FETALVERO v. State

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DALE MARK FETALVERO, Petitioner-Apellant,;H __
v. co
STATE OF HAWAfl, Respondent-Appellee
APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT
(S.P.P. NO. O8~l-OOl2(2) (Cr. NO. 88~OO58(2))
SUMMARY DISPOSITION ORDER
(By: Nakamura, C.J., Foley and Leonard, JJ.)
(Fetalvero)

Petitioner-Appellant Dale Mark Fetalvero
appeals from the Findings of Fact, Conclusions of Law, and
Judgment Denying Rule 40 Petition for Post-Conviction Relief
2009 in the Circuit Court of the Second

filed on January 20,

(circuit court).1

Circuit
the circuit court convicted Fetalvero

On July 7, l989,
in violation of Hawaii Revised Statutes (HRS)

in violation of HRS
and Murder, in

of Kidnapping,

§ 707~72O (l976); Rape in the First Degree,

§ 707»73O (l985) (§ 707~73O was repealed in l986);

violation of HRS § 707-701 (l976).
On July 23, l990, the HawaFi Supreme Court affirmed
l40l3.

Fetalvero's convictions in No.
Fetalvero filed a Petition for

l993,
pursuant to Rule 40 of the Hawaii Rules

The circuit court

On August l7,

Post~Conviction Relief,

(HRPP) (First Petition).

of Penal Procedure
1993. Fetalvero did

denied the First Petition on November l7,

not appeal the denial of the First Petition.

The Honorable Shackley F. Raffetto presided.

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NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REP()RTER

On July 2l, 2008, Fetalvero filed a Petition for Post-

Conviction Relief, pursuant to HRPP Rule 40 (Second Petition).

In the Second Petition, Fetalvero asserted that:

A.

Ground one: Petitioner was denied the fundamental
right to a jury trial In violation of Art.
l, § 2, 5, l0, 14 of the Haw. Const. And
U.S. const. 6 Amend.

Petitioner did not waived his right to a jury trial
and was therefore denied and subsequently userped his
fundamental right to a jury trial

Ground two: The sentence of petitioner is illegal as
there were only Multiple terms impose at
the same time which by statute HRS § 706-
668.5 runs concurrent.

The sentencing court sentenced the petitioner to 3
consecutive terms of life/w parole and 5 years each
mandatory terms of imprisonment. Under current and
prior laws consecutive and mandatory sentencing were
illegal.

Ground three: Petitioner's extended terms of
imprisonment is illegal on its face, as deemed by
Hawafi Supreme Court.

Unconstitutional challenge to prior sentencing statute
is deemed illegal and has no force and effect Ab
initio and void.

Ground four: The priciple charge of the crimes was
Kidnapping and murder cannot be a secondary or third
part of the serious offense.

The charges are erroneous because the fist [sic]
charge is Kidnapping and not murder there is no degree
of murder i.e lstO 2ndD murder What? its defective and
should be thrown out.

on January 20, 2009, the circuit court issued its

Findings of Fact, Conclusions of Law, and Judgment Denying Rule

40 Petition for Post-Conviction Relief, denying the Second

Petition without a hearing.

The circuit court concluded that

Ground One had been previously ruled upon; Grounds Two and Four

had no colorable basis, were patently frivolous, and were without

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N()T FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER

a trace of support in the record; and Ground Three had been
waived.

on appeal, Fetalvero's only point of error is that his
consecutive sentences were illegal pursuant to HRS §§ 706~668.5
(l993) and 706~606 (l993).2 Fetalvero vaguely alleges that the
indictment should have put him on notice that he could receive
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 conclude that
Fetalvero's appeal is without merit.

HRPP "Rule 40 proceedings shall not be available and
relief thereunder shall not be granted where the issues sought to
be raised have been previously ruled upon or were waived." HRPP
Rule 40(a)(3). Furthermore, imposition of consecutive sentences
upon Fetalvero did not violate his constitutional rights. §;at§

V. KahaQea, lll HaWaid,267, 278-80, l4l P.3d 440, 45l~53 (2006);

oregon v. lce, __ U.S. __, 129 S. Ct. 7ll, 716-19 (2009).
Therefore,

IT IS HEREBY ORDERED that the FindingS of FaCt,

Conclusions of Law, and order Denying Petition For Post-

")

“ Although Fetalvero states that the circuit court sentenced him
pursuant to HRS § 706-606.5 (Sentencing of Repeat offenders), the circuit
court actually sentenced him pursuant to HRS § 706-606. The circuit court did
not sentence Fetalvero as a repeat offender.

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NOT F()R PUBLICATI()N IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER

Conviction Relief filed on January 26, 2009 in the Circuit Court
of the Second Circuit is affirmed.

DATED: Honolulu, HawaiYi, March 22, 20l0.
on the briefs:

Dale Mark Fetalvero,

Petitioner-Appellant pro se. ‘¢;[

Renee Ishikawa Delizo, Chief Judge

Deputy Prosecuting Attorney,
Associate Jud%L?jé;l\j

County of Maui,

for Respondent-Appellee.
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