  NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER




                                                   Electronically Filed
                                                   Intermediate Court of Appeals
                                                   CAAP-XX-XXXXXXX
                                                   19-JUN-2020
                                                   10:21 AM




   NOS. CAAP-XX-XXXXXXX, CAAP-XX-XXXXXXX, AND CAAP-XX-XXXXXXX

                 IN THE INTERMEDIATE COURT OF APPEALS
                         OF THE STATE OF HAWAI#I


                 STATE OF HAWAI#I, Plaintiff-Appellee,
                                   v.
                  CODY B. AMARAL, Defendant-Appellant


         APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT
                    (CASE NOS. 2CPC-17-000270(2),
               2CPC-XX-XXXXXXX(2) AND 2PC171000023(2))


                       SUMMARY DISPOSITION ORDER
      (By:    Ginoza, Chief Judge, Leonard and Wadsworth, JJ.)

          On January 3, 2019, the Circuit Court of the Second
Circuit (Circuit Court)1 entered a "Judgment; Conviction and
Sentence" (Judgment) which imposed sentencing on Defendant-
Appellant Cody B. Amaral (Amaral) in five criminal cases
involving a total of eleven counts to which Amaral had pled
guilty. The sentence included, inter alia, that ten-year terms
imposed for Theft in the First Degree in Case No.
2PC171000023(2), Burglary in the First Degree in Case No.2CPC-17-
194(2), and Burglary in the First Degree in Case No. 2CPC-17-
270(2), were to run consecutive to each other for a total of
thirty years. On January 7, 2019, the Circuit Court entered an



     1
         The Honorable Peter T. Cahill presided.
  NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER


"Amended Judgment; Conviction and Sentence" (Amended Judgment) to
correct the amount of restitution that Amaral was ordered to pay
in one of the cases.2
           In a prior appeal, Amaral sought review of the Judgment
and Amended Judgment, asserting that the Circuit Court had abused
its discretion by imposing the three consecutive ten-year terms
of imprisonment. On January 23, 2020, we entered a Memorandum
Opinion affirming the Circuit Court's sentence. State v. Amaral,
No. CAAP-XX-XXXXXXX, consolidated with Nos. CAAP-XX-XXXXXXX,
CAAP-XX-XXXXXXX, CAAP-XX-XXXXXXX, CAAP-XX-XXXXXXX, 2020 WL 391935
(Hawai#i App. Jan. 23, 2020) (mem. op.).
           In the current consolidated appeal, Amaral appeals from
an "Order Denying Defendant's Motion to Correct Illegal Sentence"
and an "Order Denying Defendant's Motion For Reconsideration and
Reduction of Sentence," both entered by the Circuit Court on June
5, 2019, in Case Nos. 2PC171000023(2), 2CPC-17-194(2), and 2CPC-
17-270(2). Amaral appealed in each of the three underlying
cases, and these appeals were then consolidated by this court.3


      2
         As reflected in the Judgment and Amended Judgment, Amaral was
convicted of the following offenses in each of the respective criminal cases:

      In Case No. 2PC171000023(2):
      •     Count One: Theft in the First Degree;
      •     Count Four: Promoting a Dangerous Drug in the Third Degree;
      •     Count Six: Unauthorized Possession of Confidential Personal
            Information;
      •     Counts Seven and Eight: Theft of Credit Card
      •     Count Nine: Theft in the Second Degree

      In Case No. 2PC171000034(2):
      •     Count One: Unauthorized control of Propelled Vehicle
      In Case No. 2PC171000035(2):
      •     Count One: Burglary in the Second Degree

      In Case No. 2CPC-17-194(2):
      •     Count One: Burglary in the First Degree
      •     Count Two: Theft in the Second Degree
      In Case No. 2CPC-17-270(2):
      •     Count One: Burglary in the First Degree
      3
         On October 3, 2019, this court entered an "Order of Consolidation",
which consolidated case numbers CAAP-XX-XXXXXXX, CAAP-XX-XXXXXXX, and CAAP-19-
0000489 under CAAP-XX-XXXXXXX.

