  *** NOT FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***



                                                               Electronically Filed
                                                               Supreme Court
                                                               SCWC-XX-XXXXXXX
                                                               08-NOV-2018
                                                               08:01 AM




                             SCWC-XX-XXXXXXX

            IN THE SUPREME COURT OF THE STATE OF HAWAI#I


                               ROY RITA,
                   Petitioner/Petitioner-Appellant,

                                     vs.

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


          CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
              (CAAP-XX-XXXXXXX; S.P.P. NO. 13-1-0001)

                       SUMMARY DISPOSITION ORDER
(By: Recktenwald, C.J., Nakayama, McKenna, Pollack, and Wilson, JJ.)

           Petitioner/Petitioner-Appellant Roy Rita (Rita) seeks

review of the Intermediate Court of Appeals’ (ICA) Judgment on

Appeal, which affirmed the Circuit Court of the Fifth Circuit’s

(circuit court) order denying Rita’s supplemental claims to his

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

for post-conviction relief without a hearing.           We vacate the

ICA’s Judgment on Appeal and remand to the circuit court to hold
  *** NOT FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***


a HRPP Rule 40 evidentiary hearing on Rita’s claim that counsel

were ineffective for failing to challenge the sufficiency of his

indictment.

               On June 17, 2002, Rita was indicted and charged with,

inter alia, one count of continuous sexual assault of a minor

under the age of fourteen years, in violation of Hawai#i Revised

Statutes (HRS) § 707-733.5,1 which stated:
                     During the period between the 7th day of June, 1999
               through the 23rd day of October, 2001, in the County of
               Kauai, State of Hawaii, ROY RITA had recurring access to
               [minor], a minor under the age of fourteen (14) years, and
               did engage in three or more acts of sexual penetration or
               sexual contact with [minor] over a period of time, but while
               [minor] was under the age of fourteen (14) years, thereby
               committing the offense of Continuous Sexual Assault of a
               Minor Under the Age of Fourteen (14) Years, in violation of
               [HRS § 707-733.5].

At the time of trial, the complaining witness was twelve years

old.       The jury found Rita guilty of the continuous sexual assault

charge.2      Rita appealed his conviction, which this court


       1
               HRS § 707-733.5 (Supp. 1997) provided in relevant part:

                     Continuous sexual assault of a minor under the age of
               fourteen years. (1) Any person who:
                     (a)   Either resides in the same home with a minor
                           under the age of fourteen years or has recurring
                           access to the minor; and
                     (b)   Engages in three or more acts of sexual
                           penetration or sexual contact with the minor
                           over a period of time, but while the minor is
                           under the age of fourteen years,
               is guilty of the offense of continuous sexual assault of a
               minor under the age of fourteen years.

                     . . . .

                     (4) Continuous sexual assault of a minor under the age
               of fourteen years is a class A felony.

       2
            The Honorable Clifford L. Nakea presided over the jury trial and
Rita’s first HRPP Rule 40 petition.

                                         2
 *** NOT FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***


affirmed.    State v. Rita, No. 25836, 2004 WL 909731 (Haw. Apr.

29, 2004) (SDO).

            On September 27, 2004, Rita filed his first HRPP Rule

40 petition pro se.3        The circuit court denied Rita’s first HRPP

     3
            HRPP Rule 40 (2006) provides in relevant part:

                  (a) Proceedings and grounds. The post-conviction
            proceeding established by this rule shall encompass all
            common law and statutory procedures for the same purpose,
            including habeas corpus and coram nobis; provided that the
            foregoing shall not be construed to limit the availability
            of remedies in the trial court or on direct appeal. Said
            proceeding shall be applicable to judgments of conviction
            and to custody based on judgments of conviction, as follows:
                  (1) From Judgment. At any time but not prior to final
                  judgment, any person may seek relief under the
                  procedure set forth in this rule from the judgment of
                  conviction, on the following grounds:
                        (i) that the judgment was obtained or sentence
                        imposed in violation of the constitution of the
                        United States or of the State of Hawai#i;

                  . . . .

