Penaflor v. State

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
08-AUG-2025
09:16 AM
Dkt. 48 MO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

CRANDALL PENAFLOR, Petitioner-Appellant, v.
STATE OF HAWAI#I, Respondent-Appellee

APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT
(CASE NO. 2PR181000006)

MEMORANDUM OPINION
(By: Nakasone, Chief Judge, Hiraoka and McCullen, JJ.)

Crandall Penaflor, representing himself, appeals from
the denial of his fourth Hawai#i Rules of Penal Procedure (HRPP)
Rule 40 nonconforming petition for post-conviction relief.1 We
affirm.

BACKGROUND

On May 21, 1990, a grand jury indicted Penaflor for
Burglary in the First Degree; two counts of Terroristic
Threatening in the First Degree; Kidnapping; Robbery in the First
Degree; and two counts of Sexual Assault in the First Degree.
His trial was video-taped instead of contemporaneously
transcribed by a court reporter. A jury found him guilty as
charged of burglary, both counts of terroristic threatening, and
both counts of sexual assault. The jury also found him guilty of

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The Honorable Peter T. Cahill presided.
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kidnapping, but found he released the person kidnapped alive and
not suffering from serious or substantial bodily injury in a safe
place prior to trial. That finding reduced Kidnapping from a
class A to a class B felony. HRS § 707-720(3) (Supp. 1989). He
was found not guilty of robbery. He was sentenced to consecutive
terms of 20 years for each count of sexual assault, 10 years for
burglary, 10 years for kidnapping, and 5 years for each count of
terroristic threatening — a total of 70 years.2

Direct Appeal

Penaflor appealed his conviction. The supreme court
affirmed. State v. Penaflor, No. 15629, 1992 WL 213874 (Haw.
Aug. 26, 1992) (mem. op.) (Penaflor I).

First HRPP Rule 40 Petition

On January 22, 1998, Penaflor filed his first HRPP
Rule 40 petition. See Penaflor v. Mossman, 141 Hawai#i 358, 360,
409 P.3d 762, 764 (App. 2017). He argued his attorney had
provided ineffective assistance, his convictions were obtained
through perjured witness testimony, and the jury was biased
against him. The petition was denied without a hearing because
Penaflor failed to establish ineffective assistance of counsel
and had waived his remaining claims by failing to raise them on
direct appeal.3 Penaflor did not appeal.

Motion to Correct Illegal Sentence

On February 28, 2000, Penaflor moved for correction of
illegal sentence under HRPP Rule 35. The Circuit Court denied
the motion.4 Penaflor appealed. We reversed the conviction for
terroristic threatening against the female kidnapping victim

2
The Honorable Boyd P. Mossman presided.
3
The Honorable Boyd P. Mossman presided.
4
The Honorable Rhonda I.L. Loo presided.

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because it merged with her kidnapping. State v. Penaflor,
No. 23939, 2002 WL 31375566, at *1 (Haw. App. Oct. 21, 2002)
(SDO) (Penaflor II), cert. denied, No. 23939 (Haw. Nov. 25,
2002).

Second HRPP Rule 40 Petition

On September 11, 2006, Penaflor filed another HRPP
Rule 40 petition. See Penaflor v. State, No. 28527, 2008 WL
2503259 (Haw. App. June 24, 2008) (SDO) (Penaflor III), cert.
rejected, No. 28527 (Haw. Oct. 14, 2008). He argued, among other
things, that the trial court used a videotape recorder instead of
a court reporter, and he was improperly denied appointment of
"counsel to consult with an 'Expert Video Tape Recorder' which
there was [sic] numerous errors and missing portions" of the
trial record. Id. 2008 WL 2503259, at *1. The Circuit Court
denied the petition without a hearing.5 Penaflor appealed. We
held that "Penaflor's claims of trial court error in . . . the
use of videotape recording of the trial proceedings were waived
as they were not raised in his direct appeal or in his First
[HRPP Rule 40] Petition." Id. 2008 WL 2503259, at *3.

