CourtListener 10860157

Testo completo

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Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
15-MAY-2026
08:20 AM
Dkt. 59 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAIʻI

KYLE J. LIVINGSTON, Petitioner-Appellant,
v.
STATE OF HAWAIʻI, Respondent-Appellee.

APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT
(CASE NO. 2PR171000006 (2PC980000181))

SUMMARY DISPOSITION ORDER
(By: Wadsworth, Presiding Judge, McCullen and Guidry, JJ.)

Petitioner-Appellant Kyle J. Livingston appeals from

the November 25, 2024 "Findings of Fact, Conclusions of Law and

Order" (Denial Order), dismissing without a hearing his amended

petition for post-conviction relief under Rule 40 of the Hawaiʻi

Rules of Penal Procedure (HRPP), entered by the Circuit Court of

the Second Circuit (Rule 40 Court). 1 (Formatting altered.)

On appeal, Livingston contends the Rule 40 Court erred

by dismissing his claims regarding (1) extended term sentencing,

1 The Honorable Kirstin M. Hamman entered the Denial Order.
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(2) mandatory minimum or repeat offender sentencing, and

(3) consecutive term sentencing.

Upon careful review of the record and the briefs

submitted by the parties, and having given due consideration to

the issues raised and the arguments advanced, we resolve this

appeal as discussed below and affirm.

Twenty-eight years ago, in November 1998, the circuit

court (Sentencing Court) held a hearing on Respondent-Appellee

the State of Hawaiʻi's motions for extended term sentencing, a

mandatory minimum, and consecutive sentencing. 2 At the start of

the hearing, the State explained that it included as exhibits

"originals of certified copies of the felony complaint filed on

November 30, 1992 in case Number 970550, certified copy of

registration, change of address, certified copy of his abstract

judgment and certified copy of his guilty plea in the Superior

Court" of California.

Livingston objected based on hearsay and

identification and requested an evidentiary hearing. An

evidentiary hearing followed.

The State offered the testimony of Jess Lopez,

Livingston's parole agent from the State of California

Department of Corrections. Livingston did not object to Lopez

2 The Honorable Artemio C. Baxa presided over the Sentencing Court.

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testifying or to any part of Lopez's testimony, and elected not

to cross-examine Lopez.

The State also offered into evidence the records from

Livingston's California case as Exhibits S-1, S-2, S-3, and S-4.

Livingston objected for "lack of foundation" but made no

specific objection as to a problem with foundation.

The Sentencing Court granted the State's motions and

sentenced Livingston to a one-year term of imprisonment in

Counts One, Two, and Three, and an extended term of imprisonment

in Counts Five and Six, with all terms to run consecutively for

a total of forty-three years. 3 The Sentencing Court also ordered

a mandatory minimum of three years and four months without the

possibility of parole in Counts Five and Six.

Livingston appealed but did not challenge the

admission of Exhibits S-1 through S-4 or Lopez's testimony. The

Hawaiʻi Supreme Court affirmed. State v. Livingston, 92 Hawaiʻi

634, 994 P.2d 566, No. 22220, 1999 WL 1314872 (Haw. Dec. 8,

1999) (SDO).

In 2005, Livingston filed his first Rule 40 petition,

which was denied. Livingston did not appeal.

3 Livingston was convicted by jury of two counts of Assault in the
Third Degree in violation of Hawaiʻi Revised Statutes (HRS) § 707-712(1)(a)
(1993) (Counts One and Three), one count of Unlawful Imprisonment in the
Second Degree in violation of HRS § 707-722(1) (1993) (Count Two), and two
counts of Sexual Assault in the Second Degree in violation of HRS § 707-
731(1)(a) (Supp. 1997) (Counts Five and Six).

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In 2017, Livingston filed a second Rule 40 petition,

which was denied. Livingston appealed. This court partially

vacated the dismissal of Livingston's Rule 40 petition without a

hearing and remanded the case to allow Livingston to assert

before the Rule 40 Court illegal sentencing arguments that he

raised for the first time on appeal. Livingston v. State

(Livingston II), 152 Hawaiʻi 163, 523 P.3d 1077, No. CAAP-18-

0000566, 2023 WL 1097727 (App. Jan. 30, 2023) (mem. op.).

On remand, Livingston (represented by counsel) filed

his Amended HRPP Rule 40 Petition.

First, Livingston challenged the imposition of an

extended term of imprisonment on evidentiary grounds.

Livingston further argued that Apprendi v. New Jersey, 530 U.S.

