Garcia v. State

***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***

Electronically Filed
Supreme Court
SCWC-29725
21-DEC-2010
03:41 PM

IN THE SUPREME COURT OF THE STATE OF HAWAI#I

---o0o---

DAVID GARCIA, aka Howard Garcia,
Petitioner/Petitioner-Appellant

vs.

STATE OF HAWAI#I, Respondent/Respondent-Appellee

NO. SCWC-29725

CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(S.P.P. NO. 08-1-0012 (CR. NO. 96-1330))

DECEMBER 21, 2010

RECKTENWALD, C.J., NAKAYAMA, ACOBA, AND DUFFY, JJ.,
AND CIRCUIT JUDGE NACINO, ASSIGNED DUE TO A VACANCY

OPINION OF THE COURT BY ACOBA, J.

We hold that the recalculation by the Hawai#i Paroling

Authority (HPA), of credit for pre-sentence detention

(presentence credit) of Petitioner/Petitioner-Appellant David

Garcia, aka Howard Garcia (Petitioner), pursuant to State v.
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Tauiliili, 96 Hawai#i 195, 200, 29 P.3d 914, 919 (2001), that

extended the earliest date at which Petitioner was eligible for

release, did not violate (1) the Ex Post Facto Clause of the

United States Constitution; (2) due process under the United

States Constitution or the Hawai#i Constitution; or

(3) principles regarding the retroactive application of judicial

decisions espoused by this court. We accepted Petitioner’s

application for writ of certiorari (Application) in this case

because (1) similar issues regarding the retroactive application

of Tauiliili, have been previously raised to and rejected by this

court,1 (2) there is no governing authoritative case regarding

the retroactive application of Tauiliili inasmuch as the ICA’s

judgments in that regard have been by way of summary disposition

orders, see Killion, 2009 WL 484411, at *1, and Garcia v. State,

No. 29725, 2010 WL 2513357, at *1 (App. Jun. 23, 2010) (SDO), and

(3) Tauiliili did not discuss whether applying that decision

retroactively would violate the prohibition against ex post facto

laws, due process, or principles regarding the retroactive

application of judicial decisions, as espoused by this court. We

affirm the judgment of the ICA, see Garcia, 2010 WL 2513357, at

*1, on the grounds set forth herein.

1
In that case, this court affirmed the decision of the Intermediate
Court of Appeals (ICA) in Killion v. State, No. 29077, 2009 WL 484411, at *1
(App. Feb. 24, 2009) (SDO). Respondent/Respondent-Appellee State of Hawai#i
(Respondent) cited to Killion in its opening brief to the ICA.

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I.

A.

The following essential matters, some verbatim, are

from the record and the submissions of the parties.

Hawai#i Administrative Rules (HAR) § 17-1204-17,2

promulgated in 1985, provided:
17-1204-17 Credit application towards minimum sentence
expiration date for sentenced felons.

(a) Presentence credit accumulated by a sentenced felon
offender shall be deducted from the offender’s minimum
sentence expiration date set by the paroling authority.

(b) Upon the establishment of an adjusted minimum
sentence expiration date, the paroling authority shall
forward a facsimile copy of the expiration date to the
corrections division office having custodial jurisdiction
over the offender and the agency.

(c) The expiration date shall be the earliest date when
the sentenced felon offender can be released from a
correctional facility prior to and upon further action by
the paroling authority.

(Emphases added.)3 On October 21, 1997, Petitioner pled guilty

to five counts of Robbery in the Second Degree pursuant to a plea

agreement with Respondent.4

2
HAR 17-1204-17 was repealed on April 15, 2000.

3
As discussed infra, HAR § 17-1204-17 indicated that presentence
credits shall be applied only once against the aggregate minimum terms, where
consecutive terms have been imposed. However, in his Application, Petitioner
notes that at the hearing on his petition, he testified that based on his own
research as a “‘jailhouse lawyer,’” prior to Tauiliili, the HPA had a practice
of applying presentence credits against each minimum term, not against the
aggregate.

4
The plea agreement provided in relevant part as follows:

1. [Petitioner] to plead guilty to a reduced charge
of Robbery 2d Degree under counts II, III, and IV.

2. [Petitioner] to plead guilty as charged to Robbery
2d Degree under Counts I and V.

3. In consideration of the substantial concessions of
(continued...)

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On March 3, 1998, Petitioner was sentenced by the trial

court (sentencing court),5 in accordance with the plea agreement,

as follows: (1) an indeterminate term of ten years with a

mandatory minimum term of three years and four months for count

I; (2) an indeterminate term of ten years for each of the four

remaining counts (counts II-V), to run concurrently with each

other; (3) the sentence for count I to run consecutively to the

4
(...continued)
a) the reduction in charge from Robbery 1st Degree
to Robbery 2d Degree under counts II, III, and
IV
b) [Respondent’s] relinquishing of the allegation
of [Petitioner’s] use of a handgun under counts
II, III, and IV, and
c) [Petitioner’s] being subject to continuing
prosecution under counts II, III, and IV for
Robbery 1st should the instant plea offer not be
accepted,
[Petitioner] agrees to open ten year term[s] on all counts,
with a minimum term of ten years under count I. Said
minimum term shall not be subject to early release,
furlough, or parole.

4. Open term of ten years under count I to run
consecutively with [sic] open terms of ten years under
counts II, III, IV, and V.

5. Open terms of ten years under counts II, III, IV,
and V to run concurrently with each other.

6. [Petitioner] agrees to a mandatory minimum term of
three years, four months as a repeat offender under count I.

7. [Respondent] and [the] court agree to not seek any
enhanced or extended sentencing, or consecutive sentencing,
except as agreed to herein.

8. Parties stipulate that sentence under the subject
criminal number be concurrent with any sentence [Petitioner]
is currently serving.

9. [Petitioner is] free to argue at sentencing for
credit for time served dating from the date of his initial
arrest on October 22, 1995.

[RA at 26] (Emphases added.)

5
The Honorable Victoria S. Marks presided.

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concurrent sentences for the four remaining counts; and

(4) credit for presentence detention beginning October 22, 1995.

On October 12, 1998, the HPA issued a Notice and Order

Fixing Minimum Term(s) of Imprisonment, setting the minimum term

for each count at seven years. The Notice listed October 22,

2002, as the earliest date of release for counts II through V,

and June 12, 2007, for count I. It is apparent that Petitioner

received presentence credit under each of the five counts.

Then, on August 9, 2001, this court held in Tauiliili,

96 Hawai#i at 200, 29 P.3d at 919, that pursuant to Hawai#i

Revised Statutes (HRS) § 706-671,6 where consecutive sentences

are imposed, the defendant is entitled to presentence credit

against only the aggregate of his or her consecutive terms; not

against each of his or her consecutive terms. Thereafter, the

Department of Public Safety (DPS) promulgated a written policy,

effective January 1, 2005, adopting the Tauiliili “methodology”

for computing presentence credit for consecutive sentences

6
HRS § 706-671, as was in effect at the time Tauiliili was decided,
provided in pertinent part:

(1) When a defendant who is sentenced to imprisonment has
previously been detained in any State or local correctional or
other institution following the defendant’s arrest for the crime
for which sentence is imposed, such period of detention following
the defendant’s arrest shall be deducted from the minimum and
maximum terms of such sentence. The officer having custody of the
defendant shall furnish a certificate to the court at the time of
sentence, showing the length of such detention of the defendant
prior to sentence in any State or local correctional or other
institution, and the certificate shall be annexed to the official
records of the defendant's commitment.

