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State v. Libero12/31/2003
nd their effect on his voluntary waiver of his rights; and failed to present evidence of Libero's mental health.
Defendant bears the burden of establishing an ineffective assistance of counsel by demonstrating: "1) that there were specific errors or omissions reflecting counsel's lack of skill, judgment, or diligence; and 2) that such errors or omissions resulted in either the withdrawal or substantial impairment of a potentially meritorious defense." Richie, 88 Hawaii at 39, 960 P.2d at 1247. Customarily, a HRPP Rule 40 hearing is the proper method to address ineffective assistance of counsel claims. State v. Brantley, 84 Hawaii 112, 122, 929 P.2d 1362, 1372 (App. 1996). See also, Massaro v. United States, 538 U.S. 500, 123 S.Ct. 1690 (2003). While it is permissible to entertain ineffective assistance of counsel claims for the first time on appeal, the record here is insufficiently developed to determine whether the facts alleged by Libero, if proven, would entitle him to relief. State v. Silva, 75 Haw. 419, 438-39, 864 P.2d 583, 592 (1993).
IV.
We reverse the conviction and sentence of Libero on Count Three, Attempted Sexual Assault in the First Degree, and affirm the convictions and sentences for Count One, Attempted Murder in the Second Degree, and Count Two, Assault in the First Degree, without prejudice to Libero's filing a HRPP Rule 40 petition on his ineffective assistance of counsel claim.
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