NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed Intermediate Court of Appeals CAAP-XX-XXXXXXX 28-AUG-2024 08:12 AM Dkt. 125 SO
CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS OF THE STATE OF HAWAI#I
CORNELIUS ALSTON, Plaintiff-Appellant, v. STATE OF HAWAI#I, Defendant-Appellee, and JOHN DOES 1-5, Defendants
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT (CIVIL NO. 1CC171000364)
SUMMARY DISPOSITION ORDER (By: Leonard, Acting Chief Judge, Hiraoka and McCullen, JJ.)
Plaintiff-Appellant Cornelius Alston (Alston) appeals
from the May 19, 2020 Judgment entered by the Circuit Court of
the First Circuit (Circuit Court) in favor of Defendant-Appellee
State of Hawai#i (State).1 Alston also challenges the January
10, 2020 Order Granting [the State's] Motion for Summary Judgment
[(MSJ)], filed October 21, 2019. Alston filed this civil action
against the State alleging negligence in the calculation of
Alston's release date and seeking damages from the State stemming
from alleged overdetention.
1 The Honorable Bert I. Ayabe presided. NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Alston raises eight points of error on appeal,
contending that the Circuit Court erred by: (1) granting the
State's MSJ based on Alston v. Read, 663 F.3d 1094 (9th Cir.
2011); (2) disregarding the State's failure to meet its burden of
production; (3) disregarding the State's arbitrary and capricious
change of sentencing practices without providing him procedural
safeguards to prevent overdetention; (4) disregarding that the
State violated Hawaii Revised Statutes (HRS) § 1-3 (2009) by
retroactively recalculating his release date; (5) disregarding that the State violated Hawai
(HAPA), HRS § 91-1(4) (2012); (6) disregarding that the State's
failure to enforce HRS § 353-12 (2015) as a cause of his
overdetention; (7) disregarding that HRS § 706-670(5) (2014)
required him to be released on August 4, 2007; and (8)
disregarding his due process rights under article I, section 5 of
the Hawai#i State Constitution.
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, we
resolve Alston's points of error as follows:
It is undisputed that on June 14, 2007, Alston's
release date was recalculated pursuant to Department of Public
Safety (DPS) Policy No. COR.05.05, which brought DPS into
conformity with HRS § 706-668.5 (1993), which at that time
provided, in pertinent part: § 706-668.5 Multiple sentence of imprisonment . (1) If multiple terms of imprisonment are imposed on a defendant
2 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
at the same time, or if a term of imprisonment is imposed on a defendant who is already subject to an unexpired term of imprisonment, the terms may run concurrently or consecutively. Multiple terms of imprisonment imposed at the same time run concurrently unless the court orders or the statute mandates that the terms run consecutively. Multiple terms of imprisonment imposed at different times run consecutively unless the court orders that the terms run concurrently. [2]
Pursuant to the version of HRS § 706-668.5(1) in effect
in 2007 and applicable to Alston's 1997 sentence (which was
imposed on Alston while he was subject to a previously-imposed
unexpired term), and based on the November 20, 1997 Judgment
Guilty Conviction and Sentence (1997 Judgment) DPS received from
the Circuit Court for inclusion in the DPS institutional file, we
conclude that the Circuit Court did not err in concluding that
there was no genuine issue of material fact and the State is
entitled to judgment as a matter of law. The State had no duty
2 This statute was amended in 2008. See 2008 Haw. Sess. Laws Act 193, § 1 at 714. HRS § 706-668.5 (Supp. 2023) now provides, in pertinent part: § 706-668.5 Multiple sentence of imprisonment . (1) If multiple terms of imprisonment are imposed on a defendant, whether at the same time or at different times, or if a term of imprisonment is imposed on a defendant who is already subject to an unexpired term of imprisonment, the terms may run concurrently or consecutively. Multiple terms of imprisonment run concurrently unless the court orders or the statute mandates that the terms run consecutively. . . . .
(3) For terms of imprisonment imposed prior to June 18, 2008, the department of corrections and rehabilitation shall post written notice in all inmate housing units and the facility library at each correctional facility for a period of two months and send written notice to the defendant no later than January 1, 2016, that shall include but not be limited to: (a) Notice that the department of corrections and rehabilitation may recalculate the multiple terms of imprisonment imposed on the defendant; and
(b) Notice of the defendant's right to have the court review the defendant's sentence.
