D'AMBROSIO v. State

Well, couples A it be 4. sometimes would counseling, sometimes would be counsel- § The HRS Í51J-12 refuse ing the children and mom and dad. applicable. to disclose is And, also, happened That a few times. through Subsections of HRS counseling there for the was individual exceptions § 451J-12 state five to the rule children off and on. person marriage licensed as a “[n]o and family therapist, any person’s nor of the em- Q you family drug Do work with the associates, ployees required shall be court? any person may disclose information that the acquired rendering marriage and Yes, A I do. family therapy As none of the services!.]” Q you And are contracted the State case, exceptions applies five in this the court to do that? Wright not authorized was to order to dis- A I am Yeah. contacted Maui Youth close the information. Family and Services which contracts with Wright The record is clear that would not the State. And I am in the RFP to be one have disclosed the information absent of the assessors for families. Wright “[m]y order. testified that role mean, Q And what does that what do actually therapist. has been as a And if I am you do? subpoenaed, judge has to order me to give Otherwise, out information. it’s client, A What I do is I see the identi- confidential and I cannot.” client, patient family fied as the well members, they get to see can their how life on track. addressing drug It’s about CONCLUSION Maui, problem epidemic on ice and mari- Accordingly, spousal affirm support we

juana. and the division and distribution of assets parts Judgment Granting and debts Di- Wright’s testimony pertained solely to the Awarding custody Custody vorce and Child part of the case. The entered divorce HRS April 2005. prohibition § We vacate the child custo- apply 451J-13 does not to cus- dy, visitation, tody Therefore, support part Judg- Chapter actions. the HRS ment and remand for a trial. marriage family 451J-13 new “licensed thera- pist” prohibition apply Wright’s not does words,

testimony. legislature In other expressly

has stated that a licensed “mar-

riage family therapist” prohibited not testifying custody in a action concern-

ing acquired in the information course of

therapy parties. both 146 P.3d 606 D’AMBROSIO, Robert C.

3. Petitioner-Appellant, 4.51J-12(5) The HRS subsections (6) permissions to disclose are Hawai‘i, Respondent-Appellee. STATE of applicable. No. 25961. 451J-12(5) applicable § HRS is not be- Appeals Intermediate Court Roger previ- no of Hawai'i. cause there is evidence that ously privi- executed a written waiver Sept. 451J-12(6) lege. applicable HRS is not family the “each because member who is

legally competent executes a written waiver”

requirement not satisfied. D’Ambrosio, briefs, peti-

Robert C. on the tioner-appellant, pro se. Anderson, deputy prosecuting

James M. attorney, City Honolulu, County briefs, plaintiff-appellee. for BURNS, C.J., WATANABE, J.; NAKAMURA, J., Concurring Separately. Opinion by WATANABE, of the Court J. Petitioner-Appellant Robert C. D’Ambro- (D’Ambrosio, D’Ambrosio, Robert, sio Mr. Petitioner) fact, appeals findings from the law, conclusions of and order entered (the Circuit Court of the First Circuit circuit court)1 (the on June June order), summarily dismissing his Hawai'i (HRPP) Rules of Penal Procedure Rule 402 Milks) (Judge 1. The Honorable Marie N. Milks presided. (v) any ground which is a basis for collateral judgment. attack on the (HRPP) 2. Hawai'i Penal Rules of Procedure Rule rule, purposes judgment For of this provides, part, in relevant as follows: appeal final when the time for direct under POST-CONVICTION PROCEEDING. 4(b) Appellate Rule of the Hawai'i Rules of (a) Proceedings grounds. post- expired being appeal Procedure has without proceeding conviction established this rule taken, taken, appeal or if direct when the encompass statutory shall all common law and terminated, appellate process provided has procedures purpose, including for the same seeking that a under this rule relief nobis; corpus provided habeas and coram judgment may during pen- from be filed foregoing shall not be construed to limit dency appeal granted by of direct if leave is availability of remedies in the trial court or appellate order of the court. appeal. proceeding on direct applicable Said shall be Any person may Custody. seek re- From judgments of conviction and to procedure lief under the set forth in this rule conviction, custody judgments based on custody upon judgment based of con- follows: viction, following grounds: on the prior At time but not Judgment. From served; (i) fully that sentence was judgment, any person may to final seek relief procedure under the set forth this rule from (iii) any ground making custody, conviction, other judgment following the grounds: though judgment, illegal. not the (i) judgment was obtained or sen- (f) imposed Hearings. petition alleges tence in violation If a of the constitution facts that if Hawai'i; relief, proven petitioner of the United States or of the State of would entitle the (Rule Relief Ground two: He was denied effective Petition for Post-Conviction because Pallett failed to assistance of counsel petition). appear at D’Ambrosio’s minimum-term hear- petition, alleged In his Rule 40 ing four times and failed to advise D’Ambro- following grounds seeking post-con- Establishing sio of the HPA’s Guidelines vietion relief: (HPA Imprisonment Minimum Terms of Guidelines),4 rendering “plea D’Ambrosio’s Ground one: His conviction was obtained valueless[;]” deal guilty plea unlawfully in- “which was voluntarily” duced and not made because he Ground three: His conviction was obtained Respondent agreement entered into the on the false an unconstitutional failure of (the State) promise Appellee to dis- represented that he would be State Hawai'i Paroling to him because the before the Hawaii Authori- close evidence favorable (the ty paroling authority) inform him that “fall HPA or the to set State failed to he would (mini- imprisonment III inmate of the [HPA] his minimum term of under the Level valueless[;]” counsel, hearing) by making mum-term trial Guidelines our deal (Pallett Pallett);3 M. Pallett Mr. and James or may guidelines grant hearing authority shall a The shall establish the uniform determination of minimum sen- only petition extend to the issues raised in the However, which shall take into account both the tences may deny or answer. the court a prison- degree nature and of the offense of the hearing petitioner’s patently if the claim is history prisoner's criminal and er and the support frivolous and is without trace of either guidelines public The shall be rec- character. in the record or from other evidence submitted prison- ords and shall be made available to the deny petitioner. may The court also attorney prosecuting other er and to the question hearing specific on a of fact when government agencies. interested evidentiary hearing upon and fair full question The to the HPA Guidelines that is introduction during was held the course of states, appeal in rele- included the record proceedings judgment which led or cus- part: vant tody subject which is the of the or at sentencing guide- purpose The of minimum proceedihg. later uniformity provide degree lines is to petitioner a full and fair evi- The shall have setting consistency in the of minimum terms dentiary hearing petition. The court community-at-large, public providing while shall receive all evidence that is relevant planners, jus- policy the criminal makers and including necessary petition, to determine the system, tice and victims and offenders affidavits, depositions, testimony, oral certifi- information as to the criteria used in establish- any judge any hearing presided at cate of who ing imprisonment. terms of minimum during proceedings the course of the which led guidelines provide range of time and The subject judgment custody which is the punish- levels of criteria within each of three necessary petition, of the and relevant and minimum ment within which decisions on portions transcripts prior proceedings. system sanc- are reached. Under our terms tions, petitioner present shall have a to be The adequate flexibility in there needs to be hearing any evidentiary at which a material setting process the minimum to account litigated. question of fact is offenses, among significant offend- differences petition alleges Where the the ineffective as- ers, surrounding each and the circumstances ground upon of counsel as a which the sistance prison. individual’s offense and commitment requested granted, peti- be relief should term, reaching on a minimum decision hearing tioner shall serve written notice of are criteria to be taken into consideration alleged upon the counsel whose assistance is IV. While the criteria out- discussed in Part ineffective and said counsel shall been inclusive, they represent all do lined are not opportunity heard. have an to be It primary in most cases. considerations weights emphasized specific be should 2, judicial September that on

3. We take notice assigned criteria have not been to the various 2005, Supreme an the Hawai'i Court entered are: but the three areas of focus prac- suspending M. Pallett from the order James offense; (1) the nature of the 3, years, tice of law for five 2005, effective October person degree injuiy/loss proceeding. pursuant disciplinary to a property and history, criminal the offender’s (HPA) Authority adopted guidelines, Paroling may deviate [HPA] The Hawaii below, Establishing Minimum all deviations shall the HPA Guidelines for either above or but Guidelines) (HPA justification Imprisonment pursu- accompanied and be be written Terms of (HRS) Establishing part Mini- made a of the Order Revised Statutes 706- ant to Hawaii 669(8) (1993), Imprisonment!.] mum Terms of which states: murder, agreed Ground four: He is innocent of to recommend to the HPA that guilty manslaughter, only pleaded imprisonment D’Ambrosio’s term legal years. to murder on the erroneous ad- be set at ten vice of his trial counsel. allowing Prior to DAmbrosio enter his record, briefs, Based on our review guilty plea, Judge engaged Milks in an exten- law, statutory and relevant and case we con- colloquy sive with D’Ambrosio to ensure that petition pre- clude that D’Ambrosio’sRule 40 he realized that the HPA not bound be sented a colorable claim on 2—that Ground by the could State’s recommendation and set D’Ambrosio received ineffective assistance of longer a minimum term of hearing—and counsel at his minimum-term years than ten for D’Ambrosio: summarily should have been dismissed D’Ambrosio, THE COURT:.... Mr. I ground. Accordingly, on that we vacate the two-page says have a document here. It June 2003 order and remand ease to this “Guilty/No top. Contest” on the It’s what evidentiary the circuit court to conduct an pre-printed call a we form and there are respects on that issue. In all other portions that are in. handwritten In the affirm we the June 2003 order. Page middle of there’s a date of March signature. you sign and there’s a Did BACKGROUND this? September charged On the State Yes, MR. D’AMBROSIO: I did. committing D’Ambrosio with in Murder Degree, in Second violation of Re- Hawaii you THE (HRS) (1985 COURT: Did and Mr. Pallett §§

