Fukusaku v. State

• Citation: 126 Hawai'i 555,273 P.3d 1241
• Decision Date: 03 April 2012
• Docket Number: No. 28994.,28994.
• Parties: Raita FUKUSAKU, Petitioner–Appellant, v. STATE of Hawai‘i, Respondent–Appellee.
• Court: Court of Appeals of Hawai'i

126 Hawai'i 555

273 P.3d 1241

Raita FUKUSAKU, Petitioner–Appellant,

v.STATE of Hawai‘i, Respondent–Appellee.

No. 28994.

Intermediate Court of Appeals of Hawai‘i.

April 3, 2012.

Raita Fukusaku, on the briefs, Petitioner–Appellant Pro Se.

Lisa M. Itomura, Diane K. Taira, Deputy Attorneys General, on the briefs, for Respondent–Appellee.

NAKAMURA, Chief Judge, LEONARD, J., and Circuit Judge KIM in place of FOLEY, FUJISE, REIFURTH, and GINOZA, JJ., all recused.

Opinion of the Court by NAKAMURA, C.J.

Petitioner–Appellant Raita Fukusaku (Fukusaku) was convicted of two counts of second-degree murder. He was originally sentenced by the Circuit Court of the First Circuit (Circuit Court) to consecutive terms of life imprisonment with the possibility of parole, subject to mandatory minimum terms of fifteen years. With respect to Fukusaku's original sentence, the Hawai‘i Paroling Authority (HPA) set Fukusaku's minimum terms of imprisonment before eligibility for parole on the two counts at consecutive twenty-year terms, for an aggregate minimum term of forty years of imprisonment. On appeal, the Hawai‘i Supreme Court affirmed Fukusaku's convictions, but it vacated the mandatory minimum fifteen-year terms imposed by the Circuit Court and remanded the case for resentencing. State v. Fukusaku, 85 Hawai‘i 462, 487–90, 500, 946 P.2d 32, 57–60, 70 (1997).

On remand, the Circuit Court resentenced Fukusaku to two consecutive terms of life imprisonment with the possibility of parole, but without any mandatory minimum terms of imprisonment. When Fukusaku appeared before the HPA to set his minimum terms of imprisonment after his resentencing, the HPA increased Fukusaku's minimum terms to consecutive twenty-five-year terms. The result of the HPA's action was to increase Fukusaku's aggregate minimum term before parole eligibility from forty to fifty years. In its February 24, 2005, written order fixing the minimum terms of imprisonment on Fukusaku's resentencing, the HPA did not cite any new information or changed circumstances not presented at the time of its original minimum term determination, but identified the "Nature of Offense" as the justification for its decision.

Fukusaku filed a petition to set aside the increased minimum terms of imprisonment established by the HPA on the ground that the HPA's decision was arbitrary and capricious. The Circuit Court denied Fukusaku's petition without a hearing, concluding that his allegations failed to present a colorable claim for relief. As explained in greater detail below, we hold that Fukusaku's petition presented a colorable claim for relief and therefore, the Circuit Court erred in denying Fukusaku's petition without a hearing. We vacate the Circuit Court's order denying Fukusaku's petition without a hearing, and we remand the case for further proceedings.

BACKGROUND

I.

In the underlying criminal case, Fukusaku was charged with one count of first-degree murder and two counts of second-degree murder. After a jury trial, Fukusaku was found guilty of the two second-degree murder counts and was acquitted of the first-degree murder count. The Circuit Court originally sentenced Fukusaku to consecutive terms of life imprisonment with the possibility of parole on the two second-degree murder counts. The Circuit Court also originally imposed consecutive fifteen-year mandatory minimum terms of imprisonment on these two counts for the use of a firearm in committing each offense, pursuant to HRS § 706–660.1(1) (1993).

With respect to Fukusaku's original sentence, the HPA issued an order setting Fukusaku's minimum terms of imprisonment at consecutive twenty-year terms, for an aggregate minimum term of forty years. According to the HPA's order, Fukusaku's aggregate minimum term was scheduled to expire on August 1, 2033.

Fukusaku appealed his convictions and his original sentences. The Hawai‘i Supreme Court affirmed Fukusaku's convictions, but held that the Circuit Court erred in imposing the mandatory minimum terms for use of a firearm, pursuant to HRS § 706–660.1(1), because the jury's verdicts failed to reveal whether Fukusaku had been found guilty as a principal or an accomplice. Fukusaku, 85 Hawai‘i at 487–90, 946 P.2d at 57–60. The supreme court concluded that it was impossible to determine from the jury's verdicts whether the jury found that Fukusaku "was the principal who killed the [victims] with a firearm or that he was an accomplice who aided the commission of the crime in some other way." Id. at 489, 946 P.2d at 59. Based on its prior decision in Garringer v. State, 80 Hawai‘i 327, 909 P.2d 1142 (1996), the supreme court ruled that because the imposition of the HRS § 706–660.1(1) mandatory minimum could not be based on accomplice liability and required a jury finding that Fukusaku used or possessed a firearm in committing the offenses, the mandatory minimum sentences imposed by the Circuit Court must be vacated. Fukusaku, 85 Hawai‘i at 489–90, 946 P.2d at 59–60. The supreme court withheld its judgment for thirty days to give the prosecution time to decide whether to retry Fukusaku to obtain the necessary jury findings to impose the mandatory minimums or to consent to resentencing Fukusaku without the mandatory minimums. Id. at 490, 500, 946 P.2d at 60, 70. The prosecution chose to have Fukusaku resentenced without the mandatory minimums. Id. at 500, 946 P.2d at 70. Accordingly, the supreme court vacated the mandatory minimum terms imposed by the Circuit Court and remanded the case for the resentencing of Fukusaku without the mandatory minimum terms. Id.

