***NOT FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
Electronically Filed Supreme Court SCWC-XX-XXXXXXX 28-JUN-2018 08:24 AM
SCWC-XX-XXXXXXX
IN THE SUPREME COURT OF THE STATE OF HAWAI#I
ALBERT BATALONA, Petitioner/Petitioner-Appellant,
vs.
STATE OF HAWAI#I, Respondent/Respondent-Appellee.
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CAAP-XX-XXXXXXX; S.P.P. NO. 10-1-0075; CR. NO. 03-1-0787)
SUMMARY DISPOSITION ORDER (By: Recktenwald, C.J., Nakayama, McKenna, Pollack, and Wilson JJ.)
Petitioner/Petitioner-Appellant Albert Batalona appeals
from the Intermediate Court of Appeals’ (ICA) August 4, 2017
Judgment on Appeal, entered pursuant to its June 28, 2017
Memorandum Opinion affirming the Circuit Court of the First
Circuit’s (circuit court) July 17, 2015 Amended Findings of Fact,
Conclusions of Law, and Order Granting in Part and Denying in ***NOT FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
Part Petition for Post-Conviction Relief.
In 2003, a jury found Batalona guilty of escape in the
second degree, theft in the second degree, and theft in the
fourth degree.1 Subsequently, the State filed a motion for an
extended term of imprisonment, arguing that Batalona was a
“multiple offender” under HRS § 706-662(4).2 On January 9, 2004,
the circuit court held a hearing and granted the State’s motion for extended term sentencing, finding that Batalona had been
previously convicted of multiple felonies and that an extended
term of imprisonment was necessary to protect the public.
Batalona appealed to the ICA. Citing Apprendi v. New
1 The Honorable Marie N. Milks presided. 2 HRS § 706-662 (Supp. 2002) provided, in relevant part:
A convicted defendant may be subject to an extended term of imprisonment under section 706-661, if the convicted defendant satisfies one or more of the following criteria:
. . . .
(4) The defendant is a multiple offender whose criminal actions were so extensive that a sentence of imprisonment for an extended term is necessary for protection of the public. The court shall not make this finding unless:
(a) The defendant is being sentenced for two or more felonies or is already under sentence of imprisonment for felony; or
(b) The maximum terms of imprisonment authorized for each of the defendant's crimes, if made to run consecutively would equal or exceed in length the maximum of the extended term imposed, or would equal or exceed forty years if the extended term imposed is for a class A felony. . . .
2 ***NOT FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
Jersey, 530 U.S. 466 (2000), Batalona argued that a jury must
determine whether an extended term of imprisonment was necessary
for the protection of the public. Batalona also argued that the
circuit court was statutorily barred from ordering restitution
for repairs to the correctional facility arising from Batalona’s
escape because the government was not a direct victim.
The ICA affirmed the circuit court’s judgment. Batalona then filed an application for writ of certiorari to this
court, which was denied in 2006.3
In 2010, Batalona filed a Hawai#i Rules of Penal
Procedure (HRPP) Rule 40 petition.4 Batalona asserted that his
sentence was illegal, reiterating his Apprendi argument as well
as arguing that the circuit court failed to enter findings of
fact and conclusions of law “specifically illustrating that
Batalona could afford to pay restitution” and a fine, citing
State v. Werner, 93 Hawai#i 290, 297 (App. 2000). Batalona later
amended his petition by: (1) adding a third claim that his
sentence was illegal because a sentence for escape cannot legally
run consecutive to a sentence of life without the possibility of
parole; and (2) amending his inability to pay restitution claim
to add that there was ineffective assistance of counsel for
failure to raise that claim on direct appeal.
3 Justice Acoba dissented, with whom Justice Duffy joined. 4 The Honorable Colette Y. Garibaldi presided.
3 ***NOT FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
On July 17, 2015, the circuit court entered its Amended
Findings of Fact, Conclusions of Law, and Order Granting in Part
and Denying in Part Petition for Post-Conviction Relief (7/17/15
Order). The circuit court granted a hearing on the issues of
whether Batalona could afford to pay the imposed restitution and
fine, and whether Batalona had ineffective assistance of
appellate counsel. The circuit court denied all remaining grounds–-including the Apprendi argument--and characterized them
as “patently frivolous and without a trace of support.”
On April 27, 2016, the circuit court entered its
Findings of Fact, Conclusions of Law, Order, and Final
Disposition Regarding Petition for Post-Conviction Relief
(4/27/16 Order). The circuit court determined that the trial
court “did not make a specific finding regarding [Batalona’s]
ability to pay the restitution ordered.” The circuit court then
concluded that a fine was not appropriate and that Batalona had
the ability to pay 10% of his wages earned while incarcerated
toward victim restitution. The circuit court also concluded that
Batalona’s appellate counsel did not render ineffective
assistance of counsel by failing to raise the issue of Batalona’s
ability to pay the fine and restitution.
