State v. Preble

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
13-JUL-2021
08:08 AM
Dkt. 95 AMMO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

STATE OF HAWAI#I, Plaintiff-Appellee, v.
DAVID T. PREBLE, also known as
David Taofiaualii Preble, Defendant-Appellant

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CASE NO. 1PC990002363 (CR. NO. 99-2363))

AMENDED MEMORANDUM OPINION
(By: Ginoza, C.J., and Hiraoka, and Wadsworth, JJ.)

Defendant-Appellant David T. Preble, also known as
David Taofiaualii Preble (Preble), appeals from the Third Amended
Judgment of Conviction and Sentence (Third Amended Judgment),
entered on September 24, 2019, in the Circuit Court of the First
Circuit (circuit court).1/
After Preble was convicted, sentenced, and exhausted
his appeals, he filed a petition for post-conviction relief
pursuant to Hawai#i Rules of Penal Procedure (HRPP) Rule 40. He
later amended his petition to contend that his extended-term
sentences were "illegal sentences" under Apprendi v. New Jersey,
530 U.S. 446 (2000). In June 2018, the Hawai#i Supreme Court
vacated Preble's extended-term sentences, ruling that they were
imposed in an illegal manner because a judge, rather than a jury,
made the required finding that Preble's extended-term sentences
were necessary for protection of the public. Preble v. State,
No. SCWC-XX-XXXXXXX, 2018 WL 3203435, at *1-2 (Haw. June 29,

1/
The Honorable Edward H. Kubo, Jr. presided.
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2018) (2018 SDO). On remand, the circuit court resentenced
Preble on the multiple counts for which he was convicted, and he
now appeals the new sentence.
In this appeal, Preble contends that the circuit court
erred in imposing consecutive rather than concurrent sentences on
remand because: (1) concurrent terms were the law of the case;
(2) reconsideration of the issue of consecutive terms was a
violation of Preble's right to due process and trial by jury; (3)
Plaintiff-Appellee State of Hawai#i (State) waived the issue of
consecutive sentences; and (4) consecutive terms of imprisonment
should not be imposed without supporting findings by a jury.
Additionally, in his reply brief, Preble argues in the
alternative that this case should be remanded for a recalculation
of credit for time served pursuant to the supreme court's recent
decision in State v. Thompson, No. SCWC-XX-XXXXXXX, 2020 WL
2846618 (Haw. June 1, 2020) (SDO).2/
For the reasons set forth below, we vacate the Third
Amended Judgment solely as to the resentencing imposed therein,
and remand for further resentencing proceedings, including an
accurate calculation of Preble's credit for time served,
consistent with this Memorandum Opinion and Thompson.

I. Background

This case has a long history, which is described in
detail in the supreme court's 2018 SDO and our 2017 decision,
Preble v. State, No. CAAP-XX-XXXXXXX, 2017 WL 1050339, at *1
(Haw. App. Mar. 17, 2017) (2017 SDO) (vacated in part by the 2018
SDO).
In brief, a jury found Preble guilty in 2001 of eleven
counts of sexually assaulting three sisters, when each was under
the age of fourteen.3/ Preble was convicted of three counts of

2/
On April 27, 2021, this court entered an order permitting the
parties each to file, within 20 days of the date of the order, a supplemental
brief addressing the import of the Thompson decision to this appeal. Preble
and the State filed their respective supplemental briefs on May 16 and May 17,
2021, respectively.
3/
In two prior trials, the jury was unable to reach a unanimous
verdict.

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first-degree sexual assault, in violation of Hawaii Revised
Statutes (HRS) § 707-730(1)(b) (1993) (a class A felony), and
eight counts of third-degree sexual assault, in violation of HRS
§ 707-732(1)(b) (1993) (a class C felony).
As we described in the 2017 SDO:

[The State] moved for extended terms of imprisonment on the
ground that Preble was a multiple offender whose commitment
for extended terms was necessary for protection of the
public. The Circuit Court granted the motion, finding,
among other things, that extended terms for the protection
of the public were warranted because Preble's assaultive
behavior had continued unabated for twenty years from the
time he was a juvenile; there was documented evidence of his
methamphetamine use; and his assaultive behavior was of an
extreme nature and included a 1991 conviction for
second-degree robbery, which involved his beating of a
73-year-old man, and his sexual assault of three minor girls
under the age of fourteen in the pending case.

