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Flubacher v. State

Supreme Court of Hawaii

March 21, 2018

ROBERT FLUBACHER, Petitioner/Petitioner-Appellant,
v.
STATE OF HAWAI'I, Respondent/Respondent-Appellee.

          CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CAAP-15-0000363; S.P.P. NO. 14-1-00004)

          John M. Schum for petitioner

          Stephen K. Tsushima for respondent

          RECKTENWALD, C.J., McKENNA, POLLACK, AND WILSON, JJ., WITH NAKAYAMA, J., DISSENTING SEPARATELY.

          OPINION

          RECKTENWALD, C.J.

         Robert 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)[1] 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.

         This 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) .

         Our 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).

         It is 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.

         Thus, 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.

         I. Background

         Flubacher 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.

         The State filed a motion for extended term of imprisonment pursuant to Hawai'i Revised Statutes (HRS) §§ 706-66l[2] and 706-662 (4) (a), [3] 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 parole.

         The circuit court[4] 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.

         Flubacher did not appeal any of his convictions or sentences, and they became final on October 13, 2003.

         In 2005, Flubacher filed an HRPP Rule 40[5] 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 court denied.

         In 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.

         Flubacher 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 sentence.

         The 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 failure.
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 upon.
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 cases.[6]
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.

         Flubacher 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).

         The 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.

         In a 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.

         Accordingly, the ICA affirmed the circuit court's

         Findings of Fact, Conclusions of Law, and Order Denying Flubacher's Petition. The ICA filed its Judgment on Appeal on October 13, 2016.

         II. Standard of Review

         With respect to the denial of a HRPP Rule 40 petition without an evidentiary hearing, HRPP Rule 40(f) provides, in relevant part:

(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.

         As a 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 verdict. Id.

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 (1987)).

         "[T]he 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 ...


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