3 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
to seek out further court files or fail to act in accordance with
unambiguous law. See Alston, 663 F.3d at 1099-1100 (holding that
Alston's sentence was appropriately calculated under Hawai#i law
and that DPS employees were entitled to rely on the 1997 Judgment
received from the court, "and were not required to go in search
of additional courthouse records" for further documents).
Based on the 1997 Judgment and the applicable law,
Alston's release date was not miscalculated on June 14, 2007. A
written order entered on December 10, 1997, about 20 days after the 1997 Judgment, i.e., Findings of Fact, Conclusions of Law and
Order Imposing Mandatory Minimum Term for Repeat Offender
Sentencing (Post-Judgment Sentencing Order), indicated that the
sentencing court intended for Alston to serve the five and ten
year sentences in the 1997 Judgment concurrent with his
previously-imposed sentence, as well as concurrent with each
other. However, as previously litigated in Alston's federal law
suit, DPS employees were entitled to rely on the 1997 Judgment,
and were not required to go in search of additional court records
for further documents.
On December 19, 2007, Alston filed a Motion to Correct
Judgment (Motion to Correct) citing, inter alia, the Post-
Judgment Sentencing Order. On December 27, 2007, the Circuit
Court entered an Amended Judgment of Conviction and Sentence;
(Amended Judgment), which expressly states that the 1997
sentences run concurrent with any other sentence being served,
nunc pro tunc from November 20, 1997. Alston was released the
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NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed Intermediate Court of Appeals CAAP-XX-XXXXXXX 28-AUG-2024 08:12 AM Dkt. 125 SO
CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS OF THE STATE OF HAWAI#I
CORNELIUS ALSTON, Plaintiff-Appellant, v. STATE OF HAWAI#I, Defendant-Appellee, and JOHN DOES 1-5, Defendants
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT (CIVIL NO. 1CC171000364)
SUMMARY DISPOSITION ORDER (By: Leonard, Acting Chief Judge, Hiraoka and McCullen, JJ.)
Plaintiff-Appellant Cornelius Alston (Alston) appeals
from the May 19, 2020 Judgment entered by the Circuit Court of
the First Circuit (Circuit Court) in favor of Defendant-Appellee
State of Hawai#i (State).1 Alston also challenges the January
10, 2020 Order Granting [the State's] Motion for Summary Judgment
[(MSJ)], filed October 21, 2019. Alston filed this civil action
against the State alleging negligence in the calculation of
Alston's release date and seeking damages from the State stemming
from alleged overdetention.
1 The Honorable Bert I. Ayabe presided. NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Alston raises eight points of error on appeal,
contending that the Circuit Court erred by: (1) granting the
State's MSJ based on Alston v. Read, 663 F.3d 1094 (9th Cir.
2011); (2) disregarding the State's failure to meet its burden of
production; (3) disregarding the State's arbitrary and capricious
change of sentencing practices without providing him procedural
safeguards to prevent overdetention; (4) disregarding that the
State violated Hawaii Revised Statutes (HRS) § 1-3 (2009) by
retroactively recalculating his release date; (5) disregarding that the State violated Hawai
(HAPA), HRS § 91-1(4) (2012); (6) disregarding that the State's
failure to enforce HRS § 353-12 (2015) as a cause of his
overdetention; (7) disregarding that HRS § 706-670(5) (2014)
required him to be released on August 4, 2007; and (8)
disregarding his due process rights under article I, section 5 of
the Hawai#i State Constitution.
