Livingston v. State

152 Hawai‘i 163

523 P.3d 1077 (Table)

Kyle J. LIVINGSTON, Petitioner-Appellant,

v.STATE of Hawai‘i, Respondent-Appellee

NO. CAAP-18-0000566

Intermediate Court of Appeals of Hawai‘i.

January 30, 2023.

MEMORANDUM OPINION

Petitioner-Appellant Kyle Livingston (Livingston ), appeals from the Findings of Fact (FOFs ), Conclusions of Law (COLs ), and Order filed and entered by the Circuit Court of the Second Circuit (Circuit Court ) on May 31, 2018 (Order ), dismissing Livingston's Hawai‘i Rules of Penal Procedure (HRPP ) Rule 40 Petition (Second HRPP Rule 40 Petition ) without a hearing.¹

On appeal, Livingston contends the Circuit Court erroneously dismissed: (1) Claim 6 because (a) Livingston's extended sentence was unconstitutional, and (b) there was insufficient evidence for the trial court² to impose the extended sentence (collectively, extended sentencing argument ); (2) Claim 7 because there was insufficient evidence for the trial court to impose a mandatory minimum term of imprisonment as a repeat offender upon Livingston (repeat offender sentencing argument ); (3) Claim 9 because (a) the jury instruction on the offense of second-degree sexual assault was deficient, and (b) the trial court erred in failing to instruct the jury regarding included offenses of sexual assault in the third and fourth degrees (collectively, jury instructions argument ); and (4) Claim 10 because Livingston's counsel did not request that the jury be polled and because the cumulative errors require reversal.³

We hold that Livingston's new arguments on appeal challenging the repeat offender, extended term, and consecutive sentences he received are not precluded by waiver, but must still be properly raised before the Circuit Court. We vacate in part only as to these claims alleging illegal sentencing, and remand for Livingston to amend his petition to properly raise these claims before the Circuit Court.

I. BACKGROUND

1998 Trial Court Proceedings

On March 30, 1998, the State charged Livingston with two counts of third-degree assault, two counts of first-degree sexual assault, one count of kidnapping, and one count of second-degree terroristic threatening (Complaint ). Following a 1998 jury trial, Livingston was found guilty as charged of two counts of third-degree assault, the included offense of second-degree unlawful imprisonment, and two counts of the included offenses of second-degree sexual assault. He was found not guilty of second-degree terroristic threatening.

At the November 18, 1998 sentencing, the trial court heard arguments on Respondent-Appellee State of Hawai‘i's (State ) motions for extended term sentencing under HRS § 706-662⁴ and repeat offender sentencing under HRS § 706-606.5.⁵

With regard to the extended sentencing argument, the State informed the trial court that the maximum term was eight years for the prior out-of-state conviction, referring to its exhibits that included the California offense statute, and certified copies of California court documents. Livingston objected on the grounds of hearsay, lack of identification, and requested an evidentiary hearing.⁶

An evidentiary hearing was then had, in which the State presented evidence through Jess Lopez (Lopez ), Livingston's parole officer in California, who testified as to the nature, date, and case number of Livingston's California convictions, authenticated State's Exhibit 3 (certified copy of the abstract of the judgment), identified Livingston in the courtroom as his parolee, testified that Livingston was over eighteen at the time of the convictions, and testified as to the date Livingston's parole ended. The State introduced the records from Livingston's California case into evidence, as Exhibits S-1, S-2, S-3, and S-4. The trial court received the State's exhibits into evidence over Livingston's "lack of foundation" objection.⁷

Thereafter, the trial court took judicial notice of, among other things, Exhibit S-1 being a complaint against Livingston, containing charges arising from acts against two different women, and Exhibit S-4 being a no contest plea dated November 30, 1992, detailing the acts and dates of the crimes against the two women, and establishing that Livingston was represented by counsel in the California case. The trial court granted the State's request for repeat offender sentencing under HRS § 706-606.5(1)(a)(iii), finding that Livingston qualified for a mandatory minimum term of imprisonment of three years, four months based on one prior conviction and the two class B felony convictions for second-degree sexual assault.

