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                                                              Electronically Filed
                                                              Supreme Court
                                                              SCWC-15-0000363
                                                              21-MAR-2018
                                                              08:10 AM




           IN THE SUPREME COURT OF THE STATE OF HAWAI#I

                                ---o0o---


                          ROBERT FLUBACHER,
                  Petitioner/Petitioner-Appellant,

                                    vs.

                          STATE OF HAWAI#I,
                   Respondent/Respondent-Appellee.


                            SCWC-15-0000363

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

                             MARCH 21, 2018

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

             OPINION OF THE COURT BY 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
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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


     1
          The Honorable Richard K. Perkins presided.

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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.


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            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-

6612 and 706-662(4)(a),3 as follows:        (1) in Cr. No. 01-1-2788,

      2
            HRS § 706-661 (Sentence of imprisonment for felony; extended
terms) (Supp. 1999) provided, in pertinent part:

            In the cases designated in section 706-662, a person
            who has been convicted of a felony may be sentenced to
            an extended indeterminate term of imprisonment. When
            ordering such a sentence, the court shall impose the
            maximum length of imprisonment which shall be as
            follows:

                                                                (continued...)

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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 court4 granted the State’s motion, and



      2
       (...continued)
            (1) For murder in the second degree--life without the
            possibility of parole;

            (2) For a class A felony--indeterminate life term of
            imprisonment;

            (3) For a class B felony--indeterminate twenty-year
            term of imprisonment; and

            (4) For a class C felony--indeterminate ten-year term
            of imprisonment.
      3
            HRS § 706-662(4)(a) (Criteria for extended terms of imprisonment)
(Supp. 2001) provided:

            A convicted defendant may be subject to an extended
            term of imprisonment under section 706-661 if the
            convicted defendant satisfies one or more of the
            following criteria:

                  (4) The defendant is a multiple offender whose
                  criminal actions were so extensive that a
                  sentence of imprisonment for an extended term is
                  necessary for protection of the public. The
                  court shall not make this finding unless:
                        (a) The defendant is being sentenced for
                        two or more felonies or is already under
                        sentence of imprisonment for felony[.]
      4
            The Honorable Michael A. Town presided.

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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 405 petition for


      5
            HRPP Rule 40(a) (Proceedings and Grounds) (2003) provides in
relevant part:

            The post-conviction proceeding established by this
            rule shall encompass all common law and statutory
            procedures for the same purpose, including habeas
            corpus and coram nobis; provided that the foregoing
            shall not be construed to limit the availability of
            remedies in the trial court or on direct appeal. Said
            proceeding shall be applicable to judgments of
            conviction and to custody based on judgments of
            conviction, as follows:
                                                                (continued...)

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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 post-

conviction 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

     5
      (...continued)

           (1) From Judgment. At any time but not prior to final
           judgment, any person may seek relief under the
           procedure set forth in this rule from the judgment of
           conviction, on the following grounds:
                 (i) that the judgment was obtained or sentence
           imposed in violation of the constitution of the United
           States or of the State of Hawai#i;
                 (ii) that the court which rendered the judgment
           was without jurisdiction over the person or the
           subject matter;
                 (iii) that the sentence is illegal;
                 (iv) that there is newly discovered evidence; or
                 (v) any ground which is a basis for collateral
           attack on the judgment.

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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.


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                         State, 1[1]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

      6
            With respect to this Conclusion of Law, the circuit court stated
in a footnote:

            Loher is the controlling precedent for Hawai#i trial
            courts determining issues like the instant one. While
            it appears that the Ninth Circuit’s decision in Kaua
            v. Frank, 436 F.3d 1057, 1061-62 (9th Cir. 2006),
            cert. denied, Frank v. Kaua, 549 U.S. 1245 . . .
            (2007), regarding a defendant whose sentence was final
            on or about June 1, 2001, holds that the sentencing
            court’s public protection finding was a violation of
            Apprendi, the rulings of the federal district and
            circuit courts are not controlling authority, but
            merely persuasive authority, even on a federal
            constitutional question.


