LAM!MBHAHY
NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
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STATE OF HAWAfI, Respondent-Appellee
APPEAL FROM THE CIRCUIT COURT OF THE THIRD CIRCUIT
(S.P.P. NO. 07-1-OOO4K, CR. NO. 94-l55K)
SUMARY DISPOSITION ORDER
(By: Nakamura, Chief Judge, Foley, and Leonard, JJ.)
Petitioner-Appellant Anthony Felix Torres (Torres)
appeals from the "Findings of Fact, Conclusions of Law, and Order
Denying Hearing on and Dismissing Petition to Vacate, Set Aside,
or Correct Judgment or to Release Petitioner from Custody, Filed
(Order Dismissing Petition), which was filed
2007"
in the Circuit Court of the Third Circuit
2009,
we affirm.
December 27,
on February 13,
(circuit court).9
I.
In Torres's underlying criminal case, a jury found
Torres guilty of the included offense of manslaughter on October
1996, to an
Torres was sentenced on December 20,
Torres filed a
30, l996.
extended term of imprisonment of twenty years.
direct appeal from his judgment of conviction and sentence in
Appeal No. 20403. On February 5, 1998, the Hawafi Supreme Court
issued a summary disposition order affirming Torres's conviction
and the judgment from which Torres appealed. Torres's conviction
and sentence became final in 1998 after the supreme court filed
its Judgment on Appeal.
On December 27, 2007, Torres filed a "Petition to
Vacate, Set Aside, or Correct Judgment or to Release Petitioner
from Custody" (Petition), pursuant to Hawaii Rules of Penal
Procedure Rule 40 (2006). Torres asserted three grounds for
relief in the Petition: (1) his extended term sentence was
V The Honorable Elizabeth A. Strance presided.
NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
unconstitutional and violated his Sixth Amendment right to a jury
trial and Fourteenth Amendment right to due process; (2) he was
subjected to multiple sentences in violation of Article I,
section 10 of the Hawaii Constitution and the Fifth Amendment of
the United States Constitution; and (3) the prosecutor had
engaged in vindictive misconduct. Torres filed a memorandum of
law and other pleadings in support of his Petition. The circuit
court concluded that Torres's claims did not entitle him to any
relief and issued its Order Dismissing Petition on February 13,
2009. ’ `
II.
Torres argues on appeal, as he did in support of his
Petition, that based on State v. Maugaoteqa, 115 Hawafi 432, 168
P.3d 562 (2007) (Maugaotega II), the version of the extended term
statute under which he as sentenced, Hawaii Revised Statutes
(HRs) § 706-662 (supp. 1990), was void ab initio, and thus his
extended term sentence must be vacated and an ordinary term
sentence imposed.
Upon careful review of the record and the briefs
submitted by the parties, we hold as follows:
Maugaotega II does not apply retroactively to Torres's
collateral attack on his extended term sentence which became
final in 1998. See State v. Gomes, 107 HawaiH_308, 312-14, 113
P.3d 184, 188-90 (2005); Loher v. State, 118 HawaiH.522, 534-38,
193 P.3d 438, 450-54 (App. 2008); United States v. Cruz, 423 F.3d
1119, 1120-21 (9th Cir. 2005).
The version of HRS § 706-662 under which Torres was
sentenced was not void ab initio. See State v. Jess, 117 HawaiH.
381, 388-89, 406-15, 184 P.3d 133, 140-41, 158~67 (2008); State
v. Cutsinger, 118 Hawaii 68, 79-82, 185 P.3d 816, 827-830 (App.
2008), overruled in part on other grounds by Jess, 117 HawaFi at
398 1'1.17, 184 P.3d at 150 1‘1.17,' LOher, 118 Hawai‘i at 534-38, 193
P.3d at 450-54. Torres's extended term sentence became final
before the United States Supreme Court announced its new
constitutional rule of criminal procedure in Apprendi v. New
2
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Jersey, 530 U.S. 466 (2000), and thus Torres's extended term
sentence was constitutional and legal when imposed. §gg §gm§§,
107 Hawafi at 314, 113 P.3d at 190. In Qe§§, the Hawaii 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 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. g§§§, 117
Hawaii at 338-89, 410-13, 134 P.3d at 140-41, 162-65; see §1§g,
State v. Mark, No. 26784, 2010 WL 1888944, at *45-47 (Hawafi May
12, 2010). The supreme court could not have reached this
conclusion in Qg§§ if the former versions of HRS § 706-662 were
void ab initio.
Torres'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
Torres's situation. Riley is inapposite and does not support
Torres's arguments.
Accordingly, Torres is not entitled to have his
extended term sentence vacated or set aside.
III.
The circuit court's February 13, 2009, Order Dismissing
Petition is affirmed.
DATED; Hono1u1u, Hawafi, May 28, 2010.
On the briefs:
Anthony Felix Torres £Za%j ;¥::Z z 3 7
ie Judge
Petitioner-Appellant Pro Se Ch
Linda Walton '
Deputy Prosecuting Attorney Associate Judge
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County of Hawafi
Respondent-Appellee