ineffective assistance of counsel claim in Hawaii

2023Silva, 75 Haw. at 439 , 864 P.2d at 592 - 93 ("[W]here the record on appeal is insufficient to demonstrate ineffective assistance of counsel, but where: (1) the defendant alleges facts that if proven would entitle him or her to relief, and (2) the claim is not patently frivolous and without trace of support in the record, the appellate court may affirm defendant's conviction without prejudice to a subsequent Rule 40 petition on the ineffective assistance of counsel claim."). (. . .continued) shall serve a copy of the brief on the attorney alleged to have been ineffective."). 13 NOT FOR PUBLICA

2023Silva, 75 Haw. at 439 , 864 P.2d at 592 - 93 ("[W]here the record on appeal is insufficient to demonstrate ineffective assistance of counsel, but where: (1) the defendant alleges facts that if proven would entitle him or her to relief, and (2) the claim is not patently frivolous and without trace of support in the record, the appellate court may affirm defendant's conviction without prejudice to a subsequent Rule 40 petition on the ineffective assistance of counsel claim."). (. . .continued) shall serve a copy of the brief on the attorney alleged to have been ineffective."). 13 NOT FOR PUBLICA

2000In considering a defendant’s claim of ineffective assistance of counsel, we employ the analysis adopted by the Hawai'i Supreme Court: This court has long held that when an ineffective assistance of counsel claim is raised, the question is: “When viewed as a whole, was the assistance provided to the defendant within the range of competence demanded of attorneys in criminal cases?” State v. Edwards, 81 Hawai'i 293, 300 , 916 P.2d 703, 710 (1996).

2000In considering a defendant's claim of ineffective assistance of counsel, we employ the analysis adopted by the Hawai`i Supreme Court: This court has long held that when an ineffective assistance of counsel claim is raised, the question is: "When viewed as a whole, was the assistance provided to the defendant within the range of competence demanded of attorneys in criminal cases?" State v. Edwards, 81 Hawai`i 293, 300, 916 P.2d 703, 710 (1996).

2010Further, this court has held in the context of an ineffective assistance of counsel claim, that “matters presumably within the judgment of counsel, like trial strategy, will rarely be second-guessed by judicial hindsight.” State v. Richie, 88 Hawai'i 19, 39-40 , 960 P.2d 1227, 1247-48 (1998) (quoting State v. Smith, 68 Haw. 304, 311 , 712 P.2d 496, 501 (1986)) (ellipses added, internal quotation marks omitted).

2010Further, this court has held in the context of an ineffective assistance of counsel claim, that “matters presumably within the judgment of counsel, like trial strategy, will rarely be second-guessed by judicial hindsight.” State v. Richie, 88 Hawai'i 19, 39-40 , 960 P.2d 1227, 1247-48 (1998) (quoting State v. Smith, 68 Haw. 304, 311 , 712 P.2d 496, 501 (1986)) (ellipses added, internal quotation marks omitted).

2003When an ineffective assistance of counsel claim is raised, the defendant has the burden of establishing: 1) that there were specific errors or omissions reflecting counsel’s lack of skill, judgment, or diligence; and 2) that such errors or omissions resulted in either the withdrawal or substantial impairment of a potentially meritorious defense. *499 State v. Jones, 96 Hawai'i 161, 166 , 29 P.3d 351, 356 (2001) (internal quotations marks and citation omitted).

2003When an ineffective assistance of counsel claim is raised, the defendant has the burden of establishing: 1) that there were specific errors or omissions reflecting counsel’s lack of skill, judgment, or diligence; and 2) that such errors or omissions resulted in either the withdrawal or substantial impairment of a potentially meritorious defense. *499 State v. Jones, 96 Hawai'i 161, 166 , 29 P.3d 351, 356 (2001) (internal quotations marks and citation omitted).

2022In the context of an ineffective assistance of counsel claim, "[m]atters presumably within the judgment of counsel, like trial strategy, will rarely be second-guessed by judicial hindsight." DeLeon, 131 Hawai#i at 479, 319 P.3d at 398 (quoting State v. Richie, 88 Hawai#i 19, 39-40, 960 P.2d 1227, 1247-48 (1998)).