vised Statutes 707-701.5 & go parts have a chance to all of the over Supp.1990)5 (Supp.1990),6 and 706-656 this document? (Marsh). killing Song Muang Nancy Marsh charge September stemmed from a Yes, MR. D’AMBROSIO: we did. 1991 incident in which D’Ambrosio entered Butterfly Lounge, worked, where Marsh THE COURT:.... I’m going to be ask- her a slit throat with knife. ing you questions about the form and the Following February a trial7 held from you reason we ask is to make sure under- through March a mistrial was de- going clarify any stand what’s on to misun- jury clared when was unable to reach a derstandings you might have and make initially unanimous verdict. A new trial was that putting pressure you sure no one is September and, scheduled for fol- forcing you any way plead. or If I continuances, lowing several rescheduled to question you ask don’t understand 13,1995 February before the Honorable Ma- my question, you stop can me? I’ll ask the Milks). date, (Judge rie N. Milks On that question over. opted plea agree- to enter into MR. D’AMBROSIO: Yes. State, pursuant ment with the to which he pleaded guilty charged as and the State (1985) (2) § provided degree HRS 707-701.5 as follows: Persons convicted of second mur- degree. attempted degree Except Murder in the der and second second murder shall as 707-701, provided person imprisonment in section possi- commits be sentenced life degree the offense of murder in the second bility parole. length The minimum of im- person intentionally knowingly causes prisonment shall be determined the Hawaii person. the death of another paroling authority; provided persons that who degree felony Murder in the second a is repeat are offenders under section 706-606.5 for which the defendant shall be sentenced to applicable mandatory shall serve at least the imprisonment provided as in section 706-656. imprisonment. minimum term of (Supp.1990) provided,

6. HRS 706-656 in rele- presided 7.The D. Honorable Dexter Del Rosario part, vant as follows: jury over the trial. Terms of for first and second degree attempted murder and first and second degree murder .... says Paragraph THE COURT: that MR. D’AMBROSIO: Yes.

you’re entering guilty plea to going to be explain did he THE COURT: And how charge of Murder in the Second De- the minimum would be set? Did he tell you gree. plead Do it means to know what you that the court the minimum would set guilty? parole authority set the mini- or the Yes, I

MR. D’AMBROSIO: do. mum? already gone THE COURT: You have up MR. D’AMBROSIO: It was to the not, case, you through a trial in this have authority my paroling to set minimum. Mr. D’Ambrosio? Now, agree- THE one of the COURT: MR. D’AMBROSIO: Yes. you regard your ments that have with you THE So all COURT: understand you’re going plead that rights you fighting the case charged is-going and the State to recom- having prove charges the State paroling authority you mend to the against you? years you’re eligible serve ten before you parole. Is that what understand the

MR. D’AMBROSIO: Yes. going State to recommend? you THE COURT: And understand that by pleading guilty, basically, you’re going MR. D’AMBROSIO: Yes. stipulate agree that there ais suffi- you THE COURT: And do understand judge cient basis for to find the elements you that that does not mean that have to Degree? of Murder the Second Is ten-year mandatory minimum? It serve a explained?

what Mr. Pallett up paroling authority and if will be MR. D’AMBROSIO: Yes. paroling authority to set less wants ten, so, authority may paroling

than do you understand that? says Paragraph THE COURT: Yes, your MR. D’AMBROSIO: Honor. you copy original received a written charge having gone through and a trial words, In other this is THE COURT: before, expect you I would that know who authority. binding paroling not on the It are, you essentially the witnesses know is the State’s recommendation which the say, you and and what the witnesses would authority accept or re- paroling can either you Mr. Pallett have discussed how ject. against charge, that correct? defend is Honor, Your if I MR. D’AMBROSIO: MR. D’AMBROSIO: That is correct. speak, only problem I had with could my understanding THE COURT: And plea bargain plea thought I was before, you that to trial is when went mandatory ten-year sentence. was a verdict, jury agree was unable to No, mandatory. THE COURT: It’s not that correct? mandatory. it’s not MR. D’AMBROSIO: Yes. only problem MR. D’AMBROSIO: The paragraph number THE COURT: The making I have with a decision— you’re pleading five is marked as fact, if Mr. Pallett THE COURT: In you’ve because discussed all the evidence to, copy of the he can order a wishes you’ve and the advice on the law discussed authority indi- transcript paroling for the your lawyer you that believe with they’re cating that not bound you’re guilty, that true? and the court is State’s recommendations MR. D’AMBROSIO: Yes. any mandatory making any finding not you

THE COURT: Do know what that if You also have to understand term. offense? maximum sentence is this authority impose paroling wants minimum, they years’ can higher than ten I believe life with MR. D’AMBROSIO: do that too. parole. I that explain MR. D’AMBROSIO: understand

THE Did Mr. Pallett COURT: parole life works? too. how with you My finding your plea

THE COURT: I don’t want to feel second is that has they only go up that knowingly under ten. It will be been entered and that means paroling authority. you you by pleading, you to the Did feel know face a any putting that at Mr. parole. time Pallett sentence of life was You know any pressure you you forcing any going the State is to recommend a way plead? ten-year to come into court to minimum term. You know that mandatory that is not a minimum term and No, MR. D’AMBROSIO: he left total- authority paroling will be at liber- ly up myself Iwhat wanted to do. He ty term, subject to set its minimum own possibilities advised me on both recommendation the State. sides. My finding your plea third is that has you’re THE COURT: And comfortable voluntarily. been entered That means respected your right that he’s to make you’re taking anyone not the blame for your own decision ease? you pressured any- have not been MR. D’AMBROSIO: Yes. thing your plea. to extract May On D’Ambrosio was sen- you THE COURT: plead today, Once tenced the circuit to a maximum court8 finding your I make a en- was possibility term of life with the intelligently, tered knowingly, and volun- parole. At sentencing hearing, tarily, you cannot hereafter wait for the circuit court impos- confirmed that it paroling authority to set the minimum and ing “mandatory minimum pur- time” and that say then come back and I don’t like the stipulation suant to the between D’Ambrosio sentence, my I want to withdraw State, and the “the State will recommend a plea. ten-year minimum” to the HPA and “the that, MR. D’AMBROSIO: I understand any court will not make statement with re- your Honor. gard to the recommendation. The court will reason, THE COURT: And for that we imposing any ten-year not be term at this you really going want understand what’s up time. It Paroling will be Authori- far, you on. So do ques- other ty.” you’d tions like to direct to me? subsequently sent No, MR. D’AMBROSIO: I don’t. Hearing Rights Notice of Request Legal page Counsel. The first THE COURT: The two-paged, pre-printed court makes the form notified D’Am- following findings. My finding first is that brosio that HPA holding would be a your plea has been intelligently. hearing August entered “fixing 1995 for the of [his] you That means charge understand the minimum imprisonment.” term of D’Ambro- against you. sio was also told that he would be notified of Judge presided. 8. period” years Milks prior such of ten if had one he/she conviction; felony twenty years if had two he/she sentencing hearing, 9. At the the Circuit Court of convictions; prior felony thirty years and if he/ (the court) the First Circuit circuit noted that prior felony she had three or more convictions. repeat "[a]s offender the defendant faces a 706-606.5(1) (1993). §HRS Pursuant to HRS months, period years of 13 and 4 but the court 706-606.5(l)(b), § mandatory minimum term impose will no minimum time and defer to imprisonment years of of 13 4 and months was (HPA)] Paroling Authority [Hawaii to set the required imposed to be ”[w]here the instant con- appropriate time.” felony” viction for a A class and the defendant Petitioner-Appellant If Robert C. D'Ambrosio prior felony ”[t]wo has convictions." Murder in (D’Ambrosio) offender, repeat were a it is not unclassified, degree the second is an not a class clear to this how court he would face a mandato- A, 706-610(1). Therefore, felony. § See HRS if ry imprisonment years minimum term of 13 convictions, prior felony D’Ambrosio had two he governing repeat 4 months. Under the statute subject time, mandatory twenty- been have to a sentencing person offender at the convict- year period minimum degree ed without of murder in the second would be subject mandatory possibility parole during period. period “to a of im- such HRS 706-606.5(1)(b)(i). prisonment possibility parole during without hearing “Depart- initially date and that the The HPA scheduled D’Ambrosio’s 8, hearing August Safety arrange ment of Public for 1995 and will for sent notice [his] to D’Ambrosio and Pallett of the date and appearance at a time and location to be de- hearing. location of the When Pallett failed top page termined.” The of the notice two D’Ambrosio, appear represent to HPA following paragraph: included the hearing Sep- rescheduled D’Ambrosio’s hereby your rights You are advised of to: 7, and, upon tember Pallett’s failure to any 1. person(s) you Consult with reason- appear again, rescheduled the to No- desire; ably 6, vember 1995. The HPA sent a notice to represented by 2. Be assisted and coun- interim, hearing. Pallett of each In the prior during your sel hearing; to and family D’Ambrosio and members of his appointed you you sought 3. Have counsel persuade to contact and Pallett request so and cannot afford to retain attend hearings, they the scheduled but were (sic) your counsel on own: [ ] unsuccessful. heard; Appear person

