Wilton v. State, 27129.

• Decision Date: 13 November 2007
• Docket Number: No. 27129.,27129.
• Citation: 170 P.3d 357
• Parties: Freedus W. WILTON, II, Petitioner/Petitioner-Appellant v. STATE of Hawai`i, Respondent/Respondent-Appellee.
• Court: Hawaii Supreme Court

170 P.3d 357

Freedus W. WILTON, II, Petitioner/Petitioner-Appellant v. STATE of Hawai`i, Respondent/Respondent-Appellee.

No. 27129.

Supreme Court of Hawai`i.

November 13, 2007.

Jon N. Ikenaga, Deputy Public Defender, for Petitioner/Defendant-Appellant.

Peter A. Hanano, Deputy Prosecuting Attorney, County of Maui, for Respondent/Plaintiff-Appellee.

MOON, C.J., LEVINSON, NAKAYAMA, ACOBA, and DUFFY, JJ.

Opinion of the Court by ACOBA, J.

Petitioner/Petitioner-Appellant Freedus W. Wilton, II (Petitioner) filed a petition for writ of certiorari on June 29, 2007. Certiorari was accepted on August 7, 2007, and oral argument was held on October 17, 2007.¹

Petitioner seeks review of the judgment of the Intermediate Court of Appeals (the ICA) filed on April 12, 2007, pursuant to its March 21, 2007 Summary Disposition Order (SDO),² affirming the December 1, 2004 "Findings of Fact, Conclusions of Law, and Order Denying Petition to Vacate, Set Aside, or Correct Judgment or to Release Petitioner from Custody," filed by the Circuit Court of the Second Circuit³ (the court). Respondent did not file a memorandum in opposition.

We respectfully vacate the April 12, 2007 ICA judgment and the court's December 1, 2004 findings and conclusions and order, and remand for an evidentiary hearing under Hawai`i Rules of Penal Procedure (HRPP) Rule 40 (2007)⁴ for the, reasons stated herein.

I.

The following matters, some verbatim, are from the record and the submissions of the parties. The pertinent incident facts taken from the application, state in relevant part:

[O]n January 27, 1997, a ski-mask-wearing intruder wielding a knife broke into the condominium of Mary Paulsen (Mary) and her sons, Jon and Jeff. Mary was stabbed and cut multiple times[.] ... [N]either Mary, Jon or Jeff saw the intruder's face, but all described him as a large man, with a pot-belly, weighing approximately 220 pounds. The perpetrator ran from the unit and was pursued by security guard Christ Hoerner (Hoerner). Hoerner pursued the perpetrator for a significant period of time and described him as 6' to 6'1" tall, weighing over 200 pounds, with blonde hair.

[Petitioner's] actual physical appearance differed significantly from the description of the perpetrator given by the witnesses. [Petitioner] was about 5'10" tall and weighed 190 pounds, and had brown hair.

. . . When the police arrived at the scene, they recovered a Chicago Bulls baseball cap and a .38 caliber handgun. The gun was registered to [Petitioner] and some witnesses testified that they had seen him wearing a similar (but not necessarily identical) cap. Some hair samples were found in the cap, but [Respondent's] expert witnesses could only testify that the hairs "could" have originated from [Petitioner] and that the DNA was "potentially" his. In fact, after extensive testing for fingerprints and DNA, no blood, fingerprints or other physical evidence linking [Petitioner] to the crime were found at the scene or on his person or items in his apartment.

... [D]efense counsel[, David Sereno (Sereno),] did not present any evidence to counter [Respondent's] circumstantial evidence supposedly identifying [Petitioner] as the perpetrator.

(Emphases added.)

After a four-day jury trial, Petitioner was convicted of (1) burglary in the first degree, (2) robbery in the first degree, (3) attempted murder in the first degree, (4) place to keep firearms, (5) carrying or use of a firearm in the commission of a separate felony, and (6) use of a deadly or dangerous weapon in the commission of a crime. The court⁵ sentenced Petitioner to concurrent terms of (1) life imprisonment without the possibility of parole for the attempted murder conviction, (2) twenty years each for the robbery and carrying or use of firearm convictions, (3) ten years each for the burglary and place to keep firearms convictions, and (4) five years for the use of a deadly or dangerous weapon conviction. Additionally, the court imposed restitution in the amount of $15,800.

Subsequently,

[i]n his [March 20, 2001] HRPP Rule 40 petition ..., [Petitioner] raised the issue of ineffective assistance of trial counsel for failing to present evidence that would have excluded him as the perpetrator .... [Petitioner] noted that Hoerner ... stated that the perpetrator had outrun him for a significant distance and at one point had fallen, rolled and then gotten back to his feet and continued to run. However, [Petitioner] had presented trial counsel with evidence that he suffered from [multiple sclerosis (MS)], resulting in "... permanent damage to the motor movement skills of my left leg," making it impossible for him to have run in the manner described by Hoerner. The ... materials provided to trial counsel prior to trial by [Petitioner] included copies of his medical records and affidavits from the Department of Public Safety, a private investigator acquaintance, and a Colorado physician. [Petitioner] also included a prior-to-trial memorandum he had sent to trial counsel informing him of his disability.

