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                                                              Electronically Filed
                                                              Supreme Court
                                                              SCWC-XX-XXXXXXX
                                                              05-MAR-2019
                                                              02:50 PM


           IN THE SUPREME COURT OF THE STATE OF HAWAIʻI

                            ---o0o---
________________________________________________________________

                        TIMMY HYUN KYU AKAU,
                  Petitioner/Petitioner-Appellant,

                                    vs.

                        STATE OF HAWAIʻI,
                 Respondent/Respondent–Appellee.
 _______________________________________________________________

                            SCWC-XX-XXXXXXX

         CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
             (CAAP-XX-XXXXXXX; CIVIL NO. 1SD-13-1-9)

                              MARCH 5, 2019

 RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.

                 OPINION OF THE COURT BY WILSON, J.

          In 2013, Timmy Hyun Kyu Akau (Akau) filed a petition

with the District Court of the First Circuit (district court)

pursuant to Hawaiʻi Rules of Penal Procedure (HRPP) Rule 40 to

vacate, set aside, or correct his 1987 conviction for driving

while under the influence of an intoxicating liquor (DUI).             The
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district court1 denied Akau’s petition, and the Intermediate

Court of Appeals (ICA) affirmed the district court’s denial of

his petition in an unpublished memorandum opinion.2            The ICA

observed that Akau had waited over twenty-five years to

challenge his DUI conviction.        As a result of the intervening

delay, no transcripts of any of the proceedings in Akau’s DUI

case were available.      The ICA affirmed the denial of Akau’s HRPP

Rule 40 petition on the basis of the equitable doctrine of

laches.

           We conclude that Akau’s right to counsel was violated

in 1987.   We also hold that the equitable doctrine of laches

does not apply to HRPP Rule 40 petitions.

                              I.   BACKGROUND

           In June 2013, Akau filed a petition to vacate, set

aside, or correct judgment or to release petitioner from custody

in accordance with HRPP Rule 40.          In his petition, Akau sought

to have the court set aside a conviction stemming from a charge

of DUI dating from 1987.

           Where an HRPP Rule 40 petition for post-conviction

relief states a colorable claim, an evidentiary hearing on the

petition is required.      HRPP Rule 40(f); Wilton v. State, 116


     1
           The Honorable Linda K.C. Luke presided.
      2
            The ICA’s memorandum opinion can be found in full at Akau v.
State, CAAP-XX-XXXXXXX (App. Jan. 31, 2017) (mem.).


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Hawaiʻi 106, 122–23, 170 P.3d 357, 373–74 (2007) (citing Hutch v.

State, 107 Hawaiʻi 411, 414, 114 P.3d 917, 920 (2005) for the

holding that “a hearing on a Rule 40 petition is required

whenever the allegations in a petition, if taken as true, (1)

would change the verdict rendered or (2) would establish the

illegality of custody following a judgment[]” (internal

citations and quotation marks omitted)).         If the factual

allegations of the petition, taken as true, “would entitle the

petitioner to relief,” the petition states a colorable claim.

HRPP Rule 40(f).    Here, after examining the petition, the

district court concluded that Akau had stated a colorable claim

for post-conviction relief in his petition and, accordingly, an

evidentiary hearing was held in July 2013.

           After hearing Akau’s testimony, the district court

entered findings of fact and conclusions of law.           Although the

shorthand notes of Akau’s arraignment and trial were destroyed

in the late 1990s pursuant to the court’s record retention

policy, the district court reviewing Akau’s petition was able to

make findings of fact based on the surviving minimal original

court records combined with Akau’s testimony at the evidentiary

hearing.

           In its findings of fact, the court found that on July

26, 1987, Akau was arrested and charged with DUI.           Two days

later, he appeared before the District Court, Ewa Division, and

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pled not guilty.     He was referred to the Office of the Public

Defender, and trial was scheduled for December 23, 1987.             On

December 23, 1987, Akau appeared in court without counsel and

requested a continuance.       As he later testified at the

evidentiary hearing on his Rule 40 petition, he requested the

continuance “[b]ecause I wanted to get an attorney present at

the time.”    His request for a continuance was denied.           After

trial,3 Akau was convicted of DUI.         He was sentenced to a small

fine, a DUI class, and a 90-day license suspension.

