Smith v. State

NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
10-JAN-2025
07:56 AM
Dkt. 52 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI‘I

DEXTER J. SMITH, Petitioner-Appellant,
v.
STATE OF HAWAI‘I, Respondent-Appellee

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CASE NOS. 1PR161000009; 1PC121001834)

SUMMARY DISPOSITION ORDER
(By: Leonard, Acting Chief Judge, Wadsworth and Guidry, JJ)

Self-represented Petitioner-Appellant Dexter J. Smith

(Smith) appeals from the "Order Denying Hawaiʻi Rules of Penal

Procedures [(HRPP)] Rule 47 Motion [(Rule 47 Motion)] and Motion

for Appointment of Counsel" (Order), entered on May 25, 2022 by

the Circuit Court of the First Circuit (circuit court).1

1 The Honorable Christine E. Kuriyama presided.
NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER

The Rule 47 Motion arose from Smith's conviction for

Kidnapping in violation of Hawaii Revised Statutes (HRS) §§ 707-

720(1)(d) and/or -720(1)(e) (Supp. 2012). Smith appealed from

his conviction, and this court affirmed. State v. Smith,

No. CAAP-XX-XXXXXXX, 2015 WL 1070756 (Haw. App. Mar. 11, 2015)

(SDO).

On May 17, 2016, Smith filed his Petition to Vacate,

Set Aside, or Correct Judgment or to Release Petitioner from

Custody (Petition), asserting thirteen grounds in support of his

Petition. The circuit court dismissed the Petition, finding

"the allegations and arguments raised by [Smith] to be without

merit, patently frivolous, and without a trace of support either

in the record or from anything submitted by [Smith]." On

January 12, 2017, the circuit court entered a "Second Amended

Order Dismissing Amended Petition to Vacate, Set Aside, or

Correct Judgment or to Release Petitioner from Custody Without a

Hearing" (Petition Order). Smith appealed, arguing that

appellate counsel in his direct appeal provided ineffective

assistance by failing to argue prosecutorial misconduct, and

that there was insufficient evidence to support his conviction.

Smith v. State, No. CAAP-XX-XXXXXXX, 2019 WL 2482109, at *1

(Haw. App. June 14, 2019). This court affirmed. Id. at *4.

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On November 29, 2021, Smith filed the Rule 47 Motion.

Smith contended that the circuit court abused its discretion in

dismissing the Petition, and in failing to explain its

reasoning. The State did not file a response. On May 25, 2022,

the circuit court denied the Rule 47 Motion, and ruled that,

pursuant to HRPP Rule 40(a)(3), Smith's claims had already been

ruled upon and/or waived.

This appeal followed. On appeal, Smith appears to

raise four points of error: (1) the circuit court erred in

denying the Rule 47 Motion before the State could file a

response; (2) it was plain error to deny the Rule 47 Motion

because Smith's claims are exempt from HRPP Rule 40(a)(3);

(3) the Order withdrew "potentially meritorious defenses against

any waiver" and the circuit court is the "extraordinary

circumstances" to justify Smith's failure to raise issues in the

Petition; and (4) the circuit court erred in denying the

Petition without entering findings of fact (FOF) and conclusions

of law (COL).

At the outset, we address the State's contention that

this court lacks jurisdiction because the Order is not

appealable. We disagree. The circuit court construed Smith's

Rule 47 Motion as a nonconforming HRPP Rule 40 petition, and

denied relief pursuant to HRPP Rule 40(a)(3). The circuit court
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found that Smith had "already raised or failed to raise the

issues" in the Petition, and did not establish "extraordinary

circumstances justifying [his] failure to raise the issues."

Moreover, Smith's Rule 47 Motion states that it was made, in

relevant part, pursuant to HRPP Rule 40. Smith also

represented, in his reply brief, that the Rule 47 Motion is a

nonconforming HRPP Rule 40 petition, and that Rule 33 of the

Rules of the Circuit Courts of the State of Hawaiʻi allows for

the Rule 47 Motion to be interpreted under HRPP Rule 40. Thus,

this court construes Smith's appeal as being taken from an

appealable written order denying a nonconforming HRPP Rule 40

petition. See Grattafiori v. State, 79 Hawaiʻi 10, 13, 897 P.2d

937, 940 (1995) ("According to HRPP Rule 40(h), appeals from

proceedings for post-conviction relief may be made 'from a

judgment entered in the proceeding.'").

We therefore consider Smith's points of error in turn.