Appeal from Amended Judgment

On December 22, 2009, after Penaflor II reversed one of
the terroristic threatening convictions, the Circuit Court
entered an amended judgment that reduced Penaflor's sentence by
five years, to a total of 65 years.6 Penaflor appealed,
challenging his consecutive sentences. State v. Penaflor,
No. 30313, 2011 WL 716199 (Haw. App. Feb. 25, 2011) (SDO)
(Penaflor IV), cert. rejected, No. SCWC–30313, 2011 WL 2165128
(Haw. June 2, 2011). We affirmed. Id. The supreme court
rejected Penaflor's application for writ of certiorari.

5
The Honorable Shackley F. Raffetto presided.
6
The Honorable Shackley F. Raffetto presided.

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Federal Writ of Habeas Corpus

On January 20, 2012, Penaflor petitioned the federal
district court in Hawai#i for a writ of habeas corpus. See
Penaflor v. Thomas, Civ. No. 12-00050 LEK-BMK, 2012 WL 1802468
(D. Haw. May 17, 2012). He challenged the imposition of
consecutive sentences and claimed his trial and appellate counsel
were ineffective. The federal court denied his petition. Id. at
*6-8.

Civil Lawsuit

On March 25, 2014, Penaflor sued Judge Mossman, the
deputy prosecuting attorney who prosecuted his criminal case, his
defense attorney, and the County of Maui. See Mossman, 141
Hawai#i at 362, 409 P.3d at 766. He alleged several claims,
including malicious prosecution, false imprisonment, and
ineffective assistance of counsel. The Circuit Court dismissed
his complaint.7 He appealed. We affirmed, holding that his
claims against Judge Mossman were barred by judicial immunity,
id., at 362-63, 409 P.3d at 766-67, and his claims against the
other defendants could not be maintained because "a criminal
defendant who has failed to overturn his or her conviction cannot
file a civil suit based on claims that necessarily imply the
invalidity of the conviction." Id. at 364, 409 P.3d at 768.

Third HRPP Rule 40 Petition

On February 3, 2021, Penaflor filed a third HRPP
Rule 40 petition. See Penaflor v. State, No. CAAP-XX-XXXXXXX,
2023 WL 8518010 (Haw. App. Dec. 7, 2023) (SDO) (Penaflor V). He
again challenged the imposition of consecutive sentences, and
argued the sentencing court improperly considered his refusal to
admit guilt or remorse as a factor during sentencing. The
Circuit Court denied the petition without a hearing because

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The Honorable Peter T. Cahill presided.

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Penaflor's claims were either previously ruled on or waived.8 We
affirmed because Penaflor's consecutive sentences claim had been
ruled on in Penaflor IV, and his "remorse" claim had been ruled
on in Penaflor I. Penaflor V, 2023 WL 8518010, at *4-5.
Penaflor also claimed his consecutive sentences were
illegal under the Eighth Amendment to the United States
Constitution and article I, section 12 of the Hawai#i
Constitution. We held that Penaflor failed to show his
punishment was "clearly and manifestly" cruel and unusual, or
that his sentence was "so disproportionate to the conduct
proscribed and is of such duration as to shock the conscience
of reasonable persons or to outrage the moral sense of the
community." Penaflor V, at *6 (citing State v. Solomon, 107
Hawai#i 117, 131, 111 P.3d 12, 26 (2005) and State v. Kahapea,
111 Hawai#i 267, 282, 141 P.3d 440, 455 (2006)).

