La Garza v. State

129 Hawai'i 429

302 P.3d 697

Cheyne DE LA GARZA, Petitioner/Defendant–Appellant,

v.STATE of Hawai‘i, Respondent/Plaintiff–Appellee.

No. SCWC–11–0000595.

Supreme Court of Hawai‘i.

May 10, 2013.

RECKTENWALD, C.J., NAKAYAMA, ACOBA, McKENNA, and POLLACK, JJ.

Artemio C. Baxa and Richard K. Mintoya, Deputy Prosecuting Attorneys, Richard W. Stacey, Dept. of Atty. General, for the State.

Cheyne De La Garza, pro se.

Opinion of the Court by POLLACK, J.

Petitioner Cheyne De La Garza (Petitioner) seeks review of the Intermediate Court of Appeals' (ICA) August 23, 2012 judgment, affirming the Circuit Court of the Second Circuit's (circuit court) July 28, 2011 order dismissing Petitioner's Hawai‘i Rules of Penal Procedure (HRPP) Rule 40 petition for post-conviction relief.

Petitioner asserts that the ICA gravely erred in affirming the circuit court's order because the manner in which the Hawai‘i Paroling Authority (HPA) “amended” his minimum term of imprisonment from eighteen months to five years was in violation of his constitutional right to due process.

We hold that the ICA erred in concluding that Petitioner waived his due process claim relating to the HPA's nondisclosure of adverse materials in Petitioner's HPA file and accordingly vacate the ICA judgment and circuit court order, and remand to the circuit court for a HRPP Rule 40 evidentiary hearing consistent with this opinion.

I.

A.

On May 1, 2009, Petitioner pleaded no contest to one count of assault in the first degree in violation of Hawai‘i Revised Statutes (HRS) § 707–710(1) and one count of kidnapping as a Class B felony in violation of HRS § 707–720(3). Petitioner's conviction arose out of an incident in which Petitioner restrained the complainant (Complainant), whom he had previously been romantically involved with, in his vehicle and assaulted her, causing serious bodily injury to her. The circuit court ¹ sentenced Petitioner on June 26, 2009 to ten years imprisonment for each count, with the terms to run concurrently.²

On October 12, 2009, the HPA held a hearing to set Petitioner's minimum term of imprisonment (first hearing), pursuant to HRS § 706–669.³ Prior to the hearing, the HPA was required to obtain Petitioner's presentence report, which included Complainant's victim impact statement as an addendum to the report.⁴ The prosecutor also submitted a written letter to the HPA with his recommendation for Petitioner's minimum term. Petitioner and defense counsel were present at the October 12 hearing. Neither the prosecutor nor Complainant attended the hearing.

On the same day as the first hearing, the HPA issued a notice and order (First Minimum Term Order) setting Petitioner's minimum term of imprisonment at eighteen months for each count, to expire on December 20, 2010. The HPA set Petitioner's level of punishment at Level II and identified “Degree of Injury to Person” as the significant factor used in determining Petitioner's level of punishment.⁵ A Level II punishment for a ten year maximum term of imprisonment will generally result in a minimum term of three to five years under the HPA Guidelines. HPA Guidelines at 2. In Petitioner's case the HPA deviated downward from its guidelines based on his “Character and Attitude With Respect to Criminal Activity and/or Lifestyle.” ⁶

Over a month after issuing the First Minimum Term Order, the HPA received a letter from the prosecutor, dated November 23, 2009, advising the HPA that Complainant and her family had not been notified about the first hearing “due to an error in communication” by the prosecutor's office.⁷ The prosecutor requested that Complainant and her family “be permitted to appear before the [HPA] and submit oral and written statements addressing the [Petitioner].” However, the prosecutor acknowledged that “a minimum term has already been set and that the prisoner has been transferred to the Maui Community Correctional Facility.” The prosecutor did not request invalidation, reconsideration, or amendment of the minimum term. A notation on the letter indicated that a copy of the letter was sent to defense counsel.

Thereafter, in a letter dated December 15, 2009, Complainant's aunt (Aunt) wrote to the HPA requesting that the HPA “reconsider” the minimum term. Aunt's letter stated, “We do not wish to burden the Board with an additional hearing and the Board's time and expense that comes with it, but we do respectfully ask that you accept the enclosures as [Complainant's] testimony and we respectfully ask that you reconsider the minimum that was set of 1.6 years.” Aunt enclosed a copy of Complainant's victim impact statement and a portion of the transcript from the circuit court's sentencing proceedings. The letter concluded with Aunt's request that the “Board reconsider a minimum term of at least 3.4 years.” Aunt's letter did not contain a notation indicating that Petitioner, defense counsel, or the State was provided with a copy of the letter and the attachments.

