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                                                              Electronically Filed
                                                              Supreme Court
                                                              SCWC-11-0000592
                                                              14-FEB-2014
                                                              02:25 PM




           IN THE SUPREME COURT OF THE STATE OF HAWAI#I

                                ---o0o---



      ERWIN E. FAGARAGAN, Petitioner/Petitioner-Appellant,

                                    vs.

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


                            SCWC-11-0000592

         CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-11-0000592; SPP NO. 11-1-0005(1) (CR. NOS. 04-1-0595(1) and
                          05-1-0090(1)))

                           February 14, 2014

    ACOBA, McKENNA, AND POLLACK, JJ., WITH RECKTENWALD, C.J.,
             DISSENTING, WITH WHOM NAKAYAMA, J. JOINS

                OPINION OF THE COURT BY POLLACK, J.

          Petitioner/Petitioner-Appellant Erwin E. Fagaragan

(Fagaragan) seeks review the Intermediate Court of Appeals’ (ICA)
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October 18, 2012 Judgment on Appeal (ICA Judgment) filed pursuant

to its September 19, 2012 Summary Disposition Order (SDO), which

affirmed the Circuit Court of the Second Circuit’s (circuit

court) July 18, 2011 Findings of Fact, Conclusions of Law, and

Order Denying the Rule 40 Petition for Post-Conviction Relief

(Order Denying Rule 40 Petition).

            For the reasons set forth herein, we vacate the ICA

Judgment, and remand the case to the circuit court to enter an

order (1) vacating its Order Denying Rule 40 Petition, and (2)

directing the Hawaii Paroling Authority to hold a new minimum

term hearing under Hawai#i Revised Statutes (HRS) 706-669 (Supp.

2011).

                                      I.

A.    Prior Underlying Criminal Proceedings and Appeals

            1.    Cr. No. 04-1-0595(1)

            In Cr. No. 04-1-0595(1), Fagaragan was convicted of

unauthorized control of a propelled vehicle, HRS § 708-836

(Supp. 2005)1 (Count I); promoting a dangerous drug in the first




      1
            HRS § 708-836 (Supp. 2005) Unauthorized control of propelled
vehicle provides in relevant part:

            (1) A person commits the offense of unauthorized control of a
            propelled vehicle if the person intentionally or knowingly
            exerts unauthorized control over another’s propelled vehicle
            by operating the vehicle without the owner’s consent or by
            changing the identity of the vehicle without the owner’s
            consent.

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degree, HRS § 712-1241(1)(a)(i) (Supp. 2005)2 (Count II);

prohibited acts relating to drug paraphernalia, HRS § 329.43.5(a)

(Supp. 2005)3 (Count IV); and promoting a detrimental drug in the

third degree, HRS § 712-1249(1) (Supp. 2005)4 (Count V).                The

charges stemmed from Fagaragan’s arrest for driving a stolen

vehicle and his possession of 33 grams of methamphetamine,

marijuana, and paraphernalia.         The circuit court sentenced him to

twenty years imprisonment in Count II, five years imprisonment in

Counts I and IV, and thirty days imprisonment in Count V, all

terms to run concurrently to one another.



      2
            HRS § 712-1241 (Supp. 2005) Promoting a dangerous drug in the
first degree provides in relevant part:

            (1) A person commits the offense of promoting a dangerous
                drug in the first degree if the person knowingly:

                  (a) Possesses one or more preparations, compounds,
                      mixtures, or substances of an aggregate weight of:

                        (i)   One ounce or more, containing heroin,
                              morphine, or cocaine or any of their
                              respective salts, isomers, and salts of
                              isomers;

      3
            HRS § 329-43.5 (Supp. 2005) Prohibited Acts Related to Drug
Paraphernalia provides in relevant part:

            (a) It is unlawful for any person to use, or to possess with
            intent to use, drug paraphernalia to plant, propagate,
            cultivate, grow, harvest, manufacture, compound, convert,
            produce, process, prepare, test, analyze, pack, repack, store,
            contain, conceal, inject, ingest, inhale, or otherwise
            introduce into the human body a controlled substance in
            violation of this chapter.

      4
            HRS § 712-1249 (Supp. 2005) Promoting a Detrimental Drug in the
Third Degree provides in relevant part:

            (1) A person commits the offense of promoting a detrimental
            drug in the third degree if the person knowingly possesses any
            marijuana or any Schedule V substance in any amount.


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            Fagaragan appealed the convictions.          The ICA issued an

SDO affirming the circuit court’s judgment of conviction.

            2.    Cr. No. 05-1-0090(1)

            In Cr. No. 05-1-0090(1), Fagaragan was found guilty of

promoting a dangerous drug in the first degree, HRS § 712-

1241(1)(a)(i) (Supp. 2005) (Count I); attempted promoting a

dangerous drug in the first degree, HRS § 712-1241(1)(b)(ii)(A)

(Supp. 2005)5 (Count II); and prohibited acts relating to drug

paraphernalia, HRS § 329.43.5(a) (Supp. 2005) (Count III).                   The

charges arose out of a traffic stop in which Fagaragan’s vehicle

was searched and two bags were recovered that contained 28

packets of methamphetamine totaling 5.46 ounces and

paraphernalia.     The circuit court sentenced Fagaragan to twenty

years imprisonment in Counts I and II, and five years

imprisonment in Count III, all terms to run concurrently with




        5
            HRS § 712-1241(1)(b)(ii)(A) (2005 Supp.) provides in relevant
part:

            (1)  A person commits the offense of promoting a dangerous
            drug in the first degree if the person knowingly:
                  . . . .
                  (b) Distributes, except for methamphetamine:
                        . . . .
                        (ii)  One   or   more  preparations,   compounds,
                              mixtures, or substances of an aggregate
                              weight of:
                              (A) One-eighth ounce or more, containing
                                    heroin, morphine, or cocaine or any of
                                    their respective salts, isomers, and
                                    salts of isomers[.]




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each other and concurrently with the prison terms imposed in Cr.

No. 04-1-0595(1).

            Fagaragan appealed the convictions.          The ICA held that

Fagaragan’s convictions in Counts I and II constituted multiple

punishments for the same conduct, as the attempted distribution

offense was based solely on possession of the same contraband

that formed the basis of the possession offense.             State v.

Fagaragan, 115 Hawai#i 364, 370, 167 P.3d 739, 745 (2007).

            In order to remedy the “improper imposition of multiple

punishments,” the ICA reversed the conviction in Count II because

the circuit court had failed to instruct the jury upon a

requisite state of mind for an element of the attempted

distribution offense in Count II.           Id. at 372, 167 P.3d at 747.

The ICA affirmed the convictions in Counts I and III.              Id.

B.    HPA’s Minimum Term Hearings

            On May 21, 2007, Fagaragan and his counsel appeared

before the Hawaii Paroling Authority (HPA) for a consolidated

hearing to set his minimum terms of imprisonment for Cr. No. 04-

1-0595(1) and No. 05-1-0090(1).         On the same day, the HPA issued

its Notice and Order of Fixing Minimum Term(s) of Imprisonment

(HPA Order 1), which included the offenses from both criminal

numbers.    The minimum terms ordered by the HPA were as follows:




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Crime Number     Count   Offense 6             Maximum      Minimum
04-1-595(1)        I     UCPV                  5 yrs        5 yrs
04-1-595(1)        II    PDD-1                 20 yrs       20 yrs
04-1-595(1)        IV    Paraphernalia         5 yrs        5 yrs
05-1-0090(1)       I     PDD-1                 20 yrs       20 yrs
05-1-0090(1)       II    Att. PDD-1            20 yrs       20 yrs
05-1-0090(1)       III   Paraphernalia         5 yrs        5 yrs
05-1-0090(1)       II    Att. PDD-1            20 yrs       20 yrs
05-1-0090(1)       III   Paraphernalia         5 yrs        5 yrs


               The HPA categorized Fagaragan as a Level III offender

based on the criteria of “Nature of Offense.”7

               On April 23, 2008, following the reversal by the ICA of

Fagaragan’s conviction in Count II in Cr. No. 05-1-0090(1), the

HPA held a second hearing to reset Fagaragan’s minimum terms.

The hearing only pertained to Fagaragan’s convictions in the Cr.

