NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
Electronically Filed Intermediate Court of Appeals CAAP-XX-XXXXXXX 15-MAY-2026 08:20 AM Dkt. 59 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAIʻI
KYLE J. LIVINGSTON, Petitioner-Appellant, v. STATE OF HAWAIʻI, Respondent-Appellee.
APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT (CASE NO. 2PR171000006 (2PC980000181))
SUMMARY DISPOSITION ORDER (By: Wadsworth, Presiding Judge, McCullen and Guidry, JJ.)
Petitioner-Appellant Kyle J. Livingston appeals from
the November 25, 2024 "Findings of Fact, Conclusions of Law and
Order" (Denial Order), dismissing without a hearing his amended
petition for post-conviction relief under Rule 40 of the Hawaiʻi
Rules of Penal Procedure (HRPP), entered by the Circuit Court of
the Second Circuit (Rule 40 Court). 1 (Formatting altered.)
On appeal, Livingston contends the Rule 40 Court erred
by dismissing his claims regarding (1) extended term sentencing,
1 The Honorable Kirstin M. Hamman entered the Denial Order. NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
(2) mandatory minimum or repeat offender sentencing, and
(3) consecutive term sentencing.
Upon careful review of the record and the briefs
submitted by the parties, and having given due consideration to
the issues raised and the arguments advanced, we resolve this
appeal as discussed below and affirm.
Twenty-eight years ago, in November 1998, the circuit
court (Sentencing Court) held a hearing on Respondent-Appellee
the State of Hawaiʻi's motions for extended term sentencing, a
mandatory minimum, and consecutive sentencing. 2 At the start of
the hearing, the State explained that it included as exhibits
"originals of certified copies of the felony complaint filed on
November 30, 1992 in case Number 970550, certified copy of
registration, change of address, certified copy of his abstract
judgment and certified copy of his guilty plea in the Superior
Court" of California.
Livingston objected based on hearsay and
identification and requested an evidentiary hearing. An
evidentiary hearing followed.
The State offered the testimony of Jess Lopez,
Livingston's parole agent from the State of California
Department of Corrections. Livingston did not object to Lopez
2 The Honorable Artemio C. Baxa presided over the Sentencing Court.
2 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
testifying or to any part of Lopez's testimony, and elected not
to cross-examine Lopez.
The State also offered into evidence the records from
Livingston's California case as Exhibits S-1, S-2, S-3, and S-4.
Livingston objected for "lack of foundation" but made no
specific objection as to a problem with foundation.
The Sentencing Court granted the State's motions and
sentenced Livingston to a one-year term of imprisonment in
Counts One, Two, and Three, and an extended term of imprisonment
in Counts Five and Six, with all terms to run consecutively for
a total of forty-three years. 3 The Sentencing Court also ordered
a mandatory minimum of three years and four months without the
possibility of parole in Counts Five and Six.
Livingston appealed but did not challenge the
admission of Exhibits S-1 through S-4 or Lopez's testimony. The
Hawaiʻi Supreme Court affirmed. State v. Livingston, 92 Hawaiʻi
634, 994 P.2d 566, No. 22220, 1999 WL 1314872 (Haw. Dec. 8,
1999) (SDO).
In 2005, Livingston filed his first Rule 40 petition,
which was denied. Livingston did not appeal.
3 Livingston was convicted by jury of two counts of Assault in the Third Degree in violation of Hawaiʻi Revised Statutes (HRS) § 707-712(1)(a) (1993) (Counts One and Three), one count of Unlawful Imprisonment in the Second Degree in violation of HRS § 707-722(1) (1993) (Count Two), and two counts of Sexual Assault in the Second Degree in violation of HRS § 707- 731(1)(a) (Supp. 1997) (Counts Five and Six).
3 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
In 2017, Livingston filed a second Rule 40 petition,
which was denied. Livingston appealed. This court partially
vacated the dismissal of Livingston's Rule 40 petition without a
hearing and remanded the case to allow Livingston to assert
before the Rule 40 Court illegal sentencing arguments that he
raised for the first time on appeal. Livingston v. State
(Livingston II), 152 Hawaiʻi 163, 523 P.3d 1077, No. CAAP-18-
0000566, 2023 WL 1097727 (App. Jan. 30, 2023) (mem. op.).
On remand, Livingston (represented by counsel) filed
his Amended HRPP Rule 40 Petition.
First, Livingston challenged the imposition of an
extended term of imprisonment on evidentiary grounds.
