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IN THE SUPREME COURT OF THE STATE OF HAWAIʻI

---o0o---

________________________________________________________________

EDWARD G. STANLEY, Petitioner/Petitioner-Appellant,

vs.

STATE OF HAWAIʻI, Respondent/Respondent-Appellee.

________________________________________________________________

SCWC-18-0000141

CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS

(CAAP-18-0000141; S.P.P. NO. 17-1-0007; (CR. NO. 1PC880000418))

JANUARY 5, 2021

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

AND CIRCUIT JUDGE MORIKAWA, IN PLACE OF POLLACK, J., RECUSED 

OPINION OF THE COURT BY McKENNA, J.

I. Introduction

Edward G. Stanley (“Stanley”), pro se, appeals the Circuit 

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

second Hawaiʻi Rules of Penal Procedure (“HRPP”) Rule 40 petition 

for post-conviction relief (“Second Petition”). 

1 The Honorable Paul B.K. Wong presided over the Second Petition at issue 

in this certiorari proceeding.

Electronically Filed

Supreme Court

SCWC-18-0000141

05-JAN-2021

10:11 AM

Dkt. 13 OP
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Stanley’s Second Petition arises from a March 16, 1988 

conviction. A jury convicted Stanley of two counts of first 

degree reckless endangering, as lesser included offenses of 

attempted first degree murder (Counts I and II); one count of 

attempted first degree murder (Count III); one count of 

attempted manslaughter, as a lesser included offense of

attempted second degree murder (Count V); and one count of place 

to keep firearm (Count VI).2 On September 23, 1988, the trial 

court sentenced Stanley to five-year terms of imprisonment for 

Counts I and II, life without the possibility of parole for 

Count III, ten years with a mandatory minimum of five years for 

Count V, and five years for Count VI. All sentences were to be 

served concurrently.

In 1989, Stanley’s direct appeal from his 1988 convictions

was rejected by this court in a brief memorandum opinion. His 

first HRPP Rule 40 petition (“First Petition”) in 1992, alleging 

different grounds than those contained in this Second Petition, 

was rejected by this court in a 1994 published opinion. His 

2001 HRPP Rule 35 motion was also denied by the circuit court, 

from which he did not appeal. 

Thereafter, Stanley filed the subject Second Petition in 

2017, in which he alleged, in relevant part, that his conviction 

of attempted manslaughter in Count V was based on reckless 

2 Regarding Count IV, see infra text accompanying and footnote 8.
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conduct, and therefore, his sentence was illegal, citing to 

State v. Pinero, 70 Haw. 509, 778 P.2d 704 (1989), State v. 

Holbron, 80 Hawaiʻi 27, 904 P.2d 912 (1995), reconsideration 

denied, 80 Hawaiʻi 187, 907 P.2d 773 (1995), and State v. Loa, 83 

Hawaiʻi 335, 926 P.2d 1258 (1996), which held that because the

only non-exculpatory circumstance legally capable of mitigating 

murder to manslaughter is the mitigation of extreme mental or 

emotional disturbance for which there is a reasonable 

explanation (“EMED”), there is no offense of attempted 

involuntary manslaughter based on reckless conduct (“attempted 

reckless manslaughter”).

The circuit court denied Stanley’s Second Petition without 

an evidentiary hearing. Stanley appealed the denial of the 

Second Petition to the Intermediate Court of Appeals (“ICA”). 

In its summary disposition order (“SDO”), the ICA affirmed 

the circuit court’s denial of the Second Petition. See Stanley 

v. State, CAAP-18-0000141, 2019 WL 3976129 (App. Aug. 22, 2019) 

(SDO). The ICA ruled, inter alia, that Stanley failed to 

demonstrate he was convicted of attempted reckless manslaughter, 

thereby failing to state a colorable claim that his sentence for 

Count V was illegal. The ICA also ruled Stanley was not 

entitled to relief under HRPP Rule 40 based on the equal 

protection claim alleged on appeal because he had not raised the 

issue before the circuit court in the Second Petition and failed
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to prove the existence of extraordinary circumstances justifying 

his failure to raise that claim.

We hold the ICA erred in affirming the circuit court’s

ruling that Stanley failed to state a colorable claim that he 

was convicted of attempted reckless manslaughter in his Second 

Petition. This error requires vacatur of his attempted 

manslaughter conviction in Count V. On remand, double jeopardy 

principles bar the State from retrying Stanley for attempted 

second degree murder in Count V.

Accordingly, we vacate the ICA’s October 2, 2019 judgment 

on appeal entered pursuant to its August 22, 2019 SDO, Stanley’s 

1988 conviction for attempted manslaughter in Count V, and the 

circuit court’s February 23, 2018 order denying Stanley’s Second 

Petition, and we remand this case to the circuit court for 

further proceedings consistent with this opinion.

II. Background

A. Factual background

This case arose from a March 11, 1988 incident in which 

Stanley fired gunshots in the vicinity of several individuals, 

including two police officers, at different intervals, and had 

also pointed, but not fired, a gun at another police officer. 

State v. Stanley, No. 13402, at 1-2 (Haw. Dec. 14, 1989) (mem.) 

(“Stanley I”). 
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On March 16, 1988, a grand jury indicted Stanley with three 

counts of attempted first degree murder in violation of Hawaiʻi

Revised Statutes (“HRS”) §§ 705-500 (1985),3 707-701(1)(b) (Supp. 

1988),4 and 706-656 (Supp. 1988)5 (Counts I, II, and III); one 

3 HRS § 705-500 (1985) states:

§705-500 Criminal attempt. (1) A person is guilty of an 

attempt to commit a crime if he:

(a) Intentionally engages in conduct which would 

constitute the crime if the attendant 

circumstances were as he believes them to be; 

or 

(b) Intentionally engages in conduct which, under 

the circumstances as he believes them to be, 

constitutes a substantial step in a course of 

conduct intended to culminate in his commission 

of the crime.

(2) When causing a particular result is an element of the 

crime, a person is guilty of an attempt to commit the crime 

if, acting with the state of mind required to establish 

liability with respect to the attendant circumstances 

specified in the definition of the crime, he intentionally 

engages in conduct which is a substantial step in a course 

of conduct intended or known to cause such a result.

(3) Conduct shall not be considered a substantial step 

under this section unless it is strongly corroborative of 

the defendant’s criminal intent.

4 HRS § 707-701(1)(b) (Supp. 1988) states:

(1) A person commits the offense of murder in the first 

degree if the person intentionally or knowingly causes the 

death of:

. . . .

(b) A peace officer, judge, or prosecutor arising out 

of the performance of official duties[.]

5 HRS § 706-656 (Supp. 1988) states:

§706-656 Terms of imprisonment for first and second degree 

murder and attempted first and second degree murder. (1) 

Persons convicted of first degree murder or first degree 

(continued . . .)
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count of attempted first degree murder in violation of 

HRS §§ 705-500, 707-701(1)(a),6 and 706-656 (Count IV); one count 

of attempted second degree murder in violation of 

HRS §§ 705-500, 707-701.5(1) (Supp. 1988), and 706-656 (Count 

V); and one count of place to keep firearm in violation of 

HRS § 134-6 (1985) (Count VI).7 

The jury trial began on August 8, 1988. On August 16, 

1988, the trial court acquitted Stanley of attempted first 

degree murder in Count IV.8 After the close of the parties’ 

(. . . continued)

attempted murder shall be sentenced to life imprisonment 

without possibility of parole.

As part of such sentence the court shall order the 

director of the department of corrections and the Hawaii 

paroling authority to prepare an application for the 

governor to commute the sentence to life imprisonment with 

parole at the end of twenty years of imprisonment; provided 

that persons who are repeat offenders under section 706-

606.5 shall serve at least the applicable mandatory minimum 

term of imprisonment.

. . . .

6 HRS § 707-701(1)(a) (Supp. 1988) states:

(1) A person commits the offense of murder in the first 

degree if the person intentionally or knowingly causes the 

death of:

(a) More than one person in the same or separate 

incident[.]

7 Each count of attempted murder involved a different complaining 

witness.

8 Although Stanley had stated the trial court acquitted him of attempted 

first degree murder in Count IV for insufficient evidence, the record 

indicates the trial court acquitted Stanley of Count IV because it involved 

the same police officers in Counts I and III. 
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arguments, the trial court read, and provided to the jury in 

writing for its deliberations, as follows:

If you are unable to find that the offense of 

attempted murder in the first degree or second degree has 

been proven beyond a reasonable doubt, you may then 

consider whether the defendant is guilty or not guilty of 

the included offense of attempted manslaughter.