No. 05-1-0090(1) case.       On April 26, 2008, the HPA issued a

Notice and Order of Fixing Minimum Term(s) of Imprisonment (HPA

Order 2) resetting Fagaragan’s terms in Cr. No. 05-1-0090(1) to

the identical terms that had previously been imposed:

Crime Number     Count   Offense               Maximum      Minimum
05-1-0090(1)       I     PDD-1                 20 yrs       20 yrs
05-1-0090(1)       III   Paraphernalia         5 yrs        5 yrs




      6
            The abbreviations used by HPA are stated as follows: UCPV for
“unauthorized control of a propelled vehicle”; PDD-1 for “promoting a
dangerous drug in the first degree”; Paraphernalia for “prohibited acts
related to drug paraphernalia”; and Att. PDD-1 for “attempted promoting
dangerous drug in the first degree.”

      7
            The HPA utilizes six criteria in determining the level of
punishment for a Level III offender in any given case. The three primary
criteria that generally receive the greatest weight include: Nature of
Offense, the Degree of Injury/Loss to Person or Property, and the Offender’s
Criminal History. The HPA Guidelines require the Order Establishing Minimum
Terms of Imprisonment to include the significant criteria upon which the
decision was based.


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              The HPA continued to categorize Fagaragan as a Level

III offender, despite the ICA’s reversal of Fagaragan’s

conviction in Count II, again based on the sole criteria of

“Nature of Offense.”

              A May 5, 2008 date-stamp on HPA Order 2 indicates that

a copy was “served to the prisoner” by mail.

C.         Fagaragan’s Rule 40 Petitions

              1.    S.P.P. No. 08-1-0009(1): First Petition

              On June 18, 2008, Fagaragan, pro se, filed a Petition

For Post-Conviction Release Pursuant to Hawai#i Rules of Penal

Procedure Rule 40 (First Petition), alleging five grounds as a

basis for relief in connection with Cr. No. 05-1-0090(1).8

      8
              In his First Petition, Fagaragan alleged the following five
grounds:

              1. Illegal Search and Seizure conducted by officers without
              first obtaining a search warrant prior to entering the
              vehicle received into evidence. This illegal search of
              vehicle by K-9 Unit raises a Fourth Amendment violation
              protected by the United States Constitution.

              2. Petitioner had been charged and convicted by a jury for
              the same alleged offense or offenses twice, thereby
              violating petitioner’s Fifth Amendment right which protects
              an accused of being charged twice for the same offense.

              3. In petitioner’s first jury trial the State presented
              someone else[’]s evidence to the court. The question
              presents itself, did the Maui Police Department mixed up the
              evidence held, and convicted petitioner on grounds of false
              evidence? An accused has to be found guilty beyond a
              reasonable doubt prior to this person receiving a guilty
              verdict. This is not the case herein, thereby the court
              stands in violation of a Due Process violation which is
              guaranteed an accused under the Fourteenth Amendment to the
              Constitution.

              4. Conviction of Attempted Promotion of Controlled Substance
              is over reaching and without merit in this case.
                                                                  (continued...)

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            The Petition did not reference or challenge HPA Order

2, which had reset the minimum terms of imprisonment in Count I

at 20 years and Count III at 5 years.         Fagaragan’s return address

on the First Petition indicates he was incarcerated in Eloy,

Arizona.

            On June 25, 2008, the circuit court issued its Findings

of Fact, Conclusions of Law, and Order Denying Post-Conviction

Relief Pursuant to Hawai#i Rules of Penal Procedure Rule 40

(Order Denying First Petition).        The circuit court concluded: the

illegal search issue was previously raised before the trial court

on a motion to suppress; the double jeopardy issue was raised on

appeal (and Fagaragan prevailed on that point, making it moot);

and every other issue Fagaragan raised in his Rule 40 petition

could have been raised on appeal but was not, and was thus

waived.    The circuit court therefore denied the First Petition

without a hearing.

            Fagaragan appealed the Order Denying First Petition to

the ICA.    Fagaragan’s arguments on appeal were largely identical


     8
     (...continued)
          5. There was no foundation laid as to the proper working
          order of the instruments used by the Maui Police Department
          in the testing of alleged uncontrolled substance)s) which
          ultimately were used to convict petitioner herein.

            6. The entire conviction herein is illegal, as petitioner
            had to be found guilty beyond a reasonable doubt, which has
            not been the case in this jury trial and said conviction
            must be remanded for the overturning of said sentence, and
            petitioner must be released from custody at once.




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to his arguments in his First Petition, with the exception of a

newly raised claim for ineffective assistance of appellate

counsel (IAC).    The ICA held that because Fagaragan did not

initially raise the ineffective assistance claim in the First

Petition, the issue would be disregarded pursuant to Hawai#i

Rules of Appellate Procedure (HRAP) 28(b)(4).          Fagaragan v.

State, No. 29281, 121 Hawai#i 178, 2009 WL 2608463, at *1, *3

(App. Aug. 26, 2009) (SDO).      With respect to the other issues

raised, the ICA affirmed the Order Denying First Petition.             Id.

at *2-*3.    Fagaragan filed an application for writ of certiorari,

which this court denied.      Fagaragan v. State, No. 29281, 2010 WL

374737 (Haw. Jan. 20, 2010).

            2.   S.P.P. No. 11-1-0005(1): Second Petition

            On May 11, 2011, Fagaragan, pro se, filed a Petition to

Vacate, Set Aside, or Correct Judgment or to Release Petitioner

for (sic) Custody (Second Petition) with respect to Cr. Nos. 04-

1-0595 and 05-1-0090.     The return address of the Second Petition

indicates that Fagaragan was incarcerated in “CCA-Saguaro” Eloy,

Arizona.    In the Second Petition, Fagaragan contended that the

HPA had violated the 5th, 6th, 8th, and 14th Amendments to the

United States Constitution as well as the State of Hawai#i

Constitution.

            In response to question 11(e) of the Second Petition,

“If you did not appeal from the adverse action on any petition,

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application or motion, explain briefly why you did not,”

Fagaragan responded that he “thought that HPA would grant me a

new hearing based that they violated others rights which the ICA

and Supreme Court stated but they would not listen to them[.]”

          In response to question 13 of the Second Petition, “If

any of the grounds listed 12A, B, C, and D were not previously

presented, state briefly what grounds were not so presented, and

your reasons for not presenting them,” Fagaragan answered that he

“thought that HPA would correct their errors but did not even

though the ICA-Supreme Court ordered that the prior sentences

were illegal.”

          Fagaragan continued, “HPA should have corrected their

erros [sic] violations without me submitting this but they

continue to violate my rights.”

          In his Memorandum in Support of his Rule 40 petition,

Fagaragan asserted that the HPA acted arbitrarily and

capriciously in: (1) failing to follow their guidelines by not

including the “Degree of Injury/Loss To Person or Property” and

“Criminal History” criteria; (2) categorizing him as a Level III

offender, in light of an absence of criminal history; and (3)

subsequently setting his minimum term at 20 years, in violation

of equal protection.     Fagaragan argued that he should not have

received Level III punishment as “no-one during trial testified

that he sold or did any such act” of being involved in the


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“manufactor [sic], importation or distribution of drugs.”

Fagaragan attached both the First and Second HPA Order as

exhibits to the Second Petition and contended that HPA

“[a]rbitrarily and [c]apriciously” violated petitioner’s rights

not once, but twice.”     Fagaragan’s requested relief was for the

HPA to categorize him as a Level I or II offender and correctly

reset a new minimum term.

           On June 14, 2011, the State filed its Answer to

Petition to Vacate, Set Aside, or Correct Judgment or to Release

Petitioner From Custody (Response).        The State argued that

Fagaragan waived the issues presented in his Second Petition for

failing to raise them in his First Petition.          The State noted

that Fagaragan had not submitted any evidence of “extraordinary

circumstances to justify his failure to previously raise the

issues.”

           In response to Fagaragan’s claim that the HPA violated

his procedural and substantive due process rights, the State

argued that Fagaragan received all the process that he was due

because the HPA held a fair hearing to reset his minimum term,

and Fagaragan had no constitutional right to parole or a

reduction of a minimum term of imprisonment and release from

custody.

