Laches Can't Stop a Rule 40 Petition

By Benjamin Lowenthal -
Akau v. State (HSC March 5, 2019)
Background. Timmy Hyun Kyu Akau was convicted for driving while under the influence of an intoxicant in 1987. Twenty five years later, in 2013, he petitioned the district court pursuant to HRPP Rule 40 to set aside the conviction. The district court held an evidentiary hearing to determine the merits of the petition.

At the end of the hearing, the district court issued its findings of fact, conclusions of law, and order denying the petition. The district court found that Akau was arrested and charged with DUI on July 26, 1987. Two days later he appeared in the district court, Ewa Division, and pleaded not guilty. He was referred to the Office of the Public Defender and trial was set on December 23, 1987. On the day of trial he appeared without counsel and asked for a continuance so he could get an attorney. The continuance as denied. He was found guilty and convicted. He was sentenced to pay a fine, take a class, and his license was suspended for 90 days.

At the hearing on his Rule 40 petition, Akau testified that he was unfamiliar with court procedures and that he did not recall ever being told that he had a constitutional right to a jury trial or have an attorney represent him at public expense. He did not recall that the judge told him he had the right to appeal from the conviction. He did not recall the judge explaining the nature of the offense, defenses and pleas available, or the punishment he faced.

The district court denied the petition on the grounds that too much time had passed. The ICA affirmed and relied in part on principles of the doctrine of laches. Akau petitioned to the HSC.

The Right to Counsel is Paramount in a Criminal Case. The right to counsel is “fundamental and essential to a fair trial.” Gideon v. Wainwright, 372 U.S. 335, 342-344 (1963); see also State v. Pitts, 131 Hawaii 537, 541, 319 P.3d 456, 450 (2014). The HSC noted that Akau was never represented by counsel at any stage in the proceedings against him and was denied a continuance to get counsel. The deprivation of the right to counsel is a “structural error” that does not require a harmless error analysis because it is “so likely to prejudice the accused that the cost of litigating [its] effect in a particular case is unjustified[.]” United States v. Cronic, 46 U.S. 648, 658-659 (1984). The HSC held that the deprivation of counsel in Akau’s district court case was a structural error that did not require a showing of prejudice.

Time is NOT on the State’s Side. The ICA relied on the equitable doctrine of laches to affirm the denial of Akau’s Rule 40 petition. The HSC disagreed and held that laches does not apply to a Rule 40 petition. HRPP Rule 40(a)(1) does not have a time limitation on it and can be brought “[a]t any time” after the judgment has been issued. The HSC noted that this was deliberately done by the drafters of the rule. See Comm. For Penal Rules Revision of the Judicial Council of Haw., Proposed Hawaii Rules of Penal Procedure (June 1975).

Laches Would Render Coram Nobis Dead Letter. The HSC noted that Rule 40 “governs all extraordinary writs, including a writ of coram nobis. Coram nobis is a “remedy to correct errors of the most fundamental character where the petitioner has completed his sentence or is otherwise not in custody and circumstances compel such action to achieve justice.” Carvalho v. Olim, 55 Haw. 336, 344, 519 P.2d 892, 898 (1974). Applying the equitable doctrine of laches defeats the purpose of a coram nobis. The HSC observed the dramatic coram nobis petition of Fred Korematsu, who sought to overturn his 1942 conviction for remaining on the West Coast during the times of Japanese internment. Korematu’s petiton was brought decades after his sentence was served. An application of the doctrine of laches would have certainly prevented him from remedying a great injustice.

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