Karamatsu v. State

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
29-MAR-2021
07:51 AM
Dkt. 57 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

JON RIKI KARAMATSU, Petitioner-Appellant, v.
STATE OF HAWAI#I, Respondent-Appellee

APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT
(HONOLULU DIVISION)
(CIVIL NO. 1SD18-1-1)

SUMMARY DISPOSITION ORDER
(By: Ginoza, Chief Judge, Leonard and Nakasone, JJ.)

Petitioner-Appellant Jon Riki Karamatsu (Karamatsu)

appeals from the Findings of Fact, Conclusions of Law and Order

Denying Petitioner's Rule 40 Petition for Post Conviction Relief

(Order Denying Relief), filed on February 5, 2019, in the

Honolulu Division of the District Court of the First Circuit

(District Court).1/

On March 2, 2016, Karamatsu was convicted of Operating

a Vehicle Under the Influence of an Intoxicant (OVUII), in

1/
The Honorable Trish Morikawa presided.
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violation of Hawaii Revised Statutes (HRS) § 291E-61(a)(1).

State v. Karamatsu, CAAP-XX-XXXXXXX, 2017 WL 2839545, *1 (App.

June 30, 2017) (mem. op.), cert. denied, 2017 WL 6524751, *1

(Haw. Dec. 21, 2017). Karamatsu was sentenced to five days

imprisonment, 72 hours of community service, license revocation

for one year, and a $1,000 fine. Id.

On direct appeal, Karamatsu claimed there was

insufficient evidence to show he operated his truck while

impaired, the District Court failed to obtain a valid waiver of

his right to testify, the charge was defective for failing to

define the term "alcohol," there was insufficient evidence to

prove he was impaired by alcohol, and the roadblock where he was

stopped was illegal because it failed to comply with the

statutory requirement. Id. On June 30, 2017, this court

affirmed Karamatsu's conviction. Id. On December 21, 2017,

Karamatsu's application for writ of certiorari was denied by the

Hawai#i Supreme Court.

On April 20, 2018, Karamatsu filed a Rule 40 Petition

for Post Conviction Relief (Petition). Karamatsu argued that the

trial judge's off-the-record pretrial comments to his attorney

violated his Due Process rights under article I, section 5 of the

Hawai#i Constitution, and his attorney, Alen Kaneshiro

(Kaneshiro), provided ineffective assistance for failing to

object to the pretrial statements, failing to seek recusal of the

judge prior to trial, and failing to raise the judge's comments

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on direct appeal. On February 5, 2019, after a hearing on the

Petition, the District Court issued the Order Denying Relief.

Karamatsu raises a single point of error on appeal,

contending that the District Court erred in denying the Petition

because Kaneshiro was ineffective at trial and on direct appeal

because he failed to raise the judge's bias on the record. More

specifically, Karamatsu challenges Findings of Fact (FOFs) 16 and

17 and Conclusions of Law (COLs) 2, 3, 4, 5, 7, and 9, and claims

that his attorney was ineffective for failing to raise the issue

of bias, to place the trial judge's pretrial comments on the

record, to move to recuse the trial judge, and to appeal based on

these issues. On this appeal, as he did below, Karamatsu points

to Rules 2.2 and 2.4(a) of the Hawai#i Revised Code of Judicial

Conduct (CJC) to support his claim that the trial judge was

biased and should not have been influenced by fear of criticism,

and relies on State v. Sanney, 141 Hawai#i 14, 404 P.3d 280

(2017), for the proposition that a judge should impose the same

sentence after conviction as stated in the court's sentencing

inclination.

Upon careful review of the record and the briefs

submitted by the parties, and having given due consideration to

the arguments advanced and the issues raised by the parties, we

resolve Karamatsu's point of error as follows:

We address Karamatsu's arguments in the context of his

challenges to the District Court's FOFs and COLs.

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Karamatsu challenges the second paragraph of FOF 16 by

pointing to testimony that Kaneshiro did not tell Karamatsu about

the pretrial comments until after Karamatsu's appeal had begun;

thus, Karamatsu argues his attorney made decisions regarding the

case without first speaking with Karamatsu.2/ While there was

conflicting testimony, Kaneshiro testified that he informed

Karamatsu about what occurred in the pretrial conference prior to

trial, that they discussed his impression that the trial judge

would find Karamatsu guilty and impose a harsh sentence, and that

Karamatsu decided to proceed with trial. The record does not

lack substantial evidence to support the second paragraph of FOF

16, and therefore, it is not clearly erroneous.