Tauiliili, 96 Hawai#i at 198, 29 P.3d at 917 (emphasis added).

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(Policy).7 On April 18, 2007, the HPA issued a second Notice and

Order Fixing Minimum Term(s) of Imprisonment, indicating that

pursuant to this court’s holding in Tauiliili, Petitioner’s

earliest dates of release had been recalulated and set at October

20, 2003 for counts II-V, and at October 18, 2009 for count I.

B.

On January 10, 2008, Petitioner filed a Motion for

Clarification of Illegal Sentence or in the Alternative, to

Correct Illegal Sentence (Petition). In his Petition, Petitioner

argued that the retroactive application of Tauiliili to

recalculate his minimum sentences (1) violated the Ex Post Facto

Clause of the United States Constitution; (2) contravened this

court’s decision in State v. Ikezawa, 75 Haw. 210, 220-21, 857

P.2d 593, 598 (1993), regarding the retroactivity of judicial

decisions; and (3) breached the Due Process Clause of the United

States Constitution inasmuch as (a) the sentencing court and

Petitioner assumed that Petitioner’s presentence credit would be

applied to both of his consecutive terms, (b) HRS § 706-671(1)

states that with regard to presentence detention, “[s]uch period

of detention shall be deducted from the minimum and maximum

7
The Policy promulgated by DPS states that the Policy (1) is “New”;
(2) is to be effective as of January 1, 2005; and (3) regards “Sentence
Computation[.]” Under a section entitled “Method of Computation,” the Policy
states in relevant part that “[p]ursuant to the Tauiliili case, any multiple
sentences imposed at the same time will be computed with presentence credit
applied only to the aggregate sentence, and not to each of the remaining
sentences.” The Policy further states, “This policy applies to all [DPS]
personnel. All prior policies, procedures, and practices are hereby
superceded to the extent they are inconsistent with this [P]olicy.” (Emphases
added.)

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terms” and that the use of the word “term” in the plural

suggested that presentence credit was applicable to each

consecutive term, and (c) from his own research and examination

of other inmates’ cases, he had determined that HPA had a

practice of applying presentence credit to each of a defendant’s

consecutive terms.

On March 18, 2009, the circuit court of the first

circuit (the court)8 filed its Findings of Fact, Conclusions of

Law and Order Denying Petitioner’s January 10, 2008 Nonconforming

Petition for Post-Conviction Relief denying Petitioner’s Motion.

The court concluded that since Tauiliili did not change the law

but merely interpreted existing law, recomputation of

Petitioner’s minimum sentences did not violate the Ex Post Facto

Clause or due process. Additionally, the court concluded that

neither the plea agreement nor the transcript of Petitioner’s

sentencing hearing demonstrated that Petitioner was to receive

presentence credit on both of his consecutive terms.

C.

On appeal to the ICA, Petitioner reiterated the same

arguments raised before the court. The ICA affirmed the court

pursuant to a Summary Disposition Order (SDO) filed on June 23,

2010.9 See Garcia, 2010 WL 2513357, at *3.

8
The Honorable Virginia L. Crandall presided.

9
The SDO was filed by Chief Judge Craig H. Nakamura and Associate
Judges Daniel R. Foley and Katherine G. Leonard.

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1.

With respect to Petitioner’s Ex Post Facto Clause

argument, the ICA acknowledged that “‘[r]etroactive application

of a law that imposes a greater punishment than the law in effect

when the crime was committed is forbidden by the Ex Post Facto

[C]lause[] of the Constitution.’” Id. (quoting Davis v. Moore,

772 A.2d 204, 215-16 (D.C. Cir. 2001) (footnote omitted)). The

ICA stated, however, that “‘[t]he United States Supreme Court has

made it clear that the constitutional prohibition against ex post

facto measures applies only to legislative enactments.’” Id.

(quoting State v. Jess, 117 Hawai#i 381, 407, 184 P.3d 133, 159

(2008)). According to the ICA, HRS § 706-671 “did not change its

statutory language or any prior ruling on its effect” since it

was first enacted, nor “since [Petitioner] committed his

offenses[.]” Id. Thus, the ICA concluded that “there [was] no

ex post facto prohibition against applying Tauiliili to

[Petitioner’s] sentence.” Id.

2.

The ICA did not specifically address Respondent’s

arguments with respect to the retroactive application of judicial

decisions under Ikezawa but, rather, addressed Respondent’s

argument in that regard as a matter of due process. According to

the ICA, “[t]he test for analyzing whether a newly announced

judicial doctrine can apply retroactively is grounded in concepts

of notice and foreseeability.” Id. It further observed that

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“‘[a]n unforseeable interpretation of a statute that increases

punishment, if applied retroactively, could violate due

process.’” Id. (quoting Campbell v. United States Parole Comm’n,

563 F. Supp. 2d 23, 26 (D.C. Cir. 2008)) (internal citations

omitted).

As to foreseeability, the ICA noted that in accordance

with HAR § 17-1204-17, Petitioner’s presentence credit was to be

applied to his first seven-year minimum term and not to each

minimum term. Id. Because “HAR § 17-1204-17 was promulgated in

1985[,]” the ICA maintained that “it was not unexpected that HRS

§ 706-671 would be interpreted to mean that presentence credit

could only be applied once to the aggregate minimum sentence.”

Id. The ICA further reasoned that “Tauiliili was not a

reformation or departure from an existing HPA rule[, but,

r]ather, it was consistent with HPA’s longstanding practice of

only applying presentence credit once to a minimum sentence

expiration date.” Id.

The ICA also explained that the “HPA’s application of

Tauiliili to [Petitioner] was procedural in nature because the

application was to correct HPA’s prior misapplication of

presentence credit in order to conform to the law as it existed

prior to and after Tauiliili.” Id. The ICA held that, in sum,

application of Tauilili did not violate Petitioner’s due process

rights under the Hawai#i or United States Constitutions. Id.

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(citing United States Parole Comm’n v. Noble, 693 A.2d 1084 (D.C.

1997), and Davis, 772 A.2d at 204).

3.

Finally, with respect to Petitioner’s argument that

Petitioner and the sentencing court assumed that the presentence

credit would apply to both of his consecutive terms, the ICA

decided that “nothing in the transcript or [Petitioner’s] plea

agreement [] indicate[d] that the parties agreed that

[Petitioner] would receive credit for the detention time for each

count.” Id. at *3. On October 13, 2010, Petitioner filed his

Application urging this court to review the decision of the ICA.

II.

Petitioner presents the following questions in his

Application:
A. Whether the ICA erred in concluding that recalculation
of [Petitioner’s] detention credit pursuant to
[Tauiliili] . . . did not violate the ex post facto
clause of the United States Constitution.
B. Whether the ICA erred in concluding that [Tauiliili]
. . . was properly applied retroactively in the
recalculation of [Petitioner’s] detention credit.
C. Whether the ICA erred in concluding that recalculation
of [Petitioner’s] detention credit pursuant to
[Tauiliili] . . . did not violate due process.

(Emphases added.) (Some capitalization omitted.)

III.

A.

