De La Garza v. State.

***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
Electronically Filed
Supreme Court
SCWC-11-0000595
10-MAY-2013
10:17 AM
IN THE SUPREME COURT OF THE STATE OF HAWAI#I
---o0o---
CHEYNE DE LA GARZA, Petitioner/Defendant-Appellant,
vs.
STATE OF HAWAI#I, Respondent/Plaintiff-Appellee.
SCWC-11-0000595
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-11-0000595; CR. NO. 08-0421(4); S.P.P. NO. 10-1-0021(4))
MAY 10, 2013
RECKTENWALD, C.J., NAKAYAMA, ACOBA, MCKENNA, AND POLLACK, JJ.
OPINION OF THE COURT BY POLLACK, J.
Petitioner Cheyne De La Garza (Petitioner) seeks review
of the Intermediate Court of Appeals’ (ICA) August 23, 2012
judgment, affirming the Circuit Court of the Second Circuit’s
(circuit court) July 28, 2011 order dismissing Petitioner’s
Hawai#i Rules of Penal Procedure (HRPP) Rule 40 petition for
post-conviction relief.
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
Petitioner asserts that the ICA gravely erred in
affirming the circuit court’s order because the manner in which
the Hawai#i Paroling Authority (HPA) “amended” his minimum term
of imprisonment from eighteen months to five years was in
violation of his constitutional right to due process.
We hold that the ICA erred in concluding that
Petitioner waived his due process claim relating to the HPA’s
nondisclosure of adverse materials in Petitioner’s HPA file and
accordingly vacate the ICA judgment and circuit court order, and
remand to the circuit court for a HRPP Rule 40 evidentiary
hearing consistent with this opinion.
I.
A.
On May 1, 2009, Petitioner pleaded no contest to one
count of assault in the first degree in violation of Hawai#i
Revised Statutes (HRS) § 707-710(1) and one count of kidnapping
as a Class B felony in violation of HRS § 707-720(3).
Petitioner’s conviction arose out of an incident in which
Petitioner restrained the complainant (Complainant), whom he had
previously been romantically involved with, in his vehicle and
assaulted her, causing serious bodily injury to her. The circuit
-2-
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
court1 sentenced Petitioner on June 26, 2009 to ten years
imprisonment for each count, with the terms to run concurrently.2
On October 12, 2009, the HPA held a hearing to set
Petitioner’s minimum term of imprisonment (first hearing),
pursuant to HRS § 706-669.3 Prior to the hearing, the HPA was
required to obtain Petitioner’s presentence report, which
included Complainant’s victim impact statement as an addendum to
the report.4 The prosecutor also submitted a written letter to
the HPA with his recommendation for Petitioner’s minimum term.
Petitioner and defense counsel were present at the October 12
hearing. Neither the prosecutor nor Complainant attended the
hearing.
On the same day as the first hearing, the HPA issued a
notice and order (First Minimum Term Order) setting Petitioner’s
minimum term of imprisonment at eighteen months for each count,
1
The Honorable Richard T. Bissen, Jr. presided over the circuit
court proceedings in this case.
2
Petitioner was also ordered to pay restitution and fees.
3
The HPA is charged with determining the minimum term of
imprisonment that a person sentenced to an indeterminate or an extended term
of imprisonment must serve before becoming eligible for parole. HRS § 706-
669(1) (1993). The guidelines upon which these determinations are made are
established by the HPA. HRS § 706-669(8). See HPA’s Guidelines for
Establishing Minimum Terms of Imprisonment (1989), available at
http://dps.hawaii.gov/wp-content/uploads/2012/09/HPA-Guidelines-for-
Establishing-Minimum-Terms-of-Imprisonment.pdf [hereinafter HPA Guidelines].
4
HRS § 706-669(2) (1993) provides that “[b]efore holding the
[minimum term] hearing, the authority shall obtain a complete report regarding
the prisoner's life before entering the institution and a full report of the
prisoner's progress in the institution.” HRS § 806-73(b)(3)(B) (Supp. 2009)
provides that “[a] copy of a presentence report or investigative report shall
be provided” to the HPA.
-3-
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
to expire on December 20, 2010. The HPA set Petitioner’s level
of punishment at Level II and identified “Degree of Injury to
Person” as the significant factor used in determining
Petitioner’s level of punishment.5 A Level II punishment for a
ten year maximum term of imprisonment will generally result in a
minimum term of three to five years under the HPA Guidelines.
HPA Guidelines at 2. In Petitioner’s case the HPA deviated
downward from its guidelines based on his “Character and Attitude
With Respect to Criminal Activity and/or Lifestyle.”6
Over a month after issuing the First Minimum Term
Order, the HPA received a letter from the prosecutor, dated
November 23, 2009, advising the HPA that Complainant and her
family had not been notified about the first hearing “due to an
error in communication” by the prosecutor’s office.7 The
prosecutor requested that Complainant and her family “be
permitted to appear before the [HPA] and submit oral and written
statements addressing the [Petitioner].” However, the prosecutor
5
The HPA Guidelines provide that the minimum term of imprisonment
will generally fall within one of three levels, with the level of punishment
based on the maximum term of imprisonment imposed by the sentencing court and
subjective criteria including the nature of the offense, the degree of
injury/loss to person or property, and the offender’s criminal history. HPA
Guidelines at 2-3.
6
The HPA Guidelines provide that “all deviations [from the
guidelines] shall be accompanied by written justification and be made a part
of the Order Establishing Minimum Terms of Imprisonment[. ]” HPA Guidelines
at 1.
7
The HPA later explained to Petitioner in a letter dated July 27,
2010 that unless the complainant requested direct notification from the HPA,
the HPA’s practice was to notify the prosecutor’s office of the minimum term
hearing date. The prosecutor’s office would then notify the complainant of
the hearing date through a victim advocate. In this case, it appears that no
request for direct notification was made.
-4-
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
acknowledged that “a minimum term has already been set and that
the prisoner has been transferred to the Maui Community
Correctional Facility.” The prosecutor did not request
invalidation, reconsideration, or amendment of the minimum term.
A notation on the letter indicated that a copy of the letter was
sent to defense counsel.
Thereafter, in a letter dated December 15, 2009,
Complainant’s aunt (Aunt) wrote to the HPA requesting that the
HPA “reconsider” the minimum term. Aunt’s letter stated, “We do
not wish to burden the Board with an additional hearing and the
Board’s time and expense that comes with it, but we do
respectfully ask that you accept the enclosures as
[Complainant’s] testimony and we respectfully ask that you
reconsider the minimum that was set of 1.6 years.” Aunt enclosed
a copy of Complainant’s victim impact statement and a portion of
the transcript from the circuit court’s sentencing proceedings.
The letter concluded with Aunt’s request that the “Board
reconsider a minimum term of at least 3.4 years.” Aunt’s letter
did not contain a notation indicating that Petitioner, defense
counsel, or the State was provided with a copy of the letter and
the attachments.
In a letter dated January 20, 2010, the HPA wrote to
Aunt acknowledging receipt of her letter. The HPA advised Aunt
that the information she had provided had been made a part of
Petitioner’s case file and would “be reviewed when we undergo the
-5-
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
parole process in October 2010.” The HPA wrote, “The minimum
sentence of one year, six months does not mean that the defendant
will be released on parole at that time.[8] We encourage you and
your niece to resubmit a letter prior to his parole hearing.”
The letter does not contain a notation indicating that a copy of
the letter was provided to Petitioner, defense counsel, or the
State.
In a second letter to the HPA dated March 10, 2010,
Aunt wrote, “Below please find my testimony for the minimum term
hearing scheduled for Friday, 3/19/10 at Maui Community
Correctional Facility.” Along with her written testimony, Aunt
included a map of the locations where Petitioner had driven
Complainant on the day of the incident, and photographs of the
injuries Complainant sustained.