Livingston further argued that Apprendi v. New Jersey, 530 U.S.
466, 476 (2000), should be applied retroactively, and even if
Apprendi was not applied retroactively, Livingston argued the
imposition of an extended term without express findings that the
necessity of the extended term was proven beyond a reasonable
doubt violated then-controlling law under State v. Huelsman, 60
Haw. 71, 588 P.2d 394 (1978) and State v. Okumura, 78 Hawaiʻi
383, 894 P.2d 80 (1995).
Second, Livingston challenged the imposition of
mandatory minimum sentencing as a repeat offender, arguing his
sentence violated the requirement in State v. Caldeira, 61 Haw.
285, 290, 602 P.2d 930, 933 (1979), that "unless conceded by the
4 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
defendant, the government is required to show, in [repeat
offender] proceedings [under Hawaiʻi Revised Statutes (HRS)
§ 706-606.5 (1976)], that he was represented by counsel, or had
waived such representation, at the time of his prior
conviction." Livingston asserted that there was insufficient
evidence in the record on appeal that he was in fact represented
due to the unavailability of the original certified copy of the
plea, Exhibit S-4.
Third, Livingston challenged the imposition of
consecutive terms, arguing the Sentencing Court's sentencing
decisions were based on "unsubstantiated claims" by the State
and Lopez and, thus, the Sentencing Court "plainly erred."
The Rule 40 Court dismissed Livingston's Amended HRPP
Rule 40 Petition without a hearing, concluding the claims were
patently frivolous and without a trace of support in the record
and the allegations otherwise did not present a colorable claim.
Livingston timely appealed.
The denial of an HRPP Rule 40 petition is reviewed de
novo. E.g., Rapozo v. State, 150 Hawaiʻi 66, 77, 497 P.3d 81, 92
(2021).
If a petition alleges facts that if proven would entitle the petitioner to relief, the court shall grant a hearing which may extend only to the issues raised in the petition or answer. However, the court may deny a hearing if the petitioner's claim is patently frivolous and is without trace of support either in the record or from other evidence submitted by the petitioner.
5 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
HRPP Rule 40(f). "The question on appeal of a denial of a
Rule 40 petition without a hearing is whether the trial record
indicates that Petitioner's application for relief made such a
showing of a colorable claim as to require a hearing before the
lower court." Dan v. State, 76 Hawaiʻi 423, 427, 879 P.2d 528,
532 (1994) (emphasis omitted) (quoting State v. Allen, 7 Haw.
App. 89, 92-93, 744 P.2d 789, 793 (App. 1987)).
(1) Extended Term Sentence. On appeal, Livingston
first contends the Rule 40 Court "erred in dismissing [his]
claims regarding extended terms sentencing." (Formatting
altered.) To support this contention, Livingston challenges the
admission of evidence, notably the State's Exhibit S-3 and the
testimony of the State's witness, Lopez, for lack of foundation. 4
Under the multiple offender subsection of HRS § 706-
662 (Supp. 1996) for extended terms of imprisonment, 5 the
Sentencing Court was required to make a finding that an extended
4 We note that Livingston also asserts Apprendi should be retroactively applied to his case. Apprendi requires 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." Apprendi, 530 U.S. at 490. This court in Livingston II determined that the Apprendi issue was previously raised and rejected. Livingston II, 2023 WL 1097727, at *7 n.15. Thus, we do not address this issue. See HRPP Rule 40(a)(3) ("Rule 40 proceedings shall not be available and relief thereunder shall not be granted where the issues sought to be raised have been previously ruled upon or were waived.").
5 Livingston also challenges the Sentencing Court's determination that he was a persistent offender under HRS § 706-662(1). Based on our decision below, and because the multiple offender and persistent offender subsections are alternate means of imposing an extended term of imprisonment, we need not address Livingston's arguments regarding the Sentencing Court's persistent offender determination.
6 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
sentence was "necessary for protection of the public" where the
defendant was "being sentenced for two or more felonies":
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[.]
Here, the record is uncontroverted that Livingston was
convicted of, and sentenced for, two counts of Sexual Assault in
the Second Degree, a class B felony. HRS § 707-731(2)
(Supp. 1997). In addition, referring to the California case,
the Sentencing Court found there was a need to protect the
public.
