79 Hawai'i 118, Turner v. State, 16631

• Decision Date: 20 June 1995
• Docket Number: No. 16631,16631
• Parties: 79 Hawai'i 118 Terry Michael TURNER, Petitioner-Appellant, v. STATE of Hawai'i, Respondent-Appellee.
• Court: Hawaii Court of Appeals

Page 401

899 P.2d 401

79 Hawai'i 118

Terry Michael TURNER, Petitioner-Appellant, v. STATE of Hawai'i, Respondent-Appellee.

No. 16631.

Intermediate Court of Appeals of Hawai'i.

June 20, 1995.

Certiorari Denied July 7, 1995.

[79 Hawai'i 119] Terry Michael Turner, Aiea, Petitioner-Appellant, pro se, on the brief.

Patricia A. Loo, Deputy Pros. Atty., City and County of Honolulu, on the brief, Honolulu, for respondent-appellee.

Before BURNS, C.J., and WATANABE, J., and SHIMABUKURO Circuit Judge in Place of ACOBA, J., Disqualified.

Syllabus by the Court

1. On July 2, 1984, petitioner pled guilty to a crime committed on February 14, 1982. On September 13, 1984, petitioner was sentenced to time served, five years of probation, and restitution. Because petitioner failed to comply with conditions of probation, the circuit court, on September 3, 1986, revoked his probation and sentenced him to be incarcerated for ten years.

2. On October 21, 1992, the circuit court, without a hearing, denied petitioner's August 3, 1992 Hawai'i Rules of Penal Procedure Rule 40 Amended Petition for Post-Conviction Relief. Because the facts alleged in Petitioner's Amended Petition do not entitle petitioner to relief, we affirm the circuit court.

BURNS, Chief Judge.

Petitioner-Appellant Terry Michael Turner (Turner) appeals the First Circuit Court's October 21, 1992 order (October 21, 1992 Order) denying, without a hearing, his August 3, 1992 "Amended Petition for Post-Conviction Relief (Rule 40, HRPP)" (August 3, 1992 Amended Petition). We affirm.

PRIOR PROCEEDINGS

On April 7, 1982, in Criminal No. 56933, Turner was indicted for Rape in the First Degree, Hawai'i Revised Statutes (HRS) § 707-730 (Supp.1981), of a woman on or about February 14, 1982. At the time of the alleged offense, Turner was training as a professional boxer. On July 2, 1984, Turner pled guilty to Assault in the First Degree, HRS § 707-710 (Supp.1972).

On September 13, 1984, the circuit court sentenced Turner to time served, probation for five years, and restitution. Because Turner failed to comply with his condition of probation, the circuit court, on September 3, 1986, revoked Turner's probation and sentenced him to be incarcerated for ten years.

On April 15, 1992, Turner filed a Hawai'i Rules of Penal Procedure (HRPP) Rule 40 "Petition for Post-Conviction Relief (Rule 40, HRPP)." Turner's August 3, 1992 Amended Petition alleged fourteen grounds of relief (A through N), in essence, as follows:

(1) he was wrongfully indicted because there was no factual basis for the indictment (L);

(2) the State maliciously prosecuted him notwithstanding insufficient evidence (M);

(3) his plea was not understandingly made (I, J);

(4) his guilty plea was unacceptable because there was no factual basis for the plea (A);

(5) the sentence is illegal and the trial court unlawfully revoked his probation (N);

(6) he was incompetent when he made a statement to the police, pled guilty, and was sentenced, and when the circuit court revoked his prior sentence and sentenced him to incarceration (E, F, G, H);

(7) Anne Randolph and Jerry Wilson provided ineffective assistance of counsel (B, C, D, K).

On October 21, 1992, the circuit court entered an Order Denying Petition for Post-Conviction Relief Without a Hearing (October 21, 1992 Order). The circuit court decided

[79 Hawai'i 120] that grounds A through D were waived pursuant to HRPP Rule 40(a)(3) ¹ because Turner knowingly and understandingly failed to raise the issues at the change of plea proceeding on July 2, 1984 and the remaining grounds were "patently frivolous and without [a] trace of support either in the record or from other evidence submitted by the Petitioner[.]"

DISCUSSION

The question is whether the circuit court reversibly erred in denying Turner's August 3, 1992 Amended Petition without a hearing.

HRPP Rule 40(f) (1989), which governs post-conviction hearings, provides in pertinent part that:

If a petition alleges facts that if proven would entitle the petitioner to relief, the court shall grant a hearing which may extend only to the issues raised in the petition or answer. However, the 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.

