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Electronically Filed
Supreme Court
SCWC-XX-XXXXXXX
20-SEP-2022
09:01 AM
Dkt. 23 OP
IN THE SUPREME COURT OF THE STATE OF HAWAIʻI
---o0o---
________________________________________________________________
LUKE J. WARNER, Petitioner/Petitioner-Appellant
vs.
STATE OF HAWAIʻI, Respondent/Respondent-Appellee.
________________________________________________________________
SCWC-XX-XXXXXXX
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-XX-XXXXXXX; CASE NO. 1PR-18-1-000004)
SEPTEMBER 20, 2022
RECKTENWALD, C.J., NAKAYAMA, McKENNA, WILSON, AND EDDINS JJ.
OPINION OF THE COURT BY McKENNA, J.
I. Introduction
This appeal arises from the denial without a hearing of
Luke Warner’s (“Warner”) Hawaiʻi Rules of Penal Procedure
(“HRPP”) Rule 40 (2006) petition for post-conviction relief. On
June 17, 2016, Warner pleaded guilty to multiple drug, theft,
and firearm-related offenses. The Circuit Court of the First
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Circuit (“sentencing court”) imposed concurrent prison terms,
the longest of which was ten years, and various monetary
assessments.
Warner later filed the instant pro se HRPP Rule 40 petition
in the Circuit Court of the First Circuit (“circuit court”). He
challenged the sentencing court’s judgment of conviction and
sentence on eight grounds. Warner asked the circuit court to
end his sentence, to waive all “fines and fees,” and for
“compensatory judgments” for civil injustices.
The circuit court ruled Warner had waived some of the
grounds in his petition and other grounds that requested
compensatory relief were unavailable under HRPP Rule 40. The
circuit court denied Warner’s petition without a hearing and the
Intermediate Court of Appeals (“ICA”) affirmed.
We hold (1) there was no error in dismissing grounds one
through five of Warner’s petition without a hearing based on
waiver; but (2) based on the reasons discussed below, Warner
raised a colorable claim as to the monetary assessments, which
constitute fines; and (3) pursuant to HRPP Rule 40(c)(3),
grounds six through eight of Warner’s petition raised civil
claims required to be transferred for disposition under the
civil rules.
We therefore vacate in part the ICA’s June 9, 2021 judgment
on appeal and the circuit court’s February 1, 2019 order denying
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Warner’s petition without a hearing, and remand to the circuit
court for further proceedings consistent with this opinion.
II. Background
A. Sentencing court proceedings
1. Indictment and guilty plea
On August 8, 2012, a grand jury charged Warner with four
counts of attempted theft in the second degree, three counts of
methamphetamine trafficking in the first degree, and one count
each of seven other theft, firearm, and drug-related charges.
At a March 23, 2015 change of plea hearing,1 the State
amended down the methamphetamine trafficking charges to second
degree charges. In exchange, Warner pleaded guilty to all
charges and agreed to serve concurrent terms of incarceration,
with the longest term being ten years. Warner’s attorney stated
he had “gone over [the guilty plea] with [Warner],” and that he
and Warner had signed the plea.
Before accepting the plea, the sentencing court conducted a
colloquy with Warner. In summary, the court explained the
charges, the maximum terms of imprisonment, and that Warner
would give up his right to trial, including his right to jury
trial, by pleading guilty. The sentencing court also explained
the maximum “authorized fines” that could be imposed pursuant to
1 The Honorable Karen S.S. Ahn presided.
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Hawaiʻi Revised Statutes (HRS) § 706-640 for the various counts
to which he was to plead guilty. However, the sentencing court
did not mention or inform Warner about any other potential
monetary assessments. Warner indicated his mind was clear, he
had talked to his lawyer about whether he should go to trial, he
was satisfied with his lawyer’s advice, and no one was forcing
or threatening him to plead guilty.
On June 17, 2016, the sentencing court entered its judgment
of conviction and sentence. Warner was sentenced to concurrent
terms of imprisonment; the longest term was ten years and all
terms were to run concurrently with any other sentence.2 No HRS
§ 706-640 fines were imposed, but Warner was ordered to pay a
$1,420 crime victim compensation fund fee, $1,420 for a drug
demand reduction assessment, $7,500 for methamphetamine
trafficking restitution and reimbursement, and a fee of up to
$500 for a DNA analysis. The sentencing court did not make
findings regarding Warner’s ability to pay any of these amounts,
whether then or in the future.