In a prosecution for attempted murder in the first 

degree or second degree, attempted manslaughter is an 

included offense. The offense of attempted manslaughter is 

committed if the defendant attempted to recklessly cause 

the death of another person.

In a prosecution for attempted murder in the first 

degree or second degree, it is also a defense, which 

reduces the offense to attempted manslaughter, that the 

defendant was, at the time he attempted to cause the death 

of another person, under the influence of extreme mental or 

emotional disturbance for which there is a reasonable 

explanation. The reasonable-ness of the explanation shall 

be determined from the viewpoint of a person in the 

defendant’s situation under the circumstances as he 

believed them to be.

The burden is upon the State to prove beyond a 

reasonable doubt that the defendant was not acting under 

the influence of extreme mental or emotional disturbance 

for which there is a reasonable explanation. If the State 

has not done so, you must find the defendant guilty of the 

included offense of attempted manslaughter. If the State 

has done so, you must find the defendant guilty of the 

offense of attempted murder in the first degree or second 

degree.

If you cannot agree that the prosecution has proven 

all of the elements of the offenses of attempted murder in 

the first degree or second degree or attempted manslaughter 

beyond a reasonable doubt, you may consider the included 

offense of reckless endangering in the first degree.

A person commits the offense of reckless endangering 

in the first degree if he intentionally fires a firearm in 

a manner which places another person in danger of death or 

serious bodily injury.

. . . .

As to each count, you may bring in either one of the 

following verdicts:

. . . .

As to Count III, attempted murder in the first 

degree:

1. Not guilty; or

2. Guilty as charged; or

3. Guilty of the included offense of 

attempted manslaughter; or
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4. Guilty of the included offense of 

reckless endangering in the first degree.

As to Count V, attempted murder in the second degree:

 1. Not guilty; or

 2. Guilty as charged; or

3. Guilty of the included offense of 

attempted manslaughter; or

4. Guilty of the included offense of 

reckless endangering in the first degree.

The jury began its deliberations on August 16, 1988. 

During its deliberations, the jury transmitted, in relevant 

part, three written communications to the trial court. First, 

the jury requested in relevant part: “We would like a definition 

of attempted manslaughter & attempted to recklessly cause of

[sic] death.” The trial court responded in relevant part: 

“Please refer to the copy of the Court’s instructions which have 

been provided to you.” 

Second, the jury again inquired: “We request an explanation 

as to the law what attempted manslaughter entails.” The trial 

court responded: “I regret that I cannot provide you with any 

further clarification on this question as you already have the 

Penal Code definition of Attempted Manslaughter in the Court’s 

Instructions.” 

Third, the jury requested: “We request a copy of Black’s 

Law Dictionary.”9 The trial court responded: “The dictionary 

9 During the trial court’s discussion with the State and defense counsel 

after the jury requested a copy of Black’s Law Dictionary, the State admitted 

it appeared the jury was confused as to what attempted manslaughter and 

attempted reckless manslaughter entailed, stating: “Your Honor, apparently 

what’s going on here in the tone of these communications, it’s become readily 

(continued . . .)
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definitions may not be consistent with the language utilized by 

the Legislature in the statutes, therefore, I am sorry to inform 

you that I am unable to grant the request.” 

Two days later, on August 18, 1988, the jury found Stanley 

guilty of: two counts of first degree reckless endangering, as 

lesser included offenses of attempted first degree murder

(Counts I and II); one count of attempted first degree murder

(Count III); one count of attempted manslaughter, as a lesser 

included offense of attempted second degree murder (Count V);

and one count of place to keep firearm (Count VI). On September 

23, 1988, the trial court entered its amended judgment, 

sentencing Stanley to a five-year indeterminate term of 

imprisonment for Counts I, II, and VI; life imprisonment without 

the possibility of parole for Count III; and a ten-year

indeterminate term of imprisonment with a mandatory minimum of 

five years for Count V. The sentences were to be served 

concurrently. 

B. Procedural background

HRPP Rule 40(a)(3) (2006) 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 

(. . . continued)

apparent that the jury is lost in confusion on the question of what is 

attempted manslaughter and attempted to recklessly cause the death[.]” 
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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.

Because the rule prohibits relief when issues have been 

previously ruled upon or have been waived, we briefly summarize

Stanley’s direct appeal and his previous petitions. 

1. Stanley’s direct appeal and previous petitions

a. Direct appeal

On October 21, 1988, Stanley directly appealed his 

convictions to this court, alleging four points of error: (1) 

“erroneous attempted first degree murder and attempted 

manslaughter instructions”; (2) “deputy prosecutor’s improper 

comment during closing rebuttal argument”; (3) “insufficient 

evidence to support the attempted first degree murder 

conviction”; and (4) “unlawful imposition of sentence in the 

form of life imprisonment without the possibility of parole for 

the attempted first degree murder conviction.” Stanley I, mem.

op. at 2. 

In a two-page memorandum opinion, this court summarized 

Stanley’s convictions, facts, and four points of error alleged 

on appeal, and affirmed Stanley’s convictions and held that 

“[b]ased on a careful review of the record, we discern no 

reversible error. Affirmed.” Id.
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b. Stanley’s two petitions for a writ of habeas 

corpus

As indicated in Stanley v. State, 76 Hawaiʻi 446, 879 P.2d 

551 (1994) (“Stanley II”), after this court affirmed his 

convictions in 1989, Stanley filed a petition for a writ of 

habeas corpus in the United States District Court for the 

District of Hawaiʻi (“district court”).10 76 Hawaiʻi at 448, 879 

P.2d at 553. He alleged: “(1) erroneous jury instructions; (2) 

‘improper statement made;’ and (3) ‘insufficient evidence to 

support guilt findings.’” Id. After an evidentiary hearing, 

the district court denied Stanley’s petition for a writ of 

habeas corpus on October 11, 1991. Id. 

Stanley then filed a second petition for a writ of habeas 

corpus in the district court, raising identical grounds as the

previous petition for a writ of habeas corpus. Id. On January 

1, 1992, the district court denied his second petition without 

holding an evidentiary hearing. Id. 

c. First HRPP Rule 40 petition11

On February 26, 1992, Stanley filed his First Petition in 

the circuit court,12 alleging: “(1) he was denied effective 

assistance of counsel; and (2) his convictions for attempted 

10 The record does not contain Stanley’s two petitions for a writ of 

habeas corpus.

11 The record does not contain the First Petition.

12 The Honorable Gail C. Nakatani presided.
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first degree murder and attempted manslaughter were not 

supported by substantial evidence.” Id. On June 4, 1992, the 

circuit court denied the First Petition without a hearing, 

finding “said petition to be patently frivolous and without a 

trace of support either in the record or from other evidence 

submitted by the Petitioner.” Id.

Stanley appealed the circuit court’s denial of his First 

Petition to this court. Id. He argued: (1) “the trial court 

erred in denying his petition because the denial was contrary to 

an earlier decision by a judge determining that his petition was 

meritorious”; (2) “because the trial court made no findings of 

fact or conclusions of law in denying the petition, the 

resultant order is ‘patently wrong, and without a trace of 

support’”; (3) “the trial court erroneously denied him a 

HRPP Rule 40 hearing despite Appellant having asserted valid 

grounds for his unlawful detention, namely: [(a)] denial of 

effective assistance of counsel; and [(b)] insufficient evidence 

to support the attempted first degree murder and attempted 

manslaughter convictions”; and (4) “the trial court erred when 

it refused certain jury instructions relating to the attempted 

first degree murder conviction.” 76 Hawaiʻi at 448-51, 879 P.2d 

at 553-56. 
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d. Stanley II

In a published opinion, this court rejected Stanley’s 

points of error and affirmed the circuit court’s denial of his 

First Petition; however, this court declined to rule on 

Stanley’s fourth point of error because Stanley had failed to 

raise the issue in his First Petition.13 Stanley II, 76 Hawaiʻi

at 452, 879 P.2d at 557.