Karamatsu argues that "[a]s to finding of fact #17 the

court found there was no bias from [the trial judge] against

KARAMATSU." However, FOF 17 does not include a finding that the

trial judge, the Honorable David W. Lo (Judge Lo) was not biased;

instead it appears to summarize Karamatsu's testimony and does

not mention bias. Therefore, FOF 17 is not clearly erroneous.

Karamatsu claims COL 5 is wrong because both he and

Kaneshiro testified that Karamatsu was not informed of Judge Lo's

pretrial comments until after trial, and thus, Karamatsu made a

2/
The second paragraph of FOF 16 states:

In regard to preparation for Petitioner's case,
Kaneshiro filed appropriate motions and was prepared for the
motions and trial. Kaneshiro and Petitioner openly
discussed the case including strengths and weaknesses,
issues and motions. Kaneshiro made no decision regarding
the case without first speaking with Petitioner.

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strategic decision to go to trial without the information

regarding the pretrial conference, and Kaneshiro did not

communicate every aspect of the case. As discussed above,

Kaneshiro testified that Karamatsu was informed about what

happened in the pretrial conference prior to trial. COL No. 5,

which includes that "Kaneshiro was not ineffective for failing to

raise the issue [of bias] as [Karamatsu] and Kaneshiro discussed

Kaneshiro's concerns prior to trial and they made a strategic

decision to proceed to trial before Judge Lo," is not wrong.

Karamatsu challenges the conclusion that Judge Lo was

not biased, which is stated in COLs 2, 3, 4, and 7. Citing CJC

Rule 2.2, commentary to the rule, and the trial judge's comments,

Karamatsu argues Judge Lo was not impartial because he did not

want to face public criticism for being seen as imposing too

lenient a sentence, similar to public criticism of another judge

the previous week, Judge Lo told Kaneshiro to consider a plea,

and Judge Lo was not open-minded with respect to the factual

evidence in the case.

CJC Rule 2.2 states: "A judge shall uphold and apply

the law and shall perform all the duties of judicial office

fairly and impartially." The Commentary elaborates: "To ensure

impartiality and fairness to all parties, a judge must be

objective and open-minded." Comment [1] to CJC Rule 2.2. The

CJC defines "impartial," "impartiality," and "impartially" as

"absence of bias or prejudice in favor of, or against, particular

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parties or classes of parties, as well as maintenance of an open

mind in considering issues that come or may come before a judge."

And, the supreme court has held:
[W]here judicial misconduct or bias deprives a party
of the impartiality to which he or she is entitled, a new
trial may be required. However, reversal on the grounds of
judicial bias or misconduct is warranted only upon a showing
that the trial was unfair. . . . Unfairness, in turn,
requires a clear and precise demonstration of prejudice.
See Mahoney v. Mitchell, 4 Haw. App. 410, 418, 668 P.2d 35,
40-41 (1983) ("[h]ow great a departure from fairness amounts
to reversible error is determined by the answer to the
fundamental inquiry whether or not what was done was
prejudicial to the appellant") (citation omitted); see also
Peters [v. Jamieson ], 48 Haw. [247], 264, 397 P.2d [575],
586 [ (1964) ] ("[p]rejudice is the ultimate fact" (citation
omitted)).

State v. Hauge, 103 Hawai#i 38, 48, 79 P.3d 131, 141 (2003) (some

citations omitted).

Karamatsu does not challenge FOF 7, which found that:

Judge Lo told Kaneshiro that if [Karamatsu] pled and took
responsibility for his actions, Judge Lo would sentence
Karamatsu to a seven hundred fifty dollar ($750.00) fine and
no community service work. Judge Lo further stated that he
hesitated about being too lenient because he did not want to
end up like [another judge] from the prior week.

With respect to his sentencing by Judge Lo, Karamatsu

points to Sanney, 141 Hawai#i at 19-20, 404 P.3d at 285-86

(citing People v. Clancey, 56 Cal. 4th 562, 155 Cal. Rptr.3d 485,

299 P.3d 131 (2013)), in which the supreme court held that a plea

bargain is an agreement negotiated by the State with a defendant

and approved by the court whereby a defendant pleads guilty in

order to obtain a reciprocal benefit. The supreme court

emphasized that a trial court has no authority to substitute

itself as the representative of the State in the negotiation

process and, under the guise of plea bargaining, to agree to a

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disposition of the case over prosecutorial objection. Id. at 20,

404 P.3d at 286. "[W]here a defendant pleads guilty to all

charges so all that remains is the pronouncement of judgment and

sentencing, there is no requirement that the [State] consent to a

guilty plea." Id. "In that circumstance, the court may indicate

what sentence it will impose if a given set of facts is

confirmed, irrespective of whether guilt is adjudicated at trial

or admitted by plea." Id.

