 

N()'l` FOR P`[.'BI.¢.ICA"I`I()N  WES'I"S l“li/&WAI‘I }II£P(_’)R'I`S ANI) PACIFIC RE.P().R'I`ER

NO. 29438
IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAIdf

  

S'YATE oF HAWA:‘:, plaintiff-appellee v. 15 s
MITI MAUGAOTEGA, JR., Defendant-Appellant l“é »B

 

APPEAL FROM THE CIRCUlT COURT OF THE FlRST CIRCUIT
(CR. NOS. 03-l-l897, 03-l-2724, O3~l-2725,
O3~l-2726, & 03-l~2727)
SUMMARY DISPOSITION ORDER
(By: Nakamura, C.J., Foley and Leonard, JJ.)
Defendant-Appellant Miti Maugaotega, Jr., (Maugaotega)

appeals from the Amended Judgment of Conviction and Sentence
(Amended Judgment(s)) filed on September 26, 2008 in the Circuit
Court of the First Circuit1 (circuit court) in each of the
following five criminal cases: No. 03-1-l897,2 No. 03-1-2724,3

1 The Honorable Patrick W. Border issued the Amended JudgmentS.

2 ln Cr. No. 03-l-l897, the circuit court entered an Amended Judgment
after a jury found Maugaotega guilty of

Count l: Attempted Murder in the Second Degree, in violation of Hawaii
R€ViS€d StatuteS (HRS) §§ 705-500 (l993), 707-70l.5 (l993), and 706~656
(1993 t supp. 200a>;

Counts 2 & 5: Carrying, Using or Threatening to Use a Firearm in the
Commission of a Separate Felony, in violation of HRS § l34~6(a) & (e)
(Supp. 2005);

Count 3: Robbery in the First Degree, in violation of HRS § 708-
840(1)(b)(i) (l993 & Supp. 2005);

Count 4: Burglary in the First Degree, in violation of HRS § 708-
8lO(l)(C) (l993};

Count 6: Place to Keep Pistol or Revolver, in violation of HRS § 134-
6(c) & (e) {Supp. 2005}; y

Counts 7 & 8: Promoting a Dangerous Drug in the Third Degree, in
violation of HRS § 712-1243 (1993 & Supp. 2003); and

Count 9: Unlawful Use of Drug Paraphernalia, in violation of HRS § 329-
43.5(a) (l993).

For Count l, the Amended Judgment sets forth § 607-6, which is the wrong HRS
statute, instead of § 706-656, the correct statute; the circuit court is
hereby ordered to file a Second Amended Judgment setting forth, nunc pro tunc,
the correct HRS statute (§ 706-656) under which Maugaotega was convicted on
Count l.

3 In Cr. No. 03-1-2724, the circuit court entered an Amended Judgment
after Maugaotega pled no contest to Counts 1 & 2: Burglary in the First
Degree, in violation of HRS § 708-8lO(l)(c) (1993).

 

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No. 03~1~2’25,* Nc. 03-1-2726,” and No. 03-1-2727.“ in each case,
the circuit court issued a judgment of conviction, in which the
court sentenced Maugaotega to an extended term of imprisonment,
and, in each case, the Hawafi Supreme Court later vacated the
extended term sentence and remanded the case with instructions to
the circuit court to impose non-extended term sentencing in

accordance with Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct.

2348 {2000), and its progeny. State v. Maugaoteqa, 115 HawaFi
432, 446-47 & 45l, l68 P.3d 562, 576-77 & 581 (2007). On remand,
the circuit court re-sentenced Maugaotega in each case to
imprisonment without an extended term.

1n the Amended Judgments, the circuit court sentenced
Maugaotega to the following terms of imprisonment:

Cr. No. 03-1-1897:

Count 1 -- life with the possibility of parole, with a
mandatory minimum of twenty years.

4 In Cr. No. 03-1-2725, the circuit court entered an Amended Judgment
after Maugaotega pled no contest to

Counts 1 & 2: Robbery in the First Degree, in violation of HRS § 708-
840(1)(b)(ii) (1993 & Supp. 2005);

Count 3: Burglary in the First Degree, in violation of HRS § 708-
810(l)(c) (1993); and

Count 4c Carrying, Using or Threatening to Use a Firearm in the
Commission of a Separate Felony, in violation of HRS § 134-6(a) & (e)
(Supp. 2005).