                  (3) Inapplicability. Rule 40 proceedings shall not be
                  available and relief thereunder shall not be granted
                  where the issues sought to be raised have been
                  previously ruled upon or were waived. 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. There is
                  a rebuttable presumption that a failure to appeal a
                  ruling or to raise an issue is a knowing and
                  understanding failure.

                  . . . .

                  (f) Hearings. If a petition alleges facts that if
            proven would entitle the petitioner to relief, the court
            shall grant a hearing which may extend only to the issues
            raised in the petition or answer. However, the court may
            deny a hearing if the petitioner’s claim is patently
            frivolous and is without trace of support either in the
                                                                 (continued...)

                                      3
  *** NOT FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***


Rule 40 petition without a hearing.            The ICA affirmed the circuit

court’s decision on July 27, 2006.            Rita v. State, No. 27093,

2006 WL 2077565 (App. July 27, 2006) (SDO).              Rita did not apply

for a writ of certiorari to this court.

               On March 6, 2013, Rita filed a second HRPP Rule 40

petition pro se.        The circuit court denied Rita’s second HRPP

Rule 40 petition without a hearing.4            However, on appeal, the ICA

vacated the circuit court’s order.            Rita v. State, No. CAAP-13-

0003270, 2014 WL 1758390 (App. Apr. 29, 2014) (SDO).               The ICA

determined that the circuit court should not have denied Rita’s

second HRPP Rule 40 petition without affording him the benefit of

counsel, and remanded the case “so that [Rita] may receive the

assistance of counsel before disposition of his Rule 40

petition.”

               On November 19, 2014, Rita, now represented by private

counsel, filed a “Supplemental Claims for Relief to Petitioner

Roy Rita’s HRPP Rule 40 Petition for Post Conviction Relief,

Filed on March 6, 2013” (Supplemental Claims Petition) that

further raised two grounds for relief:
                     (a) The court was without jurisdiction as the charge
               failed to state the necessary state of mind in the charge,
               as well as all of the elements of the offense, to wit, that
               the Defendant (Petitioner) and the Complainant were not
               married to each other. . . .


      3
          (...continued)
               record or from other evidence submitted by the petitioner.

      4
            The Honorable Kathleen N.A. Watanabe presided over Rita’s Second
HRPP Rule 40 Petition.

                                         4
 *** NOT FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***



                  . . . .

                  (b) Both trial counsel and appellate counsel were
            ineffective for failing to assert this jurisdictional issue,
            respectively before the trial and appellate courts.

Rita stated that he was raising these claims for the first time

because he “was unaware that the Indictment as drafted by the

State was defective.”

            On February 23, 2015, the circuit court denied Rita’s

Supplemental Claims Petition without a hearing.           The ICA

affirmed.    The ICA concluded that, even assuming arguendo that

Rita’s claims were not waived, Rita’s trial and appellate counsel

were not ineffective for failing to challenge the sufficiency of

Rita’s indictment.

            We interpret Rita’s application for writ of certiorari

to present one question: whether the ICA erred “in failing to

grant [Rita] relief where the indictment fail[ed] to allege facts

sufficient to state an offense[.]”         Specifically, Rita states

that his continuous sexual assault charge “[does not allege a]

factual allegation that Rita and complaining witness were not

married.” (Formatting altered.)        Because it was clear before Rita

was charged that an indictment charging sexual assault of a minor

under the age of fourteen must include the “essential element”

that the defendant be aware that the minor was not married to

him, we conclude that Rita has alleged facts which, if proven,

raise a colorable claim that counsel were ineffective for failing

to challenge the sufficiency of the indictment.           Accordingly, he

                                      5
  *** NOT FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***


is entitled to a HRPP Rule 40 evidentiary hearing on this claim.

See HRPP Rule 40(f).

            In State v. Arceo, this court recited the four elements

of the offense of sexual assault in the third degree pursuant to

HRS § 707-732(1)(b) (“sexual assault of a minor”) that the State

was required to prove in order to establish guilt.5            84 Hawai#i

1, 15, 928 P.2d 843, 857 (1996).          One such requirement was “that

[the defendant be] aware that the Minor was not married to him,

(i.e., the requisite knowing state of mind with respect to the

attendant circumstance implicit in ‘sexual contact’)[.]”6             Id.

