State v. Gomes

Decision Date26 May 2005
Docket NumberNo. 26466.,26466.
Citation107 Haw. 308,113 P.3d 184
PartiesSTATE of Hawai`i, Plaintiff-Appellee-Respondent, v. Ronald GOMES, Defendant-Appellant-Petitioner.
CourtHawaii Supreme Court

Ronald Gomes, on the writ, pro se.

MOON, C.J., LEVINSON, and NAKAYAMA, JJ.; and ACOBA, J., concurring separately, with whom DUFFY, J., joins.

Opinion of the Court by LEVINSON, J.

On April 6, 2005, the defendant-appellant-petitioner Ronald Gomes filed an application for a writ of certiorari, requesting that we review the published opinion of the Intermediate Court of Appeals (ICA) filed on March 23, 2005 (the ICA's opinion, 107 Hawai`i 253, 112 P.3d 739, 2005 WL 668610,), affirming the March 8, 2004 order of the circuit court of the second circuit, the Honorable Shackley F. Raffetto presiding, denying Gomes's petition to correct illegally imposed sentence and conviction, pursuant to Hawai`i Rules of Penal Procedure (HRPP) Rule 35.

In his application, Gomes merely states that he "hereby seeks to raise these issues in the Supreme Court of the State of Hawaii."

On April 12, 2005, we granted certiorari solely to clarify the issue of whether relief under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), may be afforded on collateral attack. In accordance with the decision of the United States Court of Appeals for the Ninth Circuit in United States v. Sanchez-Cervantes, 282 F.3d 664 (9th Cir.2002), we conclude that it may not. We express no opinion at this time, however, regarding the applicability of the United States Supreme Court's decision in United States v. Booker, ___ U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), to this court's analysis of the viability of our statutory extended term sentencing scheme, as elucidated in State v. Kaua, 102 Hawai`i 1, 72 P.3d 473 (2003), and State v. Rivera, 106 Hawai`i 146, 102 P.3d 1044 (2004). Accordingly, we hold that the ICA erred in reaching the merits of Gomes's Apprendi claim, but we nevertheless affirm the ICA's published opinion for the reasons stated in this opinion.


As a preliminary matter, we adopt the following unchallenged factual background, in abbreviated form, as set forth in the ICA's opinion:

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.
. . . .
State v. Gomes, 79 Hawai`i 32, 33, 897 P.2d 959, 960 (1995) (footnotes omitted). Ultimately, the supreme court . . . vacate[d] the judgment of conviction [and] remand[ed] to the circuit court for issuance of an order granting Gomes's HRPP Rule 32(d) motion to withdraw his nolo contendere plea[.]
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). . . . 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." . . . [T]he 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, . . . [t]he supreme court[,]. . . via summary disposition order, . . . affirmed. State v. Gomes, No. 20010, 90 Hawai`i 472, 979 P.2d 68 (Haw. filed October 7, 1998) (SDO) . . . .
On July 7, 1999, Gomes, . . . pro se, initiated S.P.P. No. 99-0008(2), with a motion to correct or reduce sentence brought "pursuant to [HRPP] Rule 35." . . . On July 30, 1999, the circuit court summarily denied Gomes's motion[.] . . .
Continuing pro se [,] . . . [Gomes] appeal[ed] (S.C. No. 22774) . . . the circuit court's denial of his motion to correct or reduce sentence[.] . . .
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). . . . 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 a judge instead of a 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 21, 2003, the federal district court denied Gomes's habeas corpus petition[,]. . . conclud[ing] that "the Double Jeopardy Clause does not bar Gomes' convictions for manslaughter and sexual assault[,]". . . [and holding] that Gomes's extended terms were "not illegal." . . . [T]he federal district court explained:
Gomes' Apprendi/Tafoya argument was not raised in his appeal to the Hawaii Supreme Court. As the F & R [the magistrate's findings and recommendation] noted, Gomes was required to exhaust his state court remedies. See 28 U.S.C. § 2254(b)(1). After a de novo review of the record, the court agrees with the F & R that Gomes did not exhaust his administrative remedies as to his Apprendi/Tafoya argument. Gomes has not demonstrated that he cannot bring [an HRPP] Rule 40 motion in the Hawaii state courts. Accordingly, and for the reasons set forth in the F & R, which the court adopts, the court dismisses Gomes' Apprendi/Tafoya argument based on his failure to exhaust his state judicial remedies.

On April 21, 2003, Gomes filed a "Notice of Certiorari" to the United States Court of Appeals for the Ninth Circuit. . . . On July 28, 2003, the Ninth Circuit replied: "The request for a certificate of appealability is denied. See 28 U.S.C. § 2253(c)(2)."

On December 22, 2003, Gomes, continuing pro se, filed the petition underlying this appeal, a "Petition to Correct Illegally Imposed Sentence and Conviction Pursuant to Hawaii Appellate [sic] Procedure Rule 35."[1] Gomes asserted that his State and federal constitutional rights to due process and against double jeopardy had been violated, "when petitioner convicted [sic] of Sexual Assault in the First Degree after these charges had been dropped in an earlier plea agreement." "Furthermore," Gomes averred, "the Court erred when sentencing petitioner to an Extended Term of incarceration in bothe [sic] the conviction of Sexual Assault in the First Degree, as well as the conviction of Manslaughter. Petitioner was not a repeat offender which could have given way to this sentence." . . .

On March 8, 2004, the circuit court denied Gomes's petition[.] . . . Gomes filed his notice of this appeal on March 22, 2004.

ICA's opinion, at 253-57, 112 P.3d at 739-43 (footnotes and some quotation signals omitted) (some brackets added and some in original).

On appeal, Gomes argued, inter alia, that he had been unconstitutionally sentenced to an extended term of imprisonment by a judge rather than a jury. ICA's opinion, at 257-589, 112 P.3d at 743-44. The ICA resolved Gomes's argument as follows:

. . . Gomes essentially repeats his Apprendi/Tafoya arguments, but here enhanced in his estimation by cases decided since his writ of habeas corpus was denied, including Blakely v. Washington, 124 S.Ct. 2531, 2537, .
. . . .
. . . [T]he Apprendi/Tafoya arguments [Gomes] makes on appeal have since been foreclosed. Compare U.S. v. Booker, [___ U.S. ___, ___ _ ___,] 125 S.Ct. 738, 749-50, (2005):
. . . This conclusion rests on the premise, common to both systems, that the relevant sentencing rules are mandatory and impose binding requirements on all sentencing judges.

If the [Federal Sentencing] Guidelines as currently written could be read as merely advisory provisions that recommended, rather than required, the selection of particular sentences in response to differing sets of facts, their use would not implicate the Sixth Amendment. We have never doubted the authority of a judge to exercise broad discretion in imposing a sentence within a statutory range. See Apprendi, 530 U.S. at 481,120 S.Ct. 2348, ; Williams v. New York, 337 U.S. 241, 246, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949). Indeed, everyone agrees that the constitutional issues presented by these cases would have been avoided entirely if Congress had omitted from the [Sentencing Reform Act of 1984] the provisions that make the Guidelines binding on district judges. . . . For when a trial judge exercises his discretion to select a specific sentence within a defined range, the defendant has no right to a jury determination of the facts that the judge deems relevant.

With HRS § 706-662(4)(a):
A convicted defendant may be subject

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