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Electronically Filed
Supreme Court
SCWC-11-0000592
14-FEB-2014
02:25 PM
IN THE SUPREME COURT OF THE STATE OF HAWAI#I
---o0o---
ERWIN E. FAGARAGAN, Petitioner/Petitioner-Appellant,
vs.
STATE OF HAWAI#I, Respondent/Respondent-Appellee.
SCWC-11-0000592
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-11-0000592; SPP NO. 11-1-0005(1) (CR. NOS. 04-1-0595(1) and
05-1-0090(1)))
February 14, 2014
ACOBA, McKENNA, AND POLLACK, JJ., WITH RECKTENWALD, C.J.,
DISSENTING, WITH WHOM NAKAYAMA, J. JOINS
OPINION OF THE COURT BY POLLACK, J.
Petitioner/Petitioner-Appellant Erwin E. Fagaragan
(Fagaragan) seeks review the Intermediate Court of Appeals’ (ICA)
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October 18, 2012 Judgment on Appeal (ICA Judgment) filed pursuant
to its September 19, 2012 Summary Disposition Order (SDO), which
affirmed the Circuit Court of the Second Circuit’s (circuit
court) July 18, 2011 Findings of Fact, Conclusions of Law, and
Order Denying the Rule 40 Petition for Post-Conviction Relief
(Order Denying Rule 40 Petition).
For the reasons set forth herein, we vacate the ICA
Judgment, and remand the case to the circuit court to enter an
order (1) vacating its Order Denying Rule 40 Petition, and (2)
directing the Hawaii Paroling Authority to hold a new minimum
term hearing under Hawai#i Revised Statutes (HRS) 706-669 (Supp.
2011).
I.
A. Prior Underlying Criminal Proceedings and Appeals
1. Cr. No. 04-1-0595(1)
In Cr. No. 04-1-0595(1), Fagaragan was convicted of
unauthorized control of a propelled vehicle, HRS § 708-836
(Supp. 2005)1 (Count I); promoting a dangerous drug in the first
1
HRS § 708-836 (Supp. 2005) Unauthorized control of propelled
vehicle provides in relevant part:
(1) A person commits the offense of unauthorized control of a
propelled vehicle if the person intentionally or knowingly
exerts unauthorized control over another’s propelled vehicle
by operating the vehicle without the owner’s consent or by
changing the identity of the vehicle without the owner’s
consent.
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degree, HRS § 712-1241(1)(a)(i) (Supp. 2005)2 (Count II);
prohibited acts relating to drug paraphernalia, HRS § 329.43.5(a)
(Supp. 2005)3 (Count IV); and promoting a detrimental drug in the
third degree, HRS § 712-1249(1) (Supp. 2005)4 (Count V). The
charges stemmed from Fagaragan’s arrest for driving a stolen
vehicle and his possession of 33 grams of methamphetamine,
marijuana, and paraphernalia. The circuit court sentenced him to
twenty years imprisonment in Count II, five years imprisonment in
Counts I and IV, and thirty days imprisonment in Count V, all
terms to run concurrently to one another.
2
HRS § 712-1241 (Supp. 2005) Promoting a dangerous drug in the
first degree provides in relevant part:
(1) A person commits the offense of promoting a dangerous
drug in the first degree if the person knowingly:
(a) Possesses one or more preparations, compounds,
mixtures, or substances of an aggregate weight of:
(i) One ounce or more, containing heroin,
morphine, or cocaine or any of their
respective salts, isomers, and salts of
isomers;
3
HRS § 329-43.5 (Supp. 2005) Prohibited Acts Related to Drug
Paraphernalia provides in relevant part:
(a) It is unlawful for any person to use, or to possess with
intent to use, drug paraphernalia to plant, propagate,
cultivate, grow, harvest, manufacture, compound, convert,
produce, process, prepare, test, analyze, pack, repack, store,
contain, conceal, inject, ingest, inhale, or otherwise
introduce into the human body a controlled substance in
violation of this chapter.
4
HRS § 712-1249 (Supp. 2005) Promoting a Detrimental Drug in the
Third Degree provides in relevant part:
(1) A person commits the offense of promoting a detrimental
drug in the third degree if the person knowingly possesses any
marijuana or any Schedule V substance in any amount.
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Fagaragan appealed the convictions. The ICA issued an
SDO affirming the circuit court’s judgment of conviction.
2. Cr. No. 05-1-0090(1)
In Cr. No. 05-1-0090(1), Fagaragan was found guilty of
promoting a dangerous drug in the first degree, HRS § 712-
1241(1)(a)(i) (Supp. 2005) (Count I); attempted promoting a
dangerous drug in the first degree, HRS § 712-1241(1)(b)(ii)(A)
(Supp. 2005)5 (Count II); and prohibited acts relating to drug
paraphernalia, HRS § 329.43.5(a) (Supp. 2005) (Count III). The
charges arose out of a traffic stop in which Fagaragan’s vehicle
was searched and two bags were recovered that contained 28
packets of methamphetamine totaling 5.46 ounces and
paraphernalia. The circuit court sentenced Fagaragan to twenty
years imprisonment in Counts I and II, and five years
imprisonment in Count III, all terms to run concurrently with
5
HRS § 712-1241(1)(b)(ii)(A) (2005 Supp.) provides in relevant
part:
(1) A person commits the offense of promoting a dangerous
drug in the first degree if the person knowingly:
. . . .
(b) Distributes, except for methamphetamine:
. . . .
(ii) One or more preparations, compounds,
mixtures, or substances of an aggregate
weight of:
(A) One-eighth ounce or more, containing
heroin, morphine, or cocaine or any of
their respective salts, isomers, and
salts of isomers[.]
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each other and concurrently with the prison terms imposed in Cr.
No. 04-1-0595(1).
Fagaragan appealed the convictions. The ICA held that
Fagaragan’s convictions in Counts I and II constituted multiple
punishments for the same conduct, as the attempted distribution
offense was based solely on possession of the same contraband
that formed the basis of the possession offense. State v.
Fagaragan, 115 Hawai#i 364, 370, 167 P.3d 739, 745 (2007).
In order to remedy the “improper imposition of multiple
punishments,” the ICA reversed the conviction in Count II because
the circuit court had failed to instruct the jury upon a
requisite state of mind for an element of the attempted
distribution offense in Count II. Id. at 372, 167 P.3d at 747.
The ICA affirmed the convictions in Counts I and III. Id.
B. HPA’s Minimum Term Hearings
On May 21, 2007, Fagaragan and his counsel appeared
before the Hawaii Paroling Authority (HPA) for a consolidated
hearing to set his minimum terms of imprisonment for Cr. No. 04-
1-0595(1) and No. 05-1-0090(1). On the same day, the HPA issued
its Notice and Order of Fixing Minimum Term(s) of Imprisonment
(HPA Order 1), which included the offenses from both criminal
numbers. The minimum terms ordered by the HPA were as follows:
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Crime Number Count Offense 6 Maximum Minimum
04-1-595(1) I UCPV 5 yrs 5 yrs
04-1-595(1) II PDD-1 20 yrs 20 yrs
04-1-595(1) IV Paraphernalia 5 yrs 5 yrs
05-1-0090(1) I PDD-1 20 yrs 20 yrs
05-1-0090(1) II Att. PDD-1 20 yrs 20 yrs
05-1-0090(1) III Paraphernalia 5 yrs 5 yrs
05-1-0090(1) II Att. PDD-1 20 yrs 20 yrs
05-1-0090(1) III Paraphernalia 5 yrs 5 yrs
The HPA categorized Fagaragan as a Level III offender
based on the criteria of “Nature of Offense.”7
On April 23, 2008, following the reversal by the ICA of
Fagaragan’s conviction in Count II in Cr. No. 05-1-0090(1), the
HPA held a second hearing to reset Fagaragan’s minimum terms.
The hearing only pertained to Fagaragan’s convictions in the Cr.
No. 05-1-0090(1) case. On April 26, 2008, the HPA issued a
Notice and Order of Fixing Minimum Term(s) of Imprisonment (HPA
Order 2) resetting Fagaragan’s terms in Cr. No. 05-1-0090(1) to
the identical terms that had previously been imposed:
Crime Number Count Offense Maximum Minimum
05-1-0090(1) I PDD-1 20 yrs 20 yrs
05-1-0090(1) III Paraphernalia 5 yrs 5 yrs
6
The abbreviations used by HPA are stated as follows: UCPV for
“unauthorized control of a propelled vehicle”; PDD-1 for “promoting a
dangerous drug in the first degree”; Paraphernalia for “prohibited acts
related to drug paraphernalia”; and Att. PDD-1 for “attempted promoting
dangerous drug in the first degree.”
