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IN THE SUPREME COURT OF THE STATE OF HAWAIʻI

---o0o---

________________________________________________________________

RICHARD RAPOZO, Petitioner/Petitioner-Appellant,

vs.

STATE OF HAWAIʻI,Respondent/Respondent-Appellee.

________________________________________________________________

SCWC-16-0000532

CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS

(CAAP-16-0000532; CASE NO. 1PR141000016)

OCTOBER 22, 2021

RECKTENWALD, C.J., NAKAYAMA, McKENNA, WILSON, AND EDDINS, JJ.

OPINION OF THE COURT BY McKENNA, J.

I. Introduction

Richard Rapozo (“Rapozo”) appeals pro se from the Circuit 

Court of the First Circuit’s (“circuit court”)1 denial of his 

 

1 The Honorable Richard K. Perkins presided over the eighth HRPP Rule 40 

petition at issue in this certiorari proceeding.

Electronically Filed

Supreme Court

SCWC-16-0000532

22-OCT-2021

09:44 AM

Dkt. 19 OP
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eighth Hawaiʻi Rules of Penal Procedure (“HRPP”) Rule 40 (2006) 

petition for post-conviction relief. 

Rapozo was convicted of murder by a jury on April 10, 1979. 

On May 16, 1979, the trial court sentenced Rapozo to life 

imprisonment with the possibility of parole and ordered 

restitution “in the amount of $11,109.33, the manner of payment 

to be determined and handled by the Department of Social 

Services and Housing.” In an October 18, 1979 “Notice and Order 

Fixing Minimum Term(s) of Imprisonment,” the Hawaiʻi Paroling 

Authority (“HPA”) set Rapozo’s minimum sentence at thirty years, 

with the condition that “[p]arole shall not be granted until 

judg[]ment of restitution is satisfied” (“minimum term order”).

The HPA denied Rapozo’s parole requests from 2006 through 2013

on the grounds it was not convinced Rapozo could substantially 

comply with the terms and conditions of parole, without stating 

why it was not convinced, and recommended that Rapozo 

participate in various programs.

Liberally construed,2 in summary, Rapozo argued in his 

eighth HRPP Rule 40 petition that (1) the trial court erred by 

ordering restitution without first determining whether Rapozo 

could afford to pay it; (2) the trial court erred by delegating 

 

2 See Villaver v. Sylva, 145 Hawaiʻi 29, 36, 445 P.3d 701, 708 (2019) (“A

fundamental tenet of Hawaiʻi law is that pleadings prepared by pro se 

litigants should be interpreted liberally” (cleaned up)). 
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payment of restitution to the Department of Social Services and 

Housing (“DSSH”); and (3) the HPA erred by denying him parole 

for nonpayment of restitution. The circuit court denied the 

eighth HRPP Rule 40 petition without a hearing on June 21, 2016. 

The Intermediate Court of Appeals (“ICA”) affirmed. The 

ICA declined to address Rapozo’s argument on appeal that the 

trial court erred by ordering restitution without determining 

Rapozo’s ability to pay on the grounds Rapozo had not raised the

issue before the trial court in the eighth HRPP Rule 40 

petition. The ICA also ruled that State v. Johnson, 68 Haw. 

292, 297, 711 P.2d 1295, 1299 (1985), which held that “[w]ithout 

express legislative authority, the court cannot delegate the 

sentencing function to another person or entity,” did not 

retroactively apply to Rapozo’s sentence. 

In summary, we hold that Rapozo stated a colorable claim 

that the HPA denied parole due to nonpayment of restitution due 

to the condition in the minimum term order. We also hold that

Johnson clarified an existing legal principle, and therefore did 

not create a “new rule.” Thus, Rapozo raised colorable claims

in his eighth HRPP Rule 40 petition.

Hence, we vacate the ICA’s April 5, 2021 judgment on appeal 

and the circuit court’s June 21, 2016 order denying the eighth 

HRPP Rule 40 petition, and we remand this case to the circuit 

court for further proceedings consistent with this opinion.
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II. Background

A. Factual background

The ICA opinion on Rapozo’s direct appeal sets out the 

factual background of the murder conviction:

On the evening of August 15, 1978, appellant [Rapozo]

was at the Waimanalo Gym. He purchased a pistol outside 

the Gym and tucked it in his pants. He consumed some beer 

during the course of the evening. A girls’ volleyball game 

was in progress in the Gym and appellant had been in the 

Gym playing with the girls for about an hour when he 

allegedly became obnoxious and was asked to leave. As he 

walked away, he was confronted by one Robert Lee, whom he 

had never met. Lee was fatally wounded by the first bullet 

fired from appellant’s gun which struck him in the stomach. 

After Lee had fallen, the appellant shot him two more 

times. On the question of whether the appellant drew his 

gun and shot Lee the first time or whether the first shot 

resulted from Lee’s attempt to seize the gun and the 

resulting struggle, the evidence was conflicting.

State v. Rapozo (Rapozo I), 1 Haw. App. 255, 257, 617 P.2d 1235, 

1236 (1980).

1. Indictment and sentence

On August 23, 1978, a grand jury indicted Rapozo for murder 

in violation of Hawaiʻi Revised Statutes (“HRS”) § 707-701.3 On 

April 10, 1979, a jury convicted Rapozo of the charged offense. 

On May 16, 1979, the trial court filed its judgment 

sentencing Rapozo to life imprisonment with the possibility of 

 

3 HRS § 707-701 (1976) provided:

§ 707-701 Murder. (1) Except as provided in section 

707-702, a person commits the offense of murder if [the 

person] intentionally or knowingly causes the death of 

another person.

(2) Murder is a class A felony for which the 

defendant shall be sentenced to imprisonment as provided in 

section 706-606.
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parole. The trial court also ordered “restitution in the amount 

of $11,109.33, the manner of payment to be determined and 

handled by the Department of Social Services and Housing.” 

The HPA’s October 18, 1979 minimum term order set Rapozo’s 

minimum sentence at thirty years, with the condition that 

“[p]arole shall not be granted until judg[]ment of restitution 

is satisfied.”4 (Emphasis added.) 

B. Procedural background

Because HRPP Rule 40(a)(3)5 prohibits relief when “the 

issues sought to be raised have been previously ruled upon or 

were waived,” we summarize Rapozo’s previous appeals and 

 

4 At the time of sentencing, HRS § 706-669 (1976) stated in relevant 

part:

(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 social services and 

housing 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.

5 HRPP Rule 40(a)(3), which governs waiver of issues in HRPP Rule 40 

proceedings, states:

(3) Inapplicability. Rule 40 proceedings shall not be 

available and relief thereunder shall not be granted where 

the issues sought to be raised have been previously ruled 

upon or were waived. Except for a claim of illegal 

sentence, an issue is waived if the petitioner knowingly 

and understandingly failed to raise it and it could have 

been raised before the trial, at the trial, on appeal, in a 

habeas corpus proceeding or any other proceeding actually 

conducted, or in a prior proceeding actually initiated 

under this rule, and the petitioner is unable to prove the 

existence of extraordinary circumstances to justify the 

petitioner’s failure to raise the issue. There is a 

rebuttable presumption that a failure to appeal a ruling or 

to raise an issue is a knowing and understanding failure.
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petitions. We also summarize relevant proceedings before the 

HPA.

1. Rapozo’s direct appeal, previous petitions, and parole 

hearings

a. Direct appeal

Rapozo appealed from the original judgment of conviction to 

the ICA, alleging ineffective assistance of counsel.6 Rapozo I, 

1 Haw. App. at 257, 617 P.2d at 1236–37. The ICA affirmed 

Rapozo’s conviction, holding the record insufficient to 

establish ineffective assistance of counsel. Id. 

b. First HRPP Rule 40 petition

On May 8, 1981, Rapozo filed his first HRPP Rule 40 

petition, S.P. No. 5490, again alleging ineffective assistance 

of counsel.7 The circuit court denied the petition. On appeal, 

this court affirmed, concluding Rapozo’s ineffective assistance 

of counsel claim was meritless. Rapozo v. State, No. 8573 (Haw. 

June 26, 1984) (mem.).

 

6 Specifically, Rapozo argued trial counsel should have made the defense 

of intoxication as precluding the state of mind required for murder the main 

thrust of the defense, rather than the defense of accident. Rapozo I, 1 Haw. 

App. at 257, 617 P.2d at 1237.

7 Rapozo again argued ineffective assistance of counsel, contending (1) 

trial counsel did not adequately investigate his claim of intoxication and 

resulting diminished capacity, and thus failed to present that defense and 

improperly urged the defense of unintentional or accidental homicide, and (2) 

trial counsel coached him to give perjured testimony. 
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c. First habeas corpus petition

On June 3, 1988, Rapozo filed a habeas corpus petition in 

the United States District Court for the District of Hawaiʻi

(“district court”) once again alleging ineffective assistance of 

counsel.8 The district court dismissed the petition on December 

18, 1991.

d. Second HRPP Rule 40 petition

On August 13, 1993, Rapozo filed his second HRPP Rule 40 

petition, S.P.P. No. 93-0048, alleging different grounds for 

relief.9 The circuit court denied the petition without a hearing

and Rapozo did not appeal.

e. Reduction of Rapozo’s minimum term sentence

On August 21, 1995, the HPA granted Rapozo’s application to 

reduce his minimum term sentence from thirty years to twentyeight years. His minimum term sentence therefore expired on 

August 10, 2006.

