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                                                               Electronically Filed
                                                               Supreme Court
                                                               SCWC-XX-XXXXXXX
                                                               07-NOV-2019
                                                               08:17 AM




            IN THE SUPREME COURT OF THE STATE OF HAWAII

                            ---oOo---
________________________________________________________________

         DESMOND J. LEWI, Petitioner/Petitioner-Appellant,

                                     vs.

        STATE OF HAWAIʻI, Respondent/Respondent-Appellee.
________________________________________________________________

                             SCWC-XX-XXXXXXX

         CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
   (CAAP-XX-XXXXXXX; S.P.P. NO. 15-1-0003 (CR. NO. 08-1-0483))

                             NOVEMBER 7, 2019

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

                 OPINION OF THE COURT BY McKENNA, J.

                             I.   Introduction

     We hold that Desmond J. Lewi’s (“Lewi”) Hawaiʻi Rules of

Penal Procedure (“HRPP”) Rule 40 petition stated a colorable

claim that the Hawaiʻi Paroling Authority (“HPA”) violated his

due process rights by arbitrarily and capriciously determining

that he was a “Level III” offender for purposes of calculating
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his minimum term of imprisonment on a manslaughter conviction.

As we therefore remand this case to the circuit court for a

hearing as to whether the HPA arbitrarily and capriciously

maintained Lewi’s Level of Punishment at Level III, Lewi may

also amend his Rule 40 petition to include his claim on appeal

that the circuit court did not adequately explain its decision

to impose a consecutive sentence.

       We therefore affirm in part, and vacate in part, the ICA’s

July 13, 2017 judgment on appeal, which affirmed the Circuit

Court of the Third Circuit’s1 (“circuit court”) January 27, 2016

“Findings of Fact, Conclusions of Law and Order Denying Petition

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

Petitioner from Custody Filed August 14, 2015, Without a

Hearing.”       This case is remanded to the circuit court for

further proceedings consistent with this opinion.

                                II.   Background

A.    Underlying Criminal Proceedings

       On October 7, 2008, the State charged Lewi via Complaint

with five offenses:         Count 1, Murder in the Second Degree, in

violation of Hawaiʻi Revised Statutes (“HRS”) § 707-701.5(1);

Count 2, Carrying or Use of a Firearm in the Commission of a

Separate Felony, in violation of HRS § 134-21(a); Count 3,


1
       The Honorable Glenn S. Hara presided.


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Carrying or Possessing a Loaded Firearm on a Public Highway, in

violation of HRS § 134-26(a); Count 4, Place to Keep Ammunition,

in violation of HRS § 134-27(a); and Count 5, Ownership or

Possession Prohibited, in violation of HRS § 134-7(b) and (h).2

      The charges stemmed from an incident in which Lewi shot and

killed his sister’s boyfriend, Cameron Mauga, after a long

history of conflict.        On the morning of October 5, 2008, the

extended Lewi family was gathered at Puhi Beach Park for a

child’s birthday party.        Mauga confronted Lewi, who was seated

in the driver’s seat of his (Lewi’s) truck.             Lewi’s 6-year-old

son was seated in the front passenger seat.             Mauga punched Lewi

in the head.      Lewi kept a loaded shotgun in his truck, so he

brandished it, hoping to scare Mauga off.            Instead, Mauga




2
      As to Count 1, HRS § 707-701.5(1) (Supp. 1992) defines Murder in the
Second Degree as, in relevant part, “intentionally or knowingly caus[ing] the
death of another person . . . .” As to Count 2, HRS § 134-21(a) (Supp. 2006)
defines Carrying or Use of a Firearm in the Commission of a Separate Felony
as, in relevant part, “knowingly carry[ing] on the person or hav[ing] within
the person’s immediate control or intentionally us[ing] or threaten[ing] to
use a firearm while engaged in the commission of a separate felony, whether
the firearm was loaded or not, and whether operable or not . . . .” As to
Count 3, HRS § 134-26(a) (Supp. 2006), Carrying or Possessing a Loaded
Firearm on a Public Highway, makes it “unlawful for any person on any public
highway to carry on the person, or to have in the person’s possession, or to
carry in a vehicle any firearm loaded with ammunition . . . .” As to Count 4,
HRS § 134-27(a) (Supp. 2006), Place to Keep Ammunition, requires, in relevant
part, all ammunition to be “confined to the possessor’s place of business,
residence, or sojourn,” with exceptions for transporting ammunition in an
enclosed container between locations enumerated in the statute. As to Count
5, HRS § 134-7(b) and (h) (Supp. 2006), Ownership or Possession Prohibited,
make it a class C felony for a person who “has been convicted in this State
or elsewhere of having committed a felony, or any crime of violence, or an
illegal sale of any drug” to “own, possess, or control any firearm or
ammunition therefor.”


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grabbed for the gun.        As the two struggled, the gun discharged,

killing Mauga.

      Lewi was incarcerated at the Hawaiʻi Community Correctional

Center pending trial, as he was unable to post his $1,000,000.00

aggregate bail.       After a month of incarceration, Lewi’s bail was

reduced, and Lewi posted bail.          While released on bail, he was

placed on electronic monitoring, and he reported to work (as a

skilled construction worker) and returned home before his curfew

with no problems.

      On March 23, 2010, Lewi pleaded guilty to the lesser

offense of manslaughter on Count 1.3           He also pleaded guilty to

the firearms offenses in Counts 3 and 5.            Lewi signed his change

of plea form, which stated:         “I understand that the Court may

impose any of the following penalties for the offense(s) to

which I now plead:       the maximum term of imprisonment . . . ,

consecutive terms of imprisonment (if more than one charge), . .

. probation with up to two year[s] of imprisonment and other

terms and conditions.”        He also acknowledged the following:           “I

have not been promised any kind of deal or favor or leniency by

anyone for my plea, except that I have been told that the

government has agreed as follows. . .:            The State will reduce

Count 1 to manslaughter and dismiss the counts not plead [sic]

3
      HRS § 707-702 (1985) defines “Manslaughter” as, in relevant part,
“recklessly caus[ng] the death of another person . . . .”


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to.[4]    The State may seek a prison term of 30 years.            I will

seek probation and any legal sentence . . . .”

      The minutes of the change of plea hearing note that the

circuit court questioned Lewi and “found he understood the

consequences of his plea & had made a knowing voluntary &

intelligent entry of plea & waiver of trial.”5             As part of the

plea agreement, the State moved to nolle prosequi, with

prejudice, Counts 2 and 4 (other weapons offenses), and the

circuit court granted the motion.

      Lewi’s presentence investigation and report (“PSI”)

included a letter from his deputy public defender to the court

requesting a sentence of two years’ imprisonment plus probation.

At the May 24, 2010 sentencing hearing, Lewi’s counsel objected

to the PSI’s inclusion of victim impact letters from individuals

who were not relatives of the victim.           Those letters were

removed from the PSI.        The minutes of the sentencing hearing

also state that Lewi’s counsel “noted various corrections to the

presentencing report.”

      At the sentencing hearing, the circuit court sentenced Lewi

to 20 years’ imprisonment on Count 1 (Manslaughter), 10 years


4
      The counts “not pled to” referred to Counts 2 and 4 (other weapons
offenses), which the State later moved to nolle prosequi.
5
      The transcript of the change of plea hearing is not a part of the
record.



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imprisonment on Count 3 (Carrying or Possessing a Loaded Firearm

on a Public Highway), with the sentences in Counts 1 and 3 to

run concurrently, and 5 years imprisonment on Count 5 (Ownership

or Possession Prohibited), with the sentence in Count 5 to run

consecutively to the sentences in Counts 1 and 3.            [13:220]

    The circuit court stated the following regarding its

imposition of consecutive sentences:

                 The question is whether the sentence – or the
           sentences are to run concurrently or consecutively. It’s
           true there’s a presumption in favor of concurrent
           sentencing. But what is of concern to the Court is that
           you’re not supposed to have had the firearm in your truck
           to begin with. Not supposed to have had a firearm in your
           possession, period. Let alone a loaded shotgun on a public
           highway. That possession in and of itself was an illegal
           act. And after that you acted recklessly in allowing that
           firearm to go off and shoot Mr. Mauga.
                 So based upon the seriousness of the offenses and the
           need for punishment and deterrence, consecutive sentence
           would be warranted.
                 On the other hand, to your credit you have a limited
           criminal history. I have read the letters and seems that
           you have a strong prosocial character, yeah. And you
           apparently are not – although there’s some arguments on the
           other side, didn’t seem as if you were a problem while out
           on bail. And these factors favor concurrent sentencing.
                 And regarding community protection, not sure how that
           cuts. But balancing these considerations the Court
           believes that it’s appropriate to sentence you to a 25-year
           indeterminate term, okay.

