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Lewi v. State

Supreme Court of Hawaii

November 7, 2019

DESMOND J. LEWI, Petitioner/Petitioner-Appellant,
STATE OF HAWAI'I, Respondent/Respondent-Appellee.

          CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CAAP-16-0000090; S.P.P. NO. 15-1-0003 (CR. NO. 08-1-0483))

          Keith S. Shigetomi for petitioner.

          Ricky R. Damerville and Suzanna L. Tiapula (with him on the briefs) for respondent State of Hawaiʻi.

          Richard Stacey for respondent Hawaiʻi Paroling Authority.



          McKENNA, J.

         I. Introduction

         We hold that Desmond J. Lewi's ("Lewi") Hawai'i Rules of Penal Procedure ("HRPP") Rule 40 petition stated a colorable claim that the Hawai'i Paroling Authority ("HPA") violated his due process rights by arbitrarily and capriciously determining that he was a "Level III" offender for purposes of calculating his minimum term of imprisonment on a manslaughter conviction. As we therefore remand this case to the circuit court for a hearing as to whether the HPA arbitrarily and capriciously maintained Lewi's Level of Punishment at Level III, Lewi may also amend his Rule 40 petition to include his claim on appeal that the circuit court did not adequately explain its decision to impose a consecutive sentence.

         We therefore affirm in part, and vacate in part, the ICA's July 13, 2017 judgment on appeal, which affirmed the Circuit Court of the Third Circuit's[1] ("circuit court") January 27, 2016 "Findings of Fact, Conclusions of Law and Order Denying Petition to Vacate, Set Aside, or Correct Judgment or to Release Petitioner from Custody Filed August 14, 2015, Without a Hearing." This case is remanded to the circuit court for further proceedings consistent with this opinion.

         II. Background

         A. Underlying Criminal Proceedings

         On October 7, 2008, the State charged Lewi via Complaint with five offenses: Count 1, Murder in the Second Degree, in violation of Hawai'i Revised Statutes ("HRS") § 707-701.5(1); Count 2, Carrying or Use of a Firearm in the Commission of a Separate Felony, in violation of HRS § 134-21(a); Count 3, Carrying or Possessing a Loaded Firearm on a Public Highway, in violation of HRS § 134-26(a); Count 4, Place to Keep Ammunition, in violation of HRS § 134-27(a); and Count 5, Ownership or Possession Prohibited, in violation of HRS § 134-7(b) and (h).[2]

         The charges stemmed from an incident in which Lewi shot and killed his sister's boyfriend, Cameron Mauga, after a long history of conflict. On the morning of October 5, 2008, the extended Lewi family was gathered at Puhi Beach Park for a child's birthday party. Mauga confronted Lewi, who was seated in the driver's seat of his (Lewi's) truck. Lewi's 6-year-old son was seated in the front passenger seat. Mauga punched Lewi in the head. Lewi kept a loaded shotgun in his truck, so he brandished it, hoping to scare Mauga off. Instead, Mauga grabbed for the gun. As the two struggled, the gun discharged, killing Mauga.

         Lewi was incarcerated at the Hawai'i Community Correctional Center pending trial, as he was unable to post his $1, 000, 000.00 aggregate bail. After a month of incarceration, Lewi's bail was reduced, and Lewi posted bail. While released on bail, he was placed on electronic monitoring, and he reported to work (as a skilled construction worker) and returned home before his curfew with no problems.

         On March 23, 2010, Lewi pleaded guilty to the lesser offense of manslaughter on Count l.[3] He also pleaded guilty to the firearms offenses in Counts 3 and 5. Lewi signed his change of plea form, which stated: "I understand that the Court may impose any of the following penalties for the offense(s) to which I now plead: the maximum term of imprisonment . . ., consecutive terms of imprisonment (if more than one charge), . . . probation with up to two year[s] of imprisonment and other terms and conditions." He also acknowledged the following: "I have not been promised any kind of deal or favor or leniency by anyone for my plea, except that I have been told that the government has agreed as follows. . .: The State will reduce Count 1 to manslaughter and dismiss the counts not plead [sic] to. [4] The State may seek a prison term of 30 years. I will seek probation and any legal sentence . . . ."

