Penaflor v. State ( 2023 )

NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
07-DEC-2023
01:32 PM
Dkt. 42 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
CRANDALL PENAFLOR, Petitioner-Appellant, v.
STATE OF HAWAI#I, Respondent-Appellee
APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT
(CASE NO. 2CPN-XX-XXXXXXX)
SUMMARY DISPOSITION ORDER
(By: Leonard, Presiding Judge, and Wadsworth and McCullen, JJ.)
On February 3, 2021, self-represented Petitioner-
Appellant Crandall Penaflor (Penaflor) filed a Petition to
Vacate, Set Aside, or Correct Judgment or to Release Petitioner
From Custody (2021 Petition), pursuant to Hawai#i Rules of Penal
Procedure (HRPP) Rule 40. The Circuit Court of the Second
Circuit denied the 2021 Petition without a hearing.
Penaflor appeals from the Circuit Court's Findings of
Fact, Conclusions of Law, and Order Denying [2021 Petition]
(Order Denying 2021 Petition), entered on October 21, 2021, and
the Final Judgment (Judgment), entered on November 1, 2021.1/ For
the reasons explained below, we affirm.
I. Background
In 1991, Penaflor was convicted of one count of
Burglary in the First Degree, in violation of Hawaii Revised
Statutes (HRS) § 708-810(1)(c) (1985) (Count One); two counts of
1/
The Honorable Peter T. Cahill presided.
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER
Terroristic Threatening in the First Degree, in violation of HRS
§ 707-716(1)(d) (Supp. 1989) (Counts Two and Three); one count of
Kidnapping, in violation of HRS § 707-720(1)(d) (Supp. 1986)
(Count Four); and two counts of Sexual Assault in the First
Degree, in violation of HRS § 707-730(1)(a) (Supp. 1987) (Counts
Six and Seven) (1991 Judgment).2/ See State v. Penaflor (Penaflor
I), No. 15629 (Haw. Aug. 26, 1992) (mem. op.) at 1-2 (available
in State v. Penaflor, No. 2PC900000146, Judiciary Information
Management System dkt. 49). The Circuit Court sentenced Penaflor
to consecutive terms of imprisonment totaling 70 years, as
follows: twenty years each for Counts Six and Seven, ten years
each for Counts One and Four, and five years each for Counts Two
and Three. See id. at 1, 3.
Since 1991, Penaflor has filed a direct appeal of his
convictions (1991 Direct Appeal) and several post-conviction
challenges. These challenges have included four petitions
brought under HRPP Rule 40 — the first in 1998 (1998 Petition),
the second in 2006 (2006 Petition), the third in 2018 (2018
Petition), and the fourth in 2021 (i.e., the current 2021
Petition) — and a motion for correction of illegal sentence
brought under HRPP Rule 35 (Rule 35 Motion) in 2000. See
Penaflor I, mem op. at 1 (1991 Direct Appeal); State v. Penaflor
(Penaflor II), No. 23939, 2002 WL 31375566, at *1 (Haw. App.
Oct. 21, 2002) (SDO) (Rule 35 Motion); Penaflor v. State
(Penaflor III), No. 28527, 2008 WL 2503259, at *1 (Haw. App. June
24, 2008) (SDO) (referencing the 1998 Petition and the Rule 35
Motion and affirming denial of the 2006 Petition); Penaflor v.
Mossman (Mossman), 141 Hawai#i 358, 360, 409 P.3d 762, 764 (2017)
(describing the dispositions of the 1998 Petition, the Rule 35
Motion, and the 2006 Petition). In the 1991 Direct Appeal, the
supreme court affirmed the 1991 Judgment. See Penaflor I, mem.
op. at 1; Mossman, 141 Hawai#i at 360, 409 P.3d at 764. To date,
Penaflor has not obtained relief pursuant to HRPP Rule 40.3/
2/
The Honorable Boyd P. Mossman presided.
