Swaim v. State

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
17-JUN-2022
08:12 AM
Dkt. 50 MO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

JOHNATHEN SWAIM, also known as Jonathen Swaim and
Jonathan Swaim, Petitioner-Appellant, v.
STATE OF HAWAI#I, Respondent-Appellee

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CASE NO. 1PR171000013; 1PC101001235)

MEMORANDUM OPINION
(By: Ginoza, C.J., and Wadsworth and Nakasone, JJ.)

Petitioner-Appellant Johnathen Swaim, also known as
Jonathen Swaim and Jonathan Swaim (Swaim), appeals from the
February 21, 2021 "Findings of Fact, Conclusions of Law, and
Order Denying Petition to Vacate, Set Aside or Correct Judgment
Pursuant to Rule 40 of the Hawai#i Rules of Penal Procedure,
[(HRPP)] Filed July 12, 2017" (Order Denying Rule 40 Petition),
entered in the Circuit Court of the First Circuit (Circuit
Court).1/ For the reasons explained below, we affirm the Order
Denying Rule 40 Petition.

I. Background

On October 7, 2010, after pleading no contest, Swaim
was adjudged guilty of Burglary in the First Degree (Burglary
One), in violation of Hawaii Revised Statutes (HRS)
§ 708-810(1)(c) (1993). As further explained below, Swaim was
sentenced on January 18, 2011, to five years probation, with one

1/
The Honorable Matthew J. Viola presided.
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

year incarceration as a special condition, subject to early
release to participate in substance abuse treatment. Pursuant to
an Order of Resentencing; Revocation of Probation, entered on
February 7, 2013, Swaim's probation was revoked and he was
resentenced to, inter alia, a ten-year term of incarceration on
the Burglary One conviction.
On July 12, 2017, Swaim filed a "Petition to Vacate,
Set Aside, or Correct Judgment Pursuant to Rule 40 of the [HRPP]"
(Petition), initiating case no. 1PR171000013. On June 27, 2018,
the Circuit Court entered an order denying the Petition without a
hearing (June 27, 2018 Order).2/ Swaim appealed from the June 27,
2018 Order, initiating appellate case number CAAP-XX-XXXXXXX.
In a summary disposition order (SDO), this court
affirmed in part and vacated in part the June 27, 2018 Order.
Swaim v. State (Swaim I), No. CAAP-XX-XXXXXXX, 2020 WL 1698792,
at *3 (Haw. App. Apr. 7, 2020). We vacated that part of the
order denying without a hearing Swaim's claim that his counsel
was ineffective for advising him to plead no contest, and
affirmed the order in all other respects. Id. at *2-3. We
remanded the case for an evidentiary hearing on Swaim's
ineffective-assistance-of-counsel claim, which we construed to
encompass Swaim's contentions that: (1) "[Swaim] received
ineffective assistance of counsel because, had his counsel not
encouraged him to change his plea to no contest, the charge would
have been dismissed or he would have been found not guilty"; and
(2) "[Swaim's] plea was coerced and he was forced to change his
plea by counsel[.]" Id. at *1.
On remand, the Circuit Court held an evidentiary
hearing on Swaim's claims on January 15, 2021. Swaim and his
former trial counsel, Deputy Public Defender Edward K. Harada
(Harada), testified. The court found Harada's testimony to be
credible. Several exhibits were received into evidence.
On February 21, 2021, the Circuit Court issued the
Order Denying Rule 40 Petition. The following findings of fact
(FOFs), among others, are unchallenged on appeal and are thus

2/
The Honorable Edwin C. Nacino presided.

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binding on the parties and this court, see State v. Rodrigues,
145 Hawai#i 487, 494, 454 P.3d 428, 435 (2019):
1. On August 1, 2010, . . . Swaim . . . was
arrested for the offense of Burglary in the First Degree.
2. On August 3, 2010, [Respondent-Appellee] State
of Hawai#i [(State)] filed a Felony Information against
[Swaim] for the class B felony offense of Burglary in the
First Degree under Case No. 1PC101001235.

