HOUSE OF REPRESENTATIVES H.B. NO. 1247 THIRTY-THIRD LEGISLATURE, 2025 H.D. 1 STATE OF HAWAII A BILL FOR AN ACT RELATING TO CRIMINAL PROCEEDINGS. BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:
HOUSE OF REPRESENTATIVES H.B. NO. 1247
THIRTY-THIRD LEGISLATURE, 2025 H.D. 1
STATE OF HAWAII
HOUSE OF REPRESENTATIVES
H.B. NO.
1247
THIRTY-THIRD LEGISLATURE, 2025
H.D. 1
STATE OF HAWAII
A BILL FOR AN ACT
RELATING TO CRIMINAL PROCEEDINGS.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:
SECTION 1. 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. 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. This minimum term defines the length of time a person must spend in incarceration before they become eligible for parole. HPA is guided by rules and statutes, but getting a court to review HPA's decision has proven difficult for inmates. 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. The petition is reserved for serious constitutional issues that have arisen in the criminal case: 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. Inmates often challenge the decisions of HPA and file HRPP rule 40 petitions which are denied. 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. As HRPP rule 40 is considered a civil matter, indigent petitioners are not entitled to representation by the office of the public defender. 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. This procedure screens out meritorious issues and is daunting for indigent inmates who must file their petition without the assistance of an attorney. 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. 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. Only if a court finds a "colorable claim" will counsel be appointed. 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). 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. 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. The legislature further finds that judicial review will provide greater uniformity in due process and statutory compliance by HPA. The purpose of this Act is to: (1) Allow a party aggrieved by the judgment of a circuit court on a minimum term order to appeal to the intermediate appellate court; (2) Require prisoners to continue to be represented by counsel in any petition challenging minimum term proceedings; (3) Require the supreme court to establish rules regarding the form and content of the petition challenging minimum term proceedings, the parties, and hearings on the motion, and the referral to the public defender where necessary; and (4) Establish grounds for challenging a minimum term order. SECTION 2. Section 641-11, Hawaii Revised Statutes, is amended to read as follows: "§641-11 From circuit courts. 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. The sentence of the court in a criminal case shall be the judgment. All appeals shall be filed with the clerk of the supreme court and shall be subject to one filing fee." SECTION 3. Section 706-669, Hawaii Revised Statutes, is amended to read as follows: "§706-669 Procedure for determining minimum term of imprisonment. (1) 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. (2) 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. The report shall be a complete personality evaluation for the purpose of determining the prisoner's degree of propensity toward criminal activity. (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). (4) 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. (5) 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). (6) A verbatim stenographic or mechanical record of the hearing shall be made and preserved in transcribed or untranscribed form. (7) 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. The authority shall notify the prosecuting attorney of the hearing at the time the prisoner is given notice of the hearing. 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. (8) 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. (9) In instances where the prisoner has been represented by counsel in the minimum term proceedings, the prisoner shall continue to have the right to representation by counsel in any petition challenging those proceedings that is filed under the rules of penal procedure within ninety days of the issuance and service of the order fixing the minimum term of imprisonment. The supreme court shall establish rules regarding the form and content of the petition, the parties, and hearings on the motion, and the referral to the public defender where necessary. The grounds set forth in the petition challenging the proceedings may allege that the minimum term order is: (a) In violation of constitutional or statutory provisions; (b) In excess of the statutory authority or jurisdiction of the Hawaii paroling authority; (c) Made upon unlawful procedure; (d) Affected by other error of law; (e) Clearly erroneous in view of substantive evidence on the whole record; or (f) Arbitrary, or capricious, or characterized by abuse of discretion or clearly unwarranted exercise of discretion." SECTION 4. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date. SECTION 5. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored. SECTION 6. This Act shall take effect on July 1, 3000.
SECTION 1. 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.
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. This minimum term defines the length of time a person must spend in incarceration before they become eligible for parole. HPA is guided by rules and statutes, but getting a court to review HPA's decision has proven difficult for inmates.
