*** NOT FOR PUBLICATION ***
CLIFFORD AKANA, Defendant-Appellant
Upon carefully reviewing the record and the briefs submitted and having given due consideration to the issues raised and arguments advanced, we initially hold that Akana's unconditional guilty plea precluded him from challenging the manner in which the offenses were charged in the indictment. See State v. Morin, 71 Haw. 159, 785 P.2d 1316 (1990); United States v. Floyd, 108 F.3d 202 (9th Cir. 1997); Tollett v. Henderson, 411 U.S. 258, 93 S. Ct. 1602, 36 L. Ed. 2d 235 (1973). Assuming, arguendo, that Akana did not waive his right to challenge the prosecution's charge of Counts 1-24 and one count of continuous sexual assault of a minor under the age of fourteen years, in violation of HRS § 707-733.5 (Supp. 2003) (4) (Count 26), the indictment, nevertheless, properly charged Counts 1-24 and 26 in the same proceeding, inasmuch as HRS § 707-733.5(3) permitted Counts 1-24 to be charged in the alternative. See HRS § 707-733.5(3). Moreover, because the circuit court dismissed Count 26, Akana's conviction of and sentence for Counts 1-25 fell outside the purview of HRS § 701-109. See HRS § 701-109. Next, we hold that the circuit court did not abuse its discretion in imposing an extended term sentence, inasmuch as the circuit court determined that Akana qualified as a multiple offender whose extended term sentence was necessary for the protection of the public, see HRS §§ 706-661 and 706-662(4); State v. Rivera, 106 Hawai`i 146, 102 P.3d 1044 (2004); State v. Kaua, 102 Hawai`i 1, 72 P.3d 473 (2003); State v. Huelsman, 60 Haw. 71, 588 P.2d 394 (1974), overruled in part on other grounds by State v. Tafoya, 91 Hawai`i 261, 272, 982 P.2d 870, 901 (1999). (5) We further hold that the circuit court did not abuse its discretion by finding that strong mitigating circumstances warranted a lesser mandatory minimum term sentence under HRS § 706-606.5 while also finding that an extended term sentence was necessary for the protection of the public under HRS § 706-662(4), inasmuch as the mitigating factors had no effect on the circuit court's determination that Akana was a multiple offender whose commitment to an extended term was necessary for the protection of the public. Therefore,
IT IS HEREBY ORDERED that the circuit court's January 22, 2003 judgment, from which the appeal is taken, is affirmed.
DATED: Honolulu, Hawai`i, March 4, 2005.
Keith S. Shigetomi
1. At the time Akana committed the offenses charged in Counts 1, 5, 9, 13, 17, and 21, HRS § 707-730 provided, in relevant part, as follows:
. . . .
The person knowingly subjects to sexual penetration
another person who is less than fourteen years old;
provided this paragraph shall not be construed to prohibit practitioners licensed under chapter 453, 455,
or 460, from performing any act within their respective practices.
2. HRS § 707-732(1)(b) provided that "[a] person commits the offense of sexual assault in the third degree if . . . [t]he person knowingly subjects to sexual contact another person who is less than fourteen years old or causes such a person to have sexual contact with the person[.]" In 2001, the legislature amended HRS § 707-732 by adding a subsection (c). 2001 Haw. Sess. L., Second Special Session, Act 1, § 2 at 941. Because the charged offenses occurred in 2000, the amended version of HRS § 707-732 is not implicated in the present matter.
3. HRS § 707-716(1)(d) provides that "[a] person commits the offense of terroristic threatening in the first degree if the person commits terroristic threatening . . . [w]ith the use of a dangerous instrument."
4. HRS § 707-733.5 provides:
Either resides in the same home with a minor under
the age of fourteen years or has recurring access to
the minor; and
Engages in three or more acts of sexual penetration
or sexual contact with the minor over a period of
time, but while the minor is under the age of fourteen years,
is guilty of the offense of continuous sexual assault of a minor under the age of fourteen years.
(2) To convict under this section, the trier of fact, if a jury, need unanimously agree only that the requisite number of acts have occurred; the jury need not agree on which acts constitute the requisite number.
(3) No other felony sex offense involving the same victim may be charged in the same proceeding with a charge under this section, unless the other charged offense occurred outside the time frame of the offense charged under this section or the other offense is charged in the alternative. A defendant may be charged with only one count under this section unless more than one victim is involved, in which case a separate count may be charged for each victim.
(4) Continuous sexual assault of a minor under the age of fourteen years is a class A felony.
Akana never challenged his extended term sentence based on the United
States Supreme Court's decision in Apprendi
530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000). As such, we
decline to address Akana's appeal in
light of Apprendi. Hawai`i Rules of
Appellate Procedure (HRAP) Rule 28(b)(7) (2004) ("Points not argued may
deemed waived."). Rivera, Kaua, and Huelsman are
therefore cited solely for their analysis of Hawaii's extended term
sentencing structure for multiple offenders set forth in HRS §