7
The HPA utilizes six criteria in determining the level of
punishment for a Level III offender in any given case. The three primary
criteria that generally receive the greatest weight include: Nature of
Offense, the Degree of Injury/Loss to Person or Property, and the Offender’s
Criminal History. The HPA Guidelines require the Order Establishing Minimum
Terms of Imprisonment to include the significant criteria upon which the
decision was based.
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The HPA continued to categorize Fagaragan as a Level
III offender, despite the ICA’s reversal of Fagaragan’s
conviction in Count II, again based on the sole criteria of
“Nature of Offense.”
A May 5, 2008 date-stamp on HPA Order 2 indicates that
a copy was “served to the prisoner” by mail.
C. Fagaragan’s Rule 40 Petitions
1. S.P.P. No. 08-1-0009(1): First Petition
On June 18, 2008, Fagaragan, pro se, filed a Petition
For Post-Conviction Release Pursuant to Hawai#i Rules of Penal
Procedure Rule 40 (First Petition), alleging five grounds as a
basis for relief in connection with Cr. No. 05-1-0090(1).8
8
In his First Petition, Fagaragan alleged the following five
grounds:
1. Illegal Search and Seizure conducted by officers without
first obtaining a search warrant prior to entering the
vehicle received into evidence. This illegal search of
vehicle by K-9 Unit raises a Fourth Amendment violation
protected by the United States Constitution.
2. Petitioner had been charged and convicted by a jury for
the same alleged offense or offenses twice, thereby
violating petitioner’s Fifth Amendment right which protects
an accused of being charged twice for the same offense.
3. In petitioner’s first jury trial the State presented
someone else[’]s evidence to the court. The question
presents itself, did the Maui Police Department mixed up the
evidence held, and convicted petitioner on grounds of false
evidence? An accused has to be found guilty beyond a
reasonable doubt prior to this person receiving a guilty
verdict. This is not the case herein, thereby the court
stands in violation of a Due Process violation which is
guaranteed an accused under the Fourteenth Amendment to the
Constitution.
4. Conviction of Attempted Promotion of Controlled Substance
is over reaching and without merit in this case.
(continued...)
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The Petition did not reference or challenge HPA Order
2, which had reset the minimum terms of imprisonment in Count I
at 20 years and Count III at 5 years. Fagaragan’s return address
on the First Petition indicates he was incarcerated in Eloy,
Arizona.
On June 25, 2008, the circuit court issued its Findings
of Fact, Conclusions of Law, and Order Denying Post-Conviction
Relief Pursuant to Hawai#i Rules of Penal Procedure Rule 40
(Order Denying First Petition). The circuit court concluded: the
illegal search issue was previously raised before the trial court
on a motion to suppress; the double jeopardy issue was raised on
appeal (and Fagaragan prevailed on that point, making it moot);
and every other issue Fagaragan raised in his Rule 40 petition
could have been raised on appeal but was not, and was thus
waived. The circuit court therefore denied the First Petition
without a hearing.
Fagaragan appealed the Order Denying First Petition to
the ICA. Fagaragan’s arguments on appeal were largely identical
8
(...continued)
5. There was no foundation laid as to the proper working
order of the instruments used by the Maui Police Department
in the testing of alleged uncontrolled substance)s) which
ultimately were used to convict petitioner herein.
6. The entire conviction herein is illegal, as petitioner
had to be found guilty beyond a reasonable doubt, which has
not been the case in this jury trial and said conviction
must be remanded for the overturning of said sentence, and
petitioner must be released from custody at once.
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to his arguments in his First Petition, with the exception of a
newly raised claim for ineffective assistance of appellate
counsel (IAC). The ICA held that because Fagaragan did not
initially raise the ineffective assistance claim in the First
Petition, the issue would be disregarded pursuant to Hawai#i
Rules of Appellate Procedure (HRAP) 28(b)(4). Fagaragan v.
State, No. 29281, 121 Hawai#i 178, 2009 WL 2608463, at *1, *3
(App. Aug. 26, 2009) (SDO). With respect to the other issues
raised, the ICA affirmed the Order Denying First Petition. Id.
at *2-*3. Fagaragan filed an application for writ of certiorari,
which this court denied. Fagaragan v. State, No. 29281, 2010 WL
374737 (Haw. Jan. 20, 2010).
2. S.P.P. No. 11-1-0005(1): Second Petition
On May 11, 2011, Fagaragan, pro se, filed a Petition to
Vacate, Set Aside, or Correct Judgment or to Release Petitioner
for (sic) Custody (Second Petition) with respect to Cr. Nos. 04-
1-0595 and 05-1-0090. The return address of the Second Petition
indicates that Fagaragan was incarcerated in “CCA-Saguaro” Eloy,
Arizona. In the Second Petition, Fagaragan contended that the
HPA had violated the 5th, 6th, 8th, and 14th Amendments to the
United States Constitution as well as the State of Hawai#i
Constitution.
In response to question 11(e) of the Second Petition,
“If you did not appeal from the adverse action on any petition,
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application or motion, explain briefly why you did not,”
Fagaragan responded that he “thought that HPA would grant me a
new hearing based that they violated others rights which the ICA
and Supreme Court stated but they would not listen to them[.]”
In response to question 13 of the Second Petition, “If
any of the grounds listed 12A, B, C, and D were not previously
presented, state briefly what grounds were not so presented, and
your reasons for not presenting them,” Fagaragan answered that he
“thought that HPA would correct their errors but did not even
though the ICA-Supreme Court ordered that the prior sentences
were illegal.”
Fagaragan continued, “HPA should have corrected their
erros [sic] violations without me submitting this but they
continue to violate my rights.”
In his Memorandum in Support of his Rule 40 petition,
Fagaragan asserted that the HPA acted arbitrarily and
capriciously in: (1) failing to follow their guidelines by not
including the “Degree of Injury/Loss To Person or Property” and
“Criminal History” criteria; (2) categorizing him as a Level III
offender, in light of an absence of criminal history; and (3)
subsequently setting his minimum term at 20 years, in violation
of equal protection. Fagaragan argued that he should not have
received Level III punishment as “no-one during trial testified
that he sold or did any such act” of being involved in the
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“manufactor [sic], importation or distribution of drugs.”
Fagaragan attached both the First and Second HPA Order as
exhibits to the Second Petition and contended that HPA
“[a]rbitrarily and [c]apriciously” violated petitioner’s rights
not once, but twice.” Fagaragan’s requested relief was for the
HPA to categorize him as a Level I or II offender and correctly
reset a new minimum term.
On June 14, 2011, the State filed its Answer to
Petition to Vacate, Set Aside, or Correct Judgment or to Release
Petitioner From Custody (Response). The State argued that
Fagaragan waived the issues presented in his Second Petition for
failing to raise them in his First Petition. The State noted
that Fagaragan had not submitted any evidence of “extraordinary
circumstances to justify his failure to previously raise the
issues.”
In response to Fagaragan’s claim that the HPA violated
his procedural and substantive due process rights, the State
argued that Fagaragan received all the process that he was due
because the HPA held a fair hearing to reset his minimum term,
and Fagaragan had no constitutional right to parole or a
reduction of a minimum term of imprisonment and release from
custody.
Moreover, the State argued that the HPA properly
categorized Fagaragan as a Level III offender and had not acted
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“arbitrarily or capriciously so as to give rise to a due process
violation.” In support of its position, the State pointed out
that: (1) Fagaragan’s actions fit the significant criteria under
Level III, “Nature of Offense,” in the HPA Guidelines For
Establishing Minimum Terms of Imprisonment, July 1989 (HPA
Guidelines); (2) Fagaragan was previously convicted and sentenced
under FC No. 02-1-0995; and (3) the HPA’s findings indicated that
Fagaragan fit the significant criteria of “Character and Attitude
of Offender With Respect to Criminal Activity or Lifestyle;” and
he “deserved the category of Level III.”
