Villados v. State.

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Electronically Filed
Supreme Court
SCWC-XX-XXXXXXX
09-DEC-2020
08:00 AM
Dkt. 18 OP

IN THE SUPREME COURT OF THE STATE OF HAWAIʻI

---o0o---

ALBERT VILLADOS, JR., also known as ALBERTO VILLADOS, JR.,
Petitioner/Petitioner-Appellant/Cross-Appellee,

vs.

STATE OF HAWAIʻI,
Respondent/Respondent-Appellee/Cross-Appellant.

SCWC-XX-XXXXXXX

CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-XX-XXXXXXX; S.P.P. NO. 13-1-0009(2); CR. NO. 08-1-0115(2))

DECEMBER 9, 2020

RECKTENWALD, C.J., NAKAYAMA, McKENNA, AND WILSON, JJ., AND
CIRCUIT JUDGE KUBOTA, ASSIGNED BY REASON OF VACANCY

OPINION OF THE COURT BY RECKTENWALD, C.J.

I. INTRODUCTION

In 2012, this court dismissed Albert Villados’s

application for writ of certiorari, which asked us to review his

2010 conviction for promoting a dangerous drug in the second

degree. Because Villados’s attorney missed the deadline to file

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an application for writ of certiorari, we were deprived of

jurisdiction to consider the merits of his appeal. Villados

must now be allowed to refile his application. As we held in

State v. Uchima, 147 Hawaiʻi 64, 464 P.3d 852 (2020), a criminal

defendant has the right to the effective assistance of counsel

on certiorari review before this court. We conclude that

Villados is entitled to appropriate relief because Villados’s

counsel was ineffective. In this case, appropriate relief is

the opportunity to refile an application for writ of certiorari

in his original case so that this court can decide to accept or

reject it on the merits.

II. BACKGROUND

A. 2012 Application for Writ of Certiorari

Villados was convicted of promoting a dangerous drug

in the second degree and prohibited acts related to drug

paraphernalia after a jury trial in the Circuit Court for the

Second Circuit (circuit court). 1 He was sentenced to thirty-five

years in prison. 2

Villados timely appealed his conviction and sentence

to the Intermediate Court of Appeals (ICA), represented by a

1 The Honorable Shackley F. Raffetto presided over the original
trial.

2 Villados was sentenced to fifteen years for the two convictions
(including a ten-year mandatory minimum), plus an additional twenty years
stemming from the revocation of probation in four other cases.

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different attorney than at the trial court. 3 On November 28,

2011, the ICA filed its Summary Disposition Order (SDO)

affirming Villados’s sentence and conviction. State v.

Villados, No. 30442 (App. Nov. 28, 2011). The ICA issued its

judgment on appeal on January 4, 2012.

In a letter dated December 31, 2011, before the ICA

filed its judgment on appeal, Villados’s appellate counsel,

(“appellate counsel”), acknowledged to Villados that she

understood that he wanted to seek certiorari review. She

informed him that she would not do so, however, because after

reading the ICA’s ruling, she could not find any basis to apply

for certiorari review under Hawaiʻi Revised Statutes (HRS) § 602-

59(b) (Supp. 2011). 4 She said, “[A]t this time, I do not see

‘grave errors of law or fact’ in the decision of the ICA in your

3 Villados’s trial counsel withdrew after sentencing because of a
conflict. He was appointed new appellate counsel, who also was permitted to
withdraw because of health concerns. His third attorney filed an Opening
Brief to the ICA, but she later withdrew because of her appointment to the
Hawaiʻi Paroling Authority. A fourth attorney, who is the subject of the
ineffective assistance of counsel claim at issue in this appeal, was
appointed to represent Villados thereafter.

4 HRS § 602-59(b) provides:

(b) The application for writ of certiorari shall tersely
state its grounds, which shall include:

(1) Grave errors of law or of fact; or

(2) Obvious inconsistencies in the decision of the
intermediate appellate court with that of the supreme
court, federal decisions, or its own decision,

and the magnitude of those errors or inconsistencies
dictating the need for further appeal.

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case, and I do not see obvious inconsistencies with other ICA,

Hawaii Supreme Court[,] or federal decisions.” However, she

also told him she would “review the ICA decision again” before

the statutory deadline to file an application before this court.

She further informed Villados, “If there is a basis to file a

writ, I will file the writ. If I find there is not a basis to

file a writ in accordance with the statute, I will not be able

to file a writ. I will let you know either way.”

