Freitas v. State ( 2010 )

LAwJBRAHY
N0T F0R PUBLICATIGN IN WEsT's HAWAI‘I REPORTS AND PACIFIC REPQRTER
NO. 29808
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE530 U.S. 466 (2000) and Blakely v.
Washington, 542 U.S. 296 (2004). On May l3, 2005, the Second
Petition was denied by the Circuit Court. On November 28, 2006,
this court affirmed the Circuit Court's denial of the Second
Petition in No. 27342.
On February 20, 2009, Freitas filed a third petition
for post-conviction relief (Third Petition), pursuant to HRPP
Rule 40. Freitas asserted his extended term of imprisonment was
illegal because State v. Maugaotega, 115 HawaiH_432, 168 P.3d
562 (2007) (Maugaotega II), invalidated Hawaii Revised Statutes
§ 706-662, and that Maugaotega ll applies retroactively to his
mextended term sentencing. On January 27, 2009, the Circuit Court
entered the Post-Conviction Order, which denied the Third
Petition. On appeal, Freitas asserts the same ground for relief
as in the Third Petition.
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 Freitas's points of error as follows:
Maugaotega ll does not apply retroactively to Freitas's
conviction and sentence, which became final in 2000. §§e Lgh§;
V. State, 118 Hawai‘i 522, 537-38, 193 P.3d 438, 453-54 (App.
2008). Freitas's sentence to an extended term of imprisonment
was not void ab initio. See State v. Jess, 117 HawaiH_381, 184
P.3d 133 (2008) and Loher, supra; State v. Cutsinger, 118 HawaFi
68, 81, 185 P.3d 816, 829 (App. 2008), overruled in part on other
grounds by State v. Jess, 117 Hawafi 381, 184 P.3d 133 (2008).
NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
For these reasons, the Circuit Court's April-13, 2009
Post-Conviction Order is affirmed.
DATED= Hon<>lulu, Hawai‘i, May 21, 2010.
On the briefs: <2[ §
Melvin Freitas, Jr. Chief Judge
Petitioner-Appellant &§Z&mdLJV ___
Stephen K. Tsushima é2“
Deputy Prosecuting Attorney Associate Jud~e '
City and County of Honolulu
for Respondent-Appellee