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                                                              Electronically Filed
                                                              Supreme Court
                                                              SCWC-11-0000595
                                                              10-MAY-2013
                                                              10:17 AM




           IN THE SUPREME COURT OF THE STATE OF HAWAI#I

                                ---o0o---


       CHEYNE DE LA GARZA, Petitioner/Defendant-Appellant,

                                    vs.

         STATE OF HAWAI#I, Respondent/Plaintiff-Appellee.


                            SCWC-11-0000595

         CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
 (CAAP-11-0000595; CR. NO. 08-0421(4); S.P.P. NO. 10-1-0021(4))

                              MAY 10, 2013

  RECKTENWALD, C.J., NAKAYAMA, ACOBA, MCKENNA, AND POLLACK, JJ.

                OPINION OF THE COURT BY POLLACK, J.


          Petitioner Cheyne De La Garza (Petitioner) seeks review

of the Intermediate Court of Appeals’ (ICA) August 23, 2012

judgment, affirming the Circuit Court of the Second Circuit’s

(circuit court) July 28, 2011 order dismissing Petitioner’s

Hawai#i Rules of Penal Procedure (HRPP) Rule 40 petition for

post-conviction relief.
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          Petitioner asserts that the ICA gravely erred in

affirming the circuit court’s order because the manner in which

the Hawai#i Paroling Authority (HPA) “amended” his minimum term

of imprisonment from eighteen months to five years was in

violation of his constitutional right to due process.

          We hold that the ICA erred in concluding that

Petitioner waived his due process claim relating to the HPA’s

nondisclosure of adverse materials in Petitioner’s HPA file and

accordingly vacate the ICA judgment and circuit court order, and

remand to the circuit court for a HRPP Rule 40 evidentiary

hearing consistent with this opinion.

                                    I.

                                    A.

          On May 1, 2009, Petitioner pleaded no contest to one

count of assault in the first degree in violation of Hawai#i

Revised Statutes (HRS) § 707-710(1) and one count of kidnapping

as a Class B felony in violation of HRS § 707-720(3).

Petitioner’s conviction arose out of an incident in which

Petitioner restrained the complainant (Complainant), whom he had

previously been romantically involved with, in his vehicle and

assaulted her, causing serious bodily injury to her.            The circuit




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court1 sentenced Petitioner on June 26, 2009 to ten years

imprisonment for each count, with the terms to run concurrently.2

            On October 12, 2009, the HPA held a hearing to set

Petitioner’s minimum term of imprisonment (first hearing),

pursuant to HRS § 706-669.3       Prior to the hearing, the HPA was

required to obtain Petitioner’s presentence report, which

included Complainant’s victim impact statement as an addendum to

the report.4    The prosecutor also submitted a written letter to

the HPA with his recommendation for Petitioner’s minimum term.

Petitioner and defense counsel were present at the October 12

hearing.    Neither the prosecutor nor Complainant attended the

hearing.

            On the same day as the first hearing, the HPA issued a

notice and order (First Minimum Term Order) setting Petitioner’s

minimum term of imprisonment at eighteen months for each count,


      1
            The Honorable Richard T. Bissen, Jr. presided over the circuit
court proceedings in this case.
      2
            Petitioner was also ordered to pay restitution and fees.

      3
            The HPA is charged with determining the minimum term of
imprisonment that a person sentenced to an indeterminate or an extended term
of imprisonment must serve before becoming eligible for parole. HRS § 706-
669(1) (1993). The guidelines upon which these determinations are made are
established by the HPA. HRS § 706-669(8). See HPA’s Guidelines for
Establishing Minimum Terms of Imprisonment (1989), available at
http://dps.hawaii.gov/wp-content/uploads/2012/09/HPA-Guidelines-for-
Establishing-Minimum-Terms-of-Imprisonment.pdf [hereinafter HPA Guidelines].

      4
            HRS § 706-669(2) (1993) provides that “[b]efore holding the
[minimum term] hearing, the authority shall obtain a complete report regarding
the prisoner's life before entering the institution and a full report of the
prisoner's progress in the institution.” HRS § 806-73(b)(3)(B) (Supp. 2009)
provides that “[a] copy of a presentence report or investigative report shall
be provided” to the HPA.




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to expire on December 20, 2010.        The HPA set Petitioner’s level

of punishment at Level II and identified “Degree of Injury to

Person” as the significant factor used in determining

Petitioner’s level of punishment.5         A Level II punishment for a

ten year maximum term of imprisonment will generally result in a

minimum term of three to five years under the HPA Guidelines.

HPA Guidelines at 2.      In Petitioner’s case the HPA deviated

downward from its guidelines based on his “Character and Attitude

With Respect to Criminal Activity and/or Lifestyle.”6

            Over a month after issuing the First Minimum Term

Order, the HPA received a letter from the prosecutor, dated

November 23, 2009, advising the HPA that Complainant and her

family had not been notified about the first hearing “due to an

error in communication” by the prosecutor’s office.7            The

prosecutor requested that Complainant and her family “be

permitted to appear before the [HPA] and submit oral and written

statements addressing the [Petitioner].”          However, the prosecutor
      5
            The HPA Guidelines provide that the minimum term of imprisonment
will generally fall within one of three levels, with the level of punishment
based on the maximum term of imprisonment imposed by the sentencing court and
subjective criteria including the nature of the offense, the degree of
injury/loss to person or property, and the offender’s criminal history. HPA
Guidelines at 2-3.

      6
            The HPA Guidelines provide that “all deviations [from the
guidelines] shall be accompanied by written justification and be made a part
of the Order Establishing Minimum Terms of Imprisonment[. ]” HPA Guidelines
at 1.

      7
            The HPA later explained to Petitioner in a letter dated July 27,
2010 that unless the complainant requested direct notification from the HPA,
the HPA’s practice was to notify the prosecutor’s office of the minimum term
hearing date. The prosecutor’s office would then notify the complainant of
the hearing date through a victim advocate. In this case, it appears that no
request for direct notification was made.


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acknowledged that “a minimum term has already been set and that

the prisoner has been transferred to the Maui Community

Correctional Facility.”     The prosecutor did not request

invalidation, reconsideration, or amendment of the minimum term.

A notation on the letter indicated that a copy of the letter was

sent to defense counsel.

          Thereafter, in a letter dated December 15, 2009,

Complainant’s aunt (Aunt) wrote to the HPA requesting that the

HPA “reconsider” the minimum term.        Aunt’s letter stated, “We do

not wish to burden the Board with an additional hearing and the

Board’s time and expense that comes with it, but we do

respectfully ask that you accept the enclosures as

[Complainant’s] testimony and we respectfully ask that you

reconsider the minimum that was set of 1.6 years.”           Aunt enclosed

a copy of Complainant’s victim impact statement and a portion of

the transcript from the circuit court’s sentencing proceedings.

The letter concluded with Aunt’s request that the “Board

reconsider a minimum term of at least 3.4 years.”           Aunt’s letter

did not contain a notation indicating that Petitioner, defense

counsel, or the State was provided with a copy of the letter and

the attachments.

          In a letter dated January 20, 2010, the HPA wrote to

Aunt acknowledging receipt of her letter.         The HPA advised Aunt

that the information she had provided had been made a part of

Petitioner’s case file and would “be reviewed when we undergo the


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parole process in October 2010.”        The HPA wrote, “The minimum

sentence of one year, six months does not mean that the defendant

will be released on parole at that time.[8]         We encourage you and

your niece to resubmit a letter prior to his parole hearing.”

The letter does not contain a notation indicating that a copy of

the letter was provided to Petitioner, defense counsel, or the

State.

            In a second letter to the HPA dated March 10, 2010,

Aunt wrote, “Below please find my testimony for the minimum term

hearing scheduled for Friday, 3/19/10 at Maui Community

Correctional Facility.”       Along with her written testimony, Aunt

included a map of the locations where Petitioner had driven

Complainant on the day of the incident, and photographs of the

injuries Complainant sustained.