....

A "return day" on the [HRPP Rule 40 Petition] was set on October 15, 2004. [Petitioner] was not present at the hearing as he was incarcerated at a Mainland facility and his presence was waived by [counsel].

On the "return day" the court⁶ expressed its inclination to deny Petitioner's HRPP Rule 40 petition because it had difficulty "even get[ting] to a point where there's sort of a colorable claim of ineffective assistance of counsel[,]" noting that the record contained

some declarations or affidavits by [Petitioner's] counsel at the time and by [Petitioner] that they [had] reviewed this matter thoroughly, they had very, you know, intense discussions, that counsel signed a declaration, that she[, Vicky Russell (Russell), Petitioner's appellate counsel,] had spoken to trial counsel [Sereno] about his situation and who was a very experienced, even then, criminal defense attorney and had spoken to the investigator involved.

So there are a number of things said under oath indicating that not only with regard to the allegations of ineffective [assistance] down below during the trial, but with regard to having spent time with [Petitioner] discussing the benefits or lack thereof of an appeal versus a [HRPP] Rule 40 petition, when you have statements under oath by [Petitioner] and by his counsel.

(Emphases added.)

On the return day, the court heard argument regarding Petitioner's allegations that his appellate counsel rendered ineffective assistance, but there was no argument regarding his claims of ineffective assistance of trial counsel. The court ruled immediately on the HRPP Rule 40 petition without receiving any further evidence. The court's oral ruling declared that it appeared

that whatever decisions were made were based on strategy as opposed to some failure to adequately, you know, represent [Petitioner] on Mr. Sereno's part.

I think there may have been very good reasons why certain matters were not brought before the jury, particularly with regard to the underlying disease which [Petitioner] was claiming had a significant effect on his ability to move. . . .

And I've read . . . the Tachibana colloquy that went on between the court and [Petitioner], and it's quite clear there was an adequate colloquy.

(Emphases added.)

On December 1, 2004, the court filed its Findings of Fact, Conclusions of Law, and Order Denying Petition to Vacate, Set Aside, or Correct Judgment or to Release Petitioner from Custody.

II.

The ICA affirmed. The ICA decided Petitioner "has not met his burden of establishing ineffective assistance of counsel by showing `specific errors or omissions,'" SDO at 8 (quoting State v. Wakisaka, 102 Hawai`i 504, 514, 78 P.3d 317, 327 (2003)), and "failed to show that the alleged specific errors or omissions of his trial counsel resulted in the possible impairment of a potentially meritorious defense," id.

III.

The question presented by Petitioner is "[w]hether the ICA gravely erred in holding that the [court] did not err in denying [Petitioner's] HRPP Rule 40 petition where his trial counsel's failure to present exculpatory evidence in his defense constituted ineffective assistance of counsel[.]" Petitioner argues the "court's decision was erroneous for two reasons, first because the [court] utilized an incorrect standard in ruling on the merits of [the] Rule 40 petition and second because the [court's] findings of fact [(findings)] and conclusions of law [(conclusions)] upon which its ruling was based were in error."⁷ Petitioner correctly maintains that the applicable standard imposes the burden of establishing ineffective assistance of counsel on the defendant, requiring him to prove

1) that there were specific errors or omissions reflecting counsel's lack of skill, judgment, or diligence; and 2) that such errors or omissions resulted in either the withdrawal or substantial impairment of a potentially meritorious defense." State v. Aplaca, 74 Haw [54,] 66-67, 837 P.2d [1298,] 1305 [(1992)]. To satisfy this second prong, [the defendant] need only show a possible impairment of a potentially meritorious defense, not probable impairment or actual prejudice. State v. Christian, 88 Hawai`i [407,] 419, 967 P.2d [239,] 251 [(1998)]

Wakisaka, 102 Hawai`i at 516-17, 78 P.3d at 329-30.

(Emphasis in original and emphases added.)

IV.

The court's findings relevant to the facts adduced at trial and unchallenged by the application except for 9 and 22 are as follows:

1. On January 27, 1997, a burglar broke into Unit B118 of the Maui Sunset located on South Kihei Road, Kihei Maui, Hawai`i at about 3:00 a.m. through a lanai screen door.

2. [Mary] was sleeping on the living room sofa inside Unit B118, and when she awoke, the burglar attacked her, repeatedly stabbing her with a knife.

3. Mary's two sons, Jeff, age 23, and Jon, age 26, were asleep in the bedroom and were awakened by Mary's screams. When Jon ran out of the...