4. and be D’Ambrosio contends that when Pallett 6, appear failed to for the November 5. rights. Waive of the above hearing, proceeded the HPA with the hear- The required remainder of the document ac- ing and waived D’Ambrosio’s to coun- part tion on the acknowl- Thereafter, 1, 1995, sel.10 on December edge foregoing rights. and exercise the That fixing entered an order D’Ambrosio’s part of the document D’Am- was filled out twenty minimum term of imprisonment at brosio as follows: years. Having Hearing received the Notice of August On D’Ambrosio filed the Rights Request Legal Counsel and Rule appeal. that underlies this having explained read or had it read and support petition, of his Rule 40 D’Ambro- me, fully I it. understand letter, sio submitted a dated June following my my The are decisions on Septem- and received the circuit court on rights hearing: to the above-mentioned 30, 2002, summarizing ber his version of the I legal my leading 1. obtain up guilty plea will counsel of own events to his as fol-

choosing. lows: 1991,1, September On or about the date of (sic) PALLET JAMES Yes No n [X] [ ] D’Ambrosio, charged Robert C. 2. I acquiring wish to have assistance in second-degree September murder. On legal services as I am not able af- counsel, on advice James M. lawyer my ford own. Pallett, pleaded I under dimin- n Yes No m capacity. ished Paroling I consent to Hawaii complaint I have with the Authority pertinent release all infor- trial, began my Pallett after first my legal mation to counsel. ended March 1994 in a mistrial based n jury’s inability Yes No to reach a verdict [x] days approximately after five of delibera- personally appear 4. I to at the wish tion. hearing. 12, A September new trial date was set M n Yes No 1994,but for I some reason unknown to me appear 5. I not I do wish to but wish to appear again did not in court until Febru- legal appear my in have counsel behalf. 13,1995. ary n ¡x] Yes No my plea hearing, At I was informed on revised, (Formatting morning starting italicized that words hand- that we would be original.) following Monday. trial written D’Ambrosio the But when proceedings 10. Because the record of the before confirm contention. D’Ambrosio’s us, the HPA is not before we are unable to things got very the got into the courtroom reminded me that if went to trial we we confusing happened 30-year all too fast. minimum. prosecutor for me and would seek a (Milks) upset pros- Judge got with the The my be at mini- I asked Pallett he would trial his motion to continue the ecutor over authority parole mum to let the know he to a His reason was that later date. He me about the deal we made. advised Mon- had a trial set in another court for my represent that he me at mini- would day. prosecutor the to either Milks told good mum and that we had a case for the places at or make a deal be in once two 10-year minimum. of the defendants. with one turning The point This was the for me. My got changed Agreement a Plea trial to only agreed reason I to the deal that was case, Hearing. prosecutor, The new to the my get be at minimum to me Pallett would past office about needed to check with his 10-year I that is sentence. believed 2, ([Change plea agreement Feb. happen. what would (COP) agree manslaughter to to ] term). year minimum five plead guilty I to murder the second cells, holding I Pallett was returned to 13, My degree sentencing on Feb. just hap- me had came to let know what May Judge was set for 1995 before pened. might that be able to He stated we Milks. manslaughter. for a to make a deal [COP] my sentencing, At the court noted it is not this, accept At I him I let know would imposing mandatory minimum term but deal, plea, they give but if did not me agreed that the state and defendant have go I to to trial! had one trial wanted We 10-year stipulate to to a minimum. The won, already my I felt chances and almost authority paroling court deferred to the re: good winning at the next trial. were setting of minimum term. and came back later that after- Pallett left I This was to be the last time that would He noon to talk over the deal. stated speak my counsel Mr. Pallett. If see prosecutor the deal had turned down only I I had known this ahead of time manslaughter and if we went [COP] taken the deal I had. would 30-year minimum trial he would seek a second, of murder in the conviction May 11, 1995, On I committed to the was 20-year instead of the to life that custody Dept, Safety Public got I murder conviction carries. mad possibility for life with the threat and Pallett that I advised want- parole. go ed to trial. my hearing, At minimum Pallett sent was trying keep Pallett to make wanted Hearing four Notice of from the [HPA] prosecutor. I some kind of deal with 1995(2) 1995(3) Aug. Sept. Nov. plead guilty him if I to the murder asked 1995(4)? setting my for the minimum. charge get manslaughter he could me Four times he did not I called him show. time, 10-year sentence. my family prison; I also had call and informing He left and came back me that try down, to track him all no luck. agree if I prosecutor plead would II, prosecutor hearing, At fourth to murder waived [HPA] my rights make a recommendation to the Hawaii to counsel and ahead and went (sic) year my year Paroling Authority for a 10 set minimum at 20 to life. [ ] (“The sentence”). manslaughter prosecutor At not at this either, point I Pallett me no one let the about [HPA] felt should have warned know 11] deal.[ my about the life sentence. But instead he Pulice, proceedings prosecuting attorney Bradley R. recom- 11. Because the record of the before appeal, mending the HPA is not included in the record on I that D'Ambrosio receive Level mini- we are unable to confirm D'Ambrosio n state- setting ten-year mum and a “minimum term of hearing. prosecutor ment that the was not at eligible [D'Ambrosio] incarceration before However, appeal a letter the record on includes parolef,]'' "per plea agreementf.]” HPA, 24, 1995, May deputy to the dated through August me I found out research of In Robert called have now own, requesting I contact Mr. my have had to several times would [HPA] (sic) guidelines establishing my show-up Pallett because he failed to [ ] use their Something hearings. Pallett minimum I and left minimum. should have at his called on, messages answering III on Mr. ma- advised me for I am a level inmate. Pallett’s my By chine but calls not returned. were only way to this is override accident, day bumped I into Mr. Pal- one criteria) (Additional of counsel. assistance Bishop why on Street and him lett asked guidelines. [HPA] go hearing. he didn’t to Robert’s (Footnote added.) was, reply parole to me “The His board D’Ambrosio also submitted: affidavits not like me and if I does he will do better mother, (Shea), from his Carol Ann Shea and am not there.” sister, (Samantha), his Samantha D’Ambrosio On October the State filed an attesting get to their efforts to Pallett to petition, to D’Ambrosio’s Rule 40 answer hearings appear at D’Ambrosio’s before the summarily deny urging the circuit to HPA; Guidelines; copy of the HPA and petition grounds allegations (3) copy of a letter that D’Ambrosio sent to petition patently in the frivolous and were 9, 2002, requesting expla- an Pallett on June support. without a trace of why appeared nation of Pallett had not at the May 13, 2003, On D’Ambrosio filed an hearings soliciting HPA Pallett’s assis- vacate, aside, amended to set determining tance in what had occurred be- judgment him from correct or to release HPA. fore the (amended custody petition), stating Rule 40 states, in The affidavit from Shea relevant grounds for relief: two part, as follows: A. Ground one: Conviction obtained August the month of [D’Am- plea guilty unlawfully in- which was phoned that he me and told me was brosio] voluntarily. duced and not made attorney show-up not upset that his did only .... entered [D’Ambrosio] (sic) hearing at his minimum and asked [ ] repre- promised counsel to because to out if I call Mr. Pallett find what would hearing sent him at the HPA to assure happened. He also informed me that his only him he a ten receive being to Mr. Pallett not re- calls were year minimum term of turned. supported by plea agreement. Counsel I called Mr. Pallett more than ten times up did not of the scheduled show messages time on his record- and left each hearings. See declarations go mini- requesting er that he to Robert’s B, C, D, E and other docu- Exhibits hearing. I to call Mr. mum continued hereto. ments attached Pallett, finally he did answer when rendered inef- B. Ground two: Counsel please go him to Rob- phone, I asked to of counsel to [D’Am- fective assistance they hearing had ert’s minimum because by fading appeal to file as de- brosio] not postponed it twice since he did show sired [D’Ambrosio]. was, up. response to me “He wasn’t His for counsel to .... desire [D’Ambrosio’s] hearing if I paid go wanted appeal appeal file a notice of go.” go him he would pay being resulting in de- done [D’Ambrosio] any money I him that I did not have told appeal. an and his [D’Ambrosio] nied thought I pay him and that family on nu- members called counsel represent him Robert. paid had state did not re- merous occasions. Counsel (sic) was, any- “I didn’t kill reply He ] [ and other turn calls. See declarations said, body, your I cried and son did.” attached hereto. supporting documents hung-up you very much” and “Thank revised.) [(sic)]. (Formatting support of his In a memorandum Samantha includes the The affidavit from petition, Rule 40 amended following statement: pleaded explained to Peti- claimed that he would not have 6.This court further tioner that it wanted to “make sure that no guilty if he had been advised that under the Guidelines, putting pressure one on [was] [him] he would be classified as forcing any way plead.” in subject See [him] III offender and to a minimum Level page Exhibit “B” at 3 lines 21-22. twenty fifty term of of years. argued that an HPA D’Ambrosio also setting prison for a minimum term During colloquy, 8. this court asked proceeding stage a critical of a criminal Petitioner whether he understood that represent Pallett’s failure to him at the hear- guilty, going agree pleading he was (sic) “gross ing constituted misadvise” judge for a sufficient basis to find the “amounted to ineffective assistance of coun- Degree of elements Murder the Second Finally, argued that Pal- sel.” responded existed. Petitioner answer- lett rendered assistance of counsel ineffective ing “yes”. page “B” See Exhibit 5 lines