            Aunt’s five-page, single-spaced statement recounted the

nature of Petitioner and Complainant’s relationship as well as

the events of the day of the incident.9         Aunt stated that

“[Petitioner] has already started on work furlough because of the

1.6 minimum,” and that “a 1.6 month minimum term is a slap in the
      8
            Pursuant to HRS § 706-670(1) (Supp. 2010), a “person sentenced to
an indeterminate term of imprisonment shall receive an initial parole hearing
at least one month before the expiration of the minimum term of imprisonment
determined by the [HPA].” If the HPA does not grant parole at that initial
hearing, additional hearings are held at “twelve-month intervals or less until
parole is granted or the maximum period of imprisonment expires.” Id. The
HPA may decline to set a parole date, and release becomes mandatory only upon
expiration of the maximum term of imprisonment. HRS § 706-670(5) (1993).

      9
            At the March 19, 2010 hearing, Aunt did not read verbatim from her
written statement. Significant portions of her written statement were not
orally conveyed at the hearing.




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face to the victim.”      She further claimed that “[a]fter

sentencing, [Petitioner] made statements like ‘my attorney is in

with the parole board, lucky if I even do a year,’” and that

Petitioner “new [sic] his statements would get to [Complainant],

which was his plan.”      Aunt concluded by asking the HPA to

“consider that [Petitioner’s minimum term] should not be less

than a minimum of 3.8 years of his 10 year sentence[.]”

            Aunt’s second letter also does not indicate that the

letter or its enclosures were provided to Petitioner, defense

counsel, or the State.

                                      B.

            On March 19, 2010, the HPA held a second minimum term

hearing (second hearing).10

            At the hearing, Petitioner, Complainant, Aunt, a victim

witness counselor, and a Maui County deputy prosecuting attorney

were present.11    Defense counsel was not able to attend the

hearing and instead appeared by telephone.          He explained, “You

know, I had some surgery, I just got the stitches out the other

      10
            The HPA is composed of three members who are appointed by the
governor for four-year terms, one of whom serves as chairperson. HRS § 353-61
(Supp. 2010). At the first hearing, all three HPA members, Chairman Albert
Tufono and members Dane Oda and Roy Reeber, were present and determined
Petitioner’s minimum term of imprisonment. At the second hearing, only
Chairman Tufono and member Oda were present. Pursuant to Hawai#i
Administrative Rules § 23-700-2(b) (1992), formal decisions of the HPA are not
“conclusive and final unless at least two members are in agreement.”

      11
            The prosecutor who appeared for the second hearing was not the
same prosecutor who sent the letter to the HPA recommending a minimum term for
the first hearing and who notified the HPA about the failure to notify
Complainant about the first hearing.




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day.    And I’m going to court this morning, I start a trial.                 It’s

not that I didn’t want to be there.”           Petitioner was not asked

whether he was previously aware of or agreed to counsel’s

participation through speaker phone.

             Chairman Albert Tufono began the hearing by explaining

that the HPA had scheduled the second hearing because “the first

time we set this minimum, we did not give the family the

opportunity to be heard in this area.”12           Defense counsel

responded, “I understand.         We went through all of their

statements and all the reports and everything else [at the first

hearing], but, I mean, I’m sure they have a right to talk.”

Chairman Tufono continued, “Yeah. So we’re giving them the right

to talk.”

             Before proceeding, the prosecutor stated that he was

present at the hearing “in a capacity to assist” Complainant, to

“answer any questions that the Board might have,” and “maybe make

a brief statement as well.”         Defense counsel responded, “I’m a

little uncomfortable with that”; nevertheless, the hearing

proceeded.

             The victim counselor began by reading a letter written

by Complainant.       The letter was shorter in length than

Complainant’s victim impact statement, which the HPA had

available at the first hearing, but focused more on the

      12
            However, there is no indication in the record that the HPA
foreclosed anyone from appearing or being heard at the first hearing.


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underlying incident and the effect it had, and continued to have,

on Complainant’s life.

            Next, Aunt was given the opportunity to make a

statement.    Aunt stated that Petitioner’s “actions clearly show a

lack of remorse.”    She also alluded to certain statements that

Petitioner had allegedly made to a cellmate after he was

sentenced.    Defense counsel objected, “I don’t know if she’s

allowed to make this statement.       Where is this coming from?           I

object to this kind of stuff.       Confessions from cellmates?         What

is that?”    Aunt continued to attempt to explain that she included

this information in her letter and that the cellmate was “a

person who worked with [Complainant] who did weekends for DUI.”

Aunt argued, “[Petitioner] knew this and [Petitioner] found a way

to get uncomfortable statements back to [Complainant].            And

that’s what he did by saying that, you know, his attorney is

tight with the parole board and lucky he --”          At that point, Aunt

was again interrupted by defense counsel, whose statement was

partially marked as “inaudible.”

            Aunt also addressed the HPA’s initial minimum term:

“This defendant clearly believes that he is above the law.

Please make it clear to him that he cannot do what he did to

[Complainant] and walk out of jail in 1.6 months, although that

is even more time than he thought he would do.”           Aunt concluded,

“Please don’t let this heinous crime get a slap on the hand.                A



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1.6 minimum is a slap on the hand for [Petitioner] and a slap in

the face for [Complainant].”

            When the prosecutor began his statement, he referenced

the circuit court judge’s comments during Petitioner’s sentencing

and stated that he knew the judge.13        Defense counsel interrupted,

objecting, “This is an improper argument.          You want to do

something, you should get a transcript, or bring in (inaudible)

the Deputy.”    The prosecutor responded, “I have a transcript of

the Judge.”    Defense counsel again interjected, “This is an

outrageous argument.”

            After Chairman Tufono told the prosecutor to continue,

the prosecutor argued that Petitioner had “basically tricked”

Complainant into meeting with him on the day of the incident.

Defense counsel objected, “This is unbelievable.            How does this

come in?”    The prosecutor then referenced his nineteen years of

experience as a prosecutor and stated that in his opinion the

previously set minimum term “does not feel right” and “[i]t does

not feel as though just punishment for this incident is . . .

being meted out.”     The prosecutor concluded by asking the HPA to

“reconsider the previously set minimum.”

            Defense counsel then spoke, noting that the first

hearing had lasted an hour and that the “worst of [Petitioner]


      13
            The prosecutor stated, “I was present in the courtroom during the
sentencing. And the Judge’s comments at the time of sentencing, absolutely
astounding. Because this was the individual –- and I’m talking about Judge
Richard Bissen –- this is an individual who I have known for most of --”


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came out” during that hearing.       Defense counsel pointed out that

the prosecutor’s office sent the HPA a recommendation letter for

the first hearing, and the HPA rejected the prosecutor’s

recommendation for the minimum term.         He continued, “They just

don’t like the mandatory minimum.”         Defense counsel further

expressed his frustration in regards to Aunt’s statements,

saying, “Then you talk about . . . some jail mate.           I wish I

could be over there.     (Inaudible.)      Shame on you,” and “I wish I

was there to ask you a few questions.”

          Following defense counsel’s statement, Chairman Tufono

asked Petitioner if he wanted to make a statement.           Petitioner’s

response is denoted on the transcript as an “inaudible” “10-

second statement.”    After defense counsel stated, “Can’t hear,”

Petitioner made a longer statement also described as “inaudible.”

Chairman Tufono then twice stated to Petitioner that he had an

opportunity to address Complainant.         Petitioner made a statement

that is marked as “inaudible” “40-second statement.”

          After Petitioner’s comments, Chairman Tufono concluded

the hearing and addressing defense counsel, stated, “[W]e’re

gonna go ahead and we’ll take a look at this case.           And if we

need to reset the minimum, then that’s what we’ll do.”            Defense

counsel responded, “I hope you won’t reconsider this.”            Chairman

Tufono only noted that the HPA would “let everybody know in a

couple weeks what the decision is.”




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           At no point during the hearing was Petitioner given an

opportunity to speak privately with defense counsel.

           On March 24, 2010, the HPA issued a second notice and

order (Second Minimum Term Order), imposing a minimum term of

five years imprisonment on each count, to expire on June 22,

2014.   The new minimum term was more than three times the initial

term that had been set after the first hearing.           The order

identified the level of punishment as “Level III,” and “Nature of

Offense” and “Degree of Injury to Person” as the significant

factors used in determining the level of punishment.            The order

did not reference the First Minimum Term Order.