With respect to his first question regarding the Ex

Post Facto Clause, Petitioner maintains that the Clause was

violated by adoption of the Policy. He urges that the Policy

“should be accorded the force and effect of law” because (1) HRS

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§ 353-65 (Supp. 2003)10 allows the HPA “to establish rules that

have ‘the force and effect of law’” and (2) “[g]enerally,

administrative rules and regulations promulgated pursuant to

statutory authority have the force and effect of law.” (Citing

State v. Kimball, 54 Haw. 83, 503 P.2d 176 (1972).) In further

support of the foregoing proposition, Petitioner points to a line

of cases from other jurisdictions, arguing that the cases

conclude administrative rules are “law.” Petitioner additionally

asserts that because the ICA apparently accorded HAR § 17-1204-17

the status of law, the Policy should likewise be considered

“law.”

B.

With respect to the second question presented,

Petitioner maintains that Ikezawa sets forth the controlling

doctrine regarding the retroactive application of judicial

decisions. According to Petitioner, Ikezawa paid “great

attention to the question of whether retroactive application

[would] undermine the integrity of the judicial process, cause

substantial unfairness, and cause an inequitable result.”

Petitioner asserts he was substantially prejudiced by the

10
HRS § 353-65 provides in pertinent part:

The [HPA] may establish rules, with the approval of the
governor and the director of public safety not inconsistent with
this part, under which any prisoner may be paroled but shall
remain, while on parole, in the legal custody and under the
control of the paroling authority, and be subject, at any time
until the expiration of the term for which the prisoner was
sentenced, to be taken back within the enclosure of the prison.
The rules shall have the force and effect of law.

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retroactive application of Tauiliili inasmuch as its application

has “lengthened his minimum term by about two years and two

months.” He urges that where, as here, “substantial prejudice

results from the retrospective application of new law principles

to a given set of facts, the inequity may be avoided by giving

guiding principles prospective application only.”11

C.

As indicated, the ICA couched its due process and

retroactivity analyses, partially in terms of whether the

Tauiliili decision was unexpected in the context of prior law.

Thus, in connection with the third question, Petitioner argues

that the ICA was mistaken. Initially, he observes that HAR § 17-

1204-17 was not cited to by either party or the court, and “was

not and has not been judicially noticed.”12

Next, he contends that the holding of Tauiliili was

indeed unexpected. He points out that he “sought leave [from the

court] to question the HPA administrator as to whether” it was

HPA’s “prevailing practice [] to deduct presentence credit from

each consecutive term.” According to Petitioner, that motion was

denied because “[Respondent] did not dispute th[e] ‘practice’ of

the imposition of dual credit until that practice was changed

11
Respondent did not specifically address the foregoing arguments in
its Answering Brief to the ICA.

12
Contrary to Petitioner’s assertion, HAR § 17-1204-17 was raised by
Respondent in its Answering Brief to the ICA; hence, this assertion need not
be addressed further.

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post-Tauiliili.” He maintains, then, that the ICA’s suggestion

that Tauiliili was “consistent with HPA’s long standing practice

of only applying presentence credit once” is based on a

“misapprehension of the evidentiary record” and “raises a genuine

question as to whether [Petitioner] received a fair review before

the ICA[.]” Petitioner observes that, in fact, the ICA referred

to HPA’s “prior misapplication” of the presentence credit which,

according to Petitioner, undermines the ICA’s own conclusion

regarding “HPA’s mythical ‘longstanding practice’ of applying

credit once.”

Also, Petitioner asserts that Noble, which was relied

upon by the ICA in support of its conclusion that Petitioner’s

due process rights were not violated, is distinguishable.

According to Petitioner, in that case, the defendants were suing

under a disparate treatment theory where the United States Parole

Commission was interpreting the Good Time Credits Act differently

from the District of Columbia Department of Corrections. He

contends that in those cases, the defendants “had much weaker

claims to lack of notice” because the good time credits were

being applied uniformly everywhere except in the District of

Columbia. Petitioner asserts that here, the due process claim is

grounded in his “lack of notice and foreseeability” of the change

in HPA’s “monolithic [] practices.”

Lastly, Petitioner declares that a “fair reading” of

the plea agreement and transcript supports the conclusion that

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the parties and the sentencing court intended for the presentence

credit to apply to both of his consecutive sentences. He

apparently argues that he had a due process right in the

performance of the plea agreement.

IV.

This court’s decision in Tauiliili is central to the

instant case. In that case, Tauiliili had pled guilty to three

separate counts and had been sentenced by the trial court “to 10

years’ indeterminate imprisonment for Count I, 10 years’

indeterminate imprisonment for Count II, and 5 years’

indeterminate imprisonment for Count III.” Tauiliili, 96 Hawai#i

at 197, 29 P.3d at 916. The two ten-year sentences for Counts I

and II were to “run concurrently and the sentence for Count III

[was] to run consecutively to the sentences for Counts I and II.”

Id. Tauiliili subsequently filed a motion seeking an order

granting presentence credit for time served. Id. He requested

that his 853 days of presentence detention be credited against

each of his consecutive sentences. The trial court entered an

order granting Tauiliili’s motion in part and denying it in part.

Id.

The trial court agreed that Tauiliili was entitled to

presentence credit, but determined that “the legislative purpose

of HRS § 706-671 is to put a defendant who has been incarcerated

presentence in the same position that a defendant would be in if

he were not incarcerated presentence.” Id. (internal quotation

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marks omitted). Thus, it was concluded that “[t]he intention of

[HRS §] 706-671 would be met if credit for time served [was]

subtracted from the sum of the consecutive sentence[s]” as

opposed to subtracting the credit from each consecutive

sentence.13 Id.

Tauiliili appealed the order of the trial court,

arguing that it “incorrectly interpreted HRS § 706-671, by

failing to credit his 853 days of presentence imprisonment”

against each of his consecutive sentences. Id. at 196, 29 P.3d

at 915. This court determined that “[t]he statutory language

read in the context of the entire statute requires that

presentence credit be applied to both the minimum and maximum

imprisonment terms.” Id. at 198, 29 P.3d at 917. It was

concluded that, therefore, the trial court had properly “applied

Tauiliili’s presentence credit by deducting 853 days from both

the minimum and maximum terms of his sentence.” Id.

13
One of the trial court’s conclusions stated:

For example, Defendant’s MAXIMUM TERM should be calculated
as:
Count I and II (concurrent) = 10 year maximum
Count III (consecutive) + 5 year maximum
SUM OF SENTENCE = 15 year maximum
Credit for time served - 853 days
MAXIMUM TERM = 12 Yrs 8 Mos

Defendant’s MANDATORY MINIMUM TERM should be calculated as:
Count I = 5 year maximum
Count III (consecutive) + 3 year maximum
SUM OF SENTENCE = 8 year maximum
Credit for time served - 853 days
MANDATORY MINIMUM TERM = 5 Yrs 8 Mos

Tauiliili, 96 Hawai#i at 197, 29 P.3d at 916 (formatting altered).

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Tauiliili’s claim that the presentence credit should

have been applied to each of his consecutive sentences, however,

was rejected. This court stated that the commentary to HRS

§ 706-671 explains that the statute “‘provides for some

equalization . . . between those defendants who obtain

pre-sentence release and those who do not.’” Id. at 199, 29 P.3d

at 918 (ellipsis in original). Hence, it was decided that HRS

§ 706-671 “seeks to place an in-custody criminal defendant who

cannot afford to post bail in the same position as his

counterpart with bail money.” Id. (citation omitted). According

to the Tauiliili court, “[o]nce credit has been granted, no

additional purpose is served by granting a second or ‘double

credit’ against a later consecutive sentence.” Id. (citation

omitted). Tauiliili thus held that “when consecutive sentences

are imposed, credit for presentence imprisonment is properly

granted against only the aggregate of the consecutive sentence

terms.” Id.

