Killion v. State, No. 29077 (Haw. App. 2/24/2009)
| Decision Date | 24 February 2009 |
| Docket Number | No. 29077,29077 |
| Parties | LARRY LEE KILLION, JR., Petitioner-Appellant, v. STATE OF HAWAl'l, Respondent-Appellee. |
| Court | Hawaii Court of Appeals |
APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT (S.P.P. NO. 07-1-0010(2))
On the briefs:
Larry Lee Killion, Jr. A0729793-LA66, Saguaro Correctional Facility, Eloy, AZ, Petitioner-Appellant Pro Se.
Richard K. Minatoya, Deputy Prosecuting Attorney, County of Maui, Wailuku, Maui, Hawai'i, for Respondent-Appellee State of Hawai'i.
Mark J. Bennett, Attorney General, State of Hawai'i Lisa M. Itomura Diane K. Taira Deputy Attorneys General Honolulu, Hawai'i, for Respondent-Appellee State of Hawai'i, Department of the Attorney General
Petitioner-Appellant Larry L. Killion, Jr. (Killion) appeals pro se from the Findings of Fact, Conclusions of Law, and Judgment Denying Rule 40 Petition for Post-Conviction Relief, filed on March 5, 2008 (Order Denying Rule 40 Petition), in the Circuit Court of the Second Circuit (Circuit Court)1
Killion identifies as points of error the following four Conclusions of Law entered by the Circuit Circuit:
1. "[Killion's] Constitutional Claims Do Not Relate To Illegal Custody or Restraint, Therefore, Such Claims Are Dismissed";
2. "[State v.] Tauiliili Does Apply to Petitioner and Petitioner Received All Credit Due";
3. "The [Hawaii Paroling Authority] and [Department of Public Safety] Did Not Violate The Ex Post Facto Clause When [Killion's] Minimum Terms And Sentences Were Corrected"; and
4. "[Killion] Has No Right To, Or Liberty Interest In, Parole and [Hawaii Paroling Authority] and [Department of Public Safety] Did Not Violate [Killion's] Right To Due Process."
In short, Killion argues that: (1) the Hawai'i Supreme Court's decision in State v. Tauiliili, 96 Hawai'i 195, 29 P.3d 914 (2001) (Tauiliili), cannot be applied retroactively to his minimum sentences because the Circuit Court ordered that he be given presentence credit to all minimum terms, including each of his consecutive terms; (2) the Hawaii Paroling Authority (HPA) created regulations, policies, rules, directives, and/or memoranda to address how to apply Tauiliili retrospectively which violates due process and the ex post facto clause of the United States Constitution; and (3) Killion was entitled to an evidentiary hearing to "provide a detailed picture how, and under what circumstances the State "recalculated" or "corrected" presentence credits and release dates." For the reasons set forth below, we reject these contentions. We conclude that the Hawaii Supreme Court's decision in Tauiliili can be applied to Killion's sentences.
On November 1, 1990, after Killion pled no contest, the Circuit Court convicted Killion of three counts of Sexual Abuse in the First Degree, in violation of Hawaii Revised Statutes (HRS) § 707-736 (1985) (Counts 1, 31, and 92), two counts of Sodomy in the Second Degree, in violation of HRS § 707-734 (1985) (Counts 2 and 32), three counts of Rape in the Second Degree, in violation of HRS § 707-731 (1985) (Counts 3, 33, and 93), nine counts of Sexual Assault in the Third Degree, in violation of HRS § 707-732 (1986) (Counts 58, 88, 100, 131, 149, 164, 167, 171, and 174), three counts of Sexual Assault in the Second Degree, in violation of HRS § 707-731 (1986) (Counts 176, 184, and 191), twelve counts of Sexual Assault in the First Degree, in violation of HRS § 707-730 (1986) (Counts 59, 60, 89, 90, 101, 128, 132, 133, 150, 151, 165, and 166), and three counts of Promoting Child Abuse in the First Degree, in violation of HRS § 707-750 (1985) (Counts 91, 129, and 192).
At the time Killion committed the crimes, Sexual Assault was a Class A felony subject to an indeterminate twenty-year term of imprisonment. HRS § 706-659 (1985). Sodomy in the Second Degree, Rape in the Second Degree, Sexual Assault in the Second Degree, and Promoting Child Abuse in the First Degree were Class B felonies subject to indeterminate ten-year terms of imprisonment. HRS § 706-660 (1985). Sexual Assault in the Third Degree and Sexual Abuse in the First Degree were Class C felonies subject to indeterminate five-year terms of imprisonment. HRS § 706-660.