(citations omitted).

            It is true that under the post-conviction liberal

construction rule, “we liberally construe charges challenged for

the first time on appeal.”       State v. Wheeler, 121 Hawai#i 383,

399, 219 P.3d 1170, 1186 (2009).          However, we have also stated

that an “accusation must sufficiently allege all of the essential

elements of the offense charged.”          State v. Jendrusch, 58 Haw.

279, 281, 567 P.2d 1242, 1244 (1977) (emphasis added).             “A charge

defective in this regard amounts to a failure to state an


      5
            HRS § 707-732(1)(b) (1993) provided that a person commits the
offense of sexual assault in the third degree if: “(b) The person knowingly
subjects to sexual contact another person who is less than fourteen year old
or causes such a person to have sexual contact with the person[.]”

      6
            A person violates HRS § 707-732(1)(b) (1993) and HRS § 707-733.5
(Supp. 1997) if the person engages in “sexual contact” with a minor under the
age of fourteen.
      “Sexual contact,” as defined in HRS § 707-700 (1993), “means any
touching of the sexual or other intimate parts of a person not married to the
actor . . . .”

                                      6
  *** NOT FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***


offense, and a conviction based upon it cannot be sustained.”

Id.   Because we held in Arceo that an essential element of the

offense of sexual assault of a minor less than fourteen years old

was that the defendant “[be] aware that the Minor was not married

to him,” and Rita’s continuous sexual assault of a minor charge

failed to state that essential element, the charge was fatally

defective under Jendrusch.7

            Additionally, it was clear at the time Rita was charged

that an indictment failing to state a mens rea was fatally

defective.    Accordingly, Rita has also alleged facts, which if

proven, raise a colorable claim that his trial and appellate

counsel were ineffective for failing to challenge the sufficiency

of the indictment on this basis.8

            In Jendrusch, we stated that an essential element of an

offense under the relevant criminal provision was “an intent or a

reckless disregard,” i.e., the requisite state of mind.             Id. at


      7
            It is true that a minor under the age of fourteen years cannot
marry in this state. HRS § 572-1(2) (Supp. 1997). However, HRS § 572-3
(Supp. 1994) also provided that “[m]arriages between a man and a woman legal
in the country where contracted shall be legal in the courts of this state.”
Therefore, it is possible that a minor under the age of fourteen could be
legally married.

      8
             While Rita did not argue on certiorari that counsel were
ineffective for failing to challenge the sufficiency of his indictment for
omitting the requisite mens rea, this court may recognize plain error not
presented pursuant to Hawai#i Rules of Appellate Procedure (HRAP) Rule
40.1(d)(1) when the error affects substantial rights. State v. Miller, 122
Hawai#i 92, 100, 223 P.3d 157, 165 (2010).
             Here, because the Hawai#i Constitution and our case law required
at the time that Rita was charged that the requisite mens rea be alleged in an
indictment, the ICA’s conclusion that counsel were not ineffective for failing
to challenge the sufficiency of the indictment affected Rita’s substantial
rights, and may therefore be reviewed for plain error.

                                      7
  *** NOT FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***


281, 567 P.2d at 1244.      Even if we later stated in State v.

Nesmith that the mens rea is not an “element of an offense,” we

nevertheless concluded that state of mind requirements needed to

be charged in a complaint “to alert the defendants of precisely

what they needed to defend against to avoid a conviction.”              127

Hawai#i 48, 56, 276 P.3d 617, 625 (2012) (citing State v. Elliot,

77 Hawai#i 309, 311-12, 884 P.2d 372, 374-75 (1994)).

            We conclude that Rita’s continuous sexual assault

charge, which omitted the state of mind requirement, may not have

alerted Rita to what he needed to defend against to avoid a

conviction.    Pursuant to HRS § 702-204 (1993), a person would

need to “intentionally, knowingly, or recklessly” engage in three

or more acts of sexual penetration or sexual contact with a minor

while the minor is under the age of fourteen years to violate HRS

§ 707-733.5 (Supp. 1997).

