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Donald B. Marks, Petitioner-Appellant v. State of Hawaii

April 30, 2012

DONALD B. MARKS, PETITIONER-APPELLANT
v.
STATE OF HAWAII, RESPONDENT-APPELLEE,



APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT (S.P.P. NO. 09-1-0080 (CR. NO. 02-1-2410))

NOT FOR PUBLICATION IN WEST'S HAWAI I REPORTS AND PACIFIC REPORTER

SUMMARY DISPOSITION ORDER

(By: Nakamura, Chief Judge, Leonard, and Ginoza, JJ.)

Petitioner-Appellant Donald B. Marks (Marks), appearing pro se, appeals from the "Findings of Fact, Conclusions of Law, and Order Denying Petition to Vacate, Set Aside, or Correct Judgment, Without a Hearing" (Order Denying Second Rule 40 Petition) that was filed on January 3, 2011, in the Circuit Court of the First Circuit (Circuit Court).*fn1 We affirm.

I.

In his underlying criminal case, Marks pleaded no contest to second-degree murder. Respondent-Appellee State of

Hawaii (State) moved that Marks be sentenced to an extended term of imprisonment as a persistent offender. The Circuit Court granted the State's motion and sentenced Marks to life imprisonment without the possibility of parole. The Circuit

Court entered its judgment of conviction and sentence on November 8, 2004. Marks did not file a direct appeal of his conviction or sentence.

On September 27, 2005, Marks filed his first "Petition for Post-Conviction Relief" pursuant to Hawaii Rules of Penal Procedure (HRPP) Rule 40 (First Rule 40 Petition). Marks alleged that his counsel had been ineffective for failing to object to and appeal his extended term sentence as illegal under Apprendi v. New Jersey, 530 U.S. 466 (2000), and Blakely v. Washington, 542 U.S. 296 (2004). The Circuit Court issued its order denying Marks's First Rule 40 Petition on May 9, 2006. Marks filed a notice of appeal from the order denying his First Rule 40 Petition. However, Marks's appeal was subsequently dismissed by this court because Marks failed to file an opening brief. On November 13, 2009, Marks filed his second "Petition for Post-Conviction Relief" pursuant to HRPP Rule 40 (2006) (Second Rule 40 Petition). Marks was also permitted to supplement his Second Rule 40 Petition with additional grounds for relief. On January 3, 2011, the Circuit Court denied Marks's Second Rule 40 Petition, as supplemented, by filing its Order Denying Second Rule 40 Petition.

II.

On appeal, Marks argues: (1) his counsel provided ineffective assistance by failing to object to and appeal his extended term sentence under Apprendi and Blakely; (2) his extended term sentence was invalid, where the court, and not a jury, made the findings necessary for the extended term sentence and because the extended term statute under which he was sentenced was void ab initio under State v. Maugaotega, 115 Hawaii 432, 168 P.3d 562 (2007) (hereinafter, "Maugaoteqa II"); (3) the prosecutor engaged in misconduct and violated the terms of the State's plea agreement by moving for an extended term of imprisonment; (4) the indictment was defective for failing to allege facts necessary to warrant an extended term of imprisonment; (5) the Circuit Court abused its discretion in not appointing counsel to assist in his Second Rule 40 Petition; and (6) the Circuit Court erred in denying his Second Rule 40 Petition without a hearing.

We resolve Marks's arguments on appeal as follows:

1. We reject Marks's claim that his counsel provided ineffective assistance by failing to object to and appeal Marks's extended term sentence under Apprendi and Blakely. Marks is barred from raising this claim because it was previously raised, ruled upon, and denied in connection with his First Rule 40 Petition. HRPP Rule 40(a)(3). But even if we consider Marks's claim on the merits, he is not entitled to any relief. Prior to its 2007 decision in Maugaoteqa II, the Hawaii Supreme Court had steadfastly held that Hawaii's extended term sentencing scheme complied with Apprendi and Blakely. See Maugaotega II, 115 Hawaii at 437 42, 168 P.3d at 567 72; State v. Rivera, 106 Hawaii 146, 156-64, 102 P.3d 1044, 1054-62 (2004); Loher v. State, 118 Hawaii 522, 536, 193 P.3d 438, 452 (App. 2008).

Marks's counsel was not ineffective for failing to object at Marks's sentencing and to pursue an appeal on grounds that were contrary to controlling ...


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