3. On August 9, 2010, [Swaim] was in custody and
appeared at an arraignment and plea hearing. He entered a
plea of "not guilty" to Burglary in the First Degree charge.
4. At the time [Swaim] was arrested and charged
with the Burglary in the First Degree offense, he was
already serving a five year term of felony HOPE probation
based on his conviction for the class C felony offense of
Negligent Injury in the First Degree (Case No.
1PC061000407).

5. Judge Steven Alm was the circuit court judge
assigned to [Swaim's] HOPE probation case. After [Swaim]
was initially sentenced to a five year term of probation in
2009, on April 21, 2010, Judge Alm granted a motion to
revoke [Swaim's] probation and resentenced him to another
five year term of probation.
6. On August 19, 2010, [Swaim] was released from
custody at the O#ahu Community Correctional Center after
posting the requisite bond.

7. On August 30, 2010, the court appointed The
Office of the Public Defender as defense counsel in Case No.
1PC101001235. Deputy Public Defender . . . Harada . . . was
assigned to the case. Mr. Harada was a very experienced
criminal trial attorney. He had been a trial attorney with
the Office of the Public Defender since 1984 and had handled
several thousand criminal cases, including dozens involving
the charge of Burglary in the First Degree.

8. The burglary case was assigned to Judge Randal
K.O. Lee for trial. A pretrial conference was set for
September 15, 2010, a trial call was set for September 30,
2010, and a trial was set for the week of October 11, 2010.

9. Between August 30, 2010, and September 30, 2010,
Mr. Harada received, reviewed and evaluated the discovery,
including the police reports, made an initial evaluation of
the case, including possible defenses, and determined that
no pretrial motions needed to be filed. Based on his review
of the discovery, Mr. Harada formed an opinion that the case
was "triable", because [Swaim] had possible defenses,
including reasonable doubt as to intent/knowledge and
mistake of fact and the possibility of the lesser included
offense of trespass. Mr. Harada also apprised himself of
[Swaim's] HOPE probation case, in which the Office of the
Public Defender also represented [Swaim].

10. Between August 30, 2010, and September 30, 2010,
Mr. Harada sent correspondence to [Swaim's] address and
attempted to make contact with [Swaim] to set up an in-
person meeting to discuss [Swaim's] pending cases. A
meeting was set for September 16, 2010, but [Swaim] failed
to appear for the meeting.

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11. On September 15, 2010, Mr. Harada appeared
before Judge Lee for a pretrial conference. The State . . .
was represented by Deputy Prosecuting Attorney Amy Murakami.
At the conclusion of the pretrial conference, Judge Lee told
counsel that if [Swaim] pled to the burglary charge, he was
inclined to sentence [Swaim] to probation with no further
imprisonment if [Swaim] obtained substance abuse
trea[t]ment.
12. On September 15, 2010, following the pretrial
conference before Judge Lee, Mr. Harada and Ms. Murakami met
with Judge Alm to discuss [Swaim's] HOPE probation case,
because the outcome of the burglary case had the potential
to impact [Swaim's] status on HOPE probation.
13. At the conference, Judge Alm initially indicated
his strong inclination that he would revoke [Swaim's] HOPE
probation, due to [Swaim's] poor performance on probation,
and resentence him to a open five year term of imprisonment
- even if [Swaim] were acquitted on the Burglary in the
First Degree charge.
14. After Mr. Harada advocated strongly for [Swaim]
to be given another opportunity on probation, Judge Alm
changed his initial inclination and told counsel that, if
[Swaim] pled to the burglary case, he would revoke [Swaim's]
probation, but resentence him to another term of HOPE
probation, as long as [Swaim] entered into a residential
substance abuse treatment program. Based on Mr. Harada's
experience with Judge Alm, he believed that Judge Alm would
follow this inclination when [Swaim] was resentenced.
15. On September 30, 2010, Mr. Harada and [Swaim]
appeared before Judge Lee for trial call. Because this was
the first in person meeting Mr. Harada had had with [Swaim]
and he believed he was not ready to proceed to trial, Mr.
Harada requested a continuance. [Swaim] objected to Mr.
Harada's request for a continuance and to waiving time under
[HRPP] Rule 48. Mr. Harada asked Judge Lee for permission
to withdraw as [Swaim's] counsel. His request was not
granted, but Judge Lee set a further trial call on
October 7, 2010.

