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Electronically Filed Intermediate Court of Appeals CAAP-XX-XXXXXXX 05-FEB-2021 07:52 AM Dkt. 77 MO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
TAD MASON, Petitioner-Appellant, v. HAWAII PAROLING AUTHORITY and STATE OF HAWAI#I, Respondents-Appellees
APPEAL FROM THE CIRCUIT COURT OF THE THIRD CIRCUIT (S.P.P. NO. 18-1-001; CR. NO. 93-349)
MEMORANDUM OPINION (By: Leonard, Presiding Judge, Hiraoka and Nakasone, JJ.)
Defendant-Appellant Tad Mason (Mason), self-
represented, appeals from the Order Denying Petition to Vacate
Illegal Sentence, Set Aside Minimum Term Order or to Release
Petitioner from Custody (Order Denying Petition), entered on
December 19, 2018, by the Circuit Court of the Third Circuit
(Circuit Court).1/ The Circuit Court denied Mason's April 9, 2018
Petition to Vacate Illegal Sentence, Set Aside Minimum Term Order
or to Release Petitioner from Custody (Rule 40 Petition). In the
1/ The Honorable Greg K. Nakamura presided. NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Rule 40 Petition, pursuant to Hawai#i Rules of Penal Procedure
(HRPP) Rule 40, Mason challenged, inter alia, the July 1, 1996
Notice and Order Fixing Minimum Term(s) of Imprisonment (Minimum
Term Order) issued by the Hawai#i Paroling Authority (HPA).2/
I. BACKGROUND
On September 16, 1993, pursuant to a grand jury
indictment, Mason was charged with the Murder and Kidnapping of
Juliana Laysa (Laysa) on August 27, 1991, in violation of Hawai#i
Revised Statutes (HRS) § 707-701.5 (1993)3/ (Count I; Murder in
the Second Degree) and HRS § 707-720(1)(d) and/or (e) (1993)4/
(Count II; Kidnapping). According to police reports that were
referenced in Mason's Presentence Diagnosis and Report, after
initially denying involvement, John Perez (Perez) gave the police
several statements about the incident. Perez reported that he
and Mason were cruising in downtown Hilo when they saw Laysa.
Perez said that Mason dropped off Perez at a cemetery and Mason
2/ On November 1, 2012, a substantively identical Notice and Order of Fixing Minimum Term(s) of Imprisonment was issued by HPA to correct a typo in an identifying number. 3/ HRS § 707-701.5 provides, in relevant part: "a person commits the offense of murder in the second degree if the person intentionally or knowingly causes the death of another person." 4/ HRS § 707-720 provides, in relevant part:
(1) A person commits the offense of kidnapping if the person intentionally or knowingly restrains another person with intent to: . . . . (c) Facilitate the commission of a felony or flight thereafter; (d) Inflict bodily injury upon that person or subject that person to a sexual offense; [or] (e) Terrorize that person or a third person[.]
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went back and picked her up and took her back to the cemetery,
where they both had sex with her, and Mason paid her $50.
According to Perez, Mason then punched Laysa, slammed her on the
ground, and told Perez to open the trunk of the car; Mason put
Laysa in the trunk. After getting in the car, Mason reportedly
told Perez he was going to kill Laysa. They drove to a cane
field. Perez stated that as Mason was trying to pull Laysa from
the trunk, she was kicking and punching; Mason got upset and
struck her head on the bumper of the car. As she was crawling
away, Mason took off her clothes and struck her on the head and
body with a tire iron. Perez and Mason then grabbed rocks and
threw them at Laysa; Mason choked her, but she was still not
dead. Mason then grabbed her arms and placed his foot on her
throat. Perez reported that Mason used the tire iron and "poked"
it through her naval; both men put a screwdriver in her vagina.
Mason denied any knowledge of the victim or her death; he told
police that Perez arranged for him to have sex with women, but he
did not pay for sex. In a separate case, Perez pled no contest
to Murder in the Second Degree and was sentenced to Life in
Prison with the Possibility of Parole. Mason pled not guilty to
both charges. Perez gave testimony at Mason's trial that was
consistent with his report to the police.
Pursuant to a jury verdict, Mason was convicted and
found guilty of both charges. On January 12, 1996, the Circuit
Court entered a Judgment Guilty Conviction and Sentence
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(Judgment), in which the court sentenced Mason to Life
Imprisonment with Possibility of Parole as to Count I and twenty
years of imprisonment for Count II, with the terms to run
concurrently. Mason filed an appeal from the Judgment. On March
11, 1997, the Hawai#i Supreme Court summarily affirmed the
Judgment.
While the direct appeal was pending, HPA issued the
July 1, 1996 Minimum Term Order, setting Mason's minimum terms of
imprisonment at thirty years for the murder charge and six years
for the kidnapping charge.