In a letter dated January 20, 2012, appellate counsel

told Villados that, in effect, she changed her mind and had

“decided to file a writ on [his] behalf.” She explained that

she found “at least one point in the ICA’s opinion that bothers

[her],” and she “hope[d] to file” his application “by the end of

January.” She also informed Villados that she “tried calling

[him]” at the prison but had to leave a message with a woman who

had not yet called her back. She told Villados that she would

“keep trying” to call him and that he should try calling her,

though it might be difficult because she was frequently in

meetings or in court.

Pursuant to HRS § 602-59(c), “[a]n application for a

writ of certiorari may be filed with the supreme court no later

than thirty days after the filing of the judgment or dismissal

order of the intermediate appellate court.” The February 3,

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2012 deadline passed without an application or a request for an

extension being filed.

In a letter dated February 15, 2012, appellate counsel

informed Villados that she had not applied for certiorari review

and that the deadline for doing so had passed. She stated that

while she had started preparing his application, she ultimately

decided, after reviewing the SDO once again, that she “could not

file an application for a writ of certiorari.” She explained,

“Thus, this being a decision that I as an attorney had to make,

I decided the appropriate course was not to file one.

Therefore, with all due respect to your desire to have a writ

filed, I have not filed one and will not be filing one.”

Appellate counsel notified Villados that “[t]he time

to file the writ is now be [sic] expired.” However, she

informed him that his recourse “may be a [Hawaiʻi Rules of Penal

Procedure (HRPP)] Rule 40[ 5] petition, which may be used to

5 HRPP Rule 40 provides for proceedings for post-conviction relief
from a judgment of conviction based on any of the following:

(i) that the judgment was obtained or sentence
imposed in violation of the constitution of the United
States or of the State of Hawaiʻi;
(ii) that the court which rendered the judgment
was without jurisdiction over the person or the
subject matter;
(iii) that the sentence is illegal;
(iv) that there is newly discovered evidence; or
(v) any ground which is a basis for collateral
attack on the judgment

HRPP Rule 40(a)(1).

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allege ineffective assistance of appellate counsel.” While she

stated that she “would not agree with” allegations of

ineffective assistance, she told Villados that he could “apply

for an attorney to assist [him] with that petition through the

[circuit court]” and that she would “see that [his] files are

expeditiously transferred to the new attorney” should he secure

one for that purpose.

On June 12, 2012, roughly three months after the

February 3, 2012 deadline, Villados filed an application for

writ of certiorari to this court challenging the ICA decision on

the merits. Accompanying the application, he also filed (1) a

“Motion for Relief from Default and Permission to File a Writ of

Certiorari” and (2) a motion for appointment of counsel. He

provided an affidavit regarding ineffective assistance that

stated, in relevant part:

3. Petitioner’s former attorney (appellate counsel) []
refused to file a writ of certiorari on Petitioner’s
behalf;

4. Through a letter dated December 31, 2011, [appellate
counsel] informed Petitioner after receiving numerous
messages from family members that Petitioner desires to
file a writ of certiorari: “I will review the ICA decision
again within 60 days to see if there is a basis to file a
writ.”

5. Through a letter dated January 20, 2012, [appellate
counsel] informed Petitioner: “I have decided to file a
writ of certiorari on your behalf” . . . “I hope to file
the writ by the end of January.”

6. Through a letter dated February 15, 2012, [appellate
counsel] informed Petitioner: “Therefore, with all due
respect to your desire to have a writ filed, I have not

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filed one and will not be filing one” . . . “The time to
file the writ is now expired.”

Villados also provided an affidavit to support his

request for appointment of counsel. Id. In relevant part, it

stated as follows:

2. [Petitioner] alleges that he was denied effective
assistance of counsel when attorney failed to represent
Petitioner in the pursuit of a writ of certiorari;

3. [Petitioner] lacks the knowledge in preparing such a
case before the Supreme Court of the State of Hawaiʻi;

4. [Petitioner] is getting piecemeal assistance from
various inmates in preparing this case;

5. [Petitioner] has no experience or education in legal
law;

6. [Petitioner] is unable to determine complex legal issues
that might have merit to this case;

7. [Petitioner] has to rely on unknowledgeable inmate
assistance[.]

We dismissed the application, concluding that its

untimeliness deprived us of jurisdiction. See State v.