    At the end of the sentencing hearing, the circuit court

also stated that “if the Paroling Authority maxes the amount on

both [consecutive sentences], [the circuit court would] be

willing to look at concurrent [sentencing].”           Defense counsel




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responded that she “would place a Rule 35 on the record at this

time,”6 which the circuit court “[s]o noted.”

      On June 9, 2010, Lewi moved to reduce his sentence from

consecutive terms totaling 25 years to concurrent terms totaling

20 years.      Lewi pointed out that this court had issued State v.

Hussein, 122 Hawaiʻi 495, 229 P.3d 313 (2010), weeks before he

was sentenced.       In Hussein, we held that a sentencing court must

state on the record at the time of sentencing “its reasons as to

why a consecutive sentence rather than a concurrent one was

required.”      122 Hawaiʻi at 509, 229 P.3d at 328.         Lewi argued

that the circuit court’s reasons for imposing a consecutive

6
      This reference was to HRPP Rule 35 (2003), which provides:

             Rule 35. CORRECTION OR REDUCTION OF SENTENCE.
                   (a) Correction of Illegal Sentence. The court may
             correct an illegal sentence at any time and may correct a
             sentence imposed in an illegal manner within the time
             provided herein for the reduction of sentence. A motion
             made by a defendant to correct an illegal sentence more
             than 90 days after the sentence is imposed shall be made
             pursuant to Rule 40 of these rules. A motion to correct a
             sentence that is made within the 90 day time period shall
             empower the court to act on such motion even though the
             time period has expired.
                   (b) Reduction of Sentence. The court may reduce a
             sentence within 90 days after the sentence is imposed, or
             within 90 days after receipt by the court of a mandate
             issued upon affirmance of the judgment or dismissal of the
             appeal, or within 90 days after entry of any order or
             judgment of the Supreme Court of the United States denying
             review of, or having the effect of upholding the judgment
             of conviction. A motion to reduce a sentence that is made
             within the time prior shall empower the court to act on
             such motion even though the time period has expired. The
             filing of a notice of appeal shall not deprive the court of
             jurisdiction to entertain a timely motion to reduce a
             sentence.




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sentence were insufficient, appending a portion of the

transcript of the sentencing hearing to his motion.

    The circuit court denied Lewi’s motion to reduce sentence,

referring back to its statements at the previous sentencing

hearing, and reasoning as follows:

                 The Hussein case does not require the court to make,
           uh, specific findings, but state reasons for imposing
           consecutive, um, sentences; and the court believes that it
           did this. It did recognize the presumption under H.R.S.
           Section 706-668.5 in favor of concurrent sentencing and
           addressed the factors under H.R.S. Section 706-606, and
           came to the conclusion that consecutive terms totaling 25
           years, um, is an appropriate sentence.
                 In deciding upon the consecutive terms, um, the court
           did take into consideration the multiplicity of the
           offenses and the impact upon the victim. And the Hussein
           case expressly recognizes these criteria as bases for
           imposing consecutive sentences. Regarding the impact upon
           the victim, death is the ultimate impact; and of course Mr.
           Mauga died in regard – in this case.
                 And what I’ll – what was of great concern is that
           immediately prior to Mr. Mauga’s death, as stated during
           sentencing, it was illegal for Mr. Lewi to have possession
           of a firearm and it was illegal for him to have a loaded
           firearm on the public highway. It was Mr. Lewi’s illegal
           acts immediately prior to his contact with Mr. Mauga which
           ultimately resulted in Mr. Mauga’s death.
                 The court’s choice of the 25-year term as compared to
           the 30-year term [requested by the State] was based upon a
           recognition of the mitigating factors previously mentioned,
           a minimal prior criminal history, apparent pro social
           behavior, et cetera. If the sentence imposed by the court
           was purely based upon considerations of multiplicity of
           offenses and the impact upon the victim, the 30-year term
           would have been imposed; instead, the 25 year term was
           imposed because of the mitigating factors.

    On September 10, 2010, the HPA set all of Lewi’s minimum

terms at the maximum duration:        20 years on Count 1, 10 years on

Count 3, and 5 years on Count 5.          The HPA also set Lewi’s level

of punishment at Level III, the highest level, for all three

counts, stating “Significant factors identified in determining


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the level of punishment:       (1) Nature of Offense; (2) Degree of

Injury/Loss to Person.”

    After HPA set his minimum terms and offender levels, Lewi

filed his second motion to reduce sentence on November 26, 2010,

reminding the circuit court of its statement at the end of the

initial sentencing hearing, and appending the HPA’s Notice and

Order of Fixing Minimum Term.        Lewi asked the circuit court to

reduce his sentence to a concurrent 20 years or a term of

probation.    The State filed a memorandum objecting to the second

motion to reduce sentence, alleging “nothing ha[d] changed”

between the hearing on the first motion to reduce and the filing

of the second motion to reduce sentence.

    On January 21, 2011, Lewi’s deputy public defender moved to

withdraw as counsel, declaring that Lewi had accused her of

ineffective assistance of counsel.         Lewi also sent in a

handwritten letter to the court accusing the deputy public

defender of ineffective assistance of counsel.           Three months

later, the deputy public defender filed a supplement to her

motion to withdraw as counsel, declaring that she had made

unsuccessful efforts to contact Lewi.         The circuit court granted

the deputy public defender’s motion and appointed successor

counsel on June 15, 2011.       This successor counsel filed an ex

parte motion to withdraw due to a conflict of interest on April

9, 2012, which was granted on that day.

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       No disposition of the renewed motion to reduce sentence

appears in the record.         No direct appeal was filed from Lewi’s

original sentence.

B.    Rule 40 Petition

       On August 14, 2015, Lewi filed the subject HRPP Rule 407

petition for Post-Conviction Relief pro se.

       The grounds for Lewi’s Rule 40 petition can be grouped into

three categories.

       First, he argued ineffective assistance of counsel,

alleging the deputy public defender induced him to plead guilty,

failed to appeal his consecutive sentence, and failed to

challenge HPA’s minimum term decision.

       Second, he argued HPA acted arbitrarily and capriciously in

setting his level of punishment at Level III and in setting his

minimum terms at the same length as his maximum sentences,

because HPA did not utilize the “criminal history” and “pro-

social life” guidelines, which he alleged would have cut in his


7
      HRPP Rule 40 is titled “Post-Conviction Proceeding.” Under HRPP Rule
40(a)(1), a person (the petitioner) may seek relief from a judgment of
conviction because (1) the judgment was obtained or sentence imposed in
violation of the United States Constitution or Hawaiʻi Constitution; (2) the
court rendering the judgment lacked jurisdiction over the person or the
subject matter; (3) the sentence is illegal; (4) there is newly discovered
evidence; or (5) any ground that is a collateral attack on the judgment. A
court shall grant a hearing on a Rule 40 petition if the petition alleges
facts that, if proven, would entitle the petitioner to relief. HRPP Rule
40(f). On the other hand, a court may deny a hearing if the petitioner’s
claims are patently frivolous and without a trace of support either in the
record or from other evidence submitted by the petitioner. Id.



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favor.     (Lewi had only one prior petty misdemeanor conviction,

was a skilled construction worker with strong family and

community ties, and posed no problems while out on bail.)

      Third, Lewi argued that his sentence was illegal, because

he could not be convicted of both manslaughter and weapons

offenses based on State v. Jumila, 87 Hawaiʻi 1, 950 P.2d 1201

(1988), State v. Christian, 88 Hawaiʻi 407, 967 P.2d 239 (1989),

and State v. Van Den Berg, 101 Hawaiʻi 187, 65 P.3d 134 (2003).8

      On his Rule 40 petition form, Lewi stated that he did not

raise these challenges earlier because his attorney was

unresponsive to his requests to challenge HPA’s minimum terms.

