Sidebar: Hawaii Supreme Court And Ineffective Assistance Of Appellate Counsel

by Robert Thomas, InverseCondemnation, Dec 9, 2020

We're taking a slight detour today from our usual fare, to cover a case in which we represented the petitioner that involves effective assistance of counsel. Appellate counsel. It's a post-conviction relief case and not takings, but if you are interested in appellate practice, read on.

In Villados v. State of Hawaii, No. SCWC-15-0000111 (Dec. 9, 2020), the unanimous court confirmed that "a criminal defendant has the right to effective assistance of counsel on certiorari review" to the Hawaii Supreme Court. slip op. at 2.

The petitioner was convicted by a Maui trial court, and the court of appeals affirmed the conviction. His court-appointed appellate attorney first declined to seek discretionary certiorari review in the Hawaii Supreme Court, but later changed her mind and informed the petitioner that she would file a writ. But she did not do so within the thirty days allowed by statute. The petitioner, acting as his own counsel later applied for certiorari to challenge the court of appeals' decision, but the petition was dismissed as untimely for lack of jurisdiction.  

Having exhausted his direct appeals, the petitioner sought post-conviction relief in the same Maui court which had convicted him. (Hawaii's court rules -- Haw. R. Penal P. 40, specifically -- creates a process similar to a petition for habeas corpus to challenge the legality of a conviction after-the-fact.) The trial court concluded that indeed, appellate counsel had been ineffective, but also declined to enter any relief because a trial court obviously cannot order the Supreme Court to reconsider a cert petition the court had previously denied. The court of appeals affirmed for the same reasons.

We filed an Application for Writ of Certiorari (we don't call these things "petitions" in the 808, but rather "applications") arguing that Hawaii's post-conviction relief rule should have compelled the trial court to craft some kind of remedy after it concluded that the petitioner had received ineffective assistance of counsel, and it could not simply dismiss the case. Every wrong has a remedy, after all. If the trial court could not order the Supreme Court to review the untimely cert application, it had an obligation to do something else. New trial, vacate the conviction...or something. Not dismissal.

The Supreme Court agreed. It reaffirmed that effective assistance of appellate counsel -- even at the discretionary review stage -- is a constitutional right, and that "remedy for ineffective assistance of counsel must be responsive to the nature of counsel’s errors." Slip op. at 16. The court concluded that the relief should be tailored as much as possible to the wrong, and held that "providing a defendant with the opportunity to pursue the petition is the appropriate remedy when appellate counsel is ineffective by depriving them of that right." Slip op. at 20. In short, the petitioner "should be entitled to 'proceed with his appeal' to this court as if the ineffective assistance had not been rendered." Slip op. at 21 (citation omitted).

The court, recognizing the conundrum that the existing process put both lower courts and petitioners in, also established the procedures for future post-conviction challenges for ineffective assistance of appellate counsel: Hawaii trial courts may issue orders under Haw. R. Penal P. 40 "vacating and reentering the trial court judgment in order for the defendant to pursue the appeal." Slip op. at 23 (footnote omitted). Check out footnote 10 on page 23, where the court rejected the idea that the inability of a trial court to order the Supreme Court to consider an untimely cert application meant that no relief is possible. Instead, the Supreme Court urged trial courts to think outside the box, and accepted our core argument (that trial courts have an obligation to afford some kind of relief, and not simply punt the case upstairs by dismissing):

We are aware that in State v. Mamalias, we held that a trial court does not have the authority to “extend[] the expired time for appeal in the underlying criminal case.” 69 Haw. 581, 582, 751 P.2d 1029, 1030 (1988). This is true – HRAP Rule 4 on its face does not allow for additional extensions of time in a criminal case beyond that provided in Rule 4(b)(5). We do not suggest that a trial court is empowered to ignore the plain language of the rule by extending the time to appeal.

But we also reject a reading of Mamalias that precludes any ability for a Rule 40 court to award relief for ineffective assistance of appellate counsel. Our holding today recognizes that ineffective assistance of counsel on appeal requires an appropriate remedy, as is reflected in our precedents establishing an appellate court does not necessarily lose jurisdiction over an untimely appeal when ineffective assistance causes the untimeliness.

Slip op. at 23 n.10.

Special kudos go out to our law firm colleagues Joanna Zeigler and Mark Murakami, who played a large part in writing our application for cert, and to friend and colleague Ben Lowenthal (now with the P.D.'s office) who was instrumental in formulating our arguments.

Now back to your regular takings programming.

PDF: Villados v. State of Hawaii, No. SCWC-15-0000111 (Haw. Dec. 9, 2020)