Livingston v. State ( 2023 )

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
30-JAN-2023
07:53 AM
Dkt. 214 MO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
KYLE J. LIVINGSTON, Petitioner-Appellant,
v.
STATE OF HAWAI#I, Respondent-Appellee
APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT
(CASE NO. 2SPP 17-0006)
MEMORANDUM OPINION
(By: Leonard, Presiding Judge, Hiraoka and Nakasone, JJ.)
Petitioner-Appellant Kyle Livingston (Livingston),
appeals from the Findings of Fact (FOFs), Conclusions of Law
(COLs), and Order filed and entered by the Circuit Court of the
Second Circuit (Circuit Court) on May 31, 2018 (Order),
dismissing Livingston's Hawai#i Rules of Penal Procedure (HRPP)
Rule 40 Petition (Second HRPP Rule 40 Petition) without a
hearing.1
On appeal, Livingston contends the Circuit Court
erroneously dismissed: (1) Claim 6 because (a) Livingston's
extended sentence was unconstitutional, and (b) there was
insufficient evidence for the trial court2 to impose the extended
sentence (collectively, extended sentencing argument); (2) Claim
7 because there was insufficient evidence for the trial court to
impose a mandatory minimum term of imprisonment as a repeat
1
The Honorable Rhonda I.L. Loo presided.
2
The Honorable Artemio C. Baxa presided over the underlying trial
and sentencing proceeding in Case No. 2PC980000181.
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offender upon Livingston (repeat offender sentencing argument);
(3) Claim 9 because (a) the jury instruction on the offense of
second-degree sexual assault was deficient, and (b) the trial
court erred in failing to instruct the jury regarding included
offenses of sexual assault in the third and fourth degrees
(collectively, jury instructions argument); and (4) Claim 10
because Livingston's counsel did not request that the jury be
polled and because the cumulative errors require reversal.3
We hold that Livingston's new arguments on appeal
challenging the repeat offender, extended term, and consecutive
sentences he received are not precluded by waiver, but must still
be properly raised before the Circuit Court. We vacate in part
only as to these claims alleging illegal sentencing, and remand
for Livingston to amend his petition to properly raise these
claims before the Circuit Court.
I. BACKGROUND
1998 Trial Court Proceedings
On March 30, 1998, the State charged Livingston with
two counts of third-degree assault, two counts of first-degree
sexual assault, one count of kidnapping, and one count of second-
degree terroristic threatening (Complaint). Following a 1998
jury trial, Livingston was found guilty as charged of two counts
of third-degree assault, the included offense of second-degree
unlawful imprisonment, and two counts of the included offenses of
second-degree sexual assault. He was found not guilty of second-
degree terroristic threatening.
At the November 18, 1998 sentencing, the trial court
heard arguments on Respondent-Appellee State of Hawai#i's (State)
3
Livingston presented an argument regarding ineffective assistance
of counsel for the first time in his Reply Brief, which was not raised below
or in the Opening Brief. "Arguments raised for the first time in the reply
brief on appeal are waived." State v. Sporik, No. CAAP-XX-XXXXXXX, 2021 WL
2624646, at *1 n.5 (App. June 25, 2021) (SDO) (citing State v. Mark, 123
Hawai#i 205, 230, 983 P.3d 478, 503 (2010)); see Hawai #i Rules of Appellate
Procedure (HRAP) Rule 28(d) ("The reply brief shall be confined to matters
presented in the answering brief."). "Generally, the failure to properly
raise an issue at the trial level precludes a party from raising that issue on
appeal." State v. Hoglund, 71 Haw. 147, 150, 785 P.2d 1311, 1313 (1990)
(citation omitted). We do not address this argument.
