Jardine v. State

LAW LIBRARY
NOT FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER
NO. 29907
IN THE INTERMEDIATE COURT OF APPEALS a S
OF THE STATE OF HAWAI'I \: > =
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ALVIN JARDINE, Petitioner-Appellant, - oo
STATE OF HAWAI'I, Respondent -Appellee Bayo =
4

APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT
(S.P.P. NO. 08-1-0018(1) (Cr. No. 91-0004 (1) )

SUMMARY DISPOSITION ORDER
(By: Nakamura, C.J., Foley and Leonard, JJ.)

Petitioner-Appellant Alvin Jardine (Jardine or
Petitioner) appeals from the Findings of Fact, Conclusions of Law
and Order Dismissing Petition for Writ of Habeas Corpus and Rule
40 Petition for Post-conviction Relief (Order) filed on June 2,
2009 in the Circuit Court of the Second Circuit’ (circuit
court) .?

On September 26, 2008, Jardine filed a petition
(Petition) for a writ of habeas corpus pursuant to Hawaii Revised
Statutes (HRS) § 660 and for post-conviction relief pursuant to
Hawai'i Rules of Penal Procedure (HRPP) Rule 40. Jardine claimed

that under Ringor v. State, 88 Hawai‘i 229, 965 P.2d 162 (App.

1998), his constitutional right to due process had been violated

because the Hawai‘i Paroling Authority (HPA) failed to hold a

+ The Honorable Joel E. August presided.

2 Jardine originally filed his petition in the Circuit Court of the
First Circuit; the First Circuit Court transferred the petition to the second
circuit.
NOT FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER

final revocation hearing in Cr. No. 87-0211. Jardine admitted
that "[{o]n October 10, 1995, Petitioner's sentence in [Cr.] No.
87-0211 expired upon serving of the maximum term." Jardine
claimed that the Department of Public Safety improperly changed
the sentence issued by the circuit court and requested that his
presentence credit be restored with application of State v.
Tauiliili, 96 Hawai'i 195, 29 P.3d 914 (2001). Jardine stated
that one of his parole requirements was participation in the Sex

Offender Treatment Program (SOTP) and he requested a transfer to

a facility where SOTP was available. Citing State v. Maugaotega,

115 Hawai'i 432, 168 P.3d 562 (2007), and Apprendi v. New Jersey,
530 U.S. 466, 120 S. Ct. 2348 (2000) and its progeny, Jardine
claimed that a jury failed to make necessary findings of fact in
order to increase his sentence.

On June 2, 2009, the circuit court issued its Order
denying Jardine's Petition. Jardine timely appealed.

On appeal, Jardine challenges the Petition's Findings
of Fact (FOFs) 7 and 8 and Conclusions of Law (COLs) 3, 5, 6, 7,

10, and 11. Jardine contends:

(1) his right to due process was violated when the HPA
failed to provide him with a final revocation hearing in Cr. No.
87-0211;

(2) if the HPA had not improperly revoked his parole
in Cr. No. 87-0211, his sentence in Cr. No. 97-0004 would have
begun much earlier than the expiration of his maximum sentence on

August 8, 1995 in Cr. No. 87-0211;

(3) the circuit court's application to his case of the

holding in Tauiliili is improper, but if Killion v. State, No.

29077 (App. Feb. 24, 2009) (mem.), cert. denied, 120 Hawaii 419,
209 P.3d 1233 (June 3, 2009), is upheld, his claim fails; and
NOT FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER

(4) because HPA imposed the SOTP requirement for his
parole, he has a liberty interest in receiving SOTP programming
within one year prior to the expiration of his minimum term.

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 conclude that for
the reasons set forth below, the challenged FOFs are not
erroneous and COLs are not wrong and Jardine's appeal is without
merit.

This court's opinion in Ringor was issued in 1998.
Ringor cannot be applied to Cr. No. 87-0211 because, as Jardine
admitted, his maximum sentence in Cr. No. 87-0211 expired on
October 10, 1995. This court cannot grant relief pursuant to
HRPP Rule 40 because Jardine's maximum sentence was complete by
the time Ringor was issued, making the issue of a final
revocation hearing in Cr. No. 87-0211 moot.

The HPA properly recalculated Jardine's presentence
detention credit pursuant to Tauiliili.

The HPA set Jardine's minimum sentence in Cr. No. 97-
0004 for Counts 1 to 8 at 12 years, Count 9 at 2 years, and Count
10 at 6 years. Because the circuit court ordered that the
sentences for Counts 1 to 8 run consecutively to Counts 9 and 10,
and Count 9 run consecutively to Count 10, Jardine's minimum
sentence is 20 years. After proper recalculation and application
of his presentence detention credit of 519 days for only one
sentence, Jardine's mandatory minimum sentence does not expire
until March 2, 2014. Jardine is not within one year prior to the
expiration of his minimum sentence.

Therefore,

IT IS HEREBY ORDERED that the Findings of Fact,

Conclusions of Law and Order Dismissing Petition for Writ of
NOT FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER

Habeas Corpus and Rule 40 Petition for Post-conviction Relief
filed on June 2, 2009 in the Circuit Court of the Second Circuit
is affirmed.

DATED: Honolulu, Hawai‘i, July 21, 2010.

On the briefs:

Alvin Jardine, . 4f.
Cas i, « Makcprrtria—

Chief Judge

Petitioner-Appellant pro se.

Diane K, Taira and

Darcy H. Kishida,

Deputy Attorneys General,
for Respondent-Appellee.