State v. Kwolek

NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
12-OCT-2023
08:04 AM
Dkt. 77 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAIʻI

RYAN L. KWOLEK, Petitioner-Appellant, v.
STATE OF HAWAIʻI, Respondent-Appellee.

APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT
(CASE NOS. 2CPN-XX-XXXXXXX; 2CPC-XX-XXXXXXX)

SUMMARY DISPOSITION ORDER
(By: Wadsworth, Presiding Judge, Nakasone and McCullen, JJ.)

Self-represented Petitioner-Appellant Ryan L. Kwolek

appeals from the Circuit Court of the Second Circuit's

February 12, 2021 "Findings of Fact, Conclusions of Law, and

Order Denying Without a Hearing Petition to Vacate, Set Aside,

or Correct Judgment or to Release Petitioner From Custody"

(Order). The Order denied Kwolek's Hawai‘i Rules of Penal

Procedure (HRPP) Rule 40 Petition for Post-Conviction Relief

(Petition) without a hearing. 1

1 The Honorable Richard T. Bissen, Jr. presided.
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For background, a grand jury indicted Kwolek, charging

him with 18 counts of drug and drug paraphernalia offenses. 2

2 The counts returned in the indictment were as follows:

Count 1: Commercial Promotion of Marijuana in the First
Degree, in violation of Hawaiʻi Revised Statutes (HRS)
§ 712-1249.4(1)(c) (2014);

Count 2: Commercial Promotion of Marijuana in the Second
Degree, in violation of HRS § 712-1249.5(1)(c)
(2014);

Count 3: Promoting a Detrimental Drug in the First Degree, in
violation of HRS § 712-1247(1)(g) (2014) as to
marijuana plants;

Count 4: Attempted Promoting a Dangerous Drug in the Second
Degree, in violation of HRS §§ 705-500 (2014), 712-
1242(1)(c) (Supp. 2017) as to 3,4-methylenedioxy-
methamphetamine (MDMA);

Count 5: Promoting a Dangerous Drug in the Third Degree, in
violation of HRS § 712-1243(1) (2014) as to MDMA;

Count 6: Attempted Promoting a Dangerous Drug in the Second
Degree in violation of HRS §§ 705-500, 712-1242(1)(c)
as to cocaine;

Count 7: Promoting a Dangerous Drug in the Third Degree, in
violation of HRS § 712-1243(1) as to cocaine;

Count 8: Prohibited Acts Related to Drug Paraphernalia, in
violation of HRS § 329-43.5(a) (Supp. 2018) as to
MDMA and/or cocaine;

Count 9: Attempted Promoting a Harmful Drug in the First
Degree, in violation of HRS §§ 705-500, 712-
1244(1)(d) (2014) as to marijuana concentrates;

Count 10: Promoting a Harmful Drug in the Second Degree, in
violation of HRS § 712-1245(1)(b) (2014) as to
marijuana concentrates;

Count 11: Prohibited Acts Related to Drug Paraphernalia, in
violation of HRS § 329-43.5(a) as to marijuana
concentrate;

(continued . . .)

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Kwolek pled no contest to Counts 2-7, 10, and 12. Based on the

no-contest plea, the circuit court entered an "Amended Judgment;

Conviction and Sentence; Notice of Entry" sentencing Kwolek to,

inter alia, a ten-year term of imprisonment in each of Counts 2,

4, 6, and 10, and a five-year term of imprisonment in each of

Counts 3, 5, 7, and 12, all terms to run concurrently. The

remaining counts were dismissed with prejudice pursuant to the

plea deal.

On June 4, 2019, the Hawaiʻi Paroling Authority (HPA)

held a hearing to determine Kwolek's minimum term(s) of

imprisonment. On July 1, 2019, HPA issued a Notice and Order of

Fixing Minimum Term(s) of Imprisonment (Imprisonment Order),

(. . . continued)

Count 12: Attempted Promoting a Detrimental Drug in the First
Degree, in violation of HRS §§ 705-500, 712-
1247(1)(h) (2014) as to marijuana;

Count 13: Promoting a Detrimental Drug in the Second Degree, in
violation of HRS § 712-1248(1)(c) (2014) as to
marijuana;