 

8 Rapozo argued (1) ineffective assistance from both trial and appellate 

counsel because they failed to fully investigate a possible intoxication 

defense, (2) trial counsel counseled Rapozo on what to testify to at trial, 

thus causing Rapozo to commit perjury and neglect the intoxication issue, and 

(3) the trial court judge was biased against him because the same judge had 

convicted his brother of murdering a witness. See State v. Rapozo, No, 88-

0414DAE (D. Haw. Nov. 1, 1991) (report and recommendation).

9 Rapozo argued (1) the trial judge was biased against him, (2) the trial 

judge had a conflict of interest and therefore neglected to instruct for 

negligent homicide, (3) the police were negligent in their investigation, and 

(4) his trial counsel was rewarded for his conviction with a position as a 

judge.
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f. Third HRPP Rule 40 petition

On July 11, 1997, Rapozo filed his third HRPP Rule 40 

petition, S.P.P. No. 97-0016, alleging ineffective assistance of 

counsel and several other grounds for relief.10 The circuit 

court denied the petition. On appeal, the ICA summarily 

affirmed. Rapozo v. State, 90 Hawaiʻi 502, 979 P.2d 98 (SDO) 

(App. Jan. 27, 1999).

g. HRPP Rule 35 motion to correct sentence

On January 12, 1999, Rapozo filed a “Brief in Support of 

Motion to Correct Sentence” (“HRPP Rule 35 motion”).11 The 

circuit court summarily denied the HRPP Rule 35 motion without a 

hearing.12 This court dismissed Rapozo’s appeal after he failed 

 

10 Rapozo argued (1) ineffective assistance of trial counsel because 

counsel failed to object and move for an in camera hearing, (2) the State 

misled the jury by withholding material evidence, and (3) he was denied the 

right to confront potential witnesses/statements.

11 Rapozo argued that HRS § 707-701 had been amended since the time of his 

sentence, and the crime of which he was convicted did not fall within the 

scope of the then-current version of HRS § 707-701 (1993), first degree 

murder. He also argued his sentence should be corrected to reflect the term 

of imprisonment imposed by HRS § 706-656 (1993), the statute then governing 

the penalty for second degree murder, HRS § 707-701.5 (1993).

12 The circuit court rejected the motion because (1) it was untimely under 

HRPP Rule 35, and (2) HRS § 707-701.5 could not be retroactively applied. As 

to the second basis, the circuit court, noting that HRS § 707-701 was amended 

and HRS § 707-701.5 (second degree murder) was added by 1986 Haw. Sess. Laws 

Act 314, § 50 at 616, stated:

In essence, Rapozo asks this court to correct his 

sentence to reflect the sentence of an offense (Murder in 

the Second Degree) that did not exist at the time Rapozo 

was indicted, convicted and sentenced. Rapozo’s request 

presents the issue of whether this court can retroactively 

apply HRS § 707-701.5 (1993), which took effect on January 

1, 1987, to correct Rapozo’s sentence, which was imposed on 

May 16, 1979.

(continued. . .)
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to file an opening brief. See State v. Rapozo, No. 22327 (Haw. 

Sept. 9, 1999) (order). 

h. Fourth HRPP Rule 40 petition

On January 5, 2006, Rapozo filed a request for “Revocation 

of Restitution Forms,” which did not contain any arguments. The 

circuit court construed the request as a non-conforming petition 

for post-conviction relief under HRPP Rule 40(c)(2)13 and filed 

the request under S.P.P. No. 06-1-0040. Because Rapozo did not 

 

(. . .continued)

HRS § 1-3 (1993) states that “[n]o law has any 

retrospective operation, unless otherwise expressed or 

obviously intended.” The general rule is that “[s]tatutes 

or regulations which say nothing about retroactive 

application are not applied retroactively if such a 

construction will impair existing rights, create new 

obligations or impose additional duties with respect to 

past transactions.” Clark v. Cassidy, 64 Haw. 74, 77, n.6, 

636 P.2d 1344, 1346, n.6 (1981). Because Act 314 took 

effect on January 1, 1987 and because HRS § 707-701.5 

(1993) does not mention retroactive application, this court 

cannot correct Rapozo’s sentence to conform with the 

provisions of HRS § 707-656 (1993), the sentence required 

by HRS § 707-701.5 (1993).

On May 16, 1979, Rapozo was sentenced to life 

imprisonment with the possibility of parole. This sentence 

was correct according to the law as it existed at that 

time.

(Alterations in original.) 

13 HRPP Rule 40(c)(2) states:

(c) Form and Content of Petition.

. . . .

(2) Nonconforming Petition. Where a post-conviction 

petition deviates from the form annexed to these 

rules, it shall nevertheless be accepted for filing 

and shall be treated as a petition under this rule 

provided that the petition (i) claims illegality of a 

judgment or illegality of “custody” or “restraint” 

arising out of a judgment, (ii) is accompanied by the 

necessary filing fee or by a well-founded request to 

proceed without paying filing fees, and (iii) meets 

minimum standards of legibility and regularity.
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supplement the non-conforming petition as required, the circuit 

court dismissed the petition. 

i. 2006 parole hearing

On October 23, 2006, the HPA denied Rapozo’s parole request 

on the grounds it was “not convinced that [Rapozo] could 

substantially comply with the terms and conditions of parole.” 

The HPA recommended “[t]hat [Rapozo] participate in work 

furlough.” A rehearing was scheduled for July 2007.

j. 2007 parole hearing

On July 24, 2007, the HPA again denied Rapozo’s parole 

request on the grounds it was “not convinced that [Rapozo] could 

substantially comply with the terms and conditions of parole.” 

The HPA recommended “[t]hat [Rapozo] participate in all RAD 

recommended programs.”14 A rehearing was scheduled for June 

2008.

k. Fifth HRPP Rule 40 petition

On January 24, 2008, Rapozo filed his fifth HRPP Rule 40 

petition, S.P.P. No. 08-1-0003, raising various grounds for 

relief.15 The circuit court denied the petition without a 

 

14 The record does not reflect what the acronym RAD means. However, 

according to Rapozo, “RAD” means “Reception Assessment & Diagnostics.”

15 Rapozo argued (1) his First Amendment rights were violated by 

application of ex post facto laws, (2) the HPA and Department of Public 

Safety (“DPS”) refused to release him after the expiration of what should 

have been his maximum term sentence, (3) he was falsely imprisoned, and (4) 

ex post facto law changes “were applied without notification of change or 

application.”
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hearing, and Rapozo appealed. The ICA affirmed, holding that 

Rapozo was properly sentenced to life imprisonment with the 

possibility of parole and he was not being held beyond the 

expiration of his maximum sentence. Rapozo v. State, No. 29771, 

2010 WL 2565125, at *1 (App. June 28, 2010) (SDO).

l. 2008 parole hearing

On June 26, 2008, the HPA again denied Rapozo’s parole 

request on the grounds it was “not convinced that [Rapozo could]

substantially comply with the terms and conditions of parole.” 

The HPA recommended “[t]hat [Rapozo] participate in all RAD 

recommended programs.” A rehearing was scheduled for May 2009.

m. 2009 parole hearing

On May 20, 2009, the HPA once again denied Rapozo’s parole 

request on the grounds it was “not convinced that [Rapozo could]

substantially comply with the terms and conditions of parole.” 

The HPA recommended “[t]hat Rapozo participate in work 

furlough.” A rehearing was scheduled for April 2010.

n. Sixth HRPP Rule 40 petition

On May 26, 2009, Rapozo filed a “Petition for Writ of 

Habeas Corpus” in the circuit court.16 The circuit court treated 

the petition as a non-conforming petition for post-conviction 

relief and filed it under S.P.P. No. 09-1-0022. Rapozo again 

 

16 Rapozo argued he was illegally imprisoned because he was sentenced to a 

twenty-year imprisonment and ex post facto law changes were applied.
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did not timely supplement the non-conforming petition with the 

required form, and the circuit court dismissed the petition.

o. 2010 parole hearing

On April 22, 2010, the HPA denied Rapozo’s parole request,

stating: “REASON FOR DENIAL: Your participation in work furlough 

while incarcerated will significantly enhance your success on 

parole.” A rehearing was scheduled for January 2011.

p. Second habeas corpus petition

On August 30, 2010, Rapozo filed an “Amended Petition Under 

28 U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in 

State Custody” in the district court.17 The district court 

transferred the petition to the Ninth Circuit Court of Appeals 

on the grounds only the Ninth Circuit could authorize the 

district court to consider a second or successive petition for 

writ of habeas corpus. The Ninth Circuit then denied 

authorization for a second habeas corpus petition.

q. 2011 parole hearing

On March 28, 2011, the HPA denied Rapozo’s parole request 

on the grounds it was “not convinced that [Rapozo could]

substantially comply with the terms and conditions of parole.” 

 

17 Rapozo argued (1) erroneous conviction and violation of the Fifth and 

Sixth Amendments to the United States Constitution, (2) violation of article 

1, section 10 of the United States Constitution (ex post facto clause), (3) 

cruel and unusual punishment in violation of the Eighth Amendment to the 

United States Constitution, and (4) illegal and improper detainment in 

violation of the Fourteenth Amendment to the United States Constitution.

 
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The HPA recommended “[t]hat [Rapozo] participate in work 

furlough.” A rehearing was scheduled for February 2012.

r. Seventh HRPP Rule 40 petition

On January 10, 2012, Rapozo filed an HRPP Rule 40 petition

that alleged fourteen points of error, initiating S.P.P. No. 12-

1-0003.18 The circuit court dismissed the petition, finding:

All fourteen grounds raised by Petitioner were in fact 

already raised and ruled upon either in Petitioner’s direct 

appeal, or in one of his four prior Rule 40 Petitions cited 

above and their respective appeals.[19] Even assuming, 

arguendo, that any of the fourteen grounds were not raised 

in Petitioner’s prior Rule 40 Petitions or his direct 

appeal, they are deemed waived as Petitioner has failed to 

allege facts establishing the existence of extraordinary 

circumstances to justify the failure to raise them in the 

earlier proceedings.

