NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed Intermediate Court of Appeals CAAP-XX-XXXXXXX 26-FEB-2025 06:35 AM Dkt. 83 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS OF THE STATE OF HAWAI#I
JOSEPH RANDALL O'NEILL, Petitioner-Appellant, v. STATE OF HAWAI#I, Respondent-Appellee.
APPEAL FROM THE CIRCUIT COURT OF THE THIRD CIRCUIT (CASE NOS. 3PR18100003K; 3PC94000159K)
SUMMARY DISPOSITION ORDER (By: Leonard, Acting Chief Judge, Wadsworth and Nakasone, JJ.)
Petitioner-Appellant Joseph Randall O'Neill (O'Neill)
appeals from the July 12, 2022 Findings of Fact, Conclusions of
Law and Order Denying Petition to Vacate, Set Aside, or Correct
Judgment or to Release Petitioner from Custody and Request for
Hearing [(Fourth Rule 40 Petition)] (Order Denying Petition),
entered by the Circuit Court of the Third Circuit (Circuit
Court).1
O'Neill raises five points of error on appeal,
contending that the Circuit Court abused its discretion when it
denied the Fourth Rule 40 Petition without a hearing, even though
O'Neill established colorable claims entitling him to a hearing
1 The Honorable Robert D.S. Kim presided. NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
because: (1) the State of Hawai#i (State) submitted to the
Hawai#i Paroling Authority (HPA), at a 2015 minimum term hearing,
a Presentence Report containing statements previously deemed to
be illegal and in breach of the plea agreement; (2) O'Neill's
2015 minimum term hearing attorney, Dana Ishibashi (Ishibashi),
was ineffective because he failed to object to HPA's receipt of
the Presentence Report and receipt of a letter from the victim's
family without O'Neill's review, and he did not argue the
appropriate criterion for a lower minimum term; (3) O'Neill's trial counsel, Dean Kauka (Kauka), was ineffective, O'Neill's
change of plea was defective, and O'Neill was not fully advised
of his rights in conjunction with the trial court proceedings;
(4) the HPA issued a fifty-year minimum based solely on the
"nature of the offense" without considering the mitigating
factors presented by O'Neill; and (5) the attorney appointed to
represent O'Neill in conjunction with the Fourth Rule 40
Petition, Michael Schlueter (Schlueter), was ineffective because
he failed to order transcripts and records from the 2015 minimum
term hearing to support the petition.
Upon careful review of the record and the briefs
submitted by the parties, and having given due consideration to
the arguments advanced and the issues raised, we resolve
O'Neill's points of error as follows:
(1), (2), & (4) O'Neill's first, second, and fourth
points of error are grounded in the alleged conduct of the State,
his court-appointed counsel, and the HPA at his 2015 minimum term
hearing. However, in the Order Denying Petition, the Circuit
2 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Court made no findings of fact or conclusions of law addressing
O'Neill's arguments and requests for relief relating to the 2015
minimum term hearing.2
Hawai#i Rules of Penal Procedure (HRPP) Rule 40(f)
provides, in relevant part: (f) Hearings. If a petition alleges facts that if proven would entitle the petitioner to relief, the court shall grant a hearing which may extend only to the issues raised in the petition or answer. However, the court may deny a hearing if the petitioner's claim is patently frivolous and is without trace of support either in the record or from other evidence submitted by the petitioner. The court may also deny a hearing on a specific question of fact when a full and fair evidentiary hearing upon that question was held during the course of the proceedings which led to the judgment or custody which is the subject of the petition or at any later proceeding.
A circuit court errs in denying a Rule 40 petition
without a hearing when it fails to make the "necessary finding
that the petitioner's claim was patently frivolous and without a
trace of support in the record or in other evidence submitted by
the petitioner." See, e.g., Cacatian v. State, 70 Haw. 402, 404,
772 P.2d 691, 692 (1989); accord Domingo v. State, 76 Hawai#i
237, 243, 873 P.2d 775, 781 (1994). Here, the Circuit Court made
no such findings with regard to O'Neill's grounds for relief
relating to his 2015 minimum term hearing when it denied the
Fourth Rule 40 Petition without a hearing and erred in so doing.
Therefore, we must vacate the Order Denying Petition
and remand to the Circuit Court with instructions to address
O'Neill's claims relating to his 2015 minimum term hearing.