Preble, 2017 WL 1050339, at *1 (footnote omitted). The circuit
court sentenced Preble to a term of twenty years, extended to
life with the possibility of parole, for each of the class A
felony convictions, and a term of five years, extended to ten
years, for each of the class C felony convictions. Id. The
circuit court "ran these terms concurrently with each other, but
consecutively to the ten-year term for second-degree robbery that
Preble was still serving."4/ Id.
We further explained in the 2017 SDO:

The Circuit Court entered its amended judgment on
November 19, 2001, and Preble filed a direct appeal. In a
summary disposition order issued on December 3, 2004, this
court affirmed the Circuit Court's amended judgment. State
v. Preble, No. 24680, 2004 WL 2757909 (Hawai #i App. Dec. 3,
2004). In our decision, we addressed and rejected Preble's
claims that: (1) the Circuit Court erred in denying his
motion to dismiss the indictment for pre-indictment delay;
(2) Preble's right to a speedy trial under [HRPP] Rule 48
. . . had been violated; (3) Preble's trial counsel was
ineffective for failing to move to dismiss the indictment
based on the destruction of evidence favorable to the
defense, namely, pubic hair, vaginal swabs, and blood
samples taken from one of the complaining witnesses; (4)
Preble's trial counsel was ineffective in failing to move to
dismiss the indictment based on the statute of limitations;
(5) Preble's trial counsel was ineffective for failing to

4/
In 1991, Preble was sentenced to, among other things, five years
probation, including a one-year jail term, for the second-degree robbery
conviction in Case No. 1PC900001363. On June 16, 1994, Preble's probation was
revoked and he was "resentenced to the custody of the Director of the
Department of Public Safety for a period of ten (10) years of jail
confinement, with credit for time served."

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object to testimony about a purported bad act of Preble; (6)
Preble's trial counsel was ineffective in her handling of a
medical expert witness for the State; (7) the Circuit Court
erred in denying Preble's motion for a bill of particulars;
(8) the Circuit Court punished Preble for exercising his
right to a trial; and (9) the testimonies of the three
complaining witnesses were not credible as a matter of law.
Preble, 2004 WL 2757909, at *1-3.
. . . .
On September 26, 2011, Preble filed a "Petition to
Vacate, Set Aside, or Correct Judgment or to Release
Petitioner from Custody" (Petition) pursuant to HRPP Rule 40
. . . . Preble raised the following grounds for relief in
his Petition: (1) the State destroyed evidence that could
have been exculpatory evidence and thus failed to disclose
evidence favorable to the defendant; (2) trial counsel was
ineffective for failing to move to dismiss the case based on
the destruction of exculpatory evidence; and (3) appellate
counsel was ineffective for failing to raise the issue of
the destruction of exculpatory evidence on appeal. On
November 12, 2013, Preble moved to amend his Petition to add
as an additional ground for relief that his extended term
sentences were illegal [under Apprendi 5/] because they were
based on facts found by a judge, and not a jury. . . .

2017 WL 1050339, at *1-2 (emphasis and footnote added).
On January 30, 2014, the circuit court denied the
Petition. Id. at *2. Preble appealed the denial to this court,
and on March 17, 2017, we affirmed the circuit court in a summary
disposition order. Id. at *1-3. The supreme court accepted
Preble's application for writ of certiorari on July 5, 2017.
Preble, 2018 WL 3203435, at *1.
On June 29, 2018, the supreme court issued the 2018 SDO
vacating Preble's extended-term sentences. Id. at *2. The court
concluded that "Preble's extended-term sentences were imposed in
an illegal manner," in violation of Apprendi, because a judge,
rather than a jury, made the required finding that Preble's
extended-term sentences were necessary for protection of the
public. Id. The supreme court had recently recognized the
applicability of the Apprendi decision to Hawaii's system of
extended-term sentencing in Flubacher v. State, 142 Hawai#i 109,
414 P.3d 161 (2018). See 2018 WL 3203435, at *1. Accordingly,
the court vacated:

5/
In Apprendi, the United States Supreme Court held that, "[o]ther
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." 530 U.S. at 490.

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section D of the ICA's Summary Disposition Order, the
portion of the ICA's March 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.

