Rapozo v. State

150 Hawai‘i 66

497 P.3d 81

Richard RAPOZO, Petitioner/Petitioner-Appellant,

v.STATE of Hawai‘i, Respondent/Respondent-Appellee.

SCWC-16-0000532

Supreme Court of Hawai‘i.

OCTOBER 22, 2021

Richard Rapozo, petitioner pro se

Brian R. Vincent, for respondent Department of the Prosecuting Attorney

Lisa M. Itomura, Honolulu, and Diane K. Taira, for respondent Department of the Attorney General

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

OPINION OF THE COURT BY McKENNA, J.

I. Introduction

Richard Rapozo ("Rapozo") appeals pro se from the Circuit Court of the First Circuit's ("circuit court")¹ denial of his eighth Hawai‘i Rules of Penal Procedure ("HRPP") Rule 40 (2006) petition for post-conviction relief.

Rapozo was convicted of murder by a jury on April 10, 1979. On May 16, 1979, the trial court sentenced Rapozo to life imprisonment with the possibility of parole and ordered restitution "in the amount of $11,109.33, the manner of payment to be determined and handled by the Department of Social Services and Housing." In an October 18, 1979 "Notice and Order Fixing Minimum Term(s) of Imprisonment," the Hawai‘i Paroling Authority ("HPA") set Rapozo's minimum sentence at thirty years, with the condition that "[p]arole shall not be granted until judg[ ]ment of restitution is satisfied" ("minimum term order"). The HPA denied Rapozo's parole requests from 2006 through 2013 on the grounds it was not convinced Rapozo could substantially comply with the terms and conditions of parole, without stating why it was not convinced, and recommended that Rapozo participate in various programs.

Liberally construed,² in summary, Rapozo argued in his eighth HRPP Rule 40 petition that (1) the trial court erred by ordering restitution without first determining whether Rapozo could afford to pay it; (2) the trial court erred by delegating payment of restitution to the Department of Social Services and Housing ("DSSH"); and (3) the HPA erred by denying him parole for nonpayment of restitution. The circuit court denied the eighth HRPP Rule 40 petition without a hearing on June 21, 2016.

The Intermediate Court of Appeals ("ICA") affirmed. The ICA declined to address Rapozo's argument on appeal that the trial court erred by ordering restitution without determining Rapozo's ability to pay on the grounds Rapozo had not raised the issue before the trial court in the eighth HRPP Rule 40 petition. The ICA also ruled that State v. Johnson, 68 Haw. 292, 297, 711 P.2d 1295, 1299 (1985), which held that "[w]ithout express legislative authority, the court cannot delegate the sentencing function to another person or entity," did not retroactively apply to Rapozo's sentence.

In summary, we hold that Rapozo stated a colorable claim that the HPA denied parole due to nonpayment of restitution due to the condition in the minimum term order. We also hold that Johnson clarified an existing legal principle, and therefore did not create a "new rule." Thus, Rapozo raised colorable claims in his eighth HRPP Rule 40 petition.

Hence, we vacate the ICA's April 5, 2021 judgment on appeal and the circuit court's June 21, 2016 order denying the eighth HRPP Rule 40 petition, and we remand this case to the circuit court for further proceedings consistent with this opinion.

II. Background

A. Factual background

The ICA opinion on Rapozo's direct appeal sets out the factual background of the murder conviction:

On the evening of August 15, 1978, appellant [Rapozo] was at the Waimanalo Gym. He purchased a pistol outside the Gym and tucked it in his pants. He consumed some beer during the course of the evening. A girls’ volleyball game was in progress in the Gym and appellant had been in the Gym playing with the girls for about an hour when he allegedly became obnoxious and was asked to leave. As he walked away, he was confronted by one Robert Lee, whom he had never met. Lee was fatally wounded by the first bullet fired from appellant's gun which struck him in the stomach. After Lee had fallen, the appellant shot him two more times. On the question of whether the appellant drew his gun and shot Lee the first time or whether the first shot resulted from Lee's attempt to seize the gun and the resulting struggle, the evidence was conflicting.

State v. Rapozo (Rapozo I ), 1 Haw. App. 255, 257, 617 P.2d 1235, 1236 (1980).

1. Indictment and sentence

On August 23, 1978, a grand jury indicted Rapozo for murder in violation of Hawai‘i Revised Statutes ("HRS") § 707-701.³ On April 10, 1979, a jury convicted Rapozo of the charged offense.

On May 16, 1979, the trial court filed its judgment sentencing Rapozo to life imprisonment with the possibility of parole. The trial court also ordered "restitution in the amount of $11,109.33, the manner of payment to be determined and handled by the Department of Social Services and Housing."

The HPA's October 18, 1979 minimum term order set Rapozo's minimum sentence at thirty years, with the condition that "[p]arole shall not be granted until judg[ ]ment of restitution is satisfied."⁴ (Emphasis added.)

B. Procedural background

Because HRPP Rule 40(a)(3)⁵ prohibits relief when "the issues sought to be raised have been previously ruled upon or were waived," we summarize Rapozo's previous appeals and petitions. We also summarize relevant proceedings before the HPA.