2
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motions for extended term sentencing under HRS § 706-6624 and
repeat offender sentencing under HRS § 706-606.5.5
4
At the time of the offenses, the extended term sentencing statute,
HRS §§ 706-662 (Supp. 1997) pertinently provided in subsections (1) and (4) as
follows:
Criteria for extended terms of imprisonment. A convicted
defendant may be subject to an extended term of imprisonment
under section 706-661, if the convicted defendant satisfies
one or more of the following criteria:
(1) The defendant is a persistent offender whose
imprisonment for an extended term is necessary for
protection of the public. The court shall not make this
finding unless the defendant has previously been convicted
of two felonies committed at different times when the
defendant was eighteen years of age or older.
. . . .
(4) The defendant is a multiple offender whose
criminal actions were so extensive that a sentence of
imprisonment for an extended term is necessary for
protection of the public. The court shall not make this
finding unless:
(a) The defendant is being sentenced for two or
more felonies or is already under sentence of imprisonment
for felony . . . .
(Emphases added).
The motion for extended term sentencing requested extended
sentencing as a "persistent offender" under subsection (1) and as a "multiple
offender" under subsection (4), on the basis that Livingston was previously
convicted of two felonies at different times over the age of 18, and that
Livingston was currently being sentenced for two Class B felonies of Sexual
Assault in the Second Degree.
5
At the time of the offenses, HRS § 706-606.5 (Supp. 1997)
provided, in pertinent part:
Sentencing of repeat offenders. (1) Notwithstanding section
706-669 and any other law to the contrary, any person
convicted of . . . any felony conviction of another
jurisdiction shall be sentenced to a mandatory minimum
period of imprisonment without possibility of parole during
such period as follows:
(a) One prior felony conviction:
. . . .
(iii) Where the instant conviction is for
a class B felony–three years, four months
. . . .
. . . .
(continued...)
3
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With regard to the extended sentencing argument, the
State informed the trial court that the maximum term was eight
years for the prior out-of-state conviction, referring to its
exhibits that included the California offense statute, and
certified copies of California court documents. Livingston
objected on the grounds of hearsay, lack of identification, and
requested an evidentiary hearing.6
An evidentiary hearing was then had, in which the State
presented evidence through Jess Lopez (Lopez), Livingston's
parole officer in California, who testified as to the nature,
date, and case number of Livingston's California convictions,
authenticated State's Exhibit 3 (certified copy of the abstract
5
(...continued)
(6) For purposes of this section:
(a) Convictions under two or more counts of an indictment or
complaint shall be considered a single conviction . . . .
The motion for repeat offender sentencing requested sentencing
under subsection (1)(a)(iii) of HRS § 606-606.5, on the basis that Livingston
was previously convicted in California of two counts of "Forcible Rape" on two
separate women, and that the instant offense was committed within the maximum
penalty of eight years pursuant to California Codes Sections 264.5 and the
provisions of codes sections 1170-1170.95.
6
Defense counsel argued as follows:
Your Honor, excuse me. I would object to the Court
accepting statements by counsel. They are hearsay --
accepting documents that have not been identified or
testified to as fair and accurate records from California. I
think what is required is the State put on an evidentiary
hearing to prove you have prior convictions for purposes of
mandatory minimum sentencing. I don't think the rules
require the State of Hawaii to just narrate what it thinks
it can prove. It needs to prove it beyond a reasonable
doubt.
. . . .
Well, your Honor, is the Court assuming those documents are
documents that involve a conviction that my client suffered
in California, because I have not heard anything that
identifies my client to those documents. I think that's why
the rules require an evidentiary hearing to make
identification that my client is the person that is being
discussed here by documents in the State of Hawaii.
4
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of the judgment), identified Livingston in the courtroom as his
parolee, testified that Livingston was over eighteen at the time
of the convictions, and testified as to the date Livingston's
parole ended. The State introduced the records from Livingston's
California case into evidence, as Exhibits S-1, S-2, S-3, and
S-4. The trial court received the State's exhibits into evidence
over Livingston's "lack of foundation" objection.7
Thereafter, the trial court took judicial notice of,
among other things, Exhibit S-1 being a complaint against
Livingston, containing charges arising from acts against two
different women, and Exhibit S-4 being a no contest plea dated
November 30, 1992, detailing the acts and dates of the crimes
against the two women, and establishing that Livingston was
represented by counsel in the California case. The trial court
granted the State's request for repeat offender sentencing under
HRS § 706-606.5(1)(a)(iii), finding that Livingston qualified for
a mandatory minimum term of imprisonment of three years, four
months based on one prior conviction and the two class B felony
convictions for second-degree sexual assault.