Aunt’s five-page, single-spaced statement recounted the
nature of Petitioner and Complainant’s relationship as well as
the events of the day of the incident.9 Aunt stated that
“[Petitioner] has already started on work furlough because of the
1.6 minimum,” and that “a 1.6 month minimum term is a slap in the
8
Pursuant to HRS § 706-670(1) (Supp. 2010), a “person sentenced to
an indeterminate term of imprisonment shall receive an initial parole hearing
at least one month before the expiration of the minimum term of imprisonment
determined by the [HPA].” If the HPA does not grant parole at that initial
hearing, additional hearings are held at “twelve-month intervals or less until
parole is granted or the maximum period of imprisonment expires.” Id. The
HPA may decline to set a parole date, and release becomes mandatory only upon
expiration of the maximum term of imprisonment. HRS § 706-670(5) (1993).
9
At the March 19, 2010 hearing, Aunt did not read verbatim from her
written statement. Significant portions of her written statement were not
orally conveyed at the hearing.
-6-
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
face to the victim.” She further claimed that “[a]fter
sentencing, [Petitioner] made statements like ‘my attorney is in
with the parole board, lucky if I even do a year,’” and that
Petitioner “new [sic] his statements would get to [Complainant],
which was his plan.” Aunt concluded by asking the HPA to
“consider that [Petitioner’s minimum term] should not be less
than a minimum of 3.8 years of his 10 year sentence[.]”
Aunt’s second letter also does not indicate that the
letter or its enclosures were provided to Petitioner, defense
counsel, or the State.
B.
On March 19, 2010, the HPA held a second minimum term
hearing (second hearing).10
At the hearing, Petitioner, Complainant, Aunt, a victim
witness counselor, and a Maui County deputy prosecuting attorney
were present.11 Defense counsel was not able to attend the
hearing and instead appeared by telephone. He explained, “You
know, I had some surgery, I just got the stitches out the other
10
The HPA is composed of three members who are appointed by the
governor for four-year terms, one of whom serves as chairperson. HRS § 353-61
(Supp. 2010). At the first hearing, all three HPA members, Chairman Albert
Tufono and members Dane Oda and Roy Reeber, were present and determined
Petitioner’s minimum term of imprisonment. At the second hearing, only
Chairman Tufono and member Oda were present. Pursuant to Hawai#i
Administrative Rules § 23-700-2(b) (1992), formal decisions of the HPA are not
“conclusive and final unless at least two members are in agreement.”
11
The prosecutor who appeared for the second hearing was not the
same prosecutor who sent the letter to the HPA recommending a minimum term for
the first hearing and who notified the HPA about the failure to notify
Complainant about the first hearing.
-7-
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
day. And I’m going to court this morning, I start a trial. It’s
not that I didn’t want to be there.” Petitioner was not asked
whether he was previously aware of or agreed to counsel’s
participation through speaker phone.
Chairman Albert Tufono began the hearing by explaining
that the HPA had scheduled the second hearing because “the first
time we set this minimum, we did not give the family the
opportunity to be heard in this area.”12 Defense counsel
responded, “I understand. We went through all of their
statements and all the reports and everything else [at the first
hearing], but, I mean, I’m sure they have a right to talk.”
Chairman Tufono continued, “Yeah. So we’re giving them the right
to talk.”
Before proceeding, the prosecutor stated that he was
present at the hearing “in a capacity to assist” Complainant, to
“answer any questions that the Board might have,” and “maybe make
a brief statement as well.” Defense counsel responded, “I’m a
little uncomfortable with that”; nevertheless, the hearing
proceeded.
The victim counselor began by reading a letter written
by Complainant. The letter was shorter in length than
Complainant’s victim impact statement, which the HPA had
available at the first hearing, but focused more on the
12
However, there is no indication in the record that the HPA
foreclosed anyone from appearing or being heard at the first hearing.
-8-
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
underlying incident and the effect it had, and continued to have,
on Complainant’s life.
Next, Aunt was given the opportunity to make a
statement. Aunt stated that Petitioner’s “actions clearly show a
lack of remorse.” She also alluded to certain statements that
Petitioner had allegedly made to a cellmate after he was
sentenced. Defense counsel objected, “I don’t know if she’s
allowed to make this statement. Where is this coming from? I
object to this kind of stuff. Confessions from cellmates? What
is that?” Aunt continued to attempt to explain that she included
this information in her letter and that the cellmate was “a
person who worked with [Complainant] who did weekends for DUI.”
Aunt argued, “[Petitioner] knew this and [Petitioner] found a way
to get uncomfortable statements back to [Complainant]. And
that’s what he did by saying that, you know, his attorney is
tight with the parole board and lucky he --” At that point, Aunt
was again interrupted by defense counsel, whose statement was
partially marked as “inaudible.”
Aunt also addressed the HPA’s initial minimum term:
“This defendant clearly believes that he is above the law.
Please make it clear to him that he cannot do what he did to
[Complainant] and walk out of jail in 1.6 months, although that
is even more time than he thought he would do.” Aunt concluded,
“Please don’t let this heinous crime get a slap on the hand. A
-9-
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
1.6 minimum is a slap on the hand for [Petitioner] and a slap in
the face for [Complainant].”
When the prosecutor began his statement, he referenced
the circuit court judge’s comments during Petitioner’s sentencing
and stated that he knew the judge.13 Defense counsel interrupted,
objecting, “This is an improper argument. You want to do
something, you should get a transcript, or bring in (inaudible)
the Deputy.” The prosecutor responded, “I have a transcript of
the Judge.” Defense counsel again interjected, “This is an
outrageous argument.”
After Chairman Tufono told the prosecutor to continue,
the prosecutor argued that Petitioner had “basically tricked”
Complainant into meeting with him on the day of the incident.
Defense counsel objected, “This is unbelievable. How does this
come in?” The prosecutor then referenced his nineteen years of
experience as a prosecutor and stated that in his opinion the
previously set minimum term “does not feel right” and “[i]t does
not feel as though just punishment for this incident is . . .
being meted out.” The prosecutor concluded by asking the HPA to
“reconsider the previously set minimum.”
Defense counsel then spoke, noting that the first
hearing had lasted an hour and that the “worst of [Petitioner]
13
The prosecutor stated, “I was present in the courtroom during the
sentencing. And the Judge’s comments at the time of sentencing, absolutely
astounding. Because this was the individual –- and I’m talking about Judge
Richard Bissen –- this is an individual who I have known for most of --”
-10-
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
came out” during that hearing. Defense counsel pointed out that
the prosecutor’s office sent the HPA a recommendation letter for
the first hearing, and the HPA rejected the prosecutor’s
recommendation for the minimum term. He continued, “They just
don’t like the mandatory minimum.” Defense counsel further
expressed his frustration in regards to Aunt’s statements,
saying, “Then you talk about . . . some jail mate. I wish I
could be over there. (Inaudible.) Shame on you,” and “I wish I
was there to ask you a few questions.”
Following defense counsel’s statement, Chairman Tufono
asked Petitioner if he wanted to make a statement. Petitioner’s
response is denoted on the transcript as an “inaudible” “10-
second statement.” After defense counsel stated, “Can’t hear,”
Petitioner made a longer statement also described as “inaudible.”
Chairman Tufono then twice stated to Petitioner that he had an
opportunity to address Complainant. Petitioner made a statement
that is marked as “inaudible” “40-second statement.”
After Petitioner’s comments, Chairman Tufono concluded
the hearing and addressing defense counsel, stated, “[W]e’re
gonna go ahead and we’ll take a look at this case. And if we
need to reset the minimum, then that’s what we’ll do.” Defense
counsel responded, “I hope you won’t reconsider this.” Chairman
Tufono only noted that the HPA would “let everybody know in a
couple weeks what the decision is.”
-11-
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
At no point during the hearing was Petitioner given an
opportunity to speak privately with defense counsel.
On March 24, 2010, the HPA issued a second notice and
order (Second Minimum Term Order), imposing a minimum term of
five years imprisonment on each count, to expire on June 22,
2014. The new minimum term was more than three times the initial
term that had been set after the first hearing. The order
identified the level of punishment as “Level III,” and “Nature of
Offense” and “Degree of Injury to Person” as the significant
factors used in determining the level of punishment. The order
did not reference the First Minimum Term Order.
