Rapozo v. State

482 P.3d 567 (Table)

Richard RAPOZO, Petitioner-Appellant, v. STATE of Hawai‘i, Respondent-Appellee

NO. CAAP-16-0000532

Intermediate Court of Appeals of Hawai‘i.

March 12, 2021

On the briefs:

Richard Rapozo, Self-represented Petitioner-Appellant.

Brian R. Vincent, Deputy Prosecuting Attorney, City and County of Honolulu, for Respondent-Appellee.

Lisa M. Itomura, Diane K. Taira, Deputy Attorneys General, State of Hawai‘i, for Respondent-Appellee.

(By: Leonard, Presiding Judge, Hiraoka and Nakasone, JJ.)

MEMORANDUM OPINION

Self-represented Petitioner-Appellant Richard Rapozo ( Rapozo ) appeals from the "Order Denying Petition to Vacate, Set Aside, or Correct Judgment or to Release Petitioner from Custody" ( Order Denying Rule 40 Petition ) entered by the Circuit Court of the First Circuit ¹ on June 21, 2016. For the reasons explained below, we affirm the Order Denying Rule 40 Petition.

BACKGROUND

On the evening of August 15, 1978, [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 [Rapozo] 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 [Rapozo]'s gun which struck him in the stomach. After Lee had fallen, [Rapozo] shot him two more times.

State v. Rapozo, 1 Haw. App. 255, 256, 617 P.2d 1235, 1236 (1980) ( Rapozo I ).

Criminal Case

On August 23, 1978, Rapozo was indicted for murder under Hawaii Revised Statutes (HRS ) § 707-701 (1976). The statute provided:

§ 707-701 Murder. (1) Except as provided in section 707-702 [Manslaughter], a person commits the offense of murder if [the person] intentionally or knowingly causes the death of another person.

(2) Murder is a class A felony for which the defendant shall be sentenced to imprisonment as provided in section 706-606.

On April 10, 1979, a jury found Rapozo guilty as charged. At that time, HRS § 706-606 (1976) provided:

§ 706-606 Sentence for offense of murder. The court shall sentence a person who has been convicted of murder to an indeterminate term of imprisonment. In such cases the court shall impose the maximum length of imprisonment as follows:

(a) Life imprisonment without possibility of parole in the murder of:

(i) A peace officer while in the performance of [their] duties, or

(ii) A person known by the defendant to be a witness in a murder prosecution, or

(iii) A person by a hired killer, in which event both the person hired and the person responsible for hiring the killer shall be punished under this subsection, or

(iv) A person while the defendant was imprisoned.

As part of such sentence the court shall order the director of the department of social services and housing and the Hawaii paroling authority to prepare an application for the governor to commute the sentence to life with parole at the end of twenty years of imprisonment.

(b) Life imprisonment with possibility of parole or twenty years as the court determines, in all other cases. The minimum length of imprisonment shall be determined by the Hawaii paroling authority in accordance with section 706-669.

On May 16, 1979, the circuit court entered a Judgment sentencing Rapozo to life imprisonment with the possibility of parole. He was also ordered to pay "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."

Hawaii Paroling Authority Sets Minimum Sentence

When Rapozo was sentenced HRS § 706-669 (1976) provided, in relevant part:

(1) When a person has been sentenced to an indeterminate or an extended term of imprisonment, the Hawaii paroling authority shall, as soon as practicable but no later than six months after commitment to the custody of the director of the department of social services and housing hold a hearing, and on the basis of the hearing make an order fixing the minimum term of imprisonment to be served before the prisoner shall become eligible for parole.

On October 9, 1979, the Hawaii Paroling Authority ( HPA ) set Rapozo's minimum sentence at 30 years, with the qualification that "[p]arole shall not be granted until judgement [sic] of restitution is satisfied."

Direct Appeal

Rapozo appealed, claiming his trial counsel was ineffective. We affirmed the conviction, holding that the record as a whole was "insufficient to establish that there was ineffective assistance of counsel[.]" Rapozo I, 1 Haw. App. at 256, 617 P.2d at 1237. Rapozo also moved for a remand to the circuit court, claiming that "his testimony at trial, on the instructions of his then[-]attorney, was perjured and that actually, despite his detailed testimony as to the happening of the homicide, he was without memory of the shooting due to drunkenness." State v. Rapozo, 1 Haw. App. 660, 661, 617 P.2d 1237, 1238 (1980) ( Rapozo II ). We denied the motion. Id. at 662, 617 P.2d at 1239.