Next, the trial court addressed the State's motion for
extended terms sentencing under HRS § 706-662. In opposition,
Livingston argued that there was no evidence that he had two
prior felony convictions, and that Livingston only had "one
7
The transcript reflects that Livingston's trial counsel did not
specify what foundation was lacking and did not cross-examine Livingston's
parole officer:
[PROSECUTOR]: Thank you, your Honor. At this time I
offer State's S-1, S-2, S-3 and S-4 into evidence, they
being certified copies of public documents in Case Number
C97550, County of Orange, State of California.
[DEFENSE COUNSEL]: For the record, Judge, I object,
lack of foundation.
THE COURT: Objection overruled.
[PROSECUTOR]: Thank you, your Honor. I tender the
witness at this point.
[DEFENSE COUNSEL]: No questions.
5
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conviction in 1992, albeit against two complainants . . . ." The
trial court agreed with the State's distinction between the
definition of prior "conviction" under the repeat offender
provision, HRS § 706-606.5(6)(a) (providing that multiple counts
in a single complaint are considered a single prior conviction),
and the extended term provision, HRS § 706-662(1) (providing that
prior conviction means "two felonies committed at different
times"). The trial court determined that for purposes of
HRS § 706-662(1), "[t]here is no question here [that Livingston]
has previously been convicted of two felonies committed at
different times when he was eighteen years of age or older as
shown by the documents admitted in evidence." The trial court
found that Livingston qualified as a persistent and multiple
offender under HRS § 706-662 (1) and (4), and that extended term
sentencing was necessary to protect the public.8
8
The Circuit Court made the following oral findings regarding
extended sentencing under HRS § 706-662(1) and (4):
THE COURT: On this extended request the Court is
going to find the Defendant here qualifies as a pers istent
offender under 706-992(1) [sic], as well as under (4) as a
multiple offender, so the Court finds the Defendant is a
persistent offender whose commitment for extended term is
necessary for protection of the public. There is no question
here Defendant has previously been convicted of two felonies
committed at different times when he was eighteen years of
age or older as shown by the documents admitted in evidence.
Also, the Defendant is a multiple offender under
(4). Defendant is a multiple offender whose criminality was
so extensive that a sentence of imprisonment for an extended
term is warranted. There is no question the Defendant here
is being sentenced for two former felonies, or is already
under sentence of imprisonment for a felony.
As a further finding of the Court, the Court finds
that he is a persistent offender by virtue of the fact he is
now being sentenced for two counts of sexual assault in the
second degree, and because Defendant was also prior to the
date of the offenses herein a registered sex offender,
having previously been convicted of two counts of forcible
rape, one assault, one assault with intent to commit rape,
assault with a deadly weapon, burglary in the first degree
or being felony offenses in case number C97550 in the
Superior Court·of California, County of Orange on November
30, 1992, when he·was eighteen years of age or older, and
that the Defendant's prior felony offenses in Case Number
C97550 were committed on three different dates against three
two [sic] different women, and that the Defendant's prior
(continued...)
6
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The trial court sentenced Livingston to extended terms
of twenty years each for two counts of second-degree sexual
assault, and one year each for two counts of third-degree assault
and second-degree unlawful imprisonment. All terms were ordered
to run consecutively for a total of forty-three years, with a
mandatory minimum period of imprisonment of three years and four
months without the possibility of parole as a repeat offender.