           Subsequently in July and August 2010, the HPA parole

administrator responded to Petitioner’s letters regarding the

second hearing and increased minimum term.         The administrator

informed Petitioner that the HPA had decided to “reopen your

minimum term hearing to accept the victim’s testimony.”

Petitioner wrote two more letters to the HPA requesting an

explanation for the Second Minimum Term Order.          On both

occasions, the HPA responded that no action would be taken and

that the parole board’s “decision remains appropriate.”

           On February 10, 2011, Petitioner again wrote to the

HPA, arguing that the HPA had exceeded its statutory authority in

holding the second hearing and requesting that the HPA restore

his original minimum term and hold an immediate hearing to




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consider him for parole.      He informed the HPA that he had filed a

HRPP Rule 40 petition with the circuit court.

          The HPA administrator responded to Petitioner by letter

dated February 22, 2011.      The letter stated that “[u]pon receipt

of [Petitioner’s February 10, 2011] letter, a review of your

concerns, our records, and consultations with the Department of

the Attorney General were conducted.”        The administrator wrote

that the HPA had acted appropriately, explaining that “victims .

. . have the right to be present at minimum sentencing hearings

and provide testimony . . . to the parole board.”           The

administrator then explained that the HPA had decided to “amend”

the first minimum term as a result of the information provided by

the prosecutor’s office and the victims at the second hearing:
          In this case, neither the Office of the Prosecuting Attorney
          nor the victims . . . attended the minimum sentencing
          hearing held on October 12, 2009. Therefore, the parole
          board appropriately allowed them to provide testimony and/or
          statements at the subsequent re-opened hearing held on March
          19, 2010. As a result of the information provided by both,
          the Office of the Prosecuting Attorney, and the victims at
          the March 19, 2010 hearing, the parole board amended their
          [sic] previous decision of October 12, 2009.



(Emphases added).

          The administrator wrote that “the actions of the parole

board in this matter do not violate your rights and/or any

statutory authority.     In fact, the actions of the parole board

were appropriate and ensured that the parties involved were

provided the opportunity to exercise their right to be present

and to be heard.”


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                                       C.

            Petitioner filed his HRPP Rule 40 petition for post-

conviction relief on December 27, 2010, representing himself pro

se.   Petitioner argued that the HPA had violated his

constitutional rights to due process and equal protection based

upon the following claims: (1) the HPA exceeded its statutory

authority by holding a second hearing to allow Complainant to

testify after Petitioner had already been imprisoned for six

months, and by subsequently increasing his minimum term from

eighteen months to five years; (2) the HPA acted arbitrarily in

sentencing Petitioner to a Level III punishment rather than a

Level I punishment under the HPA Guidelines, despite the fact

that he had no prior criminal history.           Petitioner argued that it

was arbitrary and capricious for the HPA to reopen his minimum

term hearing to accept Complainant’s testimony and that he should

not be penalized for any miscommunication between the

prosecutor’s office and Complainant.

            The State filed an answer to the petition on March 17,

2011.    Although the State argued that Petitioner and his counsel

appeared at the second hearing “after receiving proper notice,”

the nature of the “proper notice” was not identified or

described.

            Petitioner filed a reply to the answer on April 4,

2011.




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            On May 3, 2011, the circuit court granted Petitioner’s

motion to add a new ground of ineffective assistance of counsel

to his petition (Amended Petition).        As part of his ineffective

assistance of counsel claim, Petitioner explained that defense

counsel participated in the second hearing via HPA member Dane

Oda’s cell phone, which was placed on speaker phone.            Petitioner

argued that defense counsel’s participation by telephone was

insufficient, that counsel was absent during a “critical stage”

of the criminal proceeding, and that prejudice was therefore

presumed.

            The State filed a response to the ineffective

assistance of counsel claim on July 20, 2011 (State’s Response to

Amended Petition).    The State argued that Petitioner was not

denied effective assistance of counsel at the second hearing

because counsel appeared via telephone and “ensure[d] that the

minimum sentence imposed by the HPA [was] not predicated on

misinformation or misreading of court records.”           (Quotation marks

omitted).

            The State attached as exhibits to its response, a copy

of Aunt’s December 15, 2009 letter to the HPA with enclosures

(Exhibit “D”), a copy of the HPA’s January 20, 2010 letter to

Aunt (Exhibit “E”), and a copy of Aunt’s March 10, 2010 written

testimony for the second hearing, with enclosures (Exhibit “F”).

Exhibits E and F reflected that the prosecutor’s office received



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those documents on July 12, 2011, eight days prior to the filing

of the State’s Response to Amended Petition.

          On July 28, 2011, eight days after the State’s Response

to Amended Petition was filed, the circuit court issued its

findings of fact, conclusions of law, and an order denying

Petitioner’s petition.

          The court’s conclusions of law provided in relevant

part:
          26.   Nothing in the record indicates Petitioner’s rights to
          “reasonable notice of the hearing”, “to be heard by the
          authority”, and to consult with and enjoy the representation
          of counsel for the minimum term hearing were violated by the
          HPA. See HRS § 706-669(3). Petitioner was represented by
          [defense counsel], who was physically present at the first
          hearing, and represented Petitioner in the second hearing
          via telephone conference.


In regard to Petitioner’s claim of ineffective assistance of

counsel, the circuit court concluded that the claim was “patently

frivolous.”   The court concluded that counsel’s appearance by

phone was sufficient and did not demonstrate “the withdrawal or

substantial impairment of a potentially meritorious defense”:
          46. To accuse [counsel] of being merely “unprepared” is not
          sufficiently specific for establishing a claim of
          ineffective assistance of counsel. The only specific acts
          or omissions to which Petitioner does point, [counsel’s]
          appearance by phone and not having a conference prior to the
          commencement of the hearing, do not demonstrate [counsel]
          lacked skill, judgment, or diligence, as to result in the
          withdrawal or substantial impairment of a potentially
          meritorious defense, or any other argument that should have
          been presented to the HPA. Further, [counsel] made numerous
          objections to testimonies submitted by the victim’s family,
          the victim counselor, and prosecutor[.]

(Quotation marks, brackets, and citations omitted) (Emphasis

added).



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          The court concluded that “the facts alleged in the

Petition, even when taken as true, do not entitle Petitioner to

relief under HRPP Rule 40.”      The court denied an evidentiary

hearing on the grounds that the claims submitted by Petitioner

were “patently frivolous” and “without [a] trace of support

either in the record or from other evidence submitted by the

petitioner.”

          On August 1, 2011, Petitioner, apparently unaware of

the court’s order dismissing the petition, filed a reply to the

State’s Response to Amended Petition.

                                    II.

          On August 8, 2011, Petitioner filed a Notice of Appeal

from the court’s order denying his Rule 40 petition.

          Petitioner argued before the ICA that the circuit court

erred in denying his petition “prematurely” without reviewing his

reply to the State’s Response to Amended Petition.           Petitioner

also argued that the circuit court violated his due process

rights by failing to hold an evidentiary hearing to determine

whether the HPA exceeded its authority by holding the second

hearing and whether his counsel was ineffective in attending the

hearing via telephone.

          On the issue of ineffective assistance of counsel,

Petitioner claimed that at the second hearing, he “asked where

his attorney was at and that he wanted to review all records

before beginning.”    Petitioner cited Van Patten v. Deppisch, 434


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F.3d 1038 (7th Cir. 2006), in support of his argument that

counsel’s participation via speaker phone was ineffective and

also amounted to a denial of the assistance of counsel.

Petitioner contended that the HPA hearing should have been

continued or at a minimum, Petitioner should have been asked if

he wished to continue without counsel present.

            Petitioner also contended that the HPA violated his

rights by withholding certain evidence from him prior to the

second hearing.14    Specifically, Petitioner claimed that he had

not received the letters attached as Exhibits D, E, and F to the

State’s Response to Amended Petition.15         According to Petitioner,

he saw the letters for the first time when they were attached to

the State’s Response.

            The State filed its answering brief on January 30,

2012.16

            On Petitioner’s first point, the State argued that the

HRPP does not provide for the filing of a reply to an answer to a

Rule 40 petition.