2 It appears that the Circuit Court only addressed the issues raised in an amendment and supplemental memorandum in support of the Fourth Rule 40 Petition, which was filed after counsel was appointed, but the court failed to address the points raised in O'Neill's original, hand-written Fourth Rule 40 Petition.
3 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
(3) O'Neill argues that he established a colorable
claim that in the underlying criminal case, Kauka was
ineffective, O'Neill was coerced into entering the plea
agreement, and he was not informed of his constitutional rights
when he changed his plea.
HRPP Rule 40(a)(3) provides: (3) Inapplicability. Rule 40 proceedings shall not be available and relief thereunder shall not be granted where the issues sought to be raised have been previously ruled upon or were waived. Except for a claim of illegal sentence, an issue is waived if the petitioner knowingly and understandingly failed to raise it and it could have been raised before the trial, at the trial, on appeal, in a habeas corpus proceeding or any other proceeding actually conducted, or in a prior proceeding actually initiated under this rule, and the petitioner is unable to prove the existence of extraordinary circumstances to justify the petitioner's failure to raise the issue. There is a rebuttable presumption that a failure to appeal a ruling or to raise an issue is a knowing and understanding failure.
(Emphasis added).
In his first HRPP Rule 40 petition, O'Neill asserted as
one of his grounds for relief ineffective assistance of counsel
by Kauka. The Circuit Court in the first petition concluded that
O'Neill was not denied effective assistance of counsel. In his
third HRPP Rule 40 petition, O'Neill raised issues regarding his
underlying criminal case, including ineffective assistance of
Kauka, coercion into entering the plea agreement, and denial of
O'Neill's constitutional rights. The Circuit Court dismissed the
third HRPP Rule 40 petition on the basis that the issues raised
were patently frivolous and previously waived under HRPP Rule
40(g)(2). O'Neill appealed, and we affirmed. O'Neill v. State,
No. 27188, 2006 WL 2471741, at *2 (App. 2006) (SDO). Based on
the above, the Circuit Court concluded that O'Neill's ineffective
assistance of counsel claim against Kauka has been previously
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NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed Intermediate Court of Appeals CAAP-XX-XXXXXXX 26-FEB-2025 06:35 AM Dkt. 83 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS OF THE STATE OF HAWAI#I
JOSEPH RANDALL O'NEILL, Petitioner-Appellant, v. STATE OF HAWAI#I, Respondent-Appellee.
APPEAL FROM THE CIRCUIT COURT OF THE THIRD CIRCUIT (CASE NOS. 3PR18100003K; 3PC94000159K)
SUMMARY DISPOSITION ORDER (By: Leonard, Acting Chief Judge, Wadsworth and Nakasone, JJ.)
Petitioner-Appellant Joseph Randall O'Neill (O'Neill)
appeals from the July 12, 2022 Findings of Fact, Conclusions of
Law and Order Denying Petition to Vacate, Set Aside, or Correct
Judgment or to Release Petitioner from Custody and Request for
Hearing [(Fourth Rule 40 Petition)] (Order Denying Petition),
entered by the Circuit Court of the Third Circuit (Circuit
Court).1
O'Neill raises five points of error on appeal,
contending that the Circuit Court abused its discretion when it
denied the Fourth Rule 40 Petition without a hearing, even though
O'Neill established colorable claims entitling him to a hearing
1 The Honorable Robert D.S. Kim presided. NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
because: (1) the State of Hawai#i (State) submitted to the
Hawai#i Paroling Authority (HPA), at a 2015 minimum term hearing,
a Presentence Report containing statements previously deemed to
be illegal and in breach of the plea agreement; (2) O'Neill's
2015 minimum term hearing attorney, Dana Ishibashi (Ishibashi),
was ineffective because he failed to object to HPA's receipt of
the Presentence Report and receipt of a letter from the victim's
family without O'Neill's review, and he did not argue the
appropriate criterion for a lower minimum term; (3) O'Neill's trial counsel, Dean Kauka (Kauka), was ineffective, O'Neill's
change of plea was defective, and O'Neill was not fully advised
of his rights in conjunction with the trial court proceedings;
(4) the HPA issued a fifty-year minimum based solely on the
"nature of the offense" without considering the mitigating
factors presented by O'Neill; and (5) the attorney appointed to
represent O'Neill in conjunction with the Fourth Rule 40
Petition, Michael Schlueter (Schlueter), was ineffective because
he failed to order transcripts and records from the 2015 minimum
term hearing to support the petition.