The ICA dismissed Rapozo’s appeal after Rapozo failed to 

file an opening brief. Rapozo v. State, No. CAAP-12-0000544, 

2013 WL 1490431 (App. Apr. 11, 2013) (order).

 

18 The fourteen points of error were: (1) application of ex post facto 

laws to his sentence; (2) violation of the ex post facto clause; (3) the 

State did not prove the elements of the charged offense beyond a reasonable 

doubt; (4) the State used perjured testimony; (5) vindictive prosecution; (6) 

error under Chapman v. California, 386 U.S. 18 (1967); (7) he was falsely 

charged with charges stemming from a riot at Halawa Correctional Center; (8) 

trial counsel’s conflict of interest as he was rewarded for Rapozo’s 

conviction with a position as a judge; (9) ineffective assistance of 

appellate counsel; (10) cruel and unusual punishment; (11) conviction on 

different issues and facts than what he was charged with; (12) 

“discriminatory enforcement of the law”; (13) he was held in prison because 

he was unable to pay restitution; and (14) ineffective assistance of trial 

counsel. 

19 The circuit court took judicial notice of Rapozo I and the records and 

files in S.P.P. Nos. 5490 (the first HRPP Rule 40 petition), 93-0048 (the 

second HRPP Rule 40 petition), 97-0016 (the third HRPP Rule 40 petition), and 

08-1-0003 (the fifth HRPP Rule 40 petition).
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s. 2012 parole hearing

On August 28, 2012, the HPA again denied Rapozo’s parole 

request on the grounds it was “not convinced that [Rapozo could]

substantially comply with the terms and conditions of parole.” 

The HPA recommended “[t]hat [Rapozo] participate in all RAD 

recommended programs.” A rehearing was scheduled for July 2013.

t. 2013 parole hearing

On July 29, 2013, the HPA denied Rapozo’s parole request,

stating: “REASON FOR DENIAL: Your participation in work furlough 

while incarcerated will significantly enhance your success on 

parole.” A rehearing was scheduled for June 2014.

u. Instant eighth HRPP Rule 40 petition and 

responses

On June 9, 2014, Rapozo filed “Defendant’s Motion for 

Revocation of Restitution”20 (“motion for revocation of 

restitution”). The circuit court construed the motion for 

revocation of restitution as a non-conforming petition for postconviction relief and initiated S.P.P. No. 14-1-0016. On July 

18, 2014, Rapozo filed a “Petition to Vacate, Set Aside, or 

Correct Judgment or to Release Petitioner from Custody,” which 

incorporated the motion. The July 18, 2014 petition is the 

 

20 In a Motion for Assistance of Counsel, Rapozo also requested 

appointment of counsel to represent him on the allegedly colorable claims in 

his Motion for Revocation of Restitution.
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eighth HRPP Rule 40 petition, the subject of this certiorari 

proceeding.

In his eighth HRPP Rule 40 petition, Rapozo raised the 

following general claims for relief. First, based on the 1979 

minimum term order, Rapozo argued the HPA violated his 

constitutional rights by denying him parole due to nonpayment of 

restitution; he also argued that his restitution was in any 

event satisfied based on HRS §§ 706-644 (2014) and 706-645 

(2014)21 and therefore should be deemed “revoked.” Second, 

Rapozo argued his sentence was illegal because (1) he was 

sentenced to an extended term of imprisonment when he received 

 

21 HRS § 706-644 states in relevant part: 

(3) The term of imprisonment for nonpayment of fee, fine, 

or restitution shall be specified in the order of 

commitment, and shall not exceed one day for each $250 of 

the fee or fine, thirty days if the fee or fine was imposed 

upon conviction of a violation or a petty misdemeanor, or 

one year in any other case, whichever is the shorter 

period. A person committed for nonpayment of a fee or fine 

shall be given credit toward payment of the fee or fine for 

each day of imprisonment, at the rate of $250 per day.

At the time Rapozo was sentenced and convicted, HRS § 706-644 did not 

contain the word “restitution”; the legislature added the word “restitution” 

to the statute in 1986. See 1986 Haw. Sess. Laws Act 314, § 36 at 610-11. 

In 2021, the legislature amended the conversion rate in HRS § 706-644(3) from 

$25 to $250. See 2021 Haw. Sess. Laws Act 81, § 4.

HRS § 706-645 states in relevant part: 

(2) If it appears to the satisfaction of the court that the 

circumstances which warranted the imposition of the fine or 

restitution have changed, or that it would otherwise be 

unjust to require payment, the court may revoke the fine or 

restitution or the unpaid portion thereof in whole or in 

part. Prior to revocation, the court shall afford the 

prosecuting attorney an opportunity to be heard.
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life imprisonment with the possibility of parole instead of a 

twenty-year imprisonment, (2) restitution was not an authorized 

sentence for murder under HRS §§ 706-605 (1978) and 706-606 

(1976),22 and (3) even if restitution was an authorized sentence 

for murder, the trial court could not delegate the determination 

of the manner of payment to the DSSH, citing to State v. 

Gaylord, 78 Hawaiʻi 127, 890 P.2d 1167 (1995).23

 

22 HRS § 706-605 stated in relevant part:

(l) Except as provided in section 706-606 and subject to 

the applicable provisions of this Code, the court may 

suspend the imposition of sentence on a person who has been 

convicted of a crime, may order [that person] to be 

committed in lieu of sentence in accordance with section 

706-607, or may sentence [that person] as follows:

. . . .

(e) To make restitution or reparation to the 

victim or victims of [the] crime in an amount [the 

defendant] can afford to pay, for loss or damage 

caused thereby in addition to paragraphs (a), (b), 

(c), or (d) above.

HRS § 706-606 stated in relevant part:

The court shall sentence a person who has been convicted of 

murder to an indeterminate term of imprisonment. In such 

cases the court shall impose the maximum length of 

imprisonment as follows: 

. . . .

(b) Life imprisonment with possibility of 

parole or twenty years as the court determines, in 

all other cases. The minimum length of imprisonment 

shall be determined by the Hawaii paroling authority 

in accordance with section 706-669. 

23 Rapozo also asserted that the HPA raised his minimum term sentence to 

thirty years without providing a reason; the record does not evidence this.
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Attached to the motion for revocation of restitution were 

several documents, including an April 23, 2014 letter from thenHPA administrator Tommy Johnson (“Johnson”) to Rapozo. In 

relevant part, the letter stated:

Secondly, your assertion that you are being held in 

custody as a result of not being able to pay the 

restitution ordered by the court is without merit and 

bo[]rders on being completely untrue. There is absolutely 

no evidence to suggest that you were ever denied parole as 

a result of any issue regarding restitution ordered by the 

court.

. . . .

Finally, it is recommended that you continue to 

participate in facility programs, remain misconduct free, 

and participate in the Work Furlough programs as previously 

recommended. Your next parole consideration hearing will 

take place during September 2014, as previously ordered by 

the parole board.

In response to the eighth HRPP Rule 40 petition, the State 

argued HRPP Rule 40(a)(3) precluded the issues raised because 

they were previously ruled upon or waived.24 The State, through 

the Attorney General (“AG”), argued in relevant part that (1) 

Rapozo’s claims were waived and/or previously ruled upon, (2) 

Rapozo’s claims that his constitutional rights were being 

violated should be dismissed or transferred because they did not 

allege illegal custody or restraint, and (3) there was no 

constitutional or statutory right to parole. 

 

24 The State requested and received, over Rapozo’s objection, two 

extensions of time to respond. Attached to the second September 15, 2014 

extension motion was a declaration that stated: “Declarant was recently 

informed of a policy change regarding restitution matters, an issue raised in 

the Petition, which could affect the State’s response.” The State’s answer

did not mention any “policy change regarding restitution matters . . . .”
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On April 29, 2016, the AG also filed a declaration from 

Johnson and additional documents in support of its answer to the 

eighth HRPP Rule 40 petition, which included the HPA’s parole 

denials in 2014, 2015, and 2016.25 Johnson declared he was the 

HPA administrator from September 17, 2001, to June 12, 2007, 

when he became the Deputy Director of Correction for the DPS 

until December 6, 2010, when he returned to his HPA 

administrator position. Johnson maintained that there was no 

evidence the HPA denied Rapozo’s parole requests based on unpaid

restitution, notwithstanding the language in the 1979 HPA 

minimum term order; that despite Rapozo’s claim that he was a 

“model prisoner” and had “no misconduct for years,” Rapozo had 

violated various prison rules and policies from 1983 to 2014;

that Rapozo had not participated in the recommended level II 

substance abuse treatment program; that the work furlough 

program is full at times and incarcerated people scheduled to 

participate in it have to wait to be transported back to Hawaiʻi; 

and that the DPS, not the HPA, controlled when and which inmates 

were transported from Arizona to Hawaiʻi.26

 

25 On June 26, 2014; March 30, 2015; and February 24, 2016, the HPA denied 

Rapozo’s parole requests on the grounds it was “not convinced that [Rapozo 

could] substantially comply with the terms and conditions of parole.” The 

HPA recommended “[t]hat [Rapozo] participate in all RAD recommended 

programs.”