V.

With respect to Petitioner’s first question, article I,

section 10 of the United States Constitution provides that ‘[n]o

State shall . . . pass any . . . ex post facto Law[.]’” The

Supreme Court has explained that the Clause is implicated by,

inter alia, “[e]very law that aggravates a crime, or makes it

greater than it was, when committed[.]” Miller v. Florida, 482

U.S. 423, 429 (1987) (internal quotation marks and citations

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omitted). However, the Ex Post Facto Clause was “included in the

Constitution to assure that federal and state legislatures were

restrained from enacting arbitrary or vindictive legislation.”

Id. (citation omitted). The Supreme Court has explained, “As the

text of the [Ex Post Facto] Clause makes clear, it ‘is a

limitation upon the powers of the Legislature, and does not of

its own force apply to the Judicial Branch of government.’”

Rogers v. Tennessee, 532 U.S. 451, 456 (2001) (quoting Marks v.

United States, 430 U.S. 188, 191 (1977)).

Therefore, the ICA was correct in its conclusion that

“‘the constitutional prohibition against ex post facto measures

applies only to legislative enactments.’” Garcia, 2010 WL

2513357, at *1 (quoting Jess, 117 Hawai#i at 407, 184 P.3d at

159). But, as recounted, Petitioner contends that the Policy is

a “law” that implicates the Ex Post Facto Clause. Here, however,

the Policy merely adopts and enforces the holding of Tauiliili

which sets forth the proper interpretation of HRS § 706-671.

As pointed out by Petitioner, Respondent conceded that

prior to Tauiliili, it was HPA’s practice to give credits against

multiple sentences. At the hearing on his Petition, Petitioner

explained that, at the “pretrial conference, [] it seemed to be

. . . the unanimous position of the parties that in fact that was

the pre-Tauiliili policy, and that when Tauiliili was issued, a

new policy came into effect where the credit was given just one

time on the aggregate.” Petitioner explained that, then, at a

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subsequent hearing on other motions, “there seemed to be

questions raised as to whether the policy of the parole board

pre-Tauiliili . . . was in fact that people were given dual

credit on consecutive terms” and whether “Tauiliili brought in a

new policy or not[.]” Petitioner stated that for that reason,

Petitioner “want[ed] to subpoena . . . the parole chairman at the

time of Tauiliili or some other appropriate personnel to ask” him

or her “what the policy was pre-Tauiliili and if in fact a new

policy was instituted with Tauiliili.”

Respondent conceded that “there was no factual dispute

regarding the pre-Tauiliili practice of the HPA.” According to

Respondent, it had “never denied that . . . parolees were given

multiple credits incorrectly prior to the issuance of the

Tauiliili case.” Respondent maintained that the issue was

therefore not a factual one, but whether the practice of

recalculating credits “constituted change in the . . . law that

would implicate the ex post facto clause.”

This court has not yet determined whether

administrative rules, policies, or regulations are “laws” that

implicate the Ex Post Facto Clause of the United States

Constitution. However, in the instant case, it appears that the

“law” pursuant to which Petitioner’s minimum release dates were

recalculated was not the Policy but, rather, HRS § 706-671 as

interpreted by Tauiliili. HPA was bound to follow Tauiliili with

or without the promulgation of the Policy. Here, HPA’s change in

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the application of presentence credits was a direct result of

this court’s decision in Tauiliili. The Policy in fact reflects

the foregoing. To reiterate, the Policy states that “[p]ursuant

to the Tauiliili case, any multiple sentences imposed at the same

time will be computed with presentence credit applied only to the

aggregate sentence, and not to each of the remaining sentences.”

Consequently, Petitioner’s presentence credit was recalculated

pursuant to HRS § 706-671, as implemented by the Policy. Only

the second time, Petitioner’s sentence was calculated as it

should have been under the statute. Therefore, any change in

DPS’s or HPA’s internal policies regarding the calculation of

presentence credit is irrelevant for purposes of an ex post

facto analysis.

VI.

A.

With respect to Petitioner’s third question,14 while the

previous discussion makes apparent that the Ex Post Facto Clause

does not apply to judicial decision-making, retroactive

application of a judicial decision may implicate due process.

Rogers, 532 U.S. at 456 (stating that limitations on the

retroactive application of a judicial decision “are inherent in

the notion of due process”); see also Jess, 117 Hawai#i at 407,

184 P.3d at 159 (stating that “[t]he Rogers Court . . . observed

‘that limitations on ex post facto judicial decisionmaking are

14
Petitioner’s second question is discussed in Part VII.

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inherent in the notion of due process’” (quoting Rogers, 532 U.S.

at 457)). The Supreme Court has stated that accordingly,

“judicial reformation of the law ‘violates the principle of fair

warning, and hence must not be given retroactive effect,’” where

such reformation is “‘unexpected and indefensible by reference to

the law which had been expressed prior to the conduct in

issue[.]’” Jess, 117 Hawai#i at 408, 184 P.3d at 160 (quoting

Rogers, 532 U.S. at 462 (quoting Bouie v. City of Columbia, 378

U.S. 347, 354 (1964)) (emphasis added). As indicated previously,

the ICA likewise observed that “‘[a]n unforseeable [sic]

interpretation of a statute that increases punishment, if applied

retroactively, could violate due process.’” Garcia, 2010 WL

2513357, at *1 (quoting Campbell, 563 F. Supp. 2d at 26 (citing

Bouie, 378 U.S. at 353-54)).

Prior to Jess, which the ICA relied upon in support of

the proposition that judicial reformation of the law could

violate principles of due process, a majority of this court had

held that under the intrinsic/extrinsic distinction, facts which

exposed a defendant to an extended prison term sentence were not

required to be submitted to and decided by the jury. See, e.g.,

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). A majority of this

court reaffirmed that proposisition in State v. Maugaotega, 107

Hawai#i 399, 114 P.3d 905 (2005) (Maugaotega I).

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Then, “pursuant to the United States Supreme Court's

mandate and judgment vacating” Maugaotega I, this court

reconsidered Maugaotega’s appeal in light of Cunningham v.

California, 549 U.S. 270 (2007). See Jess 117 Hawai#i at 394, 184

P.3d at 146 (citing State v. Maugaotega, 115 Hawai#i 432, 168 P.3d

562 (2007) (Maugaotega II)). In Maugaotega II, this court “thus

acknowledged that, in light of Cunningham, except for prior

convictions, multiple convictions, and admissions, ‘any fact,

however labeled, that serves as a basis for an extended term

sentence must be proved beyond a reasonable doubt to the trier of

fact.’” Id. (quoting Maugaotega II, 115 Hawai#i 447, 168 P.3d at

577). The Jess majority determined that in light of Cunningham,

the “intrinsic/extrinsic” distinction, which had been a part of

Hawai#i case law for approximately thirty years as of the date of

the Jess decision, was no longer viable in the context of

charging procedure. Id. at 400, 184 P.3d at 152. Jess was a

clear case of a “new rule” because it explicitly overruled prior

precedent.

Here, unlike in Jess, Tauiliili did not “reform” the

law in any way. Tauiliili did not overrule any prior decision of

this court with regard to the application of presentence credit

to two or more consecutive sentences. Tauiliili was the first

occasion upon which this court had the opportunity to interpret

HRS § 706-671 as to that issue. Moreover, Tauiliili merely

reiterated “what the statute meant before as well as after the

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decision of the case giving rise to that construction.” Rivers

v. Roadway Exp., Inc., 511 U.S. 298, 312-13 (1994). Thus,

Tauiliili did not reform this aspect of the “law” but, rather,

confirmed it.

