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NO. 29978
1N THE INTERMEDIATE COURT OF APPEALS
oF THE STATE oF HAwArI
20 =@
STEPHEN KEITH ST. CLAIR, Petitioner-Appellant,
V.
sTATE oF HAwArI, Respondent~Appe11ee
APPEAL FROM THE CIRCUIT COURT OF THE THIRD CIRCUIT
(S.P.P. NO. 03-1-OOO5K (Cr. NO. 02-1-OO64K))
MEMORANDUM OPINION
(By: Nakamura, C.J., Foley and Leonard, JJ.)
Petitioner-Appellant pro se Stephen Keith St. Clair
(St. Clair) appeals from the "FindingS of Fact, Conclusions of
Law, and Order Denying Petition to Vacate, Set Aside, or Correct
Judgment or to Release Petitioner from Custody" (Order) filed on
September 4, 2009, in the Circuit Court of the Third Circuit
(circuit court).1
I. BACKGROUND
On AuguSt 5, 2002, the circuit court convicted St.
Clair of Manslaughter, in violation of Hawaii ReviSed Statutes
(HRS) § 707-702(1)(a) (1993); Operating a vehicle Under the
Influence of an Intoxicant, in violation of HRS § 291E~6l(a)(l)
(Supp. 2002); and Driving Without No-Fault InSurance, in
violation of HRS § 43l:lOC-lO4 (Supp. 2002). State v. St. Clair,
101 HaWafi 280, 282, 67 P.3d 779, 781 (2003). On Apri1 30,
2003, the Supreme Court of Hawafi affirmed St. Clair'S
;g; at 290, 67 P.3d at 739.
On October l, 2003, St.
convictionS.
Clair, pro se, filed a Petition
to Vacate, Set ASide, or Correct Judgment or to Release
Petitioner from CuStody (First Petition), pursuant to Rule 40 of
1 The Honorable Elizabeth A. Strance presided.
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the Hawafi Rules of Penal Procedure (HRPP). St. Clair stated
only one ground for relief: Denial of effective assistance of
counsel because "court-appointed counsel ill advised [St. Clair]
to stipulate to Canadian charge." St. Clair failed to set forth
any facts, argument, or authority in support of his ground.
On December 6, 2006, St. Clair filed a Petition for
Post Conviction Relief pursuant to HRPP Rule 40 (Second
Petition). Although the Second Petition was titled differently
from the First Petition, a copy of the First Petition was
attached to the Second Petition, along with a Memorandum in
Support of Petition (Memorandum). We do not view the Second
Petition as a new petition, but rather as a supplement to the
First Petition.
In the Memorandum, St. Clair clarified his claim by
arguing that the central issue was that trial counsel had
rendered ineffective assistance by allowing a prior bad act into
evidence through a factually incorrect stipulation.
St. Clair also made several new arguments with respect
to his ineffective assistance of counsel claim, asserting that
his trial counsel failed to: (1) assert a Rule 404(b) notice
requirement when the prosecutor brought up other matters beyond
what had been agreed to in the stipulation; (2) request a
limiting instruction regarding the stipulation so it could not be
proved that St. Clair acted in conformity with the actions stated
in the stipulation and (3) object to an order of restitution
because the circuit court did not enter Findings of Fact and
Conclusions or Law, the order of restitution did not specify the
time and manner of payment, and an order of restitution may not
divest a prisoner's wages received from prison labor. St. Clair
also argued for the first time that the circuit court erred when
it admitted the prior bad act evidence because such evidence was
not admissible to show recklessness.
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On September 4, 2009, the circuit court entered the
Order, denying the First and Second Petitions. St. Clair timely
filed this appeal.
On appeal, St. Clair contends:
l. The [circuit] court erred by declaring the issue
of ineffective assistance of counsel without merit.
A direct appeal was prepared and submitted by [St.