by failing appeal, presumably to file an 1-6. setting mini- the HPA’s order D’Ambrosio’s addition, 9. In this court asked Peti- imprisonment, mum term of as desired tioner whether he discussed all the evi- D’Ambrosio. attorney, dence in the case with his On June the State filed an answer receiving attorney, after advice from his petition, to D’Ambrosio’s amended Rule guilty. whether he he Peti- believed was again urging summarily the circuit court to responded by answering “yes”. tioner deny petition. 13, 2003, court, On June the circuit without explaining 11. In Petitioner’s minimum fact, holding hearing, findings filed its term, Petitioner stated to the court that law, dismissing conclusions of and order up authority paroling was to the to set “[i]t post-conviction for D’Ambrosio’s re- minimum” term. See Exhibit “B” at [his] lief, July appealed from which D’Ambrosio page 4-5. 7 lines findings 2003. The circuit court’s of fact Further, explained 12. this court to Pe- state, part, in relevant as follows: part plea agreement titioner that as State, plead Petitioner with was to as FINDINGS OF FACT charged and the State would recommend authority paroling that Petitioner years being eligible “serve ten before” February 4. On Petitioner parole. responded Petitioner that he un- pleaded guilty charged to the offense of page Exhibit “B” at derstood. See 7 lines Degree Murder the Second before the 6-12. Honorable Marie N. Milks. informing 13. Petitioner hearing, change plea 5. Prior to the binding State’s recommendation was not signed change Petitioner and dated a paroling authority, plea acknowledging gone form that he had engaged following Petitioner in the collo- attorney. over the form See Ex- quy: “A”. hibit [ 12] _ (sic) change At the start of the 5.[ ] explaining In further Petitioner’s plea hearing, this court informed Petition- sentencing, minimum term of the court asking questions er that it would be him following: stated the change plea about the form to make hap- you plead today, Petitioner THE sure understood what was COURT: Once pening clarify any finding your plea and to misunderstand- I make a ings may intelligently, knowingly, he have had. See Exhibit “B” at entered and vol- untarily, page you 3 lines 17-21. cannot hereafter wait point, quoted ing. colloquy quoted 12. At this the circuit court exten- Since the earlier in this sively colloquy repeated between the circuit court and opinion, it is not here. change D’Ambrosioat D’Ambrosio’s hear- authority that at paroling the to set the mini- 4. The record here establishes say guilty plea, mum I time entered his and then come back and the Petitioner sentence, agreement plea don’t like the minimum I want between Petitioner and my plea the plea. to withdraw the State existed. Pursuant agreement, agreed plead Petitioner that, I MR. D’AMBROSIO: understand guilty charged as to the offense of Murder your Honor. return, Degree. in the Second In the reason, THE for COURT: And we agreed minimum State to recommend a you really want understand what’s years to term of of ten the far, you going any on. So do other paroling authority. you’d questions like to direct to me? further 5. The record establishes No, MR. I D’AMBROSIO: don’t. particularly in this court was careful its page Exhibit “B” at See lines 11-18. examination of Petitioner to ensure that entering plea Petitioner voluntari- was Finally, 15. this court asked Petitioner ly, intelligently, knowingly. any any promise person made kind of Eli, Supreme In Court 6. Hawai'i agreement him other than the Rule 11 with by adopted the standard used the United “anyone any the State or whether made Supreme Brady States Court in v. United promise kind of secret deal or to [him]”. States, 742[, 397 U.S. 90 S.Ct. responded negative. Petitioner in the See L.Ed.2d to determine the vol- 747] page Exhibit “B” at 10 lines 20-25. guilty pleas: untariness of engaging 16. After in its extensive col- by fully plea guilty entered one [A] Petitioner, loquy court found that this consequences, in- aware of the direct intelligently, Petitioner’s entered was cluding the actual value of commit- voluntarily knowingly, and and found him court, prose- ments made to him the in guilty of the offense of Murder cutor, counsel, stand or his own must Degree. Second (or promises induced threats unless (Footnote added.) harassment), improper to discontinue state, (including The circuit court’s conclusions of law misrepresentation unfulfilled part: in relevant promises), perhaps or unfulfillable

promises that are their nature im- proper having proper relationship no OF LAW CONCLUSIONS bribes). prosecutor’s (e.g. business ground 1. Petitioner raises as his first 478-79[, at 630 P.2d 113] 63 Haw. Eli in Cr. No. 91- relief conviction 755[, quoting Brady 90 S.Ct. 1463]. by plea guilty 2417 was obtained case, clearly record 7. In this unlawfully induced and not made vol- was shows that there was factual basis untarily. argues only Petitioner that he guilty plea. accept court to Petitioner’s plea agreement entered into acknowledged that there Petitioner even attorney rep- promise that his would false judge for a to find was sufficient evidence hearing. him at the minimum See resent in Second De- him of Murder 02-1-0059) (S.P.P. filed Au- Petition No. consequences gree, of the was aware gust 2002. agree- pleading guilty, and understood the rule, general where a Petitioner As himself and the State. ment between voluntarily that he or did not claims she fully explained to Peti- 8. This court guilty plea, required court is enter a recommendation to tioner that the State’s to deter- look at the entire record order binding paroling authority was are mine whether the claims or recantation ultimately that it the decision State, worthy credible and of belief. Eli v. paroling authority to set 474, 477[, P.2d 116] 63 Haw. fact, imprisonment. term of this (1981). paroling explained to Petitioner minimum, and authority could set a lower true, paroling authority alleged could as well if taken as the facts higher verdict, however, change petitioner’s set a minimum than what the State recommending. was regarded conclusions need not be as true. Further, Where examination of the record of the 9. this court informed Peti- (sic) proceedings trial courts indicates [ ] finding tioner that once it made the petitioner’s allegations show no plea intelligently, knowing- his entered was claim, ly, deny voluntarily, colorable is not error to he could not return to (internal petition hearing. without Id. plea court to withdraw his because he did omitted). quotation not like minimum term set citations marks paroling authority. Here, appear 17. even counsel did at Finally, clearly 10. the record estab- hearing, Petitioner’s minimum and advised carefully questioned lishes that this court guidelines Petitioner of for estab- person Petitioner to ensure that no was terms, lishing nothing minimum in the rec- putting pressure forcing on him or him to support ord exists to the contention that plea; attorney putting his was not parole hearing the result of the would have pressure forcing plea; himon him to any been different. person any and that no made kind se- 18. What the record this case does promise plead guilty. cret deal or to him to however, show is that had Petitioner been short, 11. In the fact that Petitioner fully advised this court that the State’s longer received minimum term for a recommendation of a minimum term of ten period expected, of time than does not (10) years paroling authority to the would guilty plea involuntary. render the Eli at binding, totally up not be and that it was (citation omitted). 479[, 630 P.2d 113] paroling authority Peti- establish Therefore, 12. based on the extensive “B” tioner’s minimum term. See Exhibit record of the surrounding circumstances pages at 7-8. change plea, including Petitioner’s hearings provided transcribed addition, 19. this court asked Peti- State, this court holds that Petitioner’s any person any tioner if made kind of plea guilty to the offense of Murder in promise to him other than the Rule 11 Degree the Second was entered into volun- agreement “any- with the State or whether tarily. one prom- made kind of secret deal or Thus, whereby responded ise to Petitioner [him]”

13. Ground One Petitioner’s negative. in the summarily page See Exhibit “B” at denied as it is frivolous and 10 lines 20-25. support without a trace of from the record. 4.0(f). HRPP Rule Thus, 20. plea Petitioner’s deal not was 14. Petitioner raises as his second clearly “valueless” as the record shows ground for relief that he was denied effec- change plea was based on Peti- sup- tive assistance of counsel. Petitioner will, tioner’s own free that Petitioner un- ports by stating this contention that coun- derstood the State’s recommendation was (James (sic) ], Esq.) sel Pallet [ “failed to .binding paroling authority, my hearing show four paroling authority ultimately de- [and times counsel failed to advise me that] termine Petitioner’s minimum term. Guidelines,] my of the [HPA which made Again, 21. the fact that Petitioner re- (S.P.P. plea deal valueless.” See Petition longer period ceived a minimum term for a 02-1-0059) August No. filed 2002. expected, of time than does not render the rule, general 15. As a on a involuntary, plea does not render his post-conviction Rule 40 Petition for relief “valueless”, support deal nor does it should be held when the Petition states his contention that he was denied effective State, colorable claim. Dan v. 76 Hawai'i assistance of counsel.