Fagaragan filed a reply brief (Rule 40 Reply). As to
the State’s argument that he waived his claims, Fagaragan stated
that HPA had not “corrected their errors prior to him filing his
initial petition”:
As to the States [sic] first argument as to why his petition
should be denied is because he failed to properly argue this
on his initial HRPP Rule 40 petition. However this is not
so. HPA failed to correct their errors prior to him filing
his initial petition. Had HPA fixed the problem in the
first place he would not have argued this . . . The
Intermediate Court of Appeals and Supreme Court State of
Hawaii ordered HPA to correct their errors which they refuse
to do.
(Emphasis added).
In addition, Fagaragan argued that he did not waive his
challenge to his minimum term for having failed to raise the
issue in the First Petition because the “grossly inadequate law
library” did not have a copy of Coulter v. State, 116 Hawai#i
181, 172 P.3d 493 (2007), in the legal books or on LEXIS at the
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time Fagaragan filed his First Petition. Fagaragan also
reiterated that he was a Level I (or II) offender because,
contrary to what the State argued, the instant drug offenses were
Fagaragan’s “first ever criminal conviction,” FC No. 02-1-0995
having been previously dismissed.
The circuit court, without holding a hearing, issued
its Findings of Fact, Conclusions of Law, and Order denying Rule
40 Petition for Post-Conviction Relef.9 The circuit court
concluded that Fagaragan waived his claims in the Second Petition
for not including them in his First Petition, failed to “prove
the existence of extraordinary circumstances to justify [his]
failure to raise the issues previously,” and therefore “failed to
rebut the presumption and has waived the claims” in the Second
Petition. Additionally, the court held that Fagaragan’s
allegations even if taken as true, do not entitle him to relief.
Therefore, the circuit court concluded that Fagaragan failed to
present a colorable claim, the claims were “patently frivolous,”
and were without support in the record. Fagaragan timely
appealed.
D. Intermediate Court of Appeals
1. Opening Brief
Fagaragan raised, inter alia, the following points of
error:
9
The Honorable Rhonda I. L. Loo presided.
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a.) Whether the courts erred in denying petitioner his Rule
40 without a hearing which he did have colorable grounds for
relief.
b.) Whether HPA did violate petitioner’s 5 th, 6 th, 8 th and
14 th Amendments to the US Constitution when HPA failed to
comply with their own statutorily required procedural
requirements/guidelines when they failed to list all the
special criteria’s as mandated by HRS § 706-669(8).
c.) Whether HPA violated petitioner’s 5 th, 6 th, 8 th and 14 th
Amendments to the US Constitution when they illegally
assessed him as a Level III Offender which per guidelines he
should have been assessed as a Level I or at the most Level
II Offender due to this being his first ever conviction and
imprisonment and due to his offenses not being classified as
serious which no person received any type of injuries for
crimes of drugs .10
In support of his first and second points of error,
Fagaragan argued that he had a colorable claim for Rule 40 relief
because he demonstrated that HPA utilized only one criteria
(“Nature of Offense”) in setting his minimum term rather than all
three significant criteria, the other two criteria being
“Criminal History” and “Character and Attitude of Offender With
Respect to Criminal Activity or Lifestyle,” in violation of
Coulter, 116 Hawai#i 181, 172 P.3d 493 (2007). Further,
Fagaragan argued that HPA should have utilized all six
10
Fagaragan also presented two additional points of error:
d.) Whether HPA acted arbitrarily or capriciously when they
failed to properly follow their guidelines thus violating
his 5 th, 6 th, 8 th, and 14 th Amendments under the Equal
Protection Clause which others had received lesser prison
sentences which they were convicted of 4-5-6 times for the
same offenses and the being petitioner’s first ever
conviction.
e.) Whether petitioner’s claims warrents [sic] Habeas
Relief which HPA and the courts violated his US
Constitutional rights under the 5 th, 6 th, 8 th, and 14 th
Amendments.
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significant criteria when establishing his minimum term, and it
did not.
In support of his third point of error, Fagaragan
argued that he did not fit the criteria for categorization as a
Level III Offender and was, at most, a Level I or II Offender.
This was because, according to Fagaragan, as to the nature of the
offense, his crimes were not “cruel and callous” or “against the
elderly, handicap and or minor,” and he “did not distribute or
import or cultivate drugs[.]” As to the degree of injury and/or
loss, Fagaragan asserted that he did not rape or murder or
otherwise cause injury to anyone. As to his criminal history,
Fagaragan argued he had “no prior convictions.”
In conclusion, Fagaragan requested that the ICA “grant
him his petition and order HPA to conduct a new hearing” before
the HPA to have his minimum term reset as a Level I or II
Offender.
2. Answering Brief
In its Answering Brief, the State argued that Fagaragan
waived the claims raised in his Second Petition by knowingly and
understandingly not raising them in his First Petition without
submitting any evidence of extraordinary circumstances to justify
his failure to raise those claims. Specifically, the State
argues that Fagaragan had “ample opportunity to raise any
challenges to his May 21, 2007 minimum term order or his April
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23, 2008 minimum term order therein, but waited until the instant
Petition, filed on May 11, 2011, to make his claims.”
The State nonetheless went on to address the merits of
Fagaragan’s points of error. As to Fagaragan’s first and second
points of error (that the HPA was required to utilize three
criteria or six significant criteria), the State countered that
the case law Fagaragan cited did not support his argument that
the HPA had to point to more than just the “Nature of Offense”
significant criteria to justify its Level III categorization.
The State explained that Hopkins v. State, No. 29816
(App. Apr. 29, 2010)(SDO), and DeWayne Asuega v. State, S.P.P.
No. 09-1-0012 (available on Ho#ohiki under Case ID 1PR091012
under “Court Minutes,” entries 5 through 8), involved cases where
the HPA could not have just relied on one factor, “Degree of
Injury and/or Loss,” in determining that an inmate was a Level
III Offender, because the degree of injury and/or loss is the
same in any case involving theft of over $20,000 (Hopkins) or
negligent homicide (Asuega); therefore, the HPA must have used
other criteria in determining Level III status that it did not
specify.
Additionally, the State argued that Coulter did not
hold that the HPA’s failure to indicate the level of punishment
and significant criteria in a minimum term order is a
constitutional violation.
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As to Fagaragan’s third point of error (that he should
not be categorized as a Level III Offender), the State responded
that Fagaragan met Level III criteria under “Nature of Offense”
based on the amount of drugs he possessed, and the other prongs
under that criteria (that the crime was callous and cruel or that
it was against a certain class of victims) were irrelevant.
Further, the State argued that, under “Nature of Offense,”
Fagaragan fared poorly with regard to his “Character and Attitude
of Offender With Respect to Criminal Activity,” justifying a
Level III categorization. Additionally, the State argued that
Fagaragan also fared poorly under the categories “Efforts Made to
Live a Pro-Social Life Prior to Commitment to Prison” and
“Involvement of the Offender in the Instant Offense(s).” Lastly,
the State argued that Fagaragan was previously convicted and
imprisoned in FC No. 02-1-0995 and asked the ICA to take judicial
notice of those court records. The State asserted that all of
these factors justified the HPA’s determination that Fagaragan
fit the characterization of a Level III Offender.
3. Reply Brief
In Fagaragan’s Reply Brief, Fagaragan argued that he
did not waive his claim that the HPA erred in its Order resetting
his minimum terms by failing to raise the issue in his First
Petition. He explained that, “HPA failed to correct their errors
prior to him filing his initial petition.” Fagaragan stated that
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he had never received HPA’s Order until after filing his First
Petition:
The State argues at pg 21 that petitioner did not object to
HPA’s decision. How absurb!! Ridoulas!! HPA saw petitioner
April-May 2008. HPA did not give their decision until 90
plus days later. How could he object the same day of
hearing?
Had petitioner receive response same day, he would have
objected and argued this in his First Petition. Now the
State says, “Hey you failed to raise this issue on First
Petition and now it should be dismissed.”
Petitioner’s Added New Claim Against HPA for the Violation
of His Due Process Rights
HPA and State prosecutors violated petitioner’s due process
rights when they did not give full notice of Petitioner’s
sentence on the on the day of hearing, thus denying him the
right to appeal HPA’s decision on a timely matter.