16. Prior to October 7, 2010, Mr. Harada met in
person with [Swaim] on at least two occasions. The meetings
each lasted over an hour. During those meetings, Mr. Harada
and [Swaim] discussed the burglary case in depth and Mr.
Harada answered [Swaim's] questions. Mr. Harada informed
[Swaim] of the elements of Burglary in the First Degree
offense, and provided him with a printout of the Westlaw
annotation of the Burglary in the First Degree statute. He
reviewed the facts of the case and provided [Swaim] with a
copy of the police reports. He also explained possible
defenses to the charge, including reasonable doubt as to
intent/knowledge and mistake of fact and the possibility of
the lesser included offense of trespass. Because [Swaim]
had been drinking alcohol on the day of the alleged offense
(which was in violation of the terms and conditions of his
probation in his negligent injury case), Mr. Harada also
discussed the impact of the statute precluding admission of
evidence of self-induced intoxication and provided [Swaim]
with a printout of the Westlaw annotation of the relevant
statute. Mr. Harada explained to [Swaim] that although he
believed the burglary case was "winnable", he never
guaranteed such an outcome to [Swaim].

17. Mr. Harada also informed [Swaim] of the

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sentencing/resentencing inclinations Judges Lee and Alm had
provided at the September 15, 2010 conferences. He
explained to [Swaim] that based on Judge Alm's statements,
he risked being resentenced and sent to prison in his HOPE
case, if he went to trial and was acquitted in the burglarly
case, but that if he pled to the burglary charge, Judge Alm
was inclined to resentence him to another term of probation
on the condition that he complete a residential substance
abuse treatment program. One of [Swaim's] most pressing
concerns was avoiding a prison term.

18. Accordingly, Mr. Harada advised [Swaim] that in
his opinion, even though the burglarly case was "winnable",
given the sentencing/resentencing inclinations of probation
provided by Judges Alm and Lee if he changed his plea in the
burglary case, the "smart play" would be to plead no contest
in the burglary case, as this would likely result in him
being placed/replaced on probation and avoiding a prison
term. Mr. Harada told [Swaim], however, that the choice to
go to trial in the burglarly case or to change his plea was
his alone to make.
19. During a meeting on October 6, 2010, [Swaim]
informed Mr. Harada that he had decided to follow Mr.
Harada's advice and to change his plea to "no contest" in
the burglary case. Mr. Harada prepared a change of plea
form, reviewed it with [Swaim], and [Swaim] and Mr. Harada
signed the form.

20. On October 7, 2010, [Swaim] and Mr. Harada
appeared before Judge Lee for a further trial call. At a
bench conference, Judge Lee informed counsel that he
intended to follow his sentencing inclination that he had
informed counsel of at the September 15, 2010 pretrial
conference. [Swaim] changed his plea to "no contest."
Following a colloquy with [Swaim] regarding his change of
plea, Judge Lee accepted the plea, finding that [Swaim] had
entered his plea and waived his right to a trial knowingly,
intelligently and voluntarily. He adjudged [Swaim] guilty
of the offense of Burglar[]y in the First Degree and set
sentencing for January 18, 2011. Judge Lee also informed
[Swaim] of his inclination to sentence him to probation with
no additional jail provided that he entered into treatment
for alcohol abuse.

21. In its Summary Disposition Order entered on
April 7, 2020 . . ., the Intermediate Court of Appeals . . .
found/concluded that [Swaim's] "claim that he did not
knowingly and intelligently enter his no contest plea is
without merit."

22. On or about October 15, 2010, a Motion for
Revocation of Probation was filed in Case No. 1PC061000407.
This was the second motion for revocation that had been
filed in the case. [Swaim] was taken into custody.