To the extent Livingston challenges the admission of
the State's Exhibit S-3, it is well-settled law that "a 'lack of
foundation' objection generally is insufficient to preserve
foundational issues for appeal because such an objection does
not advise the trial court of the problems with the foundation"
and that "a specific objection is required to inform the court
of the error unless, 'based on the context, it is evident what
the general objection was meant to convey.'" State v. Spies,
7 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
157 Hawaiʻi 75, 91, 575 P.3d 708, 724 (2025) (quoting State v.
Long, 98 Hawaiʻi 348, 353, 48 P.3d 595, 600 (2002)).
The State offered into evidence the records from
Livingston's California case, Exhibits S-1, S-2, S-3, and S-4.
specific objection as to a problem with foundation. And
Livingston did not object to Lopez testifying, or to any part of
Lopez's testimony, and elected not to cross-examine Lopez. On
direct appeal, Livingston did not challenge the admission of
Exhibits S-1 through S-4 or Lopez's testimony. Thus, any
challenge to the admission of Exhibits S-1 through S-4 and
Lopez's testimony is waived. See HRPP Rule 40(a)(3) ("Rule 40
proceedings shall not be available and relief thereunder shall
not be granted where the issues sought to be raised have been
previously ruled upon or were waived.").
Livingston also argues that the Sentencing Court
failed to state that the "motions were proven to the court
'beyond a reasonable doubt.'" Prior to the evidentiary hearing,
Livingston argued that the State bore the burden to prove prior
convictions beyond a reasonable doubt. Following the
evidentiary hearing, the Sentencing Court stated there was "no
question" as to Livingston's two felonies. The Sentencing Court
also explained its reasons for determining that extended term
sentencing was "necessary for protection of the public."
8 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
Although it is true the Sentencing Court did not use the words
"beyond a reasonable doubt," when considering the Sentencing
Court's other statements, Livingston's petition does not show
this fact "would change" his extended term sentencing. See Dan,
76 Hawaiʻi at 427, 879 P.2d at 532 (quoting Allen, 7 Haw. App. at
92, 744 P.2d at 792) ("To establish a colorable claim, the
allegations of the petition must show that if taken as true the
facts alleged would change the verdict, however, a petitioner's
conclusions need not be regarded as true.").
Because the record shows Livingston was convicted of
two felonies, the Sentencing Court found an extended term
necessary for the protection of the public, and Livingston
waived any objection to the admission of evidence, the Rule 40
Court did not err in dismissing Livingston's extended sentencing
claim without a hearing.
(2) Mandatory Minimum Sentence. Livingston next
argues that the Rule 40 Court "erred in dismissing [his] claims
regarding mandatory minimum or repeat offender sentencing."
(Formatting altered.) Livingston explains that the Sentencing
Court referred to the State's Exhibit S-4 in determining that he
was represented by counsel, Eric St. John, when entering pleas
for his California convictions. Livingston then argues that
Exhibit S-4 "is no longer available to examine and to assess
what the trial court based its impression upon."
9 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
HRS § 706-606.5 (1993 & Supp. 1997) provides for "a
mandatory minimum period of imprisonment without possibility of
parole" under certain circumstances. However, "unless conceded
by [defendants], the government is required to show, in
[mandatory minimum] proceedings, that [the defendants were]
represented by counsel, or had waived such representation, at
the time of [their] prior conviction." Caldeira, 61 Haw. at
290, 602 P.2d at 933.
During the evidentiary hearing, the Sentencing Court
referred to Exhibit S-4 and noted, "Under this no contest plea
it appears that [Livingston] entered pleas for the offenses
indicated therein on November 30, 1992, and that he was
represented by counsel. The counsel's name is Eric St. John."
The Sentencing Court also referred to Exhibit S-3 and stated,
"The Court would like to put on the record that in here it is
stated, also, that on the date of November 30, 1992 when
[Livingston] was sentenced, he was represented by counsel, Eric
St. John." Livingston did not object to these statements.
In any event, the record on appeal contains a copy of
the California plea. Examination of the California plea shows
that, at the time of his prior conviction, Livingston was
represented by counsel and Livingston points to nothing to
controvert this fact.
10 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
Thus, the Rule 40 Court did not err in dismissing
Livingston's mandatory minimum sentencing claim without a
hearing.
(3) Consecutive Sentence. Finally, Livingston
contends the Rule 40 Court "erred in dismissing [his] claims
regarding consecutive terms sentencing." (Formatting altered.)
Livingston asserts "[t]he State got from the trial court what it
could not get from the jury, i.e., sentencing consistent with A
felonies." Livingston argues that the Sentencing Court "based
its sentencing decisions on unsubstantiated claims made by the
[deputy prosecuting attorney] and, also, the parole agent
witness (Mr. Jess Lopez)."