1999 Direct Appeal
Livingston appealed from the November 18, 1998 judgment
on January 19, 1999, contending that (1) the State's opening,
closing, and rebuttal arguments constituted prosecutorial
misconduct, and (2) the State's cross-examination of Livingston
improperly bolstered the complainant's testimony. No sentencing
challenges were raised. On December 8, 1999, the Hawai#i Supreme
Court affirmed the trial court's judgment. State v. Livingston,
92 Hawai#i 634, 994 P.2d 566 (1999).
2005 First HRPP Rule 40 Petition
On October 5, 2005, in Case No. 2PR041000021,
Livingston filed a motion to correct illegal sentence, arguing
that his extended term of imprisonment was improper based upon
Apprendi v. New Jersey, 530 U.S. 466 (2000).9 The Circuit Court
construed the motion as a HRPP Rule 40 petition (First Rule 40
Petition), and on November 16, 2005, denied the same on the basis
that Apprendi did not apply retroactively. Livingston did not
appeal.
8
(...continued)
felony offenses against the two different women were both
committed –– [Prosecutor], I see dangerous instrument. Is
that reflected in the documents you have presented?
[PROSECUTOR]: Yes, your Honor.
THE COURT: To-wit: a knife or other similar sharp
object. The Court notes again that the documents admitted in
evidence support these findings.
9
In Apprendi, the United States Supreme Court held that an increase
in penalty beyond the prescribed statutory maximum must be submitted to the
jury and proved beyond a reasonable doubt. 530 U.S. at 476.
7
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2017 Second HRPP Rule 40 Petition
On April 24, 2017, in Case No. 2PR171000006,
Livingston, self-represented, filed the Second HRPP Rule 40
Petition in the case underlying this appeal. This second
petition alleged in relevant part:
CLAIM 6.
Petitioner has been sentenced to an extended term
sentence by a statute which was unconstitutional at
the time of sentencing. Further, the time in which
the State of Hawaii sought the extended term sentence
from the unconstitutional statute in the instant case
on Petition (Cr. No. 98-0181) was beyond the time
allowed for by law. Petitioner's sentence is illegal
and demands to be vacated and dismissed.
CLAIM 7.
Part A
Petitioner was illegally sentenced to mandatory
minimum terms in case Cr. No. 98-0181. Circuit Court
of the Second Circuit was not the trier of fact and
could not solely determine Petitioner's sentencing
enhancement whereby Petitioner's case was tried before
a jury. Pursuant to the United States Constitution's
protections of Due Process and Equal Protection . . .
Petitioner's mandatory minimum term sentencing is
illegal, as is maximum term.
Part B
Illegality exists also in that Petitioner's statutory
enhancement of minimum term sentence by the non-trier
of fact Hawaii Paroling Authority not only violates
Hawaii Revised Statutes § 706-609; but, the above
named Constitutional protections of Due Process and
Equal Protection.
. . . .
CLAIM 9.
The State of Hawaii violated the Fourteenth Amendment
of the United States Constitution; Article 1, § 5 of
the Hawaii Constitution; Equal Protection Clause; Res
Judicata; Hawaii Rules of Professional Conduct Rule
3.8; and protections against Malicious, Selective
and/or Vindictive Prosecution in cases FC 98-0212 and
Cr. No. 98-0181. State has committed criminal acts
pertaining falsified documents of which judicial
misconduct may be a part. Constitutional violations
of this magnitude mandate automatic reversal of
Petitioner's case and dismissal with prejudice.
CLAIM 10.
The amount of Errors - violations of statutes,
violations of rules and violations of constitutional
protections, whether harmless or plain occurring in
8
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cases FC 98-0212 and Cr. No. 98-0181 . . . amount to
Cumulative Error. The sheer volume of error is
prejudicial and mandates reversal of Petitioner's
conviction.
(Original emphases omitted).