26 Johnson also incorrectly stated that Rapozo was “serving a concurrent 

sentence for a federal offense at a federal prison when his minimum term 

(continued. . .)
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On June 21, 2016, the circuit court denied the eighth HRPP 

Rule 40 petition without a hearing.

The circuit court addressed Rapozo’s argument that the 

trial court could not delegate the determination of the manner 

of payment of restitution to the DSSH. The circuit court 

indicated the premise set forth in Gaylord, that the trial court 

must enter findings of fact and conclusions of law that the 

manner of payment of restitution was reasonable and one the 

defendant could afford, which Rapozo relied on in his arguments,

was based on Johnson. Noting Rapozo’s conviction became final 

on or about November 15, 1980, the circuit court framed the 

issue as whether Johnson retroactively applied to Rapozo’s 

sentence. The circuit court cited to State v. Gomes, 107 Hawaiʻi 

308, 113 P.3d 184 (2005), as the “controlling precedent,” in 

which this court applied the Teague v. Lane, 489 U.S. 288 (1989)

framework to determine whether a new constitutional rule of 

criminal procedure applied on collateral review.27

 

(. . .continued)

expired . . . .” Rapozo was instead transferred to a federal prison after he 

was involved in a riot at the Halawa Correctional Facility.

27 In Gomes, this court stated:

In Teague v. Lane, the Supreme Court held that new 

constitutional rules of criminal procedure that had not 

been announced at the time the defendant’s conviction 

became final cannot be applied retroactively on collateral 

review unless they fit within one of two narrow exceptions.

These exceptions exist if a new rule (1) “places certain 

kinds of primary private individual conduct beyond the 

power of the criminal law-making authority to proscribe,” 

or (2) “requires the observance of those procedures that 

(continued. . .)
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The circuit court applied the Teague framework to Rapozo’s 

argument. The circuit court reasoned that at the time of 

Rapozo’s conviction, there were no cases interpreting the 

language of HRS § 706-605(1)(e). The circuit court observed 

that until Johnson, there were no Hawaiʻi cases that had 

specifically interpreted the phrase “in an amount he can afford 

to pay” to include the manner of payment. The circuit court 

concluded that, therefore, Johnson’s prohibition on delegating 

the manner of payment of restitution was a “new rule” created 

after Rapozo’s conviction. The circuit court also concluded 

that, because neither of the Teague exceptions applied, Johnson

did not retroactively apply to Rapozo’s sentence.

The circuit court also concluded: (1) Rapozo’s challenges 

to the 2006 through 2011 HPA parole denials were previously 

ruled upon or waived;28 (2) Rapozo’s argument that he had been 

denied parole due to nonpayment of restitution was meritless, 

patently frivolous, and without a trace of support in the 

 

(. . .continued)

. . . are implicit in the concept of ordered liberty.”

Thus, in order to apply the rule of Apprendi retroactively, 

we must determine that Apprendi is a new rule of criminal 

procedure that fits into one of Teague’s exceptions.

107 Hawaiʻi at 313, 113 P.3d at 189 (ellipsis in original) (quoting United 

States v. Sanchez-Cervantes, 282 F.3d 664, 667 (9th Cir. 2002)).

28 The circuit court ruled the 2006 and 2007 HPA parole denials were 

previously raised and ruled upon in Rapozo’s 2008 HRPP Rule 40 proceeding; 

and the 2008 through 2011 HPA parole denials were waived because Rapozo could 

have raised those issues in his 2009 and/or 2012 HRPP Rule 40 petitions but 

failed to do so, and he failed to prove the existence of extraordinary 

circumstances justifying his failure to do so. 
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record;29 (3) Rapozo’s argument that he was held in custody since 

2006 for nonpayment of restitution was meritless, patently 

frivolous, and without a trace of support in the record;30 (4) 

Rapozo’s challenge to his extended term sentence had been raised 

and ruled upon in his prior HRPP Rule 40 petitions and to the 

extent any portion of that issue was not raised and ruled upon, 

it was meritless, patently frivolous, and without a trace of 

support in the record; and (5) Rapozo’s claim that restitution 

was not an authorized sentence for murder under HRS §§ 706-605 

and 706-606 was meritless, patently frivolous, and without a 

trace of support in the record.

Rapozo appealed from the circuit court’s order denying the 

eighth HRPP Rule 40 petition to the ICA.31

 

29 The circuit court ruled the HPA denied parole in 2012 and 2014 through 

2016 because (1) notwithstanding the 1979 HPA minimum term order, it was not 

convinced that Rapozo could substantially comply with the terms and 

conditions of parole; and (2) the HPA indicated the reason for the 2013 

parole denial was that participation in work furlough while incarcerated 

would significantly enhance Rapozo’s success on parole.

30 The circuit court ruled that Rapozo’s reliance on HRS § 706-644 was 

misplaced because the limitations on imprisonment for nonpayment and the 

conversion rate of $25 per day of imprisonment then set out in HRS § 706-

644(3) plainly applied only to fees and fines. Further, the circuit court 

stated that even if Rapozo’s default was not contumacious, he had not 

presented any evidence of a change in circumstances, or that requiring 

payment would be unjust, to revoke restitution.

31 Rapozo had also initiated proceedings that resulted in: Rapozo v. 

State, No. 29047, 2008 WL 923291 (Haw. Mar. 24, 2008) (order); Rapozo v. 

Hawaiʻi, Case 1:08-cv-00191-HG-BMK (D. Haw. May 2, 2008) (order); Rapozo v. 

Perkins, No. 29667, 2009 WL 714308 (Haw. Mar. 13, 2009) (order); Rapozo v. 

Frank, No. 29718, 2009 WL 990850 (Haw. Apr. 9, 2009) (order); Rapozo v. 

State, No. 29949, 2009 WL 2477517 (Haw. Aug. 7, 2009) (order); Rapozo v. 

State, No. 30604, 2010 WL 2844082 (Haw. July 15, 2010) (order).
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2. ICA proceedings

On appeal, Rapozo raised fourteen points of error.32 

The ICA rejected Rapozo’s arguments and affirmed the 

circuit court’s order denying the eighth HRPP Rule 40 petition. 

Rapozo v. State, CAAP-16-0000532, 2021 WL 945376 (App. Mar. 12, 

2021) (mem.). The ICA ruled that under the Teague framework, 

Johnson could not be retroactively applied, as Johnson had 

announced a new rule—five years after Rapozo’s conviction and 

 

32 The fourteen points of error were: (1) the trial court plainly erred by 

ordering Rapozo to pay restitution without first determining that he could 

afford to pay it, citing to State v. Murray, 63 Haw. 12, 621 P.2d 334 (1980), 

Johnson, 68 Haw. 292, 711 P.2d 1295 (1985), and Gaylord, 78 Hawaiʻi 127, 890 

P.2d 1167 (1995); (2) the trial court erred by delegating payment of 

restitution to the DSSH; (3) the trial court erred by failing to address 

Rapozo’s challenges to restitution brought under HRS § 706-645; (4) the 

circuit court erred by determining the “afford to pay” requirement was not 

available to Rapozo in 1979; (5) the HPA erred by disallowing Rapozo’s 

possibility of parole for non-payment of a fee, fine, or restitution; (6) the 

HPA erred by repeatedly denying Rapozo parole because of “RAD 

recommendations,” as the DPS never returned him to Hawaiʻi to complete the 

“Hawaii Program,” which did not exist before his removal from Hawaiʻi; (7) the 

HPA erred by denying Rapozo parole repeatedly for his failure to complete the 

work furlough program when it was only available in Hawaiʻi, and he was never 

returned to Hawaiʻi; (8) the HPA erred by not returning Rapozo to Hawaiʻi to 

participate in the work furlough program for the reasons that “no room” 

existed on approximately forty plane flights to Hawaiʻi or that the program 

was “too full” to accommodate Rapozo; (9) the circuit court erred by allowing 

the AG to untimely respond to his petition; (10) the circuit court erred by 

not addressing Johnson’s perjury in his sworn affidavit; (11) the trial court 

erred by sentencing Rapozo under HRS § 706-606(b), which allowed “arbitrary 

selection of multiple punishments without specific differentiating elements 

of legislative instruction depicting separation of higher and lower degrees 

of punishment”; (12) the trial court erred by determining Rapozo’s maximum 

term sentence, and the HPA erred by determining Rapozo’s minimum term 

sentence, when neither were the trier of fact; (13) the State erred by 

keeping Rapozo away from Hawaiʻi and his family for nearly forty years, 

preventing him from seeing his mother before her death, and distanced from 

those who could offer him the most support and assistance in a successful 

community re-entry; and (14) the circuit court erred by denying Rapozo a 

hearing when he alleged federal and state constitutional violations, and by 

failing to address his claims of illegal sentence under HRPP Rule 35 as 

incorporated by HRPP Rule 40.
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sentence became final—that did not fall within either of the 

Teague exceptions. Rapozo, mem. op. at 14. The ICA ruled the 

circuit court therefore did not err by denying Rapozo’s request 

for relief without a hearing. Id. 