           Moreover, the State argued that the HPA properly

categorized Fagaragan as a Level III offender and had not acted


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“arbitrarily or capriciously so as to give rise to a due process

violation.”   In support of its position, the State pointed out

that: (1) Fagaragan’s actions fit the significant criteria under

Level III, “Nature of Offense,” in the HPA Guidelines For

Establishing Minimum Terms of Imprisonment, July 1989 (HPA

Guidelines); (2) Fagaragan was previously convicted and sentenced

under FC No. 02-1-0995; and (3) the HPA’s findings indicated that

Fagaragan fit the significant criteria of “Character and Attitude

of Offender With Respect to Criminal Activity or Lifestyle;” and

he “deserved the category of Level III.”

          Fagaragan filed a reply brief (Rule 40 Reply).            As to

the State’s argument that he waived his claims, Fagaragan stated

that HPA had not “corrected their errors prior to him filing his

initial petition”:

          As to the States [sic] first argument as to why his petition
          should be denied is because he failed to properly argue this
          on his initial HRPP Rule 40 petition. However this is not
          so. HPA failed to correct their errors prior to him filing
          his initial petition. Had HPA fixed the problem in the
          first place he would not have argued this   . . . The
          Intermediate Court of Appeals and Supreme Court State of
          Hawaii ordered HPA to correct their errors which they refuse
          to do.


(Emphasis added).

          In addition, Fagaragan argued that he did not waive his

challenge to his minimum term for having failed to raise the

issue in the First Petition because the “grossly inadequate law

library” did not have a copy of Coulter v. State, 116 Hawai#i

181, 172 P.3d 493 (2007), in the legal books or on LEXIS at the

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time Fagaragan filed his First Petition.           Fagaragan also

reiterated that he was a Level I (or II) offender because,

contrary to what the State argued, the instant drug offenses were

Fagaragan’s “first ever criminal conviction,” FC No. 02-1-0995

having been previously dismissed.

            The circuit court, without holding a hearing, issued

its Findings of Fact, Conclusions of Law, and Order denying Rule

40 Petition for Post-Conviction Relef.9          The circuit court

concluded that Fagaragan waived his claims in the Second Petition

for not including them in his First Petition, failed to “prove

the existence of extraordinary circumstances to justify [his]

failure to raise the issues previously,” and therefore “failed to

rebut the presumption and has waived the claims” in the Second

Petition.     Additionally, the court held that Fagaragan’s

allegations even if taken as true, do not entitle him to relief.

Therefore, the circuit court concluded that Fagaragan failed to

present a colorable claim, the claims were “patently frivolous,”

and were without support in the record.           Fagaragan timely

appealed.

D.   Intermediate Court of Appeals

            1.   Opening Brief

            Fagaragan raised, inter alia, the following points of

error:


      9
            The Honorable Rhonda I. L. Loo presided.

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          a.) Whether the courts erred in denying petitioner his Rule
          40 without a hearing which he did have colorable grounds for
          relief.

          b.) Whether HPA did violate petitioner’s 5 th, 6 th, 8 th and
          14 th Amendments to the US Constitution when HPA failed to
          comply with their own statutorily required procedural
          requirements/guidelines when they failed to list all the
          special criteria’s as mandated by HRS § 706-669(8).

          c.) Whether HPA violated petitioner’s 5 th, 6 th, 8 th and 14 th
          Amendments to the US Constitution when they illegally
          assessed him as a Level III Offender which per guidelines he
          should have been assessed as a Level I or at the most Level
          II Offender due to this being his first ever conviction and
          imprisonment and due to his offenses not being classified as
          serious which no person received any type of injuries for
          crimes of drugs .10


          In support of his first and second points of error,

Fagaragan argued that he had a colorable claim for Rule 40 relief

because he demonstrated that HPA utilized only one criteria

(“Nature of Offense”) in setting his minimum term rather than all

three significant criteria, the other two criteria being

“Criminal History” and “Character and Attitude of Offender With

Respect to Criminal Activity or Lifestyle,” in violation of

Coulter, 116 Hawai#i 181, 172 P.3d 493 (2007).             Further,

Fagaragan argued that HPA should have utilized all six

     10
          Fagaragan also presented two additional points of error:

          d.) Whether HPA acted arbitrarily or capriciously when they
          failed to properly follow their guidelines thus violating
          his 5 th, 6 th, 8 th, and 14 th Amendments under the Equal
          Protection Clause which others had received lesser prison
          sentences which they were convicted of 4-5-6 times for the
          same offenses and the being petitioner’s first ever
          conviction.

          e.) Whether petitioner’s claims warrents [sic] Habeas
          Relief which HPA and the courts violated his US
          Constitutional rights under the 5 th, 6 th, 8 th, and 14 th
          Amendments.


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significant criteria when establishing his minimum term, and it

did not.

            In support of his third point of error, Fagaragan

argued that he did not fit the criteria for categorization as a

Level III Offender and was, at most, a Level I or II Offender.

This was because, according to Fagaragan, as to the nature of the

offense, his crimes were not “cruel and callous” or “against the

elderly, handicap and or minor,” and he “did not distribute or

import or cultivate drugs[.]”       As to the degree of injury and/or

loss, Fagaragan asserted that he did not rape or murder or

otherwise cause injury to anyone.         As to his criminal history,

Fagaragan argued he had “no prior convictions.”

            In conclusion, Fagaragan requested that the ICA “grant

him his petition and order HPA to conduct a new hearing” before

the HPA to have his minimum term reset as a Level I or II

Offender.

            2.   Answering Brief

            In its Answering Brief, the State argued that Fagaragan

waived the claims raised in his Second Petition by knowingly and

understandingly not raising them in his First Petition without

submitting any evidence of extraordinary circumstances to justify

his failure to raise those claims.         Specifically, the State

argues that Fagaragan had “ample opportunity to raise any

challenges to his May 21, 2007 minimum term order or his April


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23, 2008 minimum term order therein, but waited until the instant

Petition, filed on May 11, 2011, to make his claims.”

           The State nonetheless went on to address the merits of

Fagaragan’s points of error.       As to Fagaragan’s first and second

points of error (that the HPA was required to utilize three

criteria or six significant criteria), the State countered that

the case law Fagaragan cited did not support his argument that

the HPA had to point to more than just the         “Nature of Offense”

significant criteria to justify its Level III categorization.

           The State explained that Hopkins v. State, No. 29816

(App. Apr. 29, 2010)(SDO), and DeWayne Asuega v. State, S.P.P.

No. 09-1-0012 (available on Ho#ohiki under Case ID 1PR091012

under “Court Minutes,” entries 5 through 8), involved cases where

the HPA could not have just relied on one factor, “Degree of

Injury and/or Loss,” in determining that an inmate was a Level

III Offender, because the degree of injury and/or loss is the

same in any case involving theft of over $20,000 (Hopkins) or

negligent homicide (Asuega); therefore, the HPA must have used

other criteria in determining Level III status that it did not

specify.

           Additionally, the State argued that Coulter did not

hold that the HPA’s failure to indicate the level of punishment

and significant criteria in a minimum term order is a

constitutional violation.


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            As to Fagaragan’s third point of error (that he should

not be categorized as a Level III Offender), the State responded

that Fagaragan met Level III criteria under “Nature of Offense”

based on the amount of drugs he possessed, and the other prongs

under that criteria (that the crime was callous and cruel or that

it was against a certain class of victims) were irrelevant.

Further, the State argued that, under “Nature of Offense,”

Fagaragan fared poorly with regard to his “Character and Attitude

of Offender With Respect to Criminal Activity,” justifying a

Level III categorization.      Additionally, the State argued that

Fagaragan also fared poorly under the categories “Efforts Made to

Live a Pro-Social Life Prior to Commitment to Prison” and

“Involvement of the Offender in the Instant Offense(s).”            Lastly,

the State argued that Fagaragan was previously convicted and

imprisoned in FC No. 02-1-0995 and asked the ICA to take judicial

notice of those court records.       The State asserted that all of

these factors justified the HPA’s determination that Fagaragan

fit the characterization of a Level III Offender.

            3.   Reply Brief

            In Fagaragan’s Reply Brief, Fagaragan argued that he

did not waive his claim that the HPA erred in its Order resetting

his minimum terms by failing to raise the issue in his First

Petition.    He explained that, “HPA failed to correct their errors

prior to him filing his initial petition.”         Fagaragan stated that


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he had never received HPA’s Order until after filing his First

Petition:

            The State argues at pg 21 that petitioner did not object to
            HPA’s decision. How absurb!! Ridoulas!! HPA saw petitioner
            April-May 2008. HPA did not give their decision until 90
            plus days later. How could he object the same day of
            hearing?