Count 14: Prohibited Acts Related to Drug Paraphernalia, in
violation of HRS § 329-43.5(a) as to marijuana;

Count 15: Promoting a Harmful Drug in the Fourth Degree, in
violation of HRS § 712-1246.5(1) (2014) as to
Alprazolam;

Count 16: Promoting a Harmful Drug in the Fourth Degree, in
violation of HRS § 712-1246.5(1) as to Testosterone;

Count 17: Promoting a Harmful Drug in the Fourth Degree, in
violation of HRS § 712-1246.5(1) as to Nandrolone;
and

Count 18: Promoting a Harmful Drug in the Fourth Degree, in
violation of HRS § 712-1246.5(1) as to Methandienone.

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setting Kwolek's level of punishment at II for all counts and

setting a minimum term of four years and six months for Counts

2, 4, 6, and 10, and a minimum term of three years for Counts 3,

5, 7, and 12, running concurrently. HPA later reduced each

minimum term by six months.

On September 16, 2020, Kwolek filed the Petition

asserting three grounds for relief and requesting parole with

credit for time served. The three grounds asserted were as

follows:

Ground One: "HPA acted arbitrarily and capriciously
in it's [sic] finding for Level II Punishment when
facts on record and evidence adduced at HPA minimum
hearing only support Level I Punishment," violating
the due process and equal protection clauses, Hawaiʻi
Revised Statutes (HRS) § 706-669(8), Hawaiʻi
Administrative Rules (HAR) § 23-700-24, and the
Guidelines for Establishing Minimum Terms of
Imprisonment (Guidelines).
Ground Two: "HPA gave a simple enumeration of
guideline criteria in it's [sic] Order of Fixing
Minimum Term with no written justification required by
law," violating the Guidelines, "Notes to Decision HRS
§ 706-662," "Notes to Decision HRS § 91-12," and HAR
§ 23-700-22(k).
Ground Three: "HPA precluded effective assistance of
counsel by withholding fact/information to finding of
fact and conclusion or the nondisclosure of adverse
information considered for reasoned decision making,"
violating his right to due process and assistance of
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counsel, HAR §§ 23-700-22(e) and (g), and HRS §§ 706-
669(2) and (3).

The circuit court denied the Petition, concluding that

Kwolek's "claims are patently frivolous and without support in

the record or in the evidence he submitted, he is not entitled

to a hearing on his Petition."

On appeal, Kwolek raises twelve points of error:

(A) "The [Hawai‘i] Legislature has not delegated it's
[sic] authority to the HPA to prescribe a range of
minimum terms of imprisonment, make their own
findings based on subjectivity, ignoring substantial
evidence . . . , and set a[n] increased minimum
punishment range."
(B) "Assuming that HPA can prescribe a range for minimum
term sentence, HPA's sentencing of minimum term based
on variable Level's [sic] of Punishment, and minimum
term ranges within Level's [sic] of Punishment
increases the punitive penalty for the crime. Making
uniform determination[s] virtually impossible."
(C) "HPA ignored and violated it's [sic] guidelines and
administrative rules in setting Petitioner's minimum
term, acting arbitrarily and capriciously."
(D) "HPA failed to follow rules and statutes in setting
of minimum terms that were established and applied to
other similarly situated prisoners providing uniform
determination of minimum terms."
(E) "[HRS § 706-669(8)], delegating authority to HPA to
prescribe the minimum period of incarceration &
establishing parole eligibility serves as a
procedural protection to safeguard prisoners [sic]
rights. Consequently, [HRS § 706-669(8)] is
unconstitutionally vague, leaving HPA to it's [sic]
own devices. Thus setting minimum terms in an
arbitrary and capricious manner."
(F) "HPA Guidelines also serv[e] as a procedural
protection to safeguard prisoners [sic] rights.
Conversely, there is no rational basis and is [sic]
procedurally inadequate to provide a uniform
determination of sentencing. Using subjectivity as a
'Back Door' to arbitrary and capricious determination
of minimum sentences. Even in the event of
substantial evidence, Judicial and Prosecutor's
recommendations providing concrete facts to a
specific Level of punishment and range within that

