Garcia v. State

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
11-JUL-2024
07:50 AM
Dkt. 58 SO

CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I

GREGORY K. GARCIA, Petitioner-Appellant, v.
STATE OF HAWAI#I, Respondent-Appellee

APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT
(CASE NO. 2PR191000012(4) [2FC121000327 and 2PC121000541])

SUMMARY DISPOSITION ORDER
(By: Leonard, Acting Chief Judge, Hiraoka and Nakasone, JJ.)

Self-represented Petitioner-Appellant Gregory K. Garcia

(Garcia) appeals from the April 16, 2020 Findings of Fact,

Conclusions of Law, and Order Denying Petition to Vacate, Set

Aside, or Correct Illegal Sentence (Order Denying Second HRPP

Rule 40 Petition) entered by the Circuit Court of the Second

Circuit (Circuit Court).1

In 2013, pursuant to a plea agreement, Garcia pled no

contest in FC–CR No. 12–1–0327(4) to: (1) Felony Abuse (by

choking) of a Family or Household Member and (2) Terroristic

Threatening in the Second Degree, and in Cr. No. 12–1–0541(4) to:

(1) the reduced charge of Unlawful Imprisonment in the First

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The Honorable Richard T. Bissen, Jr. presided.
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Degree (Count 2); (2) Felony Abuse (by choking) of a Family or

Household Member (Count 3); (3) Intimidating a Witness (Count 4);

(4) Assault in the Second Degree (Count 5); and (5) Violation of

Order of Protection (Count 6). The State moved for consecutive

terms of imprisonment; Garcia requested probation. On August 21,

2013, particularly in light of Garcia's long history of violence

and abuse convictions (as well as other factors), the Circuit

Court sentenced Garcia to concurrent and consecutive prison

sentences totaling 20 years, with credit for 365 days. In the
first case, the Circuit Court sentenced Garcia to five years

imprisonment on the charge of felony abuse of a household member,

and one year imprisonment for terroristic threatening, with the

sentences to run concurrently. For the second case, the Circuit

Court sentenced Garcia to five years on each of Counts 2 through

5, and one year on Count 6, with the sentences on Counts 2

through 4 running consecutively, and the sentences on Counts 5

and 6 running concurrently to the prior counts, with the

sentences in the second case running consecutive to the sentences

in the first case.

On direct appeal, this court addressed "whether the

statements made by the [Circuit Court] at sentencing were

sufficient to justify its imposition of consecutive terms of

imprisonment totaling twenty years on [Garcia]. "State v.

Garcia, CAAP-XX-XXXXXXX, 2014 WL 3796889, *1 (Haw. App. July 31,

2014) (mem. op.) (Garcia I). This court affirmed the consecutive

sentences, reasoning as follows:
[T]he Circuit Court made extensive statements on the
record that explained its reasons for imposing consecutive

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sentences on Garcia. The Circuit Court recounted its
involvement in Garcia's prior criminal cases, the numerous
opportunities for rehabilitation it gave to Garcia, and the
numerous attempts it made to help Garcia change. The
Circuit Court stated that as Garcia's continuing criminal
conduct in the instant cases had shown, its attempts to
rehabilitate Garcia had failed, and the Circuit Court stated
that it was "giving up on [Garcia]" and believed that he was
not entitled to further attempts at rehabilitation. The
Circuit Court discussed the nature and circumstances of
Garcia's offenses and Garcia's character. The Circuit Court
stated that Garcia's conduct resulted in "one of the worst
cases of psychological harm" the Circuit Court had seen.
The Circuit Court specifically referred to Garcia's conduct
in sending a video of his intimate sexual acts with the CW
to the CW's daughter, her employer, her ex-husband, and her
mother-in-law. The Circuit Court stated that it "[could]
not imagine what it takes for another human being to do that
to someone[,]" and it characterized Garcia's sending the
video tape to the CW's support group as "the ultimate in
manipulation[.]" The Circuit Court prefaced its imposition
of the consecutive sentences on Garcia by stating that it
was "the sentence you deserve today[.]"

Although the Circuit Court could have done a better
job of explaining its reasons for imposing consecutive
sentences by specifically linking its statements to the
factors set forth in HRS § 707–606, 4 we conclude that the
Circuit Court's statements were sufficient to satisfy the
requirements of [State v. Hussein, 122 Hawai #i 495, 229 P.3d
313 (2010)]. The purposes of the statement of reasons
required by Hussein are to: "(1) identify[] the facts or
circumstances within the range of statutory factors that the
court considered, and (2) confirm[] for the defendant, the
victim, the public, and the appellate court that the
decision was deliberate, rational, and fair." Kong, 131
Hawai#i at 102–03, 315 P.3d 728–29. The Circuit Court's
statements at sentencing were sufficient to fulfill these
purposes.

