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Fagaragan v. State

Supreme Court of Hawaii

February 14, 2014

ERWIN E. FAGARAGAN, Petitioner/Petitioner-Appellant,
v.
STATE OF HAWAI'I, Respondent/Respondent-Appellee.

CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CAAP-11-0000592; SPPNO. 11-1-0005(1) (CR. NOS. 04-1-0595(1) and 05-1-0090 (1)))

Erwin E. Fagaragan pro se.

Lisa M. Itomura and Diane K. Taira for respondent.

ACOBA, McKENNA, AND POLLACK, JJ.

OPINION

POLLACK, J.

Petitioner/Petitioner-Appellant Erwin E. Fagaragan (Fagaragan) seeks review the Intermediate Court of Appeals' (ICA) October 18, 2012 Judgment on Appeal (ICA Judgment) filed pursuant to its September 19, 2012 Summary Disposition Order (SDO), which affirmed the Circuit Court of the Second Circuit's (circuit court) July 18, 2011 Findings of Fact, Conclusions of Law, and Order Denying the Rule 40 Petition for Post-Conviction Relief (Order Denying Rule 40 Petition).

For the reasons set forth herein, we vacate the ICA Judgment, and remand the case to the circuit court to enter an order (1) vacating its Order Denying Rule 40 Petition, and (2) directing the Hawaii Paroling Authority to hold a new minimum term hearing under Hawai'i Revised Statutes (HRS) 706-669 (Supp. 2011).

I.

A. Prior Underlying Criminal Proceedings and Appeals

1. Cr. No. 04-1-0595(1)

In Cr. No. 04-1-0595(1), Fagaragan was convicted of unauthorized control of a propelled vehicle, HRS § 708-836 (Supp. 2005)[1] (Count I); promoting a dangerous drug in the first degree, HRS § 712-1241 (1) (a) (i) (Supp. 2005)[2] (Count Unprohibited acts relating to drug paraphernalia, HRS § 329.43.5(a) (Supp. 2005)[3] (Count IV); and promoting a detrimental drug in the third degree, HRS § 712-1249(1) (Supp. 2005)[4] (Count V). The charges stemmed from Fagaragan's arrest for driving a stolen vehicle and his possession of 33 grams of methamphetamine, marijuana, and paraphernalia. The circuit court sentenced him to twenty years imprisonment in Count II, five years imprisonment in Counts I and IV, and thirty days imprisonment in Count V, all terms to run concurrently to one another.

Fagaragan appealed the convictions. The ICA issued an SDO affirming the circuit court's judgment of conviction.

2. Cr. No. 05-1-0090(1)

In Cr. No. 05-1-0090(1), Fagaragan was found guilty of promoting a dangerous drug in the first degree, HRS § 712-1241(1)(a)(i) (Supp. 2005) (Count I); attempted promoting a dangerous drug in the first degree, HRS § 712-1241(1)(b)(ii)(A) (Supp. 2005)[5] (Count II); and prohibited acts relating to drug paraphernalia, HRS § 329.43.5(a) (Supp. 2005) (Count III). The charges arose out of a traffic stop in which Fagaragan's vehicle was searched and two bags were recovered that contained 28 packets of methamphetamine totaling 5.46 ounces and paraphernalia. The circuit court sentenced Fagaragan to twenty years imprisonment in Counts I and II, and five years imprisonment in Count III, all terms to run concurrently with each other and concurrently with the prison terms imposed in Cr. No. 04-1-0595(1) .

Fagaragan appealed the convictions. The ICA held that Fagaragan's convictions in Counts I and II constituted multiple punishments for the same conduct, as the attempted distribution offense was based solely on possession of the same contraband that formed the basis of the possession offense. State v. Fagaragan, 115 Hawai'i 364, 370, 167 P.3d 739, 745 (2007).

In order to remedy the "improper imposition of multiple punishments, " the ICA reversed the conviction in Count II because the circuit court had failed to instruct the jury upon a requisite state of mind for an element of the attempted distribution offense in Count II. Id. at 372, 167 P.3d at 747. The ICA affirmed the convictions in Counts I and III. Id. B. HPA's Minimum Term Hearings.