2010Further, this court has held in the context of an ineffective assistance of counsel claim, that “matters presumably within the judgment of counsel, like trial strategy, will rarely be second-guessed by judicial hindsight.” State v. Richie, 88 Hawai'i 19, 39-40 , 960 P.2d 1227, 1247-48 (1998) (quoting State v. Smith, 68 Haw. 304, 311 , 712 P.2d 496, 501 (1986)) (ellipses added, internal quotation marks omitted).

1998In the context of an ineffective assistance of counsel claim, this court has held that “matters presumably within the judgment of counsel, like trial strategy, ‘will rarely be second-guessed by judicial hind *40 sight.’ ” State v. Smith, 68 Haw. 304, 311 , 712 P.2d 496, 501 (1986) (quoting State v. El’Ayache, 62 Haw. 646, 649 , 618 P.2d 1142, 1144 (1980)) (emphasis added). “[T]he decision whether to call witnesses in a criminal case is normally a matter within the judgment of counsel and, accordingly, will rarely be second-guessed by judicial hindsight.” Aplaca, 74 Haw. at 70 , 837 P.2d at 130

1998In the context of an ineffective assistance of counsel claim, this court has held that “matters presumably within the judgment of counsel, like trial strategy, ‘will rarely be second-guessed by judicial hind *40 sight.’ ” State v. Smith, 68 Haw. 304, 311 , 712 P.2d 496, 501 (1986) (quoting State v. El’Ayache, 62 Haw. 646, 649 , 618 P.2d 1142, 1144 (1980)) (emphasis added). “[T]he decision whether to call witnesses in a criminal case is normally a matter within the judgment of counsel and, accordingly, will rarely be second-guessed by judicial hindsight.” Aplaca, 74 Haw. at 70 , 837 P.2d at 130

2010Moreover, “[sjpeeifie actions or omissions alleged to be error but which had an obvious tactical basis for bene-fitting the defendant’s case will not be subject to further scrutiny.” State v. De Guair, 108 Hawai'i 179, 187 , 118 P.3d 662, 670 (2005) (quoting Briones v. State, 74 Haw. 442, 462-63 , 848 P.2d 966, 976 (1993) (emphases in original)).

2010Moreover, “[sjpeeifie actions or omissions alleged to be error but which had an obvious tactical basis for bene-fitting the defendant’s case will not be subject to further scrutiny.” State v. De Guair, 108 Hawai'i 179, 187 , 118 P.3d 662, 670 (2005) (quoting Briones v. State, 74 Haw. 442, 462-63 , 848 P.2d 966, 976 (1993) (emphases in original)).

2001When an ineffective assistance of counsel claim is raised, the defendant has the burden of establishing: “1) that there were specific errors or omissions reflecting counsel’s lack of skill, judgment, or diligence; and 2) that such errors or omissions resulted in either the withdrawal or substantial impairment of a potentially meritorious defense.” State v. Fukusaku, 85 Hawai'i 462, 479-80 , 946 P.2d 32, 49-50 (1997) (citations omitted).

2001When an ineffective assistance of counsel claim is raised, the defendant has the burden of establishing: "1) that there were specific errors or omissions reflecting counsel's lack of skill, judgment, or diligence; and 2) that such errors or omissions resulted in either the withdrawal or substantial impairment of a potentially meritorious defense." State v. Fukusaku, 85 Hawai`i 462, 479-80, 946 P.2d 32, 49-50 (1997) (citations omitted).

2000This court has held, in the context of an ineffective assistance of counsel claim, that “matters presumably within the judgment of counsel, like trial strategy, 'will rarely be second-guessed by judicial hindsight.’ ” Richie , 88 Ha-wai'i at 39-40, 960 P.2d at 1247 -48 (quoting State v. Smith, 68 Haw. 304, 311 , 712 P.2d 496, 501 (1986) (quoting State v. El'Ayache, 62 Haw. 646, 649 , 618 P.2d 1142, 1144 (1980))) (emphasis in original).

2000This court has held, in the context of an ineffective assistance of counsel claim, that “matters presumably within the judgment of counsel, like trial strategy, 'will rarely be second-guessed by judicial hindsight.’ ” Richie , 88 Ha-wai'i at 39-40, 960 P.2d at 1247 -48 (quoting State v. Smith, 68 Haw. 304, 311 , 712 P.2d 496, 501 (1986) (quoting State v. El'Ayache, 62 Haw. 646, 649 , 618 P.2d 1142, 1144 (1980))) (emphasis in original).