466, 476 (2000), should be applied retroactively, and even if

Apprendi was not applied retroactively, Livingston argued the

imposition of an extended term without express findings that the

necessity of the extended term was proven beyond a reasonable

doubt violated then-controlling law under State v. Huelsman, 60

Haw. 71, 588 P.2d 394 (1978) and State v. Okumura, 78 Hawaiʻi

383, 894 P.2d 80 (1995).

Second, Livingston challenged the imposition of

mandatory minimum sentencing as a repeat offender, arguing his

sentence violated the requirement in State v. Caldeira, 61 Haw.

285, 290, 602 P.2d 930, 933 (1979), that "unless conceded by the

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defendant, the government is required to show, in [repeat

offender] proceedings [under Hawaiʻi Revised Statutes (HRS)

§ 706-606.5 (1976)], that he was represented by counsel, or had

waived such representation, at the time of his prior

conviction." Livingston asserted that there was insufficient

evidence in the record on appeal that he was in fact represented

due to the unavailability of the original certified copy of the

plea, Exhibit S-4.

Third, Livingston challenged the imposition of

consecutive terms, arguing the Sentencing Court's sentencing

decisions were based on "unsubstantiated claims" by the State

and Lopez and, thus, the Sentencing Court "plainly erred."

The Rule 40 Court dismissed Livingston's Amended HRPP

Rule 40 Petition without a hearing, concluding the claims were

patently frivolous and without a trace of support in the record

and the allegations otherwise did not present a colorable claim.

Livingston timely appealed.

The denial of an HRPP Rule 40 petition is reviewed de

novo. E.g., Rapozo v. State, 150 Hawaiʻi 66, 77, 497 P.3d 81, 92

(2021).

If a petition alleges facts that if proven would entitle
the petitioner to relief, the court shall grant a hearing
which may extend only to the issues raised in the petition
or answer. However, the court may deny a hearing if the
petitioner's claim is patently frivolous and is without
trace of support either in the record or from other
evidence submitted by the petitioner.

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HRPP Rule 40(f). "The question on appeal of a denial of a

Rule 40 petition without a hearing is whether the trial record

indicates that Petitioner's application for relief made such a

showing of a colorable claim as to require a hearing before the

lower court." Dan v. State, 76 Hawaiʻi 423, 427, 879 P.2d 528,

532 (1994) (emphasis omitted) (quoting State v. Allen, 7 Haw.

App. 89, 92-93, 744 P.2d 789, 793 (App. 1987)).

(1) Extended Term Sentence. On appeal, Livingston

first contends the Rule 40 Court "erred in dismissing [his]

claims regarding extended terms sentencing." (Formatting

altered.) To support this contention, Livingston challenges the

admission of evidence, notably the State's Exhibit S-3 and the

testimony of the State's witness, Lopez, for lack of foundation. 4

Under the multiple offender subsection of HRS § 706-

662 (Supp. 1996) for extended terms of imprisonment, 5 the

Sentencing Court was required to make a finding that an extended

4 We note that Livingston also asserts Apprendi should be retroactively
applied to his case. Apprendi requires that "[o]ther than the fact of a
prior conviction, any fact that increases the penalty for a crime beyond the
prescribed statutory maximum must be submitted to a jury, and proved beyond a
reasonable doubt." Apprendi, 530 U.S. at 490. This court in Livingston II
determined that the Apprendi issue was previously raised and rejected.
Livingston II, 2023 WL 1097727, at *7 n.15. Thus, we do not address this
issue. See HRPP Rule 40(a)(3) ("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.").

5 Livingston also challenges the Sentencing Court's determination that
he was a persistent offender under HRS § 706-662(1). Based on our decision
below, and because the multiple offender and persistent offender subsections
are alternate means of imposing an extended term of imprisonment, we need not
address Livingston's arguments regarding the Sentencing Court's persistent
offender determination.

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sentence was "necessary for protection of the public" where the

defendant was "being sentenced for two or more felonies":

A convicted defendant may be subject to an extended
term of imprisonment under section 706-661, if the
convicted defendant satisfies one or more of the following
criteria:

. . . .

(4) The defendant is a multiple offender whose
criminal actions were so extensive that a
sentence of imprisonment for an extended term
is necessary for protection of the public. The
court shall not make this finding unless:

(a) The defendant is being sentenced for two
or more felonies or is already under
sentence of imprisonment for felony[.]

Here, the record is uncontroverted that Livingston was

convicted of, and sentenced for, two counts of Sexual Assault in

the Second Degree, a class B felony. HRS § 707-731(2)

(Supp. 1997). In addition, referring to the California case,

the Sentencing Court found there was a need to protect the

public.