423, 427[, (1994). 879 P.2d 528] claim, Therefore, 16. To establish a colorable Petitioner’s Ground Two allegations petition summarily must show denied as it is frivolous and DISCUSSION support a trace of from the record. without 4.00). HRPP Rule A. a Colorable Claim Was Pre- Whether July On after D’Ambrosio had Conviction sented that D’Ambrosio’s appeal order filed his from the June by An Was Obtained Unconstitutional dismissing petition, his Rule 40 the circuit Prosecution to Disclose Failure fact, findings amended con- court entered “Evidence Favorable to Him” law, dismissing D’Am- clusions of order (the post-conviction brosio’s relief alleged in Rule 40 order). includ- amended The amended order petition that his conviction obtained findings ed of fact and conclusions of law prosecution failure of the an unconstitutional identical to those contained the June Spe to him. to disclose evidence favorable 2003 order. It also included additional find- prose cifically, D’Ambrosio contends that the ings of fact that addressed Ground two13 of him cution should have informed that based petition Rule 40 D’Ambrosio’s amended history nature of past on his criminal and the that D’Ambrosio was not denied offense, concluded as a Level he would be classified appeal. assistance of counsel on effective III offender under the HPA Guidelines and appeal D’Ambrosio did not file a notice imprisonment subject to a minimum term of from the amended order. fifty years. twenty to any legal duty are unaware of We

STANDARD OF REVIEW prosecution to a defen- part of the to disclose potential consequences of the dant all the general The rule is that Accordingly, ground this HPA Guidelines. hearing a held on a Rule 40 should be patently petition Rule 40 is of D’Ambrosio’s petition post-conviction relief where the claim and raised no colorable war- frivolous petition a colorable claim. To estab- states evidentiary hearing. ranting an claim, allegations lish a colorable taken petition must show that as alleged change the true the Claim Was Es- B. Whether a Colorable facts verdict[]¡ however, petitioner’s a conclu- Guilty that D’Ambrosio’s tablished regarded not be as true. sions need Unlawfully Plea Induced and Was of the record of the Where examination Voluntarily Made Not proceedings trial court indicates that the petition, D’Ambrosio In his Rule 40 allegations no colorable petitioner’s show obtained a claimed that his conviction was claim, deny petition it not error to unlawfully induced “plea which was hearing. a without voluntarily” “only he because and not made Allen, Haw.App. 744 P.2d State v. 7 plea agreement on the false entered into this (emphasis 69 678 792 Haw. represent counsel would promis[e] that [his] added), grounds; on Dan v. overruled other minimum[-imprisonment-term at [him] [his] (1994). State, 423, 879 P.2d 528 76 Hawai'i hearing before the HPA].” petition 40 Whether an HRPP Rule however, indicates, record The showing claim as made a of a colorable so has following collo- engaged court circuit court require before the lower at D’Ambrosio’s COP quy with D’Ambrosio P.2d at question of Id. at 879 law. hearing: Therefore, summary a lower court’s any anyone made petition THE COURT: Has an HRPP Rule 40 without denial of you than the Rule promise to other showing of a colorable kind of hearing based on no basically novo, agreement which was appeal de and the claim is reviewed on recognize the terms of the applies. court would right/wrong Id. standard review original and amended unnecessary One in both the to ad- Ground 13. The circuit court found issues, and since this Petitions raise identical amended Rule dress Ground one of D'Ambrosio’s vacate, aside, already judg- Ground One of Peti- has ruled on or correct set custody Petition!.]” ... tioner's Rule "[s]ince to release him from ment or agreement? anyone court, Has made kind of prosecutor, made to him or promise you? counsel, secret deal or his own must stand unless in- (or promises duced threats to discontin- No, MR. they D’AMBROSIO: didn’t. harassment), improper ue misrepresenta- foregoing colloquy provides evidence (including tion unfulfilled or unfulfillable guilty plea that D’Ambrosio’s was not based promises), perhaps by promises that are improper promise by an Pallett. Addi- improper their having nature no tionally, the record indicates that D’Ambro- proper relationship prosecutor’s get bargained sio did the essence of what he bribes). (e.g. business opportunity for: the to receive a lower mini- Eli, 478-79, Haw. 630 P.2d at 116-17 mum Finally, term. the rec- added). (emphasis ord indicates that specifical- the circuit court then, Supreme Since the Hawaii Court has ly extensively advised D’Ambrosio that prior accepting guilty made clear that the HPA impose longer could plea, nolo contendere a trial court must in term, and D’Ambrosio stated on the record direct, form a defendant of the but not the possibility. he understood this Under collateral, consequences plea. State circumstances, we conclude that no color- Nguyen, 689, 81 Hawai'i P.2d 916 able claim was established that D’Ambrosio “[cjourts (holding 697 need not guilty plea entered involuntarily. his prior inform accepting defendants their note, moreover, We that as a result of this guilty or pleas every nolo contendere about opinion, being granted D’Ambrosio is the conceivable collateral effect that a conviction very relief he claims he was entitled to and might Accordingly, have.... gener it is the on; guilty based plea namely, repre- his that, statute, al rule a absent rule or a court sentation of counsel at his minimum-term duty has no pleading warn defendants hearing, unless is established that D’Am- guilty possibility or ‘no contest’ about the of right. brosio waived this deportation a consequence collateral of conviction”). In Nguyen, supreme court C. Whether a Colorable Claim Was Es- explained that tablished that D’Ambrosio Received [mjanifestly, a posi- criminal court is in no Assistance Counsel Dur- Ineffective of tion to on all advise a ramifications of ing Negotiations Plea guilty plea personal to a defendant. Ac- D’Ambrosio, According to he received inef- cordingly, the courts have drawn a distinc- fective assistance of during plea counsel ne- tion consequences between of which the gotiations because he was not informed advised, defendant must be those which Guidelines, existing counsel that under HPA “direct”, are and those of which the defen- he would be classified as a III Level inmate advised, dant need not be “collateral conse- subject twenty- to a fifty-year mini- quences.” A consequence direct is one mum term imprisonment, thereby of render- definite, which has a large- immediate and ing prosecutor’s agreement to recom- ly punish- automatic effect on defendant’s ten-year mend a minimum term “valueless.” ment. Illustrations of collateral conse- State, 474, quences In Eli v. are right 63 Haw. 630 P.2d loss of the vote or (1981), abroad, appeal which involved an travel loss of employ- civil sendee ment, license, denial of an HRPP post- Rule 40 loss of a driver’s loss of the relief, right Supreme possess conviction Hawaii Court firearms or an undesirable adopted following discharge standard for from the determin- Armed Services. The ing guilty pleas, failure to of voluntariness set forth warn such collateral conse- quences Supreme vacating the United States will not warrant plea Court Bra- a States, dy 742, they peculiar v. United because U.S. 90 S.Ct. are to the individual 1463, (1970): generally 25 L.Ed.2d 747 result from the actions taken by agencies the court does not control. plea guilty fully

[A] entered one 288, aware of consequences, the direct includ- Id. at (quoting People 916 P.2d Ford, ing the actual 397, 270, value commitments 86 N.Y.2d 633 N.Y.S.2d 273- (N.Y.1995) (cita- case, 657 N.E.2d 267-68 In this D’Ambrosio al has not omitted)). leged tions that he should be allowed withdraw guilty plea because the circuit court State, Subsequently, in Foo v. 106 Hawai'i failed him to inform of the collateral conse (2004), supreme 102 P.3d 346 court quences of setting Guidelines on the accepting guilty plea held that a trial court a mandatory prison of his term. In required to inform the defendant stead, alleged that he should be conviction, upon the defendant was re guilty plea allowed to "withdraw his because quired by register statute to as a sex offend failing his counsel was ineffective for to ex supreme explained: er. The plain consequences the collateral of the HPA 11(e) HRPP requires Rule that a “court ques Guidelines to him. The troublesome accept plea guilty shall not without us, therefore, tion before a crimi whether determining first” un- defendant duty nal defense counsel has constitutional derstands, alia, pen- inter “the maximum to advise a client of the collateral conse law, alty provided by and the maximum quences guilty plea. of a added.) (Emphasis sentence.” According- adopted overwhelming rule ly, although registration sex offender majority jurisdictions of courts from other conviction, triggered upon one’s it does not is that the of defense counsel to ad failure definite, largely have a immediate and au- consequences vise client of the collateral punish- tomatic effect on a defendant’s does not constitute ineffec Instead, registration require- ment. See, e.g., tive assistance counsel. United chapter ments of HRS 846E are similar to Gonzalez, (1st States v. 202 F.3d Cir. the restrictions on the to travel or 2000) (“[cjounsel’s failure to advise defen the loss of a driver’s license that are collat- consequence legally dant of a collateral ais consequences eral guilty plea. of a withdrawal”); ground plea insufficient for a Moreover, registration sex offender re- Santelises, 703, United States v. 509 F.2d quirements generally involve actions taken (2d (failure Cir.1975) 704 of in counsel to by agencies the court not control. does might form defendant that defendant be 846E-3(a), Pursuant to HRS the attor- subject deportation upon conviction has ney general county police depart- legal significance no to defendant’s claim of ments, agencies both not controlled counsel, ineffective assistance of since de judiciary, required are to administer the fendant does not aver that counsel made an registration persons of convicted and the misrepresentation); Meyers affirmative v. release of information to other enforce- law Gillis, (3d Cir.1996) (“[i]t 1147, 93 F.3d 1153 government agencies ment and and to the is well settled that the Constitution does public. require” not defense counsel the court to provide a defendant information con regard, registration In this sex offender cerning parole eligibility); States v. United requirements consequences are “collateral” (4th DeFreitas, 80, Cir.1989) 865 F.2d 82 conviction, and, thus, of Defendant’s (“[w]e say performed cannot that counsel Defendant, duty pri- court had no to warn unreasonably merely neglecting to inform pleading guilty, or to about the collateral subject might that he be to de [defendant] consequences flowing of conviction from portation re-entry or denied into the United registration requirements. sex offender guilty plea”); States because of his United 113-14, (citations, Id. 102 P.3d at 357-58 Banda, (5th 354, States v. 1 F.3d 356 Cir. brackets, ellipsis, quotation and internal 1993) (failure to advise a defendant of a omitted). marks consequence pro collateral of the criminal Hawai'i, It is well-established not amount cess “does to ineffective assis therefore, prior accepting guilty Kolb, a counsel”); tance of Santos v. 880 F.2d plea, (7th Cir.1989) required 941, nolo contendere a trial court is (declining 944 “to hold as direct, law, to inform a defendant of the but not a matter of that counsel’s failure to collateral, consequences immigration of the defen inform a client as to conse quences may guilty dant’s conviction. result from a 462 more, consequences, ha

