NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
29-APR-2022
02:38 PM
Dkt. 64 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
NOE KIM RAQUINIO, Petitioner-Appellant v.
STATE OF HAWAI#I, Respondent-Appellee
APPEAL FROM THE CIRCUIT COURT OF THE THIRD CIRCUIT
(CASE NO. 3PR19100002K; CR. NO. 3CPC-XX-XXXXXXX)
SUMMARY DISPOSITION ORDER
(By: Leonard, Presiding Judge, and Wadsworth and McCullen, JJ.)
Self-represented Petitioner-Appellant Noe Kim Raquinio
(Raquinio) appeals from the "Findings of Fact, Conclusions of
Law, and Order Denying Petition Filed October 15, 2019" (Order
Denying Rule 40 Petition), entered on April 21, 2020, in the
Circuit Court of the Third Circuit (Circuit Court).1/ For the
reasons explained below, we affirm in part, vacate in part and
remand.
I. Background
Pursuant to a January 5, 2018 plea agreement with
Respondent-Appellee State of Hawai#i (State), Raquinio pleaded
guilty to and was convicted of Promoting a Dangerous Drug in the
Second Degree, in violation of Hawaii Revised Statutes (HRS)
§ 712-1242(1)(b)(i) (Supp. 2017),2/ in Criminal No. 3CPC-17-
1/
The Honorable Robert D.S. Kim presided.
2/
HRS § 712-1242(1)(b)(i) provides:
(1) A person commits the offense of promoting a
dangerous drug in the second degree if the person knowingly:
(continued...)
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER
0000617.3/ Raquinio was sentenced to a four-year term of
probation. The terms of probation included, inter alia, a one-
year term of incarceration, with all time suspended. On
January 19, 2018, the Circuit Court entered the Judgment of
Conviction and Probation Sentence (Judgment). Raquinio did not
appeal from the Judgment.
On March 25, 2019, Raquinio's court-appointed defense
counsel, Frank L. Miller (Miller), moved to withdraw, "due to a
conflict of interest and at the request of [Raquinio]." The
Circuit Court orally granted the motion on April 5, 2019, and
entered the written Order Granting Counsel's Motion to Withdraw
on April 18, 2019.
Beginning in April 2019, Raquinio, self-represented,
filed a series of post-conviction motions, including a May 16,
2019 motion requesting new appointed counsel. At an August 8,
2019 hearing, the Circuit Court stated that it would appoint
counsel for Raquinio to determine whether there was a basis for a
petition under Hawai#i Rules of Penal Procedure (HRPP) Rule 40,
and denied Raquinio's other motions without prejudice.
On October 7, 2019, Raquinio initiated the Rule 40
proceeding underlying this appeal by filing a series of
documents, including a "Motion to Withdraw Guilty Plea" and
2/
(...continued)
. . . .
(b) Possesses one or more preparations, compounds,
mixtures, or substances of an aggregate weight
of:
(i) One-eighth ounce or more, containing
methamphetamine, heroin, morphine, or
cocaine or any of their respective salts,
isomers, and salts of isomers. . . .
. . . .
. . . .
(2) Promoting a dangerous drug in the second degree is
a class B felony.
3/
Raquinio was charged via indictment with Promoting a Dangerous
Drug in the First Degree, in violation of HRS § 712-1241(1)(a); Promoting a
Dangerous Drug in the Third Degree, in violation of HRS § 712-1243(1); and
Prohibited Acts Related to Drug Paraphernalia, in violation of HRS § 329-43.5.
Raquinio initially pleaded not guilty.
2
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER
"[Raquinio's] Memorandum Ineffective Counsel [sic] in Support of
Rule 40 HRPP" (Memorandum in Support of Rule 40 Petition). On
October 15, 2019, Raquinio filed a "Petition to Vacate, Set
Aside, or Correct Judgment or to Release Petitioner [from]
Custody," pursuant to HRPP Rule 40 (Rule 40 Petition). The Rule
40 Petition challenged the Judgment on the following grounds:
(1) "In[eff]ective Counsel[,] coerced into guilty plea" (Ground
One); (2) "Conviction obtained by use of evidence gained pursuant
to an unconstitutional search and seizure"; (3) "Conviction
obtained by use of evidence obtained pursuant to arrest"; and (4)
"Newl[]y Discovered Evidence".
