Crowell v. State

LAW L!BRARY
N0T F0R PUBLICATIQN lN WEST'S HAWA!‘I REPGRTS AND PACIFIC REPGRTER

NO. 29664
IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAfI

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WAYNE MORI CROWELL, Petitioner-Appellant,“
v. “W
STATE oF HAWAI‘I, Respondent-Appellee

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APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(S.P.P. NO. 08-1-OOO8, CR NO. 57l56)

SUMMARY DISPOSITION ORDER
(By: Nakamura, Chief Judge, Foley, and Leonard, JJ.)

(Crowell)

Petitioner-Appellant Wayne Mori Crowell
and Order

appeals from the "Findings of Fact, Conclusions of Law,

Denying Petition for Post-Conviction Relief Without a Hearing"
(Order Denying Petition), which was filed on January 27, 2009, in
the Circuit Court of the First Circuit (circuit court).F we

affirm.
I.

In Crowell's underlying criminal case,
charged by indictment in 1982 with three counts of first degree

robbery (Counts I, III, and IV) and one count of second degree
On November 18, 1983, a jury found Crowell'
Crowell was sentenced to

Crowell was

robbery (Count II).
guilty as charged on all counts.
extended terms of life imprisonment, with the possibility of

parole, for the three first degree robbery convictions and a non-

extended term of ten years of imprisonment for the second degree

robbery conviction, all terms to run concurrently.
Crowell filed a direct appeal from the judgment on
On August

these convictions and sentences in Appeal No. 9733.
21, 1985, this court issued an opinion which vacated Crowell's

V The Honorable Derrick H.M. Chan presided.

NOT FOR PUBLICATION IN VVEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER

conviction and sentence for the first degree robbery charged in
Count IV and affirmed his convictions and sentences with respect
to Counts I, II, and III. State v. Crowell, 5 Haw. App. 674, 706
P.2d 453 (1985). Crowell did not seek review of this court's
opinion, and his convictions and sentences on Counts I, II, and
III, including the extended terms of life imprisonment on Counts
1 and III, became final in 1985.
On February 12, 2008, Crowell filed a "Petition to

Vacate, Set Aside, or Correct Judgment or to Release Petitioner
from Custody" (Petition), pursuant to Hawaii Rules of Pena} '
Procedure Ru1e 40 (2006). The circuit court denied the Petition
and issued its Order Denying Petition on January 27, 2009. This

appeal followed.

II.

Crowell argues on appeal, as he did in his Petition,
that based on State v. Mauqaoteqa, 115 HawaiH.432, 168 P.3d 562
(2007) (Maugaotega II), the version of the extended term statute
under which he as sentenced, Hawaii Revised Statutes (HRS) § 706~
662 (1976 & Supp. 1984), was void ab initio, and thus his
extended term sentences must be vacated and ordinary term
sentences imposed.

Upon careful review of the record and the briefs
submitted by the parties, we hold as follows:

Maugaotega II does not apply retroactively to Crowell's
collateral attack on his extended term sentences on Counts I and
III which became final in 1985. See State v. Gomes, 107 Hawafi
308, 312-14, 113 P.3d 184, 188-90 (2005); LOher V. State, 118
Hawai‘i 522, 534-38, 193 P.3d 438, 450-54 (App. 2008); United
States v. Cruz, 423 F.3d 1119, 1120-21 (9th Cir. 2005).

The version of HRS § 706-662 under which Crowell was
sentenced was not void ab initio. See State v. Jess, 117 HawaFi
381, 388-89, 406-15, 184 P.3d 133, 140-41, 158~67 (2008); _.‘j_;_§l;§
v. Cutsinger, 118 HawaiH.68, 79-82, 185 P.3d 816, 827-830 (App.
2008), overruled in part on other grounds by Jess, 117 Hawafi at

2

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

398 n.17, 184 P.3d at 150 1'1.17; LOh`er, 118 Hawai‘i at 534-38, 193
P.3d at 450~54. Crowell's extended term sentences became final
long before the United States Supreme Court announced its new
constitutional rule of criminal procedure in Apprendi v. New
Jersey, 530 U.S. 466 (2000), and thus Crowell's extended term
sentences were constitutional and legal when imposed. §§§ §gme§,
107 Hawai‘i at 314, 113 P.3d at 190. In Qg§§, the Hawai‘i Supreme
Court held that the trial court had the authority to resentence
Jess to extended terms of imprisonment pursuant to the former
version of the extended term sentencing statute, HRS § 706-662
(Supp. 1996), which was in effect in 2000 when Jess committed the
charged offenses, by invoking its inherent judicial power to
empanel a jury to make the "necessity" finding. Qg§§, 117
Hawai‘i at 388-89, 410-13, 184 P.3d at 140-41, 162-65; §§ §.a,
State V. Mark, NO. 26784, 2010 WL 1888944, at *45-47 (Hawai‘i May
12, 2010). The supreme court could not have reached this
conclusion in Q§§§ if the former versions of HRS § 706-662 were
void ab initio. .

Accordingly, Crowell is not entitled to have his
extended term sentences vacated or set aside.

0 III.

The circuit court's January 27, 2009, Order Denying
Petition is affirmed.

DATED: Hono1ulu, HawaFi, May 28, 2010.

On the briefs: z ' y 76 4
Chie

Taryn R. Tomasa Judge

Deputy Public Defender __-
for Petitioner-Appellant ' ` /Q2ZLj§p§§;K
_ __ i"/

James M. Anderson Associate Judge
Deputy Prosecuting Attorney

City and County of Honolulu //"
for Respondent -Appel lee