2018 WL 3203435, at *2. The supreme court affirmed this court's
summary disposition order and March 31, 2017 Judgment on Appeal
as to all other matters, and remanded the case "to the circuit
court for further proceedings consistent with this summary
disposition order." Id.
On remand, the circuit court held a jury trial to
decide, among other things, whether extended terms of
imprisonment were "necessary for the protection of the public[.]"
On June 21, 2019, the jury found that the State had not proven
beyond a reasonable doubt that extended terms of imprisonment
were necessary for the protection of the public. The circuit
court ordered a new presentence investigation report and
scheduled the matter for resentencing.
On August 14, 2019, the State filed a motion to
sentence Preble as a repeat offender and a motion for consecutive
sentencing. At resentencing on September 23, 2019, the circuit
court granted both motions and sentenced Preble to consecutive
terms of imprisonment,6/ totaling thirty-five years, with credit

6/
Preble was sentenced to five years imprisonment, with mandatory
minimum terms of three years and four months, in counts 1-6 and 15-16 ( i.e.,
the class C felony counts), and twenty years imprisonment, with mandatory
minimum terms of six years and eight months, in counts 7, 12, and 13 ( i.e.,
the class A felony counts). The consecutive terms were ordered as follows:

1. Counts 1 and 2 (CW [Minor identified as JLR ( JLR)])
shall be consecutive to Counts 3 to 6 (CW [Minor
identified as JPR (JPR)]), Counts 7, 12 and 13 (CW
[Minor identified as JHR (JHR)]) and to Counts 15 and
16 (CW [JHR] extenuating circumstances)

2. Counts 3 to 6 (CW [JPR]) shall be consecutive to
Counts 1 and 2 (CW [JLR]), Counts 7, 12 and 13 (CW
JHR) and to Counts 15 and 16 (CW [JHR] extenuating
circumstances)
3. Counts 7, 12 and 13 (CW [JHR]) shall be consecutive to
Counts 1 and 2 (CW [JLR]), to Counts 3 to 6 (CW
[JPR]), and to Counts 15 and 16 (CW [JHR] extenuating
(continued...)

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for time served to be determined by the State Department of
Public Safety. On December 18, 2019, the circuit court entered
its "Findings of Fact, Conclusion[s] of Law, and Order Granting
State's Motion for Consecutive Sentencing" (FOFs/COLs).7/
Preble filed his notice of appeal on October 23, 2019.

II. Discussion

A. Law of the Case

Preble contends that the imposition of consecutive
sentences was barred by the law of the case, because the Hawai#i
Supreme Court was "very specific in vacating only the portion of
Preble's sentence pertaining to the extended term of

6/
(...continued)
circumstances)
4. Because of the extenuating circumstances, namely, the
nature of the victimization to [JHR] (i.e., grooming,
intimidation, threats, blackmail, lies, and using her
to springboard his evil desires on the other 2
sisters), the length of her victimization (3 years),
and the degree of sexual and emotional damage done to
[JHR], Counts 15 and 16 shall be separated from Counts
7, 12 and 13, and shall also be consecutive to Counts
1 and 2 (CW [JLR]), Counts 3 to 6 (CW [JPR]), and to
Counts 7, 12 and 13 (CW [JHR]) because dividing
[JHR]'s Counts in this manner will more realistically
reflect the seriousness of the offenses committed to
her and provide just punishment[.]

The circuit court further ordered that "[t]his case shall run consecutively to
any other sentence that [Preble] served."
7/
FOFs/COLs 36 through 39 clarify the structure of the new sentence
as follows:
36. The Court has the discretion to make the
punishment fit the crime as well as the needs of the
individual defendant in this community. Thus, this Court
will impose consecutive sentencing.

37. The grouping shall be per victim.
38. Counts 1 & 2, involving JLR, shall run
concurrently to each other, but consecutively to Counts 3
through 6 involving JPR. At the time of these offenses, JPR
was ten years of age. Counts 7, 12 and 13 shall run
concurrently to each other, but consecutively to the
aforementioned counts.

39. Because JHR suffered the most damage and the most
prolonged sexual abuse in this matter, and given the
grooming that took place, the intimidation, the lies and the
deception/blackmail to remain silent, Counts 15 and 16 will
be grouped separately and run consecutively to all of the
aforementioned counts.

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imprisonment" and "[t]he order clearly and distinctly limits any
reconsideration of Preble's sentence to the issue of extended
terms of imprisonment." (Capitalization altered.) Preble
asserts that "[t]he circuit court simply ignored the Supreme
Court's order and directions and proceeded to . . . consider a
new motion for repeat offender and the issue of consecutive
sentences which had never before been raised by the state."8/
According to Preble, "[t]he circuit court had no discretion [to]
reconsider the concurrent terms of imprisonment," which had been
determined by the original sentencing judge.
The State, on the other hand, argues that "the Hawai#i
Supreme Court neither explicitly [n]or implicitly ruled on
whether consecutive sentencing was appropriate in this case."
According to the State:

[The supreme court's] legal decision with respect to the
sentence in this case was only as to whether extended-term
sentencing was legal absent jury found facts. Nor did the
trial court previously rule on this issue because at the
time that Preble was sentenced it was assumed that extended-
term sentencing was available.

