Peralto v. State, No. 27545 (Hawaii 10/15/2007)
| Decision Date | 15 October 2007 |
| Docket Number | No. 27545.,27545. |
| Parties | MITCHELL PERALTO, Petitioner-Appellant, v. STATE OF HAWAII, Respondent-Appellee. |
| Court | Hawaii Supreme Court |
APPEAL FROM THE FIFTH CIRCUIT COURT (S.P.P. NO. 04-1-0012)
On the briefs:
Mitchell Peralto, pro se.
Richard K. Minatoya, Deputy Prosecuting Attorney, for the respondent-appellee.
SUMMARY DISPOSITION ORDER
The petitioner-appellant Mitchell Peralto appeals from the August 26, 2005 order of the circuit court of the fifth circuit, the Honorable George M. Masuoka presiding, denying his Hawaii Rules of Penal Procedure (HRPP) Rule 40 petition without a hearing.
On appeal, Peralto contends that the circuit court erred in denying his petition because it failed to conclude: (1) that the sentencing court retaliated against him for his successful appeal in State v. Peralto, 95 Hawaii 1, 18 P.3d 203 (2001), by imposing upon him a harsher sentence at his resentencing, in violation of HRS § 706-609 (1993);1 (2) that his new sentence violated his constitutional guarantees against cruel and unusual punishment; and (3) that the ten-year mandatory minimum term of imprisonment imposed in connection with his second-degree murder conviction was imposed in a manner that violated procedures set forth by this court in State v. Tafoya, 91 Hawai`i 261, 982 P.2d 890 (1999).
Upon carefully reviewing the record and the briefs submitted by the parties and having given due consideration to the arguments advanced and the issues raised, we affirm the order of the circuit court for the following reasons:
In his original HRPP Rule 40 petition, Peralto made two arguments: that the imposition of the mandatory minimum sentence for murder in the second degree violated Apprendi v. New Jersey, 530 U.S. 466 (2000); and (2) that the imposition of two consecutive life sentences with the possibility of parole was cruel and unusual punishment, in violation of the eighth amendment to the United States Constitution and article I, section 12 of the Hawai`i Constitution.
On appeal, however, Peralto does not cite to or rely upon Apprendi. This is not surprising insofar as this court, subsequent to his petition but prior to his appeal, ruled that Apprendi and its progeny do not implicate mandatory minimum sentencing. See State v. Gonsalves, 108 Hawai`i 289, 296, 119 P.3d 597, 604 (2005) (); see also State v. White, 110 Hawai`i 79 86, 129 P.3d 1107, 1114 (2006) .
Instead, Peralto makes a number of new arguments for the first time on appeal. He has, therefore, waived those arguments, for, as this court has noted,
[a]s a general rule, if a party does not raise an argument at trial, that argument will be deemed to have been waived on appeal; this rule applies in both criminal and civil cases. See State v. Ildefonso, 72 Haw. 573, 584, 827 P.2d 648, 655 (1992) (); State v. Hoglund, 71 Haw. 147, 150, 785 P.2d 1311, 1313 (1990) (); Ass['n] of Apt[.] Owners of Wailea Elua v. Wailea Resort Co., Ltd., 100 Hawai`i 97, 107, 58 P.3d 608, 618 (2002) ().
State v. Moses, 102 Hawaii 449, 456, 77 P.3d 940, 947 (2003) (some brackets in original and some added). Specifically, by not raising them below, Peralto waived his arguments: (1) that the prosecution and the court retaliated against him by imposing a harsher sentence, in violation of HRS § 706-609, see supra note 1; and (2) that the sentencing court violated Tafova in imposing a mandatory minimum sentence for his murder conviction.
Nevertheless, insofar as Peralto's "retaliation" argument could possibly be construed as a variation of his eighth amendment argument and his Tafova, argument could with equal effort be considered an iteration of his Apprendi argument, we address them on their merits.
Peralto argues that under his original sentence of life without the possibility of parole for murder in the second degree he was, pursuant to HRS §§ 706-665 and -657, eligible for commutation of the sentence after twenty years but, following his resentencing to life with the possibility of parole, the Hawaii Paroling Authority (HPA) set his mandatory minimum term at sixty-five years,2 resulting, he argues, in a harsher sentence,3 in violation of HRS § 706-609, see supra note 1, that effectively constitutes a "death penalty" and violates his protections against cruel and unusual punishment.
In State v. Loa, 83 Hawai`i 335, 925 P.2d 1258 (1996), and State v. Iaukea, 56 Haw. 343, 537 P.2d 724 (1975), the defendants committed their crimes in a similarly cruel manner. See Loa, 83 Hawaii at 339, 926 P.2d at 1262 {); Iaukea, 56 Hawaii at 346-47, 537 P.2d at 727-28 (). The sentencing court imposed sentences equally onerous as those received by Peralto. See Loa, 83 Hawai`i at 355, 926 P.2d at 1278 (); Iaukea, 56 Haw. at 345, 537 P.2d at 727 (life imprisonment). This court, nevertheless, concluded in both Loa, 83 Hawai`i at 356-57, 925 P.2d at 1279-80, and Iaukea, 56 Haw. at 361, 537 P.2d at 736, that the sentences imposed did not violate the defendants' constitutional protections against cruel and unusual punishment.
In the present matter, in light of the details of Peralto's crimes, it cannot be said that the circuit court erred in concluding that the sentencing court did not violate Peralto's constitutional protections against cruel and unusual punishment in imposing the sentence that it did, insofar as the sentence does not "'shock the conscience of reasonable persons or . outrage the moral sense of the community.'" Loa, 83 Hawai`i at 357, 926 P.2d at 1280 (quoting State v. Kumukau, 71 Haw. 218, 227, 787 P.2d 682, 687 (1990)), quoted in State v. Kahapea, 111 Hawai`i 267, 282, 141 P.3d 440, 455 (2006). The circuit court did not, therefore, err in denying Peralto's petition without a hearing on this issue. See Hutch v. State, 107 Hawaii 411, 414, 114 P.3d 917, 920 (2005).
As for Peralto's argument that his subsequent resentencing violated HRS § 706-609, the commutation of which Peralto speaks is commutation of a term of life without the possibility of parole to a term of life with the possibility of parole — precisely the sentence he, in fact, received at his resentencing.4 He essentially argues that his initial sentence gave him hope of a change after twenty years, whereas the current sentence requires him to wait sixty-five years to hope for a change. But the hoped-for change under his initial sentence was the chance to have a minimum sentence set by the HPA, a minimum sentence which he, in fact, received upon imposition of the new sentence. It is clear on this analysis alone that the current sentence is not harsher.
Moreover, the HPA's actions were only a collateral effect of the sentence imposed by the circuit court; the HPA's setting of a minimum term sentence of sixty-five years was wholly independent of the circuit court's resentencing Peralto to a lesser sentence of life with the possibility of parole on the murder charge and does not constitute part of Peralto's sentence. See Keawe v. State, 79 Hawai`i 281, 290, 901 P.2d 481, 490 (1995) . And, we note, Peralto's resentencing did not threaten to affect adversely his parole status, as was the case in Keawe, 79 Hawai`i at 289, 901 P.2d at 489, but, in fact, moved the date for the issuance of the minimum term before parole became available forward, in time by at least twenty years.
We therefore conclude that the circuit court correctly denied Peralto's HRPP Rule 40 petition without a hearing on this. issue, Hutch, 107 Hawaii at 414, 114 P.3d at 920.
Peralto's Tafoya argument can be best summarized as arguing (1) that the imposition of a mandatory minimum term of imprisonment is subject to the same constitutional constraints...
To continue reading
Request your trial