On May 21, 2007, Fagaragan and his counsel appeared before the Hawaii Paroling Authority (HPA) for a consolidated hearing to set his minimum terms of imprisonment for Cr. No. 04-1-0595(1) and No. 05-1-0090(1). On the same day, the HPA issued its Notice and Order of Fixing Minimum Term(s) of Imprisonment (HPA Order 1), which included the offenses from both criminal numbers. The minimum terms ordered by the HPA were as follows:

Crime Number

Count

Offense[6]

Maximum

Minimum

04-1-595(1)

I

UCPV

5 yrs

5 yrs

04-1-595(1)

II

PDD-1

20 yrs

20 yrs

04-1-595(1)

IV

Paraphernalia

5 yrs

5 yrs

05-1-0090(1)

I

PDD-1

20 yrs

20 yrs

05-1-0090(1)

II

Att. PDD-1

20 yrs

20 yrs

05-1-0090(1)

III

Paraphernalia

5 yrs

5 yrs

05-1-0090(1)

II

Att. PDD-1

20 yrs

20 yrs

05-1-0090(1)

III

Paraphernalia

5 yrs

5 yrs

The HPA categorized Fagaragan as a Level III offender based on the criteria of "Nature of Offense."[7]

On April 23, 2008, following the reversal by the ICA of Fagaragan's conviction in Count II in Cr. No. 05-1-0090(1), the HPA held a second hearing to reset Fagaragan's minimum terms. The hearing only pertained to Fagaragan's convictions in the Cr. No. 05-1-0090(1) case. On April 26, 2008, the HPA issued a Notice and Order of Fixing Minimum Term(s) of Imprisonment (HPA Order 2) resetting Fagaragan's terms in Cr. No. 05-1-0090(1) to the identical terms that had previously been imposed:

Crime Number

Count

Offense

Maximum

Minimum

05-1-0090(1)

I

PDD-1

20 yrs

20 yrs

05-1-0090(1)

III

Paraphernalia

5 yrs

5 yrs

The HPA continued to categorize Fagaragan as a Level III offender, despite the ICA's reversal of Fagaragan's conviction in Count II, again based on the sole criteria of "Nature of Offense."

A May 5, 2008 date-stamp on HPA Order 2 indicates that a copy was "served to the prisoner" by mail.

C. Fagaragan's Rule 40 Petitions

1. S.P.P. No. 08-1-0009(1): First Petition

On June 18, 2008, Fagaragan, pro se, filed a Petition For Post-Conviction Release Pursuant to Hawai'i Rules of Penal Procedure Rule 40 (First Petition), alleging five grounds as a basis for relief in connection with Cr. No. 05-1-0090 (1) .[8]

The Petition did not reference or challenge HPA Order 2, which had reset the minimum terms of imprisonment in Count I at 20 years and Count III at 5 years. Fagaragan's return address on the First Petition indicates he was incarcerated in Eloy, Arizona.

On June 25, 2008, the circuit court issued its Findings of Fact, Conclusions of Law, and Order Denying Post-Conviction Relief Pursuant to Hawai'i Rules of Penal Procedure Rule 40 (Order Denying First Petition). The circuit court concluded: the illegal search issue was previously raised before the trial court on a motion to suppress; the double jeopardy issue was raised on appeal (and Fagaragan prevailed on that point, making it moot); and every other issue Fagaragan raised in his Rule 40 petition could have been raised on appeal but was not, and was thus waived. The circuit court therefore denied the First Petition without a hearing.

Fagaragan appealed the Order Denying First Petition to the ICA. Fagaragan's arguments on appeal were largely identical to his arguments in his First Petition, with the exception of a newly raised claim for ineffective assistance of appellate counsel (IAC). The ICA held that because Fagaragan did not initially raise the ineffective assistance claim in the First Petition, the issue would be disregarded pursuant to Hawai'i Rules of Appellate Procedure (HRAP) 28(b)(4). Fagaragan v. State, No. 29281, 121 Hawai'i 178, 2009 WL 2608463, at *1, *3 (App. Aug. 26, 2009) (SDO). With respect to the other issues raised, the ICA affirmed the Order Denying First Petition. Id. at *2-*3. Fagaragan filed an application for writ of certiorari, which this court denied. Fagaragan v. State, No. 29281, 2010 WL 374737 (Haw. Jan. 20, 2010) .

2. S.P.P. No. 11-1-0005(1): Second Petition

On May 11, 2011, Fagaragan, pro se, filed a Petition to Vacate, Set Aside, or Correct Judgment or to Release Petitioner for (sic) Custody (Second Petition) with respect to Cr. Nos. 04-1-0595 and 05-1-0090. The return address of the Second Petition indicates that Fagaragan was incarcerated in "CCA-Saguaro" Eloy, Arizona. In the Second Petition, Fagaragan contended that the HPA had violated the 5th, 6th, 8th, and 14th Amendments to the United States Constitution as well as the State of Hawai'i Constitution.

