by Douglas Ankney

Over 42 years after he was sentenced to Life with Possibility of Parole (LWPP), a pro se Hawaii prisoner took a step closer to the promise contained in his sentence on October 22, 2021, when the state Supreme Court reinstated his claim that he was wrongfully denied parole for failure to pay over $11,000 in restitution the trial court ordered without considering his ability to pay. The high court also said a state appellate court erred in determining that the prisoner sought relief under a “new rule” that did not retroactively apply to his case.

The prisoner, Richard Rapozo, was convicted of murder in 1979 and sentenced to LWPP, also ordered to pay restitution “in the amount of $11,109.33 in a manner to be determined and handled by the Department of Social Services and Housing” (DSSH).

In its “Notice and Order Fixing Minimum Term(s) of Imprisonment” issued on October 18, 1979, the state paroling authority (HPA) set Rapozo’s minimum sentence at thirty years, with the condition that “parole shall not be granted until judgment of restitution is satisfied.”

From 2006 through 2013, HPA denied Rapozo’s parole requests. Each time, he filed a petition under “Rule 40” of the state code, which governs post-conviction proceedings. In its 2012 denial, HPA said it was “not convinced” Rapozo could “substantially comply with the terms and conditions of parole,” recommending programs in which Rapozo might participate. In 2013, HPA’s next denial stated that Rapozo’s “participation in work furlough while incarcerated will significantly enhance [his] success on parole.”

In his eighth Rule 40 petition, Rapozo challenged the 2012 and 2013 parole denials, alleging that (1) based on State v. Gaylord, 890 P.2d 1167 (Haw. 1995), the trial court erred by ordering him to pay restitution without first determining whether he could afford it; and (2) HPA erred by denying parole for nonpayment of restitution, as well as by (3) denying parole for failure to complete or participate in a work furlough program, after Rapozo was transferred to an Arizona prison and could not participate in programs available only in Hawaii.

The circuit court denied the petition without a hearing, reasoning that Gaylord was based on State v. Johnson, 711 P.2d 1295 (Haw. 1985), which did in fact hold that “[w]ithout express legislative authority, the court cannot delegate the sentencing function.” But the circuit court said this could not retroactively be applied to Rapozo’s case because Johnson created a “new rule,” which is exempted from retroactive application by the U.S. Supreme Court in Teague v. Lane, 489 U.S. 288 (1989).

Rapozo appealed. The Intermediate Court of Appeals (ICA) affirmed. The state Supreme Court then granted Rapozo’s petition for a writ of certiorari.

Threading a Maze of Precedent

Taking up the case then, the Court observed that the question was whether Rapozo’s Rule 40 petition met the statutory requirement—that it is not “patently frivolous and without trace of support”—and also, citing Dan v. State, 879 P.2d 528 (Haw. 1994), made a “colorable claim.”

The Court then turned to its own ruling in State v. Murray, 621 P.2d 334 (Haw. 1980), which held that the “requisite specificity” of the state’s restitution statute, H.R.S. §§ 706-605, “should be provided by the sentencing court and ought not be left to subsequent administrative determination.”

The Court then observed Johnson’s holding that “although the trial court may delegate to the Adult Probation Division the function of making recommendations … the court has the exclusive responsibility and function of imposing a sentence.”

“Without express legislative authority,” the Johnson court concluded, a state court “cannot delegate the sentencing function to another person or entity.”

The Court also noted that Gaylord said it violates the principle of both Murray and Johnson to delegate to another administrative body the judicial function of determining not only the amount of restitution but also the manner of payment.

So now it was time for the Court to make a Teague analysis to determine which part of this precedent, if any, should be given retroactive effect on collateral review. For this, the Court turned to its decision in Schwartz v. State, 272 P.3d 1161 (Haw. 2015), which laid out guiding principles to determine whether a “new rule” has been created and concluded that when the Court merely clarifies an existing legal principle, a new rule does not arise.

In the instant case, the Court said, Johnson did not announce or create a new rule but rather merely clarified the principle first announced in Murray. And Teague was also inapplicable to Murray because that engaged only “in statutory construction to elucidate the meaning and application of specific provisions of a statute.”

So, addressing Rapozo’s claim that the trial court erred by ordering him to pay restitution without first determining his ability to pay, the Court ruled that the circuit court and ICA both erred and that Rapozo had stated a colorable claim in his Rule 40 petition, which simply couldn’t be denied without a hearing.

With regard to Rapozo’s claim that HPA erred in denying him parole for nonpayment of restitution, the record itself raised the question, the Court said, rendering that claim colorable, too. So the circuit court also erred in denying this claim without a hearing.

Regarding Rapozo’s claim that HPA erred by denying him parole for failure to complete or participate in the work furlough program, the Court noted that Rapozo was transferred out of state and never given opportunity to participate in the programming, so it may well be arbitrary and capricious to deny an incarcerated person parole for failure to participate in a program while never giving him an opportunity to do so. Again, the Court concluded that Rapozo had presented a colorable claim and the circuit court erred in denying the claim without a hearing.

Accordingly, the Court vacated both the judgment of ICA and the circuit court and remanded the case for further proceedings consistent with its opinion. See: Rapozo v. State, 150 Haw. 66, 497 P.3d 81 (2021). 

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