Ventrella v. State

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
20-JUN-2022
07:49 AM
Dkt. 49 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

MICHAEL VENTRELLA, Petitioner-Appellant,
v.
STATE OF HAWAI#I, Respondent-Appellee

APPEAL FROM THE CIRCUIT COURT OF THE THIRD CIRCUIT
(CASE NO. 3CPN-XX-XXXXXXX)

SUMMARY DISPOSITION ORDER
(By: Ginoza, Chief Judge, Leonard and Hiraoka, JJ.)

Self-represented Petitioner-Appellant Michael Ventrella
appeals from the "Findings of Fact; Conclusions of Law; and Order
Denying Petition for Post-Conviction Relief" entered by the
Circuit Court of the Third Circuit on June 15, 2020.1 For the
reasons explained below, we affirm the Order Denying Petition.
On August 7, 2017, a grand jury returned a 15-count
indictment against Ventrella. Pursuant to a plea agreement,
Ventrella pleaded guilty to Attempted Promoting a Dangerous Drug
(heroin) in the First Degree in violation of Hawaii Revised
Statutes (HRS) §§ 705-500 and 712-1241(1)(a). The circuit court
granted the State's motion to nolle prosequi the other 14 counts.
The "Judgment of Conviction and Sentence" was entered on

1
The Honorable Melvin H. Fujino presided.
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April 25, 2018; Ventrella was sentenced to an indeterminate term
of 20 years in prison. He did not take a direct appeal.
Ventrella appeared before the Hawaii Paroling Authority
(HPA) on January 14, 2019, for his minimum term hearing. The HPA
placed Ventrella in a Level III classification2 and set an 11-
year minimum term.
Ventrella filed a "Petition to Vacate, Set Aside, or
Correct Illegal Sentence Through a Writ of Habeas Corpus Pursuant
to [Hawai#i Rules of Penal Procedure (HRPP)] Rule 40" on
November 18, 2019. The Petition was heard on May 29, 2020. The
Order Denying Petition was entered on June 15, 2020. This appeal
followed.
Ventrella raises the following issues on appeal:3

"1. Was [Ventrella] due the protection provided
in the Hawaii Supreme Court's ruling in Lewi
v. State?"

"2. Does the mandatory 'floor' of each Level of
Punishment assigned by the HPA equate to a
mandatory minimum sentence?"

"3. Does [Ventrella] have a right to a minimum
term sentence that is uniform to those issued
to similarly-situated defendants?"

"4. Is there a statutory mandate for a verbatim
record of [HPA] hearings?" and

"5. Did [Ventrella] have a constitutional right
to effective legal representation at his
evidentiary hearing?"

2
"To set a minimum sentence within the maximum term of imprisonment
range set by the sentencing court, the HPA determines an offender's 'level of
punishment' at, from lowest to highest, Level I, II, or III." Lewi v. State,
145 Hawai#i 333, 347 n.20, 452 P.3d 330, 344 n.20 (2019).
3
Ventrella's opening brief does not comply with Rule 28(b)(4) of
the Hawai#i Rules of Appellate Procedure (HRAP). However, to promote access
to justice, the Hawai#i Supreme Court instructs that documents filed by self-
represented litigants should be interpreted liberally, and self-represented
litigants should not automatically be foreclosed from appellate review because
they fail to comply with court rules. Erum v. Llego, 147 Hawai#i 368, 380-81,
465 P.3d 815, 827-28 (2020). Accordingly, we address what we discern to be
Ventrella's points and arguments.

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The disposition of a petition under HRPP Rule 40 after
a hearing is based on findings of fact and conclusions of law; we
review the circuit court's findings of fact for clear error, and
its conclusions of law de novo. Coulter v. State, 116 Hawai#i
181, 184, 172 P.3d 493, 496 (2007). A court reviewing an HPA
minimum term decision must determine whether "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." Id.
(citation omitted). For claims of procedural violations, a court
will determine whether the HPA conformed with HRS § 706-669 and
complied with its own guidelines, which it is required to
establish by statute. Id. (citing HRS § 706–669(8) (1993)).
HRS § 706-669 (2014) provides, in relevant part:

Procedure for determining minimum term of imprisonment. (1)
When a person has been sentenced to an indeterminate . . .
term of imprisonment, the [HPA] shall . . . 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.

. . . .

