LAWHJBRAHY
NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
No. 29752
1N THE INTERMEDIATE coURT oF APPEALs §
oF THE sTATE oF HAwArI §
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sTATE oF HAwArI, P1aintiff-Appe11ee, §§
PETER TIA, Defdhdant-Appellant. §
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APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CR. NO. 07-l-l443)
SUMMARY DISPOSlTION ORDER
(By: Foley, Presiding Judge, Reifurth and Ginoza, JJ.)
Defendant~Appellant Peter Tia (Tia) appeals from the
(Amended Judgment)
Amended Judgment of Conviction and Sentence
2009 in the Circuit Court of the First
entered on January 29,
Tia was convicted of Promoting a
Circuit (circuit court).1
Dangerous Drug in the Second Degree in violation of Hawaii
Revised Statutes (HRS) § 712-1242 (Count I) and Promoting a
Dangerous Drug in the Third Degree in violation of HRS § 712-1243
He was sentenced to a term of imprisonment of ten
(Count II).
years for Count 1 and five years for Count II, with a mandatory
sentences to run
minimum sentence of three years and four months,
The mandatory minimum period was
concurrently with each other.
ordered by the circuit court based upon its determination that
Tia was a repeat offender pursuant to HRS § 706-6O6.5.2
The Honorable Randall K.O. Lee presided.
l
(l993 & Supp. 2006) provides,
in pertinent part:
2 HRS § 706-606.5
§706-606.5 Sentencing of repeat offenders.
Notwithstanding section 706-669 and any other law to the c0ntrary,
any class B felony, or any of the
section 707-711 relating to
section 712-1243 relating to
and who has a
(H
any person convicted of
following class C felonies:
assault in the second degree
promoting a dangerous drug in the third degree
prior conviction or prior convictions for the following felonies,
including an attempt to commit the same: a class B felony,
[or] any of the class C felony offenses enumerated above
shall be sentenced to a mandatory minimum period of imprisonment
(continued...)
without possibility of parole during such period as follows:
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On appeal, Tia contends that the circuit court erred in
sentencing him to the mandatory minimum period as a repeat
offender. The specific point of error raised by Tia on appeal is
that the circuit court "erred when it held that [Tia] was
sufficiently identified by the Prosecuting Attorney as the same
person previously convicted in [Criminal No.] 96-O703 based on:
l) the certified copies of the [Criminal No.] 96-O703 case file;
and 2) the presentence diagnosis and report . . . which was the
basis for the Circuit Court sentencing [Tia] as a repeat
offender."
Upon a careful review of the record and the briefs
submitted, and upon due consideration of the arguments made by
the parties, we hold that the circuit court did not err in
sentencing Tia to the mandatory minimum period as a repeat
offender.
2(...continued)
(a) One prior felony conviction:
kiii) Where the instant conviction is for a class B felony~-
three years, four months;
(2) Except as in subsection (3), a person shall not be
sentenced to a mandatory minimum period of imprisonment under this
section unless the instant felony offense was committed during
such period as follows:
kdi within ten years after a prior felony conviction where
the prior felony conviction was for a class B felony[.]
On October 29, 1997, Tia was convicted of Assault in the First Degree (a
class B felony), Kidnapping (a class B felony) and Assault in the Second
Degree (an enumerated class C felony) in Cr. No. 96-O703. In the instant
case, Tia was found guilty of Promoting a Dangerous Drug in the Second Degree
(a class B felony) and Promoting a Dangerous Drug in the Third Degree (an
enumerated class C felony). The instant offenses were committed on August 1,
2007. Since the instant offenses included a class B felony (Promoting a
Dangerous Drug in the Second Degree) which was committed within ten years of
the previous conviction for another class B felony (kidnapping and assault in
the first degree), Tia's mandatory minimum sentence was three years, four
months under HRS 706-606.5(1)(a)(iii).
NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
1. Background
On May 22, 2008, a jury found Tia guilty as to both
Count 1 and Count 11. On October 3, 2008, Plaintiff-Appellee
State of Hawai‘i (State) filed a Motion for Sentencing of Repeat
Offender (Repeat Offender Motion). On January 27, 2009, a
sentencing hearing was held which included addressing the Repeat
Offender Motion. d
During the sentencing hearing, the circuit court stated
that it was in receipt of Tia's presentence diagnosis and report
and asked the parties if they had any additions or corrections to
the report. Both parties responded they had no additions or
corrections. The circuit court therefore made the presentence
diagnosis and report part of the record.
