Mason v. Hawaii Paroling Authority

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
05-FEB-2021
07:52 AM
Dkt. 77 MO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

TAD MASON, Petitioner-Appellant, v.
HAWAII PAROLING AUTHORITY and STATE OF HAWAI#I,
Respondents-Appellees

APPEAL FROM THE CIRCUIT COURT OF THE THIRD CIRCUIT
(S.P.P. NO. 18-1-001; CR. NO. 93-349)

MEMORANDUM OPINION
(By: Leonard, Presiding Judge, Hiraoka and Nakasone, JJ.)

Defendant-Appellant Tad Mason (Mason), self-

represented, appeals from the Order Denying Petition to Vacate

Illegal Sentence, Set Aside Minimum Term Order or to Release

Petitioner from Custody (Order Denying Petition), entered on

December 19, 2018, by the Circuit Court of the Third Circuit

(Circuit Court).1/ The Circuit Court denied Mason's April 9, 2018

Petition to Vacate Illegal Sentence, Set Aside Minimum Term Order

or to Release Petitioner from Custody (Rule 40 Petition). In the

1/
The Honorable Greg K. Nakamura presided.
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Rule 40 Petition, pursuant to Hawai#i Rules of Penal Procedure

(HRPP) Rule 40, Mason challenged, inter alia, the July 1, 1996

Notice and Order Fixing Minimum Term(s) of Imprisonment (Minimum

Term Order) issued by the Hawai#i Paroling Authority (HPA).2/

I. BACKGROUND

On September 16, 1993, pursuant to a grand jury

indictment, Mason was charged with the Murder and Kidnapping of

Juliana Laysa (Laysa) on August 27, 1991, in violation of Hawai#i

Revised Statutes (HRS) § 707-701.5 (1993)3/ (Count I; Murder in

the Second Degree) and HRS § 707-720(1)(d) and/or (e) (1993)4/

(Count II; Kidnapping). According to police reports that were

referenced in Mason's Presentence Diagnosis and Report, after

initially denying involvement, John Perez (Perez) gave the police

several statements about the incident. Perez reported that he

and Mason were cruising in downtown Hilo when they saw Laysa.

Perez said that Mason dropped off Perez at a cemetery and Mason

2/
On November 1, 2012, a substantively identical Notice and Order of
Fixing Minimum Term(s) of Imprisonment was issued by HPA to correct a typo in
an identifying number.
3/
HRS § 707-701.5 provides, in relevant part: "a person commits the
offense of murder in the second degree if the person intentionally or
knowingly causes the death of another person."
4/
HRS § 707-720 provides, in relevant part:

(1) A person commits the offense of kidnapping if
the person intentionally or knowingly restrains another
person with intent to:
. . . .
(c) Facilitate the commission of a felony or
flight thereafter;
(d) Inflict bodily injury upon that person or
subject that person to a sexual offense; [or]
(e) Terrorize that person or a third person[.]

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went back and picked her up and took her back to the cemetery,

where they both had sex with her, and Mason paid her $50.

According to Perez, Mason then punched Laysa, slammed her on the

ground, and told Perez to open the trunk of the car; Mason put

Laysa in the trunk. After getting in the car, Mason reportedly

told Perez he was going to kill Laysa. They drove to a cane

field. Perez stated that as Mason was trying to pull Laysa from

the trunk, she was kicking and punching; Mason got upset and

struck her head on the bumper of the car. As she was crawling

away, Mason took off her clothes and struck her on the head and

body with a tire iron. Perez and Mason then grabbed rocks and

threw them at Laysa; Mason choked her, but she was still not

dead. Mason then grabbed her arms and placed his foot on her

throat. Perez reported that Mason used the tire iron and "poked"

it through her naval; both men put a screwdriver in her vagina.

Mason denied any knowledge of the victim or her death; he told

police that Perez arranged for him to have sex with women, but he

did not pay for sex. In a separate case, Perez pled no contest

to Murder in the Second Degree and was sentenced to Life in

Prison with the Possibility of Parole. Mason pled not guilty to

both charges. Perez gave testimony at Mason's trial that was

consistent with his report to the police.

Pursuant to a jury verdict, Mason was convicted and

found guilty of both charges. On January 12, 1996, the Circuit

Court entered a Judgment Guilty Conviction and Sentence

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(Judgment), in which the court sentenced Mason to Life

Imprisonment with Possibility of Parole as to Count I and twenty

years of imprisonment for Count II, with the terms to run

concurrently. Mason filed an appeal from the Judgment. On March

11, 1997, the Hawai#i Supreme Court summarily affirmed the

Judgment.

While the direct appeal was pending, HPA issued the

July 1, 1996 Minimum Term Order, setting Mason's minimum terms of

imprisonment at thirty years for the murder charge and six years

for the kidnapping charge.

