LM%H$BHAHY
NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER

NO. 29725

IN THE iNTERMEDIATE coURT oF APPEALs
oF THE sTATE oF HAwAr1

DAVID GARCIA aka Howard Garcia, Petitioner-Appel§§nt,

  

§§
§§
v. y §§ ‘H
sTATE oF HAwArI, Reepondent-Appe11ee * §§ §§
“’ F
APPEAL FRoM THE cIRcUIT coURT oF THE FIRsT cIR §§ §§
(s.P.P. No. 03-1-0012 (cr. No. 96-i330)) §
g .I.l.
C
sUMMARY DIsPosITIoN oRDER
(By: Nakamura, C.J.,

'::5%
Foley and Leonard, JJ.)
(Garcia)

Petitioner-Appellant David Garcia aka Howard Garcia
appeals from the "Findings of Fact,
and Order Denying Petitioner's January lO,

Conclusions of Law
Petition for Post~Conviction Relief“

2008 Nonconforming
(Order) filed on March 18,
2009 in the Circuit Court of the First Circuit (circuit court).1
On appeal, Garcia contends (1) the circuit court erred
by concluding that recalculation of his detention credit, as
specified in state v. Taui1ii1i, 96 HawaFi i95,
(2001),

29 P.3d 914
did not violate the ex post facto clause of the United
States Constitution and his due process rights;

(2)
may not be applied retroactively; and (3) a review of the
transcript from his sentencing hearing indicates that his

Tauiliili
detention credit would be applied to his consecutive term.

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 that
Garcia's appeal is without merit. l

"Retroactive application of a law that imposes a
greater punishment than the law in effect when the crime was
committed is forbidden by the Ex Post Facto clauses of the
Constitution."

Davis v. Moore,

772 A.2d 204, 215-16 (D.C. 2001)
1

The Honorable virginia Lea Crandall presided.

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(footnote omitted). "The United States Supreme Court has made it
clear that the constitutional prohibition against ex post facto
measures applies only to legislative enactments." State v. Jess,
117 Hawai‘i 381, 407, 184 P.3d 133, 159 (2008) . I-Iawaii Revised
Statutes (HRS) § 706~671 was first enacted in 1972 by Act 9, § 1,
and to date the language remains the same (except for a gender
change). Tauiliili expressed an interpretation of HRS § 706-671
and did not change its statutory language or any prior ruling on
its effect. Since HRS § 706~671 has not changed since Garcia
committed his offenses, there is no ex post facto prohibition
against applying Tauiliili to Garcia's sentence. Therefore, the
circuit court correctly concluded that the Hawafi Paroling
Authority (HPA) did not violate the ex post facto clause when it
applied Tauiliili to correct Garcia's sentence.

"[L]imitations on ex post facto judicial decisionmaking
are inherent in the notion of due process." Q§§§, 117 HawaFi at
407, 184 P.3d at 159 (internal quotation marks and citation
omitted). The test for analyzing whether a newly announced
judicial doctrine can apply retroactively is grounded in concepts
of notice and foreseeability. ;Q4 at 408, 184 P.3d at 160
(citing to Rogers v. Tennessee, 532 U.S. 451, 459 (2001), and
Bouie v. CitV of Columbia, 378 U.S. 347, 351, 352, & 354-55
(1697)). "[J]udicial reformation of the law violates the
principle of fair warning, and hence must not be given
retroactive effect, only where it is unexpected and indefensible
by reference to the law which had been expressed prior to the
conduct in ieeue." _q_e_e_<_.s_, 117 Hawai‘i at 403, 184 P.3<i at 160
(internal quotation marks and citation omitted). "An
unforseeable interpretation of a statute that increases
punishment, if applied retroactively, could violate due process."
Campbell v. United States Parole Comm'n, 563 F. Supp.2d 23, 26
(D.D.C. 2008) (Citing to _B_gg_i_e_, 378 U.S. at 353-54).

Under a Hawai‘i due process analysis as to whether

application of a judicial decision is unexpected and

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indefensible, the court focuses on "(l) whether the change
wrought by the judicial decision is detrimental or remedial to
the defendant's interests; and (2) whether the change is
substantive or procedural in nature." Q§§§, 117 HawaFi at 408,
184 P.3d at l60.

