NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
21-MAY-2021
08:15 AM
Dkt. 162 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
STATE OF HAWAI#I
LUKE J. WARNER, Petitioner-Appellant, v.
STATE OF HAWAI#I, Respondent-Appellee
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CASE NO. 1PR-18-1-000004)
SUMMARY DISPOSITION ORDER
(By: Ginoza, C.J., and Hiraoka and Wadsworth, JJ.)
Self-represented Petitioner-Appellant Luke Warner
(Warner) appeals from the Findings of Fact, Conclusions of Law,
and Order Denying Petition for Post-Conviction Relief (Order
Denying Rule 40 Petition), entered on February 1, 2019, in the
Circuit Court of the First Circuit (circuit court).1/ For the
reasons explained below, we affirm.
I. Background
On June 17, 2016, pursuant to a plea agreement with
Respondent-Appellee State of Hawai#i (State), Warner pleaded
guilty to and was convicted of: four counts of attempted theft
in the second degree, in violation of Hawaii Revised Statutes
(HRS) § 705-500 (1993) and HRS § 708-831(1)(b) (Supp. 2012);
three counts of methamphetamine trafficking in the first degree,
in violation of HRS § 712-1240.7 (Supp. 2012); one count of
attempted theft in the first degree, in violation of HRS
§ 705-500 and HRS § 708-830.5(1)(b) (Supp. 2012); one count of
1/
The Honorable Karen T. Nakasone presided.
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER
attempted ownership or possession prohibited of any firearm or
ammunition by a person convicted of certain crimes, in violation
of HRS § 705-500 and HRS § 134-7(b) and (h) (2011); one count of
attempted place to keep pistol or revolver, in violation of HRS
§ 705-500 and HRS § 134-25 (2011); one count of promoting a
harmful drug in the third degree, in violation of HRS
§ 712-1246(1) (1993); one count of promoting a dangerous drug in
the third degree, in violation of HRS § 712-1243 (Supp. 2012);
one count of unlawful use of drug paraphernalia, in violation of
HRS § 329-43.5(a) (2010); and one count of attempted theft in the
third degree, in violation of HRS § 705-500 and HRS
§ 708-832(1)(a) (Supp. 2012).2/ Warner was sentenced to multiple
concurrent prison terms, the longest of which was ten years.
Warner did not appeal from the June 17, 2016 Judgment of
Conviction and Sentence (Judgment).
On February 5, 2018, Warner filed a "Petition to
Vacate, Set Aside, or Correct Judgment or to Release Petitioner
from Custody" (Petition), pursuant to Hawai#i Rules of Penal
Procedure (HRPP) Rule 40. The Petition challenged the Judgment
on the following grounds: (1) the use of evidence obtained
pursuant to an unconstitutional search and seizure (Ground One);
(2) the use of evidence obtained pursuant to an unlawful arrest
(Ground Two); (3) the prosecution's failure to disclose evidence
favorable to Warner (Ground Three); (4) ineffective assistance of
trial counsel (Ground Four); (5) prosecutorial misconduct (Ground
Five); (6) "[m]edical and [p]sych decompensation" (Ground Six);
(7) discrimination and "reverse racism" (Ground Seven); and (8)
"[a]ccumulative errors" (Ground Eight).
The Petition was denied without a hearing pursuant to
the Order Denying Rule 40 Petition.
II. Discussion
On appeal, Warner does not identify any points of error
and his arguments are difficult to discern. He appears to
challenge the conviction entered against him by the circuit court
2/
The Honorable Karen S.S. Ahn presided.
2
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER
in the underlying criminal case, No. 1PC121001161 (Criminal
Case), contending that: (1) three grand jury witnesses lied in
connection with Warner's indictment; and (2) Warner's various
trial counsel engaged in a variety of misconduct, leaving Warner
with "no other viable option," but to plead guilty. Warner also
seeks the following relief: (1) to "suspend Hawaii Judges
Georgia McMillen, Alvin Nishimura, J. Leonard, and Keith Hiraoka,
for engaging [Warner's] representations [sic] and/or for abusing
their discretion to deny [Warner] effective counsel"; (2) to
"vacate the convictions" in the Criminal Case as well as prior
criminal cases and "bar the State . . . from initiating any
further prosecutions"; and (3) alternatively, to remand all of
his criminal cases for disposition in a different venue on the
mainland.3/
Initially, we construe Warner's request to "suspend
Hawaii Judges . . . J. Leonard, and Keith Hiraoka . . . for
abusing their discretion to deny [Warner] effective counsel," as
a non-conforming motion for reconsideration of this court's
September 13, 2019 and November 15, 2019 orders, which, among
other things, denied Warner's requests for appointment of counsel
on appeal. As such, the motion for reconsideration, which is
part of Warner's opening brief filed on December 23, 2019, is
untimely under Hawai#i Rules of Appellate Procedure (HRAP) Rule
40(a). Furthermore, the court did not overlook or misapprehend
any points of law or fact in entering the challenged orders. See
HRAP Rule 40(b). The motion for reconsideration is therefore
denied.
