IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI`I
MARSHALL MARTINEZ, Petitioner-Appellant, v.
STATE OF HAWAI`I, Respondent-Appellee
APPEAL FROM THE SECOND CIRCUIT COURT
(S.P.P. NO. 00-1-0001(2))
MEMORANDUM OPINION
(By: Burns, C.J., Watanabe and Foley, JJ.)
Petitioner-Appellant Marshall Martinez (Martinez) appeals the Second Circuit Court's (1)March 20, 2000 Order Denying Rule 40 Petition (March 20, 2000 Order) that denied, without a hearing, his January 27, 2000 Petition to Vacate, Set Aside, or Correct Judgment or to Release Petitioner from Custody (January 27, 2000 Petition). We affirm.
PRIOR PROCEEDINGS
On January 19, 1983, in Criminal No. 7716(1), Martinez was indicted for one count of Kidnapping, Hawai`i Revised Statutes (HRS) 707-720(1)(d) (1976), (2) and one count of Attempted Rape in the First Degree, HRS §§ 705-500 and 707-730 (1976). (3) Both alleged offenses were allegedly committed on November 17, 1983. On October 18, 1984, following trial, a jury returned a verdict of guilty on both counts. On December 19, 1984, Martinez was sentenced to an extended term of life imprisonment pursuant to HRS §§ 706-661 and 706-662 (1976). (4)
On December 31, 1984, Martinez filed an appeal of his convictions. On February 4, 1986, the Intermediate Court of Appeals affirmed the convictions in State v. Martinez, No. 10356 (Haw. App. Feb. 4, 1986).
In his January 27, 2000 Petition, which was his eighth such petition, Martinez asserted four grounds for relief. In sum, those grounds essentially asserted that the indictment for Attempted Rape in the First Degree was defective as it did not contain the "full element of the charge charging [Martinez] of the correct offense." Specifically, Martinez complained that the indictment for the charge of Attempted Rape in the First Degree lacked the essential elements of "intent" and "force."
The circuit court issued its March 20, 2000 Order. Citing Hawai`i Rules of Penal Procedure (HRPP) Rule 40(a)(3), (5) the circuit court stated, in relevant part, as follows:
[Martinez'] grounds in his latest petition have already been addressed previously. While [Martinez] alleges four grounds for relief, the substance of the errors he claims were already addressed in his previous appeals and petitions. [Martinez] now couches these same claims in his latest petition.. . . .
ORDER [Martinez] has failed to present any colorable claims worthy of an evidentiary hearing. The grounds alleged in this Rule 40 petition have been either waived, previously ruled upon, or are patently frivolous and refuted by the record.
As to the denial of an HRPP Rule 40 petition without an evidentiary hearing, HRPP Rule 40(f) provides, in relevant part, as follows:
If a petition alleges facts that if proven would entitle the petitioner to relief, the court shall grant a hearing which may extend only to the issues raised in the petition or answer. However, the court may deny a hearing if the petitioner's claim is patently frivolous and is without trace of support either in the record or from other evidence submitted by the petitioner. The court may also deny a hearing on a specific question of fact when a full and fair evidentiary hearing upon that question was held during the course of the proceedings which led to the judgment or custody which is the subject of the petition or at any later proceeding.In addition, this court has previously stated:
As a general rule, a hearing should be held on a Rule 40 petition for post-conviction relief where the petition states a colorable claim. To establish a colorable claim, the allegations of the petition must show that if taken as true the facts alleged would change the verdict, however, a petitioner's conclusions need not be regarded as true. Where examination of the record of the trial court proceedings indicates that the petitioner's allegations show no colorable claim, it is not error to deny the petition without a hearing. The question on appeal of a denial of a Rule 40 petition without a hearing is whether the trial record indicates that Petitioner's application for relief made such a showing of a colorable claim as to require a hearing before the lower court.Barnett v. State, 91 Hawai`i 20, 30, 979 P.2d 1046, 1052-53 (1999).[State v.] Allen, 7 Haw. App. [89,] 92-93, 744 P.2d [789,] 792-93 [(1987)] (emphasis added).
