NOT FOR PUBLICATION
NO. 25681
IN
THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI`I
STATE
OF HAWAI`I, Plaintiff-Appellee, v.
SIAOSI MALUFAU, Defendant-Appellant
APPEAL
FROM THE FIRST CIRCUIT COURT
(CR. NO. 94-0880)
SUMMARY DISPOSITION ORDER
(By: Burns, C.J., Lim and Foley, JJ.)
Maluafu contends the circuit court violated his constitutional rights by sentencing him to an extended term of imprisonment without a jury determination, in violation of Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000).
Upon careful review of the record and the briefs submitted by the parties, we hold that Apprendi does not apply retroactively to this case because new rules for the conduct of criminal prosecutions as in Apprendi only apply retroactively to cases "pending on direct review or not yet final." (2) Griffith v. Kentucky, 479 U.S. 314, 328, 107 S. Ct. 708, 716 (1987). A judgment becomes "final for purposes of retroactivity analysis when the availability of direct appeal to the state courts has been exhausted and the time for filing a petition for a writ of certiorari has elapsed or a timely filed petition has been finally denied." Caspari v. Bohlen, 510 U.S. 383, 390, 114 S. Ct. 948, 953 (1994). "Apprendi does not apply retroactively to cases on initial collateral review." United States v. Sanchez-Cervantes, 282 F.3d 664, 671 (2002).
Therefore,
IT IS HEREBY ORDERED that the "Order
Denying Defendant's Non-Hearing Motion to Set Aside Illegal Sentence"
filed on February 11, 2003 in the Circuit Court of the First Circuit is
affirmed.
DATED: Honolulu, Hawai`i, December 29, 2004.
Siaosi Malufau,
defendant-appellant pro se.
1.
The Honorable Dan T. Kochi presided.
2. The Judgment in
Malufau's case was filed November 8, 1996. Malufau appealed. On August
25, 1998, by Summary Disposition Order, the
Hawai`i Supreme Court affirmed Malufau's conviction and sentence on
Counts I-IV and reversed his conviction and sentence on Count V.