            In response to Petitioner’s second point, the State
      14
            Petitioner’s remaining points of error on appeal before the ICA
are not pertinent to the resolution of this Application and will not be
addressed.

      15
            Petitioner also stated that he was unaware of the prosecutor’s
letter to the HPA on November 23, 2009, attached as Exhibit “C,” but a
notation on the letter indicated that a copy was sent to defense counsel.

      16
            On November 3, 2011, the Department of the Attorney General of the
State of Hawai#i filed a Notice of Intent Not to File Answering Brief, which
explained that the Department of the Prosecuting Attorney for the County of
Maui would respond on behalf of the State as to all claims.




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argued that the HPA did not abuse its discretion in holding a

second minimum term hearing because the HPA has “broad discretion

in establishing minimum terms” and Complainant had a right to be

heard under HRS § 706-669(7).       The State acknowledged that HRS §

706-669 “does not specifically . . . allow[] for a second hearing

after a minimum term is set, other than for a reduction” of the

minimum term.    Nevertheless, the State argued that “there is no

provision specifically prohibiting what happened in this case,”

and that “[g]iven the facts of this case, the HPA did the right

thing in . . . allowing the victim to participate.”           The State

concluded that Petitioner therefore did not raise a “colorable

claim.”

          The State further argued that Petitioner’s due process

rights were not violated by the HPA’s holding of the second

minimum term hearing, as Petitioner was given the opportunity to

provide input at the hearing, and was assisted by counsel via

speaker phone.    The State also argued that the HPA “gave proper

notice [of the second hearing] to the parties.”           However, the

State did not provide a citation to the record on appeal for such

notice and did not describe the nature, type or content of the

notice given.    The State concluded that “there was no due process

violation amounting to a colorable claim.”

          On Petitioner’s ineffective assistance of counsel

claim, the State argued that counsel was able to sufficiently

represent Petitioner by participating in the second hearing via


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speaker phone.       The State distinguished this case from the

situation in D’Ambrosio v. State, 112 Hawai#i 446, 146 P.3d 606

(App. 2006), where counsel failed to appear before the HPA,

“personally or otherwise.”         The State maintained that in this

case, counsel “ably represented” Petitioner by appearing by

speaker phone, as evidenced by counsel’s numerous objections

during the hearing.

             The State did not address Petitioner’s third argument

that the HPA wrongfully withheld evidence from him prior to the

second hearing, including the letters attached as Exhibits D-F to

the State’s Response to Amended Petition.

             Petitioner filed a reply to the State’s answer.

Petitioner responded that the legislature had not set out a

procedure under HRS § 706-669 for increasing a minimum term

sentence and that the HPA was obligated to abide by the

procedural protections afforded to inmates.             Petitioner also

argued that the victim’s input and presence were not “essential

element[s]” for the HPA to set a minimum term under HRS § 706-

669.

             In regard to Petitioner’s ineffective assistance of

counsel claim, he argued that “the HPA did not give the

Petitioner the opportunity to speak privately with his attorney

over the phone as Petitioner wanted to discuss various important

matters pertaining to his defense.”




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            The ICA affirmed the circuit court’s order dismissing

the Rule 40 petition, concluding that “[Petitioner’s] arguments

regarding the [HPA’s] fixing of his minimum term after the second

hearing were patently frivolous and without merit.”17            De La Garza

v. State, No. CAAP-11-0000595 (App. Jul. 20, 2012) (SDO) at 2.

The ICA reasoned that the “[Complainant] was not given notice of

the first hearing and, therefore, was not afforded the

opportunity to appear at the first hearing and present a written

statement or oral comments, in violation of [HRS] § 706-669(7)

(Supp. 2011).”     De La Garza, SDO at 2.

            The ICA further held that the circuit court did not err

in concluding that Petitioner failed to raise a colorable claim

of ineffective assistance of counsel.         Id. at 3-4.     The ICA

determined that Petitioner failed to cite and it could not find

any authority for the proposition that “an inmate’s counsel may

not appear by telephone at a minimum term hearing.”            Id.   The

court held that Petitioner “fail[ed] to argue how counsel’s

appearance by phone, per se, constituted a specific error or

omission reflecting his lack of skill, judgment, or diligence, or

the withdrawal or substantial impairment of a potentially

meritorious defense.”      Id. at 4 (quotation marks omitted).




      17
            The Honorable Daniel R. Foley, the Honorable Katherine G. Leonard,
and the Honorable Lawrence M. Reifurth, presiding.


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            The ICA concluded that “[Petitioner] waived his

remaining arguments by failing to raise them in the Petition or

[Amended Petition].”      Id. (citing HRPP Rule 40(a)(3)).

                                     III.

            On September 10, 2012, Petitioner timely filed an

application for writ of certiorari (Application) with this court.

Petitioner maintains on this appeal that the ICA erred by 1)

denying his claim that the HPA violated his rights by holding the

second hearing to accept Complainant’s testimony; and 2) holding

that he waived his claim that the HPA withheld evidence prior to

and during the second hearing because he did not raise the issue

in his Rule 40 petition.18

                                     IV.

            A “HRPP Rule 40 petition is an appropriate means to

challenge a minimum term of imprisonment set by the HPA.”

Coulter v. State, 116 Hawai#i 181, 184, 172 P.3d 493, 496 (2007).

“The disposition of an HRPP Rule 40 petition is based on

[findings of fact] and [conclusions of law].”           Raines v. State,

79 Hawai#i 219, 222, 900 P.2d 1286, 1289 (1995).           “Accordingly, we

review the circuit court’s conclusions of law de novo and

findings of fact for clear error.”          Coulter, 116 Hawai#i at 184,

172 P.3d at 496.




      18
            The remaining questions presented in Petitioner’s Application will
not be addressed in light of our disposition of the Application.


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          “[J]udicial intervention is appropriate where the HPA

has . . . acted arbitrarily and capriciously so as to give rise

to a due process violation, or otherwise violated the prisoner’s

constitutional rights.”     Id. (quotation marks omitted).

                                     V.

          Petitioner argues that the ICA erred by holding that he

waived his claim that the HPA violated his right to due process

by withholding evidence from him prior to the second hearing.

Petitioner argued before the ICA that he did not receive a copy

of the three letters sent between Aunt and the HPA prior to the

second hearing, and that he was not aware of these documents

until they were attached as Exhibits D-F to the State’s Response

to Amended Petition.     The ICA held that this issue was among the

arguments Petitioner “waived . . . by failing to raise them in

the Petition or [Amended Petition].”        De La Garza, SDO at 4.

                                     A.

          Article I, section 5 of the Hawai#i Constitution

provides in relevant part that “[n]o person shall be deprived of

life, liberty or property without due process of law[.]”

Procedural due process claims are addressed in two steps: “First,

we must determine whether a ‘liberty’ or ‘property’ interest has

been interfered with by the State; second, we must determine what

specific procedures are required to satisfy due process.”             State

v. Bani, 97 Hawai#i 285, 293, 36 P.3d 1255, 1263 (2001).




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                                     1.

          The HPA is responsible for “fixing the minimum term of

imprisonment to be served before the prisoner shall become

eligible for parole” based on the minimum term hearing.            HRS §

706-669(1).   The HPA minimum term hearing is “a critical stage of

the criminal proceeding” that “undoubtedly affects [the

convicted] person’s substantial rights.”         D’Ambrosio v. State,

112 Hawai#i 446, 464-66, 146 P.3d 606, 624-26 (App. 2006)

(internal quotation marks and citations omitted).           This court has

held that due process protections apply to the HPA’s

determination of the minimum term.
          [T]he determination of a prisoner’s minimum term is part of
          the parole process. Therefore, the same standards should
          apply to judicial review of both an HPA decision denying
          parole and an HPA decision establishing a minimum term. In
          both cases, judicial intervention is appropriate where the
          HPA has failed to exercise any discretion at all, acted
          arbitrarily and capriciously so as to give rise to a due
          process violation, or otherwise violated the prisoner’s
          constitutional rights.

Williamson v. Hawai#i Paroling Auth., 97 Hawai#i 183, 195, 35 P.3d

210, 222 (2001) (footnote omitted) (emphases added).            Therefore,

the HPA was obligated to comply with the due process clause of

the Hawai#i Constitution in determining Petitioner’s minimum term

of imprisonment.

