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Akau v. State

Supreme Court of Hawaii

March 5, 2019

TIMMY HYUN KYU AKAU, Petitioner/Petitioner-Appellant,
v.
STATE OF HAWAI'I, Respondent/Respondent-Appellee.

          CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CAAP-13-0003754; CIVIL NO. 1SD-13-1-9)

          Earle A. Partington for Petitioner

          Brian R. Vincent for Respondent

          RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.

          OPINION

          WILSON, J.

         In 2013, Timmy Hyun Kyu Akau (Akau) filed a petition with the District Court of the First Circuit (district court) pursuant to Hawai'i Rules of Penal Procedure (HRPP) Rule 40 to vacate, set aside, or correct his 1987 conviction for driving while under the influence of an intoxicating liquor (DUI). The district court[1] denied Akau's petition, and the Intermediate Court of Appeals (ICA) affirmed the district court's denial of his petition in an unpublished memorandum opinion.[2] The ICA observed that Akau had waited over twenty-five years to challenge his DUI conviction. As a result of the intervening delay, no transcripts of any of the proceedings in Akau's DUI case were available. The ICA affirmed the denial of Akau's HRPP Rule 40 petition on the basis of the equitable doctrine of laches.

         We conclude that Akau's right to counsel was violated in 1987. We also hold that the equitable doctrine of laches does not apply to HRPP Rule 40 petitions.

         I. BACKGROUND

         In June 2013, Akau filed a petition to vacate, set aside, or correct judgment or to release petitioner from custody in accordance with HRPP Rule 40. In his petition, Akau sought to have the court set aside a conviction stemming from a charge of DUI dating from 1987.

         Where an HRPP Rule 40 petition for post-conviction relief states a colorable claim, an evidentiary hearing on the petition is required. HRPP Rule 40(f); Wilton v. State, 116 Hawai'i 106, 122-23, 170 P.3d 357, 373-74 (2007) (citing Hutch v. State, 107 Hawai'i 411, 414, 114 P.3d 917, 920 (2005) for the holding that "a hearing on a Rule 40 petition is required whenever the allegations in a petition, if taken as true, (1) would change the verdict rendered or (2) would establish the illegality of custody following a judgment[]" (internal citations and quotation marks omitted)). If the factual allegations of the petition, taken as true, "would entitle the petitioner to relief," the petition states a colorable claim. HRPP Rule 40(f). Here, after examining the petition, the district court concluded that Akau had stated a colorable claim for post-conviction relief in his petition and, accordingly, an evidentiary hearing was held in July 2013.

         After hearing Akau's testimony, the district court entered findings of fact and conclusions of law. Although the shorthand notes of Akau's arraignment and trial were destroyed in the late 1990s pursuant to the court's record retention policy, the district court reviewing Akau's petition was able to make findings of fact based on the surviving minimal original court records combined with Akau's testimony at the evidentiary hearing.

         In its findings of fact, the court found that on July 26, 1987, Akau was arrested and charged with DUI. Two days later, he appeared before the District Court, Ewa Division, and pled not guilty. He was referred to the Office of the Public Defender, and trial was scheduled for December 23, 1987. On December 23, 1987, Akau appeared in court without counsel and requested a continuance. As he later testified at the evidentiary hearing on his Rule 40 petition, he requested the continuance "[b]ecause I wanted to get an attorney present at the time." His request for a continuance was denied. After trial, [3] Akau was convicted of DUI. He was sentenced to a small fine, a DUI class, and a 90-day license suspension.

         In 2013, Akau filed an HRPP Rule 40 petition to vacate, set aside, or correct judgment. In his petition, Akau asserted that at the time of his 1987 arrest for DUI, he was not familiar with court procedures or with the purposes behind his appearances. He asserted that he did not have the assistance of counsel at arraignment, trial, or sentencing. He did not recall ever being informed that he had a constitutional right to a jury trial, or that he had a right to have an attorney represent him, at public expense, if necessary. Nor did he recall being informed that he had a right to appeal his conviction. He could not recall a judge ever explaining the nature of the offense, the pleas and defenses available, or the punishment that might be imposed; he did not recall the judge informing him concerning the risks of self-representation.

         In its findings of fact, conclusions of law, and order filed September 11, 2013, the district court denied Akau's petition, concluding that the passage of twenty-five years between Akau's trial in 1987 and his petition in 2013 "is an inordinate amount of time leading to the nonexistence of Court records." As a result, the court ruled that it would be "inequitable to grant the Petition because the passage of twenty-five (25) years has resulted in the unavailability ...


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