Thus, the State asserts, "there was no 'law of the case' to
follow" with respect to consecutive-term sentencing. The State
further argues that even if the original sentencing judge had
declined to apply consecutive terms, "the Hawai#i Supreme Court's
decision that extended-term sentencing was illegal absent jury
found facts and the jury's subsequent determination that an
extended-term sentence was not necessary were a fundamental
change in the facts that the circuit court could . . . take into
account."
The Hawai#i Supreme Court has described the law of the
case doctrine as follows:

The law of the case doctrine holds that "a determination of
a question of law made by an appellate court in the course
of an action becomes the law of the case and may not be
disputed by a reopening of the question at a later stage of
the litigation." Fought & Co. v. Steel Eng'g & Erection,

8/
Preble does not challenge the circuit court's ruling on the
State's motion to sentence Preble as a repeat offender pursuant to HRS 706-
606.5. The court concluded that it "w[ould] not disturb" the ruling of the
original sentencing judge, which granted the State's original motion to
sentence Preble as a repeat offender.

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Inc., 87 Hawai#i 37, 48–49, 951 P.2d 487, 498–99 (1998)
(citation omitted). "This doctrine applies to issues that
have been decided either expressly or by necessary
implication." Id. In other words, "the usual practice of
courts to refuse to disturb all prior rulings in a
particular case" is referred to as the "law of the case"
doctrine. Chun v. Bd. of Trs. of the Emps.' Ret. Sys. of
State of Hawaii, 92 Hawai#i 432, 441, 992 P.2d 127, 136
(2000) (citations omitted). "Unless cogent reasons support
the second court's action, any modification of a prior
ruling of another court of equal and concurrent jurisdiction
will be deemed an abuse of discretion." Wong v. City & Cty.
Of Honolulu, 66 Haw. 389, 396, 665 P.2d 157, 162 (1983)
(emphasis omitted). Consequently, the "law of the case"
doctrine "does not preclude modification of a prior ruling
in all instances." Stender v. Vincent, 92 Hawai #i 355, 361,
992 P.2d 50, 56 (2000).

Hussey v. Say, 139 Hawai#i 181, 185, 384 P.3d 1282, 1286 (2016).
In State v. Thompson, this court rejected the
defendant's argument that the law of the case doctrine precluded
the circuit court from imposing consecutive sentences upon
resentencing, where the "original judge had imposed concurrent,
not consecutive, sentences." No. CAAP-XX-XXXXXXX, 2018 WL
4611273, at *6 (Haw. App. Sept. 26, 2018), vacated on other
grounds, 2020 WL 2846628 (Haw. June 1, 2020). We reasoned that

the original sentencing judge concluded that consecutive
terms were not necessary because [the defendant] had
received multiple life sentences. When the life sentences
were set aside, it resulted in a change of fact that
affected [the defendant's] resentencing that the original
sentencing judge did not consider.

Id. We concluded "there were cogent reasons to support granting
consecutive terms during resentencing." Id.
Here, as an initial matter, the supreme court's 2018
SDO did not preclude the circuit court's imposition of
consecutive sentences on remand. The only sentencing issue
raised and decided in Preble's previous appeal was whether his
extended-term sentences were imposed in an illegal manner because
they violated Apprendi, as construed by the supreme court in
Flubacher. Accordingly, in concluding that Preble's extended-
term sentences were improperly imposed for that reason, the
supreme court vacated the relevant decisions of this court and
the circuit court "solely relating to extended sentences."
Preble, 2018 WL 3203435, at *2. The supreme court thus did not
rule on whether consecutive sentencing was appropriate in this
case. Absent "a determination of [this] question of law," the

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supreme court established no "law of the case" that precluded the
circuit court from imposing consecutive sentences on remand.
Hussey, 139 Hawai#i at 185, 384 P.3d at 1286.
Further, as in Thompson, the original sentencing
judge's decision to impose extended terms rather than consecutive
terms did not preclude the circuit court from imposing
consecutive terms on remand, following the supreme court's 2018
SDO. The original sentencing judge declined to impose
consecutive terms9/ based on the implicit premise that extended-
term sentencing was legal and available without jury findings.
Specifically, during Preble's original sentencing hearing, the
circuit court stated in relevant part:
The court finds that consecutive sentencing in
this case with respect to each of the counts is
nonsensical because it totals up to one hundred 40
years.

