NOT FOR PUBLICAT!()N IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
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NO. 29455
IN THE lNTERMEDIATE.COURT OF APPEALS _ i we
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oF THE STATE oF HAWAI‘:
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ROBERT LEE TEW JR., Petitioner-Appellant, “* mg
v.
STATE OF HAWAfI, Respondent-Appellee
APPEAL FROM THE ClRCUlT COURT OF THE FIRST CIRCUlT
(S.P.P. NO. O7~l-OO35 (Cr. NO. 06-l-O664))
SUMMARY DISPOSITION ORDER
(By: Nakamura, C.J., Foley and Fujise, JJ.)
Petitioner-Appellant Robert Lee Tew Jr. (Tew) appeals
from the Findings of Fact, Conclusions of Law, and Order Denying
Petition For Post-Conviction Relief filed on December 24, 2008 in
the Circuit Court of the First Circuit (circuit court).1
On November l4, 2006, Tew pled guilty to Unlawful
Methamphetamine Trafficking, in violation of Hawaii Revised
Statutes (HRS) § 712-l240.6(3) (Supp. 2005). The circuit court
found Tew guilty and on April 3, 2007, entered the Judgment of
Conviction and Sentence. On April 5, 2007, the circuit court
filed an Amended Judgment of Conviction and Sentence. The
circuit court sentenced Tew to a ten-year term of imprisonment,
to run concurrently with any other sentence; a mandatory minimum
of six years and eight months as a repeat offender, to run
concurrently with any other current mandatory minimum sentence;
and a mandatory minimum of two years, pursuant to HRS § 7l2~
l240.6(3), to run concurrently with his mandatory minimum as a
repeat offender.
On September 4, 2007, Tew filed a Petition for Post-
Conviction Relief (Petition), pursuant to Rule 40 of the Hawaii
Rules of Penal Procedure (HRPP). Tew claimed that (l) he
received ineffective assistance of counsel because (a) he is
1 The Honorable Richard W. Pollack presided.
N()T FOR PL'BLICATI()N lN WEST'S HAWAI‘! REPORTS AND PACIFIC REPORTER
illiterate, unable to read or write, and was coerced to accept a
plea agreement by his counsel and (b) his counsel failed to
inform him of tainted evidence that a confidential informant
destroyed and tampered with; (2) his conviction was obtained by
use of evidence obtained pursuant to an unconstitutional
violation, i.e tainted evidence; and (3) his counsel failed to
inform him of a potentially meritorious defense: that the chain
of custody had been broken and some quantity of methamphetamine
recovered by the police had been removed and there was no g
evidence that Tew sold methamphetamine.
On appeal, Tew contends the circuit court erred by
denying his Petition and challenges Conclusions of Law (COLs) 6
through l2. Tew argues that (l) he presented clear and
convincing evidence of credibility, (2) the circuit court
overlooked the fact that tampering with evidence is a crime and
the confidential informant who removed methamphetamine was not
prosecuted, (3) Tew was not put on notice that he was at risk for
an extended sentence, (4) the State of HawaiU.(State) would not
have been able to prove the weight of the methamphetamine
recovered was more than one-eighth of an ounce due to tampering
by a confidential informant, and (5) Tew received ineffective
assistance of counsel because his counsel failed to make a motion
to suppress based upon the confidential informant's tampering.
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 Tew's
points of error as follows:
For the following reasons, the circuit court's COLs 6
through 12 are not wrong. Tew does not challenge any of the
Findings of Fact (FOFs) made by the circuit court; therefore, the
FOFs are taken as true.
(l) Tew's testimony in support of his Petition was
found not credible by the circuit court. Tew's claim that his
NO'I` F()R PUBLICAT!()N lN WEST’S HAWAI‘I REPORTS AN`D PACIFIC REP()RTER
counsel coerced him into accepting a plea agreement when his
counsel told him to "just agree" with the judge or "just sign"
the form was also found not credible. The circuit court found
that Tew's trial counsel was credible when trial counsel stated
that he discussed the plea agreement extensively with Tew several
times because Tew did not know how to read or write. "[l]t is
well~settled that an appellate court will not pass upon issues
dependent upon the credibility of witnesses and the weight of the
evidence." Tachibana v. State, 79 HawaiU.226, 239, 900 P.2d
l293, 1306 (l995) (internal quotation marks and citation
omitted).