3/
The 1998 Petition was denied, and Penaflor did not appeal the
Circuit Court's order of denial. See Mossman, 141 Hawai #i at 360, 409 P.3d at
764. The 2006 Petition was denied, Penaflor appealed, and this court affirmed
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However, Penaflor did obtain certain post-conviction
relief from this court in Penaflor II. There, we affirmed the
Circuit Court's denial of Penaflor's Rule 35 Motion, but noticing
plain error, we reversed Penaflor's first-degree terroristic
threatening conviction on Count 2, ruling that it merged with his
kidnapping conviction on Count 4. Penaflor II, 2002 WL 31375566,
at *1. On December 21, 2009, the Circuit Court held a
"'resentencing' hearing" in response to this court's decision to
reverse the conviction on Count 2. State v. Penaflor (Penaflor
IV), No. 30313, 2011 WL 716199, at *1 (Haw. App. Feb. 25, 2011)
(SDO). On December 22, 2009, the Circuit Court entered an
Amended Judgment; Conviction and Sentence (2009 Judgment) that
sentenced Penaflor to the same consecutive terms of imprisonment,
minus the five-year term for Count 2 that this court had
reversed, resulting in a total term of imprisonment of 65 years.4/
Id. Penaflor appealed from, and this court affirmed, the 2009
Judgment. Id. at *2.
In the 2021 Petition, Penaflor alleged that: (1)
"[t]he Circuit Court abused its discretion by imposing
consecutive sentences totaling 70 years without stating on the
record the HRS § 706-606 factors that support each consecutive
sentence" (emphasis omitted); (2) "[t]he Circuit Court abused its
discretion when it relied on Penaflor[']s refusal to admit guilt
or remorse as a factor during sentencing" (emphasis omitted); and
(3) "the Circuit Court abused its discretion by sentencing
Penaflor to six consecutive terms in violation of [his] Eight[h]
Amendment rights under [the] United States Constitution and the
Hawai[#]i Constitution." (Capitalization altered; emphasis
omitted.) The Circuit Court denied the 2021 Petition on the
grounds that Penaflor's claims were either previously ruled upon
and/or waived.
This appeal followed.
the Circuit Court's order of denial. See id. at 360-61, 409 P.3d at 764-65.
The 2018 Petition was denied, Penaflor appealed, and that separate appeal is
currently pending before this court in appellate case number CAAP-XX-XXXXXXX.
4/
The Honorable Shackley F. Rafetto presided over the 2009
resentencing hearing and entered the 2009 Judgment.
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II. Discussion
On appeal, Penaflor appears to raise the following four
points of error: (1) "[HRPP] Rule 40(a)(3) does not apply to
[Penaflor]"; (2) the Circuit Court abused its discretion by
"impos[ing] multiple consecutive sentences without stating on the
record the HRS [§] 706-606 [f]actors that support each
consecutive sentence"; (3) the Circuit Court abused its
discretion by "rel[ying] on [Penaflor's] refusal to admit guilt
or remorse as a factor during sentencing"; and (4) the Circuit
Court abused its discretion and violated Penaflor's rights under
the Eighth Amendment to the United States Constitution and
article I, section 12 of the Hawai#i Constitution "by sentencing
[Penaflor] to six consecutive terms[.]"
We review a circuit court's denial of a HRPP Rule
40 petition without a hearing de novo, under the right/wrong
standard. See Dan v. State, 76 Hawai#i 423, 427, 879 P.2d 528,
532 (1994).
As a general rule, a hearing should be held on a Rule 40
petition for post-conviction relief where the petition
states a colorable claim. To establish a colorable claim,
the allegations of the petition must show that if taken as
true the facts alleged would change the verdict, however, a
petitioner's conclusions need not be regarded as true.
Where examination of the record of the trial court
proceedings indicates that the petitioner's allegations show
no colorable claim, it is not error to deny the petition
without a hearing. The question on appeal of a denial of a
Rule 40 petition without a hearing is whether the trial
record indicates that Petitioner's application for relief
made such a showing of a colorable claim as to require a
hearing before the lower court.
Id. (emphasis omitted) (quoting State v. Allen, 7 Haw. App. 89,
92-93, 744 P.2d 789, 792-93 (1987)).
(1) Penaflor appears to contend that HRPP Rule
40(a)(3) is inapplicable to his 2021 Petition because a claim of
5/
5/
HRPP Rule 40(a)(3) states:
Rule 40 proceedings shall not be available and relief
thereunder shall not be granted where the issues sought to
be raised have been previously ruled upon or were waived.
Except for a claim of illegal sentence, an issue is waived
if the petitioner knowingly and understandingly failed to
raise it and it could have been raised before the trial, at
the trial, on appeal, in a habeas corpus proceeding or any
other proceeding actually conducted, or in a prior
proceeding actually initiated under this rule, and the
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illegal sentence can be brought at any time.