[In this regard], the appellate court steps into the trial court's position, reviews the same trial record, and redecides the issue. Because the appellate court's determination of "whether the trial record indicates that Petitioner's application for relief made such a showing of a colorable claim as to require a hearing before the lower court" is a question of law, the trial court's decision is reviewed de novo. See United States v. Burrows, 872 F.2d 915 (9th Cir. 1989) (denial of a post-conviction motion based on ineffective assistance of counsel without conducting an evidentiary hearing is reviewed de novo for a determination of whether the files and records of the case conclusively show that petitioner is entitled to no relief). Therefore, we hold that . . . the issue whether the trial court erred in denying a Rule 40 petition without a hearing based on no showing of a colorable claim is reviewed de novo; thus, the right/wrong standard of review is applicable.
Dan v. State, 76 Hawai`i 423, 427, 879 P.2d 528, 532 (1994).
STANDARD OF REVIEW
Regarding the sufficiency of an indictment, it is well settled that the liberal construction standard is applied. Under this standard, courts must:
liberally construe the indictment in favor of validity and uphold it, unless there is some showing of substantial prejudice to [the defendant], "such as . . . that the indictment is 'so obviously defective that by no reasonable construction can it be said to charge the offense for which the conviction was had.'"State v. Motta, 66 Haw. 89, 93-94, 657 P.2d 1019, 1021-1022 (1983)(citations omitted). It is equally well settled that the failure to allege an essential element of an offense renders a charge fatally defective. State v. Elliott, 77 Hawai`i 309, 311-12, 884 P.2d 372, 374-75 (1994).
The question is whether the 1983 indictment against Martinez for the crime of Attempted Rape in the First Degree was so obviously defective that by no reasonable construction can it be said to charge that offense. The answer is no. The indictment alleged all of the essential elements of the offense of Attempted Rape in the First Degree.
At the time of the alleged offense, HRS § 705-500 stated:
(1) A person is guilty of an attempt to commit a crime if he:At the time of the alleged offense, HRS § 707-730(1) (Supp. 1984) stated in pertinent part:(a) Intentionally engages in conduct which would constitute the crime if the attendant circumstances were as he believes them to be; or
(b) Intentionally engages in conduct which, under the circumstances as he believes them to be, constitutes a substantial step in a course of conduct intended to culminate in this commission of the crime.
(2) When causing a particular result is an element of the crime, a person is guilty of an attempt to commit the crime if, acting with the state of mind required to establish liability with respect to the attendant circumstances specified in the definition of the crime, he intentionally engages in conduct which is a substantial step in a course of conduct intended or known to cause such a result.
(3) Conduct shall not be considered a substantial step under this section unless it is strongly corroborative of the defendant's criminal intent.
A person commits the offense of rape in the first degree if:In order to validly state a charge of Attempted Rape in the First Degree against Martinez, the indictment must have alleged the following elements:(a) The person intentionally engages in sexual intercourse, by forcible compulsion, with another person and:(i) The other person is not, upon the occasion, his voluntary social companion who had within the previous thirty days permitted him sexual intercourse of the kind involved; or(ii) Recklessly inflicts serious bodily injury upon the other person[.]
1. Martinez intentionally engaged in conduct which under the circumstances, as Martinez believed them to be, constituted a substantial step in a course of conduct intended to culminate in the crime of rape.
2. Martinez intentionally attempted to engage in sexual intercourse by forcible compulsion. (6)
3. (a) With another person (b) who was not upon the occasion Martinez' voluntary social companion who had within the previous thirty days permitted Martinez sexual intercourse of the kind involved.
