NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
25-OCT-2022
07:50 AM
Dkt. 44 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAIʻI
CODY JOSEPH PRESTI, Petitioner-Appellant,
v.
STATE HAWAIʻI, Respondent-Appellee
APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT
(CASE NO. 2CPN-XX-XXXXXXX)
SUMMARY DISPOSITION ORDER
(By: Leonard, Presiding Judge, Wadsworth and Nakasone, JJ.)
Petitioner-Appellant Cody J. Presti (Presti), self-represented, appeals from the May 20, 2020 Findings of Fact
(FOFs), Conclusions of Law (COLs), and Order Denying Petition for
Post-Conviction Relief entered by the Circuit Court of the Second
Circuit (Circuit Court).1 The Circuit Court denied Presti's Ex
Parte Motion To Reduce Charge filed December 23, 2019, after
construing it as a Hawaiʻi Rules of Penal Procedure (HRPP) Rule
40 Petition (Rule 40 Petition).
On appeal, Presti contends the Circuit Court
erroneously denied his Rule 40 Petition without a hearing.2
1
The Honorable Richard T. Bissen, Jr. presided.
2
Presti's opening brief does not comply with Rule 28(b) of the
Hawaiʻi Rules of Appellate Procedure. However, to promote access to justice,
the Hawaiʻi Supreme Court instructs that pleadings prepared by
self-represented litigants should be interpreted liberally, and
self-represented litigants should not automatically be foreclosed from
appellate review because they fail to comply with court rules. Erum v. Llego,
147 Hawaiʻi 368, 380-81, 465 P.3d 815, 827-28 (2020). Accordingly, we address
what we discern to be Presti's arguments.
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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, we affirm.
Presti's Rule 40 Petition raised three grounds for
relief: (1) invalid plea agreement; (2) ineffective assistance of
counsel; and (3) insufficient evidence for conviction. The
Circuit Court denied the Petition without a hearing on grounds
that Presti's claims were "patently frivolous, without a trace of
support and the issues were waived." We review a denial of a
Rule 40 petition without a hearing de novo, under the right/wrong
standard of review. Dan v. State, 76 Hawaiʻi 423, 427, 879 P.2d
528, 532 (1994).
Presti does not challenge the Circuit Court's FOFs,
which are therefore "binding upon this court." State v.
Rodrigues, 145 Hawaiʻi 487, 494, 454 P.3d 428, 435 (2019)
(citations and internal quotation marks omitted). Presti was
indicted for Robbery in the Second Degree on January 26, 2018.
FOF 1. Pursuant to a plea agreement, Presti pled no contest to
the amended charge of Theft in the Second Degree on August 16,
2018. FOFs 5, 6. The Circuit Court accepted Presti's plea and
found that Presti voluntarily, knowingly, and intelligently
entered the plea with a full understanding of the nature of the
charge and the consequences of his plea. FOFs 14, 15. The
pertinent findings state:
6. Pursuant to a plea agreement, PRESTI changed his
plea from not guilty to no contest, and a change of plea
form was submitted to the Court.
. . . .
8. PRESTI signed the acknowledgment included in the
change of plea form in open court, which states that, "I
acknowledge that the Judge questioned me personally in open
court to make sure that I knew what I was doing in pleading
no contest and understood this form before I signed it."
. . . .
12. PRESTI confirmed that he discussed all of the
evidence and received advice on the law from his attorney,
and did not want to contest the charge against him.
13. PRESTI confirmed that he was pleading of his own
free will, and that nobody was pressuring him or threatening
him or any other person to force him to plead, and that he
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was not taking the blame or pleading to protect another
person from prosecution.
14. The Court found that PRESTI voluntarily,
knowingly, and intelligently entered into the plea with a
full understanding of the nature of the charge against him
and the consequences of his plea.
On November 8, 2018, Presti was sentenced to five years
of imprisonment. FOF 16. Presti filed the Rule 40 Petition on
December 23, 2019; the State filed its response; Presti filed a
reply; and the Circuit Court denied the petition without a
hearing on May 20, 2020.
(1) In the Rule 40 Petition, Presti argued that he was
coerced into accepting the plea agreement, which the Circuit
Court construed as an argument that Presti's conviction was
obtained without understanding the nature of the amended charge
and the consequences of his plea (Ground One).
Ground One is without merit. A "[no contest] plea made
voluntarily and intelligently precludes a defendant from later
asserting any nonjurisdictional claims, including constitutional
challenges to the pretrial proceedings." State v. Morin, 71 Haw.
