Hughes v. State

150 Hawai‘i 364

501 P.3d 333 (Table)

Michael Ray HUGHES, Petitioner-Appellant,

v.STATE of Hawai‘i, Respondent-Appellee

NO. CAAP-17-0000048

Intermediate Court of Appeals of Hawai‘i.

December 30, 2021

On the briefs:

Michael Ray Hughes, Self-Represented Petitioner-Appellant

Peter A. Hanano, Deputy Prosecuting Attorney, County of Maui, for Respondent-Appellee

(By: Ginoza, C.J., Leonard and Wadsworth, JJ.)

MEMORANDUM OPINION

The Circuit Court of the Second Circuit¹ (Circuit Court ) denied the Hawai‘i Rules of Penal Procedure (HRPP ) Rule 40 petition filed on March 3, 2016, by self-represented Petitioner-Appellant Michael Ray Hughes (Hughes ). Hughes appeals from the "Findings of Fact, Conclusions of Law, and Order Dismissing HRPP Rule 40 Petition" (Order ), entered on January 9, 2017.

On appeal, Hughes contends that the Circuit Court erred in denying his HRPP Rule 40 petition, because it contained allegations that if proven would have entitled Hughes to relief.

For the reasons explained below, we affirm.

I. Background

The following findings of fact by the Circuit Court are unchallenged on appeal and are thus binding on the parties and this court, see State v. Rodrigues, 145 Hawai‘i 487, 494, 454 P.3d 428, 435 (2019) :

I. FINDINGS OF FACT

....

2. On July 5, 1989, in CR 89-0225(1), the State charged [Hughes] via Complaint with Attempted Murder in the First Degree (Count One); Terroristic Threatening in the First Degree (Count Two); Felon in Possession of a Firearm (Count Three); Felon in Possession of Firearm Ammunition (Count 4); and Place to Keep Firearm (Count 5).

3. On August 17, 1989, [Hughes]'s attorney filed a Motion to Extend Time to File Pre-Trial Motion and/or Continuing Trial. After holding a hearing, the Circuit Court issued an order granting the motion.

4. On February 20, 1990, the jury trial commenced before the Honorable John E. McConnell. Following the close of evidence, both sides presented their closing arguments on March 1, 1990. On the same day, the jury found [Hughes] guilty as charged on all counts.

5. On June 22, 1990, the trial court sentenced [Hughes] to life imprisonment without the possibility of parole in Count One, Five years imprisonment on Counts Two and Five, and Ten years imprisonment on Counts Three and Four.

6. On July 17, 1990, [Hughes] filed a Notice of Appeal. On November 26, 1990, [Hughes] filed his Opening Brief in the Supreme Court of the State of Hawai‘i under S.C. No. 14689. On February 4, 1991 the State filed its Answering Brief. On February 14, 1991, [Hughes] filed his Reply Brief. On May 28, 1991, the Hawai‘i Supreme Court issued its opinion affirming the convictions.

(Record citations omitted.)

The Hawai‘i Supreme Court's above-referenced opinion in State v. Hughes, No. 14689 (Haw. May 28, 1991) (mem.), stated:

MEMORANDUM OPINION

Defendant-appellant Michael Ray Hughes appeals from his convictions of Attempted Murder in the First Degree, in violation of Hawai‘i Revised Statutes (HRS) § 707-701 (count 1); Terroristic Threatening in the First Degree, in violation of HRS § 707-716 (count 2); Felon in Possession of a Firearm, in violation of HRS § 134-7 (count 3); Felon in Possession of a Firearm Ammunition, in violation of HRS § 134-7 (count 4); and Place to Keep Firearm, in violation of HRS § 134-6 (count 5).

Defendant-appellant contends: 1) that the trial court committed reversible error in its instructions to the jury regarding the elements of counts 3, 4, and 5; and 2) that he had ineffective assistance of counsel.

We find that, although the instructions for counts 3, 4, and 5 did not include the requisite mental states for the charged offenses, this error was harmless and did not contribute to the convictions. State v. Domingo, 69 Haw. 68, 733 P.2d 690 (1987).

On the issue of ineffective assistance of counsel, we find that defendant-appellant failed to show the withdrawal of a meritorious defense. Even assuming that his counsel rendered ineffective assistance, defendant-appellant's claim will only be upheld if he can show that counsel's errors resulted in either the withdrawal or substantial impairment of a potentially meritorious defense. State v. Smith, 68 Haw. 304, 309, 712 P.2d 496, 500 (1986).

Accordingly, the convictions of defendant-appellant are affirmed.

The Circuit Court's unchallenged findings of fact continue as follows:

7. On April 26, 2006, [Hughes] filed his first Petition to Vacate, Set Aside, or Correct Judgment, or Release Petitioner from Custody ("Petition No. 1"), in the Circuit Court of the Second Circuit.