2 In March 2015, Warner was also sentenced to ten-year sentences of
imprisonment in federal and Maryland cases.
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2. HRPP Rule 40 petition
On February 5, 2018, Warner filed an HRPP Rule 40 petition
challenging the sentencing court’s judgment on eight grounds:
(1) use of evidence obtained pursuant to an unconstitutional
search and seizure; (2) use of evidence obtained pursuant to an
unlawful arrest; (3) prosecution’s failure to disclose to the
defendant evidence that is favorable to the defendant; (4)
ineffective assistance of counsel; (5) prosecutorial misconduct;
(6) “medical and psych decompensation”; (7) “discrimination and
reverse racism”; and (8) “accumulative errors.”
Warner indicated he was raising these grounds for the first
time because his attorneys were allegedly negligent, committed
misconduct, and corrupt. Warner also claimed his health had
been poor, he had been preoccupied with other cases, and he had
been transferred from several prisons. Warner asked the circuit
court to end his sentence, to waive all fines and fees, and for
“compensatory judgments” for his civil injustices, medical
decompensation, and financial losses.
In response, the State argued Warner waived grounds one
through four because he failed to raise them before his guilty
plea, and he did not prove extraordinary circumstances
justifying his failure to do so. With respect to ground four,
ineffective assistance of counsel, the State also argued Warner
failed to provide specific errors or omissions that resulted in
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the withdrawal or substantial impairment of a potentially
meritorious defense. The State argued grounds six through
eight, which sought compensatory relief, were beyond the scope
of HRPP Rule 40. The State asserted Warner therefore failed to
state a colorable claim.
On February 1, 2019, the circuit court3 entered its findings
of fact, conclusions of law, and order denying the petition
without a hearing. The circuit court concluded (1)(a) Warner
waived grounds one through four by failing to raise them before
pleading guilty; and (b) ground four, ineffective assistance of
counsel, was also without merit because Warner did not state
specific errors or omissions of counsel resulting in the
withdrawal or impairment of a meritorious defense; (2) ground
five, prosecutorial misconduct, was without merit because none
of the named individuals were employed by the State; and (3)
grounds six through eight were without merit because HRPP Rule
40 did not provide for compensatory relief. The circuit court
did not address Warner’s request to waive the “fines and fees.”
Warner appealed.
3 The Honorable Karen T. Nakasone presided.
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B. ICA proceedings
1. Warner’s opening brief
In summary, Warner alleged his trial counsel committed
misconduct by refusing his instructions to challenge
inconsistencies in discovery and by “framing” him in his federal
case. Warner claimed HPD officers lied about their first
meetings with him, omitted the fact that the first search
warrant listed an incorrect address, and lied about a pistol
that was sold to Warner. Warner also asked the ICA to suspend
multiple Hawaiʻi judges “for abusing their discretion to deny
[Warner] effective counsel[.]”
2. The State’s answering brief
The State maintained Warner’s petition failed to state a
colorable claim of relief, that he waived grounds one through
four, and the relief sought in grounds five through eight was
beyond the scope of HRPP Rule 40.
3. Summary Disposition Order
On May 21, 2021, the ICA issued its summary disposition
order (“SDO”) affirming the circuit court’s February 1, 2019
order denying the petition without a hearing. Warner v. State,
CAAP-XX-XXXXXXX (App. May 21, 2019) (SDO). The ICA identified
two arguments in Warner’s briefs as related to grounds one
through four of his petition: (1) that grand jury witnesses
lied; and (2) his trial counsel engaged in various acts of
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misconduct, including ineffective assistance of counsel.
Warner, SDO at 4. The ICA deemed these arguments waived under
HRPP Rule 40(a)(3) because Warner could have raised them before
his guilty plea and because he had not proven extraordinary
circumstances justifying his failure to do so. Warner, SDO at
5, 7. The ICA also determined that, to the extent Warner’s
petition challenged his guilty plea as not knowingly and
intelligently made, Warner had not stated a colorable claim.
Warner, SDO at 6.
The ICA also held Warner’s briefs presented no discernible
argument regarding grounds five through eight of the petition,
and any related points of error were waived under Hawaiʻi Rules
of Appellate Procedure (“HRAP”) Rule 28(b)(4), (7) (2016).4
Warner, SDO at 5 n.5. The ICA thus affirmed the circuit court’s
February 1, 2019 order denying the petition without a hearing.