Subsequently in July and August 2010, the HPA parole
administrator responded to Petitioner’s letters regarding the
second hearing and increased minimum term. The administrator
informed Petitioner that the HPA had decided to “reopen your
minimum term hearing to accept the victim’s testimony.”
Petitioner wrote two more letters to the HPA requesting an
explanation for the Second Minimum Term Order. On both
occasions, the HPA responded that no action would be taken and
that the parole board’s “decision remains appropriate.”
On February 10, 2011, Petitioner again wrote to the
HPA, arguing that the HPA had exceeded its statutory authority in
holding the second hearing and requesting that the HPA restore
his original minimum term and hold an immediate hearing to
-12-
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
consider him for parole. He informed the HPA that he had filed a
HRPP Rule 40 petition with the circuit court.
The HPA administrator responded to Petitioner by letter
dated February 22, 2011. The letter stated that “[u]pon receipt
of [Petitioner’s February 10, 2011] letter, a review of your
concerns, our records, and consultations with the Department of
the Attorney General were conducted.” The administrator wrote
that the HPA had acted appropriately, explaining that “victims .
. . have the right to be present at minimum sentencing hearings
and provide testimony . . . to the parole board.” The
administrator then explained that the HPA had decided to “amend”
the first minimum term as a result of the information provided by
the prosecutor’s office and the victims at the second hearing:
In this case, neither the Office of the Prosecuting Attorney
nor the victims . . . attended the minimum sentencing
hearing held on October 12, 2009. Therefore, the parole
board appropriately allowed them to provide testimony and/or
statements at the subsequent re-opened hearing held on March
19, 2010. As a result of the information provided by both,
the Office of the Prosecuting Attorney, and the victims at
the March 19, 2010 hearing, the parole board amended their
[sic] previous decision of October 12, 2009.
(Emphases added).
The administrator wrote that “the actions of the parole
board in this matter do not violate your rights and/or any
statutory authority. In fact, the actions of the parole board
were appropriate and ensured that the parties involved were
provided the opportunity to exercise their right to be present
and to be heard.”
-13-
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
C.
Petitioner filed his HRPP Rule 40 petition for post-
conviction relief on December 27, 2010, representing himself pro
se. Petitioner argued that the HPA had violated his
constitutional rights to due process and equal protection based
upon the following claims: (1) the HPA exceeded its statutory
authority by holding a second hearing to allow Complainant to
testify after Petitioner had already been imprisoned for six
months, and by subsequently increasing his minimum term from
eighteen months to five years; (2) the HPA acted arbitrarily in
sentencing Petitioner to a Level III punishment rather than a
Level I punishment under the HPA Guidelines, despite the fact
that he had no prior criminal history. Petitioner argued that it
was arbitrary and capricious for the HPA to reopen his minimum
term hearing to accept Complainant’s testimony and that he should
not be penalized for any miscommunication between the
prosecutor’s office and Complainant.
The State filed an answer to the petition on March 17,
2011. Although the State argued that Petitioner and his counsel
appeared at the second hearing “after receiving proper notice,”
the nature of the “proper notice” was not identified or
described.
Petitioner filed a reply to the answer on April 4,
2011.
-14-
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
On May 3, 2011, the circuit court granted Petitioner’s
motion to add a new ground of ineffective assistance of counsel
to his petition (Amended Petition). As part of his ineffective
assistance of counsel claim, Petitioner explained that defense
counsel participated in the second hearing via HPA member Dane
Oda’s cell phone, which was placed on speaker phone. Petitioner
argued that defense counsel’s participation by telephone was
insufficient, that counsel was absent during a “critical stage”
of the criminal proceeding, and that prejudice was therefore
presumed.
The State filed a response to the ineffective
assistance of counsel claim on July 20, 2011 (State’s Response to
Amended Petition). The State argued that Petitioner was not
denied effective assistance of counsel at the second hearing
because counsel appeared via telephone and “ensure[d] that the
minimum sentence imposed by the HPA [was] not predicated on
misinformation or misreading of court records.” (Quotation marks
omitted).
The State attached as exhibits to its response, a copy
of Aunt’s December 15, 2009 letter to the HPA with enclosures
(Exhibit “D”), a copy of the HPA’s January 20, 2010 letter to
Aunt (Exhibit “E”), and a copy of Aunt’s March 10, 2010 written
testimony for the second hearing, with enclosures (Exhibit “F”).
Exhibits E and F reflected that the prosecutor’s office received
-15-
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
those documents on July 12, 2011, eight days prior to the filing
of the State’s Response to Amended Petition.
On July 28, 2011, eight days after the State’s Response
to Amended Petition was filed, the circuit court issued its
findings of fact, conclusions of law, and an order denying
Petitioner’s petition.
The court’s conclusions of law provided in relevant
part:
26. Nothing in the record indicates Petitioner’s rights to
“reasonable notice of the hearing”, “to be heard by the
authority”, and to consult with and enjoy the representation
of counsel for the minimum term hearing were violated by the
HPA. See HRS § 706-669(3). Petitioner was represented by
[defense counsel], who was physically present at the first
hearing, and represented Petitioner in the second hearing
via telephone conference.
In regard to Petitioner’s claim of ineffective assistance of
counsel, the circuit court concluded that the claim was “patently
frivolous.” The court concluded that counsel’s appearance by
phone was sufficient and did not demonstrate “the withdrawal or
substantial impairment of a potentially meritorious defense”:
46. To accuse [counsel] of being merely “unprepared” is not
sufficiently specific for establishing a claim of
ineffective assistance of counsel. The only specific acts
or omissions to which Petitioner does point, [counsel’s]
appearance by phone and not having a conference prior to the
commencement of the hearing, do not demonstrate [counsel]
lacked skill, judgment, or diligence, as to result in the
withdrawal or substantial impairment of a potentially
meritorious defense, or any other argument that should have
been presented to the HPA. Further, [counsel] made numerous
objections to testimonies submitted by the victim’s family,
the victim counselor, and prosecutor[.]
(Quotation marks, brackets, and citations omitted) (Emphasis
added).
-16-
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
The court concluded that “the facts alleged in the
Petition, even when taken as true, do not entitle Petitioner to
relief under HRPP Rule 40.” The court denied an evidentiary
hearing on the grounds that the claims submitted by Petitioner
were “patently frivolous” and “without [a] trace of support
either in the record or from other evidence submitted by the
petitioner.”
On August 1, 2011, Petitioner, apparently unaware of
the court’s order dismissing the petition, filed a reply to the
State’s Response to Amended Petition.
II.
On August 8, 2011, Petitioner filed a Notice of Appeal
from the court’s order denying his Rule 40 petition.
Petitioner argued before the ICA that the circuit court
erred in denying his petition “prematurely” without reviewing his
reply to the State’s Response to Amended Petition. Petitioner
also argued that the circuit court violated his due process
rights by failing to hold an evidentiary hearing to determine
whether the HPA exceeded its authority by holding the second
hearing and whether his counsel was ineffective in attending the
hearing via telephone.
On the issue of ineffective assistance of counsel,
Petitioner claimed that at the second hearing, he “asked where
his attorney was at and that he wanted to review all records
before beginning.” Petitioner cited Van Patten v. Deppisch, 434
-17-
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
F.3d 1038 (7th Cir. 2006), in support of his argument that
counsel’s participation via speaker phone was ineffective and
also amounted to a denial of the assistance of counsel.
Petitioner contended that the HPA hearing should have been
continued or at a minimum, Petitioner should have been asked if
he wished to continue without counsel present.
Petitioner also contended that the HPA violated his
rights by withholding certain evidence from him prior to the
second hearing.14 Specifically, Petitioner claimed that he had
not received the letters attached as Exhibits D, E, and F to the
State’s Response to Amended Petition.15 According to Petitioner,
he saw the letters for the first time when they were attached to
the State’s Response.
The State filed its answering brief on January 30,
2012.16
On Petitioner’s first point, the State argued that the
HRPP does not provide for the filing of a reply to an answer to a
Rule 40 petition.
