State v. Peralto

NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
24-JUN-2024
08:00 AM
Dkt. 46 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI‘I

STATE OF HAWAI‘I, Plaintiff-Appellee,
v.
MITCHELL PERALTO, Defendant-Appellant

APPEAL FROM THE CIRCUIT COURT OF THE FIFTH CIRCUIT
(CASE NO. 5PC970000155)

SUMMARY DISPOSITION ORDER
(By: Hiraoka, Presiding Judge, Nakasone and Guidry, JJ.)

Defendant-Appellant Mitchell Peralto (Peralto) appeals

from the Second Order of Resentencing entered by the Circuit

Court of the Fifth Circuit (circuit court) on September 26,

2023.1 The issue before this court is whether the circuit court

1 The Honorable Kathleen N.A. Watanabe presided.
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erred in ruling that Peralto's terms of imprisonment would run

consecutively.

Peralto was charged in 1997 with: (1) Kidnapping, in

violation of Hawaii Revised Statutes (HRS) § 707-720 (Count 1);

and (2) Murder in the Second Degree, in violation of HRS §§ 707-

701.5 and 706-656 (Count 2). In January 1998, a jury found

Peralto guilty as charged on both counts. In July 1998, Peralto

was sentenced to enhanced sentences on both counts: life

imprisonment with the possibility of parole for Count 1, and

life imprisonment without the possibility of parole for Count 2.

The circuit court ordered the sentences to be served

consecutively.

In March 2001, the Hawaiʻi Supreme Court vacated

Peralto's enhanced sentence for Count 2 (Murder). See State v.

Peralto, 95 Hawaiʻi 1, 18 P.3d 203 (2001) (abrogated on other

grounds by State v. Kato, 147 Hawaiʻi 478, 465 P.3d 925 (2020)).

Pursuant to this decision, Peralto was resentenced on June 29,

2004, as follows,

IT IS HEREBY ADJUDGED, ORDERED AND DECREED that [Peralto]
is sentenced as follows:

As to Count I: Kidnapping: [Peralto] is committed to the
custody of the Director of Public Safety for imprisonment for
LIFE WITH THE POSSIBILITY OF PAROLE.

As to Count II: Murder in the Second Degree: [Peralto] is
committed to the custody of the Director of Public Safety for
imprisonment for LIFE WITH THE POSSIBILITY OF PAROLE WITH A
MANDATORY MINIMUM TERM OF TEN YEARS.

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IT IS FURTHER ORDERED that the PERIODS OF CONFINEMENT AS TO
COUNT I AND COUNT II SHALL RUN CONSECUTIVELY.

(Emphasis in original).

On January 3, 2006, the Hawaii Paroling Authority

(HPA) set Peralto's minimum term of imprisonment for Count 1

(Kidnapping) at twenty-five years, to expire on July 4, 2022.2

The HPA fixed Peralto's minimum term of imprisonment for Count 2

(Murder) at forty years, with an expiration date to expire forty

years after his minimum term for Count 1 had expired. The HPA

thus notified Peralto that his Count 1 term would run first,

before his Count 2 consecutive term of imprisonment began.

In January 2023, Peralto petitioned, pursuant to

Hawaiʻi Rules of Penal Procedure Rule 40, for post-conviction

relief (Rule 40 petition). Peralto's Rule 40 petition alleged

ineffective assistance of counsel because Peralto's trial

counsel did not object to his charging via complaint, instead of

by a grand jury, as required pursuant to State v. Obrero,

151 Hawaiʻi 472, 517 P.3d 755 (2022). After hearing Peralto's

Rule 40 petition, the circuit court vacated Peralto's extended

2 Pursuant to HRS § 706-669(1) (2014),

[w]hen a person has been sentenced to an indeterminate or an
extended term of imprisonment, the Hawaii paroling authority
shall, as soon as practicable but no later than six months after
commitment to the custody of the director of the department of
[public safety] hold a hearing, and on the basis of the hearing
make an order fixing the minimum term of imprisonment to be
served before the prisoner shall become eligible for parole.

