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Elizares v. State

Intermediate Court of Appeals of Hawaii

September 23, 2013

CALVIN D. ELIZARES, Petitioner-Appellant,
v.
STATE OF HAWAI'I, Respondent-Appellee

NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER

APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT (SPECIAL PROCEEDING PRISONER NO. 11-1-0015(2))

On the briefs:

Calvin D. Elizares, Petitioner-Appellant pro se.

Artemio C. Baxa Deputy Prosecuting Attorney, County of Maui for Respondent-Appellee.

Nakamura, C.J., Foley and Leonard, JJ.

SUMMARY DISPOSITION ORDER

Petitioner-Appellant Calvin D. Elizares appeals from the "Findings of Fact, Conclusions of Law, And Order Denying Rule 40 Petition for Post-Conviction Relief Without Hearing" (FOFsCOLs and Order Denying) filed May 22, 2012 in the Circuit Court of the Second Circuit[1] (circuit court).

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, as well as the relevant statutory and case law, we conclude this appeal is without merit.

On June 28, 2000, judgments were entered against Elizares in CR. No. 99-0076(2) and CR. No. 98-0463(2). Under CR. No. 99-0076(2), Elizares was sentenced to life imprisonment for Count 1, attempted murder in the first degree; 20 years each for Counts 2 and 3, kidnaping; 5 years each for Counts 4 and 5, terroristic threatening in the first degree; and 20 years for Count 8, carrying or use of firearm in the commission of separate felony.

Under CR. No. 98-0463(2), Elizares was sentenced to 5 years for Count 1, terroristic threatening in the first degree; 10 years each for Counts 2 and 11, felon in possession of a firearm; and 20 years for Count 9, extortion in the first degree.

Mandatory minimum terms were imposed, extended terms of life with parole for Counts 2 and 3 under CR. No. 99-0076(2); and the sentences for Counts 1, 2 and 3 under Cr. No. 99-0076(2) ran consecutively with mandatory minimums.

On July 26, 2000, Elizares filed a notice of appeal in No. 23619 raising the single point of error that the circuit court erred in denying his motion for mistrial or a new trial. On September 13, 2002, this court affirmed the circuit court's judgment. Elizares filed a writ of certiorari with the Hawai'i Supreme Court which was initially granted but then dismissed as "improvidently granted" on November 29, 2002.

On December 26, 2003, Elizares filed his first postconviction "Petition to Vacate, Set Aside, Or Correct Judgment Or To Release Petitioner From Custody" under Hawai'i Rules of Penal Procedure (HRPP) Rule 40 in Special Proceeding Prisoner (S.P.P.) No. ...


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