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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


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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


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          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 omitted; emphasis in original) (citing Dan, 76 Hawai#i

at 427, 879 P.2d at 532).

                            III.   Discussion

          In his application for writ of certiorari, Flubacher

presents the following issues:
          A.    Appellant[’]s extended sentences are illegal
                because they violate the United States Supreme
                Court cases “Apprendi v. New Jersey” and “Ring
                v. Arizona” and the Hawai#i ICA’s “Loher v.
                State” case decision is not controlling in
                Appellant[’s] case and does not foreclose
                Appellant[’]s claim[.]

          B.    Appellant[’]s claim that the sentencing judge
                erroneously found that Appellant ‘Bashed’ a
                woman with a hammer and then relied on that
                erroneous finding in extending Appellant[’]s
                sentences was not waived under Haw. R. Penal P.
                40(2)(3)-1[.]
          In supplemental briefing requested by this court, the

State changed its prior position regarding the first issue, and

conceded that Flubacher’s sentence was illegal.          Specifically,


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the State now concedes that “any extended term sentence imposed

after June 26, 2000, in which the court, not a jury, found the

fact of ‘necessary for protection of the public’ is in violation

of Apprendi.”

           As set forth below, the State’s concession is well-

founded, and accordingly, we remand for resentencing.7            See State

v. Hoang, 93 Hawai#i 333, 336, 3 P.3d 499, 502 (2000).

           At issue in Apprendi was a New Jersey “hate crime”

statute, which provided for the imposition of an enhanced

sentence based upon a finding, by the sentencing judge by a

preponderance of the evidence, that the defendant had committed

an offense “with a racially biased purpose.”           530 U.S. at 468-70.

Apprendi fired several shots into the home of an African-American

family who had recently moved into a previously all-white

neighborhood.    Id. at 469.     Apprendi subsequently entered into a

plea agreement, under which he pleaded guilty to two counts of

the second-degree offense of possessing a firearm with an

unlawful purpose and one count of the third-degree offense of

unlawfully possessing an antipersonnel bomb, but reserved the



      7
            The dissent contends that Flubacher’s second issue is waived. See
Dissent at 15-17. Because we conclude that Flubacher’s sentence is illegal
and remand for resentencing, we do not address Flubacher’s remaining issue
raised on appeal and whether that remaining issue was waived. Further, any
analysis of waiver must be made in light of HRPP Rule 40(a)(3), which
specifically exempts illegal sentence claims from being waived. See also HRPP
Rule 35 (“The court may correct an illegal sentence at any time . . .”).

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right to challenge any hate crime sentencing enhancement as

violating the Constitution.       Id. at 469-70.      After the plea was

accepted by the court, the prosecutor filed a motion for an

extended term sentence.       Id. at 470.    The court conducted an

evidentiary hearing on Apprendi’s purpose for the shooting, and

held that the hate crime enhancement applied, finding by a

preponderance of the evidence that “the crime was motivated by

racial bias,” and Apprendi’s actions were taken “with a purpose

to intimidate” as provided by the hate crime statute.                Id. at

470-71.   Apprendi appealed, and a divided New Jersey Supreme

Court ultimately upheld his sentence, rejecting his challenge to

the constitutionality of the enhanced sentencing procedure.                Id.

at 471-72.

            The United States Supreme Court granted certiorari, and

reversed.    Id. at 474.    The Court stated that the constitutional

protections at stake were of “surpassing importance,” including:
            the proscription of any deprivation of liberty without
            “due process of law,” Amdt. 14, and the guarantee that
            “[i]n all criminal prosecutions, the accused shall
            enjoy the right to a speedy and public trial, by an
            impartial jury,” Amdt. 6. Taken together, these
            rights indisputably entitle a criminal defendant to “a
            jury determination that [he] is guilty of every
            element of the crime with which he is charged, beyond
            a reasonable doubt.”