plea, is ‘outside the wide of collateral as under the without law, competent ground range professionally of assis bitual offender is no for with Kaiser, 1357, ”); drawing plea unintelligent 976 F.2d a as and involun tance’ Varela (10th Cir.1992) Martinez-Lazo, tary”); a (“deportation 1358 col and State v. 100 869, 1275, consequence proceed Wash.App. the criminal 999 P.2d 1279 lateral of (trial obligation ing therefore the failure to advise does counsel has the to aid evaluating against not amount to ineffective assistance of coun defendant in the evidence sel”); direct, Campbell, discussing possible F.2d States v. 778 him and in United (11th Cir.1985) (“counsel’s 764, consequences, guilty failure 768 but not collateral of plea). defendant the collateral to advise the consequences of a cannot rise to However, courts are divided on whether constitutionally ineffective assis level erroneous advice or misinformation a de- Rosario, tance”); States v. Del 902 United fense counsel can constitute ineffective assis- (D.C.Cir.1990) 55, (adopting F.2d 59 example, tance of counsel. For the United

proper rule the that a “counsel’s fail view Appeals States Court of Second Cir- ure to the defendant of the collateral advise advice, cuit has held that erroneous “without guilty plea consequences of cannot rise conduct, showing unprofessional a clear constitutionally assis the level of ineffective enough set aside [to conviction].” State, tance”); Tafoya v. 500 P.2d Parrino, (2d United States v. F.2d 919 (Alaska 1972) (“failure of counsel to inform Cir.1954). possibility deportation does not courts, hand, Other on the other have con- constitute denial of the to the effective cluded that defense counsel’s erroneous ad- counsel”); Rosas, assistance of State v. can amount to vice ineffective assistance (Ariz.Ct.App. Ariz. 904 P.2d counsel, warranting the withdrawal of a 1995) (“declin[ing] impose upon defense See, Ponte, guilty plea. e.g., Cepulonis v. duty to counsel a inform non-citizen defen (1st Cir.1983) (although 699 F.2d de- potential deportation dants about collateral fendant need not be informed of the details proceedings may entering result may parole eligibility, of his “misinformation guilty plea[,]” holding “failure be more vulnerable to constitutional chal- provide counsel to such information to de information”); lenge than mere lack of fendants does not constitute ineffective as (4th Garrison, 61, Strader v. 611 F.2d 65 State, counsel”); Ray v. 133 Ida sistance of Cir.1979) (“though parole eligibility dates are (1999) (“[t]he 96, 931, ho 982 P.2d 937 Sixth consequences entry of collateral of duty implied Amendment contains no for an guilty plea of a defendant need not be attorney inform his client of collateral inquire, informed if he does not [or she] consequences guilty plea”); People v. of grossly when he is misinformed [or she] Davidovich, 446, 579, 463 Mich. 618 N.W.2d by lawyer, [or about and relies her] (2000) (“immigration consequences 582 of a misinformation, upon that he is de- [or she] plea are collateral matters that do not bear prived right of his constitutional [or her] plea on whether the defendant’s was know Sowders, counsel”); 882, Sparks v. 852 F.2d reason, ing voluntary. For the same (6th Cir.1988) (“[w]e gross 885 now hold that give immigration ad failure counsel concerning parole eligibility misadvice can lawyer’s represen vice does not render the counsel”); amount to assistance of ineffective ineffective”); constitutionally Barajas tation Elliott, (recognizing State v. 574 A.2d at 1381 State, 440, 474, v. 115 Nev. 991 P.2d 476 possibility “at least deficiencies (1999) (failure of trial counsel to advise a consequences about collateral of a advice immigration possible defendant of conse may pull lawyer’s representation be- quences guilty plea of a “does not fall below competence’ the level of ‘reasonable low objective an of reasonableness standard which effective assistance of counsel is con- and, thus, not rise to the level of inef does measured”). stitutionally counsel”); State v. El fective assistance liott, 190, 1378, case, complain 1381 In this D’Ambrosio did not 133 N.H. 574 A.2d (1990) (“defense counsel’s failure to advise that he was misinformed misadvised Pallett about the HPA predicated Guidelines. Ground on misinformation or misread- two of his Rule 40 records, states: “Counsel ing requirement of court of fair failed to advise me of the Guidelines [HPA] play which absence of counsel withheld establishing minimum terms which made prisoner. from this my plea deal valueless.” 741, Id. at 68 S.Ct. 1252. light In overwhelming case law in Florida, Subsequently, in v. Gardner jurisdictions, other we conclude that no color- 349, 362, 1197, U.S. 97 S.Ct. 51 L.Ed.2d 393 able claim was established that Pallett’s al- (1977), Supreme the United States Court leged failure to inform D’Ambrosio about the petitioner process held that a denied due Guidelines constituted ineffective assis- of law he when was sentenced to death tance of counsel. based part pre- on confidential information in a D. Whether a Colorable Claim Was Pre- report sentence that was not disclosed to the

sented that D’Ambrosio Was Denied petitioner Supreme or his counsel. The Assistance Counsel at His initially Court observed: Effective Minimum-Term, Hearing sentencing n pro- clear that [I]t now cess, itself, satisfy as well as the trial must right Pursuant to the to counsel set requirements of the Due Process forth in the Sixth Amendment of the United though Clause. Even the defendant has Constitution,14 applied States to the states right no particular substantive to a sen- through the Due Process Clause of the Four range tence within the authorized stat- Amendment,15 teenth ute, sentencing stage is a critical appointment of indigent counsel for an proceeding criminal at which he is enti-

required every stage at pro of a criminal tled to the assistance counsel. effective ceeding rights where substantial of a crim legitimate The defendant has a interest in may particular, inal accused be effected. In procedure the character which leads Burke, wnsend v. U.S. [334 imposition To sentence even if he (1948)] S.Ct. 92 L.Ed. 1690 illus may right object particular have no to a sentencing trates the critical nature of in a sentencing process. result of the might criminal case and well be considered added, (emphases Id. at 97 S.Ct. 1197 support by holding itself a omitted). Supreme citations Court re- applies sentencing. to counsel jected prosecution’s argument that “trial Mempa Rhay, 389 U.S. 88 S.Ct. judges can be trusted to exercise their dis- (1967). Townsend, L.Ed.2d manner, responsible though cretion in a even Supreme Court reversed the conviction they may base their on secret infor- decisions pleaded guilty, of a defendant who had hold- mation[,]” holding: ing that during the absence of counsel sentencing, coupled defendant’s argument with “materi- [T]he rests erroneous ally assumptions premise untrue” made the sen- participation of counsel is tencing judge concerning the defendant’s superfluous process evaluating of record, criminal was “inconsistent with due significance aggrava- the relevance and of process 740-41, of law.” 334 U.S. at 68 S.Ct. ting mitigating facts. Our belief that Supreme explained 1252. The Court debate between adversaries is often essen- truth-seeking tial to the function of might changed counsel trials have the sen- tence, requires steps recognize impor- us also to but he could have taken to see giving opportunity that the conviction and sentence were not tance of counsel an to 14. The SixA Amendment to the United 15. The States FourteenA Amendment to Ae United provides, part, provides, pertinent part, Constitution in relevant "In all States Constitution in life, prosecutions, deprive any person ... "[N]or criminal the accused shall have shall State liberty, property, process the Assistance of for his de- [or her] Counsel without due XIV, § fence.” U.S. amend. VI. U.S. amend. law[.]” Const Const, of crimes for may Apart from certain classes influence