On June 27, 2000, Mason filed his first petition
pursuant to HRPP Rule 40, alleging that his conviction was
unconstitutional on various grounds, and that due to newly
discovered evidence, his conviction should be vacated, and his
case should be remanded for a new trial (First Rule 40 Petition).
After various (eleven) hearings at which, inter alia, additional
evidence was adduced, on April 26, 2010, the Circuit Court
entered Findings of Fact, Conclusions of Law, and Order Denying
Petitioner's Petition for Post Conviction Relief (Order Denying
First Rule 40 Petition).5/ As Mason later described in his appeal
from the Order Denying First Rule 40 Petition, the claims made in
the First Rule 40 Petition fell into five broad categories:
ineffective assistance of trial counsel; mistakes made by the
5/ The Honorable Glenn S. Hara presided.
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trial court that denied Mason a fair trial; ineffective
assistance of appellate counsel; newly discovered evidence; and
application of an improper standard of review by the first Rule
40 court and denial of a request to postpone a decision and set
the matter for further hearing. On November 4, 2011, this court
entered a Summary Disposition Order affirming the Order Denying
First Rule 40 Petition.
It appears that, at some point, Mason submitted a
request to HPA requesting a reduction of Mason's minimum term of
imprisonment. This request is not included in the record on
appeal in this case. On October 4, 2017, the HPA issued a
decision denying Mason's request for a reduction of his minimum
term on the grounds that "Your [Mason's] Minimum remains
appropriate."
On April 9, 2018, Mason filed the Rule 40 Petition,
which is at issue in this appeal. Mason raised the following
grounds for relief: (1) the Legislature cannot delegate its
authority to the HPA to prescribe a range of minimum terms of
imprisonment, make its own findings, and set a particular minimum
punishment range; (2) even assuming that HPA can prescribe a
range for minimum term sentence, HPA's setting of a minimum term
based on variable minimum term ranges increases the penalty for
the crime; (3) HPA ignored and violated its guidelines and rules
in setting Mason's minimum term, acting arbitrarily and
capriciously, by: (a) failing to state the Level of Punishment
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and Significant Criteria in the Minimum Term Order, as required
by Section III of HPA's July 1989 Guidelines for Establishing
Minimum Terms of Imprisonment (HPA Guidelines), and (b) failing
to follow rules in setting of minimum terms that were established
and applied in other cases, in particular the case of Raita
Fukusaku; (4) HRS § 706-669(8) (2014), delegating authority to
HPA to prescribe the minimum period of incarceration, is
unconstitutionally vague, as HPA is left to its own devices,
setting minimum terms in an arbitrary and capricious manner, and
HPA Guidelines are procedurally inadequate to provide a uniform
sentence, because: (a) there are no sentencing factors for
setting minimum terms within each level of punishment; (b) there
is no rational basis for a uniform minimum term, when the "Back-
Door" is open allowing an arbitrary and capricious granting or
denial of the reduction of the minimum; and (c) HPA's setting a
minimum term is based on criteria of "Nature of Offense" and
"Degree of Injury/Loss to Person or Property.".
In his prayer for relief, Mason requested that: (1)
the Minimum Term Order be vacated; (2) HRS § 706-669(8) be
declared unconstitutionally vague and that it be ordered and
declared that adding a prescribed range for a minimum term
constitutes elements of a separate aggravated offense and thereby
increased Mason's penalty for the offense; (3) it be ordered and
declared that HPA's use of aggravated ranges or levels of
punishment constitutes elements of a separate aggravated offense
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and thereby increased Mason's penalty for the offense; (4) it be
ordered and declared that HPA's setting of the minimum term
length was arbitrary and capricious, and that the HPA Guidelines
are procedurally inadequate to provide uniform minimum terms,
violating Mason's constitutional rights in the parole context and
statutory right to a uniform sentence pursuant to HRS § 706-
669(8); and (5) an order that HPA assess Mason for parole,
pursuant to HRS § 706-670 (2014 & Supp. 2019).
On July 19, 2019, the State filed an answer to the Rule
40 Petition (Answer to Petition), requesting that the first two
grounds in the petition be dismissed on the basis that they are
patently frivolous or without merit, and that the third and
fourth grounds be dismissed as moot because Mason was receiving a
new hearing to set his minimum term. The Answer to Petition was
supported by, inter alia, the Declaration of HPA Administrator
Tommy Johnson (Johnson). Johnson averred, based on his personal
knowledge and his review of HPA records regarding Mason, that the
Minimum Term Order did not list the level of punishment and
significant criteria on which the decision was based, and that to
remedy this, Mason was granted a new minimum term hearing for
Count I, to be held on July 30, 2018.