On June 27, 2000, Mason filed his first petition

pursuant to HRPP Rule 40, alleging that his conviction was

unconstitutional on various grounds, and that due to newly

discovered evidence, his conviction should be vacated, and his

case should be remanded for a new trial (First Rule 40 Petition).

After various (eleven) hearings at which, inter alia, additional

evidence was adduced, on April 26, 2010, the Circuit Court

entered Findings of Fact, Conclusions of Law, and Order Denying

Petitioner's Petition for Post Conviction Relief (Order Denying

First Rule 40 Petition).5/ As Mason later described in his appeal

from the Order Denying First Rule 40 Petition, the claims made in

the First Rule 40 Petition fell into five broad categories:

ineffective assistance of trial counsel; mistakes made by the

5/
The Honorable Glenn S. Hara presided.

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trial court that denied Mason a fair trial; ineffective

assistance of appellate counsel; newly discovered evidence; and

application of an improper standard of review by the first Rule

40 court and denial of a request to postpone a decision and set

the matter for further hearing. On November 4, 2011, this court

entered a Summary Disposition Order affirming the Order Denying

First Rule 40 Petition.

It appears that, at some point, Mason submitted a

request to HPA requesting a reduction of Mason's minimum term of

imprisonment. This request is not included in the record on

appeal in this case. On October 4, 2017, the HPA issued a

decision denying Mason's request for a reduction of his minimum

term on the grounds that "Your [Mason's] Minimum remains

appropriate."

On April 9, 2018, Mason filed the Rule 40 Petition,

which is at issue in this appeal. Mason raised the following

grounds for relief: (1) the Legislature cannot delegate its

authority to the HPA to prescribe a range of minimum terms of

imprisonment, make its own findings, and set a particular minimum

punishment range; (2) even assuming that HPA can prescribe a

range for minimum term sentence, HPA's setting of a minimum term

based on variable minimum term ranges increases the penalty for

the crime; (3) HPA ignored and violated its guidelines and rules

in setting Mason's minimum term, acting arbitrarily and

capriciously, by: (a) failing to state the Level of Punishment

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and Significant Criteria in the Minimum Term Order, as required

by Section III of HPA's July 1989 Guidelines for Establishing

Minimum Terms of Imprisonment (HPA Guidelines), and (b) failing

to follow rules in setting of minimum terms that were established

and applied in other cases, in particular the case of Raita

Fukusaku; (4) HRS § 706-669(8) (2014), delegating authority to

HPA to prescribe the minimum period of incarceration, is

unconstitutionally vague, as HPA is left to its own devices,

setting minimum terms in an arbitrary and capricious manner, and

HPA Guidelines are procedurally inadequate to provide a uniform

sentence, because: (a) there are no sentencing factors for

setting minimum terms within each level of punishment; (b) there

is no rational basis for a uniform minimum term, when the "Back-

Door" is open allowing an arbitrary and capricious granting or

denial of the reduction of the minimum; and (c) HPA's setting a

minimum term is based on criteria of "Nature of Offense" and

"Degree of Injury/Loss to Person or Property.".

In his prayer for relief, Mason requested that: (1)

the Minimum Term Order be vacated; (2) HRS § 706-669(8) be

declared unconstitutionally vague and that it be ordered and

declared that adding a prescribed range for a minimum term

constitutes elements of a separate aggravated offense and thereby

increased Mason's penalty for the offense; (3) it be ordered and

declared that HPA's use of aggravated ranges or levels of

punishment constitutes elements of a separate aggravated offense

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and thereby increased Mason's penalty for the offense; (4) it be

ordered and declared that HPA's setting of the minimum term

length was arbitrary and capricious, and that the HPA Guidelines

are procedurally inadequate to provide uniform minimum terms,

violating Mason's constitutional rights in the parole context and

statutory right to a uniform sentence pursuant to HRS § 706-

669(8); and (5) an order that HPA assess Mason for parole,

pursuant to HRS § 706-670 (2014 & Supp. 2019).

On July 19, 2019, the State filed an answer to the Rule

40 Petition (Answer to Petition), requesting that the first two

grounds in the petition be dismissed on the basis that they are

patently frivolous or without merit, and that the third and

fourth grounds be dismissed as moot because Mason was receiving a

new hearing to set his minimum term. The Answer to Petition was

supported by, inter alia, the Declaration of HPA Administrator

Tommy Johnson (Johnson). Johnson averred, based on his personal

knowledge and his review of HPA records regarding Mason, that the

Minimum Term Order did not list the level of punishment and

significant criteria on which the decision was based, and that to

remedy this, Mason was granted a new minimum term hearing for

Count I, to be held on July 30, 2018.