As discussed above, Livingston did not object to any
portion of Lopez's testimony and, thus, any challenge to the
admission of Lopez's testimony is waived.
We note, in State v. Hussein, 122 Hawaiʻi 495, 510, 229
P.3d 313, 328 (2010), the Hawaiʻi Supreme Court adopted the rule
that, "after the filing date of the judgment herein, circuit
courts must state on the record at the time of sentencing the
reasons for imposing a consecutive sentence." (Emphasis added.)
There, the court expressly rejected retroactive application of
its newly adopted rule. See id. at 518 n.31, 229 P.3d at 336
n.31. Because Livingston was sentenced prior to the decision
11 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
handed down in Hussein, its rule has no application here. See
id.
Instead, prior to Hussein, controlling caselaw did not
require specific findings to support the imposition of
consecutive sentencing. State v. Lau, 73 Haw. 259, 263, 831
P.2d 523, 525 (1992) ("Although there is no requirement for the
sentencing court to state its reasons for imposing sentence, we
have urged and strongly recommended that the sentencing court do
so and to also state that sentencing alternatives were
considered, especially when a young adult defendant is
sentenced."); State v. Sinagoga, 81 Hawaiʻi 421, 428-29, 918 P.2d
228, 235-36 (App. 1996).
Courts previously held that "[d]iscretionary use of
consecutive sentences [was] properly imposed in order to deter
future criminal behavior of the defendant, to insure public
safety, and to assure just punishment for the crimes committed."
State v. Tauiliili, 96 Hawaiʻi 195, 199, 29 P.3d 914, 918 (2001)
(citing State v. Gaylord, 78 Hawaiʻi 127, 146-47, 890 P.2d 1167,
1186-87 (1995)). "Absent clear evidence to the contrary, it is
presumed that a sentencing court will have considered all
factors before imposing concurrent or consecutive terms of
imprisonment under HRS § 706-606 (1993)." Id. (citing Sinagoga,
81 Hawaiʻi at 428, 918 P.2d at 236).
12 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
The Sentencing Court stated it "considered all the
reasons of 706-606" as well as "considered and given credence
to" Exhibits S-1 through S-4, including the plea and abstract of
judgment, which the trial court admitted into evidence. The
Sentencing Court then explained its reasons for imposing its
sentence, including the consecutive sentence:
The Court in imposing the sentence feels that it is necessary to achieve penal and justice in this case, the penal objectives of retribution and deterrence for the protection of the public, that the Court in this case imposes or grants the request of the prosecutor for imposition of mandatory minimum term of imprisonment and grants the motion for extended term, as well as consecutive sentencing.
With the previous record that has been presented to the Court within the -- committed in California, convicted and sentenced on November 30, 1992, wherein of assault with intent to rape, assault with deadly weapon, burglary in the first degree, forcible rape and forcible rape, when taken into account with the nature of the offense that was committed in this case which conviction of [sexual] assault in the second degree, two counts within a period of less than ten years, there is an indication there is a need that the public be protected. There's a need for punishment, retribution and deterrence.
It is clear that the Defendant needs to be incarcerated for sometime. To really think that doing the things for which he has been convicted has endangered the community and, perhaps, for his future general well-being as well, he's got to be able to sit down and realize what he had committed is a serious offense against the public.
One of the factors that I have considered is he is still young. If he is allowed within a short time to be roaming around, there is no question that what had happened with other women would be endangered. It is needed that he be incarcerated for sometime.
The reasons given by the Sentencing Court in imposing
its sentence, including consecutive sentences, were supported by
Exhibits S-1 through S-4 and Lopez's testimony. Nothing in the
record suggests that the imposition of consecutive sentences was
13 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
based on consideration of "unsubstantiated claims," and
Livingston points to nothing to controvert this undisputed
record. Thus, the Rule 40 Court did not err in dismissing
Livingston's consecutive sentence claim without a hearing.
Based on the foregoing, we affirm the November 25,
2024 Denial Order.
DATED: Honolulu, Hawaiʻi, May 15, 2026.
On the briefs: /s/ Clyde J. Wadsworth Presiding Judge Te-Hina Ickes, for Petitioner-Appellant. /s/ Sonja M.P. McCullen Associate Judge Renee Ishikawa Delizo, Deputy Prosecuting Attorney, /s/ Kimberly T. Guidry County of Maui, Associate Judge for Respondent-Appellee.