On June 21, 2011, the Intermediate Court of Appeals issued orders dismissing the appeals in State v. Shine, NO. CAAP-11-0000113 (unpublished) and State v. Shine, NO. CAAP-11-0000114 (unpublished). These were appeals from the District Court of the Second Circuit.
Appellant filed notices of appeal in these respective cases, but failed to pay the filing fee or request an order to allow Appellant to proceed in forma pauperis in either case. The court clerk advised the Appellant of these matters and of the relevant deadlines in both cases. The ICA held that since no filing fee had been tendered and since no motion requesting Appellant be allowed to proceed in forma pauperis had been filed in either case, the Appeals were dismissed.
Tuesday, June 28, 2011
ICA affirms denial of third Rule 40 petition
On June 21, 2011, the Hawaii Intermediate Court of Appeals issued its decision in Stanley v. State, CAAP-10-0000070 (Summary disposition order- unpublished, panel: Nakamura, CJ, Foley and Reifurth, JJ). This case was an appeal from the Circuit Court of the First Circuit, the Hon. Michael D. Wilson, presiding. On the briefs were Charles Anthony Stanley, pro se, and Delanie D. Prescott-Tate, Esq. for Appellee-State.
Defendant was convicted of robbery in the second degree and a direct appeal. After his criminal appeals were denied, he filed three petitions for post conviction relief that were also denied. The present case concerned the denial of the third petition, and alleged numerous procedural and substantive errors.
In denying Defendant’s appeal, the ICA held:
(1) The Complaint alleged the robbery occurred in the City and Count of Honolulu. Because “proof that an event occurred in the City and County of Honolulu or on the Island of Oahu is proof that it occurred within the first judicial circuit,” the circuit court did not lack subject matter jurisdiction.
(2) Because a charge of Robbery in the Second Degree which does not define the term "force" is readily comprehensible to a person of common understanding, the charge against Stanley was not insufficient, and the circuit court did not lack jurisdiction to enter a judgment of conviction for Robbery in the Second Degree.
(3) Because Stanley did not prove the existence of extraordinary circumstances to justify his failure to raise subject matter jurisdictional issues in his direct appeal or two prior HRPP Rule 40 petitions, relief is not available pursuant to HRPP Rule 40. Decision of the circuit court affirmed.
Defendant was convicted of robbery in the second degree and a direct appeal. After his criminal appeals were denied, he filed three petitions for post conviction relief that were also denied. The present case concerned the denial of the third petition, and alleged numerous procedural and substantive errors.
In denying Defendant’s appeal, the ICA held:
(1) The Complaint alleged the robbery occurred in the City and Count of Honolulu. Because “proof that an event occurred in the City and County of Honolulu or on the Island of Oahu is proof that it occurred within the first judicial circuit,” the circuit court did not lack subject matter jurisdiction.
(2) Because a charge of Robbery in the Second Degree which does not define the term "force" is readily comprehensible to a person of common understanding, the charge against Stanley was not insufficient, and the circuit court did not lack jurisdiction to enter a judgment of conviction for Robbery in the Second Degree.
(3) Because Stanley did not prove the existence of extraordinary circumstances to justify his failure to raise subject matter jurisdictional issues in his direct appeal or two prior HRPP Rule 40 petitions, relief is not available pursuant to HRPP Rule 40. Decision of the circuit court affirmed.
ICA dismisses Rule 40 Petition for Lack of Appellate Jurisdiction
On June 16, 2011, the Hawai'i Intermediate Court of Appeals rendered its decision in Abordo v. State, No. 30254 (Summary Disposition Order- unpublished, panel: Nakamura, CJ, Fujise and Leonard, JJ). Appeal from the Circuit Court of the First Circuit, Hon. K. O. Lee, presiding. On the briefs were Edmund Abordo appearing pro se and Lisa Itomura, Esq. and Diane K. Tiara, Esq. for Appellee-State.
After conviction, Defendant filed a Petition for Post-Conviction Relief pursuant to Rule 40 of the Hawai'i Rules of Penal Procedure. The case was transferred to the Court Clerk, who assigned the case a new civil designation. Defendant subsequently filed a motion requesting relief in this civil case, but the motion apparently was treated as a new claim and assigned its own civil case number. This motion was denied in the second civil cause, and Defendant appealed.
The ICA noted that the order denying relief was filed in the second case, which still had pending claims to adjudicate. Thus, “there was no final, appealable order” stemming from the first case, and the ICA lacked appellate jurisdiction. Appeal dismissed.
After conviction, Defendant filed a Petition for Post-Conviction Relief pursuant to Rule 40 of the Hawai'i Rules of Penal Procedure. The case was transferred to the Court Clerk, who assigned the case a new civil designation. Defendant subsequently filed a motion requesting relief in this civil case, but the motion apparently was treated as a new claim and assigned its own civil case number. This motion was denied in the second civil cause, and Defendant appealed.
The ICA noted that the order denying relief was filed in the second case, which still had pending claims to adjudicate. Thus, “there was no final, appealable order” stemming from the first case, and the ICA lacked appellate jurisdiction. Appeal dismissed.