Fourth HRPP Rule 40 Petition

Penaflor filed a Motion to Reconstruct, Modify, or
Supplement the Missing Portions of the Trial Records on July 5,
2018. He claimed the court reporter who transcribed his trial
videotapes "'did not' obtain some of the vital testimony(s) [sic]
given by" a police detective and the female victim. He summarily
argued the testimony was "perjured" and "totally inaccurate, and
contradictory." (Underscoring omitted.) He claimed his defense
counsel was ineffective "for not even trying to persuade the
reviewing Appellate Court(s), [sic] that what was missing from
the Tape's [sic], would be a prima facie indication of an error,
or it would have demonstrated the unfairness of Penaflor's
trial." (Underscoring omitted.) He also moved for appointment
of counsel.
On April 2, 2019, the Circuit Court construed
Penaflor's motion to be a nonconforming HRPP Rule 40 petition.
It ordered the State to respond by June 14, 2019. On April 22,

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The Honorable Peter T. Cahill presided.

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2019, Penaflor moved to add a claim that the trial judge told him
"that he is to only answer the questions that the Prosecutor ask
[sic] him."
The Circuit Court denied Penaflor's motion for
appointment of counsel without prejudice. On September 3, 2019,
the Circuit Court ordered Penaflor to "specify the portions of
the proceedings that he claims are 'missing,' inaccurately
transcribed, or just plain wrong." Penaflor was also ordered to
file a "declaration or statement describing what portions of the
record he now has, has access to, or has . . . accessed in the
past." The Court set a deadline of December 2, 2019. The Court
granted Penaflor an extension of time to May 2, 2020.
Penaflor filed his declaration on April 27, 2020. He
stated, "there are phonics, technical diffculties [sic],
no-audible responses, tape went blank, and many inaudibles. A
total of 620." He didn't describe portions of the record he has,
has access to, or had accessed. The Court construed the
declaration as a motion for reconsideration; its April 27, 2020
order denying reconsideration stated:

[Penaflor] states that there are 620 places in the record
where there are inaudibles, blanks or technical difficulties
but fails to state with ANY specificity what they are, how
they made a difference to the jury's verdict, and why he has
not provided this information in his numerous prior filings.

Penaflor appealed from the April 27, 2020 order. We
dismissed the appeal for lack of jurisdiction. Penaflor v.
State, No. CAAP-XX-XXXXXXX, 2021 WL 1392214 (Haw. App. Apr. 13,
2021) (order).
On May 4, 2021, the Circuit Court sent Penaflor a
compact disc containing the trial and sentencing transcripts.
The Court gave Penaflor until July 30, 2021 to amend his petition
to explain "the facts and evidence supporting his claims for
relief." The Court gave the State until August 31, 2021 to
respond. Penaflor requested, and received, an extension to

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September 1, 2021. The State's response was due within 30 days
of Penaflor's filing.
Penaflor filed Petitioners [sic] Supplemental Pleading
on September 10, 2021. On September 15, 2021, he moved to add
two exhibits. The Circuit Court allowed the amendment. The
State responded on October 8, 2021. On May 24, 2022, Penaflor
moved for entry of a new exhibit — a copy of a Court of Appeals
of Alaska memorandum opinion — into the record.9
The Circuit Court entered the Order Denying
Nonconforming Rule 40 Petition on August 12, 2022. The Final
Judgment for the State was entered on August 25, 2022. This
appeal followed.

DISCUSSION

Penaflor's opening brief does not comply with Rule
28(b) of the Hawai#i Rules of Appellate Procedure (HRAP). To
promote access to justice, we do not automatically foreclose
self-represented litigants from appellate review if they don't
comply with court rules. Erum v. Llego, 147 Hawai#i 368, 380-81,
465 P.3d 815, 827-28 (2020). We address what we discern to be
Penaflor's arguments.
We review the denial of an HRPP Rule 40 petition
without a hearing de novo, under the right/wrong standard. Dan
v. State, 76 Hawai#i 423, 427, 879 P.2d 528, 532 (1994).
Generally,

a hearing should be held on a Rule 40 petition for post-
conviction relief where the petition states a colorable
claim. To establish a colorable claim, the allegations of
the petition must show that if taken as true the facts
alleged would change the verdict, however, a petitioner's
conclusions need not be regarded as true.