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. The petition is reserved for serious constitutional issues that have arisen in the criminal case: 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. Inmates often challenge the decisions of HPA and file HRPP rule 40 petitions which are denied.
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. As HRPP rule 40 is considered a civil matter, indigent petitioners are not entitled to representation by the office of the public defender. 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. This procedure screens out meritorious issues and is daunting for indigent inmates who must file their petition without the assistance of an attorney.
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. 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. Only if a court finds a "colorable claim" will counsel be appointed. 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).
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. 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. The legislature further finds that judicial review will provide greater uniformity in due process and statutory compliance by HPA.
The purpose of this Act is to:
(1) Allow a party aggrieved by the judgment of a circuit court on a minimum term order to appeal to the intermediate appellate court;
(2) Require prisoners to continue to be represented by counsel in any petition challenging minimum term proceedings;
(3) Require the supreme court to establish rules regarding the form and content of the petition challenging minimum term proceedings, the parties, and hearings on the motion, and the referral to the public defender where necessary; and
(4) Establish grounds for challenging a minimum term order.
SECTION 2. Section 641-11, Hawaii Revised Statutes, is amended to read as follows:
"§641-11 From circuit courts. 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. The sentence of the court in a criminal case shall be the judgment. All appeals shall be filed with the clerk of the supreme court and shall be subject to one filing fee."
SECTION 3. Section 706-669, Hawaii Revised Statutes, is amended to read as follows:
"§706-669 Procedure for determining minimum term of imprisonment. (1) 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.
(2) 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. The report shall be a complete personality evaluation for the purpose of determining the prisoner's degree of propensity toward criminal activity.
(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).
(4) 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.
(5) 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).
(6) A verbatim stenographic or mechanical record of the hearing shall be made and preserved in transcribed or untranscribed form.
(7) 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. The authority shall notify the prosecuting attorney of the hearing at the time the prisoner is given notice of the hearing. 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.
(8) 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.
(9) In instances where the prisoner has been represented by counsel in the minimum term proceedings, the prisoner shall continue to have the right to representation by counsel in any petition challenging those proceedings that is filed under the rules of penal procedure within ninety days of the issuance and service of the order fixing the minimum term of imprisonment. The supreme court shall establish rules regarding the form and content of the petition, the parties, and hearings on the motion, and the referral to the public defender where necessary. The grounds set forth in the petition challenging the proceedings may allege that the minimum term order is:
(a) In violation of constitutional or statutory provisions;
(b) In excess of the statutory authority or jurisdiction of the Hawaii paroling authority;
(c) Made upon unlawful procedure;
(d) Affected by other error of law;
(e) Clearly erroneous in view of substantive evidence on the whole record; or
(f) Arbitrary, or capricious, or characterized by abuse of discretion or clearly unwarranted exercise of discretion."
SECTION 4. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date.
SECTION 5. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.
SECTION 6. This Act shall take effect on July 1, 3000.
Report Title: Minimum Terms; Judicial Review Description: Allows a party aggrieved by the judgment of a circuit court on a minimum term order to appeal to the Intermediate Appellate Court. Requires prisoners to continue to be represented by counsel in any petition challenging minimum term proceedings. Requires the Supreme Court to establish rules. Establishes grounds for challenging a minimum term order. Effective 7/1/3000. (HD1) The summary description of legislation appearing on this page is for informational purposes only and is not legislation or evidence of legislative intent.
Report Title:
Minimum Terms; Judicial Review
Description:
Allows a party aggrieved by the judgment of a circuit court on a minimum term order to appeal to the Intermediate Appellate Court. Requires prisoners to continue to be represented by counsel in any petition challenging minimum term proceedings. Requires the Supreme Court to establish rules. Establishes grounds for challenging a minimum term order. Effective 7/1/3000. (HD1)
The summary description of legislation appearing on this page is for informational purposes only and is not legislation or evidence of legislative intent.