The State then sought to introduce certified documents
in a prior criminal matter, Criminal No. 96-0703. Defense
counsel acknowledged that he had reviewed the documents but
objected to the circuit court receiving the certified documents.
Over defendant's objection, the circuit court received the
certified copies in Criminal No. 96-O703 which included: a five
count indictment of Peter Ray Ti'a; an Order Appointing Counsel;
a Guilty Plea form entered on October 7, l996; and a Judgment
entered October 29, 1997 convicting Peter Ray Ti'a of Assault in
the First Degree, Kidnapping, and three counts of Assault in the
Second Degree.
The circuit court noted that the presentence diagnosis
and report indicated the same entries that were documented by the
certified copies in Criminal No. 96-O703.
1n addressing the Repeat Offender Motion, the following
exchange then ensued:
THE COURT: . . . 1 will hear you first, Mr. Fujioka,
on the motion in terms of the motion for repeat offender.
MR. FUJ1OKA: Your H0nor, the reason we objected [to
the court's receipt of the certified documents] is 1 have
never been -~ 1 have reviewed the State's motion and 1'm
familiar with the repeat offender law. 1 have never been
able to quite convince Mr. Tia that the repeat offender
statute applies to him.
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There has been that and a number of other disputes to
the point where 1'm thinking -- 1 know he wants to appeal.
So 1'm going to ask that substitute counsel be appointed for
that purpose.
THE COURT: Sure. .
MR. FUJ1OKA: 1 believe that 1 can proceed with
sentencing, Your Honor, as well as any other under the
circumstances. So 1'm prepared to do that.
THE COURT: Okay. So any argument on the motion for
repeat offender? 1f you have any.
MR. FUJ1OKA: 1n terms of whether the motion should be
granted or not?
THE COURT: YeS.
MR. FUJ1OKA: 1 do not see any way around the Court
granting this motion. You have the first felony and the
second felony occurring within ten years of each other.
Because my understanding is that the first offense, it's the
date of conviction that controls --
THE COURT: That's correct.
MR. FUJ1OKA: -- as opposed to the date of offense.
THE COURT: That's correct.
MR. FUJ1OKA: Whereas the second conviction, it's the
date of offense which the Court must consider.
THE c0URT= Right.
MR. FUJ1OKA: And looking at that, those two dates,
they appear to fall within the ten years,
/
THE COURT: That's my reading of the statute. Okay.
Ms. Chun, anything you need to add?
MS. CHUN: Your Honor, 1'm not sure if they are
stipulating to 1.D. 1f 1.D. is an issue, we are going to
need a brief continuance.
Mr. Pacarro does remember Mr. Tia, but he asked to
review the actual '96 file to make sure that that's the case
that he convicted Mr. Tia of.
THE COURT: 1 will leave that up to you.
MS. CHUN: Then we are going to ask for a brief
continuance because 1 don't believe they are stipulating to
the identification of the defendant for that file.
We do have the certified documents. 1 didn‘t know
they were going to contest 1.D, until this morning.
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THE COURT: 1s there a stipulation that Mr. Tia is the
same person in Criminal number 96-O703?
1 believe there's case law, counsel, whereby since
there has been no objection to the contents of the
presentence diagnoses and report, that that's the same
person, is the same person that's been convicted of. But 1
will leave it up to you. 1t's not the Court's call. 1 will
make a determination based on what evidence has been
presented. 1 make no call in terms of what should be
presented or not presented. 1t's up to you.
MS. CHUN: Then we'll proceed today, Your Honor.
(Emphasis added).
The circuit court, relying on the representations of
both counsel, thereafter found that the information in the
presentence diagnosis and report was true and correct. The
~ circuit court also found that the items reflected by the
certified documents in Criminal No. 96-O703 are also documented
in the presentence diagnosis report, proving that Tia is the same
person in Criminal No. 96-O703. The circuit court therefore
granted the Repeat Offender Motion.
11. Discussion
A. Standard of Proof and Standard of Review
w The only question Tia raises on appeal is whether he
was sufficiently identified as the same person who was previously
convicted in Criminal No. 96-O703 based on the certified
documents from Criminal No. 96-O703 and the presentence diagnosis'
and report in this case. Pursuant to HRS § 706-666(2) (1993),
"[p]rior conviction may be proved by any evidence . . . that
reasonably satisfies the court that the defendant was convicted."
"[B]ecause this standard asks the trial court to make a
'judgment call,' on appeal its decision will be reviewed for
abuse of discretion." State v. Heqgland, 118 Hawafi 425, 444-
45, 193 P.3d 34l, 360-61 (2008).