comment on facts which to requires the circuit court capital the HRS sentencing in cases. which decision impris- mandatory minimum terms of impose 360, 97 S.Ct. 1197. Id. at (see, e.g., §§ HRS 706-660.1 onment Salemo, 61 F.3d In States United (1993)) cir- or authorizes the and 706-660.2 (3d Cir.1995), Third Circuit Court impose extended or consecutive cuit court sentence, con Appeals a defendant’s vacated (see, e.g., HRS imprisonment terms cluding had been denied that the defendant (Supp.2005) §§ 706-668.5 706-661 right to counsel when he his constitutional (1993)), required to courts are sen- Hawaii’s proceed pro se at his sentenc was allowed persons convicted of felonies to tence the district court con ing without length of the indetermi- specified maximum thorough inquiry to ensure that the ducting a applicable to the offenses nate sentence sentenc of counsel at his defendant’s waiver §§ they See HRS 706- are convicted. which voluntary, knowing, intelligent. ing 656(2) (Supp.2005), and (Supp.2005), 706-659 “sentencing is explained The court (1993). of them The minimum term 706-660 complicated part of critical and oftentimes imprisonment then determined is subtleties process the criminal that contains HPA, pursuant procedures set forth may beyond appreciation of the be which (1993). § ar- HRS 706-669 Id. Under this seeking represent average layperson HPA, courts, rangement, it is the not the example, the Id. at 220. For him/herself.” felony that exercises most of the State’s sen- observed, “complex hyper- under the court tencing discretion. system, sentencing pursu technical” federal sentencing guidelines sentenced, are used ant to which At the time D’Ambrosio was 706-656(2) (1993) appropriate part § a defendant’s sen determine the relevant of HRS tence, may ultimate fate be provided a defendant’s as follows: application “determined more degree of second Persons convicted the determination of inno Guidelines than im- ... shall be sentenced to life murder guilt.” Id. these intrica cence or “Given parole. prisonment possibility of with cies,” held, length minimum shall be that a particularly important sentenc- [HPA]; provided that determined un- ing court be certain that a defendant repeat under persons who are offenders perilous path going derstands the he/she section 706-606 .5 shall serve at least the attempting proceed to sentenc- down mandatory minimum term of applicable ing without the benefit counsel. imprisonment.] addition, a defendant who is unfamil- (1993), Additionally, HRS 706-669 may post process iar conviction process determining a con- defined the argu- inadvertently a meritorious waive imprison- minimum term of felon’s victed might ment otherwise he/she ment, provided, part: in relevant Thus, just appeal. sentencing, raised on determining Procedure for trial, as at “a defendant’s waiver of counsel imprisonment. per- term of When a only can effective where the be deemed has been sentenced to an indetermi- son searching inquiry district court has made imprisonment, term of nate or an extended satisfy that the de- him[7her] sufficient to shall, practicable as soon but [HPA] understanding and fendant’s waiver was than after commitment no later six months voluntary.” custody of the de- of the director Welty, (quoting Id. States v. 674 F.2d United partment [public safety] hearing, a of hold Cir.1982)). (3d 185, 189 make an and on basis fixing impris- the minimum term of order 2. prisoner onment to be served before the Hawaii, legislature implement- has eligible parole. shall become system in the sentencing a that vests ed HPA discretionary power to de- The fact that determines significant person prison term that a convicted felony imprisonment sentences. minimum termine undoubtedly Moreover, person’s must affects that U.S. at serve S.Ct. 254. complex HPA Guidelines set rather forth rights.” Mempa Rhay, “substantial categorizing person criteria16 for a convicted murder, assault, assault, example, robbery, 16. For the HPA Guidelines list the fol- ed sexual lowing punishment, kidnapping; criteria I for Level or and offender, yield ten-year can a five- to minimum term if the 1. The in the course of commit- by ting attempting defendant was sentenced the court to life or to commit one of the imprisonment offenses, possibility parole: with bodily injury of above inflicted on a person who was: against 1. Nature of Offense: The offense was older; years age a. 60 of or or person property, and the offender and/or blind, paraplegic, quadriplegic; b. or or displayed disregard safety for the and wel- years age younger; c. 12 of or and fare of others. age physical 2. Such factors as disabili- Degree Injury/Loss Proper- 2. of to Person or reasonably ties are known or should have ty: injury The or loss suffered the vic- person. been known the convicted tim(s) experienced by was less than those Degree Injury/Loss Proper- 2. of to Person or similarly situated victims. ty: injury The or loss suffered the vic- History: person 3. Criminal has no more tim(s) experienced by was more than those prior felony than 1 conviction since he or similarly (If situated victims. years she was 18 old. the offender is conviction, History: 3. Criminal years age under 18 of person previous- a. The has been convicted above two will criteria receive added ly of three or more felonies committed at weight.) years different 4. times when was of Character and Attitude of Offender With s/he older; age Respect Activity Lifestyle: to Criminal or or or character, attitude, person’s person prior prison Based on the b. The has served a (both (one history juvenile year longer) felony criminal term or for a level and/or adult), conviction, activity continued criminal after re- and the instant offense is for murder, assault, murder, prison unlikely. attempted lease from seems sexual assault, firearm(s). robbery, possession 5. Efforts Made to Live Pro-Social Life Prior or of to Commitment 4. Character and Attitude Offender With to Prison: Based on the person's Respect Activity Lifestyle: community prior life in the to com- to Criminal or character, attitude, prison (employment, military person's mitment to vice, ser- Based on the (both commitments, history ability juvenile and meet criminal to make and/or adult), willingness responsibly personal activity prob- deal future criminal remains to with able; etc.), problems, likely person or it is respond program positively pa- will a. The of the crime show to a circumstances person knowingly supervision pro-social has de- role and lead a life the convicted activity upon voted himself or criminal release. herself to livelihood; major primary or source of 6. Probation Revocation: The offender was offense(s) probation placed or for the instant person probation in- but due to a technical b. The convicted has substantial violation of explained or to be de- or a new conviction for a misdemeanor or come resources not probation rived from a source other than criminal ac- less serious offense the offender’s tivity; revoked. or was person subjected psy- person c. The has been to a 7. Youth Adult Offender: The young resulting chiatric examination in the conclu- sentenced as a adult offender under 706-667, sion that his or her criminal conduct has Section HRS. aggres- by compulsive, punishment, been characterized The criteria for Level III which will presumptive twenty- fifty-year with indifference to lead mini- sive behavior heedless consequences, a condition mum where a and that such term defendant was sentenced danger possibility to others. to life with makes him or her serious parole, Made Live Pro-Social Life Prior are 5. Efforts as follows: 1. Nature of Offense: to Commitment person’s Prison: Based community prior against person(s) in the to com- a. The life offense was prison (employment, military displayed a cruel mitment the offender callous and/or commitments, service, ability disregard safety will- to meet for the and welfare of oth- (sic) ers; ingness responsibility [ ] to deal or etc.), manufacture, unlikely personal problems, it is b. The offense involved the distribution, respond positively importation, to a the offender would or cultivation program parole supervision quantities drugs. Paragraph and lead a substantial (b) (a) may pro-social upon subparagraph life release. of this section Involvement of Offender in the Instant involve- be used to substantiate level of evidence, Offense(s): offense(s); person Based on available ment of the in the prior during against the in- offender’s actions c. The offense was committed minor, elderly, handicapped person, stant offense seem to indicate that he she or a murder, played attempt- role or was the insti- substantial and the conviction was for 466 Dicks, 46, 48, 727, determining person’s level of v. 549 P.2d

and a convicted State Haw. (1976) (citations omitted). punishment. them- 729-30 The Guidelines “are, mention that the criteria in some selves petition, In his Rule 40 instances, interpreta- a matter of individual alleged appear failed to at four Pallett perception completely tion and and cannot be and, hearings HPA minimum-term scheduled however, objective; given complexity consequently, the HPA “waived” D’Ambro- case, person’s each certain amounts of sub- right presence sio’s to the of counsel. Be jectivity necessary appropriate.” remain appeal cause the record on does not include Accordingly, we hold that the HPA transcripts the record and of the HPA hear hearing stage minimum-term is a critical place, ing at which the “waiver” took this proceeding per the criminal and a convicted unable to confirm D’Ambrosio’s alle is constitutionally repre son is entitled to be gations ruling or make an informed on the hearing by at the can sented counsel who However, waiver issue. conclude that a we imposed that the minimum ensure sentence definitely presented colorable claim was predicated HPA “not is on misinfor denied the D’Ambrosio was effective assis records,” misreading mation or of court tance of counsel at his HPA minimum-term requirement play.” is “a of fair Mem hearing knowingly and did not and intelli pa Rhay, v. 389 U.S. at 88 S.Ct. gently right presence of waive his Burke, (quoting Townsend v. 334 U.S. at counsel. 1252). 68 S.Ct.

Accordingly, evidentiary hearing an to sort 3. happened out what before the HPA was re- quired and circuit court in erred sum- Supreme The United States Court has marily denying Ground two of the Rule 40 “[ajctual stated that or constructive denial of being “frivolous and without altogether legally the assistance of counsel support trace from the record.” presumed Preju- prejudice.... to result in likely in dice these circumstances is so case-by-ease inquiry prejudice into Washington, the cost.” Strickland v.

worth Appeals Court of Intermediate Asso 466 U.S. 104 S.Ct. 80 L.Ed.2d Nakamura, Judge Craig ciate H. in his con (1984). curring opinion, believes this case should Moreover, constitutional “statutory right be decided based on the right to the assistance of counsel is waivable parole hearing” counsel at the minimum-term only “voluntarily when the waiver is 706-669(3) (1993). granted by §HRS HRS Merino, intelligently undertaken.” State 706-669, entitled “Procedure for determin Hawai'i 198, 219, (1996). 915 P.2d ing imprisonmentf,]” pro term Furthermore, vides, part, in relevant as follows: presume acquiescence do not [c]ourts prisoner given shall be reason- rights the loss of fundamental and such a able of the notice under subsection presumption light in the of a silent record permitted and shall be to be heard constitutionally permissible. is not authority on the of the minimum issue effectively Whether an has accused prisoner term to be served before the be- waived his to counsel de- [or her] addition, eligible parole. comes pends largely on and circum- the facts prisoner shall: particular Among stances of the case. (a)

probative bearing question permitted factors Be to consult with education, age, capacity persons prisoner reasonably are the and mental de- defendant, sires, background including prisoner’s his [or her] own counsel, experience, legal preparing conduct at her] [or alleged hearing; the time of the waiver. gator planning leader in or commis- sion of offense.