Facts: HPA and the State violated petitioner’s rights to
further appeal H.P.A.’s decision when they illegally imposed
a sentence of 20 yrs out of 20 yrs. HPA saw petitioner on
April 2008, then serving him their response 90 plus days
later, thus denying him the right to add this claim on his
first Rule 35-40 Petition.
Fagaragan also pointed to a grossly inadequate law library as an
extraordinary circumstance justifying his failure to previously
raise the illegal procedures which HPA conducted during the
setting of his minimum term of imprisonment.
Fagaragan reiterated his earlier contentions that: (1)
HPA deviated from its Guidelines by failing to list all three
criteria on his minimum term order; and (2) Coulter, Asuega,
Hopkins, and Williamson all stand for the proposition that a new
hearing is required if HPA lists anything less than all three (or
six) criteria.
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Fagaragan responded to the points made in the State’s
Answering Brief. Fagaragan first disputed the State’s claim that
he has a prior conviction in FC No. 02-1-0995, asserting that the
case was dismissed. Fagaragan next argued that the State cannot
use “Character and Attitude of Offender with Respect to Criminal
Activity,” “Efforts to Live a Pro-Social Life Prior to Prison,”
and “Involvement of Offender” as justifying his Level III status,
as none of these criteria were listed on HPA’s minimum term
order.
4. Summary Disposition Order
In its SDO, the ICA affirmed the trial court’s Findings
of Fact, Conclusions of Law, and Order Denying Rule 40 Petition
for Post-Conviction Relief. The ICA found that Fagaragan “could
have, but did not, challenge the HPA’s fixing of the minimum
terms of imprisonment on his convictions.” Thus, the ICA
concluded that Fagaragan “waived all the issues he raises in his
Petition” for failing to raise them in his prior Rule 40 Petition
without any showing of extraordinary circumstances justifying his
failure, and the “Circuit Court did not err in denying his
Petition without a hearing.” The ICA further concluded that “in
any event,” Fagaragan’s arguments on appeal “lack merit,” as
Fagaragan’s promoting dangerous drug in the first degree
convictions involved the manufacture, importation, distribution
or cultivation of substantial quantities of drugs:
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The HPA’s “Guidelines for Establishing Minimum Terms of
Imprisonment” (Guidelines) include under the criteria
“Nature of Offense” for a level III level of punishment that
“[t]he offense involved the manufacture, importation,
distribution, or cultivation of substantial quantities of
drugs.” Fagaragan’s Promoting Dangerous Drug I convictions
fit this description. There is support in the record for
the HPA’s determination that under its Guidelines, Fagaragan
fell within a Level III level of punishment with respect to
his Promoting Dangerous Drug I convictions based upon the
criteria of “Nature of the Offense.”
(Emphasis added).
Accordingly, the ICA concluded that the HPA did not act
arbitrarily or capriciously in setting Fagaragan’s minimum terms
for his convictions, and Fagaragan failed to show a colorable
claim that the HPA’s actions violated his constitutional rights.
E. Application for Writ of Certiorari
On Oct. 22, 2012, Fagaragan filed an Application for
Writ of Certiorari (Application). Fagaragan presented seven
questions. Question Presented E and G are stated as follows:
E. The court[] erred in denying petition for post-
conviction pursuant to H.R.P.P. Rule 40 when stating that
petitioner should have appealed H.P.A.’s decision when he
received notice of the 20 yrs minimum sentence, which has
stated that he did not receive the notice[] until some 90
days after decision, ineffective assistance.
G. The court[]s erred in denying petition for post-
conviction pursuant to H.R.P.P. Rule 40 when stating that
H.P.A. did not act arbitrarily and capriciously; when
petitioner’s sentence was over-turned in part. H.P.A. did
not reset his original sentence they let it stand at 20 yrs,
they should have reduced it. 11
11
The remaining questions presented are as follows:
A. Whether the court[] erred in denying petition for post-
conviction pursuant to H.R.P.P. Rule 40 when stating that
HPA does not have to follow Hawaii Revised Statutes (H.R.S.)
§ 706-669 which states H.P.A. shall list (1) nature of
offense; (2) degree of injury and or loss; and (3) criminal
history of offender which is mandated by law when assessing
(continued...)
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Question Presented E asserts that Fagaragan did not
receive notice that the HPA reset his minimum term to the same
twenty-year minimum term after remand in time for him to have
raised the issue in his First Petition. In explaining why he did
not contest the HPA’s decision in his First Petition, Fagaragan
explains that “H.P.A. did not serve notice on Petitioner until 90
plus days later, thus Petitioner not arguing HPA’s decision.”
“Had H.P.A. served Petitioner the same day when they let minimum
term stand he would have added this claim.” Additionally,
Fagaragan responds to the ICA’s finding that he waived the issue:
It did not take the same day to hand out a prison sentence
when he saw HPA in April-May 2008. He received response past
11
(...continued)
minimum term sentences.
B. Whether the court[] erred in denying petition for post-
conviction pursuant to H.R.P.P. Rule 40 when stating that
H.P.A. does not have to list all six special criteria’s when
assessing inmates level of punishments as required per case
law in Hopkins v. State; Asuega v. State.
C. Whether the court[] erred in denying petition for post-
conviction pursuant to H.R.P.P. Rule 40 when stating that a
“first-time” offender shall serve the full maximum sentence
twenty (20) years out of twenty (20) years while other who
have 2-3-4 priors serve less time when they had double-
triple amount of drugs than petitioner, thus denying him
parole.
D. Whether the court[] erred in denying petition for post-
conviction pursuant to H.R.P.P. Rule 40 when stating that
rapist-murders shall receive lesser minimum term sentences
than a first-time drug offender.
. . . .
F. The court[] erred in denying petition for post-
conviction pursuant to H.R.P.P. Rule 40 when stating that
petitioner does not fit the criteria under Article 1, § 5 of
the Hawaii Constitution and pursuant to the 5th, 6th, and
14th amendments to the U.S. Constitution which states: “All
persons in similarly situated situations should be treated
alike.”
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the 90 day period to appeal. HPA caused the delay when
mailing said decision. It was counsel and HPA who violated
Petitioner’s rights not Petitioner waiving said issue.
In Question Presented G, Fagaragan asserts that the HPA
arbitrarily and capriciously reset his minimum sentence at the
same twenty-year minimum term after his original sentence was
overturned in part. Fagaragan argues that the HPA’s deviation
from its Guidelines for Establishing Minimum Terms of
Imprisonment, without explanation, constitutes “arbitrary or
capricious action that violates a prisoner’s right.”
Specifically, Fagaragan points to the HPA’s use of only one
significant criteria, “Nature of Offense,” in establishing his
minimum terms of imprisonment as inconsistent with the
requirements of HRS § 706-669(8) that minimum sentences be
determined on a uniform basis.
Fagaragan requests that this court 1) order the HPA to
conduct a new minimum term hearing; and 2) instruct the HPA to
reset his level of punishment in conformance with the HPA
Guidelines at Level I, or at most Level II.
The State did not file an opposition to the
Application.
II.
This court reviews a trial court’s denial of an HRPP
Rule 40 petition without a hearing for failure to present a
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colorable claim de novo. Dan v. State, 76 Hawai#i 423, 427, 879
P.2d 528, 532 (1994).
With respect to HPA decisions establishing a minimum
term, this court has stated that “judicial intervention is
appropriate where the HPA has failed to exercise any discretion
at all, acted arbitrarily and capriciously so as to give rise to
a due process violation, or otherwise violated the prisoner's
constitutional rights.” Coulter, 116 Hawai#i at 184, 172 P.3d at
496 (2007) (quoting Williamson v. Hawai#i Paroling Auth., 97
Hawai#i 183, 195, 35 P.3d 210, 222 (2001)); De La Garza v. State,
129 Hawai#i 429, 439, 302 P.3d 697, 711 (2013).
With respect to claims of procedural violations, the
court will assess whether the HPA complied with the procedural
protections of HRS § 706–669 and complied with its own
guidelines, which the HPA was required to establish by statute
under HRS § 706–669(8). Coulter, 116 Hawai#i at 184, 172 P.3d at
496.
III.
A.
Fagaragan contends it was error to deny his Second
Petition on the basis that he “should have appealed H.P.A.’s
decision when he received notice[] of the 20 yrs minimum
sentence, [but] which . . . he did not receive . . . until some
90 days after decision.” The ICA, however, found that in filing
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his First Petition, Fagaragan “could have, but did not, challenge
the HPA’s fixing of the minimum terms of imprisonment on his
convictions.” Consequently, the ICA concluded that in the
absence of a showing of extraordinary circumstances, “Fagaragan
waived the issues presented in his [Second] Petition, and the
Circuit Court properly denied his [Second] Petition without a
hearing.”