B. Tia Did Not Raise A Good-Faith Challenge To The Prior
Conviction
Given that the presentence diagnosis and report
contained information informing the circuit court of the prior
conviction in Criminal No. 96-O703, it was incumbent on Tia to
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raise a good-faith challenge if he contends that the reported
prior conviction was not against him.. Hegg1and, 118 Hawafi at
439-40, 193 P.3d at 355-56; State v. SinaQOQa, 81 HaWaiH_421,
913 P.2d 228 (App. 1996) .3
1n Hegg1and, the HawaFi Supreme Court agreed with the
1ntermediate Court of Appeals that in Sinagoga, "a majority of
[the 1CA] established a procedure for determining whether a prior
conviction 'was conceded by the defendant[.]'" 118 Hawafi at
439, 193 P.3d at 355. The Hawafi Supreme Court then applied the
procedure established in Sinagoga that:
[1]n ordinary sentencing situations, which includes
mandatory minimum sentencing under HRS § 706-606.5, after
the sentencing judge has been informed pursuant to a
presentence diagnosis and report or otherwise of a
defendant's prior conviction(s),
each conviction listed may be used against defendant
except those as to which the defendant timely responds
with a good faith challenge on the record that the
prior criminal conviction was . . . not against the
defendant.
Hegg1and, 118 Hawafi at 439-40, 193 P.3d at 355-56 (citing
Sinagoga, 81 Hawai'i at 445, 918 P.2d at 252).
1f a defendant contends a prior conviction was not
against him, "the defendant sha11, prior to the sentencing,
respond with a good faith challenge on the record stating, as to
each challenged conviction, the basis or bases for the
cha11enge." Hegg1and, 118 Hawafi at 440, 193 P.3d at 356
(citation omitted).
3 we note that Sinagoga has been limited by the HawaiU.Supreme Court's
decision in State v. Veikoso, 102 HawaiH_219, 74 P.3d 575 (2003), in that the
procedure set out in Sinagoga applies in ordinary sentencing situations where
a defendant contends a prior conviction was either (a) uncounseled or (b) not
against the defendant; but in light of Veikoso, the procedure adopted in
Sinagoga no longer applies where the defendant contends the prior conviction
was "otherwise invalidly entered." Here, because Tia argues the State failed
to sufficiently identify him as the same person involved in Criminal No. 96-
0703, he is in essence contending that the prior conviction was not against
him. 1n this circumstance, the procedure established by Sinagoga is
applicab1e. .
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Given the requirements under Heggland and Sinagoga, Tia
failed to raise a good-faith challenge that the prior conviction
in Criminal No. 96-O703 was not against him. First, and
significantly, Tia did not challenge or seek to change the
information in his presentence diagnosis and report, which
reflected the prior conviction in Criminal No. 96-O703. Second,
Tia is simply incorrect in asserting on appeal that "the defense
specifically informed the [circuit] court that the defense was
objecting to 1.D. via documents." While before the circuit
court, and even currently on appeal, Tia has never directly or
expressly asserted that he was not the same person convicted in
Criminal No. 96-O703. He simply argues that the State had the
obligation to sufficiently identify him in the prior conviction
and that the documentation submitted was insufficient, even
though he accepted the contents of the presentence diagnosis and
report. Further, Tia's objection to the circuit Court's receipt
of the certified documents from Criminal No. 96-O703 was because
his counsel has "never been able to quite convince Mr. Tia that
the repeat offender statute applies to him." This is quite
different than, and short of asserting, a good faith challenge
that Tia was not the same person previously convicted in Criminal
No. 96-O703. As defense counsel acknowledged regarding the
Repeat Offender Motion, "1 do not see any way around the Court
granting this motion."
Given the above, Tia has failed to make a good-faith
challenge that the prior conviction was not against him and he
has never provided any basis for such a challenge.
Based on the foregoing, the circuit court did not abuse
its discretion in concluding that Tia is the same person that was
previously convicted in Criminal No. 96-O703 and the circuit
court did not err in granting the Repeat Offender Motion.
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We affirm the mandatory minimum sentence in the Amended
Judgment.
DATED= Honolulu, Hawai‘i, July 29, 2010.
On the briefs:
Venetia K. Carpenter-Asui
for Defendant-Appellant
Stephen K. Tsushima
Deputy Prosecuting Attorney
City and County of Honolulu
for Plaintiff-Appellee
war
Presiding Judge
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Associate Jud
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Associate Ju e