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Hawaii Attorney Post Conviction Manual

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Hawaii Attorney Post Conviction Manual I ; . ; t ·.,' •',I, 1 ;.· ". 'I ,\_"j Chapter 14 . .. ,._.:1 Hawaii '·, \' ' • IJ. ',',I 1 •I § 14:1 Summary of postconviction remedies in Hawaii . § 14:2 . Hawaii Rule of Penal Procedure 40 · •·, · " ' ~ ·: · · ). : § 14:3 -Text § 14:4 -Guilty pleas-Cas~ law .. · , . § 14:5 -Failure to raise claiin:.:Wmver~aae law ·~ ' .. § 14:6 -Challenge to term ~f 'iniprlsoiinient, ·probation or , . .,. ·i: ":'.parole ·and to cortect~sentence-::...Case Iaw1' ''.•• ": . I •. JI : § 14:7 -Findings of fact-Case law . 1: " · c1 , . , • § 14:8 -Ineffective assistance of counsel;claitns-Ca@e law· , ,. § 14:9 -Hearings-Case law § 14:10 -Appeals § ;14:11~ ··Motions to'<!orrect illegal.sentence;:corl-ect sentence. imposed in an illegal manner and reduce sentence : f·;'' 1:: 1 • c~-und~r HS:"7aii.:~u.l~ of:J?~nalJ?ro~~PlU"e 35. § 14:12 -Text . , § 14:13 -Case law . '" •t·. ) . ,-..-. i. § 14: 14 · Right. io coiill~~1, · · ;·I § 14:15 Motion to~cQ~e.c.~-e,J.e~cal-..erroi: .µncl,~r H,awaii ~ule of .-4 •• Penal Proceaure 36 . · § 1~:16' 'W'iit bf habeas eprpl,\s·under HawaiiReVised: Statutes' · ' :. 1 • ! · ·• · • ~ J §§: 660.:3 to; 660:-33. < • · : · • · f'. : · · . • . r . • ; ~ • ; , : § 14:17 Writ of error 'co~aiifnobis · , t • ··: . ·.. § ~14:18: ! Postconviction DNAitesting statute , §;l4:1~h'n.~caseJaw._, -. ,, !., ... _ ,_, ~ ' J. '~ § 14!20 ~ Erroneous Convictions ·Act ,. , .. :: ' , : .1 · · · . .- ' •.; • .-· , !"'1:• '' ~-- ~ ! . ··~ ;. : ' ' K-eyCite~ Cases ancJ ·.Q.ther legal' ma~rials ·listed· in KeyCite Scope can. be rese~hed thrp~gp. the ~yCite,~ervice on W:e~t~a'Y/®. Use ~yCite-~ cheftlt. ' ; . citations for fonil, ·parallel referep.oos, prior'and' 18.ter histQry; and coinprehen- 1 ; · · · sive citator' information~ inchidirig·citatioris to• other' decisions'. and ;secondary· ( . materials. " , . · : , : , . ·, '. § 14:1 Sl;lDUllary of postcppviciion remedies b;1 Hawaii :: ; • -- ~ '. \ ; / ' ~ ["~ f ' : I c1 ·. •, ' , •• . ' ~ ~ • t • .f ' , • _: ' ' • • • J l '\ Principal! postconviction :remedy: . '· , : . · · , . Rule: 40,iHaw. -R. ·Penal Proc.~: remedy~·-This·remedy- is applied for .in the; convicting court. The; remedy is neither: a postsentenc­ ing phase of the original criminal case: nor an independent .civil 811 § 14:1 STATE PosTCoNVICTION REMEDIES AND RELIEF action; instead, it is docketed by the clerk as a special proceeding. The remedy is authorized by a judicially promulgated court rule. There is no custody requirement applicable to Rule 40 proceedings. Newly discovered evidence of innocence is a .ground for Rule 40 relief. · · · Right to counsel: Th~re is a right to counsel in Rule 40 proceedings. Statute of limitations: None. Secondary postconviction remedies: Motion to correct illegal sentence · ·· Motion to co~ect. s.entence imposed ill an· illegal· manner Motion to reduce sentence Motion to correct clerical error ·· ·. Other remedies: Coram nobis. is no longer an available postconviction remedy in Hawaii. .: · Hawaii has a postconviction· DNA testing statute·,- ·enacted in 2005 and am.ended in 2006. : Hawaii does not have an erroneous convictions act. · § 14:2 Hawaii Rule of Penal Procedure. 