Clair's] trial attorney, Michael McPherson (deceased) and
filed Apri1 30, 2003 with the Hawaii Supreme Court. The
appeal contains three examples of the Court's opinion
bearing words: "unhelpful" (p14), "no authority (pl3), and
"un-able to discern" (pl6). These opinions, when viewed as
a whole, are clear evidence that the highest court in the
State saw the attorney's submission as ineffective.
2.y The [circuit] court erred in the sentencing of
[St. Clair] to restitution -
B. The [circuit] court erred under under Hawaii
Revised Statutes (hereinafter, HRS) § 706-605(7) and HRS
§ 706~646(3) where "The court shall consider the Defendant's
financial ability to make restitution for the purpose of
establishing the time and manner of payment." This issue
was argued in State v. Gaylord, but [St. Clair] contends
that the court did consider the "Defendant's ability to pay"
but erred in no [sic] establishing the time and manner of
payment in court. HRS § 706-646(3).
3. The [circuit] court erred in allowing a Judge
other than the . . . Judge that sentenced [St. Clair], to
adjudicate the Petition.
This error is not alleged in the Petition, but the
error did not occur until the Petition was ruled upon by
Judge Strance with the [circuit] court's Minute Order, The
Minute Order and the Finding[s] of Fact, Conclusions of Law
and Order Denying Petition to Vacate, Set Aside, or Correct
Judgment or to Release Petitioner From Custody are part of
the Record on Appeal. This error is a clear violation of
the Code of Conduct for United States Judges, Canon
3B(l)(5). Although the trial Judge, Ronald Ibarra, has new
duties in the Third Circuit, Drug Court he nevertheless
still sits as Judge within the district and is part of the
same court. As discussed in State v. Andrews, 2008, Haw.
LEXIS 44, NO. 27668, Feb. 20:
[The] petitioner posits that because "a Judge's
discretion to overrule or modify the decision of
another Judge requires 'cogent reasons' and is
constrained by considerations of 'courtesy and
comity[,] Wonq v. City & CountV of Honolulu, 66 Haw.
389, 396, 665 P.2d 157, 162 (1983),'" Judge StanCe
[sic] was constrained in her discretion to reduce or
modify Judge Ibarra's sentence[.]
(Record references/omitted.)
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II. ST¥HUDAFU) OE'IUEVIEWV
Regarding the denial of an HRPP Rule 40 petition
without an evidentiary hearing, HRPP Rule 40(f) provides in
relevant part:
(f) Hearings. If a petition alleges facts that if
proven would entitle the petitioner to relief, the court
shall grant a hearing which may extend only to the issues
raised in the petition or answer. However, the court may
deny a hearing if the petitioner's claim is patently
frivolous and is without trace of support either in the
record or from other evidence submitted by the petitioner.
The court may also deny a hearing on a specific question of
fact when a full and fair evidentiary hearing upon that
question was held during the course of the proceedings which
led to the judgment or custody which is the subject of the
petition or at any later proceeding.
in Barnett v. state, 91 Hawai‘i 20, 979 P.2d 1046
(1999), the Hawafi Supreme Court stated:
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.
State v. Allen, 7 Haw. App. 89, 92~93, 744 P.2d 789, 792»93
(l987) (emphasis added).
y In this regard, the appellate court steps into
the trial court's position, reviews the same trial
record, and redecides the issue. Because the
appellate court's determination of "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" is a
question of law, the trial court's decision is
reviewed de novo. See United States v. Burrows, 872
F.2d 915 (9th Cir. l989) (denial of a post-conviction
motion based on ineffective assistance of counsel
without conducting an evidentiary hearing is reviewed
de novo for a determination of whether the files and
records of the case conclusively show that petitioner
is entitled to no relief). Therefore, we hold that
the issue whether the trial court erred in denying a
Rule 40 petition without a hearing based on no showing
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of a colorable claim is reviewed de novo; thus, the
right/wrong standard of review is applicable.
Dal'l V. State, 76 Hawai‘i 423, 427, 879 P.2d 528, 532 (1994).
