Rule 40 and Retroactivity Revisited

Loher v. State (ICA July 14, 2008)

Background. Loher was on trial for kidnapping and attempted sex assault in the first degree. He was represented at trial by Kugiya. To Kugiya's surprise, the State rested on the afternoon of the first day of trial. Kugiya asked the court to present Loher's case the next day, when it could get the other two witnesses to testify. The circuit court refused and instructed Loher that he had to choose between testifying that day or else he would waive his testimony. Kugiya objected because Loher may not have to testify depending on the testimonies of the two other witnesses. The circuit court still refused and Loher testified. The trial continued the next day, the two other witnesses testified, and the jury found Loher guilty of attempted sex assault in the first degree. The State moved for various enhanced sentencing. Kugiya withdrew and a new lawyer, Shintani, took over. Shintani did not oppose the sentencing motions. Loher was sentenced to life with the possibility of parole. Shintani represented Loher on appeal, which challenged the evidence at trial, Kugiya's effectiveness, and some sentencing errors. The ICA affirmed. Loher then filed pro se a petition pursuant to HRPP Rule 40. It was denied by the circuit court without a hearing. Loher appealed.

HRPP Rule 40's "Extraordinary" Waiver Rule. When an issue--other than an illegal sentence--is not raised at trial or at any other proceeding prior to the HRPP Rule 40 petition and when the petitioner fails to show the "existence of extraordinary circumstances to justify the petitioner's failure to raise the issue[,]" the issue is waived. HRPP Rule 40(a)(3). Loher claimed that he was denied due process and a fair trial. He also averred prosecutorial misconduct. The ICA concluded that these issues could have been raised at a proceeding prior to the HRPP Rule 40 petition and held that Loher failed to demonstrate the "extraordinary circumstances necessary to rebut the presumption that he knowingly waived the newly[-]raised issues." It appears that the ICA treats the showing of "extraordinary circumstances" as a presumption of waiver. The ICA does say just exactly how "extraordinary" the circumstances have to be in this case. Or, to characterize it as a presumption, the ICA does not determine what would refute this presumption of waiver or even if it can be refuted at all. We will just have to wait.

Waiver and Ineffective Assistance of Counsel--when to Raise it. This waiver rule includes claims of ineffective assistance of counsel. But remember, the first part of the waiver is that the issue must be newly-raised. When the petitioner is represented by the same counsel at trial and on appeal, there can be no meaningful time to raise the ineffective assistance claim until the HRPP Rule 40 claim; which renders the waiver rule inapplicable. State v. Briones, 74 Haw. 442, 459, 848 P.2d 966, 975 (1993). As for ineffective assistance of appellate counsel, the issue is never waived because it cannot be raised until the appeal is finished. Id. at 460, 848 P.2d at 975. For Loher, the ICA held that ineffective assistance of trial counsel was waived because it could have been raised by appellate counsel. As for issues pertaining to sentencing and appeal, there was no waiver. This was the first appropriate time to raise the issue.

Forced Testimony, the Failure to Raise it on Appeal, and a Procedural Snit. So what was Loher's ineffective assistance of appellate counsel claim? According to the ICA, Loher avers that appellate counsel's failure to argue that the circuit court erred in forcing Loher to testify before evaluating the testimonies of the other defense witnesses violated his right against self-incrimination and the right to remain silent. The ICA noted that the U.S. Supreme Court struck down a statute that required a defendant to testify before any other defense witnesses on the grounds that it "impermissibl[y] restrict[s] . . . the defendant's right against self-incrimination, to remain silent unless he chooses to speak in the unfettered exercise of his own free will[.]" Brooks v. Tennessee, 406 U.S. 605, 609 (1972). Trial is full of uncertainties, explained the U.S. Supreme Court, and whether a defendant needs to testify is simply not known ahead of time. Id. at 609-10. The ICA, however, pointed out that Brooks error may not arise in certain circumstances. State v. Kido, 102 Hawai'i 369, 76 P.3d 612 (App. 2003).

The ICA never answered the question of whether the circuit court committed a Brooks error. When a petitioner claims ineffective assistance of counsel, the counsel in question must be served so he or she can explain the issue. HRPP Rule 40(f). Loher never served Shintani with notice of the ineffective assistance of counsel claim. Furthermore, the circuit court denied the motion without a hearing. With an inadequate record to assess the issue, the ICA had no choice but to remand the case with instructions for the circuit court to hold a hearing as to whether Shintani's failure to raise the forced-testimony issue arose to ineffective assistance of appellate counsel. New counsel must also be appointed. HRPP Rule 40(i).

A Study in Retroactivity. Issues relating to illegal sentencing are not subject to the "extraordinary circumstances" waiver. The ICA nevertheless rejected Loher's claim that his extended term sentence violated Apprendi v. New Jersey, 530 U.S. 466 (2000) and its progeny. Loher was sentenced in 2001, and his appeal was affirmed in 2003. The argument, according to the ICA, is not about Apprendi. Loher made that argument in 2003 and it was rejected. Since that time, however, the controlling case law at the time Loher's sentencing was overruled by State v. Maugaotega, 115 Hawai'i 432, 446-47, 168 P.3d 562, 576-77 (2007) and Cunningham v. California, 549 U.S. 270 (2007). According to the ICA, Loher is really arguing that Maugaotega and Cunningham apply retroactively.

A three-part test. In determining whether a constitutional rule applies retroactively, the court must determine (1) when the conviction became final; (2) whether the rule is "new" (i.e. whether, under the constitutional landscape at the time, the rule is constitution compels the rule); and (3) whether the new rule falls within one of the two exceptions to non-retroactive application. Beard v. Banks, 542 U.S. 406, 411 (2004); see also State v. Gomes, 107 Hawai'i 308, 112 P.3d 184 (2005).

But Which rule is Subject to this three-part test? In determining if Maugaotega-Cunningham announced a "new" rule, the ICA surveyed Ninth Circuit opinions. Some hold that it was not a new rule, while others have held that two opinions prior to Cunningham, Blakely v. Washington, 542 U.S. 296 (2004) and United States v. Booker, 543 U.S. 220 (2005), are "new rules." The ICA, in a footnote, even suggests that the Hawai'i Supreme Court would most likely reject the Ninth Circuit's holding that Cunningham did not change the legal landscape. State v. Jess, 117 Hawai'i 381, 184 P.3d 133, 146 (2008). But the ICA never answered this question either. Instead, the ICA held that Loher's appeal became final on or about July 2003, long before Booker and Blakely were announced. These cases clarified the legal landscape after Apprendi. "Therefore, in this case, we need to look no further than the Supreme Court's 2004 and 2005 decisions in Blakely and Booker." According to the ICA, nearly every federal court of appeals held that Blakely and Booker announced new rules of constitutional criminal procedure, but were not retroactive. The ICA agreed and held that Loher was not entitled to retroactive application of Blakely and Booker.

The ICA's analysis might have provided a preliminary issue before undergoing the three-step analysis. Do we have to first ask which rule of constitutional criminal procedure is subject to the analysis? Loher wanted Cunningham, but the ICA gave him Blakely and Booker because they cleared the legal landscape after Loher's conviction. Still, one can't help but wonder what Cunningham and Maugaotega did to the legal landscape, if anything. Are these lines being arbitrarily drawn? This may be a new issue entirely.


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