(3) 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. In addition, the prisoner shall:

(a) Be permitted to consult with any persons the
prisoner reasonably desires, including the
prisoner's own legal counsel, in preparing for
the hearing;
(b) Be permitted to be represented and assisted by
counsel at the hearing;

(c) Have counsel appointed to represent and assist
the prisoner if the prisoner so requests and
cannot afford to retain counsel; and
(d) Be informed of the prisoner's rights under
paragraphs (a), (b), and (c).

. . . .
(6) A verbatim stenographic or mechanical record of
the hearing shall be made and preserved in transcribed or
untranscribed form.

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. . . .
(8) The [HPA] 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[.]

(1) Ventrella contends — for the first time on appeal
— that he was "due the protection provided in the Hawaii Supreme
Court's ruling in" Lewi. In that case the supreme court
announced a new rule: "HPA is required to set forth a written
justification or explanation (beyond simply an enumeration of any
or all of the broad criteria considered) when it determines that
the minimum term of imprisonment for the felony offender is to be
set at a Level II or Level III punishment." Lewi, 145 Hawai#i at
348–49, 452 P.3d at 345–46. The supreme court stated that the
new rule applied "to [Lewi], as well as to all cases that are on
direct review or not yet final as of the date of this decision."
Id. at 349 n.21, 452 P.3d at 346 n.21. Lewi was decided on
November 7, 2019. Ventrella's minimum term determination was
made on January 15, 2019. The determination was final before
Lewi was decided.
Nor was the HPA's determination of Ventrella's minimum
term "on direct review" when Lewi was decided. "The legislature
did not expressly provide a means to appeal HPA parole
decisions." Williamson v. Haw. Paroling Auth., 97 Hawai#i 183,
189, 35 P.3d 210, 216 (2001). In Williamson, the supreme court
held that a prisoner may seek judicial review of an HPA minimum
term determination through a Rule 40 petition. Id. at 195, 35
P.3d at 222. Ventrella's HRPP Rule 40 petition was filed on
November 18, 2019, after Lewi was decided. Lewi does not apply
to the HPA's determination of Ventrella's minimum term.
(2) Ventrella contends that "the mandatory 'floor' of
each Level of Punishment assigned by the HPA equate[s] to a
mandatory minimum sentence." In Star v. State, No.
CAAP-XX-XXXXXXX, 2018 WL 4327325 (Haw. App. Sept. 11, 2018)

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(SDO), cert. rejected, SCWC-XX-XXXXXXX, 2019 WL 181416 (Haw.
Jan. 14, 2019), we held:

the HPA Guidelines do not set an initial starting point and
increase (or decrease) the minimum term based upon certain
criteria, but rather, "[a]ll relevant criteria are evaluated
and a level of punishment is determined[.]" The requirement
in Alleyne, that facts which increase mandatory minimum
sentences be found by a jury beyond a reasonable doubt, does
not apply to HPA minimum term hearings.

Id. at *2 (quoting Draizen v. State, No. CAAP-XX-XXXXXXX, 2015 WL
775031, at *2 (Haw. App. Feb. 24, 2015) (SDO)) (emphasis added).
Ventrella's contention lacks merit.
(3) Ventrella contends that he had "a right to a
minimum term sentence that is uniform to those issued to
similarly-situated defendants." He argues that "his minimum term
sentence should be set at a comparable number of years to others
who were convicted of the same offense in the same fiscal year."
Contrary to Ventrella's argument, the Guidelines
require HPA to consider multiple factors when setting minimum
terms. The Guidelines were published pursuant to HRS § 706-
669(8). Lewi, 145 Hawai#i at 347 n.20, 452 P.2d at 344 n.20.
The Guidelines state, in relevant part:

The criteria [for determining the level at which a
minimum term is set] in any given case . . . that will
generally receive the greatest weight are the first three
listed at each level: Nature of Offense, the Degree of
Injury/Loss to Person or Property, and the Offender's
Criminal History.

