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Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
28-JUL-2020
10:09 AM
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
JONATHAN NUEZCA, Petitioner-Appellant, v.
STATE OF HAWAI#I, Respondent-Appellee
APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT
(S.P.P. NO. 16-1-0008(2); CR. NO. 15-1-0285(2))
SUMMARY DISPOSITION ORDER
(By: Leonard, Presiding Judge, and Chan and Wadsworth, JJ.)
Petitioner-Appellant Jonathan Nuezca (Nuezca) appeals
from the "Court's Findings of Fact, Conclusions of Law, and Order
Denying Petition to Vacate, Set Aside, or Correct Judgment or to
Release Petitioner from Custody Filed on June 7, 2016"
(FOF/COL/Order), entered on October 3, 2017, in the Circuit Court
of the Second Circuit (Circuit Court).1/ Following an
evidentiary hearing, the Circuit Court concluded that Nuezca had
failed to present sufficient evidence to establish his claims of
ineffective assistance of counsel and prosecutorial misconduct,
and denied Nuezca's Petition to Vacate, Set Aside, or Correct
Judgment or to Release Petitioner from Custody (Petition).
On appeal, Nuezca challenges the Circuit Court's
Findings of Fact (FOF) Nos. 27, 28, 29, 31, 33, 36, 38, 39, 40,
and 41 and Conclusions of Law (COL) Nos. 8, 9, 10, 11, 12, and
13. Nuezca contends that the Circuit Court erred in ruling that
he failed to establish his ineffective assistance claim, because
he was not accurately advised by his trial counsel that pleading
1/
The Honorable Peter T. Cahill presided.
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no contest to an aggravated felony would subject him to
"mandatory and certain" deportation.
Upon careful review of the record and the briefs
submitted by the parties and having given due consideration to
the arguments advanced and the issues raised by the parties, as
well as the relevant statutory and case law, we resolve Nuezca's
contentions as follows.
I. RELEVANT BACKGROUND
The following FOFs, among others, are undisputed:
1. On May 1, 2015, in Cr. No. 15-1-0285(2), the Grand
Jury of the Second Circuit indicted Nuezca on the following
counts:
Count One: Sexual Assault in the Third Degree
[(Sex Assault 3)], in violation of Hawai[]i Revised
Statutes ("HRS") § 707-732(1)(b); 2/
Count Two: [Sex Assault 3], in violation of HRS
§ 707-732(1)(c);
Count Three: [Sex Assault 3], in violation of
HRS § 707-732(1)(c);
Count Four: [Sex Assault 3], in violation of HRS
§ 707-732(1)(c); and
Count Five: [Sex Assault 3], in violation of HRS
§ 707-732(1)(c).
2. On March 11, 2015, Defendant Nuezca pled not
guilty to all five counts against him at his Arraignment and
Plea.
3. In the Arraignment and Plea hearing, the Court
gave the immigration advisement required by HRS § 802E-4 to
Nuezca.
2/
HRS § 707-732(1)(b)(2014) provides:
(1) A person commits the offense of sexual assault in
the third degree if:
. . . .
(b) The person knowingly subjects to sexual contact
another person who is less than fourteen years
old or causes such a person to have sexual
contact with the person[.]
At the time of the indictment, HRS § 707-700 (2014) defined
"sexual contact" as "any touching, other than acts of 'sexual penetration', of
the sexual or other intimate parts of a person not married to the actor, or of
the sexual or other intimate parts of the actor by the person, whether
directly or through the clothing or other material intended to cover the
sexual or other intimate parts."
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4. [Trial counsel] represented Defendant Nuezca
. . . .
5. On August 11, 2015, Nuezca changed his plea from
not guilty to no contest to Count One . . . .
6. In the Change of Plea hearing, the Court gave
Nuezca an immigration warning as required by HRS § 802E-2.
7. The Court advised Nuezca of the potential
immigration issues that may arise if he is not a citizen of
the United States, including detention and removal, by
changing his plea to no contest.
8. During the hearing, Nuezca acknowledged that he
had certain rights, including a speedy and public trial and
the right to appeal anything that occurred up to the change
of plea date, and that he gave up those rights.