            Had petitioner receive response same day, he would have
            objected and argued this in his First Petition. Now the
            State says, “Hey you failed to raise this issue on First
            Petition and now it should be dismissed.”

            Petitioner’s Added New Claim Against HPA for the Violation
            of His Due Process Rights

            HPA and State prosecutors violated petitioner’s due process
            rights when they did not give full notice of Petitioner’s
            sentence on the on the day of hearing, thus denying him the
            right to appeal HPA’s decision on a timely matter.

            Facts: HPA and the State violated petitioner’s rights to
            further appeal H.P.A.’s decision when they illegally imposed
            a sentence of 20 yrs out of 20 yrs. HPA saw petitioner on
            April 2008, then serving him their response 90 plus days
            later, thus denying him the right to add this claim on his
            first Rule 35-40 Petition.


Fagaragan also pointed to a grossly inadequate law library as an

extraordinary circumstance justifying his failure to previously

raise the illegal procedures which HPA conducted during the

setting of his minimum term of imprisonment.

            Fagaragan reiterated his earlier contentions that: (1)

HPA deviated from its Guidelines by failing to list all three

criteria on his minimum term order; and (2) Coulter, Asuega,

Hopkins, and Williamson all stand for the proposition that a new

hearing is required if HPA lists anything less than all three (or

six) criteria.




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          Fagaragan responded to the points made in the State’s

Answering Brief.    Fagaragan first disputed the State’s claim that

he has a prior conviction in FC No. 02-1-0995, asserting that the

case was dismissed.     Fagaragan next argued that the State cannot

use “Character and Attitude of Offender with Respect to Criminal

Activity,” “Efforts to Live a Pro-Social Life Prior to Prison,”

and “Involvement of Offender” as justifying his Level III status,

as none of these criteria were listed on HPA’s minimum term

order.

          4.   Summary Disposition Order

          In its SDO, the ICA affirmed the trial court’s Findings

of Fact, Conclusions of Law, and Order Denying Rule 40 Petition

for Post-Conviction Relief.      The ICA found that Fagaragan “could

have, but did not, challenge the HPA’s fixing of the minimum

terms of imprisonment on his convictions.”         Thus, the ICA

concluded that Fagaragan “waived all the issues he raises in his

Petition” for failing to raise them in his prior Rule 40 Petition

without any showing of extraordinary circumstances justifying his

failure, and the “Circuit Court did not err in denying his

Petition without a hearing.”       The ICA further concluded that “in

any event,” Fagaragan’s arguments on appeal “lack merit,” as

Fagaragan’s promoting dangerous drug in the first degree

convictions involved the manufacture, importation, distribution

or cultivation of substantial quantities of drugs:


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            The HPA’s “Guidelines for Establishing Minimum Terms of
            Imprisonment” (Guidelines) include under the criteria
            “Nature of Offense” for a level III level of punishment that
            “[t]he offense involved the manufacture, importation,
            distribution, or cultivation of substantial quantities of
            drugs.” Fagaragan’s Promoting Dangerous Drug I convictions
            fit this description. There is support in the record for
            the HPA’s determination that under its Guidelines, Fagaragan
            fell within a Level III level of punishment with respect to
            his Promoting Dangerous Drug I convictions based upon the
            criteria of “Nature of the Offense.”


(Emphasis added).

            Accordingly, the ICA concluded that the HPA did not act

arbitrarily or capriciously in setting Fagaragan’s minimum terms

for his convictions, and Fagaragan failed to show a colorable

claim that the HPA’s actions violated his constitutional rights.

E.   Application for Writ of Certiorari

            On Oct. 22, 2012, Fagaragan filed an Application for

Writ of Certiorari (Application).           Fagaragan presented seven

questions.     Question Presented E and G are stated as follows:

            E. The court[] erred in denying petition for post-
            conviction pursuant to H.R.P.P. Rule 40 when stating that
            petitioner should have appealed H.P.A.’s decision when he
            received notice of the 20 yrs minimum sentence, which has
            stated that he did not receive the notice[] until some 90
            days after decision, ineffective assistance.

            G. The court[]s erred in denying petition for post-
            conviction pursuant to H.R.P.P. Rule 40 when stating that
            H.P.A. did not act arbitrarily and capriciously; when
            petitioner’s sentence was over-turned in part. H.P.A. did
            not reset his original sentence they let it stand at 20 yrs,
            they should have reduced it. 11

      11
            The remaining questions presented are as follows:

            A. Whether the court[] erred in denying petition for post-
            conviction pursuant to H.R.P.P. Rule 40 when stating that
            HPA does not have to follow Hawaii Revised Statutes (H.R.S.)
            § 706-669 which states H.P.A. shall list (1) nature of
            offense; (2) degree of injury and or loss; and (3) criminal
            history of offender which is mandated by law when assessing
                                                                (continued...)

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          Question Presented E asserts that Fagaragan did not

receive notice that the HPA reset his minimum term to the same

twenty-year minimum term after remand in time for him to have

raised the issue in his First Petition.         In explaining why he did

not contest the HPA’s decision in his First Petition, Fagaragan

explains that “H.P.A. did not serve notice on Petitioner until 90

plus days later, thus Petitioner not arguing HPA’s decision.”

“Had H.P.A. served Petitioner the same day when they let minimum

term stand he would have added this claim.”          Additionally,

Fagaragan responds to the ICA’s finding that he waived the issue:

          It did not take the same day to hand out a prison sentence
          when he saw HPA in April-May 2008. He received response past

     11
      (...continued)
           minimum term sentences.

          B. Whether the court[] erred in denying petition for post-
          conviction pursuant to H.R.P.P. Rule 40 when stating that
          H.P.A. does not have to list all six special criteria’s when
          assessing inmates level of punishments as required per case
          law in Hopkins v. State; Asuega v. State.

          C. Whether the court[] erred in denying petition for post-
          conviction pursuant to H.R.P.P. Rule 40 when stating that a
          “first-time” offender shall serve the full maximum sentence
          twenty (20) years out of twenty (20) years while other who
          have 2-3-4 priors serve less time when they had double-
          triple amount of drugs than petitioner, thus denying him
          parole.

          D. Whether the court[] erred in denying petition for post-
          conviction pursuant to H.R.P.P. Rule 40 when stating that
          rapist-murders shall receive lesser minimum term sentences
          than a first-time drug offender.
          . . . .
          F. The court[] erred in denying petition for post-
          conviction pursuant to H.R.P.P. Rule 40 when stating that
          petitioner does not fit the criteria under Article 1, § 5 of
          the Hawaii Constitution and pursuant to the 5th, 6th, and
          14th amendments to the U.S. Constitution which states: “All
          persons in similarly situated situations should be treated
          alike.”


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          the 90 day period to appeal.     HPA caused the delay when
          mailing said decision.  It was counsel and HPA who violated
          Petitioner’s rights not Petitioner waiving said issue.


          In Question Presented G, Fagaragan asserts that the HPA

arbitrarily and capriciously reset his minimum sentence at the

same twenty-year minimum term after his original sentence was

overturned in part.     Fagaragan argues that the HPA’s deviation

from its Guidelines for Establishing Minimum Terms of

Imprisonment, without explanation, constitutes “arbitrary or

capricious action that violates a prisoner’s right.”

Specifically, Fagaragan points to the HPA’s use of only one

significant criteria, “Nature of Offense,” in establishing his

minimum terms of imprisonment as inconsistent with the

requirements of HRS § 706-669(8) that minimum sentences be

determined on a uniform basis.

          Fagaragan requests that this court 1) order the HPA to

conduct a new minimum term hearing; and 2) instruct the HPA to

reset his level of punishment in conformance with the HPA

Guidelines at Level I, or at most Level II.

          The State did not file an opposition to the

Application.

                                    II.

          This court reviews a trial court’s denial of an HRPP

Rule 40 petition without a hearing for failure to present a




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colorable claim de novo.      Dan v. State, 76 Hawai#i 423, 427, 879

P.2d 528, 532 (1994).