The ICA also ruled Rapozo’s argument that the “Hawaii 

Paroling Authority, by Order, has committed error in disallowing 

[Rapozo’s] possibility of parole for non-payment of a fee, fine 

or restitution” was meritless and waived. Rapozo, mem. op. at 

15-16. The ICA stated that notwithstanding the condition in the 

1979 minimum term order, none of the eleven HPA parole decisions 

in the record referenced payment of restitution as a condition 

of parole.33 Rapozo, mem. op. at 15. Moreover, the ICA ruled

that argument had been waived, as it challenged an HPA parole 

decision; it did not implicate an illegal sentence; it was not 

raised in any of Rapozo’s previous HRPP Rule 40 petitions; and 

Rapozo failed to show the existence of extraordinary 

circumstances justifying his failure to raise the issue 

previously. Rapozo, mem. op. at 15-16. Thus, the ICA concluded 

the circuit court did not err by denying Rapozo’s request for 

relief without a hearing. Rapozo, mem. op. at 16.

 

33 The ICA stated it could not consider the several documents attached to 

Rapozo’s reply brief, which were not presented to the circuit court with his 

eighth HRPP Rule 40 petition. Rapozo, mem. op. at 15 n.9 (citing Hawaiʻi

Rules of Appellate Procedure (“HRAP”) Rule 28(b)(10)).
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The ICA also ruled the 2010 and 2013 HPA parole denials 

were not based on Rapozo’s failure to participate in the work 

furlough program, but rather, were “consistent with a continuing 

assessment by HPA that Rapozo is unable to ‘substantially comply 

with the terms and conditions of parole[,]’ but that his 

participation in work furlough programs would ‘significantly 

enhance’ his ability to ‘substantially comply with the terms and 

conditions of parole.’” Rapozo, mem. op. at 17.

As to Rapozo’s first, third, fourth, sixth, and eighth

through fourteenth points of error, the ICA concluded they were 

either meritless, waived, or raised for the first time on 

appeal. See generally Rapozo, mem. op. at 12-20.

3. Supreme court proceedings

On April 20, 2021, Rapozo filed a pro se certiorari 

application, which does not contain any arguments or questions 

presented.34

III. Standards of review

A. HRPP Rule 40 petitions

Review of orders denying HRPP Rule 40 petitions is de 

novo:

 

34 Rapozo also filed an April 20, 2021 single-sentence “Request for 

Appointment of Counsel.” On May 4, 2021, Rapozo filed a “Motion for 

Appointment of Counsel,” asserting he has the constitutional right to have 

effective assistance of counsel throughout his criminal proceedings, and 

appears to ask for counsel to help him prepare a certiorari application. As 

Rapozo stated colorable claims as discussed below, he must be appointed 

counsel on remand. 
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As a general rule, a hearing should be held on 

a Rule 40 petition for post-conviction relief where 

the petition states a colorable claim. To establish 

a colorable claim, the allegations of the petition 

must show that if taken as true the facts alleged 

would change the verdict, however, a petitioner’s 

conclusions need not be regarded as true. Where 

examination of the record of the trial court’s 

proceedings indicates that the petitioner’s 

allegations show no colorable claim, it is not error 

to deny the petition without a hearing. The question 

on appeal of a denial of a Rule 40 petition without a 

hearing is whether the trial record indicates that 

Petitioner’s application for relief made such a 

showing of a colorable claim as to require a hearing 

before the lower court.

Dan v. State, 76 Hawaiʻi 423, 427, 879 P.2d 528, 532 (1994) 

(citation omitted).

Stanley v. State, 148 Hawaiʻi 489, 500, 479 P.3d 107, 118 (2021).

B. Sentencing

“The authority of a trial court to select and determine the 

severity of a penalty is normally undisturbed on review in the 

absence of an apparent abuse of discretion or unless applicable 

statutory or constitutional commands have not been observed.” 

State v. Reis, 115 Hawaiʻi 79, 83-84, 165 P.3d 980, 984-85 (2007) 

(cleaned up).

IV. Discussion

A. General HRPP Rule 40 principles

HRPP Rule 40, which governs post-conviction proceedings, 

provides in relevant part:

(a) Proceedings and Grounds. . . . :

(1) From Judgment. At any time but not prior 

to final judgment, any person may seek relief under 

the procedure set forth in this rule from the 

judgment of conviction, on the following grounds:
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(i) that the judgment was obtained or sentence 

imposed in violation of the constitution of the 

United States or of the State of Hawaiʻi;

. . . .

(iii) that the sentence is illegal;

. . . .

(v) any ground which is a basis for collateral 

attack on the judgment.

. . . . 

(2) From Custody. Any person may seek relief 

under the procedure set forth in this rule from 

custody based upon a judgment of conviction, on the 

following grounds:

. . . .

(iii) any other ground making the custody, 

though not the judgment, illegal.

HRPP Rule 40(a)(3) governs waiver of issues in HRPP Rule 40 

proceedings, and provides:

(3) Inapplicability. Rule 40 proceedings shall not be 

available and relief thereunder shall not be granted where 

the issues sought to be raised have been previously ruled 

upon or were waived. Except for a claim of illegal 

sentence, an issue is waived if the petitioner knowingly 

and understandingly failed to raise it and it could have 

been raised before the trial, at the trial, on appeal, in a 

habeas corpus proceeding or any other proceeding actually 

conducted, or in a prior proceeding actually initiated 

under this rule, and the petitioner is unable to prove the 

existence of extraordinary circumstances to justify the 

petitioner’s failure to raise the issue. There is a 

rebuttable presumption that a failure to appeal a ruling or 

to raise an issue is a knowing and understanding failure.

HRPP Rule 40(f), which governs hearings on HRPP Rule 40 

petitions, states in relevant part: 

(f) Hearings. If a petition alleges facts that if 

proven would entitle the petitioner to relief, the court 

shall grant a hearing which may extend only to the issues 

raised in the petition or answer. However, the court may 

deny a hearing if the petitioner’s claim is patently 

frivolous and is without trace of support either in the 

record or from other evidence submitted by the petitioner. 
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The court may also deny a hearing on a specific question of 

fact when a full and fair evidentiary hearing upon that 

question was held during the course of the proceedings 

which led to the judgment or custody which is the subject 

of the petition or at any later proceeding.

In turn, HRPP Rule 40(i) provides that indigent petitioners 

are entitled to representation by the public defender on their 

HRPP Rule 40 petitions if the petition is not “patently 

frivolous and without trace of support . . . .”

In sum, if an indigent petitioner raises a “colorable 

claim” in an HRPP Rule 40 petition, they are entitled to 

representation on the petition in an HRPP Rule 40(f) hearing. A 

“colorable claim” is one that is not “patently frivolous and 

without trace of support.” With the foregoing principles in 

mind, we now turn to Rapozo’s arguments.

B. The circuit court erred by denying the eighth HRPP Rule 40 

petition without a hearing because Rapozo stated colorable 

claims

1. Rapozo stated a colorable claim that the trial court 

erred by delegating the determination of the manner of 

payment of restitution to the DSSH

We first address Rapozo’s second point of error that the 

trial court erred by delegating the determination of the manner 

of payment of restitution to the DSSH. If this claim does not 

concern an illegal sentence, HRPP Rule 40(a)(3) bars relief, as 

Rapozo could previously have raised this issue.

As the ICA noted, in Johnson, this court held that 

“[w]ithout express legislative authority, the court cannot 
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delegate the sentencing function to another person or entity.”35 

Johnson, 68 Haw. at 297, 711 P.2d at 1299. In Johnson, which 

 

35 Rapozo cited to Gaylord. In Gaylord, which was decided approximately 

fifteen years after Rapozo’s conviction and sentence became final and 

approximately ten years after Johnson, this court stated:

Although statutorily authorized by HRS § 706–

605(1)(d), a sentencing court’s discretion to order 

restitution is not boundless. “Advocates of criminal 

restitution are convinced [that] it is not necessarily 

incompatible with the incarceration of offenders. And we 

concur. However, even the supporters of the concept 

acknowledge [that] its implementation is fraught with 

difficulty, primarily because incarceration normally 

entails a concomitant loss of earning capacity.” Murray, 

63 Haw. at 24, 621 P.2d at 342 (citations omitted).

For this reason, among others, HRS § 706–605(1)(d) 

limits restitution orders to “an amount the defendant can 

afford to pay.” See State v. Johnson, 68 Haw. 292, 297, 

711 P.2d 1295, 1299 (1985); Murray, 63 Haw. at 25, 621 P.2d 

at 343. In this connection, and despite the fact that the 

sentencing court “may delegate to the Adult Probation 

Division the function of making recommendations . . . on 

the amount of restitution and the manner of payment, the 

court has the exclusive responsibility and function of 

imposing a sentence.” Johnson, 68 Haw. at 297, 711 P.2d at 

1299. Thus, “requisite specificity should be provided by 

the sentencing court and ought not be left to subsequent 

administrative determination,” Murray, 63 Haw. at 25, 621 

P.2d at 343 (citations omitted), because “[w]ithout express 

legislative authority, the court cannot delegate the 

sentencing function to another person or entity.” Johnson, 

68 Haw. at 297, 711 P.2d at 1299. Cf. United States v. 

Porter, 41 F.3d 68, 71 (2d Cir. 1994) (sentencing court 

cannot delegate to probation department, either as to 

amount or scheduling of installment payments, judicial 

functions inherent in grant of restitution); United States 

v. Weichert, 836 F.2d 769, 772 (2d Cir. 1988) (sentencing 

court may not authorize probation officer to make postsentencing decision as to amount of restitution), cert. 

denied, 488 U.S. 1017, 109 S.Ct. 813, 102 L.Ed.2d 802 

(1989); United States v. Ahmad, 2 F.3d 245, 248–49 (7th 

Cir. 1993) (sentencing court may not authorize probation 

officer to make post-sentencing decision as to scheduling 

of installment payments). Accordingly, “it is incumbent 

upon the [sentencing] court to enter into the record 

findings of fact and conclusions that the manner of payment 

is reasonable and one which [the defendant] can afford.” 