                                     2.

          “Once it is determined that due process applies, the

question remains what process is due.”         Morrissey v. Brewer, 408

U.S. 471, 481 (1972).     Hawai#i courts have “repeatedly recognized



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that due process is not a fixed concept requiring a specific

procedural course in every situation.        Instead, due process is

flexible and calls for such procedural protections as the

particular situation demands.”       Bani, 97 Hawai#i at 296, 36 P.3d

at 1266 (internal quotation marks, brackets and citations

omitted).    However, “[a]t its core, procedural due process of law

requires notice and an opportunity to be heard at a meaningful

time and in a meaningful manner before governmental deprivation

of a significant liberty interest.”        Id. at 293, 36 P.3d at 1263.

            In Morrissey v. Brewer, the U.S. Supreme Court

determined that in the context of parole revocation, the minimum

requirements of due process include “written notice of the

claimed violations of parole,” as well as “disclosure to the

parolee of [the] evidence against him” and “a written statement

by the factfinders as to the evidence relied on and reasons for

revoking parole.”    408 U.S. at 488-89 (emphasis added).

            Specifically in the context of minimum term hearings,

the Utah Supreme Court has held that due process “requires that

the inmate know what information the [Parole] Board will be

considering at the [original parole grant] hearing and that the

inmate know soon enough in advance to have a reasonable

opportunity to prepare responses and rebuttal of inaccuracies.”

Labrum v. Utah State Bd. of Pardons, 870 P.2d 902, 909 (Utah




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1993).19   In Labrum, the parole board did not disclose to the

petitioner any of the adverse materials and information it would

be considering at the hearing.          Id. at 904.      These materials

included letters from the victim’s family and “other information

Labrum and his counsel believed would have been helpful in

preparing rebuttal to the allegations against him.”                Id.    Based

on this nondisclosure of information, the court granted the

petitioner’s petition for an extraordinary writ directing the

board to disclose the board’s file on the petitioner, vacate its

determination of his release date, and rehear his parole request.

Id. at 903, 914.

            In reaching its decision, the Labrum court emphasized

the importance of the minimum term hearing, explaining that “an

      19
            Utah, like Hawai#i, has in place an indeterminate sentencing
scheme in which the Board of Pardons determines at the “original parole grant
hearing” the actual term that the inmate will serve in prison. Labrum, 870
P.2d at 906-09. The trial judge imposes the statutorily prescribed range of
time of imprisonment and the Board of Pardons “determines the actual number of
years a defendant is to serve.” Foote v. Utah Bd. of Pardons, 808 P.2d 734,
735 (Utah 1991). The Board of Pardons has adopted sentence and release
guidelines that are “widely used . . . to estimate the time a particular
defendant should be imprisoned based on the circumstances of the case.”
Labrum, 870 P.2d at 907.
            The Utah statute that refers to “original parole grant hearings”
is substantially similar to HRS § 706-669(1), and provides:

            The Board of Pardons and Parole shall determine within six
            months after the date of an offender’s commitment to the
            custody of the Department of Corrections, for serving a
            sentence upon conviction of a felony or class A misdemeanor
            offense, a date upon which the offender shall be afforded a
            hearing to establish a date of release or a date for a
            rehearing, and shall promptly notify the offender of the
            date.

U TAH C ODE A NN . § 77-27-7(1). After the board makes its initial determination of
the actual term of imprisonment the inmate is to serve, the “Board retains the
flexibility to reassess its original decision” based on factors such as the
inmate’s behavior in prison. Labrum, 870 P.2d at 908-09.




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inmate has a reasonable expectation that the term decided upon at

the . . . hearing will turn out in fact to be his or her actual

prison term,” or “[a]t the very least, [that] it will operate as

a benchmark to assess future status.”        Id. at 909.     The court

reasoned that the timely disclosure of information to the inmate

relates to “fundamental fairness” and has the effect of

“minimizing error and preserving the integrity of the process

itself.”   Id.   In addition, “[a]ccurate sentencing and parole

decisions . . . further society’s interest in ensuring that

offenders will be returned to society neither sooner nor later

than is appropriate.”     Id. at 910 (quoting Note, A Proposal to

Ensure Accuracy in Presentence Investigation Reports, 91 YALE L.J.

1225, 1241-42 (1982)) (quotation marks omitted).

           The Washington Supreme Court has also held that “at the

setting of minimum terms, minimum due process requires that an

inmate be advised of adverse information in his or her parole

file.”   In re Sinka, 599 P.2d 1275, 1281-82 (Wash. 1979) (en

banc).   The court was primarily concerned with the possibility

that the Parole Board would rely on inaccurate or erroneous

information in the inmate’s file that the inmate did not have an

opportunity to correct.     Id.    The court reasoned that because

“the data on which the Board acts is not developed through an

open adversary confrontation, its accuracy cannot be assured

unless the prisoner has access to the relevant information in his

file,” and “[b]oth the inmate and the state have an interest in


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ensuring that the setting of minimum terms is based on accurate

information and informed discretion.”20            Id. at 1281 (quotation

marks omitted).

            Hawai#i cases related to sentencing, probation and

minimum term hearings also reflect a concern that decisions are

predicated on accurate factual information of which the defendant

has adequate notice.

            In the context of probation revocation, this court has

held that “the minimum requirements of due process . . . require

in relevant part that a probationer be given written notice of

the claimed violations of probation, disclosure of evidence

against him, and a written statement by the factfinder as to the

evidence relied on and the reasons for revoking probation.”

State v. Durham, 125 Hawai#i 114, 126, 254 P.3d 425, 437 (2011)

(quotation marks, brackets, ellipses and citations omitted).                   The

Durham court explained that “[t]he disclosure of facts to the

      20
            The Sinka court considered the parole board’s procedures for
setting minimum terms pursuant to W ASH . R EV . C ODE (RCW) Chapter 9.95. 599 P.2d
at 1277.
            Subsequently, the Washington legislature adopted the Sentencing
Reform Act of 1981 (SRA), codified in RCW Chapter 9.94A, “which replaced
Washington’s former indeterminate sentencing regime with determinate
sentencing.” State v. Clarke, 134 P.3d 188, 191 (Wash. 2006) (en banc).
            The SRA redesignated the Board of Prison Terms and Paroles as the
Indeterminate Sentence Review Board (ISRB). RCW 9.95.001. The ISRB continues
to have jurisdiction over “persons convicted of crimes committed prior to July
1, 1984.” RCW 9.95.009(2). The ISRB is, however, required to “make decisions
reasonably consistent with” the SRA’s “purposes, standards, and sentencing
ranges” and “the minimum term recommendations of the sentencing judge and
prosecuting attorney.” Id.
             In In re Whitesel, the Washington Supreme Court held that the due
process requirements established in Sinka “also apply when the [ISRB] sets and
redetermines minimum terms.” 763 P.2d 199, 203-04 (Wash. 1988) (en banc)
(footnote omitted).




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parties is based on the proposition that the court must have

correct information to render a just sentence.”           Id. at 124, 254

P.3d at 435.   “In any system which vests discretion in the

sentencing authority, it is necessary that the authority have

sufficient and accurate information so that it may rationally

exercise its discretion.”      Id. (quoting State v. Lau, 73 Haw.

259, 262, 831 P.2d 523, 525 (1992)) (quotation marks omitted).

          Similarly, the court explained that the requirement

that the defendant be given “notice of the grounds upon which

probation is sought to be revoked” is intended to give the

defendant an “opportunity to object, rebut, or otherwise dispute

the factual allegations.”      Id. at 124-25, 254 P.3d at 435-36.

See State v. Wong, 73 Haw. 81, 829 P.2d 1325 (1992) (holding that

defendant was statutorily entitled to be informed of grounds for

court’s revocation of probation under HRS § 706-625(b), vacating

order revoking probation and remanding “for rehearing upon the

State’s providing proper notice”).