In reply to the Answer to Petition, Mason argued that

the arguments made in the first two grounds for granting the Rule

40 Petition were meritorious and that grounds three and four are

not moot because the HPA Guidelines are procedurally inadequate

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to provide for a "uniform" determination of a minimum term, and

therefore, it would be pointless to have a new minimum term

hearing.

On December 19, 2018, without a hearing, the Circuit

Court entered the Order Denying Petition, stating:
[T]he Court finds that in regard to [Mason's]
arguments as to the [HPA's] setting the minimum terms in
regard to his case, the Petition is moot because the HPA has
agreed to set a new minimum hearing. The Court finds
[Mason's] remaining arguments to be without merit, patently
frivolous, and without a trace of support either in the
record or from anything submitted by [Mason].

On January 7, 2019, Mason timely filed this appeal.

II. POINTS OF ERROR

Mason raises eleven points of error on appeal, echoing

the grounds stated in the Rule 40 Petition, and contending that:

(1) the Legislature cannot delegate its authority to the HPA to

prescribe a range of minimum terms of imprisonment, make its own

findings, and set a particular minimum punishment range; (2) even

assuming that HPA can prescribe a range for minimum term

sentence, HPA's setting of a minimum term based on variable

minimum term ranges increases the penalty for the crime; (3) HPA

ignored and violated its guidelines and rules in setting Mason's

minimum term, acting arbitrarily and capriciously; (4) HPA failed

to follow the HPA Guidelines; (5) HPA failed to follow rules in

setting of minimum term(s) that were established and applied in

other cases; (6) HRS § 706-669(8), delegating authority to HPA to

prescribe the minimum period of incarceration, is

unconstitutionally vague, as HPA is left to its own devices,

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setting minimum terms in an arbitrary and capricious manner, and

the HPA Guidelines are procedurally inadequate to provide a

uniform sentence; (7) the HPA Guidelines are procedurally

inadequate; (8) there is no rational basis for a uniform minimum

term, when the "Back-Door" is open allowing an arbitrary and

capricious granting or denial of the reduction of the minimum;

(9) HPA's setting a minimum term is based on criteria of "Nature

of Offense" and "Degree of Injury/Loss to Person or Property;"

(10) the Circuit Court erred in denying the Rule 40 Petition;6/

and (11) the Circuit Court erred in denying the Rule 40 Petition

without a hearing.

III. APPLICABLE STANDARDS OF REVIEW

In Coulter v. State, 116 Hawai#i 181, 184, 172 P.3d

493, 496 (2007), the supreme court stated:
An HRPP Rule 40 petition is an appropriate means to
challenge a minimum term of imprisonment set by the HPA.
Williamson v. Hawai#i Paroling Auth., 97 Hawai#i 156, 34 P.3d
1055 (App. 2000), rev'd on other grounds, 97 Hawai #i 183, 35
P.3d 210 (2001).

"The disposition of an HRPP Rule 40 petition is based
on FOF [findings of fact] and COL [conclusions of law]."
Raines v. State, 79 Hawai#i 219, 222, 900 P.2d 1286, 1289
(1995). Accordingly, we review the circuit court's
conclusions of law de novo and findings of fact for clear
error. See id. (citing Dan v. State, 76 Hawai #i 423, 428,
879 P.2d 528, 533 (1994)).

With respect to HPA decisions establishing a minimum
term, this court has stated that "judicial intervention is
appropriate where the HPA has failed to exercise any
discretion at all, acted arbitrarily and capriciously so as
to give rise to a due process violation, or otherwise
violated the prisoner's constitutional rights." Williamson,
97 Hawai#i at 195, 35 P.3d at 222.

6/
In this point of error, Mason simply identifies and quotes the
substance of the Order Denying Petition.

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With respect to claims of procedural violations, the
court will assess whether the HPA conformed with the
procedural protections of HRS § 706–669 and complied with
its own guidelines, which the HPA was required to establish
by statute. HRS § 706–669(8) (1993).

IV. DISCUSSION

Mason argues that the manner in which HPA set his

minimum term(s) of imprisonment was in violation of his

constitutional rights, the applicable statute, and HPA's own

guidelines. He urges this court to reject the State's argument

that he is entitled to no relief based on mootness.

A. The Minimum Term Order Violated the HPA Guidelines

HPA adopted the HPA Guidelines pursuant to HRS

§ 706–669(8), which states:
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.
The guidelines shall be public records and shall be made
available to the prisoner and to the prosecuting attorney
and other interested government agencies.

