State v. Tuua (Memorandum Opinion)

Tuua appeals from the August 22, 2002 "Order Denying Motion for Correction of Illegal Sentence Pursuant to HRPP Rule 35 Without Hearing" entered in the Circuit Court of the First Circuit, Judge Derrick Chan presiding. We affirm.

The record shows that, on February 10, 1978, at about 8:30 p.m., Tuua, armed with a handgun and accompanied by two male companions, entered a restaurant on Liliha Street in Honolulu. Tuua emptied the cash register, robbed the restaurant's patrons, and physically assaulted and injured two of them. Following the robberies, Tuua and his companions fled the restaurant. The restaurant owner, Kai Man Leung, gave chase and was fatally shot by Tuua.

^{On May 16, 2001, Tuua filed the HRPP
Rule 35 Motion}^.^⁽⁴⁾^{Tuua alleges in
the motion that the sentence he received for the
Murder conviction was illegal because: (1) "at the time [Tuua] was
sentenced the statutes' [sic] for class 'A' felonies is [sic]
twenty years, as stated in Hawai`i legislation [sic] enactments at the
time [Tuua] was sentenced"; and (2) "the sentencing
judge did not sentence [Tuua] to the statutory code that defines
different classes of offense[s]."}

^{On July 3, 2001, the State filed a
memorandum in opposition to Tuua's motion (State's Memorandum)}^{stating, in relevant
part, as follows:}

^{Before discussing the facts and law
in this case, the State requests that the Motion be treated as a
nonconforming petition under [HRPP Rule 40],
and that the court issue a written order that the requirements of [HRPP
Rule 40] apply:}

^{. . . .}
^{If the Motion is not treated as a
[HRPP Rule 40] petition, the State moves to dismiss the Motion for lack
of jurisdiction because it is in substance a
motion to reduce sentence and was not filed within 90 days after
sentence was imposed, thus depriving this court of jurisdiction. [HRPP
Rule 35].}

^{On August 15, 2001, in SPP 01-1-0025, it appears that the court
entered an "ORDER DESIGNATION [sic] MOTIONS
AS NONCONFORMING PETITION FOR POST-CONVICTION RELIEF & DIRECTING
PETITIONER TO FILE
SUPPLEMENTAL PETITION".}

^{It appears that Tuua never filed the supplemental petition. Instead,
on August 31, 2001, in Cr. No. 51455, Tuua filed a
"Motion for Reconsideration of Order Removing Defendant's Motion for
Correction of Illegal Sentence Pursuant to HRPP
Rule 35". On August 22, 2002, the court entered its
"Order Denying Defendant's Motion for Reconsideration of Order
Removing Defendant's Motion for Correction of Illegal Sentence Pursuant
to HRPP Rule 35."}

^{On August 22, 2002, in SPP No. 01-1-0025, the court entered an
"Order Denying Motion for Correction of Illegal Sentence
Pursuant to HRPP Rule 35 Without Hearing." The
order stated in pertinent part:}

^{The Court finds that [Tuua] is
mistaken as to the applicable law and therefore his Petition is
patently frivolous.}

^{Tuua filed a notice of appeal on September 16, 2002. The appeal was
assigned to this court on May 19, 2003.}

^{Tuua contends that, in deciding the HRPP Rule 35 Motion and entering
its August 22, 2002 Order in Cr. no. 51455, the
court:}

^{1. erred when it considered his motion as a HRPP Rule 40 motion
rather than as a HRPP Rule 35 motion;}

^{4. was swayed by fear of criticism, and performed its duties with
bias and prejudice.}

^{"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).}

^{"Generally, to constitute an abuse[,] it must appear that the court
clearly exceeded the bounds of reason or disregarded rules
or principles of law or practice to the substantial detriment of a
party litigant." State v.
Crisostomo, 94 Hawai`i 282, 287,
12 P.3d 873, 878 (2000) (citations omitted).}

^{"[T]he interpretation of a statute . . . is a question of law
reviewable de novo." State v. Kotis, 91 Hawai`i
319, 327, 984
P.2d 78, 86 (1999) (citations omitted). "Under the de novo
standard, this court must examine the facts and answer the
pertinent question of law without being required to give any weight or
deference to the trial court's answer to the question. In other words,
we are free to review a trial court's conclusion of law for its
correctness." State v.
Kelekolio, 94 Hawai`i
354, 357, 14 P.3d 364, 367 (App. 2000) (citation omitted).}

^{The Hawai`i Supreme Court has repeatedly stated that when
interpreting a statute, an appellate 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 [the
statute's] plain and
obvious meaning.}

^{we must read statutory language in
the context of the entire statute and construe it in a manner
consistent with its purpose.}