5 In Cr. No. 03-1-2726, the circuit court entered an Amended Judgment
after Maugaotega pled no contest to

Counts 1 & 2: Sexual Assault in the First Degree, in violation of HRS
§ 707-730(1)(<31} (Supp. 2005),'

Count 3: Robbery in the First Degree, in violation of HRS § 708-
B40(1)(b}{ii) (1993 & Supp. 2005);

Count 4: Burglary in the First Degree, in violation of HRS § 708-
3i0(i><c> <1993>;

Count 5: Carrying, Using or Threatening to Use a Firearm in the
Commission of a Separate Felony, in violation of HRS § 134-6(a) & (e)
(Supp. 2005); and

Count 6: Assault in the Second Degree, in violation of HRS § 707-
711(1){d) (1993}.

b 1n Cr, No. 03-1-2727, the circuit court entered an Amended Judgment
after Maugaotega entered a no contest plea to Promoting Prison Contraband in
the First Degree, in violation of HRS § 710-1022(1)(b) (1993). The Amended
Judgment sets forth the wrong HRS statute (§ 134-6); the circuit court is
hereby ordered to file a Second Amended Judgment setting forth, nunc pro tunc,
the correct HRS statute (§ 710-1022(1)(b)) under which Maugaotega was
convicted.

 

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Counts 2 and 5 -- twenty years each count.

Count 3 -- twenty years, with a mandatory minimum of
fifteen years.

Count 4 -- ten years, with a mandatory minimum of ten

years.
Count 6 -- ten years.
Counts 7, 8, and 9 -- five years each count.

The circuit court ordered that the terms be served
concurrently with each other.

Cr. No. 03-1-2724:

Counts 1 and 2 -- ten years each.

The circuit court ordered that the terms be served
concurrently with each other and consecutively to the
terms imposed in Cr. No. 03-1-1897.

Cr. No. 03-1-2725W

Counts 1 and 2: a mandatory minimum of fifteen years
for each count.

Count 3: a mandatory minimum of ten years.

The circuit court ordered that the terms be served
concurrently with each other and consecutively to the
terms imposed in Cr. No. 03-1-2724.

Cr. No. 03-l-2726:

Counts 1, 2, and 5 -- twenty years for each count.

Count 3 -- twenty years, with a mandatory minimum of
fifteen years.

Count 4 -- ten years, with a mandatory minimum of ten
years.
Count 6 -- five years.

7 Although the circuit court sentenced Maugaotega to twenty years of

imprisonment for each of Counts 1, 2, and 4 and ten years for Count 3 (see

May 17, 2004 transcript at 51), the Amended Judgment fails to set forth the
length of incarceration for each count -- it sets forth only the mandatory

minimum term of imprisonment for Counts 1, 2, and 3.

3

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The circuit court ordered that the terms be served
concurrently with each other and consecutively to the
terms imposed in Cr. No. 03-1-2725.

Cr. No. 03-1-2727: ten years.

The circuit court ordered that the term be served

consecutively to the terms imposed in Cr. No. 03-1-

2726.

On appeal, Maugaotega contends the circuit court abused
its discretion in sentencing him to consecutive terms of
imprisonment because (1) he is not subject to consecutive terms,
absent a jury finding, {2) the sentence of consecutive terms and
the circuit court's imposition of a fifty-year, mandatory minimum
sentence of imprisonment constitutes a plain and manifest abuse
of discretion, and (3) the sentence of consecutive terms totaling
life plus sixty years and imposition of a fifty-year, mandatory
minimum sentence of imprisonment constitutes cruel and unusual
punishment. Maugaotega asks that we reverse or vacate the
circuit court’s consecutive sentences.