Additionally, Tauiliili did not increase the punishment

for the crime for which Petitioner was convicted. Petitioner

remains subject to the same punishment for the crimes to which he

pled guilty as was imposed by the sentencing court at the time of

his sentencing. In State v. Kamana#o, 118 Hawai#i 210, 188 P.3d

724 (2008), the defendant raised an argument similar to the one

made by Petitioner in this case. There, the defendant argued

that “the statute in effect at the time of the offenses allowed

only concurrent maximum terms, and disallowed consecutive terms

except [for] those committed while incarcerated [and that

t]hus[,] the statutory construction that allowed consecutive

sentencing increased the punishment retroactively.” Id. at 231,

188 P.3d at 745 (brackets and ellipsis omitted) (emphases added).

The defendant argued, inter alia, that such interpretation

amounted to an ex post facto expansion of his punishment. Id. at

230-31, 188 P.3d at 745-46 (brackets, ellipsis, quotation marks,

and citation omitted). This court rejected that argument,

reasoning that the statute which applied to the defendant at the

time of his sentences, allowed consecutive sentences to be

imposed. Id. at 231, 188 P.3d at 745. Hence, it was explained

that the court’s interpretation of the statute was not an

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“expansion” of the scope of the defendant’s criminal liability,

but a correct reading of the statute. Id.

Similarly, in Campbell, 563 F. Supp. 2d at 24, the

petitioner had been sentenced to a prison term of five to fifteen

years while on parole for an earlier offense. The petitioner’s

parole and “street-time” credit while on parole were revoked

pursuant to Noble. Id. at 25 (citing Noble, 693 A.2d at 1084).

In Noble, the Court of Appeals, District of Columbia, held that

street-time credit could be revoked upon revocation of parole

because although D.C. Code § 24-221.03 dictated that every person

shall be given credit for time spent on parole, that section did

not repeal D.C. Code § 24-406(a), which directed that “[t]he time

a prisoner was on parole shall not be taken into account to

diminish the time for which he was sentenced.” Id. The

petitioner challenged the forfeiture of his street-time pursuant

to Noble, arguing that such forfeiture violated, inter alia, the

Ex Post Facto and Due Process Clauses of the United States

Constitution.

With respect to the petitioner’s ex post facto

challenge, the United States District Court, District of Columbia

noted that McKee v. United States Parole Comm’n, 214 Fed. Appx.

1, 2 (D.C. Cir. 2006), held that “‘Noble provided an

authoritative statement of the meaning of D.C. Code

§ 24-406(a).’” See id. The district court concluded that

accordingly, “petitioner’s sentence was not increased, but

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rather, the Commission rescinded credit towards completion of

that sentence for time spent on parole, as required by D.C. law.”

Id.

As to the petitioner’s due process argument, the

district court acknowledged that “[a]n unforeseeable

interpretation of a statute that increases punishment, if applied

retroactively, could violate due process.” Id. at 26 (citing

Bouie, 378 U.S. at 353-54). However, the district court noted

that in Davis, 772 A.2d at 217, the D.C. Court of Appeals held

that although Noble “‘contradicted expectations in the District

[of Columbia] that were encouraged by authoritative

pronouncements and that were reasonably held,’ . . . [Noble] was

not so unexpected or unforeseeable as to offend the

Constitution[,]” inasmuch as “the Commission had an ongoing

practice of withholding District of Columbia prisoner’s

street-time credit upon parole revocation[.]” Id. (citing Davis,

772 A.2d at 218-19 (internal citation omitted)).

In this case, as in Kamana#o and Noble, there was no ex

post facto “expansion” of Petitioner’s criminal liability. At

the time Petitioner committed the offenses, HRS § 706-671 was,

and remains, the law pursuant to which HPA must apply presentence

credits. See Rivers, 511 U.S. at 312-13 (stating that “[a]

judicial construction of a statute is an authoritative statement

of what the statute meant before as well as after the decision of

the case giving rise to that construction”). This court’s

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construction of HRS § 706-671 reflects the correct reading of the

statute; not an expansion of it.

Assuming arguendo, Tauiliili did reform the law, it

cannot be said to have been unexpected. As recounted, HAR § 17-

1204-17(a) mandated that “[p]resentence credit accumulated by a

sentenced felon offender shall be deducted from the offender's

minimum sentence expiration date” set by the paroling authority.

(Emphasis added.) HAR § 17-1204-17(b) stated that “[t]he

expiration date shall be the earliest date when the sentenced

felon offender can be released from a correctional facility prior

to and upon further action by the paroling authority.” (Emphasis

added.) The earliest date that an offender could be released

would be determined by aggregating the minimum terms of each

consecutive term. Consequently, HAR § 17-1204-17 effectively

required that a defendant’s presentence credit be credited

against the aggregate of minimum terms, not against the minimum

term of each consecutive term. Hence, although Petitioner

maintained that HPA had a practice of applying presentence

credits to each consecutive term, HAR § 17-1204-17 would put

Petitioner, or any prisoner, on notice that HPA was improperly

applying presentence credits.

Moreover, as elucidated in Tauiliili, the commentary to

HRS § 706-671 plainly stated that HRS § 706-671 was intended to

“‘provide[] for some equalization . . . between those defendants

who obtain pre-sentence release and those who do not.’”

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Tauiliili, 96 Hawai#i at 199, 29 P.3d 918. As elucidated by

Tauiliili, if presentence credit was applied to each consecutive

sentence, “the more consecutive sentences a criminal defendant

received, the more credit he would accrue for presentence

imprisonment.” Id. Because defendants who post bail and

therefore, are not detained prior to sentencing, would not have

any presentence credit, those defendants’ minimum sentences would

be longer than those defendants who were detained, if presentence

credits were applied to each consecutive sentence. In other

words, such a construction of HRS § 706-671 “would actually

penalize those who could afford to post bail” and would be

contrary to the “equalization” noted in the commentary to HRS §

706-671. Id. Inasmuch as applying presentence credit to each

consecutive sentence would place a defendant who had not obtained

presentence release in a better position than a defendant who did

obtain such release, the commentary to HRS § 706-671 indicated

that presentence credits should be applied only once to the

aggregate of all consecutive sentences, not against each

consecutive sentence.

Since the commentary to HRS § 706-671 and HAR § 17-

1204-17 suggested that presentence credit should be given only

once to the aggregate of consecutive sentences as opposed to each

consecutive sentence, Tauiliili cannot be said to have been

unexpected for purposes of due process. See Lockett v. Ohio, 438

U.S. 586, 597 (1978) (rejecting the defendant’s “claim of

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inadequate notice under the Due Process Clause of the Fourteenth

Amendment,” reasoning that because “the construction given the

statute by the Ohio [Supreme C]ourt was consistent with both

prior Ohio law and with the legislative history of the

statute[,]” the construction could not be said to have been “so

unexpected that it deprived [the defendant] of fair warning”).

B.