^{When there is doubt, doubleness of
meaning, or indistinctiveness or uncertainty of an expression used in a
statute, an ambiguity exists. . . .}

^{In construing an ambiguous statute,
the meaning of the ambiguous words may be sought by examining the
context, with which the ambiguous words,
phrases, and sentences may be compared, in order to ascertain their
true meaning. Moreover, the courts may resort to extrinsic aids in
determining
legislative intent. One avenue is the use of legislative history as an
interpretive tool. This court may also consider the reason and spirit
of the law,
and the cause which induced the legislature to enact it to discover its
true meaning. Laws in pari materia, or upon the same subject matter,
shall be
construed with reference to each other. What is clear in one statute
may be called upon in aid to explain what is doubtful in another.}

^{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).
Therefore, "we review
questions of constitutional law under the right/wrong standard." State v. Mallan, 86 Hawai`i
440, 443, 950 P.2d 178, 181
(1998) (citation omitted).}

^{HRPP Rule 52(b) (2004) states, "Plain errors or defects affecting
substantial rights may be noticed although they were not
brought to the attention of the court." Therefore, in criminal cases,
an appellate court "may recognize plain error when the
error committed affects substantial rights of the defendant." State v. Davia, 87 Hawai`i
249, 253, 953 P.2d 1347, 1351
(1998) (citing State v.
Cullen, 86 Hawai`i 1, 8, 946 P.2d 955, 962 (1997)).}

^{In State v. Holbron,
the Hawai`i Supreme Court made it clear that, with the possible
exception of a limited class of trial
errors not relevant here, the standard of review applicable to all
trial errors is the "harmless beyond a reasonable doubt"
standard. 80 Hawai`i 27, 32 n.12, 904 P.2d 912, 917 n.12 (1995). Holbron also teaches that}

^{[e]rror is not to be viewed in
isolation and considered purely in the abstract. It must be examined in
the light of the entire proceedings and given the
effect which the whole record shows it to be entitled. In that context,
the real question becomes whether there is a reasonable possibility
that error
might have contributed to conviction.}

^{We agree with Tuua that the court erred when it considered Tuua's
HRPP Rule 35 Motion as an HRPP Rule 40 motion. Tuua's HRPP Rule 35
Motion alleged that the sentence imposed on him by the September 29,
1980 Amended Judgment
was an illegal sentence and asked the court to correct that illegality.
The fact that, if his motion was successful, the result
would have been a reduced sentence did not convert his motion from a
motion for a mandatory correction of an illegal
sentence into a motion for a discretionary reduction of a legal
sentence. As noted supra
n.4, HRPP Rule 35 (2004) permits
the court to "correct an illegal sentence at any time[.]" The time
limits imposed by HRPP Rule 35 apply to requests to
"reduce a sentence" or to "correct a sentence imposed in an illegal
manner[.]" Tuua's HRPP Rule 35 Motion was a motion
to "correct an illegal sentence" that was timely under HRPP Rule 35.}

^{However, the court's treatment of Tuua's HRPP Rule 35 Motion as a
nonconforming HRPP Rule 40 petition for post-conviction relief had no
effect on the merits of Tuua's claim that his sentence is illegal.
Consequently, Tuua has not
suffered any detriment from the circuit court's erroneous decision to
treat his HRPP Rule 35 Motion as a nonconforming
petition for post-conviction relief, pursuant to HRPP Rule 40.
Therefore, the error was harmless.}

^{As a result of Act 314, effective January 1,
1987, HRS § 701-101 (1993) states, in relevant part, as follows:}

^{Applicability to offenses committed
before the effective date of amendments. (1) Except as
provided in subsection (2), amendments made by
Act 314, Session Laws of Hawaii 1986, to this Code do not apply to
offenses committed before the effective date of Act 314, Session Laws
of
Hawaii 1986. Prosecutions for offenses committed before the effective
date of Act 314, Session Laws of Hawaii 1986, are governed by the prior
law, which is continued in effect for that purpose, as if amendments
made by Act 314, Session Laws of Hawaii 1986, to this Code were not in
force. For purposes of this section, an offense is committed before the
effective date of Act 314, Session Laws of Hawaii 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 314, Session Laws of
Hawaii 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 [Disposition of Convicted Defendants] amended by Act 314, Session
Laws of Hawaii 1986, may be applied in particular cases.}

^{As indicated in
HRS § 701-101(1), Tuua's case is "governed by the prior law . . .
as if amendments made by Act 314 . . .
were not in force." Tuua committed the offense in 1978, before the
effective date of Act 314. Thus, under HRS § 701-101(1), Act 314
is inapplicable to Tuua's case "[e]xcept as provided in [HRS §
701-101](2)."}