Penaflor is correct that "HRPP Rule 40 allows a
petitioner to bring a claim of illegal sentence 'at any time'
after final judgment, even if they failed to raise the illegal
sentence claim in a previous petition; if the petitioner states a
colorable claim, they are entitled to a hearing under HRPP Rule
40(f)." Stanley v. State, 148 Hawai#i 489, 502, 479 P.3d 107,
120 (2021) (brackets omitted).
That does not mean, however, that HRPP Rule 40(a)(3)
does not apply to Penaflor's 2021 Petition, and it does not mean
that relief under Rule 40(a)(3) is available for a claim of
illegal sentence that has been previously ruled upon. See HRPP
Rule 40(a)(3) (stating that "Rule 40 proceedings shall not be
available and relief thereunder shall not be granted where the
issues sought to be raised have been previously ruled upon or
were waived" and exempting illegal sentence claims from being
waived) (emphasis added).
(2) Relying on State v. Hussein, 122 Hawai#i 495, 229
P.3d 313 (2010), Penaflor contends that the Circuit Court abused
its discretion by "impos[ing] multiple consecutive sentences
without stating on the record the HRS [§] 706-606 [f]actors that
support each consecutive sentence." Penaflor argues that both
Judge Mossman and Judge Rafetto committed this abuse of
discretion – Judge Mossman in the original sentencing hearing
held on September 10, 1991, and Judge Rafetto in the resentencing
hearing held on December 21, 2009.
A version of this argument has been previously ruled
upon. In the 1991 Direct Appeal, Penaflor argued that "the trial
court abused its discretion in imposing the six consecutive
sentences based on, among other factors, its belief that the
defendant had testified falsely at trial and lacked remorse for
his crimes." Penaflor I, mem. op. at 1. The supreme court
rejected these arguments, id. at 6-8, and further stated:
petitioner is unable to prove the existence of extraordinary
circumstances to justify the petitioner's failure to raise
the issue. There is rebuttable presumption that a failure
to appeal a ruling or to raise an issue is a knowing and
understanding failure.
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As we have noted, the trial court enumerated nine factors in
support of its judgment and sentence. 6/ Penaflor conceded
in oral argument that the seven unchallenged factors could
legitimate consecutive sentences. We conclude that all nine
were consistent with HRS § 706-606.
Id. at 7 n.1 (footnote added). The supreme court thus affirmed
the imposition of consecutive sentences in the 1991 Judgment as
consistent with HRS § 706-606. Id. at 1, 7 n.1. In other words,
Penaflor's challenge to the 1991 Judgment based on HRS § 706-606
was previously ruled upon and thus properly denied by the Circuit
Court under HRPP Rule 40(a)(3).
Penaflor's challenge to the 2009 Judgment based on HRS
§ 706-606 was also previously ruled upon. In Penaflor IV,
Penaflor argued that the Circuit Court abused its discretion in
resentencing him to consecutive sentences without considering any
of the HRS § 706–606 factors and without giving any reasons for
the consecutive sentences. 2011 WL 716199, at *1. This court
ruled as follows:
The arguments raised by Penaflor's counsel are based
on the assumption that because this court reversed
Penaflor's conviction on Count II in [Penaflor II], the
Circuit Court was required to resentence Penaflor on the
remaining counts for which he had been convicted. This
assumption is wrong. . . . The effect of our reversing
Penaflor's conviction on Count II was simply to remove the
Count II conviction and sentence from Penaflor's Judgment.
[Penaflor II] did not remand the case for resentencing or
authorize resentencing, but rather affirmed the Circuit
6/
The supreme court recounted these factors as follows:
Before sentencing Penaflor, the trial court "commented" on
several factors in explaining its lack of sympathy for
Penaflor: 1) the offenses were extreme; 2) there was a
weapon involved, and although the weapon was a pellet gun,
it appeared to be a real handgun; 3) Penaflor used the gun
as though it were real; 4) Penaflor threatened one of the
victims . . . by stating that he was going to blow [his]
head off; 5) Penaflor put the female victim in fear for
herself and her children; 6) Penaflor committed the offenses
because he wanted money, sex, and drugs; 7) Penaflor left
the female victim physically and emotionally traumatized for
the rest of her life; 8) the court's belief that Penaflor
had exhibited no remorse regarding his conduct; and 9) the
court's belief that Penaflor had lied on the witness stand.