Lewi asked the circuit court to (1) order HPA to give him a new

hearing to reset his level of punishment to level I or II; (2)

overturn his illegal sentence and re-sentence him to 20 years on

the manslaughter conviction, with sentences on any weapons

convictions to run concurrently; and (3) remove current counsel

and appoint new counsel.         Lewi also stated that he was “not

pulling the Man-Slaughter plea.”


8
      In Jumila, this court held that Murder in the Second Degree is included
in the offense of Carrying or Using a Firearm in the Commission of a Separate
Felony; therefore, the defendant there could not be convicted and sentenced
on both offenses. 87 Hawaiʻi at 4, 950 P.2d at 1201. In Christian, this
court applied Jumila to hold that Murder in the Second Degree is included in
the offense of Use of Deadly or Dangerous Weapon in the Commission of a
Crime. 88 Hawaiʻi at 410, 967 P.2d at 242. In Van Den Berg, this court held
that a defendant cannot be convicted and sentenced of both Murder in the
Second Degree and Possession or Use of Firearm in the Commission of a Felony.
101 Hawaiʻi at 193, 65 P.3d at 140.


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    On September 17, 2015, substitute counsel was appointed to

represent Lewi for his Rule 40 Petition (“Rule 40 substitute

counsel”).     On November 16, 2015, Rule 40 substitute counsel

filed a supplemental memorandum in support of Lewi’s Rule 40

petition.     He first argued that the HPA misapplied the “Degree

of Injury/Loss to Person” factor in its determination that

Lewi’s offender status should be at Level III.            He argued that

the HPA Guidelines place an offender on Level III status only if

“[t]he injury or loss suffered by the victim[s] was more than

those experienced by similarly situated victims[,]” quoting

HPA’s Guidelines for Establishing Minimum Terms of Imprisonment

(“HPA Guidelines”)      at 6 (emphasis added) but that an offender

should be placed at Level II if “[t]he injury or loss suffered

by the victim[s] was comparable to those experienced by

similarly situated victims.”        Rule 40 substitute counsel argued

that because Lewi’s victim died due to a shotgun shot to the

chest, “death should be considered the normal degree of injury .

. . .”    Rule 40 substitute counsel asserted that, as such, in

considering the “degree of injury/loss to person” guideline, HPA

should have placed Lewi at Level II, not III.            He did not make

any arguments about the other criterion HPA used to set Lewi’s

minimum term, “nature of the offense.”           He also did not argue

that the HPA acted arbitrarily and capriciously in setting



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Lewi’s minimum terms at the same length as his maximum

sentences.

      Rule 40 substitute counsel next argued that Lewi did not

have the effective assistance of counsel because the deputy

public defender failed to appeal the HPA’s illegal decision.                 He

did not argue that counsel was ineffective for inducing Lewi’s

guilty plea or failing to directly appeal his sentence.               Counsel

also did not include Lewi’s argument that his sentence was

illegal under Jumila, Christian, and Van Den Berg.              Counsel

ended his supplemental memorandum with a request that the

circuit court order a new minimum term hearing before the HPA.

      On December 2, 2015, the State filed an answer to Lewi’s

Rule 40 petition, as supplemented by Rule 40 substitute

counsel’s memorandum.        As to Lewi’s argument that his sentence

was illegal under Jumila, Christian, and Van Den Berg, the State

argued that the Jumila line of cases is no longer good law, as

this court overruled Jumila in State v. Brantley, 99 Hawaiʻi 463,

56 P.3d 1252 (2002).9        The State also pointed out that the cited

cases involved the offenses of Murder in the Second Degree

and/or Carrying or Use of Firearm in the Commission of a



9
      In Brantley, this court overruled its holding in Jumila that a
defendant cannot be convicted of both Carrying or Use of Firearm in a
Separate Felony and Murder in the Second Degree. 99 Hawaiʻi at 469, 56 P.3d
at 1258 (footnote omitted).



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Separate Felony,10 two offenses for which Lewi was not convicted,

as Lewi was convicted of Manslaughter, and the Carrying or Use

of a Firearm in the Commission of a Separate Felony count was

dismissed after Lewi pleaded guilty to Manslaughter in lieu of

Murder in the Second Degree.

       As to Lewi’s minimum term, the State argued that the HPA

“classified [Lewi] as a Level III offender, and stated,

‘Significant factors identified in determining the level of

punishment:       (1) Nature of Offense; (2) Degree of Injury/Loss to

Person.’      The HPA, thereby, complied with its guidelines and

provided written justification for its decision.”               The State

also argued that the HPA may set a prisoner’s minimum term of

imprisonment at the length of time equal to his maximum

sentence, citing Williamson v. Hawaii Paroling Auth., 97 Hawaiʻi

183, 191, 35 P.3d 210, 218 (2001).

       As to Lewi’s ineffective assistance of counsel claims, the

State asserted that HPA’s minimum term decision “was not in

violation of its guidelines and [was] neither arbitrary nor

capricious”; accordingly, “Trial counsel may have believed,

likewise, and chose not to file an appeal that had no merit.”




10
      This is not an accurate statement, as Christian involved the offense of
Use of Deadly or Dangerous Weapon in the Commission of a Crime (to wit, a
knife), not Carrying or Use of a Firearm in the Commission of a Separate
Felony. 88 Hawaiʻi at 410, 967 P.2d at 242.


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The State asked the circuit court to deny Lewi’s Rule 40

petition without a hearing.

    On December 30, 2015, Rule 40 substitute counsel filed a

reply memorandum, essentially re-arguing points previously made.

    On January 27, 2016, the circuit court issued its Findings

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

(“FOFs, COLs, and Order”).       First, as to Lewi’s assertion that

his sentence was illegal under Jumila, Christian, and Van Den

Berg, the circuit court construed Lewi’s argument to be “that he

should not have been sentenced for both carrying or possessing a

loaded firearm on a public highway (Count 3) and owning or

possessing a prohibited item (Count 5).”          The circuit court

cited to HRS § 701-109(1), which provides that “[w]hen the same

conduct of a defendant may establish an element or more than one

offense, the defendant may be prosecuted for each offense of

which such conduct is an element.”         The circuit court then

concluded that each of the weapons offenses required proof of

different elements (i.e., Carrying or Possessing a Loaded

Firearm on a Public Highway required the firearm to be loaded

and carried on a highway, while Owning or Possessing a

Prohibited Item did not; Owning or Possessing a Prohibited Item

precluded those under indictment or convicted of a felony or

violent crime from having a firearm, while Carrying or

Possessing a Loaded Firearm on Public Highway did not).             The

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circuit court did not analyze whether the weapons offense were

included in the offense of manslaughter.             The circuit court also

concluded that HRS § 706-668.511 permitted the sentencing court

to impose consecutive sentences upon Lewi.

       Second, as to Lewi’s argument that HPA acted arbitrarily

and capriciously in setting his minimum term, the circuit court

concluded that the HPA complied with its Guidelines by assessing

Lewi at Level III and indicating that the nature of the offense

and the degree of injury/loss to person were significant factors

it considered.        Further, the circuit court concluded that the

following information in the PSI supported the Level III

determination:        “ample evidence that Defendant’s admitted

practice of carrying a firearm ‘for protection’ in his truck

constituted behavior which substantially contributed to Mauga’s

death,” “many letters submitted by persons affected indicate the

profound consequences of Mauga’s death on those who survived

him,” and that “the shooting was witnessed by minors, including

[Lewi’s] own son.”        The circuit court also concluded that the

HPA was authorized to set Lewi’s minimum terms of imprisonment

at the same length of his maximum sentences, citing Williamson.


11
      HRS § 706-668.5 (Supp. 1992) is titled “Multiple sentence of
imprisonment.” Subsection (1) of the statute provides, in relevant part, “If
multiple terms of imprisonment are imposed on a defendant, whether at the
same time or at different times, or if a term of imprisonment is imposed on a
defendant who is already subject to an unexpired term of imprisonment, the
terms may run concurrently or consecutively.” (Emphasis added.)


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       Lastly, as to Lewi’s claim of ineffective assistance of

counsel, the circuit court concluded that “there is no appeal

provided for by statute of HPA’s decision and Petitioner fails

to point to any authority to the contrary.             The appropriate

means to challenge a minimum term of imprisonment is the filing

of the current petition, the merits of which have been

considered above.”

