is knowing and intelligent when it is made
with full awareness of both the nature of the right being
abandoned and the consequences of the decision to abandon it."
State v. Domut, 146 Hawai#i 183, 193, 457 P.3d 822, 832 (2020).
Thus, to determine whether a waiver was voluntary and
intelligently undertaken, this court will look to the totality of
facts and circumstances of each particular case. Id. (citation
omitted). Waiver of the right to counsel will not be presumed
from a silent record. State v. Dickson, 4 Haw. App. 614, 619,
673 P.2d 1036, 1041 (1983) (citation omitted). "Where petitioner
has been represented by the same counsel both at trial and on
direct appeal, no waiver of the issue of trial counsel's
performance occurs because no realistic opportunity existed to
raise the issue on direct appeal." Briones, 74 Haw. at 459, 848
P.2d at 975.
During closing argument on the Petition, the State
argued it was a tactical decision made by Karamatsu and Kaneshiro
not to raise the bias issue prior to trial and on appeal. The
State contended that they chose to waive the issue of bias before
trial and on appeal; therefore, counsel was not ineffective.
However, even if Karamatsu waived the bias issue because he knew
about the pretrial comments prior to trial, the issue of
different sentences between the sentencing inclination and the
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sentence after trial did not arise until pronouncement of the
sentence. Thus, Karamatsu could not have waived a sentencing
issue by proceeding to trial.
The record indicates that Kaneshiro told Karamatsu that
he could not raise anything on appeal that had no basis in the
record, and since he had not placed the pretrial comments on the
record, he could not raise it on appeal. The record does not
support a conclusion that Karamatsu knowingly and voluntarily
waived his right to effective assistance of appellate counsel
simply by retaining the same counsel for the appeal and having
discussions about the case. It would be contrary to the
presumption in Briones, which states there is no realistic
opportunity to raise the issue of ineffective assistance of trial
counsel when counsel is both trial and appellate counsel. The
record does not indicate that Karamatsu knowingly and voluntarily
waived the sentencing issue on appeal because his counsel
explained to him that it could not be raised, as opposed to
counsel saying that it could be raised, but Karamatsu decided or
directed counsel not to raise it with the full awareness of the
nature of the issue being abandoned and the consequences of the
decision to abandon it. Therefore, COL 9 is wrong to conclude
that Karamatsu's claims were waived.
No FOF or COL addressed Karamatsu's claim that Judge Lo
violated CJC Rule 2.4(a) when he expressed fear he would face
public criticism for being too lenient. However, we decline to
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address this claim because, even assuming there was a violation
of CJC Rule 2.4(a) with respect to sentencing, we have already
determined that Karamatsu is entitled to resentencing, as stated
above.
For these reasons, the District Court's February 5,
2019 Order Denying Relief is affirmed in part and vacated in
part; this case is remanded to the District Court for
resentencing.
DATED: Honolulu, Hawai#i, March 29, 2021.
On the briefs:
/s/ Lisa M. Ginoza
Jonathan Burge, Chief Judge
for Petitioner-Appellant.
/s/ Katherine G. Leonard
Albert Cook, Associate Judge
Deputy Attorney General,
for Respondent-Appellee. /s/ Karen T. Nakasone
Associate Judge
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