In a letter dated January 20, 2010, the HPA wrote to Aunt acknowledging receipt of her letter. The HPA advised Aunt that the information she had provided had been made a part of Petitioner's case file and would “be reviewed when we undergo the parole process in October 2010.” The HPA wrote, “The minimum sentence of one year, six months does not mean that the defendant will be released on parole at that time.[ ⁸] We encourage you and your niece to resubmit a letter prior to his parole hearing.” The letter does not contain a notation indicating that a copy of the letter was provided to Petitioner, defense counsel, or the State.

In a second letter to the HPA dated March 10, 2010, Aunt wrote, “Below please find my testimony for the minimum term hearing scheduled for Friday, 3/19/10 at Maui Community Correctional Facility.” Along with her written testimony, Aunt included a map of the locations where Petitioner had driven Complainant on the day of the incident, and photographs of the injuries Complainant sustained.

Aunt's five-page, single-spaced statement recounted the nature of Petitioner and Complainant's relationship as well as the events of the day of the incident.⁹ Aunt stated that “[Petitioner] has already started on work furlough because of the 1.6 minimum,” and that “a 1.6 month minimum term is a slap in the face to the victim.” She further claimed that “ [a]fter sentencing, [Petitioner] made statements like ‘my attorney is in with the parole board, lucky if I even do a year,” ’ and that Petitioner “new [sic] his statements would get to [Complainant], which was his plan.” Aunt concluded by asking the HPA to “consider that [Petitioner's minimum term] should not be less than a minimum of 3.8 years of his 10 year sentence[.]”

Aunt's second letter also does not indicate that the letter or its enclosures were provided to Petitioner, defense counsel, or the State.

B.

On March 19, 2010, the HPA held a second minimum term hearing (second hearing).¹⁰

At the hearing, Petitioner, Complainant, Aunt, a victim witness counselor, and a Maui County deputy prosecuting attorney were present.¹¹ Defense counsel was not able to attend the hearing and instead appeared by telephone. He explained, “You know, I had some surgery, I just got the stitches out the other day. And I'm going to court this morning, I start a trial. It's not that I didn't want to be there.” Petitioner was not asked whether he was previously aware of or agreed to counsel's participation through speaker phone.

Chairman Albert Tufono began the hearing by explaining that the HPA had scheduled the second hearing because “the first time we set this minimum, we did not give the family the opportunity to be heard in this area.” ¹² Defense counsel responded, “I understand. We went through all of their statements and all the reports and everything else [at the first hearing], but, I mean, I'm sure they have a right to talk.” Chairman Tufono continued, “Yeah. So we're giving them the right to talk.”

Before proceeding, the prosecutor stated that he was present at the hearing “in a capacity to assist” Complainant, to “answer any questions that the Board might have,” and “maybe make a brief statement as well.” Defense counsel responded, “I'm a little uncomfortable with that”; nevertheless, the hearing proceeded.

The victim counselor began by reading a letter written by Complainant. The letter was shorter in length than Complainant's victim impact statement, which the HPA had available at the first hearing, but focused more on the underlying incident and the effect it had, and continued to have, on Complainant's life.

Next, Aunt was given the opportunity to make a statement. Aunt stated that Petitioner's “actions clearly show a lack of remorse.” She also alluded to certain statements that Petitioner had allegedly made to a cellmate after he was sentenced. Defense counsel objected, “I don't know if she's allowed to make this statement. Where is this coming from? I object to this kind of stuff. Confessions from cellmates? What is that?” Aunt continued to attempt to explain that she included this information in her letter and that the cellmate was “a person who worked with [Complainant] who did weekends for DUI.” Aunt argued, “[Petitioner] knew this and [Petitioner] found a way to get uncomfortable statements back to [Complainant]. And that's what he did by saying that, you know, his attorney is tight with the parole board and lucky he—” At that point, Aunt was again interrupted by defense counsel, whose statement was partially marked as “inaudible.”

Aunt also addressed the HPA's initial minimum term: “This defendant clearly believes that he is above the law. Please make it clear to him that he cannot do what he did to [Complainant] and walk out of jail in 1.6 months, although that is even more time than he thought he would do.” Aunt concluded, “Please don't let this heinous crime get a slap on the hand. A 1.6 minimum is a slap on the hand for [Petitioner] and a slap in the face for [Co...