Friday, June 24, 2011
ICA affirms harassment conviction
On June 16, 2011, the Hawai'i Intermediate Court of Appeals (ICA) issued its opinion in State v. Tapanan, No. 30445 (Summary Disposition Order-unpublished, panel: Nakamura, CJ, Fujise and Ginoza, JJ). This was an appeal from the Circuit Court of the First Circuit, Hon. Darryl Y.C. Choy presiding. On the briefs were Deputy Public Defender Melinda K. Yamaga, Esq. for Defendant-Appellant and Deputy Prosecuting Attorney Anne K. Clarkin, Esq. for State-Appellee.
Following a bench trial, Defendant was convicted of Harassment, in violation of HRS § 711-1106(1)(a). Defendant first alleged the trial court’s finding of fact that the investigating officers testified “truthfully” was impermissibly inconsistent with it's findings that the officers did not do “a thorough investigation” and did not “follow up very properly.”
The ICA rejected this argument, noting that the trial court considered “the entire package of what happened that day” in holding the crime of harassment had occurred. The sole factual error concerned the length of time the alleged victim had been asked to stay away from his home. This error was deemed to not have affected Defendant’s “substantial rights and was harmless error. Hawai'i Rules of Penal Procedure, Rule 52(a).”
Defendant further argued that the evidence was insufficient to support her conviction. In viewing the evidence in the light most favorable to the prosecution, the ICA rejected this argument, noting the existence of testimony of numerous officers supporting the charge, “as well as the photographs of injuries” to the alleged victim. Conviction affirmed.
Following a bench trial, Defendant was convicted of Harassment, in violation of HRS § 711-1106(1)(a). Defendant first alleged the trial court’s finding of fact that the investigating officers testified “truthfully” was impermissibly inconsistent with it's findings that the officers did not do “a thorough investigation” and did not “follow up very properly.”
The ICA rejected this argument, noting that the trial court considered “the entire package of what happened that day” in holding the crime of harassment had occurred. The sole factual error concerned the length of time the alleged victim had been asked to stay away from his home. This error was deemed to not have affected Defendant’s “substantial rights and was harmless error. Hawai'i Rules of Penal Procedure, Rule 52(a).”
Defendant further argued that the evidence was insufficient to support her conviction. In viewing the evidence in the light most favorable to the prosecution, the ICA rejected this argument, noting the existence of testimony of numerous officers supporting the charge, “as well as the photographs of injuries” to the alleged victim. Conviction affirmed.
ICA holds trial court did not abuse it's discretion in denying Act 44 probation
On June 16, 2011, the ICA issued its opinion in State v. Enos, No. 30653 (Summary Disposition Order- unpublished, panel: Nakamura, C.J, Furise and Ginoza, JJ). This case was an appeal from the Circuit Court of the Second Circuit, Hon. Shackley F. Raffetto presiding. On the briefs were Jennifer D.K. Ng, Esq. for Defendant-Appellant and Artemio C. Baxa, Esq. for the State-Appellee.
Defendant pled guilty to two drug charges, and, pursuant to the plea agreement, was “free to ask for sentencing under Act 44 (HRS 706-622.5) and the State was free to oppose it.” HRS § 706-622.5 gives the court discretion to sentence certain first-time drug offenders to probation provided the person meets specified criteria. Defendant’s criminal history contained numerous convictions, however, and the Court declined to give a probationary sentence. Defendant was sentenced to ten years and five years in the respective counts, to be served concurrently.
On appeal, the ICA rejected Defendant’s argument that the Court erred in finding him to be violent, noting that Defendant had been convicted of such crimes such as terroristic threatening and assault. The ICA held that without a finding that Defendant was “non-violent,” Defendant would not qualify for probation under Act 44, and the trial court did not abuse its discretion in refusing to grant said probation. Affirmed.
Defendant pled guilty to two drug charges, and, pursuant to the plea agreement, was “free to ask for sentencing under Act 44 (HRS 706-622.5) and the State was free to oppose it.” HRS § 706-622.5 gives the court discretion to sentence certain first-time drug offenders to probation provided the person meets specified criteria. Defendant’s criminal history contained numerous convictions, however, and the Court declined to give a probationary sentence. Defendant was sentenced to ten years and five years in the respective counts, to be served concurrently.
On appeal, the ICA rejected Defendant’s argument that the Court erred in finding him to be violent, noting that Defendant had been convicted of such crimes such as terroristic threatening and assault. The ICA held that without a finding that Defendant was “non-violent,” Defendant would not qualify for probation under Act 44, and the trial court did not abuse its discretion in refusing to grant said probation. Affirmed.
ICA affirms domestic assault conviction
On June 16, 2011, the ICA issued its opinion in State v. Pierre-Louis, No. 30566 (Summary Disposition Order- Unpublished, panel: Leonard, Presiding Judge, Reifurth and Ginoza, JJ). The case was an appeal from a conviction from the First Circuit Court, Hon. Edward Kubo, Jr., presiding. On the briefs were Nelson W.S. Goo, Esq. for Defendant-Appellant and Brian Vincent, Esq. for the State-Appellee.