         The minutes of the change of plea hearing note that the circuit court questioned Lewi and "found he understood the consequences of his plea & had made a knowing voluntary & intelligent entry of plea & waiver of trial."[5] As part of the plea agreement, the State moved to nolle prosequi, with prejudice, Counts 2 and 4 (other weapons offenses), and the circuit court granted the motion.

         Lewi's presentence investigation and report ("PSI") included a letter from his deputy public defender to the court requesting a sentence of two years' imprisonment plus probation. At the May 24, 2010 sentencing hearing, Lewi's counsel objected to the PSI's inclusion of victim impact letters from individuals who were not relatives of the victim. Those letters were removed from the PSI. The minutes of the sentencing hearing also state that Lewi's counsel "noted various corrections to the presentencing report."

         At the sentencing hearing, the circuit court sentenced Lewi to 20 years' imprisonment on Count 1 (Manslaughter), 10 years imprisonment on Count 3 (Carrying or Possessing a Loaded Firearm on a Public Highway), with the sentences in Counts 1 and 3 to run concurrently, and 5 years imprisonment on Count 5 (Ownership or Possession Prohibited), with the sentence in Count 5 to run consecutively to the sentences in Counts 1 and 3. [13:220]

         The circuit court stated the following regarding its imposition of consecutive sentences:

The question is whether the sentence - or the sentences are to run concurrently or consecutively. It's true there's a presumption in favor of concurrent sentencing. But what is of concern to the Court is that you' re not supposed to have had the firearm in your truck to begin with. Not supposed to have had a firearm in your possession, period. Let alone a loaded shotgun on a public highway. That possession in and of itself was an illegal act. And after that you acted recklessly in allowing that firearm to go off and shoot Mr. Mauga.
So based upon the seriousness of the offenses and the need for punishment and deterrence, consecutive sentence would be warranted.
On the other hand, to your credit you have a limited criminal history. I have read the letters and seems that you have a strong prosocial character, yeah. And you apparently are not - although there's some arguments on the other side, didn't seem as if you were a problem while out on bail. And these factors favor concurrent sentencing.
And regarding community protection, not sure how that cuts. But balancing these considerations the Court believes that it's appropriate to sentence you to a 25-year indeterminate term, okay.

         At the end of the sentencing hearing, the circuit court also stated that "if the Paroling Authority maxes the amount on both [consecutive sentences], [the circuit court would] be willing to look at concurrent [sentencing]." Defense counsel responded that she "would place a Rule 35 on the record at this time, "[6] which the circuit court "[s]o noted."

         On June 9, 2010, Lewi moved to reduce his sentence from consecutive terms totaling 25 years to concurrent terms totaling 20 years. Lewi pointed out that this court had issued State v. Hussein, 122 Hawai'i 495, 229 P.3d 313 (2010), weeks before he was sentenced. In Hussein, we held that a sentencing court must state on the record at the time of sentencing "its reasons as to why a consecutive sentence rather than a concurrent one was required." 122 Hawai'i at 509, 229 P.3d at 328. Lewi argued that the circuit court's reasons for imposing a consecutive sentence were insufficient, appending a portion of the transcript of the sentencing hearing to his motion.