Upon careful review of the record and the briefs
submitted by the parties and having given due consideration to
the arguments advanced and the issues raised by the parties, as
well as the relevant statutory and case law, we resolve
Maugaotega's points of error as follows:

(1) The circuit court did not abuse its discretion in
sentencing Maugaotega to consecutive terms of imprisonment. §§§
State v. Kahapea, lll HaWafi 267, 278-80, 141 P.3d 440, 451-53
(2006) (dismissing the proposition that Apprendi or Blakely v.
Washington, 542 U.S. 296, 124 s. cT. 2531 (2004) proscribes
consecutive term sentencing); Oregon v. Ice, __ U.S. __, *_, 129
S. Ct. 711, 717 (2009) (confirming the constitutionality of the
practice of allowing sentencing courts to determine the facts
necessary to impose consecutive sentences).

(2) The circuit court’s sentence of consecutive
indeterminate terms of imprisonment does not constitute a plain
and manifest abuse of discretion. At the sentencing hearing, the
circuit court explicitly stated that it relied on the factors set

forth in HRS § 706-606 (1993) in sentencing Maugaotega and

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applied those factors to the facts in this case. Further, the
circuit court expressed its intention that Maugaotega’s period of
incarceration be "prolonged by virtue of the consecutive
character of the prison terms," State v.MQaylQrd, 78 HawaiH.127,
l54, 890 P.2d 1167, 1194 {1995), when the court stated that
“{s§eparation of [Maugaotega] from the general public for the
maximum possible amount of time is a necessary goal of
sentencing." (Emphasis added.) Last, many of the circuit
court's stated reasons at the sentencing hearing and in its
August 6, 2004 Findings of Fact, Conclusions of Law, and Order
Granting Motion for Consecutive Term Sentencing for imposing
consecutive sentences demonstrate that the sentences clearly
embodied "the forward-looking aim of future crime reduction or
prevention." Gaylord, 78 HawaiU.at 154, 890 P.2d at 1194, A
sentencing judge generally has broad discretion in imposing a
sentence. ;d; at 143-44, 890 P.2d at 1183-84.

(3) The circuit court's imposition of a fifty-year,
mandatory minimum sentence of imprisonment does not constitute a
plain and manifest abuse of discretion, The circuit court had
the discretion, pursuant to HRS § 706-660.1(3) (1993) to impose
the sentence.

(4) The circuit court's imposition of (a) a fifty-
year, mandatory minimum sentence and (b) consecutive
indeterminate terms of imprisonment totaling life plus sixty
years does not constitute cruel and unusual punishment. §§§
Kahapea, 111 Hawafi at 282, 141 P.3d at 455. As we have
discussed, the circuit court clearly considered the factors set
forth in HRS §§ 706-606 and 706-660.1(3) and Gaylord, 78 Hawafi
at 154, 890 P.2d at 1194, in sentencing Maugaotega. Further, as
the court noted at the sentencing hearing, Maugaotega had engaged
in a crime spree, during which he "committed numerous offenses
which literally r[an] the gamut of the criminal law ranging from
Attempted Homicide to crimes involving profit motive, threat to
property, and sexual gratification," and which included "22
felonies in a period of barely 40 days," resulting in a total of

six named victims of violent or potentially violent crimes. The

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m@mt@ncing judge haS br0@d discretion in imposing 3 Sentenc@.
lQ¢ ab l43~44, 396 P.2d §§ ll83~B4.

Th@r@f0r@,

IT IS HEREBY ORDERED that the Amended JudgmenC cf
C0nvicti0n filed on Sept€mb@r 26, 2308 in each of Cr. N0s. O3~l~
lB97, 93-1-2724, O3~l-2725, O3»l~2726, and 03-l~2727 in the
Circuit Ccurt cf the FirSt Circuit is affirmed.

DATED: HcnQ1ulu, HawaFi, January 26, 20lO.
On the bri@fS;

walter J. R0dby

for Defendant¢Appellant. dZ;%§'<%/ ;ZZgé;kWO%N&~/

Stephen K. TSuShima, Chief Judge
Deputy PrOSecuting Att0rney,

City and C0unty of H0n01ulu,

for Plaintiff~Appellee.

@&Mf>

ASS0ciate Judge

 
   
 

A