23. Prior to January 18, 2011, Mr. Harada made
efforts to secure a residential substance abuse treatment
program for [Swaim] by applying [Swaim] for acceptance into
the Sand Island Treatment Center and keeping updated as to
the status of [Swaim's] application.
24. On January 18, 2011, Judge Lee followed his
prior sentencing inclination and instead of sending [Swaim]
to prison to serve his open ten year term he sentenced
[Swaim] to five years of HOPE probation with terms and
conditions, which included serving one year of jail with

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early release to a substance abuse treatment program.
25. On January 18, 2011, [Swaim] appeared before
Judge Alm for a hearing on the Motion for Revocation of
Probation that had been filed on October 15, 2010. The
motion was granted and Judge Alm also followed his prior
resentencing inclination and instead of sending [Swaim] to
prison to serve his open five year term he resentenced
[Swaim] to another five year term of HOPE probation, with
one year of jail subject to early release to a substance
abuse treatment program.
26. Between being sentenced on January 18, 2011, and
May 5, 2011, Mr. Harada continued his efforts to secure
[Swaim's] acceptance and admission into a residential
substance abuse treatment program. These efforts included
submitting applications to and contacting treatment programs
such as Hina Mauka and Ho'omau Ke Ola and maintaining
contact with [Swaim's] probation officer Dwight Sakai to
confi[r]m what treatment programs would be acceptable to Mr.
Sakai. On or about May 5, 2011, [Swaim] was accepted and
admitted into the Ho'omau Ke Ola residential substance abuse
treatment program.

27. After May 5, 2011, Mr. Harada relinquished
control over [Swaim's] cases to deputy public defenders in
his office who were handling HOPE probation cases.
28. On January 8, 2013, the Office of the Public
Defender withdrew from representation of [Swaim] and Richard
Sing was appointed by the court as legal counsel for
[Swaim].
29. On February 6, 2013, motions for revocation of
[Swaim's] probation in both cases were granted, and [Swaim]
was resentenced to the indeterminate terms of imprisonment
of ten years in the burglary case and five years in the
negligent injury case.

(Some emphasis added.)
Based on these unchallenged findings, the Circuit Court
reached the following conclusions, among others, which we
construe as conclusions of law (COLs):
39. [Swaim] has failed to meet his burden of
establishing that Mr. Harada rendered ineffective assistance
of counsel.
40. [Swaim] has not established any specific errors
or omissions by Mr. Harada that reflect Mr. Harada's lack of
skill, judgment, or diligence in the handling of [Swaim's]
cases.

41. Mr. Harada's advice to [Swaim] was within the
range of competence demanded of attorneys in criminal cases.

42. Mr. Harada did not provide ineffective assistance
of counsel to [Swaim].

43. [Swaim] entered his no contest plea to the charge
of Burglary in the First Degree in Case No. 1PC101001235
voluntarily.

44. Mr. Harada did not coerce, threaten, or force
[Swaim] to enter his no contest pleas to the charge of

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Burglary in the First Degree in Case No. 1PC101001235.

Accordingly, the Circuit Court concluded that Swaim's claims were
without merit and denied the Petition. This appeal followed.

II. Points of Error

On appeal, Swaim contends that the Circuit Court erred
in ruling that: (1) Swaim did not receive ineffective assistance
of counsel; and (2) Swaim's no contest plea was not obtained
through coercion. Relatedly, Swaim appears to challenge COLs 39
through 44.
III. Standards of Review

"A trial court's conclusions of law are reviewed de
novo under the right/wrong standard." State v. Adler, 108
Hawai#i 169, 174, 118 P.3d 652, 657 (2005). "The denial of a
Rule 40 petition based on the [circuit] court's conclusions of
law is reviewed de novo." Schwartz v. State, 136 Hawai#i 258,
262, 361 P.3d 1161, 1165 (2015) (citing Coulter v. State, 116
Hawai#i 181, 184, 172 P.3d 493, 496 (2007)).