The transcript of Tew's change of plea hearing shows
that Tew stated he was not being forced or threatened into
accepting a plea agreement. The plea agreement, which Tew signed
on November 6, 2006, clearly stated that the maximum extended
term of imprisonment was 20 years and the mandatory minimum term
of imprisonment was six years and eight months. The plea
agreement was based upon a letter dated October 27, 2006 from the
Department of the Prosecuting Attorney that specifically stated
Tew must stipulate to sentencing as a repeat offender and to the
imposition of a mandatory minimum sentence of six years and eight
months. The plea agreement also stipulated that the State would
not seek extended or consecutive terms of imprisonment.
Contrary to Tew's claim, he failed to present credible
evidence that he did not knowingly, voluntarily, and
intelligently enter into a plea agreement or that he was coerced
by his counsel to accept a plea agreement. Tew's claim that he
was not put on notice of the possibility of an extended sentence
is not supported by the evidence and is irrelevant because the
plea agreement stated that the State would not seek an extended
sentence and the circuit court did not sentence him to one.
(2) lt is unclear why Tew contends the State would not
have been able to prove that the packet recovered by the police
did not contain more than one~eighth of an ounce of
N()'l` F()R PUBLICATION IN WEST'S HAWAI‘I REPOR'I`S AND PACIFIC REPORTER
methamphetamine. As Tew points out in his Opening Brief, 3.54375
grams equals one-eighth of an ounce. Tew does not contest that
he stipulated that 5.979 grams of a substance was found in the
packet. Tew did not present any facts challenging the State's
evidence that the substance found in the packet was
methamphetamine. The State clearly would have been able to prove
that the packet contained more than one-eighth of an ounce of
methamphetamine. Tew's only argument is that a confidential
informant took some methamphetamine out of the packet before the
weight of the methamphetamine had been established. However,
such an argument is irrelevant because even if some
methamphetamine had been removed, the weight ultimately was still
more than one-eighth of an ounce of methamphetamine. In any
case, the circuit court found that Tew's trial counsel had
discussed this issue with Tew several times and Tew understood
the issue, Prior to entering his plea, Tew stated that trial
counsel had discussed possible defenses to the charge with him.
Tew clearly knew about the "pinching" issue before he entered
into the plea agreement. Therefore, Tew waived any defense to
the charge, including the issue of "pinching," when he entered
into the plea agreement. Tew did not justify his failure to
raise the issue in a prior proceeding and presented no
extraordinary circumstances for his failure to do so. Therefore,
relief pursuant to HRPP Rule 40 is not available. HRPP Rule
40(a)(3).
(3) Tew's contention that his trial counsel was
ineffective for failing to inform Tew of the "pinching" issue and
for not filing a motion to suppress is without merit. As noted
above, Tew did not argue that the substance in the packet was not
methamphetamine. Tew also stipulated that the substance weighed
5.979 grams, or more than one-eighth of an ounce. Tew's claim
that his trial counsel should have filed a motion to suppress
based on removal of some amount of methamphetamine from the
packet before its weight had been established is without merit
NO'I` I*`()I{ PUISLICA'I`ION IN WES"I"S HAWAI‘I REPORTS AND PACIFIC REPORTER
because the amount remaining in the packet was sufficient to
satisfy HRS § 712-l240.6(2), which requires the State to prove
"[t]he manufacture, distribution, or dispensing of or possession
with intent to manufacture, distribute, or dispense one or more
preparations, compounds, mixtures, or substances of an aggregate
weight of one-eighth ounce or more of methamphetamine " Tew
cannot demonstrate the loss or substantial impairment of a
potentially meritorious defense, and therefore, Tew's trial
counsel was not ineffective.
Therefore,
The Findings of Fact, Conclusions of Law, and Order
Denying Petition For Post-Conviction Relief filed on December 24,
2008 in the Circuit Court of the First Circuit is affirmed.
DATED: Honolulu, Hawari, March l8, 20l0.
On the briefs:
Shawn A. Luiz “/Z( z §
for Petitioner-Appellant.
Chief Judge
Loren J. Thomas,
Deputy Prosecuting Attorney,
City and County of Honolulu, r,,
for Respondent-Appellee. l ~ é;>
Associate Judge
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Associate Judge