Clement Jiro TOMOMITSU, Petitioner-Appellant, v. STATE of Hawai'i, Respondent-Appellee, 93 Haw. 22

Opinion of the Court by BURNS, C.J. Petitioner-Appellant Clement Jiro To-momitsu (Tomomitsu) appeals the circuit court’s April 9, 1998 Findings of Fact, Conclusions of Law and Order Denying Petition for Post Conviction Relief denying his October 27, 1997 Hawaii Rules of Penal Procedure (HRPP) Rule 40 Petition to Vacate, Set Aside, or Correct Judgment or to Release Petitioner from Custody (HRPP Rule 40 Petition) without a hearing on the HRPP Rule 40(

f) ground that Tomomitsu’s HRPP Rule 40 Petition was “patently frivolous and without a trace of support either in the record or from other evidence submitted by [Tomomit-su].” We affirm in part, vacate in part, reverse in part, and remand for entry of an order consistent with this opinion. In this opinion, the following are among the questions we discuss and answer: 1. What exception, if any, is there to the rule that a guilty plea made voluntarily and intelligently precludes a defendant from later asserting any non-jurisdictional claims? 2.

When a defendant is convicted of Robbery in the First Degree for having robbed the victim of both items A and B, may the defendant also be convicted of Theft in the First Degree for having subsequently sold item A and of Theft in the Second Degree for having subsequently sold item B? 3. When a conviction of either

(1) Robbery in the First Degree or

(2) Theft in the First Degree and Theft in the Second Degree must be vacated and the corresponding charge(

s) dismissed with prejudice, who makes the choice and on what basis? BACKGROUND On October 28, 1981, Tomomitsu was indicted in Criminal No. 56276 for Robbery in the Second Degree. It was alleged that on August 26, 1981, Tomomitsu punched a 16-year-old California tourist and took the youth’s wallet with $5.00 in it. Tomomitsu pled guilty as charged and, on July 7, 1986, was sentenced to probation for five years, including one year in jail. On December 10, 1981, Tomomitsu was indicted in Criminal No. 56516 for Burglary in the First Degree, Theft in the Third Degree, and Credit Card Theft.

It was alleged that Tomomitsu and a friend entered another person’s apartment and took a clock, a radio, and a credit card. It was further alleged that Tomomitsu, thereafter, sold those items to the undercover police storefront fence operation “Hukilau.” Tomomitsu pled guilty as charged and, on July 7, 1986, was sentenced to a five-year term of probation, a one-year term of probation, and a six-month term of probation. The five-year term of probation and the one-year term of probation each included one year in jail. Criminal No. 56517 is the result of a grand jury indictment and an amended grand jury indictment.

On December 10, 1981, Tomom-itsu was indicted for Theft in the First Degree (of a camera and camera accessories) on February 19, 1981, and Theft in the Second Degree (of a wristwatch) on February 25, 1981. On April 21, 1982, the charge of Robbery in the First Degree was added. It was alleged that on February 19, 1981, Tomomit-su robbed Per Alricson of a camera and wristwatch and, in doing so, Tomomitsu exhibited a gun at his waist. Tomomitsu sold the camera on February 19, 1981, and the wristwatch on February 25, 1981.

Tomomit-su sold both items to the undercover police storefront fence operation “Hukilau.” To-momitsu pled guilty to the two theft charges and to the reduced charge of Robbery in the Second Degree and, on July 7, 1986, was sentenced to two five-year terms of probation and a one-year term of probation. The five-year terms included one year in jail. The one-year term included six months in jail. All terms of probation and jail ran concurrently.

Tomomitsu’s memorandum in support of his HRPP Rule 40 Petition states in relevant part as follows: [Tomomitsu] seeks an ORDER in which his Second Degree Robbery conviction in Case No. 86-56517 is vacated and dismissed nunc pro tunc as of July 7,1986, on independent state and federal constitutional grounds. Likewise, [Tomomitsu] seeks such an ORDER in Case NOs. 86-56276 and 86-56516. On February 3, 1993, in the District of Hawaii [Hawaii], in Case No. 93-00172/ ACK, [Tomomitsu] was indicted by a federal grand jury of violating title 18 USC § 922(g)(1) for possession by an ex-felon of a .22 caliber revolver.

EXHIBIT “E”. On February 8, 1993, the United States issued notice of its intent to seek enhanced penalties under 18 USC § 924(e) (Armed Career Criminal Act). In addition to an alleged withheld adjudication of guilt for battery in the State of Florida in 1979 (dismissed 1995), the United States charged as predicate “violent felony” offenses the burglary and robbery convictions [Tomomitsu] sustained in [circuit] court in 1986.