140 · The principal postconviction remeqy in Hawaii_ is. the remedy in the nature of coram no bis available in .. the convi~ting court, and authorized by Rule 40, Haw. R _Pem.al Proc. .·: " The Rule 40 remedy ·was created, and promulgated by the Hawaii Supreme Court and became effective on ·Jan.· 1, 197·7. The Hawaii Supreme Court has amended Rule 40 ten.times-in·1983, 1984, · 1985, 1988, 1989, 1994, 1998, 2000, 2003, and 2006-since Rule 40 took effect. ·A ~ule 40 proceeding is instituted in the convicting· ~ourt .. Rule 40(b), Haw.· R. Penal Proc. A Rule 40 proce_eqing is neither a postsentencing phase of the original criminal, case nor a separate civil action. Instead, it is docketed by the clerk as a special proceeding. Rule 40(b), Haw. R. Penal Proc~; Rule 42.3, Haw.· R. Penal Proc. A petitio~ for relief under Rule 40 shall substanti8.Ily conform to the model form of Rule 40 petition annexed to the: Hawaii . Rules: of.Penal Proc.edure. Rule 40(c)(\1); .Haw. R. Penal ·Proc. _ There is no custody requirement in Rule 40 proceedings. Rule 40(a)(l), (2). Haw. R. Penal Proc. · · 812 HAWAII § 14:3 .Newly discovered evidence is a ground for Rule 40 relief. Rule 40(a)(l)(iv), Haw. R. Penal Proc. : · , Generally, Rule 40 relief is unavailable with respect to issues previously ruled upon, or issues.which· could have been, ·but were not, previously raised.. Rule 40(a)(3}, Haw. R. Penal Proc. There is a right to counsel :in Rule. 40 p;roceedings. ~le 40(i), Haw. R. Penal Proc .. (if the. Ru~e 49. petition alleges that the petitioner is uJ:iable to pay the costs 'of the· proceedings, or to af­ 1 ford counsel, the' 1cotirt shall refer the .. petition·~to the public de­ fender for representation as in other penal cases·; provided that no such referral need be made if the petitioner's claim is .patently frivolous and without trace Jof s.upport eith_er .in the record or from. other evidence submitted by the,._petitioner}.· S~e Rapozo v. State, 137 Haw. 298, 369 P.3d:88.l (Ct~ App.· 2016) (the record indicates that the circuit.co~.app~oy~d ~lld ordered the appoint­ ment of counsel.for Rapozo's Rule 40 :fletition; how~ver, it seems that no attorney was ever pfovided 'to Rapozo;· we disagree with the State's position that the circuit court's error was harmless; we hold that the circuit court erred:in its failure· to<provide Rapozo with counsel once it approved his Motion for the Appoint­ ment of Counsel on his Rule 40 Petition; we ·vacate the circuit court's decision and remand this case for further proceedings). '• § 14:3 Hawaii Rule of Penal Procedure 4~Text. ~ .:R~le40, Haw. R.·Pen~.'~oc., i>I"ovid~s: .RULE 40 P<iSTCONVICTION PROCEEDING . · , .(a) · Proceedings ~d Grounds.·· '.the postconviction .. proce_eding .. established. by this rule. shall enco~pass ~ll common law and statutory_ procedures for 'the same p,urppee, incl~ding habeas corpus and cor~ nobis; p;rovided '._that the foregqing shall not be construed to limit' the availability of rem~·dies iri the.trial court or on ·direct appeal. Said proceedi~g shall be applicable to judgments of conviction and to custody baseq' on judgments of · conviction,. ~s follows.: · · · · · · . .. , . (1) From Judgnie.nt. At any tiriie but no~ prior to finru judg­ ·merit~ 'any person may .seek reli~f under' the prpcedur~ set forth in this rule from the judgment· of conviction, on the fol- lowing grounds: · : ' · · i · ~· · · · For the puri}~ses of this· rule~ a :judgment is final when the time for direct appeal under Rule ·4(b) :c)f the· Hawaii· Rules ·of Ap­ pellate Procedure has eXpired: with01.