Conner v. State, 15365
| Court | Court of Appeals of Hawai'i |
| Writing for the Court | Before BURNS, C.J., HEEN, J., and HUDDY; HEEN |
| Citation | 826 P.2d 440,9 Haw.App. 122 |
| Parties | Demont R.D. CONNER, Petitioner-Appellant, v. STATE of Hawaii, Respondent-Appellee. |
| Docket Number | No. 15365,15365 |
| Decision Date | 16 March 1992 |
Page 440
v.
STATE of Hawaii, Respondent-Appellee.
Page 441
In determining the voluntariness of a defendant's proferred guilty plea, the court must make an affirmative on-the-record showing through a colloquy with the defendant that the defendant has a full and complete understanding of what the guilty plea connotes and its consequences. The record of the colloquy must show not only that the defendant was aware of the maximum sentence, but also, where appropriate, that the defendant knew he faced a mandatory minimum prison term.
[9 Haw.App. 129] Seth Thompson (Shigetomi and Thompson, of counsel), on the briefs, Honolulu, for petitioner-appellant.
James M. Anderson, Deputy Pros. Atty., on the brief, Honolulu, for respondent-appellee.
Before [9 Haw.App. 122] BURNS, C.J., HEEN, J., and HUDDY, Circuit Judge, assigned by reason of vacancy.
HEEN, Judge.
This Rule 40, Hawaii Rules of Penal Procedure (HRPP) (1989), petition for post-conviction relief case had its genesis in Petitioner-Appellant DeMont R.D. Connor's (Petitioner) guilty pleas to charges of Assault in the Second Degree, Hawaii Revised Statutes (HRS) § 707-711(1)(c) (1985), in Criminal No. 84-0491 (Cr. 84-0491), and Attempted Escape in the Second Degree, HRS [9 Haw.App. 123] § 705-500 (1985) and § 710-1021 (1985) in Criminal No. 84-0553 (Cr. 84-0553), entered on February 21, 1985, and March 1, 1985, respectively. 1
Thereafter, on March 22, 1985, the State filed a motion in Cr. 84-0491 to have Petitioner sentenced as a repeat offender in that case in accordance with HRS § 706-606.5(2) (1985) on the ground that Petitioner had been convicted on March 6, 1984, for rape in the first degree, on June 14, 1984, for kidnapping, and on February 21, 1985, for assault in the second degree. 2 , 3 On April 4, 1985, the date set for sentencing, the sentencing judge heard the State's motion [9 Haw.App. 124] and granted it. Immediately thereafter, the sentencing judge sentenced Petitioner in Cr. 84-0491 to imprisonment for both the maximum indeterminate term of five years and the mandatory minimum term of five years without possibility of parole. The sentencing judge also sentenced Petitioner to a five-year indeterminate prison term in Cr. 84-0553. The sentencing judge ordered the sentence in each case to be served concurrently with the other but consecutive to any sentence Petitioner was then serving. 4 On July 10, 1985, Defendant filed a motion for reconsideration of the sentences in both cases, which the sentencing judge denied.
Page 442
On May 22, 1990, Petitioner filed the pro se petition in this case "To Vacate, Set Aside, Or Correct Judgment Or To Release Petitioner from Custody." On August 15, 1990, counsel was appointed to represent Petitioner. The petition alleged that Petitioner was denied effective assistance of counsel because his attorneys did not inform him of his right to appeal the sentences, did not do enough to mitigate the sentences, and did not advise him of the mandatory minimum sentence he faced in Cr. 84-0491. 5 Petitioner also alleged that had he known about the mandatory minimum sentence he would not have pleaded guilty in the two cases. Finally, Petitioner claimed he was denied his right to appeal the sentences. 6
On May 23, 1991, after a hearing, the lower court entered its order denying the petition. In its finding of fact (FOF) no. 2(f), the lower court found that Petitioner told the accepting judge that Petitioner had read and understood the written guilty plea form [9 Haw.App. 125] before he signed it. In FOF no. 2(g), the lower court found that the guilty plea form contained a paragraph stating that Petitioner's then counsel had explained that "I may have to serve a mandatory minimum term of imprisonment without possibility of parole." In FOF no. 4(f), the lower court found that Petitioner
understood that imposition of a five-year indeterminate term of imprisonment was mandatory due to the fact that he was under sentence of imprisonment, but he believed that term of imprisonment would be subject to parole, and did not understand that the period would not be subject to parole, pursuant to HRS § 706-606.5.
On the basis of those findings, the lower court stated in conclusion of law (COL) no. 2 that Petitioner's plea was voluntary, and that he understood the nature of the charge and the consequences of the plea. Specifically, the court found, although the finding is stated as COL no. 3, that based upon FOF no. 2(f), 2(g), and 4(f), "Petitioner understood that he could receive a mandatory minimum term of imprisonment of five years without possibility of parole[.]"
Petitioner contends that COL no. 3 is clearly erroneous. State v. Yoon, 66 Haw. 342, 662 P.2d 1112 (1983). Petitioner asserts that when he pleaded guilty he was not aware that he was facing a mandatory minimum sentence in Cr. 84-0491 and would not have pleaded guilty had he known. He also contends that he pleaded guilty in Cr. 84-0553 only because he wanted to be rid of all the charges pending against him and did so in ignorance of the mandatory minimum sentence in Cr. 84-0491. Consequently, he argues that in order to prevent manifest injustice he should be allowed to withdraw both guilty pleas.
We conclude that the lower court erred in denying the petition with respect to Cr. 84-0491. However, the court was correct in denying the petition in regards to Cr. 84-0553.
We address, first, the extent of the court's duty to inquire into a...
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