C.    ICA Appeal

       Before summarizing the arguments made on appeal, we first

note that Lewi has proceeded pro se on this appeal.               On February

18, 2016, Lewi filed a notice of appeal pro se, followed by a

jurisdictional statement and a motion for an extension of time.

Rule 40 substitute counsel then moved to withdraw as counsel.

The ICA remanded the case to the circuit court to hear the

motion to withdraw but denied Lewi’s motion to extend time to

file his opening brief by 60 days.            On remand, on May 27, 2016,

the circuit court granted Rule 40 substitute counsel’s motion to

withdraw and appointed new substitute counsel to represent Lewi

for the purpose of assisting him in pursuing this appeal, but

this was the same date that Lewi had to file his opening brief,

which he did pro se.         After the case returned to the ICA,

however, Lewi wrote a letter to the ICA dated June 20, 2016

stating that he was not in contact with new substitute counsel.



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No further filings from new substitute counsel appear in the

record of this appeal, and Lewi filed a reply brief pro se.

       We also note, however, that according to the State and the

HPA, new substitute counsel was able to secure a new minimum

term hearing for Lewi before the HPA.            The HPA reduced Lewi’s

minimum term on Count 1 to 16 years (down from 20 years), his

minimum term on Count 3 to 5 years (down from 10 years), and his

minimum term on Count 5 to 3 years (down from 5 years).                The HPA

also reset Lewi’s punishment level to Level II (down from Level

III) on Counts 3 and 5.12

       As to Count 1 (the manslaughter conviction), however,

Lewi’s punishment level remained at Level III.

       1.    Lewi’s Opening Brief

       On appeal before the ICA, Lewi argued that he had a right

to be present at an October 15, 2015 status conference on his

Rule 40 petition and that the circuit court erred in denying his

Rule 40 petition without a hearing because he had raised the

following colorable claims:          ineffective assistance of the

deputy public defender, illegality of his consecutive sentence

under the Jumila line of cases, and arbitrary and capricious

action by the HPA in setting his minimum terms of imprisonment.


12
      The State clarified that Lewi’s consecutive sentence began with the
minimum term of imprisonment on Count 5, which he has completed, followed by
the minimum terms of imprisonment on Counts 1 and 3, which run concurrently.



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       Lewi raised the following bases for his ineffective

assistance of counsel claim:          that the deputy public defender

was ineffective because she promised he would be sentenced to

two years of jail time with probation if he would plead guilty.13

Lewi also briefly raised the issue that the circuit court was

obliged to state on the record reasons for imposing a

consecutive sentence, under Hussein.

       Lewi asked the ICA to overturn his consecutive sentence,

overturn his weapons convictions and sentences, re-sentence him

to 20 years on the manslaughter conviction with any other

sentences running concurrently with it, and reset his level of

punishment to Level II.         Lewi again asserted that he was “not

pulling the man-slaughter plea.”

       2.    The State’s Answering Brief

       In its answering brief, the State argued that the circuit

court properly denied Lewi’s Rule 40 petition because Lewi did

not present any colorable claims.

       The State argued that nothing in the record supported

Lewi’s claim that the deputy public defender promised him two



13
      For the first time on appeal, Lewi also asserted that substitute
counsel for his Rule 40 petition was ineffective for “refus[ing] to argue,
communicate, object to the courts on behalf of [Lewi’s] Rule 40 claims,” for
continuing to threaten to withdraw from representing him, and for failing to
prepare Lewi’s Rule 40 petition. Claims against substitute counsel were not
part of his Rule 40 petition, but for the reasons stated by the ICA, see note
16, infra, these claims are without merit and we do not address them further.


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years’ imprisonment with probation in exchange for his guilty

plea.

    The State also pointed out that the HPA had, during the

pendency of Lewi’s appeal, held a new minimum term hearing.                The

State argued that, therefore, any failure by the deputy public

defender to challenge his old minimum term decision and request

a new hearing was moot.

    As to Lewi’s allegation that his consecutive sentence was

illegal, the State argued that the circuit court did not err in

imposing consecutive sentences, as HRS § 706-668.5 permits

consecutive sentencing.       The State also acknowledged that under

Hussein, the sentencing court must state its reasons on the

record at the time of sentencing justifying consecutive

sentences.     The State pointed to the portions of the circuit

court’s sentencing hearing transcript in the record as providing

sufficient justification for consecutive sentencing.             It pointed

out that, at sentencing, the circuit court expressed its concern

that Lewi was not supposed to have a firearm, and had the

firearm not been in Lewi’s truck on the day he and Mauga were

involved in the confrontation, Mauga would probably be alive

today.

    Further, the State again argued that Jumila, Christian, and

Van Den Berg were no longer good law as Jumila had been

overturned by Brantley.       The State reiterated its argument that

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those cases involved sentencing for Murder in the Second Degree

and Carrying or Use of a Firearm in the Commission of a Separate

Felony, offenses for which Lewi was not convicted.

    The State therefore asked the ICA to affirm the circuit

court’s FOFs, COLs, and Order.

    3.    The HPA’s Answering Brief

    In its answering brief, the HPA addressed Lewi’s arguments

that it acted arbitrarily and capriciously in setting his level

of punishment at Level III and in setting his minimum terms at

the same length as his maximum sentences.          The HPA pointed out

that “all of the issues relating to the HPA setting [Lewi’s]

minimum terms are now moot because in November, 2016, the HPA

held a new minimum term hearing and set new minimum terms on all

of Lewi’s sentences.”      HPA also argued it eliminated “degree of

injury/loss to person” as a justification for setting Lewi’s

level of punishment at Level III on Count 1 (manslaughter),

leaving only “nature of offense” as justification.            HPA appended

as an exhibit to its answering brief the new minimum term

decision.

    Further, HPA cited to St. Clair v. State, CAAP-XX-XXXXXXX,

2013 WL 6762256 (App. Dec. 20, 2013) (mem.), which held that

“[t]he primary injury or loss suffered by victims of

manslaughter is death,” and that the record did not indicate

that the deceased victim in the case (who was struck and killed

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instantly by a drunk driver) experienced greater suffering than

other victims of manslaughter.        The ICA had remanded that case

to the circuit court so that the HPA could hold a new minimum

term hearing.    Although the HPA did not expressly analogize St.

Clair to Lewi’s case, it stated that Lewi received a new hearing

and a new minimum term decision that “fit the legal requirements

as determined by the HPA Guidelines and the case law,” most

likely referring to the reduction in Lewi’s minimum term of

imprisonment for manslaughter from 20 years to 16 years.             The

HPA did not, however, explain how the new minimum term decision

maintaining Lewi’s level of punishment for manslaughter at Level

III complied with St. Clair.

    HPA concluded its answering brief with a request that the

ICA dismiss the HPA-related grounds in Lewi’s Rule 40 petition

appeal as moot.

    4.    Reply Brief

    In Lewi’s pro se reply brief, he reiterated most of his

earlier arguments, but added that he objected to the

characterization of his HPA issues as moot, because “HPA

neglected to address the illegal setting of [his] level III

punishment.”

    5.    The ICA’s Summary Disposition Order

    In a Summary Disposition Order (“SDO”), the ICA affirmed

the circuit court’s FOFs, COLs, and Order.          Lewi v. State, No.

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CAAP-XX-XXXXXXX (App. May 31, 2017) (SDO).          The ICA found

without merit Lewi’s point of error that the circuit court held

a hearing on his Rule 40 petition in his absence.            Lewi, SDO at

2, noting there was no evidence that the circuit court held a

hearing on October 15, 2015; rather, a status conference had

been held on that day.      Id.

    The ICA also concluded that the circuit court did not err

in imposing consecutive sentences.         Lewi, SDO at 4.     It reasoned

that Brantley overruled the Jumila line of cases Lewi relied on

to support his argument that he cannot be convicted and

sentenced for both manslaughter and weapons offenses.             Id.    The

ICA further noted that HRS § 708-668.5 permits the imposition of

consecutive sentences.      Id.