Section III of the HPA Guidelines, entitled "Issuance

of Decision," states that "[t]he Order Establishing Minimum Terms

of Imprisonment [ ] will include the specific minimum terms(s)

. . ., the level of punishment . . ., and the significant

criteria upon which the decision was based." Mason argues, inter

alia, that HPA violated its guidelines because the Minimum Term

Order failed to specify either the level of punishment or the

significant criteria upon which the decision was based, as

required by the HPA Guidelines. Mason argues that the failure to

include this information was arbitrary and capricious. The merit

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of this argument has been acknowledged by the HPA's

administrator, Johnson, and the State, and was explained by the

supreme court in Coulter, 116 Hawai#i at 185-86, 172 P.3d at 497-

98 (holding that an HPA minimum term order that failed to specify

either the level of punishment or the significant criteria upon

which the decision was based violated the HPA Guidelines and

failed to comply with the Legislature's directive of "uniform

determination" of minimum sentences).7/

Because we, too, conclude that the Minimum Term Order

was in violation of the HPA Guidelines, we do not reach the

question whether the HPA violated Mason's constitutional due

process rights. See id. at 184-85, 172 P.3d at 496-97. Mason's

arguments that the HPA Guidelines are insufficient to safeguard

prisoner's rights and ensure that the HPA does not arbitrarily

set minimum terms of imprisonment is without merit. See

Williamson, 97 Hawai#i at 194, 35 P.3d at 221 (explaining that

the HPA Guidelines serve as an adequate procedural protection for

prisoner's rights).

7/
As the supreme court explained:

Even though these guidelines do not have the force of
statutory law, compliance with such rules is required to
serve the legislature's goal of "uniform determination" of
minimum sentences. HRS § 706–669(8). Indeed, this court
has described the availability of such guidelines as one of
the procedural protections afforded to prisoners by statute.
Deviating from such rules, without explanation, constitutes
arbitrary or capricious action that violates a prisoner's
right to uniform determination of his or her minimum
sentence.

Coulter, 116 Hawai#i at 185, 172 P.3d at 497 (citing Williamson, 97 Hawai #i at
194-95, 35 P.3d at 221-22) (footnote omitted).

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B. Mootness

In its Answer to Petition, the State argued that,

because the HPA had set a new minimum term hearing for July 30,

2018, any issue raised in the petition related to Mason's minimum

term setting should be dismissed as moot. On appeal, the State

represents that HPA held Mason's new minimum term hearing on

April 26, 2019, and that a new order has been issued, but

acknowledges that the April 26, 2019 hearing is not part of the

record on appeal. The new order is not part of the record on

appeal.

On the record before us, we cannot determine whether

the new minimum term hearing and decision provided an adequate

explanation pursuant to Coulter for the setting of Mason's new

minimum term of imprisonment, and therefore, cannot determine

whether the issue is moot. For that reason, as well as the

following reason, we conclude that this case should be remanded

for a hearing to permit Mason to challenge the HPA's new minimum

term order.

Further, as brought to our attention by the State in a

post-briefing submission, since the April 26, 2019 hearing in

this case, the supreme court ruled that HPA must set forth a

written justification or explanation, beyond simply enumerating

the broad criteria considered by HPA, when HPA determines that

the minimum term of a felony offender is to be set at a Level II

or Level III punishment. See Lewi v. State, 145 Hawai#i 333,

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348-49, 452 P.3d 330, 345-46 (2019). In a lengthy footnote, the

supreme court acknowledged that it was announcing a new rule,

which might or might not be applied retroactively. Id. at 349

n.21, 452 P.3d at 346 n.21. The court declined to select either

a purely prospective or a fully retrospective application of the

new rule and instead chose a middle ground or "pipeline"

retroactive effect. Id. The supreme court applied it to the

petitioner in that case and "to all cases that are on direct

review or not yet final as of the date of this decision." Id.

As the initial Minimum Term Order was clearly arbitrary and

capricious, and the record before us is inadequate to determine

whether a colorable claim for relief might yet exist concerning

the new minimum term order, we conclude that questions remain as

to whether HPA adequately justified its minimum term

determination, and Mason should not be required to initiate a new

HRPP Rule 40 proceeding to raise any outstanding issues

concerning HPA's new determination of his minimum term. Although

these circumstances were not specifically before the supreme

court in Lewi, we conclude that they properly fall within the

middle ground adopted by the court, and the new rule set forth in

Lewi should be applied in this case. On remand, if applicable,

Mason may amend his Rule 40 Petition to include a challenge to

the new minimum term order based on Lewi.

As set forth above, the Circuit Court's December 19,

2018 Order Denying Petition is affirmed in part and vacated in

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part, and this case is remanded to the Circuit Court for further

proceedings consistent with this Memorandum Opinion.

DATED: Honolulu, Hawai#i, February 5, 2021.

On the briefs:
/s/ Katherine G. Leonard
Tad Mason, Presiding Judge
Petitioner-Appellant, Pro Se.
/s/ Keith K. Hiraoka
Craig Y. Iha, Associate Judge
Laura K. Maeshiro,
Deputy Attorneys General, /s/ Karen T. Nakasone
for Respondent-Appellee Associate Judge
STATE OF HAWAI#I.

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