Villados, SCWC-30442, 2012 WL 3262752, at *1 (Haw. July 20,

2012). One justice dissented, arguing that the court should

have accepted the untimely application because ineffective

assistance of counsel caused the procedural defect. Id. at *3

(Acoba, J., dissenting). The dissent opined that the

circumstances giving rise to Villados’s untimely Application

“fall[] squarely under the reasoning of” our cases that had

excused procedural defects before the ICA. Id. (citing State v.

Caraballo, 62 Haw. 309, 615 P.2d 91 (1980)). Accordingly, the

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dissent would have taken jurisdiction over Villados’s appeal as,

it argued, due process required. Id. at *4.

B. Rule 40 Proceedings
1. Circuit Court Proceedings

On September 12, 2013, 6 Villados filed a pro se

petition for post-conviction relief in the circuit court

pursuant to HRPP Rule 40. 7 Villados alleged that he was denied

effective assistance of counsel because appellate counsel failed

to timely apply for writ of certiorari, despite assuring

Villados that she would do so. Villados argued that he was

entitled to an evidentiary hearing, and he requested that the

court vacate his judgment, order a new trial, or resentence him.

The circuit court appointed a new attorney for Villados, and

through counsel, Villados filed a supplemental memorandum

arguing that appellate counsel’s refusal to file an application

on his behalf “thwart[ed] the Hawaii Supreme Court’s mandate for

zealous advocacy on appeal and deprived Mr. Villados of his

right to appellate counsel.”

The State argued in opposition that the petition

should be dismissed because appeal to this court is not one of

6 Villados also petitioned for writ of habeas corpus in the United
States District Court for the District of Hawaiʻi based on the untimely
certiorari application, which was dismissed prior to the HRPP Rule 40
proceedings for failing to assert a colorable claim for relief under federal
law. See Villados v. Thomas, 2013 WL 4011514, at *3 (D. Haw. August 5,
2013).

7 The Honorable Peter T. Cahill presided.

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right, and under federal law, there is no right to effective

assistance of counsel on discretionary appeals. In the

alternative, the State argued that appellate counsel’s

“performance was objectively reasonable and within the ‘range of

competence demanded of attorneys in criminal cases.’” Noting

that appellate counsel fully briefed the issues before the ICA,

the State argued that “under the totality of the circumstances,

[appellate counsel’s] efforts reflected zealous advocacy on

behalf of Villados.” In addition, the State argued that it was

important to consider and defer to appellate counsel’s view that

there were no meritorious issues to pursue in an application for

writ of certiorari.

The circuit court held an evidentiary hearing on

Villados’ Rule 40 petition. Appellate counsel provided

testimony at the hearing regarding her representation of

Villados. She stated that she did not file an application for

writ of certiorari because she believed there were no grounds to

do so. She explained that after considering “the statute

governing the taking of a writ of certiorari” and reading the

ICA’s SDO, she determined that she “did not see grave errors of

law or fact” that would “meet the criteria” under the statute.

On cross-examination, appellate counsel testified that

she did not seek an extension of the filing deadline after the

ICA’s Judgment on Appeal was filed. She testified that after

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sending Villados the January 20, 2012 letter indicating that she

would file the application, she tried to call Villados “on the

21st or 22nd” to inform him that she in fact would not file an

application. She testified that she was unable to reach

Villados and had to leave a message, although she later found

out she did not follow the usual procedure for arranging a call

to the mainland prison where Villados was incarcerated. She

also testified that she did not write to Villados to inform him

that she would not file an application until after the window

for filing had expired.

The circuit court found that Villados was provided

ineffective assistance of appellate counsel:

[B]ased upon the evidence that’s been presented and the
testimony that I heard from [appellate counsel], I do find
that there was ineffective assistance of counsel.
I mean, in his dissent from the order dismissing
application for writ of certiorari, I mean, [the dissent]
as much as said, as a matter of law, it was ineffective
assistance of counsel, and they appeared to have all the
evidence that I have, other than the testimony. But they
had declarations and affidavits, and I realize that’s the
dissent, but he sets it out as clear as he could be.
But the evidence also supports it. And the troubling
part is that [appellate counsel] wrote to Mr. Villados on
January 20, 2012, and said, “I will file the writ of
certiorari.” She testified that she called him but could
not make contact.
So, therefore, in Mr. Villados’ mind, when he
receives the letter of January 20th, he thinks his lawyer
is going to proceed. The next thing that he receives is a
letter saying that the appeal time has been blown, and
there’s nothing more we can do about it except file Rule 40
and make a claim of ineffective assistance of counsel.
I think it’s like a statute of limitations. Once
blown, it can’t be reobtained. I did not know myself about
the automatic 30-day extension, but you have to make that
request.