Upon careful review of the record and the briefs
submitted by the parties, and having given due consideration to
the arguments advanced and the issues raised, we resolve
O'Neill's points of error as follows:
(1), (2), & (4) O'Neill's first, second, and fourth
points of error are grounded in the alleged conduct of the State,
his court-appointed counsel, and the HPA at his 2015 minimum term
hearing. However, in the Order Denying Petition, the Circuit
2 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Court made no findings of fact or conclusions of law addressing
O'Neill's arguments and requests for relief relating to the 2015
minimum term hearing.2
Hawai#i Rules of Penal Procedure (HRPP) Rule 40(f)
provides, in relevant part: (f) Hearings. If a petition alleges facts that if proven would entitle the petitioner to relief, the court shall grant a hearing which may extend only to the issues raised in the petition or answer. However, the court may deny a hearing if the petitioner's claim is patently frivolous and is without trace of support either in the record or from other evidence submitted by the petitioner. The court may also deny a hearing on a specific question of fact when a full and fair evidentiary hearing upon that question was held during the course of the proceedings which led to the judgment or custody which is the subject of the petition or at any later proceeding.
A circuit court errs in denying a Rule 40 petition
without a hearing when it fails to make the "necessary finding
that the petitioner's claim was patently frivolous and without a
trace of support in the record or in other evidence submitted by
the petitioner." See, e.g., Cacatian v. State, 70 Haw. 402, 404,
772 P.2d 691, 692 (1989); accord Domingo v. State, 76 Hawai#i
237, 243, 873 P.2d 775, 781 (1994). Here, the Circuit Court made
no such findings with regard to O'Neill's grounds for relief
relating to his 2015 minimum term hearing when it denied the
Fourth Rule 40 Petition without a hearing and erred in so doing.
Therefore, we must vacate the Order Denying Petition
and remand to the Circuit Court with instructions to address
O'Neill's claims relating to his 2015 minimum term hearing.
2 It appears that the Circuit Court only addressed the issues raised in an amendment and supplemental memorandum in support of the Fourth Rule 40 Petition, which was filed after counsel was appointed, but the court failed to address the points raised in O'Neill's original, hand-written Fourth Rule 40 Petition.
3 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
(3) O'Neill argues that he established a colorable
claim that in the underlying criminal case, Kauka was
ineffective, O'Neill was coerced into entering the plea
agreement, and he was not informed of his constitutional rights
when he changed his plea.
HRPP Rule 40(a)(3) provides: (3) Inapplicability. Rule 40 proceedings shall not be available and relief thereunder shall not be granted where the issues sought to be raised have been previously ruled upon or were waived. Except for a claim of illegal sentence, an issue is waived if the petitioner knowingly and understandingly failed to raise it and it could have been raised before the trial, at the trial, on appeal, in a habeas corpus proceeding or any other proceeding actually conducted, or in a prior proceeding actually initiated under this rule, and the petitioner is unable to prove the existence of extraordinary circumstances to justify the petitioner's failure to raise the issue. There is a rebuttable presumption that a failure to appeal a ruling or to raise an issue is a knowing and understanding failure.
(Emphasis added).
In his first HRPP Rule 40 petition, O'Neill asserted as
one of his grounds for relief ineffective assistance of counsel
by Kauka. The Circuit Court in the first petition concluded that
O'Neill was not denied effective assistance of counsel. In his
third HRPP Rule 40 petition, O'Neill raised issues regarding his
underlying criminal case, including ineffective assistance of
Kauka, coercion into entering the plea agreement, and denial of
O'Neill's constitutional rights. The Circuit Court dismissed the
third HRPP Rule 40 petition on the basis that the issues raised
were patently frivolous and previously waived under HRPP Rule
40(g)(2). O'Neill appealed, and we affirmed. O'Neill v. State,
No. 27188, 2006 WL 2471741, at *2 (App. 2006) (SDO). Based on
the above, the Circuit Court concluded that O'Neill's ineffective
assistance of counsel claim against Kauka has been previously
4 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
raised and ruled upon, and O'Neill's invalid no contest plea
claim is waived. The Circuit Court dismissed these claims
pursuant to HRPP Rule 40(g)(2).3
O'Neill argues that although he has filed prior HRPP
Rule 40 petitions, his claims regarding his underlying criminal
case are not waived because, inter alia, his failure to raise
these issues "was due to counsel's ineffectiveness in not
advising [O'Neill] of the need to raise all issues or risk them
being waived." As correctly concluded by the Circuit Court, O'Neill's contention that Kauka provided ineffective assistance
of counsel was previously raised and ruled upon. In addition,
O'Neill has not asserted an ineffective assistance of counsel
claim against his court-appointed attorney for his first and
second petitions, in either his third petition or the present
(fourth) petition. Accordingly, this argument is waived.
