Garcia v. State ‘i
| Decision Date | 21 December 2010 |
| Docket Number | No. SCWC–29725.,SCWC–29725. |
| Citation | 263 P.3d 709,125 Hawai'i 429 |
| Parties | David GARCIA, aka Howard Garcia, Petitioner/Petitioner–Appellantv.STATE of Hawai‘i, Respondent/Respondent–Appellee. |
| Court | Hawaii Supreme Court |
OPINION TEXT STARTS HERE
Glenn D. Choy, for petitioner/petitioner-appellant.Diane K. Taira and Darcy H. Kishida, Deputy Attorney Generals, for respondent/respondent-appellee.
We hold that the recalculation by the Hawai‘i Paroling Authority (HPA), of credit for pre-sentence detention (presentence credit) of Petitioner/Petitioner–Appellant David Garcia, aka Howard Garcia (Petitioner), pursuant to State v. Tauiliili, 96 Hawai‘i 195, 200, 29 P.3d 914, 919 (2001), that extended the earliest date at which Petitioner was eligible for release, did not violate (1) the Ex Post Facto Clause of the United States Constitution; (2) due process under the United States Constitution or the Hawai‘i Constitution; or (3) principles regarding the retroactive application of judicial decisions espoused by this court. We accepted Petitioner's application for writ of certiorari (Application) in this case because (1) similar issues regarding the retroactive application of Tauiliili, have been previously raised to and rejected by this court,1 (2) there is no governing authoritative case regarding the retroactive application of Tauiliili inasmuch as the ICA's judgments in that regard have been by way of summary disposition orders, see Killion, 2009 WL 484411, at *1, and Garcia v. State, No. 29725, 2010 WL 2513357, at *1 (App. Jun. 23, 2010) (SDO), and (3) Tauiliili did not discuss whether applying that decision retroactively would violate the prohibition against ex post facto laws, due process, or principles regarding the retroactive application of judicial decisions, as espoused by this court. We affirm the judgment of the ICA, see Garcia, 2010 WL 2513357, at *1, on the grounds set forth herein.
The following essential matters, some verbatim, are from the record and the submissions of the parties.
Hawai‘i Administrative Rules (HAR) § 17–1204–17,2 promulgated in 1985, provided:
17–1204–17 Credit application towards minimum sentence expiration date for sentenced felons.
(a) Presentence credit accumulated by a sentenced felon offender shall be deducted from the offender's minimum sentence expiration date set by the paroling authority.
(b) Upon the establishment of an adjusted minimum sentence expiration date, the paroling authority shall forward a facsimile copy of the expiration date to the corrections division office having custodial jurisdiction over the offender and the agency.
(c) The expiration date shall be the earliest date when the sentenced felon offender can be released from a correctional facility prior to and upon further action by the paroling authority.
(Emphases added.) 3 On October 21, 1997, Petitioner pled guilty to five counts of Robbery in the Second Degree pursuant to a plea agreement with Respondent.4
On March 3, 1998, Petitioner was sentenced by the trial court (sentencing court),5 in accordance with the plea agreement, as follows: (1) an indeterminate term of ten years with a mandatory minimum term of three years and four months for count I; (2) an indeterminate term of ten years for each of the four remaining counts (counts II–V), to run concurrently with each other; (3) the sentence for count I to run consecutively to the concurrent sentences for the four remaining counts; and (4) credit for presentence detention beginning October 22, 1995.
On October 12, 1998, the HPA issued a Notice and Order Fixing Minimum Term(s) of Imprisonment, setting the minimum term for each count at seven years. The Notice listed October 22, 2002, as the earliest date of release for counts II through V, and June 12, 2007, for count I. It is apparent that Petitioner received presentence credit under each of the five counts.
Then, on August 9, 2001, this court held in Tauiliili, 96 Hawai‘i at 200, 29 P.3d at 919, that pursuant to Hawai‘i Revised Statutes (HRS) § 706–671, 6 where consecutive sentences are imposed, the defendant is entitled to presentence credit against only the aggregate of his or her consecutive terms; not against each of his or her consecutive terms. Thereafter, the Department of Public Safety (DPS) promulgated a written policy, effective January 1, 2005, adopting the Tauiliili “methodology” for computing presentence credit for consecutive sentences (Policy).7 On April 18, 2007, the HPA issued a second Notice and Order Fixing Minimum Term(s) of Imprisonment, indicating that pursuant to this court's holding in Tauiliili, Petitioner's earliest dates of release had been recalculated and set at October 20, 2003 for counts II–V, and at October 18, 2009 for count I.