Id. That is subject to HRPP Rule 40(a)(3), which states:

9
The Alaska decision concerned the murder of a person with the same
name as the male victim in Penaflor's case.

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Rule 40 proceedings shall not be available and relief
thereunder shall not be granted where the issues sought to
be raised have been previously ruled upon or were waived.
Except for a claim of illegal sentence, an issue is waived
if the petitioner knowingly and understandingly failed to
raise it and it could have been raised before the trial, at
the trial, on appeal, in a habeas corpus proceeding or any
other proceeding actually conducted, or in a prior
proceeding actually initiated under this rule, and the
petitioner is unable to prove the existence of extraordinary
circumstances to justify the petitioner's failure to raise
the issue. There is a rebuttable presumption that a failure
to appeal a ruling or to raise an issue is a knowing and
understanding failure.

(1) Penaflor appears to contend the Circuit Court
erred by treating his motion to reconstruct, modify, or
supplement the trial record as a nonconforming HRPP Rule 40
petition. He argues he filed his motion under HRAP Rule 10(e),
concerning correction or modification of the record. But HRAP
Rule 10(e) applies only to "proceedings in the Hawai#i appellate
courts[.]" HRAP Rule 1(a).
Penaflor states, "after completion od [sic] correcting
the Circuit Court records, then he would file a [sic] HRPP
Rule 40 Petition." HRPP Rule 40(c)(2) allowed the Circuit Court
to accept Penaflor's motion for filing and treat it as a petition
for post-conviction relief to allow review of Penaflor's
arguments, despite Penaflor citing the wrong rule. The Circuit
Court did not err by doing what was allowed under HRPP
Rule 40(c)(2).
(2) Penaflor contends the Circuit Court abused its
discretion by applying HRPP Rule 40(a)(3), (f) & (g)(2) because
he filed an HRAP Rule 10(c) & (e)(2)(A) motion to correct the
record, not an HRPP Rule 40 petition. HRAP Rule 10 does not
apply in the circuit court. The only rule that could have
afforded Penaflor the relief he sought was HRPP Rule 40.
The Circuit Court did not completely deny Penaflor
relief under HRPP Rule 40(a)(3) (issues sought to be raised have
been previously ruled upon or were waived). The court ruled:

[Penaflor] claims that the trial record is "incomplete
and not correct due to all the missing testimony given

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during a hearing outside the presence of the Jury Panel."
[Penaflor] argues that rebuttal testimony of [a police
detective and the two victims] were missing from the trial
record. A review of the entire transcript of the trial
court proceedings shows no missing testimony. [The female
victim] did not testify during rebuttal. [The detective]
and [the male victim] did testify as rebuttal witnesses with
the jury present. In reviewing the transcript, the breaks
during the trial . . . do not indicate that testimony is
missing. In viewing the entire transcript, the Court finds
no break in the testimony to indicate any missing testimony.
Thus, since there is no missing testimony, the outcome was
not affected. Furthermore, the bench conferences held
outside the presence of the jury have all been transcribed.
. . . .

[Penaflor] also claims [the female victim], at a
rebuttal hearing without the Jury present in the courtroom,
admitted that she lied to the detectives and Grand Jury.
[Penaflor]'s claim is patently frivolous and without a trace
of support in the record. A review of the record showed
that [the female victim] did not testify as a rebuttal
witness. As such, [Penaflor]'s allegation is not a
colorable claim. In any event, a discussion outside the
presence of the Jury does not mean it is not part of the
trial record. Furthermore, [Penaflor] has not shown that
his allegations, if taken as true, would have changed the
verdict.

[Penaflor] also alleges that the record is missing the
trial court Judge's admonition to him during cross-
examination to only answer the Prosecution's questions and
striking his testimony. Stricken testimony is noted in the
record. The Jury was instructed correctly not to consider
stricken testimony. [Penaflor]'s allegation shows no
colorable claim because a nonresponsive answer is
objectionable and can be stricken by the court.
. . . .

