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N'OT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER

 

§
No. 29961 
IN THE INTERMEDIATE coURT oF APPEALS  

oF THE STATE oF HAWAI‘I 

WY

GERALD vILLANUEvA, Petitioner-Appellant, v.; §§

 

STATE OF HAWAfI, Respondent-Appellee

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(S.P.P. NO. 09-1-OOl8 (Cr. NO. 05-1-O946))

SUMMARY DISPOSITION ORDER

(By: Nakamura, C.J., Foley and Leonard, JJ.)

Petitioner-Appellant Gerald villanueva (villanueva)
appeals from the Order Denying Petition to vacate, Set Aside, or
Correct Judgment or to Release Petitioner from Custody (Order)
filed on July l4, 2009 in the Circuit Court of the First Circuit
(circuit court).1

In the underlying criminal case, villanueva entered a
guilty plea to Forgery in the Second Degree, Hawaii Revised
Statutes § 708-852 (Supp. 2009). The circuit court sentenced
villanueva to five years of imprisonment with a mandatory minimum
of one year and eight months as a repeat offender. villanueva
did not file a direct appeal from his conviction.

On May l3, 2009, pursuant to Hawafi Rules of Penal
Procedure (HRPP) Rule 40, villanueva filed a Petition for Post-
Conviction Relief2 (First Petition), alleging three grounds.
villanueva alleged that the Hawafi Paroling Authority (HPA) and
its Chairman, Albert Tufono, (collectively, Tufono) violated
villanueva's rights to be free from cruel and unusual punishment,
to a fair hearing, and to equal protection and due process under

the United States and Hawafi Constitutions.

1 The Honorable Dexter D. Del Rosario presided.

2 A Petition for Post~Conviction Relief is also known as a Petition to

vacate, Set Aside, or Correct Judgment or to Release Petitioner from Custody.

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The circuit court deemed the First Petition a non-

conforming petition and ordered villanueva to file a conforming

petition within thirty days. On May 20, 2009,

conforming Petition for Post-Conviction Relief

villanueva filed a

(Second Petition).

In his Second Petition, villanueva referenced the three grounds

and facts stated in his First Petition as grounds for relief in

the Second Petition,

villanueva also alleged a fourth ground:

the increase in his punishment violated the ex post facto

prohibition of the United States Constitution.
On June 2, 2009,
Second Petition.
relief as the First Petition,
facts.

grounds for relief:

A. Ground One -
to the U.S.

cruel and unusual punishment inflicted,

Amend U.S. Const. Due Process.

Supporting Facts: On May 25,

villanueva filed an Amendment to the
The Amendment set forth the same grounds for
but included additional supporting

In the Amendment, villanueva stated the following three

[Tufono] violated my 8th Amendment rights
Constitution and Hawaii Constitution to

and the 14

I was sentenced to 5 years with

a mandatory of 20 months by Judge Dexter Del Rosario,

First Circuit Court.
Board to set a minimum sentence.

stated that I had an escape in 2001 to CR.

I have also seen the Parole
The board members

Ol»l~O2l7

that they cannot program me to a minimum facility.

Means,

because of my escape to do any program.
So the board members recommended

"work furlough."

that they cannot send me to a minimum facility

This includes

that I do the clean and sober in Halawa Correction

Facility,

and do cognitive skills and parenting.

This

is my recommended program that was originally set by

HPA, members.

The Parole Board Members set my minimum sentence of

punishment to 30 months,
of 30 months,
consideration.

After completing my sentence
I have seen the Parole Board for parole
On Nov. 2007 my parole denied.

I have

completed all my recommended program and met all the

criteria for parole.

I have produced my certificate for the Salvation Army

level II [sic] in~house treatment,
and parenting.
programs. [Tufono] added:

furlough and I will see you in one year."

cognitive skills
I have completed all of my recommended
"I want you to do work

I have

waited patiently for one year to go to a minimum

facility, but [Tufono]

parole consideration is on Aug. 2008.

completing my punishment of one year sentence,
"you did not send me to a minimum facility

to [Tufono]

did not send me.

My next
After
I said

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to do work furlough." He stated: "We will try this
again, I will see you in 6 months." My concern now
is, doing 6 more months for nothing. So I asked:
[Tufono] what if, I am not in work furlough in 6
months, he stated that "I will parole you." My next
parole consideration will be Feb. 2009. After
completing my 6 months sentence of punishment [Tufono]
denied my parole and punish me to 9 more months of
punishment. My next parole consideration will be Nov.
2009. I will be doing a total of 57 months from what
was suppose[d] to originally be 30 months. This is a
violation of my 8th Amendment right to cruel and
unusual punishment and by punishing me to multiple and
excessive minimum sentence.