Hawaii Paroling Authority, Guidelines for Establishing Minimum
Terms of Imprisonment at 3 (July 1989), https://dps.hawaii.gov/
wp-content/uploads/2012/09/HPA-Guidelines-for-Establishing-
Minimum-Terms-of-Imprisonment.pdf.
The Guidelines also list other criteria, including:
"Character and Attitude of Offender With Respect to Criminal
Activity or Lifestyle"; "Efforts Made to Live Pro-Social Life
Prior to Commitment to Prison"; "Probation Revocation; Youth
Adult Offender"; "Involvement of Offender in Instant Offense(s)";
"Diminished Responsibility"; and "Degree of Provocation,

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Involvement, or Complicity on the Part of the Victim(s) in the
Offense(s)[.]" Guidelines at 4-5, 8 (bolding omitted).
Although "[t]he purpose of minimum sentencing
guidelines is to provide a degree of uniformity and consistency
in the setting of minimum terms[,]" see Guidelines at 1, there is
no requirement that the minimum terms of prisoners convicted of
the same offense in the same fiscal year be uniform.
Ventrella challenges the circuit court's finding of
fact no. 11:

11. [Ventrella] does not dispute that his minimum
term may fall between 10 to 20 years as a Level III
offender.

Ventrella disputes that he is a Level III offender, but the
Guidelines clearly provide that the range of minimum terms for a
Level III prisoner sentenced to a 20-year indeterminate term is
10-20 years. See Guidelines at 2.
Ventrella also challenges the circuit court's finding
of fact no. 15:

15. [Ventrella]'s belief is that his minimum term
sentence should be set at a comparable number of years to
others who were convicted of the same offense in the same
fiscal year.

As discussed above, this finding was a correct summary of
Ventrella's argument.
Ventrella challenges the circuit court's conclusions of
law nos. 4, 6, and 7:

4. The Hawai#i Paroling Authority is not free to
ignore the guidelines it has established. See Coulter v.
State, 116 Haw. 181, 185 (2007).

. . . .
6. The uniform determination in sentencing minimum
terms as established by § 706-669(8) is not in reference to
the average sentencing in a fiscal year, but rather the
determination set out by HPA guidelines. See Haw. Rev.
Stat. § 706-669(8) (1993).
7. The guidelines do not require Hawai#i Paroling
Authority to use a certain number of criteria, or mandate
what criteria to use. See id.

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These conclusions of law were not wrong, although it would have
been more accurate for no. 7 to have stated that the Guidelines
do not mandate "which" of the enumerated criteria HPA must use in
any given case.
(4) Ventrella contends that the HPA violated HRS
§ 706-669(6) because the transcript of his minimum term hearing
(attached as Appendix E to his HRPP Rule 40 petition) contains
"broken sentences and disconnected lines of speech (represented
by "--" marks) that go beyond the normal stutters, misstatements,
and hesitancies of everyday speech." The circuit court
concluded:

9. A written transcript of a hearing complies with
the § 706-669(6), HRS requirement that a verbatim
stenographic or mechanical record of the hearing shall be
made and preserved in transcribed or untranscribed form.
See Haw. Rev. Stat. § 706-669(8) (1993).

The circuit court did not err. The transcript was transcribed
from an audio tape of the minimum term hearing. An audio tape is
a "mechanical record" that complies with HRS § 706-669(6). If
Ventrella believes that the written transcript did not accurately
disclose what occurred before the HPA, his remedy is prescribed
by HRAP Rule 10(e)(1), which provides:

If any differences arise as to whether the record truly
discloses what occurred in the court or agency appealed
from, the differences shall be submitted to and settled by
that court or agency and the record made to conform to the
truth.

(5) Ventrella contends that his attorney did not
effectively represent him during the circuit court hearing on his
HRPP Rule 40 petition. The record does not disclose what
transpired at the hearing because Ventrella did not request a
transcript of the proceedings as required by HRAP Rule 10(b)(1).
A copy of what purports to be the transcript of the circuit court
hearing was attached as Exhibit F to Ventrella's opening brief,
but we cannot consider it because "[a]nything that is not part of
the record shall not be appended to the brief[.]" HRAP Rule

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28(b)(10). In addition, Ventrella failed to comply with HRAP
Rule 28(a) ("If a brief raises ineffective assistance of counsel
as a point of error, the appellant shall serve a copy of the
brief on the attorney alleged to have been ineffective."). For
these reasons, we decline to address Ventrella's contention.
For the foregoing reasons, we affirm the circuit
court's Order Denying Petition entered on June 15, 2020.
DATED: Honolulu, Hawai#i, June 20, 2022.

On the briefs:
/s/ Lisa M. Ginoza
Michael Ventrella, Chief Judge
Self-represented Petitioner-
Appellant. /s/ Katherine G. Leonard
Associate Judge
Craig Y. Iha,
Laura K. Maeshiro, /s/ Keith K. Hiraoka
Deputy Attorneys General, Associate Judge
State of Hawai#i,
for Respondent-Appellee.

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