          With respect to HPA decisions establishing a minimum

term, this court has stated that “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.”     Coulter, 116 Hawai#i at 184, 172 P.3d at

496 (2007) (quoting Williamson v. Hawai#i Paroling Auth., 97

Hawai#i 183, 195, 35 P.3d 210, 222 (2001)); De La Garza v. State,

129 Hawai#i 429, 439, 302 P.3d 697, 711 (2013).

          With respect to claims of procedural violations, the

court will assess whether the HPA complied with the procedural

protections of HRS § 706–669 and complied with its own

guidelines, which the HPA was required to establish by statute

under HRS § 706–669(8). Coulter, 116 Hawai#i at 184, 172 P.3d at

496.

                                   III.

                                    A.

          Fagaragan contends it was error to deny his Second

Petition on the basis that he “should have appealed H.P.A.’s

decision when he received notice[] of the 20 yrs minimum

sentence, [but] which . . . he did not receive . . . until some

90 days after decision.”      The ICA, however, found that in filing


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his First Petition, Fagaragan “could have, but did not, challenge

the HPA’s fixing of the minimum terms of imprisonment on his

convictions.”     Consequently, the ICA concluded that in the

absence of a showing of extraordinary circumstances, “Fagaragan

waived the issues presented in his [Second] Petition, and the

Circuit Court properly denied his [Second] Petition without a

hearing.”

            HRPP Rule 40(a)(3) provides as follows:

            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.


(Emphases added).

            Thus, “an issue is waived if the petitioner knowingly

and understandingly failed to raise it” (a rebuttable presumption

of knowing and understanding failure arises from such omission),

“and it could have been raised before the trial, at the trial, on

appeal, . . . [in] any other proceeding actually conducted, or in

a prior proceeding actually initiated under [Rule 40], and the

petitioner is unable to prove the existence of extraordinary

circumstances to justify . . . failure to raise the issue.”




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Fragiao v. State, 95 Hawai#i 9, 15-16, 18 P.3d 871, 877-78

(2001).

            This court has held that a claim of ineffective

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

of an 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, 459-60, 848 P.2d 966, 975 (1993) (holding that petitioner

was 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, 95 Hawai#i at 16, 18 P.3d

at 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).

            In De La Garza, we held that a petitioner seeking post-

conviction relief under HRPP Rule 40 presented sufficient

evidence to rebut the presumption that he knowingly and

understandingly waived the issue.         129 Hawai#i at 443, 302 P.3d

at 711.    In that case, De La Garza asserted that he did not

receive evidence containing adverse information in an HPA file

prior to his second hearing and was thus deprived of a

“meaningful opportunity to be heard on the issue of the minimum

term.”    Id. at 441-42, 302 P.3d at 709-10.       The ICA held that De

La Garza had waived the issue by failing to raise it in the Rule

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40 Petition.    Id. at 442, 302 P.3d at 710.       This court vacated

the ICA’s holding and held that “a claim . . . 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[.]”   Id. at 442-43, 302 P.3d at 710-11.

            In this case, Fagaragan’s Second Petition and his Rule

40 Reply should have alerted the circuit court that there was a

significant question as to whether Fagaragan had received HPA

Order 2 prior to filing his First Petition.          Fagaragan explained

the reason for not previously presenting the claims for relief,

“I thought that HPA would correct their errors but did not even

though the ICA-Supreme Court ordered that the prior sentences

were illegal.    HPA should have corrected their errors violations

without me submitting this but they continued.”

            That Fagaragan “thought HPA would correct their errors

but did not” and HPA “should have corrected their errors without

me submitting this” was an express statement by Fagaragan to the

circuit court that he had no knowledge of HPA Order 2 or its

terms at the time he filed his First Petition.          In his Rule 40

Reply, Fagaragan reiterated this assertion: “HPA failed to

correct their errors prior to him filing his initial petition.

Had HPA fixed the problem in the first place he would not have

argued this.”    (Emphasis added).     If the court considered

Fagaragan’s statements unclear or lacking in detail, HRPP Rule

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40(e)12 requires the court to give the petitioner an opportunity

to clarify the petition prior to dismissing it for want of

particularity.

            In support of Fagaragan’s contention that he was

unaware of HPA Order 2 at the time he filed the First Petition

was the timing between (1) HPA Order 2, (2) the date stamped on

HPA Order 2 that indicated when it was mailed, and (3) the filing

date of Fagaragan’s First Petition.          All three events occurred

within a fairly narrow time frame, making any overlap between

mailing, receiving, and filing dates more probable.             HPA Order 2

is dated April 26, 2008; the date of mailing was May 5, 2008;

and, Fagaragan filed his Second Petition on June 18, 2008.

Therefore, the proximity of the timing between the documents,

together with Fagaragan’s statements that he was unaware of HPA’s

Order at the time he submitted his first petition, should have

caused the circuit court, at a minimum, to seek clarification as



      12
            HRPP Rule 40(e) provides the following:

            Amendment and withdrawal of petition. The court may grant
            leave to amend or withdraw the petition at any time.
            Amendment shall be freely allowed in order to achieve
            substantial justice. No petition shall be dismissed for
            want of particularity unless the petitioner is first given
            an opportunity to clarify the petition.

(Emphasis added).   “[A] pro se petitioner ‘should not suffer for his inability
to articulate his claim.’” Garringer v. State, 80 Hawai#i 96, 904 P.2d 1142,
1150 (1996) (holding that before the court dismissed the petition without
holding a hearing, petitioner should have been given an opportunity to clarify
his petition by amending it to include specific factual allegations relevant
to his claim).

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to whether Fagaragan intentionally or knowingly waived the claims

in his Second Petition.

            Additionally, the contents of Fagaragan’s First

Petition did not reflect knowledge of the contents of HPA Order

2.   Instead, the First Petition included a reference to

“Conviction of Attempted Promotion of Controlled Substance” as an

issue for review even though HPA Order 2 only included two

offenses: “Promoting a Dangerous Drug in the First Degree” and

“Prohibited Acts Relating to Drug Paraphernalia.”             The offense

Fagaragan raised in his First Petition, “Attempted Promoting a

Drug in the First Degree[,]” only appeared in HPA Order 1.

            Relatedly, after the ICA reversed Fagaragan’s most

serious conviction (Count II), Fagaragan presumably anticipated a

reduction in his minimum terms of imprisonment after HPA held its

second hearing.      Had Fagaragan received HPA Order 2 with the

identical minimum term, it would appear likely that there would

have been a reference to it in the First Petition.             Instead, the

absence of any reference to HPA Order 2 substantiates Fagaragan’s

contention that he was not aware of its existence at the time he

filed the First Petition.

                                      B.

            In contrast to the evidence pointing to Fagaragan as

having not received notice of the Order, the only countervailing

evidence is a May 5, 2008 date that is stamped on HPA Order 2

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indicating that a copy was “served” by mail to Fagaragan.

Assuming HPA Order 2 was mailed on May 5, 2008, there is,

however, no prison log, receipt of service, or other

documentation indicating when the mail was received or forwarded

to Fagaragan.   The only record as to mailing or receiving is the

stamped signature by the HPA Secretary with a stamped date on the

order itself.

          In Setala v. J.C. Penney Co., 97 Hawai#i 484, 489, 40

P.3d 886, 891 (2002), this court acknowledged the unique

circumstances pro se prisoners face because “a prisoner has no

choice but to turn over his or her notice of appeal to prison

authorities for forwarding to court clerks, [and] the pro se

prisoner is not similarly situated with other civil litigants.”

97 Hawai#i at 487, 40 P.3d at 889 (quoting Houston v. Lack, 487

U.S. 266, 275, 108 S.Ct. 2379 (1988)).         As a result, the court

adopted a “mailbox rule” holding that a pro se prisoner’s notice

of appeal is deemed filed on the day it is tendered to prison

officials.   Setala, 97 Hawai#i at 485, 489, 40 P.3d at 887, 889.

The rationale behind the rule was that “[b]ecause ‘the prisoner

confined to his [or her] cell . . . can usually only guess the

prison authorities, the Postal Service, or the court clerk is to

blame for any delay[,]’ the prison may be the only entity that

has evidence of the date of mailing.”        Id. at 489, 40 P.3d at 891



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(citation omitted) (quoting Houston, 487 U.S. at 276).            The

Setala court held that where there is no evidence of mailing,

“appellate courts may remand the case to the trial court for a

determination of when the notice was given to the prison

authorities by the pro se litigant.”        Setala, 97 Hawai#i at 489,

40 P.3d at 891.

          While Setala primarily dealt with notices of appeal,

the holding is relevant in outlining the unique difficulties

associated with pro se prisoners and the prison mailing system.