13 This court applied the rationale in Bryant v. State, 6 Haw. App. 331, 

720 P.2d 1015 (1986), disapproved on other grounds by Briones v. State, 74 

Haw. 442, 848 P.2d 966 (1993), in which the ICA found the “[f]ailure to raise 

[a Rule 40 issue] . . . specifically in the petition does not per se defeat 

the possibility of obtaining relief on that ground in the Rule 40 

proceeding,” and that “a pro se petitioner ‘should not suffer for his 

inability to articulate his claim.’” Stanley II, 76 Hawaiʻi at 451, 879 P.2d 

at 556 (alterations and ellipsis in original) (quoting Bryant, 6 Haw. App. at 

334-35, 720 P.3d at 1018-19). We distinguished Bryant from the case:

Applying the above rationale, Appellant’s failure to raise 

the erroneous exclusion of jury instructions allegation in 

his petition would apparently not prevent him from 

asserting the same on appeal. The instant case, however, 

is easily distinguished from Bryant.

In Bryant, because at the trial level: (1) the State 

was alerted to the general issue; (2) the petitioner, 

subsequent to the filing of the initial petition at the 

trial level, clearly raised the specifics of the issue in a 

subsequent memorandum in support of the petition; (3) the 

State responded to the issue in a supplemental memorandum; 

(4) the trial court considered the issue; and, most 

importantly, (5) HRPP Rule 40(e) provides that amendments 

to the petition shall be freely allowed, the ICA concluded 

that despite the petitioner’s failure to specifically 

allege the factual basis of his claim for relief, the claim 

would survive as an amendment to the petition.

In the instant case, unlike Bryant, Appellant did not 

alert the State to the general issue of erroneous denial of 

jury instructions. Consequently, the State could not 

respond, and the trial court never considered the issue. 

Appellant’s petition, therefore, may not be construed to 

have been amended to include the erroneous jury 

instructions issue. Moreover, because “[t]he general rule 

is that an issue which was not raised in the lower court 

will not be considered on appeal,” we do not address 

Appellant’s claim of erroneous exclusion of jury 

instructions. Kernan v. Tanaka, 75 Haw. 1, 35, 856 P.2d 

(continued . . .)
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e. HRPP Rule 35 motion

On April 24, 2001, Stanley filed a pro se HRPP Rule 35

(1980) motion in the circuit court.14 Stanley contended his

attempted first degree murder sentence was illegal because he

should have been sentenced to a twenty-year imprisonment, as

HRS § 706-610 (Supp. 1988),15 amended by Act 181, Session Laws 

(. . . continued)

1207, 1224 (1993) (quotation and citations omitted), cert. 

denied, 510 U.S. 1119, 114 S.Ct. 1070, 127 L.Ed.2d 389 

(1994); see also Tax Appeal of Hawaiian Flour Mills, Inc., 

76 Hawaiʻi 1, 868 P.2d 419 (Sup. 1994).

Id. (footnote omitted).

14 HRPP Rule 35 (1980) states in relevant part:

CORRECTION OR REDUCTION OF SENTENCE

The court may correct an illegal sentence at any time 

and may correct a sentence imposed in an illegal manner 

within the time provided herein for the reduction of 

sentence. The court may reduce a sentence within 90 days 

after the sentence is imposed, or within 90 days after 

receipt by the court of a mandate issued upon affirmance of 

the judgment or dismissal of the appeal, or within 90 days 

after entry of any order or judgment of the Supreme Court 

of the United States denying review of, or having the 

effect of upholding a judgment of conviction. A motion to 

correct or reduce a sentence which is made within the time 

period aforementioned shall empower the court to act on 

such motion even though the time period has expired. The 

filing of a notice of appeal shall not deprive the court of 

jurisdiction to entertain a timely motion to reduce a 

sentence.

15 HRS § 706-610 states:

(1) Apart from first and second degree murder and attempted 

first and second degree murder, felonies defined by this Code are 

classified, for the purpose of sentence, into three classes, as 

follows:

(a) Class A felonies;

(b) Class B felonies; and

(c) Class C felonies. 

(continued . . .)
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1987, could not apply to him as doing so would constitute as an 

improper ex post facto application of law. 

On August 14, 2001, the circuit court filed its order 

denying Stanley’s HRPP Rule 35 motion. Noting the June 6, 1987

effective date of Act 181, Session Laws 1987, and the commission 

of Stanley’s offenses on March 11, 1988, the circuit court 

determined there was no improper retroactive application of the

sentencing statute. Thus, the circuit court concluded Stanley 

failed to state a colorable claim for relief, and denied

Stanley’s HRPP Rule 35 motion as “patently frivolous and without 

a trace of support, either in the record, or from other evidence 

submitted by [Stanley].” Stanley did not appeal the circuit 

court’s denial of his HRPP Rule 35 motion.

2. Second Petition proceedings

a. Circuit court proceedings

On March 30, 2017, sixteen years after the denial of his 

HRPP Rule 35 motion, Stanley filed his Second Petition, the 

subject of this certiorari proceeding, in the circuit court. He 

argued: (1) his sentence was illegal and against legislative 

intent because the HRS specifically provides attempted murder 

was to be treated as an ordinary class A felony subject to a 

(. . . continued)

A felony is a class A, class B, or class C felony when it is so 

designated by this Code. Except for first and second degree murder and 

attempted first and second degree murder, a crime declared to be a 

felony, without specification of class, is a class C felony.
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twenty-year imprisonment, and therefore, his sentence violated 

the Fifth, Eighth, and Fourteenth Amendments to the United 

States Constitution, as well as the Bill of Rights of the Hawaiʻi

Constitution; (2) attempted manslaughter, specifically 

HRS § 707-702 (1985),16 was not a crime recognized in Hawaiʻi, 

citing to Pinero, Holbron, and Loa;17 (3) his indictment 

presented to the grand jury and petit jury, which contained 

charged offenses excessive of the “evidenced event,” was fatally 

defective; (4) his place to keep firearm conviction violated the 

Fifth and Fourteenth Amendments to the United States 

Constitution, and article I, sections 5 and 10 of the Hawaiʻi

Constitution, HRS § 701-109, and HRS § 134-6 because place to 

keep a firearm is an included offense of attempted murder, 

attempted manslaughter, and reckless endangering; (5) the 

16 HRS § 707-702 (1985) states:

§707-702 Manslaughter. (1) A person commits the offense of 

manslaughter if:

(a) He recklessly causes the death of another person; 

or

(b) He intentionally causes another person to commit 

suicide.

(2) In a prosecution for murder it is a defense, which 

reduces the offense to manslaughter, that the defendant 

was, at the time he caused the death of the other person, 

under the influence of extreme mental or emotional 

disturbance for which there is a reasonable explanation. 

The reasonableness of the explanation shall be determined 

from the viewpoint of a person in the defendant’s situation 

under the circumstances as he believed them to be.

(3) Manslaughter is a class B felony.

17 These cases are further discussed in Section IV.B.1 of this opinion.
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multiple mandatory minimum terms imposed by the trial court 

imposed were “illegal, redundant, multiplicious, excessive 

and/or prejudicial” because the jury was the trier of fact and 

“the only entity capable of determining . . . the maximum and 

minimum terms of sentence,” and therefore, the terms the trial 

court imposed violated the Fifth, Sixth, Eighth, and Fourteenth 

Amendments to the United States Constitution and the Bill of 

Rights of the Hawaiʻi Constitution; (6) the errors in his case, 

whether harmless or plain, amounted to cumulative error which 

was prejudicial and required the reversal of his convictions; 

and (7) the trial court’s denial of his August 1, 1988 motion 

for extension of time violated the equal protection clause of 

the United States and Hawaiʻi constitutions, as well as the 

United States Constitution’s right to effective counsel because 

he was prejudiced by being forced to proceed with ill-prepared 

counsel.18 

On May 9, 2017, the State untimely responded to the Second 

Petition.19 Stanley moved to strike the State’s response and 

18 Stanley served the Second Petition on the Department of the Attorney 

General, State of Hawaiʻi (“AG”) and the Office of the Prosecuting Attorney. 

The AG discussed Stanley’s grounds for relief with the Office of the 

Prosecuting Attorney; the Office of the Prosecuting Attorney stated the 

grounds for relief Stanley raised related solely to his conviction. The AG 

agreed the Office of the Prosecuting Attorney would file a response on the 

merits, and it would not be submitting an answer. 

19 HRPP Rule 40(d) (2006) required the State to respond within thirty days 

after the service of the HRPP Rule 40 petition from Stanley or within such 

further time as the court may allow. HRPP Rule 40(d).
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asked the circuit court to set a hearing and appoint him 

counsel. On February 23, 2018, the circuit court granted 

Stanley’s request to strike the State’s response but denied his 

other requests. 