On October 17, 2019, the Circuit Court appointed
attorney Terry Fujioka-Lilley (Fujioka-Lilley) to represent
Raquinio on his Rule 40 Petition. On January 6, 2020, Fujioka-
Lilley filed a motion to withdraw as counsel due to "an un-
resolvable disagreement [with Raquinio] as to legal strategy and
legal effect of certain historical facts[.]" At a January 13,
2020 hearing, the Circuit Court granted the motion to withdraw.
Raquinio was present, made no objection, and indicated he wished
to represent himself pro se.
Thereafter, Raquinio filed an additional series of
motions, including "[Raqunio's] Motion to Withdraw Guilty Plea.
1. Ineffective Counsel 2. New[]ly Discovered Evidence." On
February 27, 2020, the State filed "State's Opposition to [Rule
40] Petition . . ." and "State's Omnibus Opposition to All
Motions Set for March 3, 2020" (Omnibus Opposition). In the
Omnibus Opposition, the State argued that Raquinio had failed to
satisfy the "manifest injustice" standard for having his guilty
plea set aside, and "request[ed] that the motion, and petition
seeking the same relief be denied." (Emphasis added.) The State
argued that the issues raised in Raquinio's other motions were
waived when Raquinio changed his plea to guilty.
On March 6, 2020, the Circuit Court held a hearing on
the Rule 40 Petition and Raquinio's motions. The court stated
that the motions were improperly filed and that Raquinio had been
erroneously given a hearing date. The court struck the motions
and then denied the Rule 40 Petition.
3
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER
The subsequent Order Denying Rule 40 Petition included
the following findings of fact, which are unchallenged on appeal
and are thus binding on the parties and this court, see State v.
Rodrigues, 145 Hawai#i 487, 494, 454 P.3d 428, 435 (2019):
2. The Petitioner in this matter was represented by Frank
Miller . . . in 3CPC-17-617.
3. On November 13, 2017[,] Mr. Miller filed a motion to
suppress evidence in 3CPC-17-617 on the grounds that there
was a lack of reasonable suspicion for the stop of the
defendant's vehicle, unlawful entry into defendant's
vehicle, . . . and improper consent and statements given by
the defendant.
4. On December 20, 2017[,] the State Opposed the Motion
to Suppress filed in 3CPC-17-617.
5. On January 5, 2017[,] the Defendant, while represented
by counsel changed his plea and was later sentenced[;]
during the change of plea and sentencing he was represented
by counsel Mr. Miller.
6. At the time of the Defendant's change of plea the
Defendant waived his right to file any pretrial motions.
7. Attorney Frank Miller provided the Defendant with
adequate and competent representation during the pendency of
the 3CPC-17-617.
8. The Petition, filed on October 15, 2019, alleges
Attorney Frank Miller was ineffective by informing the
Defendant that the motion to suppress hearing in 3CPC-17-617
was set for January 5, 2018 at 2:00 p.m. instead of 8:00
a.m.
9. The record in 3CPC-17-617 reflects that the defendant
was present on January 5, 2018 at 8:00 a.m.
10. The Petition, argues that the conviction was obtained
through the use of suppressible evidence.
11. The Petition argues there is newly discovered
evidence, however, the discovery relevant to 3CPC-17-617 was
held by Mr. Miller during the pendency of the case and was
available for review by the Defendant.
The Order Denying Rule 40 Petition also included the
following conclusions of law (COLs):
2. The Petition fails to allege facts that if proven
would establish that Attorney Frank Miller was Ineffective
in his representation of the Defendant, the record of 3CPC-
17-617 demonstrates that attorney Frank Miller filed a
motion to suppress on multiple grounds and the Defendant
elected to forego a hearing on that motion in exchange for a
plea deal with the State. There is not a trace of support
in the record or from other evidence submitted by the
petitioner that Attorney Frank Miller was ineffective.
3. The Petitioner's arguments that suppressible, or other
illegally obtained evidence were used to obtained [sic] the
4
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER
conviction were previously waived when the Defendant elected
to change his plea instead of proceeding on the Motion to
Suppress filed by Attorney Frank Miller in 3CPC-17-617,
therefore those portions of the Petition are deemed
inapplicable pursuant to HRPP Rule 40(a).
4. The Petitioner's arguments relating to newly
discovered evidence have no merit, as the complained of
material was turned over in discovery by the State during
the pendency of 3CPC-17-617, or do not relate to the facts
of the Petitioner's underlying case.
Raquinio timely appealed from the Order Denying Rule 40
Petition.
II. Discussion
Raquinio's points of error are difficult to discern.
