Carter v. State

LAW LIBRARY

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NO. 29857 . a
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IN THE INTERMEDIATE COURT OF APPEALS &
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OF THE STATE OF HAWAI‘I ~
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MICHAEL L. CARTER, Plaintiff-Appellant, v. oo
STATE OF HAWAI'I, Defendant-Appellee a —
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APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(S.P.P. NO. 08-1-0037; CR. NO. 04-1-1977)

SUMMARY DISPOSITION ORDER
(By: Nakamura, Chief Judge, Foley and Leonard, JJ.)

Petitioner-Appellant Michael L. Carter (Carter) appeals

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

Petition for Post-Conviction Relief (Order Denying Post-
Conviction Relief) filed on May 6, 2009 by the Circuit Court of

the First Circuit, State of Hawai'i (Circuit Court) .¥/.

Carter was charged by way of indictment with the

following counts:
1.
of Hawaii Revised Statutes (HRS)

2003) against KE;
2. Sexual assault in the third degree in violation

of HRS § 707-732(1)(£) (Supp. 2003) against KE;
3. Impersonating a law enforcement officer in the

second degree in violation of HRS § 710-1016.7 (Supp. 2001)

between March 19, 2004 to and including March 21, 2004;
4. Sexual assault in the first degree in violation

of Hawaii Revised Statutes (HRS) § 707-730(1) (a) (Supp.

2004) against JA;
5. Impersonating a law enforcement officer in the

second degree in violation of HRS § 710-1016.7 (Supp. 2001)
on August 21, 2004;

Sexual assault in the first degree in violation
§ 707-730(1) (a) (Supp.

6. Attempted sexual assault in the first degree in
violation of HRS § 707-730(1) (a) (Supp. 2003) against SP;
7. Kidnapping in violation of HRS § 707-720(1) (d)

(Repl. 1993) against SP;
8 Sexual assault in the third degree in violation

of HRS § 707-732(1)(f£) (Supp. 2003) against RC;
9. Sexual assault in the first degree in violation

of HRS § 707-730(1) (a) (Supp. 2003) against RC;

2/ The Honorable Michael A. Town presided.
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10. Sexual assault in the first degree in violation
of Hawaii Revised Statutes (HRS) § 707-730(1) (a) (Supp.
2003) against RC; .

11. Sexual assault in the third degree in violation
of HRS § 707-732(1)(f) (Supp. 2003) against RC;

12. No bill was obtained for count 12; and

13. Impersonating a law enforcement officer in the

second degree in violation of HRS § 710-1016.7 (Supp. 2001)
on April 2, 2004.

After an unsuccessful motion to dismiss the indictment,
on April 25, 2005, pursuant to a plea agreement, Carter entered a
plea of guilty to: charges of sexual assault in the second
degree for counts 1, 4, 9, and 10; charges of sexual assault in
the third degree for counts 2, 8, and 11; charges of
impersonating a law enforcement officer in the second degree for
counts 3, 5, and 13; attempted sexual assault in the second
degree for count 6; and a B felony kidnapping for count 7.

The State filed a Motion for Sentencing of Repeat
Offender which sought imposition of a mandatory minimum term of
imprisonment of 3 years and 4 months for count 1 and 1 year and 8
months for count 2. An Amended Judgment was entered on July 20,
2005 and Carter was sentenced as follows: ten years of
incarceration for counts 1, 4, 6, 7, 9, and 10; five years of
incarceration for counts 2, 8, and 11; and one year of
incarceration for counts 3, 5, and 13. The terms of
incarceration were ordered to be served concurrently.

On September 12, 2008, Carter filed a Petition to
Vacate, Set Aside, or Correct Judgment or to Release Petitioner
from Custody (Rule 40 Petition). In the Rule 40 Petition, Carter
raised fourteen issues, a number of which are raised on appeal.
On January 5, 2009, Carter filed a Motion to Amend Petition
Pursuant to Hawai‘i Rules of Penal Procedure (HRPP) Rule 40(e)
and withdrew his allegation of ineffective assistance of counsel.

The State opposed the Rule 40 Petition on January 9,
2009. On March 16, 2009, Carter filed a motion to amend the Rule

40 Petition to include an allegation that the prosecuting
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attorney presented false DNA evidence to the Hawai‘i Paroling
Authority and the Circuit Court.

On May 6, 2009, the Circuit Court denied the Rule 40
Petition without a hearing. Carter filed a notice of appeal on
May 28, 2009.

On appeal, Carter raises the following issues:

1. Whether the prosecuting attorney and Detective Kim
committed perjury before the grand jury;

2. Whether the Circuit Court denied Carter his right
to due process and a fair and impartial grand jury by allowing

Detective Kim to testify regarding statements made by RC;

3. Whether Detective Kim's false testimony was
material;

4. Whether RC was unavailable to testify before the
grand jury;:

5. Whether the prosecuting attorney withheld clearly

exculpatory evidence from the grand jury;

6. Whether the prosecuting attorney committed
misconduct in the presentation to the grand jury;

7. Whether Carter's plea was voluntary in light of
the errors in the grand jury proceedings;

8. Whether Carter was denied the effective assistance
of counsel;

9. Whether Carter was entitled to a hearing on his
Rule 40 Petition; and

10. Whether the Rule 40 Petition was patently
frivolous and without a trace of support.

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 Carter's point of error as follows:

It appears that: (1) Carter waived the issues he now

seeks to raise on appeal and therefore the Circuit Court did not
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err in denying the Rule 40 Petition without a hearing; and (2)
the Circuit Court did not abuse its discretion in denying
Carter's request to withdraw his guilty plea.

