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Mara v. State

Intermediate Court of Appeals of Hawaii

February 21, 2017

DEAN DANIEL MARA, Petitioner-Appellant,
v.
STATE OF HAWAI'I, Respondent-Appellee.

         APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT (SPECIAL PROCEEDING PRISONER NO. 15-1-0025) (CRIMINAL NO. 97-1415)

          Dean Mara Petitioner-Appellant pro se.

          James M. Anderson for Respondent-Appellee.

          NAKAMURA, C.J., and LEONARD and REIFURTH, JJ.

          OPINION

          NAKAMURA. C. J.

         In his underlying criminal case, Petitioner-Appellant Dean Daniel Mara (Mara) was convicted, after a jury trial, of manslaughter, reckless endangering, and place to keep loaded firearm. Respondent-Appellee State of Hawai'i (State) moved for extended terms of imprisonment on the grounds that Mara was a "persistent offender" and a "multiple offender" whose imprisonment for an extended term was necessary for protection of the public. The Circuit Court of the First Circuit (Circuit Court) granted the motion and sentenced Mara to concurrent extended terms of life imprisonment with the possibility of parole, ten years of imprisonment, and twenty years of imprisonment. The Circuit Court entered its Judgment on March 11, 1999, and Mara filed a direct appeal from his Judgment. The Hawai'i Supreme Court affirmed the Judgment in an opinion issued on February 15, 2002, State v. Mara, 98 Hawai'i 1, 41 P.3d 157 (2002), and Mara's conviction and sentence became final in 2002.

         On November 23, 2015, Mara filed a petition for post-conviction relief pursuant to Hawai'i Rules of Penal Procedure (HRPP) Rule 40 (2006) (Petition). Mara sought relief on the grounds that: (1) his extended terms of imprisonment were illegal under Apprendi v. New Jersey, 530 U.S. 466 (2000); and (2) his appellate counsel was ineffective for failing to assert his Apprendi claim on direct appeal. On February 2, 2016, the Circuit Court denied Mara's Petition and filed its "Order Denying Petition to Vacate, Set Aside, or Correct Judgment or to Release Petitioner from Custody" (Order Denying Petition). In denying the Petition, the Circuit Court relied on this court's opinion in Loher v. State, 118 Hawai'i 522, 193 P.3d 438 (App. 2008) (Loher I)

         Mara appeals from the Order Denying Petition. On appeal, Mara contends that the Circuit Court-[1] erred in rejecting his Apprendi-based challenges to his extended term sentences. The State contends that our opinion in Loher I is no longer "good law, " and it agrees with Mara that the Circuit Court should have granted Mara's Petition based on his Apprendi claim. We disagree with Mara's arguments and the State's contention that Loher I is no longer good law.

         As explained in greater detail below, until its 2007 decision in State v. Maucraoteqa, 115 Hawai'i 432, 168 P.3d 562 (2007) (Maugaotega II), the Hawai'i Supreme Court steadfastly held that Hawai'i's extended term sentencing scheme comported with Apprendi. Maugaoteqa II, 115 Hawai'i at 437-42, 168 P.3d at 567-72. It was only the United States Supreme Court's decision in Cunningham v. California, 549 U.S. 270 (2007), that caused the Hawai'i Supreme Court to change its view. Maugaoteqa II, 115 Hawai'i at 442-47, 168 P.3d at 572-77. In Loher I, we relied on the Hawai'i Supreme Court's multiple precedents prior to Cunningham, which had rejected Aporendi-based challenges to Hawai'i's extended term sentencing scheme, in holding that Aporendi did not apply to Loher1s collateral attack of his extended term sentence, which became final in 2003. Loher I, 118 Hawai'i at 536-38, 193 P.3d at 452-54.

         Mara and the State rely on federal district court and federal Ninth Circuit Court of Appeals (Ninth Circuit) decisions granting habeas corpus relief and vacating extended term sentences imposed on Hawai'i defendants. Decisions of the federal district court in Hawai'i and the Ninth Circuit hold, contrary to the Hawai'i Supreme Court's precedents, that it was immediately clear once Apprendi was decided that Hawai'i's extended term sentencing scheme was unconstitutional. The Hawai'i Supreme Court was aware of the analysis of the Ninth Circuit and the district court but declined to follow it, noting that state courts are only bound by decisions of the United States Supreme Court. State v. White, 110 Hawai'i 79, 81-82 & n.4, 129 P.3d 1107, 1109-10 & n.4 (2006). This court is bound by the precedents of the Hawai'i Supreme Court. Based on Hawai'i Supreme Court precedent, we conclude that Loher I remains good law and that Mara's extended term sentences, which became final in 2002, are not subject to collateral attack.

         BACKGROUND

         The State indicted Mara in 1997 and charged him with second-degree murder of Stella Jensen (Count 1); attempted first-degree murder of Jensen and Gary Akopian (Count 2); attempted second-degree murder of Akopian (Count 3); possession of a firearm by a person convicted of certain crimes (Count 4); possession of ammunition by a person convicted of certain crimes (Count 5); and place to keep a loaded firearm (Count 6). Mara, 98 Hawai'i at 3, 41 P.3d at 159. The jury found Mara guilty of reckless manslaughter (Count 1), reckless endangering (Count 3), and place to keep loaded firearm (Count 6). Id. at 10, 41 P.3d 166.[2]

         The State moved for extended terms of imprisonment on the grounds that Mara was a "persistent offender" under Hawaii Revised Statutes (HRS) § 706-662(1) and a "multiple offender" under HRS § 706-662(4) whose imprisonment for an extended term was necessary for protection of the public. [3] The State asserted that Mara was a persistent offender due to his five prior felony convictions-[4] and a "multiple offender" due to the jury's guilty verdicts on three felony counts. The Circuit Court granted the State's motion and sentenced Mara to concurrent extended terms of life imprisonment, with the possibility of parole, on Count 1, ten years of imprisonment on Count 3, and twenty-years of imprisonment on Count 6. Based on Mara's status as a repeat offender, the Circuit Court also imposed mandatory minimum terms of imprisonment of thirteen years and four months, three years and four months, and six years and eight months on Counts 1, 3, and 6, respectively. The Circuit Court entered its Judgment of conviction and sentence (Judgment) on March 11, 1999.

         Mara filed a direct appeal of his Judgment. On February 15, 2002, the Hawai'i Supreme Court issued an opinion affirming the Circuit Court's Judgment. Mara, 98 Hawai'i at 17, 41 P.3d at 173. The supreme court entered its judgment on appeal on March 7, 2002. There is no indication that Mara petitioned for a writ of certiorari to the United States Supreme Court. Therefore, Mara's conviction and sentence became final on or about June 5, 2002, ninety days after the judgment on appeal was entered.

         On April 28, 2004, Mara filed a petition for post-conviction relief, which ...


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