          In State v. Paaaina, 67 Haw. 408, 410, 689 P.2d 754,

757 (1984), although the court held that a defendant does not

have a constitutional or statutory right to examine a probation

officer’s sentencing recommendation, the court concluded that the

defendant is entitled to “have access to all factual information

used in sentencing.”     Thus, the court held that “it is incumbent

upon the probation officer to carefully draft the recommendation



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letter” so that it is “based only on facts contained in the pre-

sentence report.”    Id. (citing HRS §§ 706-602 and 706-604).              “If

the judge finds new factual information in the recommendation

letter, it is incumbent upon the judge to make it available to

the defendant.”    Id. (emphasis added).

          This underlying concern for predicating sentencing

decisions on accurate information was also present in D’Ambrosio

v. State, 112 Hawai#i 446, 466, 146 P.3d 606, 626 (App. 2006), in

which the court recognized that “the HPA minimum-term hearing is

a critical stage of the criminal proceeding” at which a convicted

person is constitutionally entitled to be represented by counsel.

In so concluding, the court considered the critical nature of the

minimum term hearing and the “significant discretionary power”

exercised by the HPA in setting the minimum term of imprisonment.

Id. at 464-66, 146 P.3d at 624-26.         The court explained that

under the statutory scheme, “it is the HPA, not the courts, that

exercises most of the State’s felony sentencing discretion.”               Id.

at 464, 146 P.3d at 624.      The court indicated that the

significance of counsel’s presence at the minimum term hearing

was based on the same concern for accuracy expressed in Durham

and Paaaina: “a convicted person is constitutionally entitled to

be represented at the hearing by counsel who can ensure that the

minimum sentence imposed by the HPA is not predicated on

misinformation or misreading of court records, which is a



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requirement of fair play.”      Id. (quotation marks omitted)

(emphasis added).

           The considerations articulated by the D’Ambrosio court

demonstrate the need for the convicted person to have access to

all of the information considered by the HPA in making the

critical “first determination of the actual term the inmate is to

serve in prison.”    Labrum v. Utah State Bd. of Pardons, 870 P.2d

902, 908 (Utah 1993).     As recognized in D’Ambrosio, the HPA makes

this determination by considering a wide variety of

circumstances, as set forth in the HPA Guidelines.           The HPA is

also statutorily required to “obtain a complete report regarding

the prisoner’s life before entering the institution and a full

report of the prisoner’s progress in the institution” prior to

holding the minimum term hearing.          HRS § 706-669(2).    Without

access to the potentially wide range of information being

considered by the HPA, the convicted person may be unable to

prepare a response and rebuttal to any adverse information being

considered.   In addition, the convicted person may be unable to

correct any errors contained in the “complete report” obtained by

the HPA.   Thus, nondisclosure of such information may infringe on

the convicted person’s due process right to fairness and a

meaningful opportunity to be heard.

           In light of the critical nature of the HPA’s

determination of the prisoner’s minimum term of imprisonment, due



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process under Article I, section 5 of the Hawai#i Constitution

requires that the prisoner have timely access to all of the

adverse information contained in the HPA file.           The HPA must

disclose such information “soon enough in advance” that the

inmate has a “reasonable opportunity to prepare responses and

rebuttal of inaccuracies.”       Labrum, 870 P.2d at 909.        In the

event that the HPA file of the inmate includes sensitive, or

confidential personal information, the inmate is entitled to

disclosure of a reasonable summary thereof.21

            Such disclosure ensures that the HPA will set the

inmate’s minimum term of imprisonment based on accurate

information and that the inmate is given reasonable notice and a

meaningful opportunity to be heard on the issue of the minimum

term.   See HRS § 706-669(3).

             In this case, the record indicates that Petitioner did

not receive the evidence in the HPA file prior to the second

hearing.    The copies of the letters attached as Exhibits D-F to

the State’s Response to Amended Petition did not contain

notations indicating that Petitioner, defense counsel, or the

State received copies.      The time stamps on the HPA’s January 20,

2010 letter to Aunt (Exhibit E) and Aunt’s March 10, 2010 letter

to the HPA (Exhibit F) indicated that the prosecutor’s office did

      21
            Where the relevant case file contains sensitive, or confidential
personal information, the HPA may in its discretion take “suitable steps to
withhold the identity of sources and prepare summaries of the information for
the inmate’s use rather than providing copies of the actual documents.”
Labrum, 870 P.2d at 910.


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not receive the documents until July 12, 2011, eight days prior

to the filing of the State’s Response to Amended Petition.             In

addition, the State did not claim in its Rule 40 pleadings or its

answering brief to the ICA, that Petitioner or defense counsel

had received copies of the documents.

           Furthermore, in Aunt’s two letters to the HPA, Aunt

requested that the HPA “reconsider” the eighteen month minimum

sentence, and provided the HPA with a written statement of her

anticipated testimony for the second hearing.          The HPA

specifically informed Aunt that her December 15, 2009 letter

requesting a second hearing and the information provided therein

had “been made a part of [Petitioner’s] case file.”           However,

there is no indication in the record that the HPA disclosed the

contents of Petitioner’s case file to Petitioner prior to the

second hearing.    Additionally, at the hearing, when Aunt spoke

and alleged that Petitioner had made certain statements to a

cellmate, defense counsel expressed surprise, stating, “Where is

this coming from?”    Aunt’s response was, “I did put this in my

letter.”   These facts suggest that Petitioner may not have been

provided all of the information in his HPA file.

           Despite Petitioner’s factual and legal basis for

asserting his due process claim, the ICA, citing HRPP Rule

40(a)(3), held that this issue was among the arguments Petitioner

“waived . . . by failing to raise them in the Petition or



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[Amended Petition].”       De La Garza, SDO at 4.       HRPP Rule 40(a)(3)

provides that “Rule 40 proceedings shall not be available and

relief thereunder shall not be granted where the issues sought to

be raised . . . were waived.”         The rule defines waiver as

follows:
            Except 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 before the trial, at
            the trial, on appeal, in a habeas corpus proceeding or any
            other proceeding actually conducted, or 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.

Id.   “There is a rebuttable presumption that a failure to appeal

a ruling or to raise an issue is a knowing and understanding

failure.”     Id.

            This court has held that a claim of ineffective

assistance of counsel is not considered “waived” for the purposes

of a HRPP Rule 40 petition if there was “no realistic

opportunity” for the petitioner to raise the claim in the

proceedings specified by the rule.           See Briones v. State, 74 Haw.

442, 459, 848 P.2d 966, 975 (1993) (petitioner unable to raise

ineffective assistance of counsel issue on direct appeal where

petitioner was represented by same counsel at trial and on direct

appeal); Fragiao v. State, 95 Hawai#i 9, 16, 18 P.3d 871, 878

(2001) (finding no waiver of claim asserting trial counsel’s

conflict of interest where petitioner was unaware of conflict

until new appellate counsel was appointed).



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            In this case, Petitioner would not have had any

opportunity to raise the issue of the HPA’s nondisclosure of

evidence in “any other proceeding actually conducted,” if he was

not aware of the existence of the letters sent between Aunt and

the HPA prior to the second hearing until they were filed with

the State’s Response to Amended Petition as Exhibits D-F.22

Additionally, Petitioner did not have the opportunity to raise

this claim “in a prior proceeding actually initiated under this

rule,” as Petitioner did not file a Rule 40 petition prior to the

instant petition.     Thus Petitioner presented facts sufficient to

rebut the presumption that he knowingly and understandingly

waived the issue, and the ICA erred in holding that the issue was

waived on appeal.

            “In the absence of sufficient evidence in the record on

appeal, an appellate court should remand for the development of

such a record.”     Briones, 74 Haw. at 466 n.17, 848 P.2d at 978

      22
            Petitioner also had a very limited time within which to amend his
petition after he became aware of the three letters. At the time of the Rule
40 proceedings, Petitioner was being held in custody at a facility in Arizona
and he was representing himself pro se. The circuit court filed its findings
of fact, conclusions of law and order denying the petition eight days after
the State filed its Response to Amended Petition and prior to receiving
Petitioner’s reply.
            HRPP Rule 40 currently does not contain a provision allowing the
petitioner to file a reply to the respondent’s answer. It is noted that Rule
28(d) (2010) of the Hawai#i Rules of Appellate Procedure (HRAP) provides that
an appellant may file a reply brief within fourteen days after service of the
appellee’s answering brief. HRAP Rule 40.1(e) (2012) also provides that
within seven days after a response to an application for writ of certiorari is
filed, any party may file and serve a reply.
            Thus we suggest that the Standing Committee on Penal Rules may
consider whether an amendment that allows for a reply to a HRPP Rule 40 answer
would be appropriate.




