Akau v. State

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Electronically Filed
Supreme Court
SCWC-XX-XXXXXXX
05-MAR-2019
02:50 PM
IN THE SUPREME COURT OF THE STATE OF HAWAIʻI
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________________________________________________________________
TIMMY HYUN KYU AKAU,
Petitioner/Petitioner-Appellant,
vs.
STATE OF HAWAIʻI,
Respondent/Respondent–Appellee.
_______________________________________________________________
SCWC-XX-XXXXXXX
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-XX-XXXXXXX; CIVIL NO. 1SD-13-1-9)
MARCH 5, 2019
RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.
OPINION OF THE COURT BY WILSON, J.
In 2013, Timmy Hyun Kyu Akau (Akau) filed a petition
with the District Court of the First Circuit (district court)
pursuant to Hawaiʻi Rules of Penal Procedure (HRPP) Rule 40 to
vacate, set aside, or correct his 1987 conviction for driving
while under the influence of an intoxicating liquor (DUI). The
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district court1 denied Akau’s petition, and the Intermediate
Court of Appeals (ICA) affirmed the district court’s denial of
his petition in an unpublished memorandum opinion.2 The ICA
observed that Akau had waited over twenty-five years to
challenge his DUI conviction. As a result of the intervening
delay, no transcripts of any of the proceedings in Akau’s DUI
case were available. The ICA affirmed the denial of Akau’s HRPP
Rule 40 petition on the basis of the equitable doctrine of
laches.
We conclude that Akau’s right to counsel was violated
in 1987. We also hold that the equitable doctrine of laches
does not apply to HRPP Rule 40 petitions.
I. BACKGROUND
In June 2013, Akau filed a petition to vacate, set
aside, or correct judgment or to release petitioner from custody
in accordance with HRPP Rule 40. In his petition, Akau sought
to have the court set aside a conviction stemming from a charge
of DUI dating from 1987.
Where an HRPP Rule 40 petition for post-conviction
relief states a colorable claim, an evidentiary hearing on the
petition is required. HRPP Rule 40(f); Wilton v. State, 116
1
The Honorable Linda K.C. Luke presided.
2
The ICA’s memorandum opinion can be found in full at Akau v.
State, CAAP-XX-XXXXXXX (App. Jan. 31, 2017) (mem.).
2
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Hawaiʻi 106, 122–23, 170 P.3d 357, 373–74 (2007) (citing Hutch v.
State, 107 Hawaiʻi 411, 414, 114 P.3d 917, 920 (2005) for the
holding that “a hearing on a Rule 40 petition is required
whenever the allegations in a petition, if taken as true, (1)
would change the verdict rendered or (2) would establish the
illegality of custody following a judgment[]” (internal
citations and quotation marks omitted)). If the factual
allegations of the petition, taken as true, “would entitle the
petitioner to relief,” the petition states a colorable claim.
HRPP Rule 40(f). Here, after examining the petition, the
district court concluded that Akau had stated a colorable claim
for post-conviction relief in his petition and, accordingly, an
evidentiary hearing was held in July 2013.
After hearing Akau’s testimony, the district court
entered findings of fact and conclusions of law. Although the
shorthand notes of Akau’s arraignment and trial were destroyed
in the late 1990s pursuant to the court’s record retention
policy, the district court reviewing Akau’s petition was able to
make findings of fact based on the surviving minimal original
court records combined with Akau’s testimony at the evidentiary
hearing.
In its findings of fact, the court found that on July
26, 1987, Akau was arrested and charged with DUI. Two days
later, he appeared before the District Court, Ewa Division, and
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pled not guilty. He was referred to the Office of the Public
Defender, and trial was scheduled for December 23, 1987. On
December 23, 1987, Akau appeared in court without counsel and
requested a continuance. As he later testified at the
evidentiary hearing on his Rule 40 petition, he requested the
continuance “[b]ecause I wanted to get an attorney present at
the time.” His request for a continuance was denied. After
trial,3 Akau was convicted of DUI. He was sentenced to a small
fine, a DUI class, and a 90-day license suspension.