On May 31, 2018, the Circuit Court dismissed
Livingston's Second HRPP Rule 40 Petition without a hearing. In
its FOFs, COLs, and Order, the Circuit Court found that the
extended sentencing argument in Claim 6 was raised and ruled upon
previously, and thus Claim 6 could not be brought pursuant to
HRPP Rule 40(a)(3). With respect to the repeat offender
sentencing argument in Claim 7, the Circuit Court found that it
was patently frivolous and was not a colorable claim. With
respect to the jury instructions argument in Claim 9, the Circuit
Court found that Livingston failed to raise the issue in the
underlying criminal case, on direct appeal, or in the First
HRPP Rule 40 Petition, and thus Claim 9 was waived under HRPP
Rule 40(a)(3). With respect to the jury poll and cumulative
error argument in Claim 10, the Circuit Court found that the
alleged errors were not supported by the record, thus were
patently frivolous and stated no colorable claim. Based upon the
foregoing, the Circuit Court dismissed Livingston's Second
HRPP Rule 40 Petition without a hearing.
Livingston timely appealed.10
II. STANDARD OF REVIEW
Whether a 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).
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
10
On October 30, 2019, following temporary remand from this court,
the Circuit Court appointed counsel for Livingston.
9
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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 Petitioner's application for relief
made such a showing of a colorable claim as to require a
hearing before the lower court.
Lewi v. State, 145 Hawai#i 333, 345, 452 P.3d 330, 342 (2019)
(quoting Dan, 76 Hawai#i at 427, 879 P.2d at 532).
III. Discussion
Livingston's opening brief sets forth four points of
error, which contain a combination of issues raised and dismissed
in the Second HRPP Rule 40 Petition as well as entirely new
issues added on appeal. Livingston was self-represented at the
trial level for this petition, but has counsel on appeal. While
a self-represented petitioner "should not suffer for [their]
inability to articulate [] claims," they must still "alert the
court to the general issue that is the basis of [the] claim[.]"
Stanley v. State, 76 Hawai#i 446, 450, 879 P.2d 551, 555 (1994)
(citation and internal brackets omitted). Even liberally
construing Livingston's HRPP Rule 40 Petition under Stanley,
however, the Second HRPP Rule 40 Petition did not alert the
Circuit Court, and thus the Circuit Court did not consider, some
of the newly raised issues in Livingston's points of error. As
discussed below, some of the points of error are waived, and some
are not.
A. Claims regarding jury instructions, jury
poll, and cumulative error are waived or
without merit.
Livingston contends that the Circuit Court erred in
dismissing Claim 9 because the trial court's jury instructions
for the sexual assault offenses were erroneous and insufficient.
These arguments were not raised at trial, on direct appeal, in
the First HRPP Rule 40 Petition, or in the record below of the
Second HRPP Rule 40 Petition, and they are waived. See HRPP
10
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Rule 40(a)(3);11 Rapozo v. State, 150 Hawai#i 66, 86, 497 P.3d 81,
101 (2021) (citation omitted) (holding that defendant's
contentions were waived because they were not raised below in the
Rule 40 Petition and were raised for the first time on appeal).
Livingston contends that the Circuit Court erred in
dismissing Claim 10 in the Second HRPP Rule 40 Petition because
the "'cumulative weight of errors'" created an atmosphere of bias
and prejudice, depriving Livingston of a fair trial; and because
Livingston's trial counsel "did not request that the jury be
polled[.]" The jury polling argument was not raised previously
or in this record below, and it is waived. See HRPP Rule
40(a)(3); Rapozo, 150 Hawai#i at 86, 497 P.3d at 101. As to the
cumulative error argument that Livingston was deprived of a fair
trial, because Livingston's claims regarding the above trial-
related errors (i.e. jury instructions and jury poll) are waived,
this argument is without merit; and we do not disturb the Circuit
Court's rejection of this argument in Claim 10. See Dan,
76 Hawai#i at 427, 879 P.2d at 532.
B. Claims of illegal sentence are not waived.
Under HRPP Rule 40(a)(3), relief is not available if an
issue was previously ruled upon or waived. However, HRPP
Rule 40(a)(3) makes an exception for a claim of "illegal
sentence," which is not subject to waiver. An "illegal sentence"
11
HRPP Rule 40(a)(3) 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 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.
(Emphases added).