Johnson, 68 Haw. at 297–98, 711 P.2d at 1299.

. . . .

(continued. . .)
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was decided approximately five years after Rapozo’s conviction 

and sentence became final, this court explicitly held that the 

trial court has the exclusive responsibility and function of 

imposing a sentence, and could not delegate its sentencing 

function to another entity without express legislative 

authority: 

Defendant contends that the trial court erred in 

failing to consider Defendant’s ability to pay the 

restitution amount ordered by the court. Defendant argues 

that the trial court’s order did not comport with the 

language, “in an amount . . . can afford to pay” in HRS § 

706–605(1)(e) and HRS § 706–624(2)(i).

Although the trial court may delegate to the Adult 

Probation Division the function of making recommendations 

to the court on the amount of restitution and the manner of 

payment, the court has the exclusive responsibility and 

function of imposing a sentence. Without express 

legislative authority, the court cannot delegate the 

sentencing function to another person or entity. “The 

requisite specificity should be provided by the sentencing 

court and ought not be left to subsequent administrative 

determination.” State v. Murray, [63 Haw.] at 25, 621 P.2d 

at 343 (citations omitted).

 

(. . .continued)

In addition, we hold that the sentencing court’s 

restitution order failed to comply with HRS § 706–605(1)(d) 

and was illegally imposed. In disregard of Johnson, 68 

Haw. at 297–98, 711 P.2d at 1299, the sentencing court 

failed to make any finding that $122,248.95 was an amount 

that Gaylord could afford to pay in restitution (indeed, as 

noted, the sentencing court viewed Gaylord’s “sources of 

restitution” as “highly unlikely and highly speculative and 

unreliable”) and to prescribe the manner of payment. To 

compound the error, in its December 13, 1991 judgment of 

conviction, the sentencing court expressly and improperly 

delegated the judicial function of determining the manner 

of payment to an administrative body—the Hawaiʻi Paroling 

Authority. Johnson, 68 Haw. at 297, 711 P.2d at 1299; 

Murray, 63 Haw. at 25, 621 P.2d at 343.

78 Hawaiʻi at 151-53, 155, 890 P.2d at 1191-93, 1195 (alterations and ellipsis

in original) (footnote omitted).
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68 Haw. at 297, 711 P.2d at 1299 (ellipsis in original)

(footnotes omitted). Thus, the delegation was an illegal 

sentence. See Gaylord, 78 Hawaiʻi at 155, 890 P.2d at 1195 

(holding the sentencing court’s restitution order failed to 

comply with HRS § 706-605(1)(d) and Johnson and was “illegally 

imposed”).

Although the delegation constituted an illegal sentence, 

because Johnson was decided after Rapozo’s conviction and 

sentence became final, we must address whether its holding (that 

the trial court has the exclusive responsibility and function of 

determining the manner of payment and cannot delegate that 

judicial function to an administrative body without express 

legislative authority) (1) is a “new rule”; and, if so, (2) 

whether it retroactively applies to Rapozo’s case. Thus, 

whether Johnson created a “new rule” is the preliminary inquiry.

a. Retroactive application of new rules

Based on the reasoning that follows, we hold that Johnson

did not create a “new rule.” The ICA incorrectly applied the 

Teague framework to conclude that the Johnson rule did not 

retroactively apply to Rapozo’s sentence. Teague is 

inapplicable to Johnson, as Johnson did not set out a “new 

rule.”

“When questions of state law are at issue, state courts 

generally have the authority to determine the retroactivity of 
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31

their own decisions.” Schwartz v. State, 136 Hawaiʻi 258, 272, 

361 P.3d 1161, 1175 (2015). “Although judicial decisions are 

assumed to apply retroactively, such application is not 

automatic,” State v. Ikezawa, 75 Haw. 210, 220, 857 P.2d 593, 

597 (1993), as “the Constitution neither prohibits nor requires

retrospective effect.” State v. Santiago, 53 Haw. 254, 268, 492 

P.2d 657, 665 (1971) (cleaned up). Thus, the threshold question 

is whether Johnson created a new rule.

There are four guiding principles in determining whether a 

“new rule” has been created. First, “[t]he prototypical manner 

in which this court creates a new rule is when it overrules a 

previous decision and announces a superseding principle of law.”

Schwartz, 136 Hawaiʻi at 272, 361 P.3d at 1175. Second, 

“[a]nother classic situation in which this court establishes a 

new rule is when it announces a new principle of constitutional 

law, such as one applying to criminal prosecutions.” 136 Hawaiʻi 

at 273, 361 P.3d at 1176. However, “in instances where this 

court engages only in statutory construction to elucidate the 

meaning and application of specific provisions of a statute, we 

have held that a new rule does not arise.” 136 Hawaiʻi at 274, 

361 P.3d at 1177. Finally, a new rule is not created “where 

this court merely clarifies an existing legal principle . . . .” 

Id. 
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The holding in Johnson regarding the trial court’s

exclusive responsibility and function of determining the manner 

of payment of restitution, which cannot be delegated to an 

administrative body without express legislative authority,

“merely clarifie[d] an existing legal principle . . . .” See

id. Johnson actually clarified the legal principle this court 

set out in Murray: that “[t]he requisite specificity should be 

provided by the sentencing court and ought not be left to 

subsequent administrative determination.” Murray, 63 Haw. at 

25, 621 P.2d at 343. 

Thus, the Johnson rule was based on Murray, which was

decided approximately two months after Rapozo’s conviction and 

sentence became final and approximately five years before 

Johnson. Murray was the first Hawaiʻi case to discuss HRS § 706-

605 and the status and function of restitution in Hawaiʻi’s

criminal system. Murray “careful[ly] examin[ed]” the 

restitution statute, looking at the purpose, design, and policy 

of the statute, which authorizes a trial court to order a 

defendant to pay restitution in addition to imprisonment. See

63 Haw. at 17-19, 621 P.2d at 338-39. The Murray court then 

discussed the “statutory and constitutional constraints” of 

restitution orders, stating:

The prescription of penalties is a legislative 

prerogative, State v. Freitas, 61 Haw. 262, 267, 602 P.2d 

914, 919 (1979), but a sentencing court is nonetheless 

afforded wide latitude in the selection of penalties from 
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33

those prescribed and in the determination of their 

severity. This authority is normally undisturbed on review 

in the absence of an apparent abuse of discretion, State v. 

Fry, 61 Haw. 226, 231, 602 P.2d 13, 17 (1979); State v. 

Martin, 56 Haw. 292, 294, 535 P.2d 127, 128 (1975), or 

unless applicable statutory and constitutional commands 

have not been observed. The sentence here was subject to a 

legislative declaration that restitution should be in an 

amount the defendant “can afford to pay.” The record 

indicates the sentencing court itself acknowledged 

defendant's lack of capacity for actual compliance. Thus, 

restitution could not have been in an amount defendant “can 

afford to pay.” Moreover, a restitution order patently 

beyond an offender’s capacity for compliance serves no 

purpose, reparative or otherwise. See Commonwealth v. 

Fuqua, 267 Pa.Super. 504, 508-509, 407 A.2d 24, 26 (1979); 

People v. Kay, 36 Cal.App.3d 759, 763, 111 Cal.Rptr. 894, 

896 (1973).

While we do not reach equal protection and due 

process, they may be considerations on resentencing. The 

principles enunciated in cases like Tate v. Short, 401 U.S. 

395, 91 S.Ct. 668, 28 L.Ed.2d 130 (1971); Williams v. 

Illinois, 399 U.S. 235, 90 S.Ct. 2018, 26 L.Ed.2d 586 

(1970); and State v. Huggett, 55 Haw. 632, 638, 525 P.2d 

1119, 1124 (1974), are often pertinent where a novel 

sentencing alternative is selected. State v. Huggett, for 

example, teaches us that some degree of specificity is an 

essential element of a sentence. A defendant must be 

apprised of “what is required of him, and when it is 

required, so that he will know when he is in default.” 

State v. Calderilla, supra, 34 Or.App. at 1010, 580 P.2d at 

579. The requisite specificity should be provided by the 

sentencing court and ought not be left to subsequent 

administrative determination. See, for example, Mason v. 

State, 46 Md. App. 1, 9, 415 A.2d 315, 319 (1980) and 

Kroenke v. State, 366 So.2d 46 (Fla.App. 1979).

63 Haw. at 25, 621 P.2d at 342-43. 

As Johnson “merely clarfie[d]” the legal principle set 

forth in Murray, we must then actually address whether Murray

created a “new rule,” as Murray was decided approximately two 

months after Rapozo’s conviction and sentence became final. It 

is clear that Murray “engage[d] only in statutory construction 

to elucidate the meaning and application of specific provisions 

of a statute.” See Schwartz, 136 Hawaiʻi at 274, 361 P.3d at 
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1177. Therefore, Murray did not create a “new rule.” See

Rivers v. Roadway Exp., Inc., 511 U.S. 298, 312-13 (1994) (“A 

judicial construction of a statute is an authoritative statement 

of what the statute meant before as well as after the decision 

of the case giving rise to that construction.”). As such, 

Johnson, which relied on Murray, also did not create a “new 

rule.”

Further, HRPP Rule 40(a)(3) does not bar this claim. 

Although Rapozo could have raised this claim in his previous 

seven HRPP Rule 40 petitions or other proceedings, as explained 

above, this is a claim of illegal sentence. The trial court’s 

sentence that Rapozo pay “restitution in the amount of 

$11,109.33, the manner of payment to be determined and handled 

by the Department of Social Services and Housing” was illegal 

because the trial court exceeded its authority by delegating the 

manner of payment to the DSSH in sentencing Rapozo.

