Smith v. State

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NOT FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER

NO. 29869
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI'I

REGINA SMITH, Petitioner-Appellant, v.
STATE OF HAWAI'I, Respondent-Appellee

} Po

Ti Sr

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT eS
(S.P.P. NO. 09-1-0001; FC-CRIMINAL NO. 93-0001): = ompoy
SUMMARY DISPOSITION ORDER =i a ei
(By: Foley, Presiding Judge, Leonard and Reifurthys|JJ.) o

Petitioner-Appellant Regina Smith (Smith) appeals tke
Findings of Fact, Conclusions of Law, and Order Denying Petition
for Post-Conviction Relief, filed on April 29, 2009 (Order
Denying Post-Conviction Relief) in the Circuit Court of the First
Circuit (Circuit Court) .1/

On September 29, 1993, Smith was found guilty of five
counts of Sexual Assault in the First Degree and six counts of
Sexual Assault in the Third Degree. Smith was sentenced to an
extended term of imprisonment. On January 13, 1997, Smith's
convictions were affirmed by the Supreme Court of Hawai‘i.

On-April- 1, 1998, Smith-ftiled. a petition “for post
conviction relief (First Petition) (S.P.P. No. 98-0027) pursuant

to Hawai'i Rules of Penal Procedure (HRPP) Rule 40. The First

Petition was denied.
On July 3, 2002, Smith filed another petition for post-

conviction relief (Second Petition) (S.P.P. No. 02-1-0051)
pursuant to HRPP Rule 40. The Second Petition was also denied.
On February 3, 2004, the Supreme Court of Hawai'i affirmed the

denial of the Second Petition in Appeal No. 25724.

u/ The Honorable Michael D. Wilson presided.
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER

On November 12, 2008, Smith filed a "memorandum" in
support of petition for post-conviction relief, which was
designated as a non-conforming petition for post-conviction
relief, in S.P.P. 08-1-0047. On January 6, 2009, Smith fileda
Petition for Post-Conviction Relief (Third Petition), pursuant to
HRPP Rule 40 in S.P.P. 09-1-0001. On February 3, 2009, the
Circuit Court ordered that all documents in S.P.P. 08-1-0047 be
transferred to S.P.P. 09-1-0001 and that S.P.P. 08-1-0047 be
dismissed.

In the Third Petition, Smith stated that "petitioner is
not attempting to claim that Apprendi v. New Jersey, 530 U.S. 466

(2000), or any of its progeny, should be applied retroactively."
Smith claimed that her extended sentence, imposed pursuant to
Hawaii Revised Statute § 706-662 was unconstitutional on its
face, and therefore, void ab initio. On April 29, 2009, the
Circuit Court entered the Order Denying Post-Conviction Relief,
which denied Smith's 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 Smith's point of error as follows:

Smith's sentence to an extended term of imprisonment

was not void ab initio. See State v. Jess, 117 Hawai‘i 381, 184

P.3d 133 (2008); Loher v. State, 118 Hawai‘i 522, 193 P.3d 438

(App. 2008); and State v. Cutsinger, 118 Hawai'i 68, 81, 185 P.3d

816, 829 (App. 2008), overruled in part on other grounds by State
v. Jess, 117 Hawai'i 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 29, 2009
Order Denying Post-Conviction Relief is affirmed.

DATED: Honolulu, Hawai‘i, June 24, 2010.
On the briefs:

Regina Smith
Pro Se Petitioner-Appellant

Brian R. Vincent
Deputy Prosecuting Attorney
for Respondent-Appellee

Associate Judge