To the extent Livingston challenges the admission of

the State's Exhibit S-3, it is well-settled law that "a 'lack of

foundation' objection generally is insufficient to preserve

foundational issues for appeal because such an objection does

not advise the trial court of the problems with the foundation"

and that "a specific objection is required to inform the court

of the error unless, 'based on the context, it is evident what

the general objection was meant to convey.'" State v. Spies,

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157 Hawaiʻi 75, 91, 575 P.3d 708, 724 (2025) (quoting State v.

Long, 98 Hawaiʻi 348, 353, 48 P.3d 595, 600 (2002)).

The State offered into evidence the records from

Livingston's California case, Exhibits S-1, S-2, S-3, and S-4.

Livingston objected for "lack of foundation" but made no

specific objection as to a problem with foundation. And

Livingston did not object to Lopez testifying, or to any part of

Lopez's testimony, and elected not to cross-examine Lopez. On

direct appeal, Livingston did not challenge the admission of

Exhibits S-1 through S-4 or Lopez's testimony. Thus, any

challenge to the admission of Exhibits S-1 through S-4 and

Lopez's testimony is waived. See HRPP Rule 40(a)(3) ("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.").

Livingston also argues that the Sentencing Court

failed to state that the "motions were proven to the court

'beyond a reasonable doubt.'" Prior to the evidentiary hearing,

Livingston argued that the State bore the burden to prove prior

convictions beyond a reasonable doubt. Following the

evidentiary hearing, the Sentencing Court stated there was "no

question" as to Livingston's two felonies. The Sentencing Court

also explained its reasons for determining that extended term

sentencing was "necessary for protection of the public."

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Although it is true the Sentencing Court did not use the words

"beyond a reasonable doubt," when considering the Sentencing

Court's other statements, Livingston's petition does not show

this fact "would change" his extended term sentencing. See Dan,

76 Hawaiʻi at 427, 879 P.2d at 532 (quoting Allen, 7 Haw. App. at

92, 744 P.2d at 792) ("To establish a colorable claim, the

allegations of the petition must show that if taken as true the

facts alleged would change the verdict, however, a petitioner's

conclusions need not be regarded as true.").

Because the record shows Livingston was convicted of

two felonies, the Sentencing Court found an extended term

necessary for the protection of the public, and Livingston

waived any objection to the admission of evidence, the Rule 40

Court did not err in dismissing Livingston's extended sentencing

claim without a hearing.

(2) Mandatory Minimum Sentence. Livingston next

argues that the Rule 40 Court "erred in dismissing [his] claims

regarding mandatory minimum or repeat offender sentencing."

(Formatting altered.) Livingston explains that the Sentencing

Court referred to the State's Exhibit S-4 in determining that he

was represented by counsel, Eric St. John, when entering pleas

for his California convictions. Livingston then argues that

Exhibit S-4 "is no longer available to examine and to assess

what the trial court based its impression upon."

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HRS § 706-606.5 (1993 & Supp. 1997) provides for "a

mandatory minimum period of imprisonment without possibility of

parole" under certain circumstances. However, "unless conceded

by [defendants], the government is required to show, in

[mandatory minimum] proceedings, that [the defendants were]

represented by counsel, or had waived such representation, at

the time of [their] prior conviction." Caldeira, 61 Haw. at

290, 602 P.2d at 933.

During the evidentiary hearing, the Sentencing Court

referred to Exhibit S-4 and noted, "Under this no contest plea

it appears that [Livingston] entered pleas for the offenses

indicated therein on November 30, 1992, and that he was

represented by counsel. The counsel's name is Eric St. John."

The Sentencing Court also referred to Exhibit S-3 and stated,

"The Court would like to put on the record that in here it is

stated, also, that on the date of November 30, 1992 when

[Livingston] was sentenced, he was represented by counsel, Eric

St. John." Livingston did not object to these statements.

In any event, the record on appeal contains a copy of

the California plea. Examination of the California plea shows

that, at the time of his prior conviction, Livingston was

represented by counsel and Livingston points to nothing to

controvert this fact.

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Thus, the Rule 40 Court did not err in dismissing

Livingston's mandatory minimum sentencing claim without a

hearing.

(3) Consecutive Sentence. Finally, Livingston

contends the Rule 40 Court "erred in dismissing [his] claims

regarding consecutive terms sentencing." (Formatting altered.)

Livingston asserts "[t]he State got from the trial court what it

could not get from the jury, i.e., sentencing consistent with A

felonies." Livingston argues that the Sentencing Court "based

its sentencing decisions on unsubstantiated claims made by the

[deputy prosecuting attorney] and, also, the parole agent

witness (Mr. Jess Lopez)."

