LAWV m
N'OT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
§ No. 29961 IN THE INTERMEDIATE coURT oF APPEALS
oF THE STATE oF HAWAI‘I
WY
GERALD vILLANUEvA, Petitioner-Appellant, v.; §§
STATE OF HAWAfI, Respondent-Appellee
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT (S.P.P. NO. 09-1-OOl8 (Cr. NO. 05-1-O946))
SUMMARY DISPOSITION ORDER
(By: Nakamura, C.J., Foley and Leonard, JJ.)
Petitioner-Appellant Gerald villanueva (villanueva) appeals from the Order Denying Petition to vacate, Set Aside, or Correct Judgment or to Release Petitioner from Custody (Order) filed on July l4, 2009 in the Circuit Court of the First Circuit (circuit court).1
In the underlying criminal case, villanueva entered a guilty plea to Forgery in the Second Degree, Hawaii Revised Statutes § 708-852 (Supp. 2009). The circuit court sentenced villanueva to five years of imprisonment with a mandatory minimum of one year and eight months as a repeat offender. villanueva did not file a direct appeal from his conviction.
On May l3, 2009, pursuant to Hawafi Rules of Penal Procedure (HRPP) Rule 40, villanueva filed a Petition for Post- Conviction Relief2 (First Petition), alleging three grounds. villanueva alleged that the Hawafi Paroling Authority (HPA) and its Chairman, Albert Tufono, (collectively, Tufono) violated villanueva's rights to be free from cruel and unusual punishment, to a fair hearing, and to equal protection and due process under
the United States and Hawafi Constitutions.
1 The Honorable Dexter D. Del Rosario presided.
2 A Petition for Post~Conviction Relief is also known as a Petition to
vacate, Set Aside, or Correct Judgment or to Release Petitioner from Custody.
NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
The circuit court deemed the First Petition a non-
conforming petition and ordered villanueva to file a conforming
petition within thirty days. On May 20, 2009,
conforming Petition for Post-Conviction Relief
villanueva filed a
(Second Petition).
In his Second Petition, villanueva referenced the three grounds
and facts stated in his First Petition as grounds for relief in
the Second Petition,
villanueva also alleged a fourth ground:
the increase in his punishment violated the ex post facto
prohibition of the United States Constitution. On June 2, 2009, Second Petition. relief as the First Petition, facts.
grounds for relief:
A. Ground One - to the U.S.
cruel and unusual punishment inflicted,
Amend U.S. Const. Due Process.
Supporting Facts: On May 25,
villanueva filed an Amendment to the The Amendment set forth the same grounds for but included additional supporting
In the Amendment, villanueva stated the following three
[Tufono] violated my 8th Amendment rights Constitution and Hawaii Constitution to
and the 14
I was sentenced to 5 years with
a mandatory of 20 months by Judge Dexter Del Rosario,
First Circuit Court. Board to set a minimum sentence.
stated that I had an escape in 2001 to CR.
I have also seen the Parole The board members
Ol»l~O2l7
that they cannot program me to a minimum facility.
Means,
because of my escape to do any program. So the board members recommended
"work furlough."
that they cannot send me to a minimum facility
This includes
that I do the clean and sober in Halawa Correction
Facility,
and do cognitive skills and parenting.
This
is my recommended program that was originally set by
HPA, members.
The Parole Board Members set my minimum sentence of
punishment to 30 months, of 30 months, consideration.
After completing my sentence I have seen the Parole Board for parole On Nov. 2007 my parole denied.
I have
completed all my recommended program and met all the
criteria for parole.
I have produced my certificate for the Salvation Army
level II [sic] in~house treatment, and parenting. programs. [Tufono] added:
furlough and I will see you in one year."
cognitive skills I have completed all of my recommended "I want you to do work
waited patiently for one year to go to a minimum
facility, but [Tufono]
parole consideration is on Aug. 2008.
completing my punishment of one year sentence, "you did not send me to a minimum facility
to [Tufono]
did not send me.
My next After I said
NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
to do work furlough." He stated: "We will try this again, I will see you in 6 months." My concern now is, doing 6 more months for nothing. So I asked: [Tufono] what if, I am not in work furlough in 6 months, he stated that "I will parole you." My next parole consideration will be Feb. 2009. After completing my 6 months sentence of punishment [Tufono] denied my parole and punish me to 9 more months of punishment. My next parole consideration will be Nov. 2009. I will be doing a total of 57 months from what was suppose[d] to originally be 30 months. This is a violation of my 8th Amendment right to cruel and unusual punishment and by punishing me to multiple and excessive minimum sentence.
B. Ground two ~ [Tufono] violated my 6th Amendment rights to be an impartial decision maker and to have a fair hearing under Article I, section 14, State Constitution and the 14 Amend, U.S. Const. Due Process and Equal Protection of the laws,
Supporting Facts: [I] was denied a fair hearing, that is guaranteed under Article I, section 14 State Constitution and 6th Amendment U.S. Constitution. [Tufono] violated a similar form of my 6th Amendment rights by not giving me a fair hearing by an impartial parole Board member.