In response to question 11 (e) of the Second Petition, "If you did not appeal from the adverse action on any petition, application or motion, explain briefly why you did not, " Fagaragan responded that he "thought that HPA would grant me a new hearing based that they violated others rights which the ICA and Supreme Court stated but they would not listen to them[.]"

In response to question 13 of the Second Petition, "If any of the grounds listed 12A, B, C, and D were not previously presented, state briefly what grounds were not so presented, and your reasons for not presenting them, " Fagaragan answered that he "thought that HPA would correct their errors but did not even though the ICA-Supreme Court ordered that the prior sentences were illegal."

Fagaragan continued, "HPA should have corrected their erros [sic] violations without me submitting this but they continue to violate my rights."

In his Memorandum in Support of his Rule 40 petition, Fagaragan asserted that the HPA acted arbitrarily and capriciously in: (1) failing to follow their guidelines by not including the "Degree of Injury/Loss To Person or Property" and "Criminal History" criteria; (2) categorizing him as a Level III offender, in light of an absence of criminal history; and (3) subsequently setting his minimum term at 20 years, in violation of equal protection. Fagaragan argued that he should not have received Level III punishment as "no-one during trial testified that he sold or did any such act" of being involved in the "manufactor [sic], importation or distribution of drugs." Fagaragan attached both the First and Second HPA Order as exhibits to the Second Petition and contended that HPA "[a]rbitrarily and [c]apriciously" violated petitioner's rights not once, but twice." Fagaragan's requested relief was for the HPA to categorize him as a Level I or II offender and correctly reset a new minimum term.

On June 14, 2011, the State filed its Answer to Petition to Vacate, Set Aside, or Correct Judgment or to Release Petitioner From Custody (Response). The State argued that Fagaragan waived the issues presented in his Second Petition for failing to raise them in his First Petition. The State noted that Fagaragan had not submitted any evidence of "extraordinary circumstances to justify his failure to previously raise the issues."

In response to Fagaragan's claim that the HPA violated his procedural and substantive due process rights, the State argued that Fagaragan received all the process that he was due because the HPA held a fair hearing to reset his minimum term, and Fagaragan had no constitutional right to parole or a reduction of a minimum term of imprisonment and release from custody.

Moreover, the State argued that the HPA properly categorized Fagaragan as a Level III offender and had not acted "arbitrarily or capriciously so as to give rise to a due process violation." In support of its position, the State pointed out that: (1) Fagaragan's actions fit the significant criteria under Level III, "Nature of Offense, " in the HPA Guidelines For Establishing Minimum Terms of Imprisonment, July 1989 (HPA Guidelines); (2) Fagaragan was previously convicted and sentenced under FC No. 02-1-0995; and (3) the HPA's findings indicated that Fagaragan fit the significant criteria of "Character and Attitude of Offender With Respect to Criminal Activity or Lifestyle;" and he "deserved the category of Level III."

Fagaragan filed a reply brief (Rule 40 Reply). As to the State's argument that he waived his claims, Fagaragan stated that HPA had not "corrected their errors prior to him filing his initial petition":

As to the States [sic] first argument as to why his petition should be denied is because he failed to properly argue this on his initial HRPP Rule 40 petition. However this is not so. HPA failed to correct their errors prior to him filing his initial petition. Had HPA fixed the problem in the first place he would not have argued this . . . The Intermediate Court of Appeals and Supreme Court State of Hawaii ordered HPA to correct their errors which they refuse to do .

(Emphasis added).

In addition, Fagaragan argued that he did not waive his challenge to his minimum term for having failed to raise the issue in the First Petition because the "grossly inadequate law library" did not have a copy of Coulter v. State, 116 Hawai'i 181, 172 P.3d 493 (2007), in the legal books or on LEXIS at the time Fagaragan filed his First Petition. Fagaragan also reiterated that he was a Level I (or II) offender because, contrary to what the State argued, the instant drug offenses were Fagaragan's "first ever criminal conviction, " FC No. 02-1-0995 having been previously dismissed.

The circuit court, without holding a hearing, issued its Findings of Fact, Conclusions of Law, and Order denying Rule 40 Petition for Post-Conviction Relef.[9] The circuit court concluded that Fagaragan waived his claims in the Second Petition for not including them in his First Petition, failed to "prove the existence of extraordinary circumstances to justify [his] failure to raise the issues previously, " and therefore "failed to rebut the presumption and has waived the claims" in the Second Petition. Additionally, the court held that Fagaragan's allegations even if taken as true, do not entitle him to relief. Therefore, the circuit court concluded that Fagaragan failed to present a colorable claim, the claims were "patently frivolous, " and were without support in the record. Fagaragan timely appealed.