Warner, SDO at 8.
III. Standards of Review
A. Post-conviction relief
We review orders denying HRPP Rule 40 petitions for post-
conviction relief de novo. Lewi v. State, 145 Hawaiʻi 333, 345,
4 HRAP Rule 28(b)(4) provides, in relevant part: “Points not presented
[in the opening brief] 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) provides, in relevant part: “Points not argued may
be deemed waived.”
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452 P.3d 330, 342 (2019). As a general rule, a hearing should
be held on a Rule 40 petition if it states a colorable claim;
“the question on appeal of a denial of a Rule 40 petition
without a hearing is whether the trial record indicates that
Petitioner’s application for relief made such a showing of a
colorable claim as to require a hearing before the lower court.”
Lewi, 145 Hawaiʻi at 345,
452 P.3d at 342 (quoting Dan v. State,
76 Hawaiʻi 423, 427,
879 P.2d 528, 532 (1994)).
B. Pro se litigants
“A fundamental tenet of Hawaiʻi law is that ‘[p]leadings
prepared by pro se litigants should be interpreted liberally.’”
Waltrip v. TS Enters., Inc., 140 Hawaiʻi 226, 239, 398 P.3d 815,
828 (2016) (quoting Dupree v. Hiraga, 121 Hawaiʻi 297, 314,
219
P.3d 1084, 1101 (2009)). “The underpinnings of this tenet rest
on the promotion of equal access to justice — a pro se litigant
should not be prevented from proceeding on a pleading or letter
to an agency if a reasonable, liberal construction of the
document would permit [them] to do so.” Waltrip, 140 Hawaiʻi at
239,
398 P.3d at 828.
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IV. Discussion
A. Denial of HRPP Rule 40 petition without a hearing
1. Grounds one through five were properly denied without
a hearing
The ICA did not err by holding Warner waived grounds one
through four of his petition by failing to raise the arguments
before his guilty plea. Warner, SDO at 5, 7. See HRPP Rule
40(a)(3).5 The ICA also did not err in determining Warner
provided no argument as to ground five, and that this issue was
also therefore waived pursuant to HRAP Rule 28(b)(4), (7).6
Warner, SDO at 5 n.5.
2. Warner asserted a colorable claim regarding monetary
assessments
Warner’s petition also requested the circuit court “waive
all of the fines and fees that were imposed at sentencing[.]”
5 HRPP Rule 40(a)(3) provides:
Inapplicability. 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. Except for a claim of illegal
sentence, an issue is waived if the petitioner knowingly
and understandingly failed to raise it and it could have
been raised before the trial, at the trial, on appeal, in a
habeas corpus proceeding or any other proceeding actually
conducted, or in a prior proceeding actually initiated
under this rule, and the petitioner is unable to prove the
existence of extraordinary circumstances to justify the
petitioner’s failure to raise the issue. There is a
rebuttable presumption that a failure to appeal a ruling or
to raise an issue is a knowing and understanding failure.
6 HRAP Rule 28(b)(4) requires a concise statement of points of error.
HRAP 28(b)(7) provides that points not argued may be deemed waived.
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Warner’s sentence did not include any HRS § 706-640 fines. In
State v. Yamashita, however, we recently held that the crime
victim compensation fee and the drug demand reduction assessment
constitute criminal fines (and not unconstitutional taxes, as
asserted). 151 Hawaiʻi 390, 400, 515 P.3d 207, 217 (2022).
Hence, the additional monetary assessments against Warner are
all criminal fines and Warner challenged all the fines in his
sentence: $1,420 in crime victim compensation fees, the $1,420
drug demand reduction assessment, $7,500 for methamphetamine
trafficking restitution and reimbursement, and the assessment of
up to $500 to the DNA registry special fund for the cost of a
DNA analysis.
a. Failure of sentencing court to advise Warner of
possible monetary assessments before accepting
the change of plea
The sentencing court did not inform Warner of any of the
monetary assessments it imposed before accepting Warner’s change
of plea.
HRPP Rule 11(c)(2) requires that, before accepting a plea,
courts ensure defendants understand various matters, including
“the maximum penalty provided by law . . . which may be imposed
for the offense to which the plea is offered[.]” In State v.
