State v. Gomes

• Decision Date: 23 March 2005
• Docket Number: No. 26466.,26466.
• Citation: 107 Haw. 253,112 P.3d 739
• Parties: STATE of Hawai'i, Plaintiff-Appellee, v. Ronald GOMES, Defendant-Appellant.
• Court: Hawaii Court of Appeals

112 P.3d 739

107 Haw. 253

STATE of Hawai'i, Plaintiff-Appellee, v. Ronald GOMES, Defendant-Appellant.

No. 26466.

Intermediate Court of Appeals of Hawaii.

March 23, 2005.

Certiorari Granted April 13, 2005.

Ronald Gomes, pro se, on the briefs, defendant-appellant.

Arleen Y. Watanabe, Deputy Prosecuting Attorney, County of Maui, on the briefs, for plaintiff-appellee.

BURNS, C.J., and LIM, J.; with NAKAMURA, J., concurring separately.

Opinion of the court by LIM, J.

Ronald Gomes (Gomes, Appellant or Petitioner) appeals (S.C. No. 26466), pro se, the March 8, 2004 order of the Circuit Court of the Second Circuit¹ that denied his "Petition to Correct Illegally Imposed Sentence and Conviction Pursuant to Hawaii Appellate [sic] Procedure Rule 35."² We affirm.

I. Background.

We first encountered this case more than a decade ago, in S.C. No. 16476:

We granted Ronald Gomes's application for certiorari after the Intermediate Court of Appeals (ICA) affirmed the order of the second circuit court denying Gomes's Hawai'i Rules of Penal Procedure (HRPP) Rule 32(d) motion to withdraw his nolo contendere plea (Motion). Based on our review of the record, we vacate the ICA's decision and order that it be depublished.

. . . .

Gomes was charged by complaint [in Cr. No. 91-0374(2)] with Sexual Assault in the First Degree, Hawai'i Revised Statutes (HRS) § 707-730 (Supp.1992), and Murder in the Second Degree, HRS § 707-701.5 (Supp.1992), allegedly committed on November 24, 1991, on the island of Maui. At the time of the alleged offense, Gomes was in the company of Lucio Gonzalez [Gonzalez] and James Houdasheldt [Houdasheldt].

After initially pleading not guilty, Gomes changed his plea on the murder charge to nolo contendere, or "no contest," on June 26, 1992. In exchange for the change of plea, the prosecution dropped the sexual assault charge.

The change of plea hearing was conducted in accordance with Rule 11(c), HRPP (1988); however, Gomes did not explicitly admit guilt nor did he furnish the court with his version of the incident. Instead, and at the court's request, the prosecutor summarized the particulars of the offense. The essence of the prosecutor's description was that Gomes and Gonzalez both sexually assaulted the victim at knife point. Gomes then purportedly restrained the victim while Gonzalez stabbed her repeatedly. . . .

State v. Gomes, 79 Hawai'i 32, 33, 897 P.2d 959, 960 (1995) (footnotes omitted). Ultimately, the supreme court held:

Based on the foregoing analysis, we hold that because Gomes has provided plausible and legitimate reasons to support the withdrawal of his nolo contendere plea and the prosecution has failed to show prejudice, the circuit court abused its discretion in denying his motion. Therefore, we vacate the judgment of conviction, remand to the circuit court for issuance of an order granting Gomes's HRPP Rule 32(d) motion to withdraw his nolo contendere plea, and order the ICA's decision depublished.

Gomes, 79 Hawai'i at 40, 897 P.2d at 967.

On remand, and pursuant to a jury's verdict, the circuit court convicted Gomes of the charged offense of sexual assault in the first degree and the included offense of reckless manslaughter. At the July 2, 1996 sentencing hearing, the circuit court first entertained the State's June 27, 1996 motion for extended terms of imprisonment, in which the State had alleged that Gomes was a "multiple offender" under HRS § 706-662(4)(a) (Supp.1992).³ Defense counsel noted that the State's motion had been filed "at the last possible 15 minutes or so, late Thursday, two working days before the sentencing." However, defense counsel stated, "I'm prepared to respond orally to that." The circuit court noted that the State's motion was predicated upon the proposition that Gomes was a "multiple offender." The circuit court commented, "He is being sentenced for two or more felonies. No question about that." At the conclusion of the lengthy sentencing hearing, the circuit court granted the State's motion, and sentenced Gomes accordingly to concurrent, extended terms of life with the possibility of parole for the sexual assault and twenty years for the manslaughter.

On direct appeal (S.C. No. 20010) from the July 5, 1996 judgment of conviction and sentence, Gomes alleged three trial and sentencing errors. One of them was whether the circuit court had erred in granting the State's motion for extended terms of imprisonment. Gomes made many arguments in support of this particular point of error, most notably the following: Gomes complained that he was not given adequate notice of nor opportunity to be heard on the State's motion. He also noted, "Appellant had no prior felony record whatsoever." S.C. No. 20010 Opening Brief at 29. Gomes advised that the predicate finding—"that a sentence of imprisonment for an extended term is necessary for protection of the public[,]" HRS § 706-662(4)—could not be made unless proved by the State beyond a reasonable doubt.

