NOT FOR PUBLICATION
NO. 25982
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI`I
STATE OF HAWAI`I, Plaintiff-Appellee, v.
KEITH ASUNCION, Defendant-Appellant,
and
MOANA ASUNCION, Defendant
APPEAL FROM THE FIFTH CIRCUIT COURT
(CR. NO. 02-1-0124)
SUMMARY DISPOSITION ORDER
(By: Burns, C.J., Foley and Nakamura, JJ.)
On appeal, (3) Asuncion contends the circuit court erred in denying his Rule 35 motion because (1) Asuncion did not waive his right to contest the search warrant and right to trial by jury, (2) Asuncion had ineffective assistance of counsel and (3) "the court should have afforded [Asuncion] an opportunity to withdraw his plea and challenge the warrant."
Upon careful review of the record and the briefs submitted by the parties, we hold:(1) Asuncion failed to meet his "burden of demonstrating by a preponderance of the evidence that his/her waiver was involuntary." State v. Friedman, 93 Hawai`i 63, 69, 996 P.2d 268, 274 (2000).
(2) Asuncion's trial counsel's failure to make a motion to withdraw guilty plea did not rise to an "error that resulted in either the withdrawal or substantial impairment of a potentially meritorious defense." State v. Brantley, 84 Hawai`i 112, 122, 929 P.2d 1362, 1372 (App. 1996). Asuncion fails to show any "specific errors or omissions reflecting counsel's lack of skill, judgment, or diligence" or that "such errors or omissions resulted in either the withdrawal or substantial impairment of a potentially meritorious defense." State v. Wakisaka, 102 Hawai`i 504, 514, 78 P.3d 317, 327 (2003) (internal quotation marks and citation omitted).
(3) Asuncion did not file an HRPP Rule 32(d) motion to withdraw his guilty plea in the circuit court.
Therefore,
IT IS HEREBY ORDERED that the "Order Denying Defendant's [sic] Keith Asuncion's Motion to Correct Sentence"
filed June 24, 2003 in the Circuit Court of the Fifth Circuit is affirmed.
DATED: Honolulu, Hawai`i, May 31, 2005.
On the briefs:
Daniel G. HempeyTracy Murakami,
Deputy Prosecuting Attorney,
County of Kauai,
for plaintiff-appellee.
1. The Honorable Clifford L. Nakea presided.
2. Hawaii Revised Statutes (HRS) § 712-1242 (Supp. 2004) provides in relevant part:
(a) Possesses twenty-five or more capsules, tablets, ampules, dosage units, or syrettes, containing one or more dangerous drugs[.]
. . . .
(2) Promoting a dangerous drug in the second degree is a class B felony.
3. The opening brief of Defendant-Appellant Keith Asuncion (Asuncion) fails to comply with Hawai`i Rules of Appellate
Procedure (HRAP) Rule 28(b)(4) in failing to include in each of the concise statements of the points of error "(ii) where in
the record the alleged error occurred; and (iii) where in the record the alleged error was objected to or the manner in which
the alleged error was brought to the attention of the court[.]" Asuncion's counsel was previously warned on March 31,
2003 concerning his failure to follow HRAP Rule 28. Counsel is hereby warned that future non-compliance with HRAP
28(b)(4) will result in sanctions against him.