On February 23, 2018, the circuit court filed its order 

denying the Second Petition without a hearing, ruling as 

follows: (1) HRPP Rule 40(a)(3) barred Stanley’s claim of an 

improper sentence for attempted first degree murder because it 

was previously ruled upon by Stanley I; (2) HRPP Rule 40(a)(3) 

barred Stanley’s claim of erroneous attempted reckless

manslaughter jury instruction because it was not raised in his 

2001 HRPP Rule 35 motion and he failed to prove the existence of 

extraordinary circumstances justifying his failure to raise this 

issue, as Holbron and Loa were decided five years before Stanley 

filed his 2001 HRPP Rule 35 motion; and (3) Stanley’s remaining 

claims, “maturing well before [Stanley I],” had been similarly 

waived due to his failure to present extraordinary circumstances 

justifying his failure to previously raise the issues and rebut 

the presumption that such failure was knowing and understanding. 

Stanley timely appealed the circuit court’s denial of his 

Second Petition to the ICA. 

C. ICA proceedings

In his pro se opening brief, Stanley argued the circuit 

court erred, in relevant part, by (1) determining his claim of 
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erroneous attempted manslaughter jury instruction was deemed 

waived, as he instead argued his sentence was illegal because he 

was convicted of the nonexistent offense of attempted reckless 

manslaughter, and (2) not responding to his equal protection

clause claim.

In response, the State conceded Stanley stated a colorable 

claim as to his erroneous attempted reckless manslaughter

conviction argument as the record did not demonstrate whether 

Stanley was convicted of attempted EMED manslaughter or 

attempted reckless manslaughter. However, the State argued that

the remainder of Stanley’s claims was either waived or 

meritless. 

In its August 22, 2019 SDO, the ICA ruled the State’s 

concession was unwarranted and rejected Stanley’s arguments.20 

Stanley, SDO at 7, 10. The ICA concluded that, inter alia,

Stanley failed to state a colorable claim that he could not have 

been convicted of attempted reckless manslaughter, noting 

20 The ICA also ruled: the circuit court did not fail to issue findings of 

fact and conclusions of law when denying the Second Petition; the circuit 

court did not err in ruling his claims, except for involuntary manslaughter, 

were previously ruled upon or waived because he failed to explain how his 

claims were not previously ruled upon or waived or how he proved the 

existence of extraordinary circumstances to justify his failure to raise the 

claims in his direct appeal, HRPP Rule 35 motion, two habeas corpus petitions 

to the district court, and the First Petition; the ICA could not address 

Stanley’s claim regarding the Motion for Production of Documents because the 

record did not contain a Motion for Production of Documents; and Stanley’s 

claim that his sentence of life without the possibility of parole for 

attempted first degree murder violated the Eighth Amendment to the United 

States Constitution was raised and ruled upon in Stanley I. Stanley, SDO at 

4-5, 9-10.
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20

Holbron and Loa were issued more than six years after Stanley’s 

convictions. Stanley, SDO at 5, 9. 

The ICA explained that in Holbron, this court held “as a 

matter of law that HRS §§ 705-500 [(1993)] and 707-702(1)(a) 

[(1993)] do not and cannot give rise to the offense of 

‘attempted manslaughter’ under any circumstances,” overruling 

State v. Tagaro, 7 Haw. App. 291, 757 P.2d 1175, cert. granted, 

69 Haw. 678 (1987), and cert. dismissed, 70 Haw. 666, 796 P.2d 

502 (1988). Stanley, SDO at 5 (quoting Holbron, 80 Hawaiʻi at 

29, 904 P.2d at 914). The ICA observed this court held that

although “there is no offense of attempted involuntary 

manslaughter premised upon the defendant attempting recklessly 

to cause the death of another person, in violation of 

HRS §§ 705-500 and 707-702(1)(a) (Supp. 1988)[,]” “a defendant 

may be convicted of attempted voluntary manslaughter as a lesser 

included offense of attempted murder, in violation of 

HRS §§ 705-500 and 707-702(2), when the State fails to negative 

a defense of extreme mental or emotional disturbance (EMED) for 

which there is a reasonable explanation.” Stanley, SDO at 5-6 

(citing Holbron, 80 Hawaiʻi at 29, 34, 43-45, 904 P.2d at 914, 

919, 928-30). 

According to the ICA, Stanley, in his Second Petition,

admitted he made an EMED defense as he stated his counsel 

requested an EMED jury instruction and the jury “rejected the 
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Petitioner’s EMED defense.” Stanley, SDO at 6. The ICA stated

that Stanley pointed to his convictions of two counts of first 

degree reckless endangering as proof his EMED defense was 

rejected by the jury and that the jury found he acted 

recklessly, implying he was convicted for attempted involuntary 

manslaughter because Counts I and II demonstrated the jury found 

his conduct to be reckless after rejecting his EMED defense. 

Id. 

The ICA disagreed, concluding Stanley’s convictions of two 

counts of first degree reckless endangering did not support a 

conclusion that he was convicted of attempted involuntary 

manslaughter in Count V. Id. It reasoned that although Stanley 

was convicted on two counts of first degree reckless 

endangering, the lesser included offense of attempted first 

degree murder, he was also convicted of attempted first degree 

murder in Count III and the lesser included offense of attempted 

manslaughter in Count V. Id. Thus, the ICA concluded that 

although the jury rejected Stanley’s EMED defense in Count III 

because he could not have been convicted of attempted first 

degree murder if the State did not negative his EMED defense, 

the jury did not reject his EMED defense in Count V because he 

could only be convicted of attempted manslaughter if the State 

failed to negative his EMED defense. Stanley, SDO at 6-7. 
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The ICA also concluded Stanley’s convictions for first 

degree reckless endangering did not depend on whether the jury 

accepted his EMED defense because the jury did not consider an 

EMED defense for Counts I and II. Stanley, SDO at 7. The ICA 

stated consideration of an EMED defense would only arise if the 

jury believed the State proved all elements of attempted first 

degree murder because an EMED defense mitigates murder or 

attempted murder. Id. (citing Holbron, 80 Hawaiʻi at 43, 904 

P.2d at 928). It stated that if the State had proven attempted 

first degree murder in Counts I and II, the jury would not 

consider the lesser included offense of first degree reckless

endangering because the outcome of the jury considering the EMED 

defense could only lead to a conviction for attempted first 

degree murder or attempted manslaughter, depending on whether 

the jury believed the State negatived Stanley’s EMED defense. 

Id. The ICA stated that only a failure to prove attempted first 

degree murder could lead to the jury considering first degree

reckless endangering. Id. Thus, the ICA concluded the jury did 

not reject Stanley’s EMED defense in Counts I and II. Id. The 

ICA also stated Stanley’s convictions for attempted first degree 

murder in Count III and attempted manslaughter in Count V 

demonstrated the jury may decide whether the State negatived an 

EMED defense for each charge and was not required to apply the 

same finding as to EMED to all charges. Id. 
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The ICA ruled the State’s concession that Stanley presented 

a colorable claim that he was convicted of attempted reckless 

manslaughter based on Holbron and Loa was unwarranted. Stanley, 

SDO at 7-8. The ICA quoted Stanley’s opening brief in Stanley 

I, in which he argued the attempted manslaughter jury 

instructions were erroneous and confused the jury:

[T]he use of the term “recklessly” in the instruction 

would undeniably lead a layperson to conclude that the 

instruction applied to both forms of attempted 

manslaughter.

No rational trier of fact could be expected to 

differentiate the two forms of attempted manslaughter and 

the different circumstances under which they were to be 

considered based upon the instructions in the case at bar. 

. . .

The jury’s confusion is all too well illustrated by 

their repeated communications seeking clarification of 

attempted manslaughter. The court merely referred the jury 

to the instructions already provided, which had, of course, 

triggered the questions in the first place. (RA: 248-254).

Even the verdict forms were of no assistance as they, too, 

indicated the existence of only one form of attempted 

manslaughter.

The defective attempted manslaughter instructions in 

their entirety rendered the jury instructions prejudicially 

erroneous and misleading, affecting substantial rights of 

Stanley at trial and depriving him of due process of law 

under the Hawaii and federal constitutions.

