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Electronically Filed
Supreme Court
SCWC-XX-XXXXXXX
29-JUN-2018
07:41 AM
SCWC-XX-XXXXXXX
IN THE SUPREME COURT OF THE STATE OF HAWAIʻI
________________________________________________________________
DAVID PREBLE,
Petitioner/Petitioner-Appellant,
vs.
STATE OF HAWAIʻI,
Respondent/Respondent–Appellee.
_______________________________________________________________
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-XX-XXXXXXX; S.P.P. NO. 11-1-0054; CR NO. 99-2362)
SUMMARY DISPOSITION ORDER
(By: Recktenwald, C.J., Nakayama, McKenna, Pollack, and Wilson, JJ.,)
Petitioner David Preble (Preble) was convicted of
several counts each of first-degree sexual assault and third-
degree sexual assault in 2001 and sentenced to extended terms of
imprisonment. On direct appeal, the ICA affirmed his
convictions in 2004, and this court denied his application for
writ of certiorari on January 13, 2005. Preble filed a petition
pursuant to Hawaiʻi Rules of Penal Procedure (HRPP) Rule 40 in
2011. The circuit court denied his petition without a hearing
on January 30, 2014. Preble appealed the circuit court’s denial
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to the Intermediate Court of Appeals (ICA), which affirmed the
circuit court in a summary disposition order filed March 17,
2017. Subsequently, in his amended Rule 40 petition Preble
argued his extended term sentences were “illegal sentences”
under Apprendi v. New Jersey, 530 U.S. 446 (2000). We accepted
his application for writ of certiorari on July 5, 2017. We hold
that under our recent decision in Flubacher, Preble is entitled
to relief under HRPP Rule 40. Flubacher v. State, 142 Hawaiʻi
109, 414 P.3d 161 (2018); HRPP Rule 40(a).
I. Background
Preble was indicted on multiple charges of sexual
assault in the first degree and sexual assault in the third
degree on December 2, 1999. His first two trials on the charges
resulted in mistrials. In the third trial, which concluded June
7, 2001, a jury found Preble guilty of three counts of first-
degree sexual assault and eight counts of third-degree sexual
assault in violation of Hawaiʻi Revised Statutes (HRS) § 707-
730(1)(b)(1993) (a class A felony) and HRS § 707-732(1)(b)(1993)
(a class C felony). On July 26, 2001, the state filed a motion
for extended terms of imprisonment. On October 16, 2001, the
circuit court heard argument on the state’s motion for extended
terms of imprisonment and sentencing of repeat offender and
granted the motion.
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The court sentenced Preble to extended terms of
imprisonment under HRS § 706-662(4)(a) (Supp. 1999), the
multiple offender statute. The extended terms comprised (1) ten
years on each third-degree sexual assault count (extended from
five years), with mandatory minimum terms of three years and
four months, and (2) life with the possibility of parole on each
first-degree sexual assault count (extended from twenty years),
with mandatory minimum terms of six years and eight months. HRS
§ 706-662(4)(a) required the sentencing court to find that the
“defendant is a multiple offender whose criminal actions were so
extensive that a sentence of imprisonment for an extended term
is necessary for protection of the public.” Id. Among the
findings of fact the court made in support of imposing extended
terms on Preble were that “Defendant is unable to abide by rules
and instructions and has been terminated from drug programs” and
“Defendant has been provided with opportunities for
rehabilitation including the Victory Ohana program. Defendant
was unable to benefit and follow the rules of such programs.”
II. Discussion
Under our recent decision in Flubacher, Preble is
entitled to relief under Rule 40. Flubacher, 142 Hawaiʻi 109,
414 P.3d 161. In Flubacher, we recognized the applicability of
the United States Supreme Court’s decision in Apprendi v. New
Jersey, 530 U.S. 466 (2000) to Hawaii’s system of extended term
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sentencing. Apprendi held that, “Other than the fact of a prior
conviction, any fact that increases the penalty for a crime
beyond the prescribed statutory maximum must be submitted to a
jury, and proved beyond a reasonable doubt.” Id. at 490. The
Supreme Court held, as well, that “it is unconstitutional for a
legislature to remove from the jury the assessment of facts that
increase the prescribed range of penalties to which a criminal
defendant is exposed.” Id. at 490.
Applying these rules to the facts in Flubacher, we
noted that “a judge, not a jury, made the required finding that
Flubacher’s extended term sentence was necessary to the public.”
142 Hawaiʻi at 118, 414 P.3d at 170. As we concluded, “That
‘required finding expose[d] 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.” Id. at 118-
19, 414 P.3d at 170-71 (quoting Apprendi, 530 U.S. at 494). The
same is true of the judge-made findings supporting Preble’s
extended sentences. For that reason, we conclude that Preble’s
extended term sentences were imposed in an illegal manner.
III. Conclusion
Because we conclude Preble’s extended term sentences
were imposed in an illegal manner, we vacate section D of the
ICA’s summary disposition order, the portion of the ICA’s March
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31, 2017 Judgment on Appeal solely relating to extended
sentences, the circuit court’s January 30, 2014 “Order Denying
Post-Conviction Relief Without a Hearing” denying Preble’s HRPP
Rule 40 petition, the portions of the circuit court’s “Amended
Judgment Guilty Conviction and Sentence” filed on November 19,
2001, solely relating to extended sentences, and the portions of
the “Findings of Fact, Conclusions of Law and Order Granting
State’s Motion for Extended Term of Imprisonment” filed December
6, 2001, solely relating to extended sentences. We affirm the
ICA’s summary disposition order, and the ICA’s March 31, 2017
Judgment on Appeal, as to all other matters. We remand this
case to the circuit court for further proceedings consistent
with this summary disposition order.
DATED: Honolulu, Hawaiʻi, June 29, 2018.
David Preble /s/ Mark E. Recktenwald
Petitioner-Appellant,
pro se /s/ Paula A. Nakayama
Brian R. Vincent /s/ Sabrina S. McKenna
Deputy Prosecuting Attorney
City and County of Honolulu /s/ Richard W. Pollack
for Respondent-Appellee
/s/ Michael D. Wilson
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