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That was not done. That would have given counsel
time to file a withdrawal or there were other options.
Simply file the writ of certiorari even if she didn’t
believe that there were grounds for it. [The dissent]
talks about zealous representation. But if counsel felt
uncomfortable doing that, then the immediate response has
to be you immediately file a motion to withdraw.
On the civil side, if you’re faced with a statute
like this and you don’t want to file the Complaint, you can
easily prepare one and have the client file it pro se.
I realize in the criminal context it’s different, but
in this case, [appellate counsel’s] actions did deprive Mr.
Villados of the right to seek an appeal. He does not have
a right to the automatic appeal because it’s discretionary
with the Supreme Court.

With regard to the appropriate remedy, the court held

that a new trial should not be granted, as Villados had urged,

but expressed doubt as to the proper course moving forward given

the unique circumstances of the case. The court explained:

The standard has troubled me, . . . but I don’t think
that, in the totality of this case, the remedy is to grant
the new trial.
The reason is there is an [a]ppellate ruling in this
case, and the appeal was denied. So despite my finding, I
can’t grant the petition or I can’t grant the relief you’re
requesting.
I am still troubled, and I guess the only thing is,
given what the parties have done, is now everything on this
— everything that was part of the original criminal matter
is now part of this petition, including the entirety of the
transcripts.
And the defendant or the petitioner should be
afforded to present all of his appeal issues as part of his
Rule 40 petition.
Now, whether the [a]ppellate [c]ourt will accept
that, I don’t know. And they certainly — and this is
certainly one [—] that should be appealed. Because I will
tell you that both myself and . . . my law clerk — I spent
one entire day trying to find the case, and . . . I could
not find a case where the time limit on the writ of cert
was missed that also told me what the relief should be. I
couldn’t find one.
And so I just don’t feel that granting a new trial on
the Rule 40 petition — yes, he was deprived of that right,
but it’s so discretionary, and I don’t think you have to
prove, necessarily, prejudice; but we are guided by what
the [c]ourt already did. And [the dissent] set forth the

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manner, the method, and the platform by which the [s]upreme
[c]ourt could have taken the original appeal, and they
chose not to.
Now, I realize they decided it simply on a
jurisdictional issue, that the time was blown, but he set
it all out, and he even said why should we have to deal
with this on a Rule 40. Let’s just deal with it now.
Well, what he was thinking on the Rule 40, he was probably
thinking the entire appeal is going to come back to us, and
we’re then going to have an opportunity to decide it.
So I don’t know how you’re going to fashion — well,
the findings of fact, I think, are pretty easy. The
conclusions of law are — I’m concluding, as a result of the
ineffective assistance of counsel, that the defendant was
deprived of his ability to seek a discretionary appeal with
the [s]upreme [c]ourt.
But that the relief requested, namely a new trial, is
denied; and that the defendant or the petitioner, as a
matter of law, should be permitted the opportunity to
present all of his appeal issues including those that were
originally raised in the original appeal and that were not
permitted to go up on [c]ert to the [s]upreme [c]ourt
should be presented.
Whether or not I have the power to do that, it’s
almost like I’m issuing a writ of mandamus to the
[a]ppellate [c]ourt.

Villados moved for reconsideration before the court

issued a written order, arguing that pursuant to Briones v.

State, 74 Haw. 442, 467, 848 P.2d 966, 978 (1993), he was

entitled to a retrial. The State opposed the motion; without

conceding that counsel had been ineffective, it asserted that a

new trial was not warranted.

The circuit court denied the motion for

reconsideration and filed a written order reflecting its oral

ruling. The court determined that appellate counsel provided

ineffective assistance of counsel, as she “failed to inform”

Villados that she had changed her mind about filing an

application for writ of certiorari, and she failed to “take the

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steps necessary to preserve his statutory right to seek review

by the Hawaii Supreme Court.” It opined, however, that “[t]he

appropriate remedy in this case is to permit [Villados] to seek

review by the Hawaii Supreme Court of the ICA’s affirming of the

judgment of conviction. This [c]ourt cannot grant the relief

requested by [Villados].”