Stanley, SDO at 8 (alteration and ellipsis in original). The 

ICA observed Stanley I affirmed Stanley’s convictions,

specifically noted he raised the issue of “erroneous attempted 

first degree murder and attempted manslaughter instructions,” 

and held “we discern no reversible error.” Stanley, SDO at 9 

(citing Stanley I, mem. op. at 1-2). As such, the ICA opined 

Stanley did not state a colorable claim in this appeal based on 

an erroneous attempted manslaughter jury instruction because the 
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issue was previously raised and ruled upon. Id. It further

opined Stanley failed to state a factual basis to support a 

claim that his conviction for attempted manslaughter was for 

attempted involuntary manslaughter based on reckless conduct. 

Id. Thus, the ICA concluded Stanley failed to state a colorable 

claim that he could not have been convicted of attempted 

manslaughter and that his sentence was illegal. Id.

The ICA also ruled Stanley did not claim his sentence for 

attempted first degree murder violated the equal protection 

clause of the United States and Hawaiʻi constitutions in his

Second Petition. Stanley, SDO at 10. The ICA stated, “[T]he 

general rule is that an issue which was not raised in the lower 

court will not be considered on appeal[.]” Id. (alterations in 

original) (quoting Stanley II, 76 Hawaiʻi at 451, 879 P.2d at 

556). The ICA stated Stanley failed to prove the existence of 

extraordinary circumstances to justify his failure to raise that 

claim in his direct appeal, two habeas corpus petitions to the 

district court, and the First Petition. Id. Therefore, the ICA 

concluded relief for this claim was unavailable under HRPP Rule 

40(a)(3). Id.
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D. Application for a writ of certiorari

Stanley presents the following relevant questions on 

certiorari:21

[1]. Did the Intermediate Court of Appeals commit error by 

failing to apply obvious existing laws, rules and/or 

mandated canon to the Appellant’s appeal?

[2]. Did the Intermediate Court of Appeals commit error in 

failing to address in any manner the Appellant’s 

Constitutional Challenge submitted within Petition and 

appeal (See Petition S.P.P. No. 17-1-0007 pages 18-24) 

pertaining Equal Protection?

[3]. Did the Intermediate Court of Appeals commit error in 

finding Appellant can be convicted and punished for a crime 

previously determined to be not a cognizable crime in the 

State of Hawaii?

[4]. Did the Intermediate Court of Appeals commit error in 

not finding exceptional circumstance pertaining the degree 

and level of the Appellant’s education at the time of the 

offenses charged against the Appellant, and the ensuing 

trial and sentence?

III. Standards of review

A. HRPP Rule 40

Review of orders denying HRPP Rule 40 petitions is de 

novo:

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 

21 Stanley also presents one other question on certiorari: “Did the 

Intermediate Court of Appeals commit error by ignoring Grounds presented 

within the Appellant’s appeal (CAAP-18-0000141) and Petition (S.P.P. No. 17-

1-007), and fail to respond to all of his meritorious claims?” We note the 

ICA did not ignore and fail to respond to Stanley’s claims; it appears the 

ICA summarized the arguments and questions Stanley presented.
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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).

Lewi v. State, 145 Hawaiʻi 333, 345, 452 P.3d 330, 342 (2019).

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) 

(internal quotation marks and citation omitted).

C. Erroneous jury instructions and nonexistent offenses

When jury instructions or the omission thereof are at 

issue on appeal, the standard of review is whether, when 

read and considered as a whole, the instructions given are 

prejudicially insufficient, erroneous, inconsistent, or 

misleading.

Erroneous instructions are presumptively 

harmful and are a ground for reversal unless it 

affirmatively appears from the record as a whole that 

the error was not prejudicial. Error is not to be 

viewed in isolation and considered purely in the 

abstract. It must be examined in the light of the 

entire proceedings and given the effect which the 

whole record shows it to be entitled. In that 

context, the real question becomes whether there is a 

reasonable possibility that error might have 

contributed to conviction. If there is such a 

reasonable possibility in a criminal case, then the 

error is not harmless beyond a reasonable doubt, and 

the judgment of conviction on which it may have been 

based must be set aside.

State v. Holbron, 80 Hawaiʻi 27, 32, 904 P.2d 912, 917, 

reconsideration denied, 80 Hawaiʻi 187, 907 P.2d 773 (1995) 

(citations, footnote, brackets, and quotation signals 

omitted) (emphasis in original).

“[T]here can be no offense of ‘attempted 

manslaughter’ within the meaning of HRS § 707–702(1)(a)[.]” 
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Id. at 45, 904 P.2d at 930. Thus, a jury instruction 

purporting to describe that nonexistent offense is 

erroneous. Id.

Loa, 83 Hawaiʻi at 350, 926 P.2d at 1273 (alterations in 

original).

IV. Discussion

A. HRPP Rule 40 principles

We begin our analysis with the ICA’s ruling that Stanley 

failed to state a colorable claim that his sentence for Count V 

was illegal. The ICA concluded that in addition to failing to 

state a factual basis that he was convicted of attempted 

reckless manslaughter, he previously raised and Stanley I ruled 

upon the issue of erroneous attempted manslaughter jury 

instructions. This issue requires us to examine HRPP Rule 40. 

We begin with its plain language.

HRPP Rule 40(a)(1) states in relevant part:

(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: 

(i) that the judgment was obtained or sentence 

imposed in violation of the constitution of the United 

States or of the State of Hawaiʻi; 

(ii) that the court which rendered the judgment was 

without jurisdiction over the person or the subject matter;

(iii) that the sentence is illegal;

(iv) that there is newly discovered evidence; or

(v) any ground which is a basis for collateral attack 

on the judgment.

(Emphasis added.)

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

HRPP Rule 40 proceeding, states: 
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(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.

(Emphasis added.) In turn, HRPP Rule 40(f) provides that “[i]f 

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[,]” 

but “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.”

Thus, the plain language of HRPP Rule 40 allows a 

petitioner to bring a claim of illegal sentence “[a]t any time 

but not prior to final judgment,” even if the petitioner had not 

raised a claim of illegal sentence in a previous petition and 

failed to show extraordinary circumstances justifying their 

failure to do so. In Akau v. State, 144 Hawaiʻi 159, 439 P.3d 

111 (2019), we held the doctrine of laches did not apply in the 

context of HRPP Rule 40 proceedings, observing HRPP Rule 40 

lacked a statute of limitations for bringing post-conviction 

petitions. 144 Hawaiʻi at 162, 439 P.3d at 114. We declined to 
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impose “a kind of judicially-crafted statute of limitations on 

Rule 40 petitions seeking relief from a judgment of conviction 

when that rule as promulgated explicitly states that such 

petitions may be brought ‘[a]t any time’ so long as they are not 

brought ‘prior to final judgment[.]’” Id. (alterations in 

original) (quoting HRPP Rule 40(a)(1)) (citing HRPP Rule 

40(a)(2)). We opined the lack of a statute of limitations 

appeared to be deliberate, as the drafters of HRPP Rule 40 

rejected using an Illinois statute as a template for a statute 

of limitations on post-conviction petitions. Id. (citing Comm. 

For Penal Rules Revision of the Judicial Council of Haw., 

Proposed Hawaiʻi Rules of Penal Procedure at 206 (June 1985)).

Thus, put simply, HRPP Rule 40 allows a petitioner to bring 

a claim of illegal sentence “[a]t any time” after final 

judgment, even if they failed to raise the illegal sentence 

claim in a previous petition; if the petitioner states a 

colorable claim, they are entitled to a hearing under HRPP Rule 

40(f). See Flubacher v. State, 142 Hawaiʻi 109, 114 n.7, 414 

P.3d 161, 166 n.7 (2018) (“[A]ny analysis of waiver must be made 

in light of HRPP Rule 40(a)(3), which specifically exempts 

illegal sentence claims from being waived.”). With the 

foregoing principles in mind, we now turn to Stanley’s 

contentions on certiorari.
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B. The record does not demonstrate Stanley was convicted of 

attempted EMED manslaughter; if he was convicted of 

attempted reckless manslaughter, he was subject to an 

illegal sentence for a non-existent crime and the 

presumptively harmful erroneous attempted reckless 

manslaughter jury instruction was not harmless beyond a 

reasonable doubt

Stanley maintains he was convicted of the nonexistent 

offense of attempted reckless manslaughter. If this is true, he

would have been subject to an illegal sentence under HRPP Rule

40(a)(3) because a sentence for a crime that does not exist is

an illegal sentence in Hawaiʻi. We begin our analysis by 

discussing the history of the nonexistent offense of attempted 

reckless manslaughter.