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Level of Punishment (Level I Punishment of 18
months)."
(G) "HPA Guidelines and Administrative Rules providing
all deviations and increase Level of Punishment with
written justification to the [Imprisonment Order].
This never being produced, absent, or lacking
findings of fact for reasoned decision making on
Petitioner's [Imprisonment Order.]"
(H) "HPA setting Petitioner's minimum term based on the
significant factors of 'Character & Attitude with
Respect to Criminal Activity or Lifestyle' and
'Efforts Made to Live Pro-Social Life Prior to
Commitment to Prison' this being completely
contradictory to all evidence/fact adduced at the
minimum hearing."
(I) "HPA violating [HRS § 706-669(8)] by ignoring
Petitioner's criminal history, this being his first
felony offense, and disreguarding [sic] all
statements & referrals provided by the State and
community support expressing Petitioner's excellent
character & attitude with efforts to live pro-
socially prior to incarceration."
(J) "HPA clearly using [sic] some other adverse
information in determination of Petitioner's minimum
sentence. If HPA is a 'quasi-judic[i]al' body some
evidence to redure [sic] increase Level of Punishment
must have been used. A pur[e]ly subjective decision
is blatantly a[n] arbitrary & capricious manner in
reason decision making, being a violation. So if
adverse information was used, it was never disclosed
to Petitioner or his cou[n]sel prior to the minimum
hearing. Giving him adequate time to prepare and
rebut. This resulting in ineffective assist[a]nce."
(K) "The Second Circuit Court . . . abuse[d] [its]
discretion and it's [sic] lack of due diligence in
thourghly [sic] review the facts and standards of
review argued in Petitioner's H.R.P.P. Rule 40."
(L) "The Circuit Court erred by simply 'rubber stamping'
the Deputy Attorney General's Order Denying a Hearing
and excluding the Circuit Courts [sic] own Finding of
Facts that would explain it's [sic] shifted point of
view from it's [sic] original recommendations and
facts on record."
(Emphasis added.)

Upon careful review of the record and the briefs

submitted, and having given due consideration to the issues

raised and the arguments advanced by the parties, we resolve

Kwolek's points of error below, and vacate and remand.
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Kwolek's Point of Error J warrants a hearing. Kwolek

alleges that HPA considered adverse information in making his

minimum imprisonment term determination but did not disclose the

information to Kwolek's counsel before the June 4, 2019 hearing,

which rendered her assistance ineffective. Kwolek appears to

reason that HPA must have considered some adverse information in

order to categorize him as a Level II offender as opposed to a

Level I offender.

Under HRPP Rule 40(f), the circuit court must grant a

hearing if the allegations in an HRPP Rule 40 petition would

entitle a petitioner to relief if proven, and may deny a hearing

where the claim is patently frivolous:

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 petitioner shall have a full and fair evidentiary
hearing on the petition. The court shall receive all
evidence that is relevant and necessary to determine the
petition, including affidavits, depositions, oral
testimony, certificate of any judge who presided at any
hearing during the course of the proceedings which led to
the judgment or custody which is the subject of the
petition, and relevant and necessary portions of the
transcripts of prior proceedings. . . .

Where the petition alleges the ineffective assistance
of counsel as a ground upon which the requested relief
should be granted, the petitioner shall serve written
notice of the hearing upon the counsel whose assistance is
alleged to have been ineffective and said counsel shall
have an opportunity to be heard.

HRPP Rule 40(f).

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The Hawaiʻi Supreme Court has explained that a hearing

must be held where the petition states a "colorable claim":

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's
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.

Rapozo v. State, 150 Hawaiʻi 66, 77-78, 497 P.3d 81, 92-93 (2021)

(emphases added and citations omitted).

Here, the circuit court concluded that Kwolek failed

to show HPA withheld any information, that counsel was not

ineffective, and Kwolek's claims were patently frivolous.

Conclusions of Law 4 through 6 in the Order state:

4. Petitioner has failed to show that the HPA
withheld information, adverse or otherwise, that it
considered when setting Petitioner's level of punishment
and his minimum terms from he [sic] or his counsel.

5. Petitioner's counsel did not provide ineffective
assistance to him at his sentencing or his minimum hearing
before the HPA.

6. As Petitioner's claims are patently frivolous and
without support in the record or in the evidence he
submitted, he is not entitled to a hearing on his Petition.

