LAW LIBF€AHY
NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
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1N THE 1NTERMED1ATE c0URT 0F APPEALs
oF THE sTATE oF HAwAIE
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Plaintiff-Appellee, §§
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ZACHARY KANAKANUI, Defendant~Appellant
sTATE 0F HAwAf1,
APPEAL FROM THE CIRCUIT COURT OF THE THIRD CIRCUIT
(CR. NO. 97-157)
SU`IVIIVIARY DISPOSITION ORDER
(By: Nakamura, Chief Judge, Fujise, and Ginoza, JJ.)
x
In this post-conviction proceeding, Defendant Appellant
Zachary Kanakanui (Kanakanui) appeals from the "Order Denying
Defendant's Motion to Reconsider Sentence“ (Order), which was
filed on February 26, 2007, in the Circuit Court of the Third
Circuit (circuit court).F We vacate the Order and Kanakanui's
extended term sentences, and we remand the case for resentencing.
I.
In l997, Kanakanui was found guilty after a jury trial
of first degree burglary and second degree theft. Prior to
sentencing, Plaintiff Appellee State of HawaiH.(State) filed the
"State's Motion to Impose Mandatory Minimum, Consecutive, and
Extended Terms of Imprisonment." The State argued that Kanakanui
qualified for extended terms of imprisonment as a "persistent
offender," a "professional criminal," and a "multiple offender,"
(HRs) §§ 706-662(1),
pursuant to Hawaii Revised Statutes
respectively. In
n706-662(2), and 706-662(4) (Supp. l996),
support of its motion for extended terms of imprisonment, the
State submitted evidence of Kanakanui's prior convictions, which
included felony convictions for first degree burglary,
l/ The Honorable Glen S. Hara presided over the post-conviction
proceeding .
HYYh§
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unauthorized control of a propelled vehicle, and second degree
theft. Kanakanui's criminal record also reflected that Kanakanui
had been sentenced to terms of imprisonment after repeatedly
violating conditions of his probation and that he had numerous
misdemeanor convictions,
The circuit courtW sentenced Kanakaui on December 19,
1997. The circuit court granted the State's motion for extended
terms of imprisonment based on its finding that Kanakanui was a
persistent offender and a multiple offender and that extended
terms were necessary for the protection of the public. The
circuit court sentenced Kanakanui to extended terms of twenty
years of imprisonment for the first degree burglary conviction
and ten years of imprisonment for the second degree theft
conviction. The circuit court imposed these sentences to run
concurrent with each other but consecutive to Kanakanui's
sentence in a prior case.
Kanakanui filed a direct appeal from his judgment of
conviction and sentence. On January 2l, 1999, the HawaiU_
Supreme Court affirmed Kanakanui's judgment in Appeal NO. 21274.
Kanakanui's conviction and sentence became final in l999.
On July 28, 2006, Kanakanui filed a "Motion to
Reconsider Sentence," pursuant to HawaFi Rules of Penal
Procedure (HRPP) Rule 35 (2003). On February 6, 2007, Kanakanui
filed the "Defendant's Supplement to Defendant's Motion to
Reconsider Sentence, Filed on July 28, 2006 and Defendant's
Motion to Correct Sentence." Kanakanui asserted that he was
sentenced to extended terms of imprisonment based on his refusal
to admit guilt, in violation of his Fifth Amendment right not to
incriminate himself, and that his extended term sentences were
illegal under Apprendi v. New JerseV, 530 U.S. 466 (2000). On
February 26, 2007, the circuit court issued its Order, and
Kanakanui appealed.
3/ The Honorable Riki May Amano presided over Kanakanui's sentencing.
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II.
In this appeal, Kanakanui argues that his extended
terms of imprisonment must be vacated because the circuit court
imposed them due to his refusal to admit guilt, in violation of
his constitutional privilege against self-incrimination under the
United States and HawaFi Constitutions. Kanakanui cites §tgte
v. KamanakL 103 HawaiU_315, 82 P.3d 401 (2003), in support of
this argument. Kanakanui also asserts that his extended terms of
imprisonment must be vacated because 1) they were illegal under
Apprendi and its progeny; and 2) the sentencing court failed to
make sufficient findings of fact or conclusions of law to support
the imposition of the extended sentences.
Upon careful review of the record and the briefs
submitted by the parties, we resolve Kanakanui's points of error
as follows:
1 1. In KamanaYL the defendant, Andrew Kamando, filed
a motion collaterally attacking his extended terms of
imprisonment approximately fifteen years after his convictions
and sentences had become final. Kamando, 103 Hawafi at 315-19,
82 P.3d at 401-05. The Hawafi Supreme Court held that the trial
court had violated Kaman€o's constitutional privilege against
self-incrimination by imposing extended terms of imprisonment
based on KamanaYJ's refusal to admit his guilt regarding the
convictions on which he was being sentenced and which he intended
to appeal. KamanaEL 103 Hawafi at 316, 82 P.3d at 402., The
supreme court vacated the trial court's judgment of sentence
against KamanaY> and remanded the case for resentencing. ;Q;
we conclude that the analysis in KamanaE)controls our
decision in this case. Based on our review of the record, we
conclude that Kanakanui's refusal to admit guilt "improperly
influenced" the sentencing court's decision to impose extended
terms of imprisonment, §gg ;g; at 323, 82 P.3d at 409 (internal
quotation marks omitted). Accordingly, we 1) vacate the circuit
court's February 26, 2007, Order; 2) vacate the portion of the
circuit court's judgment filed on December 24, 1997, that imposed
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extended terms of imprisonment on Kanakanui; and 3) remand the
case to the circuit court for resentencing. Upon remand, the
circuit court may again impose extended terms of imprisonment in
accordance with Act 1 of the 2007 Second Special Session of the
HawaiYi Legislature, 2007 Haw. Sess. L., 2d Spec. Sess., Act 1
(codified at HRS §§ 706-661, 706-662, and 706-664 (Supp. 2009)).
See State V. JeSS, 117 Hawai‘i 381, 389, 413-15, 184 P.3d 133,
141, 165-67 (2008). Kanakanui is entitled to have a jury
empaneled to find the facts necessary for the imposition of any
extended term sentence. 2007 Haw. Sess. L., 2d Spec. Sess., Act
1; J_e§, 117 Hawai‘i at 389, 413-15, 184 P.3d at 141, 165-67.
2. In light of our preceding ana1ysis, we need not
address Kanakanui's other points of error.
III.
For the foregoing reasons, we 1) vacate the circuit
court's February 26, 2007, Order; 2) vacate the portion of the
circuit court's judgment filed on December 24, 1997, that imposed
extended terms of imprisonment on Kanakanui; and 3) remand the
case to the circuit court for resentencing.
DATED: Honolulu, Hawafi, May 28, 2010.
On the briefs: ' 7{
Phyllis J. Hironaka Chief Judge
Deputy Pub1ic Defender v
for Defendant-Appellant d;2;y@/
Associate Ju
Tharrington T. Trusdell _ .
Deputy Prosecuting Attorne ;§F**(X4
County of Hawafi ' Associate J e
for Plaintiff-Appellee