Barnett, 91 Hawafi at 26, 979 P.2d at 1052 (brackets and
ellipsis omitted; emphasis in original).
III. DISCUSSION
A. ST. CLAIR'S FIRST POINT OF ERROR IS WAIVED.
In St. Clair's first point of error, he claims his
appellate counsel was ineffective because counsel failed to
submit a meritorious argument in his direct appeal. This point
was not raised in the First or Second Petition in the circuit
court. Therefore, St. Clair's first point of error on appeal is
waived. HRAP Rule 28(b)(4).
B. THE CIRCUIT COURT FAILED TO ESTABLISH THE MANNER
OF RESTITUTION PAXMENTS.
St. Clair contends the Order failed to establish the
time and manner of payment of restitution, pursuant to HRS § 706-
646(3). The Order's Finding of Fact No. 18 states: "Judge
Ibarra did make a finding that upon release from prison [St.
Clair] would have the ability to pay restitution and thus ordered
restitution to the victim's family." The Order's Conclusion of
Law No. 6 provides: "The court cannot set the time of
restitution payments when it sentences a defendant to prison.
That does not mean that restitution should not have been
ordered." The language of HRS § 706-646(3) (Supp. 2005), which
was applicable to St. Clair when he was sentenced on August 5,
2002, did not require that the circuit court "specify the time
and manner in which restitution is to be paid." That language
was added to the statute in 2006. 2006 Haw. Sess. Laws Act 230,
§ 22 at 1011. However, the Hawafi Supreme Court held in 1995
that the sentencing court shall not only make a finding on the
amount of restitution the defendant can afford to pay, but
prescribe "the manner of payment“ as well. State v. Gaylord, 78
Hawai‘i 127, 155, 390 P.2d 1167, 1195 (1995).
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Upon remand, the circuit court shall enter an amended
judgment that specifies the manner of restitution payments,
limited by HRS § 353-22.6 (l993)2 while St. Clair is
incarcerated, and also addresses the manner of restitution
payments if St. Clair is released from custody.
C. THERE WAS NO CODE OF CONDUCT VIOLATION.
St. Clair contends Judge Strance should not have heard
and ruled upon the First and Second Petitions because Judge
Ibarra was the original presiding judge and was still an active
judge within the same circuit. St. Clair cites the Code of
Conduct for United States Judges (Code) in support of his
argument that Judges Ibarra and Strance are violating Canon 2 and
3 of the Code.
The Code applies to "United States Circuit Judges,
District Judges, Court of International Trade Judges, Court of
Federal Claims Judges, Bankruptcy Judges, and Magistrate Judges."
Code of Conduct for United States Judges, n.3, http://www.utd.
uscourts.gov/judges/judges_code.html. The Code does not apply to
Judges Strance and Ibaraa because they are not United States
Circuit or District Court Judges. They are judges of the State
of Hawai‘i, Third Judicial Circuit.
IV. CONCLUSION
The "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 September 4, 2009 in
the Circuit Court of the Third Circuit is affirmed, with the
exception of Conclusions of Law 6 and 11 (stating that St.
Clair's petition was without merit), which are vacated. This
2 HRs § 353-22.6 provides:
§353-22.6 Victim restitution. The director of public
safety shall enforce victim restitution orders against moneys
earned by the prisoner while incarcerated. The amount deducted
and paid once annually to the victim shall be ten per cent of the
prisoner's annual earnings. This section shall not apply to
moneys earned on work furlough pursuant to section 353-l7.
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case is remanded to the circuit court for further proceedings
limited to the manner of restitution payments by St. Clair.
DATED= Honolulu, Hawai‘i, July 22, 2010.
On the briefs:
Stephen Keith St. Clair, [Z§q ‘zZ4r :ZZ;Q§
Petitioner-Appellant pro se.
Chief Judge
Linda L. Walton,
Deputy Prosecuting Attorney,
County of HawaiUq ,,_
for Respondant-Appellee. ~ 6E>
ge
Associate Jud
A ,