First Rule 40 Petition

On May 8, 1981, Rapozo filed a "Petition for Post-Conviction Relief[,]" initiating S.P. No. 5490. He again argued ineffective assistance of counsel. The circuit court denied the petition. Rapozo appealed. The Hawai‘i Supreme Court summarily affirmed the circuit court. Rapozo v. State, No. 8573 (Haw. June 26, 1984) (mem.).

Habeas Corpus Petition

Rapozo was involved in a riot while incarcerated at the Halawa Correctional Facility, and was transferred to federal custody in 1981. On June 3, 1988, Rapozo filed a "Petition for Writ of Habeas Corpus" in federal court, arguing that his trial and appellate counsel were ineffective, and that the trial judge was biased against him because the same judge had convicted his brother of murdering a witness in the case. ² The petition was dismissed. Order Adopting Magistrate's Report and Recommendation, Rapozo v. Hawai‘i, Civ. No. 88-00414DAE (D. Haw. Dec. 16, 1991).

Second Rule 40 Petition

On August 13, 1993, Rapozo filed another "Petition for Post-Conviction Relief[,]" initiating S.P.P. No. 93-0048. He argued that the trial judge was biased against him, the police were negligent in their investigation, and his trial counsel was rewarded for his conviction with a position as a judge. The circuit court denied the petition. Rapozo did not appeal.

1995 Parole Hearing

On August 21, 1995, the HPA granted Rapozo's application to reduce his minimum term from 30 years to 28 years. His minimum term was to expire on August 10, 2006. ³

Third Rule 40 Petition

On July 11, 1997, Rapozo filed another "Petition for Post-Conviction Relief[,]" initiating S.P.P. No. 97-0016. He argued that his trial counsel was ineffective, the State mislead the jury by withholding material evidence, and he was denied the right to confront potential witnesses. The circuit court denied the petition. Rapozo appealed. We summarily affirmed the circuit court. Rapozo v. State, 90 Hawai‘i 502, 979 P.2d 98 (Table) (App. 1999).

Motion to Correct Sentence

On January 12, 1999, Rapozo filed a "Brief in Support of Motion to Correct Sentence." He argued that the statute under which he was convicted, HRS § 707-701, has been amended since the time of his sentence. He contended that the crime of which he was convicted did not fall within the scope of the then-current version of HRS § 707-701 (1993), Murder in the First Degree. He argued that his sentence should be corrected to reflect the term of imprisonment imposed by HRS § 706-656, the statute then governing the penalty for Murder in the Second Degree, HRS § 707-701.5. The circuit court denied the petition, noting that HRS § 707-701 was amended, and HRS § 707-701.5 (Murder in the Second Degree) was added, by 1986 Haw. Sess. Laws Act 314, § 50 at 616, and the court "cannot retroactively apply HRS § 707-701.5 [.]" The circuit court held:

In essence, Rapozo asks this court to correct his sentence to reflect the sentence of an offense (Murder in the Second Degree) that did not exist at the time Rapozo was indicted, convicted and sentenced. Rapozo's request presents the issue of whether this court can retroactively apply HRS § 707-701.5 (1993), which took effect on January 1, 1987, to correct Rapozo's sentence, which was imposed on May 16, 1979.

HRS § 1-3 (1993) states that "[nlo law has any retrospective operation, unless otherwise expressed or obviously intended." The general rule is that "[s]tatutes or regulations which say nothing about retroactive application are not applied retroactively if such a construction will impair existing rights, create new obligations or impose additional duties with respect to past transactions." Clark v. Cassidy, 64 Haw. 74, 77, n.6, 636 P.2d 1344, 1346, n.6 (1981). Because Act 314 took effect on January 1, 1987[,] and because HRS § 707-701.5 (1993) does not mention retroactive application, this court cannot correct Rapozo's sentence to conform with the provisions of HRS § 707-656 (1993), the sentence required by HRS § 707-701.5 (1993).

On May 16, 1979, Rapozo was sentenced to life imprisonment with the possibility of parole. This sentence was correct according to the law as it existed at that time.

Rapozo appealed. The supreme court dismissed the appeal after Rapozo failed to file an opening brief. State v. Rapozo, No. 22327 (Haw. Sept. 9, 1999).

Fourth Rule 40 Petition

On January 5, 2006, Rapozo filed a request for "Revocation of Restitution Forms" in his criminal case. The circuit court construed the filing as a non-conforming petition for post-conviction relief under Rule 40(c)(2) of the Hawai‘i Rules of Penal Procedure ( HRPP ) and created S.P.P. No. 06-1-0040. The circuit court gave Rapozo 60 days to supplement his non-conforming petition, and sent HRPP forms A and B to Rapozo to complete. Rapozo did not return the forms. Accordingly, the circuit court...