Thus, Rapozo’s second point of error raised a colorable 

claim and the circuit court erred by denying Rapozo’s request 

for relief without a hearing.36 

 

36 To the extent Rapozo argued that the jury should have determined the 

manner of payment of restitution, we conclude it is not a colorable claim. 
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35

2. Rapozo stated a colorable claim that the trial court 

erred by ordering him to pay restitution without first 

determining whether he could afford to pay it

The ICA concluded it would not consider Rapozo’s first and 

fourth points of error, that the trial court erred by ordering 

restitution without first determining whether he could afford to 

pay it, because it was raised for the first time on appeal. 

However, construing Rapozo’s pleadings liberally, Rapozo raised 

the “afford to pay” issue in his motion for revocation of 

restitution, in which he argued:

Two other issues remain regarding sentencing and 

restitution. One is, had it been legal for the sentencing 

court to impose restitution in this case, it cannot 

delegate the determination of the manner of payment of 

restitution to another person or entity. State v. Gaylord, 

78 Haw. 127, 153, 155, 890 P.2d 1167, 1193, 1195 (1995). 

In Gaylord, the Hawaii Supreme Court stated that “it is 

incumbent upon the [sentencing court] to enter into the 

record findings of fact and conclusions that the manner of 

payment is reasonable and one which [the defendant] can 

afford.” Id. at 153, 890 P.2d 1191. No determination was 

ever made in the instant case.

(Emphases added.) We therefore address this argument.

In Johnson, the trial court ordered restitution to be paid 

“in a manner to be determined by the Adult Probation Division.” 

68 Haw. at 297, 711 P.2d at 1299. This court held:

We view the clause, “in a manner to be determined by 

the Adult Probation Division” to mean the manner of payment 

of the restitution amount. The manner of payment must be 

reasonable and one that Defendant can afford taking into 

account Defendant’s financial circumstances. See State v. 

Garner, 115 Ariz. 579, 566 P.2d 1055 (1977); State v. 

Harris, [362 A.2d 32 (1976)].

The record indicates that Defendant was denied an 

opportunity to challenge the reasonableness of the Adult 

Probation Division’s recommendation relative to the manner 

of payment of the restitution amount. This infringes on 

Defendant’s right to due process as guaranteed under the 

Fourteenth Amendment, section 1 of the United States 
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Constitution. See Note, Victim Restitution in the Criminal 

Process: A Procedural Analysis, 97 Harv.L.Rev. 931, 944 n. 

92 (1984) (citing Boddie v. Connecticut, 401 U.S. 371, 377, 

91 S.Ct. 780, 785–86, 28 L.Ed.2d 113 (1971)).

We hold that it is incumbent upon the trial court to 

enter into the record findings of fact and conclusions that 

the manner of payment is reasonable and one which Defendant 

can afford. Here, the trial court failed to make such 

findings and conclusion.

Id.

Then, in Gaylord, this court stated, 

Presumably, the sentencing court’s conceded “exclusive 

responsibility and function” derives from the statutory 

phrase, “in an amount the defendant can afford to pay,” set 

forth in HRS § 706-605(1)(d). It seems intuitively obvious 

to us that a sentencing court cannot determine restitution 

“in an amount the defendant can afford to pay” without 

determining the manner of payment.

78 Hawaiʻi at 153 n.50, 890 P.2d at 1193 n.50. 

As explained above, “in instances where this court engages 

only in statutory construction to elucidate the meaning and 

application of specific provisions of a statute, we have held 

that a new rule does not arise.” Schwartz, 136 Hawaiʻi at 274, 

361 P.3d at 1177. The Gaylord court interpreted the phrase

“determining the manner of payment” in HRS § 706-605(1) to 

conclude that it included “in an amount the defendant can afford 

to pay.” 78 Hawaiʻi at 153 n.50, 890 P.2d at 1193 n.50. This 

interpretation “was not a departure from precedent but, rather, 

confirmed the law as it existed” at the time of Rapozo’s 

sentence and conviction. See Garcia, 125 Hawaiʻi 429, 443, 263 

P.3d 709, 723 (2010).
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Further, like with Rapozo’s second point of error, HRPP 

Rule 40(a)(3) does not preclude this claim because this was a 

claim of illegal sentence because, as discussed above, the trial 

court improperly delegated the manner of repayment of 

restitution. Therefore, we hold Rapozo’s first and fourth 

points of error stated a colorable claim that the trial court 

erred by failing to determine whether the restitution was in an 

amount he could afford to pay.

3. Rapozo stated a colorable claim that the HPA erred by 

denying parole for nonpayment of restitution

In his fifth point of error, Rapozo argued the HPA erred by 

“disallowing [Rapozo]’s possibility of parole for non-payment of 

a fee, fine, or restitution.” The ICA concluded the circuit 

court did not err in ruling this argument meritless, as none of 

the HPA parole decisions in the record referenced payment of 

restitution as a condition of parole; and this argument was 

waived as it challenged an HPA parole decision and did not 

implicate an illegal sentence imposed by the circuit court, and

Rapozo failed to prove extraordinary circumstances justifying 

his failure to raise the issue. For the reasons discussed 

below, we hold the ICA erred.

a. Rapozo stated a colorable claim that he was 

denied parole due to nonpayment of restitution

“Parole is a matter of legislative grace, and the denial of 

it to certain offenders is within legislative discretion.” 
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Williamson v. Hawaiʻi Paroling Authority, 97 Hawaiʻi 183, 195, 35 

P.3d 210, 222 (2001) (cleaned up).

In granting or denying parole, the statutory standard 

to be applied by the HPA is that “[n]o parole shall be 

granted unless it appears to the [HPA] that there is a 

reasonable probability that the prisoner concerned will 

live and remain at liberty without violating the law and 

that the prisoner’s release is not incompatible with the 

welfare and safety of society.”

Turner v. Hawaii Paroling Authority, 93 Hawaiʻi 298, 302, 1 P.3d 

768, 772 (App. 2000) (alterations in original) (quoting HRS § 

353-65 (2015)). Incarcerated people or parolees do not have a

right to parole. Hawaiʻi Administrative Rules (“HAR”) § 23-700-

37 (1992). 

The HPA has the power to establish rules and regulations 

“under which any prisoner may be paroled . . . .” HRS § 353-65. 

The HPA established such rules in HAR §§ 23-700-31 to -37. 

Under HAR § 23-700-33, the HPA uses the following guidelines to 

determine parole eligibility:37

Parole shall not be granted unless it appears to the 

Authority that there is a reasonable probability that the 

inmate concerned will live and remain at liberty without 

violating the law and that the inmate’s release is not 

incompatible with the welfare and safety of society. 

Parole is not a right of an inmate or parolee. Parole may 

be denied to an inmate when the Authority finds:

(a) The inmate does not have a viable parole plan;

(b) The inmate has been a management or security 

problem in prison as evidenced by the inmate’s 

misconduct record;

(c) The inmate has refused to participate in 

recommended prison programs;

 

37 See also HRS § 706-670 (2014) (establishing parole terms for a person 

who is assessed as low risk for re-offending).
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(d) The inmate’s behavior in prison is a continuation 

of the behavior that led to the inmate’s 

imprisonment;

(e) The inmate has a pending prison misconduct;

(f) The inmate does not have the ability or 

commitment to comply with conditions of parole;

(g) The inmate has pending criminal charges which 

arose from inmate’s current incarceration or last 

parole;

(h) The inmate has a parole plan for a state that has 

not accepted the inmate for supervision; or

(i) The inmate has expressed little or no interest in 

parole.

(Emphases added.)

HRS § 353-64 (2015) states in relevant part: 

[T]o be eligible for parole, the committed person, if the 

person is determined by the department to be suitable for 

participation, must have been a participant in an academic, 

vocational education, or prison industry program authorized 

by the department and must have been involved in or 

completed the program to the satisfaction of the 

department; and provided further that this precondition for 

parole shall not apply if the committed person is in a 

correctional facility where academic, vocational education, 

and prison industry programs or facilities are not 

available. A grant of parole shall not be subject to 

acceptance by the committed person.

(Emphasis added.)

HRS § 353-69 (2015) states: 

Excepted as provided in section 706-670, no parole 

shall be granted unless it appears to the Hawaii paroling 

authority that there is a reasonable probability that the 

prisoner concerned will live and remain at liberty without 

violating the law and that the prisoner’s release is not 

incompatible with the welfare and safety of society.

Whether to grant or deny parole is discretionary with the 

HPA. See State v. Keohokapu, 127 Hawaiʻi 91, 112, 276 P.3d 660, 

681 (2012) (“Whether the defendant will ever be paroled is pure 

speculation since parole is dependent on circumstances in the 

future and is discretionary with the Hawaiʻi Paroling 
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Authority.”). Although “[t]he legislature did not expressly 

provide a means to appeal HPA parole decisions,” Williamson, 97 

Hawaiʻi at 189, 35 P.3d at 216, an incarcerated person may still 

seek judicial review of the HPA’s denial of parole through an

HRPP Rule 40 petition. 97 Hawaiʻi at 194, 35 P.3d at 221 (citing 

Turner, 93 Hawaiʻi at 307-08, 1 P.3d at 777-78). “HRPP Rule 

40(a) clearly indicates that the post-conviction proceeding 

under the rule was intended to ‘encompass all common law and 

statutory procedures for the same purpose, including habeas 

corpus and coram nobis.’” State v. Kaluna, 106 Hawaiʻi 198, 204, 

103 P.3d 358, 364 (2004). “The chief use of habeas corpus has 

been to seek the release of persons held in actual, physical 

custody.” Id. (cleaned up) (quoting Turner, 93 Hawaiʻi at 307, 1 

P.3d at 777). “[B]ecause a denial of parole continues physical 

custody, such denial is a proper subject of a writ of habeas 

corpus and, therefore, an inmate denied parole may be entitled 

to relief through the mechanism of a[n] HRPP Rule 40 petition.” 