In response to Petitioner’s second point, the State
14
Petitioner’s remaining points of error on appeal before the ICA
are not pertinent to the resolution of this Application and will not be
addressed.
15
Petitioner also stated that he was unaware of the prosecutor’s
letter to the HPA on November 23, 2009, attached as Exhibit “C,” but a
notation on the letter indicated that a copy was sent to defense counsel.
16
On November 3, 2011, the Department of the Attorney General of the
State of Hawai#i filed a Notice of Intent Not to File Answering Brief, which
explained that the Department of the Prosecuting Attorney for the County of
Maui would respond on behalf of the State as to all claims.
-18-
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
argued that the HPA did not abuse its discretion in holding a
second minimum term hearing because the HPA has “broad discretion
in establishing minimum terms” and Complainant had a right to be
heard under HRS § 706-669(7). The State acknowledged that HRS §
706-669 “does not specifically . . . allow[] for a second hearing
after a minimum term is set, other than for a reduction” of the
minimum term. Nevertheless, the State argued that “there is no
provision specifically prohibiting what happened in this case,”
and that “[g]iven the facts of this case, the HPA did the right
thing in . . . allowing the victim to participate.” The State
concluded that Petitioner therefore did not raise a “colorable
claim.”
The State further argued that Petitioner’s due process
rights were not violated by the HPA’s holding of the second
minimum term hearing, as Petitioner was given the opportunity to
provide input at the hearing, and was assisted by counsel via
speaker phone. The State also argued that the HPA “gave proper
notice [of the second hearing] to the parties.” However, the
State did not provide a citation to the record on appeal for such
notice and did not describe the nature, type or content of the
notice given. The State concluded that “there was no due process
violation amounting to a colorable claim.”
On Petitioner’s ineffective assistance of counsel
claim, the State argued that counsel was able to sufficiently
represent Petitioner by participating in the second hearing via
-19-
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
speaker phone. The State distinguished this case from the
situation in D’Ambrosio v. State, 112 Hawai#i 446, 146 P.3d 606(App. 2006), where counsel failed to appear before the HPA,
“personally or otherwise.” The State maintained that in this
case, counsel “ably represented” Petitioner by appearing by
speaker phone, as evidenced by counsel’s numerous objections
during the hearing.
The State did not address Petitioner’s third argument
that the HPA wrongfully withheld evidence from him prior to the
second hearing, including the letters attached as Exhibits D-F to
the State’s Response to Amended Petition.
Petitioner filed a reply to the State’s answer.
Petitioner responded that the legislature had not set out a
procedure under HRS § 706-669 for increasing a minimum term
sentence and that the HPA was obligated to abide by the
procedural protections afforded to inmates. Petitioner also
argued that the victim’s input and presence were not “essential
element[s]” for the HPA to set a minimum term under HRS § 706-
669.
In regard to Petitioner’s ineffective assistance of
counsel claim, he argued that “the HPA did not give the
Petitioner the opportunity to speak privately with his attorney
over the phone as Petitioner wanted to discuss various important
matters pertaining to his defense.”
-20-
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
The ICA affirmed the circuit court’s order dismissing
the Rule 40 petition, concluding that “[Petitioner’s] arguments
regarding the [HPA’s] fixing of his minimum term after the second
hearing were patently frivolous and without merit.”17 De La Garza
v. State, No. CAAP-11-0000595 (App. Jul. 20, 2012) (SDO) at 2.
The ICA reasoned that the “[Complainant] was not given notice of
the first hearing and, therefore, was not afforded the
opportunity to appear at the first hearing and present a written
statement or oral comments, in violation of [HRS] § 706-669(7)
(Supp. 2011).” De La Garza, SDO at 2.
The ICA further held that the circuit court did not err
in concluding that Petitioner failed to raise a colorable claim
of ineffective assistance of counsel. Id. at 3-4. The ICA
determined that Petitioner failed to cite and it could not find
any authority for the proposition that “an inmate’s counsel may
not appear by telephone at a minimum term hearing.” Id. The
court held that Petitioner “fail[ed] to argue how counsel’s
appearance by phone, per se, constituted a specific error or
omission reflecting his lack of skill, judgment, or diligence, or
the withdrawal or substantial impairment of a potentially
meritorious defense.” Id. at 4 (quotation marks omitted).
17
The Honorable Daniel R. Foley, the Honorable Katherine G. Leonard,
and the Honorable Lawrence M. Reifurth, presiding.
-21-
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
The ICA concluded that “[Petitioner] waived his
remaining arguments by failing to raise them in the Petition or
[Amended Petition].” Id. (citing HRPP Rule 40(a)(3)).
III.
On September 10, 2012, Petitioner timely filed an
application for writ of certiorari (Application) with this court.
Petitioner maintains on this appeal that the ICA erred by 1)
denying his claim that the HPA violated his rights by holding the
second hearing to accept Complainant’s testimony; and 2) holding
that he waived his claim that the HPA withheld evidence prior to
and during the second hearing because he did not raise the issue
in his Rule 40 petition.18
IV.
A “HRPP Rule 40 petition is an appropriate means to
challenge a minimum term of imprisonment set by the HPA.”
Coulter v. State, 116 Hawai#i 181, 184, 172 P.3d 493, 496 (2007).
“The disposition of an HRPP Rule 40 petition is based on
[findings of fact] and [conclusions of law].” Raines v. State,
79 Hawai#i 219, 222, 900 P.2d 1286, 1289 (1995). “Accordingly, we
review the circuit court’s conclusions of law de novo and
findings of fact for clear error.” Coulter, 116 Hawai#i at 184,
172 P.3d at 496.
18
The remaining questions presented in Petitioner’s Application will
not be addressed in light of our disposition of the Application.
-22-
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
“[J]udicial intervention is appropriate where the HPA
has . . . acted arbitrarily and capriciously so as to give rise
to a due process violation, or otherwise violated the prisoner’s
constitutional rights.” Id. (quotation marks omitted).
V.
Petitioner argues that the ICA erred by holding that he
waived his claim that the HPA violated his right to due process
by withholding evidence from him prior to the second hearing.
Petitioner argued before the ICA that he did not receive a copy
of the three letters sent between Aunt and the HPA prior to the
second hearing, and that he was not aware of these documents
until they were attached as Exhibits D-F to the State’s Response
to Amended Petition. The ICA held that this issue was among the
arguments Petitioner “waived . . . by failing to raise them in
the Petition or [Amended Petition].” De La Garza, SDO at 4.
A.
Article I, section 5 of the Hawai#i Constitution
provides in relevant part that “[n]o person shall be deprived of
life, liberty or property without due process of law[.]”
Procedural due process claims are addressed in two steps: “First,
we must determine whether a ‘liberty’ or ‘property’ interest has
been interfered with by the State; second, we must determine what
specific procedures are required to satisfy due process.” State
v. Bani, 97 Hawai#i 285, 293, 36 P.3d 1255, 1263 (2001).
-23-
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
1.
The HPA is responsible for “fixing the minimum term of
imprisonment to be served before the prisoner shall become
eligible for parole” based on the minimum term hearing. HRS §
706-669(1). The HPA minimum term hearing is “a critical stage of
the criminal proceeding” that “undoubtedly affects [the
convicted] person’s substantial rights.” D’Ambrosio v. State,
112 Hawai#i 446, 464-66, 146 P.3d 606, 624-26 (App. 2006)
(internal quotation marks and citations omitted). This court has
held that due process protections apply to the HPA’s
determination of the minimum term.
[T]he determination of a prisoner’s minimum term is part of
the parole process. Therefore, the same standards should
apply to judicial review of both an HPA decision denying
parole and an HPA decision establishing a minimum term. In
both cases, judicial intervention is appropriate where the
HPA has failed to exercise any discretion at all, acted
arbitrarily and capriciously so as to give rise to a due
process violation, or otherwise violated the prisoner’s
constitutional rights.
Williamson v. Hawai#i Paroling Auth., 97 Hawai#i 183, 195, 35 P.3d
210, 222 (2001) (footnote omitted) (emphases added). Therefore,
the HPA was obligated to comply with the due process clause of
the Hawai#i Constitution in determining Petitioner’s minimum term
of imprisonment.
