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                                                               Electronically Filed
                                                               Supreme Court
                                                               SCWC-XX-XXXXXXX
                                                               29-JUN-2018
                                                               07:41 AM



                              SCWC-XX-XXXXXXX

          IN THE SUPREME COURT OF THE STATE OF HAWAIʻI
________________________________________________________________

                             DAVID PREBLE,
                   Petitioner/Petitioner-Appellant,

                                     vs.

                        STATE OF HAWAIʻI,
                 Respondent/Respondent–Appellee.
 _______________________________________________________________

          CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
      (CAAP-XX-XXXXXXX; S.P.P. NO. 11-1-0054; CR NO. 99-2362)

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

            Petitioner David Preble (Preble) was convicted of

several counts each of first-degree sexual assault and third-

degree sexual assault in 2001 and sentenced to extended terms of

imprisonment.     On direct appeal, the ICA affirmed his

convictions in 2004, and this court denied his application for

writ of certiorari on January 13, 2005.          Preble filed a petition

pursuant to Hawaiʻi Rules of Penal Procedure (HRPP) Rule 40 in

2011.   The circuit court denied his petition without a hearing

on January 30, 2014.      Preble appealed the circuit court’s denial
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to the Intermediate Court of Appeals (ICA), which affirmed the

circuit court in a summary disposition order filed March 17,

2017.   Subsequently, in his amended Rule 40 petition Preble

argued his extended term sentences were “illegal sentences”

under Apprendi v. New Jersey, 530 U.S. 446 (2000).            We accepted

his application for writ of certiorari on July 5, 2017.             We hold

that under our recent decision in Flubacher, Preble is entitled

to relief under HRPP Rule 40.        Flubacher v. State, 142 Hawaiʻi

109, 414 P.3d 161 (2018); HRPP Rule 40(a).

                              I.   Background

            Preble was indicted on multiple charges of sexual

assault in the first degree and sexual assault in the third

degree on December 2, 1999.        His first two trials on the charges

resulted in mistrials.      In the third trial, which concluded June

7, 2001, a jury found Preble guilty of three counts of first-

degree sexual assault and eight counts of third-degree sexual

assault in violation of Hawaiʻi Revised Statutes (HRS) § 707-

730(1)(b)(1993) (a class A felony) and HRS § 707-732(1)(b)(1993)

(a class C felony).      On July 26, 2001, the state filed a motion

for extended terms of imprisonment.         On October 16, 2001, the

circuit court heard argument on the state’s motion for extended

terms of imprisonment and sentencing of repeat offender and

granted the motion.



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            The court sentenced Preble to extended terms of

imprisonment under HRS § 706-662(4)(a) (Supp. 1999), the

multiple offender statute.          The extended terms comprised (1) ten

years on each third-degree sexual assault count (extended from

five years), with mandatory minimum terms of three years and

four months, and (2) life with the possibility of parole on each

first-degree sexual assault count (extended from twenty years),

with mandatory minimum terms of six years and eight months.              HRS

§ 706-662(4)(a) required the sentencing court to find that 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.”           Id.   Among the

findings of fact the court made in support of imposing extended

terms on Preble were that “Defendant is unable to abide by rules

and instructions and has been terminated from drug programs” and

“Defendant has been provided with opportunities for

rehabilitation including the Victory Ohana program.            Defendant

was unable to benefit and follow the rules of such programs.”

                              II.    Discussion

            Under our recent decision in Flubacher, Preble is

entitled to relief under Rule 40.          Flubacher, 142 Hawaiʻi 109,

414 P.3d 161.     In Flubacher, we recognized the applicability of

the United States Supreme Court’s decision in Apprendi v. New

Jersey, 530 U.S. 466 (2000) to Hawaii’s system of extended term

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sentencing.    Apprendi held that, “Other 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.     The

Supreme Court held, as well, that “it 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.”      Id. at 490.

            Applying these rules to the facts in Flubacher, we

noted that “a judge, not a jury, made the required finding that

Flubacher’s extended term sentence was necessary to the public.”

142 Hawaiʻi at 118, 414 P.3d at 170.         As we concluded, “That

‘required finding expose[d] 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.”            Id. at 118-

19, 414 P.3d at 170-71 (quoting Apprendi, 530 U.S. at 494).              The

same is true of the judge-made findings supporting Preble’s

extended sentences.      For that reason, we conclude that Preble’s

extended term sentences were imposed in an illegal manner.

                              III. Conclusion

            Because we conclude Preble’s extended term sentences

were imposed in an illegal manner, we vacate section D of the

ICA’s summary disposition order, the portion of the ICA’s March

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31, 2017 Judgment on Appeal solely relating to extended

sentences, the circuit court’s January 30, 2014 “Order Denying

Post-Conviction Relief Without a Hearing” denying Preble’s HRPP

Rule 40 petition, the portions of the circuit court’s “Amended

Judgment Guilty Conviction and Sentence” filed on November 19,

2001, solely relating to extended sentences, and the portions of

the “Findings of Fact, Conclusions of Law and Order Granting

State’s Motion for Extended Term of Imprisonment” filed December

6, 2001, solely relating to extended sentences.            We affirm the

ICA’s summary disposition order, and the ICA’s March 31, 2017

Judgment on Appeal, as to all other matters.           We remand this

case to the circuit court for further proceedings consistent

with this summary disposition order.

            DATED: Honolulu, Hawaiʻi, June 29, 2018.



 David Preble                       /s/ Mark E. Recktenwald
 Petitioner-Appellant,
 pro se                             /s/ Paula A. Nakayama

 Brian R. Vincent                   /s/ Sabrina S. McKenna
 Deputy Prosecuting Attorney
 City and County of Honolulu        /s/ Richard W. Pollack
 for Respondent-Appellee
                                    /s/ Michael D. Wilson




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