           In 2013, Akau filed an HRPP Rule 40 petition to

vacate, set aside, or correct judgment.          In his petition, Akau

asserted that at the time of his 1987 arrest for DUI, he was not

familiar with court procedures or with the purposes behind his

appearances.    He asserted that he did not have the assistance of

counsel at arraignment, trial, or sentencing.           He did not recall

ever being informed that he had a constitutional right to a jury

trial, or that he had a right to have an attorney represent him,

at public expense, if necessary.          Nor did he recall being

informed that he had a right to appeal his conviction.             He could

not recall a judge ever explaining the nature of the offense,

the pleas and defenses available, or the punishment that might

     3
            Trial was conducted before the Honorable Francis Yamashita. At
the time, a defendant charged with DUI was entitled to a jury trial.
Subsequently, in 1990, the legislature reduced the maximum penalty for the
offense such that a jury trial was no longer constitutionally required. See
State v. Nakata, 76 Hawaiʻi 360, 364-65, 878 P.2d 699, 703-04 (1994).


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be imposed; he did not recall the judge informing him concerning

the risks of self-representation.

            In its findings of fact, conclusions of law, and order

filed September 11, 2013, the district court denied Akau’s

petition, concluding that the passage of twenty-five years

between Akau’s trial in 1987 and his petition in 2013 “is an

inordinate amount of time leading to the nonexistence of Court

records.”    As a result, the court ruled that it would be

“inequitable to grant the Petition because the passage of

twenty-five (25) years has resulted in the unavailability of

records, and unusually handicaps the State in meeting its burden

and preparing a response to the Petition.”

            The ICA affirmed the district court’s ruling, which

the ICA characterized as “[r]elying in part on principles from

the doctrine of laches[.]”      In addition, the ICA noted that a

number of other jurisdictions apply laches in denying petitions

for post-conviction relief, citing seven out-of-state or federal

cases.   The application of laches in such circumstances, the ICA

surmised, recognizes “the importance of finality in our criminal

justice system[.]”

                        II. STANDARD OF REVIEW

            “A proceeding under HRPP Rule 40 is similar to a civil

bench trial in that the court is required to enter findings of

fact and conclusions of law in support of its decision.”            Raines

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v. State, 79 Hawaiʻi 219, 222, 900 P.2d 1286, 1289 (1995).            An

appellate court reviews a lower court’s interpretation of a

court rule de novo.     Sierra Club v. Dep’t of Transp., 120 Hawaiʻi

181, 197, 202 P.3d 1226, 1242 (2009).

                            III.   DISCUSSION

          Under the Sixth Amendment to the United States

Constitution, an accused has the right to counsel appointed at

public expense because the right to counsel is “fundamental and

essential to a fair trial[.]”       Gideon v. Wainwright, 372 U.S.

335, 342-44 (1963) (internal quotation marks and citation

omitted) (explaining that the assistance of counsel “is one of

the safeguards of the Sixth Amendment deemed necessary to insure

fundamental human rights of life and liberty” (quotation marks

and citation omitted) and that the right to counsel is one of

those “constitutional principles established to achieve a fair

system of justice”).     “Article I, Section 14 of the Hawaiʻi

Constitution also guarantees the accused the right to counsel.”

State v. Pitts, 131 Hawaiʻi 537, 541, 319 P.3d 456, 460 (2014)

(“‘In all criminal prosecutions, the accused shall enjoy the

right to . . . have the assistance of counsel for the accused’s

defense.’” (citation omitted)).       “A ‘critical stage’ of the

prosecution is any stage where ‘potential substantial prejudice

to defendant’s rights inheres.’”         Id. (citation omitted).      Trial

is obviously a critical stage of the prosecution.           Wong v.

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Among, 52 Haw. 420, 423–24, 477 P.2d 630, 633 (1970) (“The right

to assistance of counsel is so fundamental and essential to a

fair trial that it has been absorbed into the due process clause

of the Fourteenth Amendment.”).       “It is well settled that the

sentencing phase is a critical stage of the prosecution, during

which the right to counsel attaches.”        Pitts, 131 Hawaiʻi at 544,

319 P.3d at 463.    Akau (a) had never been represented either by

court-appointed or privately-retained counsel with respect to

the charge, (b) had received no prior continuance in the case,

and (c) requested a continuance at the commencement of trial

because he “wanted to get an attorney present . . . .”            He was

denied his right to assistance of counsel (whether court-

appointed or privately retained) at trial and also at

sentencing.

