State v. Kamana`O

• Decision Date: 23 July 2008
• Docket Number: No. 28236.,28236.
• Citation: 188 P.3d 724
• Parties: STATE of Hawai`i, Respondent/Plaintiff-Appellee v. Andrew K. KAMANA`O, Petitioner/Defendant-Appellant.
• Court: Hawaii Supreme Court

188 P.3d 724 (Hawaii 2008)

STATE of Hawai`i, Respondent/Plaintiff-Appellee v. Andrew K. KAMANA`O, Petitioner/Defendant-Appellant.

No. 28236.

Supreme Court of Hawai`i.

July 23, 2008.

Mary Ann Barnard, Honolulu, for petitioner/defendant-appellant.

Donn R. Fudo, Deputy Prosecuting Attorney, City and County of Honolulu, for respondent/plaintiff-appellee.

NAKAYAMA, ACOBA, and DUFFY, JJ.; and MOON, C.J., and LEVINSON, J., Dissenting.

Opinion of the Court by ACOBA, J.

Petitioner/Defendant-Appellant Andrew K. Kamana`o (Petitioner) seeks review of the judgment of the Intermediate Court of Appeals (the ICA) filed on January 3, 2008,

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pursuant to its December 13, 2007 Summary Disposition Order (SDO)¹ affirming the October 16, 2006 amended judgment of the first circuit court² (the court) convicting Petitioner of two counts of rape in the first degree, Hawai`i Revised Statutes (HRS) § 707-730(1)(a)(i) (1985) (Counts VI and IX); and one count of sodomy in the first degree, HRS § 707-733(1)(a)(i) (1985) (Count XI). The appeal to the ICA was from the court's sentence of Petitioner to twenty years of imprisonment for each count, with a mandatory minimum term of five years on each count as a repeat offender, with the terms of imprisonment for Counts IX and XI to run concurrently with each other and consecutively to Count VI, with credit for time served.³

We hold that the ICA did not gravely err in affirming the court's judgment because in Petitioner's case (1) under HRS § 706-606.5 (1985),⁴ mandatory minimum sentences must be imposed under specified conditions; (2) pursuant to HRS § 706-606.5, the court may run mandatory minimum sentences consecutively for multiple offenses; (3) mandatory minimum sentences imposed on repeat offenders pursuant to HRS § 706-606.5 are part of indeterminate maximum sentences; (4) HRS § 706-668 (Special Pamphlet 1975)⁵ requires that multiple sentences imposed by the court shall be served concurrently; (5) HRS § 706-606.5 does not conflict with HRS § 706-668 because the language of the latter may be construed as prohibiting consecutive term sentencing where multiple sentences of imprisonment are imposed at the same time, except that in certain situations such as those contemplated by the repeat offender provisions of HRS § 706-606.5, consecutive term sentencing is permitted; (6) assuming arguendo a conflict between HRS § 706-606.5 and HRS § 706-668 exists, repeat offenders must be sentenced in accordance with HRS § 706-606.5 because a specific statute controls over a general statute concerning a common matter; and (7) inasmuch as Petitioner was sentenced under HRS § 706-606.5 within the parameters described above, Petitioner's consecutive indeterminate maximum sentences do not constitute a violation of the due process and ex post facto provisions of the federal and Hawai`i constitutions.

I.

The following matters, some verbatim, are from the application.

Petitioner was convicted on October 13, 1983 of, inter alia, three Class A felonies. As Petitioner states in his application,

[o]n February 18, 1982[,] the [g]rand [j]ury indicted [Petitioner] for 14 counts, including three Class A felony sexual assault charges and three burglary charges. The incidents giving rise to the charges occurred on September 16, 18, and 29, 1981. On October 13, 1983[, Petitioner] was convicted by a jury of the three counts that are the subject of this appeal, two counts of rape in the first degree in violation of HRS § 707-730, and one count of sodomy in the first degree in violation of HRS § 707-733. All three counts were Class A felonies, requiring a maximum indeterminate prison sentence of 20 years under HRS § 706-659.[⁶] State v. Kamana`o, 103 Hawai`i 315, 82 P.3d 401 (2003).

(Emphasis added.)

This sentence was subsequently vacated and in April 2004, Petitioner was sentenced

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to an extended term. As Petitioner alleges in his application,

[his] first sentence was vacated by the [s]upreme [c]ourt based upon a Fifth Amendment violation claim that he was sentenced to an extended term solely on the grounds that he refused to admit guilt. [Kamana`o], 103 Hawai`i [at] 324, 82 P.3d at 410.

Resentencing hearings were held on April 21 and 23, 2004. The [c]ourt granted . . . [the] motion for an extended term [filed by Respondent/Plaintiff-Appellee State of Hawai`i (Respondent)] under findings other than [Petitioner's] refusal to admit guilt, including psychological harm caused.

On June 21, 2006, the Hawai`i United States district court vacated the extended term sentence under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Petitioner's application states that:

The April 2004 sentences were vacated by the United States District Court of the District of Hawai`i on June 21, 2006 under [Apprendi], the "Apprendi rule," and its progeny. [Petitioner's] extended term sentence of life imprisonment with the possibility of parole ([as a multiple offender pursuant to HRS § 706-662(4)(a) & (b)]) was ruled to have been imposed in violation of the Sixth Amendment to the United States Constitution's right to a trial by jury.