159, 162,
785 P.2d 1316, 1318 (1990). Ground One is
nonjurisdictional because it does not challenge the Circuit
Court's jurisdiction over the case. See Schwartz v. State, 136
Hawaiʻi 258, 281, n.42,
361 P.3d 1161, 1184 n.42 (2015)
(describing a jurisdictional defect as one that precludes the
court from "exercising criminal jurisdiction"). Based on the
unchallenged findings above, the Circuit Court did not err in
concluding that Presti's claims were patently frivolous and
without trace of support in the record, and denying the petition
without a hearing. See HRPP Rule 40(f) ("[T]he court may deny a
hearing if the petitioner's claim is patently frivolous and is
without trace of support . . . in the record[.]"); Dan, 76
Hawaiʻi at 427, 879 P.2d at 532.
(2) In the Rule 40 Petition, Presti argued that in
February 2019, after Presti was sentenced, his attorney failed to
assist him with obtaining a duplicate copy of a lost affidavit,
which the Circuit Court construed as a claim of ineffective
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assistance of counsel (Ground Two). The Rule 40 Petition claimed
that this affidavit from "Johnathan Bisutti"3 would support
Presti's claim that the "amount taken in said theft was no more
than $260.00," and that because Presti was "not the main
perpetrator but rather an accomplice acting under duress," there
were "mitigating factors" to warrant a reduction of the Theft in
the Second Degree charge to Theft in the Third Degree.
Ground Two is without merit, where the Circuit Court's
unchallenged finding that Presti voluntarily, knowingly, and
intelligently entered the plea, precludes subsequent
nonjurisdictional challenges. See Morin, 71 Haw. at 162,
785
P.2d at 1318. The record reflects that Presti's original charge
of Robbery in the Second Degree was reduced to Theft in the
Second Degree pursuant to a plea agreement, and Presti pled no
contest to the reduced charge. The Circuit Court did not err in
concluding that Ground Two was patently frivolous where any error
or omission by Presti's attorney regarding a lost affidavit in
February 2019 could not affect any potentially meritorious
defense, because any nonjurisdictional challenges to the
conviction were waived. See Maddox v. State, 141 Hawaiʻi 196,
202,
407 P.3d 152, 158 (2017) (citation omitted) (brackets in
original) (setting forth the elements to prevail on a claim of
ineffective assistance of counsel as: "(1) 'specific errors or
omissions of defense counsel reflecting counsel's lack of skill,
judgment[,] or diligence'; and that (2) 'those errors or
omissions resulted in the withdrawal or substantial impairment of
a potentially meritorious defense.'"); Morin,
71 Haw. at 162,
785
P.2d at 1318. The Circuit Court's denial of the petition without
a hearing was not erroneous. See HRPP Rule 40(f); Dan, 76
Hawaiʻi at 427,
879 P.2d at 532.
3
We take judicial notice that "Johnathan Bisutti" ( Bisutti) was
indicted as a co-defendant with Presti in 2CPC-XX-XXXXXXX, and charged with
Robbery in the Second Degree and Assault in the Second Degree. See Hawaiʻi
Rules of Evidence Rule 201; State v. Kwong, 149 Hawaiʻi 106, 117, 482 P.3d
1067, 1078 (2021). Bisutti was convicted of Assault in the Second Degree and
was sentenced on November 1, 2018.
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(3) In the HRPP Rule 40 Petition, Presti alleged
several facts:
A. ". . . I was both assaulted and threatened in order to
coherce [sic] my compliance in the above theft . . .";
B. ". . . the amount taken in said theft was no more than
$260.00 and I did not keep any of that money,
therefore I was not a beneficiary of the fruit of the
crime."; and
C. ". . . I was not the main perpetrator but rather an
accomplice acting under duress, and there are several
mitigating factors in this case; it is appropriate
that this carge [sic] be reduced to theft in the
third degree."
FOF 17. The Circuit Court construed these statements,
collectively, as a claim of insufficient factual basis for
conviction (Ground Three).
For the same reasons set forth above, Ground 3 is
without merit, as Presti is precluded from raising
nonjurisdictional challenges to his conviction where he pled no
contest. See Morin, 71 Haw. at 162,
785 P.2d at 1318. The
Circuit Court did not err in concluding that Ground 3 was
patently frivolous and without a trace of support in the record,
and in denying the petition without a hearing. See HRPP Rule
40(f); Dan, 76 Hawaiʻi at 427,
879 P.2d at 532.
For the foregoing reasons, the May 20, 2020 Findings of
Fact, Conclusions of Law, and Order Denying Petition for Post-Conviction Relief, entered by the Circuit Court for the Second
Circuit, is affirmed.
DATED: Honolulu, Hawaiʻi, October 25, 2022.
On the briefs:
/s/ Katherine G. Leonard
Cody Joseph Presti, Presiding Judge
Self Represented.
/s/ Clyde J. Wadsworth
Renee Ishikawa Delizo, Associate Judge
Deputy Prosecuting Attorney,
County of Maui, /s/ Karen T. Nakasone
for Respondent-Appellee. Associate Judge
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