9. Nuezca also acknowledged that he faced a possible
five-year term of imprisonment and $10,000 in fines, an
extended term of imprisonment of ten-years and a term of
probation of four-years with up to one year in jail. A
conviction in the offense to which [Nuezca] entered a No
Contest Plea also required him to register as a sex offender
for life.
10. Nuezca acknowledged that he discussed all of the
foregoing with his attorney and that he had no complaints
about his attorney.
11. Nuezca also signed a No Contest Plea form in open
Court acknowledging the items contained in these [FOFs].
12. As a result of his plea deal, Nuezca pled no
contest to Count One . . . . After sentencing pursuant to
the plea deal, the Court dismissed Counts Two through Five
. . . with prejudice.
13. The Court found that Nuezca intelligently,
knowingly, and voluntarily changed his plea of not guilty
and entered a plea of no contest.
14. On October 20, 2015, the Court sentenced Nuezca
to five years' probation. As a term and condition of
probation the Court sentenced [Nuezca] to one year jail.
15. [O]n June 7, 2016, Nuezca file[d the Petition] in
the instant case.
16. Nuezca raised three grounds for relief in his
Petition:
Ineffective assistance of counsel for being
misinformed about the deportation consequences of his no
contest plea, leading him to not believe the Court's
immigration advisement, and not being advised about going to
trial.
17. [Respondent-Appellee State of Hawai#i (State)]
filed a Response to the Petition on August 22, 2016, and
Nuezca filed a Reply on February 13, 2017.
18. On October 31, 2016, the U.S. Board of
Immigration Appeals issued a decision to vacate an
immigration judge's decision to remove Nuezca from the
United States.
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19. This court held an evidentiary hearing on
Nuezca's . . . Petition on February 22, 2017. Nuezca
participated via Polycom as he remained in federal custody
pending possible removal from the United States. A Court
certified interpreter assisted in the case to provide
English-Ilokano translation.
(Footnote added and original footnote omitted.)
At the hearing on the Petition, Nuezca's trial counsel
testified that in his practice, it is routine for him to
determine if his client is a United States citizen, and he did so
in Nuezca's case. On June 4, 2015, within days of coming on the
case, trial counsel learned that Nuezca had a permanent resident
card. "Right away, [trial counsel] told [Nuezca] that what he's
charged with, five counts of sexual assault three, is a
deportable offense." Trial counsel informed Nuezca "[m]any
times" that "there was a possibility that he would be deported";
he advised Nuezca "[m]any times" that "if he pled no contest, he
would be -- could be deported"; and that "[Sex Assault 3] was a
deportable offense." Trial counsel also mentioned to Nuezca that
because he had a permanent resident card, if Immigration and
Customs Enforcement (ICE) put a hold on him, he should qualify
for assistance from a federal public defender. Trial counsel
told Nuezca he "couldn't give him assurances that he would not be
deported[,]" but also "tried to give him some hope, because there
ha[d] been some cases where . . . people were not deported when
they had their permanent residence card." Trial counsel "told
[Nuezca] many times, yes, this is a deportable offense, because
he asked [trial counsel] every single time [trial counsel]
visited him or talked to him on the phone. And [trial counsel]
said [he] hoped it didn't happen, but [Nuezca] certainly was
aware of it." "[P]ortions of this continuing discussion took
place before the change of plea hearing . . . many, many times."
Trial counsel further testified:
And what happened was, over the course of talking with
the prosecutor's office, [the prosecutor] agreed finally to
dismiss four of the Class C felonies. . . . [S]he dismissed
four of the Class C felonies if [Nuezca] would plead to one
Class C felony. She was going to ask for five years of
probation and a year in jail.
. . . .
. . . And when we came to sentencing, Judge Cahill
granted the probation request but gave him a year, which was
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the agreement.
And we talked about this issue going into it, and he
was fully aware of it. In fact, he decided to gamble on the
consequences of whether he might get an ICE hold or, you
know, spare himself from going to possibly a state prison.