HRPP Rule 40(a)(3) provides as follows:
Rule 40 proceedings shall not be available and relief
thereunder shall not be granted where the issues sought to
be raised 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, 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 rebuttable presumption that a failure
to appeal a ruling or to raise an issue is a knowing and
understanding failure.
(Emphases added).
Thus, “an issue is waived if the petitioner knowingly
and understandingly failed to raise it” (a rebuttable presumption
of knowing and understanding failure arises from such omission),
“and it could have been raised before the trial, at the trial, on
appeal, . . . [in] any other proceeding actually conducted, or in
a prior proceeding actually initiated under [Rule 40], and the
petitioner is unable to prove the existence of extraordinary
circumstances to justify . . . failure to raise the issue.”
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Fragiao v. State, 95 Hawai#i 9, 15-16, 18 P.3d 871, 877-78
(2001).
This court has held that a claim of ineffective
assistance of counsel is not considered “waived” for the purposes
of an HRPP Rule 40 petition if there was “no realistic
opportunity” for the petitioner to raise the claim in the
proceedings specified by the rule. See Briones v. State, 74 Haw.
442, 459-60, 848 P.2d 966, 975 (1993) (holding that petitioner
was unable to raise ineffective assistance of counsel issue on
direct appeal where petitioner was represented by same counsel at
trial and on direct appeal); Fragiao, 95 Hawai#i at 16, 18 P.3d
at 878 (2001) (finding no waiver of claim asserting trial
counsel's conflict of interest where petitioner was unaware of
conflict until new appellate counsel was appointed).
In De La Garza, we held that a petitioner seeking post-
conviction relief under HRPP Rule 40 presented sufficient
evidence to rebut the presumption that he knowingly and
understandingly waived the issue. 129 Hawai#i at 443, 302 P.3d
at 711. In that case, De La Garza asserted that he did not
receive evidence containing adverse information in an HPA file
prior to his second hearing and was thus deprived of a
“meaningful opportunity to be heard on the issue of the minimum
term.” Id. at 441-42, 302 P.3d at 709-10. The ICA held that De
La Garza had waived the issue by failing to raise it in the Rule
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40 Petition. Id. at 442, 302 P.3d at 710. This court vacated
the ICA’s holding and held that “a claim . . . is not considered
‘waived’ for the purposes of a HRPP Rule 40 petition if there was
‘no realistic opportunity’ for the petitioner to raise the
claim[.]” Id. at 442-43, 302 P.3d at 710-11.
In this case, Fagaragan’s Second Petition and his Rule
40 Reply should have alerted the circuit court that there was a
significant question as to whether Fagaragan had received HPA
Order 2 prior to filing his First Petition. Fagaragan explained
the reason for not previously presenting the claims for relief,
“I thought that HPA would correct their errors but did not even
though the ICA-Supreme Court ordered that the prior sentences
were illegal. HPA should have corrected their errors violations
without me submitting this but they continued.”
That Fagaragan “thought HPA would correct their errors
but did not” and HPA “should have corrected their errors without
me submitting this” was an express statement by Fagaragan to the
circuit court that he had no knowledge of HPA Order 2 or its
terms at the time he filed his First Petition. In his Rule 40
Reply, Fagaragan reiterated this assertion: “HPA failed to
correct their errors prior to him filing his initial petition.
Had HPA fixed the problem in the first place he would not have
argued this.” (Emphasis added). If the court considered
Fagaragan’s statements unclear or lacking in detail, HRPP Rule
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40(e)12 requires the court to give the petitioner an opportunity
to clarify the petition prior to dismissing it for want of
particularity.
In support of Fagaragan’s contention that he was
unaware of HPA Order 2 at the time he filed the First Petition
was the timing between (1) HPA Order 2, (2) the date stamped on
HPA Order 2 that indicated when it was mailed, and (3) the filing
date of Fagaragan’s First Petition. All three events occurred
within a fairly narrow time frame, making any overlap between
mailing, receiving, and filing dates more probable. HPA Order 2
is dated April 26, 2008; the date of mailing was May 5, 2008;
and, Fagaragan filed his Second Petition on June 18, 2008.
Therefore, the proximity of the timing between the documents,
together with Fagaragan’s statements that he was unaware of HPA’s
Order at the time he submitted his first petition, should have
caused the circuit court, at a minimum, to seek clarification as
12
HRPP Rule 40(e) provides the following:
Amendment and withdrawal of petition. The court may grant
leave to amend or withdraw the petition at any time.
Amendment shall be freely allowed in order to achieve
substantial justice. No petition shall be dismissed for
want of particularity unless the petitioner is first given
an opportunity to clarify the petition.
(Emphasis added). “[A] pro se petitioner ‘should not suffer for his inability
to articulate his claim.’” Garringer v. State, 80 Hawai#i 96, 904 P.2d 1142,
1150 (1996) (holding that before the court dismissed the petition without
holding a hearing, petitioner should have been given an opportunity to clarify
his petition by amending it to include specific factual allegations relevant
to his claim).
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to whether Fagaragan intentionally or knowingly waived the claims
in his Second Petition.
Additionally, the contents of Fagaragan’s First
Petition did not reflect knowledge of the contents of HPA Order
2. Instead, the First Petition included a reference to
“Conviction of Attempted Promotion of Controlled Substance” as an
issue for review even though HPA Order 2 only included two
offenses: “Promoting a Dangerous Drug in the First Degree” and
“Prohibited Acts Relating to Drug Paraphernalia.” The offense
Fagaragan raised in his First Petition, “Attempted Promoting a
Drug in the First Degree[,]” only appeared in HPA Order 1.
Relatedly, after the ICA reversed Fagaragan’s most
serious conviction (Count II), Fagaragan presumably anticipated a
reduction in his minimum terms of imprisonment after HPA held its
second hearing. Had Fagaragan received HPA Order 2 with the
identical minimum term, it would appear likely that there would
have been a reference to it in the First Petition. Instead, the
absence of any reference to HPA Order 2 substantiates Fagaragan’s
contention that he was not aware of its existence at the time he
filed the First Petition.
B.
In contrast to the evidence pointing to Fagaragan as
having not received notice of the Order, the only countervailing
evidence is a May 5, 2008 date that is stamped on HPA Order 2
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indicating that a copy was “served” by mail to Fagaragan.
Assuming HPA Order 2 was mailed on May 5, 2008, there is,
however, no prison log, receipt of service, or other
documentation indicating when the mail was received or forwarded
to Fagaragan. The only record as to mailing or receiving is the
stamped signature by the HPA Secretary with a stamped date on the
order itself.
In Setala v. J.C. Penney Co., 97 Hawai#i 484, 489, 40
P.3d 886, 891 (2002), this court acknowledged the unique
circumstances pro se prisoners face because “a prisoner has no
choice but to turn over his or her notice of appeal to prison
authorities for forwarding to court clerks, [and] the pro se
prisoner is not similarly situated with other civil litigants.”
97 Hawai#i at 487, 40 P.3d at 889 (quoting Houston v. Lack, 487
U.S. 266, 275, 108 S.Ct. 2379 (1988)). As a result, the court
adopted a “mailbox rule” holding that a pro se prisoner’s notice
of appeal is deemed filed on the day it is tendered to prison
officials. Setala, 97 Hawai#i at 485, 489, 40 P.3d at 887, 889.
The rationale behind the rule was that “[b]ecause ‘the prisoner
confined to his [or her] cell . . . can usually only guess the
prison authorities, the Postal Service, or the court clerk is to
blame for any delay[,]’ the prison may be the only entity that
has evidence of the date of mailing.” Id. at 489, 40 P.3d at 891
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(citation omitted) (quoting Houston, 487 U.S. at 276). The
Setala court held that where there is no evidence of mailing,
“appellate courts may remand the case to the trial court for a
determination of when the notice was given to the prison
authorities by the pro se litigant.” Setala, 97 Hawai#i at 489,
40 P.3d at 891.
While Setala primarily dealt with notices of appeal,
the holding is relevant in outlining the unique difficulties
associated with pro se prisoners and the prison mailing system.