As recounted by Petitioner, at resentencing, the court adjudged that the rape convictions would be served concurrently, but that the sodomy conviction would run consecutively to the rape convictions.

On October 6, 2006[, Petitioner] was resentenced as to Counts 6, 9, and 11, the three Class A counts. The [c]ourt resentenced [Petitioner] to mixed concurrent and consecutive terms, i.e., concurrent 20-year terms as to counts 9 (rape in the first degree) and 11 (sodomy in the first degree), to be served consecutive to a 20-year term as to count 6 (rape in the first degree), with credit for time served.

(Emphasis added.) As noted previously, the court also imposed mandatory minimum sentences of five years, for each of Counts VI, IX and XI, based on Petitioner's status as a repeat offender pursuant to HRS § 706-606.5.⁷

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The court's October 16, 2006 amended judgment⁸ stated as follows:

MANDATORY MINIMUM: FIVE (5) YEARS FOR Counts VI, IX and XI as a Repeat Offender

INCARCERATION:

TWENTY (20) YEARS for each of COUNTS VI, IX and XI.

COUNTS IX AND XI to run concurrently with each other but consecutively to COUNT VI.

Said terms are to run concurrently with Cr. No. 52291.

Defendant is to receive credit for time already served. Mittimus to issue forthwith

OTHER: DEFENDANT IS SENTENCED PURSUANT TO ORDER OF THE U.S. DISTRICT COURT (CIV. NO. 05-00681 SOM-KSC) FILED JUNE 22, 2006.

(Counts I and II: Severed)

[(]Counts IV, V and XIII: Dismissed)

[(]Counts III, VII, VIII, X, XII and XIV: Terms of incarceration have been completed)

Defendant shall provide specimen samples and print impressions as required by H.R.S. Chap. 844D

(Emphases added.) (Capitalization in original.)

The seeming conflict between the concurrent sentencing ordered by the court pursuant to HRS § 706-668⁹ and the consecutive sentencing permitted by HRS § 706-606.5 and also ordered by the court was the apparent dispute at sentencing between the parties. Petitioner states that "in a[n SDO] issued on December 13, 2007[,]" "the ICA . . . affirmed the mixed concurrent and consecutive sentence[.]" The SDO states with respect to the questions raised as follows:

(1) The circuit court was not statutorily barred from imposing consecutive terms. Consecutive terms were authorized by HRS § 706-606.5(1) and (3), as amended in 1981.

(2) Imposition of consecutive sentences was pursuant to HRS § 706-606.5(1) and (3) and was not in violation of federal due process or ex post facto. HRS § 706-606.5(1) and (3) provided adequate notice. See State v. Vinge, 81 Hawai`i 309, 321, 916 P.2d 1210, 1222 (1996).

(3) The consecutive terms were not inconsistent with the District Court's order or Apprendi. State v. Kahapea, 111 Hawai`i 267, 141 P.3d 440 (2006).

SDO at 5.

II.

Petitioner presents the following questions in his Application.

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1. Did the ICA gravely err in holding that the pertinent repeat offender statute, HRS § 706-606.5(1) and (3), permitted consecutive maximum terms when the plain meaning of that provision is that it only provides for consecutive mandatory minimum terms for repeat offenders, and not for consecutive maximum terms?

2. Did the ICA gravely err in upholding a new judicial construction that allows consecutive maximum term sentencing, which was expressly forbidden under the law in effect at the time of the commission of the offenses, as a violation the due process and ex post facto provisions of the federal and Hawai`i constitutions?

Petitioner does not present argument with respect to paragraph (3) of the ICA's SDO pertaining to Apprendi, and, thus, that holding is not discussed. Cf. Hill v. Inouye, 90 Hawai`i 76, 82, 976 P.2d 390, 396 (1998) ("The general rule provides that `[i]ssues not properly raised on appeal will be deemed to be waived.'" (Quoting Pele Def. Fund v. Paty, 73 Haw. 578, 613, 837 P.2d 1247, 1268 (1992).) (Brackets in original.))

III.

On February 12, 2008, Respondent filed a response to the Application. Essentially the response reiterates its Answering Brief arguments. See infra. It repeats Respondent's position that

[(1)] The "mandatory minimum periods of imprisonment" proscribed in HRS § 706-606.5 were part of the statutorily mandated indeterminate terms of imprisonment for the enumerated crimes and not sentences unto themselves. See State v. Feliciano, 107 Hawai`i 469, 503, 115 P.3d 648, 682 (2005) (Acoba, J., dissenting). Therefore, the "sentences" referred to in HRS § 706-606.5(3) that could result from the application of the statute were the "enhanced criminal sentences" that consisted of the indeterminate terms of imprisonment for the underlying crime and the "mandatory minimum period of imprisonment" that directed "how a certain period of the indeterminate term was to be served." [Id.]

. . . .

[(2)] . . . [T]he [court's] authority to order Petitioner to serve...