Id. at 476–77 (emphasis added).

            The Court discussed its past jurisprudence, noting that

in McMillan v. Pennsylvania, 477 U.S. 79 (1986), it first coined

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the term “sentencing factor” to “refer to a fact that was not

found by a jury but that could affect the sentence imposed by the

judge.”   Id. at 485.     The Court in McMillan held that a

Pennsylvania sentencing scheme was valid because it operated

“solely to limit the sentencing court’s discretion in selecting a

penalty within the range already available to it without [a]

special finding,” while also noting that “a state scheme that

keeps from the jury facts that expose defendants to greater or

additional punishment, may raise serious constitutional concern.”

Id. at 486 (internal quotations, citations, and brackets

omitted).

            The Apprendi Court stated that the relevant inquiry

should not be one of form, but instead of effect:            “does the

required finding expose the defendant to a greater punishment

than that authorized by the jury’s guilty verdict?”             Id. at 494.

Thus, the Court rejected the “constitutionally novel and elusive

distinction between ‘elements’ and ‘sentencing factors’”8              Id.


      8
            The Court noted that it did not suggest that the term “sentencing
factor” was devoid of meaning, stating:

            The term appropriately describes a circumstance, which
            may be either aggravating or mitigating in character,
            that supports a specific sentence within the range
            authorized by the jury’s finding that the defendant is
            guilty of a particular offense. On the other hand,
            when the term “sentence enhancement” is used to
            describe an increase beyond the maximum authorized
            statutory sentence, it is the functional equivalent of
            an element of a greater offense than the one covered
                                                                 (continued...)

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(citation omitted).      The Court reasoned that the effect of New

Jersey’s sentencing enhancement “unquestionably . . . turn[ed] a

second-degree offense into a first degree offense,” and that the

potential doubling of Apprendi’s sentence from ten years to

twenty years was “unquestionably of constitutional significance”

both in terms of years of absolute imprisonment and because of

the “more severe stigma attached.”         Id. at 494-95.     Therefore,

the Court held that “[o]ther than the fact of a prior conviction,

any fact that increases the penalty for a crime beyond the

prescribed statutory maximum must be submitted to a jury, and

proved beyond a reasonable doubt.”         Id. at 490.    In so holding,

the Court also endorsed the following rule:           “[I]t is

unconstitutional for a legislature to remove from the jury the

assessment of facts that increase the prescribed range of

penalties to which a criminal defendant is exposed.            It is

equally clear that such facts must be established by proof beyond

a reasonable doubt.”      Id. (citations omitted).

            Following Apprendi, this court repeatedly considered

whether Hawaii’s extended term sentencing scheme comported with

Apprendi.    Until 2007, we concluded that it did so, on the ground

      8
       (...continued)
            by the jury’s guilty verdict. Indeed, it fits
            squarely within the usual definition of an “element”
            of the offense.

Apprendi, 530 U.S. at 494 n.19 (emphasis in original, citation omitted).

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that Hawaii’s scheme only required the judge to determine

“extrinsic” facts, rather than facts that were “intrinsic” to the

offense.     See Kaua, 102 Hawai#i 1, 72 P.3d 473; Rivera, 106

Hawai#i 146, 102 P.3d 1044; Maugaotega I, 107 Hawai#i 399, 114

P.3d 905; State v. White, 110 Hawai#i 79, 129 P.3d 1107 (2006).

It was not until Maugaotega II, that this court acknowledged that

the United States Supreme Court, in Cunningham, rejected the

validity of our intrinsic/extrinsic distinction, which formed the

basis of these decisions.         115 Hawai#i at 442-47, 168 P.3d 572-

77.

             In State v. Kaua, the defendant was indicted in

connection with a 1999 hostage standoff, and while the jury

acquitted him of attempted murder in the first degree, it found

him guilty of several other offenses.           102 Hawai#i at 2-3, 72

P.3d at 474-75.       The State moved for an extended term sentence

pursuant to HRS § 706-662(4)(a).            Id. at 3-4, 72 P.3d at 475-76.