The Circuit Court's statements at sentencing
demonstrated that in imposing consecutive sentences, it was
relying on the statutory factors of: (1) the nature and
circumstances of the offense and the history and
characteristics of the defendant; and (2) the need for the
sentence imposed to reflect the seriousness of the offense,
to promote respect for law, to deter Garcia from additional
criminal conduct, and to protect the public from further
crimes by Garcia. The Court explained that it had given
Garcia numerous previous chances and opportunities for
rehabilitation, and that Garcia had squandered and rejected
those chances. The Circuit Court discussed the significant
harm resulting from Garcia's conduct. The Circuit Court's
statements reveal that it believed Garcia was not entitled
to any more chances, and that his character was depraved,
mean-spirited, manipulative, and lacking in compassion for
others. The Circuit Court's statements show that it
believed that Garcia was not amenable to rehabilitation and
thus the focus of Garcia's sentencing should be on punishing
him and deterring him from future crimes by imposing an
extensive total term of incarceration.
The Circuit Court's extensive statements at sentencing
provided clear insight into its thinking and reasoning in
imposing the consecutive sentences. We conclude that the

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Circuit Court's statements served the purposes of, and were
sufficient to: (1) "identify[] the facts or circumstances
within the range of statutory factors that the [Circuit
Court] considered" in imposing consecutive sentences; and
(2) "confirm[] for the defendant, the victim, the public,
and the appellate court that the decision was deliberate,
rational, and fair." See Kong, 131 Hawai#i at 102–03, 315
P.3d 728–29.
4
In this regard, we note that the Circuit
Court's written Order Granting State's Motion
for Consecutive Terms of Imprisonment, which was
filed after sentencing, clearly explained the
Circuit Court's reasons, with reference to the
specific factors under HRS § 706–606 that the
Circuit Court relied upon, for determining that
consecutive terms of imprisonment were
necessary. Certainly, had the Circuit Court
used this same format at sentencing to express
its views, there would be no question that the
Circuit Court had complied with the requirements
of Hussein. In Hussein, however, the supreme
court stated that circuit courts must state
their reasons for imposing consecutive sentences
"on the record at the time of sentencing[.]"
Hussein, 122 Hawai#i at 510, 229 P.3d at 328.
Thus, based on Hussein, we cannot rely on the
Circuit Court's post-sentence order, but must
rely on the Circuit Court's statements at
sentencing, in determining whether the Circuit
Court sufficiently explained its reasons for
imposing consecutive sentences.

Id. at *9-10.

Garcia's conviction and sentence were affirmed in

Garcia I. Id. at *10.

On September 16, 2015, Garcia filed his first petition

pursuant to Hawai#i Rules of Penal Procedure (HRPP) Rule 40,

which did not raise any issues concerning his consecutive
sentences. The first HRPP Rule 40 petition was dismissed without

a hearing, Garcia appealed, and this court affirmed.

On September 18, 2019, Garcia, self-represented, filed

his second HRPP Rule 40 petition, a Petition to Vacate, Set

Aside, or Correct Illegal Sentence Through a Writ of Habeas

Corpus Pursuant to HRPP Rule 40 (Second Rule 40 Petition). In

the Second Rule 40 Petition, Garcia argued that his consecutive

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sentences are illegal under State v. Barrios, 139 Hawai#i 321,

389 P.3d 916 (2016). The Circuit Court denied the petition

without a hearing, and Garcia timely filed a notice of appeal.

Garcia raises two interrelated points of error on

appeal, challenging Finding of Fact 10 and Conclusions of Law 1-

3, 7, and 8, and contending that the Circuit Court erred in

entering the Order Denying Second HRPP Rule 40 because the

sentencing court did not adequately explain its rationale for

each consecutive sentence as required under Barrios.2
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 Garcia's points of error as follows:

As set forth above, in 2014, this court rejected

Garcia's argument that his consecutive sentences were illegal

based on the Hawai#i Supreme Court's decisions in Hussein and

Kong. See, e.g., Hussein, 122 Hawai#i at 510, 229 P.3d at 328

("circuit courts must state on the record at the time of

sentencing the reasons for imposing a consecutive sentence").

The Circuit Court stated on the record its reasons of imposing

consecutive sentences on Garcia.

However, in Barrios, the supreme court applied its

consecutive sentencing mandate to an appeal from the imposition

2
Although not properly raised as a point of error, Garcia also
argues that the presiding Circuit Court judge should have granted Garcia's
Motion for Recusal filed October 3, 2019. While we note that it appears the
motion was meritless, as the only ground stated was the presiding judge's bias
allegedly demonstrated at the November 5, 2013 sentencing hearing, we cannot
reach this issue as there is no order or ruling on the motion. As the
presiding judge has since retired, the issue also appears to be moot.