Issues 1-6 raised by Carter on appeal relate to the
evidence presented to the grand jury. These claims of
nonjurisdictional errors in the grand jury proceedings were
waived by Carter's guilty plea. The general rule, which is
applicable here, is that a guilty plea bars all claims of error
in the proceedings other than jurisdictional defects. See
State v. Morin, 71 Haw. 159, 162, 785 P.2d 1316, 1318 (1990);
Tomomitsu_v. State, 93 Hawai'i 22, 995 P.2d 323 (App. 2000).

Nor do Carter's claim of errors in the grand jury
proceedings justify a withdrawal of Carter's plea. The guilty
plea form executed by Carter in open court on April 25, 2005
reflects a knowing and voluntary plea of guilty accompanied by
admissions of fact supporting his conviction. The guilty plea
form reflects Carter's understanding of the possible penalties he
faced including the maximum terms and the possible mandatory
minimum terms. In addition, the transcript of the April 25, 2005
hearing, which was attached as an exhibit to the State's answer
to the Rule 40 petition, supports the conclusion that Carter
knowingly, intelligently, and voluntarily entered guilty pleas to
the charges.

A guilty plea may be withdrawn after the imposition of
sentence only if it "is necessary to correct manifest injustice."
HRPP Rule 32(d). Manifest injustice exists when the plea is
either involuntary, was made without a full understanding of its
direct consequences, or there has been a breach of a plea
agreement. "Manifest injustice occurs when a defendant makes a
plea involuntarily or without knowledge of the direct

consequences of the plea." State v. Nguyen, 81 Hawai‘i 279, 292,

916 P.2d 689, 702 (1996); Barnett v. State, 91 Hawai‘i 20, 28,

979 P.2d 1046, 1054 (1999). In State v. Adams, 76 Hawai‘i 408,

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879 P.2d 513 (1994), the Hawai‘i Supreme Court also found
manifest injustice where the State failed to uphold its end of a
plea bargain. Id. at 414, 879 P.2d at 519. In the absence of
any evidence that the plea was involuntary, that Carter did not
know the direct consequences of his plea, or that the State
breached the plea agreement, the Circuit Court did not abuse its
discretion in denying Carter's challenge to the voluntariness of
the guilty plea.

Carter expressly waived the claim of ineffective
assistance of counsel. Relief under HRPP Rule 40 is not
available for issues that have been waived. "Rule 40 proceedings
shall not be available and relief thereunder shall not be granted
where the issues sought to be raised have been previously ruled
upon or were waived." HRPP Rule 40(a) (3).

As part of his claim of ineffective assistance of
counsel on appeal, Carter refers to a partial document in which
the prosecuting attorney, in reference to the offense against JA,
stated that "Defendant denied committing the offense despite the
fact that his DNA was found in a condom left at the scene."
Carter also attached a letter from the Department of the Attorney
General which stated: "We are only aware of the DNA sample given
on February 24, 2004." Carter first raised an issue regarding
the DNA sample in his March 16, 2009 motion to amend his Rule 40
Petition, in which he stated that the prosecuting attorney
presented false DNA evidence to the Hawai'i Paroling Authority
and the Circuit Court. Carter did not attach any exhibits to the
motion to amend or explain the basis for his allegation that the
prosecuting attorney used false DNA evidence. HRPP Rule 40(c) (1)
requires a petition for relief under the rule to contain "in
summary form the facts supporting each of the grounds thus
specified." Carter failed to present to the Circuit Court any

facts to support his claim of falsified DNA evidence.
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Even if the prosecuting attorney was mistaken about the
DNA evidence, Carter fails to explain how he might have been
prejudiced by the mistake or misstatement in light of his
admission that he committed acts constituting the offense charged
in count 4. Absent some showing of prejudice, Carter has failed
to demonstrate that he is entitled to relief from judgment. "No
order, judgment, or sentence shall be reversed or modified unless
the court is of the opinion that error was committed which
injuriously affected the substantial rights of the appellant."
HRS § 641-16 (1993). |

In the absence of manifest injustice requiring the
withdrawal of the guilty plea, and in light of the waiver of
claims relating to the grand jury proceedings and ineffective
assistance of counsel, we conclude that the Circuit Court did not
err in concluding that the Rule 40 Petition failed to state a
colorable claim and/or in denying the Rule 40 Petition without a

hearing. See Dan v. State, 76 Hawai‘i 423, 427, 879 P.2d 528,

532 (1994).
For these reasons, the Circuit Court's May 6, 2009
Order Denying Post-Conviction Relief is affirmed.

DATED: Honolulu, Hawai‘i, July 14, 2010.

On the briefs: .

Michael L. Carter Chief Judge
Pro Se Petitioner-Appellant

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Loren J. Thomas .
Deputy Prosecuting Attorney Associate Judge
for Respondent -Appellee /