2.
“Once it is determined that due process applies, the
question remains what process is due.” Morrissey v. Brewer, 408
U.S. 471, 481 (1972). Hawai#i courts have “repeatedly recognized
-24-
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
that due process is not a fixed concept requiring a specific
procedural course in every situation. Instead, due process is
flexible and calls for such procedural protections as the
particular situation demands.” Bani, 97 Hawai#i at 296, 36 P.3d
at 1266 (internal quotation marks, brackets and citations
omitted). However, “[a]t its core, procedural due process of law
requires notice and an opportunity to be heard at a meaningful
time and in a meaningful manner before governmental deprivation
of a significant liberty interest.” Id. at 293, 36 P.3d at 1263.
In Morrissey v. Brewer, the U.S. Supreme Court
determined that in the context of parole revocation, the minimum
requirements of due process include “written notice of the
claimed violations of parole,” as well as “disclosure to the
parolee of [the] evidence against him” and “a written statement
by the factfinders as to the evidence relied on and reasons for
revoking parole.” 408 U.S. at 488-89 (emphasis added).
Specifically in the context of minimum term hearings,
the Utah Supreme Court has held that due process “requires that
the inmate know what information the [Parole] Board will be
considering at the [original parole grant] hearing and that the
inmate know soon enough in advance to have a reasonable
opportunity to prepare responses and rebuttal of inaccuracies.”
Labrum v. Utah State Bd. of Pardons, 870 P.2d 902, 909 (Utah
-25-
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
1993).19 In Labrum, the parole board did not disclose to the
petitioner any of the adverse materials and information it would
be considering at the hearing. Id. at 904. These materials
included letters from the victim’s family and “other information
Labrum and his counsel believed would have been helpful in
preparing rebuttal to the allegations against him.” Id. Based
on this nondisclosure of information, the court granted the
petitioner’s petition for an extraordinary writ directing the
board to disclose the board’s file on the petitioner, vacate its
determination of his release date, and rehear his parole request.
Id. at 903, 914.
In reaching its decision, the Labrum court emphasized
the importance of the minimum term hearing, explaining that “an
19
Utah, like Hawai#i, has in place an indeterminate sentencing
scheme in which the Board of Pardons determines at the “original parole grant
hearing” the actual term that the inmate will serve in prison. Labrum, 870
P.2d at 906-09. The trial judge imposes the statutorily prescribed range of
time of imprisonment and the Board of Pardons “determines the actual number of
years a defendant is to serve.” Foote v. Utah Bd. of Pardons, 808 P.2d 734,
735 (Utah 1991). The Board of Pardons has adopted sentence and release
guidelines that are “widely used . . . to estimate the time a particular
defendant should be imprisoned based on the circumstances of the case.”
Labrum, 870 P.2d at 907.
The Utah statute that refers to “original parole grant hearings”
is substantially similar to HRS § 706-669(1), and provides:
The Board of Pardons and Parole shall determine within six
months after the date of an offender’s commitment to the
custody of the Department of Corrections, for serving a
sentence upon conviction of a felony or class A misdemeanor
offense, a date upon which the offender shall be afforded a
hearing to establish a date of release or a date for a
rehearing, and shall promptly notify the offender of the
date.
U TAH C ODE A NN . § 77-27-7(1). After the board makes its initial determination of
the actual term of imprisonment the inmate is to serve, the “Board retains the
flexibility to reassess its original decision” based on factors such as the
inmate’s behavior in prison. Labrum, 870 P.2d at 908-09.
-26-
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
inmate has a reasonable expectation that the term decided upon at
the . . . hearing will turn out in fact to be his or her actual
prison term,” or “[a]t the very least, [that] it will operate as
a benchmark to assess future status.” Id. at 909. The court
reasoned that the timely disclosure of information to the inmate
relates to “fundamental fairness” and has the effect of
“minimizing error and preserving the integrity of the process
itself.” Id. In addition, “[a]ccurate sentencing and parole
decisions . . . further society’s interest in ensuring that
offenders will be returned to society neither sooner nor later
than is appropriate.” Id. at 910 (quoting Note, A Proposal to
Ensure Accuracy in Presentence Investigation Reports, 91 YALE L.J.
1225, 1241-42 (1982)) (quotation marks omitted).
The Washington Supreme Court has also held that “at the
setting of minimum terms, minimum due process requires that an
inmate be advised of adverse information in his or her parole
file.” In re Sinka, 599 P.2d 1275, 1281-82 (Wash. 1979) (en
banc). The court was primarily concerned with the possibility
that the Parole Board would rely on inaccurate or erroneous
information in the inmate’s file that the inmate did not have an
opportunity to correct. Id. The court reasoned that because
“the data on which the Board acts is not developed through an
open adversary confrontation, its accuracy cannot be assured
unless the prisoner has access to the relevant information in his
file,” and “[b]oth the inmate and the state have an interest in
-27-
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
ensuring that the setting of minimum terms is based on accurate
information and informed discretion.”20 Id. at 1281 (quotation
marks omitted).
Hawai#i cases related to sentencing, probation and
minimum term hearings also reflect a concern that decisions are
predicated on accurate factual information of which the defendant
has adequate notice.
In the context of probation revocation, this court has
held that “the minimum requirements of due process . . . require
in relevant part that a probationer be given written notice of
the claimed violations of probation, disclosure of evidence
against him, and a written statement by the factfinder as to the
evidence relied on and the reasons for revoking probation.”
State v. Durham, 125 Hawai#i 114, 126, 254 P.3d 425, 437 (2011)
(quotation marks, brackets, ellipses and citations omitted). The
Durham court explained that “[t]he disclosure of facts to the
20
The Sinka court considered the parole board’s procedures for
setting minimum terms pursuant to W ASH . R EV . C ODE (RCW) Chapter 9.95. 599 P.2d
at 1277.
Subsequently, the Washington legislature adopted the Sentencing
Reform Act of 1981 (SRA), codified in RCW Chapter 9.94A, “which replaced
Washington’s former indeterminate sentencing regime with determinate
sentencing.” State v. Clarke, 134 P.3d 188, 191 (Wash. 2006) (en banc).
The SRA redesignated the Board of Prison Terms and Paroles as the
Indeterminate Sentence Review Board (ISRB). RCW 9.95.001. The ISRB continues
to have jurisdiction over “persons convicted of crimes committed prior to July
1, 1984.” RCW 9.95.009(2). The ISRB is, however, required to “make decisions
reasonably consistent with” the SRA’s “purposes, standards, and sentencing
ranges” and “the minimum term recommendations of the sentencing judge and
prosecuting attorney.” Id.In In re Whitesel, the Washington Supreme Court held that the due
process requirements established in Sinka “also apply when the [ISRB] sets and
redetermines minimum terms.” 763 P.2d 199, 203-04 (Wash. 1988) (en banc)
(footnote omitted).
-28-
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
parties is based on the proposition that the court must have
correct information to render a just sentence.” Id. at 124, 254
P.3d at 435. “In any system which vests discretion in the
sentencing authority, it is necessary that the authority have
sufficient and accurate information so that it may rationally
exercise its discretion.” Id. (quoting State v. Lau, 73 Haw.
259, 262, 831 P.2d 523, 525 (1992)) (quotation marks omitted).
Similarly, the court explained that the requirement
that the defendant be given “notice of the grounds upon which
probation is sought to be revoked” is intended to give the
defendant an “opportunity to object, rebut, or otherwise dispute
the factual allegations.” Id. at 124-25, 254 P.3d at 435-36.
See State v. Wong, 73 Haw. 81, 829 P.2d 1325 (1992) (holding that
defendant was statutorily entitled to be informed of grounds for
court’s revocation of probation under HRS § 706-625(b), vacating
order revoking probation and remanding “for rehearing upon the
State’s providing proper notice”).