         The circuit court denied Lewi's motion to reduce sentence, referring back to its statements at the previous sentencing hearing, and reasoning as follows:

The Hussein case does not require the court to make, uh, specific findings, but state reasons for imposing consecutive, um, sentences; and the court believes that it did this. It did recognize the presumption under H.R.S. Section 706-668.5 in favor of concurrent sentencing and addressed the factors under H.R.S. Section 706-606, and came to the conclusion that consecutive terms totaling 25 years, um, is an appropriate sentence.
In deciding upon the consecutive terms, um, the court did take into consideration the multiplicity of the offenses and the impact upon the victim. And the Hussein case expressly recognizes these criteria as bases for imposing consecutive sentences. Regarding the impact upon the victim, death is the ultimate impact; and of course Mr. Mauga died in regard - in this case.
And what I'll - what was of great concern is that immediately prior to Mr. Mauga's death, as stated during sentencing, it was illegal for Mr. Lewi to have possession of a firearm and it was illegal for him to have a loaded firearm on the public highway. It was Mr. Lewi's illegal acts immediately prior to his contact with Mr. Mauga which ultimately resulted in Mr. Mauga's death.
The court's choice of the 25-year term as compared to the 30-year term [requested by the State] was based upon a recognition of the mitigating factors previously mentioned, a minimal prior criminal history, apparent pro social behavior, et cetera. If the sentence imposed by the court was purely based upon considerations of multiplicity of offenses and the impact upon the victim, the 30-year term would have been imposed; instead, the 25 year term was imposed because of the mitigating factors.

         On September 10, 2010, the HPA set all of Lewi's minimum terms at the maximum duration: 20 years on Count 1, 10 years on Count 3, and 5 years on Count 5. The HPA also set Lewi's level of punishment at Level III, the highest level, for all three counts, stating "Significant factors identified in determining the level of punishment: (1) Nature of Offense; (2) Degree of Injury/Loss to Person."

         After HPA set his minimum terms and offender levels, Lewi filed his second motion to reduce sentence on November 26, 2010, reminding the circuit court of its statement at the end of the initial sentencing hearing, and appending the HPA's Notice and Order of Fixing Minimum Term. Lewi asked the circuit court to reduce his sentence to a concurrent 20 years or a term of probation. The State filed a memorandum objecting to the second motion to reduce sentence, alleging "nothing ha[d] changed" between the hearing on the first motion to reduce and the filing of the second motion to reduce sentence.

         On January 21, 2011, Lewi's deputy public defender moved to withdraw as counsel, declaring that Lewi had accused her of ineffective assistance of counsel. Lewi also sent in a handwritten letter to the court accusing the deputy public defender of ineffective assistance of counsel. Three months later, the deputy public defender filed a supplement to her motion to withdraw as counsel, declaring that she had made unsuccessful efforts to contact Lewi. The circuit court granted the deputy public defender's motion and appointed successor counsel on June 15, 2011. This successor counsel filed an ex parte motion to withdraw due to a conflict of interest on April 9, 2012, which was granted on that day.

         No disposition of the renewed motion to reduce sentence appears in the record. No direct appeal was filed from Lewi's original sentence.

         B. Rule 40 Petition

         On August 14, 2015, Lewi filed the subject HRPP Rule 40[7]petition for Post-Conviction Relief pro se.

         The grounds for Lewi's Rule 40 petition can be grouped into three categories.

         First, he argued ineffective assistance of counsel, alleging the deputy public defender induced him to plead guilty, failed to appeal his consecutive sentence, and failed to challenge HPA's minimum term decision.

         Second, he argued HPA acted arbitrarily and capriciously in setting his level of punishment at Level III and in setting his minimum terms at the same length as his maximum sentences, because HPA did not utilize the "criminal history" and "pro-social life" guidelines, which he alleged would have cut in his favor. (Lewi had only one prior petty misdemeanor conviction, was a skilled construction worker with strong family and community ties, and posed no problems while out on bail.)

