76 Hawai'i 423, Dan v. State

• Decision Date: 29 August 1994
• Docket Number: No. 16345,16345
• Citation: 879 P.2d 528
• Court: Hawaii Supreme Court
• Parties: 76 Hawai'i 423 Richard I. DAN, Petitioner-Appellant, v. STATE of Hawai'i, Defendant-Appellee.

Page 528

879 P.2d 528

76 Hawai'i 423

Richard I. DAN, Petitioner-Appellant, v. STATE of Hawai'i, Defendant-Appellee.

No. 16345.

Supreme Court of Hawai'i.

Aug. 29, 1994.

Richard I. Dan, petitioner-appellant pro se.

Mark R. Simonds, Deputy Prosecuting Atty., County of Maui, on the briefs, Wailuku, for respondent-appellee State of Hawai'i.

Before MOON, C.J., and KLEIN, LEVINSON, NAKAYAMA and RAMIL, JJ.

MOON, Chief Justice.

Petitioner-appellant Richard I. Dan appeals from the Second Circuit Court's orders denying his Hawai'i Rules of Penal Procedure (HRPP) Rule 40 petition and request for court-appointed counsel. Dan was previously convicted of assault in the third degree, a misdemeanor, in violation of Hawai'i Revised Statutes (HRS) § 707-712(1)(a) (1985), ¹ which conviction was summarily affirmed by this court in State v. Dan, No. 15050 (Haw. Dec. 18, 1991) (mem.).

On appeal, Dan essentially argues that: (1) he was denied effective assistance of trial and appellate counsel; and (2) because he was acting pro se in his Rule 40 petition, he was entitled to court-appointed counsel. We affirm.

I. BACKGROUND

On June 26, 1990, Dan was charged by complaint with assault in the third degree. Although some of the facts are in dispute, the undisputed facts are as follows: On August 14, 1989, Dan's wife, Josephine Dan (Mrs. Dan), ² along with her two sons, Aaron and Frank, ages three and six, respectively, Mrs. Dan's best friend, Robin May (Robin), Robin's husband, Mark May (Mark), and Mrs. Dan's alleged lover, Richard Villareal, had driven to a clinic in Kahului, Maui in the Mays' vehicle, seeking treatment for Aaron who was suffering from what was believed to be an ear infection. While parked in the clinic's parking lot, Dan drove up in his car, got out, and approached the Mays' vehicle. Dan grabbed his son, Frank, who was already out of the Mays' vehicle, and started to proceed back to his own car.

In an effort to prevent Dan from placing Frank in Dan's car and driving off, Robin placed herself in front of Dan's vehicle. Dan, however, pushed Robin aside, placed Frank in the passenger seat and got into the vehicle. Robin immediately climbed into the car on top of Dan's lap, pulled the keys out of the ignition, and tossed the keys into the parking lot.

Mark picked up Dan's keys and, without Dan noticing, returned the keys to Robin while she was still sitting on top of Dan. Believing that Mark had the keys, Dan forced his way out of his vehicle, approached Mark, and demanded that Mark return his car keys. Mark told Dan that he did not have the keys and proceeded to walk away.

The remaining facts are disputed. At trial, Robin and Mark testified that throughout the commotion between Robin and Dan in Dan's car, Dan continued to hold onto Frank with his left hand, reaching across his (Dan's) body to do so. Dan, however, testified that he held onto Frank with his right hand. He explained that his left arm is impaired due to an injury to his left elbow in 1971; therefore, he would not have been able to hold onto Frank with his left arm.

In reference to the events that transpired after Dan forced his way out of the vehicle, Robin and Mark testified that when Mark turned to walk away from Dan, Dan lunged at Mark; Mark turned and ran. Dan caught up with Mark, grabbed him, and either threw or shoved Mark to the ground. Dan then kicked Mark twice on the inside of his upper thigh. Photographs of the bruises to Mark's thigh, which were taken by Robin, were shown at trial and admitted into evidence. Dan, however, testified that it was Mark who assaulted him in the parking lot, punching him through the open car window as he held onto Frank. Dan denied chasing Mark, pushing him to the ground, or kicking Mark in the thigh. In fact, Dan claims that while outside the vehicle, Mark tried to kick him, and that he grabbed Mark's foot by the ankle and threw him in the air.

On October 24, 1990, the jury found Dan guilty as charged. He was subsequently sentenced to (1) six months incarceration, suspended on the condition that he abide by the terms of his probation, and (2) perform 150 hours of community service. He was also ordered to pay a fine of $1,000.00. As previously noted, we affirmed Dan's conviction in December 1991.