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of multiple consecutive sentences – not just two, as was the case

in Hussein and Kong – and held:
[C]onsistent with the Hussein principles, a sentencing
court should explain its rationale for each consecutive
sentence in order to inform the defendant and appellate
courts of the specific factors underlying each sentence.
This helps to ensure that a sentencing judge takes into
account the differences among convictions prior to imposing
multiple consecutive sentences. Thus, in order to provide a
rational basis for imposing consecutive sentences as
required by Kong, sentencing courts must state on the record
the HRS § 706–606 factors that support each consecutive
sentence. While the same factors could be sufficiently
aggravated to justify imposing more than one consecutive
sentence, the sentencing court should specify that basis or
identify another basis for determining how many consecutive
sentences to impose.
This requirement is particularly important in cases
such as this one, where the circuit court expressly stated
its intent to ensure that Barrios would never be released
from prison, in contrast to the maximum twenty-year term
applicable to the Class A felonies for which he was
convicted. While such a sentence can be imposed in an
appropriate case, a clearly articulated rationale is
necessary when there is a large disparity between the
maximum statutory sentence for each offense and the
aggregate consecutive sentence imposed by the court.

Barrios, 139 Hawai#i at 337-38, 389 P.3d at 932-33 (emphasis

altered).

Thus, Barrios requires that the sentencing court

explain its rationale for each of multiple consecutive sentences

in order to inform the defendant (and the appellate courts) of

the specific HRS § 706-606 factors underlying each consecutive

sentence.

Accordingly, we must consider whether the Barrios

holding is a "new rule," and if so, whether it applies

retroactively to Garcia's consecutive sentences. We look to two

supreme court cases providing guidance on whether a new rule has

been created, Schwartz v. State, 136 Hawai#i 258, 361 P.3d 1161

(2015), and Rapozo v. State, 150 Hawai#i 66, 497 P.3d 81 (2021).

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In Schwartz, the supreme court started with the

principles that "[w]hen questions of state law are at issue,

state courts generally have the authority to determine the

retroactivity of their own decisions," and the quintessential

"new rule" is when the supreme court overrules a prior case and

announces a superseding legal standard. 136 Hawai#i at 272-73,

361 P.3d at 1175-76 (citation and internal quotation marks

omitted). A "new principle of constitutional law" is a new rule,

but clarification of an existing principle of law is not. Id.
at 273-74, 361 P.3d at 1176-77 (citations omitted). Explicatory

statutory construction intended to "elucidate the meaning and

application of specific provisions of a statute" does not

constitute a new rule. Id. at 274, 361 P.3d at 1177 (citation

omitted). If a supreme court holding does not constitute a new

rule, it replies retroactively. Id.

In Rapozo, the supreme court again had to assess

whether a case that was decided after the HRPP Rule 40

appellant's (Rapozo's) conviction and sentence became final was a

new rule. 150 Hawai#i at 80, 497 P.3d at 95. Rapozo reconfirmed

the four guiding principles stated in Schwartz, and applied the

"clarifying" legal principle and statutory construction at issue

therein retroactively to Rapozo. Id. at 81, 497 P.3d at 96

(citations omitted). The supreme court emphasized that HRPP Rule

40(a)(3) did not bar Rapozo's claim because, although he could

have raised it in, inter alia, one of his previous seven HRPP

Rule 40 petitions, it was a claim of an illegal sentence. Id.

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We conclude that the holding in Barrios that a

sentencing court must explain its rationale for each of multiple

consecutive sentences is not a new rule; rather it is a

clarification of the legal principles stated in Hussein and Kong,

which provided meaning and instructions for application of

statutory consecutive sentencing factors. Therefore, Barrios

applies retroactively to Garcia's multiple consecutive sentences,

and the Circuit Court erred in concluding that Garcia's illegal

sentencing claim was patently frivolous and failed to present a
colorable claim with respect to his consecutive sentences

pursuant to Barrios. This illegal sentencing claim is not barred

by HRPP Rule 40(b)(3). See Rapozo, 150 Hawai#i at 81, 497 P.3d

at 96.

For these reasons, the Circuit Court's April 16, 2020

Order Denying Second HRPP Rule 40 Petition is vacated with

respect to Garcia's illegal consecutive sentencing claims

pursuant to Barrios, and this case is remanded to the Circuit

Court for further proceedings consistent with this Summary

Disposition Order.

DATED: Honolulu, Hawai#i, July 11, 2024.

On the briefs: /s/ Katherine G. Leonard
Acting Chief Judge
Gregory K. Garcia,
Petitioner-Appellant Pro Se. /s/ Keith K. Hiraoka
Associate Judge
Gerald K. Enriques,
Deputy Prosecuting Attorney, /s/ Karen T. Nakasone
County of Maui, Associate Judge
for Respondent-Appellee.

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