IV. Discussion

A. Ineffective Assistance Claim

Swaim contends that his Burglary One conviction must be
vacated because he received ineffective assistance of counsel
from Harada.
"The standard for determining the adequacy of counsel's
representation is whether, when viewed as a whole, the assistance
provided is 'within the range of competence demanded of attorneys
in criminal cases.'" State v. Salavea, 147 Hawai#i 564, 576, 465
P.3d 1011, 1023 (2020) (quoting State v. Cordeiro, 99 Hawai#i
390, 405, 56 P.3d 692, 707 (2002)). The defendant has the burden
of establishing ineffective assistance of counsel and must meet
the following two-part test: "First, a defendant must show that
there were specific errors or omissions reflecting counsel's lack
of skill, judgment, or diligence." Id. (citing State v. Antone,
62 Haw. 346, 348, 615 P.2d 101, 104 (1980)). "Second, the
defendant must establish that these errors or omissions resulted

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in either the withdrawal or substantial impairment of a
potentially meritorious defense." Id. (citing Antone, 62 Haw. at
348-49; 615 P.2d at 104).

Specific actions or omissions that are alleged to be
erroneous but that had an obvious tactical basis for
benefitting the defendant's case will not be subject to
further scrutiny. State v. Pacheco, 96 Hawai #i 83, 93, 26
P.3d 572, 582 (2001). If, however, the alleged error or
omission had no obvious basis for benefitting the case and
resulted in the withdrawal or impairment of a potentially
meritorious defense, then the assistance of defendant's
counsel was constitutionally inadequate. State v. Smith, 68
Haw. 304, 309-11, 712 P.2d 496, 500-01 (1986).

Id. (footnote omitted); see Briones v. State, 74 Haw. 442, 463,
848 P.2d 966, 977 (1993) ("An informed, tactical decision will
rarely be second-guessed by judicial hindsight.").
Swaim argues that Harada was ineffective because,
"[r]ather than focusing his skill, judgment, and diligence on
helping . . . Swaim fight and beat the Burglary [One] charge,"
Harada was instead focused on Swaim's prior negligent injury
case, and "pleasing Judge Alm" in that case. Swaim argues that
he did not commit the crime of Burglary One, and that by not
"presenting a meritorious defense, taking the case to trial, or
attempting to downgrade the Burglary [One] charge to a Trespass,"
Harada made "specific errors" constituting ineffective assistance
of counsel, and Swaim "received a harsher outcome" as a result.
However, the unchallenged FOFs, which are binding on
this court (see supra), do not support Swaim's arguments. As
reflected in FOF 17, one of Swaim's "most pressing concerns" was
avoiding a prison term. Even acquittal on the Burglary One
charge would likely not have alleviated that concern, as Judge
Alm had indicated to Harada the court's "strong inclination" to
revoke Swaim's HOPE probation in the negligent injury case, and
resentence him to an open five year term of imprisonment, even if
Swaim were acquitted on the Burglary One charge. See FOFs 12,
13. It was only after Harada "advocated strongly for [Swaim] to
be given another opportunity on probation" that "Judge Alm
changed his initial inclination and told counsel that, if Swaim
pled to the burglary case, he would revoke [Swaim's] probation,
but sentence him to another term of HOPE probation, as long as

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[Swaim] entered into a residential substance abuse treatment
program. FOF 14. Judge Lee had also "told counsel that if
[Swaim] pled to the burglary charge, he was inclined to sentence
[Swaim] to probation with no further imprisonment if [Swaim]
obtained substance abuse trea[t]ment." FOF 11.
It was in this context that Harada "discussed the
burglary case in depth" with Swaim, "answered [Swaim's]
questions[,]" "reviewed the facts of the case," and "explained
possible defenses to the [Burglary One] charge[.]" FOF 16. And
it was in this context that Harada advised Swaim that even though
the burglary case was "winnable," given the sentencing and
resentencing inclinations of Judges Lee and Alm if Swaim changed
his plea in the burglary case, "the 'smart play' would be to
plead no contest in the burglary case, as this would likely
result in him being placed[] on probation and avoiding a prison
term." FOF 18. Harada told Swaim, however, that "the choice to
go to trial in the burglary case or to change his plea was his
alone to make." Id.
On this record, we conclude that Swaim has not shown
any specific errors or omissions by Harada that reflect a lack of
skill, judgment, or diligence in representing Swaim. We further
conclude that COLs 39 through 42 are not wrong. Accordingly, the
Circuit Court did not err in concluding that Swaim failed to meet
his burden of establishing that Harada rendered ineffective
assistance of counsel.