^{HRS §
701-101(2) allows the sentencing provisions of HRS chapter 706, as
amended by Act 314, to be applied (1) as to
any case concerning any offense committed before January 1, 1987, (2)
if the case is pending on or commenced after
January 1, 1987 (3) upon the request of the defendant and (4) subject
to the approval of the court. Tuua was sentenced on
September 29, 1980. His case was neither pending on, nor commenced
after, January 1, 1987. Therefore, the requirements
of HRS § 701-101(2) were not met, and Tuua was not entitled to be
sentenced under the provisions of chapter 706, as
amended by Act 314.}

^{Tuua's contention
that the repeal of HRS § 706-606 (1976 Repl.) on January 1, 1987,
renders his sentence illegal relies on
Kaiser Foundation Health
Plan, Inc. v. Department of Labor and Industrial Relations,
Unemployment Insurance Division,
70 Haw. 72, 762 P.2d 796 (1988). This reliance, however, is misplaced.
In Kaiser, the
Hawai`i
Supreme Court held that
"[i]n the absence of clear legislative intent to the contrary, repeal
means the statute or statutory provision no longer exists." Id. However, it was not
held that the repeal of a law has any effect on past applications of
that law. Moreover, in other
cases, the Supreme Court has held that "a change to the law, such as
repeal, has no bearing on previous applications of the
prior law absent legislative expression to the contrary." State v. Levi, 102 Hawai`i
282, 287, 75 P.3d 1173, 1178 (2003)
(citing Hun v. Ctr. Props.,
63 Haw. 273, 282, 626 P.2d 182, 188-89 (1981)). See generally United States v. Woods, 986
F.2d 669, 674 (3rd Cir. 1993) ("Our legal system has a strong interest
in the finality of adjudication. Accordingly, we do
not apply new judicial decisions retroactively without substantial
justification.").}

^{Regarding the
repeal of HRS § 706-606, the Hawai`i Supreme Court stated in Levi, "We discern no
legislative intent or
expression in Act 314 indicating that the repeal of the life sentencing
language in HRS § 706-606 on January 1, 1987
rendered any sentence previously imposed thereunder invalid." 102
Hawai`i at 287, 75 P.3d at 1178. Therefore, Tuua was
properly sentenced on September 29, 1980 under the law set forth in HRS
§ 706-606 (1976 Repl.).}

^{Tuua's contention
that he should be sentenced to a twenty-year term pursuant to the
sentencing guidelines for class A
felonies set forth in HRS § 706-659 is without merit. While it is
true that until its repeal on January 1, 1987, HRS § 707-701 (1973
Repl.) described Murder as a class A felony, it also specifically
directed that a defendant "shall be sentenced to
imprisonment as provided in [HRS §] 706-606." For the reasons
stated earlier, the repeal of HRS § 706-606 (1976 Repl.)
on January 1, 1987 had no bearing on Tuua's sentence imposed in 1980.
Thus, HRS § 706-659 would not have been
applicable, as Tuua's sentence would have been properly governed by HRS
§ 706-606 (1976 Repl.).}

^{In his reply
brief, Tuua contends that a term of twenty years is the statutory
maximum sentence for a murder conviction,
and that an increase to a sentence of life imprisonment with the
possibility of parole constitutes an enhanced sentence. This
argument is likewise without merit. Under HRS § 706-606 (1976
Repl.), the court was required to impose a sentence of
"Life imprisonment with possibility of parole or twenty years as the
court determines." The sentence imposed by the court
conforms to the requirements of the statute, as it was clearly within
the court's discretion to impose either a sentence of life
imprisonment with the possibility of parole or a term of twenty years.
Tuua's sentence is not an enhanced sentence.}

^{We note that even
if Tuua were sentenced under current guidelines, HRS § 706-659
would still not apply. As with HRS §
706-606, Act 314 also amended the language of HRS §707-701. As a
result, effective January 1, 1987, Murder is now
classified as either "first degree murder" or "second degree murder,"
and is no longer defined as a class A felony. Sentences imposed upon
murder convictions are now governed by HRS § 706-656 (Supp. 2003),
which states in relevant
part:}

^{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 possibility of parole.}

^{Whether
the circuit court abused its discretion

by
failing to appoint counsel for Tuua.}

^{Tuua contends that
the circuit court abused its discretion by failing to appoint counsel
for him. He cites HRS § 802-1
(1993), which describes the right of an indigent person to
representation by the public defender or other appointed
counsel.⁽⁶⁾ However, this right does
not extend to HRPP Rule 40 proceedings.}