And the life sentence in itself is more
reasonable under the circumstances.

So with respect to counts 7, 12 and 13, based on
the evidence that all offenses the defendant has
committed are against people, the court finds that
defendant is a danger to the public and extends to
life terms[.] [I]n counts 1 to 6 and counts l5 and

9/
While the State had not sought consecutive-term sentencing,
defense counsel argued in part as follows during Preble's sentencing hearing:

Essentially, Your Honor, it's our position that the
Court did not necessarily have to impose the extended term
because the Court was well aware, if the Court wants to
implement a term of incarcer[a]tion for Mr. Preble, it has
as its option to essentially what would amount to a life
term. In any event, by sentencing him to a consecutive
term.
Apparently, he's been convicted of three Class A
felonies. Plus, he has a number of Class C, and the Court
knows that you can impose a consecutive sentence on this
which would equal [a] hundred years.
THE COURT: State has not asked for consecutive term.
[DEFENSE COUNSEL]: Your honor, State doesn't have to
ask for consecutive for the Court to impose that sentence,
seems to me.
. . . .

. . . Because if you are inclined to give him life,
you have at your option imposing a consecutive term. I am
not advocating the Court do that. I am essentially
advocating that the imposition of an extended term is not
necessary.

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16[,] [t]hose are also offenses against people and the
court extends the terms to ten years.

When these extended terms, including the life sentences, were
later set aside, and the jury on remand found that the State had
not proven that extended terms were necessary for protection of
the public, the circuit court faced changed circumstances, i.e.,
the fact that extended sentencing was not available. In these
new circumstances, as in Thompson, there were cogent reasons for
the circuit court to consider imposing consecutive terms upon
resentencing.
In particular, the circuit court made the following
findings and conclusions, among others, supporting its decision
to impose consecutive terms:
29. Under the circumstances, given the gross and
vicious nature of this case and the uncaring, devilish and
damaged character of the defendant, it is clear that a
twenty year sentence is nowhere near sufficient.
30. A twenty year sentence is nowhere near sufficient
to reflect the seriousness of the instant offenses, promote
respect for the law, provide just punishment in this case or
provide both specific and general deterrence to this type of
criminal conduct.

31. Imposition of consecutive terms is necessary for
the protection of the public from further crimes of the
Defendant.

. . . .

35. The Court has evaluated and considered the kinds
of sentences that are available to address this case, and it
has also a need to avoid unwarranted sentencing disparities
with other defendants with similar records who have been
convicted of similar conduct all the while acknowledging
that this is one of the worst child sexual abuse cases the
Court has seen with no remorse on the part of the Defendant.
This diminishes the likelihood of successful rehabilitation
and only increases the chance of him doing this act again in
the future.

. . . .
40. Defendant's continued refusal to undergo
therapeutic rehabilitation for his sexual deviancy increases
the likelihood of recidivism to such an extent that it
becomes a very important factor for this Court now
undertaking a change in direction from the prior judge.

Given the changed circumstances upon resentencing, and
the facts found by the circuit court, we conclude that the law of
the case doctrine did not bar the imposition of consecutive
sentences. See Wong, 66 Haw. at 396, 665 P.2d at 162; Thompson,
2018 WL 4611273, at *6. However, for the reasons discussed in

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Section D below, it was error for the circuit court to impose the
new sentences without an accurate calculation of appropriate
credit for time served as set forth in Thompson.

