NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
NO. 30028
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAfI
SAOFAIGA LOA, Petitioner-Appellant,
v.
STATE OF HAWAfI, Respondent-Appellee.
ssi w 02 :mrmz
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(S.P.P. NO. 08-1-OO29 (CR NO. 92-200l))
SUMMARY DISPOSITION ORDER
(By: Nakamura, C.J., Leonard, Ginoza, JJ.)
Petitioner-Appellant Saofaiga Loa (Loa) appeals from
the "Findings of Fact, Conclusions of Law, and Order Denying
Petition.for Post-Conviction Relief (Order Denying Petition),
which was filed on August 13, 2009, in the Circuit Court of the
First Circuit (circuit court).F We affirm.
I.
The facts regarding Loa's underlying criminal case were
described by the HawaFi Supreme Court as follows:
In the early morning hours of July 3, 1992, Loa and
two of his male companions attacked a couple--the
complainant and her male companion, a legally blind person-~
in the park on Magic Island, which is located in the City
and County of Honolulu. During the course of the attack,
the complainant was repeatedly sexually assaulted (including
[numerous and different acts of sexual penetration]--all by
"strong compulsion"), stabbed in the back with a knife, and
left naked and bleeding on the beach. Her automobile was
stolen. Her male companion was also stabbed repeatedly and
left to die. During their ordeal, the complainant and her
male companion were continually taunted by their attackers
about their ethnicity and imminent deaths. Remarkably, both
victims survived.
State V. LOa, 83 HaWaiH_335, 339, 926 P.2d l258, 1262 (l996).
After a jury trial,W Loa was found guilty of one count
of attempted manslaughter, one count of first degree robbery, six
y The Honorable Michael D. wilson presided.
9 The Honorable James R. Aiona, Jr., presided over Loa's criminal trial
and sentencing.
€Z §§ 'l"i;i
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counts of first degree sexual assault, and one count of
kidnapping. Respondent~Appellee State of Hawaii (State) moved
for extended terms of imprisonment pursuant to Hawaii Revised
Statutes (HRS) §§ 706-661 and 706-662(4) and (5) (1993) and
further moved that the terms of imprisonment imposed on Loa be
served consecutively. The circuit court granted the State's
motions for extended term sentencing, based on Loa's status as
multiple offender under HRS § 706-662(4), and for consecutive
sentencing. The circuit court sentenced Loa to seven extended
terms of life imprisonment with the possibility of parole for his
class A felonies (first degree sexual assault and first degree
robbery) and two extended terms of twenty years of imprisonment
for his class B felonies (attempted manslaughter and kidnapping),
all terms to run consecutively.
Loa filed a direct appeal from his convictions and
sentences. On November 6, 1996, the Hawafi Supreme Court issued
a published opinion that vacated Loa's conviction and sentence
for attempted reckless manslaughter, which the supreme court held
was a non-existent offense, and affirmed the circuit court's
judgment and sentence in all other respects. LQa, 83 HawaiH.at
361, 926 P.2d 1284. There is no indication that Loa petitioned
for writ of certiorari to the United States Supreme Court.
II.
On July 25, 2008, Loa filed a "Petition to Vacate, Set
Aside, or Correct Judgment or to Release Petitioner from Custody"
(Petition), pursuant to Hawaii Rules of Penal Procedure (HRPP)
Rule 40 (2006). On August l3, 2009, the circuit court denied the
claims raised by Loa in his Petition and issued its Order Denying
Petition.
The gist of Loa's arguments on appeal, as it was in the
circuit court, is that: 1) Apprendi v. New JerseV, 530 U.S. 466
(2000), and its progeny apply retroactively to Loa's case to
invalidate his extended terms of imprisonment; 2) based on §;at§
v. Maugaotega, 115 HawaiH.432, 168 P.3d 562 (2007) (Maugaotega
l;), the version of the extended term statute under which Loa was
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sentenced, Hawaii Revised Statutes (HRS) § 706-662 (1993), was
void ab initio, and thus his extended term sentences must be
vacated and ordinary term sentences imposed; and 3) based on
Apprendi and its progeny, the circuit court's imposition of
consecutive sentences was unconstitutional because it was not
based on facts found by’a jury.
Upon careful review of the record and the briefs
submitted by the parties, we hold as follows:
1. Apprendi and its progeny do not apply retroactively
to Loa's collateral attack on his extended term sentences because
his convictions and sentences became final before Apprendi was
decided. See State v. Gomes, 107 HawaFi 308, 312-l4, 113 P.3d
l84, 188-90 (2005); LOher V. State, ll8 HaWaiU.522, 534-38, 193
P.3d 438, 450-54 (App. 2008); United States V. CruZ, 423 F.3d
1119, 1120-21 (9th Cir. 2005). Maugaotega II, which was based on
Cunninqham v. California, 549 U.S. 270 (2007), a progeny of
Apprendi, likewise does not apply retroactively to Loa's
collateral attack of his extended term sentences. §§g Gomes, 107
HawaFi at 312-14, 113 P.3d at 188-90; Loher, 118 Hawafi at 534-
38, 193 P.3d at 450-54; g;u;, 423 F.3d at 1120-21.