The supreme court disposed of Gomes's direct appeal via summary disposition order, as follows: "Upon careful review of the record and the briefs submitted by the parties and having given due consideration to the arguments made and the issues raised by the parties, IT IS HEREBY ORDERED that the judgment(s) or order(s) from which the above-captioned appeal is taken is hereby affirmed." State v. Gomes, No. 20010, 90 Hawai'i 472, 979 P.2d 68 (Haw. filed October 7, 1998) (SDO) (format modified; capitalization in the original). A notice and judgment on appeal affirming the July 5, 1996 judgment was filed on October 22, 1998.

On July 7, 1999, Gomes, newly pro se, initiated S.P.P. No. 99-0008(2), with a motion to correct or reduce sentence brought "pursuant to [HRPP] Rule 35." For no apparent reason, Gomes cited HRS § 706-606.5(1)(a) (Supp.1992)—the repeat offender, mandatory minimum term sentencing statute—and argued, in pertinent part, that

sentencing of a convicted felon to an extended term, shall only be permitted when the convict had prior felony convictions, in either the instant jurisdiction, or some other prior jurisdiction.

Petitioner herin [sic], had no prior conviction which would give eligibility to an extended term of imprisonment conviction [emphasis added].

Petitioner hereby challenges the sentence imposed in Count One, Sexual Assault in the First Degree, Life with the possibility of parol. This sentence had been imposed as an extended term, and is illegal pursuant HRS § 706-606.5(1)(a).

(Bolding and latter brackets in the original.) On July 30, 1999, the circuit court summarily denied Gomes's motion, "pursuant to the Notice and Judgment on Appeal from the Supreme Court filed on October 22, 1998, affirming the judgment, guilty conviction and sentence of the Second Circuit Court."

Continuing pro se on appeal (S.C. No. 22774) of the circuit court's denial of his motion to correct or reduce sentence, Gomes argued, in relevant part, that (1) he could not be convicted of the sexual assault because it was the greater offense of, or merged into, the lesser included offense of manslaughter, under HRS §§ 701-109(1)(a) and -109(1)(e) (1985), respectively; and (2) the circuit court erred in granting the State's motion for extended terms, because (a) he was not given adequate notice of nor opportunity to be heard on the State's motion, (b) he was never previously convicted of a felony, and (c) the State must prove all of the bases for an extended term beyond a reasonable doubt. To support issue (2)(b), Gomes cited the "persistent offender" basis for an extended term contained in HRS § 706-662(1) (Supp. 1992)—inexplicably, because the State had moved for and the circuit court had imposed his extended terms on the "multiple offender" basis contained in HRS § 706-662(4)(a).

The supreme court summarily affirmed the circuit court's denial of Gomes's motion to correct or reduce sentence, concluding that "(1) the circuit court did not err in allowing Gomes to be convicted of both sexual assault in the first degree in violation of HRS § 707-730 and manslaughter in violation of HRS § 707-702; and (2) the circuit court did not err in imposing extended terms of imprisonment pursuant to HRS § 706-662(4)." Gomes v. State, No. 22774, 93 Hawai'i 332, 3 P.3d 50 (Haw. filed June 28, 2000) (SDO). On October 5, 2000, Gomes, still pro se, filed a petition for writ of habeas corpus in the federal district court (Civil No. 00-00652 SOM-BMK). For his grounds, Gomes wrote:

The conviction of Manslaughter, and Sexual Assault stem from the same crime, and are one and the same crime and not two distinct and different crimes.

Without committing the crime Sexual Assault, there would or could have been no Manslaughter. As one offense led to the other, each offense is related to each other, and must be considered one offense.

Petitioner had been illegally sentenced to an Extended term contrary to guidelines pursuant to statute[.]

Statute clearly states that a person may be sentenced to an extended term of ocnfinement [sic], if that person is a repeat offender, or has a history of violant [sic] behavior, and must be considered a danger to the community. This is not the case at the case at bar.

(Preprinted matter omitted; bolding in the original.) In a brief in support of his petition, Gomes once again argued that (1) he could not be convicted of both offenses because "Sexual Assault and Manslaughter are included offenses, if committed in the same crime [sic] period"; and (2) his prison terms could not be extended because he had no previous felony convictions. On issue (2), Gomes argued for the first time that his prison terms were unconstitutionally extended because the factual bases therefor had not been charged and had been found by the judge instead of the jury, citing the recent Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), State v. Tafoya, 91 Hawai'i 261, 982 P.2d 890 (1999), and other related cases.

On March...