We construe Warner's request to "vacate the
conviction[]" in the Criminal Case and "bar the State . . . from
initiating any further prosecutions," or alternatively, to remand
the Criminal Case for disposition in a different venue on the
3/
We note that in the Petition, Warner stated that he "does NOT seek
a vacated judgement of conviction for a new trial," in part because "the ten
years was not a bad deal" and "[i]t would not be fair to subject [him] to
di[re] consequences again to put [him] in a worse situation." Rather, Warner
asked the court "to please end [his] sentence, and waive all of the fines and
fees that were imposed at sentencing," and "to please give [Warner] a redress
of his grievances . . . . [and] to evaluate [Warner's] civil injustices,
medical decompensation, and material and financial losses, and make
compensatory judgements for [Warner]."
3
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER
mainland as a challenge to the Order Denying Rule 40 Petition
without a hearing.
We review a circuit court's denial of a HRPP Rule
40 petition without a hearing de novo, under the right/wrong
standard. See Dan v. State, 76 Hawai#i 423, 427, 879 P.2d 528,
532 (1994).
As a general rule, a hearing should be held on a Rule 40
petition for post-conviction relief where the petition
states a colorable claim. To establish a colorable claim,
the allegations of the petition must show that if taken as
true the facts alleged would change the verdict, however, a
petitioner's conclusions need not be regarded as true.
Where examination of the record of the trial court
proceedings indicates that the petitioner's allegations show
no colorable claim, it is not error to deny the petition
without a hearing. The question on appeal of a denial of a
Rule 40 petition without a hearing is whether the trial
record indicates that Petitioner's application for relief
made such a showing of a colorable claim as to require a
hearing before the lower court.
Id. (quoting State v. Allen, 7 Haw. App. 89, 92-93, 744 P.2d 789,
792-93 (1987)).
The only discernible arguments stated in Warner's
opening and supplemental briefs relating to his Petition are
that: (1) three grand jury witnesses lied in connection with
Warner's indictment; and (2) Warner's various trial counsel (a)
failed to disclose conflicts of interest arising from counsel's
representation of other clients, (b) "repeatedly refused
[Warner's] numerous instructions to compel and challenge the
inconsistencies" in discovery obtained from the State, and (c)
failed to raise the "best possible defenses[,]" leaving Warner
with "no other viable option," but to plead guilty. Warner's
first argument — that three grand jury witnesses lied — appears
to relate in part to the allegations made in Grounds One, Two,
and Three of the Petition.4/ Warner's second argument — that his
trial counsel engaged in various acts of misconduct — appears to
4/
For example, Warner argues on appeal that "HPD Detective Sergeant
Michael Ogawa deceived the grand jury about the search warrant(s) by omitting
the facts that he produced a search warrant with the wrong address for
[Warner's] residence . . . ." Grounds One and Three of the Petition similarly
include allegations related to a search warrant "with the wrong address." In
addition, Warner argues on appeal that "HPD undercover officer Jennifer
Bugarin . . . lied to the grand jury" about her first meeting with Warner.
Grounds Two and Three of the Petition similarly include allegations related to
Warner's meetings with Officer Bugarin.
4
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER
relate to the allegations made in Ground Four of the Petition.5/
HRPP Rule 40(a)(3) provides, in relevant part:
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.
Warner's arguments that the State used evidence
obtained pursuant to an unconstitutional search and seizure, used
evidence obtained pursuant to an unlawful arrest, and failed to
disclose evidence favorable to Warner, i.e., Grounds One, Two and
Three of the Petition, could have been raised before his change
of plea or, absent his guilty plea, in a direct appeal from the
Judgment. Similarly, Warner's argument that grand jury witnesses
lied in connection with his indictment could have been raised
before his change of plea or, absent his guilty plea, in a direct
appeal. However, none of these issues was raised in the Criminal
Case and Warner did not appeal from the Judgment.
Indeed, Warner's guilty plea, if validly entered,
precluded him from raising these nonjurisdictional issues in an
appeal. See State v. Morin, 71 Haw. 159, 162, 785 P.2d 1316,
1318 (1990) ("Generally, a guilty plea made voluntarily and
intelligently precludes a defendant from later asserting any
nonjurisdictional claims, including constitutional challenges to
the pretrial proceedings." (citing Brady v. United States, 397
U.S. 742 (1970))); State v. Hernandez, 143 Hawai#i 501, 508, 431
P.3d 1274, 1281 (2018) ("Pretrial nonjurisdictional defects —
such as unlawfully obtained evidence and illegal detention by law
enforcement — are pretrial errors that do not deprive a trial
court of its legal authority to hear and decide a case, and
5/
Warner's opening and supplemental briefs present no discernible
argument regarding Grounds Five through Eight of the Petition. Any related
points of error, which Warner does not identify, are therefore deemed waived.
See HRAP Rule 28(b)(4), (7).
5
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER
challenges to such errors generally will not survive a validly
entered plea of guilty or nolo contendere.")