    The ICA found without merit Lewi’s claims that the deputy

public defender was ineffective.          Lewi, SDO at 3.    It concluded

she was not ineffective for failing to appeal his consecutive

sentences, because the consecutive sentences were not illegal,

per Brantley.    Lewi, SDO at 2.      Further, the ICA declined to

address Lewi’s argument that she deceived him into pleading

guilty, noting that Lewi asserted in his briefing that he would

not withdraw his manslaughter plea; the ICA noted that no other

remedy is available for an involuntary plea.           Id.   Next, the ICA

noted that the deputy public defender “made ‘various corrections

to the presentence report’ and argued for probation and for

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concurrent sentencing,” rejecting Lewi’s claims that she was

ineffective at sentencing.          Id.    Lastly, the ICA concluded that

any claim that the deputy public defender was ineffective for

failing to challenge HPA’s minimum term decision was moot, as

during the pendency of the appeal, HPA held a new hearing and

re-set Lewi’s minimum terms.          Lewi, SDO at 3.14

       Then Chief Judge Nakamura filed a concurrence and dissent

to the SDO.       Lewi, SDO at 6-7 (Nakamura, C.J., concurring and

dissenting).       While he “generally agree[d] with the decisions

reached by the majority” on Lewi’s points of error, he stated

that he would remand the case for a hearing on Lewi’s claim that

HPA acted arbitrarily and capriciously in maintaining Lewi’s

level of punishment at Level III on Count 1 (manslaughter) in

its new minimum term decision.            Lewi, SDO at 6 (Nakamura, C.J.,

concurring and dissenting).          Chief Judge Nakamura footnoted his

doubt that HPA’s remaining explanation for its Level III

classification (“Nature of Offense”) could be justified, as that

required a showing that Lewi “displayed a callous and/or cruel

14
      The ICA also addressed the newly raised issue regarding Rule 40
substitute counsel, concluding that he was not ineffective in representing
Lewi in his Rule 40 proceedings. Id. The ICA noted that Rule 40 substitute
counsel could not have been ineffective for failing to file Lewi’s Rule 40
petition, as he was appointed Rule 40 counsel after Lewi had filed his own
Rule 40 petition pro se. Id. The ICA also rejected Lewi’s arguments that
Rule 40 substitute counsel failed to advocate for Lewi during the Rule 40
proceedings, as he had filed a Supplemental Memorandum in support of Lewi’s
Rule 40 petition. Id. The ICA concluded that “Lewi does not state what
additional arguments Rule 40 substitute counsel should have made or how
counsel’s communication, or lack thereof, affected the claims in his
Petition. Therefore, HRPP Rule 40 counsel was not ineffective.” Id.


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disregard for the safety and welfare of others.”             Lewi, SDO at 6

n.1 (Nakamura, C.J., concurring and dissenting (quoting HPA

Guidelines at 5)).      Chief Judge Nakamura further stated, “Under

the circumstances of this case, rather than requiring Lewi to

file another [Rule 40] petition to challenge the HPA’s new

minimum term order, I would remand the case for a hearing on

whether the HPA acted arbitrarily and capriciously in continuing

to classify Lewi as a Level III offender on his manslaughter

conviction.”     Lewi, SDO at 6 (Nakamura, C.J., concurring and

dissenting).

    Chief Judge Nakamura also noted that Lewi did not expressly

argue that the circuit court failed to adequately explain its

reasons for imposing consecutive sentences in his Rule 40

petition or in his Opening Brief; nevertheless, Chief Judge

Nakamura stated “the record reveals some uncertainty” on that

issue.    Lewi, SDO at 6-7 (Nakamura, C.J., concurring and

dissenting).     As such, Chief Judge Nakamura would have allowed

Lewi, on remand, to raise a claim regarding the adequacy of the

circuit court’s reasons for imposing a consecutive sentence.

Lewi, SDO at 7 (Nakamura, C.J., concurring and dissenting).

                         III.   Standard of Review

    Review of orders denying HRPP Rule 40 petitions is de novo:

            As a general rule, a hearing should be held on a Rule 40
            petition for post-conviction relief where the petition
            states a colorable claim. To establish a colorable claim,
            the allegations of the petition must show that if taken as

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              true the facts alleged would change the verdict, however, a
              petitioner’s conclusions need not be regarded as true.
              Where examination of the record of the trial court’s
              proceedings indicates that the petitioner’s allegations
              show no colorable claim, it is not error to deny the
              petition without a hearing. The question on appeal of a
              denial of a Rule 40 petition without a hearing is whether
              the trial record indicates that Petitioner’s application
              for relief made such a showing of a colorable claim as to
              require a hearing before the lower court.

State v. Dan, 76 Hawai‘i 423, 427, 879 P.2d 528, 532 (1994)

(citation omitted).

                                IV.   Discussion

       In his certiorari application, Lewi asserts that his Rule

40 petition raised the following colorable claims:               first, that

his plea was illegal; second, that he received ineffective

assistance of counsel during pretrial, sentencing, and on

appeal; third, that he was improperly convicted of both

manslaughter and weapons offenses; fourth, that the HPA

arbitrarily and capriciously set his minimum terms at their

maximum lengths; fifth, that the HPA arbitrarily and

capriciously maintained his level of punishment at Level III for

the manslaughter conviction; and sixth, that the circuit court

inadequately set forth reasons on the record for imposing

consecutive sentences.

       The record does not support Lewi’s first claim.15


15
      Lewi’s plea was not illegal. On certiorari, Lewi argues that the
deputy public defender illegally induced his guilty plea by falsely promising
that he would receive two years of imprisonment plus probation in exchange
for it. While there is evidence in the record that the deputy public
defender requested a sentence of two years of imprisonment plus probation,
                                                              (continued. . .)

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       As to the second claim (ineffective assistance of counsel),

the record does not support an ineffective assistance of counsel

claim.16

       Lewi’s third claim (that he cannot be convicted of both

manslaughter and weapons offenses) relies on a misapprehension

of appellate case law.17



(continued. . .)
there is no evidence in the record or in Lewi’s submissions that she falsely
promised him two years of imprisonment and probation in exchange for his
guilty plea. The change of plea form also indicates Lewi was not given any
promise in exchange for his plea. Rule 40 petitions are evaluated on the
record and evidence submitted. See Rule 40(f) (“[T]he court may deny a
hearing if the petitioner’s claim is patently frivolous and without a trace
of support either in the record or from other evidence submitted by the
petitioner.”).
16
      Lewi asserts he received ineffective assistance of counsel because the
deputy public defender did not advise him that he could challenge information
in his PSI. The applicable standard for assessing claims of ineffective
assistance of counsel is whether the assistance provided was “within the
range of competence demanded of attorneys in criminal cases.” State v.
Antone, 62 Hawaiʻi 346, 348, 615 P.2d 101, 104 (1980) (internal citations
omitted). The burden rests on the Petitioner to prove: “1) that there were
specific errors or omissions reflecting counsel’s lack of skill, judgment, or
diligence; and 2) that such errors or omissions resulted in either the
withdrawal or substantial impairment of a potentially meritorious defense.”
Wilton v. State, 116 Hawaii 106, 110-11, 170 P.3d 357, 361-62 (2007)
(internal citations omitted).
            Lewi alleges the deputy public defender was ineffective for
failing to advise him of the right to challenge information in a PSI. He does
not specify what information should have been challenged. In any event, at
the May 24, 2010 sentencing hearing, the deputy public defender objected to
the PSI’s inclusion of victim impact letters from individuals who were not
relatives of the victim. These letters were removed from the PSI. The
minutes of the sentencing hearing also stated that Lewi’s counsel “noted
various corrections to the presentencing report.” Therefore, this assertion
does not raise a colorable claim.

17
      Lewi was properly convicted on both the manslaughter and weapons
offenses. On certiorari, Lewi’s question presented posits that the ICA
incorrectly applied the Jumila line of cases to his case. In his argument
section, however, Lewi relies exclusively on another case, State v.
Fagaragan, 115 Hawaiʻi 364, 167 P.3d 739 (App. 2007), and the authority
therein, to support the argument that he cannot be convicted and sentenced
                                                              (continued. . .)

