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NOT FOR PUBLICATION ______________________________________________________________________________ NO. 24593 IN THE INTERMEDIATE COURT OF APPEALS OF THE STATE OF HAWAI#I STATE OF HAWAI#I, Plaintiff-Appellee, v. JOSEPH RITA, SR., Defendant-Appellant APPEAL FROM THE CIRCUIT COURT OF THE FIFTH CIRCUIT (CR NO. 95-147) MEMORANDUM OPINION Watanabe, Acting C.J., Lim and Foley, JJ.)

(By:

Joseph Rita, Sr. (Rita) appeals, pro se, the September 5, 2001 findings of fact, conclusions of law and order (the September 5, 2001 order) of the circuit court of the fifth circuit1 that denied, without a hearing, Rita's January 31, 2001 motion to correct illegal sentence, which was expressly premised upon Hawai#i Rules of Penal Procedure (HRPP) Rule 35 (West 2001) (the HRPP Rule 35 motion);2 and Rita's one-sentence ex parte
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The Honorable George M. Masuoka, judge presiding. Hawai#i Rules of Penal Procedure (HRPP) Rule 35 (West 2001) 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

provided:

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NOT FOR PUBLICATION ______________________________________________________________________________ motion to release petitioner from custody ("Petitioner hereby respectfully requests to be released from custody due to wrongful conviction upon the exculpatory evidence of DNA in the abovenumbered case."), dated April 6, 2001 but filed September 6, 2001. Rita's March 22, 2001 "reply brief" below, and Rita's

April 17, 2001 addendum to his HRPP Rule 35 motion, raised additional issues and arguments supporting the two motions. The issues that were raised by Rita in the foregoing four filings are all, save for one, summarized in Rita's opening brief on appeal as his points of error:
1. The Fifth Circuit Court failed to recognize the DNA findings presented to the court on February 23, 1996, which vindicated [Rita] as the suspect of which he stood accused. 2. The Prosecuting Attorney had been in the possession of the DNA report prior to [Rita's] pleading no contest, but still hid said DNA findings from the defense, as well as the accused, and convicted him of rape, even so he perfectly knew, that [Rita] was innocent of the charges brought against him. Had these DNA findings be [sic] made known prior to conviction, the outcome of this case would have been different. 3. Conviction had been achieved by coercing [Rita] into signing a Rule 11 plea-agreement, with the understanding, in the event [Rita] would not sign [sic] said plea-agreement, he would be send [sic] to prison for a duration of up to 150 years. 4. Ineffective Assistance of Defense Counsel, for failing to investigate case and bring to light the Exculpatory evidence in the hand of the Prosecuting Attorney in the form of said DNA report. 5. Prosecutorial Misconduct for failing to adhere to Court Rules of Ethical Behavior and present Exculpatory Evidence to the Attorney presenting [Rita], as well as [Rita].

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deprive the court of jurisdiction to entertain a timely motion to reduce a sentence.

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NOT FOR PUBLICATION ______________________________________________________________________________ (Bold typesetting and some brackets in the original). The issue

not argued by Rita in his appellate briefs was the original issue presented in his HRPP Rule 35 motion:
The issue at bar deals with the wrong convictions according to the Grand Jury Indictments issued on September 18, 1995. In the Indictment [Rita] was charged with the Assault of an adault [sic] in Cr.No. [sic] 95-0147 when indeed the person mentioned by name[, Complainant A,] is [Rita's] nice [sic], a minor child. Yet, the mother of this child[, Complainant B,] was the person mentioned in CR.NO. [sic] 95-0148, and [Rita] was convicted of incest on a adault [sic].

(Some brackets in the original).3 We affirm. I. Background.

The issues and arguments raised by Rita in this appeal attack his no contest plea and conviction in the underlying Cr. No. 95-0147, and his no contest plea and conviction in the companion case, Cr. No. 95-0148. in 1993 and 1995, respectively. The two cases involved events In the former case, the State

alleged that Rita engaged in nonconsensual sexual intercourse with his niece's daughter, Complainant A, who was less than fourteen years old at the time. In the latter case, the State

alleged that Rita engaged in nonconsensual sexual intercourse with the niece, Complainant B.

Here, Rita labors under misapprehensions of fact and law that are readily apparent. See Section I, Background, infra.

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NOT FOR PUBLICATION ______________________________________________________________________________ In Cr. No. 95-0147, Rita was indicted on September 18, 1995 for kidnapping (Count I), sexual assault in the first degree (Count II), burglary in the first degree (Count III), kidnapping (Count IV) and sexual assault in the first degree (Count V). As

part of a plea agreement in which the State dismissed all other counts of the indictment, Rita on March 27, 1996 pled no contest to the reduced charge of sexual assault in the second degree (Hawaii Revised Statutes (HRS)

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