On January 10, 2008, Petitioner filed a Motion for Clarification of Illegal Sentence or in the Alternative, to Correct Illegal Sentence (Petition). In his Petition, Petitioner argued that the retroactive application of Tauiliili to recalculate his minimum sentences (1) violated the Ex Post Facto Clause of the United States Constitution; (2) contravened this court's decision in State v. Ikezawa, 75 Haw. 210, 220–21, 857 P.2d 593, 598 (1993), regarding the retroactivity of judicial decisions; and (3) breached the Due Process Clause of the United States Constitution inasmuch as (a) the sentencing court and Petitioner assumed that Petitioner's presentence credit would be applied to both of his consecutive terms, (b) HRS § 706–671(1) states that with regard to presentence detention, “[s]uch period of detention shall be deducted from the minimum and maximum terms” and that the use of the word “term” in the plural suggested that presentence credit was applicable to each consecutive term, and (c) from his own research and examination of other inmates' cases, he had determined that HPA had a practice of applying presentence credit to each of a defendant's consecutive terms.
On March 18, 2009, the circuit court of the first circuit (the court) 8 filed its Findings of Fact, Conclusions of Law and Order Denying Petitioner's January 10, 2008 Nonconforming Petition for Post–Conviction Relief denying Petitioner's Motion. The court concluded that since Tauiliili did not change the law but merely interpreted existing law, recomputation of Petitioner's minimum sentences did not violate the Ex Post Facto Clause or due process. Additionally, the court concluded that neither the plea agreement nor the transcript of Petitioner's sentencing hearing demonstrated that Petitioner was to receive presentence credit on both of his consecutive terms.
On appeal to the ICA, Petitioner reiterated the same arguments raised before the court. The ICA affirmed the court pursuant to a Summary Disposition Order (SDO) filed on June 23, 2010.9 See Garcia, 2010 WL 2513357, at *3.
With respect to Petitioner's Ex Post Facto Clause argument, the ICA acknowledged that “ ‘[r]etroactive application of a law that imposes a greater punishment than the law in effect when the crime was committed is forbidden by the Ex Post Facto [C]lause [ ] of the Constitution.’ ” Id. (quoting Davis v. Moore, 772 A.2d 204, 215–16 (D.C.Cir.2001) (footnote omitted)). The ICA stated, however, that “ ‘[t]he United States Supreme Court has made it clear that the constitutional prohibition against ex post facto measures applies only to legislative enactments.’ ” Id. (quoting State v. Jess, 117 Hawai‘i 381, 407, 184 P.3d 133, 159 (2008)). According to the ICA, HRS § 706–671 “did not change its statutory language or any prior ruling on its effect” since it was first enacted, nor “since [Petitioner] committed his offenses[.]” Id. Thus, the ICA concluded that “there [was] no ex post facto prohibition against applying Tauiliili to [Petitioner's] sentence.” Id.
The ICA did not specifically address Respondent's arguments with respect to the retroactive application of judicial decisions under Ikezawa but, rather, addressed Respondent's argument in that regard as a matter of due process. According to the ICA, “[t]he test for analyzing whether a newly announced judicial doctrine can apply retroactively is grounded in concepts of notice and foreseeability.” Id. It further observed that “[a]n unforeseeable interpretation of a statute that increases punishment, if applied retroactively, could violate due process.' ” Id. (quoting Campbell v. United States Parole Comm'n, 563 F.Supp.2d 23, 26 (D.C.Cir.2008)) (internal citations omitted).
As to foreseeability, the ICA noted that in accordance with HAR § 17–1204–17, Petitioner's presentence credit was to be applied to his first seven-year minimum term and not to each minimum term. Id. Because “HAR § 17–1204–17 was promulgated in 1985[,]” the ICA maintained that “it was not unexpected that HRS § 706–671 would be interpreted to mean that presentence credit could only be applied once to the aggregate minimum sentence.” Id. The ICA further reasoned that “ Tauiliili was not a reformation or departure from an existing HPA rule [, but, r]ather, it was consistent with HPA's longstanding practice of only applying presentence credit once to a minimum sentence expiration date.” Id. ().
The ICA also explained that the “HPA's application of Tauiliili to [Petitioner] was procedural in nature because the application was to correct HPA's prior misapplication of presentence credit in order to conform to the law as it existed prior to and after Tauiliili.” Id. The ICA held that, in sum, application of Tauiliili did not violate Petitioner's due process rights under the Hawai‘i or United States Constitutions. Id.
Finally, with respect to Petitioner's argument that Petitioner and the sentencing court assumed that the presentence credit would apply to both of his consecutive terms,...
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