Here, Judge Lo provided a sentencing inclination by

stating what sentence would be imposed if Karamatsu pled guilty.

No plea negotiations occurred; rather, Judge Lo considered

Karamatsu's existing record when he stated he knew about

Karamatsu's prior conviction. Thus, the trial judge did not

consider Karamatsu's exercise of his right to a trial as an

influential factor in determining the sentencing inclination, and

there was no bargaining over what sentence would be imposed. See

id. at 21, 404 P.3d at 287.

Karamatsu has not shown his trial was unfair by relying

only upon the sentencing inclination. The sentencing inclination

relates only to the sentence the District Court would impose

whether Karamatsu pled guilty or was found guilty after trial and

did not affect the trial. "An indicated sentence, properly

understood, is not an attempt to induce a plea by offering the

defendant a more lenient sentence than what could be obtained

through plea negotiations with the prosecuting authority."

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Clancey, 56 Cal. 4th at 575, 299 P.3d at 139. Therefore, merely

stating a sentencing inclination is not an order or advice for a

defendant to take a plea instead of proceeding with trial.

Judge Lo testified at the hearing on the Petition that

he did not know about the merits of the case when he stated his

inclination, and that Kaneshiro and the deputy prosecuting

attorney did not say anything about the merits of the case. No

evidence to the contrary is in the record. There is no evidence

in the record that the trial judge was not open-minded about the

factual evidence of the case. As discussed below, an error by a

judge in sentencing a defendant to a harsher sentence for

exercising the right to a trial is a violation of the right to

remain silent and due process, but it is not judicial bias. We

conclude that Karamatsu failed to demonstrate that Judge Lo was

biased, which would have required recusal from the trial, and

Kaneshiro was not ineffective for failing to move for Judge Lo's

recusal on the grounds of bias. Therefore, COLs 2, 3, 4, 5, and

7 are not wrong with respect to concluding that Judge Lo was not

biased and that Karamatsu's counsel was not ineffective for

failing to move to recuse Judge Lo.

Karamatsu further challenges COL 7, which found his

counsel was not ineffective for failing to raise the bias issue.

Karamatsu argues that Kaneshiro was ineffective by failing to put

Judge Lo's pretrial comments on the record, which is not squarely

addressed by COL 7. However, no other conclusion of law

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specifically addresses whether Kaneshiro was ineffective for

failing to place the trial judge's pretrial comments on the

record, including the trial judge's sentencing inclination.

Karamatsu claims that if Kaneshiro had objected to the sentence

after trial, based on the difference in the sentencing

inclination, his appeal would have resulted in a new trial or

resentencing before a different judge.

It has been held that "the sentencing inclination must

be the same punishment the court would be prepared to impose if

the defendant were convicted after trial." Sanney, 141 Hawai#i

at 21, 404 P.3d at 287. However, "[a] sentencing inclination is

not binding; it is merely a trial court's statement of the

sentence it would be inclined to impose for the offense(s)

charged, should the defendant be convicted after trial." Id. A

sentencing court may consider a defendant's lack of remorse in

assessing the likelihood of successful rehabilitation, but may

not infer lack of remorse from a defendant's refusal to admit

guilt or consider a defendant's exercise of his constitutional

right to trial as an influential factor in determining the

appropriate sentence. State v. Kamana#o, 103 Hawai#i 315, 321, 82

P.3d 401, 407 (2003). Punishing a defendant for refusal to admit

guilt is a violation of due process, the right to remain silent,

also referred to as the privilege against self-incrimination, and

to appeal. Id. at 320-21, 82 P.3d at 406-07. The privilege

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against self-incrimination applies with equal force during

sentencing. Id.
[W]hether a sentencing court had erroneously relied on a
defendant’s refusal to admit guilt in imposing a sentence:

(1) the defendant's maintenance of innocence after
conviction, (2) the judge's attempt to get the
defendant to admit guilt, and (3) the appearance
that[,] had the defendant affirmatively admitted
guilt, his sentence would not have been so severe.
. . . [I]f there is an indication of the three
factors, then the sentence was likely to have been
improperly influenced by the defendant's persistence
in his innocence. If, however, the record shows that
the court did no more than address the factor of
remorsefulness as it bore upon defendant's
rehabilitation, then the court's reference to a
defendant's persistent claim of innocence will not
amount to error requiring reversal.

