D'Ambrosio v. State

• Decision Date: 29 September 2006
• Docket Number: No. 25961.,25961.
• Citation: 146 P.3d 606
• Parties: Robert C. D'AMBROSIO, Petitioner-Appellant, v. STATE of Hawai`i, Respondent-Appellee.
• Court: Hawaii Court of Appeals

146 P.3d 606

Robert C. D'AMBROSIO, Petitioner-Appellant, v. STATE of Hawai`i, Respondent-Appellee.

No. 25961.

Intermediate Court of Appeals of Hawaii.

September 29, 2006.

COPYRIGHT MATERIAL OMITTED

Robert C. D'Ambrosio, on the briefs, petitioner-appellant, pro se.

James M. Anderson, deputy prosecuting attorney, City and County of Honolulu, on the briefs, for plaintiff-appellee.

BURNS, C.J., and WATANABE, J.; with NAKAMURA, J., Concurring Separately.

Opinion of the Court by WATANABE, J.

Petitioner-Appellant Robert C. D'Ambrosio (D'Ambrosio, Mr. D'Ambrosio, Robert, or Petitioner) appeals from the findings of fact, conclusions of law, and order entered by the Circuit Court of the First Circuit (the circuit court)¹ on June 13, 2003 (the June 13, 2003 order), summarily dismissing his Hawai`i Rules of Penal Procedure (HRPP) Rule 40² Petition for Post-Conviction Relief (Rule 40 petition).

In his Rule 40 petition, D'Ambrosio alleged the following grounds for seeking post-conviction relief:

Ground one: His conviction was obtained by a guilty plea "which was unlawfully induced and not made voluntarily" because he entered into the plea agreement on the false promise that he would be represented at the hearing before the Hawaii Paroling Authority (the HPA or the paroling authority) to set his minimum term of imprisonment (minimum-term hearing) by his trial counsel, James M. Pallett (Pallett or Mr. Pallett);³

Ground two: He was denied the effective assistance of counsel because Pallett failed to appear at D'Ambrosio's minimum-term hearing four times and failed to advise D'Ambrosio of the HPA's Guidelines for Establishing Minimum Terms of Imprisonment (HPA Guidelines),⁴ rendering D'Ambrosio's "plea deal valueless[;]"

Ground three: His conviction was obtained by an unconstitutional failure of Respondent-Appellee State of Hawai`i (the State) to disclose evidence favorable to him because the State failed to inform him that he would "fall under the Level III inmate of the [HPA] Guidelines making our plea deal valueless[;]" and Ground four: He is innocent of murder, guilty of manslaughter, and only pleaded guilty to murder on the erroneous legal advice of his trial counsel.

Based on our review of the record, briefs, and relevant statutory and case law, we conclude that D'Ambrosio's Rule 40 petition presented a colorable claim on Ground 2—that D'Ambrosio received ineffective assistance of counsel at his minimum-term hearing—and should not have been summarily dismissed on that ground. Accordingly, we vacate the June 13, 2003 order and remand this case to the circuit court to conduct an evidentiary hearing on that issue. In all other respects we affirm the June 13, 2003 order.

BACKGROUND

On September 17, 1991, the State charged D'Ambrosio with committing Murder in the Second Degree, in violation of Hawaii Revised Statutes (HRS) §§ 707-701.5 (1985 & Supp.1990)⁵ and 706-656 (Supp.1990),⁶ for killing Song Muang Nancy Marsh (Marsh). The charge stemmed from a September 4, 1991 incident in which D'Ambrosio entered the Butterfly Lounge, where Marsh worked, and slit her throat with a knife.

Following a trial⁷ held from February 8 through March 3, 1994, a mistrial was declared when the jury was unable to reach a unanimous verdict. A new trial was initially scheduled for September 12, 1994 and, following several continuances, rescheduled to February 13, 1995 before the Honorable Marie N. Milks (Judge Milks). On that date, D'Ambrosio opted to enter into a plea agreement with the State, pursuant to which he pleaded guilty as charged and the State agreed to recommend to the HPA that D'Ambrosio's minimum imprisonment term be set at ten years.

Prior to allowing D'Ambrosio to enter his guilty plea, Judge Milks engaged in an extensive colloquy with D'Ambrosio to ensure that he realized that the HPA would not be bound by the State's recommendation and could set a minimum term of imprisonment longer than ten years for D'Ambrosio:

THE COURT:.... Mr. D'Ambrosio, I have a two-page document here. It says "Guilty/No Contest" on the top. It's what we call a pre-printed form and there are portions that are handwritten in. In the middle of Page 2, there's a date of March 13, and there's a signature. Did you sign this?

MR. D'AMBROSIO: Yes, I did.

....

THE COURT: Did you and Mr. Pallett have a chance to go over all of the parts to this document?

MR. D'AMBROSIO: Yes, we did.

....

