TARVAL G. WEBSTER, Petitioner-Appellant,
STATE OF HAWAI'I, Respondent-Appellee
This decision is published in table format in the Hawai'i reporter
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT. S.P.P. NO. 11-1-0056; CR. NOS. 98-0613 and 99-0358.
On the briefs: Tarval G. Webster, Petitioner-Appellant, Pro se.
Lisa M. Itomura, Diane K. Taira, Deputy Attorneys General, State of Hawaii, for Respondent-Appellee.
Nakamura, C.J., Leonard and Reifurth, JJ.
SUMMARY DISPOSITION ORDER
Petitioner-Appellant Tarval G. Webster (Webster) appeals from the Order Denying Motion for Post-Conviction Relief, filed on May 2, 2012 in the Circuit Court of the First Circuit (Circuit Court).
In Cr. No. 98-0613, Webster was found guilty of a lesser included offense of Attempted Assault in the First Degree, in violation of Hawaii Revised Statutes (HRS) § 707-710 (1993) (Count I), Carrying, Using or Threatening to Use a Firearm in the Commission of a Separate Felony, in violation of HRS § 134-6(a) and (e) (Supp. 1998) (Count II), Place to Keep Pistol or Revolver, in violation of HRS § 134-6(c) and (e) (Supp. 1998) (Count III), and three counts of Reckless Endangering in the First Degree, in violation of HRS § 707-713 and 706-660.1(3) (1993) (Counts IV, V, and VI). Webster was sentenced to 10 years of incarceration for Count I with a mandatory minimum of 10 years, 20 years of incarceration for Count II, 10 years of incarceration for Count III, and 5 years of incarceration for each of Counts IV, V, and VI with a mandatory minimum of 5 years for each count. The sentences in Cr. No. 98-0613 were ordered to be served concurrently with each other but consecutively to Webster's sentence in Cr. No. 99-0358. In State v. Webster, 94 Hawai'i 241, 249, 11 P.3d 466, 474 (2000), the supreme court vacated Webster's conviction on Count II in Cr. No. 98-0613 and, on February 5, 2001, a First Amended Judgment was entered, which re-sentenced Webster to the same terms as above on Counts I, III, IV, V, and VI.
In Cr. No. 99-0358, on September 22, 1999, pursuant to a plea agreement, Webster pled guilty to the lesser included charge of Manslaughter and Place to Keep Pistol or Revolver. Webster was sentenced to 20 years incarceration for Manslaughter with a 5 year minimum and 10 years incarceration for Place to Keep Pistol or Revolver, both sentences to be served concurrently to each other but consecutively to Cr. No. 98-0613.
A Notice and Order Fixing Minimum Term(s) of Imprisonment dated June 29, 2000 set Webster's minimum sentence for all counts in Cr. Nos. 98-0613 and 99-0358 at the maximum indeterminate term for each count; thus, Webster's minimum sentences were also his maximum sentences.
On June 23, 2010, Webster received a new minimum sentencing hearing pursuant to Coulter v. State, 116 Hawai'i 181, 172 P.3d 493 (2007), which requires that the Hawaii Paroling Authority (HPA) state the level of punishment and the significant criteria upon which the level of punishment is based. A Notice and Order of Fixing Minimum Term(s) of Imprisonment dated May 27, 2011 set Webster's minimum sentence for each count again at the maximum terms, except for Count III in Cr, No. 98-0613, which was set at 8 years instead of the maximum term of 10 years. The notice identified Webster's Level of Punishment as Level III and the significant factors identified in determining the level of punishment were " (1) Nature of Offense; (2) Degree of Injury/Loss to Person."
On October 11, 2011, Webster filed a Petition to Vacate, Set Aside, or Correct Illegal Sentence Through a Writ of Habeas Corpus Pursuant to [Hawai'i Rules of Penal Procedure] Rule 40 (Petition). On May 2, 2012, the Circuit Court issued an Order Denying Motion for Post-Conviction Relief.
On appeal, Webster argues that the Circuit Court erred in denying him relief because the HPA deviated from its Guidelines when the order fixing his minimum sentence only noted Nature of Offense and Degree of Injury/Loss to Person as the significant criteria, without providing additional written explanation as to what facts or evidence were used to satisfy the callous and/or cruel disregard for the safety and welfare of others for the Nature of Offense definition. Webster claims that, since Manslaughter is defined as acting recklessly, HPA deviated when it found that his offense exhibited a callous and/or cruel disregard for the safety and welfare of others. Webster argues that the HPA acted in an arbitrary and capricious manner when " all of the minimum terms were originally set at their maximum sentence," and the revised order only reduced one minimum from 10 years to 8 years. In addition, Webster claims that he received a mandatory minimum of 10 years on that count, thus, the HPA could not impose a lesser minimum for that conviction. Webster asserts that the " HPA's initial starting point should have been Level I or II under the [Level of Punishment] matrix for the Nature and Degree criteria because this is the baseline for 'comparable' injury or loss for similarly situated victims[.]" Finally, Webster argues that he was provided ineffective assistance of counsel, primarily because he was not informed by counsel of the minimum sentencing deficiencies and counsel failed to protect his due process right by " not inserting the correct [Level of Punishment] during the minimum term hearing and never asked what evidence was to be used or what [Level of Punishment] that the HPA was considering."
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, ...