            That language is missing from Rita’s indictment.

Additionally, there is no evidence in the record to clearly

demonstrate that Rita or Rita’s counsel had knowledge of the

requisite state of mind at trial.9        In opening statements and

closing arguments at trial, the State and defense counsel


      9
            The ICA noted that because jury instructions stated that one of
the four elements of a continuous sexual assault of a minor charge was “[t]hat
the Defendant intentionally or knowingly engage in three or more acts of
sexual contact with [the minor],” the record indicated that Rita was aware of
the requisite state of mind. However, being told of the requisite mens rea
while jury instructions are read would not have sufficiently “alert[ed] [Rita]
of precisely what [he] needed to defend against to avoid a conviction,” as his
counsel would have already presented closing argument. See Elliot, 77 Hawai#i
at 311-12, 884 P.2d at 374-75.

                                      8
  *** NOT FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***


disputed the credibility of the complaining witness and did not

discuss the requisite state of mind.         Therefore, the due process

requirement under article I, section 14 of the Hawai#i

Constitution, i.e., that “the accused . . . be informed of the

nature and cause of the accusation,” does not appear to be

satisfied.    State v. Israel, 78 Hawai#i 66, 71, 890 P.2d 303, 308

(1995) (“[I]n order for a defendant’s article I, section 14 right

to be deemed satisfied . . . the record must clearly demonstrate

the defendant’s actual knowledge.”).

            Had Rita’s trial counsel challenged the sufficiency of

Rita’s indictment at trial, or had Rita’s appellate counsel

similarly challenged the sufficiency of the indictment on direct

appeal, his conviction would have been vacated.            See Elliot, 77

Hawai#i at 312-13, 884 P.2d at 375-76.         Therefore, Rita has

identified a specific error or omission by counsel that “resulted

in the withdrawal or substantial impairment of a potentially

meritorious defense.”      Maddox v. State, 141 Hawai#i 196, 202, 407

P.3d 152, 158 (2017).10

            Because Rita has presented facts that, if true, assert

a colorable claim that his trial and/or appellate counsel was


      10
             We respectfully disagree with the ICA that counsel’s alleged
failure to challenge the deficiency of the indictment did not result in the
withdrawal or substantial impairment of a potentially meritorious defense
because the State “would have been able to re-file Rita’s indictment.” Here,
Rita has alleged that counsel failed to assert his constitutional right to be
informed of the nature and cause of the accusation against him. See Israel,
78 Hawai#i at 71, 890 P.2d at 308. “An accused’s potentially meritorious
defenses include the assertion of his constitutional rights.” Briones v.
State, 74 Haw. 442, 462, 848 P.2d 966, 976 (1993).

                                      9
  *** NOT FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***


ineffective, he is entitled to a HRPP Rule 40 evidentiary hearing

on grounds A and B of his Supplemental Claims Petition.11

           Accordingly, we vacate the ICA’s March 20, 2018

Judgment on Appeal and remand to the circuit court to hold a HRPP

Rule 40 evidentiary hearing on Rita’s claim that counsel were

ineffective for failing to challenge the sufficiency of his

indictment.

           DATED:    Honolulu, Hawai#i, November 8, 2018.

Emmanuel G. Guerrero                   /s/ Mark E. Recktenwald
for petitioner/petitioner-
appellant                              /s/ Paula A. Nakayama

Tracy Murakami                         /s/ Sabrina S. McKenna
for respondent/respondent
appellee                               /s/ Richard W. Pollack

                                       /s/ Michael D. Wilson




      11
            Because Rita filed his first HRPP Rule 40 petition pro se, his
claim that he was unaware that his indictment was fatally defective at that
time, suggests that Rita did not have any opportunity to raise this issue
previously. This further indicates that Rita did not waive this claim. See
De La Garza v. State, 129 Hawai#i 429, 443, 302 P.3d 697, 711 (2013); HRPP
Rule 40(a)(3).

                                     10