D. Intermediate Court of Appeals

1. Opening Brief

Fagaragan raised, inter alia, the following points of error:

a.) Whether the courts erred in denying petitioner his Rule 40 without a hearing which he did have colorable grounds for relief.
b.) Whether HPA did violate petitioner's 5th, 6th, 8th and 14th Amendments to the U.S. Constitution when HPA failed to comply with their own statutorily required procedural requirements/guidelines when they failed to list all the special criteria's as mandated by HRS § 706-669(8) .
c.) Whether HPA violated petitioner's 5th, 6th, 8th and 14thAmendments to the U.S. Constitution when they illegally assessed him as a Level III Offender which per guidelines he should have been assessed as a Level I or at the most Level II Offender due to this being his first ever conviction and imprisonment and due to his offenses not being classified as serious which no person received any type of injuries for crimes of drugs.[10]

In support of his first and second points of error, Fagaragan argued that he had a colorable claim for Rule 40 relief because he demonstrated that HPA utilized only one criteria ("Nature of Offense") in setting his minimum term rather than all three significant criteria, the other two criteria being "Criminal History" and "Character and Attitude of Offender With Respect to Criminal Activity or Lifestyle, " in violation of Coulter, 116 Hawai'i 181, 172 P.3d 493 (2007). Further, Fagaragan argued that HPA should have utilized all six significant criteria when establishing his minimum term, and it did not.

In support of his third point of error, Fagaragan argued that he did not fit the criteria for categorization as a Level III Offender and was, at most, a Level I or II Offender. This was because, according to Fagaragan, as to the nature of the offense, his crimes were not "cruel and callous" or "against the elderly, handicap and or minor, " and he "did not distribute or import or cultivate drugs[.]" As to the degree of injury and/or loss, Fagaragan asserted that he did not rape or murder or otherwise cause injury to anyone. As to his criminal history, Fagaragan argued he had "no prior convictions."

In conclusion, Fagaragan requested that the ICA "grant him his petition and order HPA to conduct a new hearing" before the HPA to have his minimum term reset as a Level I or II Offender.

2. Answering Brief

In its Answering Brief, the State argued that Fagaragan waived the claims raised in his Second Petition by knowingly and understandingly not raising them in his First Petition without submitting any evidence of extraordinary circumstances to justify his failure to raise those claims. Specifically, the State argues that Fagaragan had "ample opportunity to raise any challenges to his May 21, 2007 minimum term order or his April 23, 2008 minimum term order therein, but waited until the instant Petition, filed on May 11, 2011, to make his claims."

The State nonetheless went on to address the merits of Fagaragan's points of error. As to Fagaragan's first and second points of error (that the HPA was required to utilize three criteria or six significant criteria), the State countered that the case law Fagaragan cited did not support his argument that the HPA had to point to more than just the "Nature of Offense" significant criteria to justify its Level III categorization.

The State explained that Hopkins v. State, No. 29816 (App. Apr. 29, 2010)(SDO), and DeWayne Asuega v. State, S.P.P. No. 09-1-0012 (available on Ho'ohiki under Case ID 1PR091012 under "Court Minutes, " entries 5 through 8), involved cases where the HPA could not have just relied on one factor, "Degree of Injury and/or Loss, " in determining that an inmate was a Level III Offender, because the degree of injury and/or loss is the same in any case involving theft of over $20, 000 (Hopkins) or negligent homicide (Asuega); therefore, the HPA must have used other criteria in determining Level III status that it did not specify.

Additionally, the State argued that Coulter did not hold that the HPA's failure to indicate the level of punishment and significant criteria in a minimum term order is a constitutional violation.

As to Fagaragan's third point of error (that he should not be categorized as a Level III Offender), the State responded that Fagaragan met Level III criteria under "Nature of Offense" based on the amount of drugs he possessed, and the other prongs under that criteria (that the crime was callous and cruel or that it was against a certain class of victims) were irrelevant. Further, the State argued that, under "Nature of Offense, " Fagaragan fared poorly with regard to his "Character and Attitude of Offender With Respect to Criminal Activity, " justifying a Level III categorization. Additionally, the State argued that Fagaragan also fared poorly under the categories "Efforts Made to Live a Pro-Social Life Prior to Commitment to Prison" and "Involvement of the Offender in the Instant Offense(s)." Lastly, the State argued that Fagaragan was previously convicted and imprisoned in ...


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