When the Lower Court Can Order the ICA to Vacate a Judgment

 Villados v. State (HSC December 9, 2020)

Background. Albert Villados was convicted of promoting a dangerous drug in the second degree. The circuit court—Hon. Judge Shackley Raffetto—used the conviction in a combination of other cases and sentenced him to a total of 35 years in prison. Villados appealed to the ICA. The ICA affirmed with a summary disposition order. After the issuance of the order, but before the ICA issued its judgment on appeal, Villados wrote to his appellate counsel expressing his desire to seek review by the HSC. Counsel wrote back that she would not because she found no basis to apply for review. She did write that she would have another look at the ICA’s decision. Counsel wrote another letter indicating that she changed her mind and would write up a writ of certiorari. About a month later she wrote a third letter indicating that she had not filed an application for writ of certiorari and that the deadline had passed. She decided after reviewing the ICA’s decision that there was nothing to present to the HSC. Three months after the deadline, Villados filed his own petition to the HSC. The HSC dismissed the application on the grounds that it was untimely. Justice Acoba dissented.


Villados petitioned to the circuit court pursuant to HRPP Rule 40 alleging that his appellate counsel was constitutionally ineffective. The circuit court, now with Hon. Judge Peter Cahill presiding, appointed new counsel and set the matter for an evidentiary hearing. After the hearing, the circuit court concluded that Villados’s appellate counsel was ineffective, but concluded that it could not order a new trial as requested by Villados. The circuit court denied relief and concluded that the appropriate remedy was to seek review by the HSC. The circuit court concluded that it could not grant any of the relief to Villados. Villados appealed to the ICA. The ICA agreed that a new trial was not the proper remedy. Villados petitioned to the HSC.


The Remedy for Ineffective Assistance of Appellate Counsel is Appellate Review—not a new trial. The criminal defendant has the constitutional right to effective assistance of appellate counsel on certiorari review. State v. Uchima, 147 Hawai'i 64, 76, 464 P.3d 852, 864 (2020). The only issue before the HSC was the appropriate remedy for the ineffective assistance of appellate counsel.


The HSC rejected the remedy was a new trial. Instead, it held that Villados should be given leave to file an application for writ of certiorari on the merits of the direct appeal. See Maddox v. State, 141 Hawai'i 196, 205, 407 P.3d 152, 161 (2017). The HSC based on a review of cases from other jurisdictions rejected Villados’s argument that appellate counsel’s error requires a vacatur of the conviction and new trial. And so the HSC vacated the judgment in old direct appeal and instructed the ICA to reenter within ten days of entry of judgment in this case. From there, Villados will be entitled to apply for a writ of certiorari from the direct appeal.


The HSC noted that when trial courts deal with a Rule 40 petition alleging ineffective assistance of appellate counsel, they need not dismiss it and require an appeal. Instead it provided the following remedy:


[U]pon entry of final judgment pursuant to an order determining that (1) appellate counsel was ineffective and (2) the opportunity to pursue certiorari review is the appropriate remedy, the petitioner may then move in the ICA for vacatur and reentry of the underlying judgment on appeal.


A Brand New Motion for the ICA! This case presents a very narrow set of circumstances. When appellate counsel is ineffective for missing a deadline to file a petition for writ of certiorari before the HSC, the remedy is a Rule 40 petition. A trial court, if persuaded that appellate counsel had been ineffective, would then issue an order allowing the petitioner to go back to the original appeal and have the ICA vacate its judgment and reenter thereby resetting the deadline for applying to the HSC. This seems to be one of those very rare instances where the trial court can direct the appellate court to do something.


It would also seem that this remedy could fit other kinds of instances where appellate counsel was ineffective. Let’s say that counsel was ineffective in the brief. Therefore, the ICA’s judgment should be vacated and a new brief should be permitted. Would the ICA honor that? It would seem to be an appropriate remedy. As the Chief Justice, the author of the majority opinion here, wrote “the remedy for ineffective assistance of counsel must be responsive to the nature of counsel’s errors.”


Justice McKenna’s Concurrence. Justice McKenna wrote separately to discuss Uchima. She believed that in this case, where the deadline to petition for a writ of certiorari had passed, a Rule 40 petition and ultimately an order authorizing the vacatur of the ICA’s judgment on appeal was the appropriate remedy. For her, there was nothing wrong with the HSC hearing the untimely petition when it was apparent in the record on the direct appeal that counsel had been ineffective. Justice Wilson joined.


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