Turner, 93 Hawaiʻi at 307, 1 P.3d at 777. An incarcerated person 

seeking relief from an HPA decision to deny parole does so under 

HRPP Rule 40(a)(2) as they are in “custody based upon a judgment 

of conviction.” See HRPP Rule 40(a)(2); Turner, 93 Hawaiʻi at 

306, 1 P.3d at 776 (“It is plain that Appellant is in ‘custody 

based on a judgment of conviction.’” (quoting HRPP Rule 
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40(a)(2)). Therefore, HRPP Rule 40 petitions challenging an HPA 

decision to deny parole are subject to HRPP Rule 40(a)(3).

Here, under HRPP Rule 40(a)(3), Rapozo waived his

challenges to the HPA parole denials from 2006 through 2011. 

Rapozo could have challenged these HPA parole denials in his

previous seven HRPP Rule 40 petitions or other proceedings

before his eighth HRPP Rule 40 petition, but he did not do so 

and he did not prove extraordinary circumstances justifying his 

failure to do so.38 Thus, we address only the 2012 and 2013 HPA 

parole denials.39 

Hawaiʻi courts may review “a decision denying parole in 

situations where the parole board has failed to exercise any 

discretion at all, or arbitrarily and capriciously abused its 

discretion so as to give rise to a due process violation or has 

otherwise violated any constitutional rights of the prisoner.” 

Williamson, 97 Hawaiʻi at 195, 35 P.3d at 222 (cleaned up) 

(quoting Turner, 93 Hawaiʻi at 308, 1 P.3d at 778). 

The ICA concluded that notwithstanding the 1979 minimum 

term order that stated, “Parole shall not be granted until 

 

38 The 2006 and 2007 HPA parole denials were raised and ruled upon in 

Rapozo’s 2008 HRPP Rule 40 proceeding.

39 The 2012 and 2013 HPA parole denials were not waived by Rapozo in his 

eighth HRPP Rule 40 petition. The HPA denied Rapozo’s parole requests on 

August 28, 2012, and July 29, 2013, after Rapozo’s January 10, 2012 seventh 

HRPP Rule 40 petition and before the June 9, 2014 eighth HRPP Rule 40 

petition. 
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judg[]ment of restitution is satisfied,” none of the eleven HPA 

parole decisions in the record referenced restitution payment as 

a condition of parole, and therefore the circuit court did not 

err by denying Rapozo’s request for relief without a hearing.40 

We conclude otherwise.

The 2012 HPA parole decision stated parole was denied 

because the HPA was “not convinced that [Rapozo could]

substantially comply with the terms and conditions of parole,” 

and recommended “[t]hat [Rapozo] participate in all RAD 

recommended programs.” The HPA denied parole in 2013 as

follows: “REASON FOR DENIAL: Your participation in work 

furlough while incarcerated will significantly enhance your 

success on parole.” 

Yet, the 1979 HPA minimum term order expressly stated that 

“[p]arole shall not be granted until judg[]ment of restitution 

is satisfied.” Although Johnson asserted Rapozo’s parole 

denials, including the 2012 and 2013 HPA parole denials, were 

not based on nonpayment of restitution, he was not a member of 

the three-member HPA that decides whether to grant parole. 

Therefore, despite Johnson’s assertion that Rapozo’s parole was 

not based on nonpayment of restitution, the record is unclear as 

 

40 The ICA alluded to the HPA decisions to deny parole from 2014 to 2016. 

The 2014 though 2016 HPA parole denials, which were decided after the eighth 

HRPP Rule 40 petition, could not be raised, and were not raised, in the 

eighth HRPP Rule 40 petition. Therefore, we decline to address those HPA 

parole decisions.
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to whether the three HPA members considered the condition in the 

1979 minimum term order in denying Rapozo’s parole. See

Williamson, 97 Hawaiʻi at 194-95, 35 P.3d at 221-22 (“It would be 

impossible for a court to properly evaluate a parole denial 

because of the many variables considered by the board, such as 

record facts, personal observations and the experience of the 

decision maker which leads to a ‘predictive judgment’ as to what 

is best for both the inmate and the community.” (cleaned up)

(quoting Turner, 93 Hawaiʻi at 307-08, 1 P.3d at 777-78)). 

Therefore, Rapozo’s claim that he was denied parole for 

nonpayment of restitution cannot be said to be “patently 

frivolous, and without a trace of support . . . .” Rapozo 

raised a colorable claim that he was denied parole for 

nonpayment of restitution and the circuit court erred by denying 

Rapozo’s request for relief without a hearing.

4. Rapozo stated a colorable claim that the HPA erred by 

denying him parole for failure to complete or 

participate in the work furlough program

In his seventh point of error, Rapozo argued the HPA erred 

by denying him parole for failure to complete or participate in 

the work furlough program, when it was only available in Hawaiʻi 

and he had never been returned to Hawaiʻi to participate in the 

work furlough program. As discussed, only the 2012 and 2013 HPA 

parole denials are properly before us; Rapozo’s seventh point of 

error is therefore a challenge to the 2013 HPA parole denial. 
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HRS § 353-64 states:

[T]o be eligible for parole, the committed person, if the 

person is determined by the department to be suitable for 

participation, must have been a participant in an academic, 

vocational education, or prison industry program authorized 

by the department and must have been involved in or 

completed the program to the satisfaction of the 

department . . . .

Thus, the HPA may properly deny an incarcerated person 

parole based on their failure to participate in or complete a 

“prison industry program,” which appears to include work 

furlough programs.

Here, the 2013 HPA decision denied Rapozo’s parole request, 

stating, “Your participation in work furlough while incarcerated 

will significantly enhance your success on parole.” Rapozo 

argued he had never been able to participate in the work 

furlough program, which was located in Hawaiʻi, as he had never 

been returned to Hawaiʻi. According to Johnson’s declaration,

however, the HPA did not control when and which incarcerated 

people are transported from Arizona to Hawaiʻi to participate in 

the work furlough program, and the DPS was responsible for the 

work furlough program and transporting inmates. 

Although the HPA recommended he participate in or complete 

the work furlough program, Rapozo was never given the 

opportunity to do so. It may be arbitrary and capricious to 

deny an incarcerated person parole for failure to participate in 
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a program while never giving them an opportunity to do so.41 

Thus, Rapozo stated a colorable claim, and the circuit court 

erred by denying this claim without a hearing.

5. Rapozo’s remaining claims are meritless, raised for 

the first time on appeal, or waived

We agree with the ICA’s reasoning that Rapozo’s third, 

tenth, eleventh, twelfth, and fourteenth points of error are 

meritless. As the ICA also concluded, Rapozo’s ninth point of 

error is deemed waived because his opening brief did not contain 

an argument on this point. See HRAP Rule 28(b)(7) (“Points not 

argued may be deemed waived.”).

 

41 In Regan v. Hawaii, Civ. No. 07-00029 JMS-BMK, 2007 WL 4440956 (D. Haw. 

Dec. 19, 2007) (order), the petitioner moved for reconsideration of the 

dismissal of four counts relating to his “right” to parole pursuant to HRS § 

353-64, asserting he was unable to attend the programs needed to be eligible 

for parole. 2007 WL 4440956, at *1-3. The court denied the motion, 

concluding:

Plaintiff argues that because enrollment in some of 

the programs that were required for his parole were 

unavailable to him, he is eligible for parole without 

attending any of these programs. He is mistaken. First, 

simply because Plaintiff was unable to take part in these 

programs prior to his parole hearing does not make them 

“unavailable” at the prison. Plaintiff may not have been 

eligible for these programs for various reasons (e.g., due 

to his custody or housing status), but they are, by 

Plaintiff’s own submission, offered at the prison. Second, 

and more importantly, as the court has already found, 

Plaintiff has no state-created liberty interest in parole.

Thus, even if Plaintiff completed the programs that were 

required for parole, the Hawaii Paroling Authority may, 

nonetheless, deny him parole.

2007 WL 4440956, at *3 (footnote omitted). 

Regan is distinguishable. Here, Rapozo did not argue he had a right to 

parole; rather, Rapozo argued the HPA erred by denying him parole. 
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We do not consider Rapozo’s sixth, eighth, and thirteenth 

points of error, which were raised for the first time on appeal. 

See Dan, 76 Hawaiʻi at 431, 879 P.2d at 536.

V. Conclusion

For the reasons explained above, we vacate the ICA’s April 

5, 2021 judgment on appeal and the circuit court’s June 21, 2016 

order denying the eighth HRPP Rule 40 petition. We remand this 

case to the circuit court for further proceedings consistent 

with this opinion. 

Richard Rapozo /s/ Mark E. Recktenwald

petitioner pro se

/s/ Paula A. Nakayama

Brian R. Vincent

for respondent /s/ Sabrina S. McKenna 

Department of the 

Prosecuting Attorney /s/ Michael D. Wilson

Lisa M. Itomura /s/ Todd W. Eddins

and Diane K. Taira

for respondent

Department of the

Attorney General