Trial counsel explained, "It was a gamble because he wanted to go
home, so he chose to enter the plea of no contest to one count
involving his stepdaughter and basically rolled the dice on
whether ICE would ever catch up with him."
When asked if he ever told Nuezca that "he would be
deported," trial counsel testified: "I did not know to a hundred
percent that he would be, no. There was a possibility that he
would not be. In fact, my understanding was the immigration
judge sided with him over in Honolulu recently."
When asked if he felt he "had an obligation to tell Mr.
Nuezca that he would be deported," trial counsel responded:
Well, that assumes that I knew what the immigration
courts would do, and I did not at the time. I did tell him
it was a deportable offense and if he got caught up in the
system, he would need an immigration -- he would need the
help. But having a residence card, he should be able to get
a federal public defender to help with that. I definitely
told him it was deportable.
Following testimony and argument, the Circuit Court
orally denied the Petition. In the FOF/COL/Order, the Circuit
Court further found and concluded, in relevant part:
20. Defendant Nuezca, his wife . . ., and [trial
counsel] testified at the hearing.
21. The court finds [trial counsel] to be a credible
witness and accepts his testimony.
. . . .
27. The Court finds credible [trial counsel's]
testimony that he advised Nuezca on numerous occasions that
he faced the possibility of deportation.
28. [Trial counsel] also told Nuezca that because he
had a permanent resident card, if Immigration and Customs
Enforcement put a hold on Nuezca, he would qualify for
assistance from a federal public defender.
29. [Trial counsel] told Nuezca that he could not give
Nuezca assurances that he would not be deported, but also
tried to give him some hope by telling him that some people
were not deported when they had their permanent resident
card.
. . . .
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31. [Trial counsel] requested an interpreter for the
Change of Plea hearing just in case words were spoken too
quickly or complex terms were used, and the Court furnished
one for [Nuezca].
. . . .
33. Although [Nuezca] faced possible deportation,
[trial counsel] testified that Nuezca accepted the plea deal
because he wanted to return to his family and his job and
sought to receive probation in a plea agreement.
34. [Trial counsel] further testified that he made
efforts for a "better" deal, but the deputy prosecutor
assigned to Nuezca's case would not enter into a plea
agreement unless Nuezca pled to one of the class C felony
counts, and in return, she agreed to a dismissal of the
remaining four counts.
35. The Court followed the plea agreement and
sentenced Nuezca to five years probation, including one year
of prison.
36. Nuezca faced possible lengthy prison time if he
chose to go to trial and the jury convicted him of all
charged offenses. The Court finds credible the testimony of
[trial counsel] that Nuezca decided to risk deportation with
a shorter prison term or probation because of his family.
. . . .
38. The Court does not find credible either Mr. or
Mrs. Nuezca's testimony that [Nuezca] had not been warned or
advised by his lawyers that he would likely face removal.
39. The Court further finds that based on all the
credible evidence, [Nuezca] had been advised and warned that
if convicted he could face removal.
40. The Court further finds that Nuezca as a "green
card" holder of recent arrival and facing actual removal now
seeks to undo the benefits of the plea deal he knowingly,
intelligently, and voluntarily entered into with the full
advice of counsel. The Court further finds that based upon
all credible evidence that [Nuezca] is motivated by current
events and the desire to remain in the United States and not
out of actual innocence.
41. The Court further finds that Nuezca failed to
present any credible evidence that his [trial counsel's]
representation was ineffective.
. . . .
CONCLUSIONS OF LAW
. . . .
8. . . . Nuezca failed to establish factually and
legally that his conviction under Hawaii law for [Sex
Assault 3] make it practically certain that he shall be
removed or deported.
9. [Trial counsel's] advice to Nuezca that [Sex
Assault 3] made him subject to deportation or removal was
not objectively unreasonable and within the standard
required of a competent attorney, and thus Nuezca failed to
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meet the first prong of the Strickland[ v. Washington, 466
U.S. 668, 687, reh. denied, 467 U.S. 1267 (1984) test].
10. . . . Nuezca did not suffer prejudice as required
by the second prong of the Strickland test, because Nuezca
faced a possible 25-year prison term, so he made the
conscious decision to take his chances with deportation and
enter into a plea agreement.
