This decision is published in table format in the Pacific and Hawai'i reporter
APPEAL FROM THE CIRCUIT COURT OF THE THIRD CIRCUIT. CRIMINAL NO. 09-1-245K.
On the briefs: Taryn R. Tomasa, Deputy Public Defender and Frank L. Miller, for Defendant-Appellant.
Linda L. Walton, Deputy Prosecuting Attorney, County of Hawai'i, for Plaintiff-Appellee.
By: Foley, Presiding J., Reifurth and Ginoza, JJ.
SUMMARY DISPOSITION ORDER
Defendant-Appellant Alvah L. Ruis (Ruis) appeals from the " Findings of Fact and Conclusions of Law; Order" entered November 7, 2012 in the Circuit Court of the Third Circuit  (circuit court), denying his Hawai'i Rules of Penal Procedure (HRPP) Rule 40 petition for post-conviction relief (Rule 40 Petition).
On appeal, Ruis contends that certain findings by the circuit court were clearly erroneous and certain conclusions were wrong when the court denied his Rule 40 Petition because newly discovered evidence justified relief from conviction, and he received ineffective assistance of counsel.
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 Ruis's appeal is without merit.
On June 20, 2012, Ruis filed his Rule 40 Petition asserting a letter from the primary complaining witness (CW) justified relief from conviction. Ruis contends CW's letter was newly discovered evidence sufficient for relief from, conviction under HRPP Rule 40(a) (1) (iv). Ruis also contends he was denied effective assistance of counsel, requiring relief from conviction under HRPP Rule 40(a)(1)(i).
In reviewing the circuit court's disposition of the Rule 40 Petition, we review the circuit court's findings of fact for clear error and the conclusions of law de novo.
Coulter v. State, 116 Hawaii 181, 184, 172 P.3d 493, 496 (2007). Moreover, " [t]he granting or denial of a motion for new trial is within the sound discretion of the trial court and will not be disturbed absent a clear abuse of discretion."
State v. Hicks, 113 Hawai'i 60, 69-70, 148 P.3d 493, 502-03 (2006) (internal quotation marks, citation omitted). An abuse of discretion occurs if the trial court has clearly exceeded the bounds of reason or disregards rules or principles of law or practice to the substantial detriment of a party litigant. See id.
A motion for a new trial based on newly discovered evidence will only be granted if the defendant proves: (1) the evidence has been discovered after trial; (2) such evidence could not have been discovered before or at trial through the exercise of due diligence; (3) the evidence is material to the issues and not cumulative or offered solely for purposes of impeachment; and (4) the evidence is of such a nature as would probably change the result of a later trial. See
State v. McNulty, 60 Haw. 259, 588 P.2d 438 (1978), overruled on other grounds by
Raines v. State, 79 Hawai'i 219, 900 P.2d 1286 (1995). A criminal defendant bears the burden of proof on all these requirements. See
United States v. Turner, 995 F.2d 1357, 1364 (6th Cir. 1993) (analyzing Federal Rule of Criminal Procedure Rule 33, which in pertinent part is substantially similar to HRPP Rule 33).
In denying Ruis's Rule 40 Petition, the circuit court found that: (1) the former counsel listed the letter as an exhibit for trial; (2) the former counsel credibly testified that he discussed with Ruis the substance of the letter and its relation to possible defenses; and (3) the CW credibly testified that Ruis dictated the letter to her. The circuit court thus concluded the letter was discovered before the change of plea hearing and that Ruis failed to satisfy the first prong required for granting a new trial based on newly discovered evidence. The circuit court's findings of fact were not clearly erroneous and the conclusions of law were not wrong, and the circuit court did not abuse its discretion in denying Ruis's Rule 40 Petition seeking a new trial.
Ruis's ineffective assistance of counsel claim similarly fails. Ruis was required to establish: (1) that there were specific errors or omissions reflecting his 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 ...