421 P.3d 674 (Hawai‘i 2018), SCAP-16-0000337, Marks v. State

Docket Nº:SCAP-16-0000337
Citation:421 P.3d 674, 142 Hawai‘i 466
Party Name:Donald B. MARKS, Petitioner-Appellant, v. STATE of Hawai‘i, Respondent-Appellee.
Attorney:David Glenn Bettencourt, Honolulu, for appellant Sonja P. McCullen for appellee
Judge Panel:(By: Recktenwald, C.J., Nakayama, McKenna, Pollack, and Wilson, JJ.)
Case Date:June 28, 2018
Court:Supreme Court of Hawai'i
 
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Page 674

421 P.3d 674 (Hawai‘i 2018)

142 Hawai‘i 466

Donald B. MARKS, Petitioner-Appellant,

v.

STATE of Hawai‘i, Respondent-Appellee.

No. SCAP-16-0000337

Supreme Court of Hawai‘i

June 28, 2018

Editorial Note:

This decision has been designated as "Unpublished disposition." in the Pacific Reporter. See HI R RAP RULE 35

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT (CAAP-16-0000337; S.P.P. NO. 14-1-0008; CR. NO. 02-1-2410)

David Glenn Bettencourt, Honolulu, for appellant

Sonja P. McCullen for appellee

(By: Recktenwald, C.J., Nakayama, McKenna, Pollack, and Wilson, JJ.)

SUMMARY DISPOSITION ORDER

Petitioner-Appellant Donald B. Marks appeals from the Circuit Court of the First Circuit’s (circuit court)[1] October 21, 2014 Order Denying Motion to Withdraw No Contest Plea Pursuant to HRPP Rule 32(d)2 and February 17, 2016 Order Denying Motion for Correction of Illegal Sentence Pursuant to HRPP Rule 35(a).3

In 2002, Marks was indicted for murder in the second degree, and subsequently entered a no contest plea. The State filed a motion for extended term of imprisonment as a persistent offender pursuant to HRS § § 706-661(1) (Supp. 2003) and 706-662(1) (Supp. 2003). The circuit court granted the State’s motion, finding that he was "a persistent offender whose imprisonment for an extended term of life WITHOUT the possibility of parole is necessary for the protection of the public," citing the increase in the severity of crimes in Marks’s criminal history, his extensive drug and alcohol abuse, and his abuse of his ex-wife. In granting the State’s motion, the circuit court sentenced Marks on November 16, 2004 to imprisonment for life without the possibility of parole. Defense counsel for Marks did not appeal his conviction and sentence.

In 2005, Marks filed his first Hawai‘i Rules of Penal Procedure (HRPP) Rule 40 petition, arguing that his counsel was ineffective for failing to object to and appeal his extended term sentence based on Apprendi v. New Jersey, 530 U.S. 466 (2000), and Blakely v. Washington, 542 U.S. 296 (2004). The circuit court denied Marks’s petition, finding that Hawaii’s extended term sentencing scheme did not violate Apprendi or Blakely . Marks appealed to the ICA, but the appeal was dismissed due to Marks’s failure to file an opening brief.

In 2009, Marks filed a second HRPP Rule 40 petition, reiterating the arguments...

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