In reply to the Answer to Petition, Mason argued that
the arguments made in the first two grounds for granting the Rule
40 Petition were meritorious and that grounds three and four are
not moot because the HPA Guidelines are procedurally inadequate
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to provide for a "uniform" determination of a minimum term, and
therefore, it would be pointless to have a new minimum term
hearing.
On December 19, 2018, without a hearing, the Circuit
Court entered the Order Denying Petition, stating: [T]he Court finds that in regard to [Mason's] arguments as to the [HPA's] setting the minimum terms in regard to his case, the Petition is moot because the HPA has agreed to set a new minimum hearing. The Court finds [Mason's] remaining arguments to be without merit, patently frivolous, and without a trace of support either in the record or from anything submitted by [Mason].
On January 7, 2019, Mason timely filed this appeal.
II. POINTS OF ERROR
Mason raises eleven points of error on appeal, echoing
the grounds stated in the Rule 40 Petition, and contending that:
(1) the Legislature cannot delegate its authority to the HPA to
prescribe a range of minimum terms of imprisonment, make its own
findings, and set a particular minimum punishment range; (2) even
assuming that HPA can prescribe a range for minimum term
sentence, HPA's setting of a minimum term based on variable
minimum term ranges increases the penalty for the crime; (3) HPA
ignored and violated its guidelines and rules in setting Mason's
minimum term, acting arbitrarily and capriciously; (4) HPA failed
to follow the HPA Guidelines; (5) HPA failed to follow rules in
setting of minimum term(s) that were established and applied in
other cases; (6) HRS § 706-669(8), delegating authority to HPA to
prescribe the minimum period of incarceration, is
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setting minimum terms in an arbitrary and capricious manner, and
the HPA Guidelines are procedurally inadequate to provide a
uniform sentence; (7) the HPA Guidelines are procedurally
inadequate; (8) there is no rational basis for a uniform minimum
term, when the "Back-Door" is open allowing an arbitrary and
capricious granting or denial of the reduction of the minimum;
(9) HPA's setting a minimum term is based on criteria of "Nature
of Offense" and "Degree of Injury/Loss to Person or Property;"
(10) the Circuit Court erred in denying the Rule 40 Petition;6/
and (11) the Circuit Court erred in denying the Rule 40 Petition
without a hearing.
III. APPLICABLE STANDARDS OF REVIEW
In Coulter v. State, 116 Hawai#i 181, 184, 172 P.3d
493, 496 (2007), the supreme court stated: An HRPP Rule 40 petition is an appropriate means to challenge a minimum term of imprisonment set by the HPA. Williamson v. Hawai#i Paroling Auth., 97 Hawai#i 156, 34 P.3d 1055 (App. 2000), rev'd on other grounds, 97 Hawai #i 183, 35 P.3d 210 (2001).
"The disposition of an HRPP Rule 40 petition is based on FOF [findings of fact] and COL [conclusions of law]." Raines v. State, 79 Hawai#i 219, 222, 900 P.2d 1286, 1289 (1995). Accordingly, we review the circuit court's conclusions of law de novo and findings of fact for clear error. See id. (citing Dan v. State, 76 Hawai #i 423, 428, 879 P.2d 528, 533 (1994)).
With respect to HPA decisions establishing a minimum term, this court has stated that "judicial intervention is appropriate where the HPA has failed to exercise any discretion at all, acted arbitrarily and capriciously so as to give rise to a due process violation, or otherwise violated the prisoner's constitutional rights." Williamson, 97 Hawai#i at 195, 35 P.3d at 222.
6/ In this point of error, Mason simply identifies and quotes the substance of the Order Denying Petition.
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With respect to claims of procedural violations, the court will assess whether the HPA conformed with the procedural protections of HRS § 706–669 and complied with its own guidelines, which the HPA was required to establish by statute. HRS § 706–669(8) (1993).
IV. DISCUSSION
Mason argues that the manner in which HPA set his
minimum term(s) of imprisonment was in violation of his
constitutional rights, the applicable statute, and HPA's own
guidelines. He urges this court to reject the State's argument
that he is entitled to no relief based on mootness.
A. The Minimum Term Order Violated the HPA Guidelines
HPA adopted the HPA Guidelines pursuant to HRS
§ 706–669(8), which states: The authority shall establish guidelines for the uniform determination of minimum sentences which shall take into account both the nature and degree of the offense of the prisoner and the prisoner's criminal history and character. The guidelines shall be public records and shall be made available to the prisoner and to the prosecuting attorney and other interested government agencies.