At the evidentiary hearing, the circuit court followed the two-

step process required at that time, determining first that Kaua

was a multiple offender subject to an extended term sentence,

i.e., Kaua was being sentenced for two or more felonies at that

time, and had already been under sentence of imprisonment for a

felony; and second, that the extended term sentence was necessary

for the protection of the public.           Id. at 4-7, 72 P.3d at 476-79.


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            In determining that the extended term sentence was

necessary for the protection of the public, the circuit court

cited Kaua’s history of substance abuse, his substance abuse

shortly before the hostage incident, his history of assaultive

behavior, his inability to control his behavior while under the

influence or under stress, his access to firearms and lack of

experience with the firearm used to perpetrate the standoff, and

the strong possibility that he could have injured minors and

innocent bystanders during the incident because of his

inexperience.     Id. at 4-6, 72 P.3d at 476-478.        Accordingly, the

circuit court granted the State’s motion, and sentenced Kaua to

several extended term sentences.          Id.

            Kaua appealed, and this court affirmed Kaua’s judgment

of conviction and sentence.9       Id.    Kaua subsequently filed a

motion for correction of illegal sentence under HRPP Rule 35,10


      9
            Kaua appealed to this court on February 28, 2000, Apprendi was
decided on June 26, 2000, and this court issued its summary disposition order
on May 1, 2001. State v. Kaua, 102 Hawai#i at 6, 72 P.3d at 478. Although
Apprendi had been decided prior to this court’s State v. Kaua decision, Kaua
did not raise any Apprendi issues in his direct appeal. Kaua v. Frank, 436
F.3d at 1059.
      10
            HRPP Rule 35(a) (Correction or Reduction of Sentence) (2003)
provides:

            The court may correct an illegal sentence at any time
            and may correct a sentence imposed in an illegal
            manner within the time provided herein for the
            reduction of sentence. A motion made by a defendant
                                                                (continued...)

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arguing that the two-step process for determining a defendant’s

status as a multiple offender should be determined by the jury in

a separate sentencing hearing, according to Apprendi.                   Id. at 6,

72 P.3d at 478.        The circuit court denied Kaua’s motion, finding

that his extended term sentence was proper, and that the “facts

of conviction which exposed Kaua to an extended term of

imprisonment were not in the nature of ‘elements’ of the offenses

charged or of a separate legal offense.”             Id. at 6-7, 72 P.3d at

478-79.

              This court upheld the process followed by the

sentencing court, reasoning:
              Specifically, the facts at issue in rendering an
              extended term sentencing determination under HRS
              §§ 706–662(1),(3), and (4)[11] implicate



     10
          (...continued)
               to correct an illegal sentence more than 90 days after
               the sentence is imposed shall be made pursuant to Rule
               40 of these rules. A motion to correct a sentence
               that is made within the 90 day time period shall
               empower the court to act on such motion even though
               the time period has expired.
     11
              HRS § 706-662 (Supp. 2001) provided, in relevant part:

              A convicted defendant may be subject to an extended
              term of imprisonment under section 706–661, if the
              convicted defendant satisfies one or more of the
              following criteria:

                    (1) The defendant is a persistent offender whose
                    imprisonment for an extended term is necessary
                    for protection of the public. The court shall
                    not make this finding unless the defendant has
                    previously been convicted of two felonies
                    committed at different times when the defendant
                    was eighteen years of age or older.
                                                                   (continued...)

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 11
  (...continued)

             (2) The defendant is a professional criminal
             whose imprisonment for an extended term is
             necessary for protection of the public. The
             court shall not make this finding unless:
                   (a) The circumstances of the crime show
                   that the defendant has knowingly engaged
                   in criminal activity as a major source of
                   livelihood; or
                   (b) The defendant has substantial income
                   or resources not explained to be derived
                   from a source other than criminal
                   activity.