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n.17 (citation omitted).      See D’Ambrosio v. State, 112 Hawai#i

446, 466, 146 P.3d 606, 626 (App. 2006) (concluding that

colorable claim of denial of the right to counsel was presented

and remanding for evidentiary hearing where appellate court was

unable to confirm petitioner’s claims due to lack of relevant

record and transcripts).      Thus, we remand for a Rule 40

evidentiary hearing in which the court is directed to address

whether Petitioner’s due process right to disclosure of adverse

materials was violated by the HPA.

                                    VI.

          In light of our decision to remand the case for an

evidentiary hearing, we also address the significant question of

whether Petitioner received adequate notice of the nature and

purpose of the second hearing.       As stated, due process requires

notice and a meaningful opportunity to be heard.           State v. Bani,

97 Hawai#i 285, 293, 36 P.3d 1255, 1263 (2001).          See HRS § 706-

669(3) (providing that inmates have the right to “reasonable

notice of the [minimum term] hearing” and the opportunity to be

heard on the issue of the minimum term to be served).

          In this case, the record is unclear as to whether

Petitioner received adequate notice of the nature and purpose of

the second hearing.     Following the HPA’s decision to increase

Petitioner’s minimum term from eighteen months to five years, the

HPA explained in its February 22, 2011 letter to Petitioner that



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the second hearing was a “re-opened” hearing to permit the

prosecutor, Complainant and her representative(s) to appear and

give statements.    The HPA informed Petitioner that “[a]s a result

of information provided by both[] the Office of the Prosecuting

Attorney, and the victims at the March 19, 2010 hearing, the

parole board amended their previous decision of October 12,

2009.”   (Emphasis added).

           However, the purpose of the second hearing was not

clear prior to the hearing, as reflected in the statements of its

participants.

           The ambiguity concerning the purpose of the second

hearing began with the prosecutor’s November 23, 2009 letter to

the HPA, which requested that the second hearing be held for the

purpose of permitting Complainant and her family to appear and

submit statements addressing Petitioner.         The prosecutor did not

suggest that Petitioner’s minimum term should be reconsidered or

amended on the basis that Complainant and her family did not

appear or submit statements for the first hearing due to the

“error in communication” with the prosecutor’s office.            To the

contrary, the prosecutor acknowledged that the minimum term had

already been set.

           In Aunt’s December 15, 2009 letter to the HPA, however,

Aunt acknowledged that the minimum term had been set but

requested that the HPA “reconsider” the minimum term and



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specifically requested that the “reconsidered” minimum term be

“at least 3.4 years.”     The HPA initially indicated that the first

minimum term would not be reconsidered, as the HPA responded to

Aunt by assuring her that the minimum sentence did not mean that

Petitioner would be paroled at that time and informing her that

she could resubmit a letter for consideration prior to

Petitioner’s parole hearing.

          Even as the second hearing commenced, it was unclear

whether the second hearing was anything other than a procedural

step to permit Complainant to appear and give testimony.

Chairman Tufono opened the second hearing by explaining that it

had been convened in order to give Complainant and Aunt an

opportunity to be heard.      Defense counsel agreed with this

characterization, stating, “We went through all of their

statements and all the reports and everything else, but, I mean,

I’m sure they have a right to talk.”

          However, as the hearing developed, the primary focus of

the hearing became assessing the “fairness” of the initial

minimum term.   When Aunt testified, she asked the HPA to

“[p]lease make it clear to [Petitioner] that he cannot do what he

did to [Complainant] and walk out of jail in 1.6 months, although

that is even more time than he thought he would do.”

          The prosecutor also made a statement attacking the

initial minimum term, arguing that based on his “19 years” of



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experience as a prosecutor, Petitioner’s minimum term “does not

feel right” and “does not feel as though just punishment . . . is

being meted out.”    The prosecutor concluded by asking the HPA to

“reconsider the previously set minimum in this case.”            This

approach appears to have been a significant departure from the

prosecutor’s November 23, 2009 letter to the HPA, which had

focused on Complainant and her family’s desire to appear before

the HPA and did not suggest that the prosecutor’s office was

dissatisfied with either its participation in the first hearing

or with the First Minimum Term Order.

          Thus when the prosecutor stated at the beginning of the

second hearing that he was present “in a capacity to assist”

Complainant and to answer any of the HPA’s questions, defense

counsel commented that he was “uncomfortable” with that.            Later

when the prosecutor gave his statement, defense counsel expressed

surprise and frustration at the prosecutor’s comments,

interjecting, “This is an outrageous argument,” and “This is

unbelievable.   How does this come in?”

          Additionally, the ambiguity regarding the purpose of

the second minimum term hearing could not have been resolved

based on a consideration of the governing statute, HRS § 706-669.

          The ICA held that “[t]he HPA did not err by holding the

second hearing because the victim was not given notice of the

first hearing and, therefore, was not afforded the opportunity to



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appear at the first hearing and present a written statement or

oral comments, in violation of [HRS] § 706-669(7).”            De La Garza,

SDO at 2 (emphasis added).       This suggests that the first hearing

and the HPA’s First Minimum Term Order violated HRS § 706-669 as

a result of the apparent lack of notice to Complainant regarding

the first hearing.      In addition, the ICA’s holding implies that

Petitioner and defense counsel had adequate notice, based on the

statute, that the second hearing was being held for the purpose

of re-opening and amending Petitioner’s initial minimum term.

            First, as the State concedes, HRS § 706-669 does not

expressly provide for the HPA to subsequently increase a minimum

term fixed by its order.23      Thus, Petitioner would not have had

notice of the nature or purpose of the second hearing under the

express terms of the statute.

            Second, while HRS § 706-669(7) (Supp. 2010) provides

that “[t]he [minimum term] hearing shall be opened to victims or

their designees or surviving immediate family members who may

present a written statement or make oral comments,”24 the statute

does not provide that the victim’s non-appearance or lack of

      23
            HRS § 706-669(5) (Supp. 2010) only provides that “[a]fter sixty
days notice to the prosecuting attorney, the authority in its discretion may
reduce the minimum term fixed by its order pursuant to subsection (1).”
(Emphasis added).

      24
            The statute was amended in 1996 to provide for victims or their
representatives to have the opportunity to comment at minimum term hearings.
Supplemental Commentary on HRS § 706-669 (Supp. 2010). The amendment was
intended to codify the HPA’s existing practice of permitting victims or their
representatives to speak at the hearings. Id.




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testimony at a hearing has the effect of invalidating actions

taken by the HPA pursuant to such hearing.25          Accordingly, the

fact that Complainant was not present at Petitioner’s first

hearing due to an “error in communication” did not render the

hearing or the resulting minimum term order a “violation” of HRS

§ 706-669(7).

            Third, there is no indication that the first hearing

was closed to Complainant or her representatives in a manner that

would amount to a “violation” of HRS § 706-669(7).            Therefore,

Petitioner and defense counsel had no reason to know, based on

HRS § 706-669, that Petitioner’s initial minimum term was subject

to being re-opened and “amended” due to Complainant’s apparent

lack of notification of the first hearing.

            Based on the record, a question arises as to whether

Petitioner received sufficient notice of the purpose and nature

of the second hearing.      As noted, there was a lack of clarity as

to the purpose of the second hearing and its relationship to the

first hearing.     Even on appellate review, it is unclear whether

the second hearing should be characterized as an entirely new and

separate hearing from the first hearing, a re-opened hearing, or

a reconsideration of the first hearing.          Accordingly, the circuit


      25
            Petitioner noted in his reply brief to the ICA that the “victim’s
input and/or presence is not an essential element for the HPA” to determine an
inmate’s minimum term pursuant to HRS § 706-669. Otherwise, Petitioner
argued, “the thousands of minimum term hearings held for defendants by the HPA
without the input or presence [of] the victim” resulted in minimum term orders
that are not “final judgments” and are open to challenge at any time.