Defendant was convicted of Abuse of Family and Household Member in violation of HRS § 709-906 and sentenced to two years probation, credit for two days served and a small fine.
On appeal, Defendant first alleged numerous evidentiary errors committed by the Court in disallowing evidence of the alleged victim’s prior drug use and lying about such use. In rejecting Defendant’s arguments, the ICA noted that while lying about drug use “is probative of the witness' untruthfulness[,]” the court “cannot conclude the trial court clearly exceeded the bounds of reason or disregarded rules or principles of law or practice in concluding that the prejudice outweighed the probative value of the evidence.”
Defendant next argued that the evidence was insufficient to support his conviction. The ICA disagreed, noting the evidence introduced at trial showing that the Defendant had placed his hands on and injured the alleged victim.
Defendant also alleged his trial lawyer’s performance fell beneath the proper standard of care and was thus ineffective. This argument was rejected by the ICA as “speculative” and objected to tactical decisions that “normally will not be questioned by a reviewing court." The conviction and sentence were affirmed.
Defendant was convicted of Abuse of Family and Household Member in violation of HRS § 709-906 and sentenced to two years probation, credit for two days served and a small fine.
On appeal, Defendant first alleged numerous evidentiary errors committed by the Court in disallowing evidence of the alleged victim’s prior drug use and lying about such use. In rejecting Defendant’s arguments, the ICA noted that while lying about drug use “is probative of the witness' untruthfulness[,]” the court “cannot conclude the trial court clearly exceeded the bounds of reason or disregarded rules or principles of law or practice in concluding that the prejudice outweighed the probative value of the evidence.”
Defendant next argued that the evidence was insufficient to support his conviction. The ICA disagreed, noting the evidence introduced at trial showing that the Defendant had placed his hands on and injured the alleged victim.
Defendant also alleged his trial lawyer’s performance fell beneath the proper standard of care and was thus ineffective. This argument was rejected by the ICA as “speculative” and objected to tactical decisions that “normally will not be questioned by a reviewing court." The conviction and sentence were affirmed.
Thursday, June 23, 2011
ICA affirms concurrent, enhanced sentences
On June 16, 2011, the Hawaii ICA issued its opinion in Gomes v. State, No. 30617 (Summary Disposition Order- unpublished, panel: Nakamura, C.J., Reifurth and Ginoza). This was an appeal from the Circuit Court of the Second Circuit, Hon. Shackley F. Raffetto, presiding. The State-Appellee was represented by Richard Minatoya, Esq. and the Appellant represented him self pro se.
Defendant was found guilty of first-degree sexual assault and manslaughter and was sentenced to concurrent extended sentences. Defendant appealed, in part alleging that his sentence was invalid because the enhancement statute in place at the time of his conviction (HRS 706-662) was later ruled to be unconstitutional in State v. Maugaotega, 115 Hawai'i 432 (2007).
In rejecting this argument, the ICA noted that Maugaotega “does not apply retroactively to Gomes’s collateral attack of his extended term sentences.” Further, despite Maugaotega’s holding that 706-662 was unconstitutional, the Hawai’i Supreme Court held in State v. Jess 117 Hawai’i 381 (2008) that subsequent legislative action “clearly endorsed the empanelment of juries to make the requisite extended term findings[.]” Thus, 706-662 may be constitutionally applied when a jury, not a judge, determines whether an enhanced sentence was “necessary for [the] protection of the public.”
The Gomes panel concluded: “The supreme court's holding in Jess, that the former version of HRS § 706-662 may be judicially modified and constitutionally applied, definitively establishes that the former version of HRS § 706-662, under which Gomes was sentenced, is not void ab initio.” The appeal was denied.
Defendant was found guilty of first-degree sexual assault and manslaughter and was sentenced to concurrent extended sentences. Defendant appealed, in part alleging that his sentence was invalid because the enhancement statute in place at the time of his conviction (HRS 706-662) was later ruled to be unconstitutional in State v. Maugaotega, 115 Hawai'i 432 (2007).
In rejecting this argument, the ICA noted that Maugaotega “does not apply retroactively to Gomes’s collateral attack of his extended term sentences.” Further, despite Maugaotega’s holding that 706-662 was unconstitutional, the Hawai’i Supreme Court held in State v. Jess 117 Hawai’i 381 (2008) that subsequent legislative action “clearly endorsed the empanelment of juries to make the requisite extended term findings[.]” Thus, 706-662 may be constitutionally applied when a jury, not a judge, determines whether an enhanced sentence was “necessary for [the] protection of the public.”
The Gomes panel concluded: “The supreme court's holding in Jess, that the former version of HRS § 706-662 may be judicially modified and constitutionally applied, definitively establishes that the former version of HRS § 706-662, under which Gomes was sentenced, is not void ab initio.” The appeal was denied.
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