Kealoha, we stated:
[W]e hold that because restitution is part of the “maximum
penalty provided by law” and is a direct consequence of
conviction, defendants must be appropriately advised and
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questioned in open court regarding their understanding of
this possibility before a court can accept their pleas.
142 Hawaiʻi 46, 50, 414 P.3d 98, 102 (2018). We noted that
restitution, like imprisonment, fees, and fines, can only be
imposed upon conviction, and is a direct consequence of
conviction and a part of the sentence. 142 Hawaiʻi at 60-61,
414
P.3d at 112-13. And pursuant to Yamashita, all of the monetary
assessments imposed on Warner constitute fines. 151 Hawaiʻi at
400,
515 P.3d at 217. Hence, the sentencing court did not
fulfill its advisement obligation before accepting Warner’s
plea.
With respect to a remedy for the failure to advise, Kealoha
had requested a resentencing without the restitution, or in the
alternative, to allow withdrawal of his guilty plea. Kealoha,
142 Hawaiʻi at 62, 414 P.3d at 114. We noted that HRS § 706-
646(2) did not allow for resentencing without restitution to the
victim being ordered, as restitution in that case was requested
by the victim, and was reasonable and verifiable. 142 Hawaiʻi at
62,
414 P.3d at 114. We also stated:
Although the circuit court did not conduct a proper
colloquy in Kealoha’s case, because Kealoha never filed an
appropriate motion in the circuit court, we affirm his
convictions without prejudice to him filing a HRPP Rule 40
petition in the circuit court.
142 Hawaiʻi at 50, 414 P.3d at 102.
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In contrast, Warner has already filed this HRPP Rule 40
petition requesting a waiver of all fees and fines. Thus,
Warner stated a colorable claim as to his request that the
monetary assessments, which constitute fines, be set aside based
on the sentencing court’s failure to advise him of them before
accepting his plea. Hence, the ICA erred by determining that,
to the extent Warner’s petition challenged his guilty plea as
not knowingly and intelligently made, Warner had not stated a
colorable claim. Warner, SDO at 6.
b. Failure of sentencing court to address ability to
pay
The sentencing court made no findings regarding Warner’s
ability to pay before including the monetary assessments as part
of the sentence, whether then or in the future. Whether a
defendant has the financial ability to pay is relevant and
important. Subsection (4) of HRS § 706-6447 allows for unpaid
7 HRS § 706-644 (2014 & Supp. 2021) provides in relevant part:
§706-644 Consequences of nonpayment; imprisonment for
contumacious nonpayment; summary collection. (1) When a
defendant is sentenced . . . and the defendant is ordered
to pay a fee, fine, or restitution . . . and the defendant
defaults in the payment thereof . . . , the court . . .
may require the defendant to show cause why the defendant's
default should not be treated as contumacious . . . .
Unless the defendant shows that the defendant’s default was
not attributable to an intentional refusal to obey the
order of the court, or to a failure on the defendant’s part
to make a good faith effort to obtain the funds required
for the payment, the court shall find that the defendant's
default was contumacious and may order the defendant
committed until the fee, fine, restitution, or a specified
part thereof is paid.
. . . .
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fees and fines to be forgiven if the failure to pay is not
contumacious. Subsection (3) of HRS § 706-6448 allows for unpaid
fees, fines, or restitution to be converted into prison
sentences, but the incarceration of a defendant solely on the
basis of inability to pay is unconstitutional. State v.
Huggett, 55 Haw. 632, 638,
525 P.2d 1119, 1124 (1974)9 (citing
State v. Tackett,
52 Haw. 601,
483 P.2d 191 (1971)).
We have also held that a statute providing discretion to
waive or reduce litigation expenses payable by those charged
with crimes requires a determination regarding the defendant’s
financial ability to pay. Arnold v. Higa, 61 Haw. 203, 206, 600
(3) The term of imprisonment for nonpayment of fee, fine,
or restitution shall be specified in the order of
commitment, and shall not exceed one day for each $250 of
the fee or fine, thirty days if the fee or fine was imposed
upon conviction of a violation or a petty misdemeanor, or
one year in any other case, whichever is the shorter
period. A person committed for nonpayment of a fee or fine
shall be given credit toward payment of the fee or fine for
each day of imprisonment, at the rate of $250 per day.
