Summary
The Hawaiʻi Intermediate Court of Appeals reviews the denial without a hearing of Donald B. Marks's fourth Hawaiʻi Rules of Penal Procedure Rule 40 petition. The court affirms the denial of most claims concerning his no-contest plea, sentence, and Hawaiʻi Paroling Authority minimum-term determination, but holds that certain claims regarding access to adverse information and ineffective assistance of counsel presented colorable claims requiring a hearing. The court therefore affirms in part, vacates in part, and remands for further proceedings.
Topics
Practice areas
Questions Presented
- Whether the Circuit Court properly denied without a hearing Marks's claims that counsel was ineffective for failing to appeal his 2020 sentence.
- Whether Marks's challenges to the voluntariness of his plea and jury-trial waiver were waived under HRPP Rule 40(a)(3).
- Whether the Hawaiʻi Paroling Authority's delayed minimum-term hearing deprived it of jurisdiction or otherwise entitled Marks to relief.
- Whether Hawaiʻi statutes and administrative rules governing HPA minimum-term determinations are unconstitutionally vague, overbroad, or otherwise invalid.
- Whether HPA's minimum-term determination is a sentence and whether HPA may consider conduct underlying the offense and the prisoner's criminal history.
- Whether HPA's use of two agreeing members, its alleged failure to provide adverse information, and counsel's alleged failure to obtain or discuss that information presented colorable claims requiring a Rule 40 hearing.
- Whether Alleyne v. United States or other sentencing doctrines require a jury determination for HPA minimum-term proceedings.
- Whether the Circuit Court properly denied the remaining Rule 40 grounds without a hearing.
Holdings
- A Rule 40 hearing is required when a petition alleges facts that, if proven, would entitle the petitioner to relief and the claim is not patently frivolous. Marks's allegations that HPA failed to provide information it considered and failed to allow him to challenge inaccurate information presented a colorable claim requiring a hearing.
- Marks's allegations that appointed counsel failed to seek a continuance, failed to provide adverse HPA materials, and failed to privately confer with Marks about his hearing rights stated colorable ineffective-assistance claims requiring a Rule 40 hearing. Counsel was not ineffective merely for failing to object to HPA's legitimate inquiry into conduct relevant to setting the minimum term.
- An HPA minimum-term determination is not a sentence imposed by a court. A prisoner has no statutory right to have the minimum term set below the maximum sentence.
- HPA may consider conduct relevant to the nature of the offense and aggravating factors when setting a minimum term, even if the conduct did not result in a separate charge or conviction. Alleyne's jury-finding requirement for facts increasing mandatory minimum sentences does not apply to HPA minimum-term hearings.
- The remaining grounds, including claims concerning waiver, delayed HPA proceedings, vagueness, separation of powers, the number of HPA members, the statutory framework, oral pronouncement of the minimum term, plea-agreement breach, and alleged discriminatory treatment, were patently frivolous and were properly denied without a hearing.
Key quotations
“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.” (3)
“Under these circumstances, we conclude that Ground Seven presented "a colorable claim for post-conviction relief such that a Rule 40 hearing was required."” (11-12)
“The minimum term set by HPA is not a sentence.” (12)
“We partially vacate the denial without a hearing of Grounds 7, 11, and 13, and remand for a hearing” (18)
Factual background
Marks pleaded no contest to second-degree murder in 2004 and was initially sentenced to life imprisonment without parole. Following a prior challenge to the legality of his extended-term sentence, he was resentenced in 2020 to life imprisonment with the possibility of parole. The Hawaiʻi Paroling Authority then set a forty-year minimum term, relying in part on the nature of the offense and Marks's criminal history. In his fourth Rule 40 petition, Marks challenged the plea, sentence, minimum-term proceeding, statutory and administrative framework, and the effectiveness of appointed counsel at the HPA hearing.
Procedural history
Marks was convicted of second-degree murder after entering a no-contest plea and was initially sentenced to life imprisonment without parole. After prior post-conviction proceedings, the Hawaiʻi Supreme Court held that the extended-term sentence had been imposed illegally because the required factual determination had been made by a judge rather than a jury, and the case was remanded for resentencing. Marks was resentenced in 2020 to life imprisonment with the possibility of parole, and the Hawaiʻi Paroling Authority later set a forty-year minimum term. The Circuit Court of the First Circuit denied Marks's fourth Rule 40 petition, which asserted twenty-four grounds, without a hearing. The Intermediate Court of Appeals affirmed the denial of most grounds, vacated the denial of three grounds, and remanded for a hearing.
Remand instructions
The Circuit Court must conduct a Rule 40 hearing on whether Marks was provided the information HPA considered in setting his minimum term and given an opportunity to challenge inaccurate information; whether counsel Nelson Goo was ineffective for failing to seek a postponement or provide adverse HPA materials; and whether Goo was ineffective for failing to privately confer with Marks about his rights at the minimum-term hearing. If Marks maintains the ineffective-assistance claims, he must serve Goo with the January 26, 2021 Rule 40 Addendum and the February 9, 2021 motion to add grounds, as required by HRPP Rule 40(f). The denial of Grounds 1-6, 8-10, 12, and 14-24 was affirmed.