In 2013, Akau filed an HRPP Rule 40 petition to
vacate, set aside, or correct judgment. In his petition, Akau
asserted that at the time of his 1987 arrest for DUI, he was not
familiar with court procedures or with the purposes behind his
appearances. He asserted that he did not have the assistance of
counsel at arraignment, trial, or sentencing. He did not recall
ever being informed that he had a constitutional right to a jury
trial, or that he had a right to have an attorney represent him,
at public expense, if necessary. Nor did he recall being
informed that he had a right to appeal his conviction. He could
not recall a judge ever explaining the nature of the offense,
the pleas and defenses available, or the punishment that might
3
Trial was conducted before the Honorable Francis Yamashita. At
the time, a defendant charged with DUI was entitled to a jury trial.
Subsequently, in 1990, the legislature reduced the maximum penalty for the
offense such that a jury trial was no longer constitutionally required. See
State v. Nakata, 76 Hawaiʻi 360, 364-65, 878 P.2d 699, 703-04 (1994).
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be imposed; he did not recall the judge informing him concerning
the risks of self-representation.
In its findings of fact, conclusions of law, and order
filed September 11, 2013, the district court denied Akau’s
petition, concluding that the passage of twenty-five years
between Akau’s trial in 1987 and his petition in 2013 “is an
inordinate amount of time leading to the nonexistence of Court
records.” As a result, the court ruled that it would be
“inequitable to grant the Petition because the passage of
twenty-five (25) years has resulted in the unavailability of
records, and unusually handicaps the State in meeting its burden
and preparing a response to the Petition.”
The ICA affirmed the district court’s ruling, which
the ICA characterized as “[r]elying in part on principles from
the doctrine of laches[.]” In addition, the ICA noted that a
number of other jurisdictions apply laches in denying petitions
for post-conviction relief, citing seven out-of-state or federal
cases. The application of laches in such circumstances, the ICA
surmised, recognizes “the importance of finality in our criminal
justice system[.]”
II. STANDARD OF REVIEW
“A proceeding under HRPP Rule 40 is similar to a civil
bench trial in that the court is required to enter findings of
fact and conclusions of law in support of its decision.” Raines
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v. State, 79 Hawaiʻi 219, 222, 900 P.2d 1286, 1289 (1995). An
appellate court reviews a lower court’s interpretation of a
court rule de novo. Sierra Club v. Dep’t of Transp., 120 Hawaiʻi
181, 197, 202 P.3d 1226, 1242 (2009).
III. DISCUSSION
Under the Sixth Amendment to the United States
Constitution, an accused has the right to counsel appointed at
public expense because the right to counsel is “fundamental and
essential to a fair trial[.]” Gideon v. Wainwright, 372 U.S.
335, 342-44 (1963) (internal quotation marks and citation
omitted) (explaining that the assistance of counsel “is one of
the safeguards of the Sixth Amendment deemed necessary to insure
fundamental human rights of life and liberty” (quotation marks
and citation omitted) and that the right to counsel is one of
those “constitutional principles established to achieve a fair
system of justice”). “Article I, Section 14 of the Hawaiʻi
Constitution also guarantees the accused the right to counsel.”
State v. Pitts, 131 Hawaiʻi 537, 541, 319 P.3d 456, 460 (2014)
(“‘In all criminal prosecutions, the accused shall enjoy the
right to . . . have the assistance of counsel for the accused’s
defense.’” (citation omitted)). “A ‘critical stage’ of the
prosecution is any stage where ‘potential substantial prejudice
to defendant’s rights inheres.’” Id. (citation omitted). Trial
is obviously a critical stage of the prosecution. Wong v.
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Among, 52 Haw. 420, 423–24, 477 P.2d 630, 633 (1970) (“The right
to assistance of counsel is so fundamental and essential to a
fair trial that it has been absorbed into the due process clause
of the Fourteenth Amendment.”). “It is well settled that the
sentencing phase is a critical stage of the prosecution, during
which the right to counsel attaches.” Pitts, 131 Hawaiʻi at 544,
319 P.3d at 463. Akau (a) had never been represented either by
court-appointed or privately-retained counsel with respect to
the charge, (b) had received no prior continuance in the case,
and (c) requested a continuance at the commencement of trial
because he “wanted to get an attorney present . . . .” He was
denied his right to assistance of counsel (whether court-
appointed or privately retained) at trial and also at
sentencing.
