Thomas v. State

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
29-APR-2021
07:51 AM
Dkt. 67 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I

DARRYL THOMAS, Petitioner-Appellant, v.
STATE OF HAWAI#I, Respondent-Appellee

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(S.P.P. NO. 17-1-0019; CRIMINAL NO. 1PC141001031)

SUMMARY DISPOSITION ORDER
(By: Leonard, Presiding Judge, Hiraoka and Wadsworth, JJ.)

Petitioner-Appellant Darryl Thomas (Thomas) appeals pro

se from the Order Summarily Denying [Hawai#i Rules of Penal

Procedure (HRPP)] Rule 40 Petition filed by Petitioner Darryl

Thomas (Order Denying Relief) entered on May 29, 2019, in the

First Circuit Court, State of Hawai#i (Circuit Court), in S.P.P.

No. 17-1-0019.1/ In the Order Denying Relief, the Circuit Court

denied Thomas's Petition to Vacate, Set Aside, or Correct

Judgment or to Release Petitioner from Custody (Petition), which

was filed pursuant to HRPP Rule 40 on August 29, 2017.

Thomas states no discernible points of error on appeal

but appears to challenge the sentence entered against him by the

1/
The Honorable Fa#auuga To#oto#o presided.
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Circuit Court in the underlying criminal case, 1PC141001031

(Criminal Case), arguing that the pre-sentence report (PSI)

contains inaccuracies and that he was not provided an adequate

opportunity to address them at sentencing.

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 Thomas's appeal as follows:

On June 13, 2017, Thomas appealed from his conviction
in the Criminal Case in CAAP-XX-XXXXXXX. Thomas argued in his

reply brief, inter alia, that the PSI contains inaccuracies. On

January 16, 2019, this court issued a Summary Disposition Order

affirming Thomas's conviction, and in a footnote, deemed the

issues raised in the reply brief waived, noting that appealable

issues must be raised in an opening brief. State v. Thomas,

CAAP-17-10000471, 2019 WL 211069, *1, n.3 (Haw. App. Jan. 16,

2019) (SDO). In the same footnote, we stated that "[t]his waiver

is not absolute and is subject to the court's inherent authority

to address plain error and without prejudice to a[n HRPP Rule 40]

petition for post-conviction relief in conjunction with claims of

ineffective assistance from trial and/or appellate counsel." Id.

(citing Briones v. State, 74 Haw. 442, 459, 848 P.2d 966, 975

(1993)) (emphases added). However, because this appeal does not

argue a claim of ineffective assistance of counsel, or raise a

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

claim of illegal sentence,2/ the issue is deemed waived. HRPP

Rule 40(a)(3).

Having raised no other issues on appeal, Thomas

presents no basis for this court to find that he raised a

colorable claim in his Petition. See Dan v. State, 76 Hawai#i

423, 427, 879 P.2d 528, 532 (1994). Thus, the Circuit Court did

not err in denying the Petition without a hearing. See Barnett

v. State, 91 Hawai#i 20, 26, 979 P.2d 1046, 1052 (1999).

For these reasons, the Circuit Court's May 29, 2019
Order Denying Relief is affirmed.

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

On the briefs:
/s/ Katherine G. Leonard
Darryl Thomas, Presiding Judge
Petitioner-Appellant, Pro Se.
/s/ Keith K. Hiraoka
Stephen K. Tsushima, Associate Judge
Deputy Prosecuting Attorney,
City and County of Honolulu, /s/ Clyde J. Wadsworth
for Respondent-Appellee. Associate Judge

2/
A sentence is illegal if the sentencing court lacks authority to
impose it, or it is imposed in violation of the law. See, e.g., Stanley v.
State, 148 Hawai#i 489, 502, 479 P.3d 107, 120 (2021); Flubacher v. State, 142
Hawai#i 109, 110-11, 414 P.3d 161, 162-63 (2018); Moananu v. State,
CAAP-XX-XXXXXXX, 2020 WL 3034708, *6 (Haw. App. June 5, 2020) (mem.). Upon
review of the record in the underlying Criminal Case, including the transcript
of the May 24, 2017 sentencing hearing, we cannot conclude that Thomas was
denied an adequate opportunity to address the trial court at sentencing.

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