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Draizen v. State

Intermediate Court of Appeals of Hawai'i

February 24, 2015

GARY A. DRAIZEN, Petitioner-Appellant,
v.
STATE OF HAWAI'I, Respondent-Appellee

Editorial Note:

This decision is published in table format in the Pacific and Hawai'i reporter.

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT. S.P.P. NO. 11-1-0051; CR. NO. 94-2348.

On the briefs: Gary A. Draizen, Petitioner-Appellant.

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

By: Nakamura, Chief Judge, Leonard and Reifurth, JJ.

SUMMARY DISPOSITION ORDER

Petitioner-Appellant Gary A. Draizen (Draizen) appeals from the " Order Denying Hearing and Dismissing Petition for Post-Conviction Relief (Rule 40 HRPP)," filed on July 24, 2012 (Order Denying Post-Conviction Relief), in the Circuit Court of the First Circuit (Circuit Court).[1]

On September 29, 1998, this court, in Appellate No. 20344 (Cr. No. 94-2348), affirmed the November 25, 1996 Judgment of the First Circuit Court convicting and sentencing Draizen for the offense of Murder in the Second Degree. On September 10, 1997, Draizen's minimum term was set at 50 years by the Hawaii Paroling Authority (HPA).

On June 4, 2009, Draizen's request for a new minimum sentencing hearing, pursuant to Coulter v. State, 116 Hawai'i 181, 172 P.3d 493 (2007), was granted. Draizen was appointed legal counsel for the new minimum sentencing hearing.

On June 28, 2010, after a hearing, the HPA again set Draizen's minimum sentence at 50 years and specified the Level of Punishment as Level III, citing the significant factors of Nature of Offense and Degree of Loss/Injury to Victim.

On August 31, 2011, Draizen filed a Petition to Vacate, Set Aside, or Correct Judgment or to Release Petitioner from Custody (Petition). Draizen claimed that: his minimum sentence was increased after receiving a new minimum sentencing hearing, in violation of his due process rights,; HPA acted arbitrarily when classifying him because it failed to distinguish how his crime differed from others similarly situated; his minimum sentence was an extraordinary departure from the HPA Guidelines without explanation; HPA imposed a higher degree of penal liability than authorized by statute; he was denied effective assistance of counsel at his initial minimum sentencing hearing in 1997; HPA increased his minimum term due to actual vindictiveness; HPA is subject to Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000); HPA failed to sufficiently specify its rationale for determining his level of punishment; he was denied the right to present mitigating factors when HPA failed to apprise him of the initial Level of Punishment starting point; HPA used the wrong level of punishment for its starting point when setting the minimum sentence; HPA automatically assessed all offenses involving loss of life to be " callous and/or cruel; " and the factors cited by HPA do not warrant a Level III classification.

On July 24, 2012, the Circuit Court issued the Order Denying Post-Conviction Relief. Draizen timely filed a notice of appeal. On appeal, Draizen raises the same contentions as stated in his Petition.

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 Draizen's points of error as follows:

Draizen failed to support his claim that he received ineffective assistance of counsel during his minimum term sentencing hearing in 1997 with any evidence in the record. " A verbatim stenographic or mechanical record of the hearing shall be made and preserved in transcribed or untranscribed form." HRS ยง 706-669(6) (2014). No transcript of the hearing of Draizen's 1997 minimum term sentencing appears in the record on appeal. Thus, there is no trace of evidence in the record to support his claims. In addition, even if Draizen received ineffective assistance of counsel at ...


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