____________________________________________________________________________________________________
NO. 25071
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI`I
STATE OF HAWAI`I, Plaintiff-Appellee, v.
DONALD R. LESTER, Defendant-Appellant, and
KENNETH A. GAUT, JAMES VINCENT MORI, ELIZABETH Y.
TUTTLE, KENNETH E. ANDERSON, PATRICK J.
HILDEBRAND, RONNIE G. WILSON, and PATRICK J.
HAMLOW, Defendants
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CR. NO. 51930)
MEMORANDUM OPINION
(By: Burns, C.J., Watanabe and Lim, JJ.)
Defendant-Appellant Donald R. Lester (Lester) appeals from the April 15, 2002 "Findings of Fact, Conclusions of Law and Order Denying Motion for Correction of Illegal Sentence Pursuant to [Hawai`i Rules of Penal Procedure (HRPP)] Rule 35" (Denial Order) entered by Judge Victoria S. Marks.
In his opening brief, Lester contends that the Circuit Court of the First Circuit, State of Hawai`i (circuit court), erred when it (1) entered the Denial Order in disregard of Hawai`i Revised Statutes (HRS) § 706-659 (Supp. 2002), (2) failed to appoint counsel to assist Lester with his "Motion for Correction of Illegal Sentence Pursuant to HRPP Rule 35" (HRPP Rule 35 Motion), and (3) adjudicated Lester's claims "under bias and prejudice . . . and subject[ed] [Lester] to selective enforcement of [the] laws."
In his reply brief, Lester contends that (4) Lester's sentence under HRS § 706-606 (1976) constituted an enhanced sentence and since "Lester's jury trial did not present any aggravating factors to be considered for the purpose of enhancing Lester's sentence[,] . . . Lester's sentence should be reduced to [a] class "A" felony[.]"
We disagree and affirm.
On November 22, 1978, Lester was charged by amended indictment with Murder, HRS §§ 706-606(a)(iii) and 707-701 (1976). On February 16, 1979, a jury found Lester to be guilty as charged. On February 16, 1979, in a Judgment filed on February 22, 1979, the court sentenced Lester to life imprisonment without the possibility of parole. Lester appealed and, on June 23, 1982, the Hawai`i Supreme Court affirmed Lester's conviction.
On February 4, 2002, Lester filed his HRPP Rule 35 Motion. In the motion, Lester stated, in relevant part, as follows:
1. [Lester's] sentence is illegal because at the time [Lester] was sentenced the statutes' for class "A" felonies is twenty years, as stated in Hawai`i legislative enactments at the time [Lester] was sentenced. See HPC § 706-659[L 1980, C 294 § 1].
2. [Lester's] sentence is illegal because the sentencing judge did not sentence [Lester] to the statutory code that defines different classes of offense. See Title 37, Hawai`i Revised Statutes (Hawai`i Penal Code) chapter 707-701(1,2). See also Act 9, H.B. No. 20. 1986.(Emphases in the original.) On February 4, 2002, Lester also filed a "Motion to Supplement HRPP Rule 35."
On April 15, 2002, before Plaintiff-Appellee State of Hawai`i (the State) responded, the court summarily entered the Denial Order. Lester's timely Notice of Appeal followed.
RELEVANT COURT RULES
HRPP Rule 35 (2003) states as follows:
The court may correct an illegal sentence at any time and may correct a sentence imposed in an illegal manner within the time provided herein for the reduction of sentence. The court may reduce a sentence within 90 days after the sentence is imposed, or within 90 days after receipt by the court of a mandate issued upon affirmance of the judgment or dismissal of the appeal, or within 90 days after entry of any order or judgment of the Supreme Court of the United States denying review of, or having the effect of upholding a judgment of conviction. A motion to correct or reduce a sentence which is made within the time period aforementioned shall empower the court to act on such motion even though the time period has expired. The filing of a notice of appeal shall not deprive the court of jurisdiction to entertain a timely motion to reduce a sentence.HRPP Rule 40 (2003) states, in relevant part, as follows:
(a) Proceedings and grounds. . . .