(4) If it appears that the defendant’s default in the
payment of a fee, fine, or restitution is not contumacious,
the court may make an order allowing the defendant
additional time for payment, reducing the amount of each
installment, or revoking the fee, fine, or the unpaid
portion thereof in whole or in part, or converting the
unpaid portion of the fee or fine to community service. A
defendant shall not be discharged from an order to pay
restitution until the full amount of the restitution has
actually been collected or accounted for.
. . . .
8 See supra note 7.
9 The United States Supreme Court has also held that courts may not
incarcerate a person for nonpayment of a fine or restitution without a
hearing on ability to pay and a finding that the failure to pay was willful.
Bearden v. Georgia, 461 U.S 660, 667-69 (1983).
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P.2d 1383, 1384 (1979) (“[A] determination [of] whether [a
defendant] could afford additional litigation expenses should
have been made.”).
As explained below, Warner therefore also stated a
colorable claim regarding his request to waive all monetary
penalties because the sentencing court did not address his
ability to pay.
(i) Crime victim compensation fees
The sentencing court had ordered Warner to pay $1,420 in
crime victim compensation (“CVC”) fees. In Yamashita, we also
held that the imposition of CVC fees requires a determination of
a defendant’s present ability to pay those fees at the time of
sentencing. 151 Hawaiʻi at 398, 515 P.3d at 215. We held the
legislative history of HRS §§ 706-605(6)10 and 351-62.6(a)11
10 HRS § 706-605(6) (Supp. 2016) provides:
The court shall impose a compensation fee upon every person
convicted of a criminal offense pursuant to section 351-
62.6; provided that the court shall waive the imposition of
a compensation fee if it finds that the defendant is unable
to pay the compensation fee. When a defendant is ordered
to make payments in addition to the compensation fee,
payments by the defendant shall be made in the order of
priority established in section 706-651.
11 HRS § 351-62.6(a) (Supp. 2005) provides:
The court shall impose a compensation fee upon every
defendant who has been convicted or who has entered a plea
under section 853-1 and who is or will be able to pay the
compensation fee. The amount of the compensation fee shall
be commensurate with the seriousness of the offense as
follows:
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indicates “the guiding inquiry in imposing a CVC fee is whether
the defendant is presently able to pay such a fee.” 151 Hawaiʻi
at 398, 515 P.3d at 215 (emphasis in original). We held the CVC
fee should not have been imposed because the trial court’s
findings only “bore on [the defendant’s] future, not present,
ability to pay the fee.” 151 Hawaiʻi at 399,
515 P.3d at 216.
Hence, Yamashita’s present inability to pay the CVC fee mandated
waiver of the fee. 151 Hawaiʻi at 399,
515 P.3d at 216.
Here, the sentencing court imposed a $1,420 CVC fee without
making any findings as to Warner’s present ability to pay.
Thus, pursuant to Yamashita, Warner stated a colorable claim as
to the CVC fee for this reason also.
(ii) Drug demand reduction assessment
The sentencing court also ordered Warner to pay a $1,420
drug demand reduction assessment (“DDRA”). HRS § 706-65012
(1) Not less than $105 nor more than $505 for a
felony;
(2) $55 for a misdemeanor; and
(3) $30 for a petty misdemeanor.
The compensation fee shall be separate from any fine that
may be imposed under section 706-640 and shall be in
addition to any other disposition under this chapter;
provided that the court shall waive the imposition of a
compensation fee if the defendant is unable to pay the
compensation fee. Moneys from the compensation fees shall
be deposited into the crime victim compensation special
fund under section 351-62.5.
12 HRS § 706-650 (Supp. 2016) provides, in relevant part:
(1) In addition to any disposition authorized by chapter
706 or 853, any person who is:
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requires a court to impose the DDRA for drug and intoxicating
compound convictions. The statute explicitly allows the court
to waive or reduce the amount, however, if the defendant lacks
the financial ability to pay all or part of it. See HRS § 706-
650(5).
When a statute provides a court with discretion to waive or
reduce expenses that must be paid, the court must make a
determination of the defendant’s financial ability to pay.
Arnold, 61 Haw. at 206,
600 P.2d at 1384. The sentencing court
made no findings regarding Warner’s ability to pay the DDRA.
Warner therefore also stated a colorable claim regarding the
DDRA for this reason.