2. ICA Proceedings

Villados and the State cross-appealed. The State

challenged the conclusion that counsel for Villados was

ineffective, arguing that appellate counsel could not have been

ineffective for denying her client a statutory right. The State

argued that Villados was not constitutionally entitled to

effective counsel on appeal to this court. Even if he was, the

State asserted that counsel’s error did not result in “the

withdrawal or substantial impairment of a potentially

meritorious defense.” (Citing Briones, 74. Haw. at 462, 848

P.2d at 976.) Villados asked the ICA to affirm the circuit

court insofar as it concluded his counsel was ineffective, but

urged that his conviction should be set aside.

The ICA rejected the State’s cross-appeal and upheld

the circuit court’s ruling that Villados’s appellate counsel

provided ineffective assistance. Relying on Maddox v. State,

141 Hawaiʻi 196, 203, 407 P.3d 152, 159 (2017), the ICA

determined that when counsel has denied a defendant their right

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to an appeal, including an appeal to this court, “a defendant

need not demonstrate any additional possibility of impairment”

to establish ineffective assistance of counsel. Because filing

an application for writ of certiorari is within “the scope of

counsel’s appointment, pursuant to HRS § 802-5,” the ICA

determined that Villados’s counsel denied him of his right to

appeal to this court by virtue of her failure to “diligently

fulfill the procedural requirements to file an application for

writ of certiorari if [Villados] elect[ed] to do so.”

However, the ICA agreed with the circuit court that a

new trial would not be an inappropriate remedy. Quoting Maddox,

the ICA noted that this court “expressed that the defendant’s

alleged facts” regarding ineffective assistance, “if true, would

entitle [the defendant] to proceed with his appeal at this

juncture[.]” 141 Hawaiʻi at 208, 407 P.3d at 164. Per the ICA,

“Maddox does not indicate that . . . vacating [Villados’s]

conviction would be an appropriate remedy.” Instead, the

appropriate relief “would be to allow [Villados] to proceed with

the appeal that was precluded by the ineffective counsel.”

However, like the circuit court, it did not have the power to

order the supreme court to review the application. That power,

it reasoned, could only be exercised by this court. The ICA

therefore affirmed the circuit court’s denial of the Rule 40

petition.

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III. DISCUSSION

A decade after his original conviction and eight years

after his untimely application for writ of certiorari was

dismissed, Villados is now before this court once again.

Because the State did not appeal the ICA’s decision as to its

cross-appeal, the issue of whether Villados’s counsel was

ineffective is waived, and we do not review the circuit court

and ICA’s conclusion that she was. Therefore, we are presented

only with the question of the proper remedy. We agree with the

ICA and the circuit court that Villados must be permitted to

refile an application for writ of certiorari challenging his

2010 conviction on the merits.

As this court held in State v. Uchima, 147 Hawaiʻi 64,

464 P.3d 852 (2020), a criminal defendant is entitled to the

effective assistance of counsel on certiorari review. Id. at

76, 464 P.3d at 864. Uchima arose in the same context that

Villados found himself in 2012: a late application, which would

normally deprive us of jurisdiction, caused by ineffective

assistance of counsel on direct appeal. Because the

ineffectiveness of Uchima’s counsel was plain from the record,

we had authority to consider the application on its merits, as

we do “when it is necessary to prevent a violation of due

process or is in the interests of justice.” Id. at 82, 464 P.3d

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at 870. Just as we considered Uchima’s application on the

merits, Villados’s application should be considered on its

merits as well.

The remedy for ineffective assistance of counsel must

be responsive to the nature of counsel’s errors. Ineffective

assistance of counsel at trial requires a new trial, but

ineffective assistance of counsel on appeal does not necessarily

warrant this remedy. In Maddox, we held that if the facts

alleged in an HRPP Rule 40 proceeding were true, the defendant’s

counsel would have been ineffective because counsel failed to

take the procedural steps required to commence an appeal. 141

Hawaiʻi at 202–03, 407 P.3d at 158–59. As such, counsel’s errors

resulted in “the complete denial of a criminal appeal[.]” Id.

at 205, 407 P.3d at 161. Accordingly, we noted that he would be

entitled to “proceed with his appeal at this juncture[.]” 8 Id.

at 208, 407 P.3d at 164.