1. The history of the nonexistent offense of attempted 

reckless manslaughter in Hawaiʻi

a. Pinero

While Stanley’s 1988 direct appeal was pending, this court 

issued Pinero on July 25, 1989, approximately five months before 

this court decided Stanley I. In Pinero, the trial court 

instructed the jury as follows:

In this case, you must first determine whether the 

Defendant is guilty or not guilty of Murder in the First 

Degree. If you find that the offense of Murder in the 

First Degree has not been proved from the evidence beyond a 

reasonable doubt, you may then consider whether the 

Defendant is guilty or not guilty of the lesser included 

offense of Manslaughter.

A person commits the offense of Manslaughter if he 

recklessly causes the death of another person; or in a 

prosecution for murder it is a defense, which reduces the 

offense to Manslaughter, that the defendant was, at the 

time he caused the death of the other person, under the 

influence of extreme mental or emotional disturbance for 

which there is a reasonable explanation. The 
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reasonableness of the explanation shall be determined from 

the viewpoint of a person in the defendant’s situation 

under the circumstances as he believed them to be.

70 Haw. at 515, 778 P.2d at 709. During its deliberations, the 

jury asked the trial court for a “legal definition of the 

elements of the lesser charge of manslaughter” and the trial 

court responded by referring the jury to the foregoing 

instructions. 70 Haw. at 516, 778 P.2d at 709. The jury 

convicted the defendant of, inter alia, first degree murder and

the defendant appealed. 70 Haw. at 512, 778 P.2d at 707.

This court vacated the defendant’s conviction, holding the 

trial court erred because it

instruct[ed] . . . the jury to first consider whether or 

not the defendant was guilty of the charged offense and if 

it found the offense had not been proved, to then proceed 

to the lesser offense. “If [a lesser-included offense] 

instruction is given, it is customary to tell the jury to 

consider first the greater offense, and to move on to 

consideration of the lesser offense only if they have some 

reasonable doubt as to guilt of the greater offense.”

The trial court’s error here was one of omission; it 

failed to fully explain the significance of HRS § 707-

702(2) and to guide the jury in its consideration of the 

mitigating defense. The lesser-included offense 

instruction may well have had an effect of precluding 

consideration of possibly extenuating circumstances during 

deliberations on the charge of murder in the first degree.

70 Haw. at 524-25, 778 P.2d at 714 (citations omitted) (second

alteration in original). 

This court distinguished HRS § 707-702(2) from 

HRS § 707-702(1)(a), stating the provisions of manslaughter as 

defined by HRS § 707-702(1)(a) “may be established by the same 

or less than all the facts required to prove murder; and this 

renders it a lesser included offense of murder.” 70 Haw. at 
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523, 778 P.2d at 713. However, this court stated the provisions 

of HRS § 707-702(2) did not describe manslaughter as a lesser 

included offense of murder, but instead served “to reduce murder 

to manslaughter ‘when mitigating mental or emotional 

disturbances are present.’” 70 Haw. at 523, 778 P.2d at 714. 

This court stated HRS § 707-702(2) was “more accurately the 

mitigating defense,” as it has been characterized as “voluntary 

manslaughter [because it] involves the intentional [or knowing] 

killing of another while under the influence of a reasonably 

induced [extreme mental or] emotional disturbance . . . causing 

a temporary loss of normal self-control.” 70 Haw. at 523-24, 

778 P.2d at 714 (alterations and ellipsis in original). 

Although Pinero did not reach the question of whether attempted 

reckless manslaughter was a recognized offense in Hawaiʻi, 

implicit in its holding was that “the only non-exculpatory 

circumstance that the [Hawaiʻi Penal Code] recognizes as being 

legally capable of ‘mitigating’ murder to manslaughter is the 

‘mitigation’ of ‘extreme mental or emotional disturbance for 

which there is a reasonable explanation’ as set forth in 

HRS § 707-702(2).” Holbron, 80 Hawaiʻi at 45, 904 P.2d at 930 

(citing Pinero, 70 Haw. at 523-24, 778 P.2d at 714). 

b. Holbron

A year after Pinero, we issued Holbron, in which we 

discussed the “offense” of attempted reckless manslaughter. 80 
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Hawaiʻi at 44-45, 904 P.2d at 929-30. In Holbron, the State 

charged the defendant with attempted second degree murder. 80 

Hawaiʻi at 30, 904 P.2d at 915. Defense counsel objected to the 

instruction of the “included offense” of “Attempted Manslaughter 

(Reckless conduct),” which the trial court denied. 80 Hawaiʻi at 

31, 904 P.2d at 916. At the conclusion of the parties’ final 

arguments, the trial court instructed the jury that “if it was 

‘unable to agree that the [prosecution] has proven beyond a 

reasonable doubt’ that [the defendant] had committed the offense 

of Attempted Murder, the jury could then go on to consider the 

lesser included offense of ‘Attempted Manslaughter (Reckless 

Conduct).’” 80 Hawaiʻi at 46, 904 P.2d at 931 (first alteration 

in original). The jury convicted the defendant of the charged 

offense of attempted second degree murder and he appealed. 80 

Hawaiʻi at 32, 904 P.2d at 917.

After discussing voluntary and involuntary manslaughter,

this court unequivocally held there could be no attempt to 

commit involuntary manslaughter, and therefore, there is no 

offense of attempted reckless manslaughter.22 80 Hawaiʻi at 33-

45, 904 P.2d at 918-30. As such, this court held the attempted 

22 In holding there was no offense of attempted reckless manslaughter, 

Holbron overruled Tagaro, in which the ICA held that under the circumstances 

of that case, attempted reckless manslaughter was an included offense of 

attempted murder, and that the trial court was required to sua sponte

instruct the jury it could find the defendant guilty of attempted reckless 

manslaughter if it did not find him guilty of attempted murder. 80 Hawaiʻi at 

47, 904 P.2d at 932.
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reckless manslaughter jury instruction was erroneous as it 

described a nonexistent offense. 80 Hawaiʻi at 43, 904 P.2d at 

928. However, invoking the presumption that jurors are 

reasonable and generally follow the instructions given, this 

court concluded that because “the jury could not have reached, 

much less considered, the disputed instruction that erroneously 

described a nonexistent offense, there is no ‘reasonable 

possibility that [the] error might have contributed to [the 

defendant’s] conviction.” 80 Hawaiʻi at 46-47, 904 P.2d at 931-

32 (first alteration in original). As such, we held the 

erroneous attempted reckless manslaughter jury instruction 

harmless beyond a reasonable doubt and affirmed the defendant’s

attempted second degree murder conviction. Id. 

c. Loa

Approximately a year later after Holbron, we issued Loa. 

In Loa, the State charged the defendant with, inter alia, 

attempted first degree murder. 83 Hawaiʻi at 339, 926 P.2d at 

1262. The trial court instructed the jury, inter alia, as 

follows:

If and only if you find [the defendant] not guilty of 

Attempted Murder in the First Degree, or you are unable to 

reach a unanimous verdict as to the offense of Attempted 

Murder in the First Degree, then you must determine whether 

[the defendant] is guilty or not guilty of the lesser 

included offense of Attempted Manslaughter.

A person commits the offense of Attempted 

Manslaughter if he intentionally engages in conduct 

intended or known to recklessly cause the death of another 

person.
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There are two elements to the offense of Attempted 

Manslaughter, each of which must be proven by the 

prosecution beyond a reasonable doubt. The two elements 

are:

1. That [the defendant] intentionally engaged in a 

course of conduct; and

2. That [the defendant] consciously disregarded a 

substantial and unjustifiable risk that his conduct would 

be intended or known to recklessly cause the deaths of [the 

complainant] and [her male companion].

83 Hawaiʻi at 344, 926 P.2d at 1267 (last two alterations in 

original). The trial court also instructed the jury with 

respect to first degree assault and second degree reckless 

endangering as additional offenses included within attempted 

first degree murder. 83 Hawaiʻi at 359, 926 P.2d at 1282. 

During its deliberations, the jury transmitted a written 

communication to the trial court, asking:

What do we do now on Count I, Attempted Murder in the 

First Degree? We are unable to reach a unanimous decision. 

Do we now have to consider Attempted Manslaughter or are we 

deadlocked and stop deliberating on Count I? Some jurors 

are not willing to settle for a lesser charge.

