Opinion
NO. CAAP-20-0000301
04-29-2022
Noe Kim RAQUINIO, Petitioner-Appellant v. STATE of Hawai‘i, Respondent-Appellee
On the briefs: Noe Kim Raquinio, Self-represented Petitioner-Appellant. Stephen L. Frye, Deputy Prosecuting Attorney, County of Hawai‘i, for Respondent-Appellee.
On the briefs:
Noe Kim Raquinio, Self-represented Petitioner-Appellant.
Stephen L. Frye, Deputy Prosecuting Attorney, County of Hawai‘i, for Respondent-Appellee.
(By: Leonard, Presiding Judge, and Wadsworth and McCullen, JJ.)
SUMMARY DISPOSITION ORDER
Self-represented Petitioner-Appellant Noe Kim Raquinio (Raquinio ) appeals from the "Findings of Fact, Conclusions of Law, and Order Denying Petition Filed October 15, 2019" (Order Denying Rule 40 Petition ), entered on April 21, 2020, in the Circuit Court of the Third Circuit (Circuit Court ). For the reasons explained below, we affirm in part, vacate in part and remand.
I. Background
Pursuant to a January 5, 2018 plea agreement with Respondent-Appellee State of Hawai‘i (State ), Raquinio pleaded guilty to and was convicted of Promoting a Dangerous Drug in the Second Degree, in violation of Hawaii Revised Statutes (HRS ) § 712-1242(1)(b)(i) (Supp. 2017), in Criminal No. 3CPC-17-0000617. Raquinio was sentenced to a four-year term of probation. The terms of probation included, inter alia , a one-year term of incarceration, with all time suspended. On January 19, 2018, the Circuit Court entered the Judgment of Conviction and Probation Sentence (Judgment ). Raquinio did not appeal from the Judgment.
On March 25, 2019, Raquinio's court-appointed defense counsel, Frank L. Miller (Miller ), moved to withdraw, "due to a conflict of interest and at the request of [Raquinio]." The Circuit Court orally granted the motion on April 5, 2019, and entered the written Order Granting Counsel's Motion to Withdraw on April 18, 2019.
Beginning in April 2019, Raquinio, self-represented, filed a series of post-conviction motions, including a May 16, 2019 motion requesting new appointed counsel. At an August 8, 2019 hearing, the Circuit Court stated that it would appoint counsel for Raquinio to determine whether there was a basis for a petition under Hawai‘i Rules of Penal Procedure (HRPP ) Rule 40, and denied Raquinio's other motions without prejudice.
On October 7, 2019, Raquinio initiated the Rule 40 proceeding underlying this appeal by filing a series of documents, including a "Motion to Withdraw Guilty Plea" and "[Raquinio's] Memorandum Ineffective Counsel [sic] in Support of Rule 40 HRPP" (Memorandum in Support of Rule 40 Petition ). On October 15, 2019, Raquinio filed a "Petition to Vacate, Set Aside, or Correct Judgment or to Release Petitioner [from] Custody," pursuant to HRPP Rule 40 ( Rule 40 Petition ). The Rule 40 Petition challenged the Judgment on the following grounds: (1) "In[eff]ective Counsel[,] coerced into guilty plea" (Ground One ); (2) "Conviction obtained by use of evidence gained pursuant to an unconstitutional search and seizure"; (3) "Conviction obtained by use of evidence obtained pursuant to arrest"; and (4) "Newl[ ]y Discovered Evidence".
On October 17, 2019, the Circuit Court appointed attorney Terry Fujioka-Lilley (Fujioka-Lilley ) to represent Raquinio on his Rule 40 Petition. On January 6, 2020, Fujioka-Lilley filed a motion to withdraw as counsel due to "an unresolvable disagreement [with Raquinio] as to legal strategy and legal effect of certain historical facts[.]" At a January 13, 2020 hearing, the Circuit Court granted the motion to withdraw. Raquinio was present, made no objection, and indicated he wished to represent himself pro se .