We do not agree with Villados that counsel’s error

requires vacatur of the underlying conviction and a new trial

based on language in Briones: “A conviction will be reversed,

therefore, if the defendant was denied effective assistance of

counsel at trial . . . or on appeal.” 74 Haw. at 467, 848 P.2d

8 The United States District Court for the District of Hawaiʻi, in
reviewing the same defendant’s petition for writ of habeas corpus, also
concluded that the appropriate remedy would be a new appeal. Maddox v.
Thomas, 2019 WL 311964, at *6 n.10 (D. Haw. Jan. 23, 2019) (citing Penson v.
Ohio, 488 U.S. 75, 88 (1988)).

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at 978 (citation omitted). In Briones, not only was trial

counsel also ineffective (for which a new trial is the usual

remedy), appellate counsel’s “failure to raise [an] issue, both

at trial and on appeal, resulted in the withdrawal of not only a

potentially meritorious defense, but a defense that would have

altered the outcome.” Id. at 467–68, 848 P.2d at 978 (emphasis

added). Cases from other jurisdictions that awarded a new trial

for ineffective assistance of appellate counsel likewise tend to

arise in this posture: if the court has determined that, absent

counsel’s error, the outcome of the appeal would have been

different, the remedy of a new appeal would effectively “require

another judicial entity to undertake exactly the same analysis

which had just been accomplished,” and judicial economy instead

favors granting a new trial. Milliken v. Stewart, 583 S.E.2d

30, 31 (Ga. 2003); see Ezell v. State, 548 S.E.2d 852, 854 (S.C.

2001) (“Here, we conclude the result of respondent’s appeal

would have been different had counsel [been effective before]

the Court of Appeals. Therefore, . . . the appropriate remedy

for the ineffective assistance of appellate counsel on the

particular facts of this case is to grant respondent a new

trial.”); Ramchair v. Conway, 601 F.3d 66, 78 (2d Cir. 2010)

(“Because remanding for a new appeal would further delay any new

trial, and because the district court found the mistrial claim

unassailably meritorious due to the unfairness of Ramchair’s

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trial, the district court concluded that remanding for a new

trial, without pausing for a new appeal, was appropriate.”).

In Maddox, by contrast, we held that a defendant who

was utterly denied his right to appeal “need not demonstrate any

additional possibility of impairment to establish that counsel

was ineffective under article I, sections 5 and 14 of the Hawaiʻi

Constitution.” 141 Hawaiʻi at 206, 407 P.3d at 162. And we

opined that if, as he alleged, Maddox were denied his right to

appeal by virtue of ineffective assistance of counsel, Maddox

would be entitled to “pursue an appeal of [his original case.]”

Id. Here, as in Maddox, Villados was entirely deprived of the

opportunity for Hawaiʻi Supreme Court review, so we need not and

do not reach the merits of his underlying case to determine

whether that denial “resulted in either the withdrawal or

substantial impairment of a potentially meritorious defense” –

the denial alone is enough to warrant relief. Id. at 205, 407

P.3d at 161 (quoting State v. Antone, 62 Haw. 346, 348–49, 615

P.2d 101, 104 (1980)). But absent at least some inquiry into

the merits, a new trial is not a remedy responsive to the error.

Indeed, many state courts have determined that in

cases where appellate counsel was found ineffective but trial

counsel was not, “[t]he proper remedy . . . is to return

applicant to the point at which he can give notice of appeal.”

Ex parte Miller, 330 S.W.3d 610, 626 (Tex. Crim. App. 2009); see

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State v. Gross, 760 A.2d 725, 742 (Md. Ct. Spec. App. 2000)

(holding that the appropriate relief for ineffective assistance

of appellate counsel is the “awarding of a belated or new

appeal,” noting that the relief “should be tailored to fit the

deficiency” (quotation marks and citation omitted)); In re

Alexandria G., 834 N.W.2d 432, 437 (Wisc. Ct. App. 2013)

(holding that the appropriate remedy when appellate counsel was

found ineffective for failing to file a timely appeal from the

termination of parental rights before the deadline was extending

time to file a notice of appeal, for such a remedy was “suited

to the scope of the violation”).