He appears to challenge his conviction in Criminal No. 3CPC-17-
0000617 based on the following contentions: (1) the conviction
was obtained by use of evidence gained in a "false arrest" and an
unlawful search and seizure; (2) Raquinio received ineffective
assistance of trial counsel, who (a) failed to follow through
with Raquinio's initial not guilty plea; (b) coerced Raquinio
into entering a guilty plea; and (c) failed to pursue a viable
motion to suppress; and (3) the State violated the plea
agreement, rendering it null and void.4/ Raquinio also asserts
that he is "withdrawing" his guilty plea.
We review a circuit court's denial of a HRPP Rule
40 petition without a hearing5/ 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.
4/
Raquinio's points of error have been restated and condensed for
clarity. We note that the opening brief fails to comply with Hawai #i Rules of
Appellate Procedure (HRAP) Rule 28 in numerous material respects. However,
because we have "consistently adhered to the policy of affording litigants the
opportunity 'to have their cases heard on the merits, where possible[,]'" we
address Raquinio's arguments to the extent they are discernible. Morgan v.
Plan. Dep't. Cnty. of Kauai, 104 Hawai#i 173, 180–81, 86 P.3d 982, 989–90
(2004) (quoting O'Connor v. Diocese of Honolulu, 77 Hawai #i 383, 386, 885 P.2d
361, 364 (1994)).
5/
The March 6, 2020 hearing, which the Circuit Court characterized
as erroneously given, was not "a full and fair evidentiary hearing" as set
forth in HRPP Rule 40(f).
5
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER
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. (emphasis omitted) (quoting State v. Allen, 7 Haw. App. 89,
92-93, 744 P.2d 789, 792-93 (1987)).
We first address Raquinio's argument that he was
coerced by his trial counsel into entering a guilty plea, which
corresponds to Ground One of the Rule 40 Petition.6/ Raquinio
contends that on January 5, 2018, his trial counsel and the
State's prosecutor "changed my hearing from a suppression hearing
[and] convinced the court I would be pleading guilty and changed
the suppression hearing to a guilty plea[.] Then Miller came
outside and forcefully coerced me and yelled at me until there
was no time left . . . ." Raquinio further asserts that he was
in a "sever[e] state of pain" and was "unable [to] stand firm and
with [trial counsel] yelling at me to a deal with a jail sentence
to be served, under the state of mind and physical condition I
wasn't able to process what was actually going on in front of me
at the moment dropping my guard leaving counsel to coerced [sic]
me into what the prosecutor and [trial counsel] intended to do
and that is what they did to get me to take a deal."
The State contends that there is no basis in the record
to set aside Raquinio's guilty plea. The State argues that
Raquinio signed a change of plea form, and the Circuit Court,
following an extensive colloquy with Raquinio, found that he
knowingly, voluntarily, and intelligently entered his guilty
plea. The State further argues that Raquinio's claim of
ineffective assistance of counsel was frivolous and waived during
the change of plea colloquy.
The Order Denying Rule 40 Petition did not address
Raquinio's claim that he was coerced by his trial counsel into
entering a guilty plea. In addressing Raquinio's ineffective
6/
The Rule 40 Petition set forth Ground One as follows:
"In[eff]ective Counsel[,] coerced into guilty plea[.]" Raquinio also alleged
the following facts supporting Ground One: "Told me motion to suppress
hearing was at 2:00 pm on 1/5/2018, Hearing was set for 8:00am."
6
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER
assistance claim, the Order Denying Rule 40 Petition focused on
Raquinio's allegation that Miller was "ineffective by informing
the Defendant that the motion to suppress hearing in 3CPC-17-617
was set for January 5, 2018 at 2:00 p.m. instead of 8:00 a.m."
The Circuit Court found that Raquinio was present at 8:00 a.m.
for the January 5, 2018 hearing. The court also found that
Miller filed a motion to suppress and that Raquinio "elected to
forego a hearing on that motion in exchange for the plea deal
with the State." On these bases, the court concluded that the
Petition failed to allege facts that if proven would establish
that Miller was ineffective in his representation of Raquinio.7/
However, in Ground One of the Petition, Raquinio also
alleged, albeit briefly, that he was coerced into a guilty plea.
Raquinio similarly asserted in his October 7, 2019 Memorandum in
Support of Rule 40 Petition that he was "coerced into guilty plea
through an officer of the court Frank Miller, whom court
appointed to me who intentionally ineffectively represented me."