On July 27, 1993, [Tomomitsu] was transported to the Federal Correctional Institution on Terminal Island (Los Ange-les Harbor) for service of his mandatory 15-year sentence. (Record references omitted; emphases in original.) Tomomitsu’s HRPP Rule 40 Petition asked the circuit court to set aside his conviction of Robbery in the Second Degree in Criminal No. 56517 based on the grounds of double jeopardy and the included offense definition in Hawaii Revised Statutes (HRS) § 701-109(4)(a) (1993).

The circuit court concluded “that the requisite acts and mental state in taking the property (i.e.[,] the Robbery) are separate and distinct from the acts and mental state in passing the property (i.e.[,] the act of fencing which results in the Theft charge).” DISCUSSION 1. In Criminal No. 56276, Tomomitsu committed Robbery in the Second Degree when he robbed a victim of $5.00.

In Criminal No. 56516, Tomomitsu was charged with Burglary in the First Degree, Theft in the Third Degree for taking a clock, Theft in the Third Degree for taking a radio, Theft in the Third Degree for selling the clock, Theft in the Third Degree for selling the radio, and Credit Card Theft for selling the credit card. He pled guilty to, and was convicted of, Burglary in the First Degree, Theft in the Third Degree for selling the clock and the radio, and Credit Card Theft for selling the credit card.

In Criminal No. 56517, Tomomitsu was charged with Robbery in the First Degree for robbing a victim of a camera and a wristwatch, Theft in the First Degree for selling the camera, and Theft in the Second Degree for selling the wristwatch. He pled guilty to, and was convicted of, Robbery in the Second Degree for robbing the victim of the camera and the wristwatch, Theft in the First Degree for selling the camera, and Theft in the Second Degree for selling the wristwatch.

Tomomitsu contends that the judgment in Case No. 86-56517 for Second Degree Robbery (Count III) was obtained in violation of HRS § 701-109(4)(a) [pertaining to included offenses] and the Double Jeopardy Clause of the Fifth Amendment of the [F]ederal Constitution (applicable to the states through the 14th Amendment) because [Tomomitsu] was previously sentenced for the lesser included offense charged in Counts I or II (theft).

Tomomitsu’s right to challenge these judgments is limited by the following precedent: Generally, a guilty plea made voluntarily and intelligently precludes a defendant from later asserting any nonjurisdictional claims, including constitutional challenges to the pretrial proceedings.

Although the defendant may still challenge the sufficiency of the indictment or other like defects bearing directly upon the government’s authority to compel the defendant to answer to charges in court, claims of nonjurisdic-tional defects in the proceeding, such as unlawfully obtained evidence and illegal detention, will generally not survive the plea. State v.

Morin, 71 Haw. 159, 162, 785 P.2d 1316, 1318 (1990) (citations omitted). “A plea of guilty and the ensuing conviction comprehend all of the factual and legal elements necessary to sustain a binding, final judgment of guilt and a lawful sentence.” United States v. Broce, 488 U.S. 563, 569, 109 S.Ct. 757, 102 L.Ed.2d 927 (1989). The above rules apply in Tomomitsu’s case. However, an exception to the above rules occurs “where on the face of the ree-ord[,] the court had no power to enter the conviction or impose the sentence.” Id.

This exception includes the occasion where “[a] defendant who has pleaded guilty may raise a claim the prosecution is barred by double jeopardy only if the defect appears on the face of the indictment” (1A C. Wright, Federal Practice & Procedure: Criminal § 175 at 228-29 (1999)), and it is apparent in the existing record. Broce, 488 U.S. at 576, 109 S.Ct. 757. Based on this exception, we will examine the charges against Tomomitsu. The question is whether the record shows that the July 7, 1986 judgment twice convicted Tomomitsu of the same offense(s). 2.

HRS § 708-830 (1993) specifies eight ways of committing theft. Obtaining the property is one way (HRS § 708-830(1)). Disposing of the property is another way (HRS § 708-830(7)). The Commentary on HRS §§ 708-830 to -833 states in relevant part as follows: It should be noted that in all theft offenses, the requisite mental state is intent to deprive the owner of the value of property or services. Although in most instances the actor will intend to appropriate the value of property or services for the actor’s own benefit, that is not the gravamen of the offense.

Thus, HRS § 708-835 (1993) states as follows: Proof of theft offense. A charge of an offense of theft in any degree may be proved by evidence that it was committed in any manner that would be theft under

section 708-830, notwithstanding the specification of a different manner in the indictment, information, or other charge, subject only to the power of the court to ensure a fair trial by granting a continuance or other appropriate relief where the conduct of the defense would be prejudiced by lack of fair notice or by surprise.

The Commentary on HRS § 708-835 states in relevant part as follows: As outlined in the commentary on [HRS] § 708-830, one of the principal reasons for the consolidation of various related common-law and statutory offenses under the single theft statute is to eliminate pointless procedural obstacles in prosecution. The possibility of quashing a theft indictment because of variance would substantially pervert the virtue of simplicity which such consolidation seeks to achieve.

