CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-15-0000363; S.P.P. NO. 14-1-00004)
M. Schum for petitioner
Stephen K. Tsushima for respondent
RECKTENWALD, C.J., McKENNA, POLLACK, AND WILSON, JJ., WITH
NAKAYAMA, J., DISSENTING SEPARATELY.
Flubacher pled guilty to various offenses in multiple cases,
and was sentenced to extended term sentences, which became
final in 2003. In 2014, Flubacher filed a petition for
post-conviction relief pursuant to Hawai'i Rules of Penal
Procedure (HRPP) Rule 40, arguing that his sentence was
illegal because a judge, not a jury, found a relevant fact
used to enhance his sentence in violation of Apprendi v.
New Jersey, 530 U.S. 466 (2000). The Circuit Court of
the First Circuit (circuit court) denied the petition, and the
Intermediate Court of Appeals (ICA) affirmed. On certiorari,
Flubacher argues that his extended term sentences were
imposed in an illegal manner, and requests that this court
vacate and remand for resentencing.
appeal requires us to revisit our prior decisions which
addressed whether Hawaii's extended term sentencing
scheme was invalid under Apprendi and subsequent
Supreme Court cases including Blakely v. Washington,
542 U.S. 296 (2004), United States v. Booker, 543
U.S. 220 (2005), and Cunningham v. California, 549
U.S. 270 (2007). This court initially held that certain
features of Hawaii's scheme (specifically, that the facts
determined by the judge were "extrinsic" to the
charged offense) meant that Hawaii's statute was not
invalidated by the rule announced in Apprendi.
State v. Kaua, 102 Hawai'i 1, 72 P.3d 473 (2003)
initial application of Apprendi in Kaua was
rejected by both the United States District Court for the
District of Hawai'i and the Court of Appeals for the
Ninth Circuit. See Kaua v. Frank, 436 F.3d 1057,
1062 (9th Cir. 2006); Kaua v. Frank, 350 F.Supp.2d
848, 849-50, 855-56 (D. Haw. 2004). Then, commencing after
the decision in Blakely, our own decisions reflected
disagreement as to whether our sentencing scheme was
unconstitutional. See, e.g., State v. Rivera, 106
Hawai'i 146, 102 P.3d 1044 (2004); State v.
Gomes, 107 Hawai'i 308, 113 P.3d 184 (2005);
State v. Maugaotega, 107 Hawai'i 399, 114 P.3d
905 (2005) (Maugaotega I). Nevertheless, it was not
until after the decision in Cunningham that a
majority of the court determined that our scheme was invalid.
State v. Maugaotega, 115 Hawai'i 432, 168 P.3d
562 (2007) (Maugaotega II).
against this backdrop that we consider Flubacher's
appeal, and conclude that our sentencing scheme was invalid
based on the holding in Apprendi. As set forth
below, Apprendi plainly stated that a sentencing
scheme was invalid when it allowed a judge, rather than a
jury, to determine facts that resulted in extended sentences.
In concluding that Apprendi invalidated our
sentencing scheme, we note that the State has now conceded
that the scheme was unlawful based on Apprendi, and
that accordingly, Flubacher is entitled to relief. While that
concession is not binding on us, we conclude, for the reasons
set forth below, that it is well founded.
we conclude that Flubacher's extended term sentences were
imposed in an illegal manner. Accordingly, we vacate the
ICA's Judgment on Appeal, and remand this case to circuit
court for further proceedings consistent with this opinion.
was charged with: Unauthorized Control of Propelled Vehicle
(Count I), Driving Without License (Count II), and Theft in
the Fourth Degree (Count III) in Cr. No. 01-1-2788; Robbery
in the First Degree (Count I), Assault in the First Degree
(Count II), Assault in the First Degree (Count III), Assault
in the Second Degree (Count IV), and Unauthorized Control of
Propelled Vehicle (Count V) in Cr. No. 01-1-2789; and Robbery
in the First Degree in Cr. Nos. 02-1-0089, 02-1-0090, and
02-1-0125. Flubacher pled guilty to all counts in each case.