Id. at 323, 82 P.3d at 409 (citation omitted).

Here, Judge Lo testified that during allocution,

Karamatsu did not take responsibility because Karamatsu explained

what would have happened if he had taken the stand. Thus,

Karamatsu maintained his innocence after conviction. Judge Lo

noted that Karamatsu was a trained deputy prosecutor who handled

OVUII cases, was familiar with the field sobriety tests, should

have known better, and stated at trial, "I'm sure you've had the

opportunity to review your own case. And yet I see no acceptance

of remorse, regret, or accepting responsibility up until today."

However, he did not coerce Karamatsu into admitting guilt or

expressly warn him that he would consider the admission of guilt,

or lack therefore, in determining the sentence. Id. at 323, 82

P.3d at 409-10.

Nevertheless, Karamatsu's sentence would not have been

so severe had he admitted guilt and not proceeded with trial.

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The trial judge stated two reasons for imposing the sentence

given after trial, i.e., that Karamatsu did not accept

responsibility earlier and Karamatsu had not learned from his

prior conviction. During sentencing, the trial judge referenced

Karamatsu's prior conviction by stating "obviously you didn't

learn from that prior experience. You're in law enforcement, or

was. You screened cases. You should know better. So now your

attorney is asking for no jail. But what you got before didn't

correct your behavior." However, the trial judge plainly knew

about Karamatsu's prior conviction when he made the sentencing

inclination, but nevertheless increased the sentence after trial.

Thus, it appears that the increase in the sentence from the

sentencing inclination is not solely attributable to the failure

to learn from a prior conviction, but also from Karamatsu not

taking responsibility earlier by going to trial. Therefore, we

conclude that Karamatsu's due process rights and right against

self-incrimination were violated. Id. at 324, 82 P.3d at 410.

Relatedly, after Karamatsu was sentenced, Kaneshiro

provided ineffective assistance as trial counsel for failing to

put the sentencing inclination on the record. "In any claim of

ineffective assistance of trial counsel, the burden is upon the

defendant to demonstrate that, in light of all the circumstances,

counsel's performance was not objectively reasonable -- i.e.,

within the range of competence demanded of attorneys in criminal

cases." Briones v. State, 74 Haw. 442, 462, 848 P.2d 966, 976

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(1993) (citation and internal quotation marks omitted). The

defendant must show specific errors or omissions reflecting

counsel's lack of skill, judgment, or diligence, and that these

errors or omissions resulted in either the withdrawal or

substantial impairment of a potentially meritorious defense. Id.

It is clear that the difference between the sentencing

inclination and the sentence imposed after trial was based upon

Karamatsu's decision to proceed with trial. Without placing the

sentencing inclination on the record, Karamatsu could not

demonstrate his sentence would not have been so severe. Such an

error demonstrated a specific error in judgment that

substantially impaired a potentially meritorious defense

regarding sentencing.

Kaneshiro also provided ineffective assistance as

appellate counsel. If an appealable issue is omitted as a result

of the performance of counsel whose competence fell below that

required of attorneys in criminal cases, then appellant's counsel

is constitutionally ineffective. Id. at 467, 848 P.2d at 978.

An appealable issue is an error or omission by counsel, judge, or

jury resulting in the withdrawal or substantial impairment of a

potentially meritorious defense. Id. at 465-66, 848 P.2d at 977.

Kaneshiro represented Karamatsu at trial and on appeal.

Kaneshiro knew about the sentencing error, knew he failed to put

the sentencing inclination on the record, and did not raise the

issue on appeal, resulting in a substantial impairment of a

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potentially meritorious defense regarding sentencing. Therefore,

COL 7 is wrong to the extent it generally concluded Kaneshiro was

not ineffective, although it was not wrong due to a failure to

raise the bias issue.

