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Oral Argument Before the Hawaii Supreme Court–SCWC-16-0000090

No. SCWC-16-0000090 Thursday, January 11, 2018, 11:15 a.m.

DESMOND J. LEWI, Petitioner/Petitioner-Appellant, vs. STATE OF HAWAI I, Respondent/Respondent-Appellee.

The above-captioned case was set for argument on the merits at:

Supreme Court Courtroom
Ali`iolani Hale, 2nd Floor
417 South King Street
Honolulu, HI 96813

Attorney for Petitioner:

Keith S. Shigetomi

Attorneys for Respondent State of Hawaii, Hawai i Paroling Authority:

Diane K. Taira and Richard W. Stacey, Deputy Attorneys General

Attorneys for Respondent State of Hawaii, Office of the Prosecuting Attorney:

Saunda A.K. Liu and Suzanna L. Tiapula, Deputy Prosecuting Attorneys  

NOTE: Order accepting Application for Writ of Certiorari, filed 11/02/17.


[ Listen to the entire audio recording in mp3 format ]

Brief Description:

In October 2008, Petitioner Desmond Lewi was involved in a confrontation with his sister’s boyfriend, Cameron Mauga. Lewi drew a loaded shotgun that he kept in his truck. The two struggled over it, and it discharged, killing Mauga. Although Lewi had previously been convicted of Assault in the Third Degree over a decade earlier, his criminal record was largely clean. Lewi was charged with murder and four firearms offenses.

Lewi ultimately pled guilty to, and was convicted of, manslaughter (Count 1) and only two firearms offenses: carrying or possessing a loaded firearm on a public highway (Count 3), and ownership or possession prohibited (Count 5). The Circuit Court of the Third Circuit (“circuit court”) sentenced Lewi to 20 years of imprisonment on Count 1, 10 years of imprisonment on Count 3, with those sentences to run concurrently, and 5 years of imprisonment on Count 5, with the sentence in Count 5 to run consecutively to the sentences in Counts 1 and 3. Lewi did not directly appeal his convictions or sentences. The Hawai i Paroling Authority (“HPA”) set Lewi’s level of punishment at Level III, the highest level, for all three counts. It also set all of Lewi’s minimum terms of imprisonment at the maximum duration: 20 years on Count 1, 10 years on Count 3, and 5 years on Count 5. Lewi did not initially challenge the HPA’s determination.

Lewi later filed a Hawai i Rules of Penal Procedure Rule 40 Petition for post-conviction relief, alleging the following grounds: (1) illegal consecutive sentencing; (2) ineffective assistance of counsel; and (3) arbitrary and capricious action by the HPA in determining his minimum terms of imprisonment and levels of punishment. The circuit court denied Lewi’s petition without a hearing, and Lewi appealed.

On appeal to the ICA, Lewi argued that the circuit court erred in denying his Rule 40 petition without a hearing. He also re-asserted claims of ineffective assistance of counsel, illegal sentencing, and arbitrary and capricious action by the HPA.

During the pendency of Lewi’s appeal, the HPA held a new minimum term hearing for him. It re-set Lewi’s minimum terms of imprisonment on his sentences as follows: On Count 1, 16 years (down from 20 years); on Count 3, 5 years (down from 10 years); and on Count 5, 3 years (down from 5 years). The HPA reduced Lewi’s level of punishment on Counts 3 and 5 from Level III down to Level II, but it maintained his level of punishment on Count 1 at Level III.

The ICA affirmed the circuit court’s order denying Lewi’s Rule 40 Petition without a hearing. Chief Judge Nakamura concurred and dissented separately, opining that he would remand the case for a new hearing on Lewi’s claim that HPA acted arbitrarily and capriciously in maintaining Lewi’s level of punishment at Level III on Count 1 in its new minimum term determination. Chief Judge Nakamura also stated that the record revealed some uncertainty as to whether the circuit court at Lewi’s initial sentencing had adequately explained its reasons for imposing consecutive sentences.

On certiorari to this court, Lewi argues that the circuit court should not have denied his HRPP Rule 40 petition without a hearing, that his guilty plea was illegal, that his consecutive sentences were illegal, and that trial and appellate counsel were ineffective. He also argues that the ICA incorrectly applied case law to hold that he could be sentenced to both manslaughter and weapons possession offenses. Lastly, Lewi argues that the HPA acted arbitrarily and capriciously in maintaining his level of punishment at Level III for the manslaughter conviction (Count 1).