In motions filed on October 7, 2019 and January 30, 2020,
Raquinio also sought to withdraw his guilty plea, arguing in part
that "[i]t is possible for a person to withdraw a plea of guilty
if it is made unknowingly and involuntarily." The State argued
below and now argues on appeal that Raquinio failed to meet the
applicable standard for setting aside his plea, but does not
argue that the Petition did not raise the coercion issue.
We conclude that the Petition, fairly read in
conjunction with Raquinio's related filings in the Circuit Court,
alleged that Raquinio was coerced by his trial counsel into
entering a guilty plea and that his plea should be set aside.
Cf. State v. Villanueva, No. 30137, 2010 WL 2513330, *at 3-4
(Haw. App. June 23, 2010) (SDO) (construing documents filed by
the defendant as a non-conforming HRPP Rule 40 petition and
concluding that the defendant "was entitled to consideration of
the issues he raised for post-conviction relief under HRPP Rule
40 and that the circuit court erred in failing to consider the
7/
On appeal, Raquinio does not appear to contend that the Circuit
Court erred in ruling that the Petition failed to allege facts that if proven
would establish that Miller was ineffective based on the alleged
miscommunication about the time of the January 5, 2018 hearing.
7
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER
documents he filed under HRPP Rule 40."). Because the Circuit
Court did not address the coercion issue in the Order Denying
Rule 40 Petition, we cannot properly determine whether the court
erred in concluding that the Petition failed to allege facts that
if proven would entitle Raquinio to relief under HRPP Rule 40.
See In re Elaine Emma Short Revocable Living Tr. Agreement, 147
Hawai#i 456, 465, 465 P.3d 903, 912 (2020) ("[W]hen the lower
court has failed to issue the requisite findings of fact to
enable meaningful appellate review, it is not the function of the
appellate court to conduct its own evidentiary analysis."); cf.
Cacatian v. State, 70 Haw. 402, 404, 772 P.2d 691, 692 (1989),
("Given the wording of the trial court's order, we do not know if
the court made the necessary finding that the petitioner's claim
was patently frivolous and without a trace of support in the
record or in other evidence submitted by the petitioner. If such
was the case, the court below erred in not specifically so
stating. If such was not the case, the court erred below in
dismissing the petition.")
It appears that Raquinio's remaining contentions on
appeal, save one addressed below, all turn at least in part on
whether the issues sought to be raised were waived when Raquinio
changed his plea to guilty. Because the Circuit Court did not
address the coercion issue, we cannot properly evaluate whether
the court erred in analyzing these other issues.
Accordingly, we vacate the Order Denying Rule 40
Petition as to COLs 2 and 3, and the concluding order of denial
to the extent based on COLs 2 and 3.8/ On remand, the Circuit
Court is instructed to address Raquinio's claim that he was
coerced by his trial counsel into entering a guilty plea and that
his plea should be set aside, and to evaluate Grounds One, Two
and Three of the Petition in light of the court's findings.
Lastly, Raquinio contends that the plea agreement is
null and void because he has not testified against any person or
submitted to a polygraph test as provided for in the plea
8/
Raquinio does not state a point of error or make any discernible
argument challenging COL 4, which addresses Ground Four of the Petition,
Raquinio's claim relating to "newly discovered evidence." The issue is thus
deemed waived. See HRAP Rule 28(b)(4), (7).
8
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER
agreement. This argument is deemed waived because Raquinio did
not raise it in his Rule 40 Petition or related filings in the
Circuit Court. See Foo v. State, 106 Hawai#i 102, 114, 102 P.3d
346, 358 (2004).
For the reasons discussed above, we vacate in part the
April 21, 2020 "Findings of Fact, Conclusions of Law, and Order
Denying Petition Filed October 15, 2019," entered in the Circuit
Court of the Third Circuit, as to COLs 2 and 3, and the
concluding order of denial to the extent based on COLs 2 and 3.
We affirm in all other respects, and remand this matter to the
Circuit Court for further proceedings consistent with this
Summary Disposition Order.
DATED: Honolulu, Hawai#i, April 29, 2022.
On the briefs:
/s/ Katherine G. Leonard
Noe Kim Raquinio, Presiding Judge
Self-represented
Petitioner-Appellant.
/s/ Clyde J. Wadsworth
Stephen L. Frye, Associate Judge
Deputy Prosecuting Attorney,
County of Hawai#i,
for Respondent-Appellee. /s/ Sonja M.P. McCullen
Associate Judge
9