2011The court acknowledged that “not every trial record is sufficiently developed to determine whether there has been ineffective assistance of counsel[.]” Id. at 439 , 864 P.2d at 592 ; see also Reed, 77 Hawai'i at 83 , 881 P.2d at 1229 . [W]here the record on appeal is insufficient to demonstrate ineffective assistance of counsel, but where: (1) the defendant alleges facts that if proven would entitle him or her to relief, and (2) the claim is not patently frivolous and without trace of support in the record,[] the appellate court may affirm defendant’s conviction without *427 prejudice to a sub

2011The court acknowledged that “not every trial record is sufficiently developed to determine whether there has been ineffective assistance of counsel[.]” Id. at 439 , 864 P.2d at 592 ; see also Reed, 77 Hawai'i at 83 , 881 P.2d at 1229 . [W]here the record on appeal is insufficient to demonstrate ineffective assistance of counsel, but where: (1) the defendant alleges facts that if proven would entitle him or her to relief, and (2) the claim is not patently frivolous and without trace of support in the record,[] the appellate court may affirm defendant’s conviction without *427 prejudice to a sub

2024State v. Choy Foo, 142 Hawaiʻi 65, 72, 414 P.3d 117, 124 (2018). "[W]hether those facts fall within HRPP 48(b)'s exclusionary provisions is a question of law, the determination of which is freely reviewable pursuant to the 'right/wrong' test." State v. Hernane, 145 Hawaiʻi 444, 449, 454 P.3d 385, 390 (2019) (citation omitted).

2024State v. Choy Foo, 142 Hawaiʻi 65, 72, 414 P.3d 117, 124 (2018). "[W]hether those facts fall within HRPP 48(b)'s exclusionary provisions is a question of law, the determination of which is freely reviewable pursuant to the 'right/wrong' test." State v. Hernane, 145 Hawaiʻi 444, 449, 454 P.3d 385, 390 (2019) (citation omitted).

2017Cf. In re RGB, 123 Hawaii 1, 54, 229 P.3d 1066, 1119 (2010) (Acoba, J., dissenting) (arguing that counsel’s wrongful omission that resulted in forfeiture of appeal in a civil case involving termination of parental rights warranted post-judgment relief under Antone).

2017Although we have long held that courts may permit an untimely appeal when “defense counsel has inexcusably or ineffectively failed to pursue a defendant’s appeal from a criminal conviction,” State v. Knight, 80 Hawaii 318, 323, 909 P.2d 1133, 1138 (1996), this court has not before addressed the complete denial of a criminal appeal as it relates to an ineffective assistance of counsel claim under the Antone framework.

2014No. 04-1-0595(1) had not been previously raised in any prior proceeding, nor could they have been raised, as no prior Rule 40 petition or other proceeding had challenged the setting of the 13 (...continued) Matsuo v. State, 70 Haw. 573, 577 , 778 P.2d 332, 334 (1989) (finding no realistic opportunity for a defendant to raise an ineffective assistance of counsel claim, and not evaluating for extraordinary circumstances). -33- *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER *** minimum terms.

2014No. 04-1-0595(1) had not been previously raised in any prior proceeding, nor could they have been raised, as no prior Rule 40 petition or other proceeding had challenged the setting of the 13 (...continued) Matsuo v. State, 70 Haw. 573, 577 , 778 P.2d 332, 334 (1989) (finding no realistic opportunity for a defendant to raise an ineffective assistance of counsel claim, and not evaluating for extraordinary circumstances). -33- *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER *** minimum terms.

2011In analyzing an ineffective assistance of counsel claim, the appellate courts consider whether counsel acted “within the range of competence demanded of attorneys in criminal cases.” State v. Wakisaka, 102 Hawai'i 504, 513-14 , 78 P.3d 317, 326-27 (2003) (internal quotation marks and citation omitted).

2011In analyzing an ineffective assistance of counsel claim, the appellate courts consider whether counsel acted “within the range of competence demanded of attorneys in criminal cases.” State v. Wakisaka, 102 Hawai'i 504, 513-14 , 78 P.3d 317, 326-27 (2003) (internal quotation marks and citation omitted).

