Okudara v. State

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
09-JUN-2022
07:56 AM
Dkt. 48 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
JOSIAH OKUDARA, Petitioner-Appellant,
v.
STATE OF HAWAI#I, Respondent-Appellee
APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT
(CASE NOS. 2PC141000359; 2PR191000010)
SUMMARY DISPOSITION ORDER
(By: Leonard, Presiding Judge, Hiraoka and Nakasone, JJ.)
Petitioner-Appellant Josiah Okudara (Okudara), self-
represented, appeals from the April 21, 2020 "Findings of Fact,
Conclusions of Law, and Order Denying Petition for Correction of
Illegal Sentence, Correction of Pre-Sentence Credit and Setting
of Minimum Sentence Term" (Order), filed by the Circuit Court of
the Second Circuit (Circuit Court).1
On appeal, Okudara raises a single point of error:
whether the requirement that the Hawai#i Paroling Authority (HPA)
"set forth a written justification or explanation (beyond simply
an enumeration of any or all of the broad criteria considered)
when it determines that the minimum term of imprisonment for the
felony offender is to be set at a Level II or Level III
punishment," declared in Lewi v. State, 145 Hawai#i 333, 348-49,
452 P.3d 330, 345-46 (2019), retroactively applies to him, thus
1
The Honorable Richard T. Bissen, Jr. presided.
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
requiring the HPA to re-issue a minimum term in accordance with
Lewi.2 3
Upon careful review of the record and the briefs
submitted by the parties and having given due consideration to
the arguments advanced and the issues raised, as well as the
relevant statutory and case law, we resolve Okudara's point of
error as follows, and affirm.
"[W]e review the circuit court's conclusions of law de
novo and findings of fact for clear error." Coulter v. State,
116 Hawai#i 181, 184, 172 P.3d 493, 496 (2007) (citation
omitted).
During the pendency of Okudara's underlying Hawai#i
Rules of Penal Procedure (HRPP) Rule 40 petition, the Hawai#i
Supreme Court issued Lewi, which inter alia, requires the HPA to
include "written justification or explanation" in its minimum
term orders that designate offenders at a Level II or III
punishment. Lewi, 145 Hawai#i at 348-49, 452 P.3d at 345-46.
In his HRPP Rule 40 petition, Okudara did not take
issue with the HPA's explanation of his minimum term; as such,
the Circuit Court did not address the issue. Additionally, while
the petition was pending before the Circuit Court, Okudara did
not file an amended petition to argue that Lewi applied to his
minimum term order; as such, the Circuit Court did not address
the issue. And, Okudara did not seek reconsideration of the
Order to argue for Lewi's applicability; as such, the Circuit
Court did not address the issue. Thus, we decline to consider
2
Okudara's opening brief does not comply with Hawai #i Rules of
Appellate Procedure (HRAP) Rule 28(b)(4). However, to promote access to
justice, documents filed by self-represented litigants should be interpreted
liberally, and self-represented litigants should not automatically be
foreclosed from appellate review because they fail to comply with court rules.
Erum v. Llego, 147 Hawai#i 368, 380-81, 465 P.3d 815, 827-28 (2020).
Accordingly, we address what we discern to be Okudara's argument.
3
Okudara also claims that "the HPA issued Appellant's minimum term
in violation of the United States Supreme Court's ruling in Alleyne v. United
States, 133 S.Ct. 2151 (2013)." We disregard this statement because Okudara's
opening brief presents no discernible argument on it. See Kaho #ohanohano v.
Dep't of Hum. Servs., State of Haw., 117 Hawai #i 262, 297 n.37, 178 P.3d 538,
573 n.37 (2008) (stating that supreme court will "disregard a particular
contention if the appellant makes no discernible argument in support of that
position"); see also HRAP Rule 28(b)(7) ("Points not argued may be deemed
waived.").
2
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Lewi's applicability for the first time on appeal. State v.
Hoglund, 71 Haw. 147, 150, 785 P.2d 1311, 1313 (1990) (citation
omitted) ("Generally, the failure to properly raise an issue at
the trial level precludes a party from raising that issue on
appeal.").
If Okudara believes an issue with his minimum term
order remains, he may file another HRPP Rule 40 petition
addressing the same, including, without limitation, the
application of Lewi.4
For the foregoing reasons, the April 21, 2020 "Findings
of Fact, Conclusions of Law, and Order Denying Petition for
Correction of Illegal Sentence, Correction of Pre-Sentence Credit
and Setting of Minimum Sentence Term," filed by the Circuit Court
of the Second Circuit, is affirmed.
DATED: Honolulu, Hawai#i, June 9, 2022.
On the briefs:
/s/ Katherine G. Leonard
Josiah Okudara Presiding Judge
Self-represented
Petitioner-Appellant /s/ Keith K. Hiraoka
Associate Judge
Lisa M. Itomura
Deputy Attorney General /s/ Karen T. Nakasone
for Respondent-Appellee Associate Judge
4
We express no opinion on the merits of such a petition, in the
event it is filed.
3