As indicated, in connection with his third question,

Petitioner challenges the ICA’s determination that Tauiliili was

not unforeseeable because Tauiliili “was consistent with HPA’s

longstanding practice of only applying presentence credit once to

a minimum sentence expiration date.” Garcia, 2010 WL 2513357, at

*2. It is noted that the record does indicate that Respondent

did in fact concede to having a practice of applying presentence

credits to each consecutive sentence. See supra. We note that

in light of Respondent’s concession, the ICA erred in determining

that HPA had such a “longstanding practice” of applying

presentence credit only once. However, even if HPA did have such

a practice, it cannot be said that application of Tauiliili to

Petitioner violated his due process rights. Due process does not

protect Petitioner’s asserted reliance on the HPA’s improper

calculation of his minimum release date, which thereby mistakenly

shortened his imposed minimum and maximum sentences in

contravention of HRS § 706-671. Such reliance is unfounded where

both the commentary to HRS § 706-671 and HAR § 17-1204-17

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demonstrated that the HPA was incorrectly applying presentence

credits.

VII.

Although not expressly argued, Petitioner seemingly

suggests that he had a due process right in the implementation of

the plea agreement terms. But, as noted by Respondent on appeal

to the ICA, the plea agreement specifically indicates that

Petitioner’s guilty plea was made “[i]n consideration of the

substantial concessions of” (1) the reduction of a charge of

Robbery in the First Degree to Robbery in the Second Degree under

counts II, III, and IV; (2) Respondent’s relinquishment of an

allegation that Petitioner used a handgun under counts II, III,

and IV; and (3) Petitioner being subject to continuing

prosecution under counts II, III, and IV for Robbery in the First

Degree should the first plea offer be rejected. The only

reference to presentence credit in the plea agreement states that

Petitioner was “free to argue at sentencing for credit for time

served dating from the date of initial arrest on October 22,

1995.” Thus, the plea agreement itself does not imply that

Petitioner gave up any rights, based in part, on his

understanding that presentence credit would be applied to each of

his consecutive terms.

When Petitioner was arrested for the offenses in this

case in October 1995, Petitioner was on parole for a previous and

unrelated conviction, the sentence for which was to expire in

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2001. As a result of violating parole, Petitioner had to serve

the remaining six years of that term (unexpired term). As noted,

Petitioner had been sentenced to two ten year terms, the first of

which was to run concurrently with Petitioner’s unexpired term.

As recounted, Petitioner contends in his Application that the

sentencing transcript indicates that he and the sentencing court

intended to apply the prsentence credit to both of his

consecutive terms. The only language in the transcript to which

he points in support of this argument is his statement, “So when

I finish doing the unexpired prison term because these all these

terms are going to be concurrent with my expired, that’s six

years off each term.” (Emphasis in original.) He also points

out that the sentencing court stated that his total sentence

would be sixteen years.

However, the sentencing transcript reveals that the

foregoing remarks were based on Petitioner’s misconception that

his unexpired term would run concurrently with both of his ten-

year terms as opposed to only his first ten-year term. The

foregoing statement was made in the following context:
[Court]: This criminal number is supposed to run
with any other sentence that you’re currently serving.
[Petitioner]: Yes. But not consecutively.
[Court]: No. Just [c]ount 1 will be consecutive to
the four [c]ounts 2 through 5.
[Petitioner]: Okay. And my unexpired term will be
concurrent with all five 10-year terms; correct?
[Court]: Yes. And I think the effect is . . .
[Petitioner]: That those tens, even though they’re
running consecutive to each other. And generally one would
not start until the first one finished. But as this plea
agreement is worded, they both are going to be concurrent.
So for the six years from 1995, which was my unexpired []
term, these terms are all going to run with that.

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So in 2001, when I finished [sic] [my unexpired term],
there’s only 4 and 4 left of [each] 10-year[] term, at which
time they will revert consecutively to each other because
there’s no more unexpired prison term to run concurrently
with.

(Emphasis added.) Petitioner continued to argue, “So when I

finish doing that unexpired [] term, because . . . all these

terms are going to be concurrent with my unexpired, that’s six

years off this term.” The court then said, “Well, if you max out

on everything -- I think in this case what you look at is 16

years[.]” Petitioner stated, “The way I figured out, it came out

to just about 14 years[.]”

At the hearing on his Petition in this case, the court

asked Petitioner to identify language in the sentencing hearing

that would indicate presentence credit would be applied to each

of his consecutive terms. Petitioner responded that he had

stated that his entire sentence “came out to about 14 years” and

the court responded that it was about “16 years.”

But, at the Petition hearing, the court said that

Petitioner had been arrested and placed into custody for the

offenses in this case on October 22, 1995, and was sentenced on

March 3, 1998. Therefore, the presentence credit would have been

“[a]bout two years and four months.”15 The court explained that

if Petitioner believed that credit would be applied twice,

Petitioner would have calculated a total presentence credit of

15
As noted, at the time of sentencing, Petitioner had been
incarcerated for 863 days which would amount to just under two years and four
months.

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four years and eight months. Petitioner was asked to point to

remarks from the sentencing hearing suggesting that he would

receive a total of four years and eight months of presentence

credit as opposed to two years and four months. Petitioner then

asserted that the record contained a reference to a five-year

period stating, “I said 14, she said 16. Right in the middle is

15.”16 The court then asked, “Isn’t it true that [in coming up

with fourteen years,] what you [were] doing [was] . . .

calculating it based on your prior conviction[,]” i.e.

Petitioner’s unexpired term. Petitioner responded, “In part[,]”

but maintained that it also included his calculation of

presentence credit, which he believed would be applied to each

consecutive ten-year term.

Although Petitioner contended at the Petition hearing,

to the ICA, and now, to this court, that the fourteen-year and

sixteen-year references support an intent to apply presentence

credit to both of his consecutive terms, it is evident from the

foregoing that the fourteen-year reference resulted from

Petitioner’s belief that he would be serving his unexpired term

16
If presentence credit were applied once, Petitioner’s total
sentence would be seventeen years and eight months. If presentence credit
were applied twice, Petitioner’s total sentence would be about fifteen years
and four months. Notably, neither the court’s sixteen-year reference nor
Petitioner’s fourteen-year reference reflect the application of presentence
credit to both consecutive terms. Apparently unable to find any specific
language in the sentencing transcript suggesting that he or the court intended
for his presentence credit to apply to each consecutive ten-year term,
Petitioner attempts to use the average of the two periods stated to suggest
that there was a fifteen-year reference. Inasmuch as there was no mention of
a credit of four years and five months, as discussed infra, those two
statements had nothing to do with presentence credit.

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from 1995 to 2001 for a total of six years and that both

consecutive ten-year terms would run concurrently with his six

year unexpired term. Therefore, he argued that after serving his

six years on his unexpired term, four years would be left on each

consecutive term which would then run consecutively for a total

sentence of fourteen years (six years on the unexpired and two

consecutive four-year terms).

It is unclear how the court arrived at sixteen years.

Respondent urges that it is likely that the mistaken sixteen-year

remark resulted from Petitioner’s reference to “‘six years’

[from] his then-unexpired prison term and adding it to the second

of his ‘ten-year term’ for a total of sixteen years.” This is

supported by the fact that the court’s statement responded to

Petitioner’s argument that both of his consecutive ten-year terms

were to run concurrently with his unexpired term; not any

argument relating to presentence credit. The sentencing court in

fact stated that it had not “done the math.”