O'Neill has not otherwise presented any extraordinary
circumstances justifying his failure to raise the invalid no
contest plea issue. See HRPP Rule 40(a)(3).
Therefore, we conclude that the Circuit Court did not
err in dismissing the ineffective assistance of counsel claims
concerning Kauka and the invalid no contest plea claim.
3 HRPP Rule 40(g)(2) provides: (g) Disposition. . . . .
(2) Against the Petitioner. The court may dismiss a petition at any time upon finding the petition is patently frivolous, the issues have been previously raised and ruled upon, or the issues were waived. The court may deny a petition upon determining the allegations and arguments have no merit.
5 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
(5) Finally, O'Neill argues that the attorney
appointed to represent him with respect to the Fourth Rule 40
Petition was ineffective.
"If the issue of ineffective assistance of counsel is
first raised on appeal, the appellate court may consider the
merits of the appeal de novo if the record 'is sufficiently
developed to determine whether there has been ineffective
assistance of counsel[.]'" State v. Means, 148 Hawai#i 212, 219,
468 P.3d 226, 233 (2020) (quoting State v. Silva, 75 Haw. 419, 439, 864 P.2d 583, 592 (1993)). HRPP Rule 40(f) provides that
counsel subject to an ineffective assistance of counsel claim
must be served written notice and be provided an opportunity to
be heard. When the record on appeal is unclear or void as to the
basis for counsel's actions, the case should be remanded to the
circuit court to give counsel the opportunity to be heard.
Briones v. State, 74 Haw. 442, 463, 848 P.2d 966, 977 (1993)
(citing Matsuo v. State, 70 Haw. 573, 578, 778 P.2d 332, 335
(1989)); State v. Uchima, 147 Hawai#i 64, 81, 464 P.3d 852, 869
(2020) ("In circumstances when the record is unclear, the court
may dismiss the application so that a proceeding may be commenced
in the trial court pursuant to HRPP Rule 40(f).").
Here, there is nothing in the record demonstrating
whether Schlueter requested transcripts and records relating to
the 2015 minimum term hearing. O'Neill argues that Schlueter's
failure to request and include this documentation potentially
left the Circuit Court with insufficient information to make a
well-reasoned and correct decision, and instead led to the
6 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Circuit Court denying O'Neill's claim outright without a hearing.
The record does not indicate that Schlueter was provided notice
or given an opportunity to be heard. We conclude that the record
on appeal is not sufficient for us to make an informed ruling on
O'Neill's ineffective assistance of counsel claim.
We have already decided to vacate and remand this case
with instructions to the Circuit Court to conduct an evidentiary
hearing to address O'Neill's claims relating to his 2015 minimum
term hearing. Thus, the issue of Schlueter's effectiveness may be moot. However, upon remand, O'Neill may seek leave to amend
or supplement the Fourth HRPP Rule 40 Petition, if he deems it
necessary or desirable to present this issue in conjunction with
the disposition of his claims for relief arising out of the 2015
minimum term hearing.
For these reasons, the Circuit Court's July 12, 2022
Order Denying Petition is affirmed in part and vacated in part;
this case is remanded to the Circuit Court for further
proceedings consistent with this Summary Disposition Order.
DATED: Honolulu, Hawai#i, February 26, 2025.
On the briefs: /s/ Katherine G. Leonard Acting Chief Judge Kai Lawrence, for Petitioner-Appellant. /s/Clyde J. Wadsworth Associate Judge Stephen L. Frye, Deputy Prosecuting Attorney, /s/ Karen T. Nakasone County of Hawai#i, Associate Judge for Respondent-Appellee.