             (3) The defendant is a dangerous person whose
             imprisonment for an extended term is necessary
             for protection of the public. The court shall
             not make this finding unless the defendant has
             been subjected to a psychiatric or psychological
             evaluation that documents a significant history
             of dangerousness to others resulting in
             criminally violent conduct, and this history
             makes the defendant a serious danger to others.
             Nothing in this section precludes the
             introduction of victim-related data in order to
             establish dangerousness in accord with the
             Hawaii rules of evidence.

             (4) The defendant is a multiple offender whose
             criminal actions were so extensive that a
             sentence of imprisonment for an extended term is
             necessary for protection of the public. The
             court shall not make this finding unless:
                   (a) The defendant is being sentenced for
                   two or more felonies or is already under
                   sentence of imprisonment for felony; or
                   (b) The maximum terms of imprisonment
                   authorized for each of the defendant's
                   crimes, if made to run consecutively would
                   equal or exceed in length the maximum of
                   the extended term imposed, or would equal
                   or exceed forty years if the extended term
                   imposed is for a class A felony.

             (5) The defendant is an offender against the
             elderly, handicapped, or a minor under the age
             of eight, whose imprisonment for an extended
             term is necessary for the protection of the
             public. The court shall not make this finding
             unless:
                   (a) The defendant attempts or commits any
                                                            (continued...)

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            considerations completely “extrinsic” to the elements
            of the offense with which the defendant was charged
            and of which he was convicted; accordingly, they
            should be found by the sentencing judge . . . . The
            facts at issue for purposes of HRS §§ 706–662(5) and
            (6), however, are, by their very nature, “intrinsic”
            to the offense with which the defendant was charged
            and of which he has been convicted; accordingly, they
            must be found beyond a reasonable doubt by the trier
            of fact in order to afford the defendant his
            constitutional rights to procedural due process and a
            trial by jury.

Id. at 12–13, 72 P.3d at 484–85 (citations omitted).12

      11
       (...continued)
                        of the following crimes: murder,
                        manslaughter, a sexual offense that
                        constitutes a felony under chapter 707,
                        robbery, felonious assault, burglary, or
                        kidnapping; and
                        (b) The defendant, in the course of
                        committing or attempting to commit the
                        crime, inflicts serious or substantial
                        bodily injury upon a person who is:
                              (i) Sixty years of age or older;
                              (ii) Blind, a paraplegic, or a
                              quadriplegic; or
                              (iii) Eight years of age or younger;
                              and
                        (c) Such disability is known or reasonably
                        should be known to the defendant.

                  (6) The defendant is a hate crime offender whose
                  imprisonment for an extended term is necessary
                  for the protection of the public. The court
                  shall not make this finding unless:
                        (a) The defendant is convicted of a crime
                        under chapter 707, 708, or 711; and
                        (b) The defendant intentionally selected a
                        victim or, in the case of a property
                        crime, the property that was the object of
                        a crime, because of hostility toward the
                        actual or perceived race, religion,
                        disability, ethnicity, national origin, or
                        sexual orientation of any person.
      12
            In 2003, Kaua filed a habeas corpus petition in the United States
District Court for the District of Hawai#i, requesting that the district court
vacate his sentence. Kaua v. Frank, 350 F. Supp. 2d at 849–50, 855-56. In
his petition, Kaua challenged this court’s conclusion that a judge, rather
than a jury, was permitted to satisfy the second stage of HRS § 706-662(4)’s
sentencing process, regarding the necessity of protecting of the public. Id.
                                                                 (continued...)

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            Respectfully, our analysis in Kaua erroneously

concluded that despite the Court’s clear holding in Apprendi,

this court’s intrinsic/extrinsic factor analysis still remained

valid.13   102 Hawai#i at 12-13, 72 P.3d at 484-85.         Specifically,

      12
       (...continued)
at 850-53, 855-56. The district court granted Kaua’s petition, holding that
this court’s affirmance of his extended sentence was “contrary to, and
involved an unreasonable application of Apprendi.” Id. at 861. The Ninth
Circuit affirmed, rejecting this court’s “intrinsic[/]extrinsic” analysis as a
“variant of the ‘element-sentencing factor’ distinction that Apprendi
explicitly rejected.” Kaua v. Frank, 436 F.3d at 1062.

