State v. Kelly (Summary Disposition Order)

STATE OF HAWAI‘I, Plaintiff-Appellee, v.
DWAYNE KELLY, Defendant-Appellant

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CR. NO. 05-1-2639)

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

Defendant-Appellant Dwayne Kelly (Kelly) appeals from the Judgment of Conviction and Sentence filed on October 22, 2007 in the Circuit Court of the First Circuit (circuit court).⁽¹⁾ A jury found Kelly guilty of the following:

(1) Counts 1, 2, 6, 7, 17-20, 22 and 23: Sexual Assault in the First Degree, in violation of Hawaii Revised Statutes (HRS) § 707-730(1)(b) (1993);

(2) Counts 3-5, 8-16, 24, and 25: Sexual Assault in the Third Degree, in violation of HRS § 707-732(1)(b) (1993);

(3) Counts 26 and 28: Abuse of Family and Household Members, in violation of HRS § 709-906 (Supp. 1997); and

(4) Count 27: Terroristic Threatening in the Second Degree, in violation of HRS § 707-717 (1993).

The circuit court sentenced Kelly to twenty years of incarceration on each of Counts 1, 2, 6, 7, 17-20, 22, and 23; five years of incarceration on each of Counts 3-5, 8-16, 24, and 25; and one year of incarceration on each of Counts 26-28. The circuit court ordered that Counts 1, 2, 6, 17, and 22 were to run consecutively to each other and that the remaining counts were to run concurrently with each other and any other sentence Kelly might be currently serving.

On appeal, Kelly argues the circuit court committed plain error in violation of the "Apprendi/Maugaotega" rule and the Fifth, Sixth, and Fourteenth Amendments of the United States Constitution when it granted the Motion for Consecutive Term Sentencing filed by the State of Hawai‘i (State) pursuant to HRS §§ 706-668.5 (1993) and 706-606 (1993). Kelly requests that we set aside his consecutive sentences.

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, as well as the relevant statutory and case law, we hold that the circuit court did not plainly err in granting the State's Motion for Consecutive Term Sentencing.

(1) We are bound by the holding in State v. Kahapea, 111 Hawai‘i 267, 280, 141 P.3d 440, 453 (2006), in which the Hawai‘i Supreme Court held that the circuit court's imposition of five consecutive terms of imprisonment of ten years each upon Kahapea did not violate Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000).⁽²⁾ A court should "not depart from the doctrine of stare decisis without some compelling justification." State v. Garcia, 96 Hawai‘i 200, 206, 29 P.3d 919, 925 (2001).

(2) We decline to extend the holding in State v. Maugaotega, 115 Hawai‘i 432, 446-47, 168 P.3d 562, 576-77 (2007), to consecutive term sentencing where the sentencing court does not extend a defendant's sentence beyond the "standard term." Thus, we do not agree with Kelly that Maugaotega and Cunningham v. California, 549 U.S. 270, 127 S. Ct. 856 (2007), rendered wrong the holding in Kahapea. HRS §§ 706-668.5 & 706-606; Kahapea, 111 Hawai‘i at 278-80, 141 P.3d at 451-53; Maugaotega, 115 Hawai‘i at 437, 445-47 & 451, 168 P.3d at 567, 575-77 & 581; Cunningham, 549 U.S. at 283 & 290, 127 S. Ct. at 865 & 869; see HRS §§ 707-730(2) (1993), 707-732(2) (1993), 706-660 (1993), 709-906(5), 707-717, & 706-663 (1993).

IT IS HEREBY ORDERED that the Judgment of Conviction and Sentence filed on October 22, 2007 in the Circuit Court of the First Circuit is affirmed.

2. In Apprendi, the United States Supreme Court held that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." 530 U.S. at 490, 120 S. Ct. at 2362-63.