In State v. Paaaina, 67 Haw. 408, 410, 689 P.2d 754,
757 (1984), although the court held that a defendant does not
have a constitutional or statutory right to examine a probation
officer’s sentencing recommendation, the court concluded that the
defendant is entitled to “have access to all factual information
used in sentencing.” Thus, the court held that “it is incumbent
upon the probation officer to carefully draft the recommendation
-29-
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
letter” so that it is “based only on facts contained in the pre-
sentence report.” Id. (citing HRS §§ 706-602 and 706-604). “If
the judge finds new factual information in the recommendation
letter, it is incumbent upon the judge to make it available to
the defendant.” Id. (emphasis added).
This underlying concern for predicating sentencing
decisions on accurate information was also present in D’Ambrosio
v. State, 112 Hawai#i 446, 466, 146 P.3d 606, 626 (App. 2006), in
which the court recognized that “the HPA minimum-term hearing is
a critical stage of the criminal proceeding” at which a convicted
person is constitutionally entitled to be represented by counsel.
In so concluding, the court considered the critical nature of the
minimum term hearing and the “significant discretionary power”
exercised by the HPA in setting the minimum term of imprisonment.
Id. at 464-66, 146 P.3d at 624-26. The court explained that
under the statutory scheme, “it is the HPA, not the courts, that
exercises most of the State’s felony sentencing discretion.” Id.
at 464, 146 P.3d at 624. The court indicated that the
significance of counsel’s presence at the minimum term hearing
was based on the same concern for accuracy expressed in Durham
and Paaaina: “a convicted person is constitutionally entitled to
be represented at the hearing by counsel who can ensure that the
minimum sentence imposed by the HPA is not predicated on
misinformation or misreading of court records, which is a
-30-
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
requirement of fair play.” Id. (quotation marks omitted)
(emphasis added).
The considerations articulated by the D’Ambrosio court
demonstrate the need for the convicted person to have access to
all of the information considered by the HPA in making the
critical “first determination of the actual term the inmate is to
serve in prison.” Labrum v. Utah State Bd. of Pardons, 870 P.2d
902, 908 (Utah 1993). As recognized in D’Ambrosio, the HPA makes
this determination by considering a wide variety of
circumstances, as set forth in the HPA Guidelines. The HPA is
also statutorily required to “obtain a complete report regarding
the prisoner’s life before entering the institution and a full
report of the prisoner’s progress in the institution” prior to
holding the minimum term hearing. HRS § 706-669(2). Without
access to the potentially wide range of information being
considered by the HPA, the convicted person may be unable to
prepare a response and rebuttal to any adverse information being
considered. In addition, the convicted person may be unable to
correct any errors contained in the “complete report” obtained by
the HPA. Thus, nondisclosure of such information may infringe on
the convicted person’s due process right to fairness and a
meaningful opportunity to be heard.
In light of the critical nature of the HPA’s
determination of the prisoner’s minimum term of imprisonment, due
-31-
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
process under Article I, section 5 of the Hawai#i Constitution
requires that the prisoner have timely access to all of the
adverse information contained in the HPA file. The HPA must
disclose such information “soon enough in advance” that the
inmate has a “reasonable opportunity to prepare responses and
rebuttal of inaccuracies.” Labrum, 870 P.2d at 909. In the
event that the HPA file of the inmate includes sensitive, or
confidential personal information, the inmate is entitled to
disclosure of a reasonable summary thereof.21
Such disclosure ensures that the HPA will set the
inmate’s minimum term of imprisonment based on accurate
information and that the inmate is given reasonable notice and a
meaningful opportunity to be heard on the issue of the minimum
term. See HRS § 706-669(3).
In this case, the record indicates that Petitioner did
not receive the evidence in the HPA file prior to the second
hearing. The copies of the letters attached as Exhibits D-F to
the State’s Response to Amended Petition did not contain
notations indicating that Petitioner, defense counsel, or the
State received copies. The time stamps on the HPA’s January 20,
2010 letter to Aunt (Exhibit E) and Aunt’s March 10, 2010 letter
to the HPA (Exhibit F) indicated that the prosecutor’s office did
21
Where the relevant case file contains sensitive, or confidential
personal information, the HPA may in its discretion take “suitable steps to
withhold the identity of sources and prepare summaries of the information for
the inmate’s use rather than providing copies of the actual documents.”
Labrum, 870 P.2d at 910.
-32-
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
not receive the documents until July 12, 2011, eight days prior
to the filing of the State’s Response to Amended Petition. In
addition, the State did not claim in its Rule 40 pleadings or its
answering brief to the ICA, that Petitioner or defense counsel
had received copies of the documents.
Furthermore, in Aunt’s two letters to the HPA, Aunt
requested that the HPA “reconsider” the eighteen month minimum
sentence, and provided the HPA with a written statement of her
anticipated testimony for the second hearing. The HPA
specifically informed Aunt that her December 15, 2009 letter
requesting a second hearing and the information provided therein
had “been made a part of [Petitioner’s] case file.” However,
there is no indication in the record that the HPA disclosed the
contents of Petitioner’s case file to Petitioner prior to the
second hearing. Additionally, at the hearing, when Aunt spoke
and alleged that Petitioner had made certain statements to a
cellmate, defense counsel expressed surprise, stating, “Where is
this coming from?” Aunt’s response was, “I did put this in my
letter.” These facts suggest that Petitioner may not have been
provided all of the information in his HPA file.
Despite Petitioner’s factual and legal basis for
asserting his due process claim, the ICA, citing HRPP Rule
40(a)(3), held that this issue was among the arguments Petitioner
“waived . . . by failing to raise them in the Petition or
-33-
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
[Amended Petition].” De La Garza, SDO at 4. HRPP Rule 40(a)(3)
provides that “Rule 40 proceedings shall not be available and
relief thereunder shall not be granted where the issues sought to
be raised . . . were waived.” The rule defines waiver as
follows:
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
petitioner is unable to prove the existence of extraordinary
circumstances to justify the petitioner’s failure to raise
the issue.
Id. “There is a rebuttable presumption that a failure to appeal
a ruling or to raise an issue is a knowing and understanding
failure.” Id.This court has held that a claim of ineffective
assistance of counsel is not considered “waived” for the purposes
of a HRPP Rule 40 petition if there was “no realistic
opportunity” for the petitioner to raise the claim in the
proceedings specified by the rule. See Briones v. State, 74 Haw.
442, 459, 848 P.2d 966, 975 (1993) (petitioner unable to raise
ineffective assistance of counsel issue on direct appeal where
petitioner was represented by same counsel at trial and on direct
appeal); Fragiao v. State, 95 Hawai#i 9, 16, 18 P.3d 871, 878
(2001) (finding no waiver of claim asserting trial counsel’s
conflict of interest where petitioner was unaware of conflict
until new appellate counsel was appointed).
-34-
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
In this case, Petitioner would not have had any
opportunity to raise the issue of the HPA’s nondisclosure of
evidence in “any other proceeding actually conducted,” if he was
not aware of the existence of the letters sent between Aunt and
the HPA prior to the second hearing until they were filed with
the State’s Response to Amended Petition as Exhibits D-F.22
Additionally, Petitioner did not have the opportunity to raise
this claim “in a prior proceeding actually initiated under this
rule,” as Petitioner did not file a Rule 40 petition prior to the
instant petition. Thus Petitioner presented facts sufficient to
rebut the presumption that he knowingly and understandingly
waived the issue, and the ICA erred in holding that the issue was
waived on appeal.
“In the absence of sufficient evidence in the record on
appeal, an appellate court should remand for the development of
such a record.” Briones, 74 Haw. at 466 n.17, 848 P.2d at 978
22
Petitioner also had a very limited time within which to amend his
petition after he became aware of the three letters. At the time of the Rule
40 proceedings, Petitioner was being held in custody at a facility in Arizona
and he was representing himself pro se. The circuit court filed its findings
of fact, conclusions of law and order denying the petition eight days after
the State filed its Response to Amended Petition and prior to receiving
Petitioner’s reply.
HRPP Rule 40 currently does not contain a provision allowing the
petitioner to file a reply to the respondent’s answer. It is noted that Rule
28(d) (2010) of the Hawai#i Rules of Appellate Procedure (HRAP) provides that
an appellant may file a reply brief within fourteen days after service of the
appellee’s answering brief. HRAP Rule 40.1(e) (2012) also provides that
within seven days after a response to an application for writ of certiorari is
filed, any party may file and serve a reply.
