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                                                              Electronically Filed
                                                              Supreme Court
                                                              SCWC-XX-XXXXXXX
                                                              28-JUN-2018
                                                              08:24 AM




                            SCWC-XX-XXXXXXX

           IN THE SUPREME COURT OF THE STATE OF HAWAI#I


                          ALBERT BATALONA,
                  Petitioner/Petitioner-Appellant,

                                    vs.

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


         CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
   (CAAP-XX-XXXXXXX; S.P.P. NO. 10-1-0075; CR. NO. 03-1-0787)

                     SUMMARY DISPOSITION ORDER
(By: Recktenwald, C.J., Nakayama, McKenna, Pollack, and Wilson JJ.)


          Petitioner/Petitioner-Appellant Albert Batalona appeals

from the Intermediate Court of Appeals’ (ICA) August 4, 2017

Judgment on Appeal, entered pursuant to its June 28, 2017

Memorandum Opinion affirming the Circuit Court of the First

Circuit’s (circuit court) July 17, 2015 Amended Findings of Fact,

Conclusions of Law, and Order Granting in Part and Denying in
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Part Petition for Post-Conviction Relief.

          In 2003, a jury found Batalona guilty of escape in the

second degree, theft in the second degree, and theft in the

fourth degree.1     Subsequently, the State filed a motion for an

extended term of imprisonment, arguing that Batalona was a

“multiple offender” under HRS § 706-662(4).2         On January 9, 2004,

the circuit court held a hearing and granted the State’s motion
for extended term sentencing, finding that Batalona had been

previously convicted of multiple felonies and that an extended

term of imprisonment was necessary to protect the public.

          Batalona appealed to the ICA.         Citing Apprendi v. New



     1
          The Honorable Marie N. Milks presided.
     2
          HRS § 706-662 (Supp. 2002) 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:

          . . . .

          (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. . . .

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Jersey, 530 U.S. 466 (2000), Batalona argued that a jury must

determine whether an extended term of imprisonment was necessary

for the protection of the public.        Batalona also argued that the

circuit court was statutorily barred from ordering restitution

for repairs to the correctional facility arising from Batalona’s

escape because the government was not a direct victim.

          The ICA affirmed the circuit court’s judgment.
Batalona then filed an application for writ of certiorari to this

court, which was denied in 2006.3

          In 2010, Batalona filed a Hawai#i Rules of Penal

Procedure (HRPP) Rule 40 petition.4       Batalona asserted that his

sentence was illegal, reiterating his Apprendi argument as well

as arguing that the circuit court failed to enter findings of

fact and conclusions of law “specifically illustrating that

Batalona could afford to pay restitution” and a fine, citing

State v. Werner, 93 Hawai#i 290, 297 (App. 2000).          Batalona later

amended his petition by:      (1) adding a third claim that his

sentence was illegal because a sentence for escape cannot legally

run consecutive to a sentence of life without the possibility of

parole; and (2) amending his inability to pay restitution claim

to add that there was ineffective assistance of counsel for

failure to raise that claim on direct appeal.


     3
          Justice Acoba dissented, with whom Justice Duffy joined.
     4
          The Honorable Colette Y. Garibaldi presided.

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            On July 17, 2015, the circuit court entered its Amended

Findings of Fact, Conclusions of Law, and Order Granting in Part

and Denying in Part Petition for Post-Conviction Relief (7/17/15

Order).   The circuit court granted a hearing on the issues of

whether Batalona could afford to pay the imposed restitution and

fine, and whether Batalona had ineffective assistance of

appellate counsel.    The circuit court denied all remaining
grounds–-including the Apprendi argument--and characterized them

as “patently frivolous and without a trace of support.”

            On April 27, 2016, the circuit court entered its

Findings of Fact, Conclusions of Law, Order, and Final

Disposition Regarding Petition for Post-Conviction Relief

(4/27/16 Order).    The circuit court determined that the trial

court “did not make a specific finding regarding [Batalona’s]

ability to pay the restitution ordered.”         The circuit court then

concluded that a fine was not appropriate and that Batalona had

the ability to pay 10% of his wages earned while incarcerated

toward victim restitution.      The circuit court also concluded that

Batalona’s appellate counsel did not render ineffective

assistance of counsel by failing to raise the issue of Batalona’s

ability to pay the fine and restitution.

            Batalona appealed to the ICA the 7/17/15 Order and the

4/27/16 Order.    In his opening brief, Batalona raised two points

of error.    First, Batalona argued that the circuit court erred in


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denying Batalona’s petition to set aside restitution because the

circuit court failed to enter sufficient findings and conclusions

to demonstrate that Batalona was able to afford paying $3,149 in

restitution.   Second, Batalona argued that the circuit court

erred by denying Batalona’s petition to correct his illegal

sentence under Apprendi and its progeny.

          In its Memorandum Opinion, the ICA held that the
circuit court abused its discretion when it made insufficient

findings of fact to conclude that Batalona could afford to pay

the amount of restitution ordered.         The ICA also held that the

circuit court did not err in concluding that Apprendi did not

apply to Batalona’s sentence.       Pursuant to its Memorandum

Opinion, the ICA affirmed the 7/17/15 Order with respect to the

Apprendi issue, vacated the 4/27/16 Order, and remanded for

further proceedings.

          In Batalona’s application for writ of certiorari,

Batalona presented one question:         “[w]hether the ICA gravely

erred in concluding that Apprendi does not apply to Batalona’s

sentence.” (Underline added and footnote omitted).

          In Flubacher, we recently stated:

          [W]e 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. To the extent that our


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            prior opinions and the ICA’s prior opinions are
            contrary to our holding, they are now overruled.
            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 exposed the defendant to a greater
            punishment than that authorized by the jury’s guilty
            verdict. Therefore, Flubacher’s extended term
            sentences were imposed in an illegal manner because
            they violate Apprendi.

Flubacher v. State, 142 Hawai#i 109, 118-19, 414 P.3d 161, 170-71

(2018) (citations, quotation marks, footnote, and brackets
omitted).

            Here, a judge, and not a jury, determined in 2004 that

Batalona’s extended term sentence was necessary for the

protection of the public, which is contrary to our holding in

Flubacher.    Therefore, we conclude that Batalona’s extended term

sentence was imposed in an illegal manner.

            For the foregoing reasons, we vacate in part the ICA’s

August 4, 2017 Judgment on Appeal solely as to the extended term

sentence, vacate in part the circuit court’s 7/17/15 Order solely

as to the extended term sentence, vacate in part the circuit

court’s January 9, 2004 Judgment in Cr. No. 03-1-0787 solely as

to the extended term sentence, and remand this case for further

proceedings consistent with this order.          Because the other issues

discussed in the ICA’s June 28, 2017 Memorandum Opinion and

August 4, 2017 Judgment on Appeal are not before us, we do not




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disturb the ICA’s conclusions as to those other issues.5

            DATED:   Honolulu, Hawai#i, June 28, 2018.

William H. Jameson, Jr.,           /s/ Mark E. Recktenwald
for petitioner
                                   /s/ Paula A. Nakayama
Loren J. Thomas
for respondent                     /s/ Sabrina S. McKenna

                                   /s/ Richard W. Pollack

                                   /s/ Michael D. Wilson




      5
            The ICA vacated the 4/27/16 Order and remanded to “(1) determine
whether Batalona can afford to pay the amount of restitution ordered and, if
so, (2) issue appropriate findings and conclusions specifically illustrating
that he can afford to pay that amount.”

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