LHYVZ£§F§KHY
NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER

NO. 30l37
IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAFI

sTATE oF HAwArI, P1aintiff-Appe11ee,
V.
GERALD VILLANUEVA, Defendant-Appellant.

 

APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUITdy
(CR. NO. 96-OO78(2))

SUMMARY DISPOSITION ORDER

(By: Nakamura, C.J., Leonard, Reifurth, JJ.)

In this post-conviction proceeding, Defendant-Appellant
Gerald villanueva (Villanueva) appeals pro se from the following
orders filed by the Circuit Court of the Second Circuit (circuit
court):9

(1) "Order Denying writ of Habeas Corpus Under L1892
Chapter LVII Section 37 Eighth" (Order l), which was filed by the
circuit court on October 5, 2009;

(2) Order denying a document entitled "Writ of Habeas
Corpus[;] Notice of Response to the State of Hawaii Request for"
(Order 2), which was filed by the circuit court on October 6,
2009;

(3) "Order Striking Document Entitled L 1892 Chapter
LVII Section 5; Affidavit of Declaration; Memorandum in Support;
Genealogy" (Order 3), which was filed by the circuit court on
October 8, 2009;

(4) "Order Striking Document Entitled Laws of the
Hawaiian Islands Prior to January 17, 1893" (Order 4), which was
filed by the circuit court on October 8, 2009;

(5) "Order Striking Document Entitled Jurisdiction is
Invoked L 1892 Chapter LVII Sec 5 Et Al." (Order 5), which was
filed by the circuit court on October 8, 2009;

y The Honorable Shackley F. Raffetto presided.

NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER

(6) "Order Striking Document Entitled Common Law venue
Chapter LVII an Act to Reorganize the Judiciary Department Be lt
Enacted by the Queen and the Legislature of the Hawaiian Kingdom"
(Order 6), which was filed by the circuit court on October 8,
2009; and

(7) "Order Striking Document Entitled Notice of
American and Hawaiian Citizenship; Memorandum in Support of
Facts; Declaration of Gerald Villanueva; Exhibit (A), (B);
Genealogy; Certificate of Service" (Order 7), which was filed by
the circuit court on October 8, 2009.

For the reasons discussed below, we affirm in part and
vacate in part Order 1, vacate Orders 2 through 7, and remand the
case for further proceedings.

I.
A.

In Villanueva's underlying criminal case (Cr. NO. 96-
OO78(2)), he was convicted of first degree robbery, in violation
of Hawaii Revised Statutes (HRS) § 708-840 (1993) (Count I);
possession or use of a firearm in the commission of a separate
felony, in violation of HRS 134-6(a) (Supp. 1996) (Count II); and
possession of a prohibited firearm or device, in violation of HRS
§ 134-8 (1993) (Count III), for acts that occurred in 1995. He
was sentenced in 1996 to concurrent terms of imprisonment of
twenty years on Count I, twenty years on Count 1I, and five years
on Count III.

Villanueva appealed from his judgment of conviction and
sentence. In a summary disposition order filed on May 28, 1998,
the HawaFi Supreme Court affirmed the convictions and sentences
for counts I and III and reversed the conviction and sentence for
Count II. State v. Villanueva, NO. 2022O (Hawafi May 28, 1998)
(unpublished). It does not appear that any action was taken by
the circuit court with respect to the reversed conviction

following the disposition by the Hawafi Supreme Court.

NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER

B.

In 2009, villanueva filed a series of documents with
the circuit court.

On August 14, 2009, villanueva filed: (a) a document
entitled "L 1892 Chapter LvII Section 5; Affidavit of
Declaration; Memorandum in Support; Genealogy " (Document 3), in
which he appears to challenge the jurisdiction of the State of
HawaFi to hold him in prison; and (b) a document entitled "Laws
of the Hawaiian Islands Prior to January 17, 1893" (Document 4)
which appears to be in support of Document 3.