(1) From judgment. At any time but not prior to final judgment, any person may seek relief under the procedure set forth in this rule from the judgment of conviction, on the following grounds:
. . . .
(iii) that the sentence is illegal;
. . . .(i) Indigents. If the petition alleges that the petitioner is unable to pay the costs of the proceedings or to afford counsel, the court shall refer the petition to the public defender 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 of support either in the record or from other evidence submitted by the petitioner.
Conclusions of Law
"An appellate court may freely review conclusions of law and the applicable standard of review is the right/wrong test. A conclusion of law that is supported by the trial court's findings of fact and that reflects an application of the correct rule of law will not be overturned." Dan v. State, 76 Hawai`i 423, 428, 879 P.2d 528, 533 (1994) (citations and internal quotation marks omitted).
We review questions of constitutional law "by exercising our own independent constitutional judgment based on the facts of the case." State v. Rogan, 91 Hawai`i 405, 411, 984 P.2d 1231, 1237 (1999) (citations omitted). Accordingly, we review questions of constitutional law de novo under the "right/wrong" standard. State v. Mallan, 86 Hawai`i 440, 443, 950 P.2d 178, 181 (1998) (citation omitted).
Statutory Interpretation
The Hawai`i Supreme Court has repeatedly stated that a court's
foremost obligation is to ascertain and give effect to the intention of the legislature, which is to be obtained primarily from the language contained in the statute itself. And where the language of the statute is plain and unambiguous, [a court's] only duty is to give effect to [the statute's] plain and obvious meaning.State v. Wells, 78 Hawai`i 373, 376, 894 P.2d 70, 73 (1995) (citations, brackets, ellipsis, and internal quotation marks omitted).
1.
§706-606 Sentence for offense of murder. The court shall sentence a person who has been convicted of murder to an indeterminate term of imprisonment. In such cases the court shall impose the maximum length of imprisonment as follows:
(a) Life imprisonment without possibility of parole in the murder of:
(i) A peace officer while in the performance of his duties, or(b) Life imprisonment with possibility of parole or twenty years as the court determines, in all other cases. The minimum length of imprisonment shall be determined by the Hawaii paroling authority in accordance with [HRS] section 706-669.(ii) A person known by the defendant to be a witness in a murder prosecution, or
(iii) A person by a hired killer, in which event both the person hired and the person responsible for hiring the killer shall be punished under this subsection, or
(iv) A person while the defendant was imprisoned.
. . . .
. . . .
§707-701 Murder. (1) . . . [A] person commits the offense of murder if he intentionally or knowingly causes the death of another person.Effective June 17, 1980, Act 294, Session Laws of Hawai`i, Regular Session of 1980, enacted HRS § 706-659 as follows: "Notwithstanding . . . any other law to the contrary, a person who has been convicted of a class A felony shall be sentenced to an indeterminate term of imprisonment of twenty years without possibility of suspension of sentence or probation." 1980 Haw. Sess. L. Act 294, § 1 at 562.(2) Murder is a class A felony for which the defendant shall be sentenced to imprisonment as provided in [HRS] section 706-606.
Effective April 22, 1981, Act 27, Session Laws of Hawai`i, Regular Session of 1981, amended HRS § 706-606(b) to state as follows: "Life imprisonment with possibility of parole in all other cases. The minimum length of imprisonment shall be determined by the Hawaii paroling authority in accordance with [HRS] section 706-669." 1981 Haw. Sess. L. Act 27, § 1 at 46.
Act 314, Session Laws of Hawai`i, Regular Session of 1986 (Act 314), states, in relevant part, as follows:
SECTION 1. Sections 701-100 to 701-101, Hawai`i Revised Statutes, are amended to read as follows:1986 Haw. Sess. L. Act 314, §§ 1, 15, 39, 49, 50, 78, 79, 80 at 593-629 (footnote omitted; footnote and brackets containing parenthetical material added; all other brackets in original).. . . .