Subject only to the court’s power to ensure a fair trial ..., any charge of theft may be proved by demonstration, beyond a reasonable doubt, that the accused’s actions came within the definition of one of the subsections of [HRS] § 708-830. (Footnote omitted.) In light of the above, we conclude that the law does not permit the conviction a defendant of two counts of theft for, first, having obtained or taken an item of property and, second, for having disposed of or sold the same item of property. The taking and/or selling of one item of property is only one theft.

In Criminal Nos. 56276 and 56516, Respondent-Appellee State of Hawai'i (the State) properly charged and convicted To-momitsu. With respect to Criminal No. 56517, the statutory definition of Robbery in either the First or Second Degree requires that the act be done “in the course of committing theft.” HRS §§ 708-840(1) and -841 (1993). Tomomitsu was charged with Robbery in the First Degree and pled to and was convicted of Robbery in the Second Degree (Count III), and the theft of the camera and the wristwatch were alleged as material elements of that robbery.

Tomomitsu was also charged with, and convicted of, Theft in the First Degree for selling the camera (Count

I) and Theft in the Second Degree for selling the wristwatch (Count II). As noted previously, the taking and the sale of the camera were one theft. Likewise, the taking and the sale of the wristwatch were one theft. Convicting Tomomitsu of Robbery in the Second Degree (Count III) for having taken the camera and the wristwatch left no theft to support the charges of Theft in the First Degree for selling the camera (Count

I) and Theft in the Second Degree for selling the wristwatch (Count II). Thus, in Criminal No. 56517, the convictions of Theft in the First Degree (Count

I) and Theft in the Second Degree (Count II) must be reversed. State v. Jumila, 87 Hawai'i 1, 950 P.2d 1201 (1998). 3. Tomomitsu contends that the convictions of Theft in the First Degree (Count

I) and Theft in the Second Degree (Count II) should remain, and the conviction of Robbery in the Second Degree (Count III) should be set aside because, in chronological order, he was convicted of the theft counts before the robbery count. We disagree. The July 7, 1986 judgment was simultaneous as to all three counts. In a related situation, but in a direct appeal, the Hawai'i Supreme Court decided as follows: When a defendant is convicted of an offense and a “lesser” included offense, we simply reverse the conviction and sentence for the “lesser” included offense....

In the instant case, however, the included offense is murder in the second degree, an offense of a higher class and grade than HRS § 134-6(a), a class A felony. Under these circumstances, where (1) the second degree murder conviction was otherwise valid and (2) the HRS § 701-109 violation can be remedied by reversing the HRS § 134-6(

a) conviction and sentence, we believe that it would be manifestly unfair to the prosecution and to the public to reverse the second degree murder conviction simply because it was the included offensé. Id. at 3-4, 950 P.2d at 1203-04 (citations omitted). In this situation where either the conviction of Robbery in the Second Degree or the convictions of Theft in the First Degree and Theft in the Second Degree must be reversed, the court selects the option that least disrupts the court’s judgment.

Since Theft in the First Degree is a class B felony, HRS § 708-830.5 (1993), and Theft in the Second Degree is a class C felony, HRS § 708-831 (1993), whereas Robbery in the Second Degree is a class B felony, HRS § 708-841(2), the choice in Tomomitsu’s case, obviously, is to reverse the included theft convictions. 4.

Tomomitsu asked the circuit court to set aside his convictions because of his defense counsel’s ineffective assistance in failing to negotiate a better plea agreement in Criminal No. 56276 by reducing Robbery in the Second Degree to the included offense of Petty Theft or Theft in the Third Degree and, in Criminal No. 56516, by reducing Burglary in the First Degree to the included offense of Trespass or Simple Trespass.

When the denial of the right to effective assistance of counsel 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[?]’ ” The defendant has the burden of establishing ineffective assistance of counsel and must meet the following two-part test: 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.

This court will not judge the assistance provided the defendant ineffective solely by. hindsight. A defendant who meets the two-prong test has proven the “denial of assistance ‘within the range of competence demanded of attorneys in criminal eases.’ ” State v. Aplaca, 74 Haw. 54, 66-67, 837 P.2d 1298, 1305 (1992) (citations and footnote omitted). We agree with the circuit court that Tomomitsu failed to allege, and the record does not show, a specific error or omission reflecting counsel’s lack of skill, judgment, or diligence. 5.

Tomomitsu contends that he was denied substantive due process of law because he successfully completed five years of probation in the above cases, but no Certificate of Discharge restoring his civil rights was issued, and the copy of the discharge papers, which he alleges HRS § 831-5(

a) requires the probation division to file with the court, was never filed.