B. Due Process and Trial by Jury

Because Preble's second and fourth points of error
assert violations of his constitutional rights to due process and
trial by jury, we consider these points together.
In his fourth point of error, Preble contends that the
"imposition of consecutive terms of imprisonment by a judge
without supporting jury findings of fact is a denial of his
rights to trial by jury and due process as guaranteed by Article
I, Section 5 and 14 of the Hawaii State Constitution." We reject
this argument for the reasons discussed in State v. Amaral, Nos.
CAAP-XX-XXXXXXX, CAAP-XX-XXXXXXX, and CAAP-XX-XXXXXXX, 2020 WL
3397962, at *3 (Haw. App. June 19, 2020), and Thompson, 2018 WL
4611273, at *4-5.
In brief, the United States Supreme Court in Oregon v.
Ice, 555 U.S. 160, 167-68 (2009), and the Hawai#i Supreme Court
in State v. Kahapea, 111 Hawai#i 267, 279-80, 141 P.3d 440,
452-53 (2006), have held that Apprendi does not apply to the
determination of consecutive sentences. "As noted in Kahapea,
Apprendi does not apply to a sentencing judge's fact finding to
impose consecutive sentences under [HRS] § 706-668.5 (1993),
which entails consideration of the factors set forth in HRS §
706-606 (1993)." Amaral, 2020 WL 3397962, at *3. "Although
consecutive sentences may lengthen the term of incarceration
beyond the statutory maximum for an individual sentence, none of
the individual terms of imprisonment exceed the applicable
statutory maximum." Id. In Kahapea, where the defendant was
convicted of five first-degree thefts and sentenced to ten years
for each, the Hawai#i Supreme Court explained that the sentence
of "five ten-year terms running consecutively is the statutory
maximum[,]" and did not deprive the defendant of his rights under
Apprendi. Id. at 280, 141 P.3d at 453.
Here, as in Kahapea, Preble's consecutive sentences
resulted in a term of imprisonment beyond the twenty-year

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statutory maximum for one count of sexual assault in the first
degree. See HRS § 706-659 (1993). However, none of Preble's
individual prison terms exceeded the statutory maximum for the
offense involved. Thus, the circuit court's imposition of
consecutive prison terms did not deprive Preble of his
constitutional right to a trial by jury.
In his second point of error, Preble contends that
"reconsideration of the issue of consecutive terms by [the
circuit court] was a violation of Preble's right to due process
and trial by jury." (Capitalization altered.) Preble argues
that the issue of whether to impose consecutive or concurrent
terms was decided by the original sentencing judge over twenty
years ago, resulting in a judgment that was appealed and
affirmed, such that the circuit court could not reconsider the
imposition of concurrent sentences.
Preble's constitutional challenge to the court's
"reconsideration" of consecutive terms suffers from the same
defects as his law-of-the-case argument. Most notably, the
original sentencing judge declined to impose consecutive terms
based on the premise that extended-term sentencing was legal and
available without jury findings, i.e., circumstances that changed
with the issuance of the 2018 SDO. Moreover, on direct appeal of
the 2001 amended judgment, this court did not rule on whether
concurrent or consecutive sentencing was appropriate. Similarly,
in the 2018 SDO, the supreme court did not rule on the issue of
consecutive sentencing. On remand and resentencing, the circuit
court made detailed findings supporting its decision to impose
consecutive sentences. Preble cites no authority supporting his
argument that the court's consideration of consecutive terms
under these circumstances violates a defendant's rights to due
process and trial by jury.
Instead, Preble relies on what he characterizes as
"dicta" in State v. Hussein, 122 Hawai#i 495, 509, 229 P.3d 313,
327 (2010), supporting his argument that consecutive-term
sentencing "may be a ruse to avoid the more burdensome procedure
of imposing extended terms and thereby violate a defendant's
right to due process[.]" Preble cites a portion of Hussein that

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relies in turn on a discussion in the concurring opinion in
Kahapea, 111 Hawai#i at 285, 141 P.3d at 458. See Hussein, 112
Hawai#i at 508, 229 P.3d at 326. However, the prevailing law
under Ice and Kapahea is that Apprendi does not apply to a trial
court's determination of consecutive sentencing.10/ See supra.
Accordingly, we conclude that the circuit court's
imposition of consecutive prison terms did not violate Preble's
constitutional rights to due process and trial by jury. However,
for the reasons discussed in Section D below, it was error for
the circuit court to impose the new sentences without an accurate
calculation of appropriate credit for time served as set forth in
Thompson.

C. Waiver

Preble contends that because the State did not raise
the issue of consecutive prison terms at Preble's original
sentencing, "the State waived the issue of consecutive
sentences." (Capitalization altered.) Neither Preble nor the
State cites to any case law supporting their respective
contentions regarding waiver. However, the State argues that
"[b]ecause the facts on remand were significantly different from
when Preble was originally sentenced, the State has never waived
or forfeited any right to ask for consecutive sentencing in this
case."
Initially, we note that this is not a situation in
which the State waived an issue on appeal because it failed to
raise the issue in the trial court, and the trial court did not
consider or rule on the issue. Here, the original sentencing
judge appears to have considered imposing consecutive terms in
response to Preble's argument during his original sentencing
hearing. Moreover, upon remand pursuant to the 2018 SDO, the
State raised the issue of consecutive-term sentencing with the

10/
Furthermore, in Hussein, the supreme court held that "henceforth,
the circuit court must state its reasons for imposing a consecutive as opposed
to a concurrent sentence under HRS § 706–668.5 (Supp. 2008) or HRS §
706–606.5[.]" 122 Hawai#i at 498, 229 P.3d at 316 (footnote omitted). This
is precisely what the circuit court did here in imposing consecutive terms
upon resentencing.