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sentence for Count 1, and denied all other relief. In September

2023, the circuit court resentenced Peralto, as to Count 1, as

follows,

[Peralto's] sentence as to Count 1: Kidnapping, pursuant to
the Judgment filed herein on July 10, 1998, is hereby
amended and the defendant is hereby resentenced as follows:

AS TO COUNT 1: KIDNAPPING:

A. You shall be committed to the custody of the
Director of the Department of Public Safety for
imprisonment for a period of twenty (20) years with
credit for time already served; mittimus to issue
forthwith. Term of incarceration shall be served
consecutively to Count 2: Murder in the Second Degree
pursuant to the Judgment filed on July 10, 1998, as
amended pursuant to the Order Re-Sentencing Defendant
Mitchell Peralto filed on June 29, 2004, and as amended
pursuant to the Amended Order Re-Sentencing Defendant
Mitchell Peralto filed on December 9, 2005.

(Emphasis in original).

Thus, when Peralto was resentenced in September 2023,

his 20-year maximum term for Kidnapping in Count 1 had expired,

and he was already serving his 40-year minimum term for Murder

in Count 2.

On appeal, Peralto raises two points of error,

contending that the circuit court: (1) "Erred in Sentencing

[Peralto] to Consecutive Terms [of imprisonment] Pursuant to the

Court's Interpretation of HRS § 706-668.5"; and (2) "Committed

Plain Error in Depriving [Peralto] of a Jury Determination on

Consecutive Sentencing." Upon careful review of the record and

relevant legal authorities, we resolve Peralto's points of error

as follows.

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(1) Peralto contends that the circuit court

misinterpreted HRS § 706-668.5, thereby sentencing him to an

illegal prison sentence, because "consecutive sentencing could

not be imposed to an expired term[.]" Peralto maintains that

the circuit court had previously vacated his life sentence for

Count 1, and, upon resentencing him to twenty years for Count 1

—— a period of time that had already expired, Peralto's sentence

for Count 2 could not then be imposed consecutively to the

already-expired sentence for Count 1.

"The applicable standard of review for sentencing or

resentencing matters is whether the court committed plain and

manifest abuse of discretion in its decision." State v.

Tauiliili, 96 Hawaiʻi 195, 198, 29 P.3d 914, 917 (2001) (cleaned

up). We conclude that the circuit court erred by ordering

consecutive sentences when Peralto had already served the

sentence imposed for Count 1, and his sentence for Count 2 was

the only unexpired prison sentence remaining.

HRS § 706-668.5 (Supp. 2022) provides, in pertinent

part,

(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.

(Emphasis added).

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The circuit court did two things at the September 2023

hearing: first, it resentenced Peralto to a prison term of

twenty years for Count 1, and second, it ordered that the newly

imposed twenty-year term would begin to run after the previously

imposed life term for Count 2 expired. The circuit court

explained,

. . . .

this Court is resentencing you, Mr. Peralto, as follows:

As to Count One, kidnapping, the Court is ordering
that you be committed to the custody of the director of
Department of Public Safety for imprisonment for a period
of 20 years. You'll be given credit for time served.
Mittimus to issue forthwith.

That sentence will run consecutive to the sentence
that you're currently serving on Count Two, Murder in the
Second Degree.

Peralto had already served nearly twenty-six years in

prison at the time he was resentenced to a twenty-year term for

Count 1 in September 2023. The State itself concedes that it

understands Peralto to have already served his twenty-year term

for Count 1.3

On this record, according to the HPA's 2006 minimum

term determination, Peralto's life sentence was the only

remaining "unexpired" prison term after he was resentenced to a

3 Although the HPA fixed Peralto's minimum term of imprisonment for
Count 1 at twenty-five years, the reduction of Peralto's Count 1 sentence,
from an enhanced life sentence with a twenty-five-year minimum, to an
ordinary term of twenty-years imprisonment, would necessarily result in a new
maximum term expiration date of no later than July 4, 2017. The State
represented in its answering brief that, "The State does not dispute that
[Peralto's] imprisonment term for Kidnapping, Count 1, expired in July of
2017."