11. . . . [Trial counsel's] assistance to Nuezca was
within the range of competence demanded of attorneys in
criminal cases under [State v. ]Richie[, 88 Hawai #i 19, 960
P.2d 1227 (1998)].
12. . . . [Trial counsel] did not commit specific
errors or omissions reflecting counsel's lack of skill,
judgment, or diligence under the first prong of the Richie
test.
13. Because [trial counsel] did not commit any errors
or omissions, there is no need to conduct the second prong
of the Richie test.
14. . . . Nuezca failed to present sufficient
evidence to establish his claims of ineffective assistance
of counsel in his first and second grounds for relief.
15. . . . Nuezca failed to present any evidence to
establish his claim of prosecutorial misconduct in his third
ground for relief.
. . . .
ORDER
The Court, having made the foregoing [FOFs] and
[COLs], and concluding that Nuezca failed to present
sufficient evidence to meet [h]is burden of proof to
establish his claims of ineffective assistance of counsel
and prosecutorial misconduct[,]
IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the
[Petition] is DENIED.
II. DISCUSSION
Nuezca argues that his trial counsel was ineffective
for failing to advise him that "he was facing mandatory and
certain deportation from being convicted of an aggravated
felony." Nuezca challenges numerous findings by the Circuit
Court as to what Nuezca's trial counsel advised him regarding the
immigration consequences of pleading no contest to one count of
Sex Assault 3. Ultimately, the Circuit Court found that trial
counsel's testimony was credible, and that trial counsel had
advised Nuezca that he "could face removal" for a Sex Assault 3
conviction, and "[Sex Assault 3] made him subject to deportation
or removal."
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"A trial court's [findings of fact] are reviewed under
the clearly erroneous standard. A finding of fact is clearly
erroneous when, despite evidence to support the finding, the
appellate court is left with the definite and firm conviction in
reviewing the entire evidence that a mistake has been committed."
Dan v. State, 76 Hawai#i 423, 428, 879 P.2d 528, 533 (1994)
(citing and quoting Hawai#i Thousand Friends v. City and County
of Honolulu, 75 Haw. 237, 248, 858 P. 2d 726, 732, (1993))
(internal quotation marks omitted).
Here, there is evidence in the record to support the
Circuit Court's findings of fact that are challenged by Nuezca,
and based on our review of the record, we are not left with a
definite and firm conviction that the Circuit Court made mistakes
in these findings. To the extent that Nuezca challenges the
Circuit Court's findings regarding credibility, "it is within the
province of the trial court to determine the credibility of a
witness[.]" Matter of Ishida-Waiakamilo Legacy Trust, 140
Hawai#i 69, 74, 398 P.3d 658, 663 (2017) (quoting In re Ishida-
Waiakamilo Legacy Trust, 138 Hawai#i 98, 107, 377 P.3d 39, 48
(App. 2016)) (internal quotation marks omitted); see also State
v. Jenkins, 93 Hawai#i 87, 101, 997 P.2d 13, 27 (2000) (quoting
State v. Mattiello, 90 Hawai#i 255, 259, 978 P.2d 693, 697
(1999)).
We therefore conclude that the challenged findings were
not clearly erroneous, and the evidence supports that trial
counsel advised Nuezca that pleading no contest to Sex Assault 3
would subject him to deportation. Nuezca argues that even if the
Circuit Court's findings are upheld, his trial counsel's advice
was deficient and constituted ineffective assistance. He relies
primarily on Padilla v. Kentucky, 559 U.S. 356 (2010), to support
his claim.