Just as pro se prisoner litigants cannot personally travel to the
courthouse to ensure their notice of appeal is filed by the
clerk, pro se prisoner litigants cannot personally receive their
own mail at the facility to ensure that mailed documents are
actually received and timely delivered by the facility staff to
the inmate.
As noted, Fagaragan’s return address indicates he was
incarcerated in Eloy, Arizona when he filed his First and Second
Petitions. Fagaragan’s physical location left him no other
choice than to rely on the mail system as the only means of
litigating his claim. Therefore, being subject to both the mail
system and the prison authorities’ delivery of his mail,
Fagaragan’s claim of having not received HPA’s Order 2 prior to
filing the First Petition merits is owed due consideration by the
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court, especially in light of the time proximity of the relevant
documents.
C.
The record of this case raises a significant question
as to whether Fagaragan had a realistic opportunity to contest
HPA Order 2 in the First Petition, and consequently whether
Fagaragan intelligently and knowingly waived the claims set forth
in the Second Petition.
As noted, HRPP Rule 40(a)(3) provides that there is a
rebuttable presumption that a failure to raise an issue that
could have been raised in a prior proceeding is a knowing and
intelligent failure. If the presumption is not rebutted, then a
court must determine whether the petitioner has proven the
existence of extraordinary circumstances to justify the failure
to raise the issue. If the petitioner is unable to prove the
existence of extraordinary circumstances to justify the failure
to raise the issue, then the issue is waived.
However, in this case, the circuit court made the
following conclusion of law:
Petitioner’s allegations in the present Petition have been
waived by Petitioner’s failure to include them in the prior
HRPP Rule 40 Petition, S.P.P. No. 08-1-0009, and Petitioner
has failed to aver any facts that would “prove the existence
of extraordinary circumstances to justify the petitioner’s
failure” to raise the issues previously. HRPP Rule
40)a)(3). Therefore, under HRPP Rule 40(a)(3) Petitioner
has failed to rebut the presumption and has waived the
claims in the present HRPP Rule 40 petition.
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(Emphases added).
The circuit court erred by concluding that a failure to
prove the existence of extraordinary circumstances is a failure
to rebut the presumption and a “waive[r] of claims.” To
reiterate, a court must first determine whether a petitioner has
rebutted the presumption of a knowing and intelligent failure to
raise an issue. If the presumption is not rebutted, then the
court determines whether the existence of extraordinary
circumstances justifies the failure to have previously raised the
claim.
On the other hand, if sufficient evidence is presented
to rebut the presumption, then the court is not required to
assess whether petitioner had proved the existence of
extraordinary circumstances. See De La Garza, 129 Hawai#i at
443, 302 P.3d at 711 (2013) (holding that petitioner presented
sufficient evidence to rebut the presumption and therefore the
court was not required to evaluate the existence of extraordinary
circumstances); Fragiao, 95 Hawai#i at 15-16, 18 P.3d at 877-78
(2001).13
13
See also Tachibana v. State, 79 Hawai#i 226, 232, 900 P.2d 1293,
1299 (holding that “where trial and appellate counsel are the same, no
realistic opportunity exists for a defendant to raise the issue of whether
that attorney usurped defendant’s right to testify[,]” and not evaluating for
extraordinary circumstances); Briones, 74 Haw. at 459, 848 P.2d at 968-69
(holding that “[w]here petitioner has been represented by the same counsel
both at trial and on direct appeal, no waiver of the issue of trial counsel’s
performance occurs because no realistic opportunity existed to raise the issue
on direct appeal[,]” and not evaluating for extraordinary circumstances);
(continued...)
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Accordingly, once Fagaragan made a showing that the
failure to raise his claims in the First Petition was not an
intelligent and knowing failure, then it was unnecessary for the
circuit court to reach the question of the existence of
extraordinary circumstances, and the Second Petition should not
have been denied without a hearing on the basis that the claims
had been waived.
IV.
HRPP Rule 40(a)(2) provides that “[a]ny person may seek
relief under the procedure set forth in this rule from custody
based upon a judgment of conviction . . . .” In the First
Petition, Fagaragan sought relief from the judgment of conviction
in Cr. No. 05-1-0090(1) only. Consequently, even assuming that
the waiver doctrine of HRPP Rule 40(a)(3) applied to the Second
Petition, the waiver would have applied only to claims that could
have been brought in the First Petition that related to Cr. No.
05-1-0090(1).
In contrast, claims in the Second Petition that
pertained to the minimum terms that HPA had imposed in Cr. No.
04-1-0595(1) had not been previously raised in any prior
proceeding, nor could they have been raised, as no prior Rule 40
petition or other proceeding had challenged the setting of the
13
(...continued)
Matsuo v. State, 70 Haw. 573, 577, 778 P.2d 332, 334 (1989) (finding no
realistic opportunity for a defendant to raise an ineffective assistance of
counsel claim, and not evaluating for extraordinary circumstances).
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minimum terms. The minimum terms in Cr. No. 04-1-0595(1) were
set by the HPA after the appeal of the judgment of conviction had
been filed on April 10, 2006, and no Rule 40 petition had been
previously filed with respect to the judgment of conviction in
Cr. No. 04-1-0595(1).
Therefore, the circuit court erred in concluding that
“the allegations in the present Petition have been waived by
[Fagaragan’s] failure to include them in the prior HRPP Rule 40
Petition.” Similarly, the ICA erred in finding that Fagaragan
“could have, but did not, challenge the HPA’s fixing of the
minimum terms of imprisonment on his convictions,” and Fagaragan
“waived all the issues he raises in his Petition” for failing to
raise these issues in his prior Rule 40 Petition.
Accordingly, the waiver doctrine prescribed by HRPP
Rule 40(a)(3) was not applicable to the claims in the Second
Petition that related to Cr. No. 04-1-0595(1). For this reason
also, the Second Petition should not have been denied by the
circuit court without a hearing premised upon a determination
that all of Fagaragan’s claims had been waived.
V.
The legislature required the HPA to establish
guidelines for the “uniform determination of minimum sentences
which shall take into account both the nature and degree of the
offense of the prisoner and the prisoner’s criminal history and
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character.” HRS § 706-669(8). Although the guidelines do not
have the force of statutory law, “compliance with such rules is
required to serve the legislature’s goal of uniform determination
of minimum sentences.” Coulter, 116 Hawai#i at 185, 172 P.3d at
497 (quotation marks omitted). As stated by the Coulter court,
“[t]he proposition that the government must follow the rules it
sets out for itself is not controversial.” Id. “Where the
legislature has delegated the creation of guidelines for the
uniform determination of minimum sentences to the HPA, the HPA is
not free to ignore the guidelines it has established.” Id.
The availability of the HPA Guidelines to prisoners
serves as a procedural protection to safeguard prisoners’ rights.
See Williamson, 97 Hawai#i at 194, 35 P.3d at 221 (holding that
“the procedural protections are adequate to safeguard prisoners’
rights and ensure that the HPA does not arbitrarily set minimum
sentences”). Therefore, deviating from minimum sentencing
guidelines, without explanation, constitutes arbitrary or
capricious action that violates a prisoner’s right to uniform
determination of his or her minimum sentence. Coulter, 116
Hawai#i at 184-85, 172 P.3d at 496-97; see Williamson, 97 Hawai#i
at 194-95, 35 P.3d at 221-22.
In establishing the minimum term, the HPA considers a
variety of factors including the prisoner’s characteristics and
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the nature of the underlying offense. See State v. Bernades, 71
Haw. 485, 490, 795 P.2d 842, 845 (1990). Section III of the HPA
Guidelines requires the Order Establishing Minimum Terms of
Imprisonment to include the “specific minimum term(s) established
in years and/or months, the level of punishment (Level I, II, or
III) under which the inmate falls, and the significant criteria
upon which the decision was based.”14 (Emphasis added).
