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HB1247
HOUSE OF REPRESENTATIVES
H.B. NO.
1247
THIRTY-THIRD LEGISLATURE, 2025
STATE OF HAWAII
A BILL FOR AN ACT
relating
to CRIMINAL proceedings
.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:
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SECTION 1.
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The legislature finds that in light of
ongoing issues, and a recent Hawaii supreme court holding, the current process
of appealing criminal court sentences needs review and revision by the
legislature.
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In a criminal case in a Hawaii
circuit court, after a defendant has been sentenced to incarceration, the
Hawaii paroling authority (HPA) determines the minimum term of incarceration.
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This minimum term defines the length of time a
person must spend in incarceration before they become eligible for parole.
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HPA is guided by rules and statutes, but
getting a court to review HPA's decision has proven difficult for inmates.
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Currently, the inmate must petition
the court for judicial review pursuant to Hawaii rules of penal procedure
(HRPP) rule 40; however HRPP rule 40 was not created for this purpose.
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The petition is reserved for serious
constitutional issues that have arisen in the criminal case:
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an allegation of ineffective assistance of
counsel in violation of the sixth amendment of the United States Constitution,
the discovery of evidence withheld by the prosecution in violation of the due process
right to a fair trial, or other issues that implicate the state constitution or
human rights.
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Inmates often challenge
the decisions of HPA and file HRPP rule 40 petitions which are denied.
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Under HRPP rule 40, without the
assistance of counsel, individuals who have been convicted, sentenced, and
incarcerated and are seeking judicial review must initiate a new cause of
action by filing a petition in the circuit court that sentenced them, create
their own record by attaching relevant documents and requesting transcription
of the proceedings before the HPA, and raise complex legal issues.
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As HRPP rule 40 is considered a civil matter,
indigent petitioners are not entitled to representation by the office of the
public defender.
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Upon proper filing
under HRPP rule 40, the circuit court then determines if the petition has merit
before setting a hearing and appointing counsel for indigent petitioners.
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This procedure screens out meritorious issues
and is daunting for indigent inmates who must file their petition without the
assistance of an attorney.
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In 2024, the Hawaii supreme court
noted how a HRPP rule 40 petition is burdensome and time consuming:
It takes significant time after
affirmance of a conviction on final appeal for a HRPP Rule 40 petition to be
filed and resolved.
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In addition,
allowing a Rule 40 petition instead of addressing an issue on direct appeal can
also be detrimental to a defendant because defendants are not automatically
entitled to counsel when they bring Rule 40 petitions.
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Only if a court finds a "colorable claim"
will counsel be appointed.
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In contrast,
our case law recognizes a criminal defendant's right to counsel on appeal and
on certiorari.
�
See State v. Uchima
,
147 Haw. 64, 464 P.3d 852 (2020).
State v. Yuen
, 154 Haw. 434, 447 n. 17, 555
P.3d 121, 134 n. 17 (2024).
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The legislature finds that the
current procedure for judicial review of orders fixing minimum terms of
imprisonment issued by HPA is unjust and unduly burdensome.
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Allowing the office of the public defender to
continue its representation of its clients on appeal in order to raise legal
errors that may have arisen at minimum term hearings will reduce the number of
HRPP rule 40 petitions, lead to more just outcomes for convicted individuals,
and increase efficiency in the criminal justice system.
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The legislature further finds that judicial
review will provide greater uniformity in due process and statutory compliance
by HPA.
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The purpose of this
Act is to provide immediate judicial review of orders fixing minimum terms of
imprisonment.
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SECTION
2
.
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Section 602-5.5, Hawaii Revised Statutes, is
amended by amending subsection (b) to read as follows:
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"(b)
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Notwithstanding the provisions of section 94-3, the supreme court shall
determine the care, custody, and disposition of all judiciary case, fiscal, and
administrative records[
.
]
; provided that records of criminal
proceedings that lead to incarceration shall be maintained by the sentencing
court for ninety days after the issuance of a decision.
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A record of dispositional activity shall be
maintained stating whether a record was retained by the judiciary; transferred
to public archives, the [
University
]
university
of Hawaii, the
Hawaiian Historical Society; or another agency; or destroyed.
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This record shall be kept on forms specified
by the supreme court.
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One copy of the
record shall be filed in the court where the records originated, and the
original shall be filed with the administrative director of the courts or an
agency designated by the director."
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SECTION
3
.
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Section 641-11,
Hawaii Revised Statutes, is amended to read as follows:
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"
�641-11
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From circuit courts.