Thus we suggest that the Standing Committee on Penal Rules may
consider whether an amendment that allows for a reply to a HRPP Rule 40 answer
would be appropriate.
-35-
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
n.17 (citation omitted). See D’Ambrosio v. State, 112 Hawai#i
446, 466, 146 P.3d 606, 626 (App. 2006) (concluding that
colorable claim of denial of the right to counsel was presented
and remanding for evidentiary hearing where appellate court was
unable to confirm petitioner’s claims due to lack of relevant
record and transcripts). Thus, we remand for a Rule 40
evidentiary hearing in which the court is directed to address
whether Petitioner’s due process right to disclosure of adverse
materials was violated by the HPA.
VI.
In light of our decision to remand the case for an
evidentiary hearing, we also address the significant question of
whether Petitioner received adequate notice of the nature and
purpose of the second hearing. As stated, due process requires
notice and a meaningful opportunity to be heard. State v. Bani,
97 Hawai#i 285, 293, 36 P.3d 1255, 1263 (2001). See HRS § 706-
669(3) (providing that inmates have the right to “reasonable
notice of the [minimum term] hearing” and the opportunity to be
heard on the issue of the minimum term to be served).
In this case, the record is unclear as to whether
Petitioner received adequate notice of the nature and purpose of
the second hearing. Following the HPA’s decision to increase
Petitioner’s minimum term from eighteen months to five years, the
HPA explained in its February 22, 2011 letter to Petitioner that
-36-
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
the second hearing was a “re-opened” hearing to permit the
prosecutor, Complainant and her representative(s) to appear and
give statements. The HPA informed Petitioner that “[a]s a result
of information provided by both[] the Office of the Prosecuting
Attorney, and the victims at the March 19, 2010 hearing, the
parole board amended their previous decision of October 12,
2009.” (Emphasis added).
However, the purpose of the second hearing was not
clear prior to the hearing, as reflected in the statements of its
participants.
The ambiguity concerning the purpose of the second
hearing began with the prosecutor’s November 23, 2009 letter to
the HPA, which requested that the second hearing be held for the
purpose of permitting Complainant and her family to appear and
submit statements addressing Petitioner. The prosecutor did not
suggest that Petitioner’s minimum term should be reconsidered or
amended on the basis that Complainant and her family did not
appear or submit statements for the first hearing due to the
“error in communication” with the prosecutor’s office. To the
contrary, the prosecutor acknowledged that the minimum term had
already been set.
In Aunt’s December 15, 2009 letter to the HPA, however,
Aunt acknowledged that the minimum term had been set but
requested that the HPA “reconsider” the minimum term and
-37-
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
specifically requested that the “reconsidered” minimum term be
“at least 3.4 years.” The HPA initially indicated that the first
minimum term would not be reconsidered, as the HPA responded to
Aunt by assuring her that the minimum sentence did not mean that
Petitioner would be paroled at that time and informing her that
she could resubmit a letter for consideration prior to
Petitioner’s parole hearing.
Even as the second hearing commenced, it was unclear
whether the second hearing was anything other than a procedural
step to permit Complainant to appear and give testimony.
Chairman Tufono opened the second hearing by explaining that it
had been convened in order to give Complainant and Aunt an
opportunity to be heard. Defense counsel agreed with this
characterization, stating, “We went through all of their
statements and all the reports and everything else, but, I mean,
I’m sure they have a right to talk.”
However, as the hearing developed, the primary focus of
the hearing became assessing the “fairness” of the initial
minimum term. When Aunt testified, she asked the HPA to
“[p]lease make it clear to [Petitioner] that he cannot do what he
did to [Complainant] and walk out of jail in 1.6 months, although
that is even more time than he thought he would do.”
The prosecutor also made a statement attacking the
initial minimum term, arguing that based on his “19 years” of
-38-
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
experience as a prosecutor, Petitioner’s minimum term “does not
feel right” and “does not feel as though just punishment . . . is
being meted out.” The prosecutor concluded by asking the HPA to
“reconsider the previously set minimum in this case.” This
approach appears to have been a significant departure from the
prosecutor’s November 23, 2009 letter to the HPA, which had
focused on Complainant and her family’s desire to appear before
the HPA and did not suggest that the prosecutor’s office was
dissatisfied with either its participation in the first hearing
or with the First Minimum Term Order.
Thus when the prosecutor stated at the beginning of the
second hearing that he was present “in a capacity to assist”
Complainant and to answer any of the HPA’s questions, defense
counsel commented that he was “uncomfortable” with that. Later
when the prosecutor gave his statement, defense counsel expressed
surprise and frustration at the prosecutor’s comments,
interjecting, “This is an outrageous argument,” and “This is
unbelievable. How does this come in?”
Additionally, the ambiguity regarding the purpose of
the second minimum term hearing could not have been resolved
based on a consideration of the governing statute, HRS § 706-669.
The ICA held that “[t]he HPA did not err by holding the
second hearing because the victim was not given notice of the
first hearing and, therefore, was not afforded the opportunity to
-39-
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
appear at the first hearing and present a written statement or
oral comments, in violation of [HRS] § 706-669(7).” De La Garza,
SDO at 2 (emphasis added). This suggests that the first hearing
and the HPA’s First Minimum Term Order violated HRS § 706-669 as
a result of the apparent lack of notice to Complainant regarding
the first hearing. In addition, the ICA’s holding implies that
Petitioner and defense counsel had adequate notice, based on the
statute, that the second hearing was being held for the purpose
of re-opening and amending Petitioner’s initial minimum term.
First, as the State concedes, HRS § 706-669 does not
expressly provide for the HPA to subsequently increase a minimum
term fixed by its order.23 Thus, Petitioner would not have had
notice of the nature or purpose of the second hearing under the
express terms of the statute.
Second, while HRS § 706-669(7) (Supp. 2010) provides
that “[t]he [minimum term] hearing shall be opened to victims or
their designees or surviving immediate family members who may
present a written statement or make oral comments,”24 the statute
does not provide that the victim’s non-appearance or lack of
23
HRS § 706-669(5) (Supp. 2010) only provides that “[a]fter sixty
days notice to the prosecuting attorney, the authority in its discretion may
reduce the minimum term fixed by its order pursuant to subsection (1).”
(Emphasis added).
24
The statute was amended in 1996 to provide for victims or their
representatives to have the opportunity to comment at minimum term hearings.
Supplemental Commentary on HRS § 706-669 (Supp. 2010). The amendment was
intended to codify the HPA’s existing practice of permitting victims or their
representatives to speak at the hearings. Id.
-40-
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
testimony at a hearing has the effect of invalidating actions
taken by the HPA pursuant to such hearing.25 Accordingly, the
fact that Complainant was not present at Petitioner’s first
hearing due to an “error in communication” did not render the
hearing or the resulting minimum term order a “violation” of HRS
§ 706-669(7).
Third, there is no indication that the first hearing
was closed to Complainant or her representatives in a manner that
would amount to a “violation” of HRS § 706-669(7). Therefore,
Petitioner and defense counsel had no reason to know, based on
HRS § 706-669, that Petitioner’s initial minimum term was subject
to being re-opened and “amended” due to Complainant’s apparent
lack of notification of the first hearing.
Based on the record, a question arises as to whether
Petitioner received sufficient notice of the purpose and nature
of the second hearing. As noted, there was a lack of clarity as
to the purpose of the second hearing and its relationship to the
first hearing. Even on appellate review, it is unclear whether
the second hearing should be characterized as an entirely new and
separate hearing from the first hearing, a re-opened hearing, or
a reconsideration of the first hearing. Accordingly, the circuit
25
Petitioner noted in his reply brief to the ICA that the “victim’s
input and/or presence is not an essential element for the HPA” to determine an
inmate’s minimum term pursuant to HRS § 706-669. Otherwise, Petitioner
argued, “the thousands of minimum term hearings held for defendants by the HPA
without the input or presence [of] the victim” resulted in minimum term orders
that are not “final judgments” and are open to challenge at any time.
