Suitt v. State

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
03-SEP-2024
07:59 AM
Dkt. 188 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

BRYAN SUITT, Petitioner-Appellant,
v.
STATE OF HAWAI#I, Respondent-Appellee

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CASE NO. 1PR161000011)

SUMMARY DISPOSITION ORDER
(By: Leonard, Acting Chief Judge and Hiraoka, J.
and DeWeese, Third Circuit Court J. (in place of Wadsworth,
Nakasone, McCullen and Guidry, JJ., recused))

Bryan Suitt appeals from the (1) Amended Findings of
Fact, Conclusions of Law and Order Granting in Part and Denying
in Part Petition to Vacate, Set Aside, or Correct Judgment or to
Release Petitioner from Custody entered on April 13, 2020; and
(2) Order Dismissing Remaining Grounds of Petition to Vacate, Set
Aside, or Correct Judgment or to Release Petitioner from Custody,
and Vacating Hearing Set for 5/26/20 entered on May 20, 2020, by
the Circuit Court of the First Circuit (the Rule 40 Court).1 We
affirm.
On November 26, 2013, Suitt was indicted for Murder in
the Second Degree in violation of Hawaii Revised Statutes (HRS)
§§ 707-701.5 & 706-656. He pleaded not guilty. On August 24,

1
The Honorable Karen T. Nakasone presided.
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

2015, he changed his plea to no-contest. On November 9, 2015, he
was sentenced to life in prison with the possibility of parole.2
He did not appeal.
In 2016 the Hawaii Paroling Authority (HPA) set Suitt's
minimum term at 45 years. On May 25, 2016, Suitt filed a Hawai#i
Rules of Penal Procedure (HRPP) Rule 40 petition for post-
conviction relief. What followed is described in Suitt v. State,
152 Hawai#i 60, 520 P.3d 258 (2022):

Suitt updated his handwritten petition multiple times
between 2016 and 2019. In its final form, the petition
claimed fifty-five grounds for relief. These claims
included ineffective assistance of counsel as well as due
process violations relating to the HPA minimum term hearing.
. . . [T]he circuit court found that while most of
Suitt's claims were "patently frivolous" under HRPP
Rule 40(g)(2), the claims relating to his minimum term
hearing were colorable under Lewi v. State, 145 Hawai#i 333,
348-49, 452 P.3d 330, 345-46 (2019) . . . . The court then
scheduled an evidentiary hearing on these claims for
April 20, 2020. It also appointed counsel for Suitt.

On April 13, 2020, the court amended its previous
order to address additional claims for relief added by Suitt
— these were denied. The amended order retained a footnote
from the previous order mentioning that if the HPA held a
new minimum term hearing, Suitt's remaining claims would be
mooted.
. . . .

On May 14, 2020, the HPA responded to the
April 13 Order. The HPA represented that it had
scheduled a new minimum term hearing for Suitt, which
mooted his remaining claims. On May 20, 2020, the
circuit court issued a new order. It dismissed the
remaining claims in the petition as moot and vacated
the scheduled evidentiary hearing.

Id. at 63-64, 520 P.3d at 261-62 (footnotes omitted).
Suitt appealed. We dismissed the appeal as untimely.
Suitt v. State, No. CAAP-XX-XXXXXXX, 2022 WL 1747768, at *2 (Haw.
App. May 31, 2022), cert. granted, No. SCWC-XX-XXXXXXX, 2022 WL
4103326 (Haw. Sept. 8, 2022), vacated and remanded, 152 Hawai#i
60, 520 P.3d 258 (2022). The supreme court agreed that Suitt's
appeal was untimely, but expanded the remedy for untimely appeals