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Any
party aggrieved by the judgment of a circuit court in a criminal matter
or
an order pursuant to section 706-669(9)
may appeal to the intermediate
appellate court, subject to chapter 602, in the manner and within the time
provided by the rules of court.
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The
sentence of the court in a criminal case shall be the judgment.
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All appeals shall be filed with the clerk of
the supreme court and shall be subject to one filing fee."
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SECTION
4
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Section
706-669, Hawaii Revised Statutes, is amended to read as follows:
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"
�706-669
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Procedure for determining minimum term of imprisonment.
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(1)
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When a person has been sentenced to an indeterminate or an
extended term of imprisonment, the Hawaii paroling authority shall, as soon as
practicable but no later than six months after commitment to the custody of the
director of the department of corrections and rehabilitation hold a hearing,
and on the basis of the hearing make an order fixing the minimum term of
imprisonment to be served before the prisoner shall become eligible for parole.
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(2)
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Before holding the hearing, the authority
shall obtain a complete report regarding the prisoner's life before entering
the institution and a full report of the prisoner's progress in the
institution.
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The report shall be a
complete personality evaluation for the purpose of determining the prisoner's
degree of propensity toward criminal activity.
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(3)
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The prisoner shall be given reasonable notice
of the hearing under subsection (1) and shall be permitted to be heard by the
authority on the issue of the minimum term to be served before the prisoner
becomes eligible for parole.
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In
addition, the prisoner shall:
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(a)
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Be permitted to consult with any persons the
prisoner reasonably desires, including the prisoner's own legal counsel, in
preparing for the hearing;
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(b)
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Be permitted to be represented and
assisted by counsel at the hearing;
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(c)
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Have counsel appointed to represent and
assist the prisoner if the prisoner so requests and cannot afford to retain
counsel; and
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(d)
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Be informed of the prisoner's rights
under [
[
]paragraphs[
]
] (a), (b), and (c).
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(4)
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The authority in its discretion may, in any
particular case and at any time, impose a special condition that the prisoner
will not be considered for parole unless and until the prisoner has a record of
continuous exemplary behavior.
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(5)
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After sixty days notice to the prosecuting
attorney, the authority in its discretion may reduce the minimum term fixed by
its order pursuant to subsection (1).
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(6)
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A verbatim stenographic or mechanical record
of the hearing shall be made and preserved in transcribed or untranscribed
form.
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(7)
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The State shall have the right to be
represented at the hearing by the prosecuting attorney who may present written
testimony and make oral comments and the authority shall consider such
testimony and comments in reaching its decision.
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The authority shall notify the prosecuting
attorney of the hearing at the time the prisoner is given notice of the
hearing.
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The hearing shall be opened to
victims or their designees or surviving immediate family members who may
present a written statement or make oral comments.
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(8)
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The authority shall establish guidelines for
the uniform determination of minimum sentences which shall take into account
both the nature and degree of the offense of the prisoner and the prisoner's
criminal history and character.
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The
guidelines shall be public records and shall be made available to the prisoner
and to the prosecuting attorney and other interested government agencies.
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(9)
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Upon a motion filed by the defendant
within ninety days of issuance and service of the order fixing the minimum term
of imprisonment, the sentencing court may conduct judicial review of the
minimum term proceedings.
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The court,
after reviewing the record and proceedings, shall modify the order or remand
the case to the Hawaii paroling authority with instructions for further
proceedings if the order is:
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(a)
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In violation of constitutional or
statutory provisions;
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(b)
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In excess of the statutory authority
or jurisdiction of the Hawaii paroling authority;
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(c)
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Made upon unlawful procedure;
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(d)
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Affected by other error of law;
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(e)
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Clearly erroneous in view of
substantive evidence on the whole record; or
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(f)
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Arbitrary, or capricious, or
characterized by abuse of discretion or clearly unwarranted exercise of
discretion.
"
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SECTION 5.
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This Act does not affect rights and duties
that matured, penalties that were incurred, and proceedings that were begun
before its effective date.
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SECTION 6.
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Statutory material to be repealed is bracketed and stricken.
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New statutory material is underscored.
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SECTION
7
.
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This Act shall
take effect on January 1, 2026.
INTRODUCED BY:
_____________________________
Report Title:
Minimum
Terms; Judicial Review
Description:
Provides
immediate judicial review of orders fixing minimum terms of imprisonment.
The summary description
of legislation appearing on this page is for informational purposes only and is
not legislation or evidence of legislative intent.