Just as pro se prisoner litigants cannot personally travel to the

courthouse to ensure their notice of appeal is filed by the

clerk, pro se prisoner litigants cannot personally receive their

own mail at the facility to ensure that mailed documents are

actually received and timely delivered by the facility staff to

the inmate.

          As noted, Fagaragan’s return address indicates he was

incarcerated in Eloy, Arizona when he filed his First and Second

Petitions.    Fagaragan’s physical location left him no other

choice than to rely on the mail system as the only means of

litigating his claim.     Therefore, being subject to both the mail

system and the prison authorities’ delivery of his mail,

Fagaragan’s claim of having not received HPA’s Order 2 prior to

filing the First Petition merits is owed due consideration by the



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court, especially in light of the time proximity of the relevant

documents.

                                    C.

          The record of this case raises a significant question

as to whether Fagaragan had a realistic opportunity to contest

HPA Order 2 in the First Petition, and consequently whether

Fagaragan intelligently and knowingly waived the claims set forth

in the Second Petition.

          As noted, HRPP Rule 40(a)(3) provides that there is a

rebuttable presumption that a failure to raise an issue that

could have been raised in a prior proceeding is a knowing and

intelligent failure.     If the presumption is not rebutted, then a

court must determine whether the petitioner has proven the

existence of extraordinary circumstances to justify the failure

to raise the issue.     If the petitioner is unable to prove the

existence of extraordinary circumstances to justify the failure

to raise the issue, then the issue is waived.

          However, in this case, the circuit court made the

following conclusion of law:

          Petitioner’s allegations in the present Petition have been
          waived by Petitioner’s failure to include them in the prior
          HRPP Rule 40 Petition, S.P.P. No. 08-1-0009, and Petitioner
          has failed to aver any facts that would “prove the existence
          of extraordinary circumstances to justify the petitioner’s
          failure” to raise the issues previously. HRPP Rule
          40)a)(3). Therefore, under HRPP Rule 40(a)(3) Petitioner
          has failed to rebut the presumption and has waived the
          claims in the present HRPP Rule 40 petition.




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(Emphases added).

            The circuit court erred by concluding that a failure to

prove the existence of extraordinary circumstances is a failure

to rebut the presumption and a “waive[r] of claims.”              To

reiterate, a court must first determine whether a petitioner has

rebutted the presumption of a knowing and intelligent failure to

raise an issue.     If the presumption is not rebutted, then the

court determines whether the existence of extraordinary

circumstances justifies the failure to have previously raised the

claim.

            On the other hand, if sufficient evidence is presented

to rebut the presumption, then the court is not required to

assess whether petitioner had proved the existence of

extraordinary circumstances.        See De La Garza, 129 Hawai#i at

443, 302 P.3d at 711 (2013) (holding that petitioner presented

sufficient evidence to rebut the presumption and therefore the

court was not required to evaluate the existence of extraordinary

circumstances); Fragiao, 95 Hawai#i at 15-16, 18 P.3d at 877-78

(2001).13

      13
             See also Tachibana v. State, 79 Hawai#i 226, 232, 900 P.2d 1293,
1299 (holding that “where trial and appellate counsel are the same, no
realistic opportunity exists for a defendant to raise the issue of whether
that attorney usurped defendant’s right to testify[,]” and not evaluating for
extraordinary circumstances); Briones, 74 Haw. at 459, 848 P.2d at 968-69
(holding that “[w]here petitioner has been represented by the same counsel
both at trial and on direct appeal, no waiver of the issue of trial counsel’s
performance occurs because no realistic opportunity existed to raise the issue
on direct appeal[,]” and not evaluating for extraordinary circumstances);
                                                                  (continued...)

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            Accordingly, once Fagaragan made a showing that the

failure to raise his claims in the First Petition was not an

intelligent and knowing failure, then it was unnecessary for the

circuit court to reach the question of the existence of

extraordinary circumstances, and the Second Petition should not

have been denied without a hearing on the basis that the claims

had been waived.

                                    IV.

            HRPP Rule 40(a)(2) provides that “[a]ny person may seek

relief under the procedure set forth in this rule from custody

based upon a judgment of conviction . . . .”           In the First

Petition, Fagaragan sought relief from the judgment of conviction

in Cr. No. 05-1-0090(1) only.        Consequently, even assuming that

the waiver doctrine of HRPP Rule 40(a)(3) applied to the Second

Petition, the waiver would have applied only to claims that could

have been brought in the First Petition that related to Cr. No.

05-1-0090(1).

            In contrast, claims in the Second Petition that

pertained to the minimum terms that HPA had imposed in Cr. No.

04-1-0595(1) had not been previously raised in any prior

proceeding, nor could they have been raised, as no prior Rule 40

petition or other proceeding had challenged the setting of the

      13
       (...continued)
Matsuo v. State, 70 Haw. 573, 577, 778 P.2d 332, 334 (1989) (finding no
realistic opportunity for a defendant to raise an ineffective assistance of
counsel claim, and not evaluating for extraordinary circumstances).

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minimum terms.    The minimum terms in Cr. No. 04-1-0595(1) were

set by the HPA after the appeal of the judgment of conviction had

been filed on April 10, 2006, and no Rule 40 petition had been

previously filed with respect to the judgment of conviction in

Cr. No. 04-1-0595(1).

          Therefore, the circuit court erred in concluding that

“the allegations in the present Petition have been waived by

[Fagaragan’s] failure to include them in the prior HRPP Rule 40

Petition.”   Similarly, the ICA erred in finding that Fagaragan

“could have, but did not, challenge the HPA’s fixing of the

minimum terms of imprisonment on his convictions,” and Fagaragan

“waived all the issues he raises in his Petition” for failing to

raise these issues in his prior Rule 40 Petition.

          Accordingly, the waiver doctrine prescribed by HRPP

Rule 40(a)(3) was not applicable to the claims in the Second

Petition that related to Cr. No. 04-1-0595(1).          For this reason

also, the Second Petition should not have been denied by the

circuit court without a hearing premised upon a determination

that all of Fagaragan’s claims had been waived.

                                    V.

          The legislature required the HPA to establish

guidelines for the “uniform determination of minimum sentences

which shall take into account both the nature and degree of the

offense of the prisoner and the prisoner’s criminal history and

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character.”    HRS § 706-669(8).     Although the guidelines do not

have the force of statutory law, “compliance with such rules is

required to serve the legislature’s goal of uniform determination

of minimum sentences.”     Coulter, 116 Hawai#i at 185, 172 P.3d at

497 (quotation marks omitted).       As stated by the Coulter court,

“[t]he proposition that the government must follow the rules it

sets out for itself is not controversial.”         Id.    “Where the

legislature has delegated the creation of guidelines for the

uniform determination of minimum sentences to the HPA, the HPA is

not free to ignore the guidelines it has established.”            Id.

          The availability of the HPA Guidelines to prisoners

serves as a procedural protection to safeguard prisoners’ rights.

See Williamson, 97 Hawai#i at 194, 35 P.3d at 221 (holding that

“the procedural protections are adequate to safeguard prisoners’

rights and ensure that the HPA does not arbitrarily set minimum

sentences”).    Therefore, deviating from minimum sentencing

guidelines, without explanation, constitutes arbitrary or

capricious action that violates a prisoner’s right to uniform

determination of his or her minimum sentence.          Coulter, 116

Hawai#i at 184-85, 172 P.3d at 496-97; see Williamson, 97 Hawai#i

at 194-95, 35 P.3d at 221-22.

          In establishing the minimum term, the HPA considers a

variety of factors including the prisoner’s characteristics and


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the nature of the underlying offense.           See State v. Bernades, 71

Haw. 485, 490, 795 P.2d 842, 845 (1990).            Section III of the HPA

Guidelines requires the Order Establishing Minimum Terms of

Imprisonment to include the “specific minimum term(s) established

in years and/or months, the level of punishment (Level I, II, or

III) under which the inmate falls, and the significant criteria

upon which the decision was based.”14          (Emphasis added).