§ 701-101 Applicability to offenses committed before the effective date of amendments. (1) Except as provided in subsections (2) and (3), amendments made by Act , Session Laws of Hawaii 1986, to this Code [does] do not apply to offenses committed before [its] the effective date[.] of Act , Session Laws of Hawai`i 1986. Prosecutions for offenses committed before the effective date of Act , Session Laws of Hawai`i 1986, are governed by the prior law, which is continued in effect for that purpose, as if amendments made by Act , Session Laws of Hawai`i 1986, to this Code were not in force. For purposes of this section, an offense is committed before the effective date of Act , Session Laws of Hawai`i 1986, if any of the elements of the offense occurred before that date.
(2) In any case pending on or commenced after the effective date of amendments made by Act , Session Laws of Hawai`i 1986, to this Code, involving an offense committed before that date . . .upon the request of the defendant, and subject to the approval of the court, the provisions of chapter 706 amended by Act , Session Laws of Hawai`i 1986, may be applied in particular cases."
. . . .
SECTION 15. [(Repealed HRS § 706-606, governing the sentence for murder, and replaced it with factors to be considered in imposing a sentence.)]
. . . .
SECTION 39. Chapter 706, Hawai`i Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:
"§ 706-[(656)] Terms of imprisonment for first and second degree murder and attempted first and second degree murder. (1) Persons convicted of first degree murder or first degree attempted murder shall be sentenced to life imprisonment without the possibility of parole.
. . . .
(2) Persons convicted of second degree murder and attempted second degree murder shall be sentenced to life imprisonment with possibility of parole. The minimum length of imprisonment shall be determined by the Hawaii paroling authority. (1)
. . . .
SECTION 49. [(Repealed HRS § 707-701, governing the offense of murder, and replaced it with the offense of murder in the first degree.)]
. . . .
SECTION 50. Chapter 707, Hawai`i Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:
"§ 707-[(701.5)] Murder in the second degree. (1) Except as provided in section 707-701, a person commits the offense of murder in the second degree if the person intentionally or knowingly causes the death of another person.
(2) Murder in the second degree is a felony for which the defendant shall be sentenced to imprisonment as provided in section 706-[(656)]."
. . . .
SECTION 78. This Act does not affect rights and duties that matured, penalties that were incurred and proceedings that were begun, before its effective date.
SECTION 79. Statutory material to be repealed is bracketed. New statutory material is underscored.
SECTION 80. This Act shall take effect on January 1, 1987.
In other words, Act 314 replaced pre-1987 HRS § 706-606 with post-1986 HRS § 706-606. The fact that pre-1987 HRS § 706-606 has not been in existence since January 1, 1987, leads Lester to conclude that (1) only HRS § 706-659 (Supp. 2002) applies and (2) a sentence greater than an indeterminate term of imprisonment of twenty years without the possibility of suspension of sentence or probation is no longer authorized. In his opening brief, Lester notes that
[i]ts not a question whether his sentence were legal at the time of his sentencing. The question that is posed before this court is, where is the statute today. And the answer is REPEALED. . . . However, while the legislature were trying to figure out how to adequately address the problem of sentencing a legal distinguishing loop-hole squeaked through the cracks, enabling [Lester] to bring into fruition, the wind-fall of having a twenty year term instead of life with or without the possibility of parole.(Emphases in the original.). . . .
This is the assumption of [the State], that [Lester] claimed that his sentence "WAS" illegal. This is a misrepresentation of law. No where in [Lester's] Motion to Correct his Illegal Sentence were ever mentioned the word "WAS". [Lester] accentuated that word "IS", which is present tense, for bringing his current Motion for the Correction of his Illegal Sentence. The word "WAS" is in the pass tense form, and this is not the intention of what [Lester] argued in the first place, therefore missing the mark, of what [Lester] intended to do.
Lester further states that he "is attacking his sentence now, today currently in the 21st century. The question that is not before this court is, that [Lester's] sentence was legal at time of his sentence. The dispute is whether [Lester's] sentence is illegal. No answer to the actual question before this court."