(b) CONCLUSION represented be and 'permitted Be to hearing; by counsel at the assisted above, vacate light of the discussion we (e) appointed represent Have counsel to part court’s Order of the circuit prison prisoner the the and assist if D’Am- summarily Ground two of dismissed requests and cannot to er so afford and remand this brosio’s Rule counsel;[17] retain and instructions to the circuit court with ease (d) prisoner’s rights the Be informed of evidentiary hearing on the it hold an (c). (a), (b), under and If, follow- allegations raised in Ground two. added.) (Emphases The com- and footnote evidentiary hearing, circuit court ing the the 706—669(3)(c) mentary explains § on HRS repre- was not determines that D’Ambrosio (3) specifically provides that that “subsection by HPA minimum-term sented counsel his and prisoner will be afforded assistance intelligently hearing and and volun- did counsel, representation by prisoner if represented tarily to be so waive added.) (Emphasis wishes.” represent appointed to counsel to have § reading HRS is that Our of 706-669 one, the circuit him if he could not afford statutorily prisoner permits a to consult with setting order vacate the HPA’s court shall by represented counsel and be assisted and remand D’Ambrosio’s minimum term hearings. Addi- at the HPA minimum-term HPA mini- to the HPA for a new this case tionally, prisoner if a cannot afford counsel hearing at D’Ambrosio is mum-term which appointment of counsel to requests provided representation. her, § pro- him HRS 706-669 represent or appointed. be How- vides that counsel shall NAKAMURA, Concurring Opinion by J. ever, take prisoner the onus is on the to by the ma- in the result reached request representation I concur steps to affirmative opin- counsel, join majority’s in the statutory jority. I do not by appointment and no however, ion, I it is unneces- because believe appointed, to counsel entitlement exists sary question reach the of whether by prisoner. to request absent a proceedings including stages any person at appear autho- all 17. There does not to be statute exist, any. conflicting represent appeal, If interests or rizing appoint the HPA to counsel to However, may justice require, hearing. the court prisoner if the interests of at a minimum-term counsel, private rea- appeared appoint who shall receive time before the at the expenses, hearing, chapter compensation necessary HRS for for his minimum-term 802, sonable travel, provid- including be forth the mechanism for the amount of which shall sets court, ing indigent prisoner, pursuant included the to counsel to an and fees determined (b). following expenses relevant sections: All shall be cer- subsection such Duly claims for the court. certified tified representation by public Right § 802-1 to approved paid upon payment vouchers shall be Any in- appointed defender or other counsel. and warrants drawn the director of finance for, charged digent person who is arrested comptroller. with or convicted of an offense or offenses (b) determine the amount of The court shall jail prison punishable by or confinement or compensation appointed coun- reasonable may subject person which such be sel, $40 hour for out-of- the rate of an based on chapter provisions ... be enti- shall services, $60 an hour for in-court court If, represented by public defender. tled to be maximum fee in accor- and with a services exist, however, conflicting or if the interests following with the schedule: dance public unable other reason is defender act, justice require, the or if the interests of [$]1,500 (6) Any type administrative other may appoint other counsel. including arising judicial proceeding cases chapter [.] under public appearance defender in all of a added.) July HRS (Emphases Effective hearings subject ... be [HPA] before the shall compensa- provide that § amended to 802-5 was chairperson approval appointed be "based on the counsel shall tion for [HPA.] be- $90 an hour” without differentiation counsel; rate of Appointment com- 802-5 services, and the in-court and out-of-court tween pensation. payable for ser- to counsel (a) maximum amount judge appear that a When it shall proceeding provided at an administrative vices person requesting appointment of counsel $3,000.00. changed L. 2006 Haw. Sess. chapter, requirements of this satisfies the 133, § 802-5 at 370-71. appoint represent the Act judge shall counsel right My Amendment extends to to Amend- Sixth to counsel reluctance reach the Sixth parole hearing. support casting a minimum-term Petitioner- question ment finds in eases (D’Ambro- Robert C. Appellant D’Ambrosio whether the Amendment doubt on Sixth sio) challenges validity minimum- of his right parole to counsel extends to a release parole hearing term his counsel In hearing. Bensinger, because Ganz v. F.2d 88 480 (7th Cir.1973), appear. prisoner to Hawaii a failed Revised Statutes claimed be- (HRS) 706-669(3) (1993) grants prisoner § a cause the Illinois Parole and Pardon Board statutory right a to minimum- period counsel at the the actual determined of incarceration view, cases, parole hearing. my major- term In parole hearing most release ity stage” should have decided D’Ambrosio’s claim processing a “critical of the state’s statutory right on his counsel based to with- criminal offenders to which the Sixth Amend- addressing right out whether had a to to right he ment counsel Id. at 89. attached. under the Sixth three-judge panel, counsel Amendment. for the Writing circuit (now Justice) Judge then Circuit Paul John questions is well that important It settled claim, rejected prisoner’s holding Stevens regarding interpretation of constitutional as follows: ordinarily only provisions should decided be necessary every to of a when the resolution case. Sixth Amendment The entitles 387, 401, Poaipuni, v. 98 person particular State Hawai'i 49 to counsel in a kind of 363, C.J., (Moon, concurring). 367 proceeding—-a P.3d criminal That trial. be inapplicable types “We should reluctant to address constitu- is Amendment to other questions necessary may it proceedings, though they tional when is not to even 402, at impact destiny do so.” Id. 49 P.3d at 368. a “[I]f a critical of the Thus, grounds, can be decided on two ease either of the Sixth individual. Amendment involving question, one a constitutional importance issue turns not on the question statutory parole hearing, other construction or release but rather on law, general only part prose- this court will decide whether of the criminal Lo, 653, 657, State v. latter.” 66 Haw. 675 cution. 754, 757 (quoting P.2d Ashwander v. prosecution judicial proceeding. is a 288, Valley Authority, Tennessee 297 U.S. judgment It not end until does has been (1936) (Bran-

347, 466, S.Ct. 80 56 L.Ed. 688 imposed. Mempa and sentence v. entered J., (internal déis, concurring)) quotation 128, 134, 254, U.S. Rhay, 389 88 S.Ct. 19 marks, omitted). ellipses points, and brackets argues L.Ed.2d Plaintiff Assuming allegation length, is of D’Ambrosio’s sentence indeterminate concerning non-appearance sentencing process proceed of his counsel includes the true, Logically, hearing ings at the minimum-term D’Am- before the Parole Board. statutory right argument brosio either was denied support his a conclusion 706-669(3) range pro § under to counsel HRS that “the entire of correctional case, right sentencing his to either part waived counsel. In cess after is a of the crimi counsel, statutory right D’Ambrosio’s proceeding”—a nal have al conclusion we (the State) rejected. the State of ready Gagnon, which Hawai'i does Gunsolus v. 454 (7th dispute, provides Cir.1971), basis for sufficient F.2d rev’d other resolving appeal. grounds Gagnon Scarpelli, his If was de- sub nom. D’Ambrosio v. counsel, [778], [1756], statutory right his nied he is 411 U.S. 582 93 S.Ct. entitled to a new minimum-term hearing at L.Ed.2d ^[656] (1973). our opinion, he permitted repre- right representa which shall to be “[b]e the Sixth Amendment sentencing counsel[.]” sented assisted HRS tion counsel at the 706-669(3)(b). only applies judicial hearing If waived counsel, right complain. he has no cause which the sentence is fixed. The Amend Accordingly, I protects during would decline to reach the ment the ad accused trial; judicial broadly question versary whether D’Ambrosio had it does not parole every may at the encompass proceeding to counsel minimum-term hear- which deprivation liberty proper the Sixth ing under Amendment. result in parole grant hearings in ty. Supreme original in Mor As the Court stated Brewer, prisoner’s presumptive release date is rissey v. 408 U.S. 92 S.Ct. Carver, 484[,] after Monson v. 928 P.2d 33 L.Ed.2d “Parole arises set. (Utah 1996); Bd. prosecution, includ 1029-30 Padilla v. Utah the end of the criminal Parole, 664, 670 ing imposition Gagnon See Pardons 947 P.2d of sentence.” (Utah 1997). Scarpelli, 411 U.S. 93 S.Ct. (1973). parole A 36 L.Ed.2d 656 reasons, foregoing join I do not For the part the criminal release is not analysis. majority’s Sixth Amendment inap prosecution; the Sixth Amendment is plicable. omitted). (footnotes

Id. sentencing has an indeterminate

Utah The Utah Su-

scheme similar to Hawaii’s.

preme Court has held that the Sixth apply

Amendment to counsel does not

Case Details

Case Name: D'AMBROSIO v. State

Court Name: Hawaii Intermediate Court of Appeals

Date Published: Sep 29, 2006

Citation: 2006 Haw. App. LEXIS 554

Docket Number: 25961

Court Abbreviation: Haw. App.