C. Ground three - [Tufono] violated my 14 Amendment right to the U.S. Constitution and Article I, section 5 State Constitution.
Supporting Facts: [Tufono] violated my 14 Amendment U.S. Constitution and Article I, section 5 State Constitution that is guaranteed a right, nor shall any state deprive any person of life, liberty, or pursuit of happiness, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws; that is guaranteed a right under State and Federal Constitution. 1 have seen inmates go home with high misconduct and without doing any programs. what is good for one inmate is good for another inmate is also good for villanueva of equal rights protection and Due Process of law under 14 Amendment U.S. Constitution and Article I, section 5, State Constitution.
Apprendi vs. New Jersey (2000) State of Hawaii vs. Miti Maugaotega Jr.
The 14 Amendment right protect petitioner villanueva of Equal Rights what was good for Apprendi is good for Miti Maugaotega Jr. is good for villanueva under the 14 Amendment Equal Rights protection of the laws, United States Supreme Court and the Supreme Court of Hawaii upholds this law to all convicted felons in the United States and Hawaii.
(Emphasis in original.) ' On appeal, villanueva states ten "Questions Presented
for Review" and several incoherent reasons for granting his
NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
appeal, In his tenth Question Presented, villanueva requests this court "[t]o review all grounds and supporting facts on Rule 40 HRPP . "
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LAWV m
N'OT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
§ No. 29961 IN THE INTERMEDIATE coURT oF APPEALS
oF THE STATE oF HAWAI‘I
WY
GERALD vILLANUEvA, Petitioner-Appellant, v.; §§
STATE OF HAWAfI, Respondent-Appellee
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT (S.P.P. NO. 09-1-OOl8 (Cr. NO. 05-1-O946))
SUMMARY DISPOSITION ORDER
(By: Nakamura, C.J., Foley and Leonard, JJ.)
Petitioner-Appellant Gerald villanueva (villanueva) appeals from the Order Denying Petition to vacate, Set Aside, or Correct Judgment or to Release Petitioner from Custody (Order) filed on July l4, 2009 in the Circuit Court of the First Circuit (circuit court).1
In the underlying criminal case, villanueva entered a guilty plea to Forgery in the Second Degree, Hawaii Revised Statutes § 708-852 (Supp. 2009). The circuit court sentenced villanueva to five years of imprisonment with a mandatory minimum of one year and eight months as a repeat offender. villanueva did not file a direct appeal from his conviction.
On May l3, 2009, pursuant to Hawafi Rules of Penal Procedure (HRPP) Rule 40, villanueva filed a Petition for Post- Conviction Relief2 (First Petition), alleging three grounds. villanueva alleged that the Hawafi Paroling Authority (HPA) and its Chairman, Albert Tufono, (collectively, Tufono) violated villanueva's rights to be free from cruel and unusual punishment, to a fair hearing, and to equal protection and due process under
the United States and Hawafi Constitutions.
1 The Honorable Dexter D. Del Rosario presided.
2 A Petition for Post~Conviction Relief is also known as a Petition to
vacate, Set Aside, or Correct Judgment or to Release Petitioner from Custody.
NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
The circuit court deemed the First Petition a non-
conforming petition and ordered villanueva to file a conforming
petition within thirty days. On May 20, 2009,
conforming Petition for Post-Conviction Relief
villanueva filed a
(Second Petition).
In his Second Petition, villanueva referenced the three grounds
and facts stated in his First Petition as grounds for relief in
the Second Petition,
villanueva also alleged a fourth ground:
the increase in his punishment violated the ex post facto
prohibition of the United States Constitution. On June 2, 2009, Second Petition. relief as the First Petition, facts.
grounds for relief:
A. Ground One - to the U.S.
cruel and unusual punishment inflicted,
Amend U.S. Const. Due Process.
Supporting Facts: On May 25,
villanueva filed an Amendment to the The Amendment set forth the same grounds for but included additional supporting
In the Amendment, villanueva stated the following three
[Tufono] violated my 8th Amendment rights Constitution and Hawaii Constitution to
and the 14
I was sentenced to 5 years with
a mandatory of 20 months by Judge Dexter Del Rosario,
First Circuit Court. Board to set a minimum sentence.
stated that I had an escape in 2001 to CR.
I have also seen the Parole The board members
Ol»l~O2l7
that they cannot program me to a minimum facility.
Means,
because of my escape to do any program. So the board members recommended
"work furlough."
that they cannot send me to a minimum facility
This includes
that I do the clean and sober in Halawa Correction
Facility,
and do cognitive skills and parenting.
This
is my recommended program that was originally set by
HPA, members.
The Parole Board Members set my minimum sentence of
punishment to 30 months, of 30 months, consideration.
After completing my sentence I have seen the Parole Board for parole On Nov. 2007 my parole denied.
I have
completed all my recommended program and met all the
criteria for parole.