In HPA Order 2, Fagaragan was determined by the HPA to
have met the criteria for Level III Punishment. The HPA
identified “Nature of Offense” as the sole significant criterion
as the basis for its determination. To satisfy the “Nature of
Offense” criteria for Level III classification, it is required
that the offender meets the criteria of at least one of the
following:
a. The offense was against a person(s) and the offender
displayed a callous and/or cruel disregard for the safety
and welfare of others; or
b. The offense involved the manufacture, importation,
distribution, or cultivation of substantial quantities of
drugs. Paragraph 4, subparagraph (a) or (b) of this section
may be used to substantiate the level of involvement of the
person in the offense(s);
c. The offense was committed against the elderly, a
handicapped person, or a minor, and the conviction was for
14
The criteria to designate a defendant for Level III punishment are
as follows:
(1) the nature of offense; (2) the degree of injury/loss to
person or property; (3) the criminal history; (4) the
character and attitude of Offender with respect to criminal
activity or lifestyle; (5) the efforts made to live pro-
social life prior to commitment to prison; and (6) the
involvement of offender in the instant offense(s).
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murder, sexual assault, robbery, assault, or kidnapping; and
. . . [.]
(Emphasis added). Since the entirety of the HPA’s explanation
for its determination of Fagaragan’s level of punishment was
“Nature of Offense,” the relevant subsection was not identified.
However, it may be presumed that the HPA intended subsection (b)
to serve as the applicable subsection, as Fagaragan’s offenses
manifestly do not fall within subsections (a) or (c) of the
Nature of Offense criteria for a Level III classification.15
Under subsection (b), the offense must involve “the
manufacture, importation, distribution, or cultivation of
substantial quantities of drugs.” However, Fagaragan was
convicted of offenses involving possession of unlawful
contraband. None of the offenses in either Cr. No. 04-1-0595 or
Cr. No. 05-1-0090(1) involved acts of manufacturing, importing,
distributing or cultivating substantial quantities of drugs.
Thus, the offenses for which minimum terms were imposed do not
appear to fit the HPA’s defined criteria under subsection (b) for
Level III punishment.16
15
“Nature of Offense” as defined in subsection (a)(callous offense
against a person) and in subsection (c) (offense against the elderly) do not
relate, even superficially, to Fagaragan’s offenses and therefore are not
applicable.
16
The dissent places great weight on the contention that: “although
the attempted distribution count was reversed, . . . [t]he two counts involved
exactly the same conduct; therefore, Fagaragan’s culpability remained exactly
the same.” Dissent at 9, 11. Respectfully, there is a significant difference
in culpability between a distribution conviction and a conviction based on
possession, even if the prescribed sentence is the same. There is also a
(continued...)
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Nevertheless, the State contends that subsection (b)
provides a basis to find that an offender manufactured, imported,
distributed, or cultivated substantial quantities, despite the
fact that there has been no adjudication that the offender
actually did so. The State reaches this conclusion by its
reading of the second sentence of subsection (b):
b. The offense involved the manufacture, importation,
distribution, or cultivation of substantial quantities of
drugs. Paragraph 4, subparagraph (a) or (b) of this section
may be used to substantiate the level of involvement of the
person in the offense(s); 17
According to the State, Paragraph 4, subparagraph (a)
(the circumstances show criminal activity is a major source of
person’s livelihood) or subparagraph (b) (the person has
16
(...continued)
significant difference in culpability when the conduct results in the
commission of one Class A possessory drug conviction as compared to a Class A
possessory and a distribution drug conviction. Moreover, a conviction for
distribution, by definition, involves an act of distribution. A conviction
for possession does not. And, even if the counts “involved exactly the same
conduct,” there was no valid conviction for attempted distribution, as the
circuit court failed to instruct the jury upon a requisite state of mind for
an element of the attempted distribution offense, which the State conceded was
plain error. State v. Fagaragan, 115 Hawai#i 364, 371-72, 167 P.3d 739, 746-
47 (2007).
17
Section C titled “Level III,” Paragraph 4, subparagraphs (a) and
(b) provide as follows:
4. Character and Attitude of Offender With Respect to Criminal
Activity or Lifestyle: Based on the person’s character,
attitude, and/or criminal history (both juvenile and adult),
future criminal activity remains probable; or
a. The circumstances of the crime show that the
convicted person has knowingly devoted himself or
herself to criminal activity as a major or primary
source of livelihood; or
b. The convicted person has substantial income or
resources not explained to be derived from a source
other than criminal activity[.]
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unexplained substantial income) can establish that the offense
involved manufacturing, importing, distributing or cultivating
large quantities of drugs and thereby satisfy the criteria for
Level III punishment criteria.18 The State further contends that
Fagaragan met Level III criteria under “Nature of the Offense”
based on the amount of drugs he possessed.
In evaluating the State’s contentions, it is necessary to apply
general principles of statutory construction. With respect to
interpreting the HPA Guidelines:
The general principles of construction which apply to
statutes also apply to administrative rules. As in
statutory construction, courts look first at an
administrative rule’s language. If an administrative rule’s
language is unambiguous, and its literal application is
neither inconsistent with the policies of the statute the
rule implements nor produces an absurd or unjust result,
courts enforce the rule’s plain meaning.
Int’l Bhd. of Elec. Workers, Local 1357 v. Hawaiian Tel. Co., 68
Haw. 316, 323, 713 P.2d 943, 950 (1986) (emphasis added)
(citations omitted).
Again, turning to the language of the HPA Guidelines,
the “Nature of Offense” definition under subsection (b) of the
Level III classification expressly provides:
The offense involved the manufacture, importation,
distribution, or cultivation of substantial quantities of
drugs.
18
The ICA found that there “was support in the record for the HPA’s
determination that under its Guidelines Fagaragan fell within a Level III
level of punishment with respect to his Promoting Dangerous Drug I convictions
based on the criteria of ‘Nature of Offense.’”
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Thus, the offense must involve manufacturing, importing,
distributing, or cultivating of substantial quantities of drugs.
The next sentence provides:
Paragraph 4, subparagraph (a) or (b) of this section may be
used to substantiate the level of involvement of the person
in the offense(s)[.]
(Emphasis added). Read in isolation, the second sentence is
deprived of meaning and effect without allusion to the
“offense(s)” being referred to. However, when read in reference
with the first sentence, it is clear that the circumstances that
may be used to “substantiate the level of involvement of the
person in the offense(s)” are with respect to those offenses
listed in the preceding sentence.
In contrast, the State’s interpretation would mean that
any person who was found in possession of substantial quantities
of drugs could be found to have been involved in acts of
manufacturing, importation, distribution, or cultivation. This
interpretation is problematical for several reasons.
First, this construction is contrary to the plain
meaning of subsection (b), which states Paragraph 4, subparagraph
(a) or (b) of this section may be used to substantiate the level
of involvement of the person in the offense(s). Since the first
sentence requires that the offense involve the manufacture,
importation, distribution, or cultivation of substantial
quantities of drugs, it is evident that Paragraph 4 subparagraphs
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(a) or (b) may be used to determine “the level of involvement” of
the offender in manufacturing, importing, distributing, or
cultivating substantial quantities of drugs. This is because the
fact that an offender, for example, is involved in cultivating
large quantities of drugs does not necessarily mean that the HPA
will classify the person for Level III punishment.
Consequently, in the example given, an offender’s level
of involvement in cultivation of large quantities of contraband
will affect HPA’s determination regarding whether the offender is
to be classified as a Level III offender. However, the level of
involvement in the offense under paragraph 4 subparagraphs (a) or
(c) is not relevant if the offense does not involve manufacture,
importation, distribution or cultivation.
Second, the acts of manufacturing, importing,
distributing, or cultivating substantial quantities of drugs
would invariably involve possession. “Possession” in criminal
law is broadly understood to include both actual and constructive
possession. Black’s Law Dictionary defines “possession” as:
“The fact of having or holding property in one’s power; the
exercise of dominion over property.” Black’s Law Dictionary 1281
(9th ed. 2009).19 Consequently, the enumerated acts of
19
“Constructive possession” involves a person “who, although not in
actual possession, knowingly has both the power and the intention, at a given
time, to exercise dominion or control over a thing for a sufficient period to
terminate his/her possession of it, either directly or through another person
or persons[.]” Hawai#i Standard Jury Instructions Criminal (HAWJIC) 6.06,
reprinted in Hawai#i Court Rules, State 866-67 (2013).
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manufacturing, importing, distributing or cultivating would
essentially be rendered superfluous, as possession of substantial
quantities of drugs would be able to meet the Level III criteria,
regardless of the offender’s underlying activity.
When construing a statute or administrative rule,
courts are “bound to give effect to all parts of a statute, and .