Batalona appealed to the ICA the 7/17/15 Order and the
4/27/16 Order. In his opening brief, Batalona raised two points
of error. First, Batalona argued that the circuit court erred in
4 ***NOT FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
denying Batalona’s petition to set aside restitution because the
circuit court failed to enter sufficient findings and conclusions
to demonstrate that Batalona was able to afford paying $3,149 in
restitution. Second, Batalona argued that the circuit court
erred by denying Batalona’s petition to correct his illegal
sentence under Apprendi and its progeny.
In its Memorandum Opinion, the ICA held that the circuit court abused its discretion when it made insufficient
findings of fact to conclude that Batalona could afford to pay
the amount of restitution ordered. The ICA also held that the
circuit court did not err in concluding that Apprendi did not
apply to Batalona’s sentence. Pursuant to its Memorandum
Opinion, the ICA affirmed the 7/17/15 Order with respect to the
Apprendi issue, vacated the 4/27/16 Order, and remanded for
further proceedings.
In Batalona’s application for writ of certiorari,
Batalona presented one question: “[w]hether the ICA gravely
erred in concluding that Apprendi does not apply to Batalona’s
sentence.” (Underline added and footnote omitted).
In Flubacher, we recently stated:
[W]e hold that the line of demarcation is Apprendi, not Booker or Cunningham, in determining whether extended term sentences imposed without jury findings are subject to collateral attack.
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***NOT FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
Electronically Filed Supreme Court SCWC-XX-XXXXXXX 28-JUN-2018 08:24 AM
SCWC-XX-XXXXXXX
IN THE SUPREME COURT OF THE STATE OF HAWAI#I
ALBERT BATALONA, Petitioner/Petitioner-Appellant,
vs.
STATE OF HAWAI#I, Respondent/Respondent-Appellee.
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CAAP-XX-XXXXXXX; S.P.P. NO. 10-1-0075; CR. NO. 03-1-0787)
SUMMARY DISPOSITION ORDER (By: Recktenwald, C.J., Nakayama, McKenna, Pollack, and Wilson JJ.)
Petitioner/Petitioner-Appellant Albert Batalona appeals
from the Intermediate Court of Appeals’ (ICA) August 4, 2017
Judgment on Appeal, entered pursuant to its June 28, 2017
Memorandum Opinion affirming the Circuit Court of the First
Circuit’s (circuit court) July 17, 2015 Amended Findings of Fact,
Conclusions of Law, and Order Granting in Part and Denying in ***NOT FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
Part Petition for Post-Conviction Relief.
In 2003, a jury found Batalona guilty of escape in the
second degree, theft in the second degree, and theft in the
fourth degree.1 Subsequently, the State filed a motion for an
extended term of imprisonment, arguing that Batalona was a
“multiple offender” under HRS § 706-662(4).2 On January 9, 2004,
the circuit court held a hearing and granted the State’s motion for extended term sentencing, finding that Batalona had been
previously convicted of multiple felonies and that an extended
term of imprisonment was necessary to protect the public.
Batalona appealed to the ICA. Citing Apprendi v. New
1 The Honorable Marie N. Milks presided. 2 HRS § 706-662 (Supp. 2002) provided, in relevant part:
A convicted defendant may be subject to an extended term of imprisonment under section 706-661, if the convicted defendant satisfies one or more of the following criteria:
. . . .
(4) The defendant is a multiple offender whose criminal actions were so extensive that a sentence of imprisonment for an extended term is necessary for protection of the public. The court shall not make this finding unless:
(a) The defendant is being sentenced for two or more felonies or is already under sentence of imprisonment for felony; or
(b) The maximum terms of imprisonment authorized for each of the defendant's crimes, if made to run consecutively would equal or exceed in length the maximum of the extended term imposed, or would equal or exceed forty years if the extended term imposed is for a class A felony. . . .
2 ***NOT FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
Jersey, 530 U.S. 466 (2000), Batalona argued that a jury must
determine whether an extended term of imprisonment was necessary
for the protection of the public. Batalona also argued that the
circuit court was statutorily barred from ordering restitution
for repairs to the correctional facility arising from Batalona’s
escape because the government was not a direct victim.
The ICA affirmed the circuit court’s judgment. Batalona then filed an application for writ of certiorari to this
court, which was denied in 2006.3
In 2010, Batalona filed a Hawai#i Rules of Penal
Procedure (HRPP) Rule 40 petition.4 Batalona asserted that his
sentence was illegal, reiterating his Apprendi argument as well
as arguing that the circuit court failed to enter findings of
fact and conclusions of law “specifically illustrating that
Batalona could afford to pay restitution” and a fine, citing
State v. Werner, 93 Hawai#i 290, 297 (App. 2000). Batalona later
amended his petition by: (1) adding a third claim that his
sentence was illegal because a sentence for escape cannot legally
run consecutive to a sentence of life without the possibility of
parole; and (2) amending his inability to pay restitution claim
to add that there was ineffective assistance of counsel for
failure to raise that claim on direct appeal.