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(continued. . .)
for weapons offenses in addition to manslaughter. Fagaragan, however, is
distinguishable.
      In Fagaragan, the defendant (Fagaragan) was convicted of Promoting a
Dangerous Drug in the First Degree, Attempted Promoting a Dangerous Drug in
the First Degree, and Prohibited Acts Relating to Drug Paraphernalia. 115
Hawaiʻi at 365, 167 P.3d at 740. Although Fagaragan argued that his
convictions could not be sustained under HRS § 701-109 or double jeopardy
grounds, his appeal was not decided on those bases. 115 Hawaiʻi at 372, 167
P.3d 747 (“[W]e need not reach Fagaragan’s other points of error on appeal.
Fagaragan’s contentions that [Promoting a Dangerous Drug in the First Degree
and Prohibited Acts Relating to Drug Paraphernalia] merged into [Attempted
Promoting a Drug in the Dangerous Degree] as a matter of law under HRS § 701-
109 or the double jeopardy clauses of the United States and Hawaiʻi
constitutions are moot . . . .”). Rather, in Fagaragan, the ICA looked to
the legislative history of the drug possession statute and held that “the
legislature did not intend for multiple punishments to be imposed in cases
involving possession and attempted distribution under HRS § 712-1241, where
the convictions rest on evidence of possession by a defendant of the same
drugs at the same moment in time.” 115 Hawaiʻi at 370, 167 P.3d at 745
(emphasis added). Therefore, the ICA reversed Fagaragan’s Attempted
Promoting a Dangerous Drug in the First Degree Conviction (but affirmed his
Promoting a Dangerous Drug in the First Degree and Prohibited Acts Related to
Drug Paraphernalia convictions). Id.
      Analogizing his case to Fagaragan, Lewi argues that his multiple
convictions and sentences “are based on possession . . . of the same gun at
the same moment in time.” Therefore, he contends, the Ownership or
Possession Prohibited and Carrying or Possessing a Loaded Firearm on a Public
Highway convictions should have been reversed, leaving only the Manslaughter
conviction. Lewi’s argument is not persuasive. In Fagaragan, the ICA held
that the attempt to distribute could not be punished in addition to the
possession of drugs (the quantity of which supported the presumption that the
possessor was preparing for distribution). 115 Hawaiʻi at 370, 167 P.3d at
745.
Similar circumstances do not exist here. In this case, Lewi was convicted of
Ownership or Possession Prohibited because of his status: he had previously
been convicted of petty misdemeanor assault and was, therefore, not permitted
to own a firearm. See HRS § 134-7(b) (prohibiting any person convicted of a
“crime of violence” from “own[ing], possess[ing], or controll[ing] any
firearm or ammunition therefore”). This offense is separate from the
manslaughter offense, which requires (in Lewi’s case) “recklessly causing the
death of another person,” see HRS § 707-702, without regard to whether the
death resulted from the prohibited possession of a gun. Lewi was also
convicted of Carrying or Possessing a Loaded Firearm on a Public Highway,
which forbids “a person on any public highway” from carrying on their person
or in a vehicle “any firearm loaded with ammunition.” HRS § 134-26. This
offense differs from the Prohibited Possession offense, in that the gun
possessed must be kept in a particular condition (loaded) and carried in a
particular place (a public highway), whereas the Prohibited Possession
offense contains no such requirements. This offense also differs from
Manslaughter, as the latter offense does not require that a death recklessly
occur via a loaded gun on a public highway. In short, the weapons
convictions in this case are not subject to Fagaragan simply because the
manslaughter and weapons offenses “are based on possession . . . of the same
                                                              (continued. . .)

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       Lewi’s fourth claim is now moot.18

       Only Lewi’s fifth and sixth claims presented colorable

claims.19      Therefore the circuit court erred in denying Lewi’s

Rule 40 petition without a hearing, and the ICA erred in

affirming the circuit court’s decision.

A.     Lewi raises a colorable claim that the HPA acted
       arbitrarily and capriciously in maintaining his level of
       punishment at Level III on the manslaughter conviction.

       In his fifth claim, Lewi argues that the HPA acted

arbitrarily and capriciously in setting his level of punishment

at Level III.20       When the HPA revisited Lewi’s minimum terms, it


(continued. . .)
gun at the same moment in time.”    Lewi’s argument based on Fagaragan is
therefore misplaced.
18
      The claim that HPA arbitrarily and capriciously set Lewi’s minimum
terms at the same length as his maximum sentences is now moot, as during the
pendency of Lewi’s Rule 40 petition appeal, HPA held a new hearing and re-set
all of Lewi’s minimum terms to less than his maximum sentences.
19
      On certiorari, Lewi also argues that he had a right to be present at an
October 15, 2015 hearing, which he believed to be the hearing on his Rule 40
petition. Lewi appended to his application, however, a notice of that the
October 15, 2015 “hearing” was a status conference. To the extent Lewi
believes that this status conference was the actual hearing on his Rule 40
petition, granted after the circuit court finds colorable claims, he is
mistaken. See Dan, 76 Hawaiʻi at 427, 879 P.2d at 532 (“As a general rule, a
hearing should be held on a Rule 40 petition for post-conviction relief where
the petition states a colorable claim.”). To the extent Lewi understands the
October 15, 2015 proceeding was just a status conference, he is also mistaken
as to his right to be present there, because he was represented by counsel at
the time. See, e.g., Thomas v. State, 771 S.E.2d 255 (Ga. Ct. App. 2015)
(holding that the defendant had no constitutional right to be present at a
status conference, as that is not a critical stage of the proceedings).
20
      Pursuant to HRS § 706-669(8) (1985 & Supp. 1992), the HPA is mandated
to establish guidelines for determining minimum sentences of imprisonment for
offenders sentenced by the courts to indeterminate and extended terms of
imprisonment. To that end, in 1989, the HPA published its “Guidelines for
Establishing Minimum Terms of Imprisonment” (“Guidelines”), with the stated
goal of “provid[ing] a degree of uniformity and consistency in the setting of
                                                              (continued. . .)

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reset Lewi’s punishment level to Level II (down from Level III)

on Counts 3 and 5.      Therefore, as to Counts 3 and 5, Lewi’s

argument is moot.      As to Count 1 (manslaughter), however, Lewi’s

punishment level remained at Level III.

     The singular justification HPA now provides for the Level

III classification is “nature of offense,” where, previously,

the dual justification given was “nature of offense” and “degree

of injury/loss to person.”        Under HPA’s Guidelines, for a Level

III designation based on the “nature of offense,” the offense

must be “against a person(s) and the offender displayed a

callous and/or cruel disregard for the safety and welfare of

others.”    HPA Guidelines at 5 (emphasis added).          For a Level II

designation based on the “nature of offense,” the offense must

be “against the person and/or property, and the offender

displayed a substantial (multiple counts, etc.) disregard for


(continued. . .)
minimum terms while providing the community-at-large, public policy makers
and planners, the criminal justice system, and victims and offenders with
information as to the criteria used in establishing minimum terms of
imprisonment.” Guidelines at 1. To set a minimum sentence within the
maximum term of imprisonment range set by the sentencing court, the HPA
determines an offender’s “level of punishment” at, from lowest to highest,
Level I, II, or III. Guidelines at 2. To set an offender’s level of
punishment, “the areas that will generally receive the greatest weight are .
. . Nature of Offense, the Degree of Injury/Loss to Person or Property, and
the Offender’s Criminal History,” although there are other enumerated
criteria within each level of punishment that the HPA may consider.
Guidelines at 3. In its Guidelines, the HPA acknowledges “certain amounts of
subjectivity” in applying the criteria to each offender, and it insists that
its “INTERPRETATIONS AND PERCEPTIONS OF THE SUBJECTIVE CRITERIA REMAIN THE
PREROGATIVE OF THE AUTHORITY.” Guidelines at 3 (capitalization in
original.). We note that HPA has not revised its Guidelines in over 30
years.


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the safety and welfare of others.”         HPA Guidelines at 4

(emphasis added).     (For a Level I designation based on the

“nature of offense,” the offense must be “against the person

and/or property, and the offender displayed a disregard for the

safety and welfare of others.”        HPA Guidelines at 3 (emphasis

added).)

     Lewi argues that it was not enough for the HPA to note

“nature of offense” as its “written justification.”            The State

responds that given Lewi’s shooting of Mauga, “Lewi’s commission

of the manslaughter [offense] was ‘against a person and the

offender displayed a callous and/or cruel disregard for the

safety and welfare of others,’ making the [HPA’s] reliance on

‘nature’ of offense as set forth in the HPA Guidelines

appropriate.”    We are persuaded that the HPA’s listing of a sole

criterion, “nature of offense,” for setting Lewi’s level of

punishment at Level III was not sufficient.