83 Hawaiʻi at 343-44, 926 P.2d at 1266-67. With the concurrence 

of counsel, the trial court responded, “Please reread the 

attached instructions,” and furnished the jury with the 

foregoing instructions in writing. 83 Hawaiʻi at 344, 926 P.2d 

at 1267. The jury convicted the defendant of, inter alia, 

“‘attempted reckless manslaughter’ (as a supposedly included 

offense of the charged offense of attempted murder in the first 

degree).” 83 Hawaiʻi at 339, 926 P.2d at 1262. 
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This court held the trial court plainly erred in 

instructing the jury it could convict the defendant of the 

nonexistent offense of attempted reckless manslaughter, and it 

was not harmless beyond a reasonable doubt because it was the 

sole basis of the defendant’s attempted reckless manslaughter

conviction. 83 Hawaiʻi at 357, 926 P.2d at 1280. This court

stated, “It is self-evident that, being non-existent, attempted 

reckless manslaughter cannot be ‘included’ within attempted 

first degree murder[.]” 83 Hawaiʻi at 358, 926 P.2d at 1281. 

This court further stated that “the giving of such an erroneous 

instruction constitutes plain error as a matter of law when 

‘there is a reasonable possibility that [the instruction] might 

have contributed to conviction,’ because the error ‘seriously 

affect[s] the fairness, integrity, or public reputation of [the] 

judicial proceedings.’” Id. (alterations in original) (citation 

omitted). 

This court rejected the State’s suggestion that the 

erroneous attempted reckless manslaughter jury instruction 

“obviously benefitted” the defendant because the only 

alternative was to convict him of attempted first degree murder. 

83 Hawaiʻi at 359, 926 P.2d at 1282. Invoking the presumption 

that jurors are reasonable and generally follow the instructions 

given, this court stated the fact that the jury reached the 

erroneous jury instruction at all signified the jury was unable 
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to convict the defendant of attempted first degree murder. Id. 

Moreover, this court noted that although the trial court had 

also instructed the jury to the other lesser included offenses 

of first degree assault and second degree reckless endangering,

“subsumed within these instructions was a directive that the 

jury could not consider these included offenses if it convicted 

[the defendant] of attempted reckless manslaughter.” Id. As 

such, the jury’s conviction based on the erroneous attempted 

manslaughter jury instruction precluded it from reaching the 

other lesser included offenses. Id. This court stated that “in 

the absence of the erroneous instruction, the jury may have 

acquitted [the defendant] altogether in connection with the 

attempted first degree murder charge. However compelling the 

evidence of criminal wrongdoing might have been, such a 

possibility cannot be dismissed absolutely.” Id. (footnote 

omitted).

This court held the erroneous attempted reckless 

manslaughter jury instruction was “presumptively harmful” and

“necessarily contributed to [the defendant’s] conviction of the 

nonexistent offense of attempted reckless manslaughter.” Id. 

This court stated that “[o]bviously, in absence of the erroneous 

instruction, [the defendant] could not have been so 

convicted[,]” which “seriously affect[ed] the fairness [and] 
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integrity . . . of [the] judicial proceedings.” Id. (last 

three alterations and ellipsis in original). 

2. The erroneous attempted reckless manslaughter jury 

instruction was not harmless beyond a reasonable doubt

With the principles of Pinero, Holbron, and Loa in mind, we

now turn to this case. The ICA gave two bases for rejecting 

Stanley’s attempted reckless manslaughter conviction argument:

(1) Stanley previously raised this argument which was ruled upon 

in Stanley I and (2) he failed to state a factual basis to 

support his claim that he was convicted of attempted reckless 

manslaughter. After reviewing the jury instructions, verdict 

forms, and the record as a whole, we hold Stanley stated a 

colorable claim as to his attempted manslaughter conviction in 

Count V.

As to the ICA’s first basis for rejecting Stanley’s 

attempted reckless manslaughter argument, the ICA concluded that 

Stanley did not state a colorable claim of erroneous attempted 

manslaughter jury instruction in the instant appeal because he

previously raised the issue of “erroneous attempted first degree 

murder and attempted manslaughter instructions” and Stanley I

held “we discern no discernible error.” Stanley I, mem. op. at 

1-2. As the ICA noted, Stanley previously argued that these

jury instructions were erroneous and confusing. However, he did

not argue, as he does here, that his sentence was illegal
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39

because it was based on a crime that does not exist. Indeed,

Stanley’s 1988 direct appeal and our previous decision

predate Holbron and Loa. Accordingly, we hold that this court

has not previously ruled upon the issue in this case and Stanley

is not barred from Rule 40 relief under HRPP Rule 40(a)(3) on

this issue.

As to the ICA’s second basis for rejecting Stanley’s 

attempted reckless manslaughter jury conviction argument, the 

ICA incorrectly concluded Stanley failed to state a colorable 

claim that his conviction in Count V was for attempted reckless 

manslaughter. Because the record does not demonstrate Stanley 

was convicted of attempted manslaughter based on the mitigating 

defense of EMED, “the only non-exculpatory circumstance legally 

capable of mitigating murder to manslaughter,” we hold Stanley 

stated a colorable claim that he was convicted of attempted 

reckless manslaughter.23

23 For the same reasons, we note that in its February 23, 2018 order

denying the Second Petition without a hearing, the circuit court erroneously 

concluded HRPP Rule 40(a)(3) barred Stanley’s claim of erroneous attempted 

manslaughter jury instruction because Stanley failed to prove the existence 

of extraordinary circumstances justifying his failure to raise this issue, as 

Holbron and Loa were decided five years before his 2001 HRPP Rule 35 motion. 

As Stanley argued, the circuit court appeared to misconstrue the arguments 

presented in his almost-eighty-pages pro se Second Petition, as Stanley had 

also argued he was convicted of the nonexistent offense of attempted reckless 

manslaughter. See Villaver v. Sylva, 145 Hawaiʻi 29, 36, 445 P.3d 701, 708 

(2019) (explaining that, in the context of pro se pleadings, “[a] fundamental 

tenet of Hawaiʻi law is that ‘[p]leadings prepared by pro se litigants should 

be interpreted liberally[,]’” and that “[t]he underpinnings of this tenet 

rest on the promotion of equal access to justice”) (alterations in original) 

(citation omitted); see also Bryant, 6 Haw. App. at 335, 720 P.2d at 1019

(“Although the [HRPP Rule 40] Petition did not specify as a ground for relief 

(continued . . .)
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As stated above,

[e]rroneous instructions are presumptively harmful 

and are a ground for reversal unless it affirmatively 

appears from the record as a whole that the error was not 

prejudicial. Error is not to be viewed in isolation and 

considered purely in the abstract. It must be examined in 

the light of the entire proceedings and given the effect 

which the whole record shows it to be entitled. In that 

context, the real question becomes whether there is a 

reasonable possibility that error might have contributed to 

conviction. If there is such a reasonable possibility in a 

criminal case, then the error is not harmless beyond a 

reasonable doubt, and the judgment of conviction on which 

it may have been based must be set aside.

Loa, 83 Hawaiʻi at 350, 926 P.2d at 1273. 

Here, the trial court instructed the jury as follows:

If you are unable to find that the offense of 

attempted murder in the first degree or second degree has 

been proven beyond a reasonable doubt, you may then 

consider whether the defendant is guilty or not guilty of 

the included offense of attempted manslaughter.

In a prosecution for attempted murder in the first 

degree or second degree, attempted manslaughter is an 

included offense. The offense of attempted manslaughter is 

committed if the defendant attempted to recklessly cause 

the death of another person.

In a prosecution for attempted murder in the first 

degree or second degree, it is also a defense, which 

reduces the offense to attempted manslaughter, that the 

defendant was, at the time he attempted to cause the death 

of another person, under the influence of extreme mental or 

emotional disturbance for which there is a reasonable 

explanation. The reasonable-ness of the explanation shall 

be determined from the viewpoint of a person in the 

defendant’s situation under the circumstances as he 

believed them to be.

The burden is upon the State to prove beyond a 

reasonable doubt that the defendant was not acting under 

the influence of extreme mental or emotional disturbance 

for which there is a reasonable explanation. If the State 

has not done so, you must find the defendant guilty of the 

included offense of attempted manslaughter. If the State 

has done so, you must find the defendant guilty of the 

offense of attempted murder in the first degree or second 

degree.

(. . . continued)

the precise factual basis upon which the circuit court ruled, it must be 

borne in mind that Defendant was pro se when he filed the Petition and should 

not suffer for his inability to articulate his claim.”). 
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(Emphasis added.)