HRS § 831-5(a) (1993) states: If the sentence was in this State, the order, certificate, or other instrument of discharge, given to a person sentenced for a felony upon the person’s discharge after completion of service of the person’s sentence or after service under probation or parole, shall state that the defendant’s rights to vote and to hold any future public office, of which the defendant was deprived by this chapter, are thereby restored and that the defendant suffers no other disability by virtue of the defendant’s conviction and sentence except as otherwise provided by this chapter.

A copy of the order or other instrument of discharge shall be filed with the clerk of the court of conviction. HRS § 831-5(a) (1993) is substantially the same as HRS § 831-5(a) (1976).

In a March 6, 1995 letter responding to Tomomitsu’s February 21, 1995 letter requesting “official notification that [his] civil rights have been restored[,]” the Adult Probation Division of the First Circuit Court (APD) advised Tomomitsu that his probation sentences in the three cases “all expired on July 6,1991.” In a December 29, 1995 letter to the Office of the Federal Public Defender, the APD stated in relevant part as follows: In response to your request for a copy of the certificate of discharge from probation pursuant to HRS

Section 831-5 for Clement Tomomitsu, please be advised that certificates were not routinely issued to probationers the year that Mr. Tomomitsu’s probation term expired. Therefore, Mr. Tomomitsu was not given a certificate of discharge at that time. Individuals requesting such certificates have been given letters from this office indicating that they have completed the term of probation. We would be happy to provide one for Mr. Tomomitsu upon request.

Tomomitsu contends that his convictions for a burglary and two robberies should be vacated and dismissed nunc pro tunc because of the [S]tate’s failure to maintain [Tomomitsu]’s probation file and to issue him a timely Certificate of Discharge upon his successful completion of five years’ probation, in violation of HRS § 831-5(

a) and the Due Process Clause of the Fifth Amendment[.] Although HRS § 831-5 assumes that an “order, certificate, or other instrument of discharge” is issued, neither HRS § 831-5, nor any other law, requires the issuance of such a document. Even if the issuance of such a document is statutorily required, the failure of the State to comply with the requirement is not a ground for vacating and dismissing the convictions of the person to whom the document was required to be issued. CONCLUSION Accordingly, we first vacate all of the sections entitled, “ANSWER” and “CONCLUSION AND ORDER” of

section III of the April 9,1998 Findings of Fact, Conclusions of Law and Order Denying Petition for Post Conviction Relief. Second, we vacate all of

section IV.B.l of the April 9, 1998 Findings of Fact, Conclusions of Law and Order Denying Petition for Post Conviction Relief entitled, “Was Petitioner Subjected to Double Jeopardy as a Result of His Conviction in Counts I and III of # 56517?” Third, we affirm the circuit court’s denial of Tomomitsu’s HRPP Rule 40 Petition, except that in Criminal No. 56517, the convictions of Theft in the First Degree (Count

I) and Theft in the Second Degree (Count II) are reversed. Fourth, we remand for the amendment of the April 9, 1998 Findings of Fact, Conclusions of Law and Order Denying Petition for Post Conviction Relief in a manner consistent with this opinion. . We also discuss the issues of whether there was the ineffective assistance of counsel and a violation of substantive due process. . The Deputy Prosecuting Attorney’s recitation is as follows: After [Petitioner-Appellant Clement Jiro To-momitsu (Tomomitsu) and his co-defendant] had relieved Mr.

Ulricksen [sic] of his camera equipment and wrist watch on that same day, February 19, 1981, Mr. Tomomitsu and his friend Herbert Fredge [sic] (phonetic) went to Brewer’s Liquors and sold those items, sold those items to an undercover detective. They may have sold the watch several days later, I'm not sure, I have to look at the indictment. But it’s again detaining [disposing] stolen property. .

"[W]here a defendant in the context of one criminal scheme or transaction commits several acts independently violative of one or more statutes, he may be punished for all of them if charges are properly consolidated by the State in one trial.” State v. Pia, 55 Haw. 14, 19, 514 P.2d 580, 585 (1973). . Although Respondent-Appellee State of Ha-wai'i (the State) could have used either the theft of the camera or the theft of the wristwatch as the necessary material element to support its charge of Robbery in the First Degree, the State, in this case, used both. . State v.

Jumila, 87 Hawai'i 1, 950 P.2d 1201 (1998), is clear precedent that the proper action is to "reverse” the excessive convictions. However, when a conviction is "reversed[,]” the judgment is changed from "guilty” to "not-guilty,” and that is not what has happened in the case. What has happened in the case is that Tomomit-su has been found guilty of three offenses but lawfully can be convicted of only one. Therefore, it appears that the appropriate procedure would be to vacate the excessive convictions and remand for a dismissal of those counts with prejudice.