3 Justice Acoba dissented, with whom Justice Duffy joined. 4 The Honorable Colette Y. Garibaldi presided.
3 ***NOT FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
On July 17, 2015, the circuit court entered its Amended
Findings of Fact, Conclusions of Law, and Order Granting in Part
and Denying in Part Petition for Post-Conviction Relief (7/17/15
Order). The circuit court granted a hearing on the issues of
whether Batalona could afford to pay the imposed restitution and
fine, and whether Batalona had ineffective assistance of
appellate counsel. The circuit court denied all remaining grounds–-including the Apprendi argument--and characterized them
as “patently frivolous and without a trace of support.”
On April 27, 2016, the circuit court entered its
Findings of Fact, Conclusions of Law, Order, and Final
Disposition Regarding Petition for Post-Conviction Relief
(4/27/16 Order). The circuit court determined that the trial
court “did not make a specific finding regarding [Batalona’s]
ability to pay the restitution ordered.” The circuit court then
concluded that a fine was not appropriate and that Batalona had
the ability to pay 10% of his wages earned while incarcerated
toward victim restitution. The circuit court also concluded that
Batalona’s appellate counsel did not render ineffective
assistance of counsel by failing to raise the issue of Batalona’s
ability to pay the fine and restitution.
Batalona appealed to the ICA the 7/17/15 Order and the
4/27/16 Order. In his opening brief, Batalona raised two points
of error. First, Batalona argued that the circuit court erred in
4 ***NOT FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
denying Batalona’s petition to set aside restitution because the
circuit court failed to enter sufficient findings and conclusions
to demonstrate that Batalona was able to afford paying $3,149 in
restitution. Second, Batalona argued that the circuit court
erred by denying Batalona’s petition to correct his illegal
sentence under Apprendi and its progeny.
In its Memorandum Opinion, the ICA held that the circuit court abused its discretion when it made insufficient
findings of fact to conclude that Batalona could afford to pay
the amount of restitution ordered. The ICA also held that the
circuit court did not err in concluding that Apprendi did not
apply to Batalona’s sentence. Pursuant to its Memorandum
Opinion, the ICA affirmed the 7/17/15 Order with respect to the
Apprendi issue, vacated the 4/27/16 Order, and remanded for
further proceedings.
In Batalona’s application for writ of certiorari,
Batalona presented one question: “[w]hether the ICA gravely
erred in concluding that Apprendi does not apply to Batalona’s
sentence.” (Underline added and footnote omitted).
In Flubacher, we recently stated:
[W]e hold that the line of demarcation is Apprendi, not Booker or Cunningham, in determining whether extended term sentences imposed without jury findings are subject to collateral attack. Accordingly, we correct the conclusion in Loher and subsequent opinions that the legal landscape only became clear after Apprendi (2000), Blakely (2004), and Booker (2005), were taken together. To the extent that our
5 ***NOT FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
prior opinions and the ICA’s prior opinions are contrary to our holding, they are now overruled. Here, a judge, and not a jury, made the required finding that Flubacher’s extended term sentence was necessary for the protection of the public. That required finding exposed the defendant to a greater punishment than that authorized by the jury’s guilty verdict. Therefore, Flubacher’s extended term sentences were imposed in an illegal manner because they violate Apprendi.
Flubacher v. State, 142 Hawai#i 109, 118-19, 414 P.3d 161, 170-71
(2018) (citations, quotation marks, footnote, and brackets omitted).
Here, a judge, and not a jury, determined in 2004 that
Batalona’s extended term sentence was necessary for the
protection of the public, which is contrary to our holding in
Flubacher. Therefore, we conclude that Batalona’s extended term
sentence was imposed in an illegal manner.
For the foregoing reasons, we vacate in part the ICA’s
August 4, 2017 Judgment on Appeal solely as to the extended term
sentence, vacate in part the circuit court’s 7/17/15 Order solely
as to the extended term sentence, vacate in part the circuit
court’s January 9, 2004 Judgment in Cr. No. 03-1-0787 solely as
to the extended term sentence, and remand this case for further
proceedings consistent with this order. Because the other issues
discussed in the ICA’s June 28, 2017 Memorandum Opinion and
August 4, 2017 Judgment on Appeal are not before us, we do not
6 ***NOT FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
disturb the ICA’s conclusions as to those other issues.5
DATED: Honolulu, Hawai#i, June 28, 2018.
William H. Jameson, Jr., /s/ Mark E. Recktenwald for petitioner /s/ Paula A. Nakayama Loren J. Thomas for respondent /s/ Sabrina S. McKenna
/s/ Richard W. Pollack
/s/ Michael D. Wilson
5 The ICA vacated the 4/27/16 Order and remanded to “(1) determine whether Batalona can afford to pay the amount of restitution ordered and, if so, (2) issue appropriate findings and conclusions specifically illustrating that he can afford to pay that amount.”