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 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.Barnett v. State, 91 Hawai`i 20, 30, 979 P.2d 1046, 1052-53 (1999).[State v.] Allen, 7 Haw. App. [89,] 92-93, 744 P.2d [789,] 792-93 [(1987)] (emphasis added).
[In this regard], the appellate court steps into the trial court's position, reviews the same trial record, and redecides the issue. Because the appellate court's determination of "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" is a question of law, the trial court's decision is reviewed de novo. See United States v. Burrows, 872 F.2d 915 (9th Cir. 1989) (denial of a post-conviction motion based on ineffective assistance of counsel without conducting an evidentiary hearing is reviewed de novo for a determination of whether the files and records of the case conclusively show that petitioner is entitled to no relief). Therefore, we hold that . . . the issue whether the trial court erred in denying a Rule 40 petition without a hearing based on no showing of a colorable claim is reviewed de novo; thus, the right/wrong standard of review is applicable.
Dan v. State, 76 Hawai`i 423, 427, 879 P.2d 528, 532 (1994).
STANDARD OF REVIEW
Regarding the sufficiency of an indictment, it is well settled that the liberal construction standard is applied. Under this standard, courts must:
liberally construe the indictment in favor of validity and uphold it, unless there is some showing of substantial prejudice to [the defendant], "such as . . . that the indictment is 'so obviously defective that by no reasonable construction can it be said to charge the offense for which the conviction was had.'"State v. Motta, 66 Haw. 89, 93-94, 657 P.2d 1019, 1021-1022 (1983)(citations omitted). It is equally well settled that the failure to allege an essential element of an offense renders a charge fatally defective. State v. Elliott, 77 Hawai`i 309, 311-12, 884 P.2d 372, 374-75 (1994).
The question is whether the 1983 indictment against Martinez for the crime of Attempted Rape in the First Degree was so obviously defective that by no reasonable construction can it be said to charge that offense. The answer is no. The indictment alleged all of the essential elements of the offense of Attempted Rape in the First Degree.
At the time of the alleged offense, HRS § 705-500 stated:
(1) A person is guilty of an attempt to commit a crime if he:At the time of the alleged offense, HRS § 707-730(1) (Supp. 1984) stated in pertinent part:(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 this 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.
A person commits the offense of rape in the first degree if:In order to validly state a charge of Attempted Rape in the First Degree against Martinez, the indictment must have alleged the following elements:(a) The person intentionally engages in sexual intercourse, by forcible compulsion, with another person and:(i) The other person is not, upon the occasion, his voluntary social companion who had within the previous thirty days permitted him sexual intercourse of the kind involved; or(ii) Recklessly inflicts serious bodily injury upon the other person[.]
1. Martinez intentionally engaged in conduct which under the circumstances, as Martinez believed them to be, constituted a substantial step in a course of conduct intended to culminate in the crime of rape.
2. Martinez intentionally attempted to engage in sexual intercourse by forcible compulsion. (6)
3. (a) With another person (b) who was not upon the occasion Martinez' voluntary social companion who had within the previous thirty days permitted Martinez sexual intercourse of the kind involved.
The indictment against Martinez for the crime of Attempted Rape in the First Degree stated:
[t]hat on or about the 17th day of November, 1983, at Lahaina, in the District of Lahaina, County of Maui, State of Hawaii, [Martinez] did intentionally engage in conduct which under the circumstances as he believes them to be, constituted a substantial step in a course of conduct intended to culminate in his commission of the crime of rape, by intentionally attempting to engage in sexual intercourse, by forcible compulsion with [the alleged female victim] and she was not upon the occasion his voluntary social companion who had within the previous thirty days permitted him sexual intercourse of the kind involved, thereby committing the offense of Attempted Rape in the First Degree in violation of Sections 705-500 and 707-730 of the Hawaii Revised Statutes.(Emphases added.)
The words emphasized above charge that Martinez "did intentionally engage in conduct" "intended to culminate in his commission of the crime of rape" by "intentionally attempting to engage in sexual intercourse, by forcible compulsion[.]" These allegations contradict the assertion that the indictment failed to allege the essential elements of "intent" and "force." Further, the indictment clearly complies with the standards required under Motta, supra, by including all necessary elements of the charged offense.