The record shows HPA categorized Kwolek as a Level II

offender. The record, however, does not reflect what

information was in Kwolek's file or what information the HPA

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provided Kwolek before his June 4, 2019 hearing. The record

also does not contain a transcript of the June 4, 2019 hearing.

Thus, there was insufficient information in the record

for the circuit court, and this court, to determine whether

Kwolek's claim that HPA failed to provide him adverse

information was patently frivolous. See Star v. State,

No. CAAP-XX-XXXXXXX, 2018 WL 4327325 at *4-*6 (App. Sept. 11,

2018) (SDO) (explaining where the record did "not contain

transcripts . . . of the HPA proceeding, nor copies of what was

provided to Star, nor what was in his HPA file," the record was

"insufficient to address the question of whether HPA considered

adverse information that was not provided to Star in advance of

the hearing").

In advance of the hearing, HPA was required to provide

Kwolek with adverse information in their HPA file. De La Garza

v. State, 129 Hawai‘i 429, 442, 302 P.3d 697, 710 (2013). And

the State was required to provide a sufficient record to the

circuit court so it could address whether HPA considered adverse

information and whether the adverse information was provided to

Kwolek. See Star, No. CAAP-XX-XXXXXXX, 2018 WL 4327325 at *4-

*6; HRPP Rule 40(d) (providing in part that the "respondent

shall file with its answer any records that are material to the

questions raised in the petition which are not included in the

petition").

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If Kwolek's claim that HPA considered adverse

information without providing it to him in advance of the June 4,

2019 hearing is taken as true, Kwolek presents a colorable

claim. See Star, 2018 WL 4327325 at *6. Because there was

insufficient information to determine whether HPA considered

adverse information and whether HPA provided that information to

Kwolek, Conclusions of Law 4 through 6 were wrong.

We therefore remand this case to the circuit court for

a hearing to further develop the record. See De La Garza, 129

Hawai‘i at 443, 302 P.3d at 711 ("In the absence of sufficient

evidence in the record on appeal, an appellate court should

remand for the development of such a record.") (citation and

internal quotation marks omitted). Because Kwolek's Points of

Error H, I, and K also appear to be evidence-related claims, we

do not address them further; the circuit court may determine on

remand whether these evidence-related claims were also

implicated by HPA's alleged consideration of adverse evidence

that was not provided to Kwolek.

Moreover, the record does not reflect that Kwolek

served his hearing counsel with a copy of the Petition, as

required by HRPP Rule 40(f) for ineffective assistance of

counsel claims. See Clement v. State, 146 Hawai‘i 119, 456 P.3d

192, No. CAAP-XX-XXXXXXX, 2020 WL 502157 at *3 (App. Jan. 30,

2020) (SDO). If Kwolek maintains his ineffective assistance of

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counsel claim on remand, he must serve his hearing counsel with

a copy of the Petition.

Finally, Kwolek's remaining points of error are waived

or there was no colorable claim. Points of Error B, E, and F

are new claims Kwolek did not raise below and, thus, are waived.

HRPP Rule 40(a)(3) (providing in part that "[e]xcept 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 . . . 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"). And as to the

remaining points of error, the circuit court did not err in

denying the petition "based on no showing of a colorable claim

. . . ." Maddox v. State, 141 Hawai‘i 196, 202, 407 P.3d 152,

158 (2017) ("Whether the trial court erred in denying a Rule 40

petition without a hearing based on no showing of a colorable

claim is reviewed de novo; thus, the right/wrong standard of

review is applicable.") (citation and internal quotation marks

omitted).

Based on the foregoing, the circuit court's

February 12, 2021 "Findings of Fact, Conclusions of Law, and

Order Denying Without a Hearing Petition to Vacate, Set Aside,

or Correct Judgment or to Release Petitioner From Custody" is

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vacated, and this case is remanded for further proceedings

consistent with this Summary Disposition Order.

DATED: Honolulu, Hawai‘i, October 12, 2023.

On the briefs: /s/ Clyde J. Wadsworth
Presiding Judge
Ryan L. Kwolek,
Petitioner-Appellant, pro se. /s/ Karen T. Nakasone
Associate Judge
Lisa M. Itomura,
Deputy Attorney General, /s/ Sonja M.P. McCullen
for Respondent-Appellee. Associate Judge

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