B. Ground two ~ [Tufono] violated my 6th Amendment rights
to be an impartial decision maker and to have a fair
hearing under Article I, section 14, State
Constitution and the 14 Amend, U.S. Const. Due Process
and Equal Protection of the laws,

Supporting Facts: [I] was denied a fair hearing, that is
guaranteed under Article I, section 14 State
Constitution and 6th Amendment U.S. Constitution.
[Tufono] violated a similar form of my 6th Amendment
rights by not giving me a fair hearing by an impartial
parole Board member.

C. Ground three - [Tufono] violated my 14 Amendment right
to the U.S. Constitution and Article I, section 5
State Constitution.

Supporting Facts: [Tufono] violated my 14 Amendment U.S.
Constitution and Article I, section 5 State
Constitution that is guaranteed a right, nor shall any
state deprive any person of life, liberty, or pursuit
of happiness, or property, without due process of law;
nor deny to any person within its jurisdiction the
equal protection of the laws; that is guaranteed a
right under State and Federal Constitution. 1 have
seen inmates go home with high misconduct and without
doing any programs. what is good for one inmate is
good for another inmate is also good for villanueva of
equal rights protection and Due Process of law under
14 Amendment U.S. Constitution and Article I, section
5, State Constitution.

Apprendi vs. New Jersey (2000)
State of Hawaii vs. Miti Maugaotega Jr.

The 14 Amendment right protect petitioner villanueva of
Equal Rights what was good for Apprendi is good for Miti
Maugaotega Jr. is good for villanueva under the 14 Amendment
Equal Rights protection of the laws, United States Supreme
Court and the Supreme Court of Hawaii upholds this law to
all convicted felons in the United States and Hawaii.

(Emphasis in original.)
' On appeal, villanueva states ten "Questions Presented

for Review" and several incoherent reasons for granting his

3

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appeal, In his tenth Question Presented, villanueva requests
this court "[t]o review all grounds and supporting facts on Rule
40 HRPP . "

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 resolve
villanueva's points of error as follows:

(1) To the extent that villanueva's Questions
Presented one through nine, grounds, and supporting facts on
appeal were not made in the Second Petition, they are denied.
HawaFi Rules of Appellate Procedure Rule 28(b)(4).

(2) villanueva is not entitled to parole after
expiration of his thirty-month minimum sentence. The maximum
sentence of five years for Forgery in the Second Degree does not
constitute cruel and unusual punishment because it is not so
disproportionate to the conduct proscribed and of such duration
as to "shock the conscience of reasonable persons or to outrage
the moral sense of the community." State v. Kumukau, 71 Haw.
218, 227, 787 P.2d 682, 687 (1990) (internal quotation marks and
citation omitted).

(2) villanueva's claim that he was denied a fair
hearing is conclusory and without any supporting facts as to how
his hearing was unfair or how Tufono was not impartial.
Therefore, the claim is without merit.

(3) villanueva's claim that he was treated differently
than other similarly situated inmates by being denied parole
while other inmates who had committed high misconduct were
paroled is unsupported by any specific facts such as specific
inmate names and records of similarly situated inmates;
Therefore, his claim is conclusory and without merit. villanueva
was not sentenced to an extended term, but rather to a mandatory
minimum sentence as a repeat offender. Therefore, the holdings

in Apprendi v. New Jersev, 530 U.S. 466, 120 S. Ct. 2348 (2000),

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and State v. Maugaotega, 115 Hawafi 432, 168 P.3d 562 (2007), do
not apply. See Loher v. State, 118 Hawafi 522, 534 n.8, 193
P.3d 438, 450 n.8 (App. 2008), cert. dismissed, No. 27844, 2009
wL 2386233 (Hawai‘i Aug. 5, 2009), (citing Apprendi, 530 U.s. at
490, 120 S. Ct. at 2362-63).

Therefore,

IT IS HEREBY ORDERED that the Order Denying Petition to
vacate, Set Aside, or Correct Judgment or to Release Petitioner
from Custody filed on July 14, 2009 in the Circuit Court of the
First Circuit is affirmed.

DATED: Honolulu, Hawafi, August 31, 20l0.

On the briefs:

Gerald villanueva, _
Petitioner-Appellant pro se.  l///f z §
Diane K. Taira and 1 Chief Judge

Darcy H. Kishida,
Deputy Attorneys General,

for ReSpOndent~APBellee. (z;£Od%§%;> .,:}éz:`\

Associate Judge

 