B. Coercion Claim

Swaim contends that his Burglary One conviction must be
vacated because his no contest plea was obtained through
coercion. He argues that he did not commit the crime of Burglary
One and was coerced by Harada to change his plea to no contest
"or else Mr. Swaim was going to go to prison for five years based
on his prior Negligent Injury charge."3/

3/
In his opening brief, Swaim also appears to suggest that Judge Alm
coerced him to enter his no contest plea in the burglary case. Swaim did not
raise this claim in the Petition or accompanying Memorandum of Law, which
referred only to the Honolulu Prosecutor's Office and Swaim's "public
defender" in connection with Swaim's coercion claim. Similarly, Swaim did not
contend in his prior appeal that Judge Alm coerced him. Accordingly, in Swaim

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The unchallenged FOFs do not support Swaim's argument
that Harada coerced him to enter his no contest plea. Rather,
the FOFs reflect that Harada informed Swaim of the sentencing and
resentencing inclinations that Judges Lee and Alm, respectively,
had provided at the September 15, 2010 conferences, and explained
the risk of Swaim's being sent to prison in the negligent injury
case. FOF 17. Given these circumstances and Swaim's pressing
concern about a prison term, Harada advised Swaim that the "smart
play" would be to plead no contest in the burglary case, which
would likely avoid a prison term. FOF 18. However, Harada told
Swaim that the decision was his alone to make.4/ Id. Swaim
subsequently informed Harada that he had decided to follow
Harada's advice and change his plea to no contest in the burglary
case. FOF 19. Swaim points to no specific evidence in the
record supporting his argument that Harada coerced or forced him
to enter his no contest plea.5/ See HRAP Rule 28(b)(7).
On this record, we conclude that the Circuit Court did
not err in concluding that Harada did not coerce, threaten or
force Swaim to enter his no contest plea to the Burglary One
charge. We further conclude that COLs 43 and 44 are not wrong.6/

V. Conclusion

For the reasons discussed above, the February 21, 2021
"Findings of Fact, Conclusions of Law, and Order Denying Petition

I, this court remanded the case for an evidentiary hearing on Swaim's
contention that "his plea was coerced and he was forced to change his plea by
counsel." Swaim I, 2020 WL 1698792, at *1 (emphasis added). Swaim's new
argument regarding Judge Alm was waived. See HRPP Rule 40(a)(3).
4/
At the evidentiary hearing, when Harada was asked if he forced or
pressured Swaim to make the decision to plead no contest, Harada tesified,
"No." When asked if he threatened Swaim in any way to choose to plead no
contest, Harada answered, "No." When asked if Judge Alm forced, threatened,
or coerced Swaim, Harada answered, "Judge Alm had no contact to my knowledge
with . . . Swaim up to this date[,]" i.e., October 7, 2010, when Swaim pled no
contest to the Burglary One charge.
5/
In Swaim I, we concluded that Swaim's claim that he did not make
his no contest plea knowingly and intelligently was without merit. 2020 WL
1698792, at *1. Swaim did not seek certiorari review of this court's SDO
regarding this ruling, thus waiving any argument not related to his claims
that Harada provided ineffective assistance and coerced him to enter the plea.
6/
To the extent that COL 44 is a mixed determination of fact and
law, it is supported by substantial evidence and is not clearly erroneous.

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to Vacate, Set Aside or Correct Judgment Pursuant to Rule 40 of
the Hawai#i Rules of Penal Procedure, Filed July 12, 2017,"
entered in the Circuit Court of the First Circuit, is affirmed.

DATED: Honolulu, Hawai#i, June 17, 2022.

On the briefs:
/s/ Lisa M. Ginoza
Jonathan E. Spiker Chief Judge
(Koshiba & Price)
for Petitioner-Appellant.
/s/ Clyde J. Wadworth
Sonja P. McCullen, Associate Judge
Deputy Prosecuting Attorney,
City & County of Honolulu,
for Respondent-Appellee. /s/ Karen T. Nakasone
Associate Judge

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