     Judicial intervention with regard to an HPA minimum term

determination is warranted “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 v. State, 116

Hawaiʻi 181, 184, 172 P.3d 493, 496 (2007) (citation omitted).

In this case, the HPA did not provide any written explanation

for its Level III designation beyond “nature of offense.”

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[90:37]   The absence of a more detailed explanation hampers this

court’s review of whether Lewi’s Level III designation is

arbitrary and capricious, in violation of due process.             The ICA

has had the opportunity to address the HPA’s manner of

justifying its offender level designations in a recent decision

authored by then Chief Judge Nakamura, Nichols v. State, 134

Hawaiʻi 390, 341 P.3d 1190 (App. 2014).         In that case, the HPA

set a prisoner’s offender level at Level III and set his minimum

term of imprisonment at the maximum term, listing only the

following “Significant Factors” as its written justification:

“Nature of Offense” and “Degree of Injury to Person.”             134

Hawaiʻi at 392, 341 P.3d at 1192.         The Nichols court stated,

“Where the HPA has taken the extraordinary action of setting the

minimum term of imprisonment at the maximum term, thereby

effectively eliminating the opportunity for parole, the HPA’s

explanation of the reasons for its action, beyond simply listing

the significant factors under the Guidelines, would assist the

court in reviewing whether the HPA’s actions was arbitrary and

capricious.”    Nichols, 134 Hawaiʻi at 393, 341 P.3d at 1193.

     In arriving at this statement, the Nichols court favorably

cited Hussein as an example of when this court has decided that

the time had come to mandate, rather than merely recommend, a

statement of reasons on the record for a sentencing decision.

Nichols, 134 Hawaiʻi at 396-97, 341 P.3d at 1196-97.            The Nichols
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court quoted this court’s discussion in Hussein that there was a

dual purpose for requiring a statement of reasons:            first, to

identify what facts and circumstances led to the sentencing

decision in a way that would be meaningful to the defendant, the

victim, and the public; and second, to confirm why those facts

and circumstances support the sentencing decision.            Id. (citing

Hussein, 122 Hawaiʻi at 509-10, 229 P.3d at 327-28).            The Hussein

court emphasized that reasons “confirm for the defendant, the

victim, the public, and the appellate court” that the sentencing

decision “was deliberate, rational, and fair.”           Nichols, 134

Hawaiʻi at 397, 341 P.3d at 1197 (citing Hussein, 122 Hawaiʻi at

509-10, 229 P.3d at 327-38).

     Ultimately, however, the ICA stopped short of expressly

requiring a statement of reasons from the HPA, because the

record in Nichols’ case “provide[d] clear support for the HPA’s

exercise of its discretion in fixing Nichols’ minimum terms

under the Guidelines.”      Nichols, 134 Hawaiʻi at 393, 341 P.3d at

1193.   The record reflected seventeen felony counts arising out

of an assault, home invasion, and shooting, where Nichols’

victims were brutally attacked and permanently injured.             134

Hawaiʻi at 393-94, 400, 341 P.3d at 1193-94, 1200.

     In Lewi’s case, it is questionable whether the record

clearly supports the HPA’s finding that he acted with a “callous



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and/or cruel disregard for the safety of others.”            Mauga

confronted Lewi then reached into Lewi’s truck and punched Lewi

in the head multiple times.       Lewi then brandished the shotgun

(which he unlawfully stored in his truck) to scare Mauga off.

There was a struggle, and the shotgun discharged, killing Mauga.

It cannot be said that the record therefore clearly supports

“cruel and/or callous disregard for the safety of others.”               We

have previously noted that “Level III offenses are reserved for

the most egregious conduct.”       Fagaragan v. State, 132 Hawaiʻi

224, 241, 320 P.3d 889, 906 (2014).         Here, Mauga was killed due

to the reckless discharge of a weapon.          In the absence of a more

detailed explanation from the HPA as to why a Level III

designation is warranted in Lewi’s case, this court cannot fully

perform its appellate review function and is left in doubt as to

whether the HPA acted arbitrarily and capriciously in setting

Lewi’s offender level.

     The HPA plays a critical role in our criminal justice

system.   The Nichols court has previously recognized that,

“[f]rom the standpoint of a criminal defendant, the HPA’s

decision in setting the minimum term of imprisonment may be more

important and significant than a trial court’s decision to

impose the maximum indeterminate term or to impose a consecutive

sentence.”    Nichols, 134 Hawaiʻi at 398, 341 P.3d at 1198.             See

also D’Ambrosio v. State, 112 Hawaiʻi 446, 464, 146 P.3d 606, 624
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(App. 2006) (“In Hawaiʻi, the legislature has implemented a

sentencing system that vests in the HPA significant

discretionary power to determine felony imprisonment sentences .

. . .      Under this arrangement, it is the HPA, not the courts,

that exercises most of the State’s felony sentencing

discretion.”).         We agree with these observations.         Therefore,

we now hold that the HPA is required to set forth a written

justification or explanation (beyond simply an enumeration of

any or all of the broad criteria considered) when it determines

that the minimum term of imprisonment for the felony offender is

to be set at a Level II or Level III punishment.21


21
      We recognize that we announce a new rule in this case, and that we are
“[f]ree to apply” this new rule “with or without retroactivity.” State v.
Jess, 117 Hawaiʻi 381, 401, 184 P.3d 133, 153 (2008) (citation omitted). This
court has generally considered three primary alternatives in deciding to what
degree a new rule is to have retroactive effect. Id. First, this court may
give a new rule “purely prospective effect, which means that the rule is
applied neither to the parties in the law-making decision nor to those others
against or by whom it might be applied to conduct or events occurring before
that decision.” Id. (internal quotation marks and citations omitted).
Second, this court may give a new rule “limited or ‘pipeline’ retroactive
effect, under which the rule applies to the parties in the decision and all
cases that are on direct review or not yet final as of the date of the
decision.” Id. (citations omitted). Third, this court may give a new rule
“full retroactive effect, under which the rule applies both to the parties
before the court and to all others by and against whom claims may be
pressed.” Id. (internal quotation marks and citations omitted). Lastly,
this court has recognized a fourth alternative, in which a new rule is given
“selective retroactive effect,” meaning the court applies the new rule “in
the case in which it is pronounced, then return[s] to the old [rule] with
respect to all [other cases] arising on facts predating the pronouncement.”
117 Hawaiʻi at 401 n.19, 184 P.3d at 153 n.19. We have declined to apply this
fourth alternative, as it “violates the principles of treating similarly
situated defendants the same.” Id. (citations omitted).
      In exercising our discretion in deciding the effect of a new rule, we
“weigh the merits and demerits” of retroactive application of the particular
rule in light of “(a) the purpose of the newly announced rule, (b) the extent
of reliance by law enforcement authorities on the old standards, and (c) the
                                                              (continued. . .)

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     We have previously noted the value of providing the

Guidelines to offenders in preparation for minimum term hearings

as follows:     “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.”



(continued. . .)
effect on the administration of justice of a retroactive application of the
new standards.” 117 Hawaiʻi at 401-02, 184 P.3d at 153-54 (internal quotation
marks and citations omitted). Application of these factors counsels against
selecting either a purely prospective or a full retroactive application of
this new rule. The first factor (the purpose of the newly announced rule)
counsels against a purely prospective application of this new rule, as the
purpose of the newly announced rule is to protect the defendant’s due process
right to a fair minimum term decision. We have previously recognized that
retroactive application of a new rule would serve to “protect the very
integrity of the fact-finding process.” 177 Hawaiʻi at 402, 184 P.3d at 154
(internal quotation marks and citations omitted). On the other hand, the
second factor (reliance by law enforcement on the old standards) counsels
against a full retroactive application of this new rule, as HPA has generally
not provided justifications or explanations for its minimum term
determinations, as there was no requirement to do so. Compare, e.g., Jess,
117 Hawaiʻi at 402-03, 184 P.3d at 154-55 (concluding that the second factor
counseled against full retroactive effect of a new rule requiring extended
sentencing facts to be alleged in charging instruments, because prosecutors
had long relied on prior case law prohibiting the allegation of such facts in
charging instruments). The third factor (the effect on the administration of
justice of the new standards) also counsels against a full retroactive
application of this new rule, as a flood of HRPP Rule 40 petitions
challenging HPA’s minimum term determinations is foreseeable, should this
court impose full retroactive effect to its new rule. Compare, e.g., Jess,
117 Hawaiʻi at 403, 184 P.3d at 155 (concluding that the third factor
counseled against full retroactive effect of new rule, because “our courts
would be inundated with HRPP Rule 40 (2006) petitions filed by defendants who
were sentenced to extended terms from as long ago as 1978 . . . .”).
      Therefore, on balance, in determining what degree of retroactivity to
give the new rule, we choose the middle ground: the second alternative,
“limited” or “pipeline” retroactive effect. Thus, the new rule is applied to
the petitioner in this case, as well as to all cases that are on direct
review or not yet final as of the date of this decision.


