FREEDUS W. WILTON, II, Petitioner-Appellant,
STATE OF HAWAI'I, Respondent-Appellee
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER
APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT (S.P.P. NO. 01-1-0006(1); CR. NO. 97-0050)
Keith S. Shigetomi for Petitioner-Appellant
Peter A. Hanano Deputy Prosecuting Attorney County of Maui for Respondent-Appellee
Nakamura, Chief Judge, Leonard and Ginoza, JJ.
SUMMARY DISPOSITION ORDER
Petitioner-Appellant Freedus W. Wilton, II (Wilton) appeals from the Corrected Findings of Fact, Conclusions of Law, and Judgment Denying Rule 4 0 Petition for Post-Conviction Relief, filed on November 9, 2010 (Judgment Denying Rule 40 Relief), in the Circuit Court of the Second Circuit (Circuit Court).
On July 30, 1998, Wilton was convicted of Burglary in the First Degree, Robbery in the First Degree, Attempted Murder in the First Degree, Place to Keep Firearm, Carrying or Use of Firearm in the Commission of a Separate Felony, and Use of Deadly or Dangerous Weapon in the Commission of a Crime.
Wilton appealed his convictions, but on July 29, 1999, he voluntarily stipulated to dismiss his appeal so that he could file a Petition for Post Conviction Relief.
On March 20, 2001, Wilton filed a Verified Petition to Vacate, Set Aside, or Correct Judgment or to Release Petitioner from Custody (Petition). Wilton claimed that he received ineffective assistance of trial counsel because: (1) trial counsel failed to present evidence of his physical disability-resulting from Multiple Sclerosis (MS) that prevented him from being able to run, in light of a security guard pursuing the alleged assailant over a substantial distance on foot; (2) trial counsel failed to allow him to testify at trial; and (3) trial counsel failed to present any evidence in his defense.
On August 26, 2004, Wilton filed an Amendment to Petition to Vacate, Set Aside, or Correct Judgment or to Release Petitioner from Custody (Amended Petition). Wilton asserted two additional claims: the sentence imposed was an illegal sentence and appellate counsel was ineffective in perfecting his direct appeal.
On December 1, 2004, the Circuit Court issued its Findings of Fact, Conclusions of Law, and Order Denying Petition to Vacate, Set Aside, or Correct Judgment or to Release Petitioner from Custody.
On March 21, 2007, this court issued a Summary Disposition Order that affirmed the denial of Wilton's Petition and Amended Petition.
On November 13, 2007, the supreme court issued an opinion in Wilton v. State, 116 Hawai'i 106, 108, 170 P.3d 357, 358 (2007), which vacated this court's affirmance and ordered that a hearing be held on some of the claims in Wilton's Petition. The court stated that the question presented was "whether the ICA gravely erred in holding that the [court] did not err in denying [Petitioner's] HRPP Rule 4 0 petition where his trial counsel's failure to present exculpatory evidence in his defense constituted ineffective assistance of counsel[.]" Id. at 110, 170 P.3d at 361. The court noted that Wilton's affidavit in support of the Petition stated that Wilton had been unable to run due to MS for some time prior to his diagnosis in 1989, and his medical records showed his history of MS and the effect.of the disease on his gait, "such that any competent medical expert could have described the meaning of . . . those records[.]" Wilton also averred that he informed his trial counsel of his disability due to MS on more than one occasion. Id. at 113, 170 P.3d at 364. The court held that Wilton presented a colorable claim of ineffective assistance of counsel because, if the facts therein were taken as true, specifically that Wilton could not run in the same manner as the perpetrator, coupled with the inability of witnesses to unequivocally identify Wilton as the perpetrator, they could have changed the verdict. Id. at 122, 170 P.3d at 373. The court ordered a hearing only on Wilton's claims regarding his MS evidence, but not Wilton's trial testimony claim. Id. at 123, 170 P.3d at 374.
Beginning on August 7, 2009, the Circuit Court held an evidentiary hearing to address Wilton's claim of ineffective assistance of trial counsel with respect to ...