The indictment against Martinez for the crime of Attempted Rape in the First Degree stated:
[t]hat on or about the 17th day of November, 1983, at Lahaina, in the District of Lahaina, County of Maui, State of Hawaii, [Martinez] did intentionally engage in conduct which under the circumstances as he believes them to be, constituted a substantial step in a course of conduct intended to culminate in his commission of the crime of rape, by intentionally attempting to engage in sexual intercourse, by forcible compulsion with [the alleged female victim] and she was not upon the occasion his voluntary social companion who had within the previous thirty days permitted him sexual intercourse of the kind involved, thereby committing the offense of Attempted Rape in the First Degree in violation of Sections 705-500 and 707-730 of the Hawaii Revised Statutes.(Emphases added.)
The words emphasized above charge that Martinez "did intentionally engage in conduct" "intended to culminate in his commission of the crime of rape" by "intentionally attempting to engage in sexual intercourse, by forcible compulsion[.]" These allegations contradict the assertion that the indictment failed to allege the essential elements of "intent" and "force." Further, the indictment clearly complies with the standards required under Motta, supra, by including all necessary elements of the charged offense.
Accordingly, we affirm the Second Circuit Court's March 20, 2000 Order Denying Rule 40 Petition that denied, without a hearing, Petitioner-Appellant Marshall Martinez' January 27, 2000 Petition to Vacate, Set Aside, or Correct Judgment or to Release Petitioner from Custody.
DATED: Honolulu, Hawai`i, June 13, 2001.
On the briefs:
Marshall Martinez,
Petitioner-Appellant Pro Se.
Richard K. Minatoya,
Deputy Prosecuting Attorney,
County of Maui,
for Respondent-Appellee.
1. Circuit Court Judge Shackley F. Raffetto presided in this matter.
2. Hawai`i Revised Statutes (HRS) § 707-720(1)(d) (1976) provides, in pertinent part, that "[a] person commits the offense of kidnapping if he intentionally restrains another person with intent to: . . . [i]nflict bodily injury upon him or subject him to a sexual offense[.]"
3. HRS § 705-500 (1976) states, in relevant part:
Criminal Attempt. (1) A person is guilty of an attempt to commit a crime if he:4. Petitioner-Appellant Marshall Martinez' extended term of life imprisonment was based on his convictions, in Arizona, of Rape in the Second Degree (1978) and Attempted Sexual Assault (1979).(a) Intentionally engages in conduct which would constitute the crime if the attendant circumstances were as he believes them to be; orHRS § 707-730(1) (Supp. 1984) states, in relevant part, as follows:(b) Intentionally engages in conduct which, under the circumstances as he believes them to be, constitutes a substantial step in a course of conduct intended to culminate in his commission of the crime.
(2) When causing a particular result is an element of the crime, a person is guilty of an attempt to commit the crime if, acting with the state of mind required to establish liability with respect to the attendant circumstances specified in the definition of the crime, he intentionally engages in conduct which is a substantial step in a course of conduct intended or known to cause such a result.
(3) Conduct shall not be considered a substantial step under this section unless it is strongly corroborative of the defendant's criminal intent.
A person commits the offense of rape in the first degree if:(a) The person intentionally engages in sexual intercourse, by forcible compulsion, with another person and:(i) The other person is not, upon the occasion, his voluntary social companion who had within the previous thirty days permitted him sexual intercourse of the kind involved; or(ii) Recklessly inflicts serious bodily injury upon the other person[.]
5. Hawai`i Rules of Penal Procedure Rule 40(a)(3) (2001) states as follows:
6. At the time of the alleged offense in November 1983, HRS § 707-700(11) defined "forcible compulsion" as follows:Inapplicability. Rule 40 proceedings shall not be available and relief thereunder shall not be granted where the issues sought to be raise have been previously ruled upon or were waived. 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. There is a rebuttal presumption that a failure to appeal a ruling or to raise an issue is a knowing and understanding failure.
"Forcible compulsion" means the use of or attempt to use one or more of the following to overcome a person:(a) A threat, express or implied, that places a person in fear of bodily injury to the individual or another person, or in fear
that the person or another person will be kidnapped:(b) A dangerous instrument; or
(c) Physical force[.]