8. On October 31, 2006, the Circuit Court filed its Findings of Fact, Conclusions of Law, and Order Denying Hughes' Petition No. 1. [Hughes] filed a notice of appeal on November 30, 2006. On July 31, 2008, the Hawai‘i Intermediate Court of Appeals (ICA) issued their Summary Disposition affirming the Circuit Court's denial of Petition No. 1. On December 22, 2008, the Hawai‘i Supreme Court rejected [Hughes]'s application for writ of certiorari.

This court's above-referenced summary disposition in Hughes v. State, No. 28298, 2009 WL 2932762 (Haw. App. July 31, 2008) (SDO), stated in part:

COL 5

Ground one of Hughes's [Petition No. 1 ] claims ineffective assistance of trial counsel. Hughes previously raised the issue of ineffective assistance of trial counsel on direct appeal, and it was ruled on by the Hawai‘i Supreme Court. The circuit court did not err in concluding that the issue of ineffective assistance of trial counsel had been either ruled upon in a previous appeal or waived. HRPP Rule 40(a)(3).

....

COL 15

Hughes claimed his appellate counsel was ineffective because counsel did not raise every possible error that might show ineffective assistance of trial counsel. The circuit court noted that in [ Petition No. 1 ], Hughes pointed to sixteen ways his trial counsel was ineffective. The circuit court concluded that many of Hughes's claims of ineffective assistance of trial counsel were raised in his direct appeal.

....

The circuit court did not err in concluding that an informed and diligent criminal attorney would not have included on appeal the additional points Hughes claimed should have been raised.

Id. at *2-3 (citation omitted).

The Circuit Court's unchallenged findings of fact continue as follows:

9. On March 3, 2016, [Hughes] filed his present Rule 40 Petition [(Petition No. 2 )] on the following grounds for why relief should be granted:

Claim [ ]1: [Hughes] alleges his state and federal constitutional rights were violated because he was prosecuted without the presentment or indictment of a grand jury.

Claim [ ]2: [Hughes] alleges the prosecution illegally amended the complaint in violation of HRPP Rule 7 and his constitutional rights.

Claim [ ]3: [Hughes] alleges that the District Court lacked proper jurisdiction over the complaint which contained the felony offenses.

Claim [ ]4: [Hughes] alleges that he was "illegally charged and prosecuted for the felony offense of Terroristic Threatening in the First Degree."

Claim [ ]5: [Hughes] alleges that his state and federal constitutional right to a speedy trial and HRPP Rule 48 were violated.

Claim [ ]6: [Hughes] alleges that the Hawai‘i Paroling Authority had no authority to set his minimum terms and that "multiple statutory term sentences (which are mandatory) occurring from multiple offenses which were based on single use of firearm from a single incident - were illegal, multiplicious, and prejudicial."

Claim [ ]7: [Hughes] alleges his state and federal constitutional rights were violated because the firearm charges are an included offense of [Hughes]'s attempted murder charge.

Claim [ ]8: [Hughes] alleges the Hawai‘i Rules of Evidence [(HRE )], Rule 404(b) was violated when the State presented evidence before the jury that [Hughes] was previously convicted of Assault in the Second Degree.

Claim [ ]9: [Hughes] alleges the amount of errors in this matter amount to cumulative error and the sheer volume of errors was prejudicial and mandates reversal of [Hughes]'s convictions.

Claim [ ]10: [Hughes] seeks reservation of any additional claims that may later arise from review of court transcripts or documents from the court record.

10. None of the claims listed in the above paragraph were raised in Petition No. 1.

On January 9, 2017, the Circuit Court entered the Order denying Petition No. 2 without a hearing. The Circuit Court determined that all of Hughes's claims, except for Claim 9, alleging cumulative error, were waived "pursuant to HRPP Rule 40(a)(3) since [Hughes] had a reasonable opportunity to raise [these] issue[s] on direct appeal and/or in Petition No. 1." Additionally, the court determined as to each claim that "[e]ven when taken as true, [the facts alleged in Petition No. 2 ] do not entitle [Hughes] to relief under HRPP Rule 40."

On January 31, 2017, Hughes timely filed a notice of appeal.

II. Standards of Review

HRPP Rule 40(a)(3) provides, in relevant part:

Rule 40 proceedings shall not be available and relief thereunder shall not be granted where the issues sought to be raised have been previously ruled upon or were waived. Except for a claim of illegal sentence, an issue is waived if the petitioner knowingly and understandingly failed to raise it and it could have been raised before the trial, at the trial, on appeal, in a habeas corpus proceeding or any other proceeding actually conducted, or in a prior proceeding actually initiated under this rule, and the petitioner is unable to prove the existence of extraordinary circumstances to justify the petitioner's failure to raise the issue. There is a rebuttable presumption that a failure to appeal a ruling or to raise an issue is a knowing and understanding failure.

HRPP Rule 40(f) provides, in relevant part:

[T]he court may deny a hearing if the petitioner's claim is patently frivolous and is without trace of support either in the record or from other evidence submitted by the petitioner.

A trial court's denial of an HRPP Rule 40 petition is reviewed de novo. Dan v. State, 76...