2010Moreover, “[sjpeeifie actions or omissions alleged to be error but which had an obvious tactical basis for bene-fitting the defendant’s case will not be subject to further scrutiny.” State v. De Guair, 108 Hawai'i 179, 187 , 118 P.3d 662, 670 (2005) (quoting Briones v. State, 74 Haw. 442, 462-63 , 848 P.2d 966, 976 (1993) (emphases in original)).

2010Moreover, “[sjpeeifie actions or omissions alleged to be error but which had an obvious tactical basis for bene-fitting the defendant’s case will not be subject to further scrutiny.” State v. De Guair, 108 Hawai'i 179, 187 , 118 P.3d 662, 670 (2005) (quoting Briones v. State, 74 Haw. 442, 462-63 , 848 P.2d 966, 976 (1993) (emphases in original)).

2004State v. Tafoya, 91 Hawai'i 261, 267 , 982 P.2d 890, 896 (1999). 6. [Defendant] has failed to demonstrate that there were specific errors or omissions reflecting a lack of skill, judgment or diligence on the part of Attorney Choy. 7.

2004State v. Tafoya, 91 Hawai'i 261, 267 , 982 P.2d 890, 896 (1999). 6. [Defendant] has failed to demonstrate that there were specific errors or omissions reflecting a lack of skill, judgment or diligence on the part of Attorney Choy. 7.

2001Here, the prosecution has conceded that the ineffective consent instruction was erroneously given. 7 Indeed, “erroneous instructions are presumptively harmful and are a ground for reversal unless it affirmatively appears from the record as a whole that the error was not prejudicial.” State v. Valentine, 93 Hawai'i 199, 204 , 998 P.2d 479, 484 (2000) (citations omitted).

2001Here, the prosecution has conceded that the ineffective consent instruction was erroneously given. [7] Indeed, "erroneous instructions are presumptively harmful and are a ground for reversal unless it affirmatively appears from the record as a whole that the error was not prejudicial." State v. Valentine, 93 Hawai`i 199, 204, 998 P.2d 479, 484 (2000) (citations omitted).

1996Waiver in such circumstances can only be lodged against the petitioner when it may be inferred from an examination of the entire record." Bryant v. State, 6 Haw.App. 331, 334 , 720 P.2d 1015, 1018 (1986). [15] HRS § 704-400 provides: Physical or mental disease, disorder, or defect excluding penal responsibility. (1) A person is not responsible, under this Code, for conduct if at the time of the conduct as a result of the physical or mental disease, disorder, or defect the person lacks substantial capacity either to appreciate the wrongfulness of the person's conduct or to conform the person's

1996Waiver in such circumstances can only be lodged against the petitioner when it may be inferred from an examination of the entire record." Bryant v. State, 6 Haw.App. 331, 334 , 720 P.2d 1015, 1018 (1986). [15] HRS § 704-400 provides: Physical or mental disease, disorder, or defect excluding penal responsibility. (1) A person is not responsible, under this Code, for conduct if at the time of the conduct as a result of the physical or mental disease, disorder, or defect the person lacks substantial capacity either to appreciate the wrongfulness of the person's conduct or to conform the person's

1994Essentially, Appellant failed to allege any “facts showing that such ‘errors or omissions resulted in either the withdrawal or substantial impairment of a potentially meritorious defense.’ ” Allen, 7 Haw.App. at 94 , 744 P.2d at 793 (quoting State v. Casipe, 5 Haw.App. 210, 217 , 686 P.2d 28, 34 (1984)); see Briones, 74 Haw. at 460 -461 n. 11, 848 P.2d at 975 -76 n. 11; see also State v. Aplaca, 74 Haw. 54, 71-72 , 837 P.2d 1298, 1307 (1992).

1994Essentially, Appellant failed to allege any “facts showing that such ‘errors or omissions resulted in either the withdrawal or substantial impairment of a potentially meritorious defense.’ ” Allen, 7 Haw.App. at 94 , 744 P.2d at 793 (quoting State v. Casipe, 5 Haw.App. 210, 217 , 686 P.2d 28, 34 (1984)); see Briones, 74 Haw. at 460 -461 n. 11, 848 P.2d at 975 -76 n. 11; see also State v. Aplaca, 74 Haw. 54, 71-72 , 837 P.2d 1298, 1307 (1992).