State v. Chang

N()'l` FOR P’l.FBLICT.-A'I`I()N IVN WPIS'.|"S HAWAI‘! REI’()I¢‘.'I`S ANI) MPA(,`II*`IC RPYP()RTEII

NO. 289B7

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lN THE INTERMEDlATE COURT OF APPEALS §§
OF THE STATE ®F HAWAITI §§

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STATE OF HAWAl‘I, Plaintiff~Appellee, v.c §§
MICHAEL CHANG, Defendant~Appellant an

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APPEAL FROM THE CIRCUIT COURT OF THE CIRCUIT CIRCUIT
(CR. NO. G7~l~ll90}

SUMMARY DISPOSITION ORDER
(By: Nakamura, C.J., Foley and Leonard, JJ.)

(Chang) appeals from

Defendant-Appellant Michael Chang
the Amended Judgment of Conviction and Sentence filed on

January 3l, 2008 in the Circuit Court of the First Circuit

(circuit court).1

On November 8, 2007, a jury convicted Chang of Count I,
Promoting a Dangerous Drug in the Second Degree, in violation of
(HRs) § 712-i242(1)(b)(i> (supp. 2006);

and IV, Promoting a Dangerous Drug in the Third

(Supp. 2008); Count V,

in violation of HRS § 329-

Hawaii Revised Statutes

Counts II, III,
Degree, in violation of HRS § 7l2~l243
Unlawful Use of Drug Paraphernalia,
(l993); COunt VI,
in violation of HRS § 7l2~l246.5

in violation of HRS § 286-

Promoting a Dangerous Drug in the
(l993);

43.5(a)

Fourth Degree, and

Count VIl, Driving Without a License,

102 (Supp. 2004).

of imprisonment on Count I; five years of imprisonment for each

and V; and one year of imprisonment for

of Counts Il,
each of Counts VI and VIl.

III, IV,

The circuit court further sentenced

Chang, as a repeat offender, to a mandatory minimum term of

imprisonment of three years and four months on Count I and a
mandatory minimum term imprisonment of one year and eight months

on each of Counts II, III, and IV. The circuit court ordered

1 The Honorable Karl K. Sakamoto presided.

The circuit court sentenced Chang to ten years

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NO'I` F(`)'I{ Plvfl?»li,.IiC¢w'&'l`[()N lrN \Vl?.'S'I"S _I'l.»&\\’i'kl`lv I{|ZI’ORTS ANI) PAC`II+`IC R}:`,P()R'l`ER

that Count I was to run consecutively to Count ll and Counts III
through VII were to run concurrently with each other and with
Counts 1 and II.

On appeal, Chang contended (l) the circuit court erred
by not dismissing the charges pursuant to Rule 48 of the Hawafi
Rules of Fenal Procedure (HRPP) and (2) the imposition of
consecutive terms requires a jury finding under State v.
Maugaotega, 115 HawaiU.432, 168 P,3d 562 {2007), and Cunningham
v. cai_j._§_@;;ii__e_¢, 549 U.s. 270, 127 s. ct. 356 <2007>.

0n June 25, 2009, this court, by Summary Disposition
Order (SDO), affirmed the Amended Judgment of Conviction and
Sentence. On September 23, 2009, Chang filed an Application for
writ of Certiorari, which the Hawafi Supreme Court accepted on
November 2, 2009.

In its November 2, 2009 Summary Disposition Order, the
supreme court vacated this court‘s SDO and Judgment on Appeal,
remanded the case to this court with instructions to remand to
the circuit court for entry of appropriate findings of fact and
conclusions of law and a written order disposing of Chang's HRPP
Rule 48 motion, and order the parties to submit additional briefs
on the findings of fact and conclusions of law.

The circuit court having issued findings of fact and
conclusions of law; the parties having submitted additional
briefs pursuant to the November 2, 2009 supreme court Summary
Disposition Order; and this court having carefully considered 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 Chang's point of error as follows:

(l) On May l4, 2007, Chang’s counsel orally requested
that the charges against Chang be dismissed. In the written
order prepared by Chang‘s counsel, it states that Chang moved the
circuit court to dismiss the charges. Dismissal of charges with

or without prejudice is at the discretion of the circuit court.

N()'MI` F()R I’IJIS!.,ICT.»‘\"I`I()N I`N WIQS'I"S HAW¢XI‘I RICPOIM\‘.“I`S ANI) PAC],F]C RI§P()IZ"I`EI{

§ta§eWygM§ag§jQn, 51 Hawari 39, 54-55, 912 P.2d 7l, 36-37

Contrary to Chang's claim, HR?? Rule 48(b)(2) applies.
The circuit court dismissed without prejudice the charges against
Chang upon his motion. The State re~filed the same charges
against Chang on June 27, 2007. Chang’s trial commenced on

ctober 3l, 2007. Six months had not elapsed between the re~
filing of the charges and Chang's trial. Therefore, the circuit
court did not err by denying Chang‘s oral motion to dismiss
pursuant to HRPP Rule 48.

(2) Chang‘s claim that his consecutive sentences
without a jury finding of fact violated MaugaQ§§ga and Cunningham
is without merit. The Hawafi Supreme Court has held that the
imposition of consecutive sentences does not require a jury to
make findings of fact. State v. Kahapea, ill HawaFi 267, 279-
80, 141 P.3d 440, 452-53 (ZOO€).

Therefore,

The Amended Judgment of Conviction and Sentence filed
on January 3l, 2008 in the Circuit Court of the First Circuit is
affirmed.

DATED: »Honolulu, Hawafi, February 22, 20lO.
On the briefs:

Joseph R. Mottl

for Defendant-Appellant. gm 'h,f 76; é

Donn Fudo, Chief Judge
Deputy Prosecuting Attorney,
City and County of Honolulu,

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for Plaintiff-Appellee. <Lg;AQj2z?

Associate J駧g%§:j
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