In Padilla, the Supreme Court held that
constitutionally competent counsel would have advised a defendant
that his conviction for drug distribution made him subject to
automatic deportation. Id. at 360. The Court stated:
In the instant case, the terms of the relevant
immigration statute are succinct, clear, and explicit in
defining the removal consequence for [the defendant's]
conviction. See 8 U.S.C. § 1227(a)(2)(B)(i) ("Any alien who
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at any time after admission has been convicted of a
violation of (or a conspiracy or attempt to violate) any law
or regulation of a State, the United States or a foreign
country relating to a controlled substance . . ., other than
a single offense involving possession for one's own use of
30 grams or less of marijuana, is deportable"). [The
defendant's] counsel could have easily determined that his
plea would make him eligible for deportation simply from
reading the text of the statute, which addresses not some
broad classification of crimes but specifically commands
removal for all controlled substances convictions except for
the most trivial of marijuana possession offenses. Instead,
[the defendant's] counsel provided him false assurance that
his conviction would not result in his removal from this
country. This is not a hard case in which to find
deficiency: The consequences of [the defendant's] plea
could easily be determined from reading the removal statute,
his deportation was presumptively mandatory, and his
counsel's advice was incorrect.
Id. at 368-69. In sum, the defendant's counsel erred in not
recognizing that the defendant's plea would subject him to
"presumptively mandatory" deportation, and advising him to the
contrary "that his conviction would not result in his removal."
Id.
The Court recognized that "[i]mmigration law can be
complex, and it is a legal specialty of its own." Id. at 369.
The Court observed:
There will, therefore, undoubtedly be numerous situations in
which the deportation consequences of a particular plea are
unclear or uncertain. . . . When the law is not succinct
and straightforward . . ., a criminal defense attorney need
do no more than advise a noncitizen client that pending
criminal charges may carry a risk of adverse immigration
consequences. But when the deportation consequence is truly
clear, as it was in this case, the duty to give correct
advice is equally clear.
Id. (emphasis added) (footnote omitted). The Court concluded by
stating: "[W]e now hold that counsel must inform her client
whether his plea carries a risk of deportation." Id. at 374.
This case differs from Padilla in important respects.
Here, Nuezca argues that Sex Assault 3 constitutes "sexual abuse
of a minor," which he asserts "is clearly an aggravated felony"
that triggered "mandatory" deportation under federal immigration
law.3/ However, he failed to establish that at the time of his
no-contest plea, it was "truly clear" that Sex Assault 3
3/
8 U.S.C. § 1227(a)(2)(A)(iii) (2008) provides: "Any alien who is
convicted of an aggravated felony at any time after admission is deportable."
An "aggravated felony" includes "sexual abuse of a minor." 8 U.S.C.
§ 1101(a)(43)(A).
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constituted "sexual abuse of a minor," such that his removal was
"presumptively mandatory" and his counsel was required to so
advise him. Id. at 369.
Indeed, in Nuezca's subsequent removal proceedings, the
Board of Immigration Appeals (BIA) ruled that the Department of
Homeland Security (DHS) had not established that Nuezca's
conviction for Sex Assault 3 constituted a conviction for sexual
abuse of a minor. In re Nuezca, 2016 WL 8188641, at *2 (BIA
Oct. 31, 2016) (unpublished) ("Given that Hawaii's definition of
'sexual contact' includes offenses which were committed 'through
the clothing,' the respondent has . . . not been convicted of a
categorical sexual abuse of a minor aggravated felony . . . ."
(citing United States v. Martinez, 786 F.3d 1227, 1232 (9th Cir.
2015) (holding that, under Washington state law, third-degree
child molestation did not categorically constitute "sexual abuse
of a minor" because it "criminalize[d] touching over clothing as
opposed to the generic offense's requirement of skin-to-skin
contact"); and United States v. Castro, 607 F.3d 566, 570 (9th
Cir. 2010) (holding that a California statute prohibiting lewd
and lascivious acts on a child was categorically broader than the
generic definition for sexual abuse of a minor because "[l]ewd
touching [under the state statute] can occur through a victim's
clothing and can involve any part of the victim's body"))). The
BIA further ruled that the DHS had not established that Nuezca's
Sex Assault 3 conviction constituted a conviction for a crime
involving "moral turpitude."4/ Id. Accordingly, the BIA: (1)
sustained Nuezca's appeal and vacated "the Immigration Judge's
decision to sustain the charges of removability"; and (2)
4/
8 U.S.C. § 1227(a)(2)(A)(i) (2008) provides:
Any alien who--
(I) is convicted of a crime involving moral turpitude
committed within five years (or 10 years in the case
of an alien provided lawful permanent resident status
under section 1255(j) of this title) after the date of
admission, and
(II) is convicted of a crime for which a sentence of
one year or longer may be imposed,
is deportable.