            Although the analysis of the federal courts in Kaua is consistent
with our conclusions here, we are not bound by those decisions and accordingly
analyze the issues independently.
      13
            The Dissent states, “I agree with several federal courts of appeal
that the date should be placed after the Supreme Court decided Blakely and
Booker.” Dissent at 18-19. It is important to note that, when evaluating
state court decisions, federal courts address this issue under a higher
standard than state courts. Federal courts are making a determination whether
a state court’s decision is contrary to or an unreasonable application of
established federal law, as determined by the U.S. Supreme Court.

            [A] state court decision is contrary to clearly
            established Federal law, as determined by the Supreme
            Court, when the state court arrives at a conclusion
            opposite to that reached by the Supreme Court on a
            question of law, or when the state court confronts
            facts that are materially indistinguishable from a
            relevant Supreme Court precedent and arrives at a
            result opposite to the Supreme Court.

            A state court decision is an unreasonable application
            of clearly established Federal law, as determined by
            the Supreme Court of the United States when the state
            court identifies the correct governing legal rule from
            Supreme Court cases, but unreasonably applies it to
            the facts of the particular case, or when the state
            court either unreasonably extends a legal principle
            from Supreme Court precedent to a new context where it
            should not apply or unreasonably refuses to extend
            that principle to a new context where it should apply.
            The unreasonable application clause requires the state
            court decision to be more than incorrect or erroneous.
            The state court’s application of clearly established
            law must be objectively unreasonable.

                                                                (continued...)

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we characterized Apprendi as stating the following:
            [A] finding that the defendant committed the charged
            offense with a biased purpose, of necessity, required
            an assessment of the ‘elemental’ facts upon which the
            indictment was based. That being the case, the
            Apprendi Court held that findings that implicated
            ‘elemental’ facts requisite to imposing an enhanced
            sentence must be charged in the indictment, submitted
            to the jury, and proved by the prosecution beyond a
            reasonable doubt.

Id. at 12, 72 P.3d at 484 (citations omitted).

            Accordingly, we asserted that the “facts at issue in

rendering an extended term sentencing determination under HRS

§ 706-662(1), (3), and (4) implicate considerations completely

‘extrinsic’ to the elements of the offense with which the

defendant was charged . . . . [and thus] fell outside the

Apprendi rule.”     Id. at 12-13, 72 P.3d at 484-85.

            In reaching that conclusion about the importance of

facts being “elemental” rather than “extrinsic,” this court

appeared to rely on language in Apprendi that responded to the

State of New Jersey’s argument that a finding of racial bias

under the hate crime statute involved nothing more than the

“traditional ‘sentencing factor’ of motive.”           Id.; see Apprendi,

530 U.S. at 492-93.      Specifically, the Court in Apprendi


      13
        (...continued)
Kaua, 350 F. Supp. 2d at 855–56 (brackets, ellipses, quotation marks and
citations omitted).

            Even under this higher standard, the federal district court and
the Ninth Circuit concluded that our decision in Kaua was contrary to
Apprendi. See supra n.12.

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disagreed with the State’s suggestion that the hate crime statute

required “simply an inquiry into ‘motive,’” noting that “[t]he

defendant’s intent in committing a crime is perhaps as close as

one might hope to come to a core criminal offense ‘element.’”

530 U.S. at 492-93.

          However, the Court in Apprendi immediately went on to

explain that the characterization of the required finding did not

matter, and to repeat the holding of the case:
          The foregoing notwithstanding, however, the New Jersey
          Supreme Court correctly recognized that it does not
          matter whether the required finding is characterized
          as one of intent or of motive, because “[l]abels do
          not afford an acceptable answer.” That point applies
          as well to the constitutionally novel and elusive
          distinction between “elements” and “sentencing
          factors.” Despite what appears to us the clear
          “elemental” nature of the factor here, the relevant
          inquiry is one not of form, but of effect-does the
          required finding expose the defendant to a greater
          punishment than that authorized by the jury’s guilty
          verdict?

