Hopkins v. State ( 2010 )

NOT FOR PUBLICATION ]N WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
NO. 29832
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAfI
KENNETH HOPKINS, Petitioner-Appellant, v.
STATE OF HAWATI, Respondent-Appellee
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APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(S.P.P. NO. 08-1-OO52; CRIMLNAL NO. 97-l236)
SUMMARY DISPOSITION ORDER
(By: Nakamura, Chief Judge, Foley and Leonard, JJ.)
Petitioner-Appellant Kenneth Hopkins (Hopkins) appeals
the Order Dismissing and Denying Petition to Vacate, Set Aside,
or Correct Judgment or to Release Petitioner From Custody, filed
on May 6, 2009, in the Circuit Court of the First Circuit
(Circuit Court).y k
On May 27, l997, Hopkins was charged with Theft in the
First Degree, in violation of Hawaii Revised Statutes (HRS) §§
(l993) and 708-830
(1993), and Money Laundering, in
'708-830.5(l)(a) (l993), Computer Fraud, in
violation of HRS § 708-89l(l)(b)
violation of HRS §§ 708A-3(a)(l)(A) (Supp. l996) and 708A-3(d)(2)
(Supp. l996).
On July 7, 2004, a change of plea hearing was held
and (e)
before the Circuit Court and Hopkins entered a no contest plea to
the charges. On September 28, 2004, a Judgment was entered.
Hopkins was found guilty of the charges and sentenced to five
years of probation for each count, to be served concurrently,
along with a free-standing order for restitution in the amount of
$35,725.56. In the special terms and conditions of probation,
Hopkins was required, inter alia, to pay at least $2OO per month
in restitution. On December 4, 2004, the Circuit Court entered
y § The Honorable Karen S.S. Ahn presided.
officials
NOT FOR PUBLICATION ]N WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
the separate order of restitution, which ordered Hopkins to pay
$35,725.56 in rescitution.€/
At an April l2, 2007 hearing on a motion for revocation
of probation and resentencing, the Circuit Court resentenced
Hopkins to ten years of incarceration each for Theft in the First
Degree and Money Laundering, and five years of incarceration for
Computer Fraud, terms to run concurrently. As part of the
resentencing, Hopkins was ordered to pay lO% of his gross prison
wages towards the restitution amount of $35,725.56 while he is
incarcerated and at least §200 per month upon his release.
On May 23, 2008, Hopkins filed a Petition to Vacate,
Set Aside, or Correct Judgment or to Release Petitioner From
Custody (First Petition), pursuant to Rule 40 of the Hawaii Rules
of Penal Procedure (HRPP). On August 29, 2008, the Circuit Court
entered an order denying the post-conviction relief sought in the
First Petition. The Circuit Court's order denying the First
Petition was affirmed in part and vacated in part by this court
in Appeal No. 298l6. 0
On December 8, 2008, Hopkins filed a Motion to vacate
Illegally Imposed Terms of Statute. Hopkins claimed that his
sentence was illegal pursuant to HRS §§ 706-644, 706-646, and
706-647 because those statutes were applied retroactively.
Hopkins claimed that the statute allowing imposition of free-
`standing order of restitution was amended in l998, one year after
he was charged in Cr. No. 97-1236. Therefore, Hopkins argued
that a free-standing order may not be imposed upon him because
his case was initiated prior to the effective date of changes to
the enabling statutes. The Circuit Court deemed Hopkins's motion
a non-conforming petition for post-conviction relief and ordered
Hopkins to file a supplemental petition that conformed to HRPP
Rule 40. On January 26, Q0O9, Hopkins filed a Petition to
?-/ The Honorable Karl K. Sakamoto presided over the 2004 proceedings
in the underlying criminal case.
NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
Vacate, Set Aside, or Correct Judgment or to Release Petitioner
From Custody (Second Petition). Hopkins again claimed that his
probationary terms were improper because the statutory amendments
were applied retroactively to him and that a free-standing order
for restitution could not be imposed as part of his sentence.
On May 6, 2009, the Circuit Court issued an Order
Dismissing and Denying Petition to Vacate, Set Aside, or Correct
Judgment or to Release Petitioner From Custody which denied the
Second Petition without a hearing. Hopkins timely filed this
appeal.
On appeal, Hopkins contends that imposition of a free-
standing order for restitution was improper. Hopkins further
contends that under HRS § 706-644 he should receive a credit of
$25 per day towards payment of restitution for each day of
imprisonment. Hopkins did not raise the daily credit issue in
the Second Petition. l
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, we
resolve Hopkins's points of error as follows:
The Circuit Court did not err by sentencing Hopkins to
pay restitution. Contrary to Hopkins's claim, he was not ordered
to pay restitution pursuant to HRS §§ 706-644(4) or 706-644(5),
as amended in l998, but rather HRS § 706-605(l)(d) (l997). §§e
State v. Yamamoto, 79 Hawafi 5ll, 904 P.2d 525 (l995) (a free-
standing sanction ordering a defendant to pay restitution may be
imposed upon a defendant) (citing State v. Gaylord, 78 HawaiH
l27, l54, 890 P.2d ll67, ll94 (l995)).
Hopkins's claim that he did not receive $25 credit per
day toward restitution for each day of incarceration was not
raised in his Second Petition. Accordingly, we do not reach this
issue on this appeal. §§§ HRAP 28(b)(4). We note, however, that
the statute relied upon by Hopkins may not be applicable to this
NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
case.W
appears that the issue may have been raised prematurely.
these reasons,
Indeed, even if this contention were meritorious, it
without prejudice.
Dismissing and Denying Petition to Vacate, Set Aside, or Correct
Accordingly, the Circuit Court's May 6, 2009 Order
Judgment or to Release Petitioner From Custody is affirmed.
On the briefs:
Kenneth Hopkins
Pro Se Petitioner-Appellant
Brian R. vincent
Deputy Prosecuting Attorney
City and County of Honolulu
for Respondent-Appellee
DATED: Honolulu, Hawai‘i, »April 29, 2010.
Chief Judge
Hopkins relies on HRS § 706-644 (l993), which includes:
(3) The term of imprisonment for nonpayment of fine or
restitution shall be specified in the order of commitment,
and shall not exceed one day for each $25 of the fine,
thirty days if the fine was imposed upon conviction of a
violation or a petty misdemeanor, or one year in any other
case, whichever is the shorter period. A person committed
for nonpayment of a fine or restitution shall be given
credit toward payment for each day of imprisonment, at the
rate of $25 per day.
(Emphasis added.)
For
Hopkins's second point of error is dismissed
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