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circuit court, which considered the arguments of each side in
determining Preble's new sentence, as reflected in the FOFs/COLs.
Thus, Preble's argument is that the State was precluded from
raising the issue of consecutive-term sentencing in the circuit
court on remand because the State did not raise the issue in
Preble's original sentencing proceeding. In other words,
Preble's position is that in order to preserve the issue of
consecutive-term sentencing, the State, at the time of Preble's
original sentencing, had to request consecutive terms either in
lieu of extended terms, or in addition to extended terms,
potentially resulting in consecutive life terms.
We have found no authority requiring the State to make
such a choice in these circumstances in order to preserve the
issue of consecutive-term sentencing. It appears that at the
time of Preble's original sentencing, the State and the court
assumed that extended-term sentencing was available without jury
findings, such that the State could reasonably have considered a
request for consecutive prison terms as unnecessary. On this
record, where the parties and the circuit court faced
significantly changed circumstances related to sentencing upon
remand, we cannot conclude that the State's decision not to
request consecutive prison terms at the time of Preble's original
sentencing constituted a waiver of the issue.

D. Credit for Time Served

In his reply brief, Preble argues for the first time,
in the alternative, that if this court does not vacate the Third
Amended Judgment and remand the case for entry of a new judgment
imposing concurrent terms of imprisonment, the court should
remand the case for a "recalculation of credit for time served
pursuant to the Supreme Court['s] decision in Thompson[, 2020 WL
2846618, at *2]."11/
An argument not raised in the opening brief cannot be
raised for the first time in a reply brief, and such argument is

11/
The supreme court issued its Summary Disposition Order in Thompson
after Preble filed his opening brief in this appeal.

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ordinarily deemed waived. See State v. Mark, 123 Hawai#i 205,
230, 231 P.3d 478, 503 (2010) (citing In re Hawaiian Flour Mills,
Inc., 76 Hawai#i 1, 14 n.5, 868 P.2d 419, 432 n.5 (1994)); HRAP
Rule 28(d) (providing that "[t]he reply brief shall be confined
to matters presented in the answering brief"). This waiver is
not absolute and is subject to the court's inherent authority to
address plain error and without prejudice to an HRPP Rule 40
petition for post-conviction relief in appropriate circumstances.
See Mark, 123 Hawai#i at 230, 231 P.3d at 503 (noting that
appellate courts may address plain error raised in a reply
brief); Briones v. State, 74 Haw. 442, 459-60, 848 P.2d 966, 975
(1993) (explaining that issues of ineffective assistance of both
trial and appellate counsel may be raised in a HRPP Rule 40
petition for post-conviction relief, in certain situations).
Accordingly, this court allowed the parties each to file a
supplemental brief addressing the import of the Thompson decision
to this appeal, which both parties did. See supra note 2.
In Thompson, the Hawai#i Supreme Court ruled in part:

When the defendant has accrued time served against multiple
crimes, the wording of HRS § 706-671(2) 12/ suggests that on
resentencing for those same crimes, the defendant is
entitled to credit against each of those same crimes, rather
than only once against the aggregate of the consecutive
sentences.

2020 WL 2846618 at *2 (footnote added). In Thompson, the
defendant was sentenced in 2001 to concurrent terms of
imprisonment. Id. at *1. Upon resentencing in 2017, the circuit
court imposed a consecutive sentence comprising four elements:
three twenty-year terms and a single one-year term to be served
consecutively, for a total sentence of sixty-one years
imprisonment. Id. "The circuit court indicated that [the
defendant's] credit for time served under his 2001 sentence would
be applied only once against the first of his three consecutive
twenty-year terms," rather than to each of the offenses

12/
Under HRS § 706-671(2), "[w]hen a judgment of conviction or a
sentence is vacated and a new sentence is thereafter imposed upon the
defendant for the same crime, the period of detention and imprisonment
theretofore served shall be deducted from the minimum and maximum terms of the
new sentence."

