NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER Electronically Filed Intermediate Court of Appeals CAAP-XX-XXXXXXX 28-JUL-2020 10:09 AM NO. CAAP-XX-XXXXXXX IN THE INTERMEDIATE COURT OF APPEALS OF THE STATE OF HAWAI#I JONATHAN NUEZCA, Petitioner-Appellant, v. STATE OF HAWAI#I, Respondent-Appellee APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT (S.P.P. NO. 16-1-0008(2); CR. NO. 15-1-0285(2)) SUMMARY DISPOSITION ORDER (By: Leonard, Presiding Judge, and Chan and Wadsworth, JJ.) Petitioner-Appellant Jonathan Nuezca (Nuezca) appeals from the "Court's Findings of Fact, Conclusions of Law, and Order Denying Petition to Vacate, Set Aside, or Correct Judgment or to Release Petitioner from Custody Filed on June 7, 2016" (FOF/COL/Order), entered on October 3, 2017, in the Circuit Court of the Second Circuit (Circuit Court).1/ Following an evidentiary hearing, the Circuit Court concluded that Nuezca had failed to present sufficient evidence to establish his claims of ineffective assistance of counsel and prosecutorial misconduct, and denied Nuezca's Petition to Vacate, Set Aside, or Correct Judgment or to Release Petitioner from Custody (Petition). On appeal, Nuezca challenges the Circuit Court's Findings of Fact (FOF) Nos. 27, 28, 29, 31, 33, 36, 38, 39, 40, and 41 and Conclusions of Law (COL) Nos. 8, 9, 10, 11, 12, and 13. Nuezca contends that the Circuit Court erred in ruling that he failed to establish his ineffective assistance claim, because he was not accurately advised by his trial counsel that pleading 1/ The Honorable Peter T. Cahill presided. NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER no contest to an aggravated felony would subject him to "mandatory and certain" deportation. Upon careful review of the record and the briefs submitted by the parties and having given due consideration to the arguments advanced and the issues raised by the parties, as well as the relevant statutory and case law, we resolve Nuezca's contentions as follows. I. RELEVANT BACKGROUND The following FOFs, among others, are undisputed: 1. On May 1, 2015, in Cr. No. 15-1-0285(2), the Grand Jury of the Second Circuit indicted Nuezca on the following counts: Count One: Sexual Assault in the Third Degree [(Sex Assault 3)], in violation of Hawai[]i Revised Statutes ("HRS") § 707-732(1)(b); 2/ Count Two: [Sex Assault 3], in violation of HRS § 707-732(1)(c); Count Three: [Sex Assault 3], in violation of HRS § 707-732(1)(c); Count Four: [Sex Assault 3], in violation of HRS § 707-732(1)(c); and Count Five: [Sex Assault 3], in violation of HRS § 707-732(1)(c). 2. On March 11, 2015, Defendant Nuezca pled not guilty to all five counts against him at his Arraignment and Plea. 3. In the Arraignment and Plea hearing, the Court gave the immigration advisement required by HRS § 802E-4 to Nuezca. 2/ HRS § 707-732(1)(b)(2014) provides: (1) A person commits the offense of sexual assault in the third degree if: . . . . (b) The person knowingly subjects to sexual contact another person who is less than fourteen years old or causes such a person to have sexual contact with the person[.] ...
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