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Electronically Filed
Supreme Court
SCAP-XX-XXXXXXX
28-JUN-2018
08:36 AM
SCAP-XX-XXXXXXX
IN THE SUPREME COURT OF THE STATE OF HAWAI#I
DONALD B. MARKS,
Petitioner-Appellant,
vs.
STATE OF HAWAI#I,
Respondent-Appellee.
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CAAP-XX-XXXXXXX; S.P.P. NO. 14-1-0008; CR. NO. 02-1-2410)
SUMMARY DISPOSITION ORDER
(By: Recktenwald, C.J., Nakayama, McKenna, Pollack, and Wilson JJ.)
Petitioner-Appellant Donald B. Marks appeals from the
Circuit Court of the First Circuit’s (circuit court)1 October 21,
2014 Order Denying Motion to Withdraw No Contest Plea Pursuant to
1
The Honorable Richard K. Perkins presided.
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HRPP Rule 32(d)2 and February 17, 2016 Order Denying Motion for
Correction of Illegal Sentence Pursuant to HRPP Rule 35(a).3
In 2002, Marks was indicted for murder in the second
degree, and subsequently entered a no contest plea. The State
filed a motion for extended term of imprisonment as a persistent
offender pursuant to HRS §§ 706-661(1) (Supp. 2003) and 706-
662(1) (Supp. 2003). The circuit court granted the State’s
motion, finding that he was “a persistent offender whose
imprisonment for an extended term of life WITHOUT the possibility
of parole is necessary for the protection of the public,” citing
the increase in the severity of crimes in Marks’s criminal
history, his extensive drug and alcohol abuse, and his abuse of
his ex-wife. In granting the State’s motion, the circuit court
sentenced Marks on November 16, 2004 to imprisonment for life
without the possibility of parole. Defense counsel for Marks did
not appeal his conviction and sentence.
In 2005, Marks filed his first Hawai#i Rules of Penal
Procedure (HRPP) Rule 40 petition, arguing that his counsel was
ineffective for failing to object to and appeal his extended term
sentence based on Apprendi v. New Jersey, 530 U.S. 466 (2000),
2
The circuit court styled this order as: “ORDER DENYING MOTION TO
WITHDRAW NO CONTEST PLEA PURSUANT TO HRPP RULE 32(d) AND GRANTING HEARING ON
MOTION FOR CORRECTION OF ILLEGAL SENTENCE PURSUANT TO HRPP RULE 35(a).”
3
The circuit court styled this order as: “ORDER DENYING MOTION FOR
CORRECTION OF ILLEGAL SENTENCE PURSUANT TO HRPP RULE 35(a) (NONCONFORMING
PETITION FOR POST CONVICTION RELIEF).”
2
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and Blakely v. Washington, 542 U.S. 296 (2004). The circuit
court denied Marks’s petition, finding that Hawaii’s extended
term sentencing scheme did not violate Apprendi or Blakely.
Marks appealed to the ICA, but the appeal was dismissed due to
Marks’s failure to file an opening brief.
In 2009, Marks filed a second HRPP Rule 40 petition,
reiterating the arguments in his first petition and additionally
arguing that: (1) HRS § 706-662 was unconstitutional; (2) he
agreed to change his plea to no contest because the State
“personally guaranteed” him that it would not seek an extended
term of imprisonment; and (3) his indictment was defective
because it did not state that he would receive an extended term
sentence. The circuit court denied Marks’s second petition, and
Marks appealed.
In a summary disposition order, the ICA determined that
“Marks [was] not entitled to collaterally attack his sentence on
the ground that a judge, and not a jury, made the findings
necessary for the extended term sentence.” The ICA further held
that Marks’s remaining claims were without merit. Accordingly,
the ICA affirmed the circuit court’s denial of his second
petition. We rejected Marks’s application for writ of
certiorari.
In 2014, Marks filed a motion for correction of illegal
sentence pursuant to HRPP Rule 35, arguing that his sentence was
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illegal in violation of Apprendi and Blakely. The State, in its
response, conceded that Marks’s sentence was illegal.
Subsequently, Marks filed a motion to withdraw no
contest plea pursuant to HRPP Rule 32(d), arguing that his change
of plea was “not voluntarily made with full understanding of the
consequences” because his counsel mislead Marks to believe that
the State would not seek an extended term sentence.
The circuit court treated both motions as non-
conforming HRPP Rule 40 petitions. The circuit court denied
Marks’s motion to withdraw his no contest plea and granted a
hearing on the motion for correction of illegal sentence.
In denying Marks’s motion to withdraw no contest plea,
the circuit court determined: (1) that Marks’s claims were
either waived or raised and ruled upon in prior HRPP Rule 40
petitions; (2) there were no extraordinary circumstances to
justify Marks’s failure to raise the claims previously; and (3)
the motion was without merit, patently frivolous, and without a
trace of support in the record.