On remand, the Circuit Court resentenced Fukusaku to two consecutive terms of life imprisonment with the possibility of parole, but this time without any mandatory minimum terms of imprisonment. Fukusaku again appealed. The Hawai‘i Supreme Court, by summary disposition order filed on March 12, 1999, held that the Circuit Court had correctly resentenced Fukusaku and affirmed Fukusaku's judgment. State v. Fukusaku, No. 21475, 90 Hawai‘i 476, 979 P.2d 72 (Hawai‘i Mar. 12, 1999) (SDO).

On November 22, 2002, Fukusaku filed a petition for post-conviction relief pursuant to Hawai‘i Rules of Penal Procedure (HRPP) Rule 40 (2000) (First Petition), challenging his convictions based on alleged perjured testimony given at his trial. On May 30, 2003, the Circuit Court denied Fukusaku's First Petition, and on appeal, this court issued a summary disposition order affirming the Circuit Court's decision. Fukusaku v. State, No. 26149, –––Hawai‘i ––––, 2006 WL 2612685 (Hawai'i App. Sept.12, 2006) (SDO).

In the meantime, on November 26, 2003, approximately six months after the Circuit Court denied Fukusaku's First Petition, Fukusaku appeared before the HPA for the setting of his minimum terms for parole eligibility pursuant to his resentencing. On December 10, 2003, the HPA issued an order setting Fukusaku's minimum terms at twenty-five years for each count. Notwithstanding the Circuit Court's imposition of consecutive sentences, the HPA's order reflected that the minimum terms expired concurrently for both counts on August 11, 2019. On February 24, 2005, the HPA issued a "corrected copy" of its minimum term order which reflected that the minimum terms were consecutive twenty-five-year terms, with the minimum term on the first count to expire on August 11, 2019, and the minimum term on the second count to expire on August 4, 2044.¹ The only significant factor identified in the corrected order for determining the Level III level of punishment was " Nature of Offense."

II.

On September 5, 2007, Fukusaku, proceeding pro se, filed a second petition for post-conviction relief pursuant to HRPP Rule 40 (Second Petition), which is the petition at issue in this appeal. In his Second Petition, Fukusaku alleged that the HPA had set "arbitrary and capricious" minimum terms by increasing his minimum terms from twenty to twenty-five years on each count after he was resentenced. Fukusaku asserted that the "longer sentence" resulting from the increased minimum terms set by the HPA after his resentencing was "presumptively vindictive."

On January 23, 2008, the Circuit Court denied Fukusaku's Second Petition without a hearing by issuing its "Findings of Fact, Conclusions of Law, and Order Denying Petition to Vacate, Set Aside, or Correct Judgment or to Release from Custody" (Order Denying Second Petition).² The Circuit Court concluded that the allegations of Fukusaku's Second Petition failed to present a colorable claim for relief, and on that basis, the Circuit Court denied the Second Petition without a hearing.

III.

On appeal, Fukusaku argues that the Circuit Court erred in denying his Second Petition without a hearing, and he challenges the Circuit Court's conclusion that his petition failed to present a colorable claim for relief that would entitle him to a hearing. Fukusaku asserts that there was no new-information to justify the HPA's increasing his aggregate minimum term of imprisonment by ten years after his resentencing and that the HPA's increase of his minimum terms was arbitrary and capricious to the point of violating his due process rights.

As explained below, we conclude that Fukusaku presented a colorable claim for relief and that the Circuit Court erred in denying his Second Petition without a hearing.

DISCUSSION

I.

A petition filed pursuant to HRPP Rule 40 is an appropriate means for a prisoner to challenge a minimum term of imprisonment set by the HPA. Coulter v. State, 116 Hawai‘i 181, 184, 172 P.3d 493, 496 (2007). With respect to HPA decisions establishing a minimum term, "judicial intervention is appropriate where the HPA has failed to exercise any discretion at all, acted arbitrarily and capriciously so as to give rise to a due process violation, or otherwise violated the prisoner's constitutional rights." Williamson v. Hawai‘i Paroling Auth., 97 Hawai‘i 183, 195, 35 P.3d 210, 222 (2001) (emphasis added).

We review a trial court's denial of an HRPP Rule 40 petition...