Villados v. State
| Citation | 477 P.3d 826 |
| Decision Date | 09 December 2020 |
| Docket Number | SCWC-15-0000111 |
| Parties | Albert VILLADOS, Jr., also known as Alberto Villados, Jr., Petitioner/Petitioner-Appellant/Cross-Appellee, v. STATE of Hawai‘i, Respondent/Respondent-Appellee/Cross-Appellant. |
| Court | Hawaii Supreme Court |
In 2012, this court dismissed Albert Villados's application for writ of certiorari, which asked us to review his 2010 conviction for promoting a dangerous drug in the second degree. Because Villados's attorney missed the deadline to file an application for writ of certiorari, we were deprived of jurisdiction to consider the merits of his appeal. Villados must now be allowed to refile his application. As we held in State v. Uchima, 147 Hawai‘i 64, 464 P.3d 852 (2020), a criminal defendant has the right to the effective assistance of counsel on certiorari review before this court. We conclude that Villados is entitled to appropriate relief because Villados's counsel was ineffective. In this case, appropriate relief is the opportunity to refile an application for writ of certiorari in his original case so that this court can decide to accept or reject it on the merits.
Villados was convicted of promoting a dangerous drug in the second degree and prohibited acts related to drug paraphernalia after a jury trial in the Circuit Court for the Second Circuit (circuit court).1 He was sentenced to thirty-five years in prison.2
Villados timely appealed his conviction and sentence to the Intermediate Court of Appeals (ICA), represented by a different attorney than at the trial court.3 On November 28, 2011, the ICA filed its Summary Disposition Order (SDO) affirming Villados's sentence and conviction. State v. Villados, No. 30442, 2011 WL 5909631 (App. Nov. 28, 2011). The ICA issued its judgment on appeal on January 4, 2012.
In a letter dated December 31, 2011, before the ICA filed its judgment on appeal, Villados's appellate counsel, ("appellate counsel"), acknowledged to Villados that she understood that he wanted to seek certiorari review. She informed him that she would not do so, however, because after reading the ICA's ruling, she could not find any basis to apply for certiorari review under Hawai‘i Revised Statutes (HRS) § 602-59(b) (Supp. 2011).4 She said, "[A]t this time, I do not see ‘grave errors of law or fact’ in the decision of the ICA in your case, and I do not see obvious inconsistencies with other ICA, Hawaii Supreme Court[,] or federal decisions." However, she also told him she would "review the ICA decision again" before the statutory deadline to file an application before this court. She further informed Villados,
In a letter dated January 20, 2012, appellate counsel told Villados that, in effect, she changed her mind and had "decided to file a writ on [his] behalf." She explained that she found "at least one point in the ICA's opinion that bothers [her]," and she "hope[d] to file" his application "by the end of January." She also informed Villados that she "tried calling [him]" at the prison but had to leave a message with a woman who had not yet called her back. She told Villados that she would "keep trying" to call him and that he should try calling her, though it might be difficult because she was frequently in meetings or in court.
Pursuant to HRS § 602-59(c), "[a]n application for a writ of certiorari may be filed with the supreme court no later than thirty days after the filing of the judgment or dismissal order of the intermediate appellate court." The February 3, 2012 deadline passed without an application or a request for an extension being filed.
In a letter dated February 15, 2012, appellate counsel informed Villados that she had not applied for certiorari review and that the deadline for doing so had passed. She stated that while she had started preparing his application, she ultimately decided, after reviewing the SDO once again, that she "could not file an application for a writ of certiorari." She explained,
Appellate counsel notified Villados that "[t]he time to file the writ is now be [sic] expired." However, she informed him that his recourse "may be a [Hawai‘i Rules of Penal Procedure (HRPP)] Rule 40[5 ] petition, which may be used to allege ineffective assistance of appellate counsel." While she stated that she "would not agree with" allegations of ineffective assistance, she told Villados that he could "apply for an attorney to assist [him] with that petition through the [circuit court]" and that she would "see that [his] files are expeditiously transferred to the new attorney" should he secure one for that purpose.
On June 12, 2012, roughly three months after the February 3, 2012 deadline, Villados filed an application for writ of certiorari to this court challenging the ICA decision on the merits. Accompanying the application, he also filed (1) a "Motion for Relief from Default and Permission to File a Writ of Certiorari" and (2) a motion for appointment of counsel. He provided an affidavit regarding ineffective assistance that stated, in relevant part:
Villados also provided an affidavit to support his request for appointment of counsel. Id. In relevant part, it stated as follows:
We dismissed the application, concluding that its untimeliness deprived us of jurisdiction. See State v. Villados, SCWC-30442, 2012 WL 3262752, at *1 (Haw. July 20, 2012). One justice dissented, arguing that the court should have accepted the untimely application because ineffective assistance of counsel caused the procedural defect. Id. at *3 (Acoba, J., dissenting). The dissent opined that the circumstances giving rise to Villados's untimely Application "fall[ ] squarely under the reasoning of" our cases that had excused procedural defects before the ICA. Id. (citing State v. Caraballo, 62 Haw. 309, 615 P.2d 91 (1980) ). Accordingly, the dissent would have taken jurisdiction over Villados's appeal as, it argued, due process required. Id. at *4.
On September 12, 2013,6 Villados filed a pro se petition for post-conviction relief in the circuit court pursuant to HRPP Rule 40.7 Villados alleged that he was denied effective assistance of counsel because appellate counsel failed to timely apply for writ of certiorari, despite assuring Villados that she would do so. Villados argued that he was entitled to an evidentiary hearing, and he requested that the court vacate his judgment, order a new trial, or resentence him. The circuit court appointed a new attorney for Villados, and through counsel, Villados filed a supplemental memorandum arguing that appellate counsel's refusal to file an application on his behalf "thwart[ed] the Hawaii Supreme Court's mandate for zealous advocacy on appeal and deprived Mr. Villados of his right to appellate counsel."
The State argued in opposition that the petition should be dismissed because appeal to this court is not one of right, and under federal law, there is no right to effective assistance of counsel on discretionary appeals. In the alternative, the State argued that appellate counsel's "performance was objectively reasonable and within the ‘range of competence demanded of attorneys in criminal cases.’ " Noting that appellate counsel fully briefed the issues before the ICA, the State argued that "under the totality of the circumstances, [appellate counsel's] efforts reflected zealous advocacy on behalf of Villados." In addition, the State argued that it was important to consider and defer to appellate counsel's view that there were no meritorious issues to pursue in an application for writ of certiorari.
The circuit court held an evidentiary hearing on Villados’ Rule 40 petition. Appellate counsel provided testimony at the hearing regarding her representation of Villados. She stated that she did not file an application for writ of certiorari because she believed there were no grounds to do so. She explained that after considering "the statute governing the taking of a writ of certiorari" and reading the ICA's SDO, she determined that she "did not see grave errors of law...
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...on its merits, "[i]n the interest of justice." Id.; Knight, 80 Hawai‘i at 324, 909 P.2d at 1139. See also Villados v. State, 148 Hawai‘i 386, 392, 477 P.3d 826, 832 (2020) (citing Uchima and similarly holding that jurisdiction was properly exercised over Villados's late certiorari applicati......
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...the Order Denying Motion to Reduce Sentence, notwithstanding his counsel's imperfect attempt to file an appeal. Cf. Villados v. State, 148 Hawai‘i 386, 477 P.3d 826 (2020) (in HRPP Rule 40 proceeding, where ineffectiveness of counsel resulted in petitioner-defendant's untimely application f......