We have recognized that the erroneous deprivation of
the right to counsel under article I, section 14 of the Hawaiʻi
Constitution is a structural error not subject to harmless error
analysis; no showing of prejudice is required in part because
the denial of counsel is “so likely to prejudice the accused
that the cost of litigating [its] effect in a particular case is
unjustified[,]” United States v. Cronic, 466 U.S. 648, 658-59
(1984), and because these “circumstances involve impairments of
the Sixth Amendment right that are easy to identify and . . .
easy for the government to prevent.” Strickland v. Washington,
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466 U.S. 668, 692 (1984); see also State v. Loher, 140 Hawaiʻi
205, 221, 398 P.3d 794, 810 (2017) (quoting Strickland, 466 U.S.
at 692); State v. Reed, 135 Hawaiʻi 381, 389, 351 P.3d 1147, 1155
(2015) (“Because the denial of the right to counsel of choice is
a structural error, we need not subject the court’s abuse of
discretion to a harmless error analysis.”). Thus, an erroneous
deprivation of the right to counsel, as occurred in this case,
constitutes an abuse of discretion not subject to harmless error
analysis.
The ICA affirmed the district court’s decision to deny
Akau’s Rule 40 petition based on laches. We hold that the
doctrine of laches does not apply in the context of HRPP Rule 40
petitions.
HRPP Rule 40(a)(1) contains no statute of limitations
for bringing petitions and, instead, explicitly states that Rule
40 petitions seeking relief from a judgment of conviction may be
brought “[a]t any time” so long as they are not brought “prior
to final judgment[.]” This lack of a statute of limitations
appears to be deliberate, as the drafters of HRPP Rule 40
rejected the use of an Illinois statute as the template for a
statute of limitations on post-conviction petitions. Comm. For
Penal Rules Revision of the Judicial Council of Haw., Proposed
Hawaiʻi Rules of Penal Procedure at 206 (June 1975) (commenting
on proposed Rule 40 and citing but then rejecting an Illinois
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statute that imposed a time limit of 20 years for post-
conviction petitions). We therefore decline to impose a kind of
judicially-crafted statute of limitations on Rule 40 petitions
seeking relief from a judgment of conviction when that rule as
promulgated explicitly states that such petitions may be brought
“[a]t any time” so long as they are not brought “prior to final
judgment[.]” HRPP Rule 40(a)(1); see also HRPP Rule 40(a)(2)
(allowing any person to “seek relief under the procedure set
forth in this rule from custody based upon a judgment of
conviction” on specified grounds but not imposing a time
limitation on seeking that relief).
We also note that HRPP Rule 40(a) governs all
extraordinary writs, including writs of coram nobis. A writ of
coram nobis acts as a “remedy to correct errors of the most
fundamental character where the petitioner has completed his [or
her] sentence or is otherwise not in custody and circumstances
compel such action to achieve justice.” Carvalho v. Olim, 55
Haw. 336, 344, 519 P.2d 892, 898 (1974). Application of laches
to writs of coram nobis would have precluded consideration by
the United States District Court of the Northern District of
California of the writ of coram nobis brought by Fred Toyosaburo
Korematsu to overturn his conviction in 1942 for remaining in a
military area in violation of Civilian Exclusion Order No. 34
issued by the Commanding General of the Western Command, U.S.
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Army, which ordered all persons of Japanese ancestry to leave
the area. Korematsu v. United States, 584 F. Supp. 1406, 1409
(N.D. Cal. 1984).
IV. CONCLUSION
For the reasons stated above, we vacate the ICA’s
judgment on appeal, Akau’s 1987 conviction for DUI, and the
district court’s findings of fact, conclusions of law, and order
dated September 11, 2013 concerning his HRPP Rule 40 petition.
We remand to the district court for further proceedings
consistent with this opinion.
Earle A. Partington /s/ Mark E. Recktenwald
for Petitioner
/s/ Paula A. Nakayama
Brian R. Vincent
for Respondent /s/ Sabrina S. McKenna
/s/ Richard W. Pollack
/s/ Michael D. Wilson
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