Apprendi, 530 U.S. at 494 (citations omitted) (emphasis added).

          Therefore, we hold that the line of demarcation is

Apprendi, not Booker or Cunningham, in determining whether

extended term sentences imposed without jury findings are subject

to collateral attack.     Accordingly, we correct the conclusion in

Loher and subsequent opinions that the “legal landscape only

became clear after Apprendi (2000), Blakely (2004), and Booker

(2005), [were] taken together.”       Loher v. State, 118 Hawai#i 522,

538, 193 P.3d 438, 454 (App. 2008).        To the extent that our prior


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opinions and the ICA’s prior opinions are contrary to our

holding, they are now overruled.14         Here, a judge, and not a

jury, made the required finding that Flubacher’s extended term

sentence was necessary for the protection of the public.              That

“required finding expose[d] the defendant to a greater punishment

than that authorized by the jury's guilty verdict.”             Apprendi,

530 U.S. at 494.     Therefore, Flubacher’s extended term sentences

were imposed in an illegal manner because they violate Apprendi.

            The Dissent suggests that the rule in Apprendi “was not

clear” because the Supreme Court subsequently granted certiorari

in Blakely and Booker.       Dissent at 5-9.     Respectfully, the issues

addressed in those cases were not needed to clarify the

invalidity of this court’s extrinsic/intrinsic analysis.              Blakely

involved the distinct question of whether Apprendi applied to an

extended sentence which did not exceed the statutory maximum in a

state court proceeding, while Booker addressed a similar issue in

the context of the federal sentencing guidelines.             Accordingly,

cases addressing whether those decisions announced “new” rules

for purposes of retroactivity analysis are irrelevant to

assessing the validity of Hawaii’s sentencing scheme.


      14
             These cases include Kaua, 102 Hawai#i 1, 72 P.3d 473; Rivera, 106
Hawai#i 146, 102 P.3d 1044; Maugaotega I, 107 Hawai#i 399, 114 P.3d 905; White,
110 Hawai#i 79, 129 P.3d 1107; Loher, 118 Hawai#i 522, 193 P.3d 438; and, for
example, Mara v. State, 139 Hawai#i 414, 420 n.8, 391 P.3d 1236, 1242 n.8
(App. 2017) (citing ICA opinions).

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                              IV.   Conclusion

            For the foregoing reasons, we conclude that Flubacher’s

extended term sentences were imposed in an illegal manner.

Therefore, we vacate the ICA’s October 13, 2016 Judgment on

Appeal, the circuit court’s April 2, 2015 Order Denying Petition,

the portion of the circuit court’s September 12, 2003 Judgments

and Sentences in Cr. Nos. 01-1-2788, 01-1-2789, 02-1-0089,

02-1-0090, and 02-1-0125 that imposed extended term sentences,

and the circuit court’s Order Granting Motion for Extended Term

of Imprisonment filed September 22, 2003.           We remand this case

for further proceedings consistent with this opinion.15

John M. Schum                              /s/ Mark E. Recktenwald
for petitioner
                                           /s/ Sabrina S. McKenna
Stephen K. Tsushima
for respondent                             /s/ Richard W. Pollack

                                           /s/ Michael D. Wilson




      15
             Flubacher maintained that his sentence should be vacated, and that
he should be resentenced without being subject to extended term sentencing.
However, based on the reasoning in Jess, we reject that argument. See Jess,
117 Hawai#i at 406-15, 184 P.3d at 158-67 (finding that upon remand, the State
may move for an extended term sentence, and the circuit court may empanel a
jury to make the necessary findings to determine petitioner’s sentence).


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