              In HPA Order 2, Fagaragan was determined by the HPA to

have met the criteria for Level III Punishment.             The HPA

identified “Nature of Offense” as the sole significant criterion

as the basis for its determination.           To satisfy the “Nature of

Offense” criteria for Level III classification, it is required

that the offender meets the criteria of at least one of the

following:

              a. The offense was against a person(s) and the offender
              displayed a callous and/or cruel disregard for the safety
              and welfare of others; or

              b. The offense involved the manufacture, importation,
              distribution, or cultivation of substantial quantities of
              drugs. Paragraph 4, subparagraph (a) or (b) of this section
              may be used to substantiate the level of involvement of the
              person in the offense(s);

              c. The offense was committed against the elderly, a
              handicapped person, or a minor, and the conviction was for

      14
              The criteria to designate a defendant for Level III punishment are
as follows:

              (1) the nature of offense; (2) the degree of injury/loss to
              person or property; (3) the criminal history; (4) the
              character and attitude of Offender with respect to criminal
              activity or lifestyle; (5) the efforts made to live pro-
              social life prior to commitment to prison; and (6) the
              involvement of offender in the instant offense(s).


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            murder, sexual assault, robbery, assault, or kidnapping; and
            . . . [.]

(Emphasis added).     Since the entirety of the HPA’s explanation

for its determination of Fagaragan’s level of punishment was

“Nature of Offense,” the relevant subsection was not identified.

However, it may be presumed that the HPA intended subsection (b)

to serve as the applicable subsection, as Fagaragan’s offenses

manifestly do not fall within subsections (a) or (c) of the

Nature of Offense criteria for a Level III classification.15

            Under subsection (b), the offense must involve “the

manufacture, importation, distribution, or cultivation of

substantial quantities of drugs.”          However, Fagaragan was

convicted of offenses involving possession of unlawful

contraband.    None of the offenses in either Cr. No. 04-1-0595 or

Cr. No. 05-1-0090(1) involved acts of manufacturing, importing,

distributing or cultivating substantial quantities of drugs.

Thus, the offenses for which minimum terms were imposed do not

appear to fit the HPA’s defined criteria under subsection (b) for

Level III punishment.16

      15
            “Nature of Offense” as defined in subsection (a)(callous offense
against a person) and in subsection (c) (offense against the elderly) do not
relate, even superficially, to Fagaragan’s offenses and therefore are not
applicable.

      16
            The dissent places great weight on the contention that: “although
the attempted distribution count was reversed, . . . [t]he two counts involved
exactly the same conduct; therefore, Fagaragan’s culpability remained exactly
the same.” Dissent at 9, 11. Respectfully, there is a significant difference
in culpability between a distribution conviction and a conviction based on
possession, even if the prescribed sentence is the same. There is also a
                                                                (continued...)

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               Nevertheless, the State contends that subsection (b)

provides a basis to find that an offender manufactured, imported,

distributed, or cultivated substantial quantities, despite the

fact that there has been no adjudication that the offender

actually did so.        The State reaches this conclusion by its

reading of the second sentence of subsection (b):

               b. The offense involved the manufacture, importation,
               distribution, or cultivation of substantial quantities of
               drugs. Paragraph 4, subparagraph (a) or (b) of this section
               may be used to substantiate the level of involvement of the
               person in the offense(s); 17


               According to the State, Paragraph 4, subparagraph (a)

(the circumstances show criminal activity is a major source of

person’s livelihood) or subparagraph (b) (the person has

      16
       (...continued)
significant difference in culpability when the conduct results in the
commission of one Class A possessory drug conviction as compared to a Class A
possessory and a distribution drug conviction. Moreover, a conviction for
distribution, by definition, involves an act of distribution. A conviction
for possession does not. And, even if the counts “involved exactly the same
conduct,” there was no valid conviction for attempted distribution, as the
circuit court failed to instruct the jury upon a requisite state of mind for
an element of the attempted distribution offense, which the State conceded was
plain error.     State v. Fagaragan, 115 Hawai#i 364, 371-72, 167 P.3d 739, 746-
47 (2007).

      17
            Section C titled “Level III,” Paragraph 4, subparagraphs (a) and
(b) provide as follows:

               4. Character and Attitude of Offender With Respect to Criminal
               Activity or Lifestyle: Based on the person’s character,
               attitude, and/or criminal history (both juvenile and adult),
               future criminal activity remains probable; or

                     a. The circumstances of the crime show that the
                     convicted person has knowingly devoted himself or
                     herself to criminal activity as a major or primary
                     source of livelihood; or

                     b. The convicted person has substantial income or
                     resources not explained to be derived from a source
                     other than criminal activity[.]

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unexplained substantial income) can establish that the offense

involved manufacturing, importing, distributing or cultivating

large quantities of drugs and thereby satisfy the criteria for

Level III punishment criteria.18       The State further contends that

Fagaragan met Level III criteria under “Nature of the Offense”

based on the amount of drugs he possessed.

In evaluating the State’s contentions, it is necessary to apply

general principles of statutory construction.           With respect to

interpreting the HPA Guidelines:

            The general principles of construction which apply to
            statutes also apply to administrative rules. As in
            statutory construction, courts look first at an
            administrative rule’s language. If an administrative rule’s
            language is unambiguous, and its literal application is
            neither inconsistent with the policies of the statute the
            rule implements nor produces an absurd or unjust result,
            courts enforce the rule’s plain meaning.


Int’l Bhd. of Elec. Workers, Local 1357 v. Hawaiian Tel. Co., 68

Haw. 316, 323, 713 P.2d 943, 950 (1986) (emphasis added)

(citations omitted).

             Again, turning to the language of the HPA Guidelines,

the “Nature of Offense” definition under subsection (b) of the

Level III classification expressly provides:

            The offense involved the manufacture, importation,
            distribution, or cultivation of substantial quantities of
            drugs.




      18
            The ICA found that there “was support in the record for the HPA’s
determination that under its Guidelines Fagaragan fell within a Level III
level of punishment with respect to his Promoting Dangerous Drug I convictions
based on the criteria of ‘Nature of Offense.’”

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Thus, the offense must involve manufacturing, importing,

distributing, or cultivating of substantial quantities of drugs.

The next sentence provides:

          Paragraph 4, subparagraph (a) or (b) of this section may be
          used to substantiate the level of involvement of the person
          in the offense(s)[.]


(Emphasis added).    Read in isolation, the second sentence is

deprived of meaning and effect without allusion to the

“offense(s)” being referred to.       However, when read in reference

with the first sentence, it is clear that the circumstances that

may be used to “substantiate the level of involvement of the

person in the offense(s)” are with respect to those offenses

listed in the preceding sentence.

          In contrast, the State’s interpretation would mean that

any person who was found in possession of substantial quantities

of drugs could be found to have been involved in acts of

manufacturing, importation, distribution, or cultivation.             This

interpretation is problematical for several reasons.

          First, this construction is contrary to the plain

meaning of subsection (b), which states Paragraph 4, subparagraph

(a) or (b) of this section may be used to substantiate the level

of involvement of the person in the offense(s).           Since the first

sentence requires that the offense involve the manufacture,

importation, distribution, or cultivation of substantial

quantities of drugs, it is evident that Paragraph 4 subparagraphs


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(a) or (b) may be used to determine “the level of involvement” of

the offender in manufacturing, importing, distributing, or

cultivating substantial quantities of drugs.           This is because the

fact that an offender, for example, is involved in cultivating

large quantities of drugs does not necessarily mean that the HPA

will classify the person for Level III punishment.

            Consequently, in the example given, an offender’s level

of involvement in cultivation of large quantities of contraband

will affect HPA’s determination regarding whether the offender is

to be classified as a Level III offender.          However, the level of

involvement in the offense under paragraph 4 subparagraphs (a) or

(c) is not relevant if the offense does not involve manufacture,

importation, distribution or cultivation.

            Second, the acts of manufacturing, importing,

distributing, or cultivating substantial quantities of drugs

would invariably involve possession.         “Possession” in criminal

law is broadly understood to include both actual and constructive

possession.    Black’s Law Dictionary defines “possession” as:

“The fact of having or holding property in one’s power; the

exercise of dominion over property.”         Black’s Law Dictionary 1281

(9th ed. 2009).19 Consequently, the enumerated acts of

      19
            “Constructive possession” involves a person “who, although not in
actual possession, knowingly has both the power and the intention, at a given
time, to exercise dominion or control over a thing for a sufficient period to
terminate his/her possession of it, either directly or through another person
or persons[.]” Hawai#i Standard Jury Instructions Criminal (HAWJIC) 6.06,
reprinted in Hawai#i Court Rules, State 866-67 (2013).