11
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may be corrected at "any time[.]" HRPP Rule 35(a).12 In Stanley
v. State, 148 Hawai#i 489, 502, 479 P.3d 107, 120 (2021), the
Hawai#i Supreme Court explained:
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).
(citing Flubacher v. State, 142 Hawai#i 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.")); see also Rapozo,
150 Hawai#i at 81, 83, 497 P.3d at 96, 98 ("Although Rapozo could
have raised this claim in his previous seven HRPP Rule 40
petitions or other proceedings, as explained above, this is a
claim of illegal sentence.").
Livingston raises a new challenge to his consecutive
sentences on appeal, that the Circuit Court erred in dismissing
the "due process" claim in Claim 9 because the trial court
"abused its discretion in sentencing Livingston to consecutive
sentences totaling 43 years . . . ."13 Relying on State v.
Vellina, 106 Hawai#i 441, 106 P.3d 364 (2005), Livingston argues
12
HRPP Rule 35(a) provides:
(a) Correction of Illegal 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. A motion made by a defendant
to correct an illegal sentence more than 90 days after the
sentence is imposed shall be made pursuant to Rule 40 of
these rules. A motion to correct a sentence that is made
within the 90 day time period shall empower the court to act
on such motion even though the time period has expired.
(Emphases added).
13
This argument only appears in the argument section of the opening
brief, and is not raised in the points of error section as required by HRAP
Rule 28(b)(4). See Marvin v. Pflueger, 127 Hawai #i 490, 496, 280 P.3d 88, 94
(2012) ("Nonetheless, noncompliance with Rule 28 does not always result in
dismissal of the claims, and this court has consistently adhered to the policy
of affording litigants the opportunity to have their cases heard on the
merits, where possible.") (citation, internal quotation marks, and brackets
omitted).
12
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that "the trial court based its sentencing decisions on
unsubstantiated claims made by the DPA" and "the parole agent
witness," and the trial court plainly erred in imposing the terms
consecutively. The consecutive sentencing challenge was not
raised below, and the Circuit Court had no opportunity to address
it.
Livingston raises a new argument regarding his repeat
offender sentence on appeal, that the Circuit Court erred by
dismissing Claim 7 of the Second HRPP Rule 40 Petition because
the trial court lacked sufficient evidence to impose a mandatory
minimum sentence as a repeat offender under HRS § 706-606.5,
based on the record of the sentencing hearing. Claim 7 as raised
below, did not present this argument to the Circuit Court, but
rather contended that the mandatory minimum term was a sentencing
enhancement for the jury to determine as fact-finder. On appeal,
Livingston argues that the four exhibits, Exhibit S-1 through
S-4,14 and the testimony of Livingston's parole officer were
insufficient to establish that Livingston had a prior conviction
to support a mandatory minimum sentence under HRS § 706-606.5.
The specific challenges raised on appeal were not made below, and
the Circuit Court had no opportunity to address them.
Livingston's challenge to the extended sentence based
on Apprendi was previously raised and rejected in the First
HRPP Rule 40 Petition,15 but he raises a new argument in this
14
On September 20, 2006, the State withdrew Exhibits S-1, S-2, S-3,
and S-4 after filing a Request for Withdrawal of Exhibits and Receipt. The
exhibits are not in the record. Livingston points out in his opening brief
that the State sent a ten-page PDF copy of what the State had in its
possession, however, the copy did not include the original exhibits, as there
were no evidence markers.
Upon remand, the State should supplement the record with the
original exhibits or copies of the original exhibits, or the Circuit Court
should make findings regarding any missing exhibits relevant to the extended
term sentence and attempt to reconstruct them. See HRAP Rule 10(e); U.S. v.
Novaton, 271 F.3d 968, 992-93 (11th Cir. 2001) (explaining the procedure for
missing exhibits under Federal Rules of Appellate Procedure 10(e)).
15
Livingston's constitutional argument that Apprendi applied
retroactively was previously ruled upon and rejected in the First HRPP Rule 40
proceeding (2PR041000021), and the Circuit Court correctly concluded that
relief under HRPP Rule 40 was not available. See HRPP Rule 40(a)(3). We see
(continued...)