. . no clause, sentence, or word shall be construed as
superfluous, void, or insignificant if a construction can be
legitimately found which will give force to and preserve all
words of the statute.” Keliipuleole v. Wilson, 85 Hawai#i 217,
221, 941 P.2d 300, 304 (1997) (quotation marks omitted). The HPA
demonstrated a level of certainty and precision in purposefully
selecting the enumerated categories of acts in subsection (b) and
to interpret this section in a way that would essentially allow
the enumerated terms to be treated as surplusage is inconsistent
with this purpose. Id. at 223, 941 P.2d at 306.
Third, Level III offenses are reserved for the most
egregious conduct. It includes, for example, offenses against
those most vulnerable in society, offenders who display a callous
and cruel disregard for the safety of others, offenders with
extensive criminal history, offenders who commit the most serious
violent felonies, and offenders where “future criminal activity
is determined to be probable.”
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Included in Level III classification are offenses that
involve manufacturing, importation, distribution or cultivation
of substantial quantities of drugs. The State would essentially
expand this list to include “possession” offenses in order to
allow the HPA to makes an inference that the offender was
manufacturing, importing, distributing, or cultivating
substantial quantities of drugs, despite the fact that the
offender was never charged, much less, convicted of such
activity.
Indeed, the offender could have been acquitted of the
enumerated acts, or had their conviction reversed as Fagaragan
did, and yet be found by the HPA (as Fagaragan was) to have
distributed substantial quantities of drugs.
Fourth, the canon of construction expressio unius est
exclusio alterius, holds that “to express or include one thing
implies the exclusion of the other, or of the alternative.”
Black’s Law Dictionary 661 (9th ed. 2009). Under this principle,
subsection (b) provides that the four specified offenses are
exclusive and limit the category of applicable offenses to those
expressly enumerated.
This canon applies “only where in the natural
association of ideas the contrast between a specific subject
matter which is expressed and one which is not mentioned leads to
an inference that the latter was not intended to be included
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within the statute.” Int’l Sav. and Loan Ass’n v. Wiig, 82
Hawai#i 197, 201, 921 P.2d 117, 121 (1996). In this case, there
exists a “natural association of ideas” between the type of
specific offenses expressed in subsection (b) and the more
general offense of “possession” because both offenses involve
activities related to drug use. The distinction, however, lies
in the HPA’s deliberate use of specific offenses characterized as
involving especially egregious activities under Level III “Nature
of Offense.”
As stated, the criteria for Level III punishment do not
appear to apply to possession offenses, and unequivocally
possession is not enumerated. Fagaragan stated in his Second
Petition that he did not fit the Level III offender
classification: “no one during trial testified that he sold or
did any such act [of manufacturing, importation or distribution
of drugs],” reflecting Fagaragan’s understanding and a natural
reading of the criteria.
The legislature specifically provided in HRS § 706-
669(8) that “[t]he guidelines shall be public records and be made
available to the prisoner.” (Emphasis added). Thus, the
legislature contemplated that the HPA Guidelines would be an
informational tool for the prisoner. The applicable statute, HRS
§ 706-669, is entitled “Procedure for determining minimum term of
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imprisonment,” and clearly stated guidelines are an essential
part of the process.
The importance of an offender being adequately informed
of the applicable criteria cannot be overstated. The
determination of whether the offender is classified for Level II
punishment as opposed to Level III punishment for a Class A
felony is a potential difference of 10 years of incarceration
based upon the range of punishment established by the HPA.20 In
this case, the actual difference was 10 years of imprisonment, as
Fagaragan’s minimum term was set at 20 years.
In D’Ambrosio v. State, 112 Hawai#i 446, 146 P.3d 606
(App. 2006), the court considered the critical nature of the
minimum term hearing and the “significant discretionary power”
exercised by the HPA in setting the minimum term of imprisonment.
Id. at 464-66, 146 P.3d at 624-26. The court explained that
under the statutory scheme, “it is the HPA, not the courts, that
exercises most of the State’s felony sentencing discretion.” Id.
at 464, 146 P.3d at 624.
In De La Garza, we held that a defendant in a minimum
term hearing has a right to disclosure of adverse materials. 129
Hawai#i 429, 302 P.3d 697 (2013). We noted that “[s]uch
disclosure ensures that the HPA will set the inmate’s minimum
20
The range in years of a minimum term for a Level II offender for a
class A felony offense is 5 - 10 years, while the range in years for a Level
III offender for such an offense is 10 - 20 years.
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term of imprisonment based on accurate information and that the
inmate is given reasonable notice and a meaningful opportunity to
be heard on the issue of the minimum term.” Id. at 442, 302 P.3d
at 710 (citing HRS § 706-669(3)) (emphasis added).
Meaningful opportunity to be heard in the context of a
minimum term hearing includes the right to be informed in a clear
manner of the criteria that the HPA will use to set the minimum
term. A clear statement of the criteria provides the offender
with a meaningful opportunity at the HPA hearing to contest or
adduce evidence that the offense did not involve distribution,
manufacturing, importation or cultivation. Therefore, to comport
with the requirements of a fair hearing, the HPA Guidelines
should be readily understandable to accomplish their purpose in
“be[ing] made available to the prisoner.” See HRS § 706-669(8).
VI.
According to the HPA Guidelines, “[t]he Hawaii Paroling
Authority may deviate from the guidelines, either above or below,
but all deviations shall be accompanied by written justification
and be made a part of the Order Establishing Minimum Terms of
Imprisonment.” (Emphasis added). In Coulter, the Hawai#i
Supreme Court examined whether the HPA’s actions were arbitrary
and capricious when it set Coulter’s minimum terms without
stating in the order Coulter’s level of punishment or providing
any written criteria upon which the HPA based its decision. 116
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Hawai#i at 183, 172 P.3d at 495. The court held that deviating
from the rules established by the HPA for the uniform
determination of minimum sentences, without explanation,
constitutes arbitrary or capricious action that violates a
prisoner’s right to uniform determination of his or her minimum
sentence. Id. at 185, 172 P.3d at 497.
In this case, HPA Order 2 identified Fagaragan as a
Level III offender based on the criteria of “Nature of Offense.”
The HPA Guidelines provide three criteria under Level III “Nature
of Offense,” none of which, as discussed supra, are applicable to
Fagaragan’s offenses. Inasmuch as Fagaragan’s offenses do not
meet the prescribed criteria and no further “written
justification” is provided explaining HPA’s decision in HPA Order
2, HPA’s action of classifying Fagaragan as a Level III offender
was in violation of the HPA Guidelines and therefore, under the
circumstances, arbitrary and capricious.
VII.
For the foregoing reasons, we vacate the ICA Judgment,
and the case is remanded to the circuit court to enter an order
(1) vacating its Order Denying Rule 40 Petition, and (2)
directing the HPA to hold a new hearing to determine Fagaragan’s
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minimum terms of imprisonment in Cr. No. 04-1-0595(1) and Cr. No.
05-1-0090(1) pursuant to HRS § 706-669.21
Erwin E. Fagaragan /s/ Simeon R. Acoba, Jr.
pro se
/s/ Sabrina S. McKenna
Lisa M. Itomura and
Diane K. Taira /s/ Richard W. Pollack
for respondent
21
The minimum terms for Cr. No. 04-1-0595(1) and Cr. No. 05-1-
0090(1) were set in HPA Order 1, and were based upon the consolidated evidence
for both cases at the first minimum term hearing (“the [HPA] shall . . . on
the basis of the hearing make an order fixing the minimum term of imprisonment
to be served before the prisoner shall become eligible for parole.” HRS §
706-669(1) (emphasis added)). That hearing included the evidence of
Fagaragan’s attempted distribution conviction, which was subsequently
reversed. Inasmuch as the only possible basis for the HPA in HPA Order 1 to
determine Fagaragan was a Level III offender based on “Nature of Offense” was
the reversed attempted distribution conviction in Cr. No. 05-1-0590(1), the
new hearing setting the minimum terms must also include Cr. No. 04-1-0595(1).
See HPA Guidelines at *1 (“The purpose of minimum sentencing guidelines is to
provide a degree of uniformity and consistency in the setting of minimum
terms[.]”).
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Fagaragan v. State.Â
Court: Hawaii Supreme Court
Date filed: 2014-02-14
Citations: 132 Haw. 224, 320 P.3d 889
Copy CitationsCombined Opinion