Freitas v. State

LAwJBRAHY
N0T F0R PUBLICATIGN IN WEsT's HAWAI‘I REPORTS AND PACIFIC REPQRTER

NO. 29808
IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE<OF HAWAITI

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MELVIN FREITAS, JR., Petitioner-Appellant,
STATE OF HAWAfI, Respondent-Appellee

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APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(S.P.P. NO. 09-l~OOlO)

SUMMARY DISPOSITION ORDER
(By: Nakamura, Chief Judge, Foley and Leonard, JJ.)
;Petitioner~Appellant Melvin Freitas, Jr. (Freitas)

appeals the Findings of Fact, Conclusions of Law, and Order

Denying Petition for Post-Conviction Relief Without a Hearing,
filed on April l3, 2009 (Post-Conviction 0rder) in the Circuit

Court of the First Circuit (Circuit Court).W

On June 26, l997, Freitas was found guilty of three

counts of Kidnapping, one count of Robbery in the Second Degree,
one count of

one count of Assault in the Second Degree,
and one count of

Terroristic Threatening in the First Degree,
Freitas was sentenced to an

Assault in the Third Degree.
this court

extended term of imprisonment.

On October 23, l998,
found that the charge of Robbery in the Second Degree merged with

Assault in the Second Degree and vacated the conviction for
Assault in the Second Degree. On June l4, 2000, Freitas was

resentenced to the same terms of imprisonment, except for the

sentence for Assault in the Second Degree.
Freitas filed a petition for post-

On April ll, 2002,
02-l-OO28),

(First Petition) (S.P.P. No.

conviction relief

pursuant to the Hawaii Rules of Penal (HRPP) Rule 40

Procedure

which was denied-

/ The Honorable Richard K.'Perkins presided.

\»-'

NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER

On December 1, 2004, Freitas filed another petition for
post-conviction relief (Second Petition) (S.P.P. No. 04-1-0O96),
pursuant to HRPP Rule 40. One of the grounds for relief in the
Second Petition was that his extended term sentence violated
Apprendi v. New Jersey, 530 U.S. 466 (2000) and Blakely v.
Washington, 542 U.S. 296 (2004). On May l3, 2005, the Second
Petition was denied by the Circuit Court. On November 28, 2006,
this court affirmed the Circuit Court's denial of the Second
Petition in No. 27342.

On February 20, 2009, Freitas filed a third petition
for post-conviction relief (Third Petition), pursuant to HRPP
Rule 40. Freitas asserted his extended term of imprisonment was
illegal because State v. Maugaotega, 115 HawaiH_432, 168 P.3d
562 (2007) (Maugaotega II), invalidated Hawaii Revised Statutes
§ 706-662, and that Maugaotega ll applies retroactively to his

mextended term sentencing. On January 27, 2009, the Circuit Court

entered the Post-Conviction Order, which denied the Third
Petition. On appeal, Freitas asserts the same ground for relief
as in the Third Petition.

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 Freitas's points of error as follows:

Maugaotega ll does not apply retroactively to Freitas's
conviction and sentence, which became final in 2000. §§e Lgh§;
V. State, 118 Hawai‘i 522, 537-38, 193 P.3d 438, 453-54 (App.
2008). Freitas's sentence to an extended term of imprisonment
was not void ab initio. See State v. Jess, 117 HawaiH_381, 184
P.3d 133 (2008) and Loher, supra; State v. Cutsinger, 118 HawaFi
68, 81, 185 P.3d 816, 829 (App. 2008), overruled in part on other
grounds by State v. Jess, 117 Hawafi 381, 184 P.3d 133 (2008).

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

For these reasons, the Circuit Court's April-13, 2009

Post-Conviction Order is affirmed.

DATED= Hon<>lulu, Hawai‘i, May 21, 2010.

On the briefs: <2[ §

Melvin Freitas, Jr. Chief Judge
Petitioner-Appellant &§Z&mdLJV ___
Stephen K. Tsushima é2“

Deputy Prosecuting Attorney Associate Jud~e '

City and County of Honolulu
for Respondent-Appellee