                                      2
  NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER


          In this appeal, Amaral's points of error assert that:
(1) the Circuit Court erred by not granting him relief from the
three consecutive ten-year terms imposed in his sentence, because
the consecutive sentences are illegal under Apprendi v. New
Jersey, 530 U.S. 466 (2000) and should be corrected under Hawai#i
Rules of Penal Procedure (HRPP) Rule 35(a); and (2) in the
alternative, there was a sufficient basis for the Circuit Court
to reconsider his sentence under HRPP Rule 35(b).
          Upon careful review of the record and briefs submitted
by the parties and having given due consideration to the
arguments and issues they raise, as well as the relevant legal
authority, we resolve Amaral's points of error as follows and we
affirm.
I. The Circuit Court's sentence did not violate Apprendi
          The Circuit Court's sentence included three consecutive
ten-year terms of imprisonment imposed for Amaral's convictions
of first degree theft in 2PC171000023(2), first degree burglary
in 2CPC-17-194(2), and first degree burglary in 2CPC-17-270(2),
which are all class B felonies to which Amaral pled guilty.
          Amaral's primary contention on appeal is that the
Circuit Court's sentence imposing the three consecutive ten-year
terms was illegal because it violated the United States Supreme
Court's holding in Apprendi. In Apprendi, the United States
Supreme 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." 530 U.S. at 490
(emphasis added). Amaral contends that the Circuit Court's
imposition of three consecutive ten-year terms violates Apprendi
because Plaintiff-Appellee State of Hawai#i (State) "used
consecutive sentencing to indirectly do what it could not do
directly through a motion for extended term of imprisonment, i.e.
forgoing the use of a jury to prove beyond a reasonable [doubt]
that [Amaral] was a danger to the public." Accordingly, Amaral
asserts that the State was required to prove to a jury beyond a

                                  3
  NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER


reasonable doubt that Amaral was a danger to the public, and the
failure to do so renders his sentence illegal.
           In Oregon v. Ice, 555 U.S. 160 (2009), the United
States Supreme Court held that the rule set out in Apprendi did
not apply to the determination of facts for the imposition of
consecutive sentences. Id. at 163-64, 167-68. The court
explained:
          This case concerns the scope of the Sixth Amendment's
          jury-trial guarantee, as construed in Apprendi v. New
          Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435
          (2000), and Blakely v. Washington, 542 U.S. 296, 124 S.Ct.
          2531, 159 L.Ed.2d 403 (2004). Those decisions are rooted in
          the historic jury function—determining whether the
          prosecution has proved each element of an offense beyond a
          reasonable doubt. They hold that it is within the jury's
          province to determine any fact (other than the existence of
          a prior conviction) that increases the maximum punishment
          authorized for a particular offense. Thus far, the Court has
          not extended the Apprendi and Blakely line of decisions
          beyond the offense-specific context that supplied the
          historic grounding for the decisions. The question here
          presented concerns a sentencing function in which the jury
          traditionally played no part: When a defendant has been
          tried and convicted of multiple offenses, each involving
          discrete sentencing prescriptions, does the Sixth Amendment
          mandate jury determination of any fact declared necessary to
          the imposition of consecutive, in lieu of concurrent,
          sentences?

          Most States continue the common-law tradition: They entrust
          to judges' unfettered discretion the decision whether
          sentences for discrete offenses shall be served
          consecutively or concurrently. In some States, sentences for
          multiple offenses are presumed to run consecutively, but
          sentencing judges may order concurrent sentences upon
          finding cause therefor. Other States, including Oregon,
          constrain judges' discretion by requiring them to find
          certain facts before imposing consecutive, rather than
          concurrent, sentences. It is undisputed that States may
          proceed on the first two tracks without transgressing the
          Sixth Amendment. The sole issue in dispute, then, is whether
          the Sixth Amendment, as construed in Apprendi and Blakely,
          precludes the mode of proceeding chosen by Oregon and
          several of its sister States. We hold, in light of
          historical practice and the authority of States over
          administration of their criminal justice systems, that the
          Sixth Amendment does not exclude Oregon's choice.

Id. at 163-64 (emphasis added).      The U.S. Supreme Court further
explained:
          The decision to impose sentences consecutively is not within
          the jury function that 'extends down centuries into the
          common law.' Apprendi, 530 U.S.[ ] at 477, 120 S.Ct. 2348.
          Instead, specification of the regime for administering
          multiple sentences has long been considered the prerogative
          of state legislatures.

Id. at 168.