2. The version of HRS § 706-662 under which Loa was
sentenced was not void ab initio. See State v. Jess, 117 HawaiH
38l, 388-89, 406-l5, 184 P.3d l33, 140-4l, l58-67 (2008); §§§L§
v. cutsinger, 118 HawaiU_63, 79-32, 135 P.3d 316, 827-330 (App.
2008), overruled in part on other grounds by Jess, 117 Hawafi at
398 n.17, 184 P.3d at 150 n.17; Loher, 118 Hawafi at 534-38, 193
P.3d at 450-54. Loa's convictions and extended term sentences
.became final before the United States Supreme Court announced its
new constitutional rule of criminal procedure in Apprendi v. New
Jersey, 530 U.S. 466 (2000), and thus Loa*s extended term
sentences were constitutional and legal when imposed. §§§ §gm§§,
107 HawaFi at 314, 113 P.3d at 190.
In Q§§§, the Hawafi Supreme Court held that the trial
court had the authority to resentence Jess to extended terms of
imprisonment pursuant to the former version of the extended term
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sentencing statute, HRS § 706-662 (Supp. 1996), which was in
effect in 2000 when Jess committed the charged offenses, by
invoking its inherent judicial power to empanel a jury to make
the "necessity" finding. ge§§, 117 Hawafi at 388-89, 410-l3,
184 P.3d at 140-41, 162-65; see also State v. Mark, No. 26784,
slip op. at 97-101, 2010 WL 1888944, at *45-47 (Hawafi May 12,
2010). The supreme court could not have reached this conclusion
in g§§§ if the former versions of HRS § 706-662 were void ab
initio.
Loa's reliance upon Riley v. Kennedy, 553 U.S. 406, 128
S. Ct. 1970 (2008), is misplaced. The context in which the Court
in Riley determined that an Alabama election law was properly
regarded as void ab initio was far different from Loa's
situation. Riley is inapposite and does not support Loa's
arguments.
3. Apprendi and its progeny do not prohibit the
sentencing court from making factual findings necessary to impose
consecutive sentences. See State v. Kahapea, 111 Hawafi 267,
278-80, 141 P.3d 440, 451-53 (2006) (dismissing the proposition
that Aporendi or BlakelV v. Washinqton, 542 U.S. 296 (2004),
proscribes consecutive term sentencing by a trial judge); Oregon
y;_lg§, --- U.S. ---, ---, 129 S. Ct. 7ll, 714-15 (2009)
(confirming the constitutionality of the practice of allowing
sentencing courts to determine the facts necessary to impose
consecutive sentences); see also State v. Hussein, --- Hawafi
---, ---, 229 P.3d 313 (2010) (upholding trial judge's imposition
of consecutive sentences). Accordingly, the circuit court's
determination that Loa's sentences should be served consecutively
and its imposition of consecutive sentences did not violate the
constitution.W
y We are not persuaded by Loa's contention that a 2003 unpublished
memorandum opinion by the Hawafi Supreme Court in State v. Sua, NO. 24501
(Hawafi December 30, 2003), supports his claim that Apprendi should be
applied retroactively to his collateral attack of his sentences. Sua was not
sentenced to an extended term of imprisonment, and the supreme court affirmed
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III.
The circuit court's August 13, 2009, Order Denying
Petition is affirmed.
~DATED= Honolulu, Hawai‘i, June 30, 2010.
On the briefs:
Saofaiga Loa l ' 7( ?Zzé
Petitioner-Appellant
Chief Judge
Anne K. Clarkin .
Deputy Prosecuting Attorney
City and County of Honolulu
for Respondent-Appellee
Associate Jud~e
W(...continued)
the trial court's imposition of consecutive sentences. The supreme court did
not hold that Apprendi applied retroactively to Sua's collateral attack of his
sentences, but merely cited Apprendi in support of its conclusion that Sua
possessed a colorable claim with respect to the validity of his mandatory
minimum term of imprisonment that entitled him to a hearing. Under HawaiH
Rules of Appellate Procedure Rule 35(c)(1) (2008), Loa cannot cite the
unpublished decision in §ga as precedent or for persuasive value. Moreover,
the supreme court subsequently issued a published opinion in Gomes holding
that Apprendi does not apply retroactively to cases on collateral attack.
GOmeS, 107 Hawai‘i at 312-14, 113 P.3d at 188-90.
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