Upon careful review of the record, briefs, and relevant legal

authorities, and having given due consideration to the arguments

advanced and the issues raised by the parties, we resolve

Smith's points of error as follows:

(1) The circuit court did not err by entering the

Order without a response from the State. As explained supra,

the circuit court properly construed the Rule 47 Motion as a
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nonconforming HRPP Rule 40 petition. HRPP Rule 40(d) states

that "the respondent may answer or otherwise plead, but the

court may require the State to answer at any time." (Emphasis

added.) Thus, a response from the State was not necessary.

(2) We review de novo Smith's contention that his

claims are exempt from HRPP Rule 40(a)(3), and are therefore not

waived, because his conviction was invalid and his sentence was

illegal. See Maddox v. State, 141 Hawaiʻi 196, 202, 407 P.3d

152, 158 (2017). As discussed infra, Smith's conviction was

valid, and his failure to raise the "[p]lain [e]rrors" in an

ineffective assistance of trial counsel claim resulted in a

waiver pursuant to HRPP Rule 40(a)(3).

(3) The Order and Petition Order did not withdraw

"potentially meritorious defenses against the waiver of the

issues" in the Rule 47 Motion. This court previously ruled upon

Smith's claim for ineffective assistance of appellate counsel,

and therefore, further relief is not available here. Smith,

2019 WL 2482109, at *3—4; see HRPP Rule 40(a)(3). And Smith has

not demonstrated the requisite "extraordinary circumstances" to

justify his failure to raise the claim in the Petition. See

HRPP Rule 40(a)(3).

The circuit court's denial of the Rule 47 Motion and

the Petition did not constitute "extraordinary circumstances."
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Smith contends that the circuit court's Petition Order denied

Smith "referral to another counsel pursuant to HRPP Rule 40(i),"2

thereby preventing him from filing a supplemental petition

pursuant to HRPP Rule 40(e) to raise the issues that were raised

in the Rule 47 Motion. Smith did not request counsel for the

Petition. The circuit court did not abuse its discretion in

these circumstances. See Lankford v. State, No. CAAP-19-

0000008, 2021 WL 1174584, at *1 (Haw. App. Mar. 29, 2021) (SDO)

(citing State v. Levi, 102 Hawaiʻi 282, 288, 75 P.3d 1173, 1179

(2003)) (explaining that a court has discretion in appointing

counsel in post-conviction proceedings).

Moreover, the Hawaiʻi Rules of Professional Conduct,

which govern attorney conduct in Hawaiʻi, and Tagupa v. VIPDesk,

135 Hawaiʻi 468, 353 P.3d 1010 (2015), which relates to

attorneys' fees, do not apply here. There is no requirement

that the Petition must have been filed with "bad faith" or

"malicious intent" for the circuit court to conclude that it is

"patently frivolous." See HRPP Rule 40(i).

The purported lack of transcripts or access to the

"Rules of Evidence Manual" also do not constitute "extraordinary

2 HRPP Rule 40(i) provides that the court is not required to refer
a petition to the public defender if the claim is "patently frivolous and
without trace of support either in the record or from other evidence
submitted by the petitioner."
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circumstances." The courts are not required to provide

transcripts to Smith in this case, and it is Smith's burden, as

Appellant, to demonstrate error based on the record.

Bettencourt v. Bettencourt, 80 Hawaiʻi 225, 230, 909 P.2d 553,

558 (1995); State v. Murphy, 59 Haw. 1, 5 n.3, 575 P.2d 448, 452

n.3 (1978).

Finally, we note that the circuit court entered the

Order after Smith filed the Rule 47 Motion, which undercuts

Smith's assertion that the Order "withdrew potentially

meritorious defenses against the waiver of the issues in the

HRPP Rule 47 motion."

Smith fails to demonstrate the "extraordinary

circumstances" necessary to justify his failure to assert

ineffective assistance of counsel in the Petition. We

therefore determine that the issue was waived pursuant to HRPP

Rule 40(a)(3).

(4) The circuit court did not err in failing to enter

FOF and COL with the Order. HRPP Rule 40(g) requires the

circuit court to enter FOF and COL only if the circuit court

does not dismiss a petition as "patently frivolous." Domingo v.

State, 76 Hawaiʻi 237, 243, 873 P.2d 775, 781 (1994). Here, the

Amended Order states the Rule 47 Motion was "patently frivolous

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and without a trace of support in the record." Thus, FOF and

COL were not necessary.

For the foregoing reasons, we affirm the Order.

DATED: Honolulu, Hawai‘i, January 10, 2025.

On the briefs: /s/ Katherine G. Leonard
Acting Chief Judge
Dexter J. Smith,
Self-represented /s/ Clyde J. Wadsworth
Petitioner-Appellant. Associate Judge

Loren J. Thomas, /s/ Kimberly T. Guidry
Deputy Prosecuting Attorney, Associate Judge
City and County of Honolulu,
for Respondent-Appellee.

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