(a) Convicted of an offense under part IV of
chapter 712, except sections 712-1250.5 and
712-1257;
. . . .
shall be ordered to pay a monetary assessment under
subsection (2), except as provided under subsection (5).
(2) Monetary assessments for individuals subject to
subsection (1) shall not exceed the following:
. . . .
(b) $2,000 when the offense is a class B felony;
. . . .
(5) If the court determines that the person has the ability
to pay the monetary assessment and is eligible for
probation or will not be sentenced to incarceration, unless
otherwise required by law, the court may order the person
to undergo a substance abuse treatment program at the
person’s expense. If the person undergoes a substance
abuse treatment program at the person’s expense, the court
may waive or reduce the amount of the monetary
assessment. Upon a showing by the person that the person
lacks the financial ability to pay all or part of the
monetary assessment, the court may waive or reduce the
amount of the monetary assessment.
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(iii) Methamphetamine trafficking restitution and
reimbursement
The sentencing court also sentenced Warner to pay $7,500 as
methamphetamine trafficking restitution and reimbursement
(“MTRR”). HRS § 712-1240.9,13 however, provides courts with
discretion regarding whether to order MTRR for methamphetamine
trafficking convictions.14 Again, when a statute provides a
court with discretion to waive or reduce expenses that must be
paid, the court must make a determination of the defendant’s
financial ability to pay. Arnold, 61 Haw. at 206,
600 P.2d at
13 HRS § 712-1240.9 (2014) provided:
When sentencing a defendant convicted of
methamphetamine trafficking pursuant to section 712-1240.7
or 712-1240.8, the court may order restitution or
reimbursement to the State or appropriate county government
for the cost incurred for any cleanup associated with the
manufacture or distribution of methamphetamine and to any
other person injured as a result of the manufacture or
distribution of methamphetamine.
As discussed, Warner pleaded guilty to three counts amended to
methamphetamine trafficking in the second degree, pursuant to HRS § 712-
1240.8 (repealed 2016). At the time of sentencing, HRS § 712-1240.8
provided, in relevant part:
(2) Methamphetamine trafficking in the second degree is a
class B felony for which the defendant shall be sentenced
as provided in subsection (3).
(3) Notwithstanding sections 706–620, 706–640, 706–641,
706–660, 706–669, and any other law to the contrary, a
person convicted of methamphetamine trafficking in the
second degree shall be sentenced to an indeterminate term
of imprisonment of ten years with a mandatory minimum term
of imprisonment of not less than one year and not greater
than four years and a fine not to exceed $10,000,000[.]
14 The MTRR is characterized as “restitution or reimbursement” payable to
the State or a county. HRS § 706-644(4), supra n.7, treats restitution
differently from fees or fines; fees or fines can be forgiven or converted to
community service, but restitution cannot be forgiven.
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1384. Warner therefore also stated a colorable claim regarding
the MTRR on this basis.
(iv) DNA analysis assessment
The circuit court also sentenced Warner to pay up to $500
for the actual cost of a DNA analysis (“DAA”) to the DNA
registry special fund, pursuant to HRS § 706-603.15 The statute,
however, provides that courts “may” reduce the assessment amount
if the court finds the defendant “is not and will not be able to
pay the full monetary assessment.” But upon such a finding, the
court “shall instead order the defendant to pay an assessment
that the defendant will be able to pay within five years.” HRS
§ 706-603.
No findings were made regarding Warner’s ability to pay the
DAA at the time of sentencing or within five years thereafter.
Therefore, Warner stated a colorable claim regarding the DAA for
this reason as well. See Arnold, 61 Haw. at 206,
600 P.2d at
1384.
15 HRS § 706-603(1) (2014) provides:
In addition to any disposition authorized by chapter 706 or
853, every defendant convicted of a felony offense shall be
ordered to pay a monetary assessment of $500 or the actual
cost of the DNA analysis, whichever is less. The court may
reduce the monetary assessment if the court finds, based on
evidence presented by the defendant and not rebutted by the
State, that the defendant is not and will not be able to
pay the full monetary assessment and, based on the finding,
shall instead order the defendant to pay an assessment that
the defendant will be able to pay within five years.