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court is also directed on remand to address the issue of whether

Petitioner received adequate notice of the nature of the second

hearing.    See Briones v. State, 74 Haw. 442, 466 n.17, 848 P.2d

966, 978 n.17 (1993); D’Ambrosio v. State, 112 Hawai#i 446, 466,

146 P.3d 606, 626 (App. 2006).

                                     VII.

            As stated, the HPA minimum term hearing is a “critical

stage of a criminal proceeding” at which “a convicted person is

constitutionally entitled to be represented . . . by counsel[.]”26

 D’Ambrosio, 112 Hawai#i at 466, 146 P.3d at 626.

            Petitioner maintained throughout the Rule 40

proceedings and his appeal to the ICA that his constitutional

right to effective assistance of counsel and his right to counsel

were violated by defense counsel’s participation in the second

hearing via telephone.27      The ICA held that it was aware of no

authority “stating that an inmate’s counsel may not appear by

telephone at a minimum term hearing” and affirmed the circuit

court’s denial of this claim.        De La Garza, SDO at 3-4.       In

support of its determination, the ICA explained that defense

      26
            In addition, HRS § 706-669(3)(b) provides that the inmate shall
“be permitted to be represented and assisted by counsel at the hearing.”

      27
            In Hawai#i, in order to show ineffective assistance of counsel,
the defendant has the burden of establishing “1) that there were specific
errors or omissions reflecting counsel’s lack of skill, judgment, or
diligence; and 2) that such errors or omissions resulted in either the
withdrawal or substantial impairment of a potentially meritorious defense.”
State v. Aplaca, 74 Haw. 54, 66-67, 837 P.2d 1298, 1305 (1992) (footnote
omitted).




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counsel “actively participated in the proceedings, including

voicing numerous objections.”        Id. at 4.

            However, active participation in the proceeding does

not itself demonstrate that counsel was not prevented by the

phone arrangement from providing the full benefit of counsel’s

skills.   In Van Patten v. Deppisch, 434 F.3d 1038 (7th Cir.

2006), rev’d, 552 U.S. 120 (2008), the court articulated numerous

reasons for its determination that defense counsel’s

participation in a plea hearing via speaker phone, in the

circumstances of that case, “made it impossible for [the

petitioner] to have the ‘assistance of counsel’ in anything but

the most perfunctory sense.”28       434 F.3d at 1043.      In particular,

the court emphasized that because of the phone arrangement,

“[u]nlike the usual defendant in a criminal case, [the defendant]

could not turn to his lawyer for private legal advice, to clear

up misunderstandings, to seek reassurance, or to discuss any

last-minute misgivings.”       Id.

            In addition, the court noted that “[o]ver a phone line,

it would be all too easy for a lawyer to miss something.”              Id. at


      28
            The Seventh Circuit’s decision to grant the petitioner’s writ of
habeas corpus was reversed by the Supreme Court, which found that the
petitioner failed to establish that the state court unreasonably applied
clearly established federal law by denying the petitioner’s ineffective
assistance of counsel claim pursuant to Strickland v. Washington, 446 U.S. 668
(1984). Wright v. Van Patten, 552 U.S. 120, 125-26 (2008). The Court
explained, “Our precedents do not clearly hold that counsel’s participation by
speaker phone should be treated as a ‘complete denial of counsel,’ on par with
total absence.” Id. at 125. The Court expressly left its “consideration of
the merits of telephone practice . . . for another day.” Id. at 126.




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1045.   For example, counsel’s ability to represent the defendant

would suffer from counsel’s inability to “detect and respond to

cues from his client’s demeanor that might have indicated he did

not understand certain aspects of the proceeding, or that he was

changing his mind.”     Id. at 1043.       Furthermore, the court was

concerned that due to the phone arrangement, “[i]f [the

petitioner] wished to converse with his attorney, anyone else in

the courtroom could effectively eavesdrop.”          Id.   The court noted

that “[n]o advance arrangements had been made for a private line

in a private place, and even if one could ‘perhaps’ have been

provided, it would have required a special request by [the

petitioner] and, apparently, a break in the proceedings.”             Id.

The court thus concluded that “the arrangements under which the

hearing was conducted, with defendant and counsel unable to see

or communicate privately with each other,” prevented the attorney

“by . . . design . . . from providing the full benefit of his

skills[.]”   Id. at 1044.

           Although we need not decide whether defense counsel’s

telephone participation in this case constituted a violation of

Petitioner’s right to counsel or right to effective assistance of

counsel, as the issue was not raised in the Application, we note

that many of the concerns articulated by the Van Patten court

were also present in this case.




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          For instance, Petitioner was not asked whether he

objected to counsel’s participation by speaker phone or preferred

to reschedule the hearing to another date.         Petitioner was also

not informed that he had the option of conferring privately with

counsel during the hearing.

          Furthermore, while Van Patten involved a plea hearing

with no witnesses, in this case witnesses were present at the

second minimum term hearing and the record indicates that

counsel’s representation of Petitioner may have been affected

because of his phone participation.         Petitioner was not given an

opportunity to confer privately with counsel at any time during

the proceedings.    When Aunt made several accusations regarding

Petitioner’s post-sentencing conduct, it appeared that defense

counsel was not expecting such accusations and considered the

remarks to be serious allegations.         Counsel interjected

objections and twice stated that he wished he could be present at

the hearing to question Aunt regarding the accusations.            Despite

the potentially damaging nature of Aunt’s allegations of

Petitioner’s post-sentencing conduct, Petitioner and defense

counsel were not given an opportunity to privately discuss how to

respond to the allegations.      In addition, Petitioner was not

given an opportunity to consult privately with counsel about

whether to address Complainant at the end of the hearing and to

discuss the subject matter of his statement.



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            Moreover, the right to counsel includes the defendant’s

right to confer with counsel.        State v. Mundon, 121 Hawai#i 339,

367, 219 P.3d 1126, 1154 (2009).        In Mundon, the court held that

“a criminal defendant has a constitutional right to confer with

counsel at all stages of his case, including recesses taken

during his testimony.”      Id.   Accordingly, “preventing a defendant

from conferring with his counsel during a recess of any length

would . . . deny his right to assistance of counsel[.]”29            Id.

See also State v. Ulestad, 111 P.3d 276, 278-79 (Wash. Ct. App.

2005) (“defendant’s right to continuously consult with his

counsel during trial” was violated, where counsel was in

adjoining room with child witness and defendant was not provided

with method of constant communication with counsel).

            Thus, while we need not address Petitioner’s right to

effective assistance of counsel or right to counsel claims in

this case, nevertheless counsel’s representation of a client by

phone at a critical stage of the criminal proceeding should not

prevent counsel from providing the full benefit of counsel’s

skills and guidance at a time when they may be most needed.



      29
            The Mundon court clarified that the defendant’s right to confer
with counsel applies “during a routine recess taken during trial proceedings,
. . . except when a request for a non-routine recess for the purposes of
conferring with counsel would, in the discretion of the trial court, interfere
with the orderly and expeditious progress of the trial.” Id. at 368, 219 P.3d
at 1155 (italics in original) (footnote omitted). The dissenting opinion in
Mundon would have held that the right to counsel applies during routine
recesses, without inquiry into the “need” for attorney-client consultation and
without conditioning such consultation upon the defendant’s objection, request
or concern. Id. at 372, 219 P.3d at 1159 (Acoba, J., dissenting).


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                                   VIII.

          Based on the foregoing, we conclude that the circuit

court erred in denying Petitioner’s HRPP Rule 40 petition without

an evidentiary hearing.     Accordingly, the ICA erred in affirming

the circuit court’s July 28, 2011 order denying the petition.

The August 23, 2012 judgment of the ICA and the circuit court’s

order are vacated and the case is remanded to the circuit court

to conduct an evidentiary hearing consistent with this opinion.

                                     /s/ Mark E. Recktenwald

                                     /s/ Paula A. Nakayama

                                     /s/ Simeon R. Acoba, Jr.

                                     /s/ Sabrina S. McKenna

                                     /s/ Richard W. Pollack




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