When, based on the entirety of the record, there is a 

reasonable possibility that a defendant was convicted of a nonexistent offense, the judgment of conviction must be set aside. 

The trial court’s erroneous attempted reckless manslaughter jury 

instruction was “presumptively harmful” because it described the

nonexistent offense of attempted reckless manslaughter, and such 

an instruction “[is] a ground for reversal unless it 

affirmatively appears from the record as a whole that the error 

was not prejudicial.”24 See Loa, 83 Hawaiʻi at 350, 926 P.2d at 

1273. The critical inquiry, then, is whether the attempted 

reckless manslaughter jury instruction “necessarily contributed 

to [Stanley’s] conviction of the nonexistent offense of 

attempted reckless manslaughter.” Loa, 83 Hawaiʻi at 359, 926 

P.2d at 1282.

Unlike in Holbron and like in Loa, here, the record

demonstrates the jury reached the erroneous attempted reckless 

manslaughter jury instruction as evidenced by its transmitted

written communications to the trial court asking for 

24 We note the trial court’s jury instructions concerning when the jury 

could consider the mitigating EMED defense were erroneous, as they “may well 

have had an effect of precluding consideration of possibly extenuating 

circumstances during deliberations on the charge of [attempted] murder in the 

first [and second] degree.” Pinero, 70 Haw. at 525, 778 P.2d at 714; see 

also Holbron, 80 Hawaiʻi at 45, 904 P.2d at 930; Loa, 83 Hawaiʻi at 358, 926 

P.2d at 1281. 
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clarification on attempted reckless manslaughter, as well as its 

verdict form finding Stanley guilty of attempted manslaughter in

Count V. The question then turns to whether there was a 

reasonable probability the jury convicted Stanley of attempted 

reckless manslaughter. Although the State conceded Stanley 

stated a colorable claim because the record did not demonstrate 

whether Stanley was convicted of attempted EMED manslaughter, 

the ICA concluded the State’s concession was unwarranted because 

“the jury did not reject the EMED defense when Stanley was 

convicted of Attempted Manslaughter in Count V because he could 

only be convicted of Attempted Manslaughter if the State failed 

to negative his EMED defense.” Stanley, SDO at 6-7. For the 

reasons discussed below, the ICA’s analysis is flawed. 

The record does not support the ICA’s conclusion. First, 

the jury’s Count V verdict form, which only shows a conviction 

of “Attempted Manslaughter,” is ambiguous as to whether it was 

based on attempted reckless manslaughter or attempted EMED 

manslaughter. See State v. Lincoln, 3 Haw. App. 107, 122, 643 

P.2d 807, 818 (App. 1982), superseded in part by statute as 

stated in Briones, 74 Haw. at 456 n.7, 848 P.2d at 973 n.7

(looking to the jury’s verdict forms to resolve alleged 

inconsistency in jury instructions and resulting verdicts). 

Second, the jury’s transmitted written communications to the 

trial court asking for clarification as to attempted reckless 
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manslaughter show the jury’s confusion as to attempted reckless 

manslaughter.25 Third, the structure of the trial court’s jury 

instructions prejudiced Stanley as they misled the jury. It 

appears the ICA, noting Stanley admitted he made an EMED defense

that the jury rejected, relied on the trial court’s attempted 

EMED manslaughter jury instruction, which came after the 

attempted reckless manslaughter jury instruction, to conclude 

the jury did not reject Stanley’s EMED defense. However, there 

is a reasonable possibility the jury, having found Stanley 

guilty of attempted reckless manslaughter, did not move on to

consider the attempted EMED manslaughter jury instruction. 

Further, because the trial court instructed the jury to also 

consider first degree reckless endangering in Count V, it could 

have been possible for the jury to find Stanley not guilty of 

that charge as well, thereby acquitting Stanley of attempted 

second degree murder. “However, subsumed within these 

instructions was a directive that the jury could not consider 

these included offenses if it convicted [Stanley] of attempted 

reckless manslaughter. The jury’s guilty verdict thus precluded 

it from reaching them[.]” Loa, 83 Hawaiʻi at 359, 926 P.2d at 

1282. “The jury may have acquitted [Stanley] altogether in 

connection with the attempted [second] degree murder charge. 

25 Indeed, the State admitted it appeared the jury was confused as to what 

attempted manslaughter and attempted reckless manslaughter entailed. See

supra note 9.
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However compelling the evidence of criminal wrongdoing might 

have been, such a possibility cannot be dismissed absolutely.” 

Id. (footnote omitted).

Because of the lack of evidence in the record demonstrating 

Stanley was convicted of attempted EMED manslaughter, there is a 

reasonable possibility that the jury may have convicted Stanley 

of the nonexistent offense of attempted reckless manslaughter. 

Therefore, the erroneous attempted reckless manslaughter jury 

instruction was not harmless beyond a reasonable doubt. This 

requires us to vacate his attempted manslaughter conviction and 

remand to the circuit court for further proceedings consistent 

with this opinion.26

26 On remand, double jeopardy principles preclude Stanley from being 

retried for attempted second degree murder in Count V. See Loa, 83 Hawaiʻi at 

360, 926 P.2d at 1283 (holding the defendant cannot be retried on the 

original charge of attempted first degree murder because he was convicted of 

the “included offense” of the nonexistent offense of attempted reckless 

manslaughter, as doing so would violate HRS § 701-110(1) (1993), the 

defendant’s constitutional right against double jeopardy, and State v. 

Feliciano, 62 Haw. 637, 618 P.2d 306 (1980)). Here, the trial court 

instructed the jury that “[i]f you are unable to find that the offense of 

Attempted Murder in the First Degree or Second Degree has been proven beyond 

a reasonable doubt, you may then consider whether the Defendant is guilty or 

not guilty of the included offense of Attempted Manslaughter.” The jury’s 

written communications asking for clarification as to attempted reckless 

manslaughter are significant in light of “the sound presumption of appellate 

practice that jurors are reasonable and generally follow the instructions 

that they are given.” Loa, 83 Hawaiʻi at 359, 926 P.2d at 1282. 

We presume that the jury followed the [trial] court's 

instructions and first considered the evidence with regard 

to the Attempted Murder charge. Consequently, the jury 

would first have considered the charged offense and would 

have gone on to consider any lesser offense only if [it 

was] unable to agree that the prosecution had proven that 

[Stanley] was guilty of the charged offense beyond a 

reasonable doubt.

(continued . . .)
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C. Stanley did not claim his sentence for attempted first 

degree murder violates the equal protection clause of the 

United States or Hawaiʻi constitutions

Stanley maintains that his sentence for attempted first 

degree murder violates the equal protection clause of the United 

States and Hawaiʻi constitutions because Hawaiʻi’s first degree 

murder statute affords greater protection to judges, 

prosecutors, and police officers or it is not applied equally, 

and argues the ICA erred in failing to address that claim. As 

the ICA concluded, Stanley’s failure to raise this argument in 

the circuit court and failure to prove the existence of 

extraordinary circumstances to justify his failure to raise this 

argument in his direct appeal, two habeas corpus petitions to 

the district court, and the First Petition bar relief under HRPP 

Rule 40(a)(3).

D. The record is insufficient to address Stanley’s remaining 

claim

The record is insufficient to address Stanley’s remaining 

claim on certiorari, namely whether the ICA erred in not finding 

exceptional circumstances existed because of the degree and 

level of his education at the time of his offenses and trial. 

(. . . continued)

Id. “Thus, the fact that the jury reached the erroneous [attempted reckless 

manslaughter jury] instruction at all signifies it was unable to convict 

[Stanley] of attempted [second] degree murder.” Id. “The jury having 

acquitted [Stanley] of [attempted second degree murder] by virtue of its 

verdict, we hold that [Stanley] may not be retried for it.” Loa, 83 Hawaiʻi 

at 361, 926 P.2d at 1284.
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V. Conclusion

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

October 2, 2019 judgment on appeal, the circuit court’s February 

23, 2018 order denying the Second Petition, and Stanley’s 

conviction of attempted manslaughter and the ten-year sentence 

that flowed from it. We remand this case to the circuit court 

for further proceedings consistent with this opinion. 

Edward G. Stanley, /s/ Mark E. Recktenwald

petitioner pro se

/s/ Paula A. Nakayama

Sonja P. McCullen,

(on the briefs), /s/ Sabrina S. McKenna

for respondent

/s/ Michael D. Wilson

/s/ Trish K. Morikawa