1. Rapozo's direct appeal, previous petitions, and parole hearings

a. Direct appeal

Rapozo appealed from the original judgment of conviction to the ICA, alleging ineffective assistance of counsel.⁶ Rapozo I, 1 Haw. App. at 257, 617 P.2d at 1236–37. The ICA affirmed Rapozo's conviction, holding the record insufficient to establish ineffective assistance of counsel. Id.

b. First HRPP Rule 40 petition

On May 8, 1981, Rapozo filed his first HRPP Rule 40 petition, S.P. No. 5490, again alleging ineffective assistance of counsel.⁷ The circuit court denied the petition. On appeal, this court affirmed, concluding Rapozo's ineffective assistance of counsel claim was meritless. Rapozo v. State, No. 8573, 744 P.2d 773 (Haw. June 26, 1984) (mem.).

c. First habeas corpus petition

On June 3, 1988, Rapozo filed a habeas corpus petition in the United States District Court for the District of Hawai‘i ("district court") once again alleging ineffective assistance of counsel.⁸ The district court dismissed the petition on December 18, 1991.

d. Second HRPP Rule 40 petition

On August 13, 1993, Rapozo filed his second HRPP Rule 40 petition, S.P.P. No. 93-0048, alleging different grounds for relief.⁹ The circuit court denied the petition without a hearing and Rapozo did not appeal.

e. Reduction of Rapozo's minimum term sentence

On August 21, 1995, the HPA granted Rapozo's application to reduce his minimum term sentence from thirty years to twenty-eight years. His minimum term sentence therefore expired on August 10, 2006.

f. Third HRPP Rule 40 petition

On July 11, 1997, Rapozo filed his third HRPP Rule 40 petition, S.P.P. No. 97-0016, alleging ineffective assistance of counsel and several other grounds for relief.¹⁰ The circuit court denied the petition. On appeal, the ICA summarily affirmed. Rapozo v. State, 90 Hawai‘i 502, 979 P.2d 98 (SDO) (App. Jan. 27, 1999).

g. HRPP Rule 35 motion to correct sentence

On January 12, 1999, Rapozo filed a "Brief in Support of Motion to Correct Sentence" (" HRPP Rule 35 motion").¹¹ The circuit court summarily denied the HRPP Rule 35 motion without a hearing.¹² This court dismissed Rapozo's appeal after he failed to file an opening brief. See State v. Rapozo, No. 22327 (Haw. Sept. 9, 1999) (order).

h. Fourth HRPP Rule 40 petition

On January 5, 2006, Rapozo filed a request for "Revocation of Restitution Forms," which did not contain any arguments. The circuit court construed the request as a non-conforming petition for post-conviction relief under HRPP Rule 40(c)(2)¹³ and filed the request under S.P.P. No. 06-1-0040. Because Rapozo did not supplement the non-conforming petition as required, the circuit court dismissed the petition.

i. 2006 parole hearing

On October 23, 2006, the HPA denied Rapozo's parole request on the grounds it was "not convinced that [Rapozo] could substantially comply with the terms and conditions of parole." The HPA recommended "[t]hat [Rapozo] participate in work furlough." A rehearing was scheduled for July 2007.

j. 2007 parole hearing

On July 24, 2007, the HPA again denied Rapozo's parole request on the grounds it was "not convinced that [Rapozo] could substantially comply with the terms and conditions of parole." The HPA recommended "[t]hat [Rapozo] participate in all RAD recommended programs."¹⁴ A rehearing was scheduled for June 2008.

k. Fifth HRPP Rule 40 petition

On January 24, 2008, Rapozo filed his fifth HRPP Rule 40 petition, S.P.P. No. 08-1-0003, raising various grounds for relief.¹⁵ The circuit court denied the petition without a hearing, and Rapozo appealed. The ICA affirmed, holding that Rapozo was properly sentenced to life imprisonment with the possibility of parole and he was not being held beyond the expiration of his maximum sentence. Rapozo v. State, No. 29771, 2010 WL 2565125, at *1 (App. June 28, 2010) (SDO).

l. 2008 parole hearing

On June 26, 2008, the HPA again denied Rapozo's parole request on the grounds it was "not convinced that [Rapozo could] substantially comply with the terms and conditions of parole." The HPA recommended "[t]hat [Rapozo] participate in all RAD recommended programs." A rehearing was scheduled for May 2009.

m. 2009 parole hearing

On May 20, 2009, the HPA once again denied Rapozo's parole request on the grounds it was "not convinced that [Rapozo could] substantially comply with the terms and conditions of parole." The HPA recommended "[t]hat Rapozo participate in work furlough." A rehearing was scheduled for April 2010.

n. Sixth HRPP Rule 40 petition

On May 26, 2009, Rapozo filed a "Petition for Writ of Habeas Corpus" in the circuit court.¹⁶ The circuit court treated the petition as a non-conforming petition for post-conviction relief and...