I have produced my certificate for the Salvation Army
level II [sic] in~house treatment, and parenting. programs. [Tufono] added:
furlough and I will see you in one year."
cognitive skills I have completed all of my recommended "I want you to do work
waited patiently for one year to go to a minimum
facility, but [Tufono]
parole consideration is on Aug. 2008.
completing my punishment of one year sentence, "you did not send me to a minimum facility
to [Tufono]
did not send me.
My next After I said
NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
to do work furlough." He stated: "We will try this again, I will see you in 6 months." My concern now is, doing 6 more months for nothing. So I asked: [Tufono] what if, I am not in work furlough in 6 months, he stated that "I will parole you." My next parole consideration will be Feb. 2009. After completing my 6 months sentence of punishment [Tufono] denied my parole and punish me to 9 more months of punishment. My next parole consideration will be Nov. 2009. I will be doing a total of 57 months from what was suppose[d] to originally be 30 months. This is a violation of my 8th Amendment right to cruel and unusual punishment and by punishing me to multiple and excessive minimum sentence.
B. Ground two ~ [Tufono] violated my 6th Amendment rights to be an impartial decision maker and to have a fair hearing under Article I, section 14, State Constitution and the 14 Amend, U.S. Const. Due Process and Equal Protection of the laws,
Supporting Facts: [I] was denied a fair hearing, that is guaranteed under Article I, section 14 State Constitution and 6th Amendment U.S. Constitution. [Tufono] violated a similar form of my 6th Amendment rights by not giving me a fair hearing by an impartial parole Board member.
C. Ground three - [Tufono] violated my 14 Amendment right to the U.S. Constitution and Article I, section 5 State Constitution.
Supporting Facts: [Tufono] violated my 14 Amendment U.S. Constitution and Article I, section 5 State Constitution that is guaranteed a right, nor shall any state deprive any person of life, liberty, or pursuit of happiness, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws; that is guaranteed a right under State and Federal Constitution. 1 have seen inmates go home with high misconduct and without doing any programs. what is good for one inmate is good for another inmate is also good for villanueva of equal rights protection and Due Process of law under 14 Amendment U.S. Constitution and Article I, section 5, State Constitution.
Apprendi vs. New Jersey (2000) State of Hawaii vs. Miti Maugaotega Jr.
The 14 Amendment right protect petitioner villanueva of Equal Rights what was good for Apprendi is good for Miti Maugaotega Jr. is good for villanueva under the 14 Amendment Equal Rights protection of the laws, United States Supreme Court and the Supreme Court of Hawaii upholds this law to all convicted felons in the United States and Hawaii.
(Emphasis in original.) ' On appeal, villanueva states ten "Questions Presented
for Review" and several incoherent reasons for granting his
NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
appeal, In his tenth Question Presented, villanueva requests this court "[t]o review all grounds and supporting facts on Rule 40 HRPP . "
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 resolve villanueva's points of error as follows:
(1) To the extent that villanueva's Questions Presented one through nine, grounds, and supporting facts on appeal were not made in the Second Petition, they are denied. HawaFi Rules of Appellate Procedure Rule 28(b)(4).
(2) villanueva is not entitled to parole after expiration of his thirty-month minimum sentence. The maximum sentence of five years for Forgery in the Second Degree does not constitute cruel and unusual punishment because it is not so disproportionate to the conduct proscribed and of such duration as to "shock the conscience of reasonable persons or to outrage the moral sense of the community." State v. Kumukau, 71 Haw. 218, 227, 787 P.2d 682, 687 (1990) (internal quotation marks and citation omitted).
(2) villanueva's claim that he was denied a fair hearing is conclusory and without any supporting facts as to how his hearing was unfair or how Tufono was not impartial. Therefore, the claim is without merit.
(3) villanueva's claim that he was treated differently than other similarly situated inmates by being denied parole while other inmates who had committed high misconduct were paroled is unsupported by any specific facts such as specific inmate names and records of similarly situated inmates; Therefore, his claim is conclusory and without merit. villanueva was not sentenced to an extended term, but rather to a mandatory minimum sentence as a repeat offender. Therefore, the holdings
in Apprendi v. New Jersev, 530 U.S. 466, 120 S. Ct. 2348 (2000),
NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
and State v. Maugaotega, 115 Hawafi 432, 168 P.3d 562 (2007), do not apply. See Loher v. State, 118 Hawafi 522, 534 n.8, 193 P.3d 438, 450 n.8 (App. 2008), cert. dismissed, No. 27844, 2009 wL 2386233 (Hawai‘i Aug. 5, 2009), (citing Apprendi, 530 U.s. at 490, 120 S. Ct. at 2362-63).
Therefore,
IT IS HEREBY ORDERED that the Order Denying Petition to vacate, Set Aside, or Correct Judgment or to Release Petitioner from Custody filed on July 14, 2009 in the Circuit Court of the First Circuit is affirmed.
DATED: Honolulu, Hawafi, August 31, 20l0.
On the briefs:
Gerald villanueva, _ Petitioner-Appellant pro se. l///f z § Diane K. Taira and 1 Chief Judge
Darcy H. Kishida, Deputy Attorneys General,
for ReSpOndent~APBellee. (z;£Od%§%;> .,:}éz:`\
Associate Judge