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, we
resolve Alston's points of error as follows:
It is undisputed that on June 14, 2007, Alston's
release date was recalculated pursuant to Department of Public
Safety (DPS) Policy No. COR.05.05, which brought DPS into
conformity with HRS § 706-668.5 (1993), which at that time
provided, in pertinent part: § 706-668.5 Multiple sentence of imprisonment . (1) If multiple terms of imprisonment are imposed on a defendant
2 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
at the same time, or if a term of imprisonment is imposed on a defendant who is already subject to an unexpired term of imprisonment, the terms may run concurrently or consecutively. Multiple terms of imprisonment imposed at the same time run concurrently unless the court orders or the statute mandates that the terms run consecutively. Multiple terms of imprisonment imposed at different times run consecutively unless the court orders that the terms run concurrently. [2]
Pursuant to the version of HRS § 706-668.5(1) in effect
in 2007 and applicable to Alston's 1997 sentence (which was
imposed on Alston while he was subject to a previously-imposed
unexpired term), and based on the November 20, 1997 Judgment
Guilty Conviction and Sentence (1997 Judgment) DPS received from
the Circuit Court for inclusion in the DPS institutional file, we
conclude that the Circuit Court did not err in concluding that
there was no genuine issue of material fact and the State is
entitled to judgment as a matter of law. The State had no duty
2 This statute was amended in 2008. See 2008 Haw. Sess. Laws Act 193, § 1 at 714. HRS § 706-668.5 (Supp. 2023) now provides, in pertinent part: § 706-668.5 Multiple sentence of imprisonment . (1) If multiple terms of imprisonment are imposed on a defendant, whether at the same time or at different times, or if a term of imprisonment is imposed on a defendant who is already subject to an unexpired term of imprisonment, the terms may run concurrently or consecutively. Multiple terms of imprisonment run concurrently unless the court orders or the statute mandates that the terms run consecutively. . . . .
(3) For terms of imprisonment imposed prior to June 18, 2008, the department of corrections and rehabilitation shall post written notice in all inmate housing units and the facility library at each correctional facility for a period of two months and send written notice to the defendant no later than January 1, 2016, that shall include but not be limited to: (a) Notice that the department of corrections and rehabilitation may recalculate the multiple terms of imprisonment imposed on the defendant; and
(b) Notice of the defendant's right to have the court review the defendant's sentence.
3 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
to seek out further court files or fail to act in accordance with
unambiguous law. See Alston, 663 F.3d at 1099-1100 (holding that
Alston's sentence was appropriately calculated under Hawai#i law
and that DPS employees were entitled to rely on the 1997 Judgment
received from the court, "and were not required to go in search
of additional courthouse records" for further documents).
Based on the 1997 Judgment and the applicable law,
Alston's release date was not miscalculated on June 14, 2007. A
written order entered on December 10, 1997, about 20 days after the 1997 Judgment, i.e., Findings of Fact, Conclusions of Law and
Order Imposing Mandatory Minimum Term for Repeat Offender
Sentencing (Post-Judgment Sentencing Order), indicated that the
sentencing court intended for Alston to serve the five and ten
year sentences in the 1997 Judgment concurrent with his
previously-imposed sentence, as well as concurrent with each
other. However, as previously litigated in Alston's federal law
suit, DPS employees were entitled to rely on the 1997 Judgment,
and were not required to go in search of additional court records
for further documents.
On December 19, 2007, Alston filed a Motion to Correct
Judgment (Motion to Correct) citing, inter alia, the Post-
Judgment Sentencing Order. On December 27, 2007, the Circuit
Court entered an Amended Judgment of Conviction and Sentence;
(Amended Judgment), which expressly states that the 1997
sentences run concurrent with any other sentence being served,
nunc pro tunc from November 20, 1997. Alston was released the
same day as the entry of the Amended Judgment. See Alston v.
4 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Read, 678 F.Supp.2d 1061, 1072 (D. Haw. 2010), rev'd on other
grounds by Alston, 663 F.3d at 1094. Accordingly, Alston was not
overdetained, and therefore, his claim of negligence and any
other claims based on overdetention fail. See Simeona v.
Dydasco, CAAP-XX-XXXXXXX, 2015 WL 1400952, *3 (Haw. App. March
27, 2015) (SDO), cert. rejected, 2015 WL 4756462 (Haw. Aug. 10,
2015); Collier v. State, CAAP-XX-XXXXXXX, 2024 WL 863295, *2
(Haw. App. Feb. 29, 2024) (SDO).
For these reasons, the Circuit Court's May 19, 2020 Judgment is affirmed.
DATED: Honolulu, Hawai#i, August 28, 2024.
On the briefs: /s/ Katherine G. Leonard Acting Chief Judge Jack Schweigert, John P. Gillmor, /s/ Keith K. Hiraoka for Plaintiff-Appellant. Associate Judge
Caron M. Inagaki, /s/ Sonja M.P. McCullen Kendall J. Moser, Associate Judge William K. Awong, Deputy Attorneys General, for Defendant-Appellee.