132 Hawai'i 224
320 P.3d 889
Erwin E. FAGARAGAN, Petitioner/Petitioner–Appellant,
v.
STATE of HAWAI‘I, Respondent/Respondent–Appellee.
No. SCWC–11–0000592.
Supreme Court of Hawai‘i.
Feb. 14, 2014.
As Corrected March 21, 2014.
Erwin E. Fagaragan, pro se.
Lisa M. Itomura and Diane K. Taira, Honolulu, for respondent.
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) 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 (1993 & Supp. 2006).
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. 2003)1 (Count I); promoting a dangerous drug in the first degree, HRS § 712–1241(1)(a)(i) (Supp. 2003)2 (Count II); prohibited acts relating to drug paraphernalia, HRS § 329–43.5(a) (Supp. 2002)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.
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) (Count I); attempted promoting a dangerous drug in the first degree, HRS § 712–1241(1)(b)(ii)(A) (Supp. 2002)5 (Count II); and prohibited acts relating to drug paraphernalia, HRS § 329–43.5(a) (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 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, 371, 167 P.3d 739, 746 (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 371–72, 167 P.3d at 746–47. The ICA affirmed the convictions in Counts I and III. Id. at 372, 167 P.3d at 747.
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:
| 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 |
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...