State filed a motion for extended term of imprisonment
pursuant to Hawai'i Revised Statutes (HRS) §§
706-66l and 706-662 (4) (a),  as follows: (1)
in Cr. No. 01-1-2788, from a five year term of imprisonment
to ten years for Count I; (2) in Cr. No. 01-1-2789, from a
twenty year term of imprisonment to life with the possibility
of parole for Count I, from ten year terms of imprisonment to
twenty years for Counts II and III, and from five year terms
of imprisonment to ten years for Counts IV and V; and (3) in
Cr. Nos. 02-1-0089, 02-1-0090, and 02-1-0125, from twenty
year terms of imprisonment to life with the possibility of
circuit court granted the State's motion, and
sentenced Flubacher to pay restitution, and to serve the
following terms of imprisonment concurrently, with credit for
time served: (1) in Cr. No. 01-1-2788, as to Count I, ten
years' incarceration with a mandatory minimum of one year
and eight months; as to Counts II and III, thirty days'
incarceration; (2) in Cr. No. 01-1-2789, as to Count I, life
incarceration with the possibility of parole, with a
mandatory minimum of six years and eight months; as to Counts
IV and V, ten years' incarceration with a mandatory
minimum of one year and eight months; as to Counts II and
III, twenty years' incarceration with a mandatory minimum
of three years and four months; (3) in Cr. Nos. 02-1-0089,
02-1-0090, and 02-1-0125, life incarceration with the
possibility of parole with a mandatory minimum of six years
and eight months.
did not appeal any of his convictions or sentences, and they
became final on October 13, 2003.
2005, Flubacher filed an HRPP Rule 40 petition for post-conviction
relief, alleging ineffective assistance of counsel, and
arguing that his sentence was illegal because the court cited
criteria not in the extended term statute, which the circuit
2014, Flubacher filed another petition for postconviction
relief (Petition), alleging that his sentence was illegal
under Apprendi because the judge, not a jury, found
that his extended term sentences were necessary for the
protection of the public. The State countered that
Flubacher's arguments were waived because he did not
raise them on direct appeal, and that Apprendi and
Cunningham may not be retroactively applied.
amended his Petition, alleging three additional grounds for
relief, including that the sentencing judge: (1) considered
"false facts, " i.e., that Flubacher had hit one of
his victims in the face with a hammer; (2) demonstrated bias
against Flubacher because of Flubacher's prior history
with the court; and (3) took judicial notice of his
presentence report and other documents in determining his
circuit court denied Flubacher's Petition, stating in
pertinent part in its Conclusions of Law:
1. HRPP Rule 40(a)(3) provides as follows:
Inapplicability. Rule 40 proceedings shall not be available
and relief thereunder shall not be granted where the issues
sought to be raised have been previously ruled upon or were
waived. Except for a claim of illegal sentence, an issue is
waived if the petitioner knowingly and understandingly failed
to raise it and it could have been raised before the trial,
at the trial, on appeal, in a habeas corpus proceeding or any
other proceeding actually conducted, or in a prior proceeding
actually initiated under this rule, and the petitioner is
unable to prove the existence of extraordinary circumstances
to justify the petitioner's failure to raise the issue.
There is a rebuttable presumption that a failure to appeal a
ruling or to raise an issue is a knowing and understanding
2. Flubacher's claim that his sentence was in violation
of Apprendi v. New Jersey, 530 U.S. 466 . . .
(2000), is a claim of illegal sentence which, although
arguably raised in his prior Rule 40 petition, was not ruled
3. With respect to the illegal sentence claim, the [ICA] has
determined that a defendant sentenced to an extended term
that became final after Apprendi but prior to the
United States Supreme Court rulings in Blakely v.
Washington, 542 U.S. 296 . . . (2004), and United
States v. Booker, 543 U.S. 220 . . . (2005), is not
entitled to relief on collateral attack. Loher v.
State, l[l]8 Haw[ai'i] 522, 538 (Haw.App.
2008), cert, dismissed (August 5, 2009).