The trial court also observed that Penaflor was guilty of
sexually assaulting a young, innocent girl. (Regarding this
observation, Penaflor spontaneously responded by saying,
"She not innocent.")
Penaflor I, mem. op. at 2.
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Court's Order denying Penaflor's HRPP Rule 35 Motion.
Under these circumstances, the Circuit Court was not
required to resentence Penaflor on the remaining counts and
was not authorized to change Penaflor's sentence on these
counts pursuant to his HRPP Rule 35 Motion. The Circuit
Court could have entered an Amended Judgment that removed
the conviction and sentence on Count II without holding a
sentencing hearing. Accordingly, the arguments raised by
Penaflor's counsel, which assume that Penaflor was entitled
to be resentenced and entitled to the protections associated
with sentencing, are without merit.
Penaflor IV, 2011 WL 716199, at *2. In other words, Penaflor's
challenge to the 2009 Judgment based on HRS § 706-606 was
previously ruled upon and thus properly denied by the Circuit
Court under HRPP Rule 40(a)(3).
In any event, the sentencing rule first announced in
Hussein and more recently applied in State v. Bautista, 153
Hawai#i 284, 535 P.3d 1029 (2023), is inapplicable here. In
Bautista, the supreme court described the rule as follows:
Courts "must state on the record at the time of sentencing
the reasons for imposing a consecutive sentence." [Hussein,
122 Hawai#i] at 510, 229 P.3d at 328.
Even if a court uses identical factors to support multiple
consecutive sentences, it must "specify the basis or
identify another basis for determining how many consecutive
sentences to impose." [State v. ]Barrios, 139 Hawai #i [321,]
337, 389 P.3d [916,] 932[ (2016)]. Barrios stresses the
importance of identifying the rationale for each consecutive
sentence . . . . In Sandoval, this court reinforced that
stringent standard, requiring courts to provide clearly
articulated reasons for "each and every consecutive
sentence." State v. Sandoval, 149 Hawai#i 221, 236, 487
P.3d 308, 323 (2021) (emphasis added).
Id. at 290-91, 535 P.3d at 1035-36.
Importantly, the Hussein rule was announced as a
prospective rule only:
[W]e now conclude, based on the reasons and circumstances
set forth supra, that a court must state its reasons as to
why a consecutive sentence rather than a concurrent one was
required.
. . . .
Consequently, after the filing date of the judgment herein,
circuit courts must state on the record at the time of
sentencing the reasons for imposing a consecutive sentence.
122 Hawai#i at 509-10, 229 P.3d at 327-28 (emphasis added); see
Barrios, 139 Hawai#i at 334-36, 389 P.3d at 929-31 (applying
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Hussein and concluding that the trial court "did not adequately
establish the basis for [the defendant's] sentence, . . . because
it did not explain its reasoning for each consecutive sentence").
Here, Penaflor's original sentencing hearing was held
on September 10, 1991, resulting in the 1991 Judgment, and the
resentencing hearing was held on December 21, 2009, resulting in
the 2009 Judgment. Because the relevant holding in Hussein
applied to sentencing decisions that occurred after entry of the
judgments at issue in this appeal, Hussein is inapplicable to
this case. See State v. Wilson, No. 30284, 2010 WL 4409700, at
*1 n. 2 (Haw. App. Nov. 3, 2010) (SDO) (ruling that Hussein was
inapplicable to an appeal from a judgment filed on December 8,
2009). Accordingly, the Circuit Court did not err in denying
Penaflor's claim based on HRS § 706-606 without a hearing.
(3) Penaflor contends that the Circuit Court abused its
discretion "when it relied on Penaflor[']s refusal to admit guilt
or remorse as a factor during sentencing." In particular,
Penaflor challenges the following statement made by Judge Mossman
in the 1991 sentencing hearing: "[A]nd when you have an attitude
such as the prosecutor has mentioned of no remorse whatsoever,
when you lie on the stand like a rug, then I got no sympathy for
you." From this statement, Penaflor argues that "[c]learly the
sentencing Court used the fact that appellant claimed innocence
and showed no remorse by remaining silent to sentence him to
consecutive terms."
