429 P.3d 1229 (Hawaii 2018), SCWC-15-0000150, Rita v. State
|Citation:||429 P.3d 1229, 143 Hawaii 300|
|Party Name:||Roy RITA, Petitioner/Petitioner-Appellant, v. STATE of Hawaii, Respondent/Respondent-Appellee,|
|Attorney:||Emmanuel G. Guerrero, Honolulu, for petitioner/petitioner-appellant. Tracy Murakami for respondent/respondent appellee|
|Judge Panel:||By: Recktenwald, C.J., Nakayama, McKenna, Pollack, and Wilson, JJ.|
|Case Date:||November 08, 2018|
|Court:||Supreme Court of Hawai'i|
This decision has been designated as "Unpublished disposition." in the Pacific Reporter. See HI R RAP RULE 35
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CAAP-15-0000150; S.P.P. NO. 13-1-0001).
Emmanuel G. Guerrero, Honolulu, for petitioner/petitioner-appellant.
Tracy Murakami for respondent/respondent appellee
By: Recktenwald, C.J., Nakayama, McKenna, Pollack, and Wilson, JJ.
SUMMARY DISPOSITION ORDER
Petitioner/Petitioner-Appellant Roy Rita (Rita) seeks review of the Intermediate Court of Appeals (ICA) Judgment on Appeal, which affirmed the Circuit Court of the Fifth Circuits (circuit court) order denying Ritas supplemental claims to his second Hawaii Rules of Penal Procedure (HRPP) Rule 40 petition for post-conviction relief without a hearing. We vacate the ICAs Judgment on Appeal and remand to the circuit court to hold a HRPP Rule 40 evidentiary hearing on Ritas claim that counsel were ineffective for failing to challenge the sufficiency of his indictment.
On June 17, 2002, Rita was indicted and charged with, inter alia, one count of continuous sexual assault of a minor under the age of fourteen years, in violation of Hawaii Revised Statutes (HRS) § 707-733.5,1 which stated: During the period between the 7th day of June, 1999 through the 23rd day of October, 2001, in the County of Kauai, State of Hawaii, ROY RITA had recurring access to [minor], a minor under the age of fourteen (14) years, and did engage in three or more acts of sexual penetration or sexual contact with [minor] over a period of time, but while [minor] was under the age of fourteen (14) years, thereby committing the offense of Continuous Sexual Assault of a Minor Under the Age of Fourteen (14) Years, in violation of [HRS § 707-733.5].
At the time of trial, the complaining witness was twelve years old. The jury found Rita guilty of the continuous sexual assault charge.2 Rita appealed his conviction, which this court affirmed. State v. Rita, No. 25836, 2004 WL 909731 (Haw. Apr. 29, 2004) (SDO).
On September 27, 2004, Rita filed his first HRPP Rule 40 petition pro se .3 The circuit court denied Ritas first HRPP Rule 40 petition without a hearing. The ICA affirmed the circuit courts decision on July 27, 2006. Rita v. State, No. 27093, 2006 WL 2077565 (App. July 27, 2006) (SDO). Rita did not apply for a writ of certiorari to this court.
On March 6, 2013, Rita filed a second HRPP Rule 40 petition pro se . The circuit court denied Ritas second HRPP Rule 40 petition without a hearing.4 However, on appeal, the ICA vacated the circuit courts order. Rita v. State, No. CAAP- 13-0003270, 2014 WL 1758390 (App. Apr. 29, 2014) (SDO). The ICA determined that the circuit court should not have denied Ritas second HRPP Rule 40 petition without affording him the benefit of counsel, and remanded the case "so that [Rita] may receive the assistance of counsel before disposition of his Rule 40 petition."
On November 19, 2014, Rita, now represented by private counsel, filed a "Supplemental Claims for Relief to Petitioner Roy Ritas HRPP Rule 40 Petition for Post Conviction Relief, Filed on March 6, 2013" (Supplemental Claims Petition) that further raised two grounds for relief: (a) The court was without jurisdiction as the charge failed to state the necessary state of mind in the charge, as well as all of the elements of the offense, to wit, that the Defendant (Petitioner) and the Complainant were not married to each other. ...
(b) Both trial counsel and appellate counsel were ineffective for failing to assert this jurisdictional issue, respectively before the trial and appellate courts.
Rita stated that he was raising these claims for the first time because he "was unaware that the Indictment as drafted by the State was defective."
On February 23, 2015, the circuit court denied Ritas Supplemental Claims Petition without a hearing. The ICA affirmed. The ICA concluded that, even assuming arguendo that Ritas claims were not waived, Ritas trial and appellate counsel were not ineffective for failing to challenge the sufficiency of Ritas indictment.
We interpret Ritas application for writ of certiorari to present one question: whether the ICA erred "in failing...
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