4. Flubacher's sentence became final on October 13, 2003
-- that is, after Apprendi and prior to both
Blakely and Booker. Therefore, pursuant to
Loher, Flubacher's sentence was not illegal
under Apprendi and he is not entitled to retroactive
application of the post-Apprendi line of
5. Flubacher's remaining claims were waived as he could
have but did not raise them on direct appeal or in S.P.P. No.
05-1-0081 and has failed to demonstrate the existence of
extraordinary circumstances to justify his failure to raise
them as required by HRPP Rule 40(a) (3) .
6. Assuming arguendo that the claims relating to the factors
considered by the sentencing court in determining
Flubacher's sentence were not waived, they are wholly
without merit, patently frivolous, and without a trace of
support in the record.
appealed to the ICA, reiterating the claims in his Petition.
Flubacher additionally argued that Loher was not the
controlling authority in his case because he was not
requesting retroactive application of Blakely or
Booker, and that he was only requesting application
of Apprendi, Cunningham, and Ring v.
Arizona, 536 U.S. 584 (2002).
State responded that Flubacher's sentences were not
illegal under Apprendi and the
post-Apprendi line of cases because the "legal
landscape" only became clear after Apprendi,
Blakely, and Booker, "taken together,
" established that a "sentencing scheme in which
the maximum possible sentence is set based on facts found by
a judge is not consistent with the Sixth Amendment." The
State additionally contended that Flubacher's remaining
claims were waived, and that he had failed to demonstrate the
existence of extraordinary circumstances to justify his
failure to raise them.
summary disposition order, the ICA determined that
Flubacher's case was similar to Loher, where the
defendant's conviction was also finalized in 2003, and
thus, Blakely and Booker did not apply
retroactively on collateral review, and it did not need to
decide whether Cunningham applied. With respect to
Flubacher's contention that the circuit court erroneously
considered that he hit one of his victims with a hammer, the
ICA determined that the argument was waived, and that even if
the argument was not waived, there was evidence in the record
that supported the circuit court's conclusion.
the ICA affirmed the circuit court's
of Fact, Conclusions of Law, and Order Denying
Flubacher's Petition. The ICA filed its Judgment on
Appeal on October 13, 2016.
Standard of Review
respect to the denial of a HRPP Rule 40 petition without an
evidentiary hearing, HRPP Rule 40(f) provides, in relevant
(f) Hearings. If a petition alleges facts
that if proven would entitle the petitioner to relief, the
court shall grant a hearing which may extend only to the
issues raised in the petition or answer. However, the court
may deny a hearing if the petitioner's claim is patently
frivolous and is without trace of support either in the
record or from other evidence submitted by the petitioner.
The court may also deny a hearing on a specific question of
fact when a full and fair evidentiary hearing upon that
question was held during the course of the proceedings which
led to the judgment or custody which is the subject of the
petition or at any later proceeding.
general rule, a trial court should hold an evidentiary
hearing on a HRPP Rule 40 petition for post-conviction relief
if the petition states a colorable claim for relief. Dan
v. State, 76 Hawai'i 423, 427, 879 P.2d 528, 532
(1994). To establish a colorable claim, a petitioner must
allege facts that, if taken as true, would change the
This court has stated that:
Where examination of the record of the trial court
proceedings indicates that the petitioner's allegations
show no colorable claim, it is not error to deny the petition
without a hearing. The question on appeal of a denial of a
Rule 40 petition without a hearing is whether the trial
record indicates that Petitioner's application for relief
made such a showing of a colorable claim as to require a
hearing before the lower court.
Barnett v. State, 91 Hawai'i 20, 26, 979 P.2d
1046, 1052 (1999) (emphasis omitted, quoting State v.
Allen, 7 Haw.App. 89, 92-93, 744 P.2d 789, 792-93
appellate court's determination of ''whether the
trial record indicates that Petitioner's application for
relief made such a showing of a colorable claim as to require
a hearing before the lower court' is a question of law,
[and thus] the trial court's decision is reviewed de
novo." Id. (brackets and ellipsis ...