THE COURT:.... I'm going to be asking you questions about the form and the reason we ask is to make sure you understand what's going on to clarify any misunderstandings you might have and make sure that no one is putting pressure on you or forcing you in any way to plead. If I ask a question and you don't understand my question, can you stop me? I'll ask the question over.

MR. D'AMBROSIO: Yes.

.... THE COURT: Paragraph 1 says that you're going to be entering a guilty plea to the charge of Murder in the Second Degree. Do you know what it means to plead guilty?

MR. D'AMBROSIO: Yes, I do.

THE COURT: You have already gone through a trial in this case, have you not, Mr. D'Ambrosio?

MR. D'AMBROSIO: Yes.

THE COURT: So you understand all the rights that you have fighting the case and having the State prove the charges against you?

MR. D'AMBROSIO: Yes.

THE COURT: And you understand that by pleading guilty, basically, you're going to stipulate or agree that there is a sufficient basis for a judge to find the elements of Murder in the Second Degree? Is that what Mr. Pallett explained?

MR. D'AMBROSIO: Yes.

....

THE COURT: Paragraph 3 says that you received a written copy of the original charge and having gone through a trial before, I would expect that you know who the witnesses are, you know essentially what the witnesses would say, and you and Mr. Pallett have discussed how you would defend against the charge, is that correct?

MR. D'AMBROSIO: That is correct.

THE COURT: And my understanding is that when you went to trial before, the jury was unable to agree to a verdict, is that correct?

MR. D'AMBROSIO: Yes.

THE COURT: The paragraph number five is marked as you're pleading guilty because you've discussed all the evidence and you've discussed the advice on the law with your lawyer and you believe that you're guilty, is that true?

MR. D'AMBROSIO: Yes.

THE COURT: Do you know what the maximum sentence is for this offense?

MR. D'AMBROSIO: I believe life with parole.

THE COURT: Did Mr. Pallett explain how life with parole works?

MR. D'AMBROSIO: Yes.

THE COURT: And how did he explain the minimum would be set? Did he tell you that the court would set the minimum or the parole authority would set the minimum?

MR. D'AMBROSIO: It was up to the paroling authority to set my minimum.

THE COURT: Now, one of the agreements that you have with regard to your plea is that you're going to plead as charged and the State is going to recommend to the paroling authority that you serve ten years before you're eligible for parole. Is that what you understand the State is going to recommend?

MR. D'AMBROSIO: Yes.

THE COURT: And do you understand that that does not mean that you have to serve a ten-year mandatory minimum? It will be up to the paroling authority and if the paroling authority wants to set less than ten, the paroling authority may do so, you understand that?

MR. D'AMBROSIO: Yes, your Honor.

THE COURT: In other words, this is not binding on the paroling authority. It is the State's recommendation which the paroling authority can either accept or reject.

MR. D'AMBROSIO: Your Honor, if I could speak, the only problem I had with the plea was I thought the plea bargain was a mandatory ten-year sentence.

THE COURT: It's not mandatory. No, it's not mandatory.

MR. D'AMBROSIO: The only problem I have with making a decision—

THE COURT: In fact, if Mr. Pallett wishes to, he can order a copy of the transcript for the paroling authority indicating that they're not bound by the State's recommendations and the court is not making any finding of any mandatory term. You also have to understand that if the paroling authority wants to impose a higher than ten years' minimum, they can do that too.

MR. D'AMBROSIO: I understand that too.

THE COURT: I don't want you to feel that they only go under ten. It will be up to the paroling authority. Did you feel that at any time Mr. Pallett was putting any pressure on you or forcing you in any way to come into court to plead?

MR. D'AMBROSIO: No, he left it totally up to myself what I wanted to do. He advised me of the possibilities on both sides.

THE COURT: And you're comfortable that he's respected your right to make your own decision on the case?

MR. D'AMBROSIO: Yes.

....

THE COURT: Once you plead today, if I make a finding that your plea was entered intelligently, knowingly, and voluntarily, you cannot hereafter wait for the paroling authority to set the minimum and then come back and say I don't like the minimum sentence, I want to withdraw my plea.

MR. D'AMBROSIO: I understand that, your Honor.

THE COURT: And for that reason, we want you to really understand what's going on. So far, do you have any other questions you'd like to direct to me?

MR. D'AMBROSIO: No, I don't.

....

THE COURT: The court makes the following findings. My first finding is that your plea has been entered intelligently. That means you understand the charge against you.

My second finding is that your plea has been entered knowingly and that means you know that by pleading, you face a sentence of life with parole. You know that the State is going to recommend a ten-year minimum term. You know that that is not a mandatory minimum term and that the paroling authority will be at liberty to set its own minimum term, subject to recommendation by the State.

My third finding is that your plea has been entered voluntarily. That means you're not taking the blame for anyone and that you have not been pressured or anything to extract your plea.

On May...