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appeal that the Circuit Court erred in dismissing Claim 6 under
the pre-Apprendi extended term sentencing framework of the
Okumura/Huelsman cases.16
Livingston argues that, pursuant to the
Okumura/Huelsman cases, "there was insufficient evidence,
including lack of proof of conviction, to sentence Livingston to
extended terms pursuant to HRS §§ 706-662(1) and (4)[,]" as the
ordinary rules of evidence applied, and the trial court failed to
enter its findings of fact and specifically state that the
State's motion for extended terms sentencing was proved "beyond a
reasonable doubt." The extended sentencing argument based on
Okumura/Huelsman was not raised below, and the Circuit Court had
no opportunity to address it.
Because Livingston's illegal sentencing challenges
described above were not raised below, we vacate and remand this
matter to the Circuit Court to allow the filing of an amended
petition to properly raise the challenges to Livingston's repeat
offender, extended term, and consecutive sentences before the
15
(...continued)
no reason to disturb this ruling. The Hawai #i Supreme Court affirmed
Livingston's direct appeal on December 8, 1999, and the Judgment on Appeal was
filed on December 30, 1999, before the issuance of the Apprendi decision on
June 26, 2000. State v. Livingston, 92 Hawai #i 634, 994 P.2d 566 (1999). See
Flubacher, 142 Hawai#i at 118, 414 P.3d at 170 (clarifying that Apprendi does
not apply retroactively to cases before Apprendi was decided on June 26,
2000); State v. Gomes, 107 Hawai#i 308, 313-14, 113 P.3d 184, 189-90 (2005)
(holding that the new rule of Apprendi did not apply retroactively on
collateral review to cases where the conviction and sentence became final
before Apprendi was decided).
16
In State v. Huelsman, 60 Haw. 71, 91, 588 P.2d 394, 407 (1978),
overruled on other grounds by State v. Tafoya, 91 Hawai #i 261, 982 P.2d 890(1999), noting the difficulty in determining whether the sentencing court
appropriately exercised its discretion within the statutory guidelines of HRS
§ 706-662, the supreme court set forth the requirement that: "the sentencing
court shall state on the record its reasons for determining that commitment of
the defendant for an extended term is necessary for protection of the public
and shall enter into the record all findings of fact which are necessary to
its decision." The Huelsman court explained that the facts proving extended
term sentencing were subject to the "ordinary rules of evidence" and had to be
proved "beyond a reasonable doubt." Id. at 77, 588 P.2d at 399.
Subsequently, in State v. Okumura, 78 Hawai #i 383, 413-14, 894 P.2d 80, 110-11
(1995), abrogated on other grounds by State v. Cabagbag, 127 Hawai #i 302, 277
P.3d 1007 (2012), the supreme court applied Huelsman and held that because the
circuit court "did not state on the record its reasons" and "did not enter any
findings of fact," it could not determine whether the circuit court abused its
discretion in concluding that an extended term sentence was necessary.
14
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Circuit Court with the assistance of counsel. See HRPP Rule
40(e) ("The court may grant leave to amend or withdraw the
petition at any time" to achieve "substantial justice.").
IV. CONCLUSION
For the foregoing reasons, we affirm in part the May
31, 2018 Findings of Fact, Conclusions of Law, and Order filed
and entered by the Circuit Court of the Second Circuit, and
vacate in part with respect to the specified illegal sentencing
claims, and remand for further proceedings consistent with this
Memorandum Opinion.
DATED: Honolulu, Hawai#i, January 30, 2023.
On the briefs:
/s/ Katherine G. Leonard
Cody Minatodani Presiding Judge
for Petitioner-Appellant.
/s/ Keith K. Hiraoka
Renee Ishikawa Delizo Associate Judge
Deputy Prosecuting Attorney
County of Maui /s/ Karen T. Nakasone
for Respondent-Appellee. Associate Judge
15