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. 10-1-0084; CR. NO. 06-1-1590.
On the briefs: Shawn A. Luiz, for Petitioner-Appellant.
Donn Fudo, Deputy Prosecuting Attorney, City and County of Honolulu, for Respondent-Appellee.
Nakamura, Chief Judge, Leonard and Reifurth, JJ.
SUMMARY DISPOSITION ORDER
Petitioner-Appellant Kapeli Mika Lafaele (Lafaele) appeals from the Order Denying Petition to Vacate, Set Aside, or Correct Judgment or to Release Petitioner From Custody, Filed November 4, 2010, filed on August 3, 2012 (Order Denying Petition), in the Circuit Court of the First Circuit (Circuit Court).
On August 27, 2007, in Cr. No. 06-1-1590, Lafaele was found guilty of Assault in the First Degree after pleading guilty to that charge, as a lesser included offense of Manslaughter. Lafaele was sentenced to five years probation with 18 months imprisonment as a special condition.
On January 25, 2010, the Circuit Court revoked Lafaele's probation and resentenced him to ten years incarceration.
On November 4, 2010, Lafaele filed a Petition to Vacate, Set Aside, or Correct Judgment or to Release Petitioner From Custody (Petition). In the Petition, Lafaele contended that: (1) he did not voluntarily and knowingly enter into the guilty plea; (2) trial counsel failed to disclose favorable evidence to him prior to his plea, i.e., that a prosecution witness was unavailable; (3) trial counsel refused to file an appeal; and (4) trial counsel provided ineffective assistance of counsel for committing the alleged errors above.
On August 3, 2012, after a hearing on the Petition, the Circuit Court entered the Order Denying Petition, which concluded that Lafaele's Petition was without merit.
On appeal, Lafaele claims the Circuit Court erred by denying the Petition because he received ineffective assistance of trial counsel. Lafaele contends that trial counsel failed to inform him that the State was not ready to proceed with its material witness and that trial counsel failed to file an appeal from his guilty plea and probation revocation on January 25, 2010.
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, we, resolve Lafaele's points of error as follows:
(1) Lafaele was aware of issues regarding the availability of a State's witness prior to entering into a guilty plea agreement for Assault in the First Degree, as a lesser included offense of Manslaughter. A transcript of the June 14, 2007 trial proceeding indicates that Lafaele was present when his counsel objected to the State's anticipated Opening Statement. His trial counsel stated that the witness was not immediately available for trial, therefore, she objected to any reference to photographs that were dependent on the witness's testimony. The State responded that it would bring the witness to court in a gurney if necessary. The State did not concede that the witness would not testify at trial. The State's Opening Statement alleged that the witness was present at the time of the incident but it did not indicate that the witness would actually testify or what the witness would testify about at trial. In the defense's Opening ...