On August 18, 2009, villanueva filed: (a) a document
entitled "Jurisdiction is invoked L 1892 chapter LvII Sec 5;
United States Constitution Article III sec. 1; One Supreme Court;
State Constitution Article vI section 1. One Supreme Court;
Organic Act Chapter Iv Section sec. 81. One Supreme Court;
Exhibit "A" case no CL-96-0210-MOO6, Gerald villanueva vs. United
States et. al. (Habeas Corpus)" (Document 5), which appears to be
in support of Document 3; (b)a document entitled "Common Law
venue Chapter LvII An Act to Reorganize the Judiciary Department
Be it enacted by the Queen and the Legislature of the Hawaiian
Kingdom" (Document 6), which appears to be in support of Document
3; and (c) a document entitled "Notice of American and Hawaiian
Citizenship; Memorandum in Support of Facts; Declaration of
Gerald villanueva; Exhibit (A), (B); GenealOgY; Certificate of
Service" (Document 7), which appears to be in support of
Document 3.

The State of Hawafi (State) filed a "Notice of No
Response," stating that unless requested by the circuit court,
the State would not respond to the three documents filed by
villanueva on August 18, 2009. In the Notice of No Response, the
State characterized the August 18 documents as appearing to be "a
non-conforming Petition For Post-Conviction Relief under HawaiU_
Rules of Penal Procedure ("HRPP") Rule 40 . . . ."

NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER

On October 5, 2009, villanueva filed a document
entitled "Writ of Habeas Corpus Under L 1892 Chapter LvII Section
37 Eighth" (Document 1). villanueva appeared to be again'
challenging the jurisdiction of the circuit court to order his
incarceration. Document 1 referenced both Cr. No. 96-OO78(2) and
Cr. No. 05-1-O946. On October 5, 2009, the circuit court filed
Order 1, which instructed the Legal Documents Clerk to forward
filed-stamped copies of Document 1 and Order 1 to the First
Circuit to address matters relating to Cr. No. 05-1-O946. Order
1 provided that the circuit court would accept Document 1 for
filing and address the matters relating to Cr. No. 96-0078(2).
In Order 1, the circuit court summarily denied the request for
writ of habeas corpus contained in Document 1, stating that "the
request is denied as to the case referenced as Cr. No. 96-

OO78 (2) . "

On October 6, 2009, villanueva filed a document
entitled "Writ of Habeas Corpus[;] Notice of Response to the
State of Hawaii Request for" (Document 2), On that same date,
the circuit court denied Document 2 by stamping the document
"DEN1ED."

On October 8, 2009, the circuit court filed Orders 3
through 7, striking Documents 3 through 7. In each of the five
orders, the circuit court stated the basis for striking the
document as follows: "The Court reviewed [the document] and finds
that the document is irrelevant and incompetent."

II.
A.

On appeal, villanueva raises the following arguments:

(1) pThe circuit court erred in striking the documents
filed by villanueva;

(2) The circuit court erred in imposing a sentence of
20 years incarceration;

(3)i The circuit court violated villanueva's

constitutional rights; and

NOT FOR PUBLICATION lN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER

(4) The circuit court did not have jurisdiction over
villanueva, who is a Hawaiian citizen.

In response, the State argues that the circuit court_
was correct in striking the documents because they did not comply
with HawaFi Rules of Penal Procedure (HRPP) Rule 40 (2006). The
State does further state that "in the interests of justice, this
matter should be remanded for villanueva to be resentenced for
only Counts One and Three, with Court [sic] Two to be dismissed."

B. /

It appears from the documents filed by villanueva in
the circuit court that villanueva sought post-conviction relief
based upon his belief that the circuit court lacked jurisdiction
to enter the judgment of conviction and sentence against him in
Cr. No. 96-O078(2). We conclude that villanueva was entitled to
consideration of the issues he raised for post-conviction relief
under HRPP Rule 40 and that the circuit court erred in failing to
consider the documents he filed under HRPP Rule 40.

The review of a decision denying a HRPP Rule 40
petition without a hearing for failure to show a colorable claim
is de nov0. State v. De Guair, 108 Hawafi 179, 187, 118 P.3d
662, 670 (2005). Because we view the documents filed by
villanueva as an attempt to obtain post-conviction relief
pursuant to HRPP Rule 40, we review the decision by the circuit
court to deny and strike those documents de novo.

C.