Lester's point has the following two fatal faults: (a) Act 314 expressly does not apply to prosecutions for offenses committed before its express January 1, 1987 effective date and (b) if Act 314 applied in this case, it replaced the sentencing mandate in HRS § 706-606 (1985) with a similar mandate in HRS § 706-656(1) (1993).
2.
Lester contends that his rights were prejudicially violated when the court did not sua sponte appoint counsel to represent Lester in pursuance of his HRPP Rule 35 motion.
HRS § 802-5(a) (1993) states, in relevant part, as follows:
When it shall appear to a judge that a person requesting the appointment of counsel satisfies the requirements of this chapter, the judge shall appoint counsel to represent the person at all stages of the proceedings including appeal, if any. If conflicting interests exist, or if the interests of justice require, the court may appoint private counsel, who shall receive reasonable compensation for necessary expenses[.]HRS § 802-1 (1993) states, in relevant part, as follows:
Any indigent person who is . . . arrested for, charged with or convicted of an offense or offenses punishable by confinement in jail or prison . . . shall be entitled to be represented by a public defender. If, however, conflicting interests exist, or if the public defender for any other reason is unable to act, or if the interests of justice require, the court may appoint other counsel.HRS §§ 802-1 and 802-5 pertain to the appointment of counsel in "all stages of the [criminal] proceedings including appeal, if any." HRS § 802-5. HRS §§ 802-1 and 802-5 do not apply in the post-conviction context.The appearance of the public defender in all judicial proceedings shall be subject to court approval.
In Briones v. State, the Hawai`i Supreme Court stated that
[n]o constitutional right to an appeal exists. State v. Dannenberg, 74 Haw. 75, 837 P.2d 776, 778 (1992); McKane v. Durston, 153 U.S. 684, 14 S. Ct. 913, 38 L. Ed. 867 (1894). Hawaii guarantees by statute the right to an appeal to every criminal defendant who deems himself or herself aggrieved by a district or circuit court judgment. HRS § 641-12 (1985) and § 641-11 (Supp. 1991), respectively. For appeals as of right, a criminal defendant has the right to assistance of counsel pursuant to the Due Process and Equal Protection Clause. U.S. Const. amend. XIV; Haw. Const. art. I, § 5; Douglas v. California, 372 U.S. 353, 83 S. Ct. 814, 9 L. Ed. 2d 811, rehearing denied, 373 U.S. 905, 83 S. Ct. 1288, 10 L. Ed. 2d 200 (1963). An appeal as of right is adjudicated in accordance with due process of law only when the appellant has the effective assistance of counsel. Evitts v. Lucey, 469 U.S. 387, 396, 105 S. Ct. 830, 836, 83 L. Ed. 2d 821 (1985), rehearing denied, 470 U.S. 1065, 105 S. Ct. 1783, 84 L. Ed. 2d 841 (1985).74 Haw. 442, 460, 848 P.2d 966, 975 (1993) (emphasis in original).
In Pennsylvania v. Finley, 481 U.S. 551, 107 S. Ct. 1990, 95 L. Ed. 2d. 539 (1987), the United States Supreme Court considered whether the right to counsel extends to state post-conviction proceedings. In Finley, the majority wrote that
[w]e have never held that prisoners have a constitutional right to counsel when mounting collateral attacks upon their convictions, see Johnson v. Avery, 393 U.S. 483, 488, 89 S. Ct. 747, 750, 21 L. Ed. 2d 718 (1969), and we decline to so hold today. Our cases establish that the right to appointed counsel extends to the first appeal of right, and no further. Thus, we have rejected suggestions that we establish a right to counsel on discretionary appeals. Wainwright v. Torna, 455 U.S. 586, 102 S. Ct. 1300, 71 L. Ed. 2d 475 (1982); Ross v. Moffitt, 417 U.S. 600, 94 S. Ct. 2437, 41 L. Ed. 2d 341 (1974). We think that since a defendant has no federal constitutional right to counsel when pursuing a discretionary appeal on direct review of his conviction, a fortiori, he has no such right when attacking a conviction that has long since become final upon exhaustion of the appellate process. See Boyd v. Dutton, 405 U.S. 1, 7, n.2, 92 S. Ct. 759, 762, n.2, 30 L. Ed. 2d 755 (1972) (POWELL, J., dissenting).481 U.S. at 555, 107 S. Ct. at 1993, 95 L. Ed. 2d. at 545-46.