On November 1, 1990, the Circuit Court entered an Amended Judgment which stated:
FINAL JUDGMENT AND SENTENCE OF THE COURT:
DEFENDANT COMMITTED TO THE CUSTODY OF THE DEPARTMENT OF PUBLIC SAFETY FOR A MAXIMUM TERM OF IMPRISONMENT OF FORTY (40) YEARS. MITTIMUS TO ISSUE FORTHWITH WITH CREDIT FOR TIME SERVED. COUNTS 60, 89, 90, 101, 128, 132, 133, 150, 151, 165, 166 TO RUN CONCURRENT BUT CONSECUTIVE TO COUNT 59.
DEFENDANT COMMITTED TO THE CUSTODY OF THE DEPARTMENT OF PUBLIC SAFETY FOR A MAXIMUM TERM OF IMPRISONMENT OF TEN (10) YEARS. MITTIMUS TO ISSUE FORTHWITH WITH CREDIT FOR TIME SERVED. TERMS TO RUN CONCURRENT FOR COUNTS 2, 32, 3, 33, 93, 176, 184, 191, 91, 129, 192.
DEFENDANT COMMITTED TO THE CUSTODY OF THE DEPARTMENT OF PUBLIC SAFETY FOR A MAXIMUM TERM OF IMPRISONMENT FOR FIVE (5) YEARS. MITTIMUS TO ISSUE FORTHWITH WITH CREDIT FOR TIME SERVED. TERMS TO RUN CONCURRENT FOR COUNTS 58, 88, 100, 171, 131, 149, 164, 167, 174, 1, 31, 92.
Also on November 1, 1990, the Circuit Court issued an Amended Mittimus, with an effective date of October 26, 1990. Accordingly, Killion's maximum sentence was to end on October 25, 2030 (two consecutive twenty year sentences), before application of any presentence credit.
As of October 15, 1990, Killion's presentence credit was 620 days. On April 15, 1993, Killion received a Notice and Order Fixing Minimum Term(s) of Imprisonment (1993 Notice). The minimum terms were twelve years for Killion's Class A felony convictions, six years for Killion's Class B felony convictions and three years for Killion's Class C felony convictions. Killion's minimum term for Count 59, a Class A felony, would have expired on October 25, 2002 without any presentence credit. After applying another twelve year consecutive term for his other Class A felony convictions, Killion's minimum term would expire on October 25, 2014 without any presentence credit.
According to the 1993 Notice, after application of his presentence credit, Killion's minimum term for Count 59 was set to expire on January 27, 2001. The 1993 Notice also stated that his consecutive twelve year terms were to expire on May 1, 2011. It appears that HPA applied the presentence credit to each of Killion's consecutive twelve year sentences, otherwise his consecutive sentence would have ended on January 27, 2013.
On August 11, 2006, Killion received another Notice and Order Fixing Minimum Term(s) of Imprisonment (2006 Notice). The 2006 Notice stated: "CORRECTED pursuant to Supreme Court decision re: State v. Tauiliili giving credit once against aggregate of the consecutive sentence." The 2006 Notice specified that Killion's consecutive minimum sentence was corrected and would expire on January 24, 2013.2
On October 16, 2007, Killion filed a Petition for Post-Conviction Relief pursuant to Hawaii Rules of Penal Procedure (HRPP) Rule 40 (Rule 40 Petition) against HPA. Killion sought an order requiring HPA Killion claimed that HPA violated the ex post facto clause of the United States Constitution, the equal protection clause of the Fourteenth Amendment to the United States Constitution, the due process clause of the Fourteenth Amendment to the United States Constitution, Article i, Section 5 of the Hawai'i Constitution, and the Eighth Amendment to the United States Constitution, which prohibits cruel and unusual punishment.
On March 5, 2008, the Circuit Court issued its Findings of Fact, Conclusions of law, and Judgment Denying Rule 40 Petition for Post-Conviction Relief. The Circuit Court denied the Rule 40 Petition without a hearing and Killion timely filed this appeal.
Regarding the denial of a Hawai'i Rules of Penal Procedure (HRPP) Rule 40 petition without an evidentiary hearing, HRPP Rule 40(f) provides in relevant part:
(f) Hearings. 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. The court may also deny a hearing on a specific question of fact when a full and fair evidentiary hearing upon that question was held during the course of the proceedings which led to the judgment or custody which is the subject of the petition or at any later proceeding.
In Barnett v. State, 91 Hawai'i 20, 979 P.2d 1046 (1999), the Hawai'i Supreme Court 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. To establish a colorable claim, the allegations of the petition must show that if taken as true the facts alleged would change the verdict, however, a petitioner's conclusions need not be regarded as true. Where examination of the record of the trial court proceedings indicates that the petitioner's allegations show no colorable claim, it is not error to deny the petition without a hearing. The question on appeal of a denial of a Rule 40 petition without a hearing is whether the trial 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.
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