Cun-Lara v. State
| Decision Date | 28 March 2012 |
| Docket Number | No. 30497.,30497. |
| Parties | Isidro Oswaldo CUN–LARA, Petitioner–Appellant, v. STATE of Hawai‘i, Respondent–Appellee. |
| Court | Hawaii Court of Appeals |
Walter J. Rodby, on the briefs, for Petitioner–Appellant.
Tracy Murakami, Deputy Prosecuting Attorney, County of Kaua‘i, on the briefs, for Respondent–Appellee.
Petitioner–Appellant Isidro Oswaldo Cun–Lara ("Cun–Lara") appeals from the Findings of Fact; Conclusions of Law; Order Denying Petitioner Isidro Oswaldo Cun–Lara's Rule 40, HRPP Petition for Post–Conviction Relief filed in the Circuit Court of the Fifth Circuit ("Circuit Court") on May 4, 2010.1 The Circuit Court held that Cun–Lara's November 9, 2009 Petition to Vacate, Set Aside, or Correct Judgment ("Petition") failed to raise any colorable claims and denied the petition without a hearing.
On appeal, Cun–Lara argues that the Circuit Court erred in concluding that the merits of his Petition were patently frivolous and without a trace of support in the record such that the Petition raised no colorable claim. Specifically, Cun–Lara contends that his no-contest plea was not entered in an intelligent, knowing, and voluntary manner because his attorney, Alfred B. Castillo, Jr. ("Attorney Castillo"), provided him with ineffective assistance of counsel and because he was not provided with a Spanish interpreter at the July 23, 2007 hearing at which his change of plea from not guilty to no contest was accepted by the Circuit Court ("Change–of–Plea Hearing").
We affirm.
On June 14, 2006, Cun–Lara was charged by complaint in Criminal No. 06–1–0145 ("criminal case") with: (1) Unlawful Methamphetamine Trafficking in violation of Hawaii Revised Statutes ("HRS") § 712–1240.6(2) ;2 (2) Promoting a Dangerous Drug in the Third Degree in violation of HRS § 712–1243,3 and (3) Unlawful use of or Possession with Intent to Use Drug Paraphernalia in violation of HRS § 329–43.5(a).4
The Circuit Court made the following unchallenged findings of fact5 :
On June 20, 2006, Cun–Lara appeared for arraignment on the charges. The arraignment was conducted in English. Neither Cun–Lara nor his original counsel, Attorney Castillo, requested an interpreter during the hearing.
On July 20, 2006, Cun–Lara appeared in court for a preliminary hearing, at which time Cun–Lara and Attorney Castillo submitted a document, written in English and signed by Cun–Lara, waiving Cun–Lara's right to a preliminary hearing. At the hearing, the Honorable Judge Trudy Senda conducted a colloquy, in English, with Cun–Lara about the waiver document. Cun–Lara responded to all of Judge Senda's questions in English and did not inform Judge Senda that he did not understand the colloquy or the questioning. During the hearing, neither Cun–Lara nor Attorney Castillo requested an interpreter.
On August 21, 2006, Cun–Lara was arraigned in Circuit Court before the Honorable Judge George Masuoka. The hearing was conducted in English. Neither Cun–Lara nor Attorney Castillo requested an interpreter.
Thereafter, the trial was continued several times through stipulations filed with the Circuit Court on August 2, 2006, October 30, 2006, December 21, 2006, February 9, 2007 and April 18, 2007. All of the stipulations were written in English. Cun–Lara reviewed, approved, and signed the stipulations without assistance of an interpreter.
At the Change–of–Plea Hearing, Cun–Lara pleaded no contest to Count 3, Unlawful Use or Possession with Intent to Use Drug Paraphernalia, and made a motion to defer acceptance of his no-contest plea. During the hearing, Cun–Lara submitted a form on which the basis for his proposed change of plea is explained ("No–Contest–Plea Form"). The No–Contest–Plea Form was signed by Cun–Lara, was written in English, and filed in open court on July 23, 2007. On the form, Cun–Lara stated that:
At the Change–of–Plea Hearing, Cun–Lara informed the Circuit Court that, although English was his second language, he was able to read and write in English and that he was not having any difficulty understanding what was being said in English. The Circuit Court informed Cun–Lara that it was not bound by his plea agreement with the State, and Cun–Lara acknowledged that he understood.
The Circuit Court further explained a number of rights associated with a jury trial that Cun–Lara would waive if he proceeded with the no-contest plea, including the right to a jury of twelve community members, that Cun–Lara could not be convicted unless the jury unanimously agreed that he was guilty beyond a reasonable doubt, and that Cun–Lara had a right to cross-examine the State's witnesses, call his own witnesses, and to testify or not testify at trial. Cun Lara acknowledged in English that he understood the court's explanations.
The Circuit Court further informed Cun–Lara of the possible consequences that a no-contest plea could have on Cun–Lara's immigration status if he was not a U.S. citizen. Cun–Lara again acknowledged in English that he understood. Cun–Lara further acknowledged that he was satisfied with Attorney Castillo's advice and that he did not have any complaints about the legal advice or legal representation provided by Attorney Castillo.
At the beginning of the Change–of–Plea Hearing, Attorney Castillo advised the Circuit Court that Cun–Lara understood English and did not require an interpreter. During the Circuit Court's plea colloquy, Cun–Lara answered the Circuit Court's questions in the affirmative or the negative depending on the question, and frequently responded with cogent sentences properly addressing the corresponding questions. The transcript of the Change–of–Plea Hearing ("COP Transcript") reveals the following pertinent dialogue:
One part of the COP Transcript reveals an irregularity:
The Circuit Court found that Cun–Lara knowingly and voluntarily entered his plea of no contest to the charge that he violated HRS § 329–43.5(a) and accepted the plea.
On November 8, 2007, the Circuit Court conducted a hearing, in English, on Cun–Lara's sentencing and his pending motion to defer acceptance of the no-contest plea. At the hearing, Cun–Lara's motion was denied, and he was sentenced to five years probation. During the hearing, Cun–Lara responded in English to questioning by the Circuit Court and made a statement to the court in English. Neither Cun–Lara nor Attorney Castillo requested an interpreter. That same day, the Circuit Court filed the Judgment of Conviction and Probation Sentence ("Judgment") and the Order Denying Motion for Deferred Acceptance of Nolo Contendre Plea.
On April 23, 2008, pursuant to an agreement between the parties, the State dismissed the remaining charges against Cun–Lara: Count 1, Unlawful Methamphetamine Trafficking; and Count 2, Promoting a Dangerous Drug in the Third Degree.
According to Cun–Lara's new counsel, Walter J. Rodby ("Attorney Rodby"), on August 5, 2009, the United States Department of Homeland Security ("DHS") issued a warrant for Cun–Lara's arrest pursuant to section 236 of the Immigration and Nationality Act.6 Thereafter, on October 26, 2009, Cun–Lara filed a motion to withdraw his July 23, 2007 no-contest plea ("Motion to Withdraw Plea") under ...
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