2
The Honorable Karen S.S. Ahn presided.

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due to ineffective assistance of counsel to include appeals from
denials of HRPP Rule 40 petitions. Suitt, 152 Hawai#i at 65-66,
520 P.3d at 263-64. The supreme court remanded for us to address
the merits of Suitt's appeal.
On remand, we granted the State's motion to dismiss
Suitt's appeal based on ground 54 — which challenged the HPA's
2016 minimum term decision — on mootness grounds. This applies
to all of Suitt's challenges to the HPA's 2016 proceedings in
this appeal, for the reasons explained in our April 23, 2024
order dismissing Suitt's appeal from the denial of ground 54.
For the grounds relating to his criminal case, Suitt
raises five points of error. He contends the Rule 40 Court erred
by concluding that the following claims were waived or without
merit, patently frivolous, and without a trace of support in the
record: (1) his change of plea was not entered knowingly,
voluntarily, or intelligently (grounds 13, 15, 29, and 40 of his
petition); (2) he did not receive a hearing device despite his
near-total hearing loss (ground 10); (3) the sentencing court
improperly considered a presentence interview and a report of an
HRS Chapter 704 examination conducted when he was not assisted by
counsel (grounds 16 and 17); and (4) he was denied effective
assistance of counsel (grounds 1, 22, 41, 43, and 45). He also
contends: (5) the circuit court erred by failing to rule on
grounds 54 and 55 of his petition.
We review the denial without a hearing of an HRPP
Rule 40 petition de novo, under the right/wrong standard of
review. Stanley v. State, 76 Hawai#i 446, 448, 879 P.2d 551, 553
(1994). An HRPP Rule 40 petition should be heard if it states a
colorable claim. Id. at 449, 879 P.2d at 554. It states a
colorable claim if the facts alleged, if true, would change the
result in the trial court. Id. It may be denied without a
hearing "if the petitioner's claim is patently frivolous and is
without trace of support either in the record or from other
evidence submitted by the petitioner." Id. at 449, 879 P.2d at
554 (quoting HRPP Rule 40(f)).

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(1) Suitt argues he raised a colorable claim that his
no-contest plea was not entered knowingly, voluntarily, or
intelligently because of his hearing deficit and medications.
The change-of-plea hearing transcript shows that Suitt was
"fitted with a hearing device." The circuit court asked Suitt,
"are you able to hear clearly everything that I am saying and
everything that the lawyers are saying?"
Suitt responded, "Yes."
The court asked, "Is your mind clear right now?"
Suitt responded, "Yes, it is." He told the court he
had taken his regular medication that morning for attention
deficit disorder and depression. He responded to the trial
court's questions by confirming that neither his medication nor
his underlying conditions were interfering with his "ability to
understand exactly what we're doing here, what people are
saying[,]" "to think clearly[,]" or "to make some very important
decisions[.]" There is nothing in the change-of-plea hearing
record to indicate Suitt could not hear or understand the
proceedings.
Suitt also argues the change-of-plea form he signed was
defective because the boxes advising him of potential immigration
consequences were not checked, and the trial court's immigration
colloquy "was perfunctory at best." But he acknowledges that the
trial court administered the advisement required under HRPP
Rule 11(d) and HRS § 802E-2. The transcript of proceedings bears
this out. Suitt said he understood the immigration advisement.
The record shows Suitt was born in California. If there was
error in not checking the immigration advisory boxes on the no-
contest plea form, it was harmless. State v. Martin, 102 Hawai#i
273, 281, 75 P.3d 724, 732 (App. 2003).
(2) Suitt argues he raised a colorable claim he was
not "present" at various proceedings as required by HRPP

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Rule 43(a)3 because he was not provided with hearing aids. This
non-jurisdictional claim is barred as to proceedings held before
the change-of-plea hearing, because Suitt's no-contest plea was
valid. State v. Hernandez, 143 Hawai#i 501, 508, 431 P.3d 1274,
1281 (2018) (noting that defendants who validly plead no-contest
are generally barred from raising nonjurisdictional claims
related to pretrial proceedings).
During Suitt's sentencing hearing, the trial court
stated it "doesn't, you know, have a lot of discretion. This
[sentence for Murder in the Second Degree] is mandatory."4 The
court asked Suitt if he had anything he wished to say. Suitt
responded, "No, Your Honor." There is nothing in the sentencing
hearing record to indicate Suitt could not hear or understand the
proceedings. Suitt's ability to hear was not implicated by the
proceeding because the sentencing court had no discretion to vary
the statutory mandatory minimum sentence; nothing Suitt could
have done or said could have changed his sentence.
(3) Suitt argues he raised a colorable claim that the
sentencing court improperly considered a presentence interview
and reports of HRS Chapter 704 mental examinations conducted when
he was not assisted by counsel. Suitt pleaded no-contest to
Murder in the Second Degree. The circuit court was required to,
and did, impose a sentence of life in prison with the possibility
of parole. HRS § 706-656(2) (2014).
(4) Suitt argues he raised a colorable claim he
received ineffective assistance of counsel because his former
attorney submitted two declarations responding to allegations of
ineffective assistance of counsel made in his HRPP Rule 40
petition. This argument lacks merit. See Hawai#i Rules of

3
HRPP Rule 43(a) requires the defendant's presence at arraignment,
time of plea, evidentiary pretrial hearings, every stage of trial including
impaneling of the jury, return of the verdict, and sentencing, except as
otherwise provided by the rule.
4
The mandatory minimum sentence for Murder in the Second Degree is
life in prison with the possibility of parole. HRS § 706-656(2) (2014).