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twenty-year prison term for Count 1. A sentence cannot run

consecutively with itself, and it cannot, pursuant to HRS § 706-

668.5, run consecutively with an already expired prison

sentence. The plain language of HRS § 706-668.5 provides that,

"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." Id. (emphasis added);

see State v. Abihai, 146 Hawaiʻi 398, 408, 463 P.3d 1055, 1065

(2020) ("[T]he fundamental starting point for statutory

interpretation is the language of the statute itself. . . .

[W]here the statutory language is plain and unambiguous, [the

court's] sole duty is to give effect to its plain and obvious

meaning."). HRS § 706-668.5 uses the word "term," not the word

"sentence." Peralto's maximum term for Count 1 had expired, and

he had already begun serving his term for Count 2 when he was

resentenced. The circuit court therefore abused its discretion

in ruling that Peralto's sentence of twenty-years imprisonment

for Count 1 would run consecutively with the only prison

sentence, for Count 2, that he was currently serving upon his

resentencing for Count 1 in September 2023.

We therefore vacate the circuit court's Second Order

of Resentencing in part, and remand for Peralto's twenty-year

sentence for Count 1, and life sentence with parole for Count 2,

to be imposed as concurrent sentences.

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(2) Peralto contends that the circuit court committed

plain error by "depriv[ing] [him] of his right to a jury in a

determination of a consecutive sentence, which is in effect an

extended term." In making this argument, Peralto acknowledges

that he was not sentenced to an "extended term," but, relying on

Flubacher v. State, 142 Hawaiʻi 109, 414 P.3d 161 (2018), he

argues that "the effect of a consecutive sentence is, for all

intents and purposes, an extended term, as it imposes a sentence

more than and extends beyond the 20-year maximum sentence for a

Class A felony offense of Kidnapping."

In Flubacher, the Hawaiʻi Supreme Court held that,

pursuant to Apprendi v. New Jersey, 530 U.S. 466 (2000),

Flubacher's sentence was illegal because "a judge, and not a

jury, made the required finding that Flubacher's extended term

sentence was necessary for the protection of the public." Id.

at 118, 414 P.3 at 170. Peralto's reliance on Flubacher is

misplaced.

In State v. Kahapea, 111 Hawaiʻi 267, 141 P.3d 440

(2006), the Hawaiʻi Supreme Court held that Apprendi is not

applicable to the imposition of consecutive terms of

imprisonment. See id. at 280, 141 P.3d at 453 (quoting People

v. Wagener, 752 N.E.2d 430, 441-42 (Ill. 2001), for the

proposition that: "[S]entences which run consecutively to each

other are not transmuted thereby into a single sentence.

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Because consecutive sentences remain discrete, a determination

that sentences are to be served consecutively cannot run afoul

of Apprendi, which only addresses sentences for individual

crimes."). Pursuant to Kahapea, Peralto's contention that he

was constitutionally entitled to a jury trial on the consecutive

term sentences lacks merit.

For the foregoing reasons, we vacate the circuit

court's Second Order of Resentencing, entered on September 26,

2023, in part, and remand for further proceedings consistent

with this summary disposition order.

DATED: Honolulu, Hawaiʻi, June 24, 2024.

On the briefs: /s/ Keith K. Hiraoka
Presiding Judge
Emmanuel G. Guerrero,
for Defendant-Appellant. /s/ Karen T. Nakasone
Associate Judge
Tracy Murakami,
Deputy Prosecuting Attorney, /s/ Kimberly T. Guidry
County of Kaua‘i, Associate Judge
for Plaintiff-Appellee.

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