HRPP Rule 40(c)(2) requires that a nonconforming
petition should be treated as an HRPP Rule 40 petition under
certain conditions. It also sets forth procedures for the
circuit court to follow when treating a nonconforming petition as

an HRPP Rule 40 petition. HRPP Rule 40(c)(2) provides:

(2) NONCONFORMING PETITION. Where a post-conviction
petition deviates from the form annexed to these rules, it
shall nevertheless be accepted for filing and shall be
treated as a petition under this rule provided that the
petition (i) claims illegality of a judgment or illegality
of "custody" or "restraint" arising out of a judgment, (ii)
is accompanied by the necessary filing fee or by a
well-founded request to proceed without paying filing fees,

5

NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER

and (iii) meets minimum standards of legibility and
regularity.

When treating a nonconforming petition as a petition
under this rule, the court shall promptly clarify by written
order that the requirements of this rule apply and, if the
information in the petition is incomplete, may require the
petitioner to file a supplemental petition in the form
annexed to these rules before requiring the state to
respond.

In addition, with respect to the disposition of an

HRPP Rule 40 petition, HRPP Rule 40(g% provides:
(g) Disposition.

(l) IN _FAVOR OF THE PETITIONER. If the Court finds in
favor of the petitioner, it shall enter an appropriate order
with respect to the judgment or sentence in the former
proceeding, or with respect to custody based on such
judgment, and such supplementary orders as to rearraignment,
retrial, custody, bail, discharge or other matters as may be
necessary or proper.

(2) AGAINST THE PETITIONER. The court may dismiss a
petition at any time upon finding the petition is patently
frivolous, the issues have been previously raised and ruled
upon, or the issues were waived. The court may deny a
petition upon determining the allegations and arguments have
no merit.

(3) THE JUDGMENT. The court shall state its findings
of fact and conclusions of law in entering its judgment on
the petition.

The documents filed by villanueva are legible, and they
collectively claimed that the circuit court was without
jurisdiction and therefore the judgment and his custody were
illegal. There has been no indication that villanueva failed to
pay, or did qualify for an exemption from paying, the necessary
filing fee. We conclude that under HRPP Rule 40(c)(2), the
circuit court was required to file villanueva's documents and
treat them as an HRPP Rule 40 petition.

The word "strike" means "[t]o expunge, as from a record
. . . ." Black's Law Dictionarv 1559 (9th ed. 2009). By

striking Documents 3 through 7, the circuit court expunged the

NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFlC REPORTER

documents from the record, effectively undoing their filing
contrary to HRPP Rule 40(c)(2). Instead of striking the
documents, the circuit court should have treated the documents as
a petition for post-conviction relief pursuant to HRPP Rule 40.

villanueva's failure to comply with the requirements of
HRPP Rule 40 should have been corrected by an order instructing
villanueva to abide by that rule, HRPP Rule 40(c)(2). In
addition, the circuit court should have followed HRPP Rule 40(g)
in disposing of villanueva's requests for relief.

III .

Based on the foregoing, it is hereby ordered as
follows:

1. Order 1 is affirmed to the extent that it
instructed the Legal Documents Clerk to forward filed-stamped
copies of Document 1 and Order 1 to the First Circuit to address
matters relating to Cr. No. 05-1-0946 and accepted Document 1 for
filing. Order 1 is otherwise vacated to permit the circuit court
to consider Document 1 pursuant to HRPP Rule 40.

2. Order 2 and Orders 3 through 7 are vacated.

3. On remand, the circuit court is directed to treat
the documents submitted by villanueva collectively as a petition
under HRPP Rule 40 and to consider the documents submitted by
villanueva under HRRP Rule 40. We express no view on the merits
of villanueva's requests for relief.

4. The circuit court shall take appropriate steps to
implement the Hawafi Supreme Court's 1998 decision in Appeal No.
20220, which reversed villanueva's conviction and sentence on
Count II for possession or use of a firearm in the commission of

a separate felony.

NOT FOR PUBLICA'I`ION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER

5. The case is remanded for further proceedings
consistent with this court's summary disposition order.
DATED: Honolulu, Hawafi, June 23, 2010.

On the briefs:

Gerald villanueva §§ ` ;z[
Defendant-Appellant Pro Se '
Chief Judge

    
  

Richard K. Minatoya,

Deputy Prosecuting Attorney
County of Maui

for Plaintiff-Appellee

 

Associate Judge