Karamatsu also challenges COL 9, in which the District

Court concluded that Karamatsu failed to prove the existence of

any extraordinary circumstances that justified his failure to

raise the claim that Kaneshiro was ineffective for failing to

make a record of Judge Lo's comments or to request Judge Lo

recuse himself. The FOFs do not provide facts directly related

to COL 9. It appears to be based on FOF 2, which found that

Kaneshiro was both trial and appellate counsel, and the State's

argument that, because Karamatsu knew about the pretrial comments

prior to trial and chose not to raise the issue and proceed to

trial, Karamatsu waived his right to effective assistance of

counsel by retaining Kaneshiro for the appeal.

"It is well settled that the constitutional right to

the assistance of counsel in a criminal case is satisfied only

when such assistance is effective." Maddox v. State, 141 Hawai#i

196, 202, 407 P.3d 152, 158 (2017) (internal brackets, citation

and quotation marks omitted). A defendant may waive the right to

effective assistance of counsel, but it must be knowingly and

intelligently waived. See State v. Richie, 88 Hawai#i 19, 42,

960 P.2d 1227, 1250 (1998). However, "[a] waiver is the knowing,

intelligent, and voluntary relinquishment of a known right."

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State v. Barros, 105 Hawai#i 160, 168, 95 P.3d 14, 22 (App. 2004)

(citation omitted), cert. denied, 105 Hawai#i 196, 95 P.3d 627

(2004). "A waiver is knowing and intelligent when it is made

with full awareness of both the nature of the right being

abandoned and the consequences of the decision to abandon it."

State v. Domut, 146 Hawai#i 183, 193, 457 P.3d 822, 832 (2020).

Thus, to determine whether a waiver was voluntary and

intelligently undertaken, this court will look to the totality of

facts and circumstances of each particular case. Id. (citation

omitted). Waiver of the right to counsel will not be presumed

from a silent record. State v. Dickson, 4 Haw. App. 614, 619,

673 P.2d 1036, 1041 (1983) (citation omitted). "Where petitioner

has been represented by the same counsel both at trial and on

direct appeal, no waiver of the issue of trial counsel's

performance occurs because no realistic opportunity existed to

raise the issue on direct appeal." Briones, 74 Haw. at 459, 848

P.2d at 975.

During closing argument on the Petition, the State

argued it was a tactical decision made by Karamatsu and Kaneshiro

not to raise the bias issue prior to trial and on appeal. The

State contended that they chose to waive the issue of bias before

trial and on appeal; therefore, counsel was not ineffective.

However, even if Karamatsu waived the bias issue because he knew

about the pretrial comments prior to trial, the issue of

different sentences between the sentencing inclination and the

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sentence after trial did not arise until pronouncement of the

sentence. Thus, Karamatsu could not have waived a sentencing

issue by proceeding to trial.

The record indicates that Kaneshiro told Karamatsu that

he could not raise anything on appeal that had no basis in the

record, and since he had not placed the pretrial comments on the

record, he could not raise it on appeal. The record does not

support a conclusion that Karamatsu knowingly and voluntarily

waived his right to effective assistance of appellate counsel

simply by retaining the same counsel for the appeal and having

discussions about the case. It would be contrary to the

presumption in Briones, which states there is no realistic

opportunity to raise the issue of ineffective assistance of trial

counsel when counsel is both trial and appellate counsel. The

record does not indicate that Karamatsu knowingly and voluntarily

waived the sentencing issue on appeal because his counsel

explained to him that it could not be raised, as opposed to

counsel saying that it could be raised, but Karamatsu decided or

directed counsel not to raise it with the full awareness of the

nature of the issue being abandoned and the consequences of the

decision to abandon it. Therefore, COL 9 is wrong to conclude

that Karamatsu's claims were waived.

No FOF or COL addressed Karamatsu's claim that Judge Lo

violated CJC Rule 2.4(a) when he expressed fear he would face

public criticism for being too lenient. However, we decline to

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address this claim because, even assuming there was a violation

of CJC Rule 2.4(a) with respect to sentencing, we have already

determined that Karamatsu is entitled to resentencing, as stated

above.

For these reasons, the District Court's February 5,

2019 Order Denying Relief is affirmed in part and vacated in

part; this case is remanded to the District Court for

resentencing.

DATED: Honolulu, Hawai#i, March 29, 2021.

On the briefs:
/s/ Lisa M. Ginoza
Jonathan Burge, Chief Judge
for Petitioner-Appellant.
/s/ Katherine G. Leonard
Albert Cook, Associate Judge
Deputy Attorney General,
for Respondent-Appellee. /s/ Karen T. Nakasone
Associate Judge

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