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"remand[ed] the record to the Immigration Judge for further
proceedings," including "a renewed opportunity [for the DHS] to
lodge additional charges of removability." Id. at *2-*3 (citing
8 C.F.R. § 1240.10(e) (2015)).
Nuezca points out that at the hearing on the Petition,
trial counsel testified: "It looked to me like it was an
aggravated felony. . . . It's a crime of moral turpitude as
well." Regardless, whether a conviction for Sex Assault 3 would
trigger "mandatory" deportation at the time of Nuezca's plea was
primarily a legal issue, and Nuezca failed to establish that such
a consequence was "truly clear" as a matter of federal
immigration law. Padilla, 559 U.S. at 369. In citing the BIA's
2016 decision in Nuezca's removal proceedings, we neither adopt
nor reject its legal analysis, which is dependent in part on its
reading of Hawai#i law. We also recognize that the decision came
after Nuezca's plea, and was thus not available when his trial
counsel advised him regarding immigration consequences.
Nevertheless, the decision relies on pre-existing authorities,
which, at the very least, undermine Nuezca's argument that Sex
Assault 3 was "clearly an aggravated felony" that triggered
"mandatory" deportation under federal immigration law.
Accordingly, on this record, we conclude that Nuezca failed to
establish that pleading no-contest to Sex Assault 3 would subject
him to presumptively mandatory deportation, such that his trial
counsel was required to so advise him.
Under these circumstances, we also conclude that trial
counsel was not ineffective in advising Nuezca regarding the
immigration consequences of his plea. "When the law is not
succinct and straightforward . . ., a criminal defense attorney
need do no more than advise a noncitizen client that pending
criminal charges may carry a risk of adverse immigration
consequences." Padilla, 559 U.S. at 369. Here, trial counsel
advised Nuezca that pleading no contest to Sex Assault 3 would
subject him to deportation, which was sufficient to warn Nuezca
that the plea "carr[ied] a risk of adverse immigration
consequences." Id. Thus, trial counsel satisfied Padilla, and
on this record, Nuezca has not established "specific errors or
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omissions reflecting counsel's lack of skill, judgment or
diligence."5/ Richie, 88 Hawai#i at 39, 960 P.2d at 1247 (quoting
State v. Fukusaku, 85 Hawai#i 462, 480, 946 P.2d 32, 50 (1997)).
Accordingly, the Circuit Court did not err in ruling that Nuezca
failed to establish his ineffective assistance claim.
III. CONCLUSION
For the reasons stated above, we affirm the "Court's
Findings of Fact, Conclusions of Law, and Order Denying Petition
to Vacate, Set Aside, or Correct Judgment or to Release
Petitioner from Custody Filed on June 7, 2016," entered on
October 3, 2017, in the Circuit Court of the Second Circuit.
DATED: Honolulu, Hawai#i, July 28, 2020.
On the briefs:
/s/ Katherine G. Leonard
Matthew S. Kohm Presiding Judge
for Petitioner-Appellant.
Richard K. Minatoya, /s/ Derrick H.M. Chan
Deputy Prosecuting Attorney, Associate Judge
County of Maui,
for Respondent-Appellee.
/s/ Clyde J. Wadsworth
Associate Judge
5/
It appears that the Circuit Court analyzed Nuezca's ineffective
assistance claim under both the Sixth Amendment of the United States
Constitution, applying the federal standard announced in Strickland, 466 U.S.
at 687, and Article I, section 14 of the Hawai #i Constitution, applying the
state standard followed in Richie, 88 Hawai#i at 39, 960 P.2d 1227 at 1247.
To the extent that COLs 3, 4, 7, 9, or 10 can be read as imposing the
Strickland standard on the ineffective assistance claim brought under the
Hawai#i Constitution, that conclusion is incorrect, but harmless, because the
Circuit Court concluded that Nuezca's claim also failed the applicable Richie
standard.
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