Thereafter, Raquinio filed an additional series of motions, including "[Raqunio's] Motion to Withdraw Guilty Plea. 1. Ineffective Counsel 2. New[ ]ly Discovered Evidence." On February 27, 2020, the State filed "State's Opposition to [ Rule 40 ] Petition ..." and "State's Omnibus Opposition to All Motions Set for March 3, 2020" (Omnibus Opposition ). In the Omnibus Opposition, the State argued that Raquinio had failed to satisfy the "manifest injustice" standard for having his guilty plea set aside, and "request[ed] that the motion, and petition seeking the same relief be denied." (Emphasis added.) The State argued that the issues raised in Raquinio's other motions were waived when Raquinio changed his plea to guilty.
On March 6, 2020, the Circuit Court held a hearing on the Rule 40 Petition and Raquinio's motions. The court stated that the motions were improperly filed and that Raquinio had been erroneously given a hearing date. The court struck the motions and then denied the Rule 40 Petition.
The subsequent Order Denying Rule 40 Petition included the following findings of fact, which are unchallenged on appeal and are thus binding on the parties and this court, see State v. Rodrigues, 145 Hawai‘i 487, 494, 454 P.3d 428, 435 (2019) :
2. The Petitioner in this matter was represented by Frank Miller ... in 3CPC-17-617.
3. On November 13, 2017[,] Mr. Miller filed a motion to suppress evidence in 3CPC-17-617 on the grounds that there was a lack of reasonable suspicion for the stop of the defendant's vehicle, unlawful entry into defendant's vehicle, ... and improper consent and statements given by the defendant.
4. On December 20, 2017[,] the State Opposed the Motion to Suppress filed in 3CPC-17-617.
5. On January 5, 2017[,] the Defendant, while represented by counsel changed his plea and was later sentenced[;] during the change of plea and sentencing he was represented by counsel Mr. Miller.
6. At the time of the Defendant's change of plea the Defendant waived his right to file any pretrial motions.
7. Attorney Frank Miller provided the Defendant with adequate and competent representation during the pendency of the 3CPC-17-617.
8. The Petition, filed on October 15, 2019, alleges Attorney Frank Miller was ineffective by informing the Defendant that the motion to suppress hearing in 3CPC-17-617 was set for January 5, 2018 at 2:00 p.m. instead of 8:00 a.m.
9. The record in 3CPC-17-617 reflects that the defendant was present on January 5, 2018 at 8:00 a.m.
10. The Petition, argues that the conviction was obtained through the use of suppressible evidence.
11. The Petition argues there is newly discovered evidence, however, the discovery relevant to 3CPC-17-617 was held by Mr. Miller during the pendency of the case and was available for review by the Defendant.
The Order Denying Rule 40 Petition also included the following conclusions of law (COLs ):
2. The Petition fails to allege facts that if proven would establish that Attorney Frank Miller was Ineffective in his representation of the Defendant, the record of 3CPC-17-617 demonstrates that attorney Frank Miller filed a motion to suppress on multiple grounds and the Defendant elected to forego a hearing on that motion in exchange for a plea deal with the State. There is not a trace of support in the record or from other evidence submitted by the petitioner that Attorney Frank Miller was ineffective.
3. The Petitioner's arguments that suppressible, or other illegally obtained evidence were used to obtained [sic] the conviction were previously waived when the Defendant elected to change his plea instead of proceeding on the Motion to Suppress filed by Attorney Frank Miller in 3CPC-17-617, therefore those portions of the Petition are deemed inapplicable pursuant to HRPP Rule 40(a).
4. The Petitioner's arguments relating to newly discovered evidence have no merit, as the complained of material was turned over in discovery by the State during the pendency of 3CPC-17-617, or do not relate to the facts of the Petitioner's underlying case.
Raquinio timely appealed from the Order Denying Rule 40 Petition.
II. Discussion
Raquinio's points of error are difficult to discern. He appears to challenge his conviction in Criminal No. 3CPC-17-0000617 based on the following contentions: (1) the conviction was obtained by use of evidence gained in a "false arrest" and an unlawful search and seizure; (2) Raquinio received ineffective assistance of trial counsel, who (a) failed to follow through with Raquinio's initial not guilty plea; (b) coerced Raquinio into entering a guilty plea; and (c) failed to pursue a viable motion to suppress; and (3) the State violated the plea agreement, rendering it null and void. Raquinio also asserts that he is "withdrawing" his guilty plea.