          We have recognized that the erroneous deprivation of

the right to counsel under article I, section 14 of the Hawaiʻi

Constitution is a structural error not subject to harmless error

analysis; no showing of prejudice is required in part because

the denial of counsel is “so likely to prejudice the accused

that the cost of litigating [its] effect in a particular case is

unjustified[,]” United States v. Cronic, 466 U.S. 648, 658-59

(1984), and because these “circumstances involve impairments of

the Sixth Amendment right that are easy to identify and . . .

easy for the government to prevent.”        Strickland v. Washington,

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466 U.S. 668, 692 (1984); see also State v. Loher, 140 Hawaiʻi

205, 221, 398 P.3d 794, 810 (2017) (quoting Strickland, 466 U.S.

at 692); State v. Reed, 135 Hawaiʻi 381, 389, 351 P.3d 1147, 1155

(2015) (“Because the denial of the right to counsel of choice is

a structural error, we need not subject the court’s abuse of

discretion to a harmless error analysis.”).          Thus, an erroneous

deprivation of the right to counsel, as occurred in this case,

constitutes an abuse of discretion not subject to harmless error

analysis.

            The ICA affirmed the district court’s decision to deny

Akau’s Rule 40 petition based on laches.         We hold that the

doctrine of laches does not apply in the context of HRPP Rule 40

petitions.

            HRPP Rule 40(a)(1) contains no statute of limitations

for bringing petitions and, instead, explicitly states that Rule

40 petitions seeking relief from a judgment of conviction may be

brought “[a]t any time” so long as they are not brought “prior

to final judgment[.]”     This lack of a statute of limitations

appears to be deliberate, as the drafters of HRPP Rule 40

rejected the use of an Illinois statute as the template for a

statute of limitations on post-conviction petitions.           Comm. For

Penal Rules Revision of the Judicial Council of Haw., Proposed

Hawaiʻi Rules of Penal Procedure at 206 (June 1975) (commenting

on proposed Rule 40 and citing but then rejecting an Illinois

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statute that imposed a time limit of 20 years for post-

conviction petitions).     We therefore decline to impose a kind of

judicially-crafted statute of limitations on Rule 40 petitions

seeking relief from a judgment of conviction when that rule as

promulgated explicitly states that such petitions may be brought

“[a]t any time” so long as they are not brought “prior to final

judgment[.]”   HRPP Rule 40(a)(1); see also HRPP Rule 40(a)(2)

(allowing any person to “seek relief under the procedure set

forth in this rule from custody based upon a judgment of

conviction” on specified grounds but not imposing a time

limitation on seeking that relief).

          We also note that HRPP Rule 40(a) governs all

extraordinary writs, including writs of coram nobis.           A writ of

coram nobis acts as a “remedy to correct errors of the most

fundamental character where the petitioner has completed his [or

her] sentence or is otherwise not in custody and circumstances

compel such action to achieve justice.”         Carvalho v. Olim, 55

Haw. 336, 344, 519 P.2d 892, 898 (1974).         Application of laches

to writs of coram nobis would have precluded consideration by

the United States District Court of the Northern District of

California of the writ of coram nobis brought by Fred Toyosaburo

Korematsu to overturn his conviction in 1942 for remaining in a

military area in violation of Civilian Exclusion Order No. 34

issued by the Commanding General of the Western Command, U.S.

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Army, which ordered all persons of Japanese ancestry to leave

the area.   Korematsu v. United States, 584 F. Supp. 1406, 1409

(N.D. Cal. 1984).

                             IV. CONCLUSION

            For the reasons stated above, we vacate the ICA’s

judgment on appeal, Akau’s 1987 conviction for DUI, and the

district court’s findings of fact, conclusions of law, and order

dated September 11, 2013 concerning his HRPP Rule 40 petition.

We remand to the district court for further proceedings

consistent with this opinion.

Earle A. Partington               /s/ Mark E. Recktenwald
for Petitioner
                                  /s/ Paula A. Nakayama
Brian R. Vincent
for Respondent                    /s/ Sabrina S. McKenna

                                  /s/ Richard W. Pollack

                                  /s/ Michael D. Wilson




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