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comprising his 2017 resentence. Id. The supreme court ruled
that "[a]bsent credit for time already served on each count of
his 2001 sentence, [the defendant] would be subjected to
unconstitutional 'multiple punishments' for the same offense."
Id. at *3 (quoting State v. Taparra, 82 Hawai#i 83, 89, 919 P.2d
995, 1001 (App. 1996)). The supreme court thus vacated this
court's judgment, which had affirmed the circuit court, and
remanded the case to the circuit court "for an accurate
calculation of [the defendant's] credit for time served." Id. at
*4.
Here, upon resentencing in 2019, the circuit court did
not indicate Preble's credit for time served under his original
2001 sentence, instead concluding that "[c]redit for time served
shall be determined by the Department of Public Safety [DPS]."
Acknowledging this aspect of the resentencing, the State asserts
in its supplemental brief:

It is not clear from the record exactly how much credit for
time served is due to Preble and how the Department of
Public Safety is applying that credit for time served. The
State would merely suggest that this is an issue that is
more appropriately decided at the trial court level where
the record can be supplemented if necessary. If Preble
believes that credit for time served is not being applied as
the Hawai#i Supreme Court explained in [Thompson,] then
Preble should be free to raise that before the trial court
on remand. However, the State respectfully requests this
court to affirm Preble's consecutive sentences.

Preble, on the other hand, contends in his supplemental
brief:

[A]t the time of resentencing, September 24, 2019, Preble
had completely served his maximum terms of imprisonment for
all of his Class C felonies and had served either 19 years 6
months and 22 days or 19 years 9 months and 13 days,
depending on whether or not he is given credit for the
period between July 27, 2001 and October 16, 2001 on each of
his three Class A felonies. Thus, Preble had not less than
5 months and 8 days remaining to be served on his Class A
felonies.
. . . .

. . . [A]ssuming [the Class A felonies] were all to be
served consecutively with each other, Preble served his
maximum terms of imprisonment on all Class A felonies not
later than August 17, 2020.

(Capitalization altered.)

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The record does not contain all of the facts supporting
Preble's calculations of credit for time served. In addition,
neither Preble nor the State cites any part of the record
reflecting DPS's determination of Preble's credit for time
served. Having reviewed the record, we cannot discern precisely
how much time Preble has served on his original sentence. But
this much is clear from the record: Preble's original 2001
sentence included concurrent five-year terms, extended to
concurrent ten-year terms, for each of the eight Class C felony
convictions, and concurrent twenty-year terms, extended to
concurrent life terms, for each of the three Class A felony
convictions. Those concurrent terms were to be served
consecutively to the 10–year term (with credit for time served)
that was imposed in 1994 for Preble's second-degree robbery
conviction. See supra note 6. Given the passage of time, it
appears that Preble had been imprisoned in the current case for a
substantial number of years when he was resentenced in 2019.
Under Thompson, Preble must be given credit for time served on
each count of his 2001 sentence, including counts he had fully
served. See 2020 WL 2846618 at *3; see also State v. Johnson, 68
Haw. 292, 297, 711 P.2d 1295, 1299 (1985) ("Without express
legislative authority, the court cannot delegate the sentencing
function to another person or entity.")
Because under Thompson, the circuit court's error in
failing to calculate credit for time served affected Preble's
substantial rights, i.e., his constitutional guarantee against
multiple punishments for the same offense, we exercise our
discretion to review for plain error. See HRPP Rule 52(b); State
v. Ui, 142 Hawai#i 287, 298, 418 P.3d 628, 639 (2018). Applying
the supreme court's Thompson decision, we conclude that the
circuit court plainly erred.

III. Conclusion

For the reasons discussed above, we vacate the Third
Amended Judgment of Conviction and Sentence, entered on
September 24, 2019, in the Circuit Court of the First Circuit,
solely as to the resentencing of Preble, to the extent the Third

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Amended Judgment of Conviction and Sentence failed to give Preble
credit for time served on his original sentence. We remand for
further resentencing proceedings, including an accurate
calculation of Preble's credit for time served, consistent with
this Memorandum Opinion and Thompson.

DATED: Honolulu, Hawai#i, July 13, 2021.

On the briefs:
/s/ Lisa M. Ginoza
Nelson W.S. Goo Chief Judge
for Defendant-Appellant.

/s/ Keith K. Hiraoka
Brian R. Vincent, Associate Judge
Deputy Prosecuting Attorney,
City & County of Honolulu,
for Plaintiff-Appellee. /s/ Clyde J. Wadsworth
Associate Judge

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