As discussed above, Livingston did not object to any

portion of Lopez's testimony and, thus, any challenge to the

admission of Lopez's testimony is waived.

We note, in State v. Hussein, 122 Hawaiʻi 495, 510, 229

P.3d 313, 328 (2010), the Hawaiʻi Supreme Court adopted the rule

that, "after the filing date of the judgment herein, circuit

courts must state on the record at the time of sentencing the

reasons for imposing a consecutive sentence." (Emphasis added.)

There, the court expressly rejected retroactive application of

its newly adopted rule. See id. at 518 n.31, 229 P.3d at 336

n.31. Because Livingston was sentenced prior to the decision

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handed down in Hussein, its rule has no application here. See

id.

Instead, prior to Hussein, controlling caselaw did not

require specific findings to support the imposition of

consecutive sentencing. State v. Lau, 73 Haw. 259, 263, 831

P.2d 523, 525 (1992) ("Although there is no requirement for the

sentencing court to state its reasons for imposing sentence, we

have urged and strongly recommended that the sentencing court do

so and to also state that sentencing alternatives were

considered, especially when a young adult defendant is

sentenced."); State v. Sinagoga, 81 Hawaiʻi 421, 428-29, 918 P.2d

228, 235-36 (App. 1996).

Courts previously held that "[d]iscretionary use of

consecutive sentences [was] properly imposed in order to deter

future criminal behavior of the defendant, to insure public

safety, and to assure just punishment for the crimes committed."

State v. Tauiliili, 96 Hawaiʻi 195, 199, 29 P.3d 914, 918 (2001)

(citing State v. Gaylord, 78 Hawaiʻi 127, 146-47, 890 P.2d 1167,

1186-87 (1995)). "Absent clear evidence to the contrary, it is

presumed that a sentencing court will have considered all

factors before imposing concurrent or consecutive terms of

imprisonment under HRS § 706-606 (1993)." Id. (citing Sinagoga,

81 Hawaiʻi at 428, 918 P.2d at 236).

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The Sentencing Court stated it "considered all the

reasons of 706-606" as well as "considered and given credence

to" Exhibits S-1 through S-4, including the plea and abstract of

judgment, which the trial court admitted into evidence. The

Sentencing Court then explained its reasons for imposing its

sentence, including the consecutive sentence:

The Court in imposing the sentence feels that it is
necessary to achieve penal and justice in this case, the
penal objectives of retribution and deterrence for the
protection of the public, that the Court in this case
imposes or grants the request of the prosecutor for
imposition of mandatory minimum term of imprisonment and
grants the motion for extended term, as well as consecutive
sentencing.

With the previous record that has been presented to
the Court within the -- committed in California, convicted
and sentenced on November 30, 1992, wherein of assault with
intent to rape, assault with deadly weapon, burglary in the
first degree, forcible rape and forcible rape, when taken
into account with the nature of the offense that was
committed in this case which conviction of [sexual] assault
in the second degree, two counts within a period of less
than ten years, there is an indication there is a need that
the public be protected. There's a need for punishment,
retribution and deterrence.

It is clear that the Defendant needs to be
incarcerated for sometime. To really think that doing the
things for which he has been convicted has endangered the
community and, perhaps, for his future general well-being
as well, he's got to be able to sit down and realize what
he had committed is a serious offense against the public.

One of the factors that I have considered is he is
still young. If he is allowed within a short time to be
roaming around, there is no question that what had happened
with other women would be endangered. It is needed that he
be incarcerated for sometime.

The reasons given by the Sentencing Court in imposing

its sentence, including consecutive sentences, were supported by

Exhibits S-1 through S-4 and Lopez's testimony. Nothing in the

record suggests that the imposition of consecutive sentences was

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based on consideration of "unsubstantiated claims," and

Livingston points to nothing to controvert this undisputed

record. Thus, the Rule 40 Court did not err in dismissing

Livingston's consecutive sentence claim without a hearing.

Based on the foregoing, we affirm the November 25,

2024 Denial Order.

DATED: Honolulu, Hawaiʻi, May 15, 2026.

On the briefs: /s/ Clyde J. Wadsworth
Presiding Judge
Te-Hina Ickes,
for Petitioner-Appellant. /s/ Sonja M.P. McCullen
Associate Judge
Renee Ishikawa Delizo,
Deputy Prosecuting Attorney, /s/ Kimberly T. Guidry
County of Maui, Associate Judge
for Respondent-Appellee.