Next, the trial court addressed the State's motion for extended terms sentencing under HRS § 706-662. In opposition, Livingston argued that there was no evidence that he had two prior felony convictions, and that Livingston only had "one conviction in 1992, albeit against two complainants ...." The trial court agreed with the State's distinction between the definition of prior "conviction" under the repeat offender provision, HRS § 706-606.5(6)(a) (providing that multiple counts in a single complaint are considered a single prior conviction), and the extended term provision, HRS § 706-662(1) (providing that prior conviction means "two felonies committed at different times"). The trial court determined that for purposes of HRS § 706-662(1), "[t]here is no question here [that Livingston] has previously been convicted of two felonies committed at different times when he was eighteen years of age or older as shown by the documents admitted in evidence." The trial court found that Livingston qualified as a persistent and multiple offender under HRS § 706-662 (1) and (4), and that extended term sentencing was necessary to protect the public.⁸

The trial court sentenced Livingston to extended terms of twenty years each for two counts of second-degree sexual assault, and one year each for two counts of third-degree assault and second-degree unlawful imprisonment. All terms were ordered to run consecutively for a total of forty-three years, with a mandatory minimum period of imprisonment of three years and four months without the possibility of parole as a repeat offender.

1999 Direct Appeal

Livingston appealed from the November 18, 1998 judgment on January 19, 1999, contending that (1) the State's opening, closing, and rebuttal arguments constituted prosecutorial misconduct, and (2) the State's cross-examination of Livingston improperly bolstered the complainant's testimony. No sentencing challenges were raised. On December 8, 1999, the Hawai‘i Supreme Court affirmed the trial court's judgment. State v. Livingston, 92 Hawai‘i 634, 994 P.2d 566 (1999).

2005 First HRPP Rule 40 Petition

On October 5, 2005, in Case No. 2PR041000021, Livingston filed a motion to correct illegal sentence, arguing that his extended term of imprisonment was improper based upon Apprendi v. New Jersey, 530 U.S. 466 (2000).⁹ The Circuit Court construed the motion as a HRPP Rule 40 petition (First Rule 40 Petition ), and on November 16, 2005, denied the same on the basis that Apprendi did not apply retroactively. Livingston did not appeal.

2017 Second HRPP Rule 40 Petition

On April 24, 2017, in Case No. 2PR171000006, Livingston, self-represented, filed the Second HRPP Rule 40 Petition in the case underlying this appeal. This second petition alleged in relevant part:

CLAIM 6.

Petitioner has been sentenced to an extended term sentence by a statute which was unconstitutional at the time of sentencing. Further, the time in which the State of Hawaii sought the extended term sentence from the unconstitutional statute in the instant case on Petition (Cr. No. 98-0181) was beyond the time allowed for by law. Petitioner's sentence is illegal and demands to be vacated and dismissed.

CLAIM 7.

Part A

Petitioner was illegally sentenced to mandatory minimum terms in case Cr. No. 98-0181. Circuit Court of the Second Circuit was not the trier of fact and could not solely determine Petitioner's sentencing enhancement whereby Petitioner's case was tried before a jury. Pursuant to the United States Constitution's protections of Due Process and Equal Protection ... Petitioner's mandatory minimum term sentencing is illegal, as is maximum term.

Part B

Illegality exists also in that Petitioner's statutory enhancement of minimum term sentence by the non-trier of fact Hawaii Paroling Authority not only violates Hawaii Revised Statutes § 706-609 ; but, the above named Constitutional protections of Due Process and Equal Protection.

....

CLAIM 9.

The State of Hawaii violated the Fourteenth Amendment of the United States Constitution; Article 1, § 5 of the Hawaii Constitution ; Equal Protection Clause; Res Judicata; Hawaii Rules of Professional Conduct Rule 3.8; and protections against Malicious, Selective and/or Vindictive Prosecution in cases FC 98-0212 and Cr. No. 98-0181. State has committed criminal acts pertaining falsified documents of which judicial misconduct may be a part. Constitutional violations of this magnitude mandate automatic reversal of Petitioner's case and dismissal with prejudice.

CLAIM 10.

The amount of Errors - violations of statutes, violations of rules and violations of constitutional protections, whether harmless or plain occurring in cases FC 98-0212 and Cr. No. 98-0181 ... amount to Cumulative Error. The sheer volume of error is prejudicial and mandates reversal of Petitioner's conviction.

(Original emphases omitted).

On May 31, 2018, the Circuit Court dismissed Livingston's Second HRPP Rule 40 Petition without a hearing. In its FOFs, COLs, and Order, the Circuit Court found that the extended sentencing argument in Claim 6 was raised and ruled upon previously, and thus Claim 6 could not be brought pursuant to HRPP Rule 40(a)(3). With respect to the repeat offender sentencing argument in Claim 7, the Circuit Court found that it was patently frivolous and was not a colorable claim. With respect to the jury instructions argument in Claim 9, the Circuit Court found that Livingston...