bMNWJBRARV'
NOT FOR PUBLICATION ]N WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
NO. 29439
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAfI
?¢
sTATE oF HAwArI, P1ainciff-Appe11ee, v. §§
zEPH KIMo sALIs, Defendant-Appe11ant §§
§ g 25
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCP§§§ xv
(CRIMINAL NO. 97-O984) § § 35
l §§
an
SUMMARY DISPOSITION ORDER ca
(By: Nakamura, Chief Judge, Leonard and Reifurth, JJ.)
Defendant-Appellant Zeph Salis (Salis) appeals
the Circuit Court of the First Circuit's (Circuit Court)W
September 23, 2008 Second Amended Judgment of Conviction and
Sentence in Cr. NO. 97-O984 (Second Amended Judgment). In the
Salis was resentenced for (1) Robbery in
Second Amended Judgment,
the First Degree in violation of Hawafi Revised Statutes (HRS)
(l993); (2) Place to Keep Loaded Pistol in
§ 703-e40(1)(b)(ii)
(supp. 1996);W and (3)
violation of HRS §§ 134-6(c) and (e)
Possession of Firearm by a Person Convicted of Certain Crimes in
violation of HRS §§ 134-7(b) and (h) (Supp. 1996).
The Second Amended Judgment was entered after this
court vacated in part the Circuit Court's denial without a
hearing of Salis's pro se petition for relief pursuant to Hawafi
(HRPP) Rule 40, in an April 23, 2008
Rules of Penal Procedure
inter alia, that Salis
memorandum opinion. The court concluded,
raised a colorable claim that he was denied ineffective
assistance of trial and/or appellate counsel in conjunction
3 and 4 in Cr. NO.
with
his conviction and/or sentencing on Counts 2,
Noting the inherent difficulties in reviewing pro se
97-O984.
l/ The Honorable Michael A. Town presided.
3/ Effective May 2, 2006, the Hawafi Legislature repealed HRS
(Supp. 2006).
§ 134-6 and replaced it with HRS §§ 134-21 through 134-27
UH`H.~.=I
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matters, and referencing this court's prior opinion in State v.
Padi11a, 114 Hawafi 507, 517-1a, 164 P.3d 765, 775-76 (App.
2007), we remanded the case for further proceedings, including a
hearing, to afford the State and Salis, with the benefit of
counsel, to argue what further steps should be taken to remedy
the errors in this case.
Upon remand, double jeopardy and certain illegal
sentencing issues raised by Salis were remedied when the Circuit
Court granted the State's motion for nolle prosequi with
prejudice of Count 4 in Cr. No. 97-0984 and sentenced Salis to
ten (10) years of incarceration on Counts 2 and 3 in Cr. No. 97-
'0984, to run concurrently with each other and consecutive to
Salis's sentences in Cr. Nos. 97-0973 and 92-341l. At the August
20, 2008 sentencing hearing, and in a September l8, 2008 position
statement, with newly-appointed counsel, Salis argued that the
trial judge had plainly erred in failing to instruct the jury
regarding the possible merger of counts 2 and 3, pursuant to HRS
§ 701-l09(l)(e) (l993). Salis urged the State to dismiss either
Count 2 or 3, rather than necessitating a further appeal and
possible retrial. The State declined to dismiss either Count 2
or 3, based on the position that the issue was waived on direct
appeal and in Salis's Rule 40 proceeding. Accordingly, the
Circuit Court proceeded with the sentencing, as set forth above,
and Salis timely filed a notice of appeal.
Salis raises one point of error on appeal, i.e., that
the Circuit Court plainly erred in failing to instruct the jury
regarding the possible merger of Counts 2 and 3, pursuant to HRS
Ȥ 701-109(1)(e>. y v
Upon careful review of the record and the briefs
submitted by the parties and having given due consideration to
the arguments advanced and the issues raised by the parties, we
resolve Salis's point of error as follows:
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The Circuit Court plainly erred when it failed to
instruct the jury regarding the possible merger of Counts 2 and 3
pursuant to HRS § 701-109(1)(e). See, e.g., Padilla, 114 HawaiU
at 516-l8, 164 P.3d at 774-76; see also State V. Matias, 102
Hawai‘i 300, 305, 75 P.3d 1191, 1195 (2003), citing, inter
alia, State v. Hoey, 77 Hawafi 17, 27 n.9, 881 P.2d 504, 514 n.9
(l994), State V. ApaO, 95 Hawafi 440, 445, 24 P.3d 32, 37
(2001), and State v. Ganal, 81 Hawafi 358, 379, 917 P.2d 370,
391 (l996).
We reject the State's argument that the facts of this
case demonstrate no possibility of merger exists.W The
evidence upon which the jury based its verdicts in Counts 2 and 3
arose out of a single robbery incident in which Salis allegedly
possessed a firearm during the commission of, and flight from the
scene of, a robbery. While a properly-instructed jury could have
found that Salis's conduct constituted separate and distinct
culpable acts, all factual issues involved in the determination
of whether, in his course of conduct, Salis had one general
intention, or separate and distinct intents, must be decided by
the trier~of-fact. See, e.q., State v. Frisbee 114 HawaiU.76,
8l, 156 P.3d ll82, 1187 (2007).
`Accordingly, we vacate the Circuit Court's September
23, 2008 Second Amended Judgment. On remand, we afford the State
the option of forthwith: (1) dismissing either Count 2 or Count
3 and retaining the judgment of conviction and sentence on the
non-dismissed count; or (2) retrying Salis on both Counts 2 and 3
§/ Under the circumstances of this case, we also reject the argument
that the merger issue was waived.
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with an appropriate merger instruction. ee Padilla, 114
Hawai‘i at 517-18, 164 P.3d at 775~76.
DATED: Honolulu, HawaFi, May 13, 2010.
On the briefs:
1
william H. Jameson, Jr. Chief Judge
for Defendant-Appellant
Delanie D. Prescott-Tate
Deputy Prosecuting Attorney
for Plaintiff-Appellee
014/umw @~‘}w‘@
Associate Judge