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Nichols v. State

Intermediate Court of Appeals of Hawai'i

December 24, 2014

NICHOLAS K. NICHOLS, Petitioner-Appellant,
STATE OF HAWAI'I, Respondent-Appellee

As Amended February 11, 2015.

Page 1191

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT. (SPP NO. 11-1-0053 (CR NOS. 08-1-1354 & 08-1-1762)).

On the briefs: Nicholas K. Nichols, Petitioner-Appellant, Pro se.

Richard W. Stacey, Diane K. Taira, Deputy Attorneys General for Respondent-Appellee.



Page 1192

[134 Hawai'i 392] NAKAMURA, C.J.

Petitioner-Appellant Nicholas K. Nichols (Nichols) filed a " Petition for Post-Conviction Relief" (Petition) pursuant to Hawai'i Rules of Penal Procedure (HRPP) Rule 40 (2006). Nichols was convicted of numerous offenses in two separate criminal cases -- one case charging felony offenses arising out of a home invasion and shooting and the second case charging felony offenses arising out of a serious assault. The trial court sentenced Nichols to a combination of concurrent and consecutive prison terms for a total maximum term of thirty years of imprisonment. The Hawai'i Paroling Authority (HPA) set Nichols' minimum terms of imprisonment the same as his maximum terms, so that he was subject to a total minimum term of thirty years of imprisonment, the same as the total maximum term imposed by the trial court. In the HPA's corrected order fixing the minimum terms of imprisonment, the HPA placed Nichols in the Level III level of punishment under its " Guidelines for Establishing Minimum Terms of Incarceration" (Guidelines). The only explanation provided by the HPA for placing Nichols in punishment Level III and imposing minimum terms of incarceration that were the same as the maximum terms was its identification of " (1) Nature of Offense; [and] (2) Degree of Injury to Person" as " significant factors . . . in determining the level of punishment[.]"

In his Petition, Nichols contended that the HPA improperly set his minimum terms and that his counsel had provided ineffective assistance during that process. Nichols asserted four grounds for relief:

Ground One: The HPA acted as a mere rubberstamp of the recommendations given by the prosecutor, with no review of the facts. Sentencing outside the guidelines set by the HPA was inconsistent, arbitrary and capricious.
Ground Two: The HPA failed to sufficiently specify its rationale for determining the Level of Punishment and describe the significant criteria it considered in Petitioner's history or offense upon which the HPA's determination was based.
Ground Three: The HPA Used the Wrong Level of Punishment Assessment as the Starting Point for Its Minimum fixing Determination, Chose the Wrong Level of Punishment Upon Which the HPA fixed the Minimum Terms Using the Criteria: Nature of Offense at a Level of Punishment Inconsistent with the Language of the Numerous Underlying Statutory Offenses in violation of HPA Guidelines, [Hawaii Revised Statutes (HRS)] § 706-669 and [Hawai'i Administrative Rules (HAR)] Ch[ap]ter 700, While Ill[e]gally Comparing Petitioner's Offenses Against Non-Identical Statutory Offenses.
Ground Four: Petitioner's Counsel failed to assert the correct level of punishment, failed to discern that the Notice (Order) was constitutionally deficient, made no attempt to protect Petitioner's rights through any appellate or post-conviction actions, and such failures of Counsel are such that a reasonably informed, skilled or diligent attorney would not have made, where such actions or omissions denied Petitioner a meritorious defense that was available to Petitioner, amounting to ineffective assistance of counsel.

Page 1193

On December 22, 2011, the Circuit Court of the First Circuit (Circuit Court) [1] filed its Order dismissing and denying the Petition (Order Denying Petition). The Circuit Court concluded that the Petition was " patently frivolous and without trace of support in the [134 Hawai'i 393] record" and that " [Nichols'] argument and allegations have no merit on this record and under the law."

Nichols appeals from the Order Denying Petition. On appeal, Nichols contends that the Circuit Court erred by failing to include findings of fact or conclusions of law addressing each of his grounds for relief in its Order Denying Petition. The essence of his argument is that the Circuit Court erred in denying his Petition because the HPA acted improperly in setting his minimum terms.