Under HPA's administrative rules, presentence credit
could only be applied once. Garcia was sentenced to ten years
for each of Counts I through V, Count I to run consecutively too
Counts II through IV, which were to run concurrently. The
sentence as a whole was to be served concurrent with Garcia's
then unexpired term, which terminated in 200l, in another case.
Garcia's minimum term for each of Counts I through V was seven
years. Garcia's admission date was March 3, l998. Thus, Garcia
must serve his longest concurrent minimum sentence (seven years)
followed by another seven-year consecutive minimum sentence. In
accordance with Hawafi Administrative Rules (HAR) § 17-1204-172
(Credit Application Towards Minimum Sentence Expiration Date for
Sentenced Felons), Garcia's presentence credit is applied to his
first seven-year minimum term beginning on March 3, 1998, not to
each minimum term.

HAR § 17-1204-17 was promulgated in 1985. In 200l,
when the court in Tauiliili stated that presentence credit could
only be applied once to consecutive sentences, it was not
unexpected that HRS § 706-671 would be interpreted to mean that
presentence credit could only be applied once to the aggregate
minimum sentence. The holding in Tauiliili was not a reformation
or departure from an existing HPA rule. Rather, it was
consistent with HPA's longstanding practice of only applying
presentence credit once to a minimum sentence expiration date.
Also, HPA's application of Tauiliili to Garcia was procedural in
nature because the application was to correct HPA's prior

misapplication of presentence credit in order to conform to the

2 HAR § 17-1204-17 was repealed on Apri1 15, 2000.

3

NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER

law as it existed prior to and after Tauiliili. Thus, Garcia's
due process rights under the HawaFi Constitution were not
violated by the application of Tauiliili in this case.

Application of Tauiliili did not violate Garcia's due
process rights under the United States Constitution. See, e.g.,
United States Parole Comm'n v. Noble, 693 A.2d 1084 (D.C. 1997),
and Q§yi§. In Ngbl§, the District of Columbia Court of Appeals
held that based upon its statutory interpretation of the Good
Time Credits Act of 1986 (GTCA), a defendant under the
supervision of the United States Parole Commission was not
entitled to street time credit after his parole was revoked.
§gbl§, 693 A.2d at 1085-94. In Qayi§, the court stated that its
decision in NQbl§ applied retroactively. Q§yi§, 772 A.2d at
208-O9. Prior to NQbl§, the District of Columbia Department of
Corrections gave street time credit after parole was revoked 4
based upon its interpretation of the GTCA. Qayi§, 772 A.2d at
209. The United States Parole Commission disagreed with the
District of Columbia Department of Corrections and did not give
street time credit after parole was revoked. lQL at 209-10.
Thus, prisoners were subjected to disparate treatment depending
on the facility in which they were located, and a legal challenge
ensued resulting in §gbl§. Qayi§, 772 A.2d at 210~11. After
§gbl§, the District of Columbia Department of Corrections denied
street time credit after parole was revoked and recalculated
sentences based on NQbl§ to all prisoners still in custody.
p_eg_r_ip_e, 772 A.zd et 203.

The appellants in Qayi§ then filed suit claiming that
NQbl§ should not be retroactively applied to appellants because
'they were in a facility located within the District of Columbia,
NQbl§ violated due process and ex post facto clauses of the 2
United States Constitution, and they reasonably relied upon the
District of Columbia Department of Corrections' policy to award
street time credit after parole revocation. Davis, 772 A.2d at

214. The Davis court held, inter alia, that the appellants' due

NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER

process rights under the United States Constitution were not
violated by retroactive application of NQbl§ because the court's
statutory interpretation in §gbl§ was not unforeseeable and
equitable considerations did not justify only prospective
application. Davis, 772 A.2d at 214-15. _In addition, the Qayi§
court held that "it is a well established rule that a prisoner
has no constitutional right to object to the correction of a
miscalculation of his sentence." lQ; at 219. "Only in rare
circumstances have courts allowed the misconstructions of
officials to estop the proper execution of state or federal law,
and such cases have involved prejudice and harm beyond frustrated
expectations." ;Q¢ (internal quotation marks and citation
omitted).

Finally, there is nothing in the transcript or Garcia's
plea agreement to indicate that the parties agreed that Garcia
would receive credit for the detention time for each count.

Therefore, `

IT IS HEREBY ORDERED that the "Findings of Fact,
Conclusions of Law and Order Denying Petitioner's January 10,
2008 Nonconforming Petition for Post-Conviction Relief" filed on
March 18, 2009 in the Circuit Court of the First Circuit is
affirmed.

DATED= Honelulu, Hewai‘i, June 23, 2010.

On the briefs:

Glenn D. ChoY g § i":  M,,” ,¢¢ ,.

for Petitioner-Appellant.
Chief Judge

aziz/72

Associate Judge

Diane K. Taira

Darcy H. Kishida,

Deputy Attorneys General,
for Respondent-Appellee.

   
 