The circuit court ultimately denied Marks’s motion for
correction of illegal sentence, rejecting the State’s concession
and determining that “a defendant sentenced to an extended term
that became final after Apprendi but prior to Blakely or Booker
is not entitled to relief on collateral attack.” The circuit
court also determined that Marks’s remaining claims were without
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merit.
Marks appealed to the ICA challenging the circuit
court’s denial of both motions. Marks argued that his no contest
plea was neither knowingly nor intelligently given. Marks also
argued that his extended term sentence was illegal under
Apprendi.
In response, the State again conceded that Marks’s
extended term sentence was illegal and also argued that Marks’s
remaining claims were previously raised and ruled upon or waived.
Marks replied that the State’s concession did not inhibit his
right to litigate on remand the defects in the charging, entry of
plea, and sentencing procedures.
Marks applied for transfer to this court, which we
granted.
First, we address Marks’s motion to withdraw no
contest plea under HRPP Rule 40. HRPP Rule 40 provides that
“Rule 40 proceedings shall not be available and relief thereunder
shall not be granted where the issues sought to be raised have
been previously ruled upon or were waived.”
In his second HRPP Rule 40 petition, Marks argued in
his supplemental petition that he agreed to change his plea after
the State “personally guaranteed” that it would not seek an
extended term of imprisonment. The circuit court denied Marks’s
second HRPP Rule 40 petition, the ICA affirmed, and this court
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denied Marks’s application for writ of certiorari. In Marks’s
motion to withdraw no contest plea, he makes essentially the same
argument that he made in his second petition, again alleging that
Marks agreed to change his plea after the State promised not to
seek an extended term sentence.4 Thus, we hold that Marks’s
motion to withdraw no contest plea was raised and ruled upon in a
prior HRPP Rule 40 petition. Accordingly, we affirm the circuit
court’s denial of Marks’s motion to withdraw no contest plea.
Second, we address Marks’s motion for correction of
illegal sentence. In Flubacher, we recently stated:
[W]e hold that the line of demarcation is Apprendi,
not Booker or Cunningham, in determining whether
extended term sentences imposed without jury findings
are subject to collateral attack. Accordingly, we
correct the conclusion in Loher and subsequent
opinions that the legal landscape only became clear
after Apprendi (2000), Blakely (2004), and Booker
(2005), were taken together. To the extent that our
prior opinions and the ICA’s prior opinions are
contrary to our holding, they are now overruled.
Here, a judge, and not a jury, made the required
finding that Flubacher’s extended term sentence was
necessary for the protection of the public. That
required finding exposed the defendant to a greater
punishment than that authorized by the jury’s guilty
verdict. Therefore, Flubacher’s extended term
sentences were imposed in an illegal manner because
they violate Apprendi.
Flubacher v. State, 142 Hawai#i 109, 118-19, 414 P.3d 161, 170-71
(2018) (citations, quotation marks, and brackets omitted).
4
The only difference between the two claims is that Marks now
specifies that it was his counsel that informed him of the State’s alleged
agreement.
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Here, a judge, and not a jury, determined in 2004 that
Marks’s extended term sentence was necessary for the protection
of the public, which is contrary to our holding in Flubacher.
Therefore, we conclude that Marks’s extended term sentence was
imposed in an illegal manner, and vacate the circuit court’s
order denying the motion for correction of illegal sentence with
regards to the extended term sentence.
For the foregoing reasons, we: (1) vacate in part the
October 21, 2014 Order Denying Motion to Withdraw No Contest Plea
Pursuant to HRPP Rule 32(d) solely as to the extended term
sentence, (2) vacate in part the circuit court’s February 17,
2016 Order Denying Motion for Correction of Illegal Sentence
Pursuant to HRPP Rule 35(a) solely as to the extended term
sentence, (3) vacate in part the circuit court’s November 8, 2004
Judgment in Cr. No. 02-1-2410 solely as to the extended term
sentence, (4) vacate the circuit court’s November 16, 2004 Order
Granting Motion for Extended Term of Imprisonment as a Persistent
Offender, and (5) remand this case for further proceedings
consistent with this opinion. We affirm the circuit court’s
October 21, 2014 Order Denying Motion to Withdraw No Contest Plea
Pursuant to HRPP Rule 32(d) and February 17, 2016 Order Denying
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Motion for Correction of Illegal Sentence Pursuant to HRPP Rule
35(a) with respect to all other claims.
DATED: Honolulu, Hawai#i, June 28, 2018.
David Glenn Bettencourt /s/ Mark E. Recktenwald
for appellant
/s/ Paula A. Nakayama
Sonja P. McCullen
for appellee /s/ Sabrina S. McKenna
/s/ Richard W. Pollack
/s/ Michael D. Wilson
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