To the extent that the Petition can be construed to
challenge Warner's guilty plea as not knowingly and intelligently
made, we conclude based on our review of the record that Warner
has not stated a colorable claim. Warner's signed guilty plea
stated in part:
2. I have received a written copy of the original
charge(s) in this case. The charge(s) has/have been
explained to me. I understand the original charge(s)
against me. I told my lawyer all of the facts I know
about the case. My lawyer explained the government's
evidence against me, my possible defense(s), and the
facts which the government must prove in order to
convict me.
. . . .
7. I plead guilty because, after discussing all the
evidence and receiving advice on the law from my
lawyer, I believe that I am guilty. . . . .
. . . .
11. I am signing this Guilty/No Contest Plea form after I
have gone over all of it with my lawyer. . . . I have
no complaints about my lawyer and I am satisfied with
what he/she has done for me.
(Some alteration to format.) Warner's guilty plea also stated
that the circuit court agreed to follow the attached plea
agreement, which set out, among other things, the maximum term of
imprisonment for each count (the longest of which was ten years),
and represented that "[t]he State shall . . . [n]ot seek extended
or consecutive sentencing[.]" The guilty plea further stated:
"I plead of my own free will. No one is pressuring me or
threatening me or any other person to force me to plead."
Moreover, the circuit court accepted Warner's guilty
plea only after a thorough colloquy with Warner to establish that
he voluntarily, knowingly, and intelligently relinquished his
rights to a trial and to appeal prior occurring matters. Warner
received what he bargained for in entering into the plea
agreement: the opportunity to serve concurrent prison terms, the
longest of which was ten years, rather than risk a sentence that
imposed consecutive terms on multiple counts. In sentencing
Warner, the circuit court indicated that in the absence of the
6
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER
plea agreement, the court "would strongly consider giving
[Warner] consecutive terms." Warner clearly understood the
consequences of the plea agreement, as reflected in his statement
in the Petition that he "does NOT seek a vacated judgement of
conviction for a new trial," in part because "the ten years was
not a bad deal" and "[i]t would not be fair to subject [him] to
di[re] consequences again to put [him] in a worse situation."
On this record, we conclude that Warner waived the
issues raised in Grounds One, Two, and Three of the Petition,
including his argument that grand jury witnesses lied in
connection with his indictment. Warner has not proved the
existence of extraordinary circumstances to justify his previous
failure to raise these issues. See HRPP Rule 40(a)(3). Thus,
Warner has presented no basis for this court to find that he
raised a colorable claim in the Petition related to these issues.
See Dan, 76 Hawai#i at 427, 879 P.2d at 532.
A similar analysis applies to Warner's argument that
his trial counsel engaged in various acts of misconduct,
resulting in ineffective assistance of trial counsel and leaving
Warner with "no other viable option" but to plead guilty. Warner
did not raise these issues in the Criminal Case, and his guilty
plea, which the record shows was made voluntarily and
intelligently (see supra), precluded him from raising these
issues in an appeal. Warner also has not proved the existence of
extraordinary circumstances to justify his failure to previously
raise these issues. Accordingly, on this record, we conclude
that Warner waived the issues raised in Ground Four of the
Petition, including his argument that his trial counsel engaged
in misconduct. See HRPP Rule 40(a)(3).
Even if Warner had not waived the issues raised in
Ground Four, he still did not state a colorable claim. "To
demonstrate that trial counsel is constitutionally ineffective, a
defendant must demonstrate '1) that there were specific errors or
omissions reflecting counsel's lack of skill, judgment, or
diligence; and 2) that such errors or omissions resulted in
either the withdrawal or substantial impairment of a potentially
meritorious defense.'" Grindling v. State, 144 Hawai#i 444, 451,
7
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER
445 P.3d 25, 32 (2019) (quoting State v. Silva, 75 Hawai#i 419,
440, 864 P.2d 583, 593 (1993)); see Dan, 76 Hawai#i at 427, 879
P.2d at 532 ("The burden of establishing ineffective assistance
rests with the petitioner and can only be met by demonstrating
specific errors or omissions resulted in the withdrawal or
substantial impairment of a meritorious defense." (citing State
v. Smith, 68 Haw. 304, 309, 712 P.2d 496, 500 (1986))). Here,
Warner did not assert specific errors or omissions of his trial
counsel that resulted in the withdrawal or substantial impairment
of a potentially meritorious defense. Thus, Warner has presented
no basis for this court to find that he raised a colorable claim
for ineffective assistance of counsel.
Because Warner failed to establish a colorable claim
for relief, the circuit court did not err in denying the Petition
without a hearing.
For the reasons discussed above, the Findings of Fact,
Conclusions of Law, and Order Denying Petition for Post-
Conviction Relief, entered on February 1, 2019, in the Circuit
Court of the First Circuit, is affirmed.
DATED: Honolulu, Hawai#i, May 21, 2021.
On the briefs:
Luke J. Warner,
Self-represented Petitioner- /s/ Lisa M. Ginoza
Appellant. Chief Judge
Stephen K. Tsushima,
Deputy Prosecuting Attorney, /s/ Keith K. Hiraoka
City & County of Honolulu, Associate Judge
for Respondent-Appellee.
/s/ Clyde J. Wadsworth
Associate Judge
8