                                    4
  NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER


          In State v. Kahapea, 111 Hawai#i 267, 279, 141 P.3d
440, 452 (2006), the Hawai#i Supreme Court likewise held that
Apprendi does not apply to the determination of whether to impose
consecutive sentences. As noted in Kahapea, Apprendi does not
apply to a sentencing judge's fact finding to impose consecutive
sentences under Hawaii Revised Statutes (HRS) § 706-668.5 (1993),
which entails consideration of the factors set forth in HRS
§ 706-606 (1993). See id. at 278-80, 141 P.3d at 451-53.
Although consecutive sentences may lengthen the term of
incarceration beyond the statutory maximum for an individual
sentence, none of the individual terms of imprisonment exceed the
applicable statutory maximum. In Kahapea, where the defendant
was convicted of five first-degree thefts and sentenced to ten
years for each, the Hawai#i Supreme Court explained that the
sentence of "five ten-year terms running consecutively is the
statutory maximum[,]" and did not deprive the defendant of his
rights under Apprendi. Id. at 280, 141 P.3d at 453 (emphasis in
orginal).
          Here, while Amaral's three consecutive ten-year
sentences resulted in a term of imprisonment beyond the ten-year
maximum for one count of Theft in the First Degree, or one count
of Burglary in the First Degree, none of the individual prison
terms exceeded the statutory maximum for the offense involved.
Thus, the Circuit Court did not impose an illegal sentence under
Apprendi by sentencing Amaral to three consecutive ten-year terms
of imprisonment.
          Amaral also appears to assert that the State acted
inappropriately in effectively circumventing the requirements of
Apprendi by requesting consecutive sentences in lieu of moving
for an extended term of imprisonment, which would have required
further findings by a jury. However, as pointed out by the
State, both parties agreed in the terms of a plea agreement that
the State would not move for extended sentencing, and the State
would not ask for more than thirty years in consecutive
sentences. We cannot say that the State acted inappropriately by

                                  5
  NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER


requesting consecutive sentences because it acted pursuant to the
terms of the plea agreement agreed to by both parties.
          Amaral also contends the State engaged in subterfuge by
circumventing extended term sentencing by pursuing consecutive
term sentencing. Again, given Amaral's plea agreement, the
record does not support this contention. Moreover, in making
this argument Amaral relies on a discussion in the concurring
opinion in Kahapea. 111 Hawai#i at 285, 141 P.3d at 458.
However, the prevailing law under Ice and Kahapea is that the
rule in Apprendi does not apply to a trial court's determination
of consecutive sentencing.
          Based on the foregoing, we conclude that the Circuit
Court did not err in its "Order Denying Defendant's Motion to
Correct Illegal Sentence."
II. Amaral's motion for reconsideration under HRPP Rule 35(b)

          Amaral also asserts in his points of error that there
was a sufficient basis under HRPP Rule 35(b)4 to grant his motion
for reconsideration. However, Amaral offers no argument
supporting his contention, and instead only states that "based on
the record at the motion for reconsideration, the trial court
abused its discretion in not granting reconsideration of
sentence." Accordingly, we deem this point waived. See Hawai#i
Rules of Appellate Procedure (HRAP) Rule 28(b)(7) ("Points not
argued may be deemed waived").




     4
         HRPP Rule 35(b) (2003) provides:
     (b) Reduction of Sentence. The court may reduce a sentence
     within 90 days after the sentence is imposed, or within 90
     days after receipt by the court of a mandate issued upon
     affirmance of the judgment or dismissal of the appeal, or
     within 90 days after entry of any order or judgment of the
     Supreme Court of the United States denying review of, or
     having the effect of upholding the judgment of conviction. A
     motion to reduce a sentence that is made within the time
     prior shall empower the court to act on such motion even
     though the time period has expired. The filing of a notice
     of appeal shall not deprive the court of jurisdiction to
     entertain a timely motion to reduce a sentence.

                                      6
  NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER


III.   Conclusion
          Based on the foregoing, the "Order Denying Defendant's
Motion to Correct Illegal Sentence" and the "Order Denying
Defendant's Motion For Reconsideration and Reduction of
Sentence," both entered on June 5, 2019, by the Circuit Court of
the Second Circuit, are affirmed.
          DATED: Honolulu, Hawai#i, June 19, 2020.


On the briefs:                        /s/ Lisa M. Ginoza
                                      Chief Judge
Shawn A. Luiz,
for Defendant-Appellant.              /s/ Katherine G. Leonard
                                      Associate Judge
Richard B. Rost,
Deputy Prosecuting Attorney,          /s/ Clyde J. Wadsworth
for Plaintiff-Appellee.               Associate Judge




                                  7