Likewise, federal courts have found that “[i]n

general, the appropriate remedy for ineffective assistance of

appellate counsel is to grant a new appeal.” 9 Lynch v. Dolce,

789 F.3d 303, 320 (2d Cir. 2015); see Martin v. United States,

81 F.3d 1083, 1084 (11th Cir. 1996) (per curiam) (“Because [the

defendant] was entitled to appeal his sentence . . . and because

the failure to file an appeal constituted ineffective assistance

of counsel, we REVERSE and REMAND with instructions to grant

9 However, unlike in Hawaiʻi, the United States Constitution does
not guarantee the effective assistance of counsel on discretionary review.
Wainwright v. Torna, 455 U.S. 586, 587–88 (1982) (per curiam). Nonetheless,
federal precedent is instructive as to the appropriate remedy in this case,
and indeed, federal statutes have been interpreted to provide that “a person
whose federal conviction has been affirmed is entitled to a lawyer’s help in
seeking certiorari[.]” Wilkins v. United States, 441 U.S. 468, 469 (1979);
see also Nnebe v. United States, 534 F.3d 87, 91 (2d Cir. 2008).

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relief allowing a direct appeal.”). For instance, in United

States v. Shedrick, 493 F.3d 292, 303 (3d Cir. 2007), the United

States Court of Appeals for the Third Circuit held that when

ineffective assistance of appellate counsel prevented a

defendant from filing a timely appeal, the appropriate remedy

was to “vacate and remand for re-entry of the initial sentence

so that there can be a timely appeal” because this would put the

defendant “in the same position he would have been in if he had

had effective assistance of counsel.” Cf. Garza v. Idaho, 139

S. Ct. 738, 749 (2019) (“When counsel’s deficient performance

forfeits an appeal that a defendant otherwise would have taken,

the defendant gets a new opportunity to appeal. . . . That rule

does no more than restore the status quo that existed before

counsel’s deficient performance forfeited the appeal, and it

allows an appellate court to consider the appeal as that court

otherwise would have done[.]”).

And while not all jurisdictions have recognized a

right to petition for certiorari or discretionary review as we

did in Uchima, 147 Hawaiʻi at 73, 464 P.3d at 861, courts that do

have found that providing a defendant with the opportunity to

pursue the petition is the appropriate remedy when appellate

counsel is ineffective by depriving them of that right. See

People v. Williams, 736 P.2d 1229, 1231 (Colo. App. 1986)

(“Therefore, because a lack of effective assistance of counsel

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denied defendant the opportunity to file a petition for a writ

of certiorari in the Supreme Court, we hereby . . . grant

defendant fourteen days from the date mandate issues in this

case within which to file a petition in this court for

rehearing[.]”); Kargus v. State, 169 P.3d 307, 312, 320 (Kan.

2007) (holding that criminal defendants have a right to petition

the Kansas Supreme Court for review, and denial of that right

due to ineffective assistance of counsel requires the

opportunity to re-petition).

In the instant case, counsel was ineffective in

failing to file a timely application for writ of certiorari. As

in Maddox, and consistent with the approaches of other

jurisdictions, a new trial would not be a remedy responsive to

this error. Instead, Villados should be entitled to “proceed

with his appeal” to this court as if the ineffective assistance

had not been rendered. Maddox, 141 Hawaiʻi at 208, 407 P.3d at

164.

Accordingly, in order to effectuate this remedy and

pursuant to our authority under HRS §§ 602-5(5) and 602-5(6), we

vacate the judgment of the ICA in case number SCWC-30442 and

instruct the ICA to reenter it within ten days of entry of the

judgment on appeal in the instant case. Villados shall

accordingly be entitled to refile an application for writ of

certiorari in case number SCWC-30442, State v. Villados,

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challenging the merits of his original case pursuant to the

reentered judgment on appeal. The application for writ of

certiorari must be filed in accordance with HRS § 602-59(c) and

all other relevant statutes, and the Hawaiʻi Rules of Appellate

(HRAP) Procedure.

While we believe this to be the most efficient method

for affording Villados relief, in future HRPP Rule 40

proceedings where ineffective assistance of appellate counsel –

whether for representation at the ICA or this court – is

established and if the opportunity to pursue the underlying

appeal is the appropriate remedy, we hold that granting such a

remedy is within the trial court’s authority pursuant to HRPP

40(g)(1) (“If the court finds in favor of the petitioner, it

shall enter an appropriate order with respect to the judgment or

sentence in the former proceeding, or with respect to custody

based on such judgment, and such supplementary orders as to

rearraignment, retrial, custody, bail, discharge or other

matters as may be necessary or proper.”). Pursuant to HRPP Rule

40(g)(1), when the trial court finds that ineffective assistance

of appellate counsel has been rendered on appeal to the ICA and

a new appeal is the appropriate remedy, it may issue an order

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vacating and reentering the trial court judgment in order for