In Engstrom v. Naauao, 51 Haw. 318, 321, 459 P.2d 376, 378 (1969), the Hawai`i Supreme Court stated, in relevant part,
[t]he constitutional right to assistance of counsel under the sixth amendment of the United States Constitution, [sic] does not apply to habeas corpus proceedings. The petition here is one for post-conviction collateral remedy. Appointment of counsel for an indigent in such proceedings is discretionary with the court. Appointment may be properly made if the petition raises substantial issues which require marshalling of evidence and logical presentation of contentions. No such issue has been raised in the petition in this case.(Citations omitted.)
The HRPP became the governing rules effective January 1, 1977. As noted above, HRPP Rule 40(i) requires the appointment of counsel for the defendant who files a motion under HRPP Rule 40 "[i]f the petition alleges that the petitioner is unable to pay the costs of the proceedings or to afford counsel" unless "the petitioner's claim is patently frivolous and without trace of support either in the record or from other evidence submitted by the petitioner." See Dan, 76 Hawai`i 423, 879 P.2d 528 (denial of petitioner request for a court-appointed attorney to assist him with his HRPP Rule 40 petition because petitioner failed (a) to establish his indigency consistent with the procedure prescribed in HRS §§ 802-1 through 802-4 and (b) to assert a colorable claim requiring the court to take further action on his petition).
If, notwithstanding HRPP Rule 40(i)'s express authorization of such action and HRPP Rule 35's lack of language authorizing such action, a defendant who filed a motion under HRPP Rule 35 is entitled to the same rights to a court-appointed attorney as are specified in HRPP Rule 40, Lester has not established his right to a court-appointed attorney. Assuming Lester's inability to pay the costs of the proceedings or to afford counsel, Lester's HRPP Rule 35 Motion failed to state a colorable claim.
3.
Lester contends that the court was biased and prejudiced. In his words, "face it, realistically speaking, the judge does not want to be responsible for turning a life sentence to a 20 year term. Even if it means violating the law." In light of our conclusion that the court correctly denied Lester's HRPP Rule 35 Motion, this point has no merit.
4.
In his reply brief, Lester contends that his sentence under HRS § 706-606 was an enhanced sentence and since "Lester's jury trial did not present any aggravating factors to be considered for the purpose of enhancing Lester's sentence[,] . . . Lester's sentence should be reduced to [a] class "A" felony[.]"
We disagree that Lester's sentence under HRS § 706-606 was an enhanced sentence. HRS § 706-606 specified the sentence for "a person who has been convicted of murder[.]" The precedent cited by Lester, namely State v. Schroeder, 76 Hawai`i 517, 880 P.2d 192 (1994), does not pertain to HRS § 706-606. It pertains to HRS § 706-660.1(a), which "is analogous to the 'repeat offender' statute, HRS § 706-606.5 (1985 and Supp. 1992)[.]" Id. at 530-31, 880 P.2d at 205-06 (footnote omitted).
CONCLUSION
Accordingly, we affirm the April 15, 2002 "Findings of Fact, Conclusions of Law and Order Denying Motion for Correction of Illegal Sentence Pursuant to HRPP Rule 35."
DATED: Honolulu, Hawai`i, July 2, 2003.
On the briefs:
Donald R. Lester,
Defendant-Appellant, pro se.
James M. Anderson,
Deputy Prosecuting Attorney,
City and County of Honolulu,
for Plaintiff-Appellee.
1. Section
1 of Act 15, Session Laws of Hawai`i, Regular Session of 1996, amended
Hawaii Revised Statutes§ 706-656 by adding language pertaining to
repeat offenders. 1996 Haw. Sess. L. Act 15, § 1 at 23.