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Thus, Warner raised a colorable claim as to his request
that the circuit court “waive all fines and fees that were
imposed at sentencing.” On remand, he is entitled to
appointment of counsel and a hearing on this request.16
3. Grounds six through eight should have been transferred
for disposition under the civil rules pursuant to HRPP
Rule 40(c)(3)
The circuit court concluded grounds six through eight were
without merit because they sought compensatory relief not
available under HRPP Rule 40. HRPP Rule 40(c)(3), however,
provides:
If a post-conviction petition alleges neither illegality of
judgment nor illegality of post-conviction “custody” or
“restraint” but instead alleges a cause of action based on
a civil rights statute or other separate cause of action,
the court shall treat the pleading as a civil complaint not
governed by this rule. However, where a petition seeks
relief of the nature provided by this rule and
simultaneously pleads a separate claim or claims under a
civil rights statute or other separate cause of action, the
latter claim or claims shall be ordered transferred by the
court for disposition under the civil rules.
(Emphasis added.) Thus, civil claims included in HRPP Rule 40
petitions must be transferred for disposition under civil rules.
16 HRPP Rule 40(f) provides, in relevant part:
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.
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The ICA held that Warner provided no argument as to
grounds six through eight of his petition and that those issues
were waived pursuant to HRAP Rule 28(b)(4) and (7). Warner, SDO
at 5 n.5. Not only are pleadings prepared by pro se litigants
to be interpreted liberally, Waltrip, 140 Hawaiʻi at 239, 398
P.3d at 828, but Warner’s petition also actually states civil
claims.
In ground six, “Medical and Psych decompensation,” Warner
alleged, “[d]uring the processing of this case and my
cooperation efforts with law enforcement my medical and psych
conditions suffered decompensation from healthy stable to
serious and potentially critical disorders and injuries.”
In ground seven, “Discrimination and reverse racism,”
Warner alleged, “I was targeted and treated with deliberate
indifference and corrupt profiling by Hawaii Officials and
professionals [in part] because I am Haole and did not pay HPD
and Sheriffs protection money. . . .”
In ground eight, “Accumulative errors,” Warner alleged
“[The pathology of all the above, and then some,],” and said
“Please see ‘Accumulative Errors: Defendant Petitioner’s
Annotated List of Facts, Occurrences, Circumstances,
Coincidences’ with its Exhibits 01 to 14, attached hereto.”
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Exhibits 01 to 14, in turn, reflected numerous and varied civil
claims involving many institutions and individuals.17
Warner’s petition asked the circuit court not only to end
his sentence, but also to evaluate his “civil injustices,
medical decompensation, and material and financial losses, and
make compensatory judgements.” (Emphasis added.) The petition
sought “relief of the nature provided by [HRPP Rule 40]” and
pleaded “a separate claim or claims under a . . . separate cause
of action[.]” HRPP Rule 40(c)(3). Hence, Warner’s claims in
grounds six through eight should have been “ordered transferred
by the court for disposition under the civil rules.” HRPP Rule
40(c)(3); see also Hutch v. State, 107 Hawaiʻi 411, 420, 114 P.3d
917, 926 (2005). Grounds six through eight should then be
treated as any other civil complaint subject to “the civil
rules,” which include the Hawaiʻi Rules of Civil Procedure and
applicable rules in the Rules of the Circuit Courts of the State
of Hawaiʻi.
V. Conclusion
For these reasons, we hold (1) there was no error in
dismissing grounds one through five of Warner’s Rule 40 petition
17 Grounds six through eight contain myriad complaints, some of which have
no connection to Hawaiʻi, but do include some personal injury and civil rights
claims. For example, Warner alleges he suffered a broken left ankle during
his arrest in Honolulu, negligent treatment for a leg laceration injury, and
inadequate medical treatment while incarcerated. We of course express no
opinion as to the merits of any of the complaints.
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without a hearing; but (2) Warner raised a colorable claim as to
the monetary assessments in his sentence, which constitute
fines; and (3) grounds six through eight raised civil claims
required to be transferred for disposition under civil rules
pursuant to HRPP Rule 40(c)(3).
We therefore vacate in part the ICA’s June 9, 2021 judgment
on appeal and the circuit court’s February 1, 2019 order denying
Warner’s petition without a hearing, and remand to the circuit
court for further proceedings consistent with this opinion.
Luke J. Warner /s/ Mark E. Recktenwald
petitioner pro se
/s/ Paula A. Nakayama
Stephen K. Tsushima
for respondent /s/ Sabrina S. McKenna
/s/ Michael D. Wilson
/s/ Todd W. Eddins
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