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Fagaragan, 132 Hawaiʻi at 242, 320 P.3d at 907 (footnote

omitted).    We have also previously held that an offender has “a

right to disclosure of adverse materials” in preparation for a

minimum term hearing, so that “the inmate is given reasonable

notice and a meaningful opportunity to be heard on the issue of

the minimum term.”     Id. (quoting De La Garza v. State, 129

Hawaiʻi 429, 442, 302 P.3d 697, 710 (2013)).          Whether these due

process measures meaningfully protect an offender’s interest in

a fair minimum term determination cannot be known when the HPA

provides no written justification or explanation of how it

applied the criteria it used.        Transparency in HPA’s minimum

term decision-making serves to confirm to the defendant, the

victim, the public, and the appellate court that the

determination was deliberate, rational, and fair.

     In his concurrence and dissent in this case, Chief Judge

Nakamura also indicated he would remand the case for a hearing

on Lewi’s claim that HPA acted arbitrarily and capriciously in

maintaining Lewi’s level of punishment at Level III on Count 1

(manslaughter) in its new minimum term decision.            Lewi, SDO at 6

(Nakamura, C.J., concurring and dissenting).           We agree with

Chief Judge Nakamura that questions remain as to whether HPA

adequately justified its Level III classification based on the

“nature of offense,” as that required a showing that Lewi

“displayed a callous and/or cruel disregard for the safety and

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welfare of others.”         Lewi, SDO at 6 n.1 (Nakamura, C.J.,

concurring and dissenting) (quoting HPA Guidelines at 5).

       The State suggests that Lewi file another Rule 40 petition

challenging the new minimum term decision.             We agree with Chief

Judge Nakamura, however, that under the circumstances of this

case, rather than requiring Lewi to file another Rule 40

petition to challenge the HPA’s new minimum term order, the case

should be remanded for a hearing on whether the HPA acted

arbitrarily and capriciously in continuing to classify Lewi as a

Level III offender on his manslaughter conviction.                Lewi, SDO

at 6 (Nakamura, C.J., concurring and dissenting).22

B.     Lewi raises a colorable claim that the circuit court
       provided inadequate reasons on the record for imposing
       consecutive sentences.

       Finally, in his sixth claim, Lewi argues that the

sentencing court did not provide sufficient justification on the

record for imposing consecutive sentences.             He argues that the

circuit court should have weighed his pro-social characteristics

more heavily or should have expressly found him to be a danger

to the community or a recidivism risk in order to justify the

consecutive sentence.




22
      We also note that Lewi argued for the first time on certiorari that
“HPA denied [him] access to any adverse material PSI etc.,” contrary to his
right to “all adverse material used to set his minimum and level of
punishment.” There is no evidence in the record to support Lewi’s claim.


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     Chief Judge Nakamura, in his concurrence and dissent, also

indicated that “the record reveals some uncertainty” as to

whether the sentencing court adequately stated on the record its

reasons for imposing consecutive sentences.           Lewi, SDO at 7

(Nakamura, C.J., concurring and dissenting).           We agree.

     In Hussein, we held “that a court must state its reasons as

to why a consecutive sentence rather than a concurrent one was

required.”    Hussein, 122 Hawaiʻi at 509, 229 P.3d at 328.              Under

HRS § 706-668.5(1), where a defendant is convicted of multiple

offenses, there exists a presumption that “[m]ultiple terms of

imprisonment run concurrently, unless the court orders or the

[applicable] statute mandates that the terms run consecutively.”

Again, the dual purposes behind the requirement that reasons be

stated for a court’s imposition of a consecutive sentence are to

“(1) identify[] the facts or circumstances within the range of

statutory factors that the court considered, and (2) confirm[]

for the defendant, the victim, the public, and the appellate

court that the decision was deliberate, rational, and fair.”

State v. Kong, 131 Hawaiʻi 94, 102-03, 315 P.3d 720, 728-29

(2013).   In stating its reasoning, however, the sentencing court

“is not required to articulate and explain its conclusions with




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respect to every factor listed in HRS § 706-606.[23]               Rather, ‘it

is presumed that a sentencing court will have considered all

factors before imposing concurrent or consecutive terms of

imprisonment under HRS § 706-606.”            Kong, 131 Hawaiʻi at 102, 315

P.3d at 720.       “Thus, a sentencing court is required to

articulate its reasoning only with respect to those factors it

relies on in imposing consecutive sentences.”              Id.

       At the sentencing hearing, the circuit court stated the

following:

                    The question is whether the sentence – or the
              sentences are to run concurrently or consecutively. It’s
              true there’s a presumption in favor of concurrent
              sentencing. But what is of concern to the Court is that
              you’re not supposed to have had the firearm in your truck
              to begin with. Not supposed to have had a firearm in your
              possession, period. Let alone a loaded shotgun on a public
              highway. That possession in and of itself was an illegal
              act. And after that you acted recklessly in allowing that
              firearm to go off and shoot Mr. Mauga.
                    So based upon the seriousness of the offenses and the
              need for punishment and deterrence, consecutive sentence
              would be warranted.


23
      HRS § 706-606 (Supp. 1992) is titled “Factors to be considered in
imposing a sentence.” Those factors include the following:
            (1) The nature and circumstances of the offense and the
            history and characteristics of the defendant;
            (2) The need for the sentence imposed:
            (a) To reflect the seriousness of the offense, to promote
            respect for law, and to provide just punishment for the
            offense;
            (b) To afford adequate deterrence to criminal conduct;
            (c) To protect the public from further crimes of the
            defendant; and
            (d) To provide the defendant with needed educational or
            vocational training, medical care, or other correctional
            treatment in the most effective manner;
            (3) The kinds of sentences available; and
            (4) The need to avoid unwarranted sentence disparities
            among defendants with similar records who have been found
            guilty of similar conduct.



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                 On the other hand, to your credit you have a limited
           criminal history. I have read the letters and seems that
           you have a strong prosocial character, yeah. And you
           apparently are not – although there’s some arguments on the
           other side, didn’t seem as if you were a problem while out
           on bail. And these factors favor concurrent sentencing.
                 And regarding community protection, not sure how that
           cuts. But balancing these considerations the Court
           believes that it’s appropriate to sentence you to a 25-year
           indeterminate term, okay.

We note that the record on appeal in this case contains only a

partial transcript of Lewi’s sentencing hearing.            This portion

of the transcript raises a question as to whether the circuit

court adequately distinguished between the need for a 25-year

consecutive sentence versus the 20-year sentence Lewi would have

received under the presumption of concurrent sentencing.

    As we are remanding this case to the circuit court for a

Rule 40 hearing as to whether the HPA arbitrarily and

capriciously maintained Lewi’s Level of Punishment at Level III,

Lewi may also amend his Rule 40 petition to include the claim

that the circuit court did not adequately explain its decision

to impose a consecutive sentence.

                              V.   Conclusion

    For the foregoing reasons, the ICA’s Judgment on Appeal is

affirmed in part and vacated in part, and this case is remanded




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to the circuit court for further proceedings consistent with

this opinion.

Keith S. Shigetomi                        /s/ Mark E. Recktenwald
for petitioner
                                          /s/ Paula A. Nakayama
Ricky R. Damerville and
Suzanna L. Tiapula                        /s/ Sabrina S. McKenna
(with him on the briefs)
for respondent                            /s/ Richard W. Pollack
State of Hawaiʻi
                                          /s/ Michael D. Wilson
Richard Stacey
for respondent
Hawaiʻi Paroling Authority




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