It may be further observed that in response to

Petitioner’s argument regarding his unexpired term, the

sentencing court specifically warned, “And let me tell you –- I

can’t tell you what the Paroling Authority will do because I

don’t know if they’ll make you serve the full time or if they’ll

parole you or anything else.” Petitioner then stated that

although he was willing to serve the sentence imposed by the HPA,

he “just wanted to have [his] sentence imposed in accordance with

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the plea agreement and related statutes.” The following exchange

then took place.
[Court]: What I’m telling you right now is if you--
if you don’t see it that way, you have a couple of choices.
One of those choices is to forget the plea agreement,
withdraw your plea, go to trial on all the original charges.
[Petitioner]: That would never come into my mind.
What I would just like is, you know, have these obligations
under the plea agreement. That’s the issue.
[Court]: Okay. And if there’s a dispute about
that, you need to know that the State is looking for 20
years. But from what you’ve told me, you’re looking for 14.
[Petitioner]: No. But the thing is why did the
State bind themselves [sic] and the [c]ourt bind themselves
[sic] to this agreement as specifically written?
[Court]: I’m saying I’m looking at the whole
agreement. I’m not looking at -- picking one sentence out.
[Petitioner]: Okay. Well, I’m looking at the
whole agreement myself. And my interpretation, I believe,
is correct and is backed [b]y related statutes. So if I
don’t see it any other way I’ll have to -- because I will
not withdraw my plea ever -- I would have to appeal. . . .

(Emphases added.) As indicated, the entire colloquy involved a

disagreement regarding how Petitioner’s current sentence would

run with his unexpired term. Petitioner agreed with the court’s

interpretation in declining to withdraw his plea notwithstanding

any alleged discrepancy. The foregoing also confirms that the

court did not make any promises regarding the use of presentence

credits, and Petitioner was specifically warned that the

sentencing court could not make any representations regarding his

release date or whether he would be eligible for parole. In view

of the foregoing, Petitioner’s argument that recalculation of his

sentence violated his due process rights must be rejected.17

17
Because this court has adopted a similar due process analysis with
respect to the retroactive application of judicial decisions, see Jess, 117
Hawai#i at 407-08, 184 P.3d at 159-60, Petitioner’s due process claim fails
under both the United States and Hawai#i Constitutions.

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VIII.

As recounted, separate and apart from Petitioner’s

questions regarding the Ex Post Facto and Due Process Clauses of

the United States Constitution, Petitioner’s second question

involves whether Tauiliili should have been applied retroactively

to Petitioner, or whether it should have applied prospectively

only.

A.

This court has stated that “judicial decisions are

assumed to apply retroactively[.]” Ikezawa, 75 Haw. at 220, 857

P.2d at 597. However, retroactive application “is not

automatic[,]” id. at 220, 857 P.2d at 598, and where “a judicial

decision announces a ‘new rule,’” “this court may, in its

discretion, determine that the interests of fairness preclude

retroactive application of the new rule[,]” State v. Ketchum, 97

Hawai#i 107, 123 n.26, 34 P.3d 1006, 1022 n.26 (2001) (quoting

State v. Peralto, 95 Hawai#i 1, 6, 18 P.3d 203, 208 (2001)); see

State v. Garcia, 96 Hawai#i 200, 211, 29 P.3d 919, 930 (2001)

(“When questions of state law are at issue, state courts

generally have the authority to determine the retroactivity of

their own decisions.”) (Internal quotation marks and citations

omitted.) In other words, retroactivity is assumed unless a “new

rule” is announced. See Jess, 117 Hawai#i at 400, 184 P.3d at 152

(“The question of prospective application arises when this court

announces a new rule.”) (Citation omitted.). Thus, the

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threshold question is whether this court’s decision in Tauiliili

announced a “new rule.” As this court has recognized, “[i]t is

only when the law changes in some respect that an assertion of

nonretroactivity may be entertained, the paradigm case arising

when a court expressly overrules a precedent upon which the

contest would otherwise be decided differently and by which the

parties may previously have regulated their conduct.” Id. at

400, 184 P.3d at 152 (quoting James B. Beam Distilling Co. v.

Georgia, 501 U.S. 529, 534 (1991)).

As discussed previously, in Jess, the majority ruled

that Jess announced a new rule because, under previous precedent,

“the intrinsic/extrinsic distinction . . . did not require, and

indeed counseled against, the inclusion of extrinsic facts in the

charging instrument” and, therefore, Jess “represent[ed] the

first instance in which [a majority of this court] questioned the

ongoing viability of the intrinsic/extrinsic distinction in the

context of charging procedure.” Id. at 400-01, 184 P.3d at 152-

53. As stated, the rule in Jess was new because it marked a

departure from this court’s prior precedent. By contrast, in

Ketchum, this court held that the rule for which the petitioner

sought nonretroactivity was not new, inasmuch as it “merely

clarified [an] existing proposition.” Ketchum, 97 Hawai#i at 123

n.26, 34 P.3d at 1022 n.26. “As such, there [wa]s no ‘new []

rule’ to which to give retroactive application in the first

instance.” Id.

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Applying the foregoing, Tauiliili did not “overrule[] a

precedent upon which the contest would otherwise be decided

differently[.]” Jess, 117 Hawai#i at 400, 184 P.3d at 152.

Unlike Jess, Tauiliili was not a departure from precedent but,

rather, confirmed the law as it existed prior to that decision.

See Rivers, 511 U.S. at 312-13 (“A judicial construction of a

statute is an authoritative statement of what the statute meant

before as well as after the decision of the case giving rise to

that construction.”). Accordingly, the proposition in Tauiliili

applies retroactively.

B.

Assuming arguendo, Tauiliili did announce a “new rule,”

insofar as it was inconsistent with HPA’s practice of applying

presentence credits to each consecutive sentence, Ikezawa does

not require prospective application only, as Petitioner urges.

In Ikezawa, on March 23, 1990, the defendant had been arrested

and charged with third degree assault. 75 Haw. at 213, 857 P.2d

at 595. This charge was subsequently dismissed without

prejudice. Id. Over a year later, the defendant was charged

with second degree assault. Id. The defendant filed a motion

to dismiss the charge pursuant to Hawai#i Rules of Penal Procedure

Rule (HRPP) 48(b)(1),18 which was denied. The defendant was

18
HRPP Rule 48(b)(1) in effect at the time provided:

Except in the case of traffic offenses, the court shall, on
motion of defendant, dismiss the charge, with or without
prejudice in its discretion, if the trial is not commenced
within 6 months from:
(continued...)

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convicted of the lesser included offense of third degree assault.

Id.

On appeal, the defendant argued that the circuit court

had improperly denied his motion to dismiss the charge because

“the six-month period within which trial must commence under HRPP

[Rule] 48(b)(1) had lapsed.” Id. The defendant contended that

pursuant to State v. Holt, 67 Haw. 246, 684 P.2d 971 (1984), and

State v. Stone, 65 Haw. 308, 651 P.2d 485 (1982), “where the

original charge differs from the subsequent charge, the time

period between the dismissal of the original charge and the

filing of the new charge must be included in the six-month

calculation.” Ikezawa, 75 Haw. at 213, 857 P.2d at 595 (emphasis

added).

The defendant argued that State v. Balauro, 73 Haw. 70,

828 P.2d 267 (1992), which was decided after the defendant had

been convicted but prior to his appeal, should not apply to him.

75 Haw. at 213, 857 P.2d at 595. In Balauro, this court held

that under a correct reading of HRPP 48(b)(1), the six-month

period is tolled when the later charge is the same as, or is

required to be joined with, the original charge. Id. In other

words, under Balauro, the six-month period would have been tolled

18
(...continued)
(1) the date of arrest or of filing of the charge,
whichever is sooner, on any offense based on the same
conduct or arising from the same criminal episode for
which the arrest or charge was made[.]

