Alston v. State

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
28-AUG-2024
08:12 AM
Dkt. 125 SO

CAAP-XX-XXXXXXX

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

CORNELIUS ALSTON, Plaintiff-Appellant, v.
STATE OF HAWAI#I, Defendant-Appellee, and
JOHN DOES 1-5, Defendants

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CIVIL NO. 1CC171000364)

SUMMARY DISPOSITION ORDER
(By: Leonard, Acting Chief Judge, Hiraoka and McCullen, JJ.)

Plaintiff-Appellant Cornelius Alston (Alston) appeals

from the May 19, 2020 Judgment entered by the Circuit Court of

the First Circuit (Circuit Court) in favor of Defendant-Appellee

State of Hawai#i (State).1 Alston also challenges the January

10, 2020 Order Granting [the State's] Motion for Summary Judgment

[(MSJ)], filed October 21, 2019. Alston filed this civil action

against the State alleging negligence in the calculation of

Alston's release date and seeking damages from the State stemming

from alleged overdetention.

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The Honorable Bert I. Ayabe presided.
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Alston raises eight points of error on appeal,

contending that the Circuit Court erred by: (1) granting the

State's MSJ based on Alston v. Read, 663 F.3d 1094 (9th Cir.

2011); (2) disregarding the State's failure to meet its burden of

production; (3) disregarding the State's arbitrary and capricious

change of sentencing practices without providing him procedural

safeguards to prevent overdetention; (4) disregarding that the

State violated Hawaii Revised Statutes (HRS) § 1-3 (2009) by

retroactively recalculating his release date; (5) disregarding
that the State violated Hawai<i Administrative Procedure Act

(HAPA), HRS § 91-1(4) (2012); (6) disregarding that the State's

failure to enforce HRS § 353-12 (2015) as a cause of his

overdetention; (7) disregarding that HRS § 706-670(5) (2014)

required him to be released on August 4, 2007; and (8)

disregarding his due process rights under article I, section 5 of

the Hawai#i State Constitution.

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, we

resolve Alston's points of error as follows:

It is undisputed that on June 14, 2007, Alston's

release date was recalculated pursuant to Department of Public

Safety (DPS) Policy No. COR.05.05, which brought DPS into

conformity with HRS § 706-668.5 (1993), which at that time

provided, in pertinent part:
§ 706-668.5 Multiple sentence of imprisonment . (1)
If multiple terms of imprisonment are imposed on a defendant

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at the same time, or if a term of imprisonment is imposed on
a defendant who is already subject to an unexpired term of
imprisonment, the terms may run concurrently or
consecutively. Multiple terms of imprisonment imposed at
the same time run concurrently unless the court orders or
the statute mandates that the terms run consecutively.
Multiple terms of imprisonment imposed at different times
run consecutively unless the court orders that the terms run
concurrently. [2]

Pursuant to the version of HRS § 706-668.5(1) in effect

in 2007 and applicable to Alston's 1997 sentence (which was

imposed on Alston while he was subject to a previously-imposed

unexpired term), and based on the November 20, 1997 Judgment

Guilty Conviction and Sentence (1997 Judgment) DPS received from

the Circuit Court for inclusion in the DPS institutional file, we

conclude that the Circuit Court did not err in concluding that

there was no genuine issue of material fact and the State is

entitled to judgment as a matter of law. The State had no duty

2
This statute was amended in 2008. See 2008 Haw. Sess. Laws Act
193, § 1 at 714. HRS § 706-668.5 (Supp. 2023) now provides, in pertinent
part:
§ 706-668.5 Multiple sentence of imprisonment . (1)
If multiple terms of imprisonment are imposed on a
defendant, whether at the same time or at different times,
or if a term of imprisonment is imposed on a defendant who
is already subject to an unexpired term of imprisonment, the
terms may run concurrently or consecutively. Multiple terms
of imprisonment run concurrently unless the court orders or
the statute mandates that the terms run consecutively.
. . . .

(3) For terms of imprisonment imposed prior to June
18, 2008, the department of corrections and rehabilitation
shall post written notice in all inmate housing units and
the facility library at each correctional facility for a
period of two months and send written notice to the
defendant no later than January 1, 2016, that shall include
but not be limited to:
(a) Notice that the department of corrections and
rehabilitation may recalculate the multiple
terms of imprisonment imposed on the defendant;
and

(b) Notice of the defendant's right to have the
court review the defendant's sentence.

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to seek out further court files or fail to act in accordance with

unambiguous law. See Alston, 663 F.3d at 1099-1100 (holding that

Alston's sentence was appropriately calculated under Hawai#i law

and that DPS employees were entitled to rely on the 1997 Judgment

received from the court, "and were not required to go in search

of additional courthouse records" for further documents).

Based on the 1997 Judgment and the applicable law,

Alston's release date was not miscalculated on June 14, 2007. A

written order entered on December 10, 1997, about 20 days after
the 1997 Judgment, i.e., Findings of Fact, Conclusions of Law and

Order Imposing Mandatory Minimum Term for Repeat Offender

Sentencing (Post-Judgment Sentencing Order), indicated that the

sentencing court intended for Alston to serve the five and ten

year sentences in the 1997 Judgment concurrent with his

previously-imposed sentence, as well as concurrent with each

other. However, as previously litigated in Alston's federal law

suit, DPS employees were entitled to rely on the 1997 Judgment,

and were not required to go in search of additional court records

for further documents.

On December 19, 2007, Alston filed a Motion to Correct

Judgment (Motion to Correct) citing, inter alia, the Post-

Judgment Sentencing Order. On December 27, 2007, the Circuit

Court entered an Amended Judgment of Conviction and Sentence;

(Amended Judgment), which expressly states that the 1997

sentences run concurrent with any other sentence being served,

nunc pro tunc from November 20, 1997. Alston was released the

same day as the entry of the Amended Judgment. See Alston v.

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Read, 678 F.Supp.2d 1061, 1072 (D. Haw. 2010), rev'd on other

grounds by Alston, 663 F.3d at 1094. Accordingly, Alston was not

overdetained, and therefore, his claim of negligence and any

other claims based on overdetention fail. See Simeona v.

Dydasco, CAAP-XX-XXXXXXX, 2015 WL 1400952, *3 (Haw. App. March

27, 2015) (SDO), cert. rejected, 2015 WL 4756462 (Haw. Aug. 10,

2015); Collier v. State, CAAP-XX-XXXXXXX, 2024 WL 863295, *2

(Haw. App. Feb. 29, 2024) (SDO).

For these reasons, the Circuit Court's May 19, 2020
Judgment is affirmed.

DATED: Honolulu, Hawai#i, August 28, 2024.

On the briefs: /s/ Katherine G. Leonard
Acting Chief Judge
Jack Schweigert,
John P. Gillmor, /s/ Keith K. Hiraoka
for Plaintiff-Appellant. Associate Judge

Caron M. Inagaki, /s/ Sonja M.P. McCullen
Kendall J. Moser, Associate Judge
William K. Awong,
Deputy Attorneys General,
for Defendant-Appellee.

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