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Fernandez v. State

Intermediate Court of Appeals of Hawai‘i

November 16, 2010

Jorge Norales FERNANDEZ, Petitioner-Apellant,
v.
STATE of Hawai‘i, Respondent-Appellee.

Editorial Note:

This decision has been designated as "Unpublished disposition." in the Pacific Reporter. See HI R RAP RULE 35

Appeal from the Circuit Court of the Fifth Circuit (S.P.P. No. 09-1-0003).

A. Edward Fyffe, Jr., on the briefs, for Petitioner-Appellant.

Tracy Murakami, Deputy Prosecuting Attorney, County of Kauai, on the briefs, for Respondent-Appellee.

FOLEY, LEONARD and REIFURTH, JJ.

SUMMARY DISPOSITION ORDER

Petitioner-Appellant Jorge Norales Fernandez (Fernandez) appeals from the " Findings of Fact; Conclusions of Law; Amended Order Denying Petition for Post-Conviction Relief" (FOF/COL/Order) filed on June 25, 2009 in the Circuit Court of the Fifth Circuit (circuit court).[1]

On June 1, 1992, Fernandez entered a no contest plea to Sexual Assault in the Third Degree, in violation of Hawaii Revised Statutes (HRS) § 707-732(1)(b) (1993). The circuit court sentenced Fernandez on December 17, 1992 to five years of probation and filed the Judgment, Guilty Conviction and Probation Sentence on December 18, 1992. Fernandez did not appeal his conviction.

On August 22, 2007, Fernandez filed a " Rule 40 Petition to Vacate Judgment of Conviction, and Demand for Hearing" (Petition) pursuant to Hawaii Rules of Penal Procedure (HRPP) Rule 40. In his Petition, Fernandez alleged that (1) his no contest plea was " unlawfully induced or not made voluntarily or with understanding of the nature of the charge and the consequences of the plea" and (2) he received ineffective assistance of trial counsel.

On June 25, 2009, the circuit court issued its FOF/COL/Order, in which the circuit court found that Fernandez had not shown that a manifest injustice would result if his conviction for Sexual Assault in the Third Degree was not vacated.

On appeal, Fernandez asserts the same claims as those in his Petition.

Upon careful review of the record and the briefs submitted by the parties and having given due consideration to the arguments advanced and the issues raised by the parties, as well as the relevant statutory and case law, we conclude that Fernandez's appeal is without merit.

Therefore,

The " Findings of Fact; Conclusions of Law; Amended Order Denying Petition for Post-Conviction Relief" filed on June 25, 2009 in the Circuit Court of the Fifth Circuit is affirmed.


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