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                                                              Electronically Filed
                                                              Supreme Court
                                                              SCAP-XX-XXXXXXX
                                                              28-JUN-2018
                                                              08:36 AM




                            SCAP-XX-XXXXXXX

           IN THE SUPREME COURT OF THE STATE OF HAWAI#I


                           DONALD B. MARKS,
                         Petitioner-Appellant,

                                    vs.

                           STATE OF HAWAI#I,
                         Respondent-Appellee.


       APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
   (CAAP-XX-XXXXXXX; S.P.P. NO. 14-1-0008; CR. NO. 02-1-2410)

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

          Petitioner-Appellant Donald B. Marks appeals from the

Circuit Court of the First Circuit’s (circuit court)1 October 21,

2014 Order Denying Motion to Withdraw No Contest Plea Pursuant to




     1
          The Honorable Richard K. Perkins presided.
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HRPP Rule 32(d)2 and February 17, 2016 Order Denying Motion for

Correction of Illegal Sentence Pursuant to HRPP Rule 35(a).3

            In 2002, Marks was indicted for murder in the second

degree, and subsequently entered a no contest plea.            The State

filed a motion for extended term of imprisonment as a persistent

offender pursuant to HRS §§ 706-661(1) (Supp. 2003) and 706-

662(1) (Supp. 2003).      The circuit court granted the State’s

motion, finding that he was “a persistent offender whose

imprisonment for an extended term of life WITHOUT the possibility

of parole is necessary for the protection of the public,” citing

the increase in the severity of crimes in Marks’s criminal

history, his extensive drug and alcohol abuse, and his abuse of

his ex-wife.    In granting the State’s motion, the circuit court

sentenced Marks on November 16, 2004 to imprisonment for life

without the possibility of parole.         Defense counsel for Marks did

not appeal his conviction and sentence.

            In 2005, Marks filed his first Hawai#i Rules of Penal

Procedure (HRPP) Rule 40 petition, arguing that his counsel was

ineffective for failing to object to and appeal his extended term

sentence based on Apprendi v. New Jersey, 530 U.S. 466 (2000),


      2
            The circuit court styled this order as: “ORDER DENYING MOTION TO
WITHDRAW NO CONTEST PLEA PURSUANT TO HRPP RULE 32(d) AND GRANTING HEARING ON
MOTION FOR CORRECTION OF ILLEGAL SENTENCE PURSUANT TO HRPP RULE 35(a).”
      3
            The circuit court styled this order as: “ORDER DENYING MOTION FOR
CORRECTION OF ILLEGAL SENTENCE PURSUANT TO HRPP RULE 35(a) (NONCONFORMING
PETITION FOR POST CONVICTION RELIEF).”

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and Blakely v. Washington, 542 U.S. 296 (2004).          The circuit

court denied Marks’s petition, finding that Hawaii’s extended

term sentencing scheme did not violate Apprendi or Blakely.

Marks appealed to the ICA, but the appeal was dismissed due to

Marks’s failure to file an opening brief.

            In 2009, Marks filed a second HRPP Rule 40 petition,

reiterating the arguments in his first petition and additionally

arguing that:    (1) HRS § 706-662 was unconstitutional; (2) he

agreed to change his plea to no contest because the State

“personally guaranteed” him that it would not seek an extended

term of imprisonment; and (3) his indictment was defective

because it did not state that he would receive an extended term

sentence.    The circuit court denied Marks’s second petition, and

Marks appealed.

            In a summary disposition order, the ICA determined that

“Marks [was] not entitled to collaterally attack his sentence on

the ground that a judge, and not a jury, made the findings

necessary for the extended term sentence.”         The ICA further held

that Marks’s remaining claims were without merit.           Accordingly,

the ICA affirmed the circuit court’s denial of his second

petition.    We rejected Marks’s application for writ of

certiorari.

            In 2014, Marks filed a motion for correction of illegal

sentence pursuant to HRPP Rule 35, arguing that his sentence was


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illegal in violation of Apprendi and Blakely.          The State, in its

response, conceded that Marks’s sentence was illegal.

          Subsequently, Marks filed a motion to withdraw no

contest plea pursuant to HRPP Rule 32(d), arguing that his change

of plea was “not voluntarily made with full understanding of the

consequences” because his counsel mislead Marks to believe that

the State would not seek an extended term sentence.