Section III of the HPA Guidelines, entitled "Issuance
of Decision," states that "[t]he Order Establishing Minimum Terms
of Imprisonment [ ] will include the specific minimum terms(s)
. . ., the level of punishment . . ., and the significant
criteria upon which the decision was based." Mason argues, inter
alia, that HPA violated its guidelines because the Minimum Term
Order failed to specify either the level of punishment or the
significant criteria upon which the decision was based, as
required by the HPA Guidelines. Mason argues that the failure to
include this information was arbitrary and capricious. The merit
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of this argument has been acknowledged by the HPA's
administrator, Johnson, and the State, and was explained by the
supreme court in Coulter, 116 Hawai#i at 185-86, 172 P.3d at 497-
98 (holding that an HPA minimum term order that failed to specify
either the level of punishment or the significant criteria upon
which the decision was based violated the HPA Guidelines and
failed to comply with the Legislature's directive of "uniform
determination" of minimum sentences).7/
Because we, too, conclude that the Minimum Term Order
was in violation of the HPA Guidelines, we do not reach the
question whether the HPA violated Mason's constitutional due
process rights. See id. at 184-85, 172 P.3d at 496-97. Mason's
arguments that the HPA Guidelines are insufficient to safeguard
prisoner's rights and ensure that the HPA does not arbitrarily
set minimum terms of imprisonment is without merit. See
Williamson, 97 Hawai#i at 194, 35 P.3d at 221 (explaining that
the HPA Guidelines serve as an adequate procedural protection for
prisoner's rights).
7/ As the supreme court explained:
Even though these guidelines do not have the force of statutory law, compliance with such rules is required to serve the legislature's goal of "uniform determination" of minimum sentences. HRS § 706–669(8). Indeed, this court has described the availability of such guidelines as one of the procedural protections afforded to prisoners by statute. Deviating from such rules, without explanation, constitutes arbitrary or capricious action that violates a prisoner's right to uniform determination of his or her minimum sentence.
Coulter, 116 Hawai#i at 185, 172 P.3d at 497 (citing Williamson, 97 Hawai #i at 194-95, 35 P.3d at 221-22) (footnote omitted).
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B. Mootness
In its Answer to Petition, the State argued that,
because the HPA had set a new minimum term hearing for July 30,
2018, any issue raised in the petition related to Mason's minimum
term setting should be dismissed as moot. On appeal, the State
represents that HPA held Mason's new minimum term hearing on
April 26, 2019, and that a new order has been issued, but
acknowledges that the April 26, 2019 hearing is not part of the
record on appeal. The new order is not part of the record on
appeal.
On the record before us, we cannot determine whether
the new minimum term hearing and decision provided an adequate
explanation pursuant to Coulter for the setting of Mason's new
minimum term of imprisonment, and therefore, cannot determine
whether the issue is moot. For that reason, as well as the
following reason, we conclude that this case should be remanded
for a hearing to permit Mason to challenge the HPA's new minimum
term order.
Further, as brought to our attention by the State in a
post-briefing submission, since the April 26, 2019 hearing in
this case, the supreme court ruled that HPA must set forth a
written justification or explanation, beyond simply enumerating
the broad criteria considered by HPA, when HPA determines that
the minimum term of a felony offender is to be set at a Level II
or Level III punishment. See Lewi v. State, 145 Hawai#i 333,
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348-49, 452 P.3d 330, 345-46 (2019). In a lengthy footnote, the
supreme court acknowledged that it was announcing a new rule,
which might or might not be applied retroactively. Id. at 349
n.21, 452 P.3d at 346 n.21. The court declined to select either
a purely prospective or a fully retrospective application of the
new rule and instead chose a middle ground or "pipeline"
retroactive effect. Id. The supreme court applied it to the
petitioner in that case and "to all cases that are on direct
review or not yet final as of the date of this decision." Id.
As the initial Minimum Term Order was clearly arbitrary and
capricious, and the record before us is inadequate to determine
whether a colorable claim for relief might yet exist concerning
the new minimum term order, we conclude that questions remain as
to whether HPA adequately justified its minimum term
determination, and Mason should not be required to initiate a new
HRPP Rule 40 proceeding to raise any outstanding issues
concerning HPA's new determination of his minimum term. Although
these circumstances were not specifically before the supreme
court in Lewi, we conclude that they properly fall within the
middle ground adopted by the court, and the new rule set forth in
Lewi should be applied in this case. On remand, if applicable,
Mason may amend his Rule 40 Petition to include a challenge to
the new minimum term order based on Lewi.
As set forth above, the Circuit Court's December 19,
2018 Order Denying Petition is affirmed in part and vacated in
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part, and this case is remanded to the Circuit Court for further
proceedings consistent with this Memorandum Opinion.
DATED: Honolulu, Hawai#i, February 5, 2021.
On the briefs: /s/ Katherine G. Leonard Tad Mason, Presiding Judge Petitioner-Appellant, Pro Se. /s/ Keith K. Hiraoka Craig Y. Iha, Associate Judge Laura K. Maeshiro, Deputy Attorneys General, /s/ Karen T. Nakasone for Respondent-Appellee Associate Judge STATE OF HAWAI#I.