On April 3, 1992, Dan, acting pro se, filed a HRPP 40 petition to vacate, set aside or correct the judgment. In his petition, Dan essentially alleged that he was denied effective assistance of trial and appellate counsel. Although inartfully worded, we glean the following claims of ineffective assistance of trial counsel from Dan's petition: ³

(1) Counsel's failure to discover or move to exclude from evidence photographs of Mark's bruises, which Dan claims the prosecution failed to disclose prior to trial; ⁴

(2) Counsel's failure to develop evidence of the physical impairment of Dan's left arm;

(3) Counsel's failure to develop the Mays' bias in favor of Mrs. Dan;

(4) Counsel's failure to take any action regarding new evidence that became available one week after the trial (the newly discovered evidence was purportedly Frank's observation that Mark punched Dan through the car window on the day of the incident);

(5) Counsel's unavailability for consultation with Dan during the weeks immediately preceding trial; and

(6) Counsel's intoxication before, during, and after trial.

With respect to appellate counsel, Dan claims that he was denied effective assistance of appellate counsel because of counsel's failure to file a motion for reconsideration of this court's memorandum opinion affirming his conviction.

The State filed its answer to Dan's petition on May 1, 1992. Sometime between May 1, 1992 and June 9, 1992, the court orally ruled on Dan's petition. On June 9, 1992, the deputy prosecuting attorney provided Dan with a copy of the proposed findings of fact and conclusions of law that were transmitted to the court. As previously noted, on June 17, 1992, Dan filed his request for court-appointed counsel to assist with his Rule 40 petition and attached his response to the proposed findings of fact and conclusions of law.

On June 30, 1992, the court entered its findings of facts, conclusions of law, and order, denying Dan's Rule 40 petition without evidentiary hearing. On the same date, the court also denied Dan's petition for court-appointed counsel; this timely appeal followed. II. STANDARD OF REVIEW

In State v. Allen, 7 Haw.App. 89, 744 P.2d 789 (1987), the question before the Intermediate Court of Appeals (ICA) was whether the trial court erred in denying a Rule 40 petition without a hearing. The ICA held that "a [Rule 40] petition for post-conviction relief is addressed to the sound discretion of the court, and absent an affirmative showing of abuse[,] the lower court's denial of such a petition will not be overturned on appeal." Id. at 92, 744 P.2d at 792 (citing State v. Schrock, 149 Ariz. 433, 441, 719 P.2d 1049, 1057 (1986)). Although we disagree with the ICA's holding, and to that extent overrule Allen, we adopt the ICA's following analysis of the standard of review, which we conclude to be de novo:

As a general rule, a hearing should be held on a Rule 40 petition for post-conviction relief where the petition states a colorable claim. To establish a colorable claim, the allegations of the petition must show that if taken as true the facts alleged would change the verdict, however, a petitioner's conclusions need not be regarded as true. Where examination of the record of the trial court proceedings indicates that the petitioner's allegations show no colorable claim, it is not error to deny the petition without a hearing. The question on appeal of a denial of a Rule 40 petition without a hearing is whether the trial record indicates that Petitioner's application for relief made such a showing of a colorable claim as to require a hearing before the lower court.

Allen, 7 Haw.App. at 92-93, 744 P.2d at 792-93 (emphasis added).

As the ICA's analysis indicates, the appellate court steps into the trial court's position, reviews the same trial record, and redecides the issue. Because the appellate court's determination of "whether the trial record indicates that Petitioner's application for relief made such a showing of a colorable claim as to require a hearing before the lower court" is a question of law, the trial court's decision is reviewed de novo. See United States v. Burrows, 872 F.2d 915 (9th Cir.1989) (denial of a post-conviction motion based on ineffective assistance of counsel without conducting an evidentiary hearing is reviewed de novo for a determination of whether the files and records of the case conclusively show that petitioner is entitled to no relief). Therefore, we hold that, on appeal, the issue whether the trial court erred in denying a Rule 40 petition without a hearing based on no showing of a colorable claim is reviewed de novo; thus, the right/wrong standard of review is applicable.

In assessing claims of ineffective assistance of counsel, the applicable standard is whether, "viewed as a whole, the assistance provided [was] 'within the range of competence demanded of attorneys in criminal cases.' " State v. Antone, 62 Haw. 346, 348, 615 P.2d 101, 104 (1980) (citation omitted).

General claims of ineffectiveness are insufficient and every action or omission is not subject to inquiry. Specific actions or omissions alleged to be error but which had an obvious tactical basis for benefitting the defendant's case will not be subject to further scrutiny. If, however, the action or omission had no obvious basis for benefitting the defendant's case and it "resulted in the withdrawal or substantial impairment of a potentially meritorious defense," then [it] ... will be evaluated as ... information that ... an ordinary competent criminal attorney should have had.

Briones v. State, 74 Haw. 442, 462-63, 848 P.2d 966, 976 (1993) (emphasis in original) (internal citations omitted). The...