          The circuit court treated both motions as non-

conforming HRPP Rule 40 petitions.        The circuit court denied

Marks’s motion to withdraw his no contest plea and granted a

hearing on the motion for correction of illegal sentence.

          In denying Marks’s motion to withdraw no contest plea,

the circuit court determined:       (1) that Marks’s claims were

either waived or raised and ruled upon in prior HRPP Rule 40

petitions; (2) there were no extraordinary circumstances to

justify Marks’s failure to raise the claims previously; and (3)

the motion was without merit, patently frivolous, and without a

trace of support in the record.

          The circuit court ultimately denied Marks’s motion for

correction of illegal sentence, rejecting the State’s concession

and determining that “a defendant sentenced to an extended term

that became final after Apprendi but prior to Blakely or Booker

is not entitled to relief on collateral attack.”           The circuit

court also determined that Marks’s remaining claims were without


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merit.

            Marks appealed to the ICA challenging the circuit

court’s denial of both motions.       Marks argued that his no contest

plea was neither knowingly nor intelligently given.           Marks also

argued that his extended term sentence was illegal under

Apprendi.

            In response, the State again conceded that Marks’s

extended term sentence was illegal and also argued that Marks’s

remaining claims were previously raised and ruled upon or waived.

Marks replied that the State’s concession did not inhibit his

right to litigate on remand the defects in the charging, entry of

plea, and sentencing procedures.

             Marks applied for transfer to this court, which we

granted.

             First, we address Marks’s motion to withdraw no

contest plea under HRPP Rule 40.         HRPP Rule 40 provides that

“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.”

            In his second HRPP Rule 40 petition, Marks argued in

his supplemental petition that he agreed to change his plea after

the State “personally guaranteed” that it would not seek an

extended term of imprisonment.       The circuit court denied Marks’s

second HRPP Rule 40 petition, the ICA affirmed, and this court


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denied Marks’s application for writ of certiorari.            In Marks’s

motion to withdraw no contest plea, he makes essentially the same

argument that he made in his second petition, again alleging that

Marks agreed to change his plea after the State promised not to

seek an extended term sentence.4          Thus, we hold that Marks’s

motion to withdraw no contest plea was raised and ruled upon in a

prior HRPP Rule 40 petition.        Accordingly, we affirm the circuit

court’s denial of Marks’s motion to withdraw no contest plea.

            Second, we address Marks’s motion for correction of

illegal sentence.     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
            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, and brackets omitted).



      4
            The only difference between the two claims is that Marks now
specifies that it was his counsel that informed him of the State’s alleged
agreement.

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

Marks’s extended term sentence was necessary for the protection

of the public, which is contrary to our holding in Flubacher.

Therefore, we conclude that Marks’s extended term sentence was

imposed in an illegal manner, and vacate the circuit court’s

order denying the motion for correction of illegal sentence with

regards to the extended term sentence.

          For the foregoing reasons, we:         (1) vacate in part the

October 21, 2014 Order Denying Motion to Withdraw No Contest Plea

Pursuant to HRPP Rule 32(d) solely as to the extended term

sentence, (2) vacate in part the circuit court’s February 17,

2016 Order Denying Motion for Correction of Illegal Sentence

Pursuant to HRPP Rule 35(a) solely as to the extended term

sentence, (3) vacate in part the circuit court’s November 8, 2004

Judgment in Cr. No. 02-1-2410 solely as to the extended term

sentence, (4) vacate the circuit court’s November 16, 2004 Order

Granting Motion for Extended Term of Imprisonment as a Persistent

Offender, and (5) remand this case for further proceedings

consistent with this opinion.       We affirm the circuit court’s

October 21, 2014 Order Denying Motion to Withdraw No Contest Plea

Pursuant to HRPP Rule 32(d) and February 17, 2016 Order Denying




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Motion for Correction of Illegal Sentence Pursuant to HRPP Rule

35(a) with respect to all other claims.

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

David Glenn Bettencourt            /s/ Mark E. Recktenwald
for appellant
                                   /s/ Paula A. Nakayama
Sonja P. McCullen
for appellee                       /s/ Sabrina S. McKenna

                                   /s/ Richard W. Pollack

                                   /s/ Michael D. Wilson




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