^{It is well settled that an indigent defendant
in a criminal case has a constitutional right to court appointed

counsel on his/her
appeal of right from a judgment of conviction.}^See ^{Douglas v. California}^{, 372
U.S. 353, 354-58 (1963). In}^{Pennsylvania v. Finley}^{,
however, the United States Supreme
Court held that the federal constitutional right to counsel does not
extend to post-conviction challenges:}

^{We have never held that prisoners have a
constitutional right to counsel when mounting collateral attacks upon
their convictions, 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. 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.}

^{In the instant
case, counsel was appointed for Tuua for his appeal of right from the
judgment of conviction. See
Tuua, 3
Haw. App. at 299, 649 P.2d at 1182. Therefore, under the guidelines
established by Douglas
and Finley, Tuua was
afforded his constitutional right to counsel.}

^{The Hawai`i
Supreme
Court has held that while there is no constitutional right to appointed
counsel in post-conviction
collateral proceedings, such counsel may nonetheless be appointed at
the discretion of the court.⁽⁷⁾ See
Engstrom v.
Naauao, 51 Haw. 318, 321, 459 P.2d 376, 378 (1969). In Engstrom,
the Hawai`i Supreme Court concluded:}

^{The constitutional right to assistance of
counsel under the sixth amendment of the United States Constitution,}^{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 evidence and logical presentation of
contentions. No such issue has been raised in the petition in this case.}

^{In this case, Tuua
has not demonstrated his eligibility for appointed counsel. It does not
even appear, from the record, that
he ever requested counsel by submitting an HRPP Appendix Form B, In
Forma Pauperis Declaration. Further, as discussed
in the previous section, Tuua has failed to raise "substantial issues"
that would justify the appointment of counsel. Therefore, even if we
were to assume Tuua's inability to pay for the costs of proceedings or
to afford counsel, we cannot
conclude that the court abused its discretion by deciding not to
appoint counsel for Tuua.}

^{Whether
the court was swayed by fear of

criticism
or exhibited bias or prejudice.}

^{Our conclusion
above that Tuua was not entitled to appointed counsel, either as a
matter of constitutional right or under
HRPP Rule 40(i), proves that facts (a) and (b) do not provide any
indication that the court was swayed by fear of criticism
or exhibited bias or prejudice against Tuua.}

^{As for Tuua's
remaining argument, that the circuit court gave "more credible
consideration" to the State's position, Tuua
appears to simply take issue with the court's substantive analysis and
subsequent ruling against him. We have previously
concluded that the court's August 22, 2002 ruling was correct. Further,
it has long been recognized by the Hawai`i Supreme
Court that "petitioners may not predicate their claims of disqualifying
bias on adverse rulings, even if the rulings are
erroneous." State v. Ross,
89 Hawai`i 371, 378, 974 P.2d 11, 18 (1998). We apply the same rule to
Tuua's assertion that
the court was swayed by fear of criticism.}

^{Accordingly,
we affirm the circuit court's August 22, 2002 "Order Denying Motion for
Correction of Illegal Sentence
Pursuant to HRPP Rule 35Without Hearing".}

^{1.
Hawai`i Rules of
Penal Procedure (HRPP)
Rule 40(c)(2) (2004) states, as it did in 2002, as follows:}

^{Nonconforming
Petition. Where a
post-conviction petition deviates from the form annexed in these rules,
it shall nevertheless be accepted for filing
and shall be treated as a petition under [Rule 40] provided that the
petition (i) claims illegality of a judgment or illegality of "custody"
or "restraint"
arising out of a judgment, (ii) is accompanied by the necessary filing
fee or by a well-founded motion for waiver of the filing fee or request
to
proceed in forma pauperis, and (iii) meets minimum standards of
legibility and regularity.}

^{(i)
A peace officer while in the
performance of his duties, or}^{(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.}

^{Correction
or reduction of sentence.}^{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.}^{Pursuant to an amendment
effective July 1,
2003, HRPP Rule 35 (2004) states in relevant part:}^{Correction or reduction of
sentence.

(a) Correction of
Illegal Sentence. 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. A motion
made by a defendant to correct an illegal sentence more than 90 days
after
the sentence is imposed shall be made pursuant to Rule 40 of these
rules. . . .}

^{Sentence of imprisonment for class A felony.
Notwithstanding
part II; sections 706-605, 706-606, 706-606.5, 706-660.1, 706-661, and
706-662;
and 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 the possibility of suspension of
sentence or sentence of probation.}

^{Right to
representation by public defender or other appointed counsel. Any indigent person
who is (1) arrested for, charged with or convicted
of an offense or offenses punishable by confinement in jail or prison
or for which such person may be or is subject to the provisions of
chapter 571 .
. . 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.}

^{7.

HRPP Rule 40
(2004) describes
conditions under which appointment of counsel is required, in the event
a Rule 40 motion is brought:}

^{(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.}