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manufacturing, importing, distributing or cultivating would

essentially be rendered superfluous, as possession of substantial

quantities of drugs would be able to meet the Level III criteria,

regardless of the offender’s underlying activity.

          When construing a statute or administrative rule,

courts are “bound to give effect to all parts of a statute, and .

. . no clause, sentence, or word shall be construed as

superfluous, void, or insignificant if a construction can be

legitimately found which will give force to and preserve all

words of the statute.”     Keliipuleole v. Wilson, 85 Hawai#i 217,

221, 941 P.2d 300, 304 (1997) (quotation marks omitted).            The HPA

demonstrated a level of certainty and precision in purposefully

selecting the enumerated categories of acts in subsection (b) and

to interpret this section in a way that would essentially allow

the enumerated terms to be treated as surplusage is inconsistent

with this purpose.    Id. at 223, 941 P.2d at 306.

          Third, Level III offenses are reserved for the most

egregious conduct.    It includes, for example, offenses against

those most vulnerable in society, offenders who display a callous

and cruel disregard for the safety of others, offenders with

extensive criminal history, offenders who commit the most serious

violent felonies, and offenders where “future criminal activity

is determined to be probable.”



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            Included in Level III classification are offenses that

involve manufacturing, importation, distribution or cultivation

of substantial quantities of drugs.        The State would essentially

expand this list to include “possession” offenses in order to

allow the HPA to makes an inference that the offender was

manufacturing, importing, distributing, or cultivating

substantial quantities of drugs, despite the fact that the

offender was never charged, much less, convicted of such

activity.

            Indeed, the offender could have been acquitted of the

enumerated acts, or had their conviction reversed as Fagaragan

did, and yet be found by the HPA (as Fagaragan was) to have

distributed substantial quantities of drugs.

             Fourth, the canon of construction expressio unius est

exclusio alterius, holds that “to express or include one thing

implies the exclusion of the other, or of the alternative.”

Black’s Law Dictionary 661 (9th ed. 2009).         Under this principle,

subsection (b) provides that the four specified offenses are

exclusive and limit the category of applicable offenses to those

expressly enumerated.

            This canon applies “only where in the natural

association of ideas the contrast between a specific subject

matter which is expressed and one which is not mentioned leads to

an inference that the latter was not intended to be included


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within the statute.”     Int’l Sav. and Loan Ass’n v. Wiig, 82

Hawai#i 197, 201, 921 P.2d 117, 121 (1996).         In this case, there

exists a “natural association of ideas” between the type of

specific offenses expressed in subsection (b) and the more

general offense of “possession” because both offenses involve

activities related to drug use.       The distinction, however, lies

in the HPA’s deliberate use of specific offenses characterized as

involving especially egregious activities under Level III “Nature

of Offense.”

          As stated, the criteria for Level III punishment do not

appear to apply to possession offenses, and unequivocally

possession is not enumerated.       Fagaragan stated in his Second

Petition that he did not fit the Level III offender

classification: “no one during trial testified that he sold or

did any such act [of manufacturing, importation or distribution

of drugs],” reflecting Fagaragan’s understanding and a natural

reading of the criteria.

          The legislature specifically provided in HRS § 706-

669(8) that “[t]he guidelines shall be public records and be made

available to the prisoner.” (Emphasis added).          Thus, the

legislature contemplated that the HPA Guidelines would be an

informational tool for the prisoner.        The applicable statute, HRS

§ 706-669, is entitled “Procedure for determining minimum term of



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imprisonment,” and clearly stated guidelines are an essential

part of the process.

            The importance of an offender being adequately informed

of the applicable criteria cannot be overstated.            The

determination of whether the offender is classified for Level II

punishment as opposed to Level III punishment for a Class A

felony is a potential difference of 10 years of incarceration

based upon the range of punishment established by the HPA.20 In

this case, the actual difference was 10 years of imprisonment, as

Fagaragan’s minimum term was set at 20 years.

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

(App. 2006), 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.

            In De La Garza, we held that a defendant in a minimum

term hearing has a right to disclosure of adverse materials.                 129

Hawai#i 429, 302 P.3d 697 (2013).        We noted that “[s]uch

disclosure ensures that the HPA will set the inmate’s minimum

      20
            The range in years of a minimum term for a Level II offender for a
class A felony offense is 5 - 10 years, while the range in years for a Level
III offender for such an offense is 10 - 20 years.

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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.”          Id. at 442, 302 P.3d

at 710 (citing HRS § 706-669(3)) (emphasis added).

           Meaningful opportunity to be heard in the context of a

minimum term hearing includes the right to be informed in a clear

manner of the criteria that the HPA will use to set the minimum

term.   A clear statement of the criteria provides the offender

with a meaningful opportunity at the HPA hearing to contest or

adduce evidence that the offense did not involve distribution,

manufacturing, importation or cultivation.         Therefore, to comport

with the requirements of a fair hearing, the HPA Guidelines

should be readily understandable to accomplish their purpose in

“be[ing] made available to the prisoner.”         See HRS § 706-669(8).

                                    VI.

           According to the HPA Guidelines, “[t]he Hawaii Paroling

Authority may deviate from the guidelines, either above or below,

but all deviations shall be accompanied by written justification

and be made a part of the Order Establishing Minimum Terms of

Imprisonment.”    (Emphasis added).       In Coulter, the Hawai#i

Supreme Court examined whether the HPA’s actions were arbitrary

and capricious when it set Coulter’s minimum terms without

stating in the order Coulter’s level of punishment or providing

any written criteria upon which the HPA based its decision.             116

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Hawai#i at 183, 172 P.3d at 495.       The court held that deviating

from the rules established by the HPA for the uniform

determination of minimum sentences, without explanation,

constitutes arbitrary or capricious action that violates a

prisoner’s right to uniform determination of his or her minimum

sentence.    Id. at 185, 172 P.3d at 497.

            In this case, HPA Order 2 identified Fagaragan as a

Level III offender based on the criteria of “Nature of Offense.”

The HPA Guidelines provide three criteria under Level III “Nature

of Offense,” none of which, as discussed supra, are applicable to

Fagaragan’s offenses.     Inasmuch as Fagaragan’s offenses do not

meet the prescribed criteria and no further “written

justification” is provided explaining HPA’s decision in HPA Order

2, HPA’s action of classifying Fagaragan as a Level III offender

was in violation of the HPA Guidelines and therefore, under the

circumstances, arbitrary and capricious.

                                   VII.

            For the foregoing reasons, we vacate the ICA Judgment,

and the case is remanded to the circuit court to enter an order

(1) vacating its Order Denying Rule 40 Petition, and (2)

directing the HPA to hold a new hearing to determine Fagaragan’s




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minimum terms of imprisonment in Cr. No. 04-1-0595(1) and Cr. No.

05-1-0090(1) pursuant to HRS § 706-669.21



Erwin E. Fagaragan                         /s/ Simeon R. Acoba, Jr.
pro se
                                           /s/ Sabrina S. McKenna
Lisa M. Itomura and
Diane K. Taira                             /s/ Richard W. Pollack
for respondent




      21
            The minimum terms for Cr. No. 04-1-0595(1) and Cr. No. 05-1-
0090(1) were set in HPA Order 1, and were based upon the consolidated evidence
for both cases at the first minimum term hearing (“the [HPA] shall . . . on
the basis of the hearing make an order fixing the minimum term of imprisonment
to be served before the prisoner shall become eligible for parole.” HRS §
706-669(1) (emphasis added)). That hearing included the evidence of
Fagaragan’s attempted distribution conviction, which was subsequently
reversed. Inasmuch as the only possible basis for the HPA in HPA Order 1 to
determine Fagaragan was a Level III offender based on “Nature of Offense” was
the reversed attempted distribution conviction in Cr. No. 05-1-0590(1), the
new hearing setting the minimum terms must also include Cr. No. 04-1-0595(1).
See HPA Guidelines at *1 (“The purpose of minimum sentencing guidelines is to
provide a degree of uniformity and consistency in the setting of minimum
terms[.]”).

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