the defendant to pursue the appeal. 10

In cases like this one, where the ineffective

assistance of counsel arises on certiorari review, it is the

ICA’s judgment on appeal that must be vacated and reentered. In

such a case, the trial court should conduct HRPP Rule 40

proceedings in the usual course. But such petitions need not be

10 We are aware that in State v. Mamalias, we held that a trial
court does not have the authority to “extend[] the expired time for appeal in
the underlying criminal case.” 69 Haw. 581, 582, 751 P.2d 1029, 1030 (1988).
This is true – HRAP Rule 4 on its face does not allow for additional
extensions of time in a criminal case beyond that provided in Rule 4(b)(5).
We do not suggest that a trial court is empowered to ignore the plain
language of the rule by extending the time to appeal.
But we also reject a reading of Mamalias that precludes any
ability for a Rule 40 court to award relief for ineffective assistance of
appellate counsel. Our holding today recognizes that ineffective assistance
of counsel on appeal requires an appropriate remedy, as is reflected in our
precedents establishing an appellate court does not necessarily lose
jurisdiction over an untimely appeal when ineffective assistance causes the
untimeliness. State v. Erwin, 57 Haw. 268, 269, 554 P.2d 236, 238 (1976)
(“[I]t is clear that an indigent criminal defendant is entitled, on his first
appeal, to court-appointed counsel who may not deprive him of his appeal by
electing to forego compliance with procedural rules.”). Indeed, Uchima
contemplated that the same relief an appellate court may provide in such a
circumstance – the ability to proceed with the appeal – would be available
following an HRPP Rule 40 proceeding. 147 Hawaiʻi at 81, 464 P.3d at 869
(“[T]his court has discretionary authority to dismiss the application as
untimely and require the defendant to proceed under HRPP Rule 40. . . . In
circumstances when the record is unclear [as to whether counsel was
ineffective], the court may dismiss the application so that a proceeding may
be commenced in the trial court pursuant to HRPP Rule 40(f).”). We clarify
today that the procedural means to effectuate such a remedy is the vacatur
and reentry of the underlying judgment, affording the petitioner the
opportunity to pursue a new appeal (without altering, as the trial court in
Mamalias attempted to, the time requirements imposed by statute and rule).
Moreover, the trial court in Mamalias did not conduct a hearing
on the merits of the HRPP Rule 40 petition before awarding such relief. In
contrast, the court’s authority to enter relief entitling the defendant to a
new appeal is predicated upon the entry of findings of fact and conclusions
of law establishing that (1) appellate counsel was ineffective and (2) a new
appeal is the appropriate remedy.

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dismissed and appealed to this court in order to grant relief,

as happened here. Rather, upon entry of final judgment pursuant

to an order determining that (1) appellate counsel was

ineffective and (2) the opportunity to pursue certiorari review

is the appropriate remedy, the petitioner may then move in the

ICA for vacatur and reentry of the underlying judgment on

appeal. 11

V. CONCLUSION

For the foregoing reasons, the ICA’s October 25, 2018

judgment on appeal is affirmed in part and reversed in part. We

affirm the judgment as to the determinations that appellate

counsel was ineffective and that the proper remedy is the

opportunity to seek review from this court, and reverse the

denial of relief and dismissal of the HRPP Rule 40 petition. We

vacate the ICA’s January 4, 2012 judgment on appeal in State v.

Villados, No. 30442, and instruct the ICA to reenter said

11 The trial court’s order and judgment on the HRPP Rule 40 petition
would be subject to appeal in the normal course before taking final effect.
HRPP Rule 40(h) (“Any party may appeal from a judgment entered in the
proceeding in accordance with Rule 4(b) of the [HRAP].”). Accordingly, the
subsequent motion to vacate and reenter the judgment brought before the ICA
would not, absent unusual circumstances, present the opportunity to
relitigate whether appellate counsel had been ineffective.

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judgment within ten days of the entry of the judgment on appeal

in the instant case.

Robert H. Thomas and /s/ Mark E. Recktenwald
Joanna C. Zeigler
(Benjamin E. Lowenthal /s/ Paula A. Nakayama
on the briefs)
for petitioner /s/ Sabrina S. McKenna

Donald S. Guzman and /s/ Michael D. Wilson
Renee Ishikawa Delizo
(Artemio C. Baxa /s/ Peter K. Kubota
on the briefs)
for respondent

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