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Professional Conduct Rule 1.6(b)(4) ("A lawyer may reveal
information relating to the representation of a client to the
extent the lawyer reasonably believes necessary . . . to respond
to allegations in any proceeding concerning the lawyer's
representation of the client[.]").
Suitt also argues his attorney ineffectively failed to
advise him of his right to appeal. During his change-of-plea
hearing the circuit court advised him, "If you plead no contest,
you give up your right to appeal what has occurred so far in this
case." When Suitt signed the change-of-plea form he
acknowledged, "I also give up the right to appeal anything that
has happened in this case to date." Having validly pleaded no-
contest, Suitt had no basis for a direct appeal. Hernandez, 143
Hawai#i at 508, 431 P.3d at 1281.
Suitt argues his attorney ineffectively failed to
advise him about entering a conditional plea under HRPP
Rule 11(a)(2). The rule provides:

With the approval of the court and the consent of the State,
a defendant may enter a conditional plea of guilty or no
contest, reserving in writing the right, on appeal from the
judgment, to seek review of the adverse determination of any
specific pretrial motion. A defendant who prevails on
appeal shall be allowed to withdraw the plea.

There is nothing in the record showing that the State would have
consented to a conditional plea. Suitt didn't explain to the
Rule 40 Court which pretrial motion rulings he wanted to appeal,
or why an appeal would probably have succeeded.
Suitt argues his attorney ineffectively failed to
advise him about withdrawing his plea before he was sentenced.
Suitt didn't explain to the Rule 40 Court what "plausible and
legitimate grounds" he had to withdraw a valid no-contest plea.
State v. Pedro, 149 Hawai#i 256, 270, 488 P.3d 1235, 1249 (2021).
Nor did he show "changed circumstances or new information [to]
justify withdrawal of the plea." Id. at 271, 488 P.3d at 1250.
Suitt argues his attorney ineffectively failed to
review discovery and the presentence investigation report with

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him. His arguments about the presentence investigation report go
only to the 2016 HPA minimum term hearing, which is moot.
Neither Suitt's petition nor his opening brief identify any
discovery Suitt did not review.
Suitt argues his attorney ineffectively failed to
investigate "potential alibi evidence" showing he "was not in
Hawaii at the time of the alleged crime." The indictment alleged
that the crime occurred between August 17 and September 16, 2013.
Suitt argued to the Rule 40 Court that airline records show his
"initial arrival Honolulu, Hawaii [was] on 9/8/13. Therefore,
[he] was not in Hawaii before 9/8/13, but was on the mainland,
based upon these facts of record." Suitt's attorney didn't need
airline records; if Suitt wasn't in Hawai#i before September 8,
2013, Suitt should have told his attorney. But the airline
records actually showed that Suitt traveled from Honolulu to San
Diego on September 7, 2013, and returned to Honolulu on
September 8, 2013. Parts of the victim's body were discovered on
September 15, 2013. The rest of it was found on September 16,
2013. The medical examiner estimated the remains had been there
since September 12, 2013, based on insect activity on the torso.
Suitt's alibi argument is patently frivolous.
(5) Suitt argues the Rule 40 Court erred by failing to
rule on grounds 54 and 55 of his petition. Suitt first asserted
those grounds on April 9, 2020 — four days before the court
entered the April 13, 2020 order on Suitt's petition and multiple
previous amendments. Suitt did not obtain leave to assert
grounds 54 or 55, as required under HRPP Rule 40(e). Even if he
had, ground 54 pertained to the 2016 HPA minimum term hearing,
which is moot. Ground 55 claimed that the "indictment was
improperly amended to include 'dismemberment[.]'" The argument
is without a trace of support in the record because the
indictment was never amended.
For these reasons, the "Amended Findings of Fact,
Conclusions of Law and Order Granting in Part and Denying in Part
Petition to Vacate, Set Aside, or Correct Judgment or to Release

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Petitioner from Custody" entered on April 13, 2020, and the
"Order Dismissing Remaining Grounds of Petition to Vacate, Set
Aside, or Correct Judgment or to Release Petitioner from Custody,
and Vacating Hearing Set for 5/26/20" entered on May 20, 2020,
are affirmed.
DATED: Honolulu, Hawai#i, September 3, 2024.

On the briefs:
/s/ Katherine G. Leonard
Kai Lawrence, Acting Chief Judge
for Petitioner-Appellant.
/s/ Keith K. Hiraoka
Laura K. Maeshiro, Associate Judge
Craig Y. Iha,
Deputy Attorneys General, /s/ Wendy M. DeWeese
State of Hawai#i, Circuit Court Judge
for Respondent-Appellee
Hawai#i Paroling Authority,
State of Hawai#i.

Donn Fudo,
Deputy Prosecuting Attorney,
City and County of Honolulu,
for Respondent-Appellee
State of Hawai#i.

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