Although court records in other cases are not part of the record on appeal, Orso v. City and County of Honolulu, 55 Haw. 37, 38, 514 P.2d 859, 860 (1973); see State v. Lewis, 6 Haw.App. 624, 626, 736 P.2d 70, 72 (1987), we may take judicial notice of them. See Eli v. State, 63 Haw. 474, 478, 630 P.2d 113, 116 (1981).

In explaining Rule 40(f), we have stated:

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. [State v.] Schrock, [149 Ariz. 433, 719 P.2d 1049 (1986) ]. To establish a colorable claim, the allegations of the petition must show that if taken as true the facts alleged would change the verdict, State v. Lemieux, 137 Ariz. 143, 669 P.2d 121 (Ct.App.1983); however, a petitioner's conclusions need not be regarded as true. Phillips v. State, 108 Idaho 405, 700 P.2d 27 (1985). Where examination of the record of the trial court proceedings indicates that the petitioner's allegations show no colorable claim, it is not [an] error to deny the petition without a hearing. Widermyre v. State, 452 P.2d 885 (Alaska 1969). The question on appeal of a denial of a Rule 40 petition without a hearing is whether the trial court 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. Id.

State v. Allen, 7 Haw.App. 89, 92-93, 744 P.2d 789, 792-93 (1987). The Hawai'i Supreme Court adopted this analysis of HRPP Rule 40(f) in Dan v. State, 76 Hawai'i 423, 427, 879 P.2d 528, 532 (1994).

Allen 's use of the word "conclusions" needs to be explained. In Kraft v. State, 100 Idaho 671, 603 P.2d 1005 (1979), the petitioner alleged that his counsel only met with him for thirty-five minutes three days prior to the trial and, therefore, he had been the victim of ineffective assistance of counsel. The Idaho Supreme Court stated that "[i]n such a situation, ..., this Court must accept the petition's allegations as true, but need not accept its conclusions." Id. 603 P.2d at 1008. It then decided that it was required to believe the alleged facts that the petitioner's counsel only met with petitioner for thirty-five minutes three days prior to the trial but was not required to believe the alleged conclusion that such facts add up to incompetence. In our view, the allegation that such facts add up to incompetence alleges an ultimate fact. The allegation that such incompetence constituted The dispositive question is whether the alleged facts, if proven, would entitle Turner to relief. If the answer is yes, Turner should have had a hearing. If the answer is no, we must affirm.

[79 Hawai'i 121] ineffective assistance of counsel alleges a conclusion of law.

"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." Stanley v. State, 76 Hawai'i 446, 448, 879 P.2d 551, 553 (1994) (citing Dan v. State, 76 Hawai'i at 427, 879 P.2d at 532).

We conclude that only Turner's grounds E, F, G, and H merit our discussion. In these four grounds, Turner alleges that he was mentally incompetent in 1982 when he made a statement to the police, in 1984 when he pled guilty and was sentenced, and in 1986 when the circuit court revoked his prior sentence and sentenced him to incarceration.

A defendant must be mentally competent in order to be tried. HRS § 704-403 (1985), which provides the standard of competence to stand trial in Hawai'i, states: "No person who as a result of a physical or mental disease, disorder, or defect lacks capacity to understand the proceedings against him or to assist in his own defense shall be tried, convicted, or sentenced for the commission of an offense so long as such incapacity endures."

In Godinez v. Moran, 509 U.S. 389, 113 S.Ct. 2680, 125 L.Ed.2d 321 (1993), the United States Supreme Court reiterated its holding in Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960), "that the standard for competence to stand trial is whether the defendant has 'sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding' and has 'a rational as well as factual understanding of the proceedings against him.' " Godinez, 509 U.S. at ----, 113 S.Ct. at 2685.

Therefore, to obtain relief, Turner must prove that in February 1982, on July 2, 1984, on September 13, 1984, and/or on September 3, 1986 (A) a mental disease, disorder, or defect was causing Turner to lack the capacity to understand the proceedings against him, to assist in his own defense, or to plead guilty; or (B) at that time Turner did not have (i) sufficient ability to consult with his lawyer with a reasonable degree of rational understanding, and/or (ii) a rational, as well as factual, understanding of the proceedings against him.

The relevant alleged facts are as follows. In a statement typed and signed in 1992, but not notarized, Virginia O. Turner, Turner's mother, states that Turner's maternal uncle suffered from mental illness and his oldest and youngest brothers suffer from mental illnesses.

In a statement typed and signed in 1992, but not notarized, Malinda G. Turner, Turner's oldest sibling, states that Turner suffered a head injury in a car accident in November 1971, then entered the Navy in 1972 but suffered an attitude change and was unable to complete his Navy enlistment.

In a written statement dated January 24, 1992, Turner states that he suffered a "head injury" in 1971 when a car he was driving "hit a telegram...