         Third, Lewi argued that his sentence was illegal, because he could not be convicted of both manslaughter and weapons offenses based on State v. Jumila, 87 Hawai'i 1, 950 P.2d 1201 (1988), State v. Christian, 88 Hawai'i 407, 967 P.2d 239 (1989), and State v. Van Den Berg, 101 Hawai'i 187, 65 P.3d 134 (2003).[8]

         On his Rule 40 petition form, Lewi stated that he did not raise these challenges earlier because his attorney was unresponsive to his requests to challenge HPA's minimum terms. Lewi asked the circuit court to (1) order HPA to give him a new hearing to reset his level of punishment to level I or II; (2) overturn his illegal sentence and re-sentence him to 20 years on the manslaughter conviction, with sentences on any weapons convictions to run concurrently; and (3) remove current counsel and appoint new counsel. Lewi also stated that he was "not pulling the Man-Slaughter plea."

         On September 17, 2015, substitute counsel was appointed to represent Lewi for his Rule 40 Petition ("Rule 40 substitute counsel"). On November 16, 2015, Rule 40 substitute counsel filed a supplemental memorandum in support of Lewi's Rule 40 petition. He first argued that the HPA misapplied the "Degree of Injury/Loss to Person" factor in its determination that Lewi's offender status should be at Level III. He argued that the HPA Guidelines place an offender on Level III status only if "[t]he injury or loss suffered by the victim[s] was more than those experienced by similarly situated victims[, ]" quoting HPA's Guidelines for Establishing Minimum Terms of Imprisonment ("HPA Guidelines") at 6 (emphasis added) but that an offender should be placed at Level II if "[t]he injury or loss suffered by the victim[s] was comparable to those experienced by similarly situated victims." Rule 40 substitute counsel argued that because Lewi's victim died due to a shotgun shot to the chest, "death should be considered the normal degree of injury . . . ." Rule 40 substitute counsel asserted that, as such, in considering the "degree of injury/loss to person" guideline, HPA should have placed Lewi at Level II, not III. He did not make any arguments about the other criterion HPA used to set Lewi's minimum term, "nature of the offense." He also did not argue that the HPA acted arbitrarily and capriciously in setting Lewi's minimum terms at the same length as his maximum sentences.

         Rule 40 substitute counsel next argued that Lewi did not have the effective assistance of counsel because the deputy public defender failed to appeal the HPA's illegal decision. He did not argue that counsel was ineffective for inducing Lewi's guilty plea or failing to directly appeal his sentence. Counsel also did not include Lewi's argument that his sentence was illegal under Jumila, Christian, and Van Den Berg. Counsel ended his supplemental memorandum with a request that the circuit court order a new minimum term hearing before the HPA.

         On December 2, 2015, the State filed an answer to Lewi's Rule 40 petition, as supplemented by Rule 40 substitute counsel's memorandum. As to Lewi's argument that his sentence was illegal under Jumila, Christian, and Van Den Berg, the State argued that the Jumila line of cases is no longer good law, as this court overruled Jumila in State v. Brantley, 99 Hawai'i 463, 56 P.3d 1252 (2002).[9] The State also pointed out that the cited cases involved the offenses of Murder in the Second Degree and/or Carrying or Use of Firearm in the Commission of a Separate Felony, [10] two offenses for which Lewi was not convicted, as Lewi was convicted of Manslaughter, and the Carrying or Use of a Firearm in the Commission of a Separate Felony count was dismissed after Lewi pleaded guilty to Manslaughter in lieu of Murder in the Second Degree.

         As to Lewi's minimum term, the State argued that the HPA "classified [Lewi] as a Level III offender, and stated, 'Significant factors identified in determining the level of punishment: (1) Nature of Offense; (2) Degree of Injury/Loss to Person.' The HPA, thereby, complied with its guidelines and provided written justification for its decision." The State also argued that the HPA may set a prisoner's minimum term of imprisonment at the length of time equal to his maximum sentence, citing Williamson v. Hawaii Paroling Auth., 97 Hawai'i 183, 191, 35 P.3d 210, 218 (2001).

         As to Lewi's ineffective assistance of counsel claims, the State asserted that HPA's minimum term decision "was not in violation of its guidelines and [was] neither arbitrary nor capricious"; accordingly, "Trial counsel may have believed, likewise, and chose not to file an appeal that had no merit." The State ...

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