Ikezawa, 75 Haw. at 211 n.1, 857 P.2d at 594 n.1 (formatting altered).

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because the second charge, assault in the second degree, was

required to be joined with the original charge of assault in the

third degree. The defendant maintained that applying Balauro to

him would violate his due process rights because he had relied on

Stone, and if he had known that Balauro would control, he could

have filed his motion at a later time, when a HRPP Rule 48(b)(1)

dismissal would have been required. Id. at 213-14, 857 P.2d at

595.

Ikezawa observed that in State v. Santiago, 53 Haw.

254, 268, 492 P.2d 657, 665 (1971), this court noted the “curious

lacework” of the Supreme Court regarding retroactivity and

recognized that:
In making those determinations, the United States Supreme
[Court] . . . has given consideration to three factors:
(a) the purpose to be served by the newly announced rule,
(b) the extent of reliance by law enforcement authorities on
the old standards, and (c) the effect on the administration
of justice of a retroactive application of the new
standards.

75 Haw. at 220, 857 P.2d at 598 (brackets omitted). The Ikezawa

court added that in another case, Russell v. Blackwell, 53 Haw.

274, 277, 492 P.2d 953, 956 (1972), this court stated that

“‘[f]actors to be considered include: Prior history of the rule

in question, its purpose and effect, and whether retroactive

operation will further or retard its operation; interests in the

administration of justice and the integrity of the judicial

process.’” 75 Haw. at 220, 857 P.2d at 598. According to

Ikezawa, “implicit in the factors described in Santiago and

Russell is the concept of fairness.” Id.; see also Garcia, 96

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Hawai#i at 211, 29 P.3d at 930 (stating that the Ikezawa placed

emphasis on “‘the concept of fairness’” in retroactively applying

judicial decisions). Ikezawa thus stated that “where substantial

prejudice results from the retrospective application of new legal

principles to a given set of facts, the inequity may be avoided

by giving the guiding principles prospective application only.”

Ikezawa, 75 Haw. at 220-21, 857 P.2d at 598.

Applying the three factors from Santiago, this court

determined that with regard to the first factor, “[t]he purpose

of HRPP Rule 48 is to insure a defendant’s right to a speedy

trial by requiring that the trial start within six months of the

charge or arrest.” Id. at 222, 857 P.2d at 598. The

Ikezawa court concluded that the purpose of Balauro was to set

forth the correct interpretation of HRPP Rule 48. Id. at 222,

857 P.2d at 598-99 (“A retroactive application of Balauro

furthers the purpose of the HRPP [Rule] 48(c) . . . by correctly

interpreting the rule and tolling the six-month limitation where

the reprosecution occurs after the dismissal of an earlier

charge.”).

As to the second factor, the Ikezawa court noted that

the defendant had relied on this court’s decision in Stone and

moreover, that his “reliance was substantial.” Id. at 222, 857

P.2d at 599. Ikezawa reasoned that “had [the defendant] known

that the Balauro rule would be applied, he could have filed a

successful HRPP 48 motion at a later time.” Id.

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Finally, with respect to the administration of justice,

this court determined that, “given the timing of [the

defendant’s] motion, Stone required a dismissal of the charge

while the retroactive application of Balauro preclude[d]

dismissal.” Id. It was noted that the defendant “could have

received a dismissal under the Balauro rule if he had delayed the

filing of his motion.” Id. Ikezawa determined that

“[r]etroactive application of Balauro would, therefore, produce a

substantially inequitable result.” Id. Ikezawa recognized that

on the other hand, “applying Balauro prospectively would not

place a heavy burden on the judicial system[.]” Id. This court

ultimately determined that Balauro should not have been applied

retroactively to the defendant inasmuch as “the inequity and

prejudice of retroactively applying Balauro . . . outweigh[ed]

the fact that Balauro properly interpreted the language of HRPP

[Rule] 48(c)(6).” Id.

In the instant case, with respect to the first Santiago

factor, the purpose of Tauiliili was to set forth the correct

interpretation of HRS § 706-671. Thus, Tauiliili furthers the

purpose of HRS § 706-671 of providing “equalization . . . between

those defendants who obtain pre-sentence release and those who do

not” by ensuring that all defendants similarly situated are

treated equally as to the length of their sentences for the same

offenses. Tauiliili, 96 Hawai#i at 199, 29 P.3d 918 (internal

quotation marks omitted).

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With respect to the second factor, this court has noted

that Ikezawa specifically “considered substantial prejudice in

the context of a defendant’s reliance on overruled precedent.”

Garcia, 96 Hawai#i at 212, 29 P.3d at 931. Here, there was no

prior decision which interpreted HRS § 706-671 as to the

application of presentence credit to consecutive sentences. Any

reliance on Petitioner’s behalf was on HPA’s prior practice of

applying presentence credits to each consecutive sentence, which

resulted from HPA’s own misapplication of HRS § 706-671.

Furthermore, although ultimately, Petitioner’s minimum release

date was set at a later date than originally set, application of

Tauiliili to Petitioner avoids any unfairness that may result as

between defendants convicted for the same offenses. See

Tauiliili, 96 Hawai#i at 199, 29 P.3d at 918 (stating that

presentence credit is intended to ensure “equal treatment of all

defendants whether or not they are incarcerated prior to

conviction”). For example, in the instant case, Petitioner was

essentially sentenced to two consecutive ten years terms. See

supra. By HPA’s original calculation, Petitioner’s presentence

credit of 863 days was applied to both his first term and second

term. Under that interpretation, a defendant who had been

convicted of the same offenses as Petitioner, but who did not

serve any presentence time, would serve a longer sentence than

Petitioner’s sentence by a total of 863 days. Thus, the

application of Tauiliili to Petitioner would not result in

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injustice inasmuch as Petitioner would serve the same sentence

that a defendant who had not been detained prior to sentencing

would serve.

It may be further observed that HRS § 706-600 (1993)

“expressly precludes the imposition of any sentence not

authorized by chapter 706.” State v. March, 94 Hawai#i 250, 254,

11 P.3d 1094, 1098 (2000). Because Tauiliili set forth the

correct interpretation of HRS § 706-671, to rule that Tauiliili

should not be retroactively applied would be to sanction a

sentence not authorized under chapter 706.

Finally, as to the third factor, the interests in the

administration of justice and the integrity of the judicial

process are best served by consistent application of sentences

for all defendants convicted for the same offense and by having

the sentences of all inmates properly calculated. Also, HPA has

seemingly undertaken the task of recalculating the sentences of

inmates, as evident from the Policy. Therefore, retroactive

application of Tauiliili would not place a heavy burden on the

courts or on the administration of justice. In sum, any alleged

inequity resulting from the recalculation of Petitioner’s

sentence does not outweigh the other Santiago factors.

IX.

The ICA did not gravely err in affirming the court’s

Order Denying Petitioner’s January 10, 2008 Nonconforming

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Petition for Post-Conviction Relief, and its July 16, 2010

judgment is affirmed on the grounds set forth herein.

Glenn D. Choy for /s/ Mark E. Recktenwald
petitioner/petitioner-
appellant. /s/ Paula A. Nakayama

Diane K. Taira and /s/ Simeon R. Acoba, Jr.
Darcy H. Kishida,
Deputy Attorney /s/ James E. Duffy, Jr.
Generals, for
respondent/respondent- /s/ Edwin C. Nacino
appellee.

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