Danielson v. State

NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
19-SEP-2022
07:51 AM
Dkt. 54 SO
NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAIʻI

SCOTT DANIELSON, Petitioner-Appellant,
v.
STATE OF HAWAIʻI, Respondent-Appellee

APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT
(CASE NO. 2PR141000002(3); 2PC960000686(3))

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

Petitioner-Appellant Scott Danielson (Danielson)

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

entered by the Circuit Court of the Second Circuit (Circuit

Court) on January 15, 2020 (Rule 40 Order).1 The Rule 40 Order

granted in part and denied in part Danielson's Hawaiʻi Rules of

Penal Procedure (HRPP) Petition to Vacate, Set Aside, or Correct

Judgment or to Release Petitioner from Custody, filed April 4,

2014 (Rule 40 Petition), and Amendment to HRPP Rule 40 Petition,

filed August 11, 2015 (Amended Rule 40 Petition; collectively,

the Petitions).2

1
The Honorable Joseph E. Cardoza presided.
2
On February 14, 2020, the Circuit Court entered an Order of
Correction concerning the Rule 40 Order. However, no point of error or
argument is raised concerning the Order of Correction.
NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

Danielson raises three points of error on appeal,

contending that: (1) the Circuit Court erred in denying the

Petitions without a hearing; (2) Danielson received ineffective

assistance of counsel at the conclusion of his direct appeal; and

(3) the Circuit Court failed to refer Danielson to the Office of

the Public Defender (OPD) for evaluation of his eligibility for

appointment of counsel pursuant to HRPP Rule 40(i).

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, as well as the

relevant statutory and case law, we resolve Danielson's

contentions as follows:

"[T]he issue whether the trial court erred in denying a

Rule 40 petition without a hearing based on no showing of a

colorable claim is reviewed de novo; thus, the right/wrong

standard of review is applicable." Dan v. State, 76 Hawaiʻi 423,

427, 879 P.2d 528, 532 (1994). Determination of whether a

petitioner raised a colorable claim, and therefore is entitled to

representation in a HRPP Rule 40(f) hearing, is a question of law
that is reviewed de novo. Id.; see also Rapozo v. State, 150

Hawaiʻi 66, 79, 497 P.3d 81, 94 (2021).

(1) Danielson makes no discernable argument in support

of his first point of error, other than the bald assertion of

error in denying the Petitions without a hearing. Thus, the

first point of error appears to be waived. See Kahoʻohanohano v.

Dep't of Hum. Servs., 117 Hawaiʻi 262, 297 n.37, 178 P.3d 538,

573 n.37 (2008) (stating that the supreme court will "disregard a

particular contention if the appellant makes no discernible

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argument in support of that position") (citations, internal

quotation marks and brackets omitted); Hawaiʻi Rules of Appellate

Procedure (HRAP) Rule 28(b)(4) ("[p]oints not presented in

accordance with this section will be disregarded, except that the

appellate court, at its option, may notice a plain error not

presented"); HRAP Rule 28(b)(7) ("[p]oints not argued may be

deemed waived").

We nevertheless note that HRPP Rule 40(f) states:
(f) Hearings. If a petition alleges facts that if
proven would entitle the petitioner to relief, the court
shall grant a hearing which may extend only to the issues
raised in the petition or answer. However, the court may
deny 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.
The court may also deny a hearing on a specific question of
fact when a full and fair evidentiary hearing upon that
question was held during the course of the proceedings which
led to the judgment or custody which is the subject of the
petition or at any later proceeding.

(Emphasis added).

It further appears from the Rule 40 Order that the

Circuit Court concluded that only grounds one, two, and five of

the Rule 40 Petition, and the three grounds raised in the Amended

Rule 40 Petition, were "patently frivolous and without a trace of

support" either in the record or from other evidence submitted by
Danielson, and that grounds three and six of the Rule 40 Petition

merited some relief. Under such circumstances, HRPP Rule 40(f)

mandated a hearing, unless one of the exceptions to the

requirement of a hearing applied. However, in the absence of an

argument or citation to the record concerning the application of

HRPP Rule 40(f) in this case, and having determined that no basis

for a plain error review appears in the record, we conclude that

this issue is waived.

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(2) Danielson makes no discernible argument concerning

his second point of error, either in the Petitions or on appeal.

We decline to conduct a plain error review of this issue,

particularly in light of the absence of arguments and/or

authorities supporting relief. Danielson's second point of error

is deemed waived.

(3) In his final point of error, Danielson invokes

HRPP Rule 40(i), which provides:
(i) Indigents. If the petition alleges that the
petitioner is unable to pay the costs of the proceedings or
to afford counsel, the court shall refer the petition to the
public defender for representation as in other penal cases;
provided that no such referral need be made if the
petitioner's claim is patently frivolous and without trace
of support either in the record or from other evidence
submitted by the petitioner.

(Emphasis added).

It is undisputed that Danielson claimed to be indigent

and requested a referral for representation, and none was granted

until after the Circuit Court ruled on the Petitions. The

Hawaiʻi Supreme Court has interpreted the emphasized language as

meaning, "if an indigent petitioner raises a 'colorable claim' in

an HRPP Rule 40 petition, they are entitled to representation on

the petition in an HRPP Rule 40(f) hearing." Rapozo, 150 Hawaiʻi

at 79, 497 P.3d at 94 (emphasis added).

It appears that issues presented in grounds three and

six of the Rule 40 Petition raised colorable claims for relief.

Danielson does not argue on appeal that any of the other grounds

raised in the Petition constituted colorable claims for relief.

While some relief was granted to Danielson in the Rule 40 Order,

and counsel was appointed after the Circuit Court entered the

Rule 40 Order, we conclude that Danielson was nevertheless

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entitled to earlier representation on the Petitions with respect

to his colorable claims for relief. Thus, the Circuit Court

erred in failing to refer the Petitions to OPD for

representation.

As the Circuit Court declined to state that the

decisions challenged in grounds three and six were either

erroneous or correct, but nevertheless remanded them to the

Hawaiʻi Paroling Authority, we cannot conclude that lack of

representation constituted harmless error.

For the foregoing reasons, the Circuit Court's January

15, 2020 Rule 40 Order is vacated with respect to grounds three

and six and affirmed in all other respects. This case is

remanded to the Circuit Court for further proceedings consistent

with this Summary Disposition Order.

DATED: Honolulu, Hawaiʻi, September 19, 2022.

On the briefs:
/s/ Katherine G. Leonard
John F. Parker, Presiding Judge
(Law Office of John F. Parker,
LLC.), /s/ Clyde J. Wadsworth
for Petitioner-Appellant. Associate Judge

Gerald K. Enriques, /s/ Karen T. Nakasone
Deputy Prosecuting Attorney, Associate Judge
County of Maui,
for Respondent-Appellee.

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