-41-
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
court is also directed on remand to address the issue of whether
Petitioner received adequate notice of the nature of the second
hearing. See Briones v. State, 74 Haw. 442, 466 n.17, 848 P.2d
966, 978 n.17 (1993); D’Ambrosio v. State, 112 Hawai#i 446, 466,
146 P.3d 606, 626 (App. 2006).
VII.
As stated, the HPA minimum term hearing is a “critical
stage of a criminal proceeding” at which “a convicted person is
constitutionally entitled to be represented . . . by counsel[.]”26
D’Ambrosio, 112 Hawai#i at 466, 146 P.3d at 626.
Petitioner maintained throughout the Rule 40
proceedings and his appeal to the ICA that his constitutional
right to effective assistance of counsel and his right to counsel
were violated by defense counsel’s participation in the second
hearing via telephone.27 The ICA held that it was aware of no
authority “stating that an inmate’s counsel may not appear by
telephone at a minimum term hearing” and affirmed the circuit
court’s denial of this claim. De La Garza, SDO at 3-4. In
support of its determination, the ICA explained that defense
26
In addition, HRS § 706-669(3)(b) provides that the inmate shall
“be permitted to be represented and assisted by counsel at the hearing.”
27
In Hawai#i, in order to show ineffective assistance of counsel,
the defendant has the burden of establishing “1) that there were specific
errors or omissions reflecting counsel’s lack of skill, judgment, or
diligence; and 2) that such errors or omissions resulted in either the
withdrawal or substantial impairment of a potentially meritorious defense.”
State v. Aplaca, 74 Haw. 54, 66-67, 837 P.2d 1298, 1305 (1992) (footnote
omitted).
-42-
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
counsel “actively participated in the proceedings, including
voicing numerous objections.” Id. at 4.
However, active participation in the proceeding does
not itself demonstrate that counsel was not prevented by the
phone arrangement from providing the full benefit of counsel’s
skills. In Van Patten v. Deppisch, 434 F.3d 1038 (7th Cir.
2006), rev’d, 552 U.S. 120 (2008), the court articulated numerous
reasons for its determination that defense counsel’s
participation in a plea hearing via speaker phone, in the
circumstances of that case, “made it impossible for [the
petitioner] to have the ‘assistance of counsel’ in anything but
the most perfunctory sense.”28 434 F.3d at 1043. In particular,
the court emphasized that because of the phone arrangement,
“[u]nlike the usual defendant in a criminal case, [the defendant]
could not turn to his lawyer for private legal advice, to clear
up misunderstandings, to seek reassurance, or to discuss any
last-minute misgivings.” Id.In addition, the court noted that “[o]ver a phone line,
it would be all too easy for a lawyer to miss something.” Id. at
28
The Seventh Circuit’s decision to grant the petitioner’s writ of
habeas corpus was reversed by the Supreme Court, which found that the
petitioner failed to establish that the state court unreasonably applied
clearly established federal law by denying the petitioner’s ineffective
assistance of counsel claim pursuant to Strickland v. Washington, 446 U.S. 668(1984). Wright v. Van Patten, 552 U.S. 120, 125-26 (2008). The Court
explained, “Our precedents do not clearly hold that counsel’s participation by
speaker phone should be treated as a ‘complete denial of counsel,’ on par with
total absence.” Id. at 125. The Court expressly left its “consideration of
the merits of telephone practice . . . for another day.” Id. at 126.
-43-
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
1045. For example, counsel’s ability to represent the defendant
would suffer from counsel’s inability to “detect and respond to
cues from his client’s demeanor that might have indicated he did
not understand certain aspects of the proceeding, or that he was
changing his mind.” Id. at 1043. Furthermore, the court was
concerned that due to the phone arrangement, “[i]f [the
petitioner] wished to converse with his attorney, anyone else in
the courtroom could effectively eavesdrop.” Id. The court noted
that “[n]o advance arrangements had been made for a private line
in a private place, and even if one could ‘perhaps’ have been
provided, it would have required a special request by [the
petitioner] and, apparently, a break in the proceedings.” Id.
The court thus concluded that “the arrangements under which the
hearing was conducted, with defendant and counsel unable to see
or communicate privately with each other,” prevented the attorney
“by . . . design . . . from providing the full benefit of his
skills[.]” Id. at 1044.
Although we need not decide whether defense counsel’s
telephone participation in this case constituted a violation of
Petitioner’s right to counsel or right to effective assistance of
counsel, as the issue was not raised in the Application, we note
that many of the concerns articulated by the Van Patten court
were also present in this case.
-44-
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
For instance, Petitioner was not asked whether he
objected to counsel’s participation by speaker phone or preferred
to reschedule the hearing to another date. Petitioner was also
not informed that he had the option of conferring privately with
counsel during the hearing.
Furthermore, while Van Patten involved a plea hearing
with no witnesses, in this case witnesses were present at the
second minimum term hearing and the record indicates that
counsel’s representation of Petitioner may have been affected
because of his phone participation. Petitioner was not given an
opportunity to confer privately with counsel at any time during
the proceedings. When Aunt made several accusations regarding
Petitioner’s post-sentencing conduct, it appeared that defense
counsel was not expecting such accusations and considered the
remarks to be serious allegations. Counsel interjected
objections and twice stated that he wished he could be present at
the hearing to question Aunt regarding the accusations. Despite
the potentially damaging nature of Aunt’s allegations of
Petitioner’s post-sentencing conduct, Petitioner and defense
counsel were not given an opportunity to privately discuss how to
respond to the allegations. In addition, Petitioner was not
given an opportunity to consult privately with counsel about
whether to address Complainant at the end of the hearing and to
discuss the subject matter of his statement.
-45-
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
Moreover, the right to counsel includes the defendant’s
right to confer with counsel. State v. Mundon, 121 Hawai#i 339,
367, 219 P.3d 1126, 1154 (2009). In Mundon, the court held that
“a criminal defendant has a constitutional right to confer with
counsel at all stages of his case, including recesses taken
during his testimony.” Id. Accordingly, “preventing a defendant
from conferring with his counsel during a recess of any length
would . . . deny his right to assistance of counsel[.]”29 Id.See also State v. Ulestad, 111 P.3d 276, 278-79 (Wash. Ct. App.
2005) (“defendant’s right to continuously consult with his
counsel during trial” was violated, where counsel was in
adjoining room with child witness and defendant was not provided
with method of constant communication with counsel).
Thus, while we need not address Petitioner’s right to
effective assistance of counsel or right to counsel claims in
this case, nevertheless counsel’s representation of a client by
phone at a critical stage of the criminal proceeding should not
prevent counsel from providing the full benefit of counsel’s
skills and guidance at a time when they may be most needed.
29
The Mundon court clarified that the defendant’s right to confer
with counsel applies “during a routine recess taken during trial proceedings,
. . . except when a request for a non-routine recess for the purposes of
conferring with counsel would, in the discretion of the trial court, interfere
with the orderly and expeditious progress of the trial.” Id. at 368, 219 P.3d
at 1155 (italics in original) (footnote omitted). The dissenting opinion in
Mundon would have held that the right to counsel applies during routine
recesses, without inquiry into the “need” for attorney-client consultation and
without conditioning such consultation upon the defendant’s objection, request
or concern. Id. at 372, 219 P.3d at 1159 (Acoba, J., dissenting).
-46-
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
VIII.
Based on the foregoing, we conclude that the circuit
court erred in denying Petitioner’s HRPP Rule 40 petition without
an evidentiary hearing. Accordingly, the ICA erred in affirming
the circuit court’s July 28, 2011 order denying the petition.
The August 23, 2012 judgment of the ICA and the circuit court’s
order are vacated and the case is remanded to the circuit court
to conduct an evidentiary hearing consistent with this opinion.
/s/ Mark E. Recktenwald
/s/ Paula A. Nakayama
/s/ Simeon R. Acoba, Jr.
/s/ Sabrina S. McKenna
/s/ Richard W. Pollack
-47-