NOT FOR PUBLICATION
NO. 25904
IN
THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI`I
STATE
OF HAWAI`I, Plaintiff-Appellee, v.
DEBORAH K. MAINAAUPO, aka Debra K. Kanakaole,
Defendant-Appellant
APPEAL
FROM THE FIRST CIRCUIT COURT
(CR. NO. 00-1-1520)
SUMMARY DISPOSITION ORDER
(By: Burns, C.J., Watanabe and Foley, JJ.)
On January 15, 2002, a jury found her guilty of Attempted Assault in the First Degree in violation of HRS §§ 705-500 (2) and 707-710 (1993). (3) The circuit court sentenced Mainaaupo to an extended term of imprisonment of twenty years pursuant to HRS § 706-662(1) (Supp. 2004), (4) with a mandatory minimum term of imprisonment of four years as a repeat offender pursuant to HRS § 706-606.5 (Supp. 2004). (5)
On appeal, Mainaaupo contends the circuit court (1) denied her a fair trial by finding her competent to stand trial and (2) erred in sentencing her to an extended term of imprisonment as a persistent offender.
On February 2, 2005, this court granted Mainaaupo's motion to reopen briefing. Mainaaupo filed a letter brief contending that, based on the United States Supreme Court's decision in Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000), the circuit court erred in imposing on her an extended sentence. The State filed a letter brief disputing this contention.
Upon careful review of the record and the briefs submitted by the parties, we hold:
(1) The circuit court had an adequate basis to determine that Mainaaupo was fit to proceed. State v. Janto, 92 Hawai`i 19, 29-30, 986 P.2d 306, 316-317 (1999). The circuit court did not abuse its discretion in determining Mainaaupo fit to proceed. State v. Castro, 93 Hawai`i 424, 425, 5 P.3d 414, 415 (2000).
(2) The circuit court did not err in sentencing Mainaaupo to an extended term of imprisonment pursuant to HRS § 706-662(1). Mainaaupo had two prior convictions for felonies committed at different times when she was eighteen years of age or older, and the circuit court's determination that an extended sentence was necessary for the protection of the public did not constitute an abuse of discretion. The circuit court did not err in sentencing Mainaaupo as a repeat offender pursuant to HRS § 706-606.5.
(3) Mainaaupo's extended term of imprisonment was not an illegal sentence under Apprendi or its progeny. State v. Rivera, 106 Hawai`i 146, 102 P.3d 1044 (2004).
Therefore,
IT IS HEREBY ORDERED that the Judgment entered on August 22, 2002 in the Circuit Court of the First Circuit is affirmed.
DATED: Honolulu, Hawai`i, June 24, 2005.
Mary Ann Barnard
for defendant-appellant.
Loren J. Thomas,
Deputy Prosecuting Attorney,
City and County of Honolulu,
for plaintiff-appellant.
1. The Honorable Marie N. Milks presided.
2. Hawaii Revised Statutes (HRS) § 705-500 (1993) provides:
(a)
Intentionally engages in conduct which would
constitute the crime if the attendant circumstances
were as the person
believes them to be; or
(b)
Intentionally engages in conduct which, under the
circumstances as the person believes them to be,
constitutes a
substantial step in a course of conduct intended to culminate in the
person's
commission of the crime.
(2) When causing a particular result is an element of the crime, a person is guilty of an attempt to commit the crime if, acting with the state of mind required to establish liability with respect to the attendant circumstances specified in the definition of the crime, the person intentionally engages in conduct which is a substantial step in a course of conduct intended or known to cause such a result.
3. HRS § 707-710 (1993) provides:
(2) Assault in the first degree is a class B felony.
4. HRS § 706-662(1) (Supp. 2004) provides:
(1)
The defendant is a persistent offender whose
imprisonment for an extended term is necessary for
protection of the
public. The court shall not make this finding unless the defendant has
previously been
convicted of two
felonies
committed at different times when the defendant was eighteen years of
age or older.
5. HRS § 706-606.5 (Supp. 2004) provides in relevant part:
. . . .
.
. . .