The Court has received, read, and reviewed the
Nonconforming Rule 40 Petition, supporting and opposing
memoranda, as well as the entire transcript of the trial
court proceedings. After reviewing the transcript in its
entirety, the Court finds that the few inaudible sections of
the transcript did not impact trial or empaneling of the
jury. Almost all inaudible portions occurred during jury
selection. The record does not disclose that [Penaflor] had
been deprived of his ability to challenge any prospective
juror for cause.

A review of the entire transcript does not show any
breaks in the testimony that would indicate anything is
missing. After examining the entire record of the trial
court proceedings, including comparing the court clerk's
minutes with the trial transcript, the Court concludes as a
matter of law that [Penaflor]'s allegations of missing
testimony and hearings held outside the presence of the jury
show no colorable claim. [Penaflor]'s claims are patently
frivolous and without trace of support either in the record
or from other evidence submitted by [Penaflor]. [Penaflor]

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failed to provide the court with anything that warrants the
requested relief. Thus, the Court hereby DENIES the
Petition without a hearing.

(Citations to record omitted.) Penaflor points to nothing in the
record showing the Circuit Court was wrong.
The Circuit Court also ruled:

[Penaflor]'s other allegations of perjured testimony,
compelled testimony, judicial misconduct, prosecutorial
misconduct, and ineffective assistance of counsel were
previously raised and ruled upon, or waived. Such
allegations also have nothing to do with the current issue
in his Rule 40 Petition that the transcript is inaccurate or
incomplete. There is NO evidence that the participants
engaged in a conspiracy to deprive [Penaflor] of his
constitutional right to a fair trial as he suggests.

The record on appeal and the decisions in Penaflor I,
Penaflor II, Penaflor III, Penaflor IV, and Penaflor V show that
the Circuit Court was right.
(3) Penaflor argues the Circuit Court should have
disregarded the State's responses to his filings because the
State failed to file them by June 14, 2019, contrary to the
court's April 2, 2019 order. But Penaflor moved to amend his
motion on April 22, 2019. The Court granted Penaflor leave to
amend several times. Penaflor filed his Supplemental Pleading on
September 10, 2021. The State responded on October 8, 2021,
within the 30-day deadline set by the Court's June 25, 2021 order
granting Penaflor's last motion for extension of time.
Penaflor's argument is not persuasive.
(4) Penaflor contends the Circuit Court erred by
denying his motion for appointment of counsel. We review for
abuse of discretion. See State v. Levi, 102 Hawai#i 282, 288–89,
75 P.3d 1173, 1179–80 (2003).
HRPP Rule 40(i) requires the circuit court to refer an
indigent petitioner to the public defender for representation
unless "the petitioner's claim is patently frivolous and without
trace of support either in the record or from other evidence
submitted by the petitioner." Here, the Circuit Court ruled that

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Penaflor's claims (that were not either previously ruled on or
waived) were "patently frivolous and without trace of support
either in the record or from other evidence submitted by
[Penaflor]." The Court's ruling was right. The Court did not
abuse its discretion by denying Penaflor's motion for appointment
of counsel.

CONCLUSION

The claims presented in Penaflor's nonconforming fourth
HRPP Rule 40 petition were previously ruled on, waived, or
patently frivolous and without trace of support either in the
record or from other evidence submitted by Penaflor. The Final
Judgment entered by the Circuit Court of the Second Circuit on
August 25, 2022, is affirmed.
DATED: Honolulu, Hawai#i, August 8, 2025.

On the briefs:
/s/ Karen T. Nakasone
Crandall Lee Penaflor, Chief Judge
Self-represented
Petitioner-Appellant. /s/ Keith K. Hiraoka
Associate Judge
Renee Ishikawa Delizo,
Deputy Prosecuting Attorney /s/ Sonja M.P. McCullen
County of Maui, Associate Judge
for Respondent-Appellee.

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