~.t appeal being taken, or if ·direct appeal' ·was taken, when th'e appellate -process has terminated, provided that a petition under this rule seeking .. t' . relief from judgment may be filed duri.llg the pendency of direct appeal if leave is granted: by order of the appellate court. 813 § 14:8 STATE PosTCONVICTION REMEDIES AND RELIEF ; (i) that· the judgment ·was obtained· or sentence imposed in violation of the constitution of the United State~·1.or. of the State of!Hawaii; : · :· . j , . :•· . , .i . -: :,• i(ii) that the court which'!rendered the judgment was without jurisdiction over the ··person or the subject matter;· ;•'· ~":{iii): thi:l.t thifsentenbe' Is illegal;.- · 1 ~-'- : ~- ., · :(iyf that there 18 .~ewJ~i clis.cpv~red evide;nce; 'h~ . : ,·/ .. <v>', any ground whi~h is~· ·b~i~ fQr .c9Ua~~a;t a~tack. on ·· theJµ.d~en~r .,.; .; . ·•ii , ·(2) From Custody. ·; , ·. · . , 1 • ,Aiiy person may seek,teli~f under the procedure set~fortil in-. this rule 'from custody ba~ed· upbn a judgment of convic~ 1 tion, on the following grounds!~,.· · · . · ' · · · • ··:·., . (i) that.sen~nce was'fully:·s~rve;d; ... -· -~ . ' '. .· ·;i. • • • ' . I I ' ~ ; , , 1 i ,.: ; Jii) that· paiol~ or ptopation' \Vas' unlaWfully re~oke.d; .9r. (iii) any .otJier. ground: maki~g the custody, tho.ugh J;l:Qt , • . • • _ ._ the ju~gµ.ient, iµega~ .. · . 1 " : . ,.~· (8) .!Inapplicability.· Rule 40 proceedings shall not, be avail- .· able. and relief thereunder shall ·not be =granted where .the·~is:­ sues .sought to.. be J."aised have: been preViously ruled· upon· or were waived. Except for a claim of illegal sentence, an issue is waived if .the· petitioner .knowingly. and understandingly failed to raise it and it could have been. raised before the trial, at the trial, ori appeal,'. iri a]iabeas 'corpus proceeding or any other proce.eding actually conducted, or in a p~ior proceeding --actlially' initiated under 1this ··rule, and the ; 'petitioner is unable ;to prove ,the e~stence· of extra'.o~dinacy '· citcu.ni~tances ~to-Justify the petition~r's failure· to raise the " · issµe.:There is·1:i-rebuttable~presumptfon· that a failure to ap­ . , peal a ruling or to I rai$e ~an issue ~$ ·a· kxiowing' ~d under- .. •· ;standing failure.· · -.·!: . · i.· • .:. ' · : '. :· ~,~),'.J~~titutio~ of ~~9c~e~~~s.. '~ prqc·~~~l!-g .foi:.pm3t(!onvic­ tion relief shall be instituted by filmg a p~titio~ with the clerk .of the court in which the conviction took place. The, clerk shall :'th~n docket' tJ;ie petj~fon '8.~ ,a sp~ci'.8.1 prpceedirig~ and ill ca~es of prose petitions, promptly-~ovise·'the· court pf the petition; i · ·cc) Fonri·ruia Content·ofE>~tition. '. · · · .. ., . : '.' ·,:· . 1.· .(1). In. Qeneralri;rTb:~ i>-etition _shall be in .. s~bstantially the ~ Jqrin ami~~ed to. ijl~s,e· ~l~s... Petitions. in the presCi;ibed. form ·~ · shall. be ·made. avail.able .witho~t charge by the ·clerks of the various .circuit and clistrict· coµrts to applic~ts upon; their i. request. The .petitionnshaU. specify all~the.
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