Initially, we note that Penaflor has provided no
support for his allegation that the Circuit Court relied on
Penaflor's refusal to admit guilt as a basis for sentencing, and
we have found none in the record. Instead, Penaflor challenges
only the Circuit Court's stated belief that Penaflor showed no
remorse for his conduct. This issue was previously raised and
ruled upon in the 1991 Direct Appeal. Specifically, in Penaflor
I, the supreme court noted that Penaflor did not remain silent at
sentencing and concluded that "the trial court had ample basis
for concluding that Penaflor lacked remorse for his offenses."
Penaflor I, mem. Op. at 7 n.2, 7-8. The court expressly "h[e]ld
that the trial court did not abuse its discretion in considering
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its belief that Penaflor lacked remorse for his criminal actions
in imposing consecutive sentences." Id. at 8. Because
Penaflor's "remorse" claim was previously ruled upon, it was
properly denied by the Circuit Court under HRPP Rule 40(a)(3).
(4) Penaflor contends that the Circuit Court violated
his rights under the Eighth Amendment to the United States
Constitution and article I, section 12 of the Hawai#i
Constitution. In particular, Penaflor argues that the imposition
of six consecutive terms totaling 70 years constituted cruel and
unusual punishment.
We note that Penaflor has previously raised claims that
his consecutive sentences were illegal, albeit apparently on
other grounds, and that those claims have been ruled upon and
rejected. For example, this court ruled in Penaflor III:
"Penaflor's consecutive sentence was not illegal. HRS § 706-
668.5 (1983). . . . Penaflor's claim of an illegal sentence was
also ruled upon in his direct appeal in [Penaflor I] and in the
denial of his HRPP Rule 35 motion, which was affirmed on appeal
[in Penaflor II]." Penaflor III, 2008 WL 2503259, at *3; see
Penaflor II, 2002 WL 31375566, at *1 (concluding there was no
merit to Penaflor's claim that the consecutive sentences violated
his due process rights).
In the 2021 Petition, Penaflor appears to have raised a
new illegal sentence claim, based on the assertion that his
consecutive sentences constituted cruel and unusual punishment.
However, he has not stated a colorable claim on this basis. A
consecutive sentence rises to the level of constitutionally cruel
and unusual punishment, and is thus "disproportionate," if:
in the light of developing concepts of decency and fairness,
the prescribed punishment is so disproportionate to the
conduct proscribed and is of such duration as to shock the
conscience of reasonable persons or to outrage the moral
sense of the community.
State v. Kahapea, 111 Hawai#i 267, 282, 141 P.3d 440, 455 (2006)
(quoting State v. Freitas, 61 Haw. 262, 267–68, 602 P.2d 914, 920
(1979)).
Here, as the supreme court stated in Penaflor I, the
trial court enumerated nine factors in support of its judgment
and sentence, seven of which were unchallenged and which Penaflor
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conceded could legitimate consecutive sentences. Penaflor I,
mem. op. at 7 n.1. "The court concluded that Penaflor's
sentences should be served consecutively because: 1) the nature
and the circumstances of the offenses and the history and
characteristics of the defendant demonstrated that the sentences
should be consecutive; 2) consecutive sentences were necessary to
reflect the seriousness of the offenses, to promote respect for
the law, and to provide just punishment for the offenses; 3)
consecutive sentences were necessary to afford adequate
deterrence to criminal conduct; and 4) consecutive sentences were
necessary to protect the public from further crimes." Id. at 3.
In this context, Penaflor has failed to show how his punishment
was "clearly and manifestly" cruel and unusual, State v. Solomon,
107 Hawai#i 117, 131, 111 P.3d 12, 26 (2005), and that his
sentence was "so disproportionate to the conduct proscribed and
is of such duration as to shock the conscience of reasonable
persons or to outrage the moral sense of the community."
Kahapea, 111 Hawai#i at 282, 141 P.3d at 455. Because Penaflor
has not stated a colorable claim that his consecutive sentences
constituted cruel and unusual punishment, the Circuit Court did
not err in denying this claim without a hearing.
III. Conclusion
For the reasons discussed above, we affirm the Circuit
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, entered on October 21, 2021, and the
Final Judgment, entered on November 1, 2021.
DATED: Honolulu, Hawai#i, December 7, 2023.
On the briefs:
Crandall Penaflor, /s/ Katherine G. Leonard
Self-represented Petitioner- Presiding Judge
Appellant.
/s/ Clyde J. Wadsworth
Renee Ishikawa Delizo, Associate Judge
Deputy Prosecuting Attorney,
County of Maui, /s/ Sonja M.P. McCullen
for Respondent-Appellee. Associate Judge
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