State v. Chang , 209 P.3d 195 ( 2009 )

STATE OF HAWAI``I, Plaintiff-Appellee,
v.
MICHAEL CHANG, Defendant-Appellant

No. 28987.

Intermediate Court of Appeals of Hawaii.

June 25, 2009.

On the briefs:

Joseph R. Mottl, for Defendant-Appellant.

Donn Fudo, Deputy Prosecuting Attorney, City and County of Honolulu, for Plaintiff-Appellee.

SUMMARY DISPOSITION ORDER

WATANABE, Acting C.J., FOLEY and LEONARD, JJ.

Defendant-Appellant Michael Chang (Chang) appeals from the Amended Judgment of Conviction and Sentence filed on January 31, 2008 in the Circuit Court of the First Circuit (circuit court).^[1]

On November 8, 2007, a jury convicted Chang of Count I, Promoting a Dangerous Drug in the Second Degree, in violation of Hawaii Revised Statutes (HRS) § 712-1242(1)(b)(i) (Supp. 2006); Counts II, III, and IV, Promoting a Dangerous Drug in the Third Degree, in violation of HRS § 712-1243 (Supp. 2008); Count V, Unlawful Use of Drug Paraphernalia, in violation of HRS § 329-43.5(a) (1993); Count VI, Promoting a Dangerous Drug in the Fourth Degree, in violation of HRS § 712-1246.5 (1993); and Count VII, Driving Without a License, in violation of HRS § 286-102 (Supp. 2004). The circuit court sentenced Chang to ten years of imprisonment on Count I; five years of imprisonment for each of Counts II, III, IV, and V; and one year of imprisonment for each of Counts VI and VII. The circuit court further sentenced Chang, as a repeat offender, to a mandatory minimum term of imprisonment of three years and four months on Count I and a mandatory minimum term imprisonment of one year and eight months on each of Counts II, III, and IV. The circuit court ordered that Count I was to run consecutively to Count II and Counts III through VII were to run concurrently with each other and with Counts I and II.

On appeal, Chang contends (1) the circuit court erred by not dismissing the charges pursuant to Rule 48 of the Hawai``i Rules of Penal Procedure (HRPP) and (2) the imposition of consecutive terms requires a jury finding under State v. Maugaotega, 115 Hawai``i 432, 168 P.3d 562 (2007), and Cunningham v. California, 549 U.S. 270, 127 S. Ct. 856 (2007).

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 Chang's point of error as follows:

(1) On May 14, 2007, Chang's counsel orally requested that the charges against Chang be dismissed. In the written order prepared by Chang's counsel, it states that Chang moved the circuit court to dismiss the charges. Dismissal of charges with or without prejudice is at the discretion of the circuit court. State v. Jackson, 81 Hawai``i 39, 54-55, 912 P.2d 71, 86-87 (1996).

Contrary to Chang's claim, HRPP Rule 48(b)(2) applies. The circuit court dismissed without prejudice the charges against Chang upon his motion. The State re-filed the same charges against Chang on June 27, 2007. Chang's trial commenced on October 31, 2007. Six months had not elapsed between the re-filing of the charges and Chang's trial. Therefore, the circuit court did not err by denying Chang's oral motion to dismiss pursuant to HRPP Rule 48.

(2) Chang's claim that his consecutive sentences without a jury finding of fact violated Maugaotega and Cunningham is without merit. The Hawai``i Supreme Court has held that the imposition of consecutive sentences does not require a jury to make findings of fact. State v. Kahapea, 111 Hawai``i 267, 279-80, 141 P.3d 440, 452-53 (2006).

Therefore,

The Amended Judgment of Conviction and Sentence filed on January 31, 2008 in the Circuit Court of the First Circuit is affirmed.

NOTES

[1] The Honorable Karl K. Sakamoto presided.