The decisions of the HPA establishing minimum terms of incarceration are subject to judicial review, and judicial intervention is appropriate where the HPA has " 'acted arbitrarily and capriciously so as to give rise to a due process violation [.]'" Coulter v. State, 116 Hawai'i 181, 184, 172 P.3d 493, 496 (2007) (citation omitted). Where the HPA has taken the extraordinary action of setting the minimum term of imprisonment at the maximum term, thereby effectively eliminating the opportunity for parole, the HPA's explanation of the reasons for its action, beyond simply listing the significant factors under the Guidelines, would assist the court in reviewing whether the HPA's action was arbitrary and capricious. We may require a more detailed explanation in such cases, especially for class B felonies or higher, where the absence of a more detailed explanation would prevent our meaningful review of, or leave us in doubt about, whether the HPA acted arbitrarily or capriciously in applying its Guidelines. In this case, however, we conclude that a more detailed explanation was not necessary for proper judicial review of the HPA's decision. This is because the record in this case provides clear support for the HPA's exercise of its discretion in fixing Nichols' minimum terms under the Guidelines. Accordingly, we affirm the Circuit Court's Order Denying Petition.


In his underlying criminal cases, Nichols pleaded guilty to seventeen felony counts charged in two separate criminal cases. Nichols was charged in Criminal No. 08-1-1762 with fifteen felony offenses arising out of a home invasion and shooting. He was charged in Criminal No. 08-1-1354 with two felony offenses arising out of an assault.


The assault case involved an attack on two men at Kalakaua District Park. According to information in the record, on July 30, 2008, at approximately 10 p.m., Nichols and a group of males assaulted Ashleigh Kamaile (Kamaile) and Rudy Tabios (Tabios) in the park. Nichols' group confronted Kamaile and asked him, " You think you tough?" Nichols punched Kamaile, causing Kamaile to fall to the ground. Tabios saw Kamaile being attacked by the group of males while Kamaile was on the ground. Tabios grabbed a bat and went to help Kamaile. Nichols, carrying a broken forty ounce bottle, threw the broken bottle at Tabios' face, severely cutting Tabios' face and causing him to drop the bat. Nichols then grabbed the bat and began beating Tabios with it. Nichols hit Tabios on the back of the head with the bat, causing him to fall to his knees. Nichols used the bat to strike Tabios three more times on the head as well as on the shoulder and back. While Nichols was assaulting Tabios with the bat, other males with Nichols were kicking Tabios. The injuries suffered by Tabios included permanent disfigurement from a five-inch long, extreme facial laceration as well as laceration to his scalp.

Nichols was charged in the assault case with the felony offenses of first-degree assault for causing serious bodily injury to Tabios and second-degree assault for causing bodily injury to Tabios with a dangerous instrument.[2]


Page 1194

On August 11, 2008, two weeks after the assault on Tabios at Kalakaua District Park, Nichols committed a home invasion kidnapping and robbery, during which he shot Timothy Lapitan (Lapitan), resulting in Lapitan [134 Hawai'i 394] becoming paralyzed. According to information in the record, Nichols and several other men, all wearing black masks and carrying guns, entered Lapitan's home with the intent to rob Lapitan. During the home invasion, Nichols and his accomplices held Lapitan, his mother, and his sister at gunpoint. Two minor children of Lapitan's sister were also present. When Lapitan attempted to push some of the robbers out of the house, Nichols shot him in the abdomen. Lapitan was taken to Queen's Medical Center and was placed in the Intensive Care Unit in critical condition. The shooting almost killed Lapitan and left him paralyzed and unable to walk.

Nichols and four co-defendants were indicted for offenses arising out of the home invasion and shooting. Nichols was charged in fifteen felony counts, including attempted second-degree murder, kidnapping, first-degree robbery, first-degree burglary, and carrying or use of a firearm in